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    WILMETTE PARTNERS, Plaintiff-Appellant, v. RUSS HAMEL, d/b/a Russ’s Construction and Excavating, Defendant and Counterplaintiff-Appellee and Cross-Appellant (Richard Keefe et al., Counterdefendants and Cross-Appellees).
    First District (1st Division)
    No. 1—90—2449
    Opinion filed May 4,1992.
    Rehearing denied June 25,1992.

      Roddy, Power & Leahy, of Chicago (Eugene F. Keefe, of counsel), for appellant.
    DiMonte & Lizak, of Park Ridge (Riccardo A. DiMonte, of counsel), for appellee Russ Hamel.
    No brief filed for other appellees.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

In August and September 1987, plaintiff Wilmette Partners, Ltd. (Wilmette), contracted with Russ Hamel, d/b/a Russ’s Construction and Excavating (Hamel), for Hamel to perform demolition and excavation services on improved property which Wilmette owned in the Village of Wilmette. A dispute arose regarding Hamel’s performance of the demolition contract, which Hamel never completed. Another contractor subsequently completed the remaining demolition work and excavated the property.

Wilmette instituted this action against Hamel for breach of the demolition contract. Hamel counterclaimed against Wilmette and others (defendants) seeking foreclosure of his mechanic’s lien, damages, contractual interest and attorney fees for defendants’ breach of the demolition contract, and damages for defendants’ anticipatory repudiation of the excavation contract.

After a bench trial, the circuit court of Cook County found that Wilmette had breached the demolition contract and anticipatorily repudiated the excavation contract. The court thereafter entered judgment against Wilmette on its complaint; awarded a mechanic’s lien in favor of Hamel in the amount of $18,400 plus costs and interest from the date of contract; entered judgment in favor of Hamel in the amount of $34,300 for Wilmette’s breach of the excavation contract; and entered judgment in favor of Hamel in the amount of $7,500 for attorney fees incurred by Hamel through June 21,1990.

Wilmette appeals alleging numerous contentions, all of which turn on the issue of whether the manifest weight of the evidence supports the court’s findings of fact on whose conduct amounted to breach of contract. Hamel cross-appeals, alleging: (1) the circuit court erred when it failed to enter judgment on Hamel's count II, which sought in personam damages and contractual interest for breach of the demolition contract; and (2) this court must remand to the circuit court for an award of additional attorney fees to Hamel for having to respond to Wilmette’s appeal.

Wilmette is a general partnership with Richard Keefe as general partner and James Allen, among others, as limited partners. Wilmette is the sole beneficiary of a land trust with the La Salle National Bank. The corpus of the trust is three 50-foot lots at 724-726 12th Street in the Village of Wilmette. Hamel is an excavation contractor with seven years’ experience in the demolition and excavation field.

Wilmette planned to build a 39-unit condominium building on the property. On August 28, 1987, Hamel and Wilmette entered a written contract in which Hamel agreed to excavate the foundation for the new building and Wilmette agreed to pay $105,000.

On September 8, 1987, Hamel and Wilmette entered a second contract in which Hamel agreed to demolish two existing structures on the property and remove their foundations. The demolition contract required Wilmette to pay Hamel a total of $35,000, with $17,500 payable upon “demolition of [the] structure^] and removal of substantial amount of brick.” Significantly, the demolition contract contained no provisions regarding a commencement or completion date and the contract did not contain any clause stating that “time was of the essence.” Other relevant provisions of the demolition contract included the following: (1) an allowance of attorney fees to Hamel for having to enforce the contract; (2) a 2% monthly service charge in favor of Hamel for “past due amounts” owed by Wilmette to Hamel; (3) completion dates being contingent upon events that were beyond Hamel’s control (a “force majeure” clause); and (4) the allowance of additional labor charges if “area to be excavated is beyond normal conditions.”

On September 9, 1987, Hamel began work under the demolition contract. Hamel testified that he pulled the outside brick from the buildings and assisted a brick company in salvaging the bricks. He next pulled the two structures down and hauled the material away. The record reflects that, in accordance with the demolition contract’s divisibility provision, Hamel received $17,500 at or about this stage of Hamel’s performance.

Both parties’ witnesses testified that Hamel next removed the existing structures’ concrete floors or slabs. The witnesses also agree that Hamel removed two subterranean walls totaling 145 feet in length. The parties are in dispute as to what demolition work Hamel performed beyond this.

Hamel testified that after removing the existing structures’ slabs, he encountered two previously unknown, subterranean concrete floors or slabs. One slab measured 90 by 50 feet, the second measured 75 by 50 feet, and both were about five inches thick. Upon removal of these slabs, Hamel discovered two previously unknown, subterranean concrete walls totaling 125 feet in length. Hamel also discovered that one of the known foundational walls, which ran between two of the lots for their entire length (about 200 feet), was an oversized wall in that it was four to five feet thick and deep.

Hamel testified that he brought his discoveries to the attention of Allen. Hamel and Allen discussed the structures and agreed that they had to be removed. Hamel could not give Allen a price for their removal at the time because he did not know how much effort their removal would take. Hamel did state to Allen that he would be reasonable about price. Hamel claimed that he removed these structures and that $3,500 represented a fair, reasonable and customary charge for all the extras he performed. Hamel provided no breakdown for this figure other than stating in general how he reached it.

Regarding what extra walls and slabs Hamel discovered, Wilmette’s position is not entirely clear from the evidence. It admits Hamel discovered at least one slab and the extra thick wall. It also admits Hamel discovered yet another, entirely different subterranean wall, approximately 100 feet in length. Wilmette apparently disputes any discovery beyond this although Keefe acknowledges that a dairy previously existed on the property.

Regarding an agreement to perform extras, Wilmette denies that any agreement was reached at the property for Hamel to perform removal of the previously unknown walls and slabs. In this regard, Allen testified that, while he was present at the site on a daily basis, he could not recollect any conversation with Hamel regarding “extras.” Keefe, who visited the site on a daily basis, generally denies that an agreement at the site was reached between Hamel and Allen regarding extras.

On October 14, 1987, a meeting occurred between Hamel, Keefe, Phillip DiMaso, the project’s general contractor, and James Williams, the job superintendent, regarding Hamel’s performance under the demolition contract. The parties’ testimony again conflicts as to what transpired during this meeting.

The testimony of Keefe, DiMaso and Williams regarding what transpired during this meeting can be viewed as paralleling a “confirmatory” letter which Keefe sent to Hamel following the meeting. The letter provided: (1) Hamel agreed to complete the demolition job by Wednesday, October 21, 1987, but was given until Friday, October 23, 1987, to complete the contract; (2) Wilmette agreed to pay an additional $1,000 for Hamel to remove the 100-foot, extra subterranean wall which Hamel discovered; (3) Wilmette would hire another demolition contractor to complete the work in the event Hamel did not finish and would then deduct the completion costs from any amounts owed Hamel; (4) Hamel agreed to release Wilmette from the excavation contract; and (5) upon completion of the demolition contract and Hamel’s presentation of a mechanic’s lien waiver and a cancellation of the excavation contract, Wilmette would promptly pay all sums due Hamel.

Hamel testified regarding the meeting that he told Keefe, Williams and DiMaso that he would do his best to complete the work in approximately one week. DiMaso responded to Hamel that Hamel had 10 days to finish the job and remove himself from the site whether he completed the work or not. Hamel added that DiMaso and Keefe told him that they had a different excavator coming in on Monday, October 26 and that Hamel was to be off the site before that date. Keefe and DiMaso made it clear to Hamel that he would not be doing the excavation work. Hamel denies agreeing to any of the other matters stated in the letter and specifically denies releasing Wilmette from the excavation contract.

Hamel returned to the jobsite following the meeting. Hamel testified that he continued to work diligently through the weekend of October 23, 24, and 25. Wilmette’s witnesses testified to the contrary, stating that Hamel made little or no progress after the meeting and, in fact, only knocked off the tops of the foundations and covered them with debris-laden dirt. In any event, on Sunday, October 25, 1987, Keefe directed Hamel to remove himself and his equipment from the jobsite. Hamel complied.

Testimony conflicted as to what foundations remained following Hamel’s removal from the property. Defendant’s exhibit No. 1, a “Plat of Survey” of the property, was admitted into evidence and addressed by both parties. Keefe and Hamel agreed that the black lines drawn by Keefe on the exhibit represent subterranean walls remaining on October 25, 1987. According to the scale set forth on the exhibit, the following contractual work approximately remained: 350 feet of foundational wall, two sides of an 8- by 8-foot basement, and two sides of a 20- by 20-foot basement. The noncontractual work which remained amounted to approximately 100 feet of foundational wall (the same wall which Keefe agreed to pay $1,000 to Hamel to remove but which Hamel never removed). Keefe and Hamel dispute whether the “extra-thick” 200-foot wall, which ran between two of the lots, remained or whether Hamel removed the wall.

The following March 9 through March 26, Albrecht Enterprises completed the removal of the foundations and performed excavation services on the property. Previously, on October 15, 1987, the day after the parties’ meeting, Albrecht submitted a $15,000 bid to perform excavation work at the property. DiMaso accepted this bid the following February. Once work commenced, Albrecht increased the contract price by $8,000. Wilmette’s witnesses testified this increase was due to the cost of trucking from the property approximately 90 loads of debris-laden dirt which Hamel dumped on the property from another construction site or otherwise failed to remove as contractually obligated.

To rebut Wilmette’s “cost of completion” figures relative to the demolition contract, Hamel elicited testimony that part of the money Albrecht received was for Albrecht to remove the first four feet of soil across the entire site. Keefe admitted that Hamel was not required to do this under the demolition contract, but claimed Hamel’s misperformance compelled such work to be done. Hamel also specifically denies using the property as a “dump site.”

Hamel also introduced testimony of his own regarding the cost to complete the demolition work. Hamel testified that in his opinion, $3,000 represented a fair, reasonable and customary charge to complete the remaining contractual work.

Hamel also called Carlos Mier and Gerald Shaver to testify as to how much money it would cost to remove the foundations which remained. Mier testified that he was an excavating contractor who had performed hundreds of excavations and demolitions. On October 27, 1987, Mier’s company gave Hamel a written estimate of $2,610 to remove and haul off the site 400 feet of concrete walls. Mier testified that his work would take two days to complete and that his bid represented a fair, reasonable and customary bid for the work he was to perform. Mier added that in late October, he removed from the site four truckloads of debris, with each truck holding 35 cubic yards of material.

On cross-examination, Mier admitted that while the October 27 bid reflected $2,610, the bid did not reflect the removal of 400 feet of concrete wall. Rather, the bid reflected that Mier agreed to remove only 120 feet of wall and a 15 by 20 basement. Mier also admitted that the bids did not include backfilling or hauling “other” debris away which may have existed at the site. Mier finally admitted that the bids he gave to defendant were made at a time when the site was completely level and little or no foundations were exposed.

Gerald Shaver testified that in his opinion as an experienced demolitionist, $2,600 was a fair, reasonable and customary price to remove 400 feet of concrete wall. Shaver testified that this work would take three days to complete. On cross-examination, Shaver admitted that his bid was made at a time when the site was level. Although not cross-examined on the matter, the record shows a $2,500 written bid from Shaver on October 27 for the removal of a lesser amount of concrete.

Finally, Hamel testified regarding his damages resulting from Wilmette’s alleged breach of the $105,000 excavation contract. Hamel testified it would cost $70,000 to perform the job, resulting in a profit to him of $34,300. Hamel based his testimony on a worksheet he allegedly prepared when he bid the excavation work. On cross-examination, Wilmette attempted to show that Hamel recently fabricated these figures. The record shows in this regard that Hamel’s pretrial and final trial memorandum listed $56,000 as lost profits. Hamel’s initial and amended complaint listed $56,250 as lost profits. The record also shows that Hamel’s counsel did not disclose prior to trial the worksheet upon which Hamel based his testimony although the sheet was admitted into evidence as a trial exhibit. Wilmette made no motion to exclude the exhibit.

At the close of the evidence, the trial court made the following conclusions of fact: (1) Hamel and Wilmette entered separate demolition and excavation contracts in the amount of $35,000 and $105,000, respectively; (2) during the demolition process, Hamel discovered other buried walls and slabs which Wilmette, through Allen, authorized Hamel to remove and agreed to pay a reasonable price; (3) the reasonable price to complete the extra work was $3,500; (4) Hamel was entitled to additional time to perform the excavation contract due to his discovery of unforeseen subterranean concrete and slabs; (5) Wilmette offered no evidence of the reasonable time in which Hamel was to perform, and the “confirmatory” letter did not confirm anything but was merely self-serving; (6) Hamel substantially performed the demolition contract and was prevented from completing the remainder of the contract by Wilmette’s ejection of Hamel; (7) Hamel was entitled to receive as damages under the demolition contract the unpaid contract price of $17,500, plus $3,500 for extras and minus $2,600 to spend to complete the demolition; (8) Wilmette made no evidentiary connection between the rubbish and debris which Albrecht removed from the jobsite and the rubbish and debris which Hamel was required to remove; (9) Wilmette’s employment of DiMaso to perform the excavation work amounted to an anticipatory repudiation of the contract entitling Hamel to $34,300 in lost profits; and (10) Hamel was entitled to recover $7,500 in attorney fees through June 21, 1990.

Our resolution of the parties’ dispute in this case turns on whether the manifest weight of the evidence supports the court’s conclusion that Wilmette breached the demolition contract by failing to allow Hamel a reasonable time to perform. For a judgment to be against the manifest weight of the evidence, an opposite conclusion must be clearly evident. (In re J.H. (1987), 153 Ill. App. 3d 616, 630, 505 N.E.2d 1360, 1369.) A reviewing court may not reverse a judgment merely because different conclusions could be drawn or because the reviewing court disagrees, so long as there is evidence to support the judgment. (Ruggio v. Ditkowsky (1986), 147 Ill. App. 3d 638, 642, 498 N.E.2d 747, 750.) This is especially true where findings of fact must necessarily be determined from the credibility of the witnesses, a determination the trier of fact in the first instance is best able to make. In re J.H., 153 Ill. App. 3d at 630, 505 N.E.2d at 1369.

The demolition contract in this case required Hamel to remove from the property two existing structures and their foundations. Significantly, the contract contained no commencement or completion date and “no time is of the essence” clause. Equally as significant in this case are the clauses in the contract which provided that Hamel’s commencement and completion dates were contingent upon “delays beyond the contractor’s control,” and that “there will be an additional charge for labor, time, and dump fees if area to be excavated is beyond normal conditions, meaning *** debris in area/soil being excavated.”

Where a contract does not specify the time for performance, the law implies a reasonable time. (See generally 12A Ill. L. & Prac., Contracts §305 n.58, at 157 (1983).) Our cases have defined what constitutes a reasonable time as such time as is necessary to do conveniently what the contract requires. (Yale Development Co. v. Aurora Pizza Hut, Inc. (1981), 95 Ill. App. 3d 523, 420 N.E.2d 823.) In the construction setting, we have also noted that a reasonable time is allowed for additional work demanded and executed but not specified in the contract, independent of the general time limits provided by the contract for specified work. (Raymond Concrete Pile Co. v. Hartman Furniture & Carpet Co. (1914), 187 Ill. App. 426 (abstract of opinion).) This holding is consistent with another principle; namely, what constitutes a reasonable time is a matter of proof under all the conditions and circumstances that might surround the case. (Ullsperger v. Meyer (1905), 217 Ill. 262, 75 N.E. 482; Adams v. Pendarvis (1920), 217 Ill. App. 535.) What is a reasonable time is ultimately a question of fact. Pel-Aire Builders, Inc. v. Jimenez (1975), 30 Ill. App. 3d 270, 332 N.E .2d 519.

In this case, after reviewing the evidence, we find the court’s conclusion on the reasonableness of Hamel’s performance to be not contrary to the manifest weight of the evidence. Hamel testified that he commenced demolition on September 9, 1987, by pulling down the two existing structures’ brick walls. An unrelated company came to the site and salvaged as much brick as possible. Salvation of the brick was not an express contract requirement. Hamel testified that this salvage operation required additional time to perform.

After removal of the brick, Hamel pulled the structures down and hauled the debris to the dump. At or near this time, Hamel received one-half the contract price as provided in the demolition contract.

Hamel next removed the concrete slabs beneath each structure. Upon their removal, Hamel claims that he discovered two additional, previously unknown slabs beneath each building. When these slabs were removed, Hamel claims that he discovered two additional, unknown concrete walls, one 50 feet in length and the other 75 feet in length. Hamel claims to have removed these walls.

Hamel also testified that the 200-foot concrete wall which ran along the lot line between the former structures was discovered to be larger than contemplated. Hamel described this wall as four to five feet thick and four to five feet deep. Hamel claims to have removed this wall.

While Wilmette disputes the discovery and/or removal of some of the structures beneath the buildings’ original slabs, the parties agree that Hamel did remove two known walls totaling 145 feet.

On October 23, 1987, Wilmette required Hamel to remove his equipment from the property. At the time of removal, the record reflects that more than 350 feet of contract work remained and about 100 feet of noncontract work remained. The 200-foot, extra large wall may have also existed as well.

The trial court in this case was faced with the issue of what constituted a reasonable time for Hamel to perform the contract in light of the contract and noncontract work which Hamel claimed to have performed. To support its claim that the court wrongly decided the issue, Wilmette places substantial reliance on Hamel’s own testimony which Wilmette claims establishes that Hamel’s performance exceeded a reasonable time. Hamel testified:

“Q. Based on your experience in the excavation demolition business, what is the reasonable time within which to complete the demolition contract?
A. Assuming I didn’t take the time to use laborers to pick through the brick and assuming that the walls were to only be a foot wide and four feet deep I would say a month.
Q. And how much time did it take you to remove the additional slabs and foundational walls you encountered?

A. I’d say anywhere eight to ten days, right in there.” Wilmette contends this testimony establishes that a reasonable time to complete the demolition contract and the extras expired on October 19, 1987, one month and 10 days after Hamel began work on September 9. We disagree.

Hamel’s testimony cannot be read as establishing what constituted a reasonable time for performance. Hamel’s testimony only can be cited as stating that one month equalled a reasonable time to complete the demolition contract in the absence of unforeseen circumstances. Because unforeseen circumstances occurred here, Hamel’s testimony is not persuasive. Moreover, contrary to Wilmette’s assertions, Hamel’s testimony cannot be read as establishing that once all unforeseen circumstances are taken into account, one month and 10 days equalled a reasonable time. In this regard, Hamel’s testimony does not give a time estimate regarding the salvation of bricks. Accordingly, Hamel’s testimony does not establish the reasonable time for performance in this case.

Wilmette also directs this court to Hamel’s testimony regarding the amount of demolition work remaining after Hamel was ejected from the site on October 23, 1987. Hamel testified that the day he left, 250 to 300 feet of contract foundational work remained and 100 feet of noncontract foundation remained. DiMaso testified that it would have taken Hamel another 8 to 10 days to finish the work. Mier and Shaver testified that two to three days would be required to remove 400 feet of concrete.

Wilmette contends that based on the amount of work remaining on October 23, coupled with the time Hamel already spent, Hamel did not complete the demolition work within a reasonable time. We again must disagree. What Wilmette is asking this court to do, and what it asked the trial court to do, is to determine sua sponte what constituted a reasonable time to complete the work. Neither this court nor the circuit court has demolition expertise and surely judicial notice on the subject cannot be taken. Absent some evidence to guide the court as to what constituted a reasonable time to complete the demolition work under the circumstances Hamel encountered, the fact that work remained upon Hamel’s separation from the property is not persuasive. Similarly unpersuasive is Wilmette’s evidence that Hamel was underfunded, inexperienced, and not properly equipped. What Wilmette should have done, and what its breach of contract claim required it to do, is call witnesses who could have educated the trial court on the reasonable time aspect of this case. Having not done this, Wilmette cannot claim as a basis to justify terminating the contract that Hamel’s work exceeded a reasonable time.

Another argument Wilmette advances on the reasonableness issue centers on the October 14 meeting between the parties and the "confirmatory” memoranda to which Hamel never responded. Wilmette argues that Keefe, Williams and DiMaso testified consistently that Hamel agreed at this meeting, and the memoranda confirmed, that he needed only a week to complete the job and would be off the site no later than Friday, October 23, 1987. The trial court, however, disbelieved that such an agreement was reached. Instead, the court credited Hamel’s testimony that no such agreement occurred and that Hamel only gave an approximate time period in which he believed he would finish. As a reviewing court, this court cannot reverse the trial judge’s determination that Hamel’s testimony regarding the October 14 meeting was more credible than Wilmette’s witnesses.

It is worth noting that the trial court’s credibility assessment was influenced by the possible existence of Keefe’s and DiMaso’s underlying motives for removing Hamel from the site. The record shows in this regard that, on September 30, 1987, while Hamel was performing the demolition contract, Wilmette hired DiMaso to act as general contractor for the project. The $4.8 million contract price included demolition and excavation services. On October 15, 1987, the day after the meeting with Hamel, Albrecht Enterprises submitted a proposal to DiMaso to perform excavation of the property; DiMaso accepted the proposal the following February. In closing argument, Hamel’s counsel argued that DiMaso, as general contractor, was the “captain of the ship” who did not want Hamel to perform services on the property because Hamel was an outsider to DiMaso. Again, as a reviewing court, we will not disturb the court’s credibility assessments.

In summary, we affirm the trial court’s conclusion that Wilmette’s ejection of Hamel from the property constituted a wrongful termination of the contract and not an abandonment by Hamel. Wilmette offered no direct testimony on the reasonableness issue, and the other evidence it cites does not establish what constituted a reasonable time to perform the demolition contract in light of the conditions Hamel encountered.

We similarly affirm the trial court’s conclusion that Wilmette anticipatorily repudiated the excavation contract. Unless justified, a definite statement to the promisee that the promisor will not perform its contractual duties constitutes an anticipatory repudiation. (Builder’s Concrete Co. v. Fred Faubel & Sons, Inc. (1978), 58 Ill. App. 3d 100, 104, 373 N.E.2d 863, 867.) Upon repudiation, the promisee may, among others, elect to treat the repudiation as a breach putting an end to the contract for all purposes of performance. (Builder’s Concrete Co., 58 Ill. App. 3d at 104-05, 373 N.E.2d at 867.) A promisee may pursue such an election by either promptly filing suit or by detrimentally changing his position in reliance on the repudiation. Builder’s Concrete Co., 58 Ill. App. 3d at 105, 373 N.E.2d at 867-68.

In this case, the evidence is uncontradicted that Hamel was ejected from the site on October 25, 1987. Even before this time, at the October 14 meeting, Keefe made it clear to Hamel that Hamel would not be performing the excavation contract. The record reflects that, notwithstanding his contract, Hamel did not perform the excavation work.

Wilmette asks this court to find that no repudiation occurred merely because Hamel never demanded to perform the excavation contract. However, an anticipatory repudiation continues in effect until affirmatively retracted by the repudiator. (Builder’s Concrete Co., 58 Ill. App. 3d at 105, 373 N.E.2d at 868.) Moreover, it is a basic legal tenet that the law never requires a useless act. Christopher v. West (1951), 409 Ill. 131, 98 N.E.2d 722.

We also reject Wilmette’s argument that Hamel agreed to release Wilmette from the excavation contract at the October 14 meeting. The trial court rejected this theory of the meeting, and we are in no better position to hold otherwise. We similarly reject on this ground Wilmette’s argument that its repudiation was justified based on Hamel’s alleged misperformance of the demolition contract. Again, the trial court had before it the evidence of Hamel’s performance and was in the best position to determine whether Wilmette was justified in obtaining substitute excavation services.

In light of our conclusions on the issue of breach, Hamel’s nonperformance of the remainder of the demolition work and the excavation work was excused. (See Foreman State Trust & Savings Bank v. Tauber (1932), 348 Ill. 280, 286, 180 N.E. 827, 829-30; Builder’s Concrete Co., 58 Ill. App. 3d at 108, 373 N.E.2d at 870; Gamm Construction Co. v. Townsend (1975), 32 Ill. App. 3d 848, 851, 336 N.E.2d 592, 594.) Moreover, whether Hamel substantially performed the demolition contract was not a relevant determination. The doctrine of substantial performance is relevant only where the contractor is in technical breach of contract; the doctrine relieves the contractor of the common law rule that recovery can only be had upon a showing of strict performance of the contract. See W E. Erickson Construction, Inc. v. Congress-Kenilworth Corp. (1986), 115 Ill. 2d 119, 503 N.E.2d 233; Brewer v. Custom Builders Corp. (1976), 42 Ill. App. 3d 668, 356 N.E.2d 565.

Also, contrary to Wilmette’s urgings, Hamel’s nonperformance under the demolition contract does not defeat his claim under the Mechanics Lien Act (Ill. Rev. Stat. 1987, ch. 82, par. 1 et seq.). While normally, under the Mechanics Lien Act, it is a prerequisite to a lien that the contractor complete performance of the contract, an excuse for nonperformance, such as breach of contract, will entitle the contractor to enforce his lien for the value of what has been done. Luczak Brothers, Inc. v. Generes (1983), 116 Ill. App. 3d 286, 300, 451 N.E.2d 1267, 1279; Contract Builders Service Corp. v. Eland, (1981), 101 Ill. App. 3d 366, 428 N.E.2d 178; Miller v. Reed (1973), 13 Ill. App. 3d 1074, 302 N.E .2d 131; Ill. Rev. Stat. 1987, ch. 82, par. 4.

We now turn to the damages aspect of this case. The purpose of damages is to place the nonbreaching party in the position he would have been had the contract been performed; the nonbreaching party should not be placed in a better position or provided with a windfall recovery. (Feldstein v. Guinan (1986), 148 Ill. App. 3d 610, 499 N.E.2d 535; Golen v. Chamberlain Manufacturing Corp. (1985), 139 Ill. App. 3d 53, 487 N.E.2d 121.) The amount of damages awarded is generally within the discretion of the trier of fact; nevertheless, a reviewing court can order a new trial if the damages are manifestly inadequate, if proved elements of damages have been ignored, or if the award does not bear a reasonable relationship to plaintiff’s loss. Netzel v. United Parcel Service, Inc. (1989), 181 Ill. App. 3d 808, 537 N.E.2d 1348.

Addressing Hamel’s damages under the demolition contract first, the proper measure of damages for Wilmette’s wrongful prevention of completion is the difference shown by the evidence between the unpaid contract price and what it would have cost Hamel to have done and completed the work according to the terms of the contract. (Meyer v. Buckman (1955), 7 Ill. App. 2d 385, 404, 129 N.E.2d 603, 613; J. Calamari & J. Perillo, Contracts §14 — 28 (2d ed. 1970).) Upon review of the evidence, we affirm the amount of damages awarded to Hamel for Wilmette’s breach of the demolition contract.

Hamel testified that $3,000 represented a fair, reasonable and customary charge to complete the remaining contractual work. Carlos Mier and Gerald Shaver testified that, in their respective opinions, $2,610 and $2,600 represented a fair, reasonable and customary charge to remove and haul off the site 400 feet of concrete walls. Based on this evidence, the court found that $2,600 represented the cost to Hamel to complete the contract.

In affirming the demolition contract damages award, we agree that the monies paid Albrecht Enterprises is not persuasive evidence to use in calculating the award. What costs Albrecht incurred to complete the demolition contract represented Wilmette’s cost of completion, not Hamel’s. If Hamel were the party in breach, the reasonable cost Wilmette incurred to complete the remaining work would be a relevant consideration (J. Calamari & J. Perillo, Contracts §14 — 29, at 561 (2d ed. 1970)); as Hamel is not, Wilmette’s figures are not appropriate.

Although we may have reached a different figure, whether the trial court determined $2,600 to be the appropriate credit due Wilmette was within its discretion. In affirming this figure, we are aware that Mier and Shaver on cross-examination admitted to making a previous written bid which reflected a lesser amount of concrete, that their bids were made at a time when foundations were not exposed, and that their bids did not include the cost of removing any debris which remained. However, Mier and Shaver were at the property during the demolition process and observed the foundations. Also, we are not persuaded that significant debris remained on the property in late October as Wilmette would not have paid Hamel $17,500 unless, according to the contract, Hamel had in fact removed “substantial” amounts of debris. Again, while this court may have reached a different figure, we cannot say the figure is against the manifest weight of the evidence or falls outside the court’s discretionary powers.

We now focus on Hamel’s damages for Wilmette’s anticipatory breach of the excavation contract. Courts apply three general principles when determining whether lost profits are to be allowed as compensation in contract cases. Lost profits will be allowed only if (1) their loss is proved with a reasonable degree of certainty, (2) the court is satisfied that the wrongful act of the defendant caused the loss of profits, and (3) the profits were reasonably within the contemplation of the defaulting party at the time the contract was entered. (Riven-bark v. Finis P. Ernest, Inc. (1976), 37 Ill. App. 3d 536, 538-39, 346 N.E.2d 494, 496-97.) Relative to the last principle, when the profits sought are those arising out of the breached contract, the profits are considered one of the elements of the contract and are presumed to have been within the contemplation of the defaulting party at the time he entered the contract; they are recoverable if proved with reasonable certainty. (Rivenbark, 37 Ill. App. 3d at 539, 346 N.E.2d at 497.) Finally, prospective profits are ascertained by deducting from the contract price those expenses necessary for full compliance on plaintiff’s part. Rivenbark, 37 Ill. App. 3d at 539, 346 N.E.2d at 497; Meyer v. Buckman (1955), 7 Ill. App. 2d 385, 404, 129 N.E.2d 603, 613; J. Calamari & J. Perillo, Contracts §14 — 28 (2d ed. 1970).

In this case, Wilmette attempts to overturn the profits award on the ground that plaintiff fabricated his figures during trial. At trial, Hamel testified it would cost him roughly $70,000 to complete the $105,000 excavation contract. He claimed lost profits in the amount of $34,300. Hamel based his testimony on a worksheet he claimed to have prepared when he bid the excavation work. On cross-examination, Wilmette attempted to show that Hamel recently fabricated these figures based on various pleading and documents filed with the court and the parties’ disclosed exhibits prior to trial.

We believe the trial court was in a better position to determine whether Hamel had recently fabricated his figures as Wilmette alleges. Also, if Hamel failed to disclose a trial exhibit, and such failure violated a pre-trial order or other rule of civil procedure, it was incumbent upon Wilmette to file a proper motion. Wilmette has called no such motion to the attention of this court.

Wilmette further urges this court to find that Hamel’s lost profits were not calculated with reasonable certainty. Our review of Hamel’s profit exhibit, however, reveals that Hamel’s cost figures are reasonably set forth in the exhibit. The exhibit includes the lot size to be excavated, the depth of excavation, the cost per yard to dig and haul away the dirt, machinery rental costs and labor. We believe that the trial court could rely on these figures to determine the amount of profit.

We next address whether Hamel was entitled to an award of extras. We hold he was not and vacate the trial court’s award.

In Watson Lumber Co. v. Guennewig (1967), 79 Ill. App. 2d 377, 390, 226 N.E.2d 270, 276, this court reviewed Illinois law on the matter of extras and established the prerequisites for their recovery. To recover compensation on the ground that he performed extras, a contractor must make the following showings by clear and convincing evidence: (1) the work was outside the scope of his contract promises; (2) the extra work items were ordered by the owner; (3) the owner agreed to pay extra, either by his words or conduct; (4) the contractor did not furnish the extras as his voluntary act; and (5) the extra items were not rendered necessary by any fault of the contractor. Cases subsequent to Guennewig have followed its approach. Wingler v. Niblack (1978), 58 Ill. App. 3d 287, 374 N.E.2d 252; R & R Construction Co. v. Junior College District No. 529 (1977), 55 Ill. App. 3d 115, 370 N.E.2d 599; Watson Lumber Co. v. Mouser (1975), 30 Ill. App. 3d 100, 110, 333 N.E.2d 19; Bulley & Andrews, Inc. v. Symons Corp. (1975), 25 Ill. App. 3d 696, 323 N.E.2d 806.

In this case, the problem with Hamel’s proof is that he never demonstrated by clear and convincing evidence what amount of “extra” concrete he removed or how he arrived at his figure of $3,500. In this regard, the evidence on what extra concrete was discovered and which of this concrete was removed was utterly conflicting. Under Guennewig, Hamel carried the burden of proving by clear and convincing evidence that he discovered an extra; that Wilmette agreed to its removal; and that Wilmette agreed to pay additional money. This quantum of proof was required as to each of the alleged walls or slabs Hamel discovered. It is clear from our review of the evidence that Hamel did not meet this mark. At best, Hamel only demonstrated that a general discussion occurred between him and Allen at the property when an alleged wall or slab was discovered. Under Guennewig, general discussion cannot be used to supply all of the elements necessary to the recovery of extras.

In a similar vein, the parties’ contract did not supply all the elements for the recovery of extras. The contract expressed that work beyond the stated contract would be an extra, but it did not blindly bind Wilmette to pay for the performance of extras. Rather, we believe Hamel must nevertheless show as to each extra, that Wilmette agreed to its removal and to pay an additional price. Again, Hamel did not make this showing. For these reasons, we vacate the award of extras to Hamel.

The final matter before the court concerns Hamel’s cross-appeal. We grant the relief he seeks.

Hamel’s counterclaim consisted of two counts. Count I sought foreclosure of a mechanic’s lien. Count II sought a personal damages award against Wilmette and Keefe for breach of the demolition contract. Count II also sought a penalty for vexatious refusal to pay and contractual interest in the amount of 2% for “past due amounts.” In its judgment, the court found no vexatious refusal to pay, and Hamel has not appealed this finding. In entering judgment, however, the court entered judgment against Hamel on count II even though it found Wilmette in breach of contract. This was erroneous. Hamel was entitled to judgment against Wilmette and Keefe personally for breach of the demolition contract. Accordingly, on remand, the court shall enter judgment in favor of Hamel and against Keefe and Wilmette in the amount of $14,900, plus 2% interest from the date of judgment.

Regarding Hamel’s claim for additional attorney fees, the parties’ contract provided for Hamel’s reimbursement of attorney fees if he had to enforce the demolition contract. This appeal is part of Hamel’s enforcement efforts. Accordingly, we remand this case to the trial court for the consideration of Hamel’s attorney fees incurred since June 21, 1990. We otherwise affirm the $7,500 award of attorney fees through June 21,1990.

In summary, we affirm the circuit court of Cook County’s judgment awarding Hamel $14,900 for breach of the demolition contract, $34,300 for lost profits on the excavation contract, and $7,500 for attorney fees through June 21, 1990. We vacate the court’s judgment as to the award of extras. We remand to the circuit court with instructions to enter judgment in favor of Hamel and against Wilmette and Keefe personally in the amount of $14,900 for breach of the demolition contract, plus 2% contractual interest from the date of judgment. We also remand to the circuit court for consideration of Hamel’s attorney fees incurred since June 21,1990.

Affirmed in part; reversed in part and remanded with directions.

CAMPBELL and O’CONNOR, JJ., concur.

      On September 30, 1987, Wilmette’s land trust contracted with DiMaso to build the proposed condominium complex for roughly $4.8 million. This contract required DiMaso to perform demolition and excavation at the site.

      Wilmette attacks Hamel’s cost figures on the ground that Hamel’s calculations are based on an improper lot size. Wilmette contends the actual lot size is 27,500 square feet while Hamel uses a figure of 21,875 square feet. As Wilmette never specifically advanced this argument below, it has waived review of the matter.


source: Caselaw Access Project

author: JUSTICE CERDA

license: Public Domain

text:
    FRANCIS WARD ALLRED et al., Plaintiffs-Appellants and Counterdefendants, v. ALEXANDER SAROVICH et al., Defendants-Appellees and Counterplaintiffs.
    First District (3rd Division)
    No. 1—90—2144
    Opinion filed May 13,1992.
    Rehearing denied July 6,1992.

      Collins & Bargione, of Chicago (George B. Collins and Gregory A. Be-dell, of counsel), for appellants.
    Arnold & Kadjan, of Chicago (John F. Etzkorn and Charles A. Linn, of counsel), for appellees.
   JUSTICE CERDA

delivered the opinion of the court:

Plaintiffs, Allred and Century 21 — The Investors, brought an action against defendants, Demes and Sarovich, to void their interest in the business and property that the three men jointly owned. Allred claims that the loan transaction to purchase the business and property was illegal. After the close of plaintiffs’ case, the trial court entered judgment for defendants, finding that plaintiffs failed to prove illegality. Based on that finding, the trial court entered a preliminary injunction in favor of defendants for an accounting and preventing plaintiff Allred from dissipating or appropriating the business’ assets for his own use. On appeal, plaintiff argues that the trial court erred in granting the preliminary injunction on the basis that the loan transaction was not illegal. We reverse.

Plaintiff Allred operated the Century 21 — The Investors (the business), a real estate brokerage, with another individual, William Dec, since approximately 1978. Dec was the sole beneficiary of a land trust which held title to the property on which the business was located.

At trial, Allred testified that in January 1985, he and Dec entered into a contract for the sale of Dec’s business and property interests to Allred. Allred further testified that shortly afterwards, he met defendant Demes at a Century 21 brokers’ function. At that time, Demes and defendant Sarovich jointly owned two Century 21 franchises. In April 1985, Allred approached Demes, who was president and a director of a federally insured savings and loan institution, Capitol Federal Bank for Savings (Capitol), for a loan to purchase the business and property. Demes informed Allred that based on his net worth, Capitol could not make the loan. He suggested, however, that he and Sarovich, who was chairman of the board and a shareholder of Capitol, become involved in the deal to buy the business and property. In return for half the business and property, Allred testified, they would provide the financing through a line of credit Demes had at Exchange National Bank of Chicago. Allred claims that he, unlike Demes and Sarovich, did not have extensive experience in banking or the savings and loan industry, and had never served as an officer or director at any financial institution.

On cross-examination, Allred stated that the parties had agreed to affiliate the real estate business being acquired with defendants’ existing real estate businesses. There was to be joint name recognition, joint advertising, and joint purchasing of the businesses.

Demes testified that he met Allred in late 1984 and discussed the purchase of Dec’s interests at that time. Demes also testified that prior to April 1985, Allred filled out and filed with Capitol a personal financial statement to acquire the business and property. After the loan was approved, Allred submitted a loan application. Demes also testified that although Exchange National Bank was mentioned, Allred was aware that Capitol would be the source of the funds.

On May 13, 1985, Dec, Allred, Demes, and Sarovich met with their attorneys to close the sale of the business and property. Allred testified that he entered the closing believing the contract he and Dec signed on January 9, 1985, was the contract to be consummated, but was presented with a new contract, which all parties eventually signed.

Demes testified that Allred participated in the negotiation of the contract signed by all parties and that he did not see Allred’s contract with Dec until after the transaction closed. Demes and Sarovich each received a 25% interest in the property and the business while Allred received the remaining 50% interest.

Demes and Sarovich arranged for their savings and loan, Capitol, to provide a $300,000 loan for the purchase of the business and property. The loan documentation indicated that the borrower was a trust under which Allred, Demes, and Sarovich held beneficial interests. Capitol received a mortgage on the property, and Allred personally guaranteed repayment to Capitol.

Demes testified that he was neither named on the loan nor personally guaranteed the loan in order to avoid conflict with Federal Home Loan Bank Board (FHLBB) regulations concerning loans to bank “insiders,” including a $100,000 limit on loans to insiders and certain reporting requirements. When Capitol’s board of directors approved the loan on April 18, 1985, both Demes and Sarovich abstained from the vote. Demes testified that he and Sarovich disclosed their interest in the loan at that meeting prior to its approval. There was some evidence that Demes and Sarovich initially disclosed their interest to the FHLBB, although there was no documentation. In 1987, however, after discussions with the FHLBB, they both personally guaranteed the loan and took the loan off the savings and loan’s books.

Allred operated the business under the arrangement with Demes and Sarovich until 1987. In approximately March 1987, Allred received a subpoena to give a deposition before the FHLBB in Chicago. After the deposition, Allred ceased doing business with Demes and Sarovich and instituted this suit to void the interests of Demes and Sarovich. He stopped sharing the profits with Demes and Sarovich, unilaterally raised his salary, and borrowed money from the business. Demes and Sarovich counterclaimed for an accounting and other relief related to the business, and filed a motion for preliminary injunction to enjoin Allred from further dissipating the business’ funds.

After the close of Allred’s case, the trial court entered judgment for Demes and Sarovich, finding that Allred failed to prove illegality. Based on its finding that defendants’ interest in the business and property was not illegal, the trial court granted a preliminary injunction, enjoining the business from making any substantial changes in its operations or making any loans or distributions to Allred other than his salary. The directed finding is not being appealed here because it was not a final and appealable order, pending a decision on defendants’ counterclaim for an accounting. Plaintiff appealed the preliminary injunction pursuant to Illinois Supreme Court Rule 307(a)(1) (134 Ill. 2d R. 307 (a)(1)).

Plaintiffs Allred and Century 21 — The Investors (Allred) assert that the trial court erred in granting the preliminary injunction. For a preliminary injunction to be granted, Demes and Sarovich must establish a protectable interest, a likelihood of success on the merits, an irreparable injury in the absence of injunctive relief, and no adequate remedy at law. American National Bank & Trust Co. v. Chicago Title & Trust Co. (1985), 134 Ill. App. 3d 772, 776.

Allred’s first argument, that the trial court erred in directing a finding against plaintiff, is not properly before this court. While it is true that this court must examine the issues that resulted in both the granting of the preliminary injunction and the directed finding, the directed finding itself is not at issue. The central issue is whether the loan transaction was illegal, and if it was, would that void the purchase contract between Allred, Demes, and Sarovich. We find that the purchase contract is void based on the illegal loan transaction. Therefore, defendants have no protectable interest, deeming the preliminary injunction improper.

There are two types of violations to be considered: FHLBB regulations (12 U.S.C. §§ 1467(a), 1468 (Supp. III 1985)) and section 215 (18 U.S.C. §215 (Supp. III 1985)). Plaintiff concentrates on section 215, while defendants rely on the FHLBB regulations. First we consider whether the loan transaction was in violation of the FHLBB regulations.

Under the Homeowner’s Loan Act (12 U.S.C. §§1467(a), 1468 (Supp. III 1985)), federally chartered savings banks, such as Capitol, “may extend credit for commercial purposes to an affiliated person which may in no event exceed an aggregate of $100,000,” provided that the loan “is approved in advance by a majority (with no director having an interest in the transaction voting) of the entire board of directors,” after full disclosure, which must include whether the loan is made “on substantially the same terms, including interest rate and collateral, as those prevailing at the time for comparable loans to members of the general public.” 12 C.F.R. §563.43(bX2) (1985).

There was evidence that the loan was issued in conformity with the Federal Home Loan Bank Board regulations. The loan was made to a trust under which Allred, Demes, and Sarovich held beneficial interests. Furthermore, defendants abstained from the vote to grant the loan, disclosed their interest in the loan prior to the loan’s approval, and verbally told the bank regulators that they had an interest in the loan.

Furthermore, there was no evidence to suggest that Capitol was not adequately secured in the transaction or that the loan was granted on terms not generally available to the general public. All the evidence demonstrates that the loan was granted at the appropriate interest rate of 1% over prime, that the loan was adequately secured by a mortgage on the property and Allred’s personal guarantee, and the loan had been fully repaid.

Although there was sufficient evidence to suggest that defendants did not violate the FHLBB regulations, the trial court incorrectly focused only on the FHLBB regulations without considering whether defendants violated 18 U.S.C. section 215 (1985). Defendants’ argument that a bank officer cannot be prosecuted under section 215 if he complies with the FHLBB regulations governing those loans is without merit. They cite no authority nor give any analysis for their contention.

Section 215 stated at the time the suit was brought, in relevant part, under the title: “Receipt of commissions of gifts for procuring loans”:

“(a) Whoever, being an officer, director, employee, agent, or attorney of any financial institution, *** or savings and loan holding company *** directly or indirectly, asks, demands, exacts, solicits, seeks, accepts, receives or agrees to receive anything of value, for himself or for any other person or entity, other than such financial institution, from any person or entity for or in connection with any transaction or business of such financial institution ***
(b) *** shall be fined not more than $5,000 or three times the value of anything offered, asked, given, received, or agreed to be given or received, whichever is greater, or imprisoned not more than five years, or both.” 18 U.S.C. §215 (Supp. III 1985).

The purpose of section 215 is to remove from the bank officials any temptation of self-enrichment at the expense of the borrower or the bank. (United States v. Jumper (5th Cir. 1988), 838 F.2d 755, 758.) Numerous Federal court cases have ruled that section 215 is violated when bank officers receive commissions or fees in clear violation of the statute or conceal their interest in the transaction. In United States v. Humble (E.D. La. 1989), 714 F. Supp. 794, 798, a borrower paid a loan officer for procuring a loan from the loan officer’s bank. The court found section 215 constitutional, stating that a person of ordinary intelligence would reasonably understand that accepting cash commissions for the procurement of loans while acting as a loan officer of a federally insured financial institution is conduct prohibited by section 215. Humble, 714 F. Supp. at 798.

In United States v. Lane (8th Cir. 1972), 464 F.2d 593, 594, a bank director received a $125,000 commission in return for procuring a loan from the bank where he was a director. In United States v. Etheridge (E.D. Va. 1976), 414 F. Supp. 609, 610-11, the defendant was convicted for receiving a $2,000 fee for procuring a loan. In Jumper, the conviction was based on receipt of a $100,000 fee, undisclosed to the bank (838 F.2d at 757), and in United States v. Riley (5th Cir. 1976), 544 F.2d 237, 239, there was a 15% fee involved. Although a cash payment was not involved in United States v. Schoenhut (3d Cir. 1978), 576 F.2d 1010, 1019, the court ruled that the bank officer violated section 215 by receiving stock for procuring the loan.

Demes and Sarovich violated section 215 by soliciting and each accepting a 25% interest in the business and property in return for procuring the loan. That violation resulted in their interest in the business and property being void and unenforceable. Although there was consideration from defendants in the form of affiliation with other real estate offices and the benefit of joint advertising and bulk purchasing supplies, defendants’ violation of section 215 rendered that consideration moot. If one part of the consideration is illegal either by statute or public policy, the entire agreement is void. Kilian v. Frazier (1955), 4 Ill. App. 2d 108, 123.

Since Demes’ and Sarovich’s interest in the business and property is void, it is not protectable. Therefore, the trial court abused its discretion in granting the preliminary injunction.

The judgment of the circuit court is reversed and remanded for further proceedings.

Reversed and remanded.

RIZZI and TULLY, JJ., concur.

       Justice Tully read the briefs and the record and concurred with this opinion. Justice White heard oral arguments prior to his retirement.


author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DOUGLAS BARNES, Defendant-Appellant.
    First District (1st Division)
    No. 1—88—2562
    Opinion filed May 18,1992.

      Mary Ellen Dienes, of Chicago, for appellant.
    John M. O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Gael O’Brien, and Jeanne Lobelson, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

On November 25, 1986, defendant was arrested by law enforcement agents who were monitoring a narcotics transaction in which defendant delivered to Frank White, an acquaintance, one kilogram of cocaine. Defendant was later convicted of delivery of a controlled substance (Ill. Rev. Stat. 1985, ch. SG1/^, par. 1401(a)(2)) and was sentenced to 12 years’ imprisonment.

We affirm.

Defendant’s conviction was attained through the cooperation of White, a Federal felon, who had agreed to aid efforts by Federal Drug Enforcement Administration (DEA) and Federal Bureau of Investigation (FBI) agents in several narcotics-related investigations. White was released from prison to facilitate his cooperation but remained under custody of FBI agents.

Between November 15 and 25, 1986, White engaged in a series of telephone conversations with defendant which were recorded with the permission of the United States Attorney. At some time after November 20, 1986, but prior to defendant’s arrest, Federal prosecution of defendant’s case was declined, and the matter was referred to local law enforcement authorities.

The recorded telephone conversations, contained on nine audio cassette tapes, constituted a considerable portion of the State’s evidence against defendant. Defendant unsuccessfully sought to suppress those recordings prior to trial. He now contends the trial judge erred in admitting the tapes into evidence because no attempt was made to comply with the statutory proscription in Illinois against eavesdropping (Ill. Rev. Stat. 1985, ch. 38, par. 14 — 1 et seq.), a fact the State concedes.

WTiere, as here, the recorded conversations were obtained with the proper approval of Federal authorities pursuant to a Federal investigation, the relevant inquiry for purposes of using that evidence in a State prosecution is whether there was collusion between Federal and State authorities. (People v. Hodge (1991), 220 Ill. App. 3d 886, 581 N.E.2d 334, appeal denied (1992), 143 Ill. 2d 643, 587 N.E.2d 1020.) Absent collusion, such recordings properly may be admitted. People v. Manna (1981), 96 Ill. App. 3d 506, 421 N.E.2d 542.

FBI special agent Ross Rice detailed the circumstances giving rise to the creation of the recordings. Rice explained that White had been a target of FBI investigation since June 1985. Defendant’s name was known to the FBI as a result. At the time the decision was made to record the conversations, Rice had not discussed White’s cooperation with State or local law enforcement authorities. The investigation was entirely a Federal one. White had agreed to permit the FBI to intercept and record his conversations with defendant, and the FBI obtained the approval of the United States Attorney for that purpose.

Although the DEA presented the cases it was investigating to the United States Attorney, prosecution of defendant’s case was declined because the quantity of cocaine involved was believed to be only several ounces. Defendant’s case was then referred to local authorities.

Rice explained, Ray Lloyd, a member of the Tinley Park police department who was assigned to the Northeast Metropolitan Narcotics Enforcement Group, was then enlisted to pose as White’s financier in the transaction. As of that time, Rice’s role was limited to surveillance and to protecting White.

Rice stated that the “majority” of conversations between White and defendant were recorded prior to the time Federal prosecution in defendant’s case was declined. Rice explained the reasons for continuing the recording of White’s conversations with defendant after that time in the following manner:

“Well, again [Federal law enforcement authorities] were *** somewhat skeptical as to the sincerity of Mr. White’s desire to cooperate and we wanted to insure that we had complete control of him while he was out of [Federal custody] and again prior to his being sentenced. It was just *** the policy [that] the U.S. Attorney’s office came up with and wanted us to follow through with. They felt since we had already began [sic] recording certain conversations, or in this case numerous conversations, that we should continue to do so.”

Ray Lloyd stated he was first advised of, and asked to participate in, the investigation on November 24, 1986, after Federal prosecution had been declined. He did not know White or defendant before that time and had not participated in any decision leading to White’s cooperation. Lloyd was even unaware White was wearing a transmitting device and was recording the conversations when he accompanied White during the transaction.

The above testimony indicates no collusion between Federal and State law enforcement authorities which would prevent the admission of the tape-recorded conversations. The recordings were made in furtherance of a Federal investigation. Although Federal authorities eventually referred the matter to local law enforcement authorities after Federal prosecution was declined, that cooperation does not constitute the type of collusion which should operate to bar the use of the recordings here. See Hodge, 220 Ill. App. 3d at 888-89.

Alternatively, defendant asserts that the tape recordings were admitted improperly as evidence because some of the conversations were incomplete and portions were inaudible.

No reason exists to conclude the audio tapes were inadmissible on that basis. Only minor portions of the recordings are inaudible and those instances are not so substantial as to render the recordings, as a whole, untrustworthy. People v. Rogers (1989), 187 Ill. App. 3d 126, 543 N.E.2d 300, appeal denied (1989), 128 Ill. 2d 670, 548 N.E.2d 1076. See also People v. Griffin (1992), 148 Ill. 2d 45 (trial judge is accorded wide discretion in imposing conditions upon the admissibility of taped evidence).

At trial, defendant asserted an entrapment defense (Ill. Rev. Stat. 1985, ch. 38, par. 7 — 12) and sought to establish that he played no active role in the sale. When a defendant has presented evidence in furtherance of that defense, the State must prove guilt beyond a reasonable doubt as to the defense together with all other elements of the crime charged. (Ill. Rev. Stat. 1985, ch. 38, par. 7 — 12; People v. Gannon (1991), 213 Ill. App. 3d 560, 572 N.E.2d 1133.) The entrapment defense, however, is inapplicable where the defendant merely is afforded an opportunity or facility for committing the offense in furtherance of a criminal purpose originating with the defendant. (Ill. Rev. Stat. 1985, ch. 38, par. 7 — 12; People v. Gannon, 213 Ill. App. 3d 560, 572 N.E.2d 1133.) The relevant inquiry is whether defendant has a predisposition to commit crime. People v. Gannon, 213 Ill. App. 3d 560, 572 N.E.2d 1133.

Defendant testified White first contacted him by telephone in June 1986, seeking his assistance in a transaction to sell cocaine. White asked defendant to inquire as to price and quantity. Although he sought out that information, defendant denied he did anything more voluntarily in furtherance of the transaction, operating only to “get the message” to interested individuals.

Defendant contends here that the evidence showed he was reluctantly drawn into the transaction only upon White’s proddings. In fact, defendant claims, his reluctance actually caused him to attempt to withdraw from the illegal conduct. He therefore asserts the evidence was insufficient to prove him guilty beyond a reasonable doubt.

The tape-recorded conversations, however, contradict defendant’s entrapment theory and belie his argument on appeal. The first recorded conversation of November 15, 1986, reveals defendant was eager to participate in the transaction once White suggested the mere desire to raise money. White, who was in a Federal prison facility, telephoned defendant under the pretext that he was telephoning from his attorney’s office and needed to raise money for a bond. White asked defendant about “that guy from way down south” whom White and defendant had “talked about before,” remarking that he, White, needed to “get some bucks together fast.” White asked defendant if defendant thought they could “do anything.” Defendant quickly answered “sure.” In fact, defendant indicated he had “been waiting” for such an opportunity. White was to telephone defendant as soon as White was released from prison. Near the close of the conversation, White told defendant to “start some wheels in motion” so that in a day or so White could “buy some stuff and get going.” Defendant emphatically replied, “Oh yeah, it’s there *** it’s there.” Defendant further stated, in response to White’s inquiry, that White could “probably” complete the purchase with half of the price in the form of credit.

Nothing in the subsequent tape-recorded conversations indicates defendant wavered in his desire to participate in the sale. Ironically, that portion of the recorded conversations defendant claims supports his attempt to withdraw from the illegal conduct actually underscores his criminal predisposition. As the date set for the transaction neared, White told defendant that the fictitious financier, Lloyd, insisted on being present. Defendant was troubled by that development and voiced some apprehension in continuing his efforts until finally speaking with Lloyd and agreeing to meet Lloyd before the actual sale. Defendant's apprehension, however, was not due to a reluctance to engage in the illegal conduct. Instead, his nervousness was rooted in suspicions he had concerning “mid-stream” changes and was indicative of a fear of arrest, for he had seen “too many fucking police shows.” For defendant, it appears, life mirrored art.

The State presented other evidence as well.

Rice testified that White had represented he could transact a “drug deal” with defendant. White had spoken to defendant, prior to White’s arrest on Federal drug and racketeering charges, concerning whether defendant could supply White with cocaine. White’s first recorded telephone conversation with defendant, the relevant portions of which we mentioned above, took place the following day.

Rice stated he and fellow agent Mike Conkell were present and heard the conversations between defendant and White, as they occurred, concerning the details of the transaction. Rice also recounted his surveillance of the events of November 25, 1986, culminating in defendant’s arrest upon the transaction’s completion.

Lloyd described the arrangements for the actual purchase. On November 25, 1986, he arranged a meeting with defendant and White in a restaurant. After meeting Lloyd, defendant represented that he wanted to complete the transaction and stated he could obtain large quantities of cocaine for Lloyd’s purchase on a weekly basis. They eventually travelled to the parking lot of a fast-food restaurant which defendant announced was near where his “connection” lived. Defendant stated he would walk to the house, obtain the cocaine, and return. Defendant did so, returning with a package containing a white powder which field tests showed to be cocaine.

The evidence presented by the State leaves no doubt that defendant possessed the requisite predisposition to support his conviction.

Defendant also refers to particular remarks made by the State during rebuttal argument and contends the remarks operated to deprive him of a fair trial. The record, however, shows that defendant failed both to object to the particular remarks and to include that objection in his post-trial motion. Either of those failures is fatal to preserving the issue for review. People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.

Defendant’s appellate counsel concedes the failure to object contemporaneously to the comments but attempts to explain away that failure. Counsel suggests that other, previous objections were sufficient to put the trial judge on notice of the prosecutor’s prejudicial conduct. That argument simply lacks legal merit. Our supreme court consistently has directed that the necessary objection at trial must be made when the improper action takes place. (People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124.) Further, we find no reason to excuse defendant’s waiver here under the limited plain error exception. See People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 238.

Finally, defendant contends the prison term imposed was excessive in view that he had a single prior conviction for possession of burglary tools and because he was the source of support for his wife and children. Defendant also points to testimony presented in mitigation, arguing that that evidence establishes a rehabilitative potential that will not be served by the length of the sentence.

We cannot conclude the trial judge abused his discretion in sentencing defendant. (People v. Andrews (1989), 132 Ill. 2d 451, 548 N.E.2d 1025.) The trial judge carefully considered defendant’s employment and family background, military service, and the other evidence presented in mitigation, properly balancing those factors against the large quantity of drugs involved and defendant’s willing participation in the sale. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) The prison term was within the statutory 6- to 30-year sentence for which defendant was eligible. (Ill. Rev. Stat. 1987, ch. 561¡2, par. 1401(aX2).) Given the trial judge’s careful consideration of sentencing factors, we must decline to substitute our own judgment simply because a different sentence might have been imposed.

Affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.


author: PRESIDING JUSTICE BUCKLEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE BUDINGER, Defendant-Appellant.
    First District (1st Division)
    No. 1—90—1318
    Opinion filed May 18,1992.

      George P. Lynch, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Mary Erigid Kenney, and Theresa Harney, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Defendant George Budinger was charged by information with three counts of delivery of a controlled substance and one count of possession with intent to deliver. (See Ill. Rev. Stat. 1987, ch. 56^2, par. 1401.) After a jury trial, defendant was found guilty of these charges and sentenced to one term of six years’ imprisonment and two concurrent terms of four years’ imprisonment. Defendant seeks review of these convictions and sentences alleging that: (1) the circuit court erred in denying his motion to specifically enforce a plea agreement or, alternatively, to dismiss the informations against him because of prosecutorial misconduct and the State’s failure to honor a plea agreement; (2) the State failed to prove beyond a reasonable doubt that the substances he allegedly delivered were in fact cocaine; and (3) prosecutorial statements during closing argument denied him a fair trial. We affirm.

Prior to trial, defendant filed a two-part motion “to dismiss the informations or in the alternative to specifically enforce the plea agreement.” In part one of the motion, defendant sought dismissal of the informations against him on the ground that the State improperly seized a nontestifying defense expert’s work product in violation of defendant’s constitutional rights. In part two, defendant sought dismissal of the informations or specific enforcement of a plea agreement on the ground that, in violation of his Federal guarantees of “life, liberty and due process,” the State failed to cooperate with defendant under the alleged agreement.

Defendant’s motion came to hearing. Regarding the plea agreement, the State acknowledged a plea agreement, but contended it was not enforceable because defendant did not plead guilty to any of the informations against him. The court agreed with the State, refused to hold an evidentiary hearing on the matter and denied defendant’s motion. Defendant submitted his motion as an offer of proof of what he believed the evidence would show. The motion provided as follows.

In 1989, defendant, an assistant State’s Attorney and Agent Douglas Mugford entered a plea agreement. Under the terms of the agreement, defendant was to fully cooperate with Agent Mugford and the Metropolitan Enforcement Group in the investigation and interdiction of narcotics transactions. The agreement contemplated that defendant’s assistance would culminate in three, 100-gram purchases of controlled substances. In exchange for defendant’s cooperation, defendant would plead guilty to the informations, and the prosecution would reduce defendant’s Class X felony and make certain recommendations regarding defendant’s sentencing. Defendant was advised on the danger of his cooperation but would be afforded protection where possible.

Defendant thereafter attempted to fulfill his obligations under the agreement, but the State failed to take meaningful efforts to cooperate with defendant. On at least 27 occasions, defendant unsuccessfully attempted to arrange narcotics transactions with various law enforcement agents. On most of the occasions, the agents were unavailable or failed to follow through with defendant’s lead. On one occasion, the agents were watching Monday Night Football.

As a result of a drug transaction with an undercover agent, the other party to the transaction learned that defendant was cooperating with the police. This person thereafter committed an assault and battery upon defendant, burglarized his home and subjected defendant to numerous death threats.

Regarding defendant’s alleged claim that the State improperly seized his expert’s work product, the court agreed to conduct an evidentiary hearing. Assistant State’s Attorney Michael Vittori testified that he requested Agent Mugford to transport the alleged narcotics to the laboratory of defendant’s expert, Professor Robert Moriarty of the University of Illinois. Vittori requested that Mugford observe all procedures of the test to preserve the chain of custody. Vittori could not recall whether he told Mugford to take or obtain copies of the test results. Vittori added that he never filed Mugford’s affidavit with the court as it had previously ordered because he believed Mugford’s in-court testimony would better serve the court. Vittori did return the copies taken from Moriarty to defendant.

Professor Moriarty testified that defendant hired him to perform tests on the alleged controlled substances. Moriarty completed the requested tests, and Mugford requested copies of the results. Moriarty unsuccessfully attempted to call defense counsel to authorize the giving of copies to Mugford. Moriarty then turned a copy over to Mugford when Moriarty learned from Mugford that the State’s Attorney had ordered Mugford to obtain a copy. Moriarty stated on cross-examination that Mugford was cordial the entire time and never interfered with the testing procedures.

Officer Mugford testified that Vittori requested him to transport the alleged narcotics to Moriarty and observe the testing procedure to preserve the chain of custody. Upon completion of the tests, Mugford was to obtain copies of the results. Mugford stated that he and the assistant State’s Attorney looked at the work papers but they could not understand them. No copies were made and no other person saw the reports.

Upon completion of the hearing, the court denied defendant’s motion to dismiss the indictment. The court agreed with defendant’s assertion that the State was not entitled to a copy of Moriarty’s work until the defense had listed Moriarty as a witness. Nevertheless, the court believed that the State’s action resulted in no prejudice to defendant. Accordingly, defendant’s motion was denied.

Defendant’s jury trial commenced on March 28, 1990. The evidence produced at trial relevant to this appeal pertains to defendant’s alleged sale of cocaine to undercover officers on December 1, 1987, January 21 and January 26, 1988. The undisputed facts established that each of the substances tested positive to a cobalt dicyanide field test. A similar positive result was reached for a substance found on defendant’s person upon his arrest. Chain of custody for all four substances was established.

To establish that the substances sold were indeed cocaine, the State introduced the expert testimony of three chemists employed with the Illinois State Police Lab in Maywood, Illinois.

Deborah Magolin testified regarding the substance transferred in the January 22, 1988, transaction and the substance found on defendant’s person. Respectively, they weighed 30.8 and 1.78 grams.

Magolin performed three generally accepted tests on the substances: a cobalt dicyanide test, a thin layer chromatography test, and an infrared spectrophotometer test. In the first test, a quantity of the alleged cocaine is mixed with a chemical reagent. If the alleged substance is cocaine, an identifiable color is produced. A positive result, however, does not confirm the presence of cocaine. In this case, the substances tested positive for the presence of cocaine.

Magolin then performed a thin layer chromatography test. This is also a preliminary test which measures the alleged substance against a known standard of cocaine. If the alleged substance reacts similarly to the known standard, a positive test result is produced. In this case, the alleged substances tested positive for cocaine.

Magolin finally performed the infrared spectrophotometer test. This is a confirmatory test which utilizes an infrared spectrophotometer to measure the amount of infrared radiation absorbed or transmitted through a sample substance. The product of this test is a unique absorption pattern or spectrum based on the molecular structure of the sample tested. The pattern is then compared to the pattern of a known standard. If the two patterns match, then the two compounds are the same. In this case, the pattern of the substances matched the pattern produced by a known standard of cocaine.

Based upon the results of the above three tests, Magolin opined that the substance seized from defendant’s person and the substance transacted on January 22,1988, were in fact cocaine.

On cross-examination, Magolin testified that the standard against which she measured the substances in question was a known standard of cocaine. She explained that she knew the standard to be cocaine because when a standard is received into the laboratory, it is tested to insure “what’s on the bottle is in fact what is inside the bottle.” While she could not recall whether she tested the standard in this case, she stated that one of the chemists in the laboratory tested the standard.

Nancy Hall testified regarding the substance transferred on January 21, 1988. She determined it to weigh 3.3 grams. Hall then performed the same three tests which Magolin performed. A known standard of cocaine was used. Based on the results of these three tests, Hall opined that the substance was in fact cocaine.

Hall testified on cross-examination regarding the infrared spectrophotometer test. She stated that the spectrum from the unknown sample is compared to a hard copy of a graph of a known standard. She explained that the standard is not tested each time a sample is run in the spectrophometer. Hall did not test the standard she used in this case.

Albert Carl Larsen testified regarding the December 30, 1987, transaction. The substance transferred on that date weighed 3.6 grams. Like Magolin and Hall, Larsen performed the same three tests. Based on the results of the three tests, Larsen opined that the substance transferred on December 30,1987, to be cocaine.

During his testimony, Larsen opined that the standard he used was in fact cocaine. He explained that when the laboratory purchases standards from pharmaceutical companies or chemical supply houses, the substance in the vial is tested to assure that it is the same as what the label on the vial purports it to be. For example, the standard would be tested by the infrared spectrophotometer. The spectrum produced would be compared to the previous standard’s spectrum. If they match, the new standard is determined to be cocaine.

Larsen testified on cross-examination that he may not have tested the standard he used in this case or the previous standard. However, Larsen stated that the member of the laboratory who opens the new vial confirms the standard. At the time of the testing, four people worked in the laboratory.

At the close of the evidence, defendant was found guilty on three counts of delivery of a controlled substance and one count of possession of a controlled substance with intent to deliver. At sentencing, the intent to deliver charge was merged into one of the possession charges. The court then sentenced defendant to one six-year term of imprisonment and two concurrent four-year terms. This appeal followed.

Defendant’s first contention on appeal is that the circuit court erred when it failed to enforce the plea agreement between defendant and the Du Page County State’s Attorney’s office. Relying on People v. Navarroli (1988), 121 Ill. 2d 516, 521 N.E.2d 891, the State responds that even if the allegations within defendant’s motion are true, the court’s actions were proper. For the following reasons, we find Navarroli dispositive.

In Navarroli, defendant was charged in an indictment with cocaine-related offenses, and he later moved to compel the State to comply with a claimed plea agreement. Defendant alleged that under the agreement, he acted as an informant in various drug investigations in exchange for the State’s promise to reduce the charges against him. Defendant alleged that after he assisted law enforcement officials, the State’s Attorney refused to reduce the charges against him. In response, the State denied the existence of the agreement and the claimed terms.

At the hearing to enforce the plea agreement, the circuit court found the existence of an agreement and that defendant had fully performed. Accordingly, the court ordered specific performance. On appeal, the appellate court reversed, and the supreme court affirmed this reversal, holding that, even if the circuit court’s findings were accepted as true, the prosecution’s refusal to carry out the claimed bargain did not deprive defendant of due process.

In its analysis, the Navarroli court reviewed Santobello v. New York (1971), 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495, and Mabry v. Johnson (1984), 467 U.S. 504, 81 L. Ed. 2d 437, 104 S. Ct. 2543. In Santobello, the Court held that a defendant who enters a guilty plea in reliance upon a plea agreement is entitled to a remedy when the prosecutor breaches that promise. In Mabry, however, the Court determined that the same constitutional concerns are not implicated when the prosecutor takes a course of action inconsistent with an alleged plea agreement before the defendant enters a guilty plea. Navarroli found persuasive the following quote from Mabry which defined, under due process principles, the scope of constitutional protection afforded a defendant who enters a plea agreement:

“ ‘[A] plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest. It is the ensuing guilty plea that implicates the Constitution. Only after respondent pleaded guilty was he convicted, and it is that conviction which gave rise to the deprivation of respondent’s liberty at issue here.’ ” (Emphasis in original.) Navarroli, 121 Ill. 2d at 523, 521 N.E.2d at 893, quoting Mabry, 467 U.S. at 507-08, 81 L. Ed. 2d at 442,104 S. Ct. at 2546.

Navarroli noted that, under Supreme Court precedent, due process principles govern the enforceability of plea agreements. Accordingly, the key issue is whether the State’s repudiation of a plea agreement constitutes a denial of due process which can only be remedied by enforcement of the agreement. (Navarroli, 121 Ill. 2d at 523-24, 521 N.E.2d at 894.) Where no plea of guilty has been entered, no due process violation occurs, as a defendant is not denied any liberty by virtue of the State not abiding by the terms of the agreement. A defendant “still has the opportunity of pleading not guilty and proceeding to trial.” Navarroli, 121 Ill. 2d at 524, 521 N.E.2d at 894.

In this case, as in Navarroli, defendant claims to have cooperated with State drug enforcement agents pursuant to the terms of a plea agreement. Although defendant cannot be returned to his preplea agreement position in that his time, energy and cooperation cannot be restored, defendant is not entitled to specific performance as he did not enter a guilty plea. (Navarroli, 121 Ill. 2d at 527-29, 521 N.E.2d at 895.) In the absence of a guilty plea, or a defendant’s surrendering of a constitutional right in reliance on the plea agreement, specific performance is not available. (Compare People v. Starks (1985), 106 Ill. 2d 441, 478 N.E.2d 350; People v. Raymond (1990), 202 Ill. App. 3d 704, 560 N.E.2d 26; People v. Schmitt (1988), 173 Ill. App. 3d 66, 527 N.E.2d 384, rev’d on other grounds (1989), 131 Ill. 2d 128, 545 N.E.2d 665 (privilege against self incrimination surrendered); People v. Umfleet (1989), 190 Ill. App. 3d 804, 546 N.E.2d 1013 (defendant entered guilty plea in reliance on State’s promises), with Navarroli, 121 Ill. 2d 516, 521 N.E.2d 891; People v. Boyt (1985), 109 Ill. 2d 403, 488 N.E.2d 264, cert. denied (1986), 476 U.S. 1143, 90 L. Ed. 2d 699, 106 S. Ct. 2254 (defendant entered no plea agreement nor surrendered any constitutional right in reliance on State’s promises).) Here, defendant entered no guilty plea, and the allegations of his motion, even if taken as true, reveal that no constitutional rights were surrendered in reliance on the plea agreement. For the foregoing reasons, we affirm the court’s denial of defendant’s motion for specific enforcement based on the State’s failure to abide by a plea agreement.

Defendant additionally contends that the circuit court erred when it failed to dismiss the informations because of the State’s alleged seizure of Professor Moriarty’s work product. We disagree.

Defendant in his brief argues that the circuit court erred in denying his motion to dismiss because it failed to recognize its inherent authority to dismiss an indictment where there is a clear denial of due process. We find this argument unpersuasive. On the one hand, defendant is correct insofar as he states that a court has inherent authority, in addition to its statutory authority (see Ill. Rev. Stat. 1987, ch. 38, par. 114 — 1), to dismiss an information where a clear denial of due process is shown. (In re J.H. (1987), 164 Ill. App. 3d 718, 724, 518 N.E.2d 249, 254, aff’d (1990), 136 Ill. 2d 1, 554 N.E.2d 961; People v. Williams (1985), 137 Ill. App. 3d 736, 740, 484 N.E.2d 1191, 1195.) However, defendant’s argument fails because the court apparently recognized its inherent authority as it would not have otherwise held an evidentiary hearing regarding what happened to Moriarty’s notes. The court’s holding of a hearing and its ruling make clear that the court was not rejecting defendant’s motion on a technical, lack of authority ground. Rather, the court concluded that the whole incident involving Moriarty’s notes resulted from a misunderstanding and, further, defendant was not prejudiced by the incident. Accordingly, under the evidence, the court concluded that defendant was not denied due process of law. Our review of the evidence presented during the hearing does not compel a different conclusion.

Defendant’s second contention on appeal is that the State failed to prove beyond a reasonable doubt that the substances defendant delivered and possessed were in fact cocaine. Defendant argues that all experts relied on tests which required comparing the results of such tests with the result produced by a known standard of cocaine. Defendant claims that because the State failed to prove beyond a reasonable doubt that the known standard was cocaine, the State correspondingly failed to prove that the substances in question were in fact cocaine. We disagree and find that the evidence established the substances in question to be cocaine beyond a reasonable doubt.

In a criminal case, the burden of proof rests upon the State. The State must establish, beyond a reasonable doubt, not only the defendant’s guilt, but also the essential elements of the crime. (People v. Brannon (1978), 59 Ill. App. 3d 531, 532, 375 N.E.2d 840, 842.) Thus, in a prosecution for unlawful delivery of a controlled substance, the prosecution must establish beyond a reasonable doubt that the substance delivered was in fact a controlled substance. Brannon, 59 Ill. App. 3d at 532, 375 N.E.2d at 842.

Contrary to defendant’s assertion, the absence of direct proof that the standard used in this case was in fact cocaine did not require the entry of a directed verdict in his favor, where other circumstantial evidence proved the existence of the illegal controlled substance beyond a reasonable doubt. In People v. Robinson (1958), 14 Ill. 2d 325, 153 N.E.2d 65, defendant was charged with the unlawful sale of opium, a narcotic, and alleged on appeal that the State failed to prove beyond a reasonable doubt that the powder transferred was a narcotic. The following passage is relevant to this appeal:

“Thus the only issue raised by defendant’s assignment of error is whether the proof establishes the powder referred to by the witnesses was heroin. While the evidence relating to the nature and identity of the powder obtained from the defendant is in part circumstantial, this jurisdiction has long been committed to the principle that a conviction may be based on circumstantial evidence, and it has been broadly stated in many cases that there is no legal distinction between direct and circumstantial evidence as to the weight and effect thereof. [Citations.] ***
Circumstantial evidence is indirect proof of the principal facts of a case, which principal facts can only be inferred from one or more circumstances directly established. In this instant case it was directly established that three persons, all acquainted with the preparation and use of narcotic drugs, saw defendant process a white powder using methods and paraphernalia commonly used in the preparation of narcotic drugs for sale. Additionally the record establishes that all three occurrence witnesses thought they were receiving heroin from defendant and each used procedures and paraphernalia commonly used to introduce narcotic drugs into the body. Apart from these aspects which tend to show indirectly that the powder was heroin, there is direct evidence which supports the jury’s conclusion. McKenzie testified that he got the distinctive bitter taste of heroin when he inhaled the powder, and all three of the principal witnesses related that their physical reactions from the use of the powder obtained from defendant were the same as the reactions which had followed their previous use of heroin. That the reactions described were narcotic reactions was verified by the prosecution’s expert who also testified that an addict would come to know a narcotic by its reaction. *** From a consideration of all the evidence, direct and circumstantial, it is our opinion that both the jury and the court were justified in finding that the powder in question was a narcotic drug as charged in the indictments.” Robinson, 14 Ill. 2d at 330-32, 153 N.E.2d at 68-69.

Robinson is significant because the existence of the narcotic was established almost solely from the testimony of admitted narcotics users who purchased and subsequently used the substance defendant had sold them. Further, the State proffered no expert testimony to the effect that the substances defendant sold matched a known standard in laboratory tests.

Consistent with Robinson is People v. Harrison (1962), 26 Ill. 2d 377, 186 N.E.2d 657, cert. denied (1963), 373 U.S. 928, 10 L. Ed. 2d 426, 83 S. Ct. 1531. In Harrison, the defendant similarly contended that the State failed to prove beyond a reasonable doubt that he sold a narcotic drug. The following evidence was found by the court to have sufficiently established the existence of a narcotic:

“[T]he competent evidence consists of the December 1st request of [Federal agent] Arpaio to defendant to get him a half ounce of ‘stuff’, meaning heroin, the admitted reply of defendant that ‘he would try,’ the undisputed payment of $80, the agreed price by Arpaio to defendant, the delivery by defendant to the agent of a half ounce of whitish powder represented to be heroin, the testimony regarding the field test which agent Waltz testified indicated the presence of an opium derivative and which agent Arpaio stated showed a positive reaction which might be heroin, and the testimony of the agents that defendant admitted selling narcotics to Arpaio on December 1st.” Harrison, 26 Ill. 2d at 379-80,186 N.E.2d at 658.

As Robinson and Harrison indicate, the existence of the narcotic which forms the basis of an illegal drug charge may be proven by circumstantial evidence. Where such proof is beyond a reasonable doubt, defendant’s conviction will be affirmed. See also People v. Schlig (1983), 120 Ill. App. 3d 561, 458 N.E.2d 544; In re T.D. (1983), 115 Ill. App. 3d 872, 450 N.E.2d 455; People v. Vance (1979), 74 Ill. App. 3d 446, 393 N.E.2d 91; Brannon, 59 Ill. App. 3d 531, 375 N.E.2d 840; People v. Bertram (1977), 45 Ill. App. 3d 70, 358 N.E.2d 1357.

After reviewing all the evidence in this case on the issue of whether the substance defendant transacted was in fact cocaine, we believe the State’s evidence proved defendant’s guilt beyond a reasonable doubt. On three different occasions, defendant held out a white powdery substance to be cocaine and in fact sold it as such. After each sale, a field test was administered yielding a positive result. In the laboratory, three experts performed three tests. All tests indicated that the substances tested were cocaine. Two of the tests utilized standards, and the experts testified the standard was a known standard of cocaine. While no expert testified that, in fact, the standard was cocaine, this deficiency in the State’s case did not create a reasonable doubt of guilt.

In Brannon (59 Ill. App. 3d 531, 375 N.E.2d 840), the court was faced with record evidence substantially similar to the evidence now before this court. There, the alleged controlled substance was “LSD.” The State introduced the testimony of an expert who performed a color test and a thin layer chromatography test. The only testimony to show that the standard employed in the latter test was indeed LSD was the expert’s testimony that his supervisor obtained the standard from the Federal government. The expert testified that he did not test the standard, nor did he testify that other chemists within the lab tested it upon its receipt. Despite the deficiency of proof regarding the true nature of the standard, the court affirmed the conviction. Significant is the following passage:

“It is clear that the identity of the illegal substance may be proved by circumstantial evidence. [Citations.] Here, the chemist performed three thin layer chromatography tests. In each test the substance sold as LSD and the standard reacted to the solvent in a positive manner indicating that the substance sold as LSD and the standard were the same substance. It would seem beyond chance that the standard was not LSD when the substance represented by the defendant as LSD reacted in the same manner in three separate tests with the standard. The two substances were the same in the opinion of the expert. If not LSD, then what? It would be an extraordinary coincidence that by chance some other identical chemical compound composed the substance sold by the defendant as LSD and the standard furnished by the Federal government as LSD. Certainly the improbability of such an extraordinary circumstance would warrant the jury concluding beyond a reasonable doubt that the substance was LSD.” Brannon, 59 Ill. App. 3d at 534-35, 375 N.E.2d at 842-43.

Similarly, in this case, the deficiency in the State’s proof regarding its experts did not create a reasonable doubt as to defendant’s guilt. The circumstances of the sale, the field tests, and the laboratory tests sufficiently established defendant’s guilt. As noted by Brannon, the remote chance that the standard employed in this case was something other than cocaine would be an “extraordinary circumstance” indeed. Accordingly, for these foregoing reasons, we find that the State proved defendant guilty beyond a reasonable doubt.

Defendant’s final contention on appeal relates to prosecutorial statements made during closing argument which defendant claims denied him a fair trial. We find that defendant has failed to preserve this issue for review.

During closing argument, the prosecutor commented on the drug trade’s violent consequences on society and that defendant was part of this drug trade. The second comment concerned defendant’s attempt to set forth an entrapment defense and the State’s response that defendant was predisposed to commit the crime.

Regarding the first comment, while defendant objected at trial, defendant failed to include the comment in his motion for a new trial. This contention is therefore waived. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) Regarding the second comment, defendant neither objected nor included the matter in his post-trial motion. Again, defendant has waived review of the matter.

The plain error exception to the waiver rule does not require that we reach the merits of defendant’s argument. This was not a closely balanced case and the comments in question are not so severe as to have denied defendant a fair trial. Accordingly, we hold that defendant has failed to preserve for review any issue regarding prosecutorial comment.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

O’CONNOR and MANNING, JJ., concur.