author: PRESIDING JUSTICE LEWIS

text:
    MAGNA FIRST NATIONAL BANK AND TRUST COMPANY, Plaintiff-Appellant, v. BANK OF ILLINOIS IN MT. VERNON, Defendant-Appellee.
    Fifth District
    No. 5—89—0053
    Opinion filed March 27, 1990.

      Joel A. Kunin and Steven M. Wallace, both of Carr, Korein, Schlichter, Tillery, Kunin & Montroy, of East St. Louis, for appellant.
    Douglas A. Antonik and David M. Raymond, both of Law Office of Douglas A. Antonik, of Mt. Vernon, for appellee.
   PRESIDING JUSTICE LEWIS

delivered the opinion of the court:

The plaintiff, the Magna First National Bank and Trust Company, had sued the defendant, the Bank of Illinois in Mt. Vernon, for conversion of the proceeds of the sale of the inventory of Moll Furniture Company, Inc. (the debtor), in which the plaintiff had a perfected security interest under the Uniform Commercial Code-Secured Transactions (UCC) (Ill. Rev. Stat. 1987, ch. 26, par. 9—101 et seq.). Both the plaintiff and the defendant filed motions for summary judgment, and both of the parties submitted this case for consideration by the court on the pleadings, on their stipulation, and on the memorandums of law filed in this case. The circuit court entered summary judgment for the defendant, and the plaintiff appeals. The only issue raised by the plaintiff is the sufficiency of the description of the collateral in the defendant’s financing statement under section 9—402(1) of the UCC (Ill. Rev. Stat. 1987, ch. 26, par. 9—402(1)).

The facts of this case are as follows: The defendant was assigned the security agreements between Mark Twain Northland Bank and the debtor. These security agreements, which consisted of three separate documents, gave the defendant a secured interest in the debtor’s accounts receivable, equipment, and inventory. A financing statement, filed with the Secretary of State on September 8, 1983, perfected the defendant’s security interests.

Likewise, the plaintiff executed a security agreement with the debtor in which it was given a secured interest in the debtor’s furniture and equipment, accounts receivable, and inventory. The plaintiff perfected its security interest in this collateral by filing a financing statement with the Secretary of State on April 9, 1985.

The plaintiff does not dispute that the defendant has a prior perfected security interest in the debtor’s accounts receivable and equipment. Clearly, the defendant had a perfected security interest which was superior to the plaintiff’s security interest with regard to the debtor’s accounts receivable and equipment, since the defendant’s security interest had attached (Ill. Rev. Stat. 1987, ch. 26, par. 9—203(1)) and had been perfected by the defendant’s filing of its financing statement prior to the plaintiff’s filing of its financing statement (Ill. Rev. Stat. 1987, ch. 26, pars. 9—302(1), 9—303(1), 9—312(5)(a)).

The problem presented by the plaintiff is whether the language used in the defendant’s financing statement was sufficient to include the debtor’s inventory that was held for resale in the defendant’s security interest. The language of the defendant’s financing statement stated that the financing statement covered the following types (or items) of property:

“Security Agreement on all present and future Accounts Receivable, proceeds arising therefrom, chattel paper, contract rights and general intangibles however evidenced or acquired. Security Agreement on all machinery and equipment, furniture and fixtures now held, purchased with loan proceeds or hereafter acquired and all additions and accessions thereto. Security Agreement on all Goods of the Debtor being prepared for sale or being furnished under a contract of service, including raw materials, work in process, or materials used or consumed in the business of the Debtor.” (Emphasis added.)

It is the language of the last sentence contained in the defendant’s financing statement with which the plaintiff takes issue. The plaintiff claims that this language was insufficient as it did not use the term “inventory” and only gave a laundry list of certain types of inventory, none of which included goods held for resale, and therefore, the defendant’s security interest in the debtor’s inventory was not perfected, and the defendant had no rights whatsoever in the proceeds of the sale of the inventory. Because the plaintiff’s financing statement used the term “inventory” in its description of the collateral, the plaintiff argues that it had a perfected security interest in the proceeds of the sale of the inventory which was superior to the defendant’s nonperfected security interest in the inventory and, thus, the court’s order was erroneous.

The formal requisites for the sufficiency of a financing statement are that the names of the debtor and the secured party be given, that the financing statement be signed by the debtor, that the addresses of both the debtor and the secured party be given, and that “a statement indicating the types, or describing the items, of collateral” be given. (Ill. Rev. Stat. 1987, ch. 26, par. 9—402(1).) For a description of collateral to be sufficient, the financing statement need not be specific, but it must reasonably identify what it describes. Ill. Rev. Stat. 1987, ch. 26, par. 9—110.

The statute classifies “goods” into four different types, those being “consumer goods,” “equipment,” “farm products,” and “inventory.” (Ill. Rev. Stat. 1987, ch. 26, par. 9 — 109.) The definition of “inventory” given in the statute is, in pertinent part, as follows:

“Goods are
* * *
(4) ‘inventory’ if they are held by a person who holds them for sale or lease or to be furnished under contracts of service or if he has so furnished them, or if they are raw materials, work in process or materials used or consumed in a business.” (Ill. Rev. Stat. 1987, ch. 26, par. 9—109(4).)

When the language of the foregoing quoted statute is compared to the language of the defendant’s financing statement, it is evident that the defendant’s financing statement parallels the language of the statutory definition of the term “inventory.”

Illinois has adopted the “notice filing” system for secured transactions, and the purpose of the financing statement is to put third parties on notice that the secured party who filed it may have a perfected security interest in the collateral described, and that further inquiry into the extent of the security interest is prudent. (Allis-Chalmers Corp. v. Staggs (1983), 117 Ill. App. 3d 428, 453 N.E.2d 145; Interstate Steel Co. v. Ramm Manufacturing Corp. (1982), 108 Ill. App. 3d 404, 438 N.E.2d 1381.) The statute itself provides that the description of collateral in the financing statement need not be specific, but only needs to reasonably identify the collateral. (Ill. Rev. Stat. 1987, ch. 26, par. 9—110.) The fact that the defendant’s financing statement was similar to the statutory definition of the term “inventory,” coupled with the purpose of the financing statement of simply providing notice, was sufficient to place the plaintiff on notice that the defendant may have a security interest in the debtor’s inventory, and it was the plaintiff’s obligation to check further to confirm the extent of the defendant’s secured interest. Therefore, we find that the circuit court’s determination that the defendant’s financing statement was sufficient to give the plaintiff notice of the defendant’s secured interest was not erroneous.

Further, we also note that the defendant’s security agreement for the debtor’s inventory was broader and was more specific than the defendant’s financing statement, and that it clearly granted the defendant a secured interest in the debtor’s inventory held for resale. The plaintiff, in its brief, conceded this point. Thus, the situation here was one in which there was a difference between the defendant’s security agreement with the debtor and the defendant’s financing statement, in that the defendant’s financing statement did not delineate in complete detail what was stated in the security agreement. As we noted previously, the purpose of the financing statement is to put third-party creditors on notice of the possibility of another secured interest in the collateral described; however, it is the security agreement itself which creates or provides for the security interest. (Allis-Chalmers Corp., 117 Ill. App. 3d 428, 453 N.E.2d 145.) Where there is a conflict between a financing statement and a security agreement, it must be the security agreement which delineates the rights of the secured party, provided that the financing statement was sufficient to put a third party on notice that the collateral may be subject to a security interest. As this court stated in Allis-Chalmers, a financing statement cannot expand or reduce the security interest created by the parties. (Allis-Chalmers Corp., 117 Ill. App. 3d 428, 453 N.E.2d 145.) Because we have held that the defendant’s financing statement was sufficient to give notice to third-party creditors with regard to the debtor’s inventory and subsequently the proceeds of the sale of that inventory, it is clear that the defendant’s secured interest, created by and set forth in the security agreement, was for all of the debtor’s inventory.

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

Affirmed.

RARICK and CHAPMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE CHAPMAN

license: Public Domain

text:
    HARRISBURG COMMUNITY UNIT SCHOOL DISTRICT NO. 3, PlaintiffAppellant, v. RALPH STEAPLETON et al., Defendants-Appellees.
    Fifth District
    No. 5—89—0131
    Opinion filed March 28, 1990.

      Timothy L. Fornes, of Rath & Fornes, of Harrisburg, for appellant.
    Michael P. Oshel, P.C., of Harrisburg, for appellees.
   JUSTICE CHAPMAN

delivered the opinion of the court:

On December 8, 1987, the Board of Education of the Harrisburg Community Unit School District No. 3 (Harrisburg School District) resolved that the property known as Independence School would be sold. Notice of public sale of the property was published in the Harrisburg Daily Register pursuant to section 5 — 22 of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 5—22). The notice provided, inter alia, that the minimum bid for the property would be $50,000, and that the playground equipment and portable classroom were reserved. No bids were received at the public sale.

Subsequent to the public sale, defendant Ralph Steapleton made a written offer to purchase the property from the regional school board for $52,100. Defendant offered to “purchase *** the building known as Independence School together with all present real estate contingent with said building.” Defendant’s offer was accepted and a quitclaim deed was executed on behalf of the Regional Board of School Trustees of Gallatin, Hardin, Pope and Saline Counties, naming as grantees Ralph Steapleton and Joann Steapleton. The deed provided a legal description of the real estate to be conveyed and made no mention of any reservations.

After closing on the sale of the property, the plaintiff, without objection by the defendants, removed the playground equipment from the premises. Upon attempting to arrange for the removal of the portable classroom, the Steapletons informed plaintiff that they considered the portable classroom to be theirs and refused to allow its removal. On October 11, 1988, Harrisburg School District filed a complaint- in replevin, seeking possession of the portable classroom and damages for its retention. After a hearing the trial court denied plaintiff’s prayer for issuance of a writ of replevin. A trial on the merits of plaintiff’s complaint was conducted December 22, 1988. In an order dated February 3, 1989, the trial court found that the portable classroom was realty and was not subject to a replevin action, and although plaintiff may have intended to reserve possession of the classroom, the issue was never discussed by the parties nor was it a condition of the sale to defendants. The court dismissed plaintiff’s complaint in replevin. Plaintiff appeals from the trial court’s order.

Two issues are presented for our review. Plaintiff contends that the trial court’s order dismissing plaintiff’s petition for a writ of replevin is against the manifest weight of the evidence and is an abuse of discretion. Plaintiff also contends that the court erred in excluding one of its witnesses from testifying at trial. We will address the witness-exclusion issue first.

At the commencement of the trial, defendant’s counsel moved to exclude witnesses. The court allowed the motion. After counsel for both parties made their opening statements, plaintiff called Mr. George Ewell as a witness. Mr. Ewell was present in the courtroom during opening statements even though prior to trial the court had ordered all witnesses excluded. The court, thereupon, sustained defendants’ objection to Mr. Ewell testifying.

It is within the discretion of the trial court to grant motions to exclude witnesses from the courtroom. (People v. Bodeman (1982), 105 Ill. App. 3d 39, 43, 433 N.E.2d 1140, 1144.) Whether to allow one who has been in the courtroom in violation of the court’s order to testify is within the sound discretion of the trial court, and the court’s ruling will not be disturbed unless the party offering the witness was deprived of material testimony without his fault. (People v. Bridgeforth (1972), 51 Ill. 2d 52, 63, 281 N.E.2d 617, 623, appeal dismissed (1972), 409 U.S. 811, 34 L. Ed. 2d 66, 93 S. Ct. 100.) Absent a manifest abuse of discretion, the trial court’s decision will not be disturbed on review. (People v. Dixon (1961), 23 Ill. 2d 136, 140, 177 N.E.2d 206, 208.) Plaintiff argues that the purpose of the rule to exclude witnesses is to prevent them from hearing the testimony of other witnesses. Plaintiff contends that because Mr. Ewell was privy only to opening arguments of counsel, he did not hear any testimony and, therefore, should not have been excluded from testifying. In sustaining defendants’ objection, the court explained that although the opening statements of counsel are not evidence, they are intended to convey to everyone what the evidence is going to be. Once the order to exclude witnesses has been made, the court’s ruling on whether to allow witnesses who violate the rule to testify will not be disturbed absent a manifest abuse of discretion. (People v. Bodeman (1982), 105 Ill. App. 3d 39, 43, 433 N.E.2d 1140, 1144.) In the case at bar, no offer of proof was made as to what testimony Mr. Ewell would have given. We note that plaintiff has not indicated on appeal what Mr. Ewell’s testimony would have been had he been allowed to testify. In the absence of an offer of proof, we are not prepared to say that in excluding the testimony the trial court abused its discretion.

The merits of this appeal concern the trial court’s order dismissing plaintiff’s petition for writ of replevin. A replevin action is an action to recover possession of goods wrongfully distrained or otherwise wrongfully taken or detained, brought by the owner or person entitled to their possession. (Ill. Rev. Stat. 1987, ch. 110, par. 19—101.) In Illinois, replevin is strictly a statutory proceeding and the requirements of the statute must be followed precisely. Universal Credit Co. v. Antonsen (1940), 374 Ill. 194, 200, 29 N.E.2d 96, 99; Jim’s Furniture Mart, Inc. v. Harris (1976), 42 Ill. App. 3d 488, 490, 356 N.E.2d 175, 177.

In the instant case the pivotal issue is whether the court erred in finding the portable classroom to be a part of the realty and, therefore, not subject to replevin. To determine whether an item is personalty and not part of the realty, three factors are considered: (1) the nature of its attachment to the realty; (2) its adaptation to and necessity for the purpose for which the premises are devoted; and (3) whether it was intended that the item in question should be considered part of the realty. (See Kreisman & Co. v. First Arlington National Bank (1981), 91 Ill. App. 3d 847, 852, 415 N.E.2d 1070, 1074.) Intent is the preeminent factor, the other considerations being primarily evidences of intent. Owings v. Estes (1912), 256 Ill. 553, 556, 100 N.E. 205, 206.

In considering these factors as applied to the present case, we see from the testimony elicited at the first hearing to determine whether a writ of replevin should issue that the portable classroom is affixed to the realty. Dr. Carpenter, superintendent of schools of Community Unit District No. 3, testified that the portable classroom does not rest on a concrete slab or other foundation, but is supported by concrete building blocks. He testified that there is plumbing to the building which extends from two bathrooms in the building, out to a septic tank. There is also a connection bringing water into the classroom and a power line. Even if we assume the building can be disconnected without damage to the remaining freehold, that an item may be removed does not conclusively establish that it is personalty where it is clear that there is an intention to permanently improve the property by its installation. (See Crane Erectors & Riggers, Inc. v. La Salle National Bank (1984), 125 Ill. App. 3d 658, 662, 466 N.E.2d 397, 400.) We consider the nature of the portable classroom’s attachment to be of minimal value to determining whether Harrisburg School District intended to permanently improve the property. Testimony was given that whenever portable classrooms are used at a school site, in order to be functional they have to have such amenities. Testimony of school officials established that although generally the portable classrooms remained at given sites for years, they were at times moved to different locations as needed.

With regard to the second factor for consideration, testimony established that the portable classroom was conveniently adapted for use on the premises, whether that use be as a classroom or as an office or living quarters as Ralph Steapleton testified he might use it as.

In considering the third factor of whether the portable classroom was intended to be considered part of the realty, we note that in Illinois personalty affixed to the realty does not necessarily lose its identity as personalty. Property remains personalty where such intent can be gathered from the conduct or the action of the parties. (Landfield Finance Co. v. Feinerman (1972), 3 Ill. App. 3d 487, 490, 279 N.E.2d 30, 33.) In the case at bar the only suggestion made to the defendants that the portable classroom was not considered part of the realty stemmed from two incidents occurring prior to the public auction of the property. Vernon Ford, a custodian employed by the plaintiff, testified that in early spring of 1988, Dr. Carpenter instructed him to display the premises to the Steapletons because they were interested in purchasing the property. Mr. Ford testified that he advised the Steapletons at that time that the portable classroom was not to be included in the sale. Ralph Steapleton denies any recollection of Mr. Ford advising him of this. The only other indication that defendants had notice that the portable classroom was not to be included in the sale was the newspaper publication concerning the public sale of the property, wherein it was stated that the portable classroom was reserved. Although the testimony of plaintiff’s remaining witnesses establishes that no discussions or correspondence took place between the parties to inform the defendants that the portable classroom was considered personalty by the plaintiff, plaintiff argues that the terms included in the notice of public sale were binding upon the parties in the instant sale. Plaintiff refers to section 5 — 22 of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 5—22) in support of its argument.

Section 5 — 22 provides the school board with authority to sell real estate within the school district. The statute provides a form notice which may be used for the purposes of such sales by public sale, auction, or sealed bid. It is uncontested that the Harrisburg School District published a notice of public sale in conformance with section 5 — 22, which included a provision reserving the portable classroom to the sellers. In situations such as the case at bar, where sealed bids are taken after no bids are received at a public sale, the statute does not require that the notice of sale be republished if the minimum selling price is met. In addition, the statute does not provide that all terms and conditions of sale included in the notice of public sale are binding upon the parties in a subsequent sale of the realty by sealed bid. In this case the defendant’s written offer to purchase referred to “the building known as Independence School together with all present real estate contingent with said building,” and the deed made no mention of any reservations. We decline to adopt plaintiff’s interpretation of section 5 — 22 that the terms included in the notice of public sale were binding upon the defendants even though they did not bid on the property at the public sale.

We conclude that although the Harrisburg School District may have intended to retain possession of the portable classroom, the evidence does not show that it conveyed this intent to the defendants, either by its conduct or its actions. The written offer and the deed are the clearest expressions of the parties’ intent. We affirm the judgment of the trial court.

Affirmed.

HOWERTON and RARICK, JJ., concur.


author: JUSTICE WELCH

text:
    JOHNNIE C. GOUGE et al., Plaintiffs-Appellants, v. CENTRAL ILLINOIS PUBLIC SERVICE COMPANY, Defendant-Appellee.
    Fifth District
    No. 5—89—0122
    Opinion filed April 2, 1990.
    Rehearing denied April 27, 1990.

      Brad L. Badgley, of Heiligenstein & Badgley, P.C., of Belleville, for appellants.
    Sorling, Northrup, Hanna, Cullen & Cochran, Ltd., of Springfield, and Bleyer & Bleyer, of Marion (R. Gerald Barris, John A. Kauerauf, and James B. Bleyer, of counsel), for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Plaintiffs, Johnnie C. and Vicki K. Gouge, appeal from the dismissal with prejudice of their lawsuit against defendant, Central Illinois Public Service Company, for injuries suffered by Johnnie Gouge when the automobile he was driving collided with a utility pole owned by defendant. On February 10, 1989, the circuit court of Franklin County dismissed with prejudice plaintiffs’ second amended complaint for failure to state a cause of action, finding that defendant bore no duty to plaintiff because it could not have reasonably foreseen that plaintiff would drive his vehicle so as to leave the roadway and hit the utility pole in question.

Plaintiff alleges in his pleadings that the accident in question happened in the early morning hours of August 7, 1986. Plaintiff was returning home after visiting several taverns with friends. He was driving his automobile on a rural highway approaching a sharp curve to his right. Plaintiff failed to negotiate the curve, but drove straight ahead, off the roadway, and into a wooden utility pole owned and maintained by defendant. The utility pole was located off the traveled portion of the roadway and had attached to its top portion a 7,200-volt transformer which was, apparently, filled with a flammable substance. Upon collision, the utility pole fractured approximately 10 to 12 feet above the ground. The top portion of the pole with the transformer attached fell onto plaintiff’s vehicle and through the windshield. Although the transformer remained attached to the top portion of the utility pole, it apparently broke open, the flammable substance contained -within it spilled out and ignited and plaintiff was horribly burned. Plaintiff suffered severe, permanent and disabling injuries for which he seeks damages. Plaintiff’s wife, Vicki K. Gouge, seeks damages for loss of consortium.

Plaintiffs’ second amended complaint, filed November 21, 1988, alleges that defendant was negligent in the installation of its utility pole in that,

“a) Contrary to ANSI C2, National Electric Safety Code, Rule 261C and 282A, installed and/or permitted to remain in place, the aforesaid pole with a guy wire attached to the accident pole that was out of line with the strain from the wires coming across the road from the take-off pole to the accident pole;
b) Failed to add a second guy wire to the accident pole alongside the fencerow at the scene of the occurrence, extending away from the road; [and]
c) Failed to place a single guy wire in line with the wires coming across the road from the take-off pole.”

On January 26, 1989, defendant filed a motion to dismiss plaintiffs’ second amended complaint for failure to state a cause of action. The motion argued that the complaint fails to allege sufficient facts to plead an essential element of the cause of action, that is, a duty of care on the part of defendant owed to plaintiff under the circumstances alleged. Specifically, the motion argued that defendant owed no duty of care to plaintiff because it was not reasonably foreseeable to defendant that plaintiff would drive his vehicle in such a manner as to leave the roadway and collide with this particular utility pole. In its memorandum in support of this motion, defendant relied primarily on two cases, Hoffman v. Vernon Township (1981), 97 Ill. App. 3d 721, 423 N.E.2d 519, and Boylan v. Martindale (1982), 103 Ill. App. 3d 335, 431 N.E.2d 62. Both of those cases held that a public utility owed no duty with respect to placement of its utility poles to motorists who collided with the poles when their vehicles left the roadway because it was not reasonably foreseeable that the motorists would deviate from the roadway in the ordinary course of travel and strike the utility poles.

Hearing was held on the motion on February 3, 1989, the court taking the matter under advisement. On February 9, 1989, plaintiffs filed a motion for leave to file a third amended complaint. On February 10, 1989, the court issued its written order. Relying on the Hoffman and Boylan cases cited by defendant, the court held that it was not foreseeable that plaintiff would deviate from the roadway in the ordinary course of travel and strike the utility pole in question and that, therefore, defendant owed no duty to plaintiff. Accordingly, the trial court dismissed plaintiffs’ complaint with prejudice for failure to state a cause of action, thereby also denying plaintiffs’ motion to amend their complaint. We think the trial court erred in relying on the Hoffman and Boylan cases because they are legally distinguishable from the instant case and, consequently, erred in dismissing plaintiffs’ complaint with prejudice.

In Hoffman and Boylan, plaintiffs brought actions against utility companies for injuries sustained when vehicles in which their decedent and incompetent, respectively, were traveling left the roadway and collided with utility poles. In both cases, the plaintiffs’ complaints alleged no breach of any duty other than the location or placement of the poles. Plaintiffs did not allege any other defect in the utility poles, and the injuries were incurred as a result of the impact of the collisions and not from any other alleged defect in the utility poles. Thus, plaintiffs’ causes of action were essentially for negligent location of the utility poles.

In both cases the appellate court held that the utility companies owed no duty to the plaintiffs because it was not reasonably foreseeable that the cars would deviate from the roadway in the ordinary course of travel. Those cases established the now-accepted principal of law that a utility company owes no duty to travelers upon a roadway with respect to possible hazards off the roadway unless the traveler may foreseeably deviate from the roadway in the ordinary course of travel. This principle makes sense when one is talking about negligent location of a utility pole in light of the factors to be taken into consideration in imposing a duty, i.e., the likelihood of injury from the existence of a condition, the magnitude of guarding against it, and the consequences of placing the burden upon the defendant. (Hoffman, 97 Ill. App. 3d at 724, 423 N.E.2d at 521.) While it is common knowledge that vehicles sometimes leave the roadway and strike utility poles (Boylan, 103 Ill. App. 3d at 346, 431 N.E.2d at 70-71), it is, in most cases, almost impossible to foresee the precise location where a vehicle may do so. To impose liability on utility companies for their location of utility poles, then, is too great a burden unless the pole is placed at a location where it is reasonably foreseeable that cars may deviate from the roadway in the ordinary course of travel. This is especially so in light of the public policy favoring placement of utility poles along highway right-of-ways for a necessary public benefit. Hoffman, 97 Ill. App. 3d at 727, 423 N.E.2d at 523.

In the instant case, however, plaintiffs’ suit is not one for negligent location of the utility pole, but for negligent installation of the pole. Plaintiff seeks damages not for injuries incurred from the impact with the utility pole, but for injuries incurred when the allegedly improperly installed utility pole fractured and fell on his car. Plaintiffs’ complaint alleges that defendant did not exercise reasonable care in installing the pole in that the pole was misguyed. We think there is a significant difference between the causes of action for negligent location in Hoffman and Boylan and the cause of action for negligent installation in the case at bar and find that the trial court erred in relying on those cases in determining that defendant owed no duty to plaintiffs in the case at bar.

We must still determine, however, whether defendant did owe a duty to plaintiff to exercise reasonable care in the installation of its utility pole in the case at bar. Factors to be considered in determining whether such a duty existed are the foreseeability of the possible harm, the likelihood of injury from the existence of a condition, the magnitude of guarding against the harm and the consequences of placing the burden upon the defendant. Hoffman, 97 Ill. App. 3d at 724, 423 N.E.2d at 521.

We think that it is foreseeable that an improperly guyed utility pole may fracture and fall or may simply topple over, whether from weather conditions, strain from other wires running from the pole, the passage of time or collision with an automobile. In order for liability to attach, it is not necessary that the exact method by which the injury occurred could have been expected. (Blue v. St. Clair Country Club (1955), 7 Ill. 2d 359, 364, 131 N.E.2d 31, 34.) It is sufficient if some resulting injury could have been reasonably foreseen. (Blue, 7 Ill. 2d at 364, 131 N.E.2d at 34.) It is also foreseeable, and indeed likely, that if a utility pole such as the one in the instant case, which was located within a few feet of a public roadway, falls, it may cause harm to passers by who are lawfully on or near the public roadway. The magnitude of guarding against this harm is not great, for defendant need only properly guy those utility poles which reasonable care dictates require guy wires. From the record, it would appear that industry standards exist which describe when and how to properly attach guy wires to utility poles. Presumably, this is a burden which the utility company has already undertaken. Indeed, requiring utility companies to properly guy those utility poles which require guy wires is not at all an unreasonable burden, but is one which should be imposed on utility companies.

In summary, a utility company owes a duty to the general public to exercise reasonable care in the installation of its utility poles. Where reasonable care requires that the utility pole have guy wires attached, the utility company must exercise reasonable care in attaching them.

In the instant case, the utility pole in question had attached to it one guy wire. Plaintiffs’ complaint alleges that this guy wire was improperly attached or that this particular pole required a second guy wire. It is plaintiffs’ burden to prove these allegations at trial. If the utility pole was negligently installed or guyed and that negligent installation was, at least in part, a proximate cause of plaintiffs injuries, the defendant should be held liable to plaintiffs. Again, the burden of establishing proximate cause is on plaintiffs. Finally, that plaintiff, through his own negligence, may have contributed to the accident and his injuries does not bar plaintiffs’ claims, but merely serves to reduce their recovery.

A cause of action should be dismissed with prejudice on the pleadings only if it clearly appears that no set of facts can be proved which will entitle the plaintiffs to recover, and then only if it is apparent that even after amendment, if leave to amend is sought, no cause of action can be stated. (Crinkley v. Dow Jones & Co. (1978), 67 Ill. App. 3d 869, 874, 385 N.E.2d 714, 717-18.) In order to state a cause of action for negligence, the allegations of the complaint must establish the existence of a duty owed by defendant to plaintiff, a breach of that duty, and an injury proximately resulting from that breach. (Watkins v. Mt. Carmel Public Utility Co. (1988), 165 Ill. App. 3d 493, 496, 519 N.E.2d 10, 12.) Whether a duty is owed by a defendant to a plaintiff under the facts of a particular case is a question of law to be determined by the court. (Watkins, 165 Ill. App. 3d at 496, 519 N.E.2d at 12.) In the instant case, the trial court determined as a matter of law that plaintiffs had not pled sufficient facts to establish the existence of such a duty, and that even after amendment plaintiffs would not be able to plead sufficient facts to establish a duty. We disagree and find that plaintiffs’ second amended complaint did state a cause of action for negligent installation of the utility pole. Accordingly, we reverse the order of the trial court dismissing plaintiffs’ complaint with prejudice and remand this cause for further proceedings on that complaint.

For the foregoing reasons, the judgment of the circuit court of Franklin County is reversed and this cause is remanded.

Reversed and remanded.

HARRISON and GOLDENHERSH, JJ., concur.


author: JUSTICE GOLDENHERSH

text:
    THE DEPARTMENT OF PUBLIC AID ex rel. BRANDI CHIAPELLI et al., Plaintiffs-Appellees, v. VITO VIVIANO, Defendant-Appellant.
    Fifth District
    No. 5—89—0271
    Opinion filed April 2, 1990.
    Michael R. Bilbrey, of Hopkins & Bilbrey, P.C., of Granite City, for appellant.
    Joan A. Spiegel, of Becker & Motil, P.C, of Granite City, for appellee Brandi Chiapelli.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, Vito Viviano, appeals from an order of the circuit court of Madison County granting the petition for child support of plaintiff. In this cause, defendant raises a number of issues, all of which we decline to answer, as we find the order appealed from is not final and appealable. We hold instead that this appeal must be dismissed.

The relevant facts show that plaintiff, Brandi Chiapelli, was born on November 28, 1972. In April 1974, plaintiff’s mother, Vicki Chiapelli, now Vicki Ashton, and defendant herein submitted to a court order wherein defendant denied paternity, but consented to a court-approved settlement in which defendant paid plaintiff’s mother $3,000. A release of judgment was filed with the court on September 20, 1974, indicating the sum paid. On December 19, 1984, the Illinois Department of Public Aid filed a complaint on behalf of plaintiff in an attempt to establish the paternity of defendant. On September 18, 1987, after an evidentiary hearing, defendant was found to be the natural and biological father of plaintiff.

On October 8, 1987, defendant filed a motion for summary judgment and a memorandum in support of that motion. In both, defendant argued that the lower court did not have jurisdiction to modify the April 1974 order. On March 7, 1988, a guardian ad litem was appointed for plaintiff. On June 15, 1988, the guardian ad litem filed a petition for support on behalf of plaintiff and by her next friend, her mother. On January 31, 1989, the circuit court ordered defendant to pay child support in the amount of $450 per month, but withheld its decision regarding retroactive child support. On March 29, 1989, the trial court entered an order concerning retroactive support, the relevant portion of which stated:

“A. Defendant’s obligation to pay child support is retroactive to March 1985. Defendant is ordered to produce evidence of his income commencing February 1985 and present [sic] to the Guardian ad litem within 14 days of the entry of this order. Retroactive support shall be at the rate of 20% of Defendant’s net income. The amount of retroactive support and method of payment will be set upon receipt of proof of income.”

The 1970 Constitution provides that “[a]ppeals from final judgments of a Circuit Court are a matter of right to the Appellate Court.” (Ill. Const. 1970, art. VI, §6.) The appellate court, subject to exceptions for appeals from interlocutory orders specified in the supreme court rules, is without jurisdiction to review judgments, orders, or decrees that are not final. (Flores v. Dugan (1982), 91 Ill. 2d 108, 112, 435 N.E.2d 480, 482.) The specified exceptions in the supreme court rules which allow appeals from interlocutory orders are not applicable in this case, because first, under Supreme Court Rule 307 this case does not involve an issue which allows for an interlocutory appeal as a right (107 Ill. 2d R. 307), and second, under Supreme Court Rules 306 and 308 neither a petition for leave to appeal nor an application for leave to appeal has been filed with this court (107 Ill. 2d Rules 306, 308). A final judgment has been defined as a determination by the court on the issues presented by the pleadings which ascertains and fixes absolutely and finally the rights of the parties in the lawsuit. Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 119, 382 N.E.2d 1217, 1219.

In the instant case, it is apparent that if we affirmed there would be much more remaining than the mere execution of the judgment. Specifically, the trial court set retroactive support at 20% of defendant’s net income, but had not yet determined what the amount would be. This is not a mere ministerial act upon which a calculation can easily be measured, as there are potential disputes about the materials submitted, the inferences drawn from any material, and the amounts to properly be considered in arriving at a net upon which 20% can be assessed. (See sections 505(3)(a) through (h) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, pars. 505(3)(a) through (h)) as mandated by section 14(a) of the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1987, ch. 40, par. 2514(a)); see also Ivanyi v. Granoff (1988), 171 Ill. App. 3d 411, 526 N.E.2d 189.) Additionally, the method of payment was not addressed by the trial court, but was delayed until defendant submitted proof of income.

The potential disputes that could arise over the 20% figure and the method of payment make this an order which lacks the essentials of a final judgment. Finality lacking, we are forced to dismiss this appeal.

For the foregoing reasons, this cause is dismissed.

Dismissed.

HARRISON and WELCH, JJ., concur.


text:
    LANDMARK STRUCTURES, INC., Plaintiff and Counterdefendant-Appellant, v. F.E. HOLMES AND SONS CONSTRUCTION COMPANY, INC., Defendant and Counterplaintiff-Appellee (American Insurance Company, Defendant-Appellee).
    Fifth District
    No. 5—88—0787
    Opinion filed April 6, 1990.

      Ronald E. Fuhr, of Parker, Siemer, Austin, Resch & Resch, of Effing-ham, for appellant.
    G. Patrick Murphy, of Winters, Brewster, Murphy, Crosby & Patchett, of Marion, for appellees.
   PRESIDING JUSTICE LEWIS

delivered the opinion of the court:

The plaintiff, Landmark Structures, Inc. (hereafter referred to as Landmark), brought an action to recover an alleged balance of $154,072.35 due on a contract between it and the defendant, EE. Holmes and Son Construction Company, Inc. (hereafter referred to as Holmes). Under the contract, entered into on October 12, 1982, the plaintiff was to provide prefabricated wall panels or units to the defendant for use in the construction of three multifamily apartment complexes located in Anna, Vienna, and Metropolis, Illinois. Plaintiff sued the defendant American Insurance Company as surety. As one of its affirmative defenses, Holmes alleged that certain of the panels were not merchantable, in violation of section 2—314 of the Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, par. 2—314), and that Holmes’ damages incurred on account of Landmark’s breach exceeded the amount of Landmark’s claim. The defendant Holmes counterclaimed against Landmark, alleging that on June 28, 1982, Holmes had entered into a contract with the Illinois Housing Development Authority for the construction of what is known as Country Village I in Anna, Country Village II in Vienna, and Country Village III in Metropolis. Holmes alleged in the counterclaim inter alia that the goods specified in the agreement between it and Landmark had been nonconforming “in that the siding was not affixed to the wallboard in accordance with specifications and the vapor barrier was not properly affixed in accordance with specifications.” Holmes alleged further that the goods specified in the agreement between it and Landmark were not of even kind and quality and were not fit for the ordinary purposes for which goods are sold in that the siding buckled from the wallboard from which it was attached in violation of section 2 — 314 of the Uniform Commercial Code. Holmes had, it alleged, substituted goods for the nonconforming ones provided by Landmark at an expense to Holmes of $143,211.63.

Following a bench trial, conducted on October 24 and 25, 1988, the trial court entered judgment in favor of Holmes and against Landmark on Landmark’s complaint and on Holmes’ counterclaim. The amount of the judgment on the counterclaim was $53,421.81. Upon the trial court’s denial of Landmark’s post-trial motion, this appeal followed in which six issues are presented for our review: (1) whether the contract between Landmark and Holmes contained a valid disclaimer of warranties pursuant to section 2—316 of the Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, par. 2—316); (2) whether the contract between Landmark and Holmes contained a valid limitation of remedies pursuant to section 2—719 of the Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, par. 2—719); (3) whether the damages awarded to Holmes on its counterclaim were supported by the evidence; (4) whether Holmes’ exhibits Nos. 11, 12, 13 and 14, consisting of summaries of back charges, should have been admitted into evidence; (5) whether Holmes met “its burden of proof to show the absence of an intervening cause of the buckling of the siding”; and (6) whether one who provides materials specifically designated in a construction contract is liable if those materials are defective or are later shown to be unsuitable.

Lewis Martin, who in October of 1982 had been Landmark’s president, testified on behalf of Landmark concerning Landmark’s exhibit No. 1, which the witness described as an “order form” whose purpose was “to tell us what to build and what options to supply.” This exhibit consists of several pages, the first several of which are on buff-colored paper. The first page of this exhibit, unlike the remaining pages, is printed on both sides. The front of the first page bears Landmark’s logo and the heading “ORDER FORM MULTI-FAMILY SPECIAL BUILDINGS.” The total amount of the contract, set forth on the front of this page, is $786,262.60. The signature “R.L. Holmes” appears at the bottom of the front of this page on the line above the words, in bold print in black ink, “SIGNATURE OF AUTHORIZED PERSON,” which is immediately above the words in bold print in brown ink, “PER ‘CONDITION OF SALE’ REVERSE SIDE.” On the reverse side are 11 paragraphs, number 10 of which is designated “Warranty and Disclaimer.” In subparagraph (b) of this paragraph, the following appears in capital letters:

“MANUFACTURER ASSUMES NO OBLIGATION BEYOND THAT SET FORTH IN THIS AGREEMENT, AND CONTRACTOR ACCEPTS THE FOREGOING IN PLACE OF INCIDENTAL OR CONSEQUENTIAL DAMAGES THAT MAY BE INCURRED BY THE CONTRACTOR. THE FOREGOING SHALL BE CONTRACTOR’S SOLE REMEDY AND SHALL BE IN LIEU OF ALL WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A SPECIFIC PURPOSE OR LOCATION.”

As a result of the agreement, the witness stated, Landmark delivered panels and materials to Holmes. On cross-examination the witness stated that Jimmy Maxwell was the salesperson who had taken this exhibit to be executed by Holmes. The witness was not present when the exhibit was signed. Jimmy Maxwell did not testify.

Landmark called as an adverse witness Richard Lynn Holmes, who is the defendant’s president. He testified that the signature on Landmark’s exhibit No. 1 was his. On cross-examination he testified that at the same time he signed Landmark’s exhibit No. 1 in his office he also signed Holmes’ exhibit No. 2 in the presence of the salesperson Jimmy Maxwell. No one else from Landmark was present at the time. He described the front of the first page of Landmark's exhibit No. 1 and the front of the first page of Holmes’ exhibit No. 2 as “identical except for color.” Appearing on Holmes’ exhibit No. 2, which is white, is the witness’ original signature, “R.L. Holmes,” in ink that has been smudged since the time of signing. Unlike the back of Landmark’s exhibit No. 1, the back of Holmes’ exhibit No. 2 is blank; nor do the contents of the back of Landmark’s exhibit No. 1 appear anywhere else in Holmes’ exhibit No. 2 as, for example, on a separate page. The other pages of these two exhibits are identical; Holmes’ exhibit appears to be a photocopy of Landmark’s exhibit that was made prior to Holmes’ signing of both documents. The witness testified that before he signed these two documents he had not, to his knowledge, discussed or negotiated the conditions of sale appearing in Landmark's exhibit No. 1 with Jimmy Maxwell or anyone else from Landmark. After Richard Holmes signed the two documents, Jimmy Maxwell took with him Landmark’s exhibit No. 1 and left with the witness Holmes’ exhibit No. 2. The witness, who has a degree in engineering from the University of Illinois and has been in the construction business most of his life, testified that he made no inquiry that he knew of concerning the condition of sale referred to on Holmes’ exhibit No. 2, saying, “Well, I would have, yes, when I saw a note like this, I would have looked at the back side. If there were none, then being an engineer, it says what it says, it is what it is.”

Landmark called as a witness Joe DeAngelo, who had been Holmes’ superintendent, or project supervisor, while the Country Village apartment project was going on. He described Lynn Holmes as having been above him in the chain of command and himself as the person responsible for the day-to-day building activity at all three sites. At the time of trial the witness was no longer in Holmes’ employ. It is undisputed that the siding affixed by Landmark as a part of its prefabricated wall panels was Champion Sturbridge siding; Landmark used that particular siding because it had been specified by the architect. This siding was not made by Landmark but was manufactured by Champion International Corporation (hereafter referred to as Champion), which is not a defendant herein. Landmark purchased the siding from Champion and sold it to Holmes. At the jobsite prefabricated wall panels, with the siding attached, are put into place with the use of a crane. The witness described Champion Sturbridge siding as “a pressed board or composition board, fiberboard,” or “what carpenters would call cheap siding,” an inexpensive, “low quality siding.” During the course of construction of the three apartment complexes, this siding buckled severely and was removed and replaced. According to the witness, moisture caused the siding to expand and buckle. “I think,” he said, “the material that the siding is made of has a tendency to absorb moisture, whether it be rain or humidity, and as it absorbs moisture, it expands.” He described this siding as “notorious for expanding.” The witness defined a vapor barrier as “a water proof membrane” used between the stud and the sheetrock on the exterior walls of a structure to prevent moisture from penetrating the wall. He said that a polyethylene is generally used as a vapor barrier. The witness did not think, upon the basis of his own experience, that the presence or absence of a vapor barrier had anything to do with the buckling of the siding because a vapor barrier is used in heated areas of a structure to keep moisture outside from penetrating the interior. He stated further that, although the nails used by Landmark to attach the siding were not those specified in the siding manufacturer’s installation sheet, the nails were, in his opinion, “adequate.” On cross-examination the witness testified that there was “severe” buckling of the siding at all three sites and that the siding was unacceptable to the owner, to the architect, to Holmes, and to the inspector for the Illinois Housing Development Authority, which provided the financing for the project. Although much of the siding could be and had been applied to the wall panels by Landmark prior to shipping them to the jobsites, some of the siding must be applied at the job site, and Holmes so applied it. The witness expressed the opinion that the people who had worked under him had not done anything to the siding to cause it to buckle as it did, adding that, although he would have expected some buckling, the siding had “buckled worse than I would have expected it to.”

Another witness for Landmark was Max O’Donnell, Landmark’s general manager and president since March or April of 1983. He testified on cross-examination that, because of certain credits by Landmark to Holmes, the amount of the contract price of $786,262.60 remaining unpaid by Holmes was $89,399.12. Concerning the vapor barrier, he indicated that Landmark installs insulation in the wall panel “depending upon the customer’s order.” Here the manufacturer of the Champion Sturbridge siding had specified two ways that insulation was to be installed, as set forth in Holmes’ exhibit No. 9, depending upon whether the insulation was to be installed merely as insulation or whether it was to serve as a vapor barrier as well. If insulation with an “integral vapor barrier” is used, tabs accompanying the insulation must be stapled on the side of the studs facing the interior of the structure so that a vapor barrier that is continuous is created. Otherwise installed, the insulation does not serve as a continuous vapor barrier; in such a case, a six mil polyethylene film, known by the trade name of Visqueen, is required to be applied as a continuous vapor barrier over the insulation. The witness indicated that in the kind of construction engaged in by Landmark, the insulation cannot be used as a continuous vapor barrier for two reasons: (1) because in “panelization” there is a gap where the two panels come together and (2) because electrical boxes and the like have to be installed at the site and the installation of such items would require tears or breaks to be made in the “continuous blanket” of the continuous vapor barrier, with the result that the requirement of the continuous vapor barrier would not be met. He stated that it is standard practice in the industry for an owner or a contractor to purchase insulation with an integral vapor barrier and then to go ahead and purchase an additional vapor barrier to cover it. Asked whether the “plans and specs on these jobs called for the installation of Visqueen vapor barrier over this,” the witness answered, apparently referring to an exhibit of wall panel not made available to this court upon review:

“Yes, sir, it does, unless if I went back and done my work right, there’s been a little line typed in the architect’s specs over which would be above the standard that says that if it’s not installed like this, then a 6 mil polyethylene must be installed prior to the drywall after, well, it doesn’t say anything about the electrical boxes, those are the main reasons for it. See, if you again would take a piece of wiring, you’re going to have to cut into this stud somehow to drill holes to run this wiring from box to box; either that, or if you run it from top to bottom, you’re still going to have to get in there.”

Landmark called as a witness Michael E. Sheppard, the designing and inspecting architect on the three Country Village projects. He agreed with the view he had earlier expressed that the presence or absence of a vapor barrier was totally insignificant with respect to the buckling of the siding because, when the buckling was first noticed, the buildings were not framed or completely enclosed and there was no heat in them. The witness had first learned of the buckling -of the siding by a telephone call on December 6, 1982, and inspected all three sites himself two days later. The witness had in his field reports of December 8, 1982, noted that “[wjhere siding was installed by panel manufacturer and siding is not complete between first and second floor-siding should be protected to prohibit any water from penetrating behind siding, most specifically at the top edge.” In his field report of December 21, 1982, he referred to measures necessary to protect work in place, including exposed sheathing. He stated that, based upon that observation, the sheathing still had not been protected. He had been concerned, he said, about moisture getting behind the siding, that is, between the siding and the sheathing, because the presence of such moisture could contribute to the buckling or warping of the siding. Asked on cross-examination whether, in his opinion, “this was just inferior siding,” he responded that “my opinion would be that that product, the performance of it and the extent of the problem was a result a [sic] manufacturing problem as much or more so than it was some of the other questions that were raised.” He expressed the view that the difference in the nails specifically recommended by the manufacturer of the siding and those used by Landmark was “insignificant.” It appears that on December 23, 1982, the Illinois Housing Development Authority had determined that no further payouts would be made until the problem with the siding was resolved. He stated that if the buckling condition of the siding had not been corrected by Holmes, the buckled siding would not have been acceptable to him as the inspecting architect and he would have recommended to the owner that it was unacceptable. As general contractor, he said, Holmes was responsible for correcting that condition. The witness had found no difference in the buckling of the siding whether applied by Landmark or by Holmes.

Holmes called as a witness concerning its counterclaim Tom Logan, a builder and developer and the owner of the project in question. He testified that all three sites had similar problems, that the problem in some places was more severe than in others, but that the buckling was “generally everywhere.” Before this job, he said, he had built 300 to 400 residential buildings or units; based upon his experience in the construction industry in building these residential units, he stated, the siding he observed on his units in December of 1982 would not have been acceptable to any owner anywhere.

Pertaining to the counterclaim, Richard Holmes testified that in January of 1983 Holmes started tearing off and replacing the Champion Sturbridge siding, used at all three sites. Holmes removed and replaced the siding itself after Lewis Martin had told the witness that Landmark could not send “field personnel down and do this work in the field.” Landmark provided the replacement siding to Holmes. The replacement siding was the same kind of siding used originally, that is, Champion Sturbridge, which was, upon replacement, accepted by both the owner and the architect. The witness testified and was cross-examined at length concerning the expenses incurred by Holmes associated not only with the removal and replacement of the siding but also with errors made by Landmark and corrected by Holmes that were not related to the siding problem. The witness stated that Holmes had never sent an invoice to Landmark for the expenses associated with removing and replacing the siding, but that while this work was being done, he had had regular discussions with Lewis Martin in order to coordinate the sending of materials to the sites. The witness said further:

“[Landmark] could not come down and help us out and were not giving us any help. I.H.D.A. was telling us get this done or we will finish the job and send you the bill, which could have been devastating. So at that point we were really focusing on trying to complete this project, get things organized and squared up and save our butts, really. And we weren’t nearly as concerned with sending paper through the mail and billing and this, that and the other. Landmark knew we were incurring these costs, they knew we were talking about charging them for them. I knew that they were saying that we’re not in agreement with this. But at this point we were just trying to get done what we had to get done.”

Richard Holmes testified, with the aid of summary exhibits, that Holmes’ total cost of removing and replacing the siding at the site in Anna was $45,606.75, at the site in Vienna was $24,827.21, and at the site in Metropolis was $29,978.64. The charges for expenses not associated with the problems related to buckling of the siding, he testified, amounted to $42,408.33; he described these charges as “more average, normal, run of the mill type charges, errors that had to be field corrected,” most of which had been incurred, he thought, prior to the development of the siding problem. Such charges included expenses for completing work specified by the architect but omitted by Landmark. Asked whether there was anything unusual about having these kinds of back charges on a project, the witness responded, “Not really, no, everybody makes mistakes.” The witness indicated that invoices had been sent to Landmark for these charges, stating, “[W]e generally would call them to let them know about it. We would have to correct the work and then we would send an invoice in. If [stc] fact, we even had a meeting at one point to approve almost every one of those invoices.” The meeting had been held in November or December of 1982 with Lewis Martin and an owner or major stockholder of Landmark. All of these expenses together, those for the removal and replacement of the siding and those for expenses unrelated to the buckling of the siding, amount to $142,820.93.

Among the charges unrelated to the buckling of the siding appears to be a payment of $14,108.50 by Holmes to a subcontractor, “Phillips and Arnold,” for repairs and application of Yisqueen on exterior walls at all three sites; the witness explained as follows Holmes’ claim for this charge against Landmark:

“Well, this was the removal of the sheet rock that was already on the walls and the installation of the vapor barrier. When I.H.D.A. and the architect and so on disallowed and came back and said the nails were wrong, the vapor barrier is done improperly and you must tear off all siding and replace it, on those areas where we already had sheet rock on the opposite — on the interior face of the wall, the only way to correct that vapor barrier was to tear the sheet rock off and put a vapor barrier on there, the Yisqueen, and then put the sheet rock back on. We had all this sheet rock work subcontracted to this Phillips and Arnold anyway as doing the original work. So we had them go in and remove that old sheet rock, correct the vapor barrier and then put it on, as well as put vapor barrier over the remaining exterior walls.”

Holmes’ employees apparently also spent time removing sheetrock, and Holmes sought damages as well for wages so paid. The "witness testified that, whether the vapor barrier had anything to do with the buckling of the siding, it had not been installed properly, “according to Champion specifications,” to provide for a vapor barrier. He indicated that, if the insulation is stapled according to the instructions in Holmes’ exhibit No. 9, a continuous vapor barrier exists and there would be no need to apply the Visqueen. He testified further that insulation with an integral vapor barrier, such as was provided here by Landmark to Holmes, is more expensive than insulation without such a barrier. It is inaccurate to say, he testified, that if Landmark applied the insulation according to the “specs,” Holmes could not do its job in the field. Asked how Holmes would deal with the problems Max O’Donnell had discussed concerning installation of the insulation according to the specifications, the witness responded:

“The same way you would if you have to install a box in that panel, you have to cut that insulation. Now that box that he showed us will not squeeze into a depth of that space. When you put that box on there and nail it on, you’re going to punch a hole in that insulation. That’s just a fact of life and it happens every day all the time. The wiring can be run horizontally, it can also feed straight down from the top. When you do that, whether you’re in that panel or this panel, you press the insulation back, the wire comes down in front of it and the sheet rock or whatever goes over the face of it. It’s just the way it works. It isn’t a perfect system but that’s the way they’re built.”

On cross-examination he was asked whether it was readily apparent to him by looking, it seems, at one or more exhibits of wall panels that no vapor barrier was present. To this question the witness responded in the affirmative.

In its judgment the trial court expressly found that there was no agreement between Landmark and Holmes to disclaim any warranty or warranties regarding the siding in issue and that the siding furnished to Holmes by Landmark was not merchantable as required by section 2—314 of the Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, par. 2—314) because the siding was not fit for the ordinary purposes for which siding was used; of even kind, quality, and quantity within each unit and among all units involved; of fair, average quality within each description; and was not merchantable and was, therefore, defective. The trial court found that judgment should be rendered for Holmes against Landmark on the counterclaim in the amount of $53,421.81, which figure is expressly ascertained by deducting $89,399.12, the amount of the contract price remaining unpaid by Holmes, from $142,820.93, the amount of all of the damages claimed at trial by Holmes. The award of damages was not itemized in any way.

We turn first to the issue whether the contract between Landmark and Holmes contained a valid disclaimer of warranties pursuant to section 2 — 316 of the Uniform Commercial Code. Landmark contends that paragraph 10(b) on the back of the first page of Landmark’s exhibit No. 1 specifically mentions the warranty of merchantability, that paragraph 10(b) is conspicuous, and that Landmark’s exhibit No. 1 and Holmes’ exhibit No. 2 should be construed together, giving effect to the disclaimer of warranties contained in Landmark’s exhibit No. 1. Landmark urges the “course of performance” of Holmes in not having billed Landmark for any charges related to removal and reinstallation of siding as evidence of the parties’ intent that warranties were disclaimed and that Holmes believed its remedy was replacement of the siding as specified in Landmark’s exhibit No. 1. Holmes takes the position that the plaintiff, Landmark, failed to show that the parties agreed to disclaim or limit warranties, contending that Landmark’s argument concerning disclaimer is “based entirely upon an agreement which it failed to prove and which the trial court found did not exist.”

The findings and judgment of the trial court in nonjury cases will not be disturbed by the reviewing court if there is any record evidence to support the finding. (Briggs v. Gaddis (1985), 133 Ill. App. 3d 704, 479 N.E.2d 350.) An appellate court takes a deferential approach to findings of fact made by the trial court and will not substitute its judgment unless the findings are against the manifest weight of the evidence; for a judgment to be against the manifest weight of the evidence, it must appear that the conclusions opposite to those reached by the trier of fact are clearly evident. (First Security Bank v. Bawoll (1983), 120 Ill. App. 3d 787, 458 N.E.2d 193.) In view of the evidence presented, we think that the trial court could reasonably have concluded from the testimony of Richard Holmes, whom it apparently found to be a credible witness, that at the time of signing the two documents, which were provided by Landmark, his attention was called to the back of the first page of Holmes’ exhibit No. 2 by the words in bold print on the front of that page, “PER ‘CONDITION OF SALE’ REVERSE SIDE,” but that, upon examination, the reverse side of the page proved to be blank. Inasmuch as the front page of Holmes’ exhibit No. 2 appears to be a photocopy of the front page of Landmark’s exhibit No. 1, Richard Holmes could have inferred that the back of the front page of Landmark’s exhibit No. 1 was, likewise, blank. After the two documents were signed, Landmark's representative, Jimmy Maxwell, took Landmark’s exhibit No. 1 with him, leaving Holmes with its exhibit No. 2 containing no disclaimer. Jimmy Maxwell, who was the only representative of Landmark present when the documents were signed, did not testify. In fact, Richard Holmes was the only person who testified concerning the actual signing of these two documents. Further, he stated that to his knowledge he had neither discussed nor negotiated with Jimmy Maxwell or anyone else from Landmark the conditions of sale appearing on the back of the front page of Landmark’s exhibit No. 1 prior to signing the two documents. His testimony was not contradicted. In light of Richard Holmes’ explanation concerning Holmes’ failure to bill Landmark for the expenses associated with the removal and replacement of the siding, the trial court could have concluded that Holmes’ “course of performance” in this regard did not indicate a belief on its part that its remedy was replacement of the siding. The trial court could have determined from the evidence that Holmes had no knowledge of the disclaimer of warranties, or reason to believe that such a disclaimer existed, at any time prior to and during the execution of the contract and could not, therefore, be deemed to have assented to such a term. The evidence in the record supports the trial court’s finding that there was no agreement between Landmark and Holmes to disclaim any warranty concerning the siding in question. Hence, we will not disturb that finding.

As its second issue raised for review, Landmark asks us to consider whether the contract between Landmark and Holmes contained a valid limitation of remedies pursuant to section 2 — 719 of the Uniform Commercial Code. Landmark asserts for the reasons stated in support of its first issue that the terms of paragraph 10(b), on the back of the first page of its exhibit No. 1, should have been found to be a valid part of the contract. However, in light of our holding concerning the first issue presented, we need not consider this one further.

With respect to the third issue raised, whether the damages awarded to Holmes on its counterclaim were supported by the evidence, Landmark observes that Holmes claimed two kinds of damages, one for charges related to the replacement of the siding and the other for “more ‘run of the mill charges’ not related to the siding problem.” Landmark disputes the award of damages for the removal of the sheetrock and the installation of the vapor barrier, contending that they were awarded as consequential damages for breach of the implied warranty of merchantability; Landmark views these damages, which include the sum of $14,108.50 paid to Phillips and Arnold, as falling within the category of damages related to the siding problem, arguing that they were improperly awarded as consequential damages arising out of the breach of warranty. However, the record indicates that Holmes did not seek reimbursement for expenses related to the removal of the sheetrock and the installation of the vapor barrier as consequential damages arising out of the breach of the implied warranty of merchantability associated with the buckling of the siding.

At trial Holmes put on evidence, through the testimony of Richard Holmes, indicating that the Illinois Housing Development Authority and the architect had determined that Landmark had not created a vapor barrier by applying the insulation as specified by Champion and that, as a result, the sheetrock had to be removed and Visqueen affixed to create a vapor barrier. The trial court heard the conflicting views of Landmark’s witness, Max O’Donnell, and Richard Holmes concerning the installation of the insulation according to Champion’s specifications in order to create a vapor barrier. As the trier of fact, the trial court could have believed that Landmark should have installed the insulation as directed by Champion and that, had it done so, the need to install Visqueen, and the necessity of removing the sheetrock to do so, would have been obviated. Landmark argues that “[i]t was also obvious to those Holmes employees installing the wall panels that they did not contain a vapor barrier at the time they were installed when the original sheetrock was put over them.” The record shows that Richard Holmes testified that it was readily apparent to him by looking, apparently, at an exhibit of a wall panel, that there was no vapor barrier in the panel. However, the record does not indicate that the absence of the vapor barrier was apparent to those employees of Holmes dealing with the wall panels in the field prior to or at the time of the initial installation of the sheetrock. Since the figure of $14,108.50 appears in Holmes’ exhibit No. 14 as a charge “not associated with buckling problems,” Holmes appears not to have been seeking these damages as a consequence of Landmark’s breach of the implied warranty of merchantability related to the buckling of the siding. The trial court apparently concluded that these damages occurred as a consequence of Landmark’s failure, as alleged in the counterclaim, properly to affix the vapor barrier in accordance with Champion’s specifications and awarded them accordingly. Since these damages appear not to have been awarded as a consequence of the breach of the implied warranty of merchantability, we need not consider further Landmark’s allegation of error in that regard.

Landmark questions the trial court’s award of damages for expenses associated with the protection of sheathing iising felt, arguing that the buckling of the siding did not cause the need to protect the sheathing. Landmark asserts that because some areas of the wall panels provided by Landmark were not able to be covered with siding at the time of manufacture but had to be covered at the site by Holmes, there were some areas where sheathing was exposed regardless of whether the siding subsequently buckled. Landmark contends that any damage award to Holmes should have excluded those charges for protecting sheathing that could not be covered with siding at the factory because these were expenses that Holmes would have borne whether or not the siding buckled. However, the trial court could have concluded from the testimony of Richard Holmes that none of the sheathing in question would have to have been protected had it not been for the delay occasioned by the buckling of the siding:

“As Michael Sheppard stated yesterday, he was concerned and kept noting on his reports that he was concerned about water getting behind the siding and the sheathing. We didn’t share as much of that concern as he did because, after all, it was only a week or two after we had noticed the problem that he started noting all this. The siding wouldn’t have been exposed any longer than that anyway. At any rate, in order to comply and to keep them happy, we started installing felt over all of the areas that they were concerned about and so on until everything could be taken off and replaced and so on. And we spent considerable time covering up a lot of this building with felt.”

Thus, the award for such damages was supported by the evidence, and the trial court did not err in awarding them as a consequence of the buckling of the siding.

With regard to damages awarded in the category of what Landmark calls “non-siding related damages,” Landmark argues that because the trial court made no finding that Landmark had breached its contractual obligations in any way other than by breach of the implied warranty of merchantability concerning the Champion Sturbridge siding, non-siding-related damages should not have been awarded. “As a result of such findings,” Landmark argues, “the Defendant could only recover those direct and consequential damages, relating from the breach of the implied warranty of merchantability as to the siding.” Since the non-siding-related damages, amounting to a total of $42,408.33 in Holmes’ exhibit No. 14, were unrelated to the siding and to the breach of the implied warranty of merchantability pertaining to the siding, Landmark reasons that the non-siding-related damages were improperly awarded to Holmes. “It was error,” Landmark asserts, “to award damages not related to the breach of warranty found by the trial court.” However, as Holmes points out, the trial court need not make any findings of fact; in the review of a judgment, the court will assume that all issues and controverted facts were found in favor of the prevailing party. (Nemeth v. Banhalmi (1984), 125 Ill. App. 3d 938, 466 N.E.2d 977.) An award of damages made by the trial court sitting without a jury will not be disturbed on appeal unless it is manifestly erroneous. (Lynch v. Precision Machine Shop, Ltd. (1982), 93 Ill. 2d 266, 443 N.E.2d 569; Hough v. Mooningham (1986), 139 Ill. App. 3d 1018, 487 N.E.2d 1281.) Not only was the trial court’s award of damages for the removal of the sheetrock and the installation of a vapor barrier supported by the record, as discussed above, but Richard Holmes testified concerning the other non-siding-related damages as shown in Holmes’ exhibit No. 14, which indicates a total of $42,408.33 for such damages. Examination of the record reveals that the award of damages in this amount for non-siding-related damages was not against the manifest weight of the evidence, and we do not disturb it.

In the fourth issue it raises for review, Landmark contends that Holmes’ exhibits Nos. 11, 12, 13, and 14, consisting of summaries of expenses incurred by Holmes, should not have been admitted into evidence. Holmes’ exhibits Nos. 11, 12, and 13 were summaries of charges related to the buckling of siding at the Anna, Vienna, and Metropolis sites respectively. Landmark disputes the accuracy of these summaries, arguing the unreliability of some of the underlying data supporting the summaries as revealed by Richard Holmes’ testimony. Holmes’ exhibit No. 14 is a summary of charges not related to the buckling of the siding. Landmark contends that this exhibit was inaccurate, unreliable, and should not have been admitted into evidence.

The admission of exhibits into evidence is largely within the discretion of the trial court; furthermore, the admission of exhibits into evidence which contain a summary of testimony given is within the discretion of the trial court. (Kohutko v. Four Columns, Ltd. (1986), 148 Ill. App. 3d 181, 498 N.E.2d 522.) Where a proper foundation is laid for the admission of summary evidence, the trial court does not abuse its discretion. (Kohutko, 148 Ill. App. 3d 181, 498 N.E.2d 522.) When original documents are voluminous and cannot conveniently be examined to extract the fact to be proved, any competent witness who has seen the originals may testify to the fact, provided it is capable of being determined by calculation. (In re Marriage of Westcott (1987), 163 Ill. App. 3d 168, 516 N.E.2d 566; Murray v. Kleen Leen, Inc. (1976), 41 Ill. App. 3d 436, 354 N.E.2d 415.) In addition, the documents summarized must be available in court or made available to the opponent. Westcott, 163 Ill. App. 3d 168, 516 N.E.2d 566.

Richard Holmes testified that the figures on the summaries were derived by him from “this stack of documents that is approximately a foot thick,” by which he appears to be referring to documents present in the courtroom. He testified that the “stack of documents” contained time sheets used by Holmes to prepare its payroll and charge sheets. Asked, “And just tell us how much work is it to actually get in those documents and pull out these figures and compute those?” the witness answered, “It took an awful lot of work, it’s last several weeks work.” In its brief Holmes states that “the records underlying the summaries were made available to the court and the plaintiff,” citing its two-page memorandum of law to the trial court, filed on October 24, 1988, on the issue of the admissibility of summaries. In this memorandum Holmes states that the four summaries detail the particulars of the back charges it claims against Landmark and are based upon the business records of Holmes, which “consist of thousands of pages of documents that are over one foot thick.” Holmes states further in the memorandum, “These documents have been bound and identified by category. All such documents have been served upon Landmark along with copies of the summaries.” Holmes concludes its memorandum by stating, “Here, the underlying records have not only been produced to Landmark, but summaries themselves have also been produced. Also, the underlying records have been categorized for the convenience of the court and opposing counsel. Finally, all such documents are before the court.” In its reply brief Landmark neither addresses nor denies Holmes’ assertions in this regard.

The record seems to indicate that the voluminous records were available to the court and to opposing counsel for purposes of inspection and cross-examination. Further, Richard Holmes testified at length upon both direct and cross-examination concerning not only the material contained in all four of the summary exhibits but also material contained in documents from which this witness derived information incorporated by him into the summary exhibits. Some of this material is included in the record for review, such as Holmes’ exhibits Nos. 17, 18, and 23, which were not offered into evidence by either party but are comprised of time sheets for back charges for each of the three jobsites, which Richard Holmes identified as records having been made in the regular course of Holmes’ business. Similarly, Richard Holmes testified concerning other of Holmes’ exhibits not offered into evidence but included in the record for review and comprised of invoices pertaining to non-siding-related charges. We do not agree with Landmark that all of what it describes as “inaccuracies” truly are such when Richard Holmes’ testimony concerning these matters is examined in context. Furthermore, we think that Landmark’s concerns about such inaccuracies are here properly directed to the weight to be given the summary exhibits rather than to their admissibility. Under the circumstances, the trial court appears not to have abused its discretion in admitting the four summary exhibits into evidence.

Landmark presents two further issues for review: whether Holmes met its burden of proof to show the absence of an intervening cause of the buckling of the siding and whether one who provides materials specifically designated in a construction contract is liable if those materials are defective or are later shown to be unsuitable. However, the cases Landmark cites in support of each of these issues, Griese v. Cory Pools, Ltd. (1978), 58 Ill. App. 3d 256, 373 N.E.2d 1383, and St. Joseph Hospital v. Corbetta Construction Co. (1974), 21 Ill. App. 3d 925, 316 N.E.2d 51, respectively, are inapposite to the instant one, and we consider the arguments advanced to be without merit.

Affirmed.

HARRISON and WELCH, JJ., concur.


text:
      In re MARRIAGE OF MARY NELLE DOUGLAS, Petitioner-Appellee, and JERRY A. DOUGLAS, Respondent-Appellant.
    Fifth District
    No. 5—88—0532
    Opinion filed April 10, 1990.

      Bruce D. Stewart, of Harrisburg, for appellant.
    W.A. Armstrong, of Mitchell & Armstrong, Ltd., of Marion, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Jerry Douglas appeals from a judgment of dissolution of marriage awarding maintenance, child support and attorney fees, and from the denial of his post-trial motion to vacate the judgment of dissolution.

Testimony in the divorce proceedings revealed that the parties were married in 1964. In the early years of their marriage, Mary was employed as a school teacher, while Jerry attended dental school. Mary has not been employed outside the home since 1972, except for substitute teaching, coaching a cheerleading squad, and geneology research, all of which Mary estimated generated a total annual income of approximately $2,800 in 1986, and $2,000 in 1987.

Soon after Jerry graduated from dental school in 1968, he opened an office in Vienna, Illinois, where his practice flourished. At one time he had eight employees working for him, including an associate. Jerry’s testimony revealed that his gross income for 1980 was $148,757; in 1981 it was $122,818; in 1982 it was $170,243; and in 1983 it was $155,917. He testified that like most dental practices, the expenses incurred in operating his office ran about 45% to 60% of his gross income. Over the years the parties grew accustomed to a rather high standard of living and were well able to provide for their three daughters. At the time of the entry of the judgment of dissolution they had three minor children, none of whom require any special educational or medical attention.

The parties testified that sometime in 1982 or 1983 they began experiencing financial difficulties. Jerry testified that through no fault of his own his dental office was closed in 1984. Jerry was unable to earn any income from the practice of dentistry in 1984 and for the first nine months of 1985. In 1984 all of the major assets the Douglases’ had acquired were taken via foreclosure proceedings. These assets included their home, their farm of approximately 1,200 acres, and their feed and fertilizer business which they operated in Pope County. Two years prior to the parties’ separation in November 1985, their standard of living decreased considerably. The evidence demonstrated that the parties’ current list of liabilities totals about $1 million.

During the trial the respondent submitted 16 exhibits and petitioner submitted 12 exhibits into evidence. The exhibits included income statements, United States income tax returns, a list of the marital debts, a copy of a 1986 ledger, bills and cancelled checks for 1986, a dental office lease agreement, the wife’s estimated monthly expense sheet, the bill for her attorney’s retainer, and an itemized list of expenses of the wife’s attorney. After all the evidence was presented, the judge requested that the parties prepare briefs on the issues. Counsel for the husband was permitted to take possession of the husband’s exhibits and was instructed by the court to return them when the briefs were submitted. Based on the record, the court did not have the opportunity to examine the exhibits.

Counsel for the wife submitted a brief as requested by the court. The husband’s attorney failed to submit a brief and did not return the exhibits to the court as instructed. On February 16, 1988, a judgment of dissolution was entered, the court awarding Mary Douglas: (1) custody of the children; (2) child support of $700 per month per child; (3) maintenance of $1,200 per month for 10 years; (4) attorney fees in the sum of $3,100; and (5) reimbursement for miscellaneous expenses of $9,100. No findings were made by the court as to the income of the parties nor as to the division of marital property or the responsibility for payment of marital debts.

On March 7, 1988, Jerry Douglas filed a pro se motion to vacate the judgment of dissolution. The crux of his argument in support of his motion was that unbeknownst to him, his attorney failed to comply with the court’s order to file a brief and argument, and failed to return the documentary evidence left in his custody. The record shows that no ruling was made on the motion. Jerry Douglas thereafter obtained new counsel to represent him, whereupon an amended post-trial motion was filed June 23, 1988, on Jerry’s behalf. The amended post-trial motion prayed that the court vacate the judgment of dissolution and allow him a new hearing or, in the alternative, that the court modify the judgment of dissolution in a manner commensurate with the evidence. On July 1, 1988, Jerry Douglas’ attorney returned the exhibits to the court. On August 4, 1988, the court denied the post-trial motion.

With the exception of the issue regarding attorney fees, the thrust of each issue raised on appeal concerns the trial court’s failure to consider the documentary evidence submitted by the parties, and the court’s failure to make findings as to the parties’ income, the division of marital property or the allocation of marital debts.

We first address the husband’s argument that it was error for the trial court not to examine or consider the documentary evidence introduced by the parties prior to entering a judgment. The record is devoid of any showing that the trial court considered the documentary evidence. The final judgment of the trial court is absent any indication that said documentary evidence was considered. In fact, it is evident from the judge’s remarks in the order denying the post-trial motion that the court did not consider the exhibits in making its decision:

“It is clear from the records that Mr. McCormick, respondent’s counsel of record, never filed an answering memo and that the respondent’s documentary exhibits were not returned to Court until recently when Mr. Stewart filed the Amended Post Trial Motion.
* * *
I have, in light of Mr. Stewart’s written motion and argument, reviewed my holdings and the evidence, as I remember it. I must admit that I could have fine tuned my holdings, if I had been given the arguments of counsel and access to the exhibits in a timely manner. However, trial courts frequently must proceed to judgment on less than perfect record [sic].”

We further find from the court’s comments in the record that the issues and circumstances of this case warranted a review of the exhibits. After the close of the evidence the court stated, “obviously I have a lot to digest since I have not studied the exhibits.” The court also commented with regard to the issues:

“Quite frankly, I am not sure I have enough evidence to decide this case at this stage. You may convince me that I have but that’s, [sie\ I’ve got a lot of things that maybe will be cleared from the documents the documentation that I see and the testimony that I heard but I am not an accountant.”

In Illinois, the law is well established that the trial judge, sitting without a jury, has the obligation of weighing the evidence and making findings of fact. (Chicago Investment Corp. v. Dolins (1985), 107 Ill. 2d 120, 124, 481 N.E.2d 712, 714.) A court trying a case without a jury should act on principles which it would direct a jury to follow. (Beadle County National Bank v. Hyman (1889), 33 Ill. App. 618, reh’g denied (1890), 33 Ill. App. 618, 622.) The fact finder in either form has a duty to examine evidence presented to it. In this case we find that the trial court erred in not considering all of the evidence before it.

Counsel for the wife argues that even though the court may not have examined the documentary evidence, the trial judge’s decision is not against the manifest weight of the evidence. We disagree. The basis for our conclusion will become clear as we address the remaining issues on appeal.

The next issue concerns the court’s failure to make a division of the marital property or to allocate the marital debt. Section 503(d) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 503(d)) states that the trial court “shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including” 11 enumerated factors. The statutory scheme of the Illinois Marriage and Dissolution of Marriage Act (Act) requires that the issues concerning the final property disposition must be determined prior to the maintenance issues (In re Marriage of Thornton (1980), 89 Ill. App. 3d 1078, 1083, 412 N.E.2d 1336, 1341), because the issues of maintenance relate directly to the results of the property disposition. (See Ill. Rev. Stat. 1987, ch. 40, par. 504.) Without such a determination, we are left without a rational basis upon which to judge the propriety of the maintenance and child support awards. (See In re Marriage of Uphoff (1982), 110 Ill. App. 3d 608, 612, 442 N.E.2d 965, 967.) While there is no requirement that the marital estate be split in equal portions (In re Marriage of McMahon (1980), 82 Ill. App. 3d 1126, 1131, 403 N.E.2d 730, 734), the touchstone of proper apportionment is whether it is equitable in nature. (In re Marriage of McNeeley (1983), 117 Ill. App. 3d 320, 325, 453 N.E.2d 748, 752.) Furthermore, where the partners to a marriage accumulate debts exceeding the value of their assets, then that debt must be distributed equitably, the same as marital assets. (In re Marriage of Simmons (1981), 101 Ill. App. 3d 645, 647, 428 N.E.2d 1032, 1034.) While the evidence shows that the bulk of the marital assets have been taken from the parties via foreclosure proceedings, testimony did reveal that the wife possesses a 1985 automobile and that the furnishings from the marital home are in storage. Jerry Douglas contends the trial court erred in not making a determination as to the distribution of the assets and allocation of the $1 million marital debt. We agree.

Respondent, Jerry Douglas, also contends that the trial court erred in awarding maintenance and child support without first making a finding as to his income. The Act requires that the trial court consider the ability of the husband to pay when making an award of maintenance or child support. (Uphoff, 110 Ill. App. 3d at 612, 442 N.E.2d at 967.) Section 504(b)(6) of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 504(b)(6)) lists as one of the factors to be considered in awarding maintenance “the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.” Section 505(a)(2)(e) of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 505(a)(2)(e)) lists as one of the factors the court may consider in deviating from the minimum child support guidelines “the financial resources and needs of the non-custodial parent.” As illustrated, the general statutory scheme assumes consideration of the parties’ income in awarding maintenance and child support. Although there was testimony by each of the parties as to their income and earning capacity, the trial court made no specific findings as to their income or potential income. The statutory factors to be considered in awarding maintenance and child support cannot be said to have been considered in the instant case where the court made no finding as to income. Absent such a finding, there is no rational basis upon which we can judge the propriety of the awards. See Uphoff, 110 Ill. App. 3d at 612, 442 N.E.2d at 967.

Based on the foregoing, the trial court’s order awarding maintenance and child support and failing to order a distribution of assets and allocation of debt is reversed. We remand this cause to the trial court with directions to take additional evidence, if the court deems it necessary, and to enter a new order consistent with the views expressed in this opinion. On remand we further direct the trial court to examine and consider the documentary evidence submitted by the parties which, according to the record, was not examined by the court prior to entering final judgment in this matter.

Finally, Jerry Douglas contests the court’s order requiring him to pay his wife’s attorney fees of $3,100. We note that with regard to the attorney fees he does not contest the court’s determination that the wife is financially unable to pay the fees or that he is financially able to do so. Jerry Douglas contests the award of fees only on the ground that Mary Douglas failed to prove they were reasonable and necessary in this case.

Mary Douglas contends that Jerry waived his right to contest the award of attorney fees because he made no. objection to the offer of proof at trial. Jerry Douglas did not waive his right to appeal the award of attorney fees. It is well settled that a party asserting a fact or issue generally has the burden of proof as to such fact or issue. (Haas v. Cohen (1973), 10 Ill. App. 3d 896, 899, 295 N.E.2d 28, 31.) The burden of proof was on the wife to prove that the fees she incurred were reasonable and necessary. The husband was not required to insist that she produce additional evidence in the event she failed to meet her burden of proof.

At the trial Mary Douglas testified that with regard to the instant cause of action, there is an outstanding bill for attorney fees of $3,100. Admitted into evidence was a billing statement for the attorney retainer fee of $600 and an itemized accounting of the total attorney fees incurred in this matter. The itemized accounting shows that her attorney spent 39.9 hours at $70 per hour, and 2 hours at $75 per hour on the case. Expenses incurred by the attorney in handling the case amounted to $201.45, for a total bill of $3,144.45. On direct examination Mary Douglas was asked, “[A]re [you] [sic] satisfied that you ought to be required to pay those moneys for representation in this matter?” Mary Douglas answered affirmatively. No other testimony was given with regard to the reasonableness or necessity of the fees.

Before one spouse may recover attorney fees from the other, a consideration of the factors as stated in Christian v. Christian (1979), 69 Ill. App. 3d 450, 458-59, 387 N.E.2d 1254, 1260-61, must be made:

“In addition to the relative financial positions of the parties, the amount of fees to be allowed in a divorce proceeding depends on a consideration of the skill and standing of the attorneys employed, the nature of the controversy, and the novelty and difficulty of the questions at issue; the amount and importance of the subject matter, especially from a family law standpoint; the degree of responsibility involved in the management of the case; the time and labor required; the usual and customary charge in the community; and the benefits resulting to the client.”

The work for which compensation is sought must be shown to be reasonably required and necessary for the proper performance of legal services under the circumstances. (Gasperini v. Gasperini (1978), 57 Ill. App. 3d 578, 582, 373 N.E.2d 576, 579.) It is unclear from the record whether the fees awarded were reasonable and necessary. (See Moreau v. Moreau (1973), 9 Ill. App. 3d 1008, 1010, 293 N.E.2d 680, 682.) We reverse the order awarding attorney fees and remand this cause to the circuit court with directions to hear evidence and determine the necessity and reasonableness of the attorney fees.

Reversed and remanded, with directions.

LEWIS, P.J., and RARICK, J., concur.