author: JUSTICE COLWELL

text:
    MARIO R. EGIDI, Plaintiff-Appellant, v. THE TOWN OF LIBERTYVILLE et al., Defendants-Appellees.
    Second District
    No. 2—92—1293
    Opinion filed September 29, 1993.
    — Rehearing denied November 2, 1993.

      Magee, Negele & Associates, of Round Lake (James T. Magee, of counsel), for appellant.
    Siemon, Larsen & Purdy (Gerald P. Callaghan, of counsel) and Neal, Gerber, Eisenberg & Lurie (Robert Radasevich, of counsel), both of Chicago, for appellees.
   JUSTICE COLWELL

delivered the opinion of the court:

This is the third time this matter has come before us. Plaintiff, Mario R. Egidi, brought the action as a taxpayer’s suit against defendants, the Town of Libertyville (Libertyville or Township) and Bank of Highland Park (Bank), challenging the Township’s acquisition of land from the Bank. Egidi appeals from an order granting the Township’s motion for summary judgment. Specifically, Egidi challenges Libertyville’s claim to two connecting easements that, when combined with the acreage in fee simple acquired from the Bank, would give the Township the minimum 50 acres required for a land purchase under the Township Open Space Act (Act) (Ill. Rev. Stat. 1987, ch. 139, par. 321 et seq. (now codified, as amended, at 60 ILCS 115/1 et seq. (West 1992))). We reverse.

The Bank filed memoranda supporting Libertyville’s motion for summary judgment but was not named in the lower court’s order granting that motion and submitted no brief as a defendant-appellee; accordingly, throughout this disposition, reference will be made to only one defendant, the Town of Libertyville.

The factual background of this dispute is set forth in detail in the earlier cases, Egidi v. Town of Libertyville (1989), 181 Ill. App. 3d 542 (Egidi I), and Egidi v. Town of Libertyville (1991), 218 Ill. App. 3d 596 (Egidi II). The facts will be discussed here to the extent necessary to resolve the issues and where the record has been augmented subsequent to the earlier cases.

Libertyville purchased the vacant land at issue pursuant to the Act. The Act authorizes the purchase of open land by a township, but in section 2(b) defines open land as “any space or area of land or water of an area of 50 acres or more, the preservation or the restriction of development or use of which would” preserve or foster various specified goals (Ill. Rev. Stat. 1987, ch. 139, par. 322(b) (now codified, as amended, at 60 ILCS 11572(b) (West 1992))).

The . property Libertyville purchased is bisected across its far southeast corner by a 270-foot-wide Commonwealth Edison right-of-way. Accordingly, the land purchased by Libertyville actually lies on either side of the right-of-way, and neither side contains 50 acres. At the time the earlier cases were decided, the total area of the property was considered to be 50.6771 acres, with approximately 49.5 acres to the north of the Commonwealth Edison property and approximately 1.25 acres to the south. A subsequent resurvey of the property placed the total acreage at 49.69.

In Egidi I, based on what appeared to be a total lack of connection between the two parcels, we agreed with plaintiff’s contention that Libertyville had purchased two separate areas of land from the Bank that did not adjoin or abut each other. We also considered it irrelevant that the two parcels might be considered contiguous for annexation purposes under certain provisions of the Illinois Municipal Code (see, e.g., Ill. Rev. Stat. 1987, ch. 24, par. 7 — 1—1 (now codified, as amended, at 65 ILCS 5/7 — 1—1 (West 1992))), since we were considering the status of the parcels under the Township Open Space Act. We held in Egidi I that two regions of land completely separated by a 270-foot right-of-way that is owned by a different entity cannot be considered “an area of land.” (Emphasis added.) Egidi, 181 Ill. App. 3d at 545.

In Egidi II, the parties again disputed whether the land met the statutory acreage requirement. However, this time the Township contended in the trial court that when it purchased the property from the Bank it acquired not only the acreage in fee simple but also two easements over the Commonwealth Edison right-of-way.

The land comprising the right-of-way was originally conveyed by Egidi to Commonwealth Edison by deeds executed in 1955 and 1960. Both deeds reserved an easement across the right-of-way “for 2 private roadways 33 feet in width to be established in a Southeasterly and Northwesterly direction across the above described property at locations” which were to be agreed upon and which would not interfere with the grantee’s facilities, equipment, or use of the property. (See Egidi II, 218 Ill. App. 3d at 606-07.) The total area of the easements is approximately .40 acres.

Defendant argued that the combined fee and easement interests constituted a purchase of “open land” consistent with the Act. The lower court rejected Libertyville’s argument and found that the two parcels were separate areas of land that did not abut or adjoin each other and that the easements did not provide ownership or control over an area of at least 50 acres. Accordingly, the lower court granted Egidi’s motion for summary judgment.

The Township appealed. After determining that the complaint sufficiently asserted plaintiff’s taxpayer status and that plaintiff had standing, we addressed Libertyville’s contention that the trial court erred in finding that the acreage it acquired was not “open land” pursuant to the Act. Certain principles of review guided our inquiry then, as they do now.

Summary judgment is proper when there remain no genuine issues of fact and the movant is entitled to judgment as a matter of law. (Logan v. Old Enterprise Farms, Ltd. (1990), 139 Ill. 2d 229.) However, summary judgment is a drastic means of ending litigation and should be granted only when the right of the moving party is clear and free from doubt. Logan, 139 Ill. 2d at 233.

We found in Egidi II that factual questions as to the location and nature of the purported easements over the right-of-way precluded summary judgment. In particular, we were unable to determine from the record whether the easements apply only to the Township’s property or if they are meant to provide access points along a far longer section of the Commonwealth Edison right-of-way. Since Egidi asserted that his original parcel is held by multiple owners and the record does not reveal the respective easement rights of those owners, we could not determine whether defendant is entitled to both, one, or no easements. We concluded that we had no way of knowing whether the Township’s parcels are connected by an easement interest in the right-of-way.

Although we remanded for resolution of the relevant factual issues, we nevertheless proceeded to address the questions of law pertaining to interpretation of the Act that had been raised in the appeal. We reached several determinations, which, under the doctrine of the law of the case, are not open for reconsideration. P S L Realty Co. v. Granite Investment Co. (1981), 86 Ill. 2d 291, 312; Hamilton v. Williams (1992), 237 Ill. App. 3d 765, 773-74.

We first determined in Egidi II that it is not fatal to the Township’s acquisitions that Libertyville’s interest in part of the requisite area of land is in the form of easements. Section 4.02 of the Act authorizes townships to secure open land by acquiring “the fee or any lesser right or interest in real property that is open land *** and to hold the same *** for open space, scenic roadway, pathway, outdoor recreation, or other conservation benefits.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 139, par. 324.02 (now codified, as amended, at 60 ILCS 115/4.02 (West 1992)).) We also determined that Libertyville’s land is contiguous for purposes of acquisition under the Act, since the easements appear to consist of open land, connecting two other parcels of open land, which is consistent with the statute’s goal of preserving large tracts of land. See Town of Libertyville v. First National Bank (1990), 133 Ill. 2d 356, 362.

We further concluded that the asserted easements would give the Township the level of control envisioned by the Act as necessary to qualify a less than fee interest as open land. We reasoned that easements appurtenant were formed when the easements were originally reserved in Commonwealth Edison’s deeds. (See Egidi II, 218 Ill. App. 3d at 611.) Since easements appurtenant run with the land and pass by conveyance (Harris Trust & Savings Bank v. Chicago Title & Trust Co. (1980), 84 Ill. App. 3d 280, 287; Aebischer v. Zobrist (1977), 56 Ill. App. 3d 151, 155), the easement interest now claimed by Libertyville is permanent in nature. It would give the Township the right to put in at least one 33-foot-wide roadway in order to facilitate movement from one segment of its property to the other across Commonwealth Edison’s right-of-way. The only restriction on any such roadway would be that it must be located so that it would not interfere with Commonwealth Edison’s equipment or use of the property. Moreover, since the easement would provide access between the two parcels owned by the Township, we perceived control over these easements as achieving the same purpose as ownership of the fee interest in the parcels connected by the easements, i.e., preservation or restricted development or use.

Finally, we concluded that, based on the acreage figure then before us of 50.6771 for the two parcels, Libertyville’s claimed easement interest, combined with its fee interest, would be adequate to establish that the Township contemporaneously acquired ownership or control over an area of 50 acres or more and, thus, met the statutory requirements.

On remand, a broader factual picture came to light. The original tract of land, evidently purchased by Egidi and his wife in 1954, was divided roughly in half from north to south by Illinois State Route 21 (Route 21) and bordered on the east by the Des Plaines River (River). In the 1955 and 1960 deeds, Egidi conveyed to Commonwealth Edison a strip of land 270 feet wide and approximately 4,000 feet long, running from southwest to northeast through nearly the entire breadth of the original property. The easement rights that Egidi reserved in those deeds were not physically located at any point along the Commonwealth Edison right-of-way.

In 1974, Egidi sold the eastern portion of the original property, lying between Route 21 and the River, to the Lake County Forest Preserve District (Forest Preserve). The Forest Preserve deed is silent as to the location of the easements at specific points across that portion of the right-of-way that bisects the Forest Preserve’s property; indeed, the Forest Preserve deed does not specifically mention the easements. In an affidavit introduced by Libertyville, Joseph T. Morrison, land acquisition counsel for the Forest Preserve, states that the Forest Preserve did not become aware of the easements until after Egidi II was published in 1991 and “has never made a claim” to them.

In 1977, Egidi conveyed legal title to the subject property west of Route 21 into a Bank of Waukegan land trust, in which he and his wife owned the beneficial interest. The deed in trust did not locate the easements at any given point across the right-of-way west of Route 21. Thus, when the Bank of Highland Park acquired the property in 1987 in a Uniform Commercial Code sale and subsequently sold the property to Libertyville, the deed to Libertyville also did not make reference to any specific location of the easements along the right-of-way.

Egidi retained portions of his original property. These are designated on a plat of survey dated September 11, 1987, as exceptions C, D, E, F, and G. Egidi apparently sold all but exception G, upon which he and his wife evidently continue to reside. Only one of. these exceptions appears to adjoin the Commonwealth Edison right-of-way: according to the plat of survey, exception F abuts the right-of-way for a short distance along its southeasterly side.

In October 1991, following the publication of our opinion in Egidi II, Egidi and his wife recorded a “Declaration of Easement Location,” in which they purported to fix both easements side- by side at a point east of Route 21. As declared by the. Egidis, the easements cross the right-of-way in a due north-south direction, connecting the two parts of the Forest Preserve’s property on either side of the right-of-way.

In February 1992, the Township and Commonwealth Edison recorded an “Agreement for Location of Roadway Easement,” in which the two easements were located side by side on the west side of Route 21. The easements as located by the Township and Commonwealth Edison connect the two segments of the Township’s property and cross the right-of-way in a northwesterly-southeasterly direction.

In moving for summary judgment, Libertyville maintained that its agreement with Commonwealth Edison resolved the primary question asked by this court in Egidi II: where the easements are located. The Township argued that the easements appurtenant were “floating” easements, passing with the various conveyances of Egidi’s property, until such time as a location was agreed upon by Commonwealth Edison and the owner(s) of property abutting the right-of-way. Egidi had, by conveyance, relinquished his interest in any abutting property and, thereby, his right to set easements with Commonwealth Edison; moreover, Libertyville argued, his purported declaration of easements was done without agreement by Commonwealth Edison and did not conform to the original agreement of a northwesterly-southeasterly direction. The only remaining adjoining property owner was the Forest Preserve, which had never made a claim to the easements. Thus, according to the Township, the February 24, 1992, agreement with Commonwealth Edison properly and definitively set the location of both easements. Combining their area of .40 acres with the fee simple acreage, even using the lower figure of 49.69 acres, provided the Township with an acquisition of more than 50 acres.

Egidi advances a variety of arguments in response. He asserts that the size of the original parcels may be material. If this court determines that Libertyville is entitled to only one of the easements, the 50-acre requirement will not be met. He also contends that connecting easements were not acquired simultaneously with the Township’s acquisition of the fee in 1987, since an actual connection between the parcels was not claimed until February 1992, more than four years after the purchase from the Bank. He further asserts that because only one of the original easement reservations in the Commonwealth Edison deeds states the requirement that Commonwealth Edison agree to the easements’ eventual location, he and his wife were entitled to fix the other easement wherever they chose along the right-of-way.

Egidi also claims that he originally intended to establish two routes across the Commonwealth Edison right-of-way on the east side of Route 21 and that an evidentiary hearing is necessary to determine the intentions of the parties. Alternatively, he suggests that the easements should be considered to have been abandoned. Finally,' Egidi argues that it is not clear, as Libertyville maintains, that only owners of property adjoining the right-of-way are entitled to the easements; however, if we determine that to be the case, and if the easements are considered to be “floating,” then two other adjoining property owners, the Forest Preserve and the owner of “Exception I [sic],” have equal entitlement with Libertyville to set the location of the easements.

Our conclusions in Egidi II dispose of several of Egidi’s contentions. We have already determined that the disputed easements are easements appurtenant and that the Township’s “purported easement interests were acquired simultaneously with the fee interests.” (Emphasis added.) (Egidi II, 218 Ill. App. 3d at 610.) We further stated in Egidi II that Libertyville’s claimed interest in the easements, combined with its fee interests, would establish that the Township “contemporaneously acquired ownership or control over an area of 50 acres or more.” (Emphasis added.) (218 Ill. App. 3d at 612.) We now recognize that the amended survey figure of 49.69 acres for the fee simple, if valid, would require that Libertyville be entitled to both .easements in order to achieve the statutory minimum of 50 acres; nevertheless, the above statements clearly establish that whatever easement interest Libertyville is entitled to was acquired by the Township in 1987.

We have also ruled that the easement reservations in both of the original Commonwealth Edison deeds provided that the locations of the roadways “were to be agreed upon.” (218 Ill. App. 3d at 607.) We believe the requirement in the 1955 deed that the easements must not interfere with equipment “to be placed thereon” by Commonwealth Edison sufficiently implies the necessity of an agreement as to their location, despite the absence of the explicit language found in the 1960 deed. We hold, therefore, that the Egidis’ “Declaration of Location,” dated October 21, 1991, is invalid, because it was executed without the agreement of Commonwealth Edison, as is required by the original deeds.

In Egidi II, we found no inherent ambiguity in the terms of easement reservation in either the 1955 or the 1960 document, and we find none now. The parol evidence rule prevents any oral testimony to vary the terms of a written document unless ambiguity in the terms exists. (La Salle National Insurance Co. v. Executive Auto Leasing Co. (1970), 121 Ill. App. 2d 430, 437; Heritage Standard Bank & Trust Co. v. Trustees of Schools of Township No. 37 North, Range 12, East of the Third Principal Meridian (1980), 84 Ill. App. 3d 653, 659.) Where no ambiguity exists, parol evidence is not admissible to determine the actual intention of the parties.

No particular words are necessary to constitute a grant, and any words that show a clear intention to give an easement, which is by law grantable, are sufficient to effect that purpose. (Chicago Ti tle & Trust Co. v. Wabash-Randolph Corp. (1943), 384 Ill. 78, 85-86; Aebischer, 56 Ill. App. 3d at 155.) Moreover, the language of the conveyance is definite and certain when it can be determined therefrom what the evident intention of the grantor was. (Aebischer, 56 Ill. App. 3d at 155-56.) The evident intention of Commonwealth Edison to provide Egidi with access to his property on either side of its right-of-way, the location to be agreed upon, can be determined from the language of the deeds. Therefore, we hold that an evidentiary hearing to determine the original intentions of Egidi and Commonwealth Edison with respect to either creating or locating the easements is both unnecessary and barred by the parol evidence rule.

Although the issue was not raised in Egidi II, we find we can also readily dispose of Egidi’s claim that the easements were abandoned. The rule is that mere nonuse will not constitute an abandonment of an easement created by grant, but that there must also be circumstances showing an intention of the dominant owner to relinquish his right. Beloit Foundry Co. v. Ryan (1963), 28 Ill. 2d 379, 390.

We disagree with Egidi that nonuse “in conjunction with the nature of the easement reservations, the subsequent divisions of the original parcel without mentioning the easement reservations, and the apparent lack of necessity for use” raise a factual question of intent not addressed by the trial court. We have determined that the easement reservations are unambiguous. The failure of an easement description to specify details, such as the exact location or the width, does not render the easement excessively vague or unenforceable (Joseph Giddan & Sons v. Northbrook Trust & Savings Bank (1986), 151 Ill. App. 3d 537, 541; Vallas v. Johnson (1979), 72 Ill. App. 3d 281, 282). Easements appurtenant pass by conveyance of the land to which they are annexed, even without being expressly mentioned, and they are not extinguished by a division of the dominant estate. (Beloit, 28 Ill. 2d at 388.) While the failure to use an easement for the purpose created may become a circumstance to be considered on the question of intent to abandon, no abandonment is shown where there is no evidence to prove an intent by the owner of the dominant estate to abandon the easement permanently. (Chicago Title & Trust Co., 384 Ill. at 92.) Egidi offers no such proof; on the contrary, in support of an alternative argument, Egidi introduced several pieces of evidence purporting to show where he intended to locate the easements and what he planned to use them for.

For the above reasons, we find that the easements were not abandoned by Egidi or any other owner of the dominant estate holding an interest in them, with the exception of the Forest Preserve, as is explained below.

The remaining issues raised by Egidi are (1) do all owners of portions of the original tract hold an interest in the easements, even if their property does not adjoin the Commonwealth Edison right-of-way; and (2) must all owners who do hold an interest consent to the locations of the “floating” easements?

Egidi contends that all owners of the original subdivided tract are on an equal footing with the Township, regardless of whether their parcels abut the right-of-way. He relies on Beloit, which states that “there [is no] requirement that the dominant estate must touch or join the servient estate if both are clearly defined.” Beloit, 28 Ill. 2d at 388; see also Allendorf v. Daily (1955), 6 Ill. 2d 577, 588 (contiguity is not necessary to validity if the dominant and servient estates are clearly set out in the deed).

In Beloit, the servient estate was clearly defined as a 30-foot-wide private alley, comprised of the south 15 feet of one parcel and the north 15 feet of another parcel. The easement ran the entire length (and width) of the servient estate, providing access to a public thoroughfare. The supreme court held that the easement was originally created for the benefit of all parcels situated in the lot through which it ran. The alley, which comprised both the servient estate and the easement, was found to be appurtenant to some parcels which did not touch or join it.

A clearly defined servient estate distinguishes Beloit from the instant case. In Beloit, the servient estate and the easement were all of a piece, created contemporaneously and composed entirely of the same parcels of land. Here, the specific locations of the easements across the servient estate were not described in the documents creating the easements but rather were to be determined at a future time. Thus, the servient estate was not fully set out in the original deeds. Because the circumstances are different, we analyzé the question of which portions of the dominant tract the easements are appurtenant to independently of the supreme court’s findings in Beloit.

Generally, an easement is considered appurtenant only when one terminus is on the land of the party claiming it; however, the only essential element of an easement appurtenant is thát it inhere in or concern the land of that party. (Allendorf, 6 Ill. 2d at 588; Taylor v. Lanahan (1979), 73 Ill. App. 3d 829, 832.) An easement may be considered appurtenant if it clearly appears to have been the intention that it should be that way, although the dominant and servient estates do not join. (Allendorf, 6 Ill. 2d at 588.) In the present case, the original deeds called for “private roadways *** to be established *** across [the right-of-way].” (Emphasis added.) The wording indicates to us that the purpose of the roadways was to provide a land owner access to the property on either side of the right-of-way. It is logical to conclude that such easements are appurtenant only to parcels of land that have certain access to them, i.e., those parcels on which at least one terminus is located.

Our language in Egidi II supports this interpretation of the deeds. In determining that easements appurtenant were formed, we noted that “[o]ne terminus of each easement was on land owned by [Egidi].” (Egidi II, 218 Ill. App. 3d at 611.) We further observed that “[i]f, at the time the easements were reserved, all of the land adjoining the right-of-way was held by Egidi and his wife as sole owners, then they alone would have held all the easement rights.” (Emphasis added.) (218 Ill. App. 3d at 607-08.) It is apparent to us from this statement that holding adjoining land is a prerequisite to holding easement rights and that, accordingly, easements would pass only to grantees of adjoining land. We hold, therefore, that the easements are appurtenant to, and run with, only those portions of the dominant tract that adjoin the right-of-way.

We further hold that the Egidis’ “Declaration of Location,” dated October 21, 1991, is invalid not only, as stated above, because it was executed without the agreement of Commonwealth Edison; it also fails because the Egidis, as owners of only nonadjoining property, held no interest in the easements appurtenant when the declaration was executed.

Egidi asserts for the first time in his reply brief that an “Exception I” adjoins the right-of-way. We find no “Exception I” on the 1987 plat of survey included in the record and assume that the intended reference was to exception F. On the uncertified plat, exception F appears to adjoin the right-of-way for a short distance between the exception’s southeastern corner and Route 21, which runs the remaining length of exception F’s southeastern border. A roadway established in a northwesterly-southeasterly direction would almost immediately encounter Route 21. Assuming that passage over that section of Route 21 would present no obstacle, the second terminus of exception F’s easement would be on land belonging to the Forest Preserve.

We need not consider whether exception F’s apparent limited contiguity "with the Commonwealth Edison right-of-way plausibly triggers entitlement to the disputed easements appurtenant, since we find that the issue is waived on appeal. A point not raised in the trial court cannot be urged on appeal. (Nugent v. Miller (1983), 119 Ill. App. 3d 382, 387.) This rule of waiver applies even in a summary judgment case. (Witek v. Leisure Technology Midwest, Inc. (1976), 39 Ill. App. 3d 637, 640.) Our examination of the record reveals that exception F was referred to only once below, in remarks of counsel for the Bank during the hearing on the summary judgment motion. In its order, the trial court considered the Township and the Forest Preserve to be the only current owners of abutting properties, and Egidi did not raise the issue of the existence or viability of other adjoining property in his post-trial motion to vacate the trial court’s order. See Suslick v. Rothschild Securities Corp. (1987), 164 Ill. App. 3d 589, 593 (failure to raise an issue in post-trial motions constitutes waiver of that issue).

For purposes of this dispute, then, the only properties to adjoin the right-of-way are the Township property, which lies on both sides of the right-of-way to the west of Route 21, and the Forest Preserve property, which lies on both sides of the right-of-way to the east of Route 21. The agreement entered into by the Township and Commonwealth Edison on February 24, 1992, locates both easements, side by side, across that part of the right-of-way lying to the west of Route 21. Since each easement is approximately .20 acres, Libertyville’s claim to both easements provides it with an area of about 50.09 acres, based on the revised figure for the fee simple of 49.69 acres. However, only Township property is accessed by the easements.

We find that we cannot resolve the remaining issue raised by Egidi on appeal, whether the Forest Preserve should have an equal say with Libertyville in setting the locations of the easements, because we are unable to discern from the record the Forest Preserve’s precise intentions with respect to the interest it holds in the easements. Specifically, we do not know whether the Forest Preserve intended to abandon its interest in the easements.

Rights to an easement created by express grant or reservation can be extinguished only by abandonment or adverse possession. (Kurz v. Blume (1950), 407 Ill. 383, 387; Pacemaker Food Stores, Inc. v. Seventh Mont Corp. (1983), 117 Ill. App. 3d 636, 645.) Establishing title by adverse possession requires continuous, hostile possession for at least 20 years. (Kurz, 407 Ill. at 387.) Thus, both Libertyville and the Forest Preserve presently hold easement rights, absent abandonment on the part of the Forest Preserve. At least one consequence of this finding could prove fatal to the Township’s acquisition. If, within 20 years, the Forest Preserve were to claim a roadway across that part of the right-of-way bisecting its property, Libertyville could be left with only one easement and, accordingly, with insufficient acreage under the revised survey to meet the 50-acre requirement.

As we stated above, the abandonment of an easement requires, in addition to nonuse, circumstances showing an intention of the dominant owner to relinquish his right. (Beloit, 28 Ill. 2d at 390.) We believe that the affidavit of the Forest Preserve’s counsel for land acquisition, which states that the Forest Preserve “has never made a claim to the Easements,” in conjunction with the Forest Preserve’s nonintervention in this litigation, may comprise circumstances sufficient to show an intention to relinquish its rights to the easements. However, the intention to permanently abandon an easement requires proof (Chicago Title & Trust Co., 384 Ill. at 92), and the determination of whether there has been an abandonment is within the discretion of the trial court (Beloit, 28 Ill. 2d at 390). We decline to pass judgment on a matter of intention that has not been aired below.

When a trial court or court of review becomes cognizant of the absence of a necessary party to the matter before it, the court sua sponte has the duty of directing the joinder of the absent party. (Sullivan v. Merchants Property Insurance Co. (1979), 68 Ill. App. 3d 260, 263.) Section 2 — 406(a) of the Civil Practice Act (735 ILCS 5/2 — 406(a) (West 1992)) provides:

“If a complete determination of a controversy cannot be had without the presence of other parties, the court may direct them to be brought in.”

If abandonment by the Forest Preserve was not intended, we fail to see by what authority Libertyville can claim, at this point in time, exclusive control over the location and use of both easements.

Accordingly, we remand this cause to the trial court with directions that the Lake County Forest Preserve District be made a party to this action in order to determine its intentions with respect to the rights it presently holds in the disputed easements.

Reversed and remanded.

BOWMAN and QUETSCH, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    HERITAGE FEDERAL CREDIT UNION, Plaintiff-Appellant, v. JOSEPH M. GIAMPA et al., Defendants-Appellees.
    Second District
    No. 2—92—1125
    Opinion filed October 6, 1993.
    — Rehearing denied November 15, 1993.
    R. Terence Kalina and Donna B. Wallace, both of Rathje, Woodward, Dyer & Burt, of Wheaton, for appellant.
    Andrew B. Spiegel, of Wheaton, for appellees.
   JUSTICE COLWELL

delivered the opinion of the court:

Plaintiff, Heritage Federal Credit Union, appeals the trial court’s dismissal of its suit to foreclose a first mortgage on property that defendant, Joseph Giampa, purchased at a sheriff’s sale that followed a successful suit by Harris Bank Roselle (the Harris suit) to foreclose a second mortgage on the property. (See generally 735 ILCS 5/15— 1501 et seq. (West 1992).) The trial court held that because plaintiff took no action after becoming a party to the Harris suit, it waived its priority and was properly barred from a later suit to foreclose its mortgage.

On appeal, plaintiff argues the trial court erred in holding that the judgment on the second mortgage cut off plaintiff’s prior interest in the property. We agree, reverse the judgment, and remand the cause for further proceedings.

Plaintiff’s first mortgage on the subject property was duly recorded in August 1987. Harris Bank’s second mortgage was duly recorded in September 1989.

On September 20, 1990, Harris obtained a judgment of foreclosure of its second mortgage. On January 3, 1991, plaintiff, which was not originally named as a party to the suit, filed an appearance. On June 18, 1991, defendant bought the property at a court-ordered public foreclosure sale. On June 26, 1991, he obtained a sheriff’s deed to the property.

Between the time it appeared and the end of the Harris suit, plaintiff took no action in the Harris suit. On June 26, 1991, at a hearing to confirm the sheriff’s sale, plaintiff’s counsel appeared in court, and plaintiff received leave to file whatever pleadings it deemed appropriate. Defendant served plaintiff (among others) with a copy of his motion for an order requiring the payment of all real estate taxes; the court later granted this motion without any objection from plaintiff. Plaintiff later received notice of defendant’s July 26, 1991, motion to secure possession of the subject premises and defendant’s August 1, 1991, motion to compel the sheriff to turn over the remaining proceeds of the sale to defendant, pursuant to an agreed order. Plaintiff took no action with regard to either motion. The court granted both motions.

On October 21, 1991, plaintiff filed its complaint to foreclose its first mortgage on the subject property, naming defendant and any unknown owners as defendants. Defendant responded with a motion to dismiss the suit, arguing that plaintiff, by taking no action in the Harris suit to protect its interest in the property, had waived its first lien. The trial court agreed with defendant, dismissed the suit, and denied plaintiff’s motion to reconsider. Plaintiff timely appealed.

Plaintiff argues that because its interest in the subject property was superior to the second mortgage involved in the Harris suit, that suit could not affect plaintiff’s rights in the property. Defendant argues that once plaintiff decided to intervene in the Harris suit, plaintiff was required to take action to protect its rights in the property and was properly found to have waived those rights by its inaction.

We believe that long-settled case law favors plaintiff. A suit to foreclose a junior mortgage can cut off only rights or claims of interest subsequent to the interest asserted. (Gregory v. Suburban Realty Co. (1920), 292 Ill. 568, 575; Dodds v. Snyder (1867), 44 Ill. 53, 55-56.) A second mortgagee acquires a lien on the mortgagor’s equity of redemption. (Boone v. Clark (1889), 129 Ill. 466, 482; Baldi v. Chicago Title & Trust Co. (1983), 113 Ill. App. 3d 29, 31.) The purchaser at the foreclosure sale takes title under the decree and not under the trust deed. (Powell v. Voight (1932), 348 Ill. 605, 609.) The purchaser takes title to the property subject to all prior liens and encumbrances. Powell, 348 Ill. at 609; South Side Bank & Trust Co. v. Sherlock Homes, Inc. (1955), 6 Ill. App. 2d 138, 141-42.

Applying these principles here, we agree with plaintiff that Harris Bank Roselle’s suit to foreclose its second mortgage could not cut off plaintiff’s prior interest in the property. Defendant purchased the property subject to plaintiff’s first mortgage. Whether plaintiff intervened in the Harris suit or took any action thereupon is simply irrelevant. The Harris suit could not have affected plaintiff’s interest in the property, and plaintiff’s failure to take action in the suit thus cannot reasonably be construed as a waiver of its superior right. To hold otherwise would grant defendant a windfall contrary to established case law.

Mid-America Federal Savings & Loan Association v. Liberty Bank (1990), 204 Ill. App. 3d 995, on which defendant principally relies, does not hold otherwise. In Mid-America, the court held only that, in a suit by a first mortgagee, a second mortgagee could waive its interest in the property by failing to take appropriate action, with the result that the suit cut off the second mortgagee’s rights in the property without affecting those of the third mortgagee, which did not fail to assert its rights. A suit by a first mortgagee requires a junior mortgagee to protect its rights or lose its priority among holders of interests inferior to the first mortgage. From this it does not follow that a suit by a second mortgagee requires a first mortgagee to take similar action to protect its superior interest.

Because the trial court erred in dismissing plaintiff’s complaint, the judgment of the circuit court of Du Page County is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

INGLIS, P.J., and DOYLE, J., concur.


author: JUSTICE LUND

text:
    DOUGLAS MUCK et al., Plaintiffs-Appellants, v. LESTER VAN BIBBER III et al., Defendants-Appellees.
    Fourth District
    No. 4—93—0162
    Argued September 20, 1993. —
    Opinion filed October 7, 1993.
    Timothy W. Kelly (argued), of Allison & Kelly, of Bloomington, for appellants.
    Arthur G. Greenberg (argued), of Westervelt, Johnson, Nicoll & Keller, of Peoria, for appellees.
   JUSTICE LUND

delivered the opinion of the court:

. Plaintiffs Douglas Muck and Laurie Muck brought this defamation complaint against defendants Lester Van Bibber III, Jane I. Van Bibber, Tena J. Olmstead, John M. Olmstead, and Citizens for Justice, Inc., a not-for-profit corporation. This case was previously before our court and remanded for a specific decision on dismissal of plaintiffs’ complaint. (See Muck v. Van Bibber (1992), 223 Ill. App. 3d 830, 585 N.E.2d 1147.) On remand, the circuit court of McLean County dismissed the action, with prejudice, based upon a conclusion that the communication was absolutely privileged. Plaintiffs again appeal.

Both plaintiffs applied for an appointment as associate judge in the Eleventh Judicial Circuit of the State of Illinois (Eleventh Circuit). Under Supreme Court Rule 39, associate judges for circuit courts are appointed, subject to four-year terms, by circuit judges in each judicial circuit. (See 134 Ill. 2d R. 39.) Plaintiffs allege the following letter was mailed to judges of the Eleventh Circuit in November 1988:

“It has come to the attention of Citizens for Justice, Inc.[,] that Douglas and Laurie Muck have submitted their names to be considered for a judicial position in the 11th Judicial Circuit. Because we have received so many phone calls regarding alleged unethical improprieties conducted by Douglas and Laurie Muck, Citizens for Justice, Inc.[,] would like to go on record as being vehemently opposed to the acceptance of either Douglas or Laurie Muck for any judicial position in this or any Judicial Circuit.
One of the reasons Citizens for Justice, Inc.[,] was formed is to provide a direct line of communication between concerned citizens of this state and persons like yourselves, responsible for making judicial appointments. By bringing to your attention citizen’s undesirability of certain individuals being considered for judicial positions, we believe we are helping to secure ‘Justice for All’ and helping to preserve the integrity of your judicialships [sic] through a more informed decision process. Thus, we share a common goal which is to maintain judicial administrations of your ethical equivalence.
If judgeships are considered exemplary positions, from which legal standards and practices are modeled, then it is of the utmost importance that this judgeship be granted to the best possible candidate. Please help us to help you by denying the appointment of Douglas or Laurie Muck to any position in this or any Judicial Circuit. We thank you for your consideration in these matters.”

After a previous remand by our court, the circuit court entered an order dismissing an amended complaint, with prejudice, for failure to state a cause of action (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 615) and specifically stating:

“FURTHER, this Court finds that on the specific fact situation set forth in the Amended Complaint the communication sent by the Defendants to the panel of Judges who were charged with appointing a new Associate Circuit Court Judge was absolutely privileged, [(emphasis in original)] and in support thereof states as follows:
a. That the panel of Judges who were charged with the election or appointment of the Associate Circuit Court Judges would fall within the definition of a ‘quasi judicial body’ (Parrillo, Weiss & Moss v. John Bernard Cashion, 181 Ill. App. 3d 920 (1989)).
b. That regardless of the characterization of the judicial panel set forth in the aforesaid paragraph that the communication in the instant case is so much in the public interest that as a matter of public policy it is absolutely privileged (Weber v. Cueto, 209 Ill. App. 3d 936 (1991)).”

Whether an absolute privilege should exist depends upon the necessity for the privilege, as well as the character of the body receiving the communication. An absolute privilege provides complete immunity from civil action, even though the statements are made with malice, because public policy favors the free and uninhibited flow of such information. 53 C.J.S. Libel and Slander §58(a), at 110 (1987); Starnes v. International Harvester Co. (1989), 184 Ill. App. 3d 199, 203, 539 N.E.2d 1372, 1374.

As stated in Weber v. Cueto (1991), 209 Ill. App. 3d 936, 942, 568 N.E.2d 513, 516-17:

“A communication is absolutely privileged when its propagation is so much in the public interest that the publisher should speak fully and fearlessly. [Citation.] As a matter of public policy certain types of defamatory statements are deemed privileged so that the person making the statement will not be deterred from speaking by the threat of civil liability. [Citation.] *** The defense of absolute privilege has been described as resting upon the idea that conduct which otherwise would be actionable is to escape liability because the defendant is acting in furtherance of some interest of social importance that is entitled to protection even at the expense of uncompensated harm to the plaintiff’s reputation. [Citation.] The privilege is ‘ “based upon a policy which regards the ends to be gained by permitting such statements as outweighing the 'harm which may be done to the reputation of others.” [Citations.]’ [Citation.]
The class of absolutely privileged communications is narrow and is practically limited to legislative and judicial proceedings and other acts of State, including communications made in the discharge of a duty under express authority of law.”

While judicial statements and statements to quasi-judicial bodies have been deemed absolutely privileged (see Starnes v. International Harvester Co. (1986), 141 Ill. App. 3d 652, 657, 490 N.E.2d 1062, 1065), the absolute privilege has been recognized in giving statements to county boards, Attorney Registration and Disciplinary Commissions, chief judges of the circuit court (see Weber, 209 Ill. App. 3d 936, 568 N.E.2d 513), the Illinois Judicial Inquiry Board (see Starnes, 141 Ill. App. 3d 652, 490 N.E.2d 1062), and law enforcement bodies (see Starnes, 184 Ill. App. 3d 199, 539 N.E.2d 1372). In Starnes, we listed various judicial proceedings where absolute privilege exists. Starnes, 184 Ill. App. 3d at 204, 539 N.E.2d at 1374-75.

In the present case, the communication was sent to judges responsible for appointment of associate judges, generally to four-year terms. These same judges have a responsibility to decide when, and if, reappointments should be made. We recognize the importance of these decisions and their possible effect on the general public, as well as on the reputation of the judicial system. Public policy requires disclosure of any information that relates to a candidate’s performance in office. Once an appointment is made, termination within the tenure period is not a simple procedure. The Illinois Judicial Inquiry Board would initially investigate and consider alleged misconduct, and then removal would be adjudicated by the Illinois Court’s Commission.

Judges making the appointments are, by their profession, regularly faced with questioning evidence, as well as recognizing the necessity of keeping confidences. Both qualities contribute to the public-policy argument that the type of communication with which we are now dealing should be the subject of absolute privilege. The fact that copies of the defendant’s letter were sent to the then-sitting associate judges does create concern, because those judges do not vote on associate judge selection or retention. However, the relationship that normally exists between the two levels of judges negates concern. In the selection process, the associate circuit judges’ knowledge of the applicants’ performances in court is a valuable source of information to the voting judges. The same attributes relating to the questioning of evidence and recognizing the necessity of keeping confidences are present at the associate level. As a result, associate circuit judges participate indirectly in the selection of those who are selected to sit with them.

Here, we do not have any general publication of defendants’ representations. Letters were sent only to members of the judiciary. It is of utmost importance to obtain all relevant information in the process of selecting those who will be “judging” the public. Regardless of the nature of the panel — judicial, quasi-judicial, or nonjudicial — in this case we hold that public interest requires absolute privilege, where allegations were directed only to members of the trial court.

Affirmed.

STEIGMANN, P.J., and GREEN, J., concur.


author: JUSTICE McCULLOUGH PRESIDING JUSTICE STEIGMANN,

text:
    WILLIAM YAMNITZ, d/b/a Yamnitz and Associates, Plaintiff-Appellee, v. WILLIAM J. DIESTELHORST COMPANY, INC., Defendant-Appellant.
    Fourth District
    No. 4—92—0285
    Argued August 18, 1993. —
    Opinion filed October 7, 1993.

      STEIGMANN, P.J., specially concurring.
    Denis A. McGrady, Jr. (argued), of McGrady & McGrady, of Gillespie, for appellant.
    Larry D. Kuster (argued), of Rammelkamp, Bradney, Dahman, Kuster, Keaton, Fritsche & Lindsay, P.C., of Jacksonville, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff William Yamnitz, d/b/a Yamnitz & Associates, sued defendant William J. Diestelhorst Company, Inc., in the circuit court of Macoupin County in an action to enforce a mechanics’ lien pursuant to section 23 of the Mechanics Lien Act (Act) (Ill. Rev. Stat. 1985, ch. 82, par. 23). Defendant, a general contractor, had a contract with the State of Illinois Department of Transportation (IDOT) and Macoupin County for a street improvement project in Girard, Illinois. Plaintiff and defendant entered into a subcontract, and this action concerns the parties’ disputes over how much money plaintiff was due under the subcontract. Following a jury trial, a verdict was entered in favor of plaintiff and against defendant in the total amount of $40,948.92. The jury found defendant owed plaintiff $18,000 as the balance due under the subcontract and $22,948.92 as interest due on the unpaid balance. Judgment was entered on the verdict.

The issues raised on appeal are whether (1) the trial court erred by barring the opinion testimony of Joseph Schoppet, defendant’s certified public accountant (CPA), because the witness was not disclosed as an expert pursuant to Illinois Supreme Court Rule 220 (134 Ill. 2d R. 220); (2) the trial court erred by barring the opinion testimony of Walter J. Diestelhorst, owner and chief operating officer of defendant, for the failure of defendant to disclose that witness pursuant to Supreme Court Rule 220; (3) the trial court erred by allowing into evidence testimony concerning defendant’s contract with the State of Illinois and Macoupin County because any relevance it might have had was outweighed by its prejudicial impact on defendant; (4) the trial court improperly refused to give the jury the following instruction: “Contract language is to be given its clear meaning if clarity is present, but ambiguities or uncertainties are to be resolved against the party creating them”; (5) plaintiff was not entitled to any interest under the subcontract between the parties because plaintiff prevented defendant from getting paid for the job by filing a mechanics’ lien; and (6) whether the evidence so overwhelmingly favored defendant that the trial court should, not have allowed the verdict to stand or, in the alternative, whether the jury’s verdict was against the manifest weight of the evidence. We affirm.

The first issue is whether the trial court erred by barring the opinion testimony of Joseph Schoppet, defendant’s CPA, because the witness was not disclosed as an expert pursuant to Rule 220. Under the written subcontract between the parties, plaintiff was to control and oversee construction of a portion of the overall project. Defendant provided the manpower for most of the work and bankrolled the job for plaintiff. The contract between the parties provided that defendant would furnish at the expense of plaintiff “weekly payroll payments to the [plaintiff’s] labor force, the actual cost to be deducted from” the amount due to plaintiff under the subcontract. In charging plaintiff for labor costs, defendant included a 10% charge “for overhead.” That was one of the items in dispute in this case.

Schoppet was disclosed as a witness in discovery, but not as an expert witness pursuant to Rule 220. Defendant does not argue that Schoppet is not an expert. Indeed, defendant wants Schoppet’s opinions that contractors commonly assign overhead costs as a percentage of labor when calculating actual costs and that, if a contractor fails to do this, the contractor would go out of business.

Schoppet was not disclosed as an expert, and, pursuant to Rule 220, the trial court ruled that Schoppet could not testify as an expert on the question of charges for overhead. As an offer of proof, defendant submitted a deposition of Schoppet in another case (William Yamnitz, d/b/a Yamnitz & Associates v. William J. Diestelhorst Company, Inc., Greene County case No. 85 — L—80), which the trial court considered. Defendant was also allowed to have Schoppet testify as an additional offer of proof.

Defendant was Schoppet’s client in 1984. He had been auditing construction clients since 1975 and was familiar with chargeable labor rates in the construction industry. Schoppet testified there are three items to consider in calculating actual labor costs: the actual base pay, fringe benefits, and a percentage of direct labor to cover overhead costs. The percentage for overhead varies from contractor to contractor and depends on experience. A company has to take a percentage to recover overhead costs or it would not make a profit. Overhead in-eludes several types of expenses, but the charge is applied to labor because it is the most common denominator. Schoppet would take the payroll of a particular contractor and compare that to the company’s whole amount of payroll to arrive at the percentage to allocate to the particular job. This was done for defendant in 1984. Schoppet explained how he calculated the percentage to be applied. Schoppet stated his deposition testimony was essentially the same as his testimony in court. A review of the transcript of Schoppet’s deposition discloses that he never opined that the charge was a custom of the construction industry and, although the same parties and law firms were involved, there is no disclosure in the deposition that Schoppet would be called as an expert witness in either case. The offer of proof was denied.

It is defendant’s argument that Schoppet need not be disclosed as an expert pursuant to Rule 220 simply because he was defendant’s accountant in 1984. According to defendant, Schoppet is an “occurrence witness.” Defendant cites Smith v. Central Illinois Public Service Co. (1988), 176 Ill. App. 3d 482, 493-95, 531 N.E.2d 51, 58-59, in which this court held that an employee engineer was not a retained expert who had to be disclosed pursuant to Rule 220 because (1) he was deposed and his status as expert was fully disclosed in the deposition and (2) he was intimately involved in the project long before any litigation was ever contemplated. Relying on Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 529 N.E.2d 525, this court noted that the surprise was that the employee testified as an expert, not that he testified at all, and yet determined that Rule 220 disclosure was not needed.

In Wakeford v. Rodehouse Restaurants of Missouri, Inc. (1992), 154 Ill. 2d 543, 610 N.E.2d 77, the Illinois Supreme Court reconsidered Tzystuck and referred to this court’s opinion in Smith. The appropriate test for determining if an expert witness has been “retained” as such has been restated thusly:

“[Tjhe question of whether a witness must be disclosed as an expert under Rule 220 depends on the expert’s relationship to the case. If the expert is intimately involved in the underlying facts giving rise to the litigation and he would reasonably be expected to form an opinion through that involvement, then disclosure is not required. In such a case, the opposing party is unlikely to be surprised by the testimony. On the other hand, where the expert’s contact with the case is slight, or where the opinion rendered is unrelated to the expert’s involvement in the case, then disclosure is required.” (Wakeford, 154 Ill. 2d at 549, 610 N.E.2d at 80.)

In the absence of an abuse of discretion, the trial court’s sanction for noncompliance with Rule 220 will not be overturned. Betts v. Manville Personal Injury Settlement Trust (1992), 225 Ill. App. 3d 882, 913, 588 N.E.2d 1193, 1213.

In this case, there was no abuse of discretion since the opinions held by Schoppet were not formulated exclusively as a result of his working for defendant on this project, but as a result of his working with a number of clients in the construction industry over a period of several years. Defendant also alludes to the fact that the trial court did not order a schedule of discovery and disclosure of experts. In Barth v. Reagan (1990), 139 Ill. 2d 399, 418, 564 N.E.2d 1196, 1205, the Illinois Supreme Court rejected the argument that there cannot be a Rule 220 violation without court-ordered discovery. Cases involving treating physicians are inapposite and are not precedent for this case. Moreover, if Rule 220 has any significance at all, it is important for the courts to discontinue the erosive process. See Chapman, Jaws XVI: The Exceptions That Ate Rule 220, 26 J: Marshall L. Rev. 189 (1992).

The next issue is whether' the trial, court erred by barring the opinion testimony of Walter J. Diestelhorst, owner and chief operating officer of defendant, for the failure of defendant to disclose that witness pursuant to Rule 220. Defendant did not include in its post-trial motion any allegation regarding the trial court’s rulings on plaintiff’s objection to Diestelhorst’s testimony. The failure to specify an objection to a trial court’s ruling in a post-trial motion waives that issue for purposes of appeal. (Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 349-50, 415 N.E.2d 337, 339-40.) In addition, defendant has only a three-sentence argument with regard to this issue and cites no legal authority in violation of Illinois Supreme Court Rule 341(e)(7) (134 Ill. 2d R. 341(e)(7)). Finally, defendant presumes the trial court ruled that Diestelhorst’s testimony was inadmissible based on Rule 220. However, this is not supported by the record.

When Diestelhorst testified that other contractors charge 15% to take care of overhead-, plaintiff’s attorney stated, “I have got to move to strike,” and the trial judge ruled, “The reference as to what other people charge and so forth, that evidence is stricken and should be disregarded by the jury.” Defendant did not ask for a clarification of the trial judge’s evidentiary ruling. Admissibility of evidence is a matter within the trial judge’s discretion, and the ruling of the trial court will not be overturned unless it is an abuse of discretirar. (Baird v. Adeli (1991), 214 Ill. App. 3d 47, 68, 573 N.E.2d 279, 292.) Even if defendant had properly preserved the issue for review, defendant has failed to demonstrate an abuse of discretion since the basis for the trial court’s ruling may well have been proper without reference to Rule 220.

The next issue is whether the trial court erred by allowing into evidence testimony concerning defendant’s contract with the State of Illinois and Macoupin County because any relevance it might have had was outweighed by its prejudicial impact on defendant. Neither party cites any legal authority in violation of Supreme Court Rules 341(e)(7) and (f). (134 Ill. 2d Rules 341(e)(7), (f).) Arguments without citation of authority are waived on appeal. (First National Bank v. Country Mutual Insurance Co. (1988), 175 Ill. App. 3d 860, 869, 530 N.E.2d 521, 527.) Since an appellant has the burden of persuasion on appeal, the failure to cite authority is more damaging to defendant in this case. In addition, the defendant’s argument is without merit.

At trial, defendant objected to evidence relating to defendant’s contract with IDOT and Macoupin County on the grounds that it was not material, not relevant, and prejudicial. A litigant is entitled to present evidence which is relevant and material to that party’s theories of the case. (Haffa v. Haffa (1969), 115 Ill. App. 2d 467, 474, 253 N.E.2d 507, 511.) Evidence offered to prove a proposition which is in issue or which is probative of a matter in issue is material. (Migliore v. County of Winnebago (1974), 24 Ill. App. 3d 799, 803, 321 N.E.2d 476, 480.) Offered evidence is considered relevant if it tends to prove a matter in controversy (Bullard v. Barnes (1984), 102 Ill. 2d 505, 519, 468 N.E.2d 1228, 1235) or, stated another way, renders a matter in issue more or less probable in light of logic and experience (Lebrecht v. Tuli (1985), 130 Ill. App. 3d 457, 473, 473 N.E.2d 1322, 1334). Materiality relates to the propriety of the proposition to be established, whereas relevancy relates to the propriety of the proof to establish that proposition. (M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §401.1, at 113 (4th ed. 1984).) However, evidence which is material and relevant may be so prejudicial that it may, nevertheless, be inadmissible. The contract of a party with a third person may be offered as evidence of the terms of a disputed contract between the parties if, in the trial court’s discretion, the probative value outweighs the risk of confusion and waste of time. Citizens National Bank v. Morman (1979), 78 Ill. App. 3d 1037, 1044, 398 N.E.2d 49, 55-56.

It was plaintiff’s theory in this trial that the difference between what defendant was charging the State and what defendant was to pay plaintiff on each pay item as provided in the two contracts constituted defendant’s compensation for overhead costs and that defendant was not entitled to charge an additional 10% to the actual labor cost to cover overhead. This proposition sought to be proved by plaintiff is material to the question of what plaintiff was entitled to recover under the subcontract of the parties, and the evidence of the State contract is relevant to the issue as it is probative of whether the parties’ subcontract allowed for defendant to charge plaintiff 10% of the labor costs for overhead. There was no abuse of discretion in admitting this evidence.

The fourth issue is whether the trial court improperly refused to give the jury the following instruction: “Contract language is to be given its clear meaning if clarity is present, but ambiguities or uncertainties are to be resolved against the party creating them.” This question also related to the arguable inclusion of a 10% charge for overhead in the “actual cost” for labor.

Defendant concedes that the determination of whether a written contract is ambiguous is a question of law (Lukas v. Lightfoot (1985), 131 Ill. App. 3d 566, 568, 476 N.E.2d 1, 2) and such a finding by the trial court may be reviewed independent of the trial court’s judgment. (Transcraft Corp. v. Anna Industrial Development Corp. (1991), 223 Ill. App. 3d 100, 103, 584 N.E.2d 1033, 1035.) It is defendant’s position that, although the words “actual cost” in the last paragraph of article 1 of the subcontract are clear and unambiguous on their face, there is a latent ambiguity.

“It is well settled under fllinois law that a contract is considered ambiguous when its terms can reasonably be interpreted in more than one way. (J.M. Beals Enterprises, Inc. v. Industrial Hard Chrome, Ltd. (1990), 194 Ill. App. 3d 744, 551 N.E.2d 340; In re Estate of Chaitlen (1989), 179 Ill. App. 3d 287, 534 N.E.2d 482; Lenzi v. Morkin (1983), 116 Ill. App. 3d 1014, 452 N.E.2d 667.) However, when the contract terms are clear and unambiguous, the intent of the parties must be discerned only from the language used in the contract itself. (Village of Grandview v. City of Springfield (1984), 122 Ill. App. 3d 794, 461 N.E.2d 1031.) Language in a contract is not rendered ambiguous simply because parties do not agree upon its meaning. (Reynolds v. Coleman (1988), 173 Ill. App. 3d 585, 527 N.E.2d 897.) When contract terms are clear and unambiguous, they must be given their ordinary and natural meaning. Susmano v. Associate Internists of Chicago, Ltd. (1981), 97 Ill. App. 3d 215, 422 N.E.2d 879.” (Continental Mobile Telephone Co. v. Chicago SMSA Limited Partnership (1992), 225 Ill. App. 3d 317, 322-23, 587 N.E.2d 1169, 1173.)

Courts should refrain from rewriting contracts under the guise of interpretation. Jewel Cos. v. Serfecz (1991), 220 Ill. App. 3d 543, 549, 581 N.E.2d 186, 190.

The instruction that defendant sought to be given was based on the general principle of law that ambiguous language in a contract is construed against the drafter of the language. (First National Bank, 175 Ill. App. 3d at 866, 530 N.E.2d at 525.) However, only if the contract language is determined by the trial court to be ambiguous is a question of fact as to what the parties to the contract actually intended raised for the jury. See Quake Construction, Inc. v. American Airlines, Inc. (1990), 141 Ill. 2d 281, 288-89, 565 N.E.2d 990, 994.

The subcontract was not ambiguous and, therefore, the trial court properly rejected defendant’s tendered instruction. In addition, although a party is entitled to have the jury instructed as to its theory of the case if the instruction is supported by evidence, the determination of whether to give an instruction and its form are matters within the discretion of the trial court. (Gaskin v. Goldwasser (1988), 166 Ill. App. 3d 996, 1009, 520 N.E.2d 1085, 1093.) In Chakos v. Illinois State Toll Highway Authority (1988), 169 Ill. App. 3d 1018, 1027, 524 N.E.2d 615, 621-22, the court stated:

“Instructions should concisely and comprehensively provide the jury with the issues, principles of law and necessary facts to support a verdict. (Grover v. Commonwealth Plaza Condominium Association (1979), 76 Ill. App. 3d 500, 508, 394 N.E.2d 1273; see Pappas v. Peoples Gas Light & Coke Co. (1953), 350 Ill. App. 541, 546, 113 N.E.2d 585.) Instructions as a whole and in series should be clear enough not to mislead while fairly and accurately stating the law. (Grover, 76 Ill. App. 3d at 508.) Supreme Court Rule 239(a) (107 Ill. 2d R. 239(a)), requires that non-IPI instructions be concise, impartial and free from argument. (Gordon v. Chicago Transit Authority (1984), 128 Ill. App. 3d 493, 501, 470 N.E.2d 1163.) An accurate instruction may not be used if misleading or argumentative. (Gordon, 128 Ill. App. 3d at 501.)”

In Reilly Tar & Chemical Corp. v. Lewis (1942), 326 Ill. App. 84, 95, 61 N.E.2d 290, 296, the court determined that it was misleading and confusing to give an instruction that a written agreement was to be construed against the party for whom or on whose behalf it was prepared and if it was ambiguous the jury was to adopt a construction “ ‘more favorable’ ” to the defendant. The instruction in Reilly Tar is an incorrect statement of the law.

The instruction in the case at bar does not identify precisely which language in the subcontract the jury is to consider, and it leaves an opportunity for the jury to find ambiguities, even though it is the function of the trial court to determine if an ambiguity exists. It would be improper for the instruction to authorize the jury to search the entire subcontract for possible ambiguities. The party “creating” the ambiguity might not be the drafter of the instrument. The rejection of this instruction was proper.

The fifth issue is whether plaintiff was not entitled to any interest under the subcontract between the parties because plaintiff prevented defendant from getting paid for the job by filing a mechanics’ lien. Defendant cites no case law, citing only section 23 of the Act. It is defendant’s contention that, since plaintiff filed a lien against project funds pursuant to this section of the Act, and D.C. Turner Construction Company (Turner) also filed a lien because of a dispute between plaintiff and Turner, funds which would have been available to defendant to pay plaintiff were properly withheld by the State and, therefore, plaintiff should not be entitled to interest under the subcontract as a matter of law. Defendant does not question the provision for interest in the contract.

There is nothing in section 23 of the Act which suggests plaintiff is not entitled to the contractual interest by reason of filing the lien and defendant has cited no cases which have reached that result. Defendant has failed to prove that the amount withheld by the State was more as a result of the notice of Turner’s lien than it would have been had only plaintiff filed a notice of lien. The fact Turner also filed a lien has no bearing on the outcome of this issue since plaintiff’s lien had not yet been removed before trial. Either lien would have prevented payment, and it could have been argued that had defendant paid plaintiff what plaintiff was rightfully owed, plaintiff could settle with Turner. Moreover, Turner’s lien had been removed, as a waiver of Turner’s lien was produced at trial. Therefore, it cannot be said that the defendant’s withholding of payment to plaintiff was the result of the dispute between plaintiff and Turner.

Moreover, while the subcontract referred to the final calculation of the State in establishing the method of calculating how much the defendant should pay plaintiff, there is no requirement in the subcontract that only the funds paid to defendant by the State for this project are available for defendant to pay plaintiff. Indeed, defendant bankrolled the project, and it is a reasonable inference that defendant had funds otherwise available to pay plaintiff in order to get the lien removed.

Interest is allowed in mechanics’ lien actions. McDonald v. J.W. Patterson & Co. (1900), 186 Ill. 381, 386, 57 N.E. 1027, 1029; Sorg v. Crandall (1908), 233 Ill. 79, 105, 84 N.E. 181, 192.

In this case, the defendant argues that the filing of the mechanics’ lien prohibits plaintiff, as a matter of law, from collecting interest under the subcontract. The McDonald and Sorg cases indicate that the law has long been otherwise.

The final issue is whether the evidence so overwhelmingly favored defendant that the trial court should not have allowed the verdict to stand or, in the alternative, whether the jury’s verdict was against the manifest weight of the evidence. Again, defendant cites no authority in violation of Rule 341(e)(7).

A judgment notwithstanding the verdict (judgment n.o.v.) may be entered only if “all of the. evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.)

“The court has no right to enter a judgment n.o.v. if there is any evidence, together with reasonable inferences to be drawn therefrom, demonstrating a substantial factual dispute, or where the assessment of credibility of the witnesses or the determination regarding conflicting evidence is decisive to the outcome. See Villa v. Crown Cork & Seal Co. (1990), 202 Ill. App. 3d 1082, 1087; Ziegert v. South Chicago Community Hospital (1981), 99 Ill. App. 3d 83, 91; Hirn v. Edgewater Hospital (1980), 86 Ill. App. 3d 939, 947.
Alternatively, ‘[o]n a motion for a new trial a court will weigh the evidence and set aside the verdict and order a new trial if the verdict is contrary to the manifest weight of the evidence.’ (Mizowek, 64 Ill. 2d at 310; accord Junker v. Ziegler (1986), 113 Ill. 2d 332, 339-40.) ‘A verdict is against the manifest weight of the evidence where the opposite conclusion is clearly evident or where the findings of the jury are unreasonable, arbitrary and not based upon any of the evidence.’ Villa, 202 Ill. App. 3d at 1089; accord Topp v. Logan (1990), 197 Ill. App. 3d 285, 298; Monier v. Winkler (1987), 158 Ill. App. 3d 724, 729.” Maple v. Gustafson (1992), 151 Ill. 2d 445, 454, 603 N.E.2d 508, 512-13.

Without restating the evidence, it is clear from a thorough review of the record that defendant was not entitled to a judgment n.o.v. It is also clear there was sufficient evidence in the record to support the jury’s verdict in favor of plaintiff.

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

Affirmed.

KNECHT, J., concurs.

PRESIDING JUSTICE STEIGMANN,

specially concurring:

Although I fully concur, I write separately to express my concern about the time and effort judges and lawyers continue to spend regarding Rule 220. I am fully aware of the goals the Supreme Court of Illinois had in mind when it promulgated Rule 220 — elimination of surprise, easier and more effective preparation for trial, better utilization of discovery procedures — but the volume of litigation Rule 220 has caused reveals that it has not achieved these goals.

I suggest that the time has come for the court to rethink this entire subject and to provide a rule regarding expert testimony which is clear, easy to understand, and easy to apply. The rule I propose has the attractiveness of being a “bright-line” rule: Before a party may elicit an expert opinion at trial from a witness that party has called to testify, that party must disclose in advance of trial (at whatever the supreme court determines that point to be) the existence of the expert witness and the nature of the testimony the expert witness will be expected to give. A party’s failure to so disclose, absent the most exigent circumstances, would prohibit that witness from providing any expert testimony.

The beauty of this rule is in its simplicity and ease of use. It would no longer matter (1) what the expert witness’ connection might be to the parties, (2) whether the expert witness had been retained “in anticipation of litigation or preparation for trial” (134 Ill. 2d R. 220(aX2)), or (3) whether the expert witness was a treating physician or an examining physician.

I further suggest that my proposed rule is consistent with “real world” experience: lawyers do not call expert witnesses to testify “on a hunch.” Instead, almost without exception a lawyer has talked to her expert witness well in advance of trial and knows precisely what expert opinion she wishes to elicit from that witness.

In my judgment, most of the problems associated with the application of Rule 220 arise from lawyers’ playing games with the rule by trying to utilize one of the rule’s exceptions so they can conceal their intent to elicit an expert opinion. To end the constant litigation and waste of resources caused by such conduct and to fulfill the original goals of the supreme court when it promulgated Rule 220, that rule should be amended to require absolute disclosure well in advance of trial of all witnesses who will be asked to render an expert opinion, without exception.

Only two classes of lawyers will be hurt if the supreme court adopted this proposed rule: (1) lawyers who through their “gamesmanship” attempt to withhold the identity of their experts until the last possible moment (sometimes even until the trial itself) to obtain a tactical advantage, and (2) lawyers too stupid to know that they need an expert witness for their case or too negligent to seek one out in a timely fashion. Neither of these classes is deserving of the supreme court’s protection or concern.