author: JUSTICE MURRAY

text:
    BERG AND ASSOCIATES, INC., Plaintiff-Appellee, v. NELSEN STEEL AND WIRE COMPANY, Defendant-Appellant.
    First District (5th Division)
    No. 1 — 90—1475
    Opinion filed May 10, 1991.

      Bedell A. Tippins and Catherine A.T. Nelson, both of Keck, Mahin & Cate, of Chicago, for appellant.
    Ronald N. Primack, of Lansing, for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

On or about October 20, 1979, defendant, Nelsen Steel & Wire Company (Nelsen), and plaintiff, Berg & Associates, Inc. (Berg), entered into an oral contract. On May 3, 1990, following a bench trial, the trial court entered a judgment against Nelsen in the amount of $150,000. Nelsen appeals the final order entering judgment.

The facts are as follows.

In October 1979, Nelsen and Berg entered into a verbal agreement whereby Berg was to serve as a construction manager for Nelsen in connection with the construction of a restaurant and small assembly facility known as “Scandals.” The restaurant and facility were to occupy three acres of a nine-acre parcel of property owned by Nelsen on Hilton Head Island. Albert Berg testified that he sent Nelsen an ASIA “Standard Form of Agreement Between Owner and Construction Manager,” which contained the terms of the agreement Berg and Nelsen had worked out in late September. Nelsen acknowledges receipt of a copy of the ASIA contract.

Nelsen engaged the services of an architect to prepare the plans and drawings. Nelsen also entered into a contract with Austin Construction Co. to serve as general contactors. Work on the project commenced in November 1979, and the facility was allegedly completed in April of 1980. Commencing with the construction of Scandals in November 1979, Berg submitted invoices for construction management services to Nelsen on a monthly basis. On July 31, 1980, Berg submitted its “final invoice for construction management services.” There is no dispute that the billings through this “final invoice” were paid.

Richard Berg and Albert Berg III testified that from January 1981 through March 1981, they worked on the site plan for the Phase II development of Nelsen’s nine-acre parcel on Hilton Head Island. Albert Berg, Jr., testified that he presented the site plan to Dan Nelsen at his offices on April 25, 1981. Albert Berg III testified that he met with Mr. Goode at their offices to review the site plan. Both Albert Berg, Jr., and Albert Berg III testified that at that meeting they were instructed by Dan Nelsen to go ahead and start working drawings for Phase II, based on the site plan. Albert Berg, Jr., testified that they discussed the schedule of construction, costs involved, and a rough budget based on 60 condominiums at a cost of $100,000 each.

Dan Nelsen testified that the Bergs’ testimony regarding the April 1981 meeting was absolutely false and at no time did they talk about building condominiums on the property. Dan Nelsen denied authorizing Albert Berg, Jr., to undertake any activities on behalf of Nelsen with respect to condominiums on the Hilton Head property.

Clifford Nelsen testified that he recalled meeting with Albert Berg with respect to the Hilton Head Island investment in the early summer of 1981. The meeting took place at Nelsen’s offices, and Albert Berg and Ed Goode were in attendance. He remembers being shown the site plan and that it had been presented as an example of what could be done with the property. At this meeting Mr. Berg and Mr. Goode did not indicate in any way that they were interested in acquiring the property. However, at a subsequent meeting, probably in midsummer, Mr. Berg and Mr. Goode indicated that they wanted to be the buyers of the property, having formed a group called Southern Pines. Clifford Nelsen further recalls receiving invoices from Berg in the amount of $150,000. He did not recall the date of the bill, but recalled that Nelsen received the bill years after the services.

Testifying on behalf of Nelsen, Mr. Goode testified that he did not recall any invoice in 1981 or 1982, and that the first invoice he recalls was one he saw approximately three to four months before suit was filed. Further, Ed Goode testified that no meeting between Albert Berg, Jr., Albert Berg III, Dan Nelsen and himself ever took place.

Albert Berg testified that Berg submitted its initial billing to Nelsen in July 1981, billing Nelsen for $1,800 for a site plan, and for 75% of the design phase of his management for the working drawings which had been completed to that date. Albert Berg further testified that after Ed Goode, Nelsen’s controller, explained to him the circumstances at Nelsen, and told him that he would be paid when the funds were available, Berg accepted that arrangement and continued to work for Nelsen, both on the working drawings for Phase II and for on-going additional work. The on-going additional work included work on additional punchlists, dance floor repairs and supervision, work on answers to interrogatories in a lawsuit, cleanup supervision, inventory and sewer application documentation. In April 1982, Berg submitted its invoice for $150,000, representing an additional $80,700 for 97% completion of the design phase, 8% of the construction phase for the work involved in getting the permits in place for the project, and the additional work for the Scandals property.

On July 1, 1987, Berg filed a suit charging Nelsen with a breach of a written contract. Berg sought to recover damages in the amount of $150,000. Although Berg attached a copy of a written contract to the complaint, it is undisputed that the contract was never signed by Nelsen. A bench trial followed during 1990. At the end of Berg’s case in chief, Nelsen moved for a directed verdict based on the statute of limitations. Nelsen’s motion for a directed verdict was denied. The trial court found in Berg’s favor and entered judgment in the amount of $150,000. This timely appeal followed.

On appeal Nelsen presents the following issues for review: (1) whether the trial court erred in denying defendant’s motion for a directed verdict based on the expiration of the five-year statute of limitations; (2) whether a reversal is required where a material variance exists between the pleading and the proof; (3) whether the court’s ruling of $150,000 in favor of Berg is against the manifest weight of the evidence; and (4) whether Nelsen is entitled to a new trial where the record, considered in its entirety, illustrates that Nelsen was denied a fair and impartial trial on the merits.

I

The first issue Nelsen raises is whether the trial court erred in failing to direct a verdict based on the expiration of the five-year statute of limitations pursuant to section 13 — 205 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 205). Nelsen claims the breach occurred no later than May 30, 1982, triggering the five-year statute of limitations applicable to oral contracts. Since Berg’s suit was not filed until July 1, 1987, Nelsen claims the suit is time barred, having been filed some 30 days after the expiration of the statute.

The statute of limitations begins to run when a party to be barred has the right to invoke the aid of the court and to enforce his remedy. April 30, 1982, was admittedly the date of the final statement; however, Berg argues that in construction contracts, the undertaking of a contractor is a single endeavor and the statute of limitations does not begin to run until the completion of that endeavor. Berg is correct in this regard. In cases involving construction contracts, the courts of Illinois have recognized an exception to the rule that statutes of limitations begin to run on the due date of the monetary installments due on the contract. (Santucci Construction Co. v. City of Danville (1984), 128 Ill. App. 3d 954, 956, 471 N.E.2d 1000, 1001.) Illinois courts have viewed such contracts as a single endeavor and have held that the statute does not begin to run until the endeavor is complete. O’Brien v. Sexton (1892), 140 Ill. 517, 30 N.E. 461; Santucci Construction Co. v. City of Danville (1984), 128 Ill. App. 3d 954, 471 N.E.2d 1000.

Applying this exception to the facts of this case, we must reject Nelson’s contentions as to the tolling of the statute of limitations. The record reflects evidence that Berg provided supervisory cleanup work as late as November 1982. In light of this, we determine that the trial judge was correct in denying Nelsen’s charge that Berg’s claim was time barred by the statute of limitations.

II

The second issue Nelsen raises is that a fatal variance exists between pleading and proof. As reflected in the statute of limitations’ issue, Berg’s proof related to extra work it performed under the contract. Nelsen claims that this is a fatal variance requiring a reversal of the matter. The complaint in the instant case alleges in relevant part:

“3. On or about October 20, 1979, Berg and Nelsen entered into a written contract, a copy of which is attached hereto, and made a part of this Complaint as Exhibit A (consisting of ten (10) pages).
4. By the terms of the contract, Berg was to be paid by Nelsen as a construction manager regarding property known as the Shipyard Commercial Area at Hilton Head Island, South Carolina.
5. Berg did all of the work called for by the terms of the contract in a good, expert and professional manner, including the design phase of the project and the construction phase.
6. Berg’s work consisted of:
1. Hired architect and secured land.
2. Assisted in design and development of working drawings for a building known as Scandals.
3. Obtained contractors and suppliers; issued contracts and supervised construction.
4. Prepared and approved payouts to suppliers and contractors.
5. Prepared punchlists and all closing documents.
6. Continued development of property by preparing working drawings for 60 condominium project.
7. Submitted development plans to Hilton Head architectural review board.
rj * * *
8. The work was done between October 1979, and April 30, 1982. Attached hereto as Exhibit B and made a part of the Complaint is a bill.”

The first five items of “work,” as described in Berg’s complaint, regard work done relating to Scandals and are further expressed in the alleged written contract attached to the complaint. Nelsen claims items 6 and 7, however, regard specific “extra” work not included in the original alleged written agreement for Scandals. Berg further alleges that it “has submitted bills to Nelsen for this work but defendant refuses to pay despite many demands by plaintiff.”

The extra or additional work Berg allegedly performed included: obtaining sewer allotments; inventory of missing items; cleanup of the property; additional punchlists; and rendering professional services in another legal action. Berg introduced evidence of 642 hours of work, billed at $50 per hour. Nelsen asserts that this alleged work is not described in, referred to, or even hinted at in Berg’s complaint. Berg asserts that these 642 hours are included in the April 30, 1982, invoice for $150,000, for which it seeks judgment.

Nelsen asserts that Berg’s failure to mention these 642 hours anywhere in the complaint (including any reference on an invoice) creates a material variance between the pleading and the proof in the instant case. Further, Nelsen claims that this fatal variance so prejudiced Nelsen in effectively defending itself that a reversal of the matter is warranted.

Conversely, Berg argues that no variances exist in this case, the action having started as a breach of contract action; the action having been tried as a breach of contract action; and the fact that the action was judged as a breach of contract action. Berg claims that at all times Berg asserted that it was seeking recovery for Nelsen’s breach of contract, i.e., Nelsen’s failure to pay the bill submitted to it for the work performed by Berg. Berg asserts that the work was specifically described and authorized by the contract, and can be included within the allegations that Berg performed the duties required by the contract by obtaining contractors and suppliers, issuing contracts, supervising construction, preparing punchlists and continuing development of the property.

An objection on the ground of variance between the pleadings and proof must be made in the trial court in order to preserve the question for review. (Van Hoorebecke v. Iowa Illinois Gas & Electric Co. (1944), 324 Ill. App. 88, 57 N.E.2d 652.) Nelsen properly objected to the alleged variance between the proof and the pleadings in the trial court; thus, the issue is properly before this court.

“A material variance between [a] contract pleaded and [a] contract proved generally precludes recovery.” (Heavey v. Ehret (1988), 166 Ill. App. 3d 347, 353, 519 N.E.2d 996, citing Metal v. Gamm (1931), 262 Ill. App. 140.) The issues in a case are created by pleadings and allegations, to which proof must correspond, and thus, a party cannot have relief based on proof without allegations. (Morris v. City of Chicago (1985), 130 Ill. App. 3d 740, 744, 474 N.E.2d 1274.) An adequate complaint based on breach of contract must allege the evidence of a contract, plaintiffs performance of all contractual conditions required of him, facts of defendant’s breach and the existence of damages as a consequence thereof. (Bartlett Bank & Trust Co. v. Mc-Junkins (1986), 147 Ill. App. 3d 52, 61, 497 N.E.2d 398, 405.) Exhibits attached to the complaint constitute part of the pleading for all purposes. McCormick v. McCormick (1983), 118 Ill. App. 3d 455, 455 N.E.2d 103.

However, for a variance to constitute reversible error, it must be shown to be material; the one urging it as a basis for relief must show how it worked to his prejudice. (People ex rel. Adams v. Sanes (1968), 41 Ill. 2d 381, 386, 243 N.E.2d 233; Stevenson v. Meyer (1957), 10 Ill. 2d 335, 139 N.E.2d 740.) In Illinois a variance between the allegations of a complaint and the proof is not fatal unless it misleads an adverse party to his prejudice. (Cummings v. Dusenbury (1984), 129 Ill. App. 3d 338, 472 N.E.2d 575.) This was a contract under which Berg was to act as manager of a construction project. Berg pled a breach of that contract, referred to the contract and the bills in the complaint and attached as exhibits to the complaint a copy of the written contract and copies of the alleged unpaid bills. By attaching a copy of the written contract as an exhibit to the complaint, the contract constituted a part of the pleadings for all purposes. Thus, we find Nelsen had sufficient knowledge that Berg was suing on the terms of the written contract. Nothing in plaintiff’s brief or the record indicates that Nelsen was misled by Berg’s evidence of extra work under the contract. Although the pleadings could have been more explicit, we do not find that a fatal variance existed between the pleadings and the proof in this case.

Ill

Nelsen next argues that the $150,000 verdict in Berg’s favor is against the manifest weight of the evidence. Nelsen bases this claim on the fact that all of Berg’s claims were for extra work not within the terms of the original agreement. Nelsen claims that under Illinois law, in order to recover for extra work not provided for in the original agreement, Berg must prove that: “(a) the work was outside the scope of the contract premises; (b) the work was ordered by Nelsen; (c) Nelsen agreed to pay for the work by his words or conduct; (d) the work was not furnished by Berg as a voluntary act; and (e) the work was not rendered necessary by any default of Berg.”

Nelsen’s statement is a correct statement of Illinois law on the question of extra work under a construction contract. The following are the essential elements a contractor must prove in order to recover additional compensation from an owner for extra work: (a) the work was outside the scope of his contract promises; (b) the extra items were ordered by the owner; (c) the owner agreed to pay extra, either by his words or conduct; (d) the extras were not furnished by the contractor as his voluntary act; and (e) the extra items were not rendered necessary by any fault of the contractor. (R & R Construction Co. v. Junior College District No. 529 (1977), 55 Ill. App. 3d 115, 118, 370 N.E.2d 599, 602; Mayer Paving & Asphalt Co. v. Carl A. Morse, Inc. (1977), 48 Ill. App. 3d 73, 77, 365 N.E.2d 360, 363.) “The proof that the items are extra, that the defendant ordered it as such, agreed to pay for it, and waived the necessity of a written stipulation, must be by clear and convincing evidence.” (R & R Construction Co. v. Junior College District No. 529, 55 Ill. App. 3d at 118, 370 N.E.2d at 602.) A party sustains this burden whereby he shows that the extra work was requested and there is no evidence indicating that the work was necessitated by the party’s fault or that the work was performed voluntarily. (Delta Construction, Inc. v. Dressler (1978), 64 Ill. App. 3d 867, 381 N.E.2d 1023.) Further, even if a building contract provides for written modification only, an owner may be estopped to raise such issue or waive such provision if such a provision has been waived by the actions or words of the parties. Delta Construction, Inc. v. Dressler (1978), 64 Ill. App. 3d 867, 381 N.E.2d 1023; Capital Plumbing & Heating Supply Co. v. Snyder (1971), 2 Ill. App. 3d 660, 275 N.E.2d 663.

Nelsen concedes that all the work for which Berg claims $150,000 was outside the scope of the original contract agreement, but claims that this first requirement for recovery is the only element which Berg can satisfy. Nelsen argues that the evidence introduced by Berg fails to satisfy its burden with regard to recovery concerning not only the working drawings, but each and every category of extra work alleged by Berg although not pled in its complaint. However, based on the aforementioned rules of law relating to a party’s right to recover for extra work performed on a construction site, we must affirm the decision of the trial judge.

Berg filed a complaint seeking damages for breach of contract. The essential allegations of the complaint were that Nelsen and Berg had entered into a written contract (Berg concedes that the contract was never signed by Nelsen); that from October 1979 to April 30, 1982, Berg did all the work called for by the terms of the contract in a good, expert and professional manner; that Nelsen had been billed, but refused to pay; and that demand for payment had been made upon Nelsen repeatedly. A prayer for relief in the sum of $150,000 was also included.

First, Nelsen concedes that the work Berg performed was outside the scope of his original agreement with Nelsen. Secondly, the evidence disclosed that the construction of the club was completed in April 1980. After completion of the work, according to Albert Berg’s testimony, he was directed by Mr. Goode, Nelsen’s controller, to provide additional services at the agreed upon rate of $50 per hour. Albert Berg testified to the following hour allotments of work: 100 hours on punchlists; 300 hours on dance floor repairs and supervision; 40 hours on lawsuit answer/research; 16 hours on cleanup supervision; 96 hours on inventory; and 90 hours on sewer application documentation.

Further, Nelsen argues that why, after billing Nelsen on a monthly basis and receiving prompt payment in return, Berg would wait until April 1982, to invoice Nelsen for work it allegedly performed in April 1980. The record reflects that Berg’s billing pattern changed from every month to every two years. Albert Berg testified that after Mr. Goode explained to him the circumstances at Nelsen, and told him that he would be paid when the funds were available, Berg accepted that arrangement and continued to work for Nelsen.

The practice of architecture includes the offering or furnishing of professional services such as construction documents consisting of drawings and specifications. (Ill. Rev. Stat. 1987, ch. 111, par. 1305.) Albert Berg, as well as his two sons, the alleged preparers of the working drawings, each testified that they were not licensed to practice architecture in the State of Illinois. Nelsen argues that in contravention of the statute, Berg purported to offer and furnish working drawings for a 60-unit condominium complex and now seeks payment for such. The record reflects that Albert Berg and his two sons were questioned at trial as to their qualification to practice architecture. Nelsen further argues that Berg’s attempts to now recover for its unlawful practice of architecture are clearly against the public policy of this State. Berg argues that the lack of a license to practice architecture should not be considered by this court because the issue was not before the trial court. We agree; although Nelsen questioned the Bergs as to their qualifications to practice architecture, the argument that Berg could not recover for the drawings because he is not an architect was not raised before the trial court. Questions not raised in the trial court cannot be raised for the first time on appeal and are deemed waived. George W. Kennedy Construction Co. v. City of Chicago (1986), 112 Ill. 2d 70, 77, 491 N.E.2d 1160.

Finally, Nelsen asserts that even if this court were to consider the entirety of Berg’s evidence at trial as true and competent, the trial court’s judgment in favor of Berg in the amount of $150,000 is against the manifest weight of the evidence. Nelsen argues that there are inconsistencies in the evidence presented by Berg, and that Nelsen has not received credit for all payments made by Nelsen to Berg for the additional work performed.

Berg's first invoice indicates an amount due on July 1, 1981, of $69,300. This amount allegedly includes $1,800 for a land plan and $67,500 for 75% completion of working drawings. Berg’s second invoice alleges an amount due on April 30, 1982, of $150,000, reflecting the $69,300 previously billed on July 1, 1981, and an additional $80,700 which Berg does not itemize but refers to generally as “professional services rendered.”

Nelsen argues that at trial Mr. Berg testified that the $150,000 he was seeking included the land plan, 77% completion of the working drawings, 642 additional hours of professional services at $50 per hour and 8% of the construction management fee of $360,000. This evidence amounts to only $132,000.

Nelsen further argues that Berg’s testimony illustrates that 24 hours of time allocated to Berg’s “professional services rendered” to Nelsen in another lawsuit had previously been paid, thus, further reducing the total to $130,800.

Next Nelsen claims that Berg also testified that 16 hours of the additional time for “professional services rendered” between October 1979 and April 30, 1982, were allocated to cleanup of the Nelsen property following a severe storm on Hilton Head Island. The invoice was dated April 30, 1982. Nelsen argues that Berg’s exhibit illustrates that estimates of this work occurred in the fall of 1982 and cleanup of the property did not occur until November 1982. Thus Nelsen requests that the 16 hours of “cleanup” allegedly included in the April 1982 invoice for $150,000 must also be excluded, bringing the total to $130,000.

Berg argues that in July 1981, it submitted a bill to Nelsen for $69,300, representing a charge of $1,800 for the site plan, and 75% completion of the $90,000 fee for the working drawings for the condominium development. In April 1982, Berg submitted a final bill for $150,000, representing $69,300 balance due from the July 1981 billing; $19,800 for additional work to complete the working drawings (97%) complete; $32,100 for 642 hours of additional work; and $28,800 for 8% of the construction management fee.

In the transcript of Albert Berg, Jr.’s testimony, the following appears:

“April 30, 1982, we submitted or tendered our second invoice at this time. We were 2 percent further complete with the working drawings. In other words, we had billed at that time 75 percent previously. We are now 77 percent complete. So we billed an additional 2 percent of the $90,000 fee.”

Berg argues:

“Whether this statement was misrecorded by the reporter or misspoken by Mr. Berg, the fact is that the drawings were 97% complete in April, and the billing of $150,000 contains the additional 22 percent. The record is replete with evidence that the drawings were complete. Albert Berg III testified that he finished the working drawings in September 1981, Albert Berg testified that Ed Goode saw the drawings between the time they were started in April 1981, and September 1981 when they were finished, and the explanation of the April 1982 bill indicated that they were 97% complete.”

Berg argues that the record is replete with evidence that the drawings were complete. Albert Berg III testified that he finished the working drawings in September 1981. Norman White, a licensed architect and structural engineer, testified on Berg’s behalf that the working drawings would have a value of $226,000.

In addition to the billings in July 1981 and April 1982, Berg submitted an invoice to Nelsen for $1,200. Berg argues that both the invoice and the testimony indicate that the bill in July 1982 was for services performed by Berg after the April 1982 billing and in addition to the services represented by that April billing. Berg acknowledges receiving payment for those later services, and claims for that reason it sought only to recover $150,000 and not $151,200.

Berg testified that in response to complaints by local authorities and at the direction of Nelsen, he spent 16 hours supervising cleanup of the closed up Scandals facility. Berg produced evidence indicating that in November 1982, he performed additional cleanup supervision, necessitated by a storm which had passed through the area. Berg claims that it did not bill Nelsen for those hours as they occurred after the contract between Southern Pines development and Nelsen had been executed.

It is the function of the trial court to resolve conflicting testimony by addressing the credibility of witnesses and the weight to be accorded their testimony, and this finding will not be disturbed unless it is against the manifest weight of the evidence. (In re Marriage of Durante (1990), 201 Ill. App. 3d 376, 559 N.E.2d 56.) On appeal the court must take questions of testimonial credibility as resolved in favor of the prevailing party, and must draw from the evidence all reasonable inferences in support of the judgment. (Chicago Title & Trust Co. v. First Arlington National Bank (1983), 118 Ill. App. 3d 401, 410, 454 N.E.2d 723, 730, citing Blue v. St. Clair Country Club (1955), 7 Ill. 2d 359, 363, 131 N.E.2d 31.) This deferential attitude toward the trial court’s findings of fact is based upon the realization that a fact finder which observes a witness testifying has a superior ability to assess his believability than a reviewing court, which is limited to reading a lifeless transcript. (Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 356, 226 N.E.2d 624; Chicago Title & Trust Co. v. First Arlington National Bank (1983), 118 Ill. App. 3d 401, 410, 454 N.E.2d 723, 730.) Moreover, a judgment is not against the manifest weight of the evidence merely because there is sufficient evidence to support a contrary judgment. Tomaso v. Plum Grove Bank (1985), 130 Ill. App. 3d 18, 24, 473 N.E.2d 588, 593.

Nelsen’s argument is not that Berg failed to do the work, but rather that it was either not authorized, duplicative or that Nelsen was billed for the work by Berg prior to the work being performed. It is the function of the trier of fact, in a bench trial the trial judge, to determine the credibility of the witnesses and assess the weight to be accorded their testimony. This court cannot substitute its judgment for that of the trial court unless it appears that the decision of the trial court was against the manifest weight of the evidence. (Tomaso v. Plum Grove Bank (1985), 130 Ill. App. 3d 18, 473 N.E.2d 588.) We find that judgment in the amount of $150,000 in favor of Berg was not against the manifest weight of the evidence.

IV

In its last point Nelsen argues that it is entitled to a new trial because the record, considered in its entirety, illustrates that Nelsen was denied a fair and impartial trial on the merits. Specifically, Nelsen asserts that the trial court erred in admitting evidence irrelevant to the issues in the pleadings; that the trial court erred in precluding Nelsen from admitting evidence relevant to issues of liability and damage issues; and that the trial court’s conduct, in conjunction with the improper evidentiary rulings, illustrates that Nelsen was denied a fair and impartial trial.

Rulings with respect to evidence are within the sound discretion of the trial court and will be interfered with only where such discretion has been clearly abused. (Levenson v. Lake-To-Lake Dairy Cooperative (1979), 76 Ill. App. 3d 526, 394 N.E.2d 1359.) For the following reasons, we find that the trial court did not clearly abuse its discretion with regard to any evidentiary rulings.

Nelsen argues that Berg introduced evidence regarding work which included obtaining sewer allotments, an inventory of stolen items at Scandals, cleanup, additional punchlists and professional services in another lawsuit. Nelsen claims that nowhere is such work brought into issue in the complaint nor does such evidence tend to make those facts alleged in the complaint more or less probable. We have already addressed the issue of whether a fatal variance existed between the pleading and the proof. The evidence of “additional work” was brought into issue in the contract attached as an exhibit to the complaint and in the bills attached as an exhibit to the complaint.

During its case in chief, Nelsen attempted to elicit evidence to show that at the same time Nelsen is alleged to have authorized continued development of the vacant property by requesting working drawings for a 60-unit condominium project, it had placed the property on the market for sale. Nelsen attempted to show that Albert Berg, Jr., president of Berg & Associates, together with Edwin Goode, placed an offer to purchase the property in March of 1981 which was ultimately accepted by Nelsen. The court sustained Berg’s relevancy objection regarding this testimony. An offer of proof by Nelsen consisted of an exhibit that illustrated that several offers were made to purchase the property, including the offer of Mr. Berg and Mr. Goode. An exhibit of Nelsen’s also illustrates that Berg and Goode planned to further develop the property into a residential complex.

Nelsen claims the trial court also precluded Nelsen from presenting evidence contrary to Berg’s allegations regarding the value of such working drawings. Berg assessed Nelsen a cost of $67,300 for the preparation of these working drawings. The judgment entered against Nelsen in the amount of $150,000 allegedly includes a $69,300 charge for these drawings (Berg’s invoices indicate that it is charging Nelsen for 77% completion of the working drawings it valued at $90,000). Nelsen attempted to discredit Berg’s allegation with evidence tending to disprove that the working drawings were prepared for Nelsen or that their alleged value was proper. Nelsen attempted to introduce into evidence drawings prepared for a Wisconsin development called Willabay Shores to illustrate that the Willabay Shores drawings were virtually identical to the drawings allegedly prepared by Berg for Nelsen. The trial court did not admit the Willabay Shores drawings into evidence. However, the record discloses that defense counsel had the opportunity to extensively question Richard Berg about the similarities between the Willabay Shores drawings and the drawings allegedly prepared by Berg for Nelsen. The trial court allowed defense counsel to “go ahead” when defense counsel stated, “I would attempt to show these drawings [the drawings prepared by Berg] are tracings of the Williams Bay, Wisconsin [sic\ [Willabay Shores] drawings, an absolute identical tracing, these drawings that he’s [Berg] seeking to claim $90,000 for.” Defense counsel superimposed Berg’s drawings over the Willabay Shores drawings. In fact, the trial judge stated, “The Court can see that the drawings are almost identical.” Although the court ultimately excluded the Willabay Shores drawings themselves, the record discloses that Nelsen was given the opportunity when questioning Richard Berg, Albert Berg III, and Norman White to elicit testimony comparing details of the drawings prepared for Nelsen with the Willabay Shores drawings. We do not feel the trial judge’s ruling excluding the drawings themselves prejudiced Nelsen’s case to the extent that reversal is appropriate. Any prejudice caused by the exclusion of the drawings was harmless error.

The trial court also denied evidence regarding Berg’s tendering of a check to Nelsen in the amount of $100,000. Through an offer of proof, Nelsen presented a $100,000 check dated March 11, 1982, made out to Nelsen and signed by Albert Berg and Ed Goode. Berg’s testimony established that it considered Nelsen in breach of their agreement in August 1981, for its failure to pay $69,300 allegedly due under the July 1, 1981, invoice. Nelsen questioned Albert Berg, Sr., as to why, if Nelsen truly owed Berg $69,300 under the July 1, 1981, invoice, it would issue a $100,000 check rather than effect a setoff, in whole or part, or at a minimum raise the issue of the alleged outstanding balance with Nelsen. Nelsen asserts that as Nelsen attempted to elicit Albert Berg, Sr.’s testimony, the trial court limited Nelsen’s offer of proof, and as a result, Nelsen was not able to fully explore the alleged inconsistency. The record discloses the following colloquy:

“MR. TIPPINS [Nelsen’s counsel]: Exhibit 40 is a check for $100,000 dated March 11th, 1982, and it is signed by Mr. Berg and Mr. Goode, and there was a notation on it, ‘Agreement between the parties herein for real estate property located on Hilton Head Island, South Carolina.’
And the offer of proof would be that if Mr. Berg had actually submitted an invoice for $69,300 in 1981 that hadn’t been paid, I would like to find out why he was issuing them a check for $100,000 in 1982 rather than just having a set off.
THE COURT: Okay. What’s the answer?
THE WITNESS [Albert Berg, Sr.]: The firm of Southern Pines went into a purchase agreement with the — to purchase the property, and with the principals being Ed Goode and myself.
BY MR. TIPPINS:
Q. Well, that’s correct quite. The principals were Ed Goode, yourself, and Berg and Associates, Inc.; isn’t that right?
A. Berg and Associates, Inc., would be the construction managers on it.
Q. They would be the principal signatory of the contract.
A. Well, that’s not who purchased it.”

The court stated that Nelsen got its offer of proof and did not allow further questions. We agree with the trial court’s ruling.

Nelsen further contends that it was denied a fair trial because the trial court repeatedly expressed impatience toward defense counsel and erroneously denied defense counsel the opportunity to present his case effectively. One of the cases Nelsen cites in support of its request for a new trial is People v. Eckert (1990), 194 Ill. App. 3d 667, 552 N.E.2d 820. We feel there are significant differences between Eckert and the present case. The Eckert case was a criminal matter tried before a jury. The judge repeatedly made comments like “I can’t hear you” and “I’m turning my hearing aid off.” The judge initially denied defense counsel’s request to make an offer of proof, and when it was finally allowed, it was made out of the hearing of both the judge and the jury.

For comments by a trial judge to constitute reversible error, the defendant must show that the remarks were prejudicial and that he was harmed by the comments. (People v. Peeka (1989), 183 Ill. App. 3d 60, 71, 538 N.E.2d 1189, 1196.) “In the absence of a showing of animosity, hostility, ill-will or distrust towards the defendant, proof falls short of establishing the actual prejudice which would interfere with a fair trial.” (People v. Neumann (1986), 148 Ill. App. 3d 362, 370, 499 N.E.2d 487, 492, citing People v. Vance (1979), 76 Ill. 2d 171, 390 N.E.2d 867.) Moreover, during a nonjury trial, the comments of a trial judge are allowed greater latitude than would be acceptable were a jury present. (Joray Mason Contractors, Inc. v. Four J’s Construction Corp. (1978), 61 Ill. App. 3d 410, 378 N.E.2d 328.) In the case before us, Nelsen has failed to prove actual prejudice. Taken in context, most of the court’s statements appear to be attempts by the court to move the trial along, indicating no prejudice toward Nelsen. Further, after closing arguments the trial court stated:

“I said before there’s been a lot of work done by both of you, and I appreciate that. You’ve represented your clients — I want your clients to know that you both did a very good job, as far as I’m concerned. More importantly, I think you’re both gentlemen, and you cooperated with me to the fullest extent. I know that. So, I do want to say that if you have another case to try, come back here any time.”

After a review of the record, we cannot say the trial court displayed such bias or improper conduct as would deprive defendant of a fair and impartial trial. Further, if any error did exist it amounted to harmless error. People v. Merz (1984), 122 Ill. App. 3d 972, 461 N.E.2d 1380.

Accordingly, for the reasons set forth above, we affirm the decision of the trial court.

Judgment affirmed.

LORENZ, P.J., and McNULTY, J., concur.


source: Caselaw Access Project

author: JUSTICE GORMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VINSON E. NASH, Defendant-Appellant.
    Third District
    No. 3 — 90—0295
    Opinion filed November 27, 1991.
    Thomas A. Karalis, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (Judith Z. Kelly, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court:

A jury convicted the defendant, Vinson E. Nash, of unlawful delivery of a controlled substance (Ill. Rev. Stat. 1989, ch. 561/2, par. 1401(c)). The trial court subsequently sentenced him to six years’ imprisonment. The defendant appeals, arguing that the State failed to show the offense occurred in Peoria County, as it was required to do to convict him. We affirm.

Initially, we note the State argues that this court does not have jurisdiction over the defendant’s appeal because he failed to file a motion to vacate his guilty plea before appealing. The State notes that following his conviction, the defendant filed a motion for a new trial. He thereafter entered into a negotiated plea agreement with the State in which he agreed to withdraw his motion for a new trial, plead guilty in a separate case, waive his right to a sentencing hearing, and receive two concurrent six-year sentences. Due to this chain of events, the State contends that the defendant was required to file a Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)) motion to withdraw his guilty plea before he could appeal.

We do not agree with the State’s position. Rule 604(d) is entitled “Appeal by Defendant From a Judgment Entered Upon a Plea of Guilty.” (134 Ill. 2d R. 604(d).) The rule speaks only of examining defects related to the guilty plea proceedings. (134 Ill. 2d R. 604(d).) Further, the reasoning behind Rule 604(d) is that the trial court is in the best position to engage in any fact finding necessary for correcting errors in the guilty plea proceedings. People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218.

Here, the defendant was convicted by a jury. Though he later pled guilty to a second offense and his plea affected his sentence for the first offense, his plea was generally unrelated to his first conviction. Further, his appeal centers only on the issue of whether the State proved during the jury trial one of the elements of the crime. Since a Rule 604(d) hearing is limited to issues regarding the propriety of the guilty plea, it would have been a questionable method for addressing the current venue issue. Moreover, requiring the defendant to file a motion to vacate in this case would be a radical extension of Rule 604(d) never intended by the supreme court and unforeseeable to competent counsel. In this regard, we note that when the trial court admonished the defendant regarding the need to file a motion to withdraw his guilty plea prior to appealing, it only told him he needed to do so if he wished to challenge his guilty plea in the second case or if he wished to ask for a sentencing hearing in this case. It made no mention of filing a motion to withdraw if he wished to challenge the jury conviction.

We recognize that by agreeing to withdraw his motion for a new trial, thé defendant arguably was agreeing that his first conviction was error-free. However, this is unrelated to our jurisdiction. Instead, it is a waiver issue and, in fact, the State raises it as such. We find this question of whether the defendant agreed not to contest his jury conviction a much closer issue than the State’s jurisdiction argument. However, we also find it unnecessary to address the question at this time, since, in any event, we find no merit to the defendant’s argument on appeal.

Proof that a crime was committed in a particular county is a material element of a criminal offense. (People v. Allen (1952), 413 Ill. 69, 107 N.E.2d 826.) While proof of venue may be supplied by either direct or circumstantial evidence, where the latter type of proof is employed, the evidence must be such that the only rational conclusion which can be drawn is that the offense was committed in the county alleged in the charging document. People v. Smith (1980), 91 Ill. App. 3d 242, 414 N.E.2d 751.

In People v. Pride (1959), 16 Ill. 2d 82, 156 N.E.2d 551, the supreme court held that evidence that the crime occurred at 8900 S. Anthony Avenue was sufficient to establish venue. The court noted that when people are referring to a street within the city in which they live, they commonly refer only to the street. Conversely, when they are referring to a street in a different city, they will also name the city.

Here, an undercover Peoria police officer testified that when he purchased cocaine from the defendant he was on Washington Street in the Taft Homes just past the first housing building. Given the officer’s employment by the City of Peoria, his reference to a well-known Peoria housing project, and his reference to a specific street in that project, the only rational conclusion which can be drawn is that the officer was referring to Washington Street in Peoria. Accordingly, we find that the State proved the venue element.

The judgment of the circuit court of Peoria County is affirmed.

Affirmed.

STOUDER, P.J., and BARRY, J., concur.


author: JUSTICE McCUSKEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ROGER LEE SPARKS, Defendant-Appellee.
    Third District
    No. 3 — 90—0851
    Opinion filed November 27, 1991.

      Edward Burmila, Jr., State’s Attorney, of Joliet (Nancy Rink Carter, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Morelli & Cook, of Aurora (Fred M. Morelli, Jr., of counsel), for appellee.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The defendant, Roger Lee Sparks, was indicted for criminal sexual assault (count I) and criminal sexual abuse (count II) in violation of sections 12 — 13(a)(4) and 12 — 15(c), respectively, of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, pars. 12 — 13(a)(4), 12— 15(c)). The trial court dismissed count I of the indictment by finding the State failed to state an indictable offense. The State claims the trial court erred. We disagree and affirm.

Count I of the indictment alleged that Sparks

“being a person over the age of 17 years, and having held a position of trust in relation to [C.C.], he committed an act of sexual penetration with [C.C.], a person who was at least 13 years of age, but under 18 years of age when the act was committed, by placing his penis in the vagina of [C.C].”

Sparks moved to strike count I claiming, among other things, that as a matter of law, he was not in a position of “trust.”

The prosecutor argued that this “trust” relationship was inferred or imputed because Sparks was the nephew of the victim’s live-in baby-sitter. In addition, Sparks knew the victim for eight or nine years.

A trial judge may dismiss criminal charges prior to trial only for the reasons set forth in section 114 — 1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 114 — 1). Section 114 — 1 of the Code of Criminal Procedure of 1963 provides in pertinent part:

“114 — 1. Motion to dismiss charge, (a) Upon the written motion of the defendant made prior to trial before or after a plea has been entered the court may dismiss the indictment, information or complaint upon any of the following grounds:
(1) The defendant has not been placed on trial in compliance with Section 103 — 5 of this Code;
(2) The prosecution of the offense is barred by Sections 3 — 3 through 3 — 8 of the ‘Criminal Code of 1961’, approved July 28, 1961, as heretofore and hereafter amended;
(3) The defendant has received immunity from prosecution for the offense charged;
(4) The indictment was returned by a Grand Jury which was improperly selected and which results in substantial injustice to the defendant;
(5) The indictment was returned by a Grand Jury which acted contrary to Article 112 of this Code and which results in substantial injustice to the defendant;
(6) The court in which the charge has been filed does not have jurisdiction;
(7) The county is an improper place of trial;
(8) The charge does not state an offense;
(9) The indictment is based solely upon the testimony of an incompetent witness;
(10) The defendant is misnamed in the charge and the misnomer results in substantial injustice to the defendant^]
(11) The requirements of Section 109 — 3.1 have not been complied with.” (Ill. Rev. Stat. 1989, ch. 38, par. 114 — 1.)

Otherwise, the court may only dismiss charges when there has been a clear denial of due process which prejudices a defendant. (People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244.) One of the grounds for dismissal enumerated in section 114 — 1 of the Code of Criminal Procedure of 1963, upon which the trial court relied, is that the charge does not state an offense. Ill. Rev. Stat. 1989, ch. 38, par. 114-1(a)(8).

When the sufficiency of an indictment is challenged in a pretrial motion, the standard of review is to determine whether the indictment complies with section 111 — 3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 111 — 3), which requires that the charge be in writing and state the name of the offense, the statutory provision allegedly violated, the name of the accused and the date and county of the offense, and set forth the nature and elements of the offense. If the indictment meets these criteria, it should not be dismissed. (People v. Simon (1980), 91 Ill. App. 3d 667, 416 N.E.2d 285.) The purpose of a motion to dismiss for failure to state an offense is to challenge the sufficiency of the allegations in the charging instrument, not the sufficiency of the evidence. People v. Gerdes (1988), 173 Ill. App. 3d 1024, 527 N.E.2d 1310.

We find the indictment was properly dismissed because it failed to state an offense. Specific facts constituting the crime must be set forth in the charging document. (People v. Yarbrough (1987), 162 Ill. App. 3d 748, 516 N.E.2d 607.) Section 12-13(a)(4) of the Criminal Code of 1961 states:

“Criminal Sexual Assault, (a) The accused commits criminal sexual assault if he or she:
* * *
(4) commits an act of sexual penetration with a victim who was at least 13 years of age but under 18 years of age when the act was committed and the accused was 17 years of age or over and held a position of trust, authority or supervision in relation to the victim.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 38, par. 12 — 13(a)(4).

In the present appeal, the trust relationship between Sparks and C.C. has not been adequately defined in the indictment. The State is required to identify, define, or indicate the particular “trust” relationship which it claims Sparks possessed over C.C. and to do so with specificity or particularity. (People v. Gerdes (1988), 173 Ill. App. 3d 1024, 527 N.E.2d 1310.) One of the purposes of an indictment is to advise the accused of the nature of the charge so that he will be able to adequately prepare his defense. (People v. Miles (1981), 96 Ill. App. 3d 721, 422 N.E.2d 5.) The indictment contained insufficient factual allegations concerning the nature of the trust relationship between Sparks and C.C.

Count I does not state an offense because the term “position of trust” is not defined within the indictment. Without providing the definition of “position of trust” to Sparks, he would not be able to adequately prepare his defense or fully understand the charges against him.

Based upon section 12 — 13(a)(4) of the Criminal Code of 1961, the term “position of trust” would not necessarily apply to Sparks’ relationship with C.C. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 13(a)(4).) Neither that section, nor the related sections of the Code, define the term “position of trust.” Without such a definition being located in the indictment itself, or within the statute, the offense of “criminal sexual assault” was not sufficiently described so that Sparks would understand what he had been charged with. People v. Grear (1968), 98 Ill. App. 2d 372, 240 N.E.2d 329, rev’d, on other grounds (1969), 42 Ill. 2d 578, 248 N.E.2d 661.

A criminal offense may be charged using the language of a statute if the statute specifically describes the forbidden activity. (People v. Jeffrey (1981), 94 Ill. App. 3d 455, 418 N.E.2d 880.) If the statute does not describe acts which constitute the offense, then language in addition to the statute must be alleged. People v. Harris (1974), 19 Ill. App. 3d 531, 311 N.E.2d 789.

For the reasons herein contained, the circuit court of Will County is affirmed.

Affirmed.

BARRY and GORMAN, JJ., concur.


author: PRESIDING JUSTICE STOUDER

text:
      In re M.W. et al., Minors (M.W. et al., Minors, Appellees; Gary Statler et al., Petitioners and Intervenors-Appellants).
    Third District
    No. 3-91-0199
    Opinion filed November 20, 1991.

      Dean A. Stone, of Macomb, for appellants.
    Joseph C. O’Donnell, of Macomb, for appellees.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The appellants, Gary and Ruth Statler, appeal from the denial of their emergency petition to intervene, stay and vacate order. We affirm.

This cause was originated by the State with the filing of petitions for adjudication of wardship of M.W., S.W. and W.I. The circuit court granted the petitions, finding the minors were abused and placing them in the temporary custody of the Illinois Department of Children and Family Services (DCFS). DCFS placed M.W. and S.W. in the foster care of the Statlers. Subsequently, a supplemental petition to terminate the parental rights of the minors’ biological parents was filed. Following a hearing, the circuit court entered a judgment terminating the biological parents’ parental rights.

On review this court reversed, finding the State had failed to establish by clear and convincing evidence that the parents were unfit, and that, consequently, the circuit court’s judgment was against the manifest weight of the evidence. We remanded for further proceedings. In re M.W. (1990), 199 Ill. App. 3d 1050, 557 N.E.2d 959.

On remand, a hearing was held on January 9, 1991, on the biological parents’ petitions for “Return of the Minor Children.” Neither the Statlers nor the foster parents of W.I. were given notice of the hearing, nor were they present at the hearing. At the conclusion of the hearing, the circuit court granted the petitions and ordered the children returned to their parents. A written order to that effect was entered on February 11, 1991. However, on February 8, 1991, the Statlers filed their emergency petition to intervene. In the petition, the Statlers requested that they be allowed to intervene in the proceedings, that the order of January 9, 1991, be vacated, and that a new hearing be held so that they and representatives of DCFS could present evidence relating to the minors’ best interest.

Following a hearing, the circuit court denied the Statlers’ petition to intervene. However, the circuit court also vacated the order of February 11, 1991, and set the cause for a status hearing. The instant appeal followed.

On appeal, the Statlers contend they were entitled to intervene as a matter of right and that the circuit court abused its discretion in denying intervention.

Under the facts presented, resolution of the above raised issues is governed by section 1 — 5(2) of the Juvenile Court Act of 1987 (the Act) (Ill. Rev. Stat. 1989, ch. 37, par. 801 — 5(2)), which provides in pertinent part:

“Though not appointed guardian or legal custodian or otherwise made a party to the proceeding, any current or previously appointed foster parent or representative of an agency or association interested in the minor has the right to be heard by the court, but does not thereby become a party to the proceeding.
In addition to the foregoing right to be heard by the court, any current foster parent of a minor and the agency designated by the court or the Department of Children and Family Services as custodian of the minor who has been adjudicated an abused or neglected minor under Section 2 — 3 or a dependent minor under Section 2 — 4 of this Act has the right to and shall be given adequate notice at all stages of any hearing or proceeding under this Act wherein the custody or status of the minor may be changed.”

In this case, the Statlers had a right to notice and a right to be heard at the January 9, 1991, hearing. This is not to say that they had a right to intervene in the proceedings. Section 1 — 5(2) makes clear that though the foster parents have a right to notice and a hearing, they do not thereby become a party to the proceedings. Therefore, based on this statutory language, we find the Statlers were not entitled to intervene as a matter of right. Nor do we find the circuit court abused its discretion in denying the Statlers’ petition to intervene.

In addition, we find the case law relied on by the Statlers distinguishable and of little relevance to the issues before us.

In In re S.J.K. (1986), 149 Ill. App. 3d 663, 500 N.E.2d 1146, the opinion notes the foster parents’ petition to intervene was granted. However, there was apparently no challenge to the circuit court’s ruling on the petition, and the fifth district did not address the propriety of this aspect of the proceedings. We note the foster parents in S.J.K. subsequently filed a petition requesting they be awarded custody and that the visitation rights of the biological mother be terminated. As a result, the foster parents were necessarily parties to the proceedings.

In re Dively (1979), 79 Ill. App. 3d 428, 398 N.E.2d 635, concerned the issue of the foster parents’ standing under then section 5— 8(3) of the Act (Ill. Rev. Stat. 1977, ch. 37, par. 705 — 8(3) (currently part of Ill. Rev. Stat. 1989, ch. 37, pars. 802 — 28, 803 — 29, 804 — 26, 805 — 30)). The foster parents in Dively filed a petition which, inter alia, requested that the minor be placed with the petitioners. The second district noted that the foster parents’ motion was in part dispositional in nature. The court found the foster parents had an interest in the minor within the terms of then section 5 — 8(3). Therefore, it was proper for them to request a change of custody. The court stated, “We note that section 5 — 8(3) does not declare persons interested in the minor to be nonparties as section 1 — 20(2) [the predecessor of section 1 — 5(2), quoted above] does as to foster parents, and we conclude that a person who is interested in the minor under section 5 — 8(3) is a party ***.” In re Dively (1979), 79 Ill. App. 3d 428, 431, 398 N.E.2d 635, 637.

In the instant case, the Statlers have not petitioned the court requesting continued custody of the minors, and their only status in the proceedings is that of foster parents. At this point, their interest remains that of foster parents, and their rights vis-a-vis these proceedings are therefore governed by section 1 — 5(2) of the Act.

Given the requirements of section 1 — 5(2), the Statlers were erroneously denied their rights under the Act to have notice and to be heard at the January 9, 1991, hearing. We note the circuit court recognized this fact when it vacated the written order of February 11, 1991. Therefore the Statlers have been granted what they were basically asking for in their petition, i.e., the opportunity to take part in the dispositional proceedings.

As an aside, we note our earlier opinion in this case should not be construed as ordering any particular finding by the circuit court. We found only that the State had failed to prove by clear and convincing evidence that the biological parents were unfit. On remand we fully expected a full hearing on the best interest of the children. Therefore, appellee is incorrect in asserting that the January 9, 1991, hearing was simply a formality to reconcile the circuit court’s dispositional order of March 7, 1988, with this court’s finding. Also, the January 9 hearing concerned the biological parents’ petitions for return of the minors and not the State’s action seeking to declare the parents unfit. Although part of the same proceedings, these are separate issues; therefore, our opinion would in no way address the issue before the circuit court.

In sum, a full best-interest hearing should have been held with all the appropriate persons and/or parties being-notified and having an opportunity to be heard on the questions raised. We expect this to happen in any future proceeding concerning these children.

For the forgoing reasons, the judgment of the circuit court of Mc-Donough County is affirmed.

Affirmed.

GORMAN and HAASE, JJ., concur.


author: JUSTICE HAASE

text:
    CHARLES L. TOLLER, Indiv. and as Next Friend of Matthew J. Toller, a Minor, Plaintiff-Appellant, v. PLAINFIELD SCHOOL DISTRICT 202 et al., Defendants-Appellees.
    Third District
    No. 3 — 91—0239
    Opinion filed November 19, 1991.

      Thomas P. Naughton, of Law Offices of Naughton & Markese, of Joliet (Paula A. Go mora, of counsel), for appellant.
    E. Kent Ayers, of Spesia & Ayers, of Joliet (Dinah Lennon Archambeault, of counsel), for appellees.
   JUSTICE HAASE

delivered the opinion of the court:

The plaintiff, Charles L. Toller, brought this action against the defendants, Plainfield School District 202 and Indian Trails Junior High School, alleging wilful and wanton misconduct in connection with a wrestling match held during sixth-grade gym class in which the plaintiff’s son, Matthew L. Toller, was injured. The trial court granted the defendants’ motion for summary judgment finding that the defendants’ conduct was not wilful and wanton. The plaintiff appeals.

The record reveals that the plaintiff brought a two-count complaint. Count I alleged, inter alia, that the defendants were wilfully and wantonly negligent in that they: (1) knew wrestling carried an inherent risk of serious bodily injury; (2) failed to implement written guidelines requiring teachers to match students by weight classifications, even though they knew of such classifications and used them in extracurricular wrestling competition; (3) failed to adequately investigate the causes of two prior wrestling injuries which occurred in gym class; and (4) failed to take reasonable steps to ascertain the various weights of the students before pairing them for wrestling matches. Count II alleged negligence against 12-year-old Michael Corsi in that he body slammed the plaintiff’s son. Defendant Corsi was subsequently dismissed from this suit.

Matthew Toller, the plaintiff’s son, testified in his deposition that on December 8, 1988, he was in sixth grade and weighed 83 pounds. Part of his school curriculum consisted of gym class on Tuesdays and Thursdays. Arnold Blaylock, the gym instructor, divided the class into three groups of 10 each for wrestling competition. According to Matthew, Blaylock divided the groups based on height. Matthew was placed in the second group along with Corsi. Corsi was about the same height, but was heavier, weighing about 100 pounds. On December 8, 1988, which was the second day of wrestling class, Matthew wrestled Corsi. At some point during the match, Corsi placed his left foot behind Matthew’s right foot and pushed him backwards. Matthew fell on his left arm, and Corsi landed across Matthew’s chest and left shoulder. After Matthew screamed in pain, Blaylock called for ice and the assistant principal. Blaylock then helped Matthew up and took his arm from behind his back and put it in front of him. Matthew noted that the maneuver Corsi used to take him down was not a wrestling procedure taught by Blaylock.

Michael Corsi stated in his deposition that on December 8, 1988, he weighed between 100 and 105 pounds. When he was chosen to wrestle Matthew, they were the only pair in the group that had not yet wrestled. Corsi’s description of the occurrence was similar to Matthew’s description. Additionally, he stated that Blaylock watched the match from the edge of the mat about 10 feet away. Corsi noted that Blaylock had instructed the class not to use any illegal maneuvers. Corsi also noted that he watched wrestling on television and saw Hulk Hogan at the Rosemont Horizon.

Arnold Blaylock stated in his deposition that he was a physical education teacher for the Plainfield School District 202 with 22 years of experience. He taught the sixth-grade class the fundamentals of wrestling, using a weekly lesson plan. On the first day, he demonstrated certain wrestling procedures and instructed the students not to engage in illegal moves, such as the body slam. Blaylock was aware that weight classifications existed for extracurricular junior high school wrestling and that the purposes of the classifications were safety and fair competition. Blaylock divided the class by estimating size, height, weight, body structure, and ability. Although he recognized that Corsi might have been a little stockier and stronger than Matthew, he explained that he placed them in the same group because if he had placed Corsi in a different group, he would have been with boys much larger.

In his deposition, George Capps, the principal at Indian Trails Junior High School, testified that the parent-student handbook addresses accident reports. It mandates that a report be completed whenever a student is injured in the school building or as part of a school activity. Once he reads the accident report, he makes a followup if he has any questions. The report of injury concerning Matthew was one source of feedback to determine whether school policy and procedures were followed. He noted that no one raised an issue regarding the disparity in weight between the two boys. He further noted that the school did not have guidelines or standards requiring sixth-grade students to be matched according to certain weight categories. He stated that instruction in the rules and proper techniques were adequate safeguards to protect against the risk of injury. He acknowledged that the purposes of weight divisions in competitive inter-school wrestling are to equalize competition and ensure safety.

Emmet Fleming, the school administrator for Plainfield School District 202, stated in his deposition that if accident reports showed an unusual pattern of injury, it could potentially dictate a change in the school’s program, procedure, or equipment. Fleming acknowledged that there are weight categories for competitive wrestling, but that the district concluded that such classifications were unnecessary for gym class. He stated that the children can be adequately protected without them.

The plaintiff’s expert, Frank Jambois, Ph.D., testified that he was a consultant for the national YMCA and a member of the American College of Sports Medicine. After reviewing the deposition testimony in the present case, he concluded that the defendants blatantly disregarded the established wrestling weight classifications. He opined that wrestling was an inherently dangerous activity, but he also stated that any physical activity is inherently dangerous.

Based on the foregoing, the trial court granted the defendants’ motion for summary judgment. The court found that although the defendants’ conduct may have been negligent, it was not wilful and wanton.

On appeal, the plaintiff contends that the trial court erred in granting the defendants’ motion for summary judgment. The plaintiff argues that the defendants’ conduct was wilful and wanton because established weight guidelines existed yet Blaylock ignored those guidelines and the school district refused to implement them as part of its curriculum. The plaintiff further argues that the defendants failed to adequately investigate two prior injuries occurring in Blaylock’s wrestling classes.

It is well settled that absent proof of wilful or wanton misconduct, educators are immune from tort liability for personal injuries sustained by students during school activities. (Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 347 N.E.2d 705; Weiss v. Collinsville Community Unit School District No. 10 (1983), 119 Ill. App. 3d 68, 456 N.E.2d 614.) To impose liability upon educators, a plaintiff must allege and establish that when the educators acted, or failed to act, it was with knowledge that such conduct posed a high probability of serious physical harm to others. (Weiss v. Collinsville Community Unit School District No. 10 (1983), 119 Ill. App. 3d 68, 456 N.E.2d 614.) Liability can be founded under such a cause of action where the act was done with actual intention or with a conscious disregard or indifference of the consequences when the known safety of other persons was involved. (Lynch v. Board of Education of Collinsville Community Unit District No. 10 (1980), 82 Ill. 2d 415, 412 N.E.2d 447.) However, since the question is also a matter of degree, a hard and thin line definition should not be attempted. Whether wilful or wanton misconduct exists may be a question of law. Lynch v. Board of Education of Collinsville Community Unit District No. 10 (1980), 82 Ill. 2d 415, 412 N.E.2d 447.

None of the cases cited by the parties are particularly close factually to the case at bar. However, we find that Lynch v. Board of Education of Collinsville Community District No. 10 (1980), 82 Ill. 2d 415, 412 N.E.2d 447, supports the trial court’s decision.

In Lynch, teachers and a school district were charged with wilful and wanton conduct for failing to supervise a high school girls’ powderpuff football game. The plaintiff sustained head injuries while playing the game without a helmet. The evidence showed that the teachers had conducted several practice sessions, warned the girls that the sport could be rough, and advised them to wear mouthpieces. In holding that there was not wilful or wanton misconduct as a matter of law, the supreme court stated that the evidence did not demonstrate an utter and conscious disregard for the safety of the girls, but rather, it simply showed insufficient precautions for their protection.

Similarly, in the instant case, we find that the defendants’ conduct in failing to implement strict weight classifications was not wilful or wanton negligence. The various depositions established that Blaylock instructed the students on the rules of wrestling, incorporated the objectives of the curriculum in his lesson guide, demonstrated various wrestling maneuvers, and warned the students not to engage in illegal moves such as the body slam. He then matched students according to an estimation of their height, weight, size, body structure, and ability. During the matches, he closely supervised the competition and was refereeing only 10 feet away from the plaintiff when he was injured. Following the accident, Blaylock called for help and applied ice to the injury. Under these circumstances, the defendants’ conduct was not wilful and wanton.

The plaintiff further contends that defendants’ conduct was wilful and wanton because they did not include information in two prior accident reports about the nature and cause of the accidents or their severity.

We disagree. The defendants had an established procedure for making a report of any accident occurring on school grounds. Under the district’s policy, a report must be filled out whenever a student is injured. The report is then reviewed by the principal and assistant superintendent to determine if school policy and procedures were being followed. If any unusual pattern of injury was indicated, it would potentially dictate a change in the school’s program, procedure, or equipment. Even though the reports were not as detailed as the plaintiff would have liked them to be, it does not mean that the defendants’ conduct was wilful and wanton.

Accordingly, the judgment of the circuit court of Will County is affirmed.

Affirmed.

STOUDER, P.J., and GORMAN, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWIN EKONG, Defendant-Appellant.
    Third District
    No. 3 — 91—0216
    Opinion filed November 19, 1991.

      James D. Montgomery, of James D. Montgomery & Associates, Ltd., of Chicago (Mary Elise Walden, of counsel), for appellant.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Bradley P. Halloran and Terence M. Madsen, Assistant Attorneys General, of Chicago, of counsel), for the People.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Dr. Edwin Ekong, was held in contempt of court for failing to comply with a subpoena duces tecum issued by a Kankakee County grand jury. The court ordered the defendant incarcerated until he purged himself of contempt. The defendant was subsequently released on bond pending this appeal.

On January 16, 1991, Special Agent Jim Terry of the Illinois State Police, Assistant Attorney General Pat Jennings and other police officers searched the defendant’s office pursuant to a search warrant and removed all current and past billing records for a five-year period which related to both medicaid and nonmedicaid patients. The defendant was served with a grand jury subpoena duces tecum commanding him to bring to the grand jury on January 25, 1991, all patient files, records and sign-in sheets of medicaid patients treated by him or otherwise treated at the medical clinic during the period of January 1, 1986, through January 15, 1991. The grand jury was investigating possible medicaid fraud on the part of the defendant.

On February 8, 1991, the defendant presented a motion to quash the subpoena, which requested the return of his patient files and the other items seized. The trial court denied the motion and found that the defendant must comply with the subpoena to the extent of turning over approximately 1,000 patient files to the grand jury.

The defendant asserted the statutory physician-patient privilege (Ill. Rev. Stat. 1989, ch. 110, par. 8 — 802) (privilege) as a basis for refusing to comply with the subpoena. The trial court found the privilege to be in conflict with Federal law. The court found that the purpose of the Federal legislation (the prevention of medicaid fraud) would be thwarted by enforcement of the privilege under these circumstances. Therefore, under the supremacy clause of the United States Constitution, article VI, the privilege fell and the court ordered the defendant to comply with the subpoena.

The defendant claims the privilege exempts him from releasing the requested information to the grand jury. Although no similar privilege existed at common law, the physician-patient privilege provides that no physician or surgeon shall be permitted to disclose any information he or she may have acquired in attending any patient in a professional character, necessary to enable him or her professionally to serve such patient. (Ill. Rev. Stat. 1989, ch. 110, par. 8 — 802.) A number of exceptions are listed within the statute; however, none applies in the instant case.

We must address whether the privilege can prevent the subpoenaing of a physician’s records of patient treatment during an investigation of alleged medicaid fraud in which applicable Federal law requires disclosure. We hold that under the supremacy clause, Federal law prevails and that the medical records in the defendant’s possession are obtainable by the grand jury.

When confronted with a situation wherein a State law conflicts with Federal law, the United States Supreme Court has stated that we must “determine whether under the circumstances of this particular case [the State’s] law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” (Jones v. Rath Packing Co. (1977), 430 U.S. 519, 51 L. Ed. 2d 604, 97 S. Ct. 1305.) This inquiry requires that we consider the relationship between State and Federal laws as they are interpreted and applied, not merely as they are written. (Jones v. Rath Packing Co. (1977), 430 U.S. 519, 51 L. Ed. 2d 604, 97 S. Ct. 1305.) When the State law prevents the accomplishment of the full congressional purpose, it must yield to the Federal law. Jones v. Rath Packing Co. (1977), 430 U.S. 519, 51 L. Ed. 2d 604, 97 S. Ct. 1305.

A review of the Federal medicaid laws and regulations discloses a clear congressional intention that the patient records kept by health-care providers be subject to disclosure during fraud investigations. (See In re Grand Jury Investigation (R.I. 1982), 441 A.2d 525.) The regulations set forth State plan requirements, standards, procedures, and conditions for obtaining Federal funds. (42 C.F.R. §430.0(b)(l) (1991).) One requirement is that the disclosure of patient records be for “[conducting or assisting an investigation, prosecution, or civil or criminal proceeding.” 42 C.F.R. §431.302 (1991).

Regarding criminal investigations, Federal law provides for the creation of a State medicaid fraud-control unit to protect the program from fraudulent practices. (42 U.S.C.A. §1396b(q) (West Supp. 1981).) This section provides inter alia that the fraud-control unit is to: (1) possess statewide authority to prosecute individuals for criminal violations; (2) remain separate and distinct from the State agency; (3) investigate and prosecute all aspects of fraud in connection with the medicaid program; (4) act upon complaints of patient abuse or neglect under the criminal laws of the State; and (5) employ the necessary personnel and be organized in such a manner as will promote effectiveness and efficiency. 42 U.S.C. §1396b(q) (1988).

These statutory requirements are expanded upon in the regulations. Section 455.21(a)(2) of the Code of Federal Regulations provides in part that when a fraud-control unit determines that patient records may be useful in investigations of suspected fraud, it shall have:

“[a]ccess to any information kept by providers to which the agency is authorized access ***. In using this information, the unit must protect the privacy rights of recipients.” 42 C.F.R. §455.21(a)(2)(iii) (1991).

Furthermore, a State plan must provide for an agreement between the medicaid agency and each provider furnishing services under the plan (including individual practitioners), in which agreement the provider agrees to:

“(1) Keep any records necessary to disclose the extent of services the provider furnishes to recipients; [and]
(2) On requests, furnish to the Medicaid agency, the Secretary, or the State Medicaid fraud control unit *** any information maintained under paragraph (b)(1) of this section and any information regarding payments claimed by the provider for furnishing services under the plan ***.” 42 C.F.R. §431.107 (1991).

In addition, we find the trial court correctly adopted the findings of the Rhode Island Supreme Court case In re Grand Jury Investigation (R.I. 1982), 441 A.2d 525. In that case, the court found a similar physician-patient privilege statute to be inapplicable during an investigation of alleged medicaid fraud in which pertinent Federal law requires disclosure. {In re Grand Jury Investigation (1982), 441 A.2d 525.) As a result, the grand jury was entitled to obtain the medicaid records of certain patients of two physicians. The court concluded:

“The federal policy requiring disclosure of patient records for fraud investigations is very necessary to the continued viability of the Medicaid program. The statutorily created physician-patient privilege stands as an obstacle to the accomplishment and execution of this purpose. [Citation.] By giving priority to the privilege, we would be keeping what might be the most persuasive evidence of criminal activity from the fraud control unit and the grand jury.” In re Grand Jury Investigation (1982), 441 A.2d 525, 531.

It is clear from the Federal statutes and regulations that the disclosure of patient records for medicaid fraud investigations is one of the requirements that a State must comply with to continue to receive Federal medicaid funds. And, it is the stated purpose of our legislature to be in full compliance with Federal law to ensure continued Federal funding. (See Ill. Rev. Stat. 1989, ch. 23, par. 5— 5.) In that regard, Illinois has a medicaid fraud-control unit operating within the office of the Attorney General. In the instant case, that unit was conducting a fraud investigation of the defendant. The fraud-control unit determined that certain patient records were necessary to conduct the investigation. The grand jurors agreed with this assessment.

The Federal medicaid laws speak in terms of disclosing the records to the fraud-control unit, and in the instant case the records are sought to be disclosed to the grand jury. The traditional function of the grand jury in investigating alleged violations of the criminal law is well established in our system of law enforcement. Under these circumstances, therefore, we conclude that the Federal medicaid laws anticipated the employment of usual State process and procedure in conducting these investigations.

Accordingly, we find the trial court did not err in denying the defendant’s motion to quash the subpoena duces tecum.

Finally, we find no merit in the defendant’s assertion that he was entitled to compensation for the reproduction of the requested documents. The defendant, relying on a section of the enforcement regulations of the Illinois Department of Public Aid, argues that the State must compensate him for the photocopies taken by the medicaid fraud unit agents. The section defendant refers to provides in part that Department personnel shall make all attempts to examine such records without interfering with the professional activities of the provider. In the instant case, however, that section in no way relates to whether the State is obliged to compensate the defendant for the photocopies of his records.

In any case, the defendant cites Federal Rule of Criminal Procedure 17(c) in support of his assertion that the court can order the State to pay for the cost of compliance with the subpoena. We note that a Federal appeals court interpreting Rule 17(c) in circumstances similar to the instant case held:

“As a general rule, a witness or the recipient of a subpoena duces tecum is required to bear the cost of compliance. *** Rule 17(c)’s provision that the court may quash a subpoena ‘if compliance would be unreasonable or oppressive’ must be read to mean that the main run of cases the costs of compliance will be assumed as part of the public duty of providing evidence.” (Emphasis added.) Second National Bank of North Miami v. United States (1977), 555 F.2d 1306, 1308.

In the instant case, the defendant is not entitled to be compensated for the photocopies of his records. We appreciate that in the course of investigating the defendant’s medical practice, the medicaid fraud-control unit was authorized to remove many volumes of the defendant’s files and that reproducing those files would entail certain costs for the defendant. In the instant case, however, we cannot find compliance with the subpoena oppressive due to the magnitude of the defendant’s medical practice.

For these reasons, we affirm the judgment of the circuit court of Kankakee County.

Affirmed.

SLATER and HAASE, JJ., concur.


text:
    THE DEPARTMENT OF TRANSPORTATION ex rel. THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM HARRY BROWNFIELD et al., Defendants-Appellants.
    Third District
    Nos. 3-91-0349, 3-91-0350, 3-91-0357 through 3-91-0367, 3-91-0395 cons.
    Opinion filed November 8, 1991.
    Reardon, Orr & Dvorak, of East Peoria (Carl F. Reardon, of counsel), for appellants William Harry Brownfield and Mary Louise Brownfield.
    Roland W. Burris, Attorney General, of Springfield, Bernard Oltman, Assistant Corporation Counsel, of Pekin, and Costigan & Wollrab, of Bloomington (Michael J. Luke, Assistant Attorney General, and Robert W. Neirynck, of counsel), for appellee Department of Transportation.
   JUSTICE HAASE

delivered the opinion of the court:

The Illinois Department of Transportation (IDOT) filed a number of eminent domain actions in the circuit court of Tazewell County. IDOT sought to acquire by condemnation certain property or property interests belonging to the defendants. In response, the defendants filed a traverse and motion to dismiss. The defendants contended IDOT failed to make good-faith and bona fide attempts to purchase their properties prior to commencing the present proceedings. (See City of Oakbrook Terrace v. LaSalle National Bank (1989), 186 Ill. App. 3d 343, 542 N.E.2d 478.) (A condition precedent to the exercise of the power of eminent domain is an attempt to reach an agreement with the property owner on the amount of compensation.) A consolidated hearing was held on all cases by the trial court on April 10, 1991. The court denied the defendants’ traverse and granted the State’s motion for immediate vesting of title. The court also set the preliminary amount of compensation to be received by the defendants. The defendants appeal the trial court’s order vesting title. The trial court’s orders setting preliminary compensation and denying the defendants’ traverse, not being final orders, are not appealable. See Department of Public Works & Buildings v. Dust (1960), 19 Ill. 2d 217, 222-23.

IDOT decided to improve the part of Illinois Route 8 which travels through East Peoria, Illinois. In order to complete this project, IDOT needed to acquire 77 parcels of land. IDOT acquired all these parcels except for the 14 that are the subject of this litigation. Mark Mathewson, IDOT’s chief negotiator, sent all the owners of the desired properties a letter stating IDOT’s desire to acquire their property and explaining the acquisition procedure. Either Mathewson or an assistant negotiator then personally contacted the owners or their attorneys with a view towards agreeing on a selling price.

Mathewson testified that he explained to the owners that their property would be appraised and an offer made based upon that appraisal. These offers were not final offers, but contingent upon IDOT’s approval process. Mathewson testified he explained this process to the owners and also informed them that any counteroffers would also be submitted to IDOT for consideration. Appraisals were made, and offers based upon these appraisals were extended to the owners. The defendants felt the offers made by IDOT were not adequate and employed their own appraisers. The defendants’ appraisers valued the defendants’ properties at much higher values than the IDOT appraisers.

The trial court consolidated into a single proceeding IDOT’s condemnation actions and the defendants’ motions to dismiss. At that hearing, IDOT presented evidence from its appraisers as to the value of the disputed properties and its attempts to settle with the owners. Likewise, the defendants presented testimony and exhibits to the court. The defendants’ appraisers opined that IDOT’s valúa-

tion of the properties was erroneous. They opined that the methods used were cursory and failed to take into consideration several important factors. IDOT’s appraisers disagreed. At the conclusion of the hearing, the court ruled (1) that IDOT has the authority to exercise the right of eminent domain; (2) the property sought is subject to that right; and (3) “the plaintiff made good faith efforts to negotiate with each defendant, or their attorney, and made good faith attempts to agree.” The court then vested title to the properties in favor of IDOT and set the preliminary compensation due the defendants. The defendants appeal the vestiture of title, claiming IDOT failed to make good-faith, bona fide attempts to settle. We affirm.

The Illinois Eminent Domain Act provides that “[pjrivate property shall not be taken or damaged for public use without just compensation ***.” (Ill. Rev. Stat. 1989, ch. 110, par. 7 — 101.) A condition precedent to the exercise of the power of eminent domain is an attempt to reach an agreement with the property owner on the amount of compensation. (City of Oakbrook Terrace v. La Salle National Bank (1989), 186 Ill. App. 3d 343, 351, 542 N.E.2d 478.) In this regard, the acquiring authority must make a bona fide attempt to agree, and the attempt must be made in good faith. (Department of Transportation v. Walker (1980), 80 Ill. App. 3d 1039, 1040, 400 N.E.2d 956.) Where a wide disparity exists between the value placed on the property by the acquiring authority and the property owner and where the circumstances show that no practical solution can be reached, no further negotiations are necessary. Peoples Gas Light & Coke Co. v. Buckles (1962), 24 Ill. 2d 520, 527-28, 182 N.E.2d 169.

The issues raised on the traverse, motion to dismiss and motion to set preliminary just compensation were preliminary questions to be determined by the court without a jury. In such cases, the credibility of the witnesses and the weight to be given to their testimony are to be determined by the court as the trier of fact, and its findings will not be disturbed unless they are manifestly against the weight of the evidence. Trustees of Schools of Township No. 37 v. First National Bank (1971), 49 Ill. 2d 408, 412; Forest Preserve District v. Marquette National Bank (1991), 208 Ill. App. 3d 823, 827, 567 N.E.2d 635.

In Forest Preserve District v. Marquette National Bank (1991), 208 Ill. App. 3d 823, 567 N.E.2d 635, we recently addressed a condemning body’s failure to make a good-faith and bona fide attempt to settle. In Forest Preserve District, the Will County Forest Preserve District (hereinafter District) filed an action to condemn the defendants’ property. The defendants, Marquette National Bank, as trustee, and unknown owners (hereinafter defendants), filed a traverse and motion to dismiss. The evidence presented showed that in 1977 the District had offered the defendants $3,500 per acre for the subject property (approximately 234 acres). This offer was based upon a comprehensive appraisal of the subject property in which the appraiser opined that the property was worth $4,000 per acre or $900,000 for the entire tract. The negotiation terminated in 1979 when the District dismissed its condemnation action with prejudice. The subject property was then rezoned for residential use.

In May of 1989, the defendants received a letter from the District indicating its renewed interest in acquiring the property. The defendants had already received development approval for residential home sites, and the only remaining item necessary to commence full development was a majority vote from the county board. The District then obtained a delay from the county board and voted to initiate condemnation proceedings. The District’s assistant director, Michael Pasteris, was instructed by the District to obtain a quick appraisal since time was of the essence. The District employed an appraiser; however, Pasteris admittedly failed to advise him the property had been rezoned for residential development and that proposals for purchase were pending.

The District made an initial offer of $760,000 for the subject property and, upon refusal, increased the same to $800,000. In the meantime, it was discovered that the District offered an owner of adjacent property $78,000 for 10 acres of land contiguous to the subject property. The defendants rejected the District’s offer of $800,000. The District then filed an objection to the Will County board’s final plat approval.

The trial court allowed the defendant’s motion to dismiss and traverse. The court ruled that the District acted in bad faith and had not made a bona fide attempt to agree with the defendants to a fair compensation. The court based its decision on the cursory nature of the second appraisal; the fact the 1989 offer was actually less than the 1978 offer; the fact the property had been rezoned since the prior offer and was awaiting final plat approval; the fact the District offered an adjacent owner $78,000 for only 10 acres of land; and the District attempted to obtain multiple delays of the county board’s final plat approval. We affirmed.

The court in Forest Preserve District had more than ample support for its conclusion that the District acted in bad faith. In the case at bar, no such evidence exists. IDOT sought to acquire numerous properties along Illinois Route 8 and managed to amicably settle with 63 of 77 property owners. The defendants’ contention that IDOT failed to negotiate in good faith is predicated upon their belief that their properties are worth significantly more than IDOT has offered. Although it is true that a condemnor’s offer may be so woefully inadequate as to constitute bad faith (see In re Rogers (1928), 243 Mich. 517, 220 N.W. 808), a mere difference of opinion is not. Waukegan Port District v. Booras (1977), 55 Ill. App. 3d 790, cert, denied (1978), 439 U.S. 912, 58 L. Ed. 2d 258, 99 S. Ct. 282.

In the case at bar, it is obvious that the trial court was of the opinion that the dispute involved a difference of opinion over value. We cannot say that this finding is clearly erroneous. If the defendants are unsatisfied with the amount of preliminary compensation set by the trial court, they have a right under the Illinois Constitution to have a jury determine compensation. (Ill. Const. 1970, art. I, §15.) The fact that they are not satisfied with the offer of a condemnor, however, is simply not sufficient to prevent the rightful exercise of the power of eminent domain.

Appellant raises numerous other errors in his brief which we are of the opinion are subsumed in the basic argument that this was a bad-faith attempt on the condemnor to exercise its power of eminent domain over defendants’ property. We have thoroughly scrutinized the record and applicable case law and are of the opinion, as we have previously stated above, that the trial court’s rulings are not against the manifest weight of the evidence.

For the foregoing reasons, the judgments of the circuit court of Tazewell County are affirmed.

Affirmed.

McCUSKEY and SLATER, JJ., concur.