author: JUSTICE BILANDIC

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HERBERT BYERS, Defendant-Appellant.
    First District (2nd Division)
    Nos. 1—87—3895, 1—88—2156 cons.
    Opinion filed March 27, 1990, nunc pro tunc January 30, 1990.
    Michael J. Pelletier and Pamela Z. O’Shea, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and Margaret M. Regan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE BILANDIC

delivered the opinion of the court:

Defendant, Herbert Byers, pleaded guilty to the offense of armed robbery and was sentenced to nine years’ imprisonment. Defendant raises two issues on appeal: (1) whether the trial court erred by failing to treat his pro se pleadings as a motion to withdraw his guilty plea; and (2) whether the court erred in dismissing his pro se petition for post-conviction relief because the court failed to enter its order within 30 days after he filed the petition.

On October 30, 1987, defendant appeared before the court and asked that he be evaluated by TASC (Treatment Alternatives to Street Crimes). The court ordered a TASC evaluation, and the matter was continued to November 18. On that date the TASC evaluation was returned to the court, finding that although defendant was an addict, he was ineligible for treatment because of the violent nature of the offense pending against him and because defendant failed to exhibit a readiness for treatment. The following day defendant’s attorney informed the court that defendant would like a conference on the matter. The court then explained to defendant what would be involved in holding a conference. The court informed him of the charge against him and the possible sentences that could be imposed. The court asked defendant if he understood what had been explained to him and defendant replied, “yes.” The court told defendant that the State would present its case against defendant and that defendant’s attorney would offer whatever facts could possibly benefit defendant. When asked if he understood, defendant replied, “Yes sir.” Defendant was told that when the conference was over, his attorney would come out and discuss any offers that might have been made. The court then stated to defendant:

“I’ve told you what you’re charged with and what the possible penalties are. You know what we’re going to talk about and you understand you’re stuck with me as the Judge. Knowing all that, do you still authorize Mr. Cuda to participate in this conference with Miss Cessario from the State’s Attorney’s Office and myself?”

After defendant replied that he did authorize his attorney to participate in the conference, the trial court stated for the record its opinion that defendant had “knowingly, intelligently participated in the conference.” After the conference, defendant’s attorney stated that defendant was prepared to enter a plea of guilty to the charge of armed robbery. The court reiterated the charge and the minimum and maximum sentences that could be imposed and explained the rights that defendant was relinquishing by pleading guilty. Defendant indicated that he understood these matters and told the court that his guilty plea did not result from threats or coercion. • The court then stated for the record that in its opinion defendant knew and understood the nature of the proceedings and was exercising his own free will. After the stipulated factual basis was presented, the court again asked defendant if he still wished to plead guilty, and defendant replied, “yes.” The court then entered its finding that defendant knowingly and intelligently offered to plead guilty. After sentencing defendant, the court stated as follows:

“This [sic] now a final and appealable order. Before you can appeal you must first return back to this courtroom a petition to vacate convincing me in writing within the next 30 days that you were tricked or coerced into pleading guilty, or didn’t understand what you were doing.
If you can convince me of that I will set aside the plea of guilty and set the case down for trial as if the plea had never taken place. If you can’t convince me you were tricked or coerced into pleading guilty and didn’t understand what you were doing, you would have thirty days from the date that I deny your petition to vacate to file a notice of appeal. That notice of appeal must be in writing and it must be filed in the Clerk’s office in the other building in this complex. You have had the services of the public defender and some Judge has determined you are in fact indigent or without funds. If that condition persists, I will appoint the Public Defender to represent you on appeal and authorize a free transcript to be used by the Appellate Division of the Public Defender’s Office to represent you in any appeal or any other of those rights you have.”

On December 21, 1987, the clerk of the court received the following documents from defendant:

(1) A form entitled “Proof of Service” dated December 3, 1987, stating that defendant served a copy of the “Designation of the Trial Record” to the Cook County State’s Attorney, and that the original was mailed to Morgan Finley, clerk of the circuit court of Cook County. The form was sworn to and signed by defendant.
(2) A form entitled “Notice of Appeal” setting forth defendant’s name, address, attorney, offense, judgment, date and sentence.
(3) A form requesting trial court proceedings to be transcribed, stating the following under the general statement of issues proposed to be raised:
“A time cut from 9 yrs to 6 yrs since this is my [defendant’s] first charged [sic] for a violent crime, but due to other issues, case dismissed. That the Public Defender was incompetent because issues defendant brought to him in a letter, which he has in his files, was that my plea was not not guilty, but by reason of insanity. That this issue were never brought before the court. That my civil rights were violated. I wasn’t read my rights, and I have medical records proving I was injured which was done by arresting officers for no reason.”
(4) A form entitled “Docketing Statement,” listing defendant’s name and address.
(5) A form entitled “Motion to Proceed Informa Pauperis and Requests for Free Transcripts,” sworn to and signed by defendant.
(6) A form entitled “Designation of the Trial Record to be included in the Record on Appeal.”
(7) A form entitled “Motion for Appointment of Counsel on Appeal” requesting that the State Appellate Defender be appointed to represent defendant on appeal.

On January 15, 1988, the trial court denied defendant’s request for a free transcript, finding that there was no indication that defendant had any intention to file “post-conviction relief, post-trial relief or [was] going to use it for appeal.” When the order was entered, the court noted that no notice of appeal was filed and no post-conviction petition was in progress. However, we note at this point that the record does include a copy of a notice of appeal that was filed by defendant on December 21, 1987. On February 4, 1988, defendant filed a pro se petition for post-conviction relief claiming that his guilty plea was not knowingly, voluntarily or intelligently made, that he entered his plea because of ineffective assistance of counsel, that he told his attorney that he wanted to plead an insanity defense but his attorney never raised that issue in court and that he should not have been sentenced as a Class X offender. On May 17, 1988, it was brought to the court’s attention for the first time that defendant had filed a pro se petition for post-conviction relief. A hearing was held the next day, during which the court stated that it was within the 30-day period of time necessary to act pursuant to section 122 — 2.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 122—2.1). In denying defendant’s petition, the trial court found as follows:

“I’d like the record to indicate my notes indicate, half sheet indicates that I admonished the defendant in open Court after a conference had been held between the State and the defense. And during the admonition, the defendant indicated in open Court that he understood the nature of the charges, knew what the actual penalty was going to be. Indicated to me after I questioned him that he understood the nature of the charges. Understood that he was knowingly and intelligently giving up his right to a trial by jury or any other trial.
I recited to him all of the rights that he would be giving up. He indicated he understood that. He offered to plead guilty and I indicated on the record that I accepted his plea of guilty with the understanding that it appeared to me that he knowingly and intelligently had offered to plead guilty.
There is no specification other than the trial counsel encouraged him to enter a plea. Sometimes that is what trial counsel is required to do knowing the facts and circumstances of the case. If that is trial strategy on counsel’s part, it is certainly not ineffective assistance of counsel. And the defendant’s reliance upon the advice of counsel is not — is not grounds for overturning his guilty plea.
He also indicates here that he told counsel and wrote him a letter stating T want to plead insane.’ I’d like the record to indicate there’s never been any indication in this record by anyone, including the defendant’s attorney that there was anything wrong with the defendant’s sanity. He never brought that up before the Court personally. There was not one indication during any period of time that — many occasions that the defendant appeared before this Court, including during the taking of the plea that the defendant indicated in any way shape or form that there was anything wrong with his mental capacity, his understanding, his ability to communicate with counsel or effectively assist counsel in handling this case.”

The court further noted that official certified statements of conviction indicated that defendant was eligible to be sentenced as a Class X offender. Consequently, the court dismissed the petition, pursuant to section 122 — 2.1 of the Code, finding it to be frivolous and patently without merit. (Ill. Rev. Stat. 1987, ch. 38, par. 122—2.1.) It is from this order that defendant now appeals.

I

Defendant first contends that the trial court erred by failing to treat the various papers he filed pro se as a motion to withdraw his guilty plea pursuant to Supreme Court Rule 604(d) when it denied his request for free transcripts. (107 Ill. 2d R. 604.) We find that our disposition of this case requires us to examine the extent to which the requirements of Supreme Court Rule 604(d) were met. The rule provides, in part, as follows:

“No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to withdraw his plea of guilty and vacate the judgment. The motion shall be in writing and shall state the grounds therefor. When the motion is based on facts that do not appear of record it shall be supported by affidavit. The motion shall be presented promptly to the trial judge by whom the defendant was sentenced, and if that judge is then not sitting in the court in which the judgment was entered, then to the chief judge of the circuit, or to such other judge as the chief judge shall designate. The trial court shall then determine whether the defendant is represented by counsel, and if the defendant is indigent and desires counsel, the trial court shall appoint counsel.” (107 Ill. 2d R. 604(d).).

In People v. Wilk (1988), 124 Ill. 2d 93, 105, 529 N.E.2d 218, the supreme court held that a motion to withdraw a guilty plea and vacate the judgment is a condition precedent to an appeal. In so holding, the court referred back to a similar holding it had made in People v. Frey (1977), 67 Ill. 2d 77, 364 N.E.2d 46, and how cases subsequent to Frey reflected a general perception that a complete relaxation of Rule 604(d) was acceptable in this State, and that such was not the case. (People v. Wilk, 124 Ill. 2d at 103-04.) The court determined that the rules it adopted concerning criminal defendants and guilty pleas were rules of procedure and not suggestions, and that it was incumbent upon counsel and courts alike to follow them. (People v. Wilk, 124 Ill. 2d at 103.) Subsequently, in People v. Ledbetter (1988), 174 Ill. App. 3d 234, 236, 528 N.E.2d 375, the court stated that Rule 604(d) had several requirements and included strict guidelines for the courts and defendants to follow.

Defendant’s conduct in the present case is not unlike that of the defendant in People v. Creek (1983), 112 Ill. App. 3d 1081, 446 N.E.2d 555. In that case defendant entered a plea of guilty and was fully admonished by the court. Within 30 days from the entry of his plea defendant filed a pro se document entitled “Notice of Appeal,” which included a request for the appointment of counsel. Although the State Appellate Defender was appointed to represent defendant on appeal, the office was apparently never notified of the appointment. Approximately one month later defendant filed a motion to withdraw his guilty plea and a motion to proceed in forma pauperis. The following day the court appointed a local attorney. At a hearing on defendant’s motion, the court held that defendant’s pro se notice of appeal did not constitute a motion to withdraw his guilty plea within the meaning of Rule 604(d). In affirming the trial court’s action, the appellate court noted that although defendant was clearly advised by the trial court that the filing of a motion to withdraw his guilty plea and vacate the judgment was the initial procedural step necessary in order to obtain review of the judgment entered on his guilty plea, he nevertheless filed a pro se notice of appeal. The court concluded that the defendant provided no indication that he desired the appointment of counsel for any purpose other than the perfection of a direct appeal, and did not at any time indicate to his trial counsel that he desired to appeal the judgment entered upon his guilty plea in the manner prescribed by Rule 604(d). People v. Creek, 112 Ill. App. 3d at 1086.

Similarly, in the instant case, the trial court admonished defendant as to the steps necessary to appeal the judgment entered on his plea of guilty. In admonishing defendant, the court further advised defendant as to the procedure he would have to follow to appeal a decision to deny his motion to vacate the guilty plea. Despite the admonishments of the court, defendant elected to pursue his appeal of the judgment entered upon his guilty plea in a manner contrary to the requirements set forth in Rule 604(d). The documents which defendant claims satisfied the rule were filed after the 30-day period had expired, and pertained to a direct appeal, offering no indication that defendant’s efforts represented an attempt to withdraw his guilty plea. Although defendant was clearly advised by the trial court that the filing of the motion to withdraw his guilty plea and vacate the judgment was the initial procedural step necessary in order to obtain review of the judgment entered on his guilty plea, he filed a pro se notice of appeal. In view of the clear language contained in Rule 604(d) and the supreme court’s strict interpretation of that rule as set forth in People v. Wilk and People v. Frey, we find that the trial court did not err in failing to treat his pro se notice of appeal and other related documents as a motion to withdraw his guilty plea, and that portion of the trial court’s order is affirmed.

II

We next consider defendant’s claim that the trial court erred in summarily dismissing his pro se petition for post-conviction relief because the court failed to enter its order within 30 days after his petition was filed. Defendant’s petition was filed on February 4, 1988. The hearing on his petition was conducted on May 18, 1988, during which the trial court stated:

“I’d like the record to indicate although it [defendant’s petition] was file stamped here February 4th, it was given to me yesterday. First time I saw it yesterday, being 5-17-88. It is now 5-18-88. It is within the thirty days. It is well within any period of time necessary that I can act on this pursuant to Section 122 — 1.”

The statute pursuant to which the trial court summarily dismissed defendant’s petition provides as follows:

“Within 30 days after the filing and docketing of each petition, the court shall examine such petition and enter an order thereon pursuant to this Section.” (Ill. Rev. Stat. 1987, ch. 38, par. 122—2.1(a).)

Defendant contends that the 30-day period begins to run when the petition is filed, and the State contends that the period begins to run when the petition is docketed on the trial court’s call and not when it is filed with the clerk of the court. In People v. Porter (1988), 122 Ill. 2d 64, 86, 521 N.E.2d 1158, the supreme court held that the 30-day rule was mandatory and not merely directory, and that a trial court’s noncompliance with the rule rendered the summary dismissal of a petition void. Subsequent cases that have applied the holding in Porter have determined a court’s compliance with this rule based on the date on which the petition was filed, giving no mention as to when the petition was docketed. (See People v. Phillips (1989), 183 Ill. App. 3d 417, 539 N.E.2d 804; People v. Jackson (1988), 176 Ill. App. 3d 15, 530 N.E.2d 993; People v. Bostic (1988), 173 Ill. App. 3d 428, 527 N.E.2d 1109; People v. Bonilla (1988), 170 Ill. App. 3d 26, 523 N.E.2d 258.) However, defendant’s characterization of the filing and docketing referred to in the statute as ministerial acts performed by the clerk upon receipt of the petition would explain those above-cited cases’ reliance on the filing date to determine whether the 30-day rule had been satisfied. It would also explain the seemingly inconsistent statements in People v. Phillips (1989), 183 Ill. App. 3d 417, 539 N.E.2d 804, that the trial court could, on its own motion, dismiss the petition within 30 days of filing, and that no summary dismissal could be entered after 30 days of the petition being docketed by the clerk. Following this line of cases, w.e conclude that the trial court’s failure to dismiss the petition within 30 days of filing renders the summary dismissal void. Consequently, the trial court’s dismissal of defendant’s pro se post-conviction petition is vacated and the cause remanded for further consideration in accordance with sections 122 — 4 through 122 — 6 of the Post-Conviction Hearing Act.

Affirmed in part; vacated in part and the cause remanded.

DiVITO, P.J., and SCARIANO, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
      In re DARNELL J. et al., Minors (Darnell J. et al., Minors, by their Next Friend Patrick T. Murphy, Public Guardian of Cook County, Respondents-Appellants, v. The People of the State of Illinois, Petitioner-Appellee (The Department of Children and Family Services, Appellee)).
    First District (2nd Division)
    Nos. 1—89—1717 through 1—89—1719 cons.
    Opinion filed March 27, 1990.

      Patrick T. Murphy, Public Guardian, of Chicago (Yvonne Holte and Susan T. Pierce, of counsel), for appellants.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Veryl L. Gambino, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE BILANDIC

delivered the opinion of the court:

Petitioner brought the cases of Darnell, Danyelle and Dana J. before the juvenile court. The petitions alleged that their necessary care was neglected and that Darnell had been physically abused. The trial court appointed Patrick T. Murphy, public guardian, as the guardian ad litem for each of the minor respondents. The court also appointed Patrick T. Murphy as the attorney for the guardian ad litem. Murphy accepted both appointments and immediately moved for a change of venue from the appointing judge. The written verified petition for a change of venue alleges that the respondents fear that they will not receive a fair trial because “the judge is prejudiced against the minor’s attorney.” It also alleges that this is the first request for a change of venue and that the trial court has not ruled on any substantive issue. It is undisputed that the petition for change of venue meets the technical requirements of section 2 — 1001 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—1001).

In addition to the three cases mentioned above, the trial court had before it 52 other abuse and neglect cases where Patrick T. Murphy was similarly appointed guardian ad litem and attorney and made the same motion for change of venue. In one of the cases, in response to the court’s inquiry, Mr. Murphy said he intended to make the same motion in all subsequent cases before the judge.

“MR. MURPHY: We accept appointment, judge, and move for a change of venue.
THE COURT: Let me ask you, counsel, do you anticipate moving for a change of venue in every case to which you are appointed?
MR. MURPHY: That’s correct.”

After considering the legal memoranda and hearing arguments of counsel, the trial court denied the change of venue. The court concluded that, although abuse and neglect cases are civil in nature, section 2 — 1001 does not require a change of venue but leaves it to the discretion of the court. Because the granting of a change in 55 cases would disrupt the smooth operation of the juvenile court, the trial court exercised its discretion and denied the change of venue in each case.

On November 28, 1988, the trial court granted temporary custody of the children to the Department of Children and Family Services (DCFS). On December 1, 1988, the Illinois Supreme Court denied the public guardian leave to file a writ of mandamus action. (People ex rel. Baby Boy W. v. Costa (December 1, 1988) No. 67751.) After trial on May 3, 1989, the court made a finding that all three children had been neglected and that Darnell had been physically abused. After a dispositional hearing and the presentation of a social investigation by the DCFS on June 7, 1989, the children were made wards of the court and were placed under the guardianship of Betty Scott — their maternal grandmother. This appeal followed.

The issue presented is whether the trial court was required to grant the change of venue when the respondent complied with the requirements of section 2 — 1001 of the Code of Civil Procedure.

A change from one judge to another judge of the same court is often referred to as a change of venue. (Black’s Law Dictionary 210 (5th ed. 1979).) Although the phrase has other definitions, that is the context in which it is used in this opinion.

It is well settled under Illinois law that a party who “properly files” a motion for a change of venue is entitled to a substitution of judges. The judge before whom the motion is made has “no discretion” to deny the motion. (County of Du Page v. E & E Hauling, Inc. (1977), 67 Ill. 2d 390, 368 N.E.2d 110; In re Marriage of Betts (1987), 155 Ill. App. 3d 85, 95-96, 507 N.E.2d 912, appeal denied (1987), 116 Ill. 2d 556.) It is undisputed that the motions for change of venue at issue were sufficient and timely. Counsel for respondents filed the motions immediately after his appointment, before any orders of substance were made. The motions were in writing and accompanied by affidavits.

The Illinois Code of Civil Procedure applies to juvenile proceedings when the child’s liberty is not at issue and when no other section specifically regulates the procedure at issue. (Ill. Ann. Stat., ch. 110, par. 1 — 108, Historical and Practice Notes, at 38-39 (SmithHurd 1983).) The Juvenile Court Act does nothing to preempt the Code’s change of venue provisions. Since abuse and neglect proceedings do not involve the minor’s liberty, the Code of Civil Procedure applies. Dependency, neglect and abuse proceedings are “appropriately *** labelled ‘civil’ proceedings both in the legal and lay sense of the word.” In re Urbasek (1967), 38 Ill. 2d 535, 543, 232 N.E.2d 716. See In re Christenberry (1979), 69 Ill. App. 3d 565, 567, 387 N.E.2d 923 (civil rules apply to post-trial motions); In re Harpman (1985), 134 Ill. App. 3d 393, 396, 480 N.E.2d 873 (civil rules apply to pleading standards); People v. Davis (1973), 11 Ill. App. 3d 775, 778-79, 298 N.E.2d 350 (civil rules apply to testimony of adverse witnesses).

The right to a change of venue is absolute when any civil litigant seeks it. (County of Du Page v. E & E Hauling, Inc. (1977), 67 Ill. 2d 390, 368 N.E.2d 110.) However, petitioner contends that an exception to this absolute right exists where the conduct of the person seeking the change disrupts the smooth operation of the courts. It argues that the substantial number of cases presently involved and the potential for additional future cases to be similarly affected require this court to affirm the trial court’s denial of the motion for change of venue.

The three cases cited by the State to support its argument that the change of venue statute does not apply if the smooth functioning of the judiciary would somehow be affected are distinguishable. The State cites City of Chicago v. Marquardt (1961), 30 Ill. App. 2d 108, 173 N.E.2d 825, for the proposition that a change of venue may not be used to avoid adverse rulings. However, in Marquardt, the petitioner filed a motion for a change of venue which named 26 out of a possible 36 judges as being prejudiced against the litigant, without specifying the grounds for the prejudice. Under these circumstances, the appellate court held that the change of venue was not filed in good faith. (30 Ill. App. 2d at 111-12.) Only one judge is involved in the case sub judice.

The State cites In re Marriage of Passiales (1986), 144 Ill. App. 3d 629, 494 N.E.2d 541, for the proposition that the change of venue statute may not be used to “judge-shop.” However, the State neglects to point out that, in that case, the motion for change of venue was filed after the judge had ruled on a substantive issue by granting a section 72 (now Code section 2 — 1401) petition. In fact, in Passiales, the appellate court affirmed that “a change of venue is absolute if a request is filed before the judge has ruled on any substantive issue.” (144 Ill. App. 3d at 637.) At bar, no substantive action was taken before the denial of the motion for change of venue.

Lastly, the State cites People v. Williams (1988), 124 Ill. 2d 300, 529 N.E.2d 558, for the proposition that abuses by government lawyers in seeking changes of venue will not be tolerated by the courts. In Williams, the supreme court referred to motions for substitution made solely for the purpose of delaying or avoiding trial, and the court pointed out that if such abuses occur, the courts or legislature will deal with them when and where they arise. (124 Ill. 2d at 309.) In the matter at hand, there was no attempt to delay or avoid trial.

Pursuant to enabling State legislation (Ill. Rev. St at. 1987, ch. llO1^, par. 13 — 1.1), the chief judge of the circuit court of Cook County appointed Patrick T. Murphy as public guardian. The same chief judge also administers the operation of the juvenile division of the circuit court of Cook County. If Mr. Murphy’s conduct disrupts the smooth operation of the court, that matter can be dealt with swiftly and effectively because the public guardian serves “at the pleasure of the chief judge.” (Ill. Rev. Stat. 1987, ch. llO1^, par. 13 — 1.1.) It is not necessary to carve out an exception to the well-established change of venue statute or existing case law.

We therefore conclude that section 2 — 1001 applies to civil cases in the juvenile court. Abuse and neglect cases are civil in both the legal and lay sense of the word. (In re Urbasek (1967), 38 Ill. 2d 535, 232 N.E.2d 716.) The trial court, under the facts of this case, had no discretion to deny the change of venue.

• 6 After improperly denying the motions, the trial - court had no jurisdiction to enter the subsequent orders. These orders are void. Johnson v. Johnson (1975), 34 Ill. App. 3d 356, 340 N.E.2d 68; In re Estates of Rice (1979), 77 Ill. App. 3d 641, 396 N.E.2d 298; City of Peoria v. Peoria Rental, Inc. (1978), 61 Ill. App. 3d 1, 377 N.E.2d 546.

Accordingly, the judgment of the circuit court of Cook County is reversed and this cause is remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

DiVITO, P.J., and SCARIANO, J., concur.


author: JUSTICE FREEMAN

text:
    FORD MOTOR CREDIT COMPANY, Plaintiff-Appellee, v. BETSY NEISER, Defendant-Appellant.
    First District (3rd Division)
    No. 1—88—1606
    Opinion filed March 28, 1990.

      Lindner, Seers & Reuland, RC., of Chicago (Nancy M. Rundin, of counsel), for appellant.
    DeHaan & Richter, P.C., of Chicago (David L. Kazan, of counsel), for appellee.
   JUSTICE FREEMAN

delivered the opinion of the court:

Defendant, Betsy Neiser, appeals from the trial court’s order entering summary judgment (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1005) in favor of plaintiff, Ford Motor Credit Company (FMCC). On appeal, defendant contends that there were genuine issues of material fact which precluded the trial court from entering the judgment in FMCC’s favor.

On April 29, 1985, defendant entered into a motor vehicle retail installment contract for the purchase of a 1985 Ford Escort. (Ill. Rev. Stat. 1985, ch. 121V2, par. 561 et seq.) Under the terms of the contract, defendant was to pay the purchase price of the car in 60 monthly installments of $194.51, commencing on May 29, 1985, and continuing thereafter on the 26th day of each month. The contract contained the following provisions:

“D. Vehicle Insurance: You must insure yourself and Creditor against loss or damage to the vehicle. The type and amount of insurance must be approved by the creditor. The creditor may buy the insurance if you do not but he does not have to do so. If the Creditor buys the insurance, he may insure only himself or both you and himself. In either case, you must pay back to the Creditor what he pays for the insurance plus interest at the highest rate allowed by law.”

Additionally, the contract provided that failure of the debtor to make any payment when due rendered the debtor in default, giving the creditor the right to repossess the vehicle.

In February 1986, defendant moved to Massachusetts. In July 1986, she and her father, Fred Neiser (Neiser), entered into a voluntary lease agreement for the car. According to defendant, Neiser agreed and continued to make the payments on the car from July 1986 through January 1987. Neiser brought the car from Massachusetts back to Illinois.

On or about April 23, 1986, FMCC received notification from defendant’s car insurer that her insurance coverage was terminated. According to FMCC, it subsequently purchased single interest insurance on the vehicle and notified defendant of the resulting increase in her monthly payments.

On March 4, 1987, FMCC repossessed defendant’s car. Defendant submitted an “Affidavit of Defense,” and FMCC sought a declaration from the court that it was entitled to possession. In its fourth amended complaint, FMCC alleged that defendant was in default under the terms of the retail installment contract for her failure to make required payments.

In her affidavit in opposition to FMCC’s motion for summary judgment, defendant asserted that in the summer of 1986 she began to receive notices from FMCC that she was behind in her payments; however, whenever she contacted FMCC, she was told that there was no problem and that she was current in her payments. In September 1986, defendant received a telephone call from Art Felix, a customer services representative at FMCC. Felix told her that she was behind in her payments.

Defendant denied that FMCC ever gave her notice of the amount of her unpaid payments or that her payments' were deficient. Further, she stated that she did not learn of a problem with insurance coverage until January 1987, when, by that time, the car was insured. Additionally, defendant stated that she never received a certificate or policy for the insurance which FMCC had allegedly purchased.

Fred Neiser also submitted an affidavit. He corroborated defendant’s statement concerning the voluntary lease agreement. In December 1986, Neiser applied for insurance coverage on the car and sent a copy of that application, which he claims was proof of binding insurance, to FMCG. Neiser further stated that, until he saw a copy of a letter from FMCG to defendant in February 1987, he was unaware of any money due to FMCG for its purchase of insurance coverage.

At the hearing on FMCC’s motion for summary judgment, defendant admitted that she had failed to secure the requisite insurance for a period of several months. The trial court found that defendant’s failure to make the increased payment, which resulted from FMCC’s purchase of the insurance, constituted a breach of the contract, which entitled FMCG to possession. We affirm.

As a preliminary matter, FMCG, asserts that the second supplemental record on appeal was filed without notice to them and that depositions contained therein were not filed with the clerk of the court. Further, FMCG claims that defendant made no effort to comply with the requirements of the supreme court rules for the signing or filing of the depositions. Therefore, FMCG maintains that the depositions were not part of the record below and cannot be considered for purposes of this appeal. Defendant disputes this claim.

First, regarding the supplemental record, defendant motioned this court and was granted leave to file the supplemental record. Notice of the order was mailed to FMCC’s attorneys July 10, 1989. Second, Supreme Court Rule 207 prescribes the procedure for signing and filing depositions. (107 Ill. 2d R. 207.) The deposition must either be signed by the deponent or contain a waiver of signature. Further, the deposition must be certified, sealed and filed with the clerk of the court. Absent an attempt to comply with the rules, the deposition is informal and insufficient. Urban v. Village of Inverness (1988), 176 Ill. App. 3d 1, 6, 530 N.E.2d 976.

Our review of the record reveals that a notice of filing of the depositions of Kathy Haskins, Art Felix, Steve Neil, and Gina Ginocchio, dated April 12, 1988, is included therein. With the exception of Ginocchio’s deposition, the others either contain a waiver of signature or a statement that the signature has been reserved by agreement of the parties. FMCG has not alleged prejudice, nor was any shown as a result of the absence of Ginocchio’s signature. More importantly, FMCG does not allege that the deposition inaccurately reported the deponent’s responses. Other than the missing signature or statement of waiver, FMCG does not argue that the deposition was, in any way, defective. Thus, any error by the trial court in its consideration of the deposition was harmless, and we will not exclude any necessary consideration of it for purposes of our review. See Cowan v. Wheeler (1979), 76 Ill. App. 3d 259, 264, 395 N.E.2d 32.

Summary judgment is properly granted only where the pleadings, exhibits, depositions, admissions and affidavits on file show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1985, ch. 110, par. 2—1005; Farmers Automobile Insurance Association v. Hamilton (1975), 31 Ill. App. 3d 730, 732, 335 N.E.2d 178, aff’d (1976), 64 Ill. 2d 138, 355 N.E.2d 1.) It is a drastic measure and should therefore be granted only when the right of the moving party is clear and free from doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867.) In determining whether a trial court properly granted summary judgment, a court of review must consider all grounds urged and facts revealed in the record to determine if a genuine issue of material fact exists and, if none does, whether the moving party was entitled to summary judgment as a matter of law. (Schwaner v. Belvidere Medical Building Partnership (1987), 155 Ill. App. 3d 976, 983, 508 N.E.2d 522.) Where the reviewing court determines that there is a genuine issue of material fact, an ordér entering summary judgment will be reversed. Bellmer v. Charter Security Life Insurance Co. (1986), 140 Ill. App. 3d 752, 754, 488 N.E.2d 1338.

Defendant’s first contention on appeal is that FMCG was not entitled to possession of the car because it violated provisions in the Motor Vehicle Retail Installment Sales Act (MVRISA) (Ill. Rev. Stat. 1985, ch. 1211/2, par. 561 et seq.). Specifically, defendant argues that MVRISA provides that upon the buyer’s written request, the holder of a retail installment contract must give the buyer a written statement of the amounts of payments and the total unpaid under the contract. (Ill. Rev. Stat. 1985, ch. 1211/2, par. 575.) Neiser made several requests to FMCG for an accounting; however, none was provided to either him or to defendant. Thus, defendant argues, FMCC’s noncompliance with the statutory provisions was a violation of public policy which negated its entitlement to possession of the car.

Defendant’s argument is not persuasive. While we agree that FMCG was obligated to provide such a statement upon a request from defendant, we find no provision in the statute which would obligate it to provide a statement to Neiser, who was not a party to the contract. Further, even if Neiser were entitled to the statements, there is no provision in the statute which would deny FMCG its remedy of repossession of the car for such a violation. The statute is clear. A violation of its provisions will result in the denial of any recovery of any finance charge, any delinquency or collection charge or refinance charge in connection with the retail installment contract. Ill. Rev. Stat. 1985, ch. 1211/2, par. 584.

In Anco Investment Corp. v. Spencer (1971), 1 Ill. App. 3d 445, 275 N.E.2d 263, aff'd (1973), 53 Ill. 2d 396, 292 N.E.2d 726, plaintiff violated certain portions of the Retail Installment Sales Act in that his retail installment contract did not comply with certain provisions required by the Act. The issue presented on appeal was whether the contract was totally unenforceable or was merely subject to the penalties established under the Act. The court held that the plaintiff’s failure to comply with the requirements under the Act did not render the contract unenforceable. The exclusive remedy for the noncompliance was the imposition of the statutory penalties. Likewise, in this case, the only remedies for a violation of the statute are those set out therein; FMCC’s alleged noncompliance does not deprive it of its remedy of repossession.

In her reply brief and at oral argument, defendant argued that even if FMCC’s right to repossess could not be denied due to its violations of MVRISA, such a penalty could be imposed under the Consumer Fraud and Deceptive Business Practices Act (the Act) (Ill. Rev. Stat. 1987, ch. 1211/2, par. 261 et seq.). She argues that the Act and MVRISA are in pari materia and should be construed together.

Pursuant to the Act, three or more violations of MVRISA may constitute a violation of the Act. (Ill. Rev. Stat. 1985, ch. 1211/2, par. 262E.) At oral argument, defendant stated that FMCG had committed more than three violations of the Act and it should, therefore, not be permitted its remedy of repossession. The violations to which defendant refers are FMCC’s failure to accept proof of insurance and its failure to comply with requests from Neiser for statements of the account.

Contrary to defendant’s statement at oral argument, we find no indication, from the record, that a violation of the Act was either alleged in the pleadings or otherwise presented to the trial court. While it is true that defendant raised below the issues of nonacceptance of proof of insurance and the failure to provide a statement of account, she never once complained that this conduct violated the Act. Her sole argument below was that FMCC had violated MVRISA. The alleged violation of the Act appears to have been an afterthought, raised for the first time in her reply brief. The mere fact that the two statutes here may be construed in pari materia does not negate the necessity of proper pleading. Defendant cannot be heard to complain that the trial court failed to consider an issue which was never before it.

We necessarily conclude that issues not raised in the trial court are waived for purposes of appellate review, even in appeal from summary judgment. (R.J.N. Corp. v. Connelly Food Products, Inc. (1988), 175 Ill. App. 3d 655, 529 N.E.2d 1184.) Moreover, issues not raised in the initial brief cannot be raised in the reply brief. (107 Ill. 2d R. 341(e); In re Liquidations of Reserve Insurance Co. (1988), 122 Ill. 2d 555, 524 N.E.2d 538.) Defendant was not precluded from properly presenting this issue below. Having failed to do so, we decline to consider it.

Defendant’s second contention on appeal is that FMCG was not entitled to summary judgment because there were questions of fact which existed as to its right to possession of the car. She asserts several arguments in support thereof.

Defendant first argues that there was á question of fact as to the number of payments made under the terms of the contract. The record reveals that, at the hearing, the trial court noted that a breach of the contract could result either from nonpayment or from the failure to maintain insurance coverage. The court agreed with defendant that while a question of fact existed concerning the number of payments which she had made under the terms of the original contract, there was no question that defendant had not secured the requisite insurance.

Defendant next argues that a question of fact existed as to whether FMCG actually purchased insurance. As a threshold argument, she asserts that the affidavits of Kathy Haskins, presented to prove the purchase, were not competent evidence. Since Haskins worked in the customer service department of FMCG, and not in the insurance department, she had no personal knowledge of the claimed insurance purchase and therefore could not testify to that fact. We disagree.

There is a modern trend to be more liberal in deciding the admissibility of business records. This trend is necessitated by the fact that businesses have become more complicated and transactions have been broken down into various operations so that no particular person can identify any particular operation. (Agrico Chemical Corp. v. Forreston Fertilizer Co. (1975), 32 Ill. App. 3d 986, 989-90, 337 N.E.2d 76.) In Atlee Electric Co. v. Johnson Construction Co. (1973), 14 Ill. App. 3d 716, 303 N.E.2d 192, the court allowed records to be introduced even though they were typed by one department from material developed in another department and no specific witness could identify the entries as being connected with the particular transaction in question, from his personal knowledge. The records were admitted as falling within the limits of Rule 236, since they were made in the regular course of business according to the established practice of the business. Atlee, 14 Ill. App. 3d at 723.

According to testimony in Haskins’ deposition, she was then employed by FMCG as a dealer account representative. Previously, she had held the positions of customer service supervisor and customer service representative. During the time that she was a customer service supervisor, she became familiar with defendant’s account. Haskins stated that the records of defendant’s account were kept in the ordinary course of business by FMCG. She further testified that: (1) FMCG placed insurance on defendant’s vehicle, resulting in an increased monthly payment amount; (2) notice of the increase was sent to defendant; and (3) defendant was in default as a result of her failure to pay the increased amount.

We agree with the reasoning in Atlee. Even though Haskins did not work in the insurance department, she had been a long-time employee of FMCG with knowledge of its operating procedures. We believe that she could properly testify concerning facts contained in FMCC’s business records, which included information concerning its purchase of insurance.

Having determined that Haskins could testify concerning FMCC’s business records, we next address defendant’s argument that the fact that FMCC’s file contained an insurance policy from the insurance company was not sufficient evidence of its purchase. Defendant correctly argues that evidence which is not admissible at trial is inadmissible in a ruling on a motion for summary judgment. She maintains, relying on Pell v. Victor J. Andrew High School (1984), 123 Ill. App. 3d 423, 462 N.E.2d 858, that because the insurance policy was prepared by another company, it was inadmissible as a FMCG business record.

In Pell, a products liability case, the trial court determined that a letter concerning the safety rules of the product, which was maintained in the defendant’s files, had actually been generated by the manufacturer of the product. The court stated that as to the manufacturer, the letter was a business record. However, as to the defendant, the letter was inadmissible hearsay. The court held that merely because a document is retained in the files of a business does not qualify it as a business record if it was not generated by the business. 123 Ill. App. 3d at 434.

Pell is of no assistance to defendant. By her argument, she suggests that since the policy did not qualify as a FMCG business record, it could not then qualify as proof of purchase of insurance. Generally, proof of payment is made by the possession and presentation of a receipt. (See Mendelson v. Flaxman (1975), 32 Ill. App. 3d 644, 648, 336 N.E.2d 316; Connelly v. Sullivan (1905), 119 Ill. App. 469.) Receipts are not generated by purchasers, but by sellers. While, under Pell, a purchaser’s offer of his receipt into evidence would not be admissible as the purchaser’s business record, it does not follow that it would be excluded as competent evidence to prove payment.

At the hearing on the motion, defendant argued that FMCG failed to present a check or other competent evidence to prove payment. While the cancelled check might possibly have provided proof of payment, it was not the only manner by which payment could be proved. Payment may be proved by circumstantial evidence or by proof of facts and circumstances from which the inference of payment may be drawn. 70 C.J.S. Payment §89 (1987).

Here, FMCG presented several exhibits along with the affidavit of Haskins. One document was the insurance policy, No. PLM 14 64 35 (referred to by defendant as the notice of coverage), issued by American Security Insurance. On the face of the policy were the names of the debtor and creditor, the period of coverage of insurance (April 23, 1986 to April 29, 1990), the date the insurance was placed (July 3, 1986), and the premium amount.

Another document presented was a copy of a draft from American Security to FMCG evidencing a refund of $1,500.

According to Haskins, once defendant insured her car, American Security refunded to FMCG the unearned premium amount. Defendant was named on the refund draft as the debtor.

We believe that the insurance policy, issued by American Security, along with Haskins’ testimony that FMCG purchased the insurance, was competent evidence to prove FMCC’s purchase of insurance. This evidence was bolstered by the presentation of a copy of the refund check. American Security’s issuance of an insurance policy and its subsequent refund to FMCG of the unearned premium amount would be acts inconsistent with the existence of FMCC’s indebtedness to them for insurance coverage. We conclude that the court had before it sufficient evidence of FMCC’s purchase. Compare Saunders v. Wilson (1969), 114 Ill. App. 2d 380, 253 N.E.2d 89 (plaintiff’s offer of unreceipted repair bill and his uncontroverted testimony under oath that bill was paid were sufficient for admission of bill into evidence as proof of damages to be reimbursed to plaintiff by defendant).

Defendant next argues that a question of fact existed as to FMCC’s claim that she failed to provide it with proof of insurance coverage. Fred Neiser provided FMCG with an application of insuranee on December 12, 1986. According to defendant, the application was proof of binding insurance coverage. She argues that since proof of coverage was given to FMCG prior to the date of repossession and since the coverage was in force on the date of repossession, FMCG was not entitled to repossess the car.

Defendant cannot prevail on this argument. There is no question that from April 1986 until December 1986, defendant provided no insurance on the car. The result was the additional cost chargeable to her for insurance purchased by FMCG. The fact that she, or her father, secured insurance in December, and subsequently provided proof to FMCG, did not remedy the problem of the accrued debt for the insurance coverage paid for by FMCG.

Defendant also raises notice of the increased payments as an issue. She argues that she never received a coupon book notifying her of an increased payment amount. A letter from FMCG, dated July 15, 1986, and addressed to defendant, stated that as a result of defendant’s failure to provide FMCG with evidence of required insurance, the premium amount and finance charges for FMCC’s purchase thereof had been added to her account and that, accordingly, her monthly payment amount had been increased. The letter stated the increased monthly payment amount, that a new coupon book, reflecting the new monthly payment amount, would be sent to defendant, and that the new payments were to begin effective August 29, 1986.

According to Haskins, once FMCG purchases insurance, a notation is made on a computerized statement, and within one to two weeks of notice to the customer of a change in payment, a new coupon book is automatically issued. Coupon books are issued for the convenience of the customer and serve as a means by which FMCG may properly account for payments made. Defendant does not deny that she received the notice of the payment change; she argues only that she never received a new coupon book.

Since defendant did not deny receipt of the letter, there was no issue of fact concerning her receipt of notice of the increased payment. Nonreceipt of the new coupon book did not excuse payment. Had FMCG relied on the coupon book as the means by which it notified its customers of a change in payment, then another result would be warranted.

Further, there is no indication in the record that defendant notified FMCG that she did not receive the new coupon book. Absent notice from her, FMCG would have no way of knowing that she did not receive it. Since defendant knew that she was to receive a new book, it would have been reasonable for her to notify FMCG when, after a period of time, she had not yet received it.

Defendant next argues that a question of fact existed as to whether FMCG was adequately disclosed as the creditor. By her argument, defendant asserts that FMCG violated provisions in the Truth in Lending Act (15 U.S.C. §1601 et seq. (1988)). She points to the facts that (1) her copy of the contract did not contain the signature of the seller; (2) the assignment section was without a signature; and (3) contrary to the statement on the face of the contract which indicated that the assignment provisions were on the reverse side, no such provisions appeared on her contract.

In LaGrange Bank & Trust Co. v. Rodriguez (1985), 137 Ill. App. 3d 1009, 485 N.E.2d 394, a case upon which defendant relies, the defendants alleged that the plaintiff bank had violated the Federal Truth in Lending Act (15 U.S.C. §1601 et seq. (1988)) because it failed to adequately disclose to them its status as creditor on the retail installment contract. The contract set forth the bank’s name and address in the upper left corner of the front side of the contract and designated defendants as “Buyers” and LaGrange Dodge, Inc., as “Seller.” There was no designation of the bank’s status as either creditor or assignee. Although a provision on the reverse side of the contract authorized assignment by the “Seller,” the assignment portion of the contract was blank. (137 Ill. App. 3d at 1016.) On appeal from a grant of summary judgment for the bank, the court stated that the deficiencies on the contract did not eliminate all genuine issues as to material facts. The court concluded that whether the bank’s status as a creditor was sufficiently disclosed was a question of fact not susceptible to summary judgment. 137 Ill. App. 3d at 1016.

LaGrange is inapposite. Here, FMCC is clearly disclosed on the face of the contract as the assignee. The retail installment contract, signed by defendant, stated on the face of the contract that the seller assigns the contract to Ford Motor Credit Company under the assignment on the back of the contract. Furthermore, in Ford Motor Credit Co. v. Cenance (1981), 452 U.S. 155, 68 L. Ed. 2d 744, 101 S. Ct. 2239, the Supreme Court held that the legend which appeared on the retail installment contract which stated, “[t]he foregoing contract hereby is accepted by the Seller and assigned to Ford Motor Credit Company in accordance with the terms of the Assignment set forth on the reverse side hereof,” was sufficient notification of Ford Motor Credit Company’s creditor status. Here, defendant’s claim that her copy of the contract did not contain the terms of the assignment on the reverse side does not negate notice of the assignment and identification of FMCC as the creditor.

Additionally, our review of that portion of the contract which provided an explanation of the terms of the assignment reveals that no signature was required. Also, Packey Webb Ford is designated as the seller; however, no handwritten signature of its agent appears on defendant’s copy of the contract. Despite this omission, we find no question of fact existed as to the adequacy of disclosure of FMCC as the creditor. Further, we note that the contract contains, in bold black lettering above the space provided for defendant’s signature, that the buyer acknowledges receipt of a true and completely filled in copy of the contract at the time of signing. By her signature, defendant acknowledged that her copy of the contract was complete.

Defendant urges three other arguments in support of her contention that FMCC was not entitled to summary judgment. She argues that questions of fact existed as to (1) FMCC’s contention that a reason for the repossession was that she was not in possession of the car; (2) FMCC’s true motives for repossessing the car; and (3) that the existence of a question of fact as to the reasons for the repossession was evident from FMCC’s pleadings.

It is undisputed that defendant’s failure to provide the requisite insurance and to pay FMCC for the purchase thereof constituted a breach of the retail installment contract. It is also undisputed that a breach of the contract entitled FMCC to repossession of the car. Having determined that such a breach did in fact occur, we deem it unnecessary to address defendant’s additional arguments.

For the foregoing reasons, we affirm the entry of summary judgment in favor of FMCC.

Affirmed.

RIZZI and WHITE, JJ., concur.


author: PRESIDING JUSTICE CERDA

text:
    MICHAEL MITCHEM, Petitioner-Appellee, v. COOK COUNTY SHERIFF’S MERIT BOARD et al., Respondents-Appellants.
    First District (3rd Division)
    No. 1—88—1612
    Opinion filed March 28, 1990.
    Cecil A. Partee, State’s Attorney, of Chicago (Joan S. Cherry, Myra J.

      Brown, and M. Anne Gavagan, Assistant State’s Attorneys, of counsel), for appellants.
    Marvin Sacks and Joel S. Hymen, both of Chicago, for appellee.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

Respondents, the Cook County Sheriff’s Merit Board (Board), Cook County, and Richard J. Elrod, appeal from the trial court’s order awarding petitioner, Michael Mitchem, back pay for his suspension pending a hearing on disciplinary charges. Respondents argue that the trial court exceeded its statutory authority by ordering back pay and that the Board had the authority to suspend petitioner for 180 additional days after the determination of his guilt following the hearing.

Petitioner filed a complaint for administrative review in the trial court alleging that he was a correctional officer for the Cook County Department of Corrections and that he was suspended without pay on September 12, 1986, pending the adjudication of the sheriff’s administrative complaint against him. Hearings were held on September 29, 1986, October 7, 1986, and November 24, 1986. On December 2, 1986, the Board suspended him for 180 days without pay from November 24, 1986, through May 24, 1987. The Board’s decision was silent as to the period of suspension from September 12, 1986, through November 23,1986.

Petitioner argued below that section 12 of “An Act in relation to the Cook County Sheriff’s Merit Board” (Act) (Ill. Rev. Stat. 1985, ch. 125, par. 62) provided that the Board could not order a suspension of more than 180 days, that the 180 days included prehearing suspension time, that the Board had failed to consider that he had been suspended without pay on September 12, 1986, pending the adjudication, and that he had been improperly suspended for more than 180 days.

The trial court remanded the cause so that the Board could issue a statement as to whether it had considered petitioner’s suspension from September 12, 1986, through November 23, 1986, in rendering its decision. On November 17, 1987, the Board issued an order which changed its original order by suspending petitioner for 180 days now beginning December 2, 1986 (the date of its original order), instead of November 24, 1986. The Board still did not state whether it had considered the earlier prehearing suspension period.

On May 16, 1988, the trial court ordered that under section 12 of the Act, petitioner could not be suspended for more than 180 days, that the Board should have suspended petitioner commencing “September 12, 1987 [sic],” and ending 180 days later, and that petitioner was entitled to be paid for the 81 days of prehearing suspension served in excess of 180 days.

Respondents argue that the 180-day posthearing suspension was within the Board’s statutory authority and that the back pay order was outside the trial court’s authority. Petitioner argues that section 12 of the Act (Ill. Rev. Stat. 1985, ch. 125, par. 62) limited the total days of suspension to 180 including suspension served prior to a hearing on the disciplinary charges.

Section 11 of the Act provides:

“Disciplinary measures prescribed by the Board may be taken by the sheriff for the punishment of infractions of the rules and regulations promulgated by the Board. Such disciplinary measures may include suspension of any deputy sheriff in the County Police Department, any full-time deputy sheriff not employed as a county police officer or county corrections officer and any employee in the County Department of Corrections for a reasonable period, not exceeding 30 days, without complying with the provisions of Section 12 hereof.” Ill. Rev. Stat. 1987, ch. 125, par. 61.

Section 12 of the Act provides:

“Except as is otherwise provided in this Act, no *** county corrections officer *** shall be removed, demoted or suspended except for cause, upon written charges filed with the Board by the Sheriff and a hearing before the Board ***. *** If the charges against an accused deputy sheriff are established by a preponderance of evidence, the Board shall make a finding of guilty and order either removal, demotion, suspension for a period of not more than 180 days ***.” (Ill. Rev. Stat. 1987, ch. 125, par. 62.)

The parties do not provide a copy of article II, section A(2), of the Board rules, but agree that it states:

“The Sheriff or his designated representative, may suspend for a period in excess of thirty days any Police Officer of the Cook County Police Department, any employee of the Department of Corrections or any full-time Deputy Sheriff who has completed his probation provided charges against that person have been filed with the Board and pending the decision of the Board on those charges. Such suspension may be ordered only if the employee has had an opportunity to respond to the Sheriff’s decision.”

In Brown v. Sexner (1980), 85 Ill. App. 3d 139, 405 N.E.2d 1082, the trial court examined a provision of the County Police Department Act (Ill. Rev. Stat. 1977, ch. 125, par. 113) almost identical to section 12 and held that a corrections officer could be suspended pursuant to a Board rule for more than 30 days pending a hearing. (Brown, 85 Ill. App. 3d at 152-53.) The rule allowed the suspension of a corrections officer provided charges had been filed and pending the decision of the Board on those charges. The court rejected the argument that the rule was inconsistent with the statutory provision (Ill. Rev. Stat. 1977, ch. 125, par. 112), which is also contained in the act at issue in the instant case, that the sheriff could not suspend a deputy sheriff for more than 30 days without complying with the provision requiring written charges and hearings. Brown, 85 Ill. App. 3d at 152-53.

Petitioner relies in part upon Sier v. Peoria Board of Fire & Police Commissioners (1987), 157 Ill. App. 3d 1097, 510 N.E.2d 633, which interpreted section 10—2.1—17 of the Illinois Municipal Code (Ill. Rev. Stat. 1985, ch. 24, par. 10—2.1—17), which provided that a person could not be suspended pending a hearing for more than 30 days. In contrast, the statute at issue in the instant case does not explicitly limit the length of a prehearing suspension. Not only is Sier distinguishable on this basis, but it is at variance with other cases which have permitted suspensions without back pay for more than 30 days pending hearings of employees who were ultimately discharged notwithstanding the statute’s 30-day limit on prehearing suspensions. Sheehan v. Board of Fire & Police Commissioners (1987), 158 Ill. App. 3d 275, 280, 509 N.E.2d 467; McCoy v. Kamradt (1985), 136 Ill. App. 3d 551, 560, 483 N.E.2d 544.

Petitioner also cites Cappitelli v. Rodewald (1988), 171 Ill. App. 3d 875, 878, 525 N.E.2d 1037, which held that a Board rule permitting suspensions of up to 120 days was invalid for conflicting with section 10—2.1—17 of the Illinois Municipal Code (Ill. Rev. Stat. 1983, ch. 24, par. 10—2.1—17) that limited suspensions after a determination of guilt to 30 days. The instant case is distinguishable because the Board did not suspend petitioner after the determination of guilt for more than 180 days, which was clearly the limit on posthearing suspensions.

Petitioner argues that section 12 was interpreted in Zurek v. Cook County Police & Corrections Merit Board (1976), 42 Ill. App. 3d 1044, 356 N.E.2d 1079, in a manner supporting his argument that he was entitled to credit for his prehearing suspension. In Zurek, after a hearing, the Board had suspended one of the petitioners for six months commencing as of the initial suspension date prior to the hearing. (Zurek, 42 Ill. App. 3d at 1045.) But the issue on appeal was whether further suspension could be imposed because the notice of the hearing was not given within the initial 30 days of suspension. (Zurek, 42 Ill. App. 3d at 1045.) The issue was not whether credit for prehearing suspension was required.

Cases interpreting other statutes providing that an employee could not be suspended for more than 30 days except upon written charges and a hearing have upheld greater than 30-day prehearing suspensions. Hoban v. Rochford (1979), 73 Ill. App. 3d 671, 679, 392 N.E.2d 88 (interpreting Ill. Rev. Stat. 1975, ch. 24, par. 10—1—18.1); People ex rel. Cotter v. Conlisk (1974), 17 Ill. App. 3d 346, 347-48, 308 N.E.2d 1 (also held that employee was not entitled to salary for suspension under section 10—1—18.1 pending dismissal); Haverly v. Boys (1979), 77 Ill. App. 3d 312, 319, 395 N.E.2d 1005 (the court interpreted section 11 of the Personnel Code (Ill. Rev. Stat. 1977, ch. 127, par. 63b111) and held that section 8b. 15 of the Personnel Code delegating the authority to promulgate rules for suspension of fewer than 30 days did not preclude the imposition of suspensions for more than 30 days).

Section 11 of the Act (Ill. Rev. Stat. 1985, ch. 125, par. 61) permits suspensions of up to 30 days without the necessity of written charges and a hearing. Board rule II(A)(2), which the Board is statutorily authorized to make (Ill. Rev. Stat. 1987, ch. 125, par. 56), permits suspensions of over 30 days pending a hearing. Section 12 of the Act (Ill. Rev. Stat. 1985, ch. 125, par. 62), however, limits suspensions to 180 days after the Board makes a finding of guilt. The limit of 180 days includes those suspensions imposed pending a hearing.

Petitioner was unlawfully suspended, and therefore, the next issue is whether the trial court erred in granting back pay. Respondents argue that the trial court did not have the power under the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3—111) to award back pay to petitioner. They argue that the Board did not award any back pay so that the trial court’s award was not an affirmance or reversal of an administrative decision that required the payment of money. Respondents also argue that the Board did not have the authority to monetarily compensate employees; the implication of this argument is that because the Board could not order back pay, neither could the trial court. Petitioner responds that courts have ordered back pay for improperly suspended or discharged employees and that an administrative agency has the implied authority to award back pay to an employee whose suspension by a supervisor was not expressly authorized by the agency though the agency was not expressly authorized by any statute to do so.

The Administrative Review Law lists the powers of the circuit court. (Ill. Rev. Stat. 1987, ch. 110, par. 3—111.) The only possibly relevant powers are the following:

“(5) to affirm or reverse the decision in whole or in part;
(6) where a hearing has been held by the agency, to reverse and remand the decision in whole or in part, and, in such case, to state the questions requiring further hearing or proceedings and to give such other instructions as may be proper; * * *
(8) in case of affirmance or partial affirmance of an administrative decision which requires the payment of money, to enter judgment for the amount justified by the record and for costs.” Ill. Rev. Stat. 1987, ch. 110, pars. 3-111(5), (6), (8).

In Drezner v. Civil Service Comm’n (1947), 398 Ill. 219, an order of the State Civil Service Commission discharging an employee for misconduct was reversed by the Illinois Supreme Court as against the manifest weight of the evidence. The employee argued that he was entitled to reinstatement and back pay. The court disagreed that the Administrative Review Law permitted a court to so order and cited section 12 (Ill. Rev. Stat. 1945, ch. 110, par. 275), whiqh gave the court the power only to affirm or reverse the decision of the administrative agency in whole or in part or remand the cause for the taking of additional evidence. (Drezner, 398 Ill. at 232.) The court further noted that it was the Administrative Review Law’s purpose to provide judicial review of administrative decisions, that the court appealed to could not go outside the record certified to it, and that there was nothing in the record which would justify a judgment for back pay. Drezner, 398 Ill. at 232.

This reasoning is applicable to the instant case under the current section 3—111 of the Administrative Review Law, which also does not provide the court with the power to award back pay. (Dorner v. Illinois Civil Service Comm’n (1980), 85 Ill. App. 3d 957, 963, 407 N.E.2d 750.) The cases cited by petitioner do not address the issue of the trial court’s power to award back pay. (Sier v. Peoria Board of Fire & Police Commissioners (1987), 157 Ill. App. 3d 1097, 510 N.E.2d 633; Crowell v. Bilandic (1979), 77 Ill. App. 3d 162, 395 N.E.2d 1023.) The trial court was limited in its power by the Administrative Review Law and could only affirm or reverse the order of suspension with or without remand. (Ill. Rev. Stat. 1987, ch. 110, par. 3—111.) Although the trial court erred in awarding petitioner back pay, it can remand the case to the administrative agency for the taking of additional evidence related to back pay and related benefits. The additional evidence would establish a record as a basis for the award of back pay and benefits. Drezner, 398 Ill. at 232; Sgro v. City of Springfield (1972), 6 Ill. App. 3d 478, 481-82, 285 N.E.2d 589; Sola v. Clifford (1975), 29 Ill. App. 3d 233, 237, 329 N.E.2d 869.

The judgment of the circuit court is affirmed in part and reversed in part, and the cause is remanded.

Affirmed in part, reversed in part and remanded.

RIZZI and WHITE, JJ., concur.

      “Except as is otherwise provided in this Act, no deputy sheriff in the county police department shall be removed, demoted or suspended except for cause, upon written charges filed with the Board by the Sheriff and a hearing before the Board thereon ***. *** If the charges against an accused *** are established *** the Board shall make a finding of guilty and order either removal, demotion or suspension for a period of not more than 180 days.”

      “The board *** shall conduct a *** hearing of the charges, to be commenced within 30 days of the filing thereof, which hearing may be continued from time to time. In case an officer or member is found guilty, the board may discharge him, or may suspend him not exceeding 30 days without pay. The board may suspend any officer or member pending the hearing with or without pay, but not to exceed 30 days.”

      See above footnote for text of statute.

      “[N]o officer or employee of the police department *** may be removed or discharged, or suspended for more than 30 days except for cause upon written charges and after an opportunity to be heard ***. *** Nothing in this Section limits the power of the superintendent to suspend a subordinate for a reasonable period, not exceeding 30 days.”

      “No officer or employee *** shall be removed or discharged, demoted or suspended for a period of more than 30 days, except for cause, upon written charges *** and after an opportunity to be heard.”


text:
    NORTON SARNOFF, Plaintiff-Appellee, v. DE GRAF BROTHERS, INC., Defendant-Appellant.
    First District (3rd Division)
    No. 1—88—3810
    Opinion filed March 28, 1990.

      Richard J. Puchalski and Richard J. Reimer, both of Doss, Puchalski & Kennan, Ltd., of Chicago, for appellant.
    Lawrence G. Fretzin, of Chicago, for appellee.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

Defendant, De Graf Brothers, Inc., appeals from the entry of summary judgment in the favor of plaintiff, Norton Sarnoff, in an action for damages caused because of defendant’s defective concrete construction work in plaintiff’s building. Defendant argues that the trial court erred in entering summary judgment because there were disputed issues of fact concerning the amount of damages and the bias of the decision by the architect and third-party defendant, Jerome Soltan, who found defendant responsible for the defective work. Defendant also argues that the trial court erred in striking that portion of a counteraffidavit it filed in which the affiant gave his opinion that, rather than defendant, the architect was responsible for the defective work.

Plaintiff alleged that he entered into a written contract with defendant to provide concrete work and that defendant warranted that the work would be free of defects. The work was completed around March 1984. Plaintiff alleged that he observed that the concrete floor was emitting dust, spalling, flaking and deteriorating within the first year. Plaintiff hired an engineer to inspect the floor; the cost of testing was $2,670. The test report stated that the concrete work had been improperly performed. Plaintiff alleged that the contract provided that defendant was responsible for the cost of testing if the tests revealed a failure in workmanship.

It was further alleged that on January 8, 1987, the architect made a decision finding defendant responsible for the defective work. Plaintiff demanded that defendant repair the defects but defendant refused. Under the contract, if a demand for arbitration was not made within 30 days of the architect’s decision, the decision was final and binding. Defendant did not demand arbitration, and plaintiff alleged that defendant was thereby bound by the architect’s decision and was liable for the repair. Plaintiff also requested damages of $15,000 for the repairs.

Plaintiff and defendant entered into AIA Document A101, “Standard Form of Agreement Between Owner and Contractor.” Incorporated into the contract was AIA Document A201, “General Conditions of the Contract for Construction.” The following terms were included in this latter document. Nothing in the documents was to create any contractual relationship between the architect and the contractor. The architect was the owner’s representative during construction and until final payment. Claims, disputes and other matters in question between the contractor and the owner relating to the execution or progress of the work or the interpretation of the contract documents were to be referred initially to the architect for decision which was to be rendered in writing within a reasonable time. In the architect’s capacity as interpreter and judge, he was to exercise his best efforts to ensure faithful performance by both the owner and the contractor and was not to show partiality to either.

Any claim, dispute or other matter referred to the architect (with certain exceptions not applicable here) was subject to arbitration upon the written demand of either party. If an architect’s decision was made in writing and stated that it was final but subject to appeal, a demand for arbitration was to be made within 30 days after the decision was received. The failure to demand arbitration within this period resulted in the architect’s decision becoming final and binding upon the owner and contractor.

The contract also provided that the architect was not responsible for the acts or omissions of the contractor or any other persons performing any of the work. The contractor warranted to the owner and architect that all work was of good quality, free from faults and defects, and in conformance with the contract documents. A claim of damage to property was to be made in writing to the party claimed to be responsible within a reasonable time after the first observance of the damage. The making of final payment was not to constitute a waiver of claims arising from faulty or defective work appearing after substantial completion. The architect had the authority to require special inspection or testing of the work even when completed if his opinion was that it was necessary or advisable to ensure the proper implementation of the intent of the contract documents. If special inspection or testing was deemed necessary by the architect after the commencement of work and revealed a failure of the work to comply with the contract requirements, the contractor was to bear all costs.

The contractor was to promptly correct all work rejected by the architect as defective or failing to conform to the contract documents whether observed before or after substantial completion and whether or not fabricated, installed or completed. The contractor was to bear all cost of correcting such rejected work. If within one year after the date of substantial completion or within such longer period as may be prescribed by law any of the work was found to be defective, the contractor was to correct it promptly after receipt of written notice. If the contractor failed to correct defective work, the owner could correct it.

Attached to the complaint was a letter dated January 8, 1987, from the architect to plaintiff and defendant which stated that after reviewing a report from a material and concrete consultant firm, his final decision was that a portion of the concrete floor had been wearing at a relatively rapid rate and that the problem was due to improper finishing of the cement contractor.

Defendant admitted in its answer to a request to admit facts that it never demanded arbitration, that it knew the concrete floor was emitting dust, and that it received a copy of the architect’s decision.

Plaintiff filed a motion for summary judgment in which he argued that the failure of defendant to demand arbitration after receipt of the architect’s final decision rendered it binding upon the parties under the contract. Plaintiff quoted from the contract’s provisions that: the contractor warranted that all work was to be of good quality and free from faults and defects; the contractor was to bear costs of special testing after the commencement of the work if the architect determined that it was required; and that the contractor was to correct defective work.

Plaintiff filed a “certification in lieu of affidavit” which stated: that defendant was paid the full amount of the contract price for the installation of the concrete floor; that during the first year following completion he noticed the floor was emitting dust, flaking and deteriorating; that during the first year defendant was notified of the conditions and undertook some remedial steps to correct the defect; that defendant agreed to engage engineers to test the floor to determine the cause of the problem; and that he paid $2,670 for testing and $31,900 to correct the defective condition.

The architect’s certification was also filed and stated that on numerous occasions he requested that defendant repair the deteriorating condition of the concrete floor.

Defendant was granted permission to file a third-party complaint against the architect. Defendant alleged that the architect determined to use artificial heat during the pouring and drying of the concrete and that one or more of the proximate cause or causes of the defects was excessive carbonization that occurred during the drying or curing. Defendant asked for contribution from the architect for any amount it owed to plaintiff.

Defendant argued in its memorandum in opposition to plaintiffs motion for summary judgment that there were contested issues of fact. Defendant argued that because it claimed that the architect was at fault, the architect would have an interest in blaming someone else for the defective work. Defendant also argued that there was a dispute over the amount of damages because the floor was used for three years prior to repair.

Defendant filed the counteraffidavit of Gunter Hiergeist, defendant’s officer and agent, who had been in the concrete business for approximately 32 years. Hiergeist averred that the architect directed that surface heaters be used shortly after the concrete floor was poured and that the use of these heaters caused the floor to carbonize. He did not recall any conversations with the architect in December 1984 regarding deterioration of the floor. In August 1986, tests were performed which indicated that the problem was due to carbonization caused by heating. A copy of the report was stated to be attached as an exhibit but it does not appear in the record. Defendant received notice of the architect’s decision in January 1987. Defendant was not made aware of the friendship between plaintiff and the architect when it signed the contract with plaintiff.

Also attached as an exhibit to defendant’s memorandum in opposition to summary judgment was a portion .of plaintiff’s deposition. Plaintiff testified in his deposition that he designated Solían as the architect on the project because he had done work for plaintiff before. The architect was plaintiff’s friend whom he had known for 30 years. The concrete work was completed by defendant in approximately June 1984. The architect supervised the construction project. Problems began in the fall of 1984 with the concrete floor.

Plaintiff moved to strike portions of Hiergeist’s counteraffidavit. Plaintiff moved to strike paragraph five of the affidavit, which gave the affiant’s opinion that the use of the surface heaters caused the concrete floor to carbonize, on the basis that it was a conclusion. Plaintiff argued at the hearing that Hiergeist was not an expert and could not render such an opinion. The court struck the opinion on the basis that it was irrelevant. The absence from the record of the laboratory report referred to in the counteraffidavit was noted at the hearing, but a copy was then submitted at the hearing.

Summary judgment was granted in favor of plaintiff in the sum of $34,570. It was also ordered that there was no just reason to delay appeal or enforcement of the order.

Defendant’s last argument is that the trial court erred in striking a portion of a counteraffidavit it submitted in opposition to plaintiff’s motion for summary judgment. As the information contained in the stricken portion relates to other issues raised by defendant, this issue will be addressed first.

Defendant argues that the trial court erred in striking as irrelevant the second line of paragraph five of Hiergeist’s counteraffidavit, which read:

“Jerome Soltan directed that the surface heaters be used shortly after the concrete floor was poured. The use of these surface heaters caused the concrete floor to carbonize.”

Hiergeist also stated in the counteraffidavit that he was an officer and agent of defendant and that he had been in the concrete construction business for approximately 32 years.

Defendant argues that the stricken statement was relevant to the issue of who was liable for the damages and that the affidavit met the requirement of Supreme Court Rule 191 (107 Ill. 2d R. 191) by containing “positive detailed averments of fact that would be sufficient evidence if this case proceeded to trial.”

Plaintiff argues that the statement did not meet the requirement of the rule because it was a conclusion, there was no proper foundation for the affiant’s expertise, and there was nothing in the record to show that the affiant could testify competently thereto. Plaintiff argues that the statement that Hiergeist had been in the concrete construction business for 32 years was insufficient to establish his expertise. Plaintiff argues nevertheless that there were no references to Hiergeist’s credentials, experience, academic background, or history to establish his expertise to render an opinion as to causation. Plaintiff also argues that the statement was irrelevant because defendant was responsible to plaintiff for the defect irrespective of the cause (because of the architect’s decision which bound the parties).

Supreme Court Rule 191 provides that affidavits in opposition to a motion for summary judgment shall be made on the personal knowledge of the affiant and shall not consist of conclusions but of facts admissible in evidence and shall affirmatively show that the affiant could testify competently thereto. (107 Ill. 2d R. 191(a).) An opinion contained in an affidavit must qualify as expert testimony. (GoTane Service Stations, Inc. v. Sharp (1979), 78 Ill. App. 3d 785, 789, 397 N.E.2d 249.) In Go-Tane, the president of a bank stated in a counteraffidavit in opposition to a motion for summary judgment that he examined the markings of checks and concluded that they were not returned prior to a midnight deadline. The affidavit also stated that the affiant had been engaged in the banking business for approximately 25 years. The striking of the affidavit was upheld on the basis that the affidavit did not state specific facts which formed the basis of his conclusion even though the court noted that his 25 years’ experience might indicate that the affiant was qualified to express an opinion in regard to the markings on the backs of the checks.

Similarly, the opinion of Hiergeist that the heating caused the damages was unsupported by facts. Even if he could be deemed an expert in the concrete construction business, the affidavit does not supply facts which formed the basis of his conclusion, i.e., why did the heaters cause the carbonization? The laboratory testing report which is referred to elsewhere in the counteraffidavit may have shed light on this issue, but it is not in thé record. Therefore, the trial court properly struck that portion of paragraph five containing the affiant’s unsupported opinion.

Defendant also argues that summary judgment was improperly entered in favor of plaintiff because there was a genuine issue of fact as to the motive and intent of the architect. Defendant argues that the architect who made the decision was an interested party with a personal stake in the outcome of the litigation; however, the architect’s decision finding defendant responsible for the defective work was made prior to the institution of litigation against the architect. There therefore is no basis to find that there was an issue of material fact as to the architect’s motive in making his decision.

Defendant also argues that the architect’s decision was a nullity because he was passing judgment on an error for which he was responsible. Defendant is apparently arguing that the architect’s decision was not legally binding under the contract so that as a matter of law plaintiff was not entitled to summary judgment. But it was not established that in fact the architect was responsible for the defect. Defendant relies only upon his counteraffidavit’s statement, which was properly stricken, that the architect’s directions concerning heating were the cause of the defect.

The contract made the architect’s decision regarding responsibility for the defect binding because defendant did not appeal to an arbitrator. Even if there were some indication of impropriety by the architect, there is no support for defendant’s argument that the architect’s decision was not binding even though no demand for arbitration of the decision was made when it is alleged subsequently that the architect was biased in making the decision because he in fact was responsible for the defect.

Defendant cites Paschen Contractors, Inc. v. John J. Calnan Co. (1973), 13 Ill. App. 3d 485, 486, 300 N.E.2d 795, in which the contractor sought a stay of arbitration on the ground that there was no agreement to arbitrate any of the items sought by respondent. The arbitration clause excluded the architect’s determinations of amount, quality, acceptability and fitness of work. The court held that the contract did not give the architect the power to pass upon his own errors and that a subcontractor could not be required without compensation to perform extra work not encompassed in the architect’s deficient plans. (Paschen, 13 Ill. App. 3d at 490.) The court held that, therefore, the items concerning fees for the extra work due to the architect’s omissions were not matters to be decided by an architect and thus were not excluded from the general arbitration clause. (Paschen, 13 Ill. App. 3d at 490.) The court did not hold that if an architect made a decision that involved making a judgment on his own errors, the contractor did not have to make a demand to arbitrate that decision which was not binding.

Defendant also cites Edward Edinger Co. v. Willis (1931), 260 Ill. App. 106, in which there was a finding of arbitrary conduct amounting to constructive fraud by the architect in the course of construction. In Cerny Pickas & Co. v. Dallach (1928), 249 Ill. App. 424, also cited by defendant, an architect in concert with the owner was found to have improperly withheld a final certificate which apparently prevented the contractor from receiving full payment. In neither case was the failure to demand arbitration of an architect’s decision an issue.

Even if a contractor does not have to demand arbitration of an architect’s decision that is tainted by bias or fraud because the decision is therefore not binding, the friendship of the architect and plaintiff alone was not a sufficient reason to find bias or fraud of the architect as a matter of law even under defendant’s analogy to cases in which arbitrators’ awards are overturned because the arbitrator had a direct, definite, and demonstrable interest in the outcome (Lucke, Inc. v. Spiegel (1970), 131 Ill. App. 2d 532, 536, 266 N.E.2d 504) or where a substantial undisclosed circumstance or relationship was likely to create a presumption of bias (Freeport Construction Co. v. Star Forge, Inc. (1978), 61 Ill. App. 3d 999, 1003, 378 N.E.2d 558).

Defendant also cites cases in which it was held that parties to contracts must exercise contractual discretion reasonably and with proper motive. (Foster Enterprises, Inc. v. Germania Federal Savings & Loan Association (1981), 97 Ill. App. 3d 22, 30, 421 N.E.2d 1375.) However, these cases are distinguishable because the architect was not a party to the contract although the contract governed his conduct. Even if the good-faith requirement between parties applied to the architect, there was no genuine issue of fact raised as to the architect’s good faith.

Also, defendant does not argue that the architect’s responsibility for the defect was discovered only after the time for the demand for arbitration had expired. Defendant could have demanded arbitration of the decision if it felt that the architect was to blame and that he was biased in favor of plaintiff. Under these facts it is not unfair to uphold summary judgment in favor of plaintiff on the basis that the architect’s decision was binding on the parties.

Defendant also argues that there were disputed issues concerning damages which precluded the granting of summary judgment. Defendant argues that the floor was used for over three years prior to repair and that it should not be required to pay for three years’ wear and tear. Defendant argues that disputes over the amount of damages precluded summary judgment and that plaintiff had the duty to mitigate damages.

Plaintiff alleged in his motion for summary judgment that he paid $31,900 to correct the defective concrete floor. Defendant has not factually supported his argument that plaintiff could have mitigated his damages or that the cost of repair would have been less if performed earlier (which he implicitly argues should have been done). An issue of material fact is not created by the mere allegation of its existence without a presentation of a statement of fact to contradict the movant’s version. (Illinois Valley Minerals Corp. v. Royal-Globe Insurance Co. (1979), 70 Ill. App. 3d 296, 303, 388 N.E.2d 253.) The trial court did not err in entering summary judgment because there was no genuine issue as to damages.

The judgment of the circuit court is affirmed.

RIZZI and WHITE, JJ., concur.