author: JUSTICE EGAN

text:
    CONTINENTAL CONCRETE PIPE CORPORATION, Indiv. and in the Name of the Village of Bridgeview, Plaintiff-Appellant, v. CENTURY ROAD BUILDERS, INC., et al., Defendants-Appellees.
    First District (6th Division)
    Nos. 1—88—2771, 1—88—2787, 1—89—0007 cons.
    Opinion filed March 2, 1990.

      Querrey & Harrow, Ltd., and Chapman & Cutler, both of Chicago (Ellyn B. Dorf, Victor J. Piekarski, Lawrence R. Smith, and David T.B. Audley, of counsel), for appellant.
    Steinberg, Burtker & Grossman, Ltd., of Chicago (Richard J. Grossman and Jeffrey M. Brown, of counsel), for appellees.
   JUSTICE EGAN

delivered the opinion of the court:

The plaintiff, Continental Concrete Pipe Corporation (Continental), brought an action for an accounting to recover the purchase price for concrete pipe sold to the defendant, Century Road Builders, Inc. (Century). Century counterclaimed against Continental for breach of expressed and implied warranties and sought to recover damages for supplying allegedly defective pipe.

After a bench trial, the judge entered judgment for Continental but awarded only a portion of its contract price. He also entered judgment for Century on its counterclaim. Continental appeals from both judgments.

The Village of Bridgeview (Village) hired Robinson Engineering (Robinson), the Village engineers, to design a sewer project to divert sanitary flow into the Metropolitan Sanitary District facility.

Century was the only bidder on the job. Century had approximately 20 years’ experience in laying storm sewers, water mains, sanitary sewers and in road work, paving, mass excavation and restoration work in underground utilities primarily in the south suburbs of Chicago. Century had an excellent working relationship with Robinson, with whom it had worked on approximately 10 to 15 other projects. The project called for the use of 15-inch, 0 ring, sanitary sewer pipe. The specifications required the pipe and joint assemblies to meet American Society for Testing and Materials (ASTM) standards. Century had installed several O ring pipe projects before.

On August 26, 1982, Century and Continental signed a subcontract for Continental to sell 2,466 feet of pipe along with gaskets and lubricant. Continental had supplied Century with concrete pipe on almost all its concrete pipe projects. Specifically, George Kachavos, Century’s president and sole stockholder, discussed the cost of the pipe and its expected performance with Continental’s salesman, Thomas Locke. Locke had sold concrete pipe with an 0 ring gasket for use on other sanitary sewer projects, and he knew that the specified pipe would be used in a sewer project.

Kachavos was concerned with the infiltration requirement because experience indicated that that “particular material” had the most difficulty in achieving the required infiltration. Locke assured him that the pipe would comply with ASTM standards, that it would have tight joints and that Continental would conduct a vacuum test on each pipe to insure that the pipe barrel would not leak. Locke testified that Continental did, in fact, conduct a vacuum test on every piece of pipe that was sold to Century. The total contract price was $17,084.25. The pipe consisted of a barrel, a bell and a spigot. A bell was on one end of the pipe and a spigot on the other. An 0 ring rubber gasket was to be inserted in a groove on the spigot end of the pipe. A lubricant was to be applied to the joint before assembly.

Century began installing the sewer line on September 27, 1982. Continental delivered the pipe an average of 288 feet at a time, and it made nine deliveries to Century between September 27 and November 5, 1982. The crew would use a backhoe to push the spigot end of one pipe into the bell end of another pipe which had already been' bedded on the ground. The 0 ring gasket was placed on the spigot and greased for insertion into the bell. As soon as a section of pipe was laid and a joint sealed, the pipe was backfilled with stone and dirt.

During the installation of the first 100 feet of pipe on the first day the crew noticed a “backout” problem. After joining several pipes, one of Century’s employees became concerned when the spigot end of a newly laid pipe rolled back out of the bell end of an already laid pipe approximately 1 to lxk inches. Kachavos immediately contacted Continental’s salesman, Tom Locke. Locke arrived at the job-site and demonstrated how to properly lubricate and install the 0 ring gaskets. He insisted that Continental had supplied the correct gaskets for the pipes utilized in the project. The backout problem eased a bit, but occurred throughout the remainder of the project.

Century’s crew followed the instructions of Kachavos to deal with the occasional, but continuing, backout problem. The crew held the pipe in with a bar and dumped two buckets of stone and dirt on top of the barrel of the pipe to keep it from rolling back out. The crew was careful to keep the dirt away from the bell or spigot ends so that no dirt came in contact with the O ring. The weight of the stone and dirt would hold the pipe “home” and keep it from backing out. The crew used this technique on about 5 or 6 of the 40 or 50 joints which they laid each day.

Locke stopped at the jobsite about twice a week to check on the job and to see whether the crew needed supplies. He indicated that he was satisfied with Century’s gasket installation and with the installation in general.

George Robinson, a field inspector with Robinson, visited the job-site at various times each day to insure that the pipes were being installed according to its specifications. He kept a daily log. He believed that Century performed its job properly and that it was installing the pipe correctly. The crew maintained a straight and true line throughout the job. He never saw evidence of either improper bedding or backout.

Russ Prekwas, Robinson’s project engineer, also visited the jobsite about twice a week, and Wally Wroble of the Metropolitan Sanitary District checked on the job three or four times a week.

On November 16, 1982, after the first phase of the project had been completed and 1,800 feet of pipe had been laid, George Van Deursen, the Century foreman, conducted an infiltration test which was required by the Metropolitan Sanitary District. The test revealed an excessive amount of infiltration, and the line failed the test. This was the first time that Kachavos became aware of any infiltration problem.

Kachavos ordered Van Deursen to inspect the line to determine the precise cause of the leaks. Kachavos also contracted with Video Pipe Grouting, Inc., to televise the pipe and to grout the leaks. Kachavos became aware of cracks in the pipe joints during the telegrouting process.

On December 9, 1982, Kachavos phoned Locke and requested a meeting at the jobsite. He informed Locke that he was concerned about the infiltration problem in the sewer line and that telegrouting had revealed cracks in the joints of the pipe. On December 30 Kachavos and Van Deursen informed Locke that they suspected the extensive cracking was due to defective pipes. Locke denied that there was any problem with the pipe.

Kachavos then contracted with Jo Mar Telegrouting (Jo Mar) to video tape the entire line to observe cracks, leaks and alignment. Apparently, Continental concurred in the decision. Jo Mar televised the sewer line in January and twice in February 1983.

In early January 1983, Locke attributed the problem with the sewer line to “ground conditions and some working conditions out there.” In a telephone conversation on January 4, Kachavos threatened Continental with “severe consequences” if it did not participate in remedying the situation.

After observing the consistency of the cracks in the joints of the pipe, Kachavos retained Wiss, Janney, Elstner Associates (Wiss) as consulting engineers in February 1983. Kachavos instructed Wiss to do whatever was necessary to discover what was causing the joints to crack. Wiss appointed John Stecich, a structural engineer, as project manager for the assignment.

In very late February or early March, Kachavos met with Locke and another representative of Continental to discuss what arrangements could be made to cover the cost of the damages resulting from the cracked pipes. Locke again denied that the pipe was defective and indicated that Continental was not responsible. The representative of Continental demanded payment for the pipe and warned that he would file a mechanic’s lien for the price of the pipe. On March 10, 1983, Kachavos wrote a letter to Continental demanding that Continental pay damages due to the pipe’s failure. He also enclosed a copy of Stecich’s initial report which indicated that the joints were defective for a relatively large number of pipes.

On March 16, 1983, Continental filed its notice of lien. In a letter dated April 8,1983, Continental demanded payment for the pipe.

Because Jo Mar was not available in February 1983, Kachavos contracted with A. Metz, Sewers, Inc. (Metz), to do videotaping, grouting and pressure testing of each pipe joint. Metz worked on the sewer line from March 23 to May 4. After viewing the final attempt by Metz to telegrout the line, Kachavos asserted that everything he had seen in the Jo Mar tapes was also seen in the Metz tapes. Moreover, each tape showed additional cracking. Each crack appeared in the shoulder line of the spigot. On April 25, 1983, the line failed a second infiltration test.

Kachavos proposed to replace the sewer line with a new one at a meeting with Prekwas, the project manager of Robinson. Robinson approved the line’s replacement with the provision that Century would pay for additional charges connected with the time and cost involved in staking-out and observing the installation of a second line.

The cost of the replacement pipe was approximately 11% higher than the cost of Continental’s pipe. Century began constructing the second line on May 13, 1983; Robinson formally approved the line on May 16, 1983; the Metropolitan Sanitary District finally accepted the line on August 15, 1983.

Century installed approximately 1,800 feet of the 2,466 feet of pipe delivered by Continental. A “significant” number of cracked pipes remained stored in Century’s yard or buried in the ground as part of the backfill. Century used approximately 400 feet of Continental’s pipe in installing the second sewer line.

On May 18, 1983, Continental filed a three-count complaint for an accounting and other relief against Century seeking to recover $17,084.25 plus interest and costs, as the purchase price of the pipes and related materials ordered by Century.

Century filed an answer and an affirmative defense. It essentially alleged that Continental had sold it defective pipes and had breached its warranties of merchantability and fitness for a particular purpose. Continental denied the allegations of the affirmative defense.

On February 10, 1984, Century filed its counterclaim against Continental and sought to recover in excess of $275,000 for breach of express and implied warranties.

On August 11, 1984, Continental answered Century’s counterclaim denying its allegations; it separately filed an affirmative defense asserting that any conditions, damages, repairs or injuries suffered by Century were a direct and proximate result of Century’s misuse and improper installation of the pipe. It later amended its affirmative defense to include an assertion that Century had breached its duty to mitigate damages.

After a bench trial, the judge entered judgment for Continental on its complaint but awarded damages for only $2,754. That amount represented the cost of the 400 feet of pipe which had been used by Century in the second line it installed. The judge also entered judgment for Century on its counterclaim and awarded the sum of $277,514.86. Although he granted Century an award of 15% for overhead, he denied any award for profit or prejudgment interest.

Continental first contends that the trial judge erred when he barred two experts from testifying on behalf of Continental. The judge held that the plaintiff had violated Supreme Court Rule 220. (107 Ill. 2d R. 220(b).) A resolution of this issue requires an examination of the chronology of the pleadings, the discovery motions, answers to interrogatories and the judge’s order.

Century filed its counterclaim on February 10, 1984. On April 9, 1984, upon Continental’s motion, the judge entered an order compelling the parties to respond to all outstanding discovery by June 26, 1984. On May 10, 1984, Century related that representatives of Wiss would appear as its experts.

On July 6, 1984, Century served interrogatories and a request to produce on Continental. The interrogatories and request to produce specifically sought, among other things, the identity of expert witnesses, including employees.

On September 20, 1984, Continental filed its answers to Century’s interrogatories which, among other things, identified F.M. Deeb of Press-Seal Gasket Corporation (Press-Seal) as a person who had knowledge of the facts of the occurrence and subsequent damage.

On October 18, 1984, the judge ordered Continental to comply with Century’s outstanding request to produce by November 19, 1984. On November 28, 1984, Continental filed its response to Century’s request to produce but did not identify any experts.

On January 16, 1985, the judge ordered that all discovery be completed by May 1, 1985. On April 15, 1985, upon Continental’s motion, the judge extended discovery to June 26, 1985. Following a pretrial conference on November 9, 1985, the judge ordered disclosure of all expert witnesses within 45 days.

On January 2, 1986, Century requested Continental to identify its experts. Finally, after Continental failed to disclose its experts within the 45 days ordered on November 9, 1985, and after it failed to answer the supplemental interrogatories of January 2, 1986, Century moved for sanctions, which included an order to bar expert testimony on behalf of Continental.

On April 29, 1986, the judge entered an order barring expert testimony on the part of Metz, which had also filed a claim against Century; the judge ordered Continental to comply with discovery by May 15, 1986, and to produce its expert witnesses for deposition by May 29. On May 15, Continental filed an answer naming Milton Sees, whom it had allegedly previously identified, and Robert Molzahn as its experts. At that time Continental informed the court that Molzahn would “testify with respect to whether the pipe in question and the gaskets in question were appropriate for the job”; he would also testify with “respect to improper installation being a cause of the problems -with the sewer line.” The answer also alleged that no tests or experiments had been conducted by Molzahn or any other expert. There is nothing in the record to show what Continental represented to be the future testimony of Sees.

On June 3, 1986, upon Century’s motion, the judge ordered Continental to produce its second expert, Milton Sees, for his deposition on July 2.

On March 12, 1987, Continental informed Century by letter that it had provided a report made on December 9, 1983, by Stecich, Century’s expert, to Press-Seal. The letter, in part, is as follows:

“Although we have not formally retained Press-Seal in any expert capacity, in terms of paying them a fee for services rendered, I expect that someone from Press-Seal will testify in behalf of Continental Concrete at the time of trial. The subject of their testimony will be the compression of a pressed seal gasket and the calculations which Mr. Stecich made to arrive at a forty-eight percent to fifty-one percent compression factor. Since I don’t have the calculations from the deposition as yet, I cannot tell you what their specific opinion will be other than to say that they quarrel greatly with the statements regarding compression continued within the Stecich 12/9/83 correspondence.”

On April 6, 1987, Continental informed Century that the individuals from Press-Seal were Fred Deeb and Jim Skinner.

On May 13, Century filed a motion to bar Deeb and Skinner as expert witnesses on the ground that Continental had violated the court’s orders and Supreme Court Rule 220. Continental filed a response to the motion, and the judge entered an order barring Deeb, Skinner and any other employee of Press-Seal from testifying on behalf of Continental.

The decision to impose Rule 220 sanctions rests with the discretion of the trial court and will not be overturned absent a clear showing of abuse. (Castro v. South Chicago Community Hospital (1988), 166 Ill. App. 3d 479, 519 N.E.2d 1069.) In determining whether a trial court has abused its discretion, fairness to the trial court as well as to the parties demands that a reviewing court consider the record that was before the trial court and not what has been added in the reviewing court. It is the responsibility of the appellant to present a sufficiently complete record of the proceedings in the trial court to support a claim of error and, in the absence of such a record, it will be presumed that the trial court acted in conformity with the law and that it had a sufficient factual basis for its rulings. (Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 459 N.E.2d 958.) No transcript of the hearing on the motion to bar the witnesses has been provided. Consequently, we are unable to determine what arguments were advanced by Continental.

We make this observation because Continental now makes arguments, which will be discussed later, and which do not appear to have been made in the trial court. For example, Continental now argues that the court’s ruling barred Deeb from testifying as an occurrence witness. There is nothing in the record to indicate that Continental ever informed the judge that it wished to call Deeb in any capacity other than as an expert. The pleadings were restricted to the question of whether he could be called as an expert, and the order itself does not expressly bar Deeb from testifying as an occurrence witness. Moreover, it is clear to us that Deeb could not and would not have been called as an occurrence witness.

It has been held that the absence of a transcript of a hearing can prevent a reviewing court from holding that a trial court abused its discretion. (Libco Corp. v. Roland (1981), 99 Ill. App. 3d 1140, 426 N.E.2d 309.) We are not prepared to go so far in this case as to hold that the absence of the transcript is fatal to Continental’s position. But we do hold that we will consider only matters of record that we do know were before the trial judge. Therefore, insofar as this appeal is concerned, the only matters of record before the trial judge before he entered the order are Century’s motion to bar and Continental’s response, various discovery motions, the judge’s previous orders and answers to interrogatories.

Abbreviated, Continental’s argument centers on an alleged difference between two reports submitted by Stecich, Century’s expert. Stecich submitted his first report on March 1, 1983. Continental received it on March 10. Continental submitted the report to Sees, the expert who ultimately testified for Continental, and to Deeb. Sees gave Continental his report on March 25, and Deeb gave his report to Continental on April 13, 1983. Both reports attacked Stecich’s conclusions. Subsequently, Stecich made another report on December 9, 1983, which in large measure repeated his findings and conclusions of March 1 but which Continental did not see until January 1987 when it took Stecich’s deposition. It is Continental’s position in this court that the December 9, 1983, report contained new matters that required the testimony of Deeb.

There are a number of reasons to reject Continental’s argument that the December 9 report required an expert other than Sees and Molzahn. First, because the argument was not made in the trial court it should not be considered here. Indeed, Continental’s response to the motion to bar contained the April 13, 1983, report of Deeb which Continental describes in this court as its offer of proof in the trial court. Understandably, that report was directed only to Stecich’s March 1 report. Thus, the judge was told only that Deeb would testify to matters known to Continental for more than four years.

The record does not reflect any excuse for the failure to identify Deeb as an expert witness in spite of repeated orders by the trial judge. It was not until the judge barred Metz from calling an expert that Continental named Sees and Molzahn. Since Continental possessed a report by Sees which was made before the Deeb report, we can fairly infer that economy dictated that Continental choose only one gasket expert and that it chose Sees.

Continental now tells us that Molzahn was not an expert on gaskets, thereby necessitating Deeb’s testimony. However, the judge was informed by Continental’s answers to interrogatories that Molzahn would testify on the question of whether the gaskets were appropriate. Any reasonable person would conclude that Continental was holding out Molzahn as an expert on gaskets. Under all these circumstances, we cannot say that the record clearly demonstrates that the judge abused his discretion when he entered the pretrial order barring Deeb and Skinner. He could do no more than act on what was before him.

Another reason for rejecting Continental’s argument is that the evidence at trial failed to establish any prejudice to Continental. In our judgment Continental was given every opportunity to rebut the opinion of Stecich.

Both Molzahn and Sees testified that in their opinion the pipes cracked because of “differential settlement,” which we interpret to mean “the uneven laying of the pipes.” They disagreed with Stecich’s opinion that the compression of the gaskets had caused the pipes to crack. Sees, who was proffered as an expert on gaskets, expressly disagreed with the March 1 report of Stecich. However, he was never asked any questions about his opinion of the December 9 report. At the trial Continental made no attempt to show that its expert opinion proof was limited by the previous ruling.

Continental argues in this court that Deeb was more expert than Sees and would have disputed the results of tests made by Stecich after the March 1 report. Again, however, that argument was never made in the trial court either before or during the trial. Sees testified that he was very familiar with gaskets. It was his opinion that the compression-strength test and gasket test that Stecich conducted “were in nonconformance with all applicable engineering principles.” He disagreed with the results of Stecich’s tests which he believed were based on inadequate samples. He specifically criticized Stecich’s conclusion that the spigots would crack as a result of the excessive bending stress on the spigots that resulted from the compression of the rubber gasket. Locke also criticized Stecich’s method of testing. We repeat that Continental has failed to establish that it was foreclosed from rebutting any testimony of Stecich.

We conclude our discussion by noting that it is difficult to see how the judge could have arrived at any conclusion on the question of liability other than the one he did. Unlike Stecich, neither Molzahn nor Sees ever conducted any tests on the pipes. Molzahn admitted that other causes of the cracks included “adequate [sic] stress in the joining of the pipe.” As we have noted, both Molzahn and Sees expressed the opinion that the uneven laying of the pipes caused the pipes to crack. In other words, the pipes were laid in such a way that the pressure on the pipes became distributed unevenly. It was Stecich’s opinion that the problem was created at the joining of the pipes. All of the cracks appeared at the joints and none in the barrel portion of the pipes. We agree with the argument made by Century in the trial court, as apparently so did Sees, that, accepting Sees’ opinion as to the cause of the cracks, the probability of the cracks appearing in only the joints along the entire line that had been laid was mathematically almost nonexistent. In short, the judge’s ruling did not create a manifest injustice. (See Mitchell v. Wayne Corp. (1989), 180 Ill. App. 3d 796, 536 N.E.2d 241.) For these reasons, it is our judgment that Continental has failed to establish an abuse of discretion on the part of the judge in barring Continental’s proffered expert witnesses.

Continental next contends that the judge erred in precluding a showing of a videotape of a sewer line during the testimony of Molzahn. The admissibility of the tape in question first arose during the testimony of Joseph Perry, a foreman of Metz, who supervised the “teleinspection and grouting” of the pipes. Continental sought to lay a foundation for the introduction of the tape through Perry’s testimony. The judge denied admission of the tape on the ground that Perry could not determine which portions of the tape actually depicted which portions of the line of pipes on a certain date. No error is assigned to this ruling.

Molzahn testified that he had seen the tape before testifying and that, as an engineering expert, he would normally rely on videotapes to investigate the failure of a sewer line. He said that if he viewed the tape in court, he could identify where the problems in the pipe occurred. The judge denied Continental the right to show the tape.

Continental relies on Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322, to support its claim that the judge’s ruling denying it the right to show the tape was error. Wilson v. Clark does not support Continental’s position. That case simply adopted a Federal rule of evidence which permits an expert to give his opinion on the basis of facts which have not been admitted into evidence, if they are of a type reasonably relied upon by experts in a particular field in forming opinions. It does not say an exhibit previously ruled inadmissible becomes admissible when an expert says he examined it.

The record indicates that the judge did permit Molzahn to rely on the tape in establishing his opinion. Moreover, Molzahn denied relying on the tape for a significant portion of his testimony. Consequently, there was no prejudice to Continental, and the evidence would not materially have affected the result. (See Ford v. City of Chicago (1985), 132 Ill. App. 3d 408, 476 N.E.2d 1232.) It is within the court’s discretion to determine whether a party may present demonstrative evidence to clarify an expert’s testimony. (Schaffner v. Chicago & North Western Transportation Co. (1987), 161 Ill. App. 3d 742, 515 N.E.2d 298, aff’d (1989), 129 Ill. 2d 1, 541 N.E.2d 643.) We find no abuse of discretion in the court’s denial of the showing of the tape in question.

Continental’s next contention of error is that Century failed to establish that it had effectively rejected the pipe.

The judgment order essentially consists of three parts. The judge first entered judgment on Continental’s breach of contract claim. He specifically found that Century had accepted, retained and utilized 400 feet of Continental pipe and effectively rejected the remainder by a letter dated March 10, 1983. He then entered judgment for Metz on its complaint for an accounting and awarded Metz the sum of $28,642 for services rendered in videotaping, grouting and testing the pipe joints. Both awards were to be disbursed from a fund of $39,465 which the Village of Bridgeview had deposited pursuant to a court order. The funds remaining were to be disbursed first to Continental and then to Metz. Any funds remaining were to be disbursed to Century.

The judge then entered judgment on Century’s counterclaim for breach of express and implied warranties. He specifically found that Continental had supplied defective pipe and, thereby, breached its contract and warranties; he awarded Century the. sum of $274,524 in damages. The damages related to all costs associated with the unsuccessful repair of the sewer line and the ultimate replacement of the line. He awarded an additional 15% for the indirect cost of overhead and specifically denied any award for profit.

Continental first asserts that Century should not have recovered because it failed to plead that it had rejected the pipe as a “theory of recovery” or as an “affirmative defense.” The cases cited by Continental to support this argument involve the statute of frauds, lack of consideration and unenforceability. These defenses clearly constitute affirmative defenses. But Continental has not cited, nor has our research disclosed, any case holding that rejection is an affirmative defense.

Moreover, any defect in a pleading is waived by failure to object when evidence is introduced at trial on an unpleaded theory of recovery. (Pioneer Trust & Savings Bank v. County of Cook (1978), 71 Ill. 2d 510, 377 N.E.2d 21.) Throughout the trial, Continental failed to object to the admission of any of the documents which reflected the costs incurred for testing, repair or replacement or to the admission of correspondence reflecting rejection. Continental’s cross-examination reveals it was clearly aware of the potential relevance of the issues of acceptance and rejection. If there was any requirement to plead rejection, Continental waived it.

Continental next asserts that, assuming Century properly pleaded rejection, Century failed to prove rejection. The contract between Century and Bridgeview provided that the pipe manufacturer was to certify that the pipe and joint materials were capable of withstanding the infiltration test as required by the specifications for the sewer job. Because the infiltration test was not scheduled to occur until after at least 1,200 feet of pipe had been laid, Century’s “use” of the material was necessary to determine whether it conformed to the contract. Throughout installation, Century visually inspected each pipe for proper installation and cracking. The alignment, bedding and grade were checked repeatedly, and the Village engineers were satisfied with the installation up to the time the pipes failed the infiltration test. The defect was revealed only after the pipes was structurally analyzed because the line had failed to pass the infiltration test. Expert testimony indicated that the line failed due to leaks which were caused by cracks due to compression. The defect appeared only after the pipes were actually joined and installed underground.

As is obvious, the rejection of goods may not occur until after the buyer is aware that the goods are defective. Century stopped laying pipe immediately after the line failed the infiltration test. It immediately notified Continental of the extensive cracks revealed by its initial telegrouting attempt. Continental repeatedly denied any problem with the pipe and threatened Century "with a lien. Because it was still under contract with the Village to construct the sewer line, Century had no choice but to continue its efforts to determine the cause of the cracks and to repair them as best it could. Century ordered additional videotaping with Continental’s concurrence and retained consulting experts to determine the cause of the pipe’s failures.

It is for the trier of fact to determine whether conduct amounts to acceptance or rejection and whether notice of rejection is reasonable and sufficient. (Alden Press, Inc. v. Block & Co. (1988), 173 Ill. App. 3d 251, 527 N.E.2d 489.) As the trier of fact, the judge determined that Century effectively rejected the pipe by its letter of March 10, 1983. That letter indicated that Continental’s pipe was defective; it acknowledged that attempts to rectify the problems had failed; it advised Continental that it would begin repair activity and hold Continental responsible for all costs and damages suffered. The judge’s finding that the letter of March 10, 1983, was a sufficient and timely rejection of the goods was not contrary to the manifest weight of the evidence.

Century has advanced the alternative arguments that the evidence also established a revocation of acceptance, assuming that the proof of rejection was insufficient and that proof of rejection is unnecessary in actions for breach of warranty. In view of our conclusion that the evidence established an effective rejection, we need not consider these alternative arguments.

Continental’s last contention is that the damages award is inconsistent. It first claims that Century failed to mitigate the damages and bases its claim on the fact that the specifications for the job and the Metropolitan Sanitary District requirements provided that “[u]n-less otherwise specified or directed by the Engineer, the first section of sanitary sewer constructed of approximately 1200 feet in length shall be tested.” Century did not test the line until 1,800 feet of pipe had been laid. We fail to see how the requirement which was imposed on Century by the Village and the Metropolitan Sanitary District can be invoked by Continental as proof that Century had failed to mitigate damage caused by Continental. Moreover, Kachavos explained that he tested the sewer line at 1,800 feet because it represented the completion of the first phase of construction. He also testified that the Village engineer instructed him to conduct the infiltration test accordingly.

Most important, however, is the rule of law, based on common sense, that the duty to mitigate damages does not arise until the party upon whom the duty is impressed is aware “of facts which make [the duty to mitigate] necessary.” (15 Ill. L. & Prac. Damages §91 (1968).) As we have noted in discussing the question of rejection, Century did not become aware of any facts which made any duty to mitigate necessary until after 1,800 feet of pipe had been laid and the pipe failed the infiltration test. Continental had the burden of proof to show any failure to mitigate damages and has not done so. Casey v. Baseden (1986), 111 Ill. 2d 341, 490 N.E.2d 4.

Continental also asserts that it was “unduly penalized” by “inflated damages” in that it was required to pay for the replacement pipe at the cost of $7.50 per foot while the contract price was only $6.75 per foot. The replacement pipe was longer, thicker and had a different gasket. Continental also takes issue with the percentage of profit awarded to Century.

First, the judge did not enter any award for profit. Second, Kachavos testified that he purchased the same type of pipe, Class 5, O ring, ASTM C-443 concrete pipe. He also testified, without rebuttal, that the differences between the gaskets and the thickness of the pipes were only cosmetic. Continental itself followed the trend of the industry and began manufacturing and distributing a longer and thicker version of Class 5 pipe in 1984 which utilized a different bell design, thereby requiring a different type of gasket. In light of these facts, the judge could reasonably have concluded that the differences between the original and replacement pipe were irrelevant and did not constitute an “upgrade.” Continental has failed to prove that Century acted unreasonably or deliberately incurred excessive costs at its expense.

Continental’s last contention is that Century received a double recovery on one item of damages. The Village of Bridgeview deposited $39,465 with the court and was dismissed from the actions brought by Continental and Metz to enforce their liens against Century. That sum represented the final amount owed by the Village to Century out of a total contract price of $199,314. The judge ordered $2,754 paid to Continental for the 400 feet of pipe used by Century in the replacement line; $28,642 paid to Metz; leaving a balance of $8,069 to be disbursed to Century.

Continental’s position is that Century is not entitled to the $8,069 because Century has already received damages for the cost of the replacement pipe in the breach of warranty award. Century responds that the judgment order merely reflects two aspects of the case: the amount paid by the Village represents the cost of installing the pipe, and the award from Continental represents the costs associated with the attempted repairs of the original pipe and the installation of the replacement line.

We have concluded that we need not decide this question because we judge that Continental lacks standing to raise this argument. During oral argument in this court, the attorney for Continental conceded that Continental was not entitled to the money and expressed the view that “maybe [it will] go back to the Village of Bridgeview.” Continental has cited two cases from other jurisdictions which do not address the question of standing. Both cases involve double recovery by the buyer from the seller and not from any third party.

For these reasons, the judgment of the circuit court is affirmed.

Judgment affirmed.

LaPORTA, P.J., and McNAMARA, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE BUCKLEY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOHN AUSTIN, Defendant-Appellee.
    First District (1st Division)
    No. 1—88—0772
    Opinion filed March 6, 1990.

      Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Scott Lane, Assistant State’s Attorneys, of counsel), for the People.
    Randolph N. Stone, Public Defender, of Chicago (Barbara McClure, Assistant Public Defender, of counsel), for appellee.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

The State appeals from an order of the circuit court of Cook County which dismissed defendant’s indictment for possession of a controlled substance with the intent to deliver (Ill. Rev. Stat. 1985, ch. 56½, par. 1401(c)). We reverse and remand for further proceedings.

Defendant was arrested on October 10, 1986, for his alleged possession of approximately 4V2 grams of cocaine. On December 8, 1986, the case was scheduled for preliminary hearing and at that time the State filed a motion to nol-pros the case due to the lack of a laboratory analysis for the substance recovered from defendant. Although the laboratory analysis was apparently completed on January 9, 1987, defendant was not indicted on the charge of possession of a controlled substance with intent to deliver until July 29, 1987. At the hearing held February 4, 1988, defendant moved to dismiss the indictment, and the trial court granted the motion based upon its determination that the State had failed to provide defendant with a prompt preliminary hearing and speedy trial pursuant to statute. (See Ill. Rev. Stat. 1985, ch. 38, pars. 109—3.1, 103—5.) The State now appeals, contending that the trial court erred by dismissing the indictment against defendant. We agree.

In People v. Decatur (1989), 191 Ill. App. 3d 1034, we recently reversed an order of the circuit court dismissing an indictment under nearly identical circumstances. We held that the statutory speedy-trial term was tolled whenever the prosecutor requested a nolle prosequi at the preliminary hearing due to a lack of sufficient, competent evidence; when the request was granted by the court; and when defendant was released from custody, bail or recognizance. Based upon our reasoning in Decatur, we find that the trial court erred by granting defendant’s motion to dismiss in this case.

We note, however, that in Decatur we did not specifically address the issue of whether a defendant’s constitutional and statutory right to a prompt preliminary hearing is violated when he is indicted on charges that were previously nol-prossed. However, we now answer that question and find that a defendant’s right to a prompt preliminary hearing is not violated under these circumstances.

In People v. Bartee (1988), 177 Ill. App. 3d 937, 532 N.E.2d 997, it was established that notwithstanding a defendant’s right to have a charge or indictment dismissed due to the State’s failure to obtain a prompt probable cause determination, the legislature granted the State the power to refile or return a new indictment following a dismissal. (Ill. Rev. Stat. 1987, ch. 38, par. 114—1(e).) Thus, in this case, if the State had proceeded to the preliminary hearing without the laboratory analysis and the case had been dismissed for lack of competent evidence, the State would have been free to file new charges or return a new indictment based on the same evidence. We see no reason that a different result should follow merely because the State decided to nolpros the matter instead of obtaining an involuntary dismissal.

The remainder of the issues raised have been addressed in Decatur and need not be reiterated here. Suffice it to say that the State’s decision to nol-pros the original charges that led to defendant’s arrest in October 1986 did not prevent the State from indicting defendant at a later date based on the same evidence. The statutory speedy-trial term, which began to run upon defendant’s previous arrest, was tolled by the nolle prosequi obtained by the State since there was no evidence that the decision to request the nolle prosequi was motivated by a desire to harass or prejudice defendant or to gain a tactical advantage over him.

Accordingly, we reverse the order of the circuit court and remand for further proceedings consistent with this order.

Reversed and remanded.

O’CONNOR and MANNING, JJ., concur.


author: JUSTICE O’CONNOR

text:
    BLAINE W. OLSON, Adm’r of the Estate of Blaine W. Olson, Jr., Deceased, Plaintiff-Appellant, v. BELL HELMETS, INC., Defendant-Appellee.
    First District (1st Division)
    No. 1—88—3381
    Opinion filed March 6, 1990.

      Mullen, Minella & Chase, of Chicago (John C. Mullen and Cynthia L. Chase, of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Charles A. Hornewer, and Gerald Haberkorn, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Blaine Olson, Jr., died from head injuries after his motorcycle collided with a pickup truck. Olson’s estate brought a strict liability action against defendant Bell Helmets, Inc. (Bell), manufacturer of the helmet Olson was wearing. After a jury trial, judgment was entered in favor of Bell. The estate appeals, arguing that the trial court erred in excluding the deposition testimony of a reconstruction witness and refusing the jury’s request to see the helmet during deliberation. For the reasons below, we affirm.

On November 14, 1978, Blaine Olson, Jr., was riding his motorcycle northbound on State Street in Belvidere, Illinois. In the intersection of State and 9th Street, Olson struck the driver’s side of a pickup truck driven by Linda Ferguson. Olson suffered a broken jaw, a skull fracture at the base of the brain, and brain stem injury. He was taken, comatose, to a hospital, where he died a week later without regaining consciousness. Olson’s estate brought a negligence claim against Ferguson, which was subsequently dismissed, and a strict liability claim against Bell, alleging defective design of Olson’s helmet.

Before trial, Bell filed a motion in limine to exclude the deposition testimony of Howard Pearson, a Belvidere police officer who had conducted experiments to reconstruct the collision. Bell argued that there was competent eyewitness testimony and that Pearson was not properly qualified as an expert. The eyewitness, Kathleen Janisch, stated in her deposition that the impact of the collision had thrown Olson over the truck. Pearson, however, stated the opinion, based on his reconstructions and personal experience as a motorcycle rider, that Olson’s head had struck a glancing blow to the side of the truck and could not have flown over the top of the truck. But Bell’s counsel indicated that Janisch would not testify that Olson had flown over the truck. The trial court ruled to exclude Pearson’s deposition, but stated that if Janisch testified that Olson had flown over the truck, the estate would be allowed to use Pearson’s opinion for rebuttal.

At trial, the estate called as an expert Dr. Igor Paul, professor of engineering at MIT. Dr. Paul testified that the helmet was comprised of a hard fiberglass shell that was designed to diffuse the energy of an impact through the helmet liner. Dr. Paul stated that in his opinion, the shell was too thin and allowed the energy of the impact to pass directly to the wearer’s head, and that one additional layer of fiberglass would have made the helmet sufficiently strong to perform as intended.

Dr. Paul also testified that the damage to the right side of the helmet indicated that the force of the impact came from a glancing blow, rather than head on, at a speed of approximately 20 to 25 miles per hour, and that Olson did not fly over the handlebars of the motorcycle. Dr. Paul testified that in his opinion, given the severity of the impact, Olson would have survived the collision with an adequate helmet.

Bell called Dr. James Newman, an expert on the design and construction of motorcycle helmets. Dr. Newman gave the opinion that Olson’s injuries were the result of a head-on impact at a speed of about 35 to 45 miles per hour, and that given the direct head-on impact, no helmet would have prevented Olson’s injuries.

Bell also called Kathleen Janisch. She was driving southbound on State Street, approaching the 9th Street intersection, when the collision occurred. Janisch saw the collision from the passenger’s side of Ferguson’s truck and did not see the motorcycle at impact. But she heard the collision, and in response to questions by the court, specifically stated that she saw Olson fly about four or five feet above the truck, somersault over the truck, and land on his head and shoulders.

When the estate sought to use Pearson’s deposition to rebut Janisch, however, the trial court reversed its earlier ruling and refused to allow Pearson’s testimony. Counsel for the estate refused the trial court’s offer to recall Janisch for further questioning in light of the reversal.

During deliberation, the jury asked to see the helmet. The trial court refused the request, on the grounds that the helmet’s condition had been altered since the collision. The jury returned a verdict in favor of Bell, and judgment was entered. The trial court denied the estate’s post-trial motion, raising the issue of the exclusion of Pearson’s deposition and the refusal of the jury’s request to see the helmet. The estate appeals.

The estate argues that it was substantially prejudiced when the trial court reversed its earlier ruling to allow Pearson’s deposition testimony to rebut Kathleen Janisch. We disagree. It is well settled that a reconstruction expert may not be called to impeach a competent, credible eyewitness (Peterson v. Lou Bachrodt Chevrolet Co. (1979), 76 Ill. 2d 353, 359, 392 N.E.2d 1; Misch v. Meadows Men nonite Home (1983), 114 Ill. App. 3d 792, 799-800, 449 N.E.2d 1358), and that it is reversible error to admit reconstruction evidence on an issue within the ken of the average juror. Peterson, 76 Ill. 2d 353, 392 N.E.2d 1; Colonial Trust & Savings Bank v. Kasmar (1989), 190 Ill. App. 3d 967, 546 N.E.2d 1112.

Although Janisch did not see the impact, she specifically stated that after the impact, Olson “somersaulted” over the top of the truck. Janisch’s testimony, which contradicted neither common sense nor laws of physics, implied that Olson could not have survived the collision with any helmet. Pearson’s opinion that Olson could not have flown over the truck, the only portion of his deposition that the trial court originally promised to admit, would not have been admitted to explain a matter beyond the understanding of the average juror. Rather, its only purpose would have been to rebut Janisch’s perception of events. Had the trial court allowed Pearson’s testimony, it would have committed reversible error (see Peterson v. Lou Bachrodt Chevrolet Co. (1979), 76 Ill. 2d 353, 359, 392 N.E.2d 1; Colonial Trust & Savings Bank v. Kasmar (1989), 190 Ill. App. 3d 967, 546 N.E.2d 1112), and it avoided doing so by excluding the testimony.

The estate contends, however, that Janisch was not competent because she did not see whether Olson’s head hit the truck directly or at an angle. But Janisch was not called to testify to that issue; she was called to testify to what she observed, and the record supports the conclusion that Janisch had the capacity to observe, recall, and communicate (see Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 239-40, 529 N.E.2d 525), and was therefore competent.

The estate further contends that Janisch was not credible because she stated in her deposition that she was about two blocks from the intersection when the collision occurred, but stated at trial that she was about two houses away. The estate also points to the fact that she was related to the driver of the pickup truck, who is no longer a party. But the estate’s counsel made no attempt to impeach Janisch with the inconsistency or potential bias during cross-examination. Instead, counsel firmly reestablished Janisch’s testimony that Olson had somersaulted over the truck. After Pearson’s testimony was excluded, counsel refused the trial court’s offer to recall Janisch.

The estate argues that recalling Janisch and attempting to impeach her after establishing her testimony would have been ineffective without Pearson’s deposition, but this argument relies on circular reasoning: impeaching Janisch’s credibility depended on evidence that was inadmissible until Janisch’s credibility was impeached. The estate had the opportunity to impeach Janisch’s credibility, and the means, independent of Pearson’s testimony. The jury had the opportunity to observe Janisch and determine for itself whether she was credible. The estate now seeks a redetermination of her credibility, and we shall not second guess the trier of fact.

In summary, we hold that reconstruction evidence may not be used to rebut the testimony of an eyewitness unless he or she is found incompetent or incredible, and because the admissibility of such evidence depends on a finding of incompetence or incredibility, it may not be used to establish those factors. Here, Pearson’s reconstruction evidence was inadmissible to rebut Janisch’s competent and credible testimony concerning what she saw. Nor was Pearson’s testimony admissible to establish that Janisch was not a credible witness, because its admissibility depended on an independent determination that Janisch was not credible.

Because Pearson’s testimony was inadmissible, the estate was not prejudiced by its exclusion. We further note that excluding Pearson’s testimony did not prevent the estate from presenting its theory of the nature of Olson’s injuries, as Dr. Paul stated that given the damage to the helmet, Olson’s head struck a glancing blow. The trial court’s ultimate decision to exclude Pearson’s testimony was correct.

The estate also argues that it was error to allow the so-called “state of the art” defense asserting that no other helmet available would have offered more protection than the one Olson wore, and that the trial court abused its discretion in refusing the jury’s request to examine the helmet during deliberation. The estate did not properly preserve the first issue, however, and cited no authority to support the second. Accordingly, both issues were waived. See Village of Carpentersville v. Pollution Control Board (1988), 176 Ill. App. 3d 668, 531 N.E.2d 400; Flynn v. Vancil (1968), 41 Ill. 2d 236, 242 N.E.2d 237.

Even had the issues not been waived, the estate could not prevail. The estate challenges a single question asked to rebut testimony that there were more feasible helmet designs available, and the jury was properly instructed that “state of the art” testimony was not a defense to defective design. In addition, the trial court was within its discretion to refuse the jury request because the jury was allowed to see the helmet during the trial, and the estate’s own expert admitted that the condition of the helmet had been altered since the collision due to examination by the experts.

In conclusion, the estate’s arguments are without merit. The trial court correctly excluded Pearson’s deposition testimony because it was inadmissible to rebut competent, credible eyewitness testimony. The remaining arguments were waived and did not merit reversal in any event. Accordingly, we affirm the judgment of the trial court.

Affirmed.

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


author: JUSTICE HARTMAN JUSTICE SCARIANO,

text:
    GWEN R. MARTIN, Director, The Department of Labor, Petitioner-Appellee, v. DENNIS GARDE et al., Respondents-Appellants.
    First District (2nd Division)
    No. 1—87—3597
    Opinion filed March 6, 1990.

      SCARIANO, J., dissenting.
    J. Charles Sheerin, of Michigan City, Indiana, for appellants.
    Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Karen S. Rosenwinkel, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

Dennis Garde and Asbestos Control, Inc. (collectively ACI), appeal from the denial of their motion (1) for reconsideration of the order of October 30, 1987, granting the Department of Labor’s (Department’s) petition to enforce its administrative subpoena or, alternatively, (2) to suspend an earlier order of October 9, 1987, which granted the Department’s motion to enforce the subpoena, in effect, ACI’s cross-motion to permit limited discovery and to postpone the hearing on the petition to enforce.

The issues raised on appeal include whether: (1) the provisions of “An Act regulating wages ***” (the Prevailing Rate of Wages Act or Wage Act) (Ill. Rev. Stat. 1983, ch. 48, pars. 39s—1 through 39s—12) intend and require notice and a hearing when the Department invokes the powers of the court to enforce an administrative subpoena; (2) in view of the substantial allegations and attached documentary evidence that the subpoena was issued and enforcement of the subpoena was sought for reasons of coercion, intimidation and harassment, ACI and Garde were denied procedural due process of law by summary enforcement of the subpoena; and (3) ACI’s failure to provide a transcript in the record on appeal of the hearings precludes review of their claim that the hearing did not comport with due process.

ACI surveys and examines buildings for insulation and soundproofing materials containing asbestos and also removes those materials from buildings. Included among those buildings were schools, making the wages paid ACI’s employees subject to the Wage Act. Prior to October 22, 1984, William Spann of the Department informed ACI, based on an audit of its payroll records, that he believed ACI was not paying the prevailing wage as required by statute. In response, ACI made a Freedom of Information Act (FOIA) demand which requested records and documents relied upon by the Department to substantiate its claim that a rate other than that paid by ACI was the prevailing rate. On November 13, 1984, ACI submitted information regarding the nature and extent of the training it provided its employees and evidence that it performed in excess of 85% of the removal of asbestos on public works in Cook County. ACI contended that the rate it paid its employees in the removal of asbestos was the prevailing rate for that work, and asked the Department for a hearing. The Department did not respond to ACI’s FOIA request or its request for a hearing. On January 18, 1985, ACI again wrote the Department, asking for response to ACI’s requests for information and a hearing.

Ignoring ACI’s requests, the Department wrote to one of ACI’s clients, Arlington Heights Public School District No. 25 (District 25), and instructed it to withhold “the funds due [ACI] until a full investigation of the payroll records is complete.” On April 1, 1985, ACI again sought a response to its request for information and a hearing. On April 9, 1985, Superintendent Hayes of the Department’s Conciliation and Mediation Division replied that he would “do everything possible to have a written response in [ACI’s] hands no later than April 19, 1985.” The Department had not provided a written response when ACI contacted it on May 2, 1985, nor is there any indication in the record that the Department ever responded.

On July 26, 1985, the Department wrote to District 25 and advised it “that a serious violation has been uncovered by the Department of Labor. *** [ACI’s] pay records were audited and the audit revealed a deficiency in the wages paid to the employees” (emphasis added), and again instructed it not to pay ACI. ACI sued District 25 for the monies owed to it. On July 30, 1986, District 25 advised ACI that it had invited the Department to join in that litigation, which the Department declined to do. Shortly thereafter, District 25 paid the outstanding balance due ACI, stating:

“In that the Illinois Department of Labor was afforded an opportunity to intervene in the proceedings initiated by your counsel for collection of these funds and had declined to do so, the District does not believe it is under any further obligation to withhold payment of these funds as previously directed by that state agency.”

On July 22, 1985, the Department issued an administrative subpoena to ACI, requesting it to produce all payroll records for work performed in the Arlington Heights and Aurora school districts in connection with the Department’s investigation of the prevailing wage for asbestos removal. ACI failed to respond to the subpoena, and the Department took no action to enforce it. On September 15, 1986, the Department issued a second subpoena to ACI directing it to produce its records relating to the project payroll of the two school districts. ACI did not comply with the subpoena, but not until April 2, 1987, did the Department seek enforcement of the subpoena in court. ACI entered its appearance on May 22, 1987, and, three months later, on August 25, 1987, filed a response to the petition containing certain affirmative defenses alleging that the Department issued and sought enforcement of the subpoena for improper purposes. On October 1, 1987, ACI simultaneously filed two documents: (1) a motion to permit and expedite discovery and to postpone the hearing on the motion to enforce, and (2) a notice to produce two Department officers as witnesses at the hearing.

The Department’s petition to enforce the subpoena and ACI’s cross-motion for continuance and discovery were heard on October 9, 1987. Judge Richard L. Curry denied ACI’s motion and ordered compliance within 14 days. No record or transcript was made of these proceedings. The circuit court made no findings nor did it specify its reasons for denying ACI’s motion or for enforcing the subpoena. On October 26, 1987, ACI filed a motion to reconsider, requesting a suspension of the order enforcing the subpoena and the setting of a briefing schedule on the motions previously ruled upon by Judge Curry, namely, for enforcement of the subpoena and to permit discovery. These motions were denied, this time by Judge Robert L. Sklodowski, who stayed the order enforcing the subpoena pending this appeal.

Among the provisions of the Wage Act is the following (Ill. Rev. Stat. 1983, ch. 48, par. 39s—9):

“At any time within 15 days after a certified copy of the determination has been published as herein provided, any person affected thereby may object in writing to the determination ***. It shall thereafter be the duty of the public body or Department of Labor to set a date for a hearing on the objection after giving written notice to the objectors at least 10 days before the date of the hearing ***. If such a hearing is not held by the public body within the time herein specified, the Department of Labor may, upon request of the objectors, conduct the hearing on behalf of the public body.
*** At such hearing the public body or Department of Labor shall introduce in evidence the investigation it instituted which formed the basis of its determination, and the public body or Department of Labor, or any interested objectors may thereafter introduce such evidence as is material to the issue.”

It is clear from the history of this case that the Department has failed to comply with the spirit and policy of the Wage Act, from the inception of this controversy. The Department repeatedly ignored ACI’s requests for information and hearings, without explanation. Undeterred by ACI’s efforts to learn of the reasons for the Department’s position, the Department sent a letter to District 25 which stated, among other things:

“The contractor’s [ACI’s] pay records were audited and the audit reveals a deficiency in the wages paid the employees.” (Emphasis added.)

The letter affirms that ACI’s records already had been audited, and a deficiency, or violation, found. In our view, this was tantamount to a de facto finding under section 9 that a prevailing wage determination was made. For these reasons, it appears that ACI’s requests for a statutory hearing under section 9 should have been granted by the Department, but were not.

The affirmative defenses articulated by ACI raise the issues of harassment, coercion, and abuse of process, which were never answered and can well be deemed admitted. (See Ill. Rev. Stat. 1987, ch. 110, pars. 2—602, 2—610(b); Husted v. Thompson-Hayward Chemical Co. (1965), 62 Ill. App. 2d 287, 210 N.E.2d 614; Capital Development Board ex rel. P.J. Gallas Electrical Contractors, Inc. v. G. A. Rafel & Co. (1986), 143 Ill. App. 3d 553, 557, 493 N.E.2d 348.) This is particularly important where the Department’s letter to District 25 states that ACI’s books already were audited yet, apparently, the Department remained insistent upon securing the same records upon which the audit was made.

ACI argues that the circuit court erred in failing to hold a hearing on its allegations that the Department issued and sought enforcement of the subpoena for the improper purpose of intimidation, harassment and coercion. (Scott v. Association for Childbirth At Home, International (1981), 88 Ill. 2d 279, 299, 430 N.E.2d 1012, 1022 (“[A]n investigation that is arbitrary or in excess of statutory authority or undertaken for an improper purpose, such as to harass, violates due process”).) In support of its contentions, ACI also relies on People ex rel. Bernardi v. Lawrence & Ahlman, Inc. (1982), 105 Ill. App. 3d 470, 434 N.E.2d 503.

The respondent in Lawrence refused to comply with a Department subpoena commanding it to produce its records on two public work contracts. The Department sought enforcement of the subpoena in court, and Lawrence responded with a motion to dismiss, “alleging that the complaint failed to state a cause of action in that it lacked allegations of fact which would establish that the subpoena was lawfully issued.” (105 Ill. App. 3d at 471.) Lawrence also set forth facts which it claimed substantiated its allegation that the subpoena was issued for purposes of harassment and delay, and requested a continuance and a rescheduling to permit discovery. The circuit court denied Lawrence’s motions, “finding that its sole duty was to enforce the subpoena so long as it was ‘not overbroad and burdensome.’ ” (105 Ill. App. 3d at 472.) The appellate court reversed and remanded stating, in part (105 Ill. App. 3d at 472):

“Judicial review of an administrative subpoena is generally limited to a consideration of the constitutionality of the statute, whether the contemplated agency proceedings are included within the statutory authority, the reasonableness of the demand, and the relevance of the information sought. (Scott v. Association for Childbirth at Home, International (1981), 88 Ill. 2d 279, 430 N.E.2d 1012; Illinois Crime Investigating Com. v. Buccieri (1967), 36 Ill. 2d 556, 224 N.E.2d 236.) Nevertheless, administrative investigations are also subject to due process constraints and a subpoena issued for the purpose of harassment violates due process. (Scott v. Association for Childbirth at Home, International.) Moreover, when the court’s process is invoked to enforce an invalid subpoena, an abuse of judicial process occurs. (United States v. Powell (1964), 379 U.S. 48, 13 L. Ed. 2d 112, 85 S. Ct. 248.) Thus, when a prima facie case has been made challenging the legitimacy of the purpose behind the administrative subpoena, the court has a duty to resolve that issue prior to enforcement of the subpoena. A court may not permit its process to be abused. (United States v. Powell.)”

The appellate court found the circuit court erroneously believed that it had no discretion to order discovery in such cases. Here, the allegations of harassment, coercion and abuse of process raised by ACI were sufficient to establish a prima facie case challenging the legitimacy of the Department’s purpose in issuing the subpoena, in light of the case history established by the record, recited earlier.

The parties do not dispute that a hearing was held on October 9, 1987, before the judge who granted the petition to enforce the subpoena and, at the hearing, the judge had before him ACI’s response and affirmative defenses. Nothing in.the court’s order of that date reveals that any evidentiary hearing was held on that date. The Department claims that ACI’s failure to provide a transcript of the proceedings held prior to the court’s granting enforcement of the subpoena precludes review of this issue, relying on Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 459 N.E.2d 958. In Foutch, however, the circuit court’s denial of the motion notes that the court heard evidence, adduced the arguments of counsel and, being fully advised in the premises, found that the motion should not be granted. Unlike Foutch, no such finding was included in the order entered on October 9, 1987, in the present case. ACI, relying on Walker v. Iowa Marine Repair Corp. (1985), 132 Ill. App. 3d 621, 477 N.E.2d 1335, asserts that a transcript of the first hearing is not necessary, because a transcript of the proceedings on its motion to reconsider is included in the record on appeal. In Walker, the appellate court held that the absence of a transcript from the hearing on defendants motion to transfer did not preclude proper review, ruling that “the record in the instant case contains all the relevant facts presented. Additionally, the trial court here could only have based its ruling on the pleadings and affidavits in the record presented, thus rendering the transcript nothing more than a memorialization of the arguments of the attorneys.” (132 Ill. App. 3d at 625.) The Walker court found Foutch “inapposite” because in the latter case the order recited that the judge had heard evidence, whereas the order in Walker, as in the case sub judice, did not include that language.

No occasion to conjecture arises in the present case as to whether evidence was heard. Firstly, the Department’s counsel at the hearing on the motion to reconsider continually noted that the facts and argument presented to both judges at the first and second hearings were the same. Secondly, ACI again asked the court for the same relief it had sought in the first hearing, which was denied: to direct that discovery be allowed in order to prove the allegations of harassment, coercion and abuse of process. This was the very evidence that ACI wanted to present at an evidentiary hearing. There would have been no reason to ask for leave to seek such evidence had it been considered and ruled on at the first hearing. The Department makes no contrary argument.

We hold that ACI established a prima facie challenge to the legitimacy of the Department’s purpose in issuing the administrative subpoena in this case under the facts presented, evidence of which the circuit court should have permitted to be secured and presented prior to the enforcement of the subpoena. Failure to have done so here was an abuse of discretion, which requires reversal and remandment for further proceedings consistent with this opinion.

Reversed and remanded with directions.

BILANDIC, J., concurs.

JUSTICE SCARIANO,

dissenting:

I must dissent.

As the majority note, ACI contends that the trial court erred in failing to hold a hearing on its allegations that the Department issued and sought enforcement of the subpoena for the improper purpose of intimidation, harassment and coercion, citing Scott v. Association for Childbirth At Home, International (1981), 88 Ill. 2d 279, 430 N.E.2d 1012, and People ex rel. Bernardi v. Lawrence & Ahlman, Inc. (1982), 105 Ill. App. 3d 470, 434 N.E.2d 503. The facts in the case before us are identical to those in Lawrence & Ahlman, which would appear to control, until we take up the hearing of October 9, 1987, and there the similarity ends, for without the aid of a transcript we are totally bereft of any information as to what took place there. As the majority acknowledge, the parties here do not dispute that a hearing was held before the judge who granted the petition to enforce the subpoena and, that at that hearing, the judge also had before him ACI’s response and affirmative defenses. Thus, we must assume that the judge properly resolved ACI’s “challeng[e] [to] the legitimacy of the purpose behind the administrative subpoena” before ordering its enforcement. (Lawrence & Ahlman, 105 Ill. App. 3d at 472; 434 N.E.2d at 504.) The question before us is whether ACI’s motion for reconsideration of that ruling should have been granted, and, in ruling on that issue, we must consider whether the first judge properly ordered enforcement of the subpoena.

As the majority point out, the Department claims that ACI’s failure to provide a transcript of the proceedings held prior to the court’s granting enforcement of the subpoena precludes review of this issue. (Foutch v. Bryant (1984), 99 Ill. 2d 389, 459 N.E.2d 958.) In Foutch, plaintiff filed a complaint, seeking to recover for services performed and to impose a mechanic’s lien on real estate owned by defendants, and defendants filed an answer denying the allegations of the complaint. Defendants did not appear when the case was called for trial and, after an ex parte hearing, the court entered judgment for plaintiff. The court later denied defendants’ motion to vacate the judgment; however, no transcript of this hearing was made a part of the record on appeal. The trial court’s denial of the motion did not state specific grounds for the denial, although it did note that counsel for the parties were present and that the court “having heard the evidence, adduced the arguments of counsel and now being fully advised in the premises, finds: (1) That the defendants’ motion should not be granted.” (99 Ill. 2d at 393, 459 N.E.2d at 960.) The appellate court affirmed the denial, and the supreme court agreed, stating:

“The appellate court, in affirming the trial court, stated, inter alia, that since there was no record, to show the reasons given by the trial court for denying the motion to vacate, the appellate court had to presume that the trial court acted in conformity with the law and ruled properly after considering the motion. The appellate court’s affirmance was proper. From the very nature of an appeal it is evident that the court of review must have before it the record to review in order to determine whether there was the error claimed by appellant.” (Emphasis added.) 99 Ill. 2d at 391, 459 N.E.2d at 959.

The majority seems to be swayed by the fact that in Foutch the circuit court’s order denying the motion to vacate the judgment “notes that the court heard evidence, adduced the arguments of counsel and, being fully advised in the premises, found that the motion should not be granted. Unlike Foutch, no such finding was included in the order entered on October 9, 1987, in the present case.” (Emphasis is the majority’s.) (195 Ill. App. 3d at 31.) The order referred to by the majority in the case at bar reads as follows in pertinent part:

“This cause now coming to be heard on Plaintiffs [sic] motion to enforce Administrative Subpoena and Defendants [sic] cross motion to stay hearing pending discovery all parties being present and the Court being fully advised in the premises ***.”

In Aetna Life Insurance Co. v. Strickland (1975), 33 Ill. App. 3d 52, 56, 337 N.E.2d 285, 288-89, it was held:

“ ‘Where the record does not contain a report of proceedings and where the order appealed from recites that the court is fully advised in the premises, as is the fact here, a reviewing court must presume that the trial court acted in conformity to law and had before it sufficient facts to support its order.’ Interstate Printing Co. v. Callahan (1974), 18 Ill. App. 3d 930, 932-33, 310 N.E.2d 786, 789.
We conclude, therefore, that appellants have not sustained, their burden of showing *** that the interpleader was allowed without a preliminary evidentiary hearing ***.” (Emphasis added.)

Accordingly, Walker, too, is of no assistance since it depends on the same distinction from Foutch as that relied upon by the majority here.

ACI contends that the Department makes no claim that evidence was presented to the first judge, and since the only issue is whether the judge should have heard evidence, the lack of a transcript should have no effect on this court’s review of this matter. Yet during the hearing held by Judge Sklodowski, as ACI acknowledges in its reply brief, counsel for the Department stated that “These [ACI’s] arguments were all raised before Judge Curry ***. Judge Curry did hear or have all the facts before him and he ruled on the case.” (Emphasis added.)

Moreover, ACI would have us determine that at the initial proceeding Judge Curry improperly denied its request for an evidentiary hearing on the issue of harassment. In maintaining this position, ACI appears to charge the Department with the responsibility of showing that evidence was indeed heard. But the law in Illinois is very clear that it is the appellant who bears the burden of presenting a sufficient record to support its claim of error and, as already noted, in the absence of such a record on appeal, a reviewing court will presume that the trial court acted in conformity with the law and had a sufficient factual basis for its ruling. (Foutch v. Bryant (1984), 99 Ill. 2d 389, 459 N.E.2d 958.) In this connection, it should bemuse even the most acute observer that while ACI seeks strenuously to excuse its own failure to supply an appropriate record in this appeal, it complains in its reply brief that “[tjhere is no record to support [the Department’s] *** representation that [its] conduct ‘was not unlawful and was a reasonable means of seeking compliance with the Act.’ ”

In the absence of a transcript of the proceedings held before Judge Curry, a careful review of the record invites an endless procession of unanswerable questions and puzzling inferences. For example, not only are we left in obscurity as to whether the court improperly barred evidence, but also whether the evidence was in fact barred at all. Indeed, did ACI ever request the court to afford an evidentiary hearing? As indicated by the majority, eight days prior to the hearing before Judge Curry ACI filed and presumably served on the Department two documents: (1) a motion to permit and expedite discovery and to postpone the hearing on the Department’s petition to enforce the subpoena, and (2) a notice on the Department to produce at the hearing two of its top officials as witnesses. Did the witnesses in fact appear, and, if so, did they testify? There is nothing in the record to show that they failed or refused to appear or that their appearance was excused. Judge Curry’s order of October 9, 1987, denies “Defendants’ Cross Motion to Stay Hearing Pending Discovery.” Was this because the judge felt that ACI had had more than ample time to conduct discovery and to prepare for the hearing since the Department’s petition had been filed on April 2, 1987, and ACI had entered its appearance on May 22, 1987? And, in light of ACI’s motion for a continuance and to conduct discovery, would it not be reasonable to wonder if it was indeed prepared to proceed with the hearing before Judge Curry? ACI’s request for a postponement of the hearing while at the same time demanding and perhaps causing the production of two highranking Department officials may be demonstrative of an engaging ambidexterity, but it is unavailing in our efforts to resolve the issues in this case. Indeed, Judge Curry may have, as he certainly could have, considered paragraph 5 of ACI’s affirmative defenses as having at least some bearing on this entire matter. In that paragraph ACI states that its attorney sent information to the Department which demonstrated that ACI had done more asbestos removal from public works in Cook County and in all of Illinois than any other contractor performing such work, “and that ACI paid a rate of pay or rates of pay which were less than the rate of pay paid laborers.” Moreover, it will be noted that ACI places heavy reliance on its affirmative defenses, which, in its motion to reconsider, it alleges were never replied to by the Department. We are left to speculate as to what use ACI made, if any, of the Department’s failure to reply to those defenses before Judge Curry or even before that.

I cannot and I do not condone the inexcusable behavior in the Department’s handling of this case at the administrative level, nor do I laud ACI’s willful refusal to respond to two subpoenas or at least to seek to quash them, but on the authority of Foutch v. Bryant (1984), 99 Ill. 2d 389, 459 N.E.2d 958, I decline to speculate as to what occurred at the proceedings before Judge Curry. Since we do not have the “sheet music,” as it were, supplied to us by the responsible party, I decline to “play it by ear.”


author: JUSTICE SCARIANO

text:
    JAMES LYONS, Plaintiff, v. TURNER CONSTRUCTION COMPANY et al., Defendants and Third-Party Plaintiffs-Appellants (Riverside Corporation, Third-Party Defendant-Appellee).
    First District (2nd Division)
    No. 1—88—2084
    Opinion filed March 6, 1990.
    Steven B. Belgrade and John A. O’Donnell, both of Andich & Belgrade, of Chicago, for appellants.
    Thomas A. Carton and Raymond R. Pesavento, both of Bullaro & Carton, Chartered, of Chicago, for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court:

Third-party plaintiffs Turner Construction Co. and Turner Construction Co. of Texas filed a third-party complaint seeking indemnity from third-party defendant Riverside Corp. pursuant to an indemnification clause contained in a contract entered into by the parties. Although the transaction had a number of contacts with the State of Texas, and the indemnification provision in question would have been enforceable under Texas law, the trial court, applying Illinois law, dismissed the third-party complaint. We affirm.

Turner Construction Co. and Turner Construction Co. of Texas (collectively, Turner) are general contractors who were hired to erect a building in Houston, Texas. Riverside Corporation (Riverside) is a subcontractor engaged by Turner to install two construction hoists and related equipment in connection with the Houston project. The contract between Turner and Riverside further provided that Riverside would supply workers to assemble and dismantle the hoist towers, and contained the following indemnification provision:

“The Subcontractor [Riverside] hereby assumes entire responsibility and liability for any and all damage or injury of any kind or nature whatever (including death resulting therefrom) to all persons, whether employees of the Subcontractor or otherwise, and to all property caused by, resulting from, arising out of or occurring in connection with [work to be performed under the contract].”

The issue in this appeal is the enforceability of this indemnification provision.

Plaintiff Lyons, an Illinois resident, was sent by Riverside to Houston to work on the construction hoists, and in the course of performing his duties on the work site, he suffered serious injuries. He filed a complaint in the circuit court of Cook County on December 30, 1982, alleging Turner was negligent in its operation of the project. An amended complaint was filed March 23, 1983. Turner filed a third-party complaint against Riverside on May 11, 1984, relying on the indemnification provision set forth above.

Riverside filed a motion to dismiss the third-party complaint on August 27, 1984, alleging that dismissal was proper for two reasons. First, that enforcement of the indemnification provision is prohibited as contrary to the public policy of this State because section 1 of “An Act in relation to indemnity in certain contracts” (the Indemnification Contracts or Agreements Act) (Ill. Rev. Stat. 1981, ch. 29, par. 61) invalidates indemnity agreements in construction contracts that hold a party harmless for its own negligence. Second, that apart from considerations of public policy, Illinois choice of law rules lead to the conclusion that Texas law should not be applied on these facts because Illinois has the most significant contacts with the transaction; therefore, as part of Illinois substantive law, section 1 is controlling and mandates dismissal.

Both the public policy and the choice of law issues were briefed, and, on May 13, 1985, after hearing oral argument, the trial judge granted Riverside’s motion to dismiss. The order does not specify the grounds for dismissal; however, the judge did make the following statements at the hearing:

“We are dealing strictly with a cause of action between these two parties based upon an allegation of a breach of an express indemnity clause of a contract between the two, which express indemnity provisions have been declared in very certain terms to be against the public policy of the State of Illinois ***.
We have a situation here where we have a contract in which it seems to me that we are dealing with a number of items here in which — well, for example, negotiations went on here in Illinois as well as Texas. The deposition testimony indicates the fabrication by Riverside in Illinois, which was a necessary pre-condition, obviously, to the installation.
So for those reasons, Illinois certainly has . a stake in these proceedings. So that’s why I am sustaining the motion. Thank you, gentlemen.”

Three years later, on May 23, 1988, Turner filed a motion pursuant to Illinois Supreme Court Rule 304(a) (107 Ill. 2d R. 304) requesting the trial court to make its dismissal order of May 13, 1985, final and appealable. At a hearing held on that motion on May 31, 1988, a question was raised as to whether the earlier dismissal was based solely on the public policy argument or also on the ground that Illinois law was the appropriate choice of law. This issue arose because Turner was concerned about the preclusive effect a decision that Illinois law was applicable might have on parallel proceedings it had initiated in Texas. Turner notes, and Riverside does not dispute, that the indemnification provision would be enforceable under Texas law. (Firemen’s Fund Insurance Co. v. Commercial Standard Insurance Co. (Tex. 1972), 490 S.W.2d 818.) Turner implies that, if the trial court’s ruling was based solely on public policy, the different view of public policy adopted by the State of Texas may allow the suit to progress in the Texas courts. The circuit judge stated on the record at the May 31, 1988, hearing that his May 13, 1985, order was based on the ground that Illinois law was applicable under choice of law principles, and modified that order to include Rule 304(a) language.

On June 15, 1988, Turner filed an “Emergency Motion for Reconsideration” asking the trial court to vacate its May 13, 1985, and May 31, 1988, orders, to enter a new order finding that Texas law applied to the provision at issue, and to deny the motion to dismiss. On June 16, the motion for reconsideration was denied. A notice of appeal was filed on June 28, 1988.

Turner’s primary goal in this appeal is to obtain a ruling that Texas law applies and, since the indemnification agreement is enforceable under Texas law, to obtain a reversal of the trial court’s dismissal of its third-party complaint. However, we cannot reach the choice of law question in view of the effect that section 1 of the Indemnification Contracts or Agreements Act has on this litigation.

In resolving disputes based on contractual rights, Illinois courts have adopted the analysis of the Restatement (Second) of Conflicts of Law §188 (1971) (hereinafter Restatement (Second)) when determining whether Illinois law or the law from some other State should be applied where the contract has connections with more than one State and the parties have not made an explicit and effective choice of law. (Illinois Tool Works v. Sierracin Corp. (1985), 134 Ill. App. 3d 63, 479 N.E.2d 1046; Champagnie v. W.E. O’Neil Construction Co. (1979), 77 Ill. App. 3d 136, 395 N.E.2d 990; accord Palmer v. Beverly Enterprises (7th Cir. 1987), 823 F.2d 1105.) Under the two-tier Restatement approach, the choice of law turns both on which State has the most significant relationship to the transaction and on an analysis of the various policy interests stated in section 6, which include the relevant policies of the forum and of other interested States. The Restatement is silent on the weight to be given these policy considerations: “The court must decide for itself whether the purposes sought to be achieved by a local statute or rule should be furthered at the expense of the other choice-of-law factors ***.” Restatement (Second) §6, comment e (1971).

However, one commentator has recently noted that courts following the modern choice of law approach will not enforce foreign law that is contrary to a fundamental public policy of the forum. (J. Corr, Modern Choice of Law and Public Policy: The Emperor Has the Same Old Clothes, 39 U. Miami L.R. 647 (1985).) Illinois is among the States adhering to this approach. (Marchlik v. Coronet Insurance Co. (1968), 40 Ill. 2d 327, 239 N.E.2d 799; Potomac Leasing Co. v. Chuck’s Pub, Inc. (1987), 156 Ill. App. 3d 755, 509 N.E.2d 751.) Professor Corr suggests that the great variability observed in the decisions applying this rule results from the difficulties courts encounter in determining when a public policy of a State is sufficiently important to justify a refusal to apply foreign law, and this observation is borne out by an examination of Illinois case law in this area.

Both parties agree that enforcement of the indemnification clause at issue here is prohibited if section 1 of the Indemnification Contracts or Agreements Act is controlling. This statute provides:

“With respect to contracts or agreements, either public or private, for the construction, alteration, repair or maintenance of a building, structure, highway bridge, viaducts or other work dealing with construction, or for any moving, demolition or excavation connected therewith, every covenant, promise or agreement to indemnify or hold harmless another person from that person’s own negligence is void as against public policy and wholly unenforceable.” (Ill. Rev. Stat. 1981, ch. 29, par. 61.)

Two decisions by this court have specifically considered whether this statute prohibits application of another State’s law to validate such agreements. (Donaldson v. Fluor Engineers, Inc. (1988), 169 Ill. App. 3d 759, 523 N.E.2d 1113; Champagnie v. W.E. O’Neil Construction Co. (1979), 77 Ill. App. 3d 136, 395 N.E.2d 990.) The decisions reach conflicting results.

In Champagnie, plaintiff, an Illinois resident, brought a negligence action against the general contractor which had hired his employer, a subcontractor, to work on a construction project in Wisconsin. The contract between the general contractor and the subcontractor contained an indemnification provision similar to the one used in this case. The contract did not contain a choice of law provision. The court refused to apply the public policy doctrine, relying in part on the following language from the Restatement (Second) regarding the recognition of foreign causes of action:

“Actions should rarely be dismissed because of the rule of this Section. To come within the scope of the present rule, the local policy must be sufficiently strong to outweigh a state’s natural desire to open the doors of its courts to suits involving foreign facts. A court should not refuse to entertain such a suit unless to do so, in the words of Judge Cardozo, ‘would violate some fundamental principle of justice, some prevalent conception of morals, some deep-seated tradition of the commonweal.’ (Loucks v. Standard Oil Co., 224 N.Y. 99, 111, 120 N.E.2d 198, 202 (1918).)” Restatement (Second) §90, comment c (1971).

Further reliance was placed on two Illinois Supreme Court cases stressing the evil or repugnant result which would obtain if foreign law were enforced. (Nonotuck Silk Co. v. Adams Express Co. (1912), 256 Ill. 66, 99 N.E. 893; Pope v. Hanke (1894), 155 Ill. 617, 40 N.E. 839.) Finally, the court found it significant that prior to the enactment of section 1, Illinois decisions held that construction contracts indemnifying against one’s own negligence were not considered void as against public policy.

Nine years later, the court in Donaldson reached a sharply different conclusion, holding that section 1 barred enforcement of an indemnification provision which would have been enforced if foreign law controlled. The facts were again very similar to those we have here and in Champagnie. However, the contract between the subcontractor and the general contractor contained an express choice of law provision. The court consequently applied section 187 of the Restatement, which provides that an explicit choice of law provision in a contract will not be honored if the application of foreign law is contrary to a fundamental policy of a State with a materially greater interest than the chosen State. The court noted that the explicit language of section 1 established that these agreements were against public policy and that this language was sufficient to indicate a fundamental public policy within the meaning of the Restatement.

We reaffirm the reasoning of the Donaldson decision. The existence of an express choice of law provision in that case, requiring application of a different section of the Restatement, does not render Donaldson inapplicable here; the vigor of a fundamental public policy is the same in either situation. We find that the result obtained in Champagnie gives insufficient weight to the clear and unmistakable language of the statute as enacted by our legislature. The admonition of the Illinois Supreme Court in Roanoke Agency, Inc. v. Edgar (1984), 101 Ill. 2d 315, 327, 461 N.E.2d 1365, 1371, is entirely appropriate here:

“When the legislature has declared, by law, the public policy of the State, the judicial department must remain silent, and if a modification or change in such policy is desired the law-making department must be applied to, and not the judiciary, whose function is to declare the law but not to make it.”

Cases from other jurisdictions support the conclusion we reach here. For example, in Bethlehem Steel Corp. v. G.C. Zarnas & Co. (1985), 304 Md. 183, 498 A.2d 605, a majority of the Maryland Court of Appeals based its refusal to enforce an indemnification agreement contained in a construction contract on a statute substantially similar to our section 1, which included a statement that such an agreement “is against public policy and is void and unenforceable.” Other cases declining to apply the public policy doctrine to construction indemnification agreements are distinguishable on their facts. (See Jarvis v. Ashland Oil, Inc. (1985), 17 Ohio St. 3d 189, 478 N.E.2d 786 (public policy doctrine not applied to defeat express choice of law provision because forum did not have materially greater interest than chosen State); Jemco, Inc. v. United Parcel Service, Inc. (Fla. Dist. Ct. App. 1981), 400 So. 2d 499 (statute did not contain a blanket prohibition and did not make reference to public policy), petition denied (Fla. 1982), 412 So. 2d 466.) Moreover, the policy underlying section i is to motivate contractors to take all precautions necessary for the safety of construction workers and the general public, a policy that would be undermined by upholding indemnification agreements of the type at issue here. Davis v. Commonwealth Edison Co. (1975), 61 Ill. 2d 494, 336 N.E.2d 881.

Accordingly, we hold that Texas law cannot be applied to validate the construction contract indemnification agreement at issue in this case because such agreements violate a fundamental public policy of the State of Illinois. In light of the disposition we make of this matter, we need not consider Turner’s alternative contention, namely, that we should reverse the decision of the trial court because the judge erred in his determination that Illinois law was applicable under Illinois choice of law principles. Illinois Racing Board v. Hammond (1977), 56 Ill. App. 3d 609, 371 N.E.2d 1189 (an appellate court should not consider contentions which are not essential to the determination of the appeal).

Affirmed.

DiVITO, P.J., and HARTMAN, J., concur.