author: JUSTICE SCARIANO

text:
    CAROL PICKETT, Adm’r of the Estate of Doyle Pickett, Deceased, Plaintiff-Appellant, v. YELLOW CAB COMPANY et al., Defendants (Power Contracting & Engineering Corporation, Defendant-Appellee).
    First District (2nd Division)
    No. 1—88—0381
    Opinion filed April 4, 1989.
    Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini, Fredric J. Grossman, and Edward M. Kay, of counsel), for appellant.
    Kralovec, Marquard, Doyle & Gibbons, Chartered, of Chicago (Nancy Jo Arnold and Philip W. Domagalski, of counsel), for appellee.
    Anesi, Ozmon, Lewin & Associates, Ltd., Asher, Pavalon, Gittler & Greenfield, Ltd., and George M. Elsener & Associates, Ltd., all of Chicago (Nat P. Ozmon, Lester Asher, Eugene I. Pavalon, George M. Elsener, Curt N. Rodin, and Richard A. Kimnach, of counsel), for amici curiae Illinois Federation of Labor and Congress of Industrial Organizations, Chicago and Cook County Building and Construction Trades Council, Ironworkers District Council of Greater Chicago, and Tri-City Building Trades Council of Chicago.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Kevin R. Sido, Joshua G. Vincent, and Bruce L. Carmen, of counsel), for amici curiae Central Illinois Builders of Associated General Contractors Consulting Engineers Council of Illinois, Home Builders Association of America, Illinois Architect Engineer Council, American Institute of Architects, Illinois Defense Counsel, Illinois Manufacturers’ Association, and Illinois Society of Professional Engineers.
   JUSTICE SCARIANO

delivered the opinion of the court:

Plaintiff appeals from the dismissal of that portion of her amended complaint in which she sought damages for loss of her decedent’s society and companionship, arguing that these damages are available under the Structural Work Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 60 et seq.).

Plaintiff’s husband died as a result of injuries he sustained when he fell from a scaffold on which he had been working in connection with the construction and repair of a building in Northbrook, Illinois. Defendant was one of the construction contractors and is named in counts III and IV, which are pleaded under the Structural Work Act (Ill. Rev. Stat. 1987, ch. 48, pars. 60 through 69), and counts V and VI, which are pleaded in negligence. Defendant filed a motion for judgment on the pleadings as to paragraph 9 of count III, seeking an order dismissing that portion of that paragraph claiming damages for “loss of society and companionship of the [djecedent.” That motion was granted and plaintiff was given leave to file a further amended pleading; however, rather than doing so, plaintiff moved to vacate the order of dismissal and for leave to file a written response to defendant’s motion. The trial judge granted plaintiff leave to file her memorandum, but denied her motion to vacate, finding that loss of society and companionship was “recoverable only under the Wrongful Death Act [Ill. Rev. Stat. 1987, ch. 70, pars. 1, 2] as an element of damage in the wrongful death action.” The judge then entered judgment on the pleadings as to the allegations in count III relating to loss of society and companionship under the Structural Work Act and found that there was no reason to delay enforcement or appeal of the order. This appeal followed.

Opinion

Section 9 of the Structural Work Act provides in pertinent part as follows:

“For any injury to person or property, occasioned by any wilful violations of this Act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured, for any direct damages sustained thereby; and in case of loss of life by reason of such wilful violation or wilful failure as aforesaid, a right of action shall accrue to the surviving spouse of the person so killed, the lineal heirs or adopted children of such person, or to any other person or persons who were, before such loss of life, dependent for support on the person or persons so killed, for a like recovery of damages for the injuries sustained by reason of such loss of life or lives.” Ill. Rev. Stat. 1987, ch. 48, par. 69.

Plaintiff argues that section 9, in creating a cause of action in favor of the structural worker’s surviving spouse, heirs, or dependents, focuses upon the damages suffered by them as a result of his having lost his life. Defendant maintains that the Act centers not upon the losses experienced by the widow, heirs or dependents of the decedent, but upon the damages that would have been incurred by the worker had he survived his injury.

Plaintiff contends that “direct damages” include- the value of the decedent’s society and companionship which she and her children lost as a result of his death, and cites the provisions as to damages contained in the Coal Mining Act (Ill. Rev. Stat. 1987, ch. 96½, par. 1007), which, she claims are in pari materia with section 9 of the Structural Work Act (see Mitseff v. Acme Steel Co. (N.D. Ill. 1962), 208 F. Supp. 805, 807; Scully v. Otis Elevator Co. (1972), 2 Ill. App. 3d 185, 275 N.E.2d 905), pointing out that they have been interpreted to include the value of the decedent’s society and companionship, (O’Fallon Coal Co. v. Laquet (1902), 198 Ill. 125, 64 N.E. 767.) Plaintiff adds that more recent decisions have made clear that the value of a decedent’s society and companionship are elements of the pecuniary damages recoverable in a death action brought under the Structural Work Act. Fedt v. Oak Lawn Lodge, Inc. (1985), 132 Ill. App. 3d 1061, 478 N.E.2d 469; Scully v. Otis Elevator Co. (1972), 2 Ill. App. 3d 185, 275 N.E.2d 905.

In O Fallon, plaintiff, the son of a deceased worker, was awarded damages under the Coal Miners Act (Ill. Rev. Stat. 1899, ch. 93 (Hurd)), which provided for the recovery of direct damages by an injured worker and “in case of loss of life *** a like recovery of damages” for dependents. (O'Fallon, 198 Ill. at 127.) On appeal, defendant challenged the following jury instruction:

“[I]f you find a verdict in favor of the plaintiff, then, in assessing the plaintiff’s damages, you may consider the pecuniary benefits which the plaintiff may have derived from the deceased had the deceased not been killed, at any age of deceased’s life, provided you further find, from the evidence, that the plaintiff is the next of kin, dependent upon [the] deceased for support.” (198 Ill. at 127.)

In upholding the award, the court quoted from the American and English Encyclopedia of Law (8 Am. & Eng. Encyc. Law 914), stating the rule for measuring the damages “under statutes similar to ours”:

“ ‘The damages in such a case must be sufficient to compensate for the pecuniary loss which the decedent’s wife or children, or both, have sustained in consequence of his death; and this is such a sum, and no more, as the deceased would probably have earned by his intellectual and bodily labor at his business, profession or trade during the residue of his probable life, which would have gone for the benefit of his wife and children. In estimating this, the decedent’s age, business capacity, ability and disposition to labor, and his habits of living, are to be considered. To the foregoing rule the weight of authority adds that the value of the father’s services in the attention to and care and superintendence of his children and family and in the education of his children, of which they are deprived by his death, should also be considered as an element of pecuniary damage.’ ” (O’Fallon, 198 Ill. at 127-28.)

The court continued:

“It is true, the language of the Mining act, under which this suit was brought, differs from that of chapter 70, authorizing a recovery for causing death by a wrongful act, neglect or default, and also from the language of the Dram-shop act, where the recovery may be had for ‘an injury to the means of support;’ but the damages in either case must be left largely to the discretion of the jury under all the facts and circumstances of the case and the instructions of the court, it being impossible to accurately estimate the value of human life.” (198 Ill. at 128.)

The court then held that the challenged instruction, “though awkwardly drawn,” did with “reasonable fairness, submit the question of damages to the jury.” 198 Ill. at 128.

In Scully, plaintiffs, the widow and children of a deceased worker, recovered damages under the Structural Work Act. On appeal, defendant argued that the instruction on damages was improper because it directed the jury to consider pecuniary loss rather than direct damages, resulting in a grossly excessive award. The appellate court upheld the instruction, holding that “the purported distinction” between the terms “direct damages” and “pecuniary loss” was “semantical rather than substantive.” (2 Ill. App. 3d at 199-200.) The court then added:

“ ‘[D]irect damages” as utilized in the statute means the pecuniary losses to which plaintiffs were subjected. Pecuniary damages have traditionally been held to consist of the value of the sum of monetary contributions and personal services the decedent would have provided. (O’Fallon Coal Co. v. Laquet.)” (2 Ill. App. 3d at 200.)

The court discussed the decedent’s age, health, and his life expectancy at the time of his death, his job, earning potential and personal expenses, then continued:

“With respect to the personal services decedent rendered his family, the evidence reveals that he did all the plumbing and helped the electrician and heating contractor. He did the painting, decorating, and landscaping. After completion of the home, he built a recreation room.
Decedent spent most of his non-working hours at home. The family did everything together such as going on picnics and visiting friends. He took John to Mass and almost every place he would go to visit and do chores. He helped the children at bedtime and taught them their evening prayers. He also did all the repair work around the home.” (2 Ill. App. 3d at 200-01.)

Based on such evidence, the court upheld the instruction and affirmed the jury’s award.

In Fedt, defendant in a Structural Work Act case argued on appeal that the jury verdict was excessive. The appellate court disagreed, stating:

“The jury’s award of $1 million for the death of Marc Clay must also be sustained. There is no fixed monetary standard for evaluating a human life, and the award of damages greatly depends on the sound judgment of the jury. [Citations.] Here, the jury was able to consider the testimony of Clay’s mother, father, and sister as to decedent’s work habits, employment history, education, and ambitions, and his relationship with and contributions to his family. The verdict had ample support in the record and was not the result of passion or prejudice.” 132 Ill. App. 3d at 1072.

Defendant contends that the Fedt court’s references to decedent’s education, ambitions, relationship with and contributions to his family reflect his probable future income and the likelihood that he would have contributed' to the support of his family. It further claims that the statements in Scully regarding the family’s picnics and visits to friends must be seen as surplusage or dicta, since the express ruling of the court was that the amount of the verdict in excess of future contributions to support represents the value of decedent’s personal service. Defendant also maintains that O’Fallon did not allow recovery for loss of society, but only for loss of support and personal services.

Defendant insists that the purpose of section 9 of the Structural Work Act is to compensate an injured worker for injuries sustained as a result of an unsafe workplace, and, in the event of death rather than injury, it provides for “a like recovery” to compensate dependents for loss of support. It contrasts the Structural Work Act with the Wrongful Death Act, which homes on losses experienced by a widow and next of kin and which does allow recovery for loss of society. In support of its argument defendant relies on Mitseff v. Acme Steel Co. (N.D. Ill. 1962), 208 F. Supp. 805, which held that the dollar limitation on awards that the Wrongful Death Act does not apply in a Structural Work Act death case. In Mitseff Acme argued that the language “like recovery of damages” in section 9 meant “like unto Wrongful Death recovery.” (208 F. Supp. at 807.) The court disagreed, stating:

“The proper interpretation of the phrase ‘a like recovery of damages’ as used in the Scaffolding Act [the Structural Work Act] would appear to be that in the event of death rather than injury by virtue of a violation of the act, the same measure of damages applicable in the event of injury, i.e., ‘any direct damages sustained thereby’ is to be applied. *** It is obvious *** that the legislature intended no correlation between the two statutes [Structural Work Act and Wrongful Death Act].” 208 F. Supp. at 807-08.

Defendant also relies on Martin v. Kiendl Construction Co. (1982), 108 Ill. App. 3d 468, 438 N.E.2d 1187, which held that section 9 of the Structural Work Act does not grant the spouse of an injured worker a right of action for loss of consortium. In so holding, the court stated that “[t]he purpose of the Act clearly is to compensate the worker for injuries sustained upon an unsafe workplace.” (108 Ill. App. 3d at 469.) Defendant argues that the holding in Martin means that dependents can recover only that amount which a worker would have recovered had he been injured, i.e., loss of support and personal services.

Amici for reversal argue that direct damages under section 9 are measured by pecuniary injury (Scully v. Otis Elevator Co. (1972), 2 Ill. App. 3d 185, 275 N.E.2d 905), and pecuniary damages under the Wrongful Death Act include the value of loss of decedent’s society (Elliott v. Willis (1982), 92 Ill. 2d 530); therefore, the Structural Work Act must also allow such recovery. They maintain that “Martin has no precedential effect on the issue before this [c]ourt [because] the court in Martin nowhere construed the term ‘direct damages.’ ” They also claim that Martin is distinguishable, because that case involved an injured rather than a deceased worker. Finally, amici argue that in order to award full compensation and deter future violations of the Act, this court must recognize the right to recover for loss of society. They assert that an injured worker can recover for intangible losses, such as pain and suffering, and therefore the dependent in a death action should be allowed to recover for loss of society.

Amici in support of affirmance contend that damages in a death action are to be no greater or less than the damages recoverable by an injured worker. They also argue that the definition of “pecuniary loss,” as used in Elliott, is different from that employed in O’Fallon and Scully. Prior to Elliott, loss of society was not an element of pecuniary injury, and thus, although the term “pecuniary loss” was used in both O’Fallon and Scully, the plaintiffs in those cases did not recover for loss of society.

Although the O'Fallon, Scully and Fedt courts mentioned the deceaseds’ relationships with their families, it is not clear whether they did so only in relation to measuring the value of the deceased’s personal services and likely contributions to their families, or whether the courts were considering the value of the loss of the decedents’ society. However, we need not resolve this issue, because, as we have noted above, our supreme court held in 1982 that loss of society and companionship is an element of damages for pecuniary loss. (Elliott v. Willis (1982), 92 Ill. 2d 530.) In that case, plaintiff sought “the reasonable value of the society, companionship and conjugal relationship” that she had with her husband and which she had been deprived of because of his death. The issue on appeal was “whether loss of consortium is compensable as a ‘pecuniary injury’ under the Wrongful Death Act.” (92 Ill. 2d at 534-35.) The supreme court answered affirmatively, stating:

“Since we have said that the felicity and care of a father are capable of evaluation as ‘pecuniary injuries’ under the Wrongful Death Act, we are compelled to conclude that the companionship and conjugal relationship of a spouse are equally compensable as ‘pecuniary injuries.’
* * *
The purpose of the Wrongful Death Act is to compensate the surviving spouse and next of kin for the pecuniary losses sustained due to the decedent’s death. [Citations.] It is intended to provide the surviving spouse the benefits that would have been received from the continued life of the decedent. The jury should have been instructed that the value of the decedent’s companionship and conjugal relations could be considered in computing the damages to be recovered.” (92 Ill. 2d at 538, 540.)

The court then held that Illinois Pattern Jury Instructions, Civil No. 31.04 (1965), which provides that in determining “pecuniary injuries” the jury may not consider “[t]he loss of decedent’s society by the widow and next of kin” was no longer valid. 92 Ill. 2d at 541.

The Elliott court stated that damages under the Wrongful Death Act “are assessed in accordance with the loss to decedent’s survivor’s,” and “[t]he test is a measurement of benefits of pecuniary value that the decedent might have been expected to contribute to the surviving spouse and children had the decedent lived.” (92 Ill. 2d at 541.) The same measurement of damages is provided for in the Structural Work Act: “[T]he pecuniary benefits which the plaintiff may have derived from the deceased.” O’Fallon Coal Co. v. Laquet (1902), 198 Ill. 125, 127, interpreting the “direct damages” provision of the Coal Miners Act.

Whether viewed from the technical focus of the legal optic or the more instinctive human eye, we see no reason why the term “pecuniary losses” should mean one thing under the Wrongful Death Act and another under the Structural Work Act. Nor do we perceive any need to erect a firewall between the two. The O'Fallon court did not expressly prohibit the recovery of loss of society, and, arguably, the holding in Elliott was at least inchoate in O’Fallon. In this connection we note that, although the legislature has had ample opportunity to amend the Structural Work Act since Elliott was decided, it has chosen not to do so. We must therefore assume that the legislature approves of the interpretation of “direct damages” to mean pecuniary loss, including loss of society. See Independent Voters v. Illinois Commerce Comm’n (1987), 117 Ill. 2d 90; 2A N. Singer, Sutherland on Statutory Construction §45.12, at 55 (Sands 4th ed. 1984).

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed, and this cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

BILANDIC, P.J., and HARTMAN, J., concur.


source: Caselaw Access Project

author: JUSTICE PINCHAM

license: Public Domain

text:
    JO JAN CORPORATION, Plaintiff-Appellee, v. ROBERT BRENT, Indiv. and d/b/a Bob Brent’s Food and Liquor, et al., Defendant-Appellant.
    First District (5th Division)
    No. 1—86—2509
    Opinion filed April 7, 1989.
    Lament Cranston Strong and Diane Shelley, both of Chicago, for appellant.
    Richard L. Hoffman, of Chicago, for appellee.
   JUSTICE PINCHAM

delivered the opinion of the court:

This action was brought against the defendants, Robert Brent et al. (Brent), by the plaintiff, JoJan Corporation (JoJan), to foreclose two mortgages secured by promissory notes and to foreclose a mechanic’s lien. Brent filed a special and limited appearance contesting the court’s jurisdiction over his person on the ground that he had not been properly served with summons. JoJan contended that service of process upon Brent was properly effectuated by publication. After an evidentiary hearing, the trial court denied Brent’s special and limited appearance. Brent then filed a motion to reconsider the denial of his special and limited appearance which was also denied. Ultimately, judgment was entered in favor of plaintiff and against Brent. Brent filed a motion to expunge the void judgment, which was denied. Brent now appeals. The facts are as follows.

Robert Brent owned a food and liquor business located at 501-07 E. 47th Street, Chicago, Illinois. On November 15, 1981, Brent, in need of a loan for the business, was introduced to Howard Weitzman. Brent was told that Weitzman would possibly loan him the money he needed, and Weitzman took a loan application from Brent for that purpose. Weitzman then entered into a joint venture with the plaintiff, JoJan Corporation, to buy all the liens against Brent’s 47th Street property.

On April 18, 1984, JoJan filed a complaint to foreclose. In its complaint, JoJan sought to foreclose two mortgages and a mechanic’s lien and also for a money judgment for a breach of the contract on which the mechanic’s lien was predicated. On that same day, summonses were lodged with the sheriff. On April 19, 1984, an affidavit for service by publication on Brent was filed with the Cook County clerk’s office. The affidavit for service by publication named Brent as one of the defendants. The affidavit stated that Brent’s place of residence was unknown. The affidavit was purported to have been signed by the affiant, Bernard Allen Fried. However, the evidence at the trial hearing established that the affidavit was not signed by Bernard Fried, but rather it was signed by Fried’s wife, Joan Fried. The evidence also established that Joan Fried also notarized her husband’s forged signature that she had signed on the affidavit.

On February 13, 1985, the trial court entered a judgment of foreclosure against defendant Brent. On April 9, 1985, the trial court entered an order approving the sheriff’s report of sale and distribution. JoJan acquired the certificate of foreclosure and sale. JoJan was issued a sheriff’s deed conveying the involved property to JoJan.

On October 11, 1985, Brent filed a special and limited appearance in the proceedings to contest the trial court’s jurisdiction over his person on the grounds that he had not been properly served by summons or publication or with notice of the proceedings. On January 31, 1986, the trial court conducted an evidentiary hearing on the issue of Jo-Jan’s diligence in attempting to locate Brent’s residence. On February 11, 1986, the trial court denied Brent’s special and limited appearance, declined to vacate the judgment of foreclosure and sale, and dismissed Brent’s special and limited appearance, all nunc pro tunc January 31,1986.

On March 4, 1986, Brent filed a post-trial motion to reconsider the denial of his special and limited appearance. On March 12, 1986, Brent filed an addition to his post-trial motion to reconsider in which he prayed that all proceedings “be vacated, arrested and held for nought.” On April 4, 1986, the trial court denied Brent’s post-trial motion to reconsider and to vacate, arrest, and hold for naught the proceedings and judgment.

On April 28, 1986, Brent filed a motion to expunge void judgment. Also on that same day, JoJan filed a special appearance. On May 2, 1986, JoJan filed a motion to quash Brent’s service upon Jo-Jan notice of Brent’s motion to expunge void judgment.

On June 6, 1986, the trial court sustained JoJan’s motion to quash the service of Brent’s notice of motion to expunge void judgment served upon JoJan and denied Brent’s motion to expunge void judgment. On July 3, 1986, Brent filed the following documents: (1) a motion to vacate paragraph 2 of the trial court’s June 6, 1986, order, which denied the motion to expunge; (2) an amended motion to expunge void judgment; and (3) memorandum in support of said motion. On August 19, 1986, the trial court entered an order, vacating that portion of its June 6, 1986, order which denied Brent’s motion to expunge void judgment. The trial court held that proper service of process on JoJan of the motion to expunge void judgment was required before the trial court could grant a hearing on Brent’s motion to expunge void judgment.

JoJan filed a motion in this court to dismiss the instant appeal, which was ordered taken with the case. In JoJan’s motion to dismiss the appeal, JoJan contends that the February 13, 1985, judgment of foreclosure against Brent was not a final order from which an appeal could be taken, but assuming, arguendo, that it was a final order, Brent did not file a notice of appeal from the February 13, 1985, judgment of foreclosure within 30 days of its entry, as required by Supreme Court Rule 303 (107 Ill. 2d R. 303(a)). In response, Brent contends in this multiple-party case that, although the February 13, 1985, judgment of foreclosure may have been a final appealable order, but because the judgment was legally void, for several reasons, the judgment could be attacked by successive motions in the trial court at any time, even after the expiration of the time within which to appeal.

Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) provides:

“If multiple parties *** are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties *** only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. *** The time for filing the notice of appeal shall run from the entry of the required finding.” (Emphasis added.)

In the case at bar, the trial court in the judgment for foreclosure found “[tjhat there is no just reason for delaying the enforcement of or appeal from this judgment.” A decree of foreclosure and sale with a finding that there is no just reason for delaying enforcement or appeal is a final and appealable order. (See A.S.S. Wrecking Co. v. Guaranty Bank & Trust Co. (1971), 2 Ill. App. 3d 66, 77 n.3, 275 N.E.2d 724; 107 Ill. 2d R. 304, Committee Comments.) Therefore, the trial court’s February 13, 1985, judgment of foreclosure was final and appealable.

Brent contends however that the February 13, 1985, judgment of foreclosure and sale was void. A void judgment may be attacked and vacated at any time. (Federal Sign & Signal Corp. v. Czubak (1978), 57 Ill. App. 3d 176, 178, 372 N.E.2d 965; Cockrell v. Smith (1975), 27 Ill. App. 3d 986, 327 N.E.2d 110; Fox v. Department of Revenue (1966), 34 Ill. 2d 358, 361.) The attack may be either direct or collateral. An application to vacate a judgment made within 30 days of entry is a direct attack; if made after the expiration of the 30 days, it is a collateral attack. (Chiaro v. Lemberis (1960), 28 Ill. App. 2d 164, 169, 171 N.E.2d 81.) Thus, if the February 13, 1985, judgment was void, Brent could collaterally attack it. Federal Sign & Signal Corp. v. Czubak (1978), 57 Ill. App. 3d 176,179.

Brent contends that the judgment of foreclosure is void for several reasons. We find it necessary to consider only one, that the mechanic’s lien predicate for JoJan’s judgment of foreclosure was void because the complaint for foreclosure was filed more than two years after the date of completion of the contract upon which the mechanic’s lien was premised. We agree and reverse.

Section 9 of the Mechanics’ Liens Act (Ill. Rev. Stat. 1979, ch. 82, par. 9) provides: “If payment shall not be made to the contractor having a lien by virtue of this act of any amount due when the same becomes due, then contractor may bring suit to enforce his lien *** [s]uch suit shall be commenced *** within two years after the complsuch etion of the contract ***. (Emphasis added.)

Brent’s post-trial motion to reconsider and his motion to expunge void judgment alleged that the judgment of foreclosure was void because the complaint for foreclosure was filed April 18, 1984, more than two years after the contract’s completion date of March 5, 1982, upon which the mechanic’s lien was premised. In response to Brent’s motions, JoJan filed a special appearance which alleged that service of process upon JoJan by Brent was required before the trial court could grant a hearing on Brent’s motion to expunge void judgment. The trial court held that service of process on JoJan was required in order for the court to grant Brent a hearing on his motion to expunge void judgment and denied Brent’s vacatur motion.

In JoJan’s complaint for foreclosure filed April 18, 1984, Jo-Jan alleged that the last day of providing work or material to Brent’s property was April 15, 1984, but JoJan did not attach a copy of the claim for lien to its complaint, as the complaint alleged. However, in another complaint for “Foreclosure of a Mechanics Lien and other Relief” filed in the circuit court of Cook County, County Department, Chancery Division, Mechanic’s Lien Section, in which JoJan’s assignor, R.M.C. Inc., was plaintiff and Robert Brent (defendant herein), and Bob Brent’s Food and Liquor, et al. were defendants, docket No. 82 — CH—4678, the same claim for a mechanic’s lien, involved in JoJan’s instant complaint against Robert Brent and in the instant appeal, was attached to' the complaint in that former proceeding. This former complaint and attached claim for lien is included within the instant record on appeal. That claim for such lien states that “the last of *** material, fixtures, labor and services was so furnished, delivered and performed on the 5th day of March, 1982.” Robert Brent urges that inasmuch as (1) JoJan conveniently and deliberately omitted attaching to its complaint, in the instant appeal, a copy of the claim for lien so that it could be determined thereupon the last date of delivery of the material or the completion date, and (2) JoJan alleged, without any supporting documents, that the last date of delivery of the materials or the completion date was April 15, 1984, apd (3) JoJan’s assignor’s, R.M.C., Inc.’s, former complaint and claim for lien alleged in the former complaint, docket No. 82 — CH—4678, which involves the same claim involved herein, the court can take judicial notice of the former proceedings, pleadings, and claims in docket number 82 — CH—4678, when the bare allegations in the instant cause are to the contrary. (Wheeler v. Aetna Casualty & Surety Co. (1973), 11 Ill. App. 3d 841, 854, 298 N.E.2d 329.) Therefore this court takes judicial notice that according to the complaint and the attached claim for lien in docket number 82 — CH—4678, the last of materials, fixtures, labor and services furnished, delivered and performed on Brent’s property was March 5, 1982. JoJan had two years from that date to enforce its lien under section 9 of the Mechanic’s Lien Act. JoJan’s Complaint for Foreclosure in the instant cause was filed on April 18, 1984, more than two years after the March 5, 1982, completion date that the Mechanic’s Lien was predicated upon. Therefore the Judgment of Foreclosure is void if March 5, 1982, was in fact the last date in which material, etc. were furnished. Accordingly, we reverse said judgment and remand the cause for further proceedings on the issue of whether the foreclosures action was, in fact, void by reason of the inconsistent allegations of the last date of delivery of the materials, etc. in the two separate actions and for such other actions or proceedings that may be appropriate.

Reversed and remanded with directions.

MURRAY, P.J., and LORENZ, J., concur.


author: PRESIDING JUSTICE MURRAY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BENJAMIN BARNES, Defendant-Appellant.
    First District (5th Division)
    No. 1—86—2682
    Opinion filed April 7, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Emily Eisner, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund and Andrea K. Muchin, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

Defendant Benjamin Barnes appeals his conviction and sentence after a second jury trial for the crime of unlawful use of firearms by a felon (Ill. Rev. Stat. 1985, ch. 38, par. 24 — 1.1). The first trial ended in a mistrial being declared because the jury was unable to reach a verdict. After defendant was found guilty in the second trial, he was sentenced to five years’ imprisonment and fined - $10,000. On appeal, defendant charges that a number of evidentiary errors denied him a fair trial. He also contends that the fine imposed was “erroneous” because the court failed to consider his financial resources or his ability to pay and he was denied his constitutional rights to equal protection and due process because he was prosecuted under section 24 — 1.1 of the Criminal Code of 1961 (unlawful use of firearms by a felon), rather than section 24 — 3.1 (unlawful possession of firearms) (Ill. Rev. Stat. 1985, ch. 38, pars. 24 — 1.1, 24 — 3.1). For the following reasons we reverse and remand the cause for a new trial.

Pursuant to the case presented by the State, on October 4, 1984, three police officers observed a 1974 blue Cadillac near the intersection of Francisco and Adams in Chicago, Illinois. The Cadillac had license plates registered to a different car. A male driver later determined to be defendant and a female passenger later determined to be defendant’s girlfriend, Unita Brown, were in the car. After waiting a few minutes, the officers drove their car up behind and to the right of the Cadillac. One of the officers knocked on the window of the Cadillac on the passenger side and asked Brown to open it. Another officer noticed defendant had a gun tucked into the back of his pants on the left side, and he yelled to his fellow police officers that defendant had a gun. A second officer also saw the gun. All three officers then drew their own guns and ordered defendant and Brown out of the car. Instead of complying with the request, defendant put the Cadillac in gear and drove off at a high speed southbound on Sacramento. The police got into their car and pursued defendant west on Adams, south on Sacramento and east down an alley. The three officers subsequently saw defendant throw the gun out of his car window into the alley and continue driving to the next street, where he turned and stopped. The officers thereafter placed defendant and Brown under arrest, put them in the backseat of their car, and drove back to the alley where defendant had tossed the gun. They recovered the gun on the apron of a garage in the alley. One of the officers unloaded the gun, a .380 semiautomatic.

The police then took defendant and Brown to the police station. At the station, the police inventoried defendant’s possessions, which consisted of a beeper and $4,229 in cash. Although the officers later stated they did not see the gun in Brown’s possession, one of the reasons given for her arrest was “possible” unlawful use of weapons. None of the officers who arrested, questioned and booked Brown mentioned her name in their official police reports. Brown was released several hours after her arrest. Defendant subsequently stipulated that he had been convicted of burglary on November 7, 1979.

Defendant’s and Brown’s testimony indicated that Brown and defendant were on their way to a bank to get a cashier’s check with which defendant intended to purchase a home when they were approached by the police. Defendant testified that it was not until after he and Brown had been told to get out of the car that he learned Brown had a gun. He then drove away from the scene and, while passing through an alley, he stopped the car to enable Brown to open her door to throw the gun out because her window would not open. Brown stated that she threw the gun over the hood of the car into a nearby yard. She further stated that she had gotten the gun two weeks earlier from her brother’s friend because she had been attacked on two different occasions; the first time she was robbed and the second time a man exposed himself and made sexual advances to her before she was able to get away from him.

Defendant was subsequently found guilty of unlawful use of firearms by a felon, sentenced to five years’ imprisonment, and fined $10,000.

On appeal, defendant, with respect to his evidentiary errors argument, asserts that the exclusion of testimony concerning his good character and peacefulness — his specific community, political and church activities — admitted at his first trial without objection by the State and excluded in his second trial was reversible error, that the repeated admission of evidence that $4,229 in small bills was recovered from his person was reversible error, and that the State’s cross-examination of him about his fatherhood of children by different women, his employment history and his opinion on the credibility of adverse witnesses was reversible error. The State argues that much if not all of the claimed evidentiary errors were either justified by defendant’s trial tactics or waived by a failure to object or raise the issues in his post-trial motion. In response, defendant contends that in any event the cumulative effect of the evidentiary errors was tantamount to plain error. We agree with defendant.

We find it unnecessary to delve into the record to determine whether defendant waived his right to raise these evidentiary errors on appeal because, even if he had, we may nonetheless consider them pursuant to Supreme Court Rule 615(a) (107 Ill. 2d R. 615(a)), in the interest of justice, since we believe they resulted in extreme prejudice to defendant, thus denying him a fair trial. With respect to defendant’s first argument concerning the exclusion of character evidence, we observe that it is well settled that relevant character traits may be admissible in a criminal case if such traits are inconsistent with the commission of the crime charged. (People v. Wells (1967), 80 Ill. App. 2d 187, 224 N.E.2d 288.) This is accomplished not by introducing evidence of specific acts or personal opinion (Voga v. Nelson (1983), 115 Ill. App. 3d 679, 450 N.E.2d 1364), but by introducing evidence of a defendant’s general reputation for the specific character trait (People v. Lewis (1962), 25 Ill. 2d 442, 185 N.E.2d 254).

Here, the State argues that defendant failed to properly seek to introduce evidence of good reputation, but rather sought to introduce evidence of specific acts of goodwill — his regular attendance at “block club” meetings, coaching and sponsorship of the neighborhood basketball team, fundraising and leadership duties at awards banquets at his church, and his candidacy for State Representative of the 19th Legislative District — and that those specific acts were completely irrelevant, as determined by the trial court, to his guilt or innocence of the crime for which he was charged, i.e., the unlawful use of firearms by a felon. Moreover, the State argues, the trial court did permit defendant at his second trial to give a “brief biographical sketch” and, accordingly, defendant was in fact allowed to introduce evidence of his general reputation for good character as to his employment, marital status, ordinary church attendance and a “reference” to community work. The State therefore contends that the trial court properly denied the proffered evidence of defendant’s specific activity in his community.

We agree with the State that specific acts by defendant in support of his character were properly denied by the court, but only initially. We find that as the trial progressed, and as a result of the State’s introduction of specific bad character evidence against defendant, which we believe the trial court erroneously admitted because it was irrelevant to the crime charged, defendant should have been allowed to respond with evidence of his specific acts of goodwill, since it is well settled that a party may introduce evidence that would ordinarily be improper to introduce where the other party has opened up the issue and the party seeking to introduce the otherwise improper evidence will be prejudiced unless he is allowed to introduce it. (See Voga v. Nelson (1983), 115 Ill. App. 3d 679, 450 N.E.2d 1364.) More specifically, we note that the case against defendant depended solely on the weight the jury accorded the testimony of the witnesses as to whether it believed defendant, rather than Brown, possessed the gun. Defendant’s credibility was critical to a determination of this issue by the jury since there was no overwhelming evidence as to defendant’s guilt, i.e., the only evidence presented was the testimony of the three police officers that defendant possessed the gun as opposed to defendant’s and Brown’s testimony that Brown possessed the gun. As discussed more fully below, the State’s evidence concerning defendant’s possession of $4,229 in cash in small bills, his fatherhood of two children by different women, and his employment history was irrelevant to the crime for which he was charged and was presented by the State for the sole purpose of unfairly damaging defendant’s credibility by depicting him as a person involved in illegal enterprises, a womanizer, an untrustworthy, trouble-making employee, and a liar.

For example, based on the State’s sole position that evidence of the $4,229 in cash found in defendant’s possession when he was arrested should be admitted to inform the jury of police investigatory procedure, the trial court allowed all three officers to testify as to the “small” bills recovered, the denominations of which were delineated to the jury as 20 50-dollar bills, 104 20-dollar bills, 73 10-dollar bills, 3 5-dollar bills, and 4 1-dollar bills. The court also allowed the State to cross-examine Brown concerning the money, i.e.:

“[PROSECUTOR]: Now you said that you and Mr. Barnes were — where was it that you were going to?
[BROWN]: We were going to purchase a cashier’s check.
Q. What was that for, ma’am?
A. For a building that Ben was going to buy.
* * *
Q. Did he buy the building?
A. No.
* * *
Q. Where was he going to get the money from [sic] the cashier’s check?
A. He had the money on him.
Q. How much money was that again, $4,229?
A. That is correct.
Q. Did you see him with that money before he got in the car?
A. I know he had it on him.
Q. You know he had the $4,000 on him?
A. Right.
Q. Where did he get that #4,000?
A. He worked for the city.
Q. Does he get paid in 20’s and 10’s?
A. I’m not sure how he gets paid, sir.
Q. So you don’t know where he got the money from, is that correct?
* * *
Q. Did you ever see him walking around with #4,000 or that kind of money before?” (Emphasis added.)

The State further cross-examined defendant in great detail regarding the money, i.e.:

“[PROSECUTOR]: [The money that you were taking to the bank to purchase a cashier’s check] was the money, the $4,229.00?
[DEFENDANT]: Yes it was.
Q. That money was in what type of bills?
A. Different numbers on the bills, 50’s, 20’s, 10’s.
Q. Mostly 20’s and 10’s, correct?
[DEFENSE COUNSEL]: Objection.
[THE COURT]: Sustained.
[PROSECUTOR]: Tell us what kind of bills they were and what type of denominations.
A. 50’s and 20’s and 10’s.
Q. How many 20’s and 10’s?
A. I don’t know.
[DEFENSE COUNSEL]: Objection.
[THE COURT]: Sustained.
[PROSECUTOR]: How many bills did you have?
[DEFENSE COUNSEL]: Objection, Judge.
[THE COURT]: T don’t know’ will be the answer.
[PROSECUTOR]: Well, you said that you got some money from a bank loan?
A. Right.
Q. And you used this book here as being your bank book from which you make your payments from?
A. Not use it.
* * *
Q. When did you take the loan out?
A. I took it in April, I believe. It was in April.
Q. April of 1984?
A. Right.
Q. And you took the loan out from the bank?
A. Yes.
Q. For $3,500?
A. Yes.
Q. From the Chase Bank, is it?
A. Chase Manhattan.
Q. Did you take the loan out in SO’s and 20 ’s and 10’s?
A. No, I didn’t.
[DEFENSE COUNSEL]: Objection.
[THE COURT]: Sustained.
[PROSECUTOR]: What did you do with the money from April of ’84 until October of ’84 when the police came to your car?
A. I had it in different contracts with other buildings that I was going to buy from HUD and at each time I didn’t the bid [sic]—
Q. So you kept the money in your house, is that what you are telling the jury?
A. Yes.
Q. $U,000 in cash in your house?
A. Well, periodically they would give me a check, I would put the check in the bank and then when something else came up I would go and get the money.
Q. Where did you keep the money, in the bank?
A. In the bank?
Q. Yes, you are saying you deposited the $4,000 in the bank previously and then took it out again?
A. No, it wasn’t. Each time you purchase a house there are different figures that you have to come up with for the escrow you have to put up.
Q. What I am trying to find out is what you did with the money you say you got from the Chase Manhattan Bank, what you did with it from April until October, the money that you kept in 20’s and 50’s and 10’s, where was the money at during this time period?
A. I have a safe at home.
Q. A safe?
A. Yes.
Q. You took out $3,500, a loan, and got the money in 20’si
A. No.
[DEFENSE COUNSEL]: Objection.
[THE COURT]: Sustained.
[PROSECUTOR]: Where did you get the money from when you came downstairs?
A. What do you mean?
Q. Where had you been keeping it?
* * *
[THE COURT]: He said the safe.
[PROSECUTOR]: Is that the way you normally conduct businessl
[DEFENSE COUNSEL]: Objection.
[THE COURT]: Sustained. I know the defense went into this on direct examination but still it is a gun charge and the charge is not the possession of money.” (Emphasis added.)

In closing argument, the State again commented on the money found in defendant’s possession, i.e.:

“[PROSECUTOR]: He can’t come in here and tell you T never had the $4,000’ because the police got the $4,000 and they inventoried it and there is an inventory slip for it.” (Emphasis added.)

Evidence by the State having no tendency to prove the issue being tried and serving only to cause the jury to believe that a defendant is a bad person is improper impeachment. (People v. Starks (1983), 116 Ill. App. 3d 384, 451 N.E.2d 1298.) A new trial may be granted to a defendant where irrelevant matters have been injected into his case resulting in denial of a fair trial. (See Starks, 116 Ill. App. 3d 384, 451 N.E.2d 1298; People v. Thomas (1974), 18 Ill. App. 3d 306, 309 N.E.2d 744.) In the instant case, clearly the amount of cash recovered from defendant’s possession was irrelevant to proving he was guilty of the unlawful use of a firearm. Yet, from the very onset of trial (the State’s opening statement), throughout the trial (testimony by the three police officers, as well as testimony elicited from Brown and defendant) and at the end of trial (the State’s closing argument), the jury was bombarded with this irrelevant evidence, which took on the appearance of being a central issue to be considered by the jury in its assessment of defendant’s credibility and which could only have suggested to the jury that the cash was obtained through some illegal means. Although the court admonished the jury at one point that the possession of U.S. currency is not a violation of the law per se and the jury was informed that the money was subsequently returned to defendant and no charges concerning the money were filed, we cannot say that this information cured the effect of admission of this evidence, especially when considered with the other evidentiary errors assigned by defendant.

Similarly, the trial court erroneously allowed the State to discredit defendant by examination of his specific lifestyle. More particularly, the following colloquy occurred with respect to defendant’s fatherhood of children by two different women:

“[PROSECUTOR]: Now this lady that came in here and testified for you, that is your girlfriend, is that correct?
[DEFENDANT]: Yes.
Q. She has been your girlfriend for several years?
A. No, not several, just 3 years.
Q. 3 years?
A. Yes.
Q. But she is not the mother of your son or your daughter?
A. No, she is not.
Q. What is the name of the mother of your daughter?
A. Dolores***.
Q. What is the name of the mother of your son?
A. Cathy***.
Q. 2 different women again?
A. Yes.
Q. You are not married to any of these women?
A. No, I am not.” (Emphasis added.)

Although defendant testified that he was not married but had two children, it was improper for the State to examine him concerning the fact that his children had different mothers. Such examination was not only irrelevant to the crime for which he was charged, but it is well settled that a defendant may not be cross-examined concerning personal vices or bad experiences. See People v. Galloway (1956), 7 Ill. 2d 527, 131 N.E.2d 474.

The State continued in this vein concerning defendant’s employment history, i.e.:

“[PROSECUTOR]: You said you work for the city?
[DEFENDANT]: Yes, I do.
Q. What was that again that you did?
A. In the water department.
Q. The water department?
A. Yes.
Q. How long was it that you were working there?
A. I have been working there for 7 years.
Q. Well, isn’t it a fact that you were hired in ’78 for a period?
A. Right, that was because when — in ’79 when I was convicted of the burglary.
Q. So you were terminated in ’79 and you weren’t rehired again until ’81, is that correct?
A. That is correct.
Q. And you were again on leave of some sort in the last year and a half?
A. No, just a year.
Q. Over a year?
A. Yes, since June.
Q. So you haven’t worked for the city [for] over a year?
A. Yes.
Q. And in fact there is some sort of a hearing pending or some sort of commission on your case about whether or not you should even come back to work?
A. Because of the new administration is the reason because of a hearing, to my knowledge.
Q. Right now you aren’t scheduled to go back to work?
A. There is a hearing pending.
Q. There is a hearing?
A. Yes.” (Emphasis added.)

Although defendant testified on direct examination that he worked for the City of Chicago, his mere mention of his place of employment did not open the door for the State to question him on the collateral matters of his alleged employment-related misconduct and termination (see People v. Starks (1983), 116 Ill. App. 3d 384, 451 N.E.2d 1298) or to examine him with respect to a personal vice or bad experience (see People v. Galloway (1956), 7 Ill. 2d 527,131 N.E.2d 474).

We further observe, aside from the character evidence issue, that the State improperly sought to elicit defendant’s opinion on the veracity of its witnesses involving the central question to be decided. Specifically, the State questioned defendant step by step relative to the events leading up to his arrest, each time asking defendant if the statements were true, to which defendant answered “yes.” The State’s final question posed to defendant was, “So the only part that you disagreed about was who had the gun, right?” to which defendant answered “yes.” We observe that it is well established that a prosecutor is prohibited from asking a defendant his opinion concerning the veracity of other witnesses who have testified against him because such questions invade the province of the jury to determine for themselves which witnesses are telling the truth. (People v. Graves (1978), 61 Ill. App. 3d 732, 378 N.E.2d 293.) Such questions are also considered damaging because in effect they force a defendant to call the State’s witnesses liars by which the defendant is therefore himself demeaned and ridiculed before the jury. (People v. Hicks (1971), 133 Ill. App. 2d 424, 273 N.E.2d 450.) We believe that the State’s questioning of defendant was undisputably designed to reach this prohibited result.

Based on the foregoing, we conclude that the cumulative effect of the admission of the irrelevant bad-trait evidence and the State’s questioning of defendant with respect to the veracity of the adverse witnesses was not harmless beyond a reasonable doubt, since the witnesses’ testimony was so closely balanced and the credibility of the witnesses was the single crucial factor underlying the jury’s determination of defendant’s guilt or innocence. Clearly, admission of the irrelevant evidence was improper and defendant should have been allowed to respond to this evidence with otherwise improper evidence of specific acts of his good character, since the State opened the door to these issues, and the trial court, having prohibited him from doing so, deprived him of a fair trial.

In light of our disposition of these matters, we find it unnecessary to address any other issues raised in this appeal.

The judgment of the circuit court is therefore reversed and the cause remanded for a new trial.

Reversed and remanded.

LORENZ and PINCHAM, JJ., concur.


text:
    MICHAEL DAVID ASSOCIATES, INC., Plaintiff-Appellee, v. GTE NETWORK SYSTEMS, INC., Defendant-Appellant.
    First District (5th Division)
    No. 1—88—1043
    Opinion filed April 7, 1989.

      Ralph E. Brown and Robert S. Hirschhorn, both of Walsh, Case, Coale & Brown, of Chicago, for appellant.
    Herbert V. Adams III, of Chicago, for appellee.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

Defendant, GTE Network Systems, Inc. (GTE) (now GTE Communications Systems Corporation), appeals from a judgment of $9,000 entered by the trial court in favor of plaintiff, Michael David Associates, Inc. (David Associates), after a bench trial on an alleged breach of a contract action. David Associates is a licensed employment agency and GTE is a corporation engaged in the communications business. In May 1985, David Associates filed a breach of contract action which was later amended. The complaint alleged that on July 2, 1984, plaintiff’s employee, Paul Holzer, orally agreed with GTE’s employee, Steve Slonkowski, that David Associates would find and place a software design engineer with GTE for a fee of $9,000. It was further alleged that after the agency found and placed such a person, Michael Rinehart, GTE refused to pay the agreed-upon fee.

A bench trial followed in March 1988 at which Holzer was the only witness. Holzer testified that he was an employment counselor at David Associates specializing in the electronics industry. He stated that he periodically contacted GTE to solicit requirements for engineering personnel and that on July 2, 1984, he called and spoke with Steve Slonkowski at GTE. (At trial, GTE asserted that Slonkowski no longer worked for it.) Holzer was not certain of Slonkowski’s title but believed he was a senior interviewer or engineering interviewer. Holzer asked Slonkowski what open requirements he had for engineering personnel. Slonkowski responded by requesting an engineer technician who could perform specific functions and informed Holzer that the pay range would be $36,000 to $42,000. The two men agreed to a 25% fee arrangement.

During the conversation, Holzer wrote the information down. He stated that he filled a job order form, which was admitted into evidence. He then proceeded to search for possible applicants and was given the name of Mike Rinehart. Holzer called Rinehart at his job on July 5, and after Rinehart expressed interest in the GTE position, arrangements were made for Holzer to call him at home that evening. In the evening phone call, Holzer obtained more details regarding Rinehart’s skills and qualifications and gave him more specific details of GTE’s job description, after which Rinehart said that he was available for an interview with GTE.

Holzer then called Slonkowski the next day (July 6) and informed him about Rinehart. Slonkowski asked for Rinehart’s resume, which Holzer did not have since he had just recruited Rinehart. In its stead, Holzer sent a copy of his notes on Rinehart’s qualifications and background to Slonkowski on July 9, along with the resumes of two other people the agency had on file. At that time, Holzer filled out a “send out” slip on Rinehart and placed it in agency files. Between July 9 and 17, Holzer was in almost daily contact with Rinehart, who kept asking when an interview with GTE would be scheduled. Holzer stated that he called Slonkowski daily but his calls were refused. On July 20, Rinehart became angry with Holzer over the lack of an interview, whereupon Holzer suggested that maybe Rinehart could do better and gave him Slonkowski’s name and telephone number.

On August 3, Holzer was finally able to reach Slonkowski and was told that GTE was going to make Rinehart an offer. When Holzer said that the applicant was his (Holzer’s) candidate, Slonkowski denied receiving the notes on Rinehart but admitted receiving another person’s resume sent in the same package. Slonkowski also told Holzer that he had gotten Rinehart’s name from another agency but later recanted this statement and hung up. Holzer then called Rinehart at home that evening and was told that Rinehart had gone to a “tech fair” and contacted GTE there, after which Rinehart hung up.

In ruling in David Associates’ favor, the trial court found that there was a contract between the employment agency and GTE. The court noted that GTE presented no evidence or witnesses to rebut Holzer’s testimony and that Rinehart, although present in the courtroom during trial, did not testify, which fact caused the court to infer that his testimony would be adverse to his employer, GTE.

On appeal, GTE contends that (1) the evidence did not show that GTE breached an alleged contract where David Associates did not demonstrate that it was the motivating force in Rinehart’s hiring; (2) David Associates is entitled to no recovery because it did not comply with certain statutory requirements governing employment agencies; and (3) the trial court’s presumption regarding Rinehart’s failure to testify was error.

We affirm the judgment in favor of David Associates for the following reasons.

GTE argues that David Associates had not performed all of its obligations under the purported contract and, thus, there could have been no breach by GTE. It relies on the “motivating force” factor discussed in Polytechnical Consultants, Inc. v. All-Steel, Inc. (1985), 134 Ill. App. 3d 187, in determining whether an employment agency is entitled to a fee. The criteria are “(1) the agency must have discussed the applicant with the employer; (2) the employer has agreed to interview the applicant; (3) the applicant has agreed to interview with the employer; and (4) the agency or the employer must have set the arrangements in motion for the interview.” (134 Ill. App. 3d at 191, quoting Snedden v. General Radiator Division of Chromalloy American Corp. (1982), 111 Ill. App. 3d 128, 130.) GTE claims that criteria (2) and (4) were not fulfilled.

The Polytechnical case involved an action between two employment agencies to determine which agency was entitled to the fee for a hired applicant. That is not the situation in the present case; rather, the issue is whether there was a contract and a breach thereof. There was clearly an offer and acceptance here. “An employment agency’s business is to put a prospective employee in touch with a prospective employer, and the agency’s services end once the two principals are made aware of each other’s identities so that negotiations can be commenced between them.” (Cook Associates, Inc. v. Colonial Broach & Machine Co. (1973), 14 Ill. App. 3d 965, 970.) This is exactly what occurred in our case. The Cook description was utilized in discussing whether a contract had been made in Illinois so as to subject an out-of-State employer to long-arm jurisdiction. But, it is just as applicable to the present case as to whether a contract was formed.

Furthermore, telephone negotiations and interviews are acceptable in employment agency cases according to the Polytechnical and Cook decisions. In the present case, David Associates offered to find an applicant for GTE and a fee (25%) was agreed upon after telephone negotiations. A contract was formed and David Associates performed when it located Rinehart, interviewed him by telephone, filled out a job order form, and sent the relevant information regarding the applicant’s qualifications to GTE. GTE subsequently hired Rinehart after Holzer had given him Slonkowski’s name and telephone number. GTE cannot now claim that the agency did not perform when it was GTE’s conduct that prevented Holzer from scheduling an interview for the applicant.

GTE’s assertions that David Associates cannot recover because it did not comply with the provisions of “An Act to revise the law in relation to private employment agencies ***” (Illinois Private Employment Agency Act) (Ill. Rev. Stat. 1985, ch. 111, par. 901 et seq.) are without merit. Specifically, GTE claims that the Act was violated because David Associates did not conduct a face-to-face interview with Rinehart and did not mail out a referral slip by the close of the same business day as the telephone call. Section 5 of the Act states in part that “[n]o person shall be sent out for a job or to interview a prospective employer unless he has been personally interviewed by the agency or has corresponded with the agency with the purpose of securing employment.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 111, par. 905.) We agree with the trial court that the many telephone conversations between Holzer and Rinehart satisfied at least the correspondence requirement of section 5. And, as mentioned above, telephone interviews are permissible. See, e.g., Polytechnical Consultants, Inc. v. All-Steel, Inc. (1985), 134 Ill. App. 3d 187.

Section 5 also requires a referral slip to be sent out to the applicant and the employer on the same day an applicant is sent for a job interview. However, since GTE cut off communication with David Associates as soon as it received information concerning Rinehart, the agency was unable to schedule an interview and is now estopped from insisting on the referral requirement. In any event, GTE admits that it was sent a “referral slip” on July 9, but argues that it should have been sent one on July 6, when Slonkowski requested background information on Rinehart. The language of the Act is clear in that the referral slip is necessary when a prospective employer and job applicant have been scheduled for an interview. David Associates was forestalled from accomplishing this by GTE’s actions. As a result, the agency did not violate the Act and is entitled to recover its fee.

We must also dismiss GTE’s final contention that it was error for the trial court to presume that Rinehart’s testimony, if he had testified, would have been adverse to GTE. Such a presumption is permissible where a witness is accessible to a party and is not called. (Tonarelli v. Gibbons (1984), 121 Ill. App. 3d 1042.) GTE claims the rule does not apply in this case because David Associates did not present a prima facie case and because Rinehart’s testimony would have been merely cumulative.

However, a prima facie case was established by Holzer’s testimony and documents, which demonstrated an offer, acceptance, consideration, the terms of the agreement, performance, defendant’s breach, and damages. (See Vandevier v. Mulay Plastics, Inc. (1985), 135 Ill. App. 3d 787.) The burden then shifted to GTE to disprove Holzer’s testimony. GTE presented no evidence. Furthermore, we do not know what Rinehart’s testimony would have been. He certainly could have enlightened the court as to the assertion that Rinehart made contact with GTE at a “tech fair,” and also could have disputed or confirmed those portions of Holzer’s testimony regarding their telephone conversations, e.g., whether Holzer gave Rinehart the name and telephone number of Slonkowski. Therefore, the trial court properly considered the fact that Rinehart did not testify.

For the above reasons, we affirm the trial court’s entry of judgment for $9,000 in favor of plaintiff, David Associates.

Affirmed.

PINCHAM and COCCIA, JJ., concur.