text:
    VERNON WEIDNER et al., as Successors in Interest to Weidner Concrete Company, formerly d/b/a Weidner Construction Company, Plaintiffs-Appellees and Cross-Appellants, v. JOSEPH SZOSTEK et al., Defendants-Appellants and Cross-Appellees.
    Second District
    No. 2—92—0982
    Opinion filed May 28, 1993.

      Michael E. Coppedge, of Cowlin, Ungvarsky, Curran & Coppedge, of Crystal Lake, for appellants.
    David C. LeSueur, of Diamond, LeSueur & Roth, Associates, of McHenry, for appellees.
   JUSTICE QUETSCH

delivered the opinion of the court:

Plaintiffs, Vernon and Ronald Weidner, as successors in interest to Weidner Concrete Company, formerly doing business as Weidner Construction Company, filed a three-count complaint against defendants, Joseph Szostek et al., to recover damages for breach of contract. Defendants filed a counterclaim to recover damages also resulting from breach of contract. The trial court entered judgment, minus certain setoffs, against defendants in the amount of $25,922, plus costs. That amount was composed of $15,941 in prejudgment interest, $9,542.50 in attorney fees and $439 in costs. Defendants appeal contending the award of prejudgment interest and attorney fees was contrary to the specific terms of the contract. Plaintiffs cross-appeal contending the trial court’s award of attorney fees was inadequate and the setoff of $2,000 on plaintiffs’ claim against defendants on defendants’ counterclaim was improper. We affirm.

Plaintiffs and defendants entered into a contract on October 19, 1988, to construct a commercial building for defendants on defendants’ property in Crystal Lake, Hlinois. The total cost of the contract was $328,745. Progress payments were to be made over the course of construction with the full sum due and payable within 30 days of completion of the work under the contract.

The building permit was issued on November 9, 1988, and construction began on November 14, 1988. The building was substantially completed by April 14, 1989. A certificate of occupancy was issued and defendants took occupancy on that date. After completion of the building, defendants reported a number of problems to plaintiffs. Plaintiffs submitted a final invoice to defendants dated June 16, 1989, requesting final payment in the amount of $55,688.33. According to plaintiffs, certain items remained to be completed under the terms of the contract at that time. Defendants did not pay the final invoice amount.

Plaintiffs filed suit contending defendants breached the construction contract by failing to pay the amount due under the final invoice. Defendants contend the final invoice amount was not paid because of incomplete work, the failure of plaintiffs to use certain light fixtures supplied by defendants, and the “faulty” excavation of defendants’ vacant lot.

Plaintiffs’ construction expert estimated the cost to complete or repair various incomplete or defective items would be approximately $3,000. Defendants’ construction expert estimated the repair or completion cost would be approximately $16,000. Plaintiffs’ expert approximated the cost of reexcavating defendants’ vacant lot at $3,000. Defendants’ expert approximated the cost at $24,450.

The court found defendants were indebted to plaintiffs in the amount of $55,688.33 less credits or setoffs totaling $8,750, for a total amount of $46,938.33 due under the contract, plus costs and attorney fees. Defendants paid plaintiffs $46,938.33 on May 15, 1992, in exchange for a release of the mechanic’s lien in that amount. The court entered judgment against defendants finding defendants owed plaintiffs prejudgment interest in the amount of $15,941, and attorney fees in the amount of $9,542.50, plus costs to date of $439, for a total of $25,922.50, plus costs. Defendants appeal and plaintiffs cross-appeal.

Defendants contend on appeal the trial court erred in awarding attorney fees and prejudgment interest to plaintiffs because to do so was contrary to the specific language of the contract. In particular, defendants argue that because the contract was not fully performed, payment never became due and, thus, attorney fees and prejudgment interest should never have been awarded for the collection of that payment. We disagree.

Article 5 of the contract provides that the owner (defendants) must make final payment 30 days after completion of the work, provided the contract is fully performed subject to the provisions of paragraph 22 of the general conditions. Paragraph 22 of the general conditions provides in pertinent part:

“[Pjayment is due on the date stated on [c]ontractor’s invoice in accordance with this agreement. Any amount not paid on date due will bear interest at the rate of 1 [percent] per month or the highest lawful rate allowed, whichever is lower, until paid, plus all costs of collecting said amount due, including all court costs and [attorney] fees.”

Defendants argue that in order for payment to become due under article 5, the work had to be completed and the contract had to be fully performed. Defendants emphasize the fact that plaintiffs admitted at trial there were certain items which remained to be completed or repaired under the contract. Thus, defendants argue that because work remained to be completed, final payment never became due and, therefore, attorney fees and prejudgment interest should not have been awarded. Plaintiffs argue that the work was completed and the contract was substantially performed, and, therefore, payment was due. The trial court found plaintiffs substantially completed the work under the contract and that defendants were indebted to plaintiffs in the amount of $55,688.33, less credits or setoffs totaling $8,750, for a total amount due under the contract of $46,938.33, plus attorney fees and prejudgment interest.

The meaning of a contract is ordinarily a question of law. (Szczerbaniuk v. Memorial Hospital (1989), 180 Ill. App. 3d 706, 713.) A court must consider a contract in the context of the entire agreement. (Wilson v. Wilson (1991), 217 Ill. App. 3d 844, 850.) The determinative factor is the intention of the parties, which can best be determined by considering the contract as a whole, reviewing each part in light of the others. (Wilson v. Wilson, 217 Ill. App. 3d at 850.) An instrument should be given a fair and reasonable interpretation based on consideration of all its language and provisions. (Shelton v. Andres (1985), 106 Ill. 2d 153, 159.) Moreover, “[i]n attempting to arrive at a fair and reasonable construction, ‘courts are not confined to a strict and literal construction of the language used, when such construction will frustrate the intention of the parties, gathered from a consideration of the whole instrument.’ ” Shelton v. Andres, 106 Ill. 2d at 159, quoting Shadden v. Zimmerlee (1948), 401 Ill. 118,123.

Article 5 provides for payment within 30 days of completion provided the contract is fully performed. It is this language upon which defendants base their argument that there must be full performance before payment is due, not substantial performance. However, we must review this provision in light of the whole contract.

Paragraph 8 of the general conditions governs delivery and completion. It provides in pertinent part:

“[A]s used in this agreement, ‘[Substantial [Cjompletion’ shall mean the date on which the [ojwner begins to occupy the premises or to move his equipment or property onto the premises or the date on which the [Cjontractor notifies the [Ojwner in writing of completion of the building, whichever occurs first.”
Paragraph 15 governs occupancy under the contract. It provides:
“[Tjhe [ojwner agrees not to interfere with the progress of the work and not to occupy any portion of the building until the construction on that portion is completed, and that portion of the building has been accepted in writing by the [ojwner, and the provisions and conditions of the agreement with respect thereto are fulfilled by both parties.
Contractor’s ‘Acknowledgement Of Completion And Acceptance’ certificate covering the building of any specified portion thereof shall be executed by the [ojwner and delivered to the [cjontractor prior to any use or occupancy by the [ojwner. In the event a portion or all of the building is used or occupied by the [ojwner without providing such a certificate, then such use or occupancy shall be conclusive proof of acceptance thereof by the [ojwner.”

Plaintiffs testified that on April 14, 1989, the City of Crystal Lake issued an occupancy permit and defendants took occupancy of the building. Defendants did not execute and deliver to plaintiffs the certificate of acknowledgement of completion and acceptance prior to taking occupancy.

Plaintiffs provided defendants with an invoice dated June 16, 1989. Under “description” it states “completion of general construction.” It lists the amount due on contract performance through completion as $322,985, minus $267,296.67 already paid to plaintiffs by defendants, for a total payment request of $55,688.33.

After viewing the contract as a whole, we conclude defendants’ strict and literal interpretation of the use of the term “full performance” in article 5 frustrates the intention of the parties. The contract defines delivery and completion as the date upon which the owner begins to occupy the premises or the date upon which the contractor notifies the owner of completion in writing. The record reveals defendants took occupancy on April 14, 1989. Moreover, the contract defines occupancy as proof of completion and acceptance by the owner. In addition, the contract specifies that payment is due on the date stated on the contractor’s invoice. The invoice was dated June 16,1989.

The general rule is that a builder is not required to perform perfectly, but rather is held only to a duty of substantial performance in a workmanlike manner. (J.R. Sinnott Carpentry, Inc. v. Phillips (1982), 110 Ill. App. 3d 632, 637.) The question of whether there has been substantial performance under a contract depends on the facts of each case. (J.R. Sinnott, Inc., 110 Ill. App. 3d at 637.) An important factor in determining whether a builder has rendered substantial performance is the actual receipt of benefits by the purchaser/ owner. (Howard v. Jay (1990), 203 Ill. App. 3d 539, 544.) In light of the evidence presented at trial, we conclude the trial court did not err in finding plaintiffs substantially performed their duties under the contract and in offsetting the amount due by the amount necessary to repair or replace the items not completed within the terms of the contract. Accordingly, we conclude the award of attorney fees and prejudgment interest was not contrary to the specific language of the contract.

Defendants also argue that the award of prejudgment interest was in error because defendants withheld payment of the principal sum due based upon a legitimate factual dispute. Prejudgment interest is not recoverable absent a statute or agreement of the parties providing for it. (A.O. Smith Corp. v. Kaufman Grain Co. (1992), 231 Ill. App. 3d 390, 399.) Although paragraph 22 of the contract provides for prejudgment interest, defendants contend the “good-faith” exception set forth in General Dynamics Corp. v. Zion State Bank & Trust Co. (1981), 86 Ill. 2d 135, is applicable to the case at hand.

In General Dynamics, the court held that interest is not awarded on money that may be found due, if the person withholding payment has done so in good faith, because of a genuine and reasonable dispute. (General Dynamics, 86 Ill. 2d at 140.) However, the rule in General Dynamics is distinguishable because it is based on a statutory award of interest rather than an award of interest pursuant to contract. In this case, the parties specifically contracted for prejudgment interest pursuant to paragraph 22 on any amount not paid on the date due. Thus, the trial court’s determination that plaintiffs were entitled to prejudgment interest on the amount past due was not in error.

Plaintiffs cross-appeal contending the trial court’s award of attorney fees was inadequate and against the manifest weight of the evidence. Plaintiffs argue the trial court erred in denying certain fees because it could not separate the time charges listed and in denying other fees incurred in connection with settlement efforts. We disagree.

First, we note the proper standard of review on appeal is whether the trial court abused its discretion in awarding the fees. A trial court has broad discretionary powers in awarding attorney fees, and its decision will not be reversed on appeal unless the court abused that discretion. (In re Estate of Callahan (1991), 144 Ill. 2d 32, 44.) The party seeking attorney fees bears the burden of presenting sufficient evidence from which the trial court can render a decision as to their reasonableness. Fitzwilliam v. 1220 Iroquois Venture (1992), 233 Ill. App. 3d 221, 235; Kaiser v. MEP C American Properties, Inc. (1987), 164 Ill. App. 3d 978, 983.

Plaintiffs submitted a detailed affidavit containing a summary calculation of the time spent on the case, the hourly rate, the total fees due and an itemized summary of billing. This affidavit requested $14,106 in fees. The trial court reviewed the fee request line by line, granting or denying each item listed. The court denied certain fees with the notation, “cannot separate time charges.” Under these entries plaintiffs listed a number of activities but listed only one total for time spent engaging in the activities collectively, rather than breaking down the activities individually. In addition, the court denied certain fees which plaintiffs claim related to efforts to settle the case. The court ultimately awarded plaintiffs $9,542 in attorney fees.

Time records, although important, are not conclusive in determining a fee award and should be scrutinized to determine whether they represent a reasonable expenditure of time in the context of the work performed. (Fitzwilliam, 233 Ill. App. 3d at 236.) A trial judge’s experience and knowledge may be relied upon in determining what constitutes a proper expenditure of time. (Fitzwilliam, 233 Ill. App. 3d at 235-36.) Here, where it is evident the judge carefully scrutinized the records line by line and then reduced plaintiffs’ claim for fees prior to making his award, we find no abuse of discretion. See Fitzwilliam, 233 Ill. App. 3d at 236.

Plaintiffs also contend the trial court erred in awarding $2,000 to defendants on their counterclaim pertaining to the plaintiffs’ installation of new light fixtures rather than the used ones defendants requested plaintiffs install. However, plaintiffs cite no authority in support of this argument.

Supreme Court Rule 341(eX7) (134 Ill. 2d R. 341(e)(7)) requires, among other things, that an appellant’s brief (or in this case a cross-appellant’s brief) must contain citations to the relevant authority supporting the argument advanced on appeal. (Britt v. Federal Land Bank Association (1987), 153 Ill. App. 3d 605, 608.) A contention supported by some argument but no authority whatsoever does not satisfy the requirements of Rule 341(eX7). (Fuller v. Justice (1983), 117 Ill. App. 3d 933, 942-43.) The law is clear that bare contentions without argument or citation of authority do not merit consideration on appeal. (Spinelli v. Immanuel Lutheran Evangelical Congregation, Inc. (1987), 118 Ill. 2d 389, 401.) Accordingly, we conclude this issue is waived for failure to cite authority.

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

Affirmed.

UNVERZAGT and WOODWARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WOODWARD

license: Public Domain

text:
    FIRST OF AMERICA BANK-NORTHEAST ILLINOIS, N.A., Plaintiff-Appellee, v. RANDY J. BOCIAN, Indiv., and d/b/a Zurich Ltd., Defendant and Counterdefendant (Eric Christenson, Inc., Defendant and Counterplaintiff-Appellant).
    Second District
    No. 2 — 92—0663
    Opinion filed May 28, 1993.
    Dennis P. Daly, of Daly & Daly, of Waukegan, for appellant.
    John W. Quinn, of Churchill, Baumgartner & Phillips, Ltd., of Grays-lake, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Defendant, Eric Christenson, Inc., appeals from the order of the circuit court granting summary judgment for plaintiff, First of America Bank-Northeast Illinois, N.A. (bank), and denying defendant’s cross-motion for summary judgment. Defendant Christenson filed a counterclaim against Randy J. Bocian, d/b/a Zurich, Ltd. A default judgment was entered against counterdefendant Bocian, who is not a party to this appeal. The court entered a money judgment against defendant Christenson and for plaintiff in the amount of $12,334.31.

Defendant contends that it was error for the trial court to enter summary judgment against defendant as drawer of a check made out to Zurich, Ltd. (Bocian), and deposited by Bocian in the plaintiff bank. Relying on various provisions of articles 3 and 4 of the Uniform Commercial Code (Code) (Ill. Rev. Stat. 1989, ch. 26, pars. 3 — 101 et seq., 4 — 101 et seq.), defendant argues that the bank is not entitled to a money judgment against him as the drawer of a check, where the check was deposited in the bank customer’s checking account which became overdrawn when the bank drew against that account to pay checks issued by the customer, and where defendant drawer had stopped payment on his check and the bank did not receive payment on the drawer’s check.

Initially, we note that, in reviewing a trial court’s entry of summary judgment, the sole function of the reviewing court is to determine whether the trial court correctly found that there were no genuine issues of material fact and, if not, whether the trial court correctly entered judgment as a matter of law based upon pleadings, depositions, admissions and affidavits on file. Guenther v. G. Grant Dickson & Sons, Inc. (1988), 170 Ill. App. 3d 538.

The facts are essentially undisputed. The record discloses that Bocian, d/b/a Zurich, Ltd., had a bank account with plaintiff. On October 8, 1990, defendant executed and delivered to Bocian a check drawn on the Bank of Waukegan and payable to Zurich in the amount of $28,800. The check represented a payment toward the construction of a pole bam on defendant’s property. Bocian (Zurich) deposited the check in his account at the plaintiff bank. As a result of an alleged breach of contract, defendant terminated his agreement with Zurich and stopped payment of the check. Between the time of Bocian’s deposit, on October 9, and the time that the bank received notice of the stop-payment order on October 12, 1990, the bank honored certain checks written by Bocian against the account amounting to $12,334.31, the amount of damages the bank sought in its motion for summary judgment. Plaintiff’s motion was supported by an affidavit of plaintiff’s compliance officer, Gwen Aquino, and documentary exhibits. According to the bank, as a result of honoring the checks, Zurich’s account became overdrawn in an amount over $13,000.

The trial court denied defendant’s cross-motion for summary judgment, granted plaintiff’s motion for summary judgment and awarded plaintiff a money judgment of $12,334.31.

On appeal, defendant points out that plaintiff had the option of granting provisional credit to its customer who deposited the check; that it could refuse to pay checks drawn on an overdrawn account; and that it could reverse that credit and seek recourse against its customer. In view of these options, defendant argues that the bank should suffer the losses, if any, resulting from its decision to honor the customer’s checks. Citing no mandatory authority (other than his own construction of the Code provisions), defendant concludes that the bank has no recourse against him as “drawer” of the check since it was not a holder in due course.

Plaintiff advances several arguments why the bank is a holder in due course (HDC) notwithstanding defendant’s stop-payment order and why plaintiff has recourse against the maker. Plaintiff relies on the provisions of the Code and an older appellate opinion (First National Bank v. Bauer Poultry Corp. (1952), 345 Ill. App. 315). Defendant has chosen to ignore the well-established authority of numerous jurisdictions concerning the bank’s status as an HDC under the Code. Although there is surprisingly little modem Illinois authority directly on point, our further research persuades us that plaintiff was an HDC and could indeed proceed against defendant as drawer of the check.

Hlinois adopted articles 3 and 4 of the Uniform Commercial Code in 1961 (see Ill. Ann. Stat., ch. 26, pars. 3 — 101, 4 — 101 (SmithHurd 1963)). Sections 3 — 302(1) and (4) of the Code provide that an HDC is a holder who takes the instmment (a) for value; and (b) in good faith; and (c) without notice that it is overdue or has been dishonored or of any defense against or claim to it on the part of any person; a purchaser of a limited interest can be a holder in due course only to the extent of the interest purchased. (Ill. Rev. Stat. 1989, ch. 26, pars. 3 — 302(1), (4).) If the bank was an HDC as a result of the deposit of the check and the subsequent credit applied and advances made, it took the check free from all defenses of any party to the instrument with whom the holder has not dealt except those real defenses enumerated in section 3 — 305 of the Code (Ill. Rev. Stat. 1989, ch. 26, par. 3 — 305). The enumerated defenses include: infancy, incapacity, duress, illegality, misrepresentation, or discharge in insolvency or other discharge of which the holder has notice when he takes the instmment. (See Peoria Savings & Loan Association v. Jefferson Trust & Savings Bank (1980), 81 Ill. 2d 461, 467.) Defendant has not asserted any of these defenses, and any other personal defenses are of no avail to defendant if the bank was an HDC. See Washington Bank & Trust Co. v. Landis Corp. T/A Sofroney Realtors (1983), 112 Ill. App. 3d 182,185.

Section 4 — 208 of the Code provides in pertinent part:
“A bank has a security interest in an item and any accompanying documents or the proceeds of either
(a) in case of an item deposited in an account to the extent to which credit given for the item has been withdrawn or applied; [or]
(c) if it makes an advance on or against the item.” (Ill. Rev. Stat. 1989, ch. 26, par. 4 — 208.)

Additionally, a bank has given “value” for purposes of determining its status as an HDC “to the extent that it has a security interest in an item.” Ill. Rev. Stat. 1989, ch. 26, par. 4 — 209.

Notwithstanding the drawer’s stop-payment order, we hold that the bank is an HDC because it took the check for value and without notice of any infirmity in the check (see Ill. Rev. Stat. 1989, ch. 26, pars. 3 — 303, 4 — 209) and the bank had a security interest in the item deposited to the extent that it applied or withdrew credit for it or made advances against the deposited check (see Ill. Rev. Stat. 1989, ch. 26, par. 4 — 208). There is no contention that the bank did not take the check in good faith or with notice of the stop-payment order. The bank took the instrument for “value” because it extended credit, even though provisional, in reliance on the deposited check or allowed its depositor to make withdrawals against the uncollected funds; the bank acquired a security interest in the instrument.

Based on the above-cited Code provisions, this result has obtained in numerous jurisdictions construing similar provisions of the Code, and these provisions constitute a codification of pre-Code practice. (See, e.g., American Exchange Bank v. Cessna (N.D. Okla. 1974), 386 F. Supp. 494, 497 (bank was HDC and could recover from maker amounts advanced to payee before payment had been stopped); Exchange National Bank v. Beshara (Fla. Dist. Ct. App. 1970), 236 So. 2d 198 (bank acquired security interest and was HDC with recourse to drawer when it immediately credited depositor’s account and depositor was able to draw checks against its account before drawer stopped payment); St. Cloud National Bank & Trust Co. v. Sobania Construction Co. (1974), 302 Minn. 71, 224 N.W.2d 746 (bank was HDC and had recourse against drawer when it granted credit to depositor based on check deposited and made payment on checks drawn against the account during the interval between deposit of check and notice of drawer’s stop payment order; the bank had a security interest in the check and took check for value; Code continues prior practice); Washington Trust Co. v. Fatone (1968), 104 R.I. 426, 244 A.2d 848 (bank was HDC and had security interest to extent of withdrawals made in item delivered to bank for collection and as a matter of courtesy bank permitted withdrawals before item was collected); Citizens National Bank v. Fort Lee Savings & Loan Association (1965), 89 N.J. Super. 43, 213 A.2d 315 (frequently cited decision held that bank was HDC and had recourse against drawer when it allowed checks to be cashed against depositor’s low or overdrawn account prior to notice of stop payment); Lynnwood Sand & Gravel, Inc. v. Bank of Everett (1981), 29 Wash. App. 686, 630 P.2d 489 (despite stop-payment order, bank became HDC and took for value by giving provisional credit applied to overdraft in depositor’s account in allowing withdrawals against uncollected check funds; in effect, bank made a loan to its customer and gave “value” for the check even if the credit was provisional).

In Bauer Poultry (345 Ill. App. 315), a pre-Code case, the court determined that the plaintiff bank was a holder in due course where it had cashed a check, drawn on another bank and regular and complete on its face, for a payee; the bank had no notice of any infirmity in the check and was entitled to judgment against the drawer although payment had been stopped by the drawer. See National Bank v. Sachs (1942), 314 Ill. App. 570 (abstract of opinion) (in suit against drawer of check, bank which accepted depositor’s check and allowed customer to draw checks on the account before receiving stop-payment notice was HDC up to amount of overdraft); see also Hebel v. Ebersole (7th Cir. 1976), 543 F.2d 14 (relying in part on Bauer Poultry, court found holder in due course had claim against drawer of check who had stopped payment as though it were a promissory note).

In view of the foregoing decisions, we have determined that the bank was an HDC. In addition, the bank as HDC could proceed against its customer (payee) or the drawer of the check as it did in the present case. Contrary to defendant’s assertion, we find no Illinois authority which prevents the bank as HDC from proceeding against the drawer. An HDC of an instrument upon which payment has been stopped nevertheless has a right to recover from the drawer of the instrument. People v. Lombardi (1973), 13 Ill. App. 3d 754; Ill. Rev. Stat. 1989, ch. 26, pars. 3 — 305, 4 — 403; see Bank of Costa Mesa v. Losack (1977), 74 Cal. App. 3d 287, 141 Cal. Rptr. 550 (payment can be stopped but drawer remains liable on the instrument to the HDC); see also Ill. Ann. Stat., ch. 26, par. 4 — 403, Illinois Code Comment, at 532 (Smith-Hurd 1963).

We conclude that plaintiff bank was an HDC and had recourse against defendant as the drawer of the check. The circuit court correctly granted summary judgment as a matter of law to plaintiff. See Purtill v. Hess (1986), 111 Ill. 2d 229, 240.

The judgment of the circuit court is affirmed.

Affirmed.

UNVERZAGT and QUETSCH, JJ., concur.


author: JUSTICE McCUSKEY

text:
    GREENLEE TOOL, a Division of Excello Corporation, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Raymond Allen, Appellee).
    Second District (Industrial Commission Division)
    No. 2 — 92—1088WC
    Opinion filed June 3, 1993.

      Karen L. Kendall, of Heyl, Royster, Voelker & Allen, of Peoria, and Gregory P. Sujack, of Garofalo, Hanson, Schreiber & Vandlik, of Chicago, for appellant.
    Richard 0. Greenfield, of Chicago, for appellee.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The petitioner, Raymond Allen, filed two workers’ compensation claims against the respondent, Greenlee Tool (Greenlee). He sought to recover damages for neck and arm injuries he allegedly suffered in two separate work-related accidents. Allen claimed the first accident occurred on April 1, 1985, and that the second accident occurred on April 9, 1986. This opinion will resolve the issues on appeal arising from the 1985 accident.

Greenlee had different insurance carriers providing coverage for the two accidents. Greenlee’s insurer at the time of the first accident was Firemen’s Fund Insurance Company (Firemen’s Fund). Coverage for the second accident was held by Cigna.

On September 15, 1988, the claims were consolidated on the petitioner’s request and both proceeded to arbitration. No attorney was present at the arbitration hearing to represent Greenlee on the 1985 claim. The arbitrator determined that the 1985 claim should proceed ex parte.

Following a hearing, the arbitrator ruled that the petitioner had sustained a compensable injury on April 1, 1985, and awarded the petitioner a permanency award of 10% of a man as a whole. Additionally, the petitioner was awarded temporary total disability benefits from April 2,1985, through May 7,1985.

On review, the Illinois Industrial Commission (Commission) denied Greenlee’s motion to set aside the arbitrator’s ex parte decision. The Commission reduced the injury award from 10% to 5% of a man as a whole. The Commission affirmed the arbitrator’s decision in all other respects. The circuit court confirmed the Commission’s decision. Greenlee appeals. For the reasons which follow, we reverse and remand the cause to the Commission.

At the September 15, 1988, arbitration hearing, Gregory Sujack was the attorney representing Greenlee on the 1986 accident. Sujack told the arbitrator that he was only there to represent Greenlee on the 1986 claim.

Counsel for the petitioner told the arbitrator that there had been service upon Greenlee for the 1985 claim. Petitioner’s counsel then explained to the arbitrator that he had telephoned Firemen’s Fund the morning of the hearing and gave it notice that he intended to proceed on the 1985 claim. According to petitioner’s counsel, Fireman’s Fund did not react in any way or ask for a continuance. The arbitrator then directed petitioner’s counsel to proceed on both claims.

Following the presentation of evidence, the arbitrator found the petitioner had suffered a compensable injury on April 1, 1985, and awarded the benefits previously indicated. Greenlee subsequently filed a petition for review with the Commission as well as a motion to set aside the arbitrator’s ex parte decision.

At the hearing before the Commission, Greenlee sought to set aside the arbitrator’s ex parte decision. Greenlee’s attorney at the hearing before the Commission was assigned by its insurance carrier, Fireman’s Fund. Greenlee presented the affidavit of Sandra Molitor. She managed Greenlee’s workers’ compensation cases during the period of time in question. Her affidavit stated that Greenlee had never received an application for adjustment of claim relating to the April 1, 1985, injury. Molitor further asserted that Greenlee had never received either a request for hearing form or a stipulation sheet setting the case for hearing on September 15, 1988. Therefore, Greenlee argued that it had not received notice of the arbitration hearing.

From his own file, the petitioner produced his copy of the application for adjustment of claim for the April 1, 1985, accident. Attached to the application was a proof of service form which indicated that Mary Louise McElree had mailed a copy of the document to Greenlee. The petitioner also produced a copy of a notice of hearing which allegedly was from the Commission’s file. The notice of hearing was for an initial status hearing concerning the April 1, 1985, accident. The notice indicated that the status hearing was to be held on August 14, 1986. The petitioner argued that the Commission through its “system” would have sent Greenlee a copy of the notice of hearing.

The petitioner also presented the testimony of attorney John Shepherd. He stated that he previously represented Greenlee in other workers’ compensation cases. Shepherd said that on the date of the arbitration hearing counsel for the petitioner approached him to discuss the situation. Thereafter, Shepherd telephoned Sandra Molitor, who managed Greenlee’s workers’ compensation cases. Shepherd informed Molitor that there was a case pending against Greenlee which was set before the arbitrator that day. Shepherd said he was totally unfamiliar with the case. He stated that he did not tell Molitor the name of the petitioner since he did not know it. Shepherd said that he did not file an entry of appearance in the 1985 case or request a continuance on behalf of Greenlee. After hearing this evidence, the Commission noted that an arbitrator has the burden to keep cases moving and reserved any ruling until the remainder of the evidence was presented.

Following the presentation of additional evidence, the Commission denied Greenlee’s motion to set aside the arbitrator’s ex parte decision. The Commission then reduced the petitioner’s injury award. It affirmed the arbitrator’s decision in all other respects. Thereafter, the circuit court of De Kalb County confirmed the Commission’s decision.

On appeal, Greenlee argues that the Commission erred in denying its motion to set aside the ex parte decision of the arbitrator. Green-lee first contends that it did not receive notice of the arbitration hearing as required by section 7030.20(b)(2)(B) of the Illinois Administrative Code (Code) (50 Ill. Adm. Code §7030.20(b)(2)(B) (1985)).

In pertinent part, section 7030.20(b)(2)(B) of the Code provides that if there is no agreement between the parties on setting a trial date, the petitioner may file a motion requesting a hearing. The petitioner’s motion should be accompanied by a request for hearing form which is provided by the Commission and sets forth the petitioner’s claims. If the arbitrator determines that the matter should proceed to trial, he shall set the matter for trial on a date 15 days or more after the opposing party has received a completed request for hearing form. If the lawyer for any party fails without good cause to appear at the motion hearing, the arbitrator will hear the motion ex parte. Also, if the matter is ready for trial, the arbitrator will set a trial date convenient to the arbitrator and the party that appeared at the motion hearing. However, the Code provides that in no event shall the trial date be less than 15 days from the receipt by the opposing party of the request for hearing form.

Here, Greenlee contends that the above-noted section of the Code was clearly applicable and prohibited the arbitrator from proceeding to an ex parte hearing. We agree. Greenlee points out that it presented as evidence the affidavit of Sandra Molitor which attested that Greenlee never received the required request for hearing form or the petitioner’s application for adjustment of claim. As a result, Greenlee asserts that it did not receive the statutorily required notice of the arbitration hearing.

Greenlee further argues that the Illinois Supreme Court’s decision in Interstate Contractors v. Industrial Comm’n (1980), 81 Ill. 2d 434, 410 N.E.2d 837, supports its position that the arbitrator lacked jurisdiction over the parties in the case at hand because Greenlee did not receive notice of the arbitration hearing. Again, we agree.

In Interstate Contractors, the arbitration hearing was held ex parte because the employer did not receive notice of the hearing. There, the claimant failed to specify correctly the address of the employer in his application for adjustment of claim and therefore failed to effect service upon the employer. Our supreme court held that since the employer did not appear and had received no notice of the hearing, the arbitrator’s award would be set aside for lack of jurisdiction over the parties.

Finally, Greenlee contends that the arbitrator’s decision to proceed ex parte may have been based on the so-called “Chicago Arbitration Rules.” Greenlee notes that under these rules cases which are “above the red line” must be heard at the call or be dismissed for want of prosecution. Greenlee contends that the decision in Berrios v. Rybacki (1989), 190 Ill. App. 3d 338, 546 N.E.2d 651, is dispositive of this issue. We also agree. In Berrios, the court held that the “Chicago Arbitration Rules” were invalid. The court reasoned that the so-called “Chicago Arbitration Rules” had not been properly promulgated pursuant to the Illinois Administrative Procedure Act. Ill. Rev. Stat. 1987, ch. 127, par. 1001 et seq.

Initially, we hold that the Code’s provisions concerning notice are applicable in the instant appeal. In this regard, the affidavit of Sandra Molitor indicated that Greenlee never received proper notice pursuant to the Code. In response, the petitioner’s evidence consisted of a copy of an application for adjustment of claim retrieved from his own files. While the petitioner’s application apparently indicated that a copy had been sent to the respondent, the record does not indicate whether a copy of this document was on file with the Commission at the time of their review.

The other document which the petitioner proffered as proof of service upon Greenlee was a copy of a notice of hearing form allegedly taken from the Commission’s file. The notice was for an initial status hearing to be held on August 14, 1986. We note that this notice was for a date approximately two years prior to the September 15, 1988, arbitration hearing. The petitioner argues that a copy of the initial status hearing notice would have been sent to Greenlee through the Commission’s “system.” Again, we point out that the record is barren of any proof that service was made upon Greenlee.

The petitioner additionally argues that the testimony of attorney John Shepherd, who represented Greenlee in other workers’ compensation cases, established that Greenlee received notice of the hearing on the day of the arbitrator’s ex parte decision. Shepherd also stated he did not represent Greenlee with respect to the 1985 accident. However, we find Shepherd’s testimony did not establish that Greenlee received notice of the arbitration hearing. Shepherd clearly testified that he did not tell Greenlee’s representative the petitioner’s name because he did not know it. Moreover, the petitioner cites no case law, nor can this court find any cases, which support the petitioner’s proposition that the Code’s due process requirements are satisfied when a respondent receives notice of an arbitration hearing on the day the hearing is held. Consequently, we find no merit in petitioner’s argument.

Based upon our review of the record, we find the Commission did not have sufficient evidence to support its determination that Greenlee received the required notice pursuant to the Code. Therefore, we reverse. Additionally, based upon our supreme court’s holding in Interstate Contractors, we find that the arbitrator did not have jurisdiction over the parties because Greenlee did not receive the statutorily required notice of the arbitration hearing. Accordingly, we conclude that the arbitrator’s award was void.

Furthermore, even if the arbitrator was relying on some provision of the so-called “Chicago Arbitration Rules” as authority to proceed with the ex parte hearing, we find that such reliance was misplaced. The “Chicago Arbitration Rules” were determined by Berrios to be invalid. We find unpersuasive the petitioner’s argument that Berrios is inapplicable because it was rendered following the arbitration hearing. The Berrios decision holds that the “Chicago Arbitration Rules” were never properly promulgated. As a result, the “Chicago Arbitration Rules” have always been invalid.

Finally, we note that the petitioner has cited no authority, nor can this court find any, for the following contentions: (1) because an attorney was present to represent Greenlee on the 1986 accident claim, Greenlee had actual notice of the hearing involving the 1985 claim; (2) that when the attorney handling Greenlee’s 1986 claim objected to a question relating to the 1985 claim, he then became Green-lee’s attorney for the 1985 claim; or (3) Greenlee’s attorney for the 1986 claim automatically became Greenlee’s attorney for the 1985 claim when he raised the attorney-client privilege relating to records of any correspondence between his law firm and Greenlee involving the 1985 claim.

It is well established that bare contentions without argument or citation to any authority do not merit consideration on appeal. (State Farm Mutual Automobile Insurance Co. v. Haskins (1991), 215 Ill. App. 3d 242, 574 N.E.2d 1231.) We find the petitioner has failed to cite any authority in support of the above-noted propositions. As a result, we will not review these bare contentions.

For the reasons indicated, we have determined that the record does not support a finding that Greenlee received the statutorily required notice of the arbitration hearing. Thus, the arbitrator’s decision was void for lack of jurisdiction over the parties. Accordingly, we reverse the decision of the circuit court and remand the cause to the Commission for further proceedings consistent with our opinion.

Reversed and remanded.

McCULLOUGH, P.J., and RAKOWSKI, WOODWARD, and RARICK, JJ., concur.


author: JUSTICE DOYLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. SCOTT C. SEEHAUSEN, Petitioner-Appellant.
    Second District
    No. 2 — 91—0879
    Opinion filed June 7, 1993.

      G. Joseph Weller and Paul Alexander Rogers, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DOYLE

delivered the opinion of the court:

Petitioner, Scott Seehausen, appeals the judgment of the circuit court of Du Page County dismissing his petition for post-conviction relief (see Ill. Rev. Stat. 1991, ch. 38, par. 122 — 2.1(aX2) (now codified, as amended, at 725 ILCS 5/122 — 2.1(a)(2) (West 1992))). Petitioner contends that the court erred in dismissing as frivolous his pro se petition in which he alleged his appellate counsel’s ineffectiveness for failing to raise as an issue whether there was an emergency situation to warrant the issuance of an eavesdropping order.

Petitioner was found guilty by a jury of the offenses of attempted murder (Ill. Rev. Stat. 1985, ch. 38, pars. 8 — 4(a), 9 — l(aXl) (now codified, as amended, at 720 ILCS 5/8 — 4(a), 5/9 — 1(a)(1) (West 1992))) and solicitation to commit murder (Ill. Rev. Stat. 1985, ch. 38, par. 8 — 1(a) (now codified, as amended, at 720 ILCS 5/8 — 1.1(a) (West 1992))). The court sentenced petitioner to 16 years’ imprisonment. This court affirmed the conviction and sentence on direct appeal. People v. Seehausen (1990), 193 Ill. App. 3d 754.

According to the evidence at trial, petitioner solicited Jeffery Witzke to deliver to Stanley Fry a beef sandwich laced with sodium cyanide. On June 11, 1986, Witzke warned Fry of the impending murder attempt. Fry alerted the Westmont police, and Witzke agreed to cooperate with the police. The following afternoon, June 12, 1986, the State obtained an eavesdropping order permitting Witzke to tape-record conversations between himself and petitioner. The State also received permission to put a recording device on the telephone in Fry’s office. Witzke was with petitioner from shortly after noon until approximately 7 p.m., most of that time driving around in petitioner’s car. Witzke brought a bag of sandwiches to Fry’s office shortly after 7 p.m. Petitioner telephoned Fry’s office while Witzke was there. At the direction of the police officers, Witzke telephoned petitioner in his car and told him that Fry had eaten the sandwich and collapsed but was still breathing. Petitioner told Witzke to suffocate Fry. After this conversation, Witzke left the office and returned to petitioner’s car, which was parked nearby. The police then arrested petitioner. The tapes from both devices were played to the jury.

Prior to trial, petitioner moved to suppress the tapes of conversations between himself and Witzke. At the hearing, on June 12, 1987, the parties stipulated to the following facts. Detective Vincent Musial, of the Westmont police department, spoke with Witzke and Fry on June 11, 1986, between 5:30 and 9 p.m. Witzke agreed to record conversations between himself and petitioner the following day. Witzke signed a consent form to that effect. Shortly after 9 p.m., Musial called an assistant State’s Attorney and discussed the case with him. The assistant State’s Attorney advised Musial to meet with him and other assistant State’s Attorneys at the State’s Attorney’s office the following morning. While Musial was at the State’s Attorney’s office the morning of June 12, 1986, he received a page to call Witzke, which he did. Witzke indicated to Musial that Witzke had received a phone call from petitioner and that he was to pick up petitioner at his home. Witzke told Musial that petitioner said, “ ‘Today was Dee [sic] day.’ ” For the rest of the morning, Musial assisted in preparing the petition for the eavesdropping order.

Around 11:20 a.m., Musial contacted Witzke and informed him that he had emergency authorization from the State’s Attorney’s office to record the meeting with petitioner. Witzke began recording conversations with petitioner at around noon and continued taping until petitioner was arrested, shortly after 7:30 p.m.

Later that afternoon, Musial and Fry testified in court in support of the petition, and the State presented the signed consent form of Witzke. Included in the common-law record is a copy of the petition for the order authorizing the use of an eavesdropping device. In the petition, Musial stated that on June 11, 1986, Witzke told him that petitioner planned the murder to occur in the “late afternoon or early evening of June 12, 1986.” At 9:34 a.m., Musial received a call from Witzke, who informed Musial that he “received a call” from petitioner. Petitioner told Witzke to crush a cyanide egg, put it in a container and be at petitioner’s house at noon. Based on this information, Musial secured an emergency authorization for the use of an eavesdropping device at 11:20 a.m.

Also in the record is a copy of the order authorizing the eavesdropping. The trial court found that it would have granted an order authorizing the use of an eavesdropping device prior to 11:20 a.m. had the information been available to the court at that time. The court further found that an emergency situation existed at 11:20 a.m. which justified the immediate use of an eavesdropping device. The order authorizing the eavesdropping was signed at 3:58 p.m.

The trial court denied the motion to suppress, finding that there was sufficient evidence for the court that issued the order to decide that an emergency situation was present, and the order and taping were done within 48 hours. The court further found that there was no way that the matter could have been expedited, there was a true emergency, and the necessary parties consented to the taping.

Petitioner filed a motion to reconsider the order, which was denied. In addition to the reasons set forth at the earlier hearing, the court noted that Fry told Musial about an investment situation with petitioner, which provided a motive for petitioner to murder Fry. Also, Musial had seen a receipt for the cyanide, and the can of cyanide was found in the trunk of Witzke’s car.

At trial, Witzke testified that petitioner informed him that the scheme to poison Fry would be executed the night of June 12. Witzke had given Musial tapes Witzke recorded of conversations between himself and petitioner on June 11 (the tapes were barred by a motion in limine), and Musial listened to those tapes on the night of June 11. Witzke testified that Musial asked Witzke to inform the police when Witzke learned what time petitioner was going to kill Fry. Witzke denied that petitioner called him the morning of June 12.

On April 25, 1991, petitioner filed his petition for post-conviction relief (Ill. Rev. Stat. 1991, ch. 38, par. 122 — 1 et seq. (now codified, as amended, at 725 ILCS 5/122 — 1 et seq. (West 1992))) alleging, among other things, that his appellate counsel was ineffective for failing to raise as an issue on appeal that the court should have suppressed the evidence of the tapes recorded by Witzke because there was no emergency to authorize the order. (See Ill. Rev. Stat. 1985, ch. 38, par. 108A — 6 (now codified, as amended, at 725 ILCS 5/108A — 6 (West 1992)).) Petitioner attached to the petition a copy of the motion filed in the trial court seeking to suppress the tapes, and a copy of the transcript from the hearing. The petition was docketed June 13, 1991. On July 12, 1991, the court dismissed the petition as frivolous and patently without merit. (See Ill. Rev. Stat. 1991, ch. 38, par. 122— 2.1(aX2) (now codified, as amended, at 725 ILCS 5/122 — 2.1(a)(2) (West 1992)).) Petitioner timely appealed.

Petitioner contends that the trial court erred in summarily dismissing his post-conviction petition because the issue of his appellate counsel’s effectiveness was not frivolous. A post-conviction proceeding is a collateral attack on a judgment which provides a remedy to criminal defendants who claim a substantial violation of their constitutional rights. (People v. Flores (1992), 153 Ill. 2d 264, 272.) A post-conviction petitioner is not entitled to an evidentiary hearing on the petition unless the allegations make a substantial showing that the petitioner’s rights have been violated. (People v. Emerson (1992), 153 Ill. 2d 100, 106.) A reviewing court will not reverse a trial court’s determination in a post-conviction proceeding unless the judgment is manifestly erroneous. People v. Odie (1992), 151 Ill. 2d 168, 172.

To establish the ineffective assistance of appellate counsel, the petitioner must show that counsel’s failure to raise an issue was objectively unreasonable and that, but for this failure, there was a reasonable probability that his conviction would have been reversed. (People v. Stewart (1990), 141 Ill. 2d 107, 119.) If the petitioner was not prejudiced by the alleged error, the court need not determine whether counsel’s acts or omissions were outside the range of professionally competent assistance. Strickland v. Washington (1984), 466 U.S. 668, 697, 80 L. Ed. 2d 674, 699, 104 S. Ct. 2052, 2069; People v. Albanese (1984), 104 Ill. 2d 504, 527.

To determine whether petitioner was denied the effective assistance of appellate counsel, we must consider the merits of the emergency eavesdropping issue. Evidence obtained in violation of the Illinois eavesdropping statute is inadmissible in a criminal proceeding. (Ill. Rev. Stat. 1985, ch. 38, par. 14 — 5 (now 720 ILCS 5/14 — 5 (West 1992)); Seehausen, 193 Ill. App. 3d at 761.) Eavesdropping consists of using a device to hear or record all or part of a conversation without the consent of all the parties to the conversation and without complying with articles 108A or 108B of the Code of Criminal Procedure of 1963 (Code). (Ill. Rev. Stat. 1985, ch. 38, par. 14 — 2(a) (now codified, as amended, at 720 ILCS 5/14 — 2(a) (West 1992)); Seehausen, 193 Ill. App. 3d at 761.) According to section 108A — 6(a) of the Code, upon approval of a State’s Attorney, a law enforcement officer may use an eavesdropping device in an emergency situation. (Ill. Rev. Stat. 1985, ch. 38, par. 108A — 6(a) (now codified, as amended, at 725 ILCS 5/ 108A — 6(a) (West 1992)).)

"An emergency situation exists when, without previous notice to the law enforcement officer sufficient to obtain prior judicial approval, the conversation to be overheard or recorded will occur within a short period of time or the use of the device is necessary for the protection of the law enforcement officer.” (Ill. Rev. Stat. 1985, ch, 38, par. 108A — 6(a) (now codified, as amended, at 725 ILCS 5/108A — 6(a) (West 1992)).)

Petitioner asserts that, on the evening of June 11, the State had ample reason to believe that a conversation between Witzke and petitioner would occur on June 12 and, therefore, should have sought authorization on the evening of June 11. Petitioner reasons that there was no emergency to justify the assistant State’s Attorney’s approval of the taping. We disagree.

There is no evidence that, on June 11, 1986, Detective Musial or the assistant State’s Attorney knew that Witzke was going to pick up petitioner at noon on June 12, 1986. It appears that, from the information Witzke provided, Musial was under the assumption that the conversations between petitioner and Witzke would not occur until late in the afternoon. Thus, Musial and the assistant State’s Attorney had no reason to believe that they would not have time to obtain the authorization for the eavesdropping before the first conversation was to have occurred. It was not until 9:30 a.m. on June 12 that Musial first learned that Witzke was going to be with petitioner all day from noon onward. Moreover, the record shows that Musial and the assistant State’s Attorney reasonably believed that emergency authorization was necessary at 11:20 a.m. because it was likely that they would not be able to contact Witzke after he picked up petitioner and before the murder attempt. This 21/2-hour time period between Musial’s call to Witzke, at 9:30 a.m., and the time when Witzke was to pick up petitioner, noon, is sufficiently short to satisfy the statute. (See People v. Schnurr (1990), 206 Ill. App. 3d 522, 532 (50 minutes a sufficiently short period of time).) Thus, there was an emergency situation which justified the emergency authorization.

Because this issue lacks merit, petitioner did not suffer any prejudice from appellate counsel’s failure to raise it in the direct appeal. We conclude that, because petitioner was not denied the effective assistance of appellate counsel, the trial court did not err in dismissing the post-conviction petition.

The judgment of the circuit court is affirmed.

Affirmed.

GEIGER and QUETSCH, JJ., concur.


author: JUSTICE COOK

text:
    BERNADINE B. MULLIKEN, Plaintiff-Appellee, v. JACK LEWIS et al., Defendants-Appellants.
    Fourth District
    No. 4 — 92—0547
    Argued February 17, 1993.
    Opinion filed June 3, 1993.

      James P. Ginzkey (argued), of Hayes, Schneider, Hammer, Miles & Cox, of Bloomington, for appellants.
    John N. Stevens (argued), of John N. Stevens Law Offices, of Blooming-ton (Jay D. Reece, of counsel), for appellee.
   JUSTICE COOK

delivered the opinion of the court:

Plaintiff Bemadine B. Mulliken brought suit against defendants alleging she incurred damages because of their undervalued appraisal of her jewelry. In a pretrial order the trial court determined a limitation of liability clause at the bottom of the written appraisal was not part of the contract and accordingly struck defendants’ affirmative defense of limited liability. The jury found in favor of Mulliken and against defendants in the amount of $44,530 plus costs. Defendants appeal, contending (1) the limitation of liability language on the appraisal is not invalid as against public policy and should have been considered by the jury, (2) economic loss is not recoverable in tort, and (3) a Federal estate tax return and 1946 appraisal should have been submitted to the jury as impeachment evidence. We reverse and remand.

This case involves a diamond and sapphire ring and an alexandrite ring which were stolen in 1987 from Mulliken while she was at her winter home in Florida. Mulliken had received the diamond and sapphire ring in 1939 as a college graduation gift and the alexandrite ring in 1976 as a gift from her mother. In 1946 Jack Lewis had appraised the diamond and sapphire ring at $1,000. Mulliken had first had the alexandrite ring appraised (at $12,000) in 1982. Although no written copy of the 1982 appraisal was available, Mulliken claimed Lewis performed that appraisal and had done all her jewelry appraisals. Defendants Lewis and John Wohlwend denied doing the 1982 appraisal.

Mulliken testified that on July 24, 1985, she took the rings to Jack Lewis, Inc., and personally told Lewis that “the insurance company was wanting new appraisals done on the jewelry and would he please take care of it for [her].” Lewis gave Mulliken a claim ticket for the rings and told her to come back in two days. Two days later Mulliken picked up the rings and a few days after that she picked up the appraisal which valued the diamond and sapphire ring at $1,050 and the alexandrite ring at $14,500. A short explanation of the appraisal with a disclaimer was preprinted on the bottom of the appraisal. The appraisal was performed by Wohlwend and signed by Lewis. Defendants billed Mulliken $30 for the appraisal and she paid for the appraisal by check in August 1985. The appraisal information was then sent to Mulliken’s insurance company.

After the two rings in question and several other pieces of jewelry were stolen, Mulliken received $15,500 from her insurance on the rings. Mulliken later brought a three-count complaint against defendants alleging the rings were undervalued in the 1985 appraisal. Count I claimed defendants acted negligently, count II claimed defendants breached their contract, and count III alleged defendants breached an implied warranty.

Defendants’ answer raised the following affirmative defense to all three counts: “That the express disclaimer appearing on the subject appraisal expressly negates any implied warranties such as complained of in plaintiff’s Second Amended Complaint, and any and all other liability as complained of by plaintiff.” Mulliken filed a motion to strike, claiming that as a matter of law the disclaimer was not a part of the contract. The trial court struck defendants’ affirmative defense, finding the preprinted disclaimer on the appraisal “did not as a matter of law constitute a part of the contract between the parties or a subsequent modification of an existing contract between the parties.” Defendants immediately appealed; however, this court dismissed that appeal because the order appealed from was not final as to a “claim” under Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), and the appeal was improper under Supreme Court Rule 308 (134 Ill. 2d R. 308). Mulliken v. Lewis (4th Dist., Nov. 6, 1991), No. 4 — 91—0382 (order of dismissal).

At the beginning of the three-day jury trial, the trial court denied defendants’ motion in limine requesting a reconsideration of the decision to strike their affirmative defense. The trial court subsequently allowed Mulliken’s motion in limine to bar any evidence or reference to the limitation of liability language on the preprinted appraisal form.

The telephonic evidence deposition of William Korst, an expert in colored gemstone appraisal, was read into evidence at trial. Korst stated that while it was “highly irregular” to have someone value an alexandrite over the phone, he felt he had the expertise to do so. Korst estimated replacement value of the alexandrite ring was $110,000. Korst stated that Wohlwend was incompetent and that Wohlwend’s appraisal was incorrect. Korst claimed Wohlwend used the wrong formula in determining the weight of the alexandrite and used the wrong light source in examining it. Testimony by William C. Frautschi, who worked in the jewelry business in Bloomington from 1972 through 1988, and Richard Brent Meade, a retail jeweler in Rockford, also indicated that Wohlwend’s appraisal was suspect. Frautschi further testified, out of the presence of the jury, in an offer of proof, that 89% of jewelry appraisers use a disclaimer to limit liability, according to Jewelers’ Circular, December 1985. Wohlwend testified the Jewelers’ Circular is “by far the most recognized journal” in the jewelry business.

Wohlwend performed the appraisal of Mulliken’s two rings in 1985; however, Lewis signed the actual appraisal. Lewis stated he did not specifically remember the alexandrite ring. He also stated that he had never personally appraised an alexandrite ring like the one stolen from Mulliken. Wohlwend admitted that based on the formula presented by Korst to determine weight of alexandrite, the alexandrite could have been 8.6 carats rather than his appraised estimate of 7.86 carats. Wohlwend testified that during his appraisal he called William Kennedy, an associate in New York, to get his opinion of current market conditions because, working in Bloomington, Wohlwend did not see many alexandrites.

The case was subsequently submitted to the jury on all three counts and the jury returned a verdict in favor of Mulliken and against defendants for $60,030, less the $15,500 already received by Mulliken from her insurance company. The court entered an order against defendants for $44,530 plus costs. Defendants filed a post-trial motion claiming the court erred by striking defendants’ affirmative defense. The trial court denied the motion.

The trial court’s order on the motion in limine barred the following language on the appraisal and any reference to such language:

“This appraisal is neither an offer to buy or sell, nor does it assume any legal responsibility unless agreed upon by the appraiser in writing. We assume no obligation whatsoever, with respect to any action taken on the basis of this report.”

Whether a contract exists, its terms, and the intent of the parties are questions of fact for the trier of fact. (Emmenegger Construction Co. v. King (1982), 103 Ill. App. 3d 423, 427, 431 N.E.2d 738, 742; W.H. Lyman Construction Co. v. Village of Gurnee (1985), 131 Ill. App. 3d 87, 93, 475 N.E.2d 273, 278; South Shore Amusements, Inc. v. Supersport Auto Racing Association (1985), 136 Ill. App. 3d 284, 287, 483 N.E.2d 337, 340.) When there is a factual dispute the question of whether a contract exists is for the jury to decide (Commonwealth Edison Co. v. Industrial Comm’n (1988), 167 Ill. App. 3d 229, 233, 521 N.E.2d 159, 162; Hany v. General Electric Co. (1991), 221 Ill. App. 3d 390, 397, 581 N.E.2d 1213, 1217), and extrinsic evidence is admissible to determine the intent of the parties (Russell v. Jim Russell Supply, Inc. (1990), 200 Ill. App. 3d 855, 867, 558 N.E.2d 115, 124; Quake Construction, Inc. v. American Airlines, Inc. (1990), 141 Ill. 2d 281, 288, 565 N.E.2d 990, 994; Farm Credit Bank v. Whitlock (1991), 144 Ill. 2d 440, 447, 581 N.E.2d 664, 667). More specifically, whether an exculpatory clause is binding due to the circumstances surrounding its execution is a question of fact for the trier of fact to decide. Erickson v. Wagon Wheel Enterprises, Inc. (1968), 101 Ill. App. 2d 296, 302, 242 N.E.2d 622, 625; Sexton v. Southwestern Auto Racing Association, Inc. (1979), 75 Ill. App. 3d 338, 340, 394 N.E.2d 49, 51.

Mulliken contends, and the trial court agreed, that the limitation of liability clause is not part of the parties’ contract as a matter of law. (See Bank of Benton v. Cogdill (1983), 118 Ill. App. 3d 280, 288, 454 N.E.2d 1120, 1125; Hany, 221 Ill. App. 3d at 397, 581 N.E.2d at 1217; Hicks v. Methodist Medical Center (1992), 229 Ill. App. 3d 610, 613, 593 N.E.2d 119, 121.) Mulliken contends the contract was unambiguous and the trial court properly determined the issue even though “this fact situation involve[d] a substantial number of disputed oral terms.” Because all the undisputed evidence on these points was before the court, Mulliken argues the terms of the contract were properly decided as a matter of law.

Defendants contend that whether the limitation of liability clause is part of the contract is a question of fact for the jury. Defendants argue the construction of the agreement in this case is dependent not only upon the meaning of the contract terms, but also upon the extrinsic facts and circumstances showing the intent of the parties.

There is no dispute regarding the meaning of the limitation of liability clause. There is also no dispute that the clause was on the appraisal given to Mulliken and that Mulliken paid $30 for the appraisal approximately one month after receiving the jewelry and appraisal from defendants. There is, however, a dispute over whether the limitation of liability language was a part of the contract, a written modification to the oral contract, or a valid counteroffer. Mulliken contends she did not know about the limitation of liability clause on the appraisal form. However, she should have known. The clause was on the appraisal form and she received the appraisal form prior to paying defendants for the appraisal. In addition, Mulliken testified that defendants had done all of her previous jewelry appraisals, including one as recent as 1982.

The trial court ruled as a matter of law the limitation of liability language did not constitute a part of the contract or a subsequent modification of the contract. In order for this to be. true as a matter of law, the contract terms must have been undisputed and unambiguous (Russell, 200 Ill. App. 3d at 867, 558 N.E.2d at 124; Hany, 221 Ill. App. 3d at 397, 581 N.E.2d at 1217), otherwise what constituted the terms of the contract would be a question of fact for the jury. It is difficult to imagine that an unambiguous oral contract was entered into between the parties at the time of the July 24 conversation, when there had been no discussion of the price or any other contract terms. There were questions of fact here for the jury to determine: when the contract came into existence, the intent of the parties, and the terms of the contract. These facts must be determined based on the parties’ oral discussions, the appraisal form, defendants’ bill, Mulliken’s subsequent payment, the parties’ course of dealing, and other relevant extrinsic evidence. (See Erickson, 101 Ill. App. 2d at 302, 242 N.E.2d at 625; Emmenegger Construction, 103 Ill. App. 3d at 427, 431 N.E.2d at 742; Quake Construction, 141 Ill. 2d at 288, 565 N.E.2d at 994.) The inferences to be drawn from those facts are also a question for the jury. (Sherbrooke Homes, Ltd. v. Krawczyk (1980), 82 Ill. App. 3d 990, 992, 403 N.E.2d 622, 624.) The question of whether the limitation of liability clause was a part of the contract is a question of fact to be determined by the jury.

Mulliken also contends the limitation of liability clause is invalid because it must be strictly construed against the party seeking to avoid liability. (Scott & Fetzer Co. v. Montgomery Ward & Co. (1986), 112 Ill. 2d 378, 395, 493 N.E.2d 1022, 1029-30.) Mulliken claims the limitation of liability clause is invalid because it is extremely broad and vague, and because she had little opportunity to negotiate the terms of the contract. As a general rule limitation of liability clauses are enforced unless it would be against the settled public policy of the State to do so, or there is something in the social relationship of the parties militating against upholding the clause. (Kubisen v. Chicago Health Clubs (1979), 69 Ill. App. 3d 463, 467, 388 N.E.2d 44, 47; Harris v. Walker (1988), 119 Ill. 2d 542, 549-50, 519 N.E.2d 917, 920; Falkner v. Hinckley Parachute Center, Inc. (1989), 178 Ill. App. 3d 597, 602, 533 N.E.2d 941, 944.) There is no indication the trial court saw anything in the limitation of liability clause indicating that it should be invalid as against public policy, or saw anything based on the parties’ relationship to hold the clause invalid as a matter of law. We decline to hold the clause invalid on that basis.

An aggrieved party cannot recover purely economic loss in a tort action. (Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 88, 435 N.E.2d 443, 452.) A recognized exception to this rule provides that economic loss is recoverable where one who is in the business of supplying information for the guidance of others makes a negligent misrepresentation. (Moorman, 91 Ill. 2d at 88-89, 435 N.E.2d at 452; see also Black, Jackson & Simmons Insurance Brokerage, Inc. v. International Business Machines Corp. (1982), 109 Ill. App. 3d 132, 134, 440 N.E.2d 282, 283-84.) Defendants contend this case does not fit within the Moorman exception because the appraisal stated that defendants “assume no obligation whatsoever, with respect to any action taken on the basis of this report.” We need not decide whether a valid limitation of liability clause would take this case out of the Moorman exception. A valid limitation of liability clause would prevent liability in any event.

Defendants also contend that if Mulliken had received an alexandrite ring of such value it should have been listed by her mother either on her Federal estate tax return or a Federal gift tax return. The trial court did not allow the estate tax return (which did not list the ring) to go to the jury, determining the return was irrelevant to show the value of the alexandrite ring. Additionally, defendants contend that a 1946 jewelry appraisal listing the diamond and sapphire ring should have gone to the jury. Defendants believe the 1946 appraisal should have been admitted because it goes to impeach Mulliken’s claim she could not produce the 1982 appraisal. Defendants argue that if Mulliken could produce the 1946 appraisal, then she should also be able to produce the 1982 appraisal in which she contends defendants first appraised the alexandrite ring.

In this case the estate tax return and the 1946 appraisal were at most marginally relevant. Where the evidence and the inferences sought to be drawn from the evidence are so vague or conjectural that they are not helpful in proving or disproving a matter in controversy, the evidence is not probative. (Moore v. Swoboda (1991), 213 Ill. App. 3d 217, 238, 571 N.E.2d 1056, 1070.) The determination of what is relevant and admissible is largely within the discretion of the trial court, and reversal of its decision is not warranted absent abuse of that discretion. (Carlyle v. Jaskiewicz (1984), 124 Ill. App. 3d 487, 496, 464 N.E.2d 751, 758.) Here, the trial court did not abuse its discretion in determining the Federal estate tax and 1946 appraisal were inadmissible.

For the foregoing reasons, the order of the circuit court of McLean County is reversed, and this cause is remanded for a new trial.

Reversed and remanded.

STEIGMANN, P.J., and McCULLOUGH, J., concur.


author: PRESIDING JUSTICE STEIGMANN

text:
    KEVIN E. MILLER, Plaintiff-Appellee, v. THE DEPARTMENT OF EMPLOYMENT SECURITY et al., Defendants-Appellants.
    Fourth District
    No. 4 — 92—0674
    Argued April 21, 1993.
    Opinion filed June 3, 1993.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Kimberly W. White, Assistant Attorney General (argued), of Chicago, of counsel), for appellants.
    Kathleen Mack, of Land of Lincoln Legal Assistance Foundation, Inc., of Springfield, and Samuel J. Moore (argued), for appellee.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

In November 1990, plaintiff, Kevin E. Miller, applied for unemployment compensation benefits from defendant, the Illinois Department of Employment Security (Department). The Department found plaintiff ineligible for benefits under section 500(CX4) of the Unemployment Insurance Act (Act) (Ill. Rev. Stat. 1991, ch. 48, par. 420(C)(4)) because his principal occupation was that of a student. On administrative review, the circuit court reversed this decision, and the Department appeals.

We reverse.

I. Background

On November 2, 1990, plaintiff was discharged from his job as a janitor at Maintenance Supply Corporation in Springfield, Hlinois. He had worked at Maintenance Supply since September 1989. A few days after his discharge, plaintiff applied for unemployment compensation benefits from the Department for the period of November 4, 1990, through November 17, 1990. A claims adjudicator for the Department denied plaintiff’s claim on the ground that he was ineligible under section 500(CX4) of the Act because his principal occupation was that of a student. Plaintiff filed an application for reconsideration, which was granted. On reconsideration, a reviewing claims adjudicator for the Department noted that plaintiff was willing to drop classes for work and that he needed to work in order to continue school. The reviewing adjudicator also specified that plaintiff would “prefer” (emphasis in original) part-time work but would take full-time work. The adjudicator then affirmed the initial determination that plaintiff was ineligible to receive benefits because his principal occupation was that of a student.

Plaintiff thereafter appealed the reviewing claims adjudicator’s determination. A Department referee conducted a hearing on plaintiff’s claim and affirmed the claims adjudicator’s determination. On still further appeal, the Board of Review (Board) reached the same conclusion and affirmed the decision of the referee. However, on administrative review, the circuit court reversed the decision of the Board, finding plaintiff’s principal occupation was not that of a student. The court held that the record showed plaintiff was available for and able to work. Accordingly, the court ruled that the decision denying benefits was against the manifest weight of the evidence. This appeal followed.

II. Analysis

In an unemployment compensation case, the Board is the trier of fact (London v. Department of Employment Security (1988), 177 Ill. App. 3d 276, 279, 532 N.E.2d 294, 296), and its factual findings should be viewed as prima facie correct. A court should not disturb those findings on review unless they are contrary to the manifest weight of the evidence (Ill. Rev. Stat. 1991, ch. 110, par. 3 — 110; Wilson v. Department of Employment Security (1990), 196 Ill. App. 3d 711, 713, 554 N.E.2d 1006, 1008; London, 177 Ill. App. 3d at 279, 532 N.E.2d at 296-97; Popoff v. Department of Labor (1986), 144 Ill. App. 3d 575, 576-77, 494 N.E.2d 1266, 1267). A reviewing court may not substitute its judgment for that of an administrative agency. Popoff, 144 Ill. App. 3d at 577, 494 N.E.2d at 1267; James v. Department of Labor (1983), 119 Ill. App. 3d 524, 527, 456 N.E.2d 879, 881; Doran v. Department of Labor (1983), 116 Ill. App. 3d 471, 474, 452 N.E.2d 118,121.

The primary purpose of the Act is to provide compensation benefits to unemployed individuals to alleviate their economic distress caused by involuntary unemployment (Wadlington v. Mindes (1970), 45 Ill. 2d 447, 452, 259 N.E.2d 257, 261; Popoff, 144 Ill. App. 3d at 577, 494 N.E.2d at 1267; Collier v. Department of Unemployment Security (1987), 157 Ill. App. 3d 988, 991, 510 N.E.2d 623, 625), not to benefit those who are unemployed because of their own misdeeds (Popoff, 144 Ill. App. 3d at 577, 494 N.E.2d at 1267). Receiving unemployment insurance benefits in this State is a conditional right, and the claimant bears the burden of proving his eligibility for those benefits. Henderson v. Department of Employment Security (1992), 230 Ill. App. 3d 536, 538, 595 N.E.2d 96, 98; Collier, 157 Ill. App. 3d at 991, 510 N.E.2d at 625; Eddings v. Department of Labor (1986), 146 Ill. App. 3d 62, 66, 496 N.E.2d 1167,1169.

To be eligible for benefits under the Act, a claimant must prove that he meets the terms and conditions the Act prescribes (Collier, 157 Ill. App. 3d at 992, 510 N.E.2d at 625; Popoff, 144 Ill. App. 3d at 577, 494 N.E.2d at 1267), including that he is available for work. (Ill. Rev. Stat. 1991, ch. 48, par. 420(C).) Generally, availability means that the claimant stands ready and willing to accept suitable work. (James, 119 Ill. App. 3d at 527, 456 N.E.2d at 881; see Kocourek v. Bowling (1981), 96 Ill. App. 3d 310, 315-16, 421 N.E.2d 397, 402.) Section 500(C)(4) of the Act provides that a claimant is “deemed unavailable for work with respect to any week which occurs in a period when his principal occupation is that of a student in attendance at, or on vacation from, a public or private school.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 48, par. 420(C)(4).

The evidence in this case disclosed that prior to losing his job, plaintiff worked a 6 p.m. to 10 p.m. shift at Maintenance Supply five nights a week while he attended classes at Lincoln Land Community College 12 hours per week. He attended classes on Monday, Wednesday, and Friday from 8 a.m. to noon, on Tuesday from 9 a.m. to 10 a.m., and on Thursday from 1 p.m. to 3 p.m. Plaintiff took these classes to obtain an associates degree in electronics technology.

Plaintiff began taking classes at Lincoln Land in the fall of 1989. During that time, he worked full-time at Maintenance Supply from 10 p.m. to 6 a.m. and took 15 hours of classes. In the spring of 1990, he took 12 credit hours. In the fall of 1990, he took an additional 12 hours. He was a full-time student based on this course load. At the time of the hearing, plaintiff was enrolled for 12 hours for the spring 1991 term.

On plaintiff’s eligibility review form for unemployment compensation benefits, he indicated he would prefer to work an evening or afternoon shift. At the hearing, plaintiff explained by “afternoon shift” he meant after 12:30 p.m. because his classes ended at noon. The form also required him to designate what other shift he would work, and plaintiff wrote “none.” He later clarified that answer by explaining that when he said he could not work any other shift, he meant that he did not want to work a “graveyard shift.” However, at the subsequent hearing, he said that if he found a job and the pay was right, he would work a “graveyard shift.” On the same form, plaintiff also indicated he could not work Mondays because of school. However, although he earlier listed only Monday as the day he could not work, he stated elsewhere on the form that he also could not work on Tuesdays, Wednesdays, and Thursdays because of school.

After interviewing plaintiff, a claims adjudicator specified on a claimant-information form that plaintiff attended classes at Lincoln Land in pursuit of a degree and sought part-time employment because of his schedule. When the referee asked plaintiff about daytime shifts, plaintiff replied he would be in school. He also stated that when he applied for work, he indicated he wanted to work part-time. When asked by the referee what he would have done if he had been offered an 8 to 5 job in November, plaintiff asserted he would have accepted the job and then would have made arrangements with his teachers to complete his courses. He further asserted that he was available to go to work, and the only reason he went to school was “so that [he could] be a worker, so [he could] get a job.”

On this record, the Department could appropriately find plaintiff’s employment was geared around and subservient to his classes. Although plaintiff had indicated to a claims adjudicator he would forego taking classes in order to obtain a full-time job and had in the past successfully worked full-time while attending classes full-time, the evidence also demonstrated that plaintiff was a full-time student and sought part-time employment that would not interfere with his classes. On his eligibility review form, he asserted that he could not work Mondays because it would conflict with his classes. At the hearing, he testified this was also true of other days of the week. He also stated on the form that he would not work any shift other than afternoon or evening because of his classes. When applying for work, he indicated to potential employers he sought only part-time employment. Thus, the Board’s finding that his principal occupation was that of a student was not against the manifest weight of the evidence. (See James, 119 Ill. App. 3d at 528, 456 N.E.2d at 882.) Accordingly, we reverse the circuit court’s judgment.

III. Conclusion

For the reasons stated, we reverse the judgment of the circuit court.

Reversed.

McCULLOUGH and COOK, JJ., concur.


author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD FUSCO, Defendant-Appellant.
    Fourth District
    No. 4 — 92—0678
    Argued April 14, 1993.
    Opinion filed June 3, 1993.

      Daniel D. Yuhas and Gary R. Peterson (argued), both of State Appellate Defender’s Office, of Springfield, for appellant.
    Scott H. Walden, State’s Attorney, of Quincy (Norbert J. Goetten, Robert J. Biderman, and James Majors (argued), all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On January 2, 1992, a five-count information was filed in the circuit court of Adams County against defendant Donald Fusco. The first four counts charged him with the first degree murder (Ill. Rev. Stat. 1991, ch. 38, par. 9 — -1(a)) of Marc Crawford on or about December 27, 1991. The fifth count charged him with the robbery (Ill. Rev. Stat. 1991, ch. 38, par. 18 — 1(a)) of Crawford on or about that date. At the conclusion of a jury trial on June 26, 1992, judgment was entered on a verdict finding defendant guilty of first degree murder and robbery. On July 31, 1992, the court sentenced defendant to concurrent terms of 60 years’ imprisonment for first degree murder and 7 years for robbery. Defendant appeals.

On appeal, defendant maintains the court erred in submitting various instructions to the jury which concerned his guilt of murder on a theory of his accountability for the conduct of Randy Schlueter. Defendant makes no contention that the evidence was not sufficient to support his guilt of murder as a principal but asserts that no evidence supports a finding that he was guilty under a theory of accountability. Most of the evidence at trial consisted of the testimony of Schlueter and defendant, each of whom was admittedly present when Crawford was killed, each stating that the other performed every act which brought about Crawford’s death.

The evidence was undisputed as to certain events which occurred in the evening of December 26, 1991, and the early morning hours of December 27, 1991. That month defendant returned to Quincy, his hometown, from Las Vegas, Nevada, where he had been living for the previous six months. On December 26, defendant called Schlueter, a friend he had known for several years, to pick him up at the Diamond Motel, where he was staying. Defendant was then 19 years old and Schlueter was 22. They spent the evening at the Forum nightclub in Quincy until it closed at 2:30 a.m. on December 27. They left the Forum on foot and, as they were walking, a car driven by Crawford pulled over, and Crawford asked them if they would like a ride. Both the defendant and Schlueter got in the car, although it was disputed who got in front with the victim. Crawford drove to a store where Schlueter purchased a six-pack of Michelob Light beer and then drove to a deserted area near a boat ramp by the Quincy dam.

Schlueter testified that after he and defendant got out of the automobile at the dam: (1) defendant leaned over to him and said “Schlu, let’s roll this dude”; (2) Schlueter made no response; (3) Crawford then got out of the vehicle and walked up to where they were standing; (4) defendant then reached into his pocket, took out gloves which he put on and leaned over and whispered to Schlueter, “let’s stick this guy” or “let’s roll this dude”; (5) Schlueter again made no response; (6) defendant then attacked Crawford with his fists and kicked him while he was on the ground; (7) defendant approached Schlueter and said, “Schlu we got to kill this dude”; (8) Crawford was then on his hands and knees crawling to the river, and defendant threw a rock on top of Crawford, hitting him in the back; and (9) defendant then said that Crawford was not dead yet and they had to kill him.

Schlueter’s testimony indicated that to the point of defendant’s telling him Crawford was not dead yet, Schlueter merely stood and watched or shouted something he could not remember. Schlueter testified that when defendant stated Crawford was not dead and that they should kill him, he (Schlueter) told defendant, “let’s just leave.” However, according to Schlueter, defendant then tried to cut Crawford’s neck with a bottle defendant had broken on Crawford’s head. Schlueter maintained he then went down to the river and tried to get defendant off Crawford, but he fell in the river in the process. Defendant went to Crawford’s car and retrieved a tire jack, which he then used like a hammer to beat Crawford in the head. Schlueter asserted that defendant pulled Crawford’s body up the boat ramp toward the woods. Schlueter admitted he helped defendant pull the body over a brush pile and in the process got some blood on his pants.

Defendant testified that (1) right after he, Crawford, and Schlueter got out of the automobile, Schlueter hit Crawford in the head with a beer bottle without any warning; (2) Schlueter and Crawford then kicked and punched each other while moving down toward the river; (3) soon, Schlueter, by himself, came back up to where defendant was standing and grabbed from the car an object which later turned out to be a jack; (4) he then heard thumping sounds but could not see what Schlueter was doing; (4) Schlueter then asked him to help carry the body and he refused; and (5) Schlueter went back to the river and reappeared in a few minutes dragging Crawford’s body. According to defendant, Schlueter put the body behind a brush pile, and shortly thereafter, they drove away in Crawford’s automobile.

The testimony of defendant and Schlueter was consistent to the extent that they both testified they spent the rest of the night at a Quincy motel and were together for some time the next day. Defendant admitted that he eventually gave the police an untrue account of how he spent the night of December 26-27, 1991. The State presented the testimony of Harold Meyers, a person who had been convicted of several felonies. Meyers testified that while he and defendant were inmates in the Adams County jail, defendant basically admitted to him that he, defendant, had killed Crawford. For the purpose of deciding the issue here, we need not discuss the general facts of the case further at this point.

Over defense objection that no evidence was presented that defendant was guilty by reason of accountability, the court submitted to the jury two instructions. The first, concerning accountability, stated as follows:

“A person is legally responsible for the conduct of another person when either before or during the commission of an offense and with intent to promote or facilitate the commission of that offense, he knowingly solicits, aids, abets, agrees to aid or attempts to aid the other person in the planning or commission of an offense.” (Emphasis added.)

(See Illinois Pattern Jury Instructions, Criminal, No. 5.03, at 75-76 (2d ed. Supp. 1989) (hereinafter IPI Criminal 2d (Supp. 1989).) Notably this instruction was in the usual form of IPI Criminal 2d No. 5.03 (Supp. 1989) with the article “an” selected from the bracketed articles as the second to last word in the first paragraph of that instruction, rather than the article “the.” We discuss the matter further later. The second instruction, pertaining to defendant’s responsibility for the act of another, stated:

“A person who is legally responsible for the conduct of another may be convicted for the offense committed by the other person even though the other person, who it is claimed committed the offense, has not been prosecuted for that offense.”

See Illinois Pattern Jury Instructions, Criminal, No. 5.06, at 42 (2d ed. 1981) (hereinafter IPI Criminal 2d).

The State agrees that instructing the jury on accountability is improper when no evidence supporting the guilt of the accused on a theory of accountability has been presented. (People v. Crowder (1993), 239 Ill. App. 3d 1027, 1030, 607 N.E.2d 277, 279.) Defendant contends that the evidence here conclusively shows that either defendant or Schlueter was solely responsible for the first degree murder of Crawford and that any assistance given by one of them to the other occurred after the crime was completed. We disagree.

Section 5 — 2(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 5 — 2(c)) states:

“A person is legally accountable for the conduct of another when:

(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits *** such other person in the planning or commission of the offense.” (Emphasis added.)

IPI Criminal 2d No. 5.03 (Supp. 1989) follows the statutory language. As we have indicated, Schlueter testified that when he and defendant first alighted from the vehicle at the dam, defendant stated “Schlu, let’s roll this dude” and made similar remarks before attacking Crawford. Similarly, Schlueter testified that during the course of the beating of Crawford, defendant further suggested that they should kill Crawford.

The jurors were entitled to believe as little or as much of the testimony of the -witnesses as they chose. (People v. Warren (1965), 33 Ill. 2d 168, 174, 210 N.E.2d 507, 510, citing 7 J. Wigmore, Evidence §2100 (3d ed. 1940); People v. Patterson (1980), 88 ni. App. 3d 878, 886, 410 N.E.2d 1115, 1121.) The jury could have believed Schlueter’s testimony that defendant solicited Schlueter prior to commission of the murder and robbery to “roll this dude” with the intent that be done. The jury could have then believed defendant’s testimony that Schlueter actually committed the robbery and the killing of Crawford.

Only slight evidence is necessary to justify giving an instruction on accountability. (People v. Dotson (1986), 143 Ill. App. 3d 135, 142, 492 N.E.2d 903, 907; People v. Thomas (1979), 72 Ill. App. 3d 28, 36, 389 N.E.2d 1316, 1322; People v. Clifford (1976), 38 Ill. App. 3d 915, 919, 349 N.E.2d 922, 925.) Schlueter’s testimony of defendant’s solicitation of Schlueter, together with defendant’s testimony of Schlueter’s actions concerning Schlueter’s striking and killing Crawford, furnished that evidence. Moreover, conduct of a party after the commission of an offense can be considered in regard to whether that party was guilty as an accomplice. (Dotson, 143 Ill. App. 3d at 142, 492 N.E.2d at 907; People v. Cleveland (1986), 140 Ill. App. 3d 462, 469, 488 N.E.2d 1276, 1281.) Here, testimony that defendant stayed with Schlueter for some time after the offense and later lied to the police about his whereabouts corroborates the State’s theory that defendant was guilty of first degree murder either as a principal or by accountability.

Accordingly, the court properly instructed the jury in regard to accountability. In addition to the two instructions quoted above, defendant also maintains that the court erred in including language concerning accountability in giving an instruction defining murder. Defendant relies on People v. Terry (1984), 99 Ill. 2d 508, 516, 460 N.E.2d 746, 750, where the supreme court stated that inclusion of language concerning accountability in an instruction defining murder was error. That court recognized that reference to accountability would be proper in an issues instruction concerning murder when proof of guilt by accountability was presented. The apparent reason given by the supreme court for finding error in having such language in a definition instruction was that the committee note to IPI Criminal 2d No. 5.03 (2d ed. 1981) did not call for such language. The Terry court deemed the error harmless because the jury was fully instructed as to the law of the case and the proof of defendant’s guilt was overwhelming. Defendant here points out that proof of his guilt is not overwhelming. Nevertheless, the Terry court did not indicate that any substantial prejudice occurred there. Here, the jury was fully instructed as to the law and we do not see how any prejudice could have resulted. Accordingly we find no reversible error.

Defendant’s other claim of error arises from the use of the word “an” in place of “the” as the next to the last word in the instruction given defining accountability, patterned after IPI Criminal 2d No. 5.03 (Supp. 1989), quoted above. Defendant notes that the committee notes for the giving of that instruction indicate that the word “an” should be used in concluding the first paragraph thereof only when the offense charged differs from the allegedly planned, intended offense. (See IPI Criminal 2d No. 5.03, Committee Note, at 76 (Supp. 1989).) As evidence was presented here that defendant could have been guilty of merely concealing a homicidal death (see Ill. Rev. Stat. 1991, ch. 38, par. 9 — 3.1(a)), he maintains that the wording of the instruction erroneously told the jury he could be guilty of the murder (“an offense”) merely by soliciting, aiding, or abetting, or attempting to aid in the planning or commission of the concealment of the homicidal death.

The issue of the use of the word “an” was not raised by defendant at the conference on instructions but was contained in his post-trial motion. The State maintains that any error was not plain error and that the claimed error was waived. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) Defendant points out that when an issue was raised at trial but omitted in a post-trial motion, this court has considered the question, although not plain error, where prejudice of substance to the defendant occurred. (People v. Maness (1989), 184 Ill. App. 3d 149, 152, 539 N.E.2d 1368, 1370.) We also recognize the policy requiring that a jury be adequately instructed as to the essential characteristics of the crime of which the accused is charged. People v. Ogunsola (1981), 87 Ill. 2d 216, 222, 429 N.E.2d 861, 864.

The form of IPI Criminal 2d No. 5.03 (Supp. 1989) given here requires that conduct making an accused accountable for the offense of another must occur “before or during the commission” of the offense for which the accused is being charged. Thus, by the terms of the instruction, any conduct in regard to the offense of concealing a homicidal death (“an offense”) would have had to occur before or during the robbery and murder in order to be covered by the given instruction. No evidence was presented that this occurred. No argument was made by the State that this occurred, nor was there any argument that concealing the body of Crawford was a basis for holding defendant accountable. Any chance that the jury would have been confused by a literal interpretation of the language used in the instruction as given and based defendant’s guilt upon activity connected with concealing of the body was extremely remote. We agree with the State that any impropriety in the instruction was waived.

The judgment of conviction and sentence is affirmed.

Affirmed.

KNECHT and LUND, JJ., concur.