author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ARTHUR BINDER, Defendant-Appellee.
    Fourth District
    No. 4—88—0537
    Opinion filed March 17, 1989.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Asher O. Geisler, of Geisler, Waks & Geisler, of Decatur, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

On April 29, 1988, defendant Arthur Binder was charged by information with illegal consumption of alcohol by a minor (111. Rev. Stat. 1987, ch. 43, par. 134a), illegal possession of alcohol by a minor (111. Rev. Stat. 1987, ch. 43, par. 134a), and theft (111. Rev. Stat. 1987, ch. 38, par. 16 — 1(a)(1)). He filed a motion to suppress evidence June 10, 1988. The circuit court of Macon County granted the motion to suppress September 16, 1988. The State filed an appropriate certificate of impairment and this appeal.

At issue is the validity of a search conducted of the trunk of defendant’s vehicle shortly after his arrest on April 24, 1988. The State argues police had probable cause to search the trunk of the car, and alternatively, that the search was justifiable as an inventory search.

At the motion to suppress, defendant testified that at the time of his arrest, his car was properly parked in P.J.’s (an under-21 teen nightclub) parking lot. He did not consent to the search. He had no contract with the owner to leave the car there overnight. The State presented four witnesses. Officer John Anderson, a patrolman with the Macon County sheriff’s department, was working as private security at P.J.’s on the date of the arrest. He testified he approached a small, mid-sized compact car, in which he observed a heavyset man in the driver’s seat, and a younger female on the passenger’s side. He looked in the car and noticed what appeared to be a 12-pack of beer. He determined the occupants were under 21. He stated defendant, who was not in the automobile, came out “to see where we were.” On cross-examination, Anderson stated he saw beer on the floorboard and smelled beer in the car, and he never saw defendant inside the car. Anderson stated the vehicle was parked properly.

Working with Anderson at P.J.’s on the date of the arrest was Thomas L. Butts, Jr., an off-duty Decatur policeman who also worked private security. He testified he and Anderson approached a vehicle with two people in it. He noticed beer cans in the car. Defendant approached the security guards, handed Butts his driver’s license, and stated the vehicle was his. Defendant was arrested, and the search subsequently occurred.

Butts stated he was familiar with police department policies on towing vehicles. He stated cars were towed after an arrest to secure vehicles, keep them from being vandalized, and to protect the police department from claims. Defendant’s vehicle was parked in a parking lot accessible by the public at any hour.

On cross-examination, Butts testified the car was properly parked. Defendant approached the officers and identified himself. He was detained for a few minutes by Butts and other officers. Butts testified the car was not on P.J.’s parking lot, but was parked on nearby private property. Butts did not participate in the inventory search of defendant’s car.

Officers Timothy Boulware and Dennis Tortorice of the Decatur police department were summoned to the scene. Boulware testified when he arrived, he saw Anderson and Butts near a vehicle and observed three subjects in custody for illegal consumption of alcohol. Boulware talked to defendant and smelled alcohol on his breath. He determined defendant was 18 or 19 years old and was not in the company of his parents. Following defendant’s arrest, the vehicle was towed and an inventory search was conducted.

On cross-examination, Boulware could not recall whether defendant was inside or outside the automobile, though he testified the other two minors were in the car. Boulware testified he made a written inventory of the contents of the vehicle. When questioned about the inventory form by defense counsel, he stated it was still at the police station, filed along with other reports regarding the incident. He subsequently testified the inventory was at police headquarters. Boulware testified the car was properly parked and not a hazard to traffic. He did not ask for permission to inventory or tow defendant’s car. He stated it was the department’s policy to tow the car. He denied his purpose in inventorying the car was to just look through the contents. He stated department policy required officers to perform an inventory of the entire vehicle, which is why officers opened the trunk of defendant’s car. He stated it was not department policy to inventory cars that were properly parked and where the owner or driver of the car was not inside the car at the time of arrest. On redirect, he stated the officers towed the car pursuant to the department’s policy that they tow every vehicle when the subject is arrested.

Officer Dennis Tortorice responded to the call along with Officer Boulware. He stated defendant’s vehicle was towed to make sure it was secure and that nothing happened to it in the parking lot. He testified an inventory search occurred within 15 minutes after defendant was arrested, but prior to towing the automobile.

On redirect examination, Tortorice stated he would not have left the vehicle where it was parked under any circumstances. On re-cross-examination, Tortorice stated defendant was not arrested “out of” the vehicle, but that an officer always tows the vehicle after making an arrest out of a vehicle to make sure the vehicle is secured and no one has access to it. He stated he did not want to leave defendant’s car in the parking lot with the number of people that were around it, and he wanted to make it secure. He did not recall if he asked defendant if defendant wished to leave the car in the lot. The trial judge rejected the State’s contention the search of the trunk was based on probable cause. The judge stated since the offense was illegal consumption of alcohol, there was no reason to search the trunk for any fruits of that offense. The judge also indicated a less intrusive alternative could have been utilized by the police, inasmuch as police could have called defendant’s parents to get the car. The judge allowed defendant’s motion to suppress. This appeal followed.

A trial court’s ruling on a motion to suppress will not be set aside unless manifestly erroneous. People v. Stewart (1984), 105 Ill. 2d 22, 473 N.E.2d 840, cert. denied (1985), 471 U.S. 1131, 86 L. Ed. 2d 283, 105 S. Ct. 2666; People v. Nogel (1985), 137 Ill. App. 3d 392, 484 N.E.2d 516.

Police must obtain a search warrant prior to searching a motor vehicle, unless the circumstances fall within an exception to the warrant requirement. A search warrant need not be obtained if police have probable cause to believe the vehicle was used in or contains evidence of a crime. Once the police officers discovered a 12-pack of beer in the vehicle, it was reasonable under the circumstances here to believe the vehicle might contain additional alcoholic beverages in the passenger compartment or the trunk. (People v. Lawrence (1988), 174 Ill. App. 3d 818, 529 N.E.2d 63.) Given probable cause, the permissible scope of such a warrantless search was as broad as that which a magistrate could have legitimately authorized by warrant. Thus, the search may extend to every part of the vehicle, and its contents, that may conceal the object of the search. (United States v. Ross (1982), 456 U.S. 798, 72 L. Ed. 2d 572, 102 S. Ct. 2157; People v. Clark (1982), 92 Ill. 2d 96, 440 N.E.2d 869.) The permissible areas of search include the trunk of the vehicle. Ross, 456 U.S. 798, 72 L. Ed. 2d 572, 102 S. Ct. 2157; People v. Carter (1967), 38 Ill. 2d 496, 232 N.E.2d 692, cert. denied (1968), 391 U.S. 965, 20 L. Ed. 2d 877, 88 S. Ct. 2033; People v. Beil (1982), 110 Ill. App. 3d 291, 442 N.E.2d 291, cert. denied (1983), 464 U.S. 824, 78 L. Ed. 2d 100, 104 S. Ct. 93.

The evidence shows Anderson and Butts observed two persons who appeared to be minors in defendant’s car. Upon approaching, they saw beer in the car. Defendant appeared, produced identification showing him to be a minor, and stated the car was his. Officer Boulware smelled alcohol on defendant’s breath. The officers then had probable cause to believe illegal possession and consumption of alcohol by minors was taking place, and were justified in searching the entire car, including the trunk, for evidence of the crimes. The trial judge’s conclusion police had no reason to search the trunk was contrary to the manifest weight of the evidence, and the motion to suppress should have been denied.

As our decision on the probable cause issue disposes of this case, we need not address the State’s argument the search could be justified as an automobile inventory under South Dakota v. Opperman (1976), 428 U.S. 364, 49 L. Ed. 2d 1000, 96 S. Ct. 3092. However, given the holding of the Supreme Court in Colorado v. Bertine (1987), 479 U.S. 367, 93 L. Ed. 2d 739, 107 S. Ct. 738, that officers executing inventory searches must do so according to standardized procedures, the State’s evidence here hardly passes muster. While Officers Boulware and Tortorice testified towing was regularly employed as a means of securing a vehicle, Boulware stated twice on cross-examination it was not department policy to inventory properly parked cars when the owner or driver was not inside the car at the time of the arrest. Furthermore, although Boulware stated he performed the inventory search, he did not produce a copy of the inventory form or a written statement of policy regarding such matters.

The evidence raises the question whether defendant was arrested “out of” his automobile. The uncontradicted evidence shows defendant was not one of the two people Anderson and Butts observed in defendant’s automobile, but that defendant appeared on the scene sometime later. Although we do not question the officers’ motives here, producing a written directive detailing specific procedures would better reflect the type of standardized procedures which justify the inventory exception to the warrant requirement. See Bertine, 479 U.S. at 376-77, 93 L. Ed. 2d at 748-49, 107 S. Ct. at 744 (Black-mun, J., concurring).

For the above reasons, we reverse the decision of the circuit court of Macon County.

Reversed.

McCULLOUGH, P.J., and LUND, J., concur.


source: Caselaw Access Project

author: JUSTICE SPITZ

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. BERNARD L. NABER, Defendant-Appellee.
    Fourth District
    No. 4—88—0739
    Opinion filed March 9, 1989.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Jeff Justice, of Hull, Campbell & Robinson, of Decatur, for appellee.
   JUSTICE SPITZ

delivered the opinion of the court:

This is an appeal by the People of the State of Illinois from an order of the circuit court of Macon County dismissing the traffic citation against the defendant Bernard L. Naber. On August 11, 1988, the defendant was charged by citation and complaint with failure to reduce speed to avoid an accident. On September 2, 1988, defendant filed a motion to dismiss alleging that the complaint was fatally deficient under People v. Lundgren (1986), 149 Ill. App. 3d 458, 500 N.E.2d 727, appeal denied (1987), 113 Ill. 2d 581, 505 N.E.2d 358. On September 13, 1988, the trial court issued a written order granting defendant’s motion to dismiss stating that the trial judge disagreed with Lundgren and believed allegations as to defendant’s speed and the speed limit were unnecessary, but the judge felt he was required to follow Lundgren.

Taken with this case is defendant’s motion to supplement the record on appeal with defendant’s copy of the uniform traffic citation. The citation in the record has a parenthetical notation “(20 mph)” in the violation section. This parenthetical notation does not appear on defendant’s copy of the citation. Defendant complains that, for the first time on appeal, the State is arguing the citation complies with the statute by reason of this parenthetical notation being present. Although we are not going to rely on the State’s argument concerning the parenthetical notation, in fairness the defendant’s motion to supplement the record on appeal is granted.

The statute with which the citation is said not to comply is section 11 — 610(a) of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 95%, par. 11 — 610(a)), which states: ^

“In every charge of violation of any speed regulation in this article the complaint, and also the summons or notice to appear, shall specify the speed at which the defendant is alleged to have driven and the maximum speed applicable within the district or at the location.”

Defendant was charged under section 11 — 601(a) of the Code (Ill. Rev. Stat. 1987, ch. 95%, par. 11 — 601(a)), the last sentence of which requires:

“Speed must be decreased as may be necessary to avoid colliding with any person or vehicle on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.”

In People v. Lundgren (1986), 149 Ill. App. 3d 458, 500 N.E.2d 727, the Illinois Appellate Court for the Third District determined that a citation and complaint for failure to reduce speed to avoid an accident which does not allege the speed of defendant’s vehicle and the applicable speed limit is deficient. We respectfully disagree with our colleagues in the third district.

According to the Illinois Supreme Court in People v. Steppan (1985), 105 Ill. 2d 310, 316, 473 N.E.2d 1300, 1303:

“The function of the courts in construing statutes is to ascertain and give effect to the intent of the legislature. [Citations.] In ascertaining the intent of the legislature, it is proper for the court not only to consider the language employed by the statute, but also to look to the ‘ “reason and necessity for the law, the evils to be remedied, and the objects and purposes to be obtained.” ’ [Citations.] Moreover, in construing statutes, the courts presume that the General Assembly, in passing legislation, did not intend absurdity, inconvenience or injustice.”

The interpretation placed on the statutes by the Lundgren decision leads to an absurd result. Since failure to reduce speed to avoid an accident is an offense which can occur regardless of the speed of defendant’s vehicle or the applicable speed limit at the location of the accident (see People v. Schumann (1983), 120 Ill. App. 3d 518, 458 N.E.2d 182), it is illogical to require the allegation of defendant’s speed and the local limit on the citation and complaint.

It seems clear that the intent of the legislature in enacting section 11 — 610(a) was to require defendant’s speed and the limit to be alleged in cases involving a peace officer arresting a defendant for driving a motor vehicle in excess of the speed limit. In such cases, the officer usually observes the speeding vehicle visually or records the speed on radar. On the other hand, a citation for failure to reduce speed to avoid an accident is generally issued after the vehicle has come to a sudden halt as a result of a collision, the peace officer having made no observations of the speed of defendant’s vehicle prior to the collision. Under these circumstances, requiring the citation and complaint to contain an allegation of defendant’s speed and the speed limit, neither of which is an element of the offense, is illogical.

We recognize that the language of section 11 — 610(a) was amended effective January 1, 1976. Nevertheless, as the dissent in Lundgren points out, the legislature’s amendment of section 11— 610(a) should not be construed to impliedly repeal the offense of failure to reduce speed to avoid an accident. That would be the practical effect of the strict construction adopted by the Lundgren majority.

For these reasons, the order of the circuit court of Macon County dismissing the citation and complaint against defendant is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

LUND and KNECHT, JJ., concur.


text:
    LARRY E. MOSS, Plaintiff-Appellant, v. EVERETT GIBBONS et al., Defendants (Van Manh et al., Defendants-Appellees).
    Fourth District
    No. 4—88—0275
    Opinion filed March 9, 1989.

      William C. Zukosky, of Urbana, and Edward Zukosky, of Wenona, for appellant.
    Costigan & Wollrab, P.C., of Bloomington (William F. Costigan, of counsel), for appellee St. James Hospital.
    Richard E. Stites, of Livingston, Barger, Brandt & Schroeder, of Bloom-ington, for appellee Van Manh.
    Heyl, Royster, Voelker & Allen, of Peoria (Gary M. Peplow and Nicholas J. Bertschy, of counsel), for appellee N. Gutierrez.
   JUSTICE KNECHT

delivered the opinion of the court:

This is an appeal from the dismissal with prejudice of a medical malpractice action (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 622).

We affirm.

The plaintiff, Larry E. Moss, is a prisoner at the Pontiac Correctional Center. On February 29, 1984, he was attacked in his cell and suffered an injury to his left eye. Following the attack, the plaintiff was taken to the medical unit at the correctional center where he was assigned to the care of Everett Gibbons, M.D., John Hatala, M.D., Van Manh, M.D., Raspal Dalai, M.D., Syed Ali, M.D., and Timothy Miller, an optometrist.

The medical unit took orbital X rays of the plaintiff. The X rays were sent for review to N. Gutierrez, M.D. Gutierrez is a radiologist at St. James Hospital in Pontiac, Illinois. He read the X rays as negative for fractures of the left orbit.

On May 10, 1984, the plaintiff was examined by Dennis Lockhart, M.D. Lockhart is an ophthalmologist at Gailey Eye Clinic in Bloom-ington, Illinois. He ordered orbital X rays with waters view of the plaintiff. Lockhart read the X rays as questionable for a blow-out fracture of the left orbital floor. He recommended additional X rays be taken of the plaintiff.

On May 22, 1984, orbital X rays with waters view and a tomo-gram were taken of the plaintiff at St. James Hospital. Gutierrez read the X rays and tomogram as positive for blow-out fracture of the left orbital floor.

On June 1, 1984, Lockhart reexamined the plaintiff. He recommended surgery be performed to correct the eye disorders of the plaintiff. The surgery was unsuccessful. The plaintiff now suffers intractable double vision with his left eye rolled upward.

On May 6, 1986, the plaintiff filed a five-count medical malpractice complaint (111. Rev. Stat. 1985, ch. 110, par. 2 — 622) against defendants Gibbons (count I), Hatala (count II), Manh (count III), Da-lai (count IV), and Ali (count V) in the circuit court of Livingston County. On May 7, 1986, without the leave of the circuit court, the plaintiff filed an amendment to the complaint against defendants Miller (count VI), Gutierrez (count VII), and St. James Hospital (count VIII). The amendment was accompanied by an attorney affidavit which stated the required consultation under section 2 — 622(a)(1) could not be obtained prior to the expiration of the statute of limitations.

On August 4, 1986, the 90th day after the filing of the complaint, the plaintiff filed a motion to extend the time of filing of the medical report. Attached to the motion was the section 2 — 622(a)(1) consultation affidavit. On August 18, 1986, without the leave of the circuit court, the plaintiff filed the medical report.

Defendants Gutierrez, Manh, and St. James Hospital filed motions to dismiss the counts directed against them in the complaint. The motions attacked (1) the manner and timing of the filings of the pleadings under the statute of limitations; (2) the plaintiff’s failure to consult with a health professional practicing in their respective medical specialties; and (3) the meritoriousness determination in the medical report of the reviewing health professional. In response, the plaintiff filed a motion for leave to amend the May 6, 1986, complaint and the May 7, 1986, consultation affidavit. The plaintiff did not offer any proposed amendments to the circuit court. On April 3, 1987, the circuit court granted the motions to dismiss of defendants Gutierrez and St. James Hospital. On July 28, 1987, the circuit court granted the motion to dismiss of defendant Manh. The circuit court ordered dismissals with prejudice based on the failure of the plaintiff to comply with the statutory prerequisites for filing medical malpractice actions.

The circuit court denied the subsequent motions of the plaintiff for leave to amend the pleadings and to reconsider, revise, and vacate the dismissal orders. On March 2, 1988, the circuit court reaffirmed the dismissal orders. Following these rulings, the plaintiff orally moved for voluntary dismissal (111. Rev. Stat. 1985, ch. 110, par. 2— 1009) against defendants Gibbons, Hatala, Dalai, Ali, and Miller. The circuit court granted the oral motion. The plaintiff now appeals.

The defendants correctly contend the consultation affidavit is not based on the written medical report of the reviewing health professional.

The consultation affidavit is to declare that “the reviewing health professional has determined in a written report, after a review of the medical record and other relevant material involved in the particular action that there is a reasonable and meritorious cause for the filing of such action.” (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 622(a)(1).) This means the consultation affidavit is to be based on the written medical report of the reviewing health professional.

The consultation affidavit was executed on August 4, 1986. The affidavit stated the reviewing health professional had not yet supplied the written medical report. The medical report was dated August 14, 1986. Obviously, the consultation affidavit could not have been based on the written medical report of the reviewing health professional. Thus, the plaintiff failed to comply with the statutory prerequisites for filing a medical malpractice action.

The defendants next contend the consultation affidavit and the medical report are insufficient because the reviewing health professional did not practice in their respective medical specialties.

Section 2 — 622(a)(1) places two restrictions on the selection of the reviewing health professional. First, the health professional must be “knowledgeable in the relevant issues involved in the particular action.” (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 622(a)(1).) Second, the health professional must practice in the same medical specialty of any defendant specialists. Ill. Rev. Stat. 1985, ch. 110, par. 2 — 622(a)(1).

The plaintiff selected Sidney D. Kamen, M.D., as the reviewing health professional. Kamen is licensed to practice medicine in all of its branches. He specializes in ophthalmology. As such, Kamen is knowledgeable in the diagnosis and treatment of eye disorders. Thus, the first restriction on the selection of the reviewing health professional is met.

The medical specialty restriction on the selection of the reviewing health professional was recently discussed in Hagood v. O’Conner (1988), 165 Ill. App. 3d 367, 519 N.E.2d 66. The appellate court noted Illinois does not define or otherwise regulate the medical specialties of physicians. Rather, a licensed physician is qualified to practice medicine in all of its branches. (Ill. Rev. Stat. 1985, ch. Ill, par. 4401 et seq.) For these reasons, the appellate court determined:

“[A] licensed physician in Illinois is a legally qualified practitioner in every so-called medical specialty. Therefore, for the purposes of this Act, a physician who is licensed to practice medicine in all of its branches may evaluate the treatment given by any other physician who is licensed to practice medicine in all of its branches, even if the defendant physician holds himself out to be a specialist.” Hagood, 165 Ill. App. 3d at 372-73, 519 N.E.2d at 69.

Defendant Gutierrez is alleged to be the agent of St. James Hospital. Gutierrez is a physician specializing in radiology. In Relaford v. Kyaw (1988), 173 Ill. App. 3d 1034, 527 N.E.2d 1328, the appellate court found a thoracic surgeon qualified to be a reviewing health professional in a medical malpractice action alleging negligent failure to diagnose lung cancer from the X rays of the plaintiff. The instant case is similar to Relaford in that the medical malpractice action alleges the negligent failure to diagnose a fracture of the left orbital floor from the X rays of the plaintiff. The diagnostic X ray knowledge of an ophthalmologist on eye disorders is comparable to that of a thoracic surgeon on lung diseases. Accordingly, Kamen is qualified to be the reviewing health professional as to defendant Gutierrez.

Defendant Manh is alleged to be a physician licensed to practice medicine in all of its branches. Kamen possesses the same medical license. Thus, Kamen is qualified to be the reviewing health professional as to defendant Manh.

Defendant St. James is a hospital. Hospitals fall into the “all other defendants” category under section 2 — 622(aXl). (Shanks v. Memorial Hospital (1988), 170 Ill. App. 3d 736, 739, 525 N.E.2d 177, 179-80.) For this category of defendants, the plaintiff must select a physician licensed to practice medicine in all of its branches as the reviewing health professional. Kamen is the physician licensed to practice medicine in all of its branches. Thus, Kamen is qualified to be the reviewing health professional as to defendant St. James Hospital.

The defendants contend the medical report does not identify the reasons for the reviewing health professional’s determination there was a meritorious cause of action against them. We agree.

The plaintiff filed a single medical report. A separate report as to each defendant need not be filed. (Hagood, 165 Ill. App. 3d at 374, 519 N.E.2d at 70.) The medical report presented the case history and treatment of the plaintiff. This manner of presentation can be sufficient to identify the reasons for the meritoriousness determination. (See Hagood, 165 Ill. App. 3d at 373, 519 N.E.2d at 70; Relaford, 173 Ill. App. 3d at 1040, 527 N.E.2d at 1332.) It is not sufficient in the instant case.

The medical report did not mention defendant Manh. The report should discuss the involvement of each defendant in the treatment of the plaintiff. (Alford v. Phipps (1988), 169 Ill. App. 3d 845, 853-54, 523 N.E.2d 563, 568-69.) Without such discussion, the report amounts to little more than a generalized conclusion of medical malpractice. A generalized conclusion of medical malpractice cannot support the meritoriousness determination. Consequently, the medical report is insufficient for a meritoriousness determination as to defendant Manh.

The medical report mentioned defendant Gutierrez and discussed his limited involvement in the case. Defendant Gutierrez reviewed two sets of orbital X rays of the plaintiff. The medical report could not confirm the negative reading for an orbital fracture in the first set of X rays. These X rays were not available for review. The medical report confirmed the positive reading for an orbital fracture in the second set of X rays. As such, the medical report is not critical of the X ray reviewed by defendant Gutierrez. Thus, the medical report is insufficient for a meritoriousness determination as to defendant Gutierrez.

The medical report also mentioned defendant St. James Hospital. The involvement of defendant St. James Hospital in the case is limited to the review of its alleged agent Gutierrez. Given the preceding discussion, the medical report is insufficient for a meritoriousness determination as to defendant St. James Hospital.

The plaintiff contends the circuit court abused its discretion in denying leave to amend and in dismissing the action with prejudice.

The determination of whether the pleadings are sufficient to comply with section 2 — 622 is a matter of discretion for the circuit court. This pleading determination depends on the facts and circumstances of each case. (Alford, 169 Ill. App. 3d at 854-55, 523 N.E.2d at 569.) Where the pleadings are determined to be insufficient, the circuit court must determine whether to allow amendment or dismissal. Absent a manifest abuse of discretion, the amendment or dismissal determination of the circuit court will not be disturbed on appeal. McCastle v. Sheinkop (1987), 121 Ill. 2d 188, 194, 520 N.E.2d 293, 296.

“[A] medical malpractice plaintiff should be afforded every reasonable opportunity.to establish his case.” (Hansbrough v. Kosyak (1986), 141 Ill. App. 3d 538, 549, 490 N.E.2d 181, 188.) Accordingly, amendments to pleadings are to be liberally allowed to enable medical malpractice actions to be decided on their merits rather than on procedural technicalities. The test is the furtherance of the ends of justice. Taylor v. City of Beardstown (1986), 142 Ill. App. 3d 584, 491 N.E.2d 803.

In Taylor, this appellate court reiterated the guidelines for amendment to medical malpractice pleadings under the ends of justice test:

“In passing on a motion to amend, a court should properly consider the ultimate efficacy of a claim as well as previous opportunities to assert it. [Citations.] Thus, the merits of a proposed amendment should be considered, and a trial court should not deny leave to amend solely on the basis of a delay in filing, unless accompanied by a showing of prejudice to the opposing party which goes beyond mere inconvenience. [Citations.] If, on the other hand, the proposed amendment as submitted to the trial court would not cure any defects in the complaint, then a motion for leave to amend is properly denied.” Taylor, 142 Ill. App. 3d at 591, 491 N.E.2d at 808.

The plaintiff did not offer any proposed amendments of the pleadings to the circuit court. The failure to offer a proposed amendment is generally fatal for review of the exercise of discretion by the circuit court. (Intini v. Schwartz (1979), 78 Ill. App. 3d 575, 579-80, 397 N.E.2d 84, 87.) There are two instances in which a proposed amendment need not be offered to the circuit court. First, a proposed amendment need not be offered where its nature is apparent from the proceeding. (Intini, 78 Ill. App. 3d at 579, 497 N.E.2d at 87.) Second, a proposed amendment need not be offered where its offer is foreclosed by the circuit court. (Scala/O’Brien Porsche Audi, Inc. v. Volkswagen of America, Inc. (1980), 87 Ill. App. 3d 757, 762, 410 N.E.2d 205, 209.) Neither instance applies here. Therefore, the circuit court acted within its discretion in denying leave to amend and in dismissing the action with prejudice.

The plaintiff lastly contends his medical malpractice action should not have been dismissed with prejudice as he was under a legal disability.

Imprisonment is a legal disability. A legal disability may toll the statute of limitations. (Ill. Rev. Stat. 1985, ch.. 110, par. 13 — 211.) Thus, a prisoner may elect to seek immediate legal redress or to postpone legal redress.

The plaintiff sought immediate legal redress. He did not claim imprisonment as a legal disability in the pleadings. The pleadings only referred to imprisonment as a description of the scene of the injury and initial medical treatment. Moreover, the May 7, 1986, attorney affidavit implicitly disclaimed imprisonment as a legal disability. The affidavit did not seek to toll the statute of limitations. Rather, the affidavit sought a filing extension beyond the statute of limitations. After the circuit court granted the motions to dismiss of the defendants, however, the plaintiff attempted to claim imprisonment as a legal disability. This claim was not responsive to the statutory noncompliance basis for the dismissals. Given these facts, the plaintiff has waived any claim of imprisonment as a legal disability.

Defendants Gutierrez and Manh also contend the plaintiff did not earlier appeal the dismissal orders.

The notice of appeal is to be liberally construed in the absence of prejudice to the nonappealing party. Nevertheless, care should be given in stating the requested relief in the notice of appeal. The appellate court has jurisdiction over only the matters raised in the notice of appeal. 107 Ill. 2d R. 303(c); Lewanski v. Lewanski (1978), 59 Ill. App. 3d 805, 815, 375 N.E.2d 961, 968.

The notice of appeal may be construed to bring up for review an earlier unspecified order where the order is a step in the procedural progression to the specified order. Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 434-35, 394 N.E.2d 380, 383.

In the instant case, the plaintiff requested relief from the March 2, 1988, order in the notice of appeal. The plaintiff did not specify either the April 3, 1987, order or the July 28, 1987, order in the request. These unspecified orders were steps in the procedural progression to the specified order of March 2, 1988. Given the interrelationship between these orders, the notice of appeal is sufficient to confer jurisdiction on the appellate court to consider the propriety of all these orders.

Affirmed.

LUND and SPITZ, JJ., concur.


author: JUSTICE GREEN

text:
    RICHARD J. CLAYDON, Plaintiff-Appellant, v. THE SISTERS OF THE THIRD ORDER OF ST. FRANCIS, Defendant-Appellee.
    Fourth District
    No. 4—88—0643
    Opinion filed March 17, 1989.
    Richard E. Friedman, Gerald B. Mullin, and Randall E. Server, all of Epton, Mullin & Druth, Ltd., of Chicago, for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (William G. Swindal and James E. McParland, of counsel), for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On May 18, 1988, plaintiff Richard J. Claydon, D.D.S., filed a complaint in the circuit court of McLean County against defendant, the Sisters of the Third Order of St. Francis (St. Joseph’s Hospital Medical Center). The complaint alleged: (1) defendant, which operated a private hospital, had granted plaintiff certain medical privileges in 1979 and further privileges in 1982; (2) the privileges granted in 1982 were revoked on January 11, 1984, because defendant questioned whether it could legally grant those privileges to plaintiff, who is a dentist; and (3) subsequently, legislation and administrative regulations were enacted which permitted grant of the revoked privileges to plaintiff, but defendant has refused to reinstate those privileges. Plaintiff sought declaratory and injunctive relief. On August 3, 1987, the circuit court allowed, in bar of action, defendant’s motion to dismiss the complaint for failure to state a cause of action. (111. Rev. Stat. 1987, ch. 110, par. 2 — 615.) Plaintiff has appealed. We affirm.

• The privileges allegedly granted in 1982 but rescinded in 1984 were those of taking histories of and performing medical examinations on certain “good risk” patients of plaintiff’s who were to be admitted to defendant’s hospital. The complaint alleged plaintiff had “successfully completed an advanced continuing medical education program for oral surgeons in medical history taking-and physical examinations.” The complaint also alleged plaintiff (1) was licensed to practice dentistry in Illinois; (2) was a diplomat of the American Board of Oral and Maxillofacial Surgery; and (3) when permitted to do so, had performed approximately 20 histories and physical examinations without incident. He requested the circuit court to declare that the legislation and administrative rules to which he referred allowed defendant to grant him the history-taking and examination privileges he formerly had and asked for the issuance of an injunction mandating defendant to do so. Plaintiff asks for other relief that may be proper but stipulates in his brief he does not request damages.

The legislation upon which plaintiff seeks a judgment declaring he is eligible to have history-taking and physical examination privileges restored is section 46 of the Illinois Dental Practice Act which, at the time of the filing of the complaint, stated:

“Patient Histories and Examinations. A dentist may perform a patient history and examination in the office, clinic or other dental facility or in a hospital, provided that his credentials have been approved by the hospital medical staff to perform such procedures and that such histories and examinations are directly related to or incident to the performance of dental services, operations or surgery.” Ill. Rev. Stat. 1987, ch. 111, par. 2346.

The administrative regulation upon which plaintiff relies is an Illinois Department of Registration and Education regulation which states in part:

“Patients admitted by a dentist may have their histories and physical examinations performed by the admitting dentist, provided that the dentist is a member of the hospital medical staff, that the dentist has been approved to perform [these functions] by the hospital governing board and that [these functions] are directly related or incident to the dental service, operation or surgery for which the patient is being admitted.” (11 Ill. Reg. 10,659 (eff. July 1, 1987) (amending 77 Ill. Adm. Code 250.320 (1985)).)

Neither of the foregoing was in force at the time plaintiff’s privileges were revoked.

Plaintiff recognizes the precedent established by Barrows v. Northwestern Memorial Hospital (1988), 123 Ill. 2d 49, 525 N.E.2d 50, Jain v. Northwest Community Hospital (1978), 67 Ill. App. 3d 420, 385 N.E.2d 108, and Mauer v. Highland Park Hospital Foundation (1967), 90 Ill. App. 2d 409, 232 N.E.2d 776, and a long line of other cases holding that (1) a medical professional initially denied staff privileges at a private hospital has no cause of action for review of the decisions; and (2) a medical professional whose staff privileges are revoked has no cause of action for reinstatement unless the hospital fails to follow its constitution and bylaws. For reasons explained later, plaintiff maintains his situation differs from that of the professionals seeking judicial review in those cases, and, thus, the reasons for those decisions are not applicable here.

In Barrows, the circuit court had dismissed a complaint by a pediatrician in which he requested that a private hospital be ordered to afford him staff privileges. The circuit court dismissed the complaint, but the appellate court reversed (Barrows v. Northwestern Memorial Hospital (1987), 153 Ill. App. 3d 83, 505 N.E.2d 1082), holding that, even in regard to private hospitals, public policy then required allowing judicial review of decisions to deny staff privileges to determine whether the denial was unreasonable, arbitrary, or capricious. The supreme court reversed, citing, with approval, Mauer, Jain, and others in a long line of Illinois cases. The Barrows court rejected the appellate court’s theory that public policy now required a change from the long line of policy established. It also rejected a contention that cases such as Sussman v. Overlook Hospital Association (1966), 92 N.J. Super. 163, 222 A.2d 530, affd (1967), 95 N.J. Super. 418, 231 A.2d 389, and Greisman v. Newcomb Hospital (1963), 40 N.J. 389, 192 A.2d 817, set a new trend in a majority of States to require judicial review-ability of staff privilege determinations.

As stated in Jain (67 Ill. App. 3d at 424, 385 N.E.2d at 112), Mauer (90 Ill. App. 2d at 415, 232 N.E.2d at 779), and Shulman v. Washington Hospital Center (D.D.C. 1963), 222 F. Supp. 59, 64, the reason for the general rule not permitting judicial review of actions in regard to staffing privileges is to avoid requiring a court to substitute its judgment for that of the professional board of a hospital as to the capacity of the professional whose privileges are in question. The Barrows court pointed out that recent legislation limiting the liability of persons serving on.review boards of hospitals (Ill. Rev. Stat. 1985, ch. Ill, par. 4406; Ill. Rev. Stat. 1985, ch. 111, par. 151.2) indicated a public policy for continuing the above general rule.

The thrust of plaintiff’s theory in this case is that, here, granting judicial review of the decision to refuse to reinstate plaintiff’s privileges to take histories and give physical examinations would not require courts to substitute their judgment of his competence for that of professional peers. Rather, he contends courts would be passing upon the legal limitations on defendant’s power to allow those privileges. The uncertainty of defendant’s power to do so was the stated reason given by defendant for the withdrawal of those privileges.

In considering plaintiff’s theory, we note at the outset that, as indicated in Barrows, the rule against judicial review is strong. A well-recognized limitation on the rule is, as mentioned in Barrows, that when privileges are taken away, courts will examine the question as to whether the hospital constitution and bylaws were violated. (Gates v. Holy Cross Hospital (1988), 175 Ill. App. 3d 439, 529 N.E.2d 1014; Rao v. St. Elizabeth’s Hospital of the Hospital Sisters of the Third Order of St. Francis (1986), 140 Ill. App. 3d 442, 488 N.E.2d 685.) The Barrows opinion leaves open the question of whether judicial review is available if the denial of privileges arises from fraud, antitrust law violation, or conspiracy. There, the supreme court, after reviewing the appellate court, remanded the case to the appellate court to consider the sufficiency of the counts of the complaint making those charges. The supreme court considered those issues to be inadequately briefed for their decision.

Moreover, plaintiff’s theory he is entitled to relief is based upon the enactment of the stated legislation and administrative regulation concerning grant of privileges to dentists. These were not in force when defendant is alleged to have revoked plaintiff’s privileges. Plaintiff does not contend defendant acted improperly under the law at the time of the revocation. Rather, he contends that privileges should have been restored when later requested. However, the complaint does not set forth that defendant issued any statement that lack of authority was the reason for denying reinstatement. Furthermore, we know of no rule which requires that, when privileges are re-yoked for a particular reason, they must be restored when that reason no longer exists. Under the facts alleged, defendant’s evaluation committee, as long as it followed its constitution and bylaws, was not limited in its reasons for denying reinstatement. No such violation of constitution or bylaws is claimed.

Accordingly, the purely legal question of whether the present legislation and regulation permit defendant to reinstate plaintiff’s privileges is not presented. Nor does plaintiff dispute the propriety of the procedure followed when plaintiff’s privileges were revoked in 1984. Rather, the issue is whether a private hospital can refuse to reinstate former privileges after the reason earlier given for revocation of the privileges no longer exists. On the basis of the cited precedent, we conclude a private hospital may do so.

No valid reason for making an exception to the general rule of nonreviewability exists here. We affirm the judgment dismissing the complaint.

Affirmed.

McCULLOUGH, EL, and LUND, J., concur.


author: JUSTICE NASH

text:
    ARTHUR CENCULA, Plaintiff-Appellee, v. JAY KELLER, Defendant-Appellant.
    Second District
    No. 2—88—0569
    Opinion filed March 7, 1989.

      Leon Zelechowski, of Boorstein, Cohn & Zelechowski, of Chicago, for appellant.
    Lawrence J. Petroshius, Jr., and Edward P. Brandes, both of Petroshius & Petroshius, of Waukegan, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

Defendant, Jay Keller (the owner), appeals from a judgment entered upon the verdict of a jury in favor of plaintiff, Arthur Cencula (the contractor), for $93,559 as damages for breach of a construction contract between these parties. The jury also found for the contractor on the owner’s counterclaim for damages from the contractor for his alleged failure to timely complete the project and do so in a workmanlike manner.

The owner appeals, contending that the contractor was not entitled to recover as damages for breach of contract the $20,790 in interest the contractor paid on funds he borrowed to pay his subcontractors for labor and materials on this project; that the trial court erred in submitting the contractor’s claim for “extras” to the jury and in certain rulings on the evidence; and the court erred in its construction of the contract between the parties. We affirm the judgment below, as modified.

Plaintiff and defendant entered into a contract in 1984 for the construction of a single-family residence in Antioch, Illinois, for a price of $161,000. This action was brought by plaintiff-contractor in 1985 in which it was alleged that the contractor had performed but the owner had failed to pay about $74,000 due under the contract and approximately $4,300 in claimed extras. The complaint also sought as consequential damages certain interest the contractor had paid on a bank loan taken out by him in 1985, allegedly for the purpose of paying the subcontractors on this project.

In 1986, the trial court denied the owner’s motion to compel arbitration, finding that the owner had waived that contractual right, and this court affirmed that judgment in an interlocutory appeal taken by the owner. Cencula v. Keller (1987), 152 Ill. App. 3d 754, 757-58, 504 N.E.2d 997.

We consider first whether in this breach of contract action the plaintiff-contractor was entitled to recover interest he paid on a loan from a third party taken out to pay the subcontractors on the project.

Over the objections of defendant-owner, the trial court permitted the contractor to place in evidence testimony and documents relating to $70,000 the contractor borrowed from a bank in May 1985, after commencement of this action, and instructed the jury, also over the owner’s objections, that the interest paid on the loan taken to pay subcontractors was an element of damages to consider if the contract was found to have been breached. Neither the parties nor the trial court was aware of any Illinois authority which had allowed the recovery of such interest as damages for breach of contract in these circumstances. The court, however, viewed the interest paid by the contractor as consequential damages similar to lost profits and instructed the jury that the interest could be recovered by the contractor “if such interest was foreseeable.” The judge reasoned, and apparently determined as a matter of law, that it was within the contemplation of the parties when they entered the contract that if the owner did not pay the contractor, the latter would have to pay his subcontractors from another source, such as a bank loan at interest, which could then be recoverable as damages on breach of the contract. In its verdict, itemized damages awarded to the contractor included $20,790 expended by him as interest on the loan in question.

In the early case of Hadley v. Baxendale (1854), 9 Ex. 341, 156 Eng. Rep. 145, the rule permitting damages in a breach of contract action was stated as follows:

“Where two parties have made a contract, which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e. according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it.”

In Hadley, the defendant common carrier was found not liable for lost profits of plaintiff caused by delay in delivering a repair part for plaintiff’s mill which had been shut down. The court considered that these lost profits did not arise naturally from defendant’s breach of its contract to timely deliver the mill part nor were the lost profits damages the parties would have reasonably contemplated when making the contract, as the probable result of its breach.

Our supreme court recently considered and followed Hadley v. Baxendale, stating that it “provides that all damages which naturally and generally result from a breach are recoverable; it is only where damages are the consequence of special or unusual circumstances that it must be shown that the damages were within the reasonable contemplation of the parties.” (Midland Hotel Corp. v. Reuben H. Donnelley Corp. (1987), 118 Ill. 2d 306, 318, 515 N.E.2d 61.) In Midland, the court determined that the lost profits sought to be recovered by plaintiff after defendant breached its contract to list plaintiff in defendant’s telephone directory was a direct and foreseeable consequence of the breach, as a matter of law, as plaintiff’s hotel profits formed the basis for its contract with defendant. (118 Ill. 2d at 319.) The court concluded that an instruction that lost profits must have been within the reasonable contemplation of defendant when the contract was formed was properly refused as the increased profits which were lost, and sought to be recovered in that case, were not collateral to the original contract but were, rather, the essential purpose of the contract.

The Midland Hotel case teaches that where a contract has been breached recoverable damages are those which (1) naturally result from the breach, or (2) are the consequence of special or unusual circumstances which were within the reasonable contemplation of the parties when making the contract (118 Ill. 2d at 306). (See also Naiditch v. Shaf Home Builders, Inc. (1987), 160 Ill. App. 3d 245, 267, 512 N.E.2d 1027; Mohr v. Dix Mutual County Fire Insurance Co. (1986), 143 Ill. App. 3d 989, 997, 493 N.E.2d 638; Case Prestressing Corp. v. Chicago College of Osteopathic Medicine (1983), 118 Ill. App. 3d 782, 788, 455 N.E.2d 811.) In our view, neither element has been met in this case, and plaintiff-contractor was thus not entitled to recover for the interest cost at issue.

The parties have not submitted, nor has our research disclosed, relevant authority from Illinois, or another jurisdiction, which has discussed whether the interest in issue here may be considered as an element of damages for breach of a construction contract. The trial court analogized the claimed interest to lost profits, which have been recognized as recoverable as damages for breach of contract in the proper case. (See, e.g., Midland Hotel Corp. v. Reuben H. Donnelley Corp. (1987), 118 Ill. 2d 306, 315-16, 515 N.E.2d 61; Spangler v. Holthusen (1978), 61 Ill. App. 3d 74, 80-81, 378 N.E.2d 304.) The difficulty with such an analogy, however, is that the interest paid to a bank by the contractor for the loan of money to pay subcontractors on the job is not of the same character as lost profits. Such interest costs to the contractor do not arise naturally, in the usual course of things, as a result of a breach of contract, but are one of the many, and usual, costs which are expected to arise in the performance of a construction contract. Rents, taxes, insurance, and salaries are some of the other ordinary costs of operating a construction business. Loosely stated, it is these costs to the contractor, when applied to the price for which he agreed to perform the contract, that will determine what are the profits. Nor can it reasonably be considered under the evidence in the present case that either of these parties contemplated that, if the contract was breached by the owner, the plaintiff-builder would be entitled to recover such business costs as damages. The unreasonableness of such an assumption is perhaps best demonstrated by the lack of authority in Illinois, or other jurisdictions, suggesting that such interest costs may be recovered as damages for breach of contract, absent an agreement to do so. See Rivenbark v. Finis P. Ernest, Inc. (1976), 37 Ill. App. 3d 536, 541-42, 346 N.E.2d 494, 498-99.

In the factually closest case we have seen, Snell v. Cottingham (1874), 72 Ill. 161, our early supreme court rejected a claim for recovery of $44,000 as damages for interest lost on a bond issue which would have been saved if defendant had completed a construction project in the time required by his contract. In denying such damages the court stated:

“We do not understand upon what principle the rule of damages contended for can be maintained. How can it be said, the damages resulting from the non-performance of a contract between parties can be measured by a mere private agreement between others, to which they are strangers? It is, no doubt, true, if the road had been completed by the 1st day of January, 1872, appellants would have obtained a rebate of the interest on the total amount of the construction bonds; but if it was intended to hold appellees responsible in case of non-performance of their contract, according to the terms of their private agreement with the lessee of the road, they should have made it a part of the contract [that] damages should be so measured. Although appellees may have known there was such an agreement between appellants and the lessee, they will not be presumed to have contracted with reference to any such mode of ascertaining the damages, and in the absence of any special contract they are bound by no such rule. Had it been known it was expected appellees would be held responsible for extraordinary damages, it is hardly probable they would have entered into the contract, for the consequences of a failure for only a few days would be most disastrous. The damages insisted upon, under this rule, exceed $44,000 — a sum enormously out of all proportion to the amount to be paid for the entire work.” 72 Ill. at 169-70.

No evidence was offered in trial of the present case either that the disputed interest naturally arose from a breach of the contract or that payment of such interest as damages on a breach was within the contemplation of either party when the contract was made. Nor may either conclusion be fairly drawn from any term in the contract.

We note that the trial court instructed the jury that the contractor could recover the interest paid on sums required to be borrowed to pay subcontractors “if such interest was foreseeable.” The court erroneously overruled the owner’s objection that any such instruction, if given, should submit for determination by the jury whether such interest damages were within the reasonable contemplation of the parties when making their contract.

We conclude that the interest damage issue should not have been considered by the trial court or submitted in any form to the jury in this case and that the portion of the judgment which awarded $20,790 to the contractor for interest paid on the bank loan must be reversed.

The owner contends next that the trial court erroneously allowed the contractor to testify relating to “extras” not included in the original contract and in submitting that claim to the jury.

In order for a contractor to recover compensation for additional and extra work, he must show by clear and convincing evidence that: (a) the additional and extra work was outside the scope of the initial contract; (b) the extra items were ordered by the owner; (c) the owner agreed to pay for those extras, either by his words or conduct; (d) the contractor did not volunteer to provide the extra work; and (e) the extra work was not due to any conduct on the part of the contractor. (R & R Construction Co. v. Junior College District No. 529 (1977), 55 Ill. App. 3d 115, 118, 370 N.E.2d 599.) Recovery for extra compensation is allowed only when the contractor has made his claim for an extra clear and certain before furnishing the item, not after. Watson Lumber Co. v. Guennewig (1967), 79 Ill. App. 2d 377, 390-91, 226 N.E.2d 270.

The contractor testified that there was an oral agreement as to each extra item and that these agreements were made at different times between October 1, 1984, the date construction commenced, and March 15, 1985. The contractor prepared a summary billing document of the extras dated March 15, 1985, which the owner refused to sign when presented to him. The owner objected to the lack of foundation for testimony regarding the extras, and before offering testimony relating to extras, the owner’s attorney, Mr. Zelechowski, and the contractor’s attorney, Mr. Petroshius, conferred with the trial judge outside the presence of the jury:

“MR. PETROSHIUS: I can go through it line by line.
MR. ZELECHOWSKI: There’s been no foundation. He said there was an agreement between October 1 and March of 1985. There is no foundation as to those particular dates. The test is clear and convincing evidence.
THE COURT: It is? Clear and convincing evidence?
MR. ZELECHOWSKI: Yes, your Honor.
THE COURT: I would disagree with you.
MR. ZELECHOWSKI: For this there has been no foundation.
THE COURT: I think you should establish whether there was an agreement for a specific price as to a specific item or whether it was agreed that it would all be done at the end. I think that should be established. That would be the additional foundation. Go ahead.”

In objecting to the foundation necessary for testimony as to extras to be admitted in evidence, and in stating that the burden on the contractor was by clear and convincing evidence, counsel for the owner confused the concept of the foundational requirements for the admissibility of evidence and the burden of the contractor to prove that the evidence with respect to contract extras clearly and convincingly favors the contractor. With respect to foundation, in determining whether the evidence is admissible, each party is entitled to present evidence which is relevant and material to his theory of the case, and evidence which tends to show conduct inconsistent with an opponent’s theory is admissible. Vendo Co. v. Stoner (1982), 108 Ill. App. 3d 51, 54, 438 N.E.2d 933.

We find that the trial court was correct in overruling the owner’s objection and admitting the testimony and evidence in this instance.

The contractor thereupon testified that all agreements as to extras occurred between October 1, 1984 and March 15, 1985, but could not give specific dates. He did state that the agreements occurred at different times, that all conversations regarding extras took place at the construction site, and both the owner and contractor were present at each conversation. The contractor testified there was an express verbal agreement between the parties and that each extra item was specifically agreed to by the owner, and the document prepared by the contractor was a summary billing for all separate agreements, although not prepared contemporaneously with each separate agreement. In each case where there was an agreement on an extra, the price was also agreed to at the same time, with certain exceptions where a price was not quoted but billing was at the contractor’s standard cost. The contractor did not recall the owner’s refusal to pay for any of these extras at the time they came up.

The owner argues that Watson Lumber Co. v. Guennewig (1967), 79 Ill. App. 2d 377, 226 N.E.2d 270, is analogous and applicable to the case at hand. However, in Watson, the judgment with respect to contract extras was entered despite an absence of evidence as to certain extras claimed by the contractor, and the contractor admitted there were no specific prior conversations for certain of the extras claimed. General testimony about agreements with the owner was there determined to be insufficient to sustain a claim for extras. (Watson, 79 Ill. App. 2d at 391.) In the present case, there was testimony by the contractor with respect to prior conversations and specific agreements by the owner to pay for contract extras at various times throughout the course of the construction, unlike Watson, where the contractor presented claims and sought the owner’s agreement to pay for extras only after the work was completed.

The owner refers to an instance where one item was not expressly agreed to be an extra in which the owner took trim material worth $75 that belonged to the contractor which he then included in his billing summary. Although there was no express agreement, the material was established as an extra by the owner’s conduct in taking the material, thus indicating his acceptance; the contractor did not have an opportunity to make his claim clear before furnishing the item as the owner simply took the trim.

The credibility of the witnesses and the weight to be given to the evidence, where there is some evidence on an essential point, is primarily for the jury, and its verdict should not be set aside lightly. (In re Marriage of Ligas (1982), 110 Ill. App. 3d 1, 6, 441 N.E.2d 1277.) The jury heard the evidence from both sides and was correctly instructed on the elements required to be proved by the contractor and the burden imposed on him to prove those elements by clear and convincing evidence. The evidence was contradictory as to whether the owner orally authorized the extras, but apparently the jury chose to believe the contractor.

The owner also contends that the court’s refusal of certain tendered instructions deprived him of his right to have the jury properly instructed on the burden of proof. However, the substance of those instructions was covered in another instruction given, and it was not necessary for the court to state the same proposition of law in different language. Strom v. Lipschultz (1972), 5 Ill. App. 3d 308, 313, 282 N.E.2d 257.

Finally, the owner argues that the following clause contained in the contract, which he drafted, made inspection of the work by an engineer a condition precedent to final payment on the contract:

“In conclusion, all work performed on this home at 42609 Crawford Ed., Antioch, 111. 60002 by said contractor, Arthur A. Cencula, Sr. will be inspected & approved by expert engineer, Mr. Lowell Swenson, on a periodic basis. Work must meet all reasonable standards of construction to the satisfaction of the expert engineer. Both contractor & owner agree to having Mr. Lowell Swenson, expert engineer, assigned to this project as arbitrator & mediator of any disputed differences regarding quality of construction and materials used. His decision will be binding & final on all differences between both parties. All fees to the above expert engineer will be born on the owner & will not be considered as part of the contract price of the house. All payouts will be made prior to getting approval of work completed by Mr. Swenson, expert engineer.”

The owner argues that the trial court erred in disregarding the claimed requirement that the contractor prove the work was done to the satisfaction of the expert engineer.

This court ruled in the first appeal of this case that the owner had waived his right to arbitration by actively participating in the legal action and failing to timely assert his rights to arbitration under the contract. (Cencula v. Keller (1987), 152 Ill. App. 3d 754, 757-58, 504 N.E.2d 997.) After remand, the trial court ruled that the quoted language did not, as the owner contends, create a condition precedent requiring that unless Mr. Swenson approve the construction, there would be no payment due and owing under the contract. In trial, the court determined that the alleged condition precedent need not be included as part of either the issue or the burden instruction.

A condition precedent is one which must be performed either before a contract becomes effective or which is to be performed by one party to an existing contract before the other party is obligated to perform. (John J. Calnan Co. v. Talsma Builders, Inc. (1979), 77 Ill. App. 3d 221, 225, 395 N.E.2d 1076.) Where a party claims that his own ambiguous language constitutes a condition precedent to his performance, he is not entitled to such a favorable construction unless it is established that the parties intended to create such a condition at the time of contracting. South Division Credit Union v. Deluxe Motors, Inc. (1976), 42 Ill. App. 3d 219, 222, 355 N.E.2d 715.

The language to which the owner refers does not establish the condition precedent urged by him, as the payouts on the contract and the inspection by the expert are clearly independent of one another, and neither is a condition precedent to the other. As the clause relied upon by the owner states, “all payments will be made prior to getting approval of work completed by Mr. Swenson, expert engineer.” (Emphasis added.)

The trial court did indicate at one point that payouts under the contract were conditioned upon an inspection by the expert engineer. Although this interpretation was inaccurate, it had no bearing on the outcome of this case. The reasons given by a trial court for an order, or the findings upon which it is based, are not material if the order is correct. (Board of Managers of Dominion Plaza One Condominium Association No. 1-A v. Chase Manhattan Bank, N.A. (1983), 116 Ill. App. 3d 690, 694, 452 N.E.2d 382.) The trial court’s subsequent decision to refuse instructions pertaining to inspection by the expert engineer was correct.

Accordingly, the judgment of the circuit court is affirmed in the sum of $72,769, as reduced by deletion of the $20,790 in interest improperly included in the original judgment.

Affirmed as modified.

LINDBERG and REINHARD, JJ., concur.


author: JUSTICE McLAREN

text:
    THOMAS J. EVERT, JR., Petitioner-Appellant, v. BOARD OF TRUSTEES OF THE FIRE FIGHTERS’ PENSION FUND OF THE CITY OF LAKE FOREST et al., Respondents-Appellees.
    Second District
    No. 2—88—0693
    Opinion filed March 10, 1989.

      Peter T. Shovlain, of Collins, Jutila & Shovlain, of Waukegan, for appellant.
    Thomas F. McGuire and John H. Kelly, both of Thomas F. McGuire & Associates, Ltd., of Long Grove, for appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

Claimant, Thomas J. Evert, Jr., a fire fighter, brought an action to recover disability pension benefits pursuant to the “line-of-duty” provisions of the Illinois Pension Code (the Code) (111. Rev. Stat. 1987, ch. IO8V2, par. 4 — 110). After administrative hearings before the Board of Trustees of the Fire Fighters’ Pension Fund of the City of Lake Forest, Illinois (the Board), claimant was denied a “line-of-duty” disability pension, but was granted a “not-in-duty” disability pension pursuant to section 4 — 111 of the Code (111. Rev. Stat. 1987, ch. lOSVs, par. 4 — 111). After administrative review, the circuit court of Lake County entered an order on June 27, 1988, confirming the decision of the Board. Claimant appeals, contending that the Board’s decision was against the manifest weight of the evidence. We affirm.

On January 21, 1987, while employed by the City of Lake Forest, claimant, a 49-year-old fire fighter and emergency medical technician, injured his lower back while lifting an accident victim on a stretcher at Lake Forest Hospital. On the date of his injury, claimant filed an injury report with his employer. He did not seek medical attention at that time. On the date of his injury, claimant’s duties required that he attend a training session in La Salle, Illinois. While in class at the training session, claimant’s lower back symptoms progressively worsened so that he missed some of the training. Upon returning home, he contacted his family physician, Dr. Maurice B. Pickard. Dr. Pick-ard prescribed a back brace and then referred Evert to Dr. Burt E. Schell, an orthopedic surgeon.

Dr. Schell examined Evert approximately two weeks after his injury. In order to determine the nature and degree of the suspected pinched nerve, Dr. Schell obtained a computerized tomography scan. After an unsuccessful 10- to 12-week physical therapy program, a myelogram was taken; based on the probability of a disc herniation, Dr. Schell, on July 10, 1987, performed surgery on Evert’s lower back. The surgery consisted of a hemilaminectomy and nerve root decompression at the L4-L5 level. Dr. Schell found Evert medically unable to return to work as a fire fighter. Dr. Pickard was of the opinion that Evert could not perform heavy duties necessary to the paramedic profession or to fire fighting. Dr. Ronald Pawl, another physician and neurologist whom Evert had consulted, was of a similar opinion. He believed that Evert was capable of returning to occupational activities not requiring repeated bending, lifting, or twisting.

On December 15, 1987, Evert filed for a “line-of-duty” disability pension. At the administrative hearing conducted on January 27, 1988, Dr. Schell testified that he was absolutely certain that the specific lifting incident of January 21, 1987, aggravated plaintiff’s preexisting, degenerative condition in the lower back. That condition consisted of disc degeneration and bony spurring. When asked if this type of incident was inevitable, he could not say that it was. When asked whether Evert could ever work as a fire fighter, Dr. Schell stated that it was unpredictable when his back would give out again and that his condition might jeopardize others. Prior to the lifting injury sustained on January 21, 1987, Evert claimed that he was performing his duties as a fire fighter and emergency medical technician duties without restriction on a daily basis, without experiencing any lower back problems; he stated that he was not under any active medical care for his existing, degenerative condition in the lower back. Evert became aware of lower back pain in 1984. Upon further questioning by the Board, Evert stated that he had prior, work-related injuries. In one instance, Evert was hit in the back of the neck by a falling chandelier during a fire. He had corrective surgery for a cervical spine condition. Evert had been employed as a fire fighter by the City of Lake Forest for over 19 years.

After the administrative hearings, the Board, on February 4, 1988, found that while Evert’s condition was such as to disable him from the performance of his duties as a fire fighter, such a condition was due to degenerative changes in his lower back rather than due to the performance of his duties as a fire fighter. However, the Board awarded Evert a “not-in-duty” disability pension pursuant to section 4 — 111 of the Code.

A “line-of-duty” disability pension provides for the payment of 65% of an individual’s salary, while a “not-in-duty” pension pays 50% of such salary. (Ill. Rev. Stat. 1987, ch. 1081/2 pars. 4 — 110, 4— 111.) Fire fighters are required to contribute a small percentage of their salary toward the cost of their pension. Ill. Rev. Stat. 1987, ch. 1081/2, par. 4 — 118.1.

Claimant’s prior, degenerative condition in his lower back is not disputed. The central issue on appeal is whether the Board erred in finding that claimant’s disability was due to the degenerative changes in his lower back and not due to the performance of his duties as a fire fighter. More specifically, the issue is whether it was against the manifest weight of the evidence for the Board to find that the lifting injury did not aggravate a preexisting physical condition, thereby barring claimant from a “line-of-duty” pension.

It is well established that the provisions governing police and firemen’s pensions must be liberally construed in favor of the applicant. (Olson v. City of Wheaton Police Pension Board (1987), 153 Ill. App. 3d 595, 598.) In Olson, this court determined that evidence of a preexisting physical disability does not bar a “line-of-duty” disability pension where it can be shown that a claimant’s disability was caused by an “act of duty” which aggravated his preexisting condition.

The findings of an administrative agency on questions of fact are prima facie true and correct, and a reviewing court may set aside such findings only if they are against the manifest weight of the evidence. (Ernzen v. Board of Trustees of Batavia Firemen’s Pension Fund (1981), 96 Ill. App. 3d 1143, 1147.) A judgment is against the manifest weight of the evidence when it appears from the record that an opposite conclusion is clearly evident. The decision of the Board will be reversed only where it is against the manifest weight of the evidence or it is without substantial foundation in the record. (Ernzen, 96 Ill. App. 3d at 1148.) To make such a finding, a court must conclude that all reasonable and unbiased persons, acting within the limits prescribed by the law and drawing all inferences in support of the finding, would agree that the finding is erroneous and the opposite conclusion is clearly evident. (Hahn v. Police Pension Fund (1985), 138 Ill. App. 3d 206, 209.) It is not sufficient that there are mere conflicts in the testimony or that an opposite conclusion might be reasonable; since the weight of the evidence and the credibility of the witnesses are within the province of the agency, there need be only some competent evidence in the record to support its findings. Hahn, 138 111. App. 3d at 209.

Section 4 — 110 of the Code providing for “line-of-duty” pension benefits states in pertinent part:

“If a firefighter [sic], as the result of sickness, accident or . injury incurred in or resulting from the performance of an act of duty or from the cumulative effects of acts of duty, is found, pursuant to Section 4 — 112, to be physically or mentally permanently disabled for service in the fire department, so as to render necessary his or her being placed on disability pension, the firefighter [sic] shall be entitled to a disability pension of 65% of the monthly salary attached to the rank held by him or her in the fire department at the date he or she is removed from the municipality’s fire department payroll.” 111. Rev. Stat. 1987, ch. IO8V2, par. 4 — 110.

By contrast, the “not-in-duty” disability pension provisions state:

“A firefighter [sic] having at least 7 years of creditable service who becomes disabled as a result of any cause other than an act of duty, and who is found, pursuant to Section 4 — 112, to be physically or mentally permanently disabled so as to render necessary his or her being placed on disability pension, shall be granted a disability pension of 50% of the monthly salary attached to the rank held by the firefighter [sic] in the fire service at the date he or she' is removed from the municipality’s fire department payroll.” 111. Rev. Stat. 1987, ch. lOSVa, par. 4 — 111.

The evidence in this case consisted of the testimony of the claimant, the testimony of his treating physician, Dr. Schell, and the reports of Drs. Schell, Pickard and Pawl. The reports of all three doctors attributed Evert’s disability to a degenerative condition in his lower back. Dr. Pickard characterized Evert’s condition as a chronic source of pain since 1984. Dr. Pawl stated that the claimant had recovered nicely from the surgeries. Neither Dr. Pickard nor Dr. Pawl went so far as to attribute claimant’s physical condition to the lifting injury. However, Dr. Schell did unequivocally state that claimant’s symptoms were aggravated at the time of the lifting injury. He stated that the degenerative process occurs over a long period of time. Nevertheless, when pressed as to whether it was the long-term degenerative process or the lifting injury that caused plaintiff’s disability, Dr. Schell could not respond with certainty. Neither could he say with certainty whether the degenerative process alone would ultimately have caused Evert’s disability. At the time of the lifting injury, Evert was 49 years old.

The claimant has the burden of proving that he was entitled to a “line-of-duty” pension, and the resolution of conflicts in the evidence is particularly within the province of the administrative agency. (Ernzen, 96 Ill. App. 3d at 1148.) Claimant had the burden of showing that the disability resulted from an act of duty rather than some other cause. Similarly, the Board was required to resolve any conflicts presented by the evidence. Claimant did not seek immediate medical attention. While his primary treating physician testified that the lifting injury aggravated Evert’s symptoms at that time, the evidence in the record permits the inference that the aggravation was of a temporary nature and that the ongoing degenerative process was the source of claimant’s disability. At best, Dr. Schell’s testimony indicates that the lifting injury may have been a factor in the disability. The reports of the other two doctors are silent as to the aggravating effect of the injury and clearly state that Evert’s disability was attributable to the degenerative condition.

A close review of the record compels us to conclude that claimant has not met his burden of proof. Since there is some competent evidence in the record to support the Board’s findings, we cannot say that those findings are erroneous and that the opposite conclusion is clearly evident. It is not sufficient that an opposite conclusion might be reasonable. (See, e.g., Lawless v. Industrial Comm’n (1983), 96 Ill. 2d 260, 264; Burrgess v. Industrial Comm’n (1988), 169 Ill. App. 3d 670, 676.) Therefore, we affirm the judgment of the circuit court confirming the Board’s decision.

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

Affirmed.

DUNN and LINDBERG, JJ., concur.


author: JUSTICE WOODWARD

text:
    MELROSE PARK NATIONAL BANK, as Trustee, Plaintiff-Appellee, v. CAPITOL BANK & TRUST, Defendant-Appellant.
    Second District
    No. 2—88—0717
    Opinion filed March 7, 1989.

      Joel A. Stein, of Laser, Schostok, Kolman & Frank, of Chicago (Melbourne A. Noel, of counsel), for appellant.
    Ralph L. Dichtl, of Wheaton (Lloyd E. Dyer, Jr., of counsel), for appel-lee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Machinery and materials in which defendant, Capitol Bank & Trust, held a security interest were left on the plaintiff’s property by tenant National Renovations, Inc. (National), which declared bankruptcy. Plaintiff, Melrose Park National Bank, as trustee, sued defendant to recover rental charges, cleanup costs, utilities, and fixtures allegedly wrongfully removed from the property. The trial court awarded plaintiff $21,403.06 in damages. This appeal followed. We reverse and remand for further proceedings.

On July 31, 1986, in the circuit court of Cook County, plaintiff, as trustee under trust No. 282, and the holder of legal title to the commercial property at 742 Factory Road, Addison, Illinois (property), was granted an order of possession in a forcible proceeding against the tenant, National, a concern that renovated auditorium seats. This order of possession was stayed until August 14, 1986. On August 12, 1986, National filed a bankruptcy petition under chapter 7 of the United States Bankruptcy Code (11 U.S.C.A. §101 et seq. (West 1979)). Said filing immediately invoked the automatic stay provision of the Bankruptcy Code. (11 U.S.C.A. §362(a)(3) (West 1979).) National had borrowed money from defendant during 1985 and had signed security agreements in favor of said defendant covering all of National’s equipment, inventory, and accounts receivable. Defendant had perfected its security interests in National’s accounts receivable, goods, equipment, furniture, fixtures, etc., by filing Uniform Commercial Code (UCC) financial statements with the Secretary of State and the recorder of Du Page County in June 1985. National ultimately defaulted on its loan payments to defendant, as well as its rent payments to plaintiff.

Plaintiff never sought to modify the automatic stay imposed by National’s bankruptcy petition. On September 10, 1986, defendant filed a motion to modify the bankruptcy stay. The bankruptcy court granted said motion on October 10, 1986. The modification order permitted defendant to foreclose on its security interest in National’s “accounts receivable, notes, goods, inventory, equipment, furniture, fixtures, general intangibles, jigs, tools, dyes and molds.” Later in October 1986, an order was entered by the bankruptcy court allowing the bankruptcy trustee to abandon its interests in National’s assets. Defendant conducted a UCC sale on November 25, 1986, selling reusable equipment and inventory to bidders at the sale. Those items not purchased at the sale were then sold the following week to National’s president, Shirley Gardner. No rent was paid to plaintiff by any party from August 1986 through the end of the year.

In the plaintiff’s case, George Guerine (George) testified that he was a semiretired attorney who is a beneficiary of Melrose Park National Bank trust No. 282, which holds title to the disputed property. The remaining beneficial owner of the property is the Guerine Trust. National took possession of the property two or three days before the scheduled beginning of the lease term, i.e., January 1, 1985, and continued in possession until sometime in July 1986, when George caused a five-day notice to be served upon it for the nonpayment of overdue rent. In a phone call to George, National’s attorney stated that National was unable to pay rent and that he was about to file a bankruptcy proceeding on its behalf. In the circuit court of Cook County, George filed a forcible entry and detainer suit in July, and he obtained an order for possession of the property dated July 31, 1986. This order was stayed until August 14, 1986.

On August 14, 1986, George and his nephew, Guy Guerine (Guy), entered the property and took possession of it. Guy (an employee of both Guerine & Company, which owns and operates a mobile home park, and the Guerine Trust, one of the beneficiaries of plaintiff trust No. 282) was responsible for maintaining and overseeing the Addison property. Upon entering the property, George observed both refuse and machinery in the building and a truck tractor and trailer outside the building. George next returned to the property sometime in November 1986, when he met with defendant’s representatives. He told them that defendant would have to pay rent if it wanted “to stay there.” One of defendant’s representatives stated, “Yes, we have to pay rent.” Further, George told them that defendant should pay what the prior tenant had paid, i.e., $5,000 a month. Defendants never made any rent payments, and George sent a letter of notice to defendant sometime in November, demanding that it vacate the property.

On cross-examination, George admitted that he did not know who brought onto the property the material which he had observed when taking possession of the building in August 1986. He obtained copies of National’s bankruptcy petition after he had filed his forcible proceeding against the company. He did not know when the bankruptcy petition was filed. George had been told by the bankruptcy trustee that the latter’s interest in the property would be abandoned. George did not know exactly when the trustee abandoned the property. He never moved to modify the automatic stay imposed by the Bankruptcy Code. None of the defendant’s representatives ever agreed to pay any specific amount of rent.

Guy Guerine then testified that he was employed by the Guerine Trust to manage its properties, including the Addison property; that he had negotiated the lease with National; and that prior to National moving in, the property had been cleaned and was in good condition. National moved out of the building in July 1986. At or about the end of July 1986, Guy drilled the locks out of the building, entered it, and changed the locks “with the permission of the court.” On entering the building, Guy observed a baking oven, a conveyor system, an air compressor, a paint spray booth, portable tools, and drills. He also noted large numbers of auditorium seats in various states of reconditioning. Outside the building stood a semitractor and trailer. Guy was in charge of cleaning the premises after the tenant left; he hired employees from Guerine & Company to perform various janitorial tasks. Most of the refuse was hauled away in dumpsters by Browning-Ferris Industries. A representative of defendant asked Guy to provide electricity to the building during the UCC sale. He complied and received bills for the electricity used.

Guy recalled a late October 1986 meeting at which George and he met with defendant’s representatives, Joel Stein and Robert Jones. Stein agreed that if defendant were to leave the security items on the property, it would have to pay rent. No specific dollar amount was established.

Subsequent to that meeting, the overhead oven, conveyor system, air compressor, paint spray booth, and other items were sold and removed from the premises by the buyers. Plaintiff had nothing to do with this sale, but plaintiff, commencing in December 1986, cleaned up the premises, which was completed in March 1987.

Defendant’s auctioneer had the electricity turned on in the building during the month of November. Thereafter, the electricity was kept on in order to facilitate cleaning the premises.

On cross-examination, Guy stated that defendant did not bring anything onto the property and that the refuse on the property had been put there by National. He also admitted that during August, September, and October 1986, he had total control of the property.

Robert Jones, a loan officer with defendant, was called as an adverse witness by the plaintiff. In connection with his employment, Jones had made loans to National. He authorized the hiring of an auctioneer for the purpose of conducting an auction of National’s secured property. The auction’s proceeds were applied to the unpaid balance of National’s loan with defendant. Defendant did not pay for any refuse service or any cleanup expenses of the property.

Jones was on the property three times in June 1986. Following National’s abandonment in July 1986, Guy let him into the property on two occasions, and on the third occasion, the auctioneer was there with a key to the premises. On cross-examination, Jones stated that no one had ever given him a key to the property and that, to his knowledge, nobody from the bank had ever brought any refuse onto the property. Jones stated that the unpaid loan to National in July 1986 had an approximate balance of $277,000 and was secured by all of National’s assets.

Jones then testified on defendant’s behalf and stated that he did not enter the property after National filed for bankruptcy and that he did not have any meetings on the premises until October 29, 1986. By that time, plaintiff had taken possession of the building. The meeting of October 29 had not taken place earlier because National’s bankruptcy petition prevented defendant from going onto the property. Defendant moved the bankruptcy court to modify the Code’s automatic stay provision for purposes of asserting its interest in the secured items. It obtained an order to do so on October 10, 1986.

Jones never indicated to Guy that the defendant would pay rent. Defendant did not give anyone authority to enter into such an agreement. On October 29, 1986, Jones observed that the defendant’s collateral occupied only about a quarter of the property. After the end of November, the defendant did not claim any interest in any materials still located on the premises. Jones did not recall ever asking Guy to permit defendant to continue keeping its collateral on the property.

Jones stated that defendant did not conduct the UCC sale until November 25, 1986, because it could not get into the premises any sooner, due to the automatic stay of the bankruptcy. Also, time was needed to notify people of the sale.

On the theory of quantum meruit, the trial court found for plaintiff; it found defendant had the benefit of storing the equipment and other materials on the site from August through November 1986, and held that defendant was liable for $14,790 in rent. Also, the trial court determined that defendant was liable for $6,297 in cleanup costs and $316 in utilities.

On appeal, defendant argues that the trial court erred in awarding plaintiff rental and cleanup damages.

Initially, defendant argues that provisions of the Bankruptcy Code prevented it from taking possession of the property during part of the period for which it was charged with rent. Section 362(a)(3) of the Code provides:

“Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title *** operates as a stay, applicable to all entities, of—
* * *
(3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate ***.” (11 U.S.C.A. §362(a)(3) (West 1979 & Supp. 1988).)

Defendant maintains that when National filed a chapter 7 petition on August 12, 1986, said action invoked the automatic stay provision in the Code. Defendant then cites a number of cases in which the Federal courts have liberally interpreted the scope of the automatic stay. In re Computer Communications, Inc. (9th Cir. 1987), 824 F.2d 725 (partner of bankrupt debtor in a joint marketing and development agreement violated automatic stay by unilaterally terminating contract with debtor); In re Whitt (Bankr. E.D. Pa. 1987), 79 Bankr. 611 (tenant debtor protected by automatic stay from eviction by old landlord even if she has moved to different premises from the one in which she resided at the onset of the case).

Defendant contends that, under the case law, once National’s bankruptcy petition was filed on August 12, 1986, neither plaintiff nor defendant had any right to take possession of the property or the machinery and items contained therein. Defendant maintains that only after the bankruptcy court granted defendant’s motion to modify the automatic stay on October 10, 1986, could it legally begin foreclosing on its security interest in National’s assets. Further, defendant asserts that only after the bankruptcy trustee abandoned his interest in National’s assets in late October 1986 did plaintiff have any right to take control over the secured property. Thus, defendant argues that it cannot be liable for rent in the months it was unable to take possession of its security interests, namely, September and October 1986.

Moreover, defendant argues that it is logically impossible under the doctrine of quantum meruit to predicate a lender’s liability for rent on nothing more than the presence within the leased premises of a debtor’s goods, which are not owned by the lender and which cannot be dealt with in any manner without violating bankruptcy law.

Further, defendant contends that the case relied upon by the trial court, Elliot v. Villa Park Trust & Savings Bank (1978), 63 Ill. App. 3d 714, does not support the instant rent award. First, the Elliot court found the secured lender liable only for “storage charges,” not the rent. Second, the Elliot court found that the lender had invoked its security interest in the debtor’s machine shop equipment prior to the debtor’s bankruptcy petition and after the debtor had terminated his lease with plaintiff. Defendant argues that none of the Code's obstacles to the creditor’s and landlord’s efforts to obtain possession which arose in the present case existed in Elliot.

In response, plaintiff argues that the facts of Elliot v. Villa Park Trust & Savings Bank (1978), 63 Ill. App. 3d 714, are remarkably similar to the instant case. Plaintiff maintains that all facts relied upon by the Elliot court to create an implied contract are present here. Plaintiff points out that from the beginning of August 1986, defendant made it clear that it intended to assert its security interest in the property and to deal with the debtor’s property as its own. Further, defendant’s agents and employees entered the property from time to time, possessed a key to the building, and used the building to conduct an auction. Plaintiff maintains that all of the facts relied on by Elliot to create an implied contract are present in this case.

Further, plaintiff argues that it had already completed forcible proceedings in State court and judgment had been entered in July 1986, terminating National’s possession rights. Thus, plaintiff concludes that when the bankruptcy petition was filed on August 12, 1986, National had no interest in property that was subject to the automatic stay provisions.

Initially, we note that the property was subject to the Code’s section 362(a)(3), the automatic stay provision. Though plaintiff obtained a forcible judgment on July 31, 1986, the State court stayed that judgment until August 14, 1986. National’s bankruptcy petition was filed on August 12, 1986; thus, an automatic stay was in effect before the forcible judgment took effect. Until the bankruptcy court modified the automatic stay, plaintiff was prevented from taking control of the property and defendant was prevented from taking control of the secured items on the property.

Under these circumstances, the only appropriate damages that could be awarded under a quantum meruit theory are the storage and the electricity costs incurred by defendant which defendant agrees to pay. (Elliot, 63 Ill. App. 3d at 717-18.) Rental damages would be thoroughly inappropriate under these facts, which demonstrate that defendant never had control over the property from August to the end of November 1986. Guy Guerine admitted that plaintiff controlled the property from August through October 1986. Defendant’s agents were only allowed on the property to prepare for and to conduct the November 25, 1986, UCC sale of the secured items on the property.

Moreover, rather than seeking to modify the automatic stay so that it could regain possession of the property as quickly as possible and make preparations for its rental to a new tenant, plaintiff did nothing. As early as mid-August 1986, plaintiff could have moved the bankruptcy court for permission to remove defendant’s secured items from the property, paving the way to finding a new tenant. It is unlikely the bankruptcy trustee would have opposed such a motion since it had abandoned its interest in National’s assets in October 1986. Additionally, plaintiff took upwards of three months to clean the property following the UCC sale. This indicates that plaintiff was in no particular hurry to find a tenant to replace National.

Having failed to avail itself of routine measures to mitigate the consequences of the tenant’s bankruptcy, the plaintiff is unpersuasive in arguing that it held the property from September to November solely for the benefit of the defendant. Furthermore, plaintiff’s argument that, at the defendant’s request, it did not rent to another tenant is not supported by the record.

Defendant’s September 10, 1986, motion to modify the stay so that it could assert its security interest in the items on the property was granted on October 10, 1986. We find that the earliest possible date which defendant could have begun to foreclose on its security interest was October 11, 1986. Therefore, the appropriate date from which to calculate defendant’s storage costs is October 11, 1986, the first date on which defendant could have begun asserting its possession of the secured items. The storage costs concluded November 30, 1986, at which point defendant had sold or removed all secured assets from the property. On remand, the trial court shall hold proceedings to determine the proper value of said storage costs for this P/s-month period.

Defendant next argues that it did nothing to incur the cleanup costs awarded by the trial court. Defendant maintains that the award of $6,297 was not based on any factual findings and that the trial court disregarded the evidence as to ownership of the refuse.

Defendant points out that the defendant’s primary witness, Robert Jones, established that defendant sold all remaining assets after the UCC sale to Shirley Gardner, National’s president. The evidence, states defendant, clearly demonstrates that any refuse on the property after early December 1986 did not belong to defendant, which never claimed a security interest in the refuse but belonged instead to National and the foreclosure sale purchasers, notably, Shirley Gardner, an officer of National.

Upon careful review of the record, we find no evidence to support the trial court’s award of cleanup damages. The refuse cleanup was the function of plaintiff as landlord. National’s security deposit of $4,930 was intended to cover such costs. Moreover, the idea that defendant was in any way responsible for the presence of the refuse on the property finds no support in the record. Guy Guerine admitted that defendant did not bring any of the refuse onto the property. Consequently, we find that the trial court erred in granting any damages for refuse removal and cleanup of the property, which were plaintiff’s responsibilities.

For reasons stated above, we reverse the judgment of the trial court and remand this cause of action for further proceedings consistent with this opinion.

Reversed and remanded.

LINDBERG and McLAREN, JJ., concur.