text:
    DAVID WIENCEK, Indiv. and on Behalf of Those Similarly Situated, Plaintiff-Appellant, v. WOODFIELD FORD SALES, INC., Defendant-Appellee.
    First District (1st Division)
    No. 1—91—1185
    Opinion filed July 20, 1992.
    Rehearing denied August 26, 1992.

      Kralovek, Marquard, Doyle & Gibbons, Chartered, of Chicago (Nancy J. Arnold and Sara T. Wiggs, of counsel), for appellant.
    Hardt & Stern, P.C., of Chicago (Richard M. Karr and Elliot B. Pollock, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

On October 23, 1989, plaintiff, David Wiencek, individually and on behalf of those similarly situated, filed a class action complaint against defendant, Woodfield Ford Sales, Inc. The circuit court ultimately dismissed the complaint, ruling that the action was barred by a settlement and judgment reached in an earlier class action suit. Plaintiff appeals.

We affirm.

Count IV of plaintiffs complaint alleged that defendant continuously charged a “delivery and handling” fee (“D & H fee”) to persons or entities purchasing new and used motor vehicles. Plaintiff charged that the D & H fee of $149, preprinted on the vehicle buyer’s order form, was a fraudulent charge. Plaintiff sought a judgment which awarded plaintiff and each class member an amount sufficient to compensate for amounts paid to defendant for D & H fees.

In its subsequent motion to dismiss, defendant argued that plaintiff’s suit was barred because of the disposition of a prior multicount class action complaint filed in the circuit court, Barbara Nale v. Larry Faul Oldsmobile-GMC Truck, Inc., No. 90 — CH—00128. That action also sought relief for license, title, and transfer fees, as well as for D & H overcharges. Defendant, a member of the defendant class in cause No. 90 — CH—00128, maintained that the suit was settled and was the subject of a consent decree.

The judgment order in cause No. 90 — CH—00128 refers to and approves paragraph 11 of the settlement agreement, which provides that each member of the plaintiff class would release and discharge each defendant “for, upon, or by reason of any manner, cause or thing, whatsoever, arising under state or federal law which were or could have been asserted and which relate to or arise out of the facts alleged in the Litigation against such Defendant.” Plaintiff did not elect to opt out of the class action.

Additionally, the State of Illinois, through the Illinois Attorney General, also filed a complaint against defendant, People v. Woodfield Ford Sales, which was settled under a final judgment and consent decree. This decree provided specific remedies to consumers harmed by the overcharging by defendant of D & H fees.

As noted above, the circuit court dismissed the complaint, ruling that the action was barred by the settlement and judgment reached in cause No. 90 — CH—00128.

Plaintiff contends that the circuit court erred in finding that the complaint was barred by the final judgment reached in the prior class action suit. Plaintiff argues that res judicata does not bar the action because the parties were not the same and because the allegations concerning the D & H fee, as alleged in count IV, were dissimilar to the allegations contained in cause No. 90 — CH—00128. Specifically, plaintiff argues that the earlier suit concerned a $7 D & H fee overcharge, whereas his suit focuses on a $149 D & H fee overcharge.

Generally, the doctrine of res judicata provides that a final judgment on the merits rendered by a court of competent jurisdiction is conclusive as to the rights of the parties and their privies and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand, or cause of action. (Spiller v. Continental Tube Co. (1983), 95 Ill. 2d 423, 447 N.E.2d 834.) This rule is designed to protect litigants from the burden of retrying an identical cause of action or issue with the same party or privy and to enhance judicial economy by prohibiting repetitive litigation. (People v. Bone (1980), 82 Ill. 2d 282, 412 N.E.2d 444, cert. denied (1981), 454 U.S. 839, 70 L. Ed. 2d 120, 102 S. Ct. 145.) The doctrine of res judicata applies “not only to what actually was decided in the original action but also to matters which could have been decided in that suit.” La Salle National Bank v. County Board of School Trustees (1975), 61 Ill. 2d 524, 529, 337 N.E.2d 19, cert. denied (1976), 425 U.S. 936, 48 L. Ed. 2d 177, 96 S. Ct. 1668.

We initially note that plaintiff admitted, in the circuit court, that he was a member of the certified class in cause No. 90 — CH—00128. During oral arguments in this court, counsel again admitted that the named plaintiff was a member of the earlier class action. Given these admissions, it is difficult to give credence to plaintiff’s assertion that the parties involved in both actions were not identical. Realizing this, plaintiff insists that the identity requirement of res judicata is not met where the parties merely share “common elements,” and suggests that the difference in D & H fee charges ($7 as opposed to $149) precludes a finding of identical parties. We disagree. The substance of the allegation relates to consumers who were overcharged with regard to D & H fees during automotive sales. The amount of that overcharge is immaterial for purposes of res judicata. In cause No. 90— CH — 00128, the plaintiff class was comprised of those people charged a sum of money for vehicle license, title, registration, and transfer fees which exceeded the sum required under law. Moreover, the complaint in the earlier action makes specific reference to fraudulent D & H fee charges. The earlier plaintiff class consisted of those “who, since January 1, 1987, suffered losses as a result of their purchasing or leasing *** motor vehicles sold by [the defendant class].” Plaintiff was a member of that class by virtue of his May 20, 1989, motor vehicle purchase from defendant. Furthermore, Wiencek did not elect to be excluded from that action. Accordingly, once he was included in the class, he settled any claim which he could have had regarding the D & H fee.

With regard to the same action requirement, two different methods of evaluation are used in Illinois courts. One branch of cases considers whether the suits arise out of “a single group of operative facts.” (Radosta v. Chrysler Corp. (1982), 110 Ill. App. 3d 1066, 443 N.E.2d 670; Morris v. Union Oil Co. (1981), 96 Ill. App. 3d 148, 421 N.E.2d 278; Baird & Warner, Inc. v. Addison Industrial Park, Inc. (1979), 70 Ill. App. 3d 59, 387 N.E.2d 831.) Another branch of cases examines whether the evidence needed to sustain the second suit would have sustained the first, or whether there is identity of facts essential to the maintenance of both cases. Village of Northbrook v. County of Cook (1980), 88 Ill. App. 3d 745, 410 N.E.2d 925; Palya v. Palya (1980), 87 Ill. App. 3d 472, 409 N.E.2d 133.

In the present case, both cause No. 90 — CH—00128 and the Attorney General’s suit involved the same set of operative facts as does plaintiff’s case. In cause No. 90 — CH—00128, the defendants allegedly overcharged the plaintiff class for a D & H fee during the course of a motor vehicle sales transaction. Similarly, the Attorney General sought relief for defendants’ fraudulent overcharges for D & H fees during automotive sales. Plaintiff’s complaint contains substantively identical allegations as were made in the prior litiga-tions. As a result, we find the same facts present in all the actions.

Under the same evidence analysis, plaintiff’s action and the earlier action both sought redress for the fraudulent overcharging of consumers with regard to D & H fees. Evidence concerning defendant’s misrepresentations and concealment as well as plaintiff’s reliance, crucial to plaintiff’s suit, would have sustained the action brought by plaintiff Nale. Such actions require evidence that defendant charged customers a D & H fee which was used to defendant’s benefit and that this fee was set forth in the purchase agreement. Moreover, plaintiff must establish that defendant knowingly concealed from customers the true nature of the fee and that the customers relied to their detriment on such misrepresentations. Thus, the same evidence was needed to advance both actions. Based on the foregoing, the doctrine of res judicata barred plaintiff’s action. Accordingly, the circuit court correctly granted defendant’s motion to dismiss the complaint.

In light of our determination that res judicata barred plaintiff’s complaint, we need not address plaintiff’s alternative argument concerning collateral estoppel.

The judgment of the circuit court is affirmed.

Affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.

      The parties do not dispute that counts I through III and V of plaintiff’s complaint were similar to allegations contained in the previous class action suit and that the dismissal of these counts was appropriate.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    RAYMOND EARL LEE, a Minor, by Ray Lee, his Father and Next Friend, Plaintiff-Appellant, v. INGALLS MEMORIAL HOSPITAL et al., Defendants-Appellees (Steinberg, Burtker and Grossman, Ltd., Petitioner-Appellee).
    First District (1st Division)
    No. 1—91—1561
    Opinion filed July 20, 1992.

      Donald V. Young and William J. Sneckenberg & Associates, both of Chicago (William J. Sneckenberg and Jonathan D. Moses, of counsel), for appellant.
    Steinberg, Burtker & Grossman, Ltd., of Chicago (Richard J. Grossman, of counsel), for appellee Steinberg, Burtker & Grossman, Ltd.
   JUSTICE O’CONNOR

delivered the opinion of the court:

In 1981, petitioner, Steinberg, Burtker, and Grossman, Ltd., began its representation of plaintiff, Ray Lee, on behalf of his minor son, Raymond Earl Lee, in a medical malpractice action. Seven years later, Lee terminated petitioner and secured new counsel. In 1990, the cause went to trial, and Lee received a jury verdict in the amount of $3.3 million. Petitioner subsequently sought attorney fees for work performed for Lee’s benefit during the seven-year period in which petitioner represented Lee. After a hearing on the matter, the circuit court awarded petitioner $100,000. Lee appeals.

We affirm.

Raymond suffered paralysis of his right arm as a result of injuries sustained during his birth on February 27, 1977, at Ingalls Memorial Hospital. In 1979, Lee consulted with, and ultimately entered into, a written fee agreement with attorney Kenneth Thomas.

Thomas referred Lee to petitioner in August 1981. From that time until September 4, 1988, petitioner performed legal services for Lee, such as filing the complaint, preparing interrogatories, arranging for expert witnesses and taking depositions. In the summer of 1988, a structured settlement offer was extended to Lee from the insurance carrier of one of defendants. At that time, Raymond, then aged 11, began to experience seizures. Lee sought to have a medical evaluation performed to determine if the seizures were related to the birth injury and, if so, to include the condition as part of the medical malpractice action. Apparently there was some disagreement between petitioner and Lee as to the litigation’s progress with regard to Raymond’s seizures. Lee later rejected the settlement offer, due, in large part, to the complications in Raymond’s condition.

On September 4, 1988, Lee wrote to petitioner, indicating that he no longer desired its representation in the case. Lee asked that all the legal files be “turned over” to him as soon as possible. In a letter dated October 21, 1988, petitioner informed Lee that the firm was unable to turn over the files. Lee was instructed to have his new attorney contact petitioner so that arrangements could be made to reproduce the documents, at Lee’s expense.

Lee subsequently sought legal assistance from attorney Donald Young. Young completed discovery, and the case proceeded to trial in September 1990. As noted above, a jury awarded Raymond $3.3 million. Attorney fees in the amount of $367,520 were approved by the probate court in January 1991, based upon the $1.1 million in insurance proceeds actually recovered.

Petitioner based its claim for fees on 193.5 hours of service performed from August 1981 to November 1988. Petitioner claimed its customary hourly charge during this period was between $150 and $185 an hour.

The circuit court specifically found that no contract existed between petitioner and Lee for a contingency fee. The court also found that Lee received a direct benefit from the work performed by petitioner.

Lee asserts that petitioner forfeited any fees to which it may be entitled by failing to enter into a written fee agreement as is required by the Code of Professional Responsibility. 107 Ill. 2d R. 2 — 106(cX2).

Initially we note that the Code of Professional Responsibility was repealed as of August 1, 1990. Illinois now utilizes the Rules of Professional Conduct for the regulation of the practice of law. The former Ride 2 — 106(cX2) can be found, in substantively similar form, in Rule 1.5(c). (134 Ill. 2d R. 1.5.) In any event, both rules direct that contingent fee agreements be in writing. However, in the present case, no contingency fee agreement was entered into between petitioner and Lee. With regard to attorney fees not earned on contingency, the rule requires that those fees “be reasonable.” (134 Ill. 2d R. 1.5.) A reasonable fee, according to the rule, is determined upon consideration of, inter alia, the time and labor involved, the difficulty of the legal issue involved, and the fee customarily charged in the locality for similar legal services. (134 Ill. 2d R. 1.5.) Our review of the record reveals that the circuit court considered these factors and that no violation of Rule 1.5 occurred under the facts presented.

Lee, however, directs our attention to Leoris v. Dicks (1986), 150 Ill. App. 3d 350, 501 N.E.2d 901, for support of his argument. There, the discharged lawyer and the substituted lawyer entered into a contract to split the client’s fee, contrary to Rule 2 — 107 of the Code of Professional Responsibility. (107 Ill. 2d R. 2 — 107.) The appellate court found that such fee splitting arrangements were against public policy and that, as a result, attorney fees based on a theory of quantum meruit were foreclosed. (Leoris, 150 Ill. App. 3d at 354.) Although instructive, Lee’s reliance on Leoris is misplaced because, here, no agreement violating public policy was entered into between petitioner and attorney Young. Based on the foregoing, the Code of Professional Responsibility does not bar recovery of attorney fees in the manner Lee suggests.

Lee next asserts that petitioner is not entitled to fees because petitioner’s services did not contribute measurably to Lee’s verdict.

In Illinois, a client has the right to discharge his attorney at any time, with or without cause. (Rhoades v. Norfolk & Western Ry. Co. (1979), 78 Ill. 2d 217, 399 N.E.2d 969.) A discharged attorney is entitled only to fees calculated on a quantum meruit basis. (Rhoades, 78 Ill. 2d at 227-29.) The term quantum meruit literally means “as much as he deserves.” (Van C. Argiris & Co. v. FMC Corp. (1986), 144 Ill. App. 3d 750, 753, 494 N.E.2d 723.) The time and labor required in a given case is but one factor to be considered in assessing a reasonable attorney fee under the doctrine of quantum meruit. (Johns v. Klecan (1990), 198 Ill. App. 3d 1013, 1019, 556 N.E.2d 689.) Other factors to be considered include the attorney’s skill and standing, the nature of the cause and the novelty and difficulty of the subject matter, the degree of responsibility in managing the cause, the usual and customary charge in the community, and the benefits resulting to the client. (Neville v. Davinroy (1976), 41 Ill. App. 3d 706, 711, 355 N.E.2d 86.) The circuit court’s decision regarding whether to award attorney fees is a matter within its discretion and, upon review, will not be disturbed absent abuse of that discretion. Lurie v. Canadian Javelin Ltd. (1982), 93 Ill. 2d 231, 443 N.E.2d 592.

Here, the testimony adduced at the hearing revealed that petitioner performed a great deal of legal services for Lee. For example, petitioner investigated the claim and found the expert witness, Dr. Lorenzini, who testified that the obstetrician failed to follow proper medical standards during Raymond’s birth. Petitioners deposed several witnesses and, as noted above, pursued a settlement offer. Lee, himself, testified that these services were performed and that he received a benefit from them. Accordingly, the circuit court’s decision to award attorney fees does not appear to be erroneous.

Lee argues that the circuit court should have awarded only $34,153 instead of the $100,000 ultimately awarded to petitioners. Lee bases his argument on the fact that the hours petitioner claims to have spent on the case, when multiplied by the hourly rate, do not amount to $100,000.

As noted above, the time and labor required in a particular case is not the sole factor to be considered in the quantum meruit equation. A reviewing court may not disturb an award of attorney fees merely because it may have made a different award. (In re Estate of Healy (1985), 137 Ill. App. 3d 406, 484 N.E.2d 890.) The amount awarded is fact dependent and is to be determined according to the weight afforded the evidence by the circuit court. In re Estate of Healy, 137 Ill. App. 3d at 411.

Here, no basis exists upon which to disturb the circuit court’s award. Our review of the record reveals that the court based the $100,000 award not only on the time sheets provided but on the testimony presented at the hearing. That testimony revealed that petitioner was involved in Lee’s case for seven years, during which time the theory of the case was developed and the key witness, later utilized by subsequent counsel, was secured. Accordingly, the circuit court did not abuse its discretion in determining the amount of the award.

The judgment of the circuit court is affirmed.

Affirmed.

CAMPBELL and MANNING, JJ., concur.


author: JUSTICE SCARIANO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARRYL HOUSE, Defendant-Appellant.
    First District (2nd Division)
    No. 1—88—3506
    Opinion filed July 21, 1992.

      Rita A. Fry, Public Defender, of Chicago (Timothy J. Leeming, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and David Stabrawa, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

On November 1, 1986, Richard Sax (Sax) was found dead in the front seat of his car which was parked in an empty parking lot near Halsted and Cherry Streets in Chicago. On December 23, 1986, defendant, Darryl House, was arrested and charged with the murder and armed robbery of Sax. Following a jury trial, defendant was found guilty of both charges and was sentenced to an extended term of 80 years in the custody of the Illinois Department of Corrections.

According to her testimony at trial, T.B., a minor and an eyewitness to, and participant in, the crime, stated that on October 31, 1986, she, her friend, Erika Simpson, and defendant were “going to go *** flag down a car [and] rob somebody.” Armed with a gun, defendant flagged down Sax’s car at the intersection of Halsted and Division Streets. After defendant had talked to Sax for a few minutes, defendant signaled to T.B. and Simpson to get into the car. Defendant got into the front passenger’s seat and T.B. and Simpson got into the back seat. Sax then drove the car to the Shrimp House Restaurant on Division Street and gave Simpson money to buy some shrimp. According to T.B.’s testimony, Sax agreed to buy marijuana from defendant and paid him the money in advance. After leaving the restaurant, defendant directed Sax to a nearby parking lot, a more secluded location, in order to complete the transaction. When defendant failed to produce the marijuana and refused to return Sax his money, the two began to argue. Defendant, Simpson, and T.B. got out of the car, but then defendant entered the back seat behind Sax and shot him in the head. T.B. further testified that she and Simpson ran once they heard the gunshots. The next day she saw defendant, who told her “if I tell anybody, he was going to kill me.”

During cross-examination T.B. admitted that when she was originally questioned by the police on the evening of December 22, and the early morning hours of December 23, 1986, she had given them a different version of the incident: that she did not know defendant was going to rob Sax and that she did not know defendant had a gun until the shooting occurred. It was also developed at trial that the statement which T.B. had originally given to the police regarding Sax’s location when he was shot was inconsistent with the findings of the police investigation, in that T.B. initially had stated that Sax was shot while standing outside of the car and was then placed in the driver’s seat; but the police investigation indicated that it was more likely that Sax was shot while sitting in the driver’s seat.

Based on T.B.’s December 22-23, 1986, statement, as well as a statement given by Simpson, the police drove to defendant’s home on December 23, 1986, at approximately 5:15 p.m. Officers Villardita and Kaminski approached the front door, while Officers Richter and So-bolweski were positioned in the back of the house. Villardita knocked on the door and defendant’s 13-year-old brother answered. Villardita testified at trial that when defendant came to the door he and his partner identified themselves as police officers and “told [defendant] we wanted him to come to Area 6 Violent Crimes with us, we were investigating a crime.” Kaminski, Villardita’s partner, testified that when defendant came to the door “[Villardita] stated that we wanted to talk to him.” Once at the station, defendant was placed in an interview room, handcuffed to the wall and left unattended for approximately 15 minutes. In that room there were plastic chairs with metal legs. When Villardita came into the room to speak with him, he told defendant “we were investigating a murder that had happened Halloween night, where it happened, on Goose Island, and *** I advised him of his rights.” Defendant acknowledged that he understood those rights. Thereafter, defendant had several conversations with the police in which he made several incriminating statements. At approximately 7 p.m. Assistant State’s Attorney Timothy Joyce arrived and spoke with defendant for approximately 15 minutes. During this conversation defendant agreed to make a statement but declined to make it in the presence of a court reporter, preferring instead that Joyce write it out for him. Joyce accordingly drafted a statement which defendant read aloud and signed; the statement was witnessed by Joyce, Villardita and Detective Johnson.

In the statement, defendant acknowledged that he had been read and understood his Miranda rights. He also admitted that he and Erica Simpson and T.B. had decided to “rip someone off” and that he had flagged down the car driven by Sax. All three of them got into the car, and when Sax learned that defendant did not have any marijuana at the time he had offered to sell him some, he gave defendant money to buy it for him. After they left the Shrimp House Restaurant on Division Street, defendant directed Sax to an empty parking lot near the corner of Halsted and Cherry Streets, in order to complete the transaction. When Sax said that he did not want to buy the marijuana but wanted his money back, defendant became angry and shot him with a .38 caliber revolver. After defendant shot Sax, he took from him his silver money clip, which contained approximately $30.

In his interview with Joyce, defendant did not mention to him that he had been physically abused or coerced into making his statement and Joyce did not notice any marks or bruises on any part of defendant’s body or tears in his clothing. Villardita testified that he neither used force against nor coerced defendant into making his statement and that he did not witness any other officers committing these acts. Officer Kaminski testified that he never struck, punched, stomped, kicked or threw a chair on defendant, and that in his presence he never saw anyone threaten or strike defendant.

On December 24, 1986, after defendant had been placed in the lock-up area of Branch 66, he met with James Mullinex of the Cook County public defender’s office. Mullinex testified that an investigator from that office took photographs of defendant. Mullinex recalled that defendant had “some markings on his wrists *** [and] on his back as well [, although the mark on the back] appears to be scabbed over. *** [He was also wearing] a black shirt and there was a hole in the black shirt, a round hole maybe about an inch in diameter.”

Also at trial Ronald Rose, an emergency medical technician employed at the Cermak Health Center, a part of the Cook County jail, testified on behalf of the State. Rose stated that as part of his job he screens inmates who are brought into the jail for medical problems, and on December 24, 1986, he examined defendant. At that time defendant did not complain of any injuries, and when asked about his health, defendant stated that it was good. Rose noted no bruises or other signs of trauma on defendant.

At trial defendant testified on his own behalf and stated that, when the police appeared at his door, “they said they caught the person who stabbed [me a few months earlier]. Would I come down and identify him in the line-up.” When they arrived at the police station, defendant was placed in a small room for approximately 30 minutes. Later four police officers entered the room and began asking him questions regarding a murder in which [T.B.] had implicated him. In support of his claim that his confession was coerced, defendant testified that when he denied knowing anything about the murder, the police began to slap, kick, stomp and hit him with their hands and a plastic chair with metal legs. Defendant also stated that he was denied an opportunity to make a phone call, and that he told Assistant State’s Attorney Joyce that he had been beaten. When presented with the photographs taken by the public defender’s office, defendant stated that they accurately depicted his physical status on December 24, 1986. Defendant circled the locations on the pictures which, he alleged, illustrated his swollen face, swollen lip, and scarred wrist. The photographs were introduced into evidence and were before the jury during their deliberations.

The jury convicted defendant of both murder and armed robbery, and on November 30, 1988, after a hearing in aggravation and mitigation, the court sentenced him to 80 years in the custody of the Illinois Department of Corrections. That same day, defendant filed a motion for a new trial which was denied, and he later filed a timely notice of appeal.

I

Prior to trial defendant filed a motion to quash his arrest and to suppress his inculpatory statement, alleging that the police used deception to lure him to the station, that once there, he was threatened and beaten, and that absent such abuse he would not have signed the statement. The motion was denied.

A

In maintaining that the trial court was in error for not quashing his arrest, defendant cites the well-established principle that police may not use subterfuge to deceive suspects into relinquishing their constitutional protections, and suggests that the facts of his case support the presence of such deception. (See People v. Daugherty (1987), 161 Ill. App. 3d 394.) He relies on his testimony, as well as the testimony of his brother, to show that when the police arrived at his house, they told him that they wanted him to come to the station to identify the person who had stabbed him a few months earlier, when instead, they wanted him at the station in order to question him about, and arrest him for, Sax’s murder.

Daugherty, however, is clearly distinguishable from the case at bar. There, Officer David Barts went to the defendant’s home under the guise of investigating an earlier reported theft in order to determine if drugs or marijuana were in the home. Upon arriving at the home, Barts spoke with the defendant’s wife, informed her that he was a juvenile officer, and that he wanted to ask her some questions about a theft of money which she had reported. Although she refused to allow Barts to come into the house, he did so anyway, and ordered her to show him where the money was taken from and where she kept other money around the house. Upon entering the kitchen Barts saw marijuana on the counter and seized it. He then called another officer and they searched the house for more drugs. Barts admitted that from reading other officers’ reports about the theft he received information indicating the presence of marijuana in the residence.

The officers in the instant case went to defendant’s house with the intention of asking him some questions about Sax’s murder. Although they admitted to having knowledge about defendant’s filing of a stabbing report a few months earlier, they claimed that they did not tell defendant that their purpose was to have him identify the perpetrator when they removed him from his home on December 23,1986.

A trial court’s ruling on a motion to quash an arrest and suppress evidence will not be overturned unless it is manifestly erroneous. (People v. Collins (1989), 182 Ill. App. 3d 362, 364.) Based on the facts presented in this case, we cannot conclude that the trial judge’s finding was clearly erroneous. The court was presented with the testimony of Officers Villardita and Kaminski, which it found to be more convincing than the contrary testimony of defendant and his brother, and our supreme court has repeatedly held that it is within the province of the trier of fact to determine the credibility of the witnesses before it and to resolve any conflicts in the evidence. (People v. Collins (1985), 106 Ill. 2d 237, 262, cert. denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267.) We therefore hold that the trial court was not in error in denying defendant’s motion to quash his arrest.

B

Defendant further asserts that the trial court was in error for not suppressing the admission of his inculpatory statement, because he was beaten and threatened into signing it. Citing People v. Wilson (1987), 116 Ill. 2d 29, 40, defendant notes that “when it is evident that a defendant has been injured while in police custody, the State must show, by clear and convincing evidence, that the injuries were not inflicted as a means of producing the confession.” In Wilson the defendant testified that he was punched, kicked, smothered with a plastic bag, electrically shocked, and forced against a hot radiator, and there was evidence to corroborate his claims. Witnesses had observed 15 separate injuries on the defendant’s head, torso and right leg; two different people who were at the police station testified that they had heard the defendant being physically and verbally abused and calling for help; and defense counsel presented extensive medical testimony and photographs illustrating the defendant’s injuries.

Defendant asserts that the photographs illustrating the hole in the back of his shirt and the corresponding scabbed-over mark, his swollen lip, his swollen wrist, and his bruised hip all are factors which make it evident that he was injured while in police custody. We disagree. Unlike in Wilson, there are not the facts in this case to corroborate defendant’s allegations. The police testified that they did not mistreat defendant in any way; he signed his confession in which he stated that he was treated well by the police; he did not tell Assistant State’s Attorney Joyce or EMT Rose that he had been mistreated; nor was Public Defender Mullinex able to identify any signs of physical abuse in the pictures taken of defendant’s face. When defendant was cross-examined regarding the photograph of his hip, he testified that it “look[ed] like no marks” were present. Moreover, during its deliberations, the jury had before it the photographs which showed where defendant had circled those portions of the photographs that allegedly indicated the injuries to his face, wrists and side, and it was unable to find that he had been injured while in police custody and therefore coerced into signing his statement. With respect to the hole in defendant’s shirt and the corresponding injury to his back, no one could testify that defendant had been wearing the same shirt both at the time he was interrogated on December 23, 1986, and at the time his picture was taken on December 24, 1986. In fact, after defendant was taken to Cook County jail, where he was instructed to “remove the upper torso of clothing” and was examined by EMT Rose, Rose found no evidence of bruising.

For these reasons, we find it was not evident, as in Wilson, that defendant was injured while in police custody. Therefore, there was no need for the State to show by clear and convincing proof that defendant’s injuries “were not inflicted as a means of producing the confession.”

“Whether a statement is voluntarily given depends upon the totality of the circumstances[,] *** and the finding of the trial court *** will not be disturbed unless it is contrary to the manifest weight of the evidence.” (People v. Prim (1972), 53 Ill. 2d 62, 70, overruled on other grounds by People v. King (1977), 66 Ill. 2d 551.) As stated in People v. McCleary (1990), 208 Ill. App. 3d 466, 476:

“The test of whether a statement is admissible at trial is whether it has been made freely, voluntarily and without compulsion or inducement or whether the defendant’s will was overcome at the time he confessed. [Citation.] Moreover, wrongful or coercive police conduct is a necessary precursor to finding that a confession is involuntary. [Citation.] The trial court need only be convinced by a preponderance that the confession was voluntary. [Citation.]”

In reviewing the totality of the circumstances, we hold defendant’s confession was made voluntarily. First, defendant was not detained for any undue length of time. He was arrested at approximately 5:15 p.m. on December 23, 1986, and gave his inculpatory statement at approximately 7:40 p.m.; he signed the written statement at 9:15 p.m. Second, defendant’s interrogation was not relentless. He was interrogated only a few times, each session lasting approximately 15 minutes. Third, defendant was not denied the necessities of life — he was not treated inhumanely and was provided soda pop and cigarettes. Fourth, defendant was not deprived of counsel since he did not request an attorney even after he was apprised of his Miranda rights. Finally, defendant’s age, education, emotional characteristics and experience in criminal matters all point to the fact that defendant’s statement was not the product of coercion. Although defendant was 17 years old at the time of his arrest and did not have a criminal record as an adult, he had several arrests as a juvenile and had been adjudicated delinquent for theft and intimidation.

For the above-stated reasons, we find that the trial court was not in error in denying defendant’s motion to suppress his inculpatory statement.

II

Defendant further asserts that there was “[n]o evidence *** introduced at trial *** that any goods or money was [sic] taken from Mr. Sax by force or threat of force,” and therefore, he was not proven guilty of armed robbery beyond a reasonable doubt. (Ill. Rev. Stat. 1985, ch. 38, par. 18 — 1.) Defendant’s entire argument is premised on the fact that Sax voluntarily gave Simpson money to buy shrimp and voluntarily gave him money for marijuana but that there is no indication in the record that “money, jewelry, or the money clip was demanded from Mr. Sax while he was alive.” Defendant cites authority for the proposition that in order to sustain a conviction for armed robbery, the force or threat of force must precede or be contemporaneous with the taking of the property (People v. Patterson (1972), 52 Ill. 2d 421), and argues that “[i]n the instant case it was established that Mr. Sax voluntarily delivered money to Erika Simpson, and to Darryl House.” (Emphasis in original.)

Defendant overlooks, however, that the taking of Sax’s money clip, which he admitted in his statement to Assistant State’s Attorney Joyce, is clearly the act upon which the armed robbery charge is based. It was the taking of the money clip after defendant had shot Sax which constituted armed robbery.

“It has been held that the force necessary to establish armed robbery is that which temporarily suspends the victim’s power to exercise his will and cause him to part with his property. [Citation.] The force resulting in the armed robbery must either precede or be contemporaneous with the taking of the property. [Citation.] The evidence must show that the force employed ‘was the means used by the robber’ to take the property. [Citation.]
*** [T]he fact that the victim had been reduced to a state of physical nonresistance before the money was taken ‘does not relieve the crime of the quality of robbery.’ [Citation.]” (People v. Washington (1984), 127 Ill. App. 3d 365, 376-77.)

Thus it is irrelevant in determining whether defendant robbed Sax that Sax voluntarily gave Simpson and defendant money prior to defendant’s shooting Sax. Once it was shown that prior to taking the money clip defendant “suspended [Sax’s] power to exercise his will,” and “reduced [Sax] to a state of physical nonresistance before the money [clip] was taken,” there was sufficient evidence to find defendant guilty of armed robbery. Therefore, on the facts of this case we hold that “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) People v. Collins (1985), 106 Ill. 2d 237, 261.

Ill

Defendant also maintains that during closing argument, the prosecution repeatedly misstated the evidence by (1) identifying co-defendant Simpson as defendant’s girlfriend, and (2) arguing that T.B. saw defendant take a money clip from Sax after having shot him, noting that it is improper for the prosecutor to make arguments or assumptions which are not supported by the evidence. (People v. Tipton (1990), 207 Ill. App. 3d 688, 699, appeal denied (1991), 139 Ill. 2d 603.) He further charges that the prosecution improperly accused defense counsel of engaging in “desperate ploys [to] distract attention” from the true issue, by falsely accusing defendant of “trying to stare down” the assistant State’s Attorney “for two minutes,” and by characterizing defendant as a “hard ass,” “good criminal,” and “trying to avoid detection.”

It is well settled that great latitude is afforded a prosecutor during closing arguments, the propriety of his remarks being left generally to the discretion of the trial court. (People v. Morrison (1985), 137 Ill. App. 3d 171, 184.) When there are allegations of prosecutorial misconduct, however, the arguments of both the prosecutor and defense counsel must be reviewed in their entirety and the comments must be placed in their proper context. (Tipton, 207 Ill. App. 3d at 701.) Generally “[i]mproper prosecutorial arguments '*** do not constitute reversible error unless they result in substantial prejudice to the accused’ ” (People v. Shum (1987), 117 Ill. 2d 317, 347, cert. denied (1988), 484 U.S. 1079, 98 L. Ed. 2d 1022, 108 S. Ct. 1060, quoting People v. Baptist (1979), 76 Ill. 2d 19, 29), or unless they are “a material factor in the conviction.” (Tipton, 207 Ill. App. 3d at 700.) Moreover, where the trial court sustains defense counsel’s objections to those comments, the court’s actions obviate any prejudice (People v. Washington (1984), 127 Ill. App. 3d 365, 381), and “improper remarks not objected to at trial or specifically raised in a post-trial motion are deemed waived on appeal.” Morrison, 137 Ill. App. 3d at 184.

Applying these principles to the facts of this case, it is clear from the record that defendant objected neither to the prosecutor’s references to Simpson as defendant’s girlfriend nor to the prosecution’s statement that T.B. had witnessed defendant’s taking the money clip from Sax. Therefore, the arguments made with respect to both of these comments are waived on appeal. As for the remaining remarks, objections having been made at trial and defendant having raised the issue in his motion for new trial, their propriety is properly before this court.

With respect to the “trying to stare down” the assistant State’s Attorney “for two minutes,” “hard ass,” and “trying to avoid detection” remarks, the court sustained defense counsel’s objections; thus, any potential prejudice to defendant was blunted. With respect to the “desperate ploy” and “good criminal” characterizations, although the court did not sustain the objections made, we find that neither of these comments, placed in their proper context, constitutes reversible error since they were not material factors in defendant’s conviction. The State made the “desperate ploy” remark in response to defense counsel’s earlier, unfounded insinuations that the State had “cut some deal with [T.B.]” in exchange for her testifying against defendant. The State made the “good criminal” remark when commenting on the evidence, suggesting that the jury should not reward defendant for being a “good criminal” because he did not leave behind his wallet, fingerprints, or any other physical evidence at the scene of the crime. We accordingly hold defendant’s argument on this point to be without merit.

IV

Finally, defendant argues that the trial judge abused his discretion by sentencing him to an extended term of 80 years. He contends that the evidence in this case fails to establish excessive brutal or heinous behavior indicative of wanton cruelty. Defendant cites People v. Andrews (1989), 132 Ill. 2d 451, as a case in which the supreme court reversed the trial court, holding that the conduct there was not so exceptionally brutal or heinous as to justify the imposition of a more severe sentence. He raised this issue for the first time in his supplemental brief, which he was given leave of court to file.

Even if defendant had shown diligence by raising this issue in his opening brief, it would have been to no avail. At sentencing, it was determined that defendant had a prior juvenile record for assault, disorderly conduct, theft, residential burglary, and intimidation. He had received one year’s supervision for the residential burglary charge. Also at sentencing, defendant spoke on his own behalf, saying only, “I feel as though I didn’t have a fair trial.” Based on all the evidence, the trial court in the case sub judice held that “it was a very brutal, heinous [crime,] indicative of wanton cruelty,” basing its determination on evidence that defendant did not have “one sense of remorse,” that this was “the most overwhelming case [it had] ever seen,” that “all [Sax] had on him which wasn’t all this much disputed, that you wanted to take the last thing was his life and you — which you did do. It is really sad, and all you can tell me, you didn’t have a fair trial.”

It is within the trial court’s discretion to determine what constitutes “exceptionally brutal and heinous behavior indicative of wanton cruelty” for the purpose of imposing an extended sentence. (People v. Edens (1988), 174 Ill. App. 3d 1033, 1045, appeal denied (1989), 124 Ill. 2d 558.) We therefore hold that the trial court did not abuse that discretion and find that the case which defendant cites is inapposite.

Affirmed.

HARTMAN, P.J., and McCORMICK, J., concur.

      Simpson and defendant were tried together, but Simpson waived her right to a jury trial.


author: PRESIDING JUSTICE HARTMAN

text:
    DAVID URE et al., Plaintiffs-Appellees, v. WANGLER CONSTRUCTION COMPANY, INC., Defendant-Appellant (Reno J. Masini Associates, Defendant).
    First District (2nd Division)
    No. 1—91—2053
    Opinion filed July 21, 1992.
    Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers and Robert J. Franco, of counsel), for appellant.

      Pitler & Mandell, of Chicago (Philip L. Mandell and Sigi M. Offenbach, of counsel), for appellees.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

A contractor, Wangler Construction Company, Inc. (Wangler), seeks reversal of a judgment on the pleadings, which confirmed an arbitration award. The issues presented on appeal are whether (1) the arbitrator exceeded his authority by not following certain express contract terms; (2) Wangler waived this argument; and (3) judgment on the pleadings was properly entered by the circuit court against Wangler. We affirm.

David Ure and Estelle Ure (the Ures) entered into two written contracts, one with an architect, Reno J. Masini Associates (Masini), and one with Wangler, the former to design and the latter to construct a residence. After the residence was substantially built, disputes concerning design and construction arose between the Ures, Masini and Wangler, which the parties were unable to resolve.

On May 26, 1989, the Ures filed separate demands for arbitration. Each demand was entitled “Joint Demand for Arbitration.” One demand named Wangler as respondent and claimed, among other things, that Wangler “negligently, improperly and in an un-workmanlike manner constructed the home which caused over-stressing and deflection of the beams in the house and did not complete all contract items properly[,] causing the owner great sums of money to remedy the defects and to complete the home.” The other demand asserted that Masini negligently and improperly designed the home which caused overstressing and deflection of beams in the house which had to be repaired and remedied at great cost to the owner. By letter dated June 15, 1989, the Ures’ attorney notified Wangler that he had filed “a Joint Demand for Arbitration *** against you and Reno J. Masini Associates,” and enclosed a copy thereof.

On June 21, 1989, the American Arbitration Association (AAA) notified Wangler and Masini of the “[djemand requesting that arbitration be initiated between the parties whose names are set forth in the caption.” In the caption, Wangler was listed as “Respondent #1” and Masini was listed as “Respondent #2.” The AAA assigned to the demands a single case number and treated them as consolidated. A list of names selected from the “National Panel” was provided to the parties, from which an arbitrator was to be appointed, with instructions to strike any names not acceptable. On July 25, 1989, Wangler’s attorneys sent a letter to the AAA indicating their representation of Wangler and enclosing a list showing Wangler’s preferences in the selection of an arbitrator. No objection to consolidation was then raised by any party.

On August 7, 1989, AAA sent a letter to all parties requesting that they respond to the AAA by August 17, 1989, “as to whether this arbitration will continue with the above captioned parties, or with Trus-Joist Corporation included as an additional [Respondent,” adding that Trus-Joist Corporation will be added only if all parties agree. Wangler’s counsel, on August 10, 1989, asserted in a letter that Wangler “has no objection to the addition of Trus-Joist Corporation as an additional respondent in this case.” (Emphasis added.) Trus-Joist declined to be a part of the arbitration, however, and on August 16, 1989, AAA sent written notice that it would proceed with the above-captioned parties, again listing Wangler as respondent No. 1 and Masini as respondent No. 2, without Wangler’s objection. On August 28, 1989, Wangler’s counsel sent a letter to the AAA, memorializing a telephone conversation involving a dispute as to the chosen arbitrator. On August 30, 1989, AAA sent a letter to the attorneys for the parties, acknowledging receipt of the letter from Wangler’s attorney, again listing Wangler as respondent No. 1 and Masini as respondent No. 2 under a single case number. On September 15, 1989, AAA advised the parties that the arbitrator resigned from the matter, indicating again that Wangler was respondent No. 1 and Masini respondent No. 2. In five subsequent letters sent to the parties’ attorneys, the respondents always were identified in the same way, without objection to consolidation.

The hearing convened on January 30, 1990. All parties were then present. All exhibits to be considered were marked. Witnesses were ready to testify. When counsel were asked to make opening statements, the attorneys for Wangler objected to a joint arbitration for the first time, in part as follows:

“[Wangler’s Attorney]: I would point out that the language in Article 6 [of the contract] is mirrored in Article 7.9, in the general conditions of the contracts between the owner and contractor, which also provides, and I quote, *** [reading the contract language quoted under part I of this opinion].
To my knowledge, there is no such signed written consent that pertains in this case.
And we would submit that the claimant in this case has to proceed separately on his claim against the architect and separately on his claim against the contractor.
And we would object to the consolidations in this matter.
[Ures’ Attorney]: If I may respond, we filed the proceedings, two proceedings, and asked the matter be consolidated in order to conserve time and effort and, of course, cost.
This is the first instance where this point has been raised at this late stage. I believe there’s been a waiver here of this provision.
I don’t see what jeopardy they possibly could have to go through two proceedings at the same facts.”

The arbitrator responded as follows:

"I’m just curious as to why with the arbitration structured as David Ure versus Wangler Construction Company, Inc., and Reno J. Masini, there was an agreement to the appointment of an arbitrator and to the scheduling of the hearing.
I’m just curious as to why this has never been raised with the tribunal, with the association, prior to our sitting down here today with witnesses present. And I wonder why this wasn’t raised with the tribunal administrator, Laura Brown, when she scheduled this as it was.
This was all scheduled, as I can see it, as a consolidated matter. And, apparently, no one has determined to raise this objection until this time when we’re all scheduled to sit here.
I’m inclined to deny that request and proceed with it the way it is, but I do want to check with the tribunal administrator to see whether or not there have been what would be, I guess, a waiver or an estoppel to the bringing of the motion at this time.
*** I believe the challenges to the procedure are raised first with the tribunal administrator and that the arbitrator then acts as a finder of fact.”

The arbitrator then consulted with the tribunal administrator and thereafter ruled as follows:

“I have consulted with the tribunal administrator. She has advised me that there has never been an objection to the procedure or the arbitrability of the claim against either, nor has there been raised an objection to the pendency of this matter against both of the respondents.
There have been several instances of correspondence where the parties have either requested the tribunal administrator to pick another arbitrator or to convene the hearing at a different time and it has never been objected to.”

The arbitrator then declined to sever the cases and proceeded to hearing.

After the hearings were concluded, the arbitrator required Wangler to pay the Ures $29,694.05; Masini to pay $10,185 to the Ures; and each respondent to pay $3,525 in fees, expenses and arbitrator compensation. Wangler then filed a motion to reconsider and clarify the award under section 9 of the Uniform Arbitration Act (Act) (Ill. Rev. Stat. 1989, ch. 10, par. 109). This motion was denied.

The Ures filed an application to confirm the arbitration award in the circuit court. Wangler responded with an answer and counterpetition to vacate the arbitration award, alleging, in part, that the arbitrator exceeded his authority when he allowed the consolidation of the two arbitrations in the face of the express prohibition against consolidation in the contracts. Wangler also asserted it was prejudiced by the joint arbitration because the Ures were not required to differentiate as to which party caused which damages. The Ures moved for judgment on the pleadings, which was granted, confirming the arbitration award. Wangler’s motion to vacate and for rehearing was denied.

Wangler appeals, seeking reversal of the judgment and the entering of judgment in its favor or, in the alternative, reversal of the judgment and remand for further proceedings.

I

Wangler first contends that the arbitrator exceeded his authority by consolidating the arbitrations since both contracts prohibited consolidation without written consent of the parties.

Arbitration awards should be construed, when possible, so as to uphold their validity. There is a presumption that the arbitrator did not exceed his or her authority. (Rauh v. Rockford Products Corp. (1991), 143 Ill. 2d 377, 574 N.E.2d 636.) If an award is within the submission and contains the honest decision of the arbitrators, after a full hearing, a court will not set it aside for error of law or fact. Rauh, 143 Ill. 2d at 391, citing Burchell v. Marsh (1855), 58 U.S. (17 How.) 344, 15 L. Ed. 96.

The agreement to submit to arbitration is a matter of contract. The scope of the arbitrator’s power is governed by the agreement. (Hollister Inc. v. Abbott Laboratories (1988), 170 Ill. App. 3d 1051, 1061, 524 N.E.2d 1035.) Such agreements cannot be extended by construction or implication. (Rauh, 143 Ill. 2d at 387.) Consolidation of claims may be prohibited or limited by contract, as held in County of Sullivan v. Edward L. Nezelek, Inc. (1977), 42 N.Y.2d 123, 366 N.E.2d 72, 397 N.Y.S.2d 371, where the New York Court of Appeals observed:

“If it is now desired to avoid the possibility of consolidation, appropriate provisions to preclude or limit consolidation can be drafted for inclusion in the particular arbitration agreement.” 42 N.Y.2d at 128, 366 N.E.2d at 75, 397 N.Y.S.2d at 374.

The arbitration clauses in both the architect’s contract and the general contractor’s contract contained almost identical prohibitions against joinder or consolidation of claims without consent. Wangler’s arbitration clause provided, in pertinent part:

“No arbitration arising out of or relating to the Contract Documents shall include, by consolidation, joinder or in any other manner, the Architect, his employees or consultants except by written consent containing a specific reference to the Owner-Contractor Agreement and signed by the Architect, the Owner, the Contractor and any other person sought to be joined.”

Wangler asserts that the arbitrator exceeded his authority when he consolidated the cases without written consent, contrary to the unambiguous language of the foregoing contract. Wangler seeks reversal, relying upon section 12(a)(3) of the Act. Ill. Rev. Stat. 1987, ch. 10, par. 112(a)(3).

The Ures respond that the arbitrator’s decision should be affirmed because judicial review of an arbitration award is limited in scope; case law supports consolidation; the consolidation was a question of procedure within the scope of the arbitrator’s authority; and Wangler waived its right to object. Significantly, however, in the cases cited by the Ures, there were no contracts requiring written consent before consolidation, as in the present case. In Grover-Dimond Associates v. American Arbitration Association (1973), 297 Minn. 324, 211 N.W.2d 787, the Minnesota Supreme Court noted:

“If the arbitration agreements explicitly provided for joint or separate hearings, the agreements would, of course, govern.” (297 Minn. at 329, 211 N.W.2d at 790.)

To the same effect are Pueblo of Laguna v. Cillessen & Son, Inc. (1984), 101 N.M. 341, 682 P.2d 197; Balfour, Guthrie & Co. v. Com mercial Metals Co. (1980), 93 Wash. 2d 199, 607 P.2d 856; Stop & Shop Cos. v. Gilbane Building Co. (1973), 364 Mass. 325, 304 N.E.2d 429; Hjelle v. Sornsin Construction Co. (N.D. 1969), 173 N.W.2d 431; In re We’re Associates Co. (1990), 163 A.D.2d 395, 557 N.Y.S.2d 932; Bay County Building Authority v. Spence Brothers (1984), 140 Mich. App. 182, 362 N.W.2d 739; Board of Education v. Midwest Electric Co. (1980), 1 Ohio App. 3d 37, 439 N.E.2d 425; Wm. C. Blanchard Co. v. Beach Concrete Co. (1972), 121 N.J. Super. 418, 297 A.2d 587; J. Brodie & Son, Inc. v. George A. Fuller Co. (1969), 16 Mich. App. 137, 167 N.W.2d 886; and Annot., 64 A.L.R.3d 528, 540-43 (1975).

The Ures claim that the decision to consolidate is procedural and, therefore, is for the arbitrator to decide, relying on United Electrical Radio & Machine Workers v. Honeywell, Inc. (7th Cir. 1975), 522 F.2d 1221, citing John Wiley & Sons, Inc. v. Livingston (1964), 376 U.S. 543, 557-58, 11 L. Ed. 2d 898, 909, 84 S. Ct. 909, 918; however, in neither case did the issue of contract consolidation clauses arise, as in the case sub judice.

The arbitrator was required to recognize such a contract provision here. We turn next to the issue of whether Wangler waived that contract right under the facts of this case, however.

II

Wangler urges that it did not waive its contract right to preclude consolidation by failing to object in a timely fashion, to which the Ures rejoin antipodally.

The Ures maintain that Wangler waited until the day of arbitration to first raise the issue of consolidation. Wangler had approximately eight months from the date it received the demand for arbitration until the first hearing. Without objection to consolidation during this entire period of time, Wangler appeared through its attorneys, participated in choosing the arbitrator, rejected an arbitrator, accepted another arbitrator, agreed to the addition of another respondent, and acquiesced to the dates of the hearings. They allege that Wangler knew the arbitration would be joint because the caption on the demand for arbitration reads “joint,” and add that if Wangler feared prejudice, instead of participating, it had five months to object or move for a stay of the proceedings.

A contractual right with respect to arbitration can be waived as can any other contract right. (Brennan v. Kenwick (1981), 97 Ill. App. 3d 1040, 1042, 425 N.E.2d 439.) Waiver of a contract term may occur when a party conducts itself in a manner which is inconsistent with the subject clause, thereby indicating an abandonment of its contractual right. (Cencula v. Keller (1987), 152 Ill. App. 3d 754, 757, 504 N.E.2d 997.) A timely objection preserves the right to challenge an award, even after participating in the arbitration proceedings. (Board of Education of Community Unit School District No. 4 v. Champaign Education Association (1973), 15 Ill. App. 3d 335, 342, 304 N.E.2d 138.) Here, although it well knew from the beginning that the matter was proceeding as a consolidated, single case, Wangler first objected to the consolidation when the hearing on the merits of the arbitration proceeding had already convened. The question in this case is whether Wangler’s objection was timely.

The arbitrator here reviewed all prehearing proceedings and was advised of all correspondence which preceded the hearing. He observed the absence of any objection by Wangler or any other party to the consolidation to that point. He noted the readiness of the parties and witnesses there waiting to proceed with the hearings. He then declined to sever the claim hearings at that time. Where arbitrability is not contested, questions concerning timeliness and waiver in asserting contractual rights are for arbitrators to decide, rather than courts. (Board of Education of Posen-Robbins School District No. 143½ v. Daniels (1982), 108 Ill. App. 3d 550, 555, 439 N.E.2d 27; Village of Carpentersville v. Mayfair Construction Co. (1981), 100 Ill. App. 3d 128, 133, 426 N.E.2d 558. See Mautz & Oren, Inc. v. Teamsters, Chauffeurs, & Helpers Union, Local No. 279 (7th Cir. 1989), 882 F.2d 1117, 1127.) The circuit court here correctly declined to interfere with this ruling.

In light of the foregoing considerations, other issues related to the propriety of the judgment on the pleadings and suggested prejudice caused by the consolidation need not be addressed.

For the reasons discussed above, we find no error in the decision of the circuit court which, accordingly, must be affirmed.

Affirmed.

DiVITO and McCORMICK, JJ., concur.


author: JUSTICE LINN

text:
    VINCE TORCASSO, d/b/a Mazz Media, Plaintiff-Appellant, v. STANDARD OUTDOOR SALES, INC., et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—91—1719
    Opinion filed July 23, 1992.
    James A. Rooney, of Chicago, for appellant.
    Whitcup & Arce, of Chicago (George D. Levy, of counsel), for appellees.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Vince Torcasso, doing business as Mazz Media (Tor-casso), brought an action in the circuit court of Cook County against defendants Richard Swoboda and Standard Outdoor Sales, Inc. (Swo-boda). Torcasso alleged that Swoboda breached a brokerage contract and committed fraud.

The trial court granted Swoboda’s motion to dismiss Torcasso’s amended complaint. The court ruled that the action was barred by principles of res judicata and collateral estoppel. Torcasso appeals, assigning error to the dismissal.

We affirm the order of the trial court.

Background

The trial court dismissed the complaint pursuant to section 2— 619(a)(4) of the Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(aX4).) In ruling on a section 2 — 619 motion to dismiss, a court may consider the pleadings, affidavits in support of the motion, answers to interrogatories, depositions, and other proofs presented by the parties. Bloomingdale State Bank v. Woodland Sales Co. (1989), 186 Ill. App. 3d 227, 232, 542 N.E.2d 435, 438 (and cases cited therein).

A

The record contains the following pertinent facts. On March 4, 1988, Swoboda sued Torcasso for breach of a brokerage agreement. Swoboda alleged as follows. Torcasso owned an outdoor sign. On May 15, 1984, Torcasso and Swoboda orally agreed that Swoboda would procure an advertiser who would rent advertising space on Torcasso’s sign. In return, Torcasso would pay Swoboda a commission. Swoboda did procure an advertiser for Torcasso. Swoboda demanded his commission. Torcasso only partially paid; he owed Swoboda $2,050 plus interest. Swoboda sought that amount in damages; he also sought interest and costs.

In his answer, Torcasso admitted the existence of the oral brokerage agreement. However, Torcasso denied that Swoboda procured an advertiser. Torcasso, consequently, denied that he owed Swoboda a commission and admitted that he refused to pay.

Torcasso also raised an affirmative defense. Torcasso alleged that he and Swoboda terminated the brokerage agreement on approximately October 15, 1984. By that time, Swoboda had not procured an advertiser. Torcasso subsequently found an advertiser. Torcasso sought a dismissal of Swoboda’s lawsuit.

The cause was tried before the court. On November 18, 1988, the trial court entered judgment for Swoboda in the amount of $3,400.

B

On March 14, 1989, approximately four months subsequent to the judgment in Swoboda’s lawsuit, Torcasso brought the present action against Swoboda. Torcasso amended his complaint on July 18, 1990. The complaint contained two counts. In count I, Torcasso acknowledged the existence of the brokerage agreement. However, he alleged that Swoboda breached the agreement by failing to use his “best efforts” to procure an advertiser.

In count II of his present complaint, Torcasso alleged fraud. Tor-casso alleged that Swoboda told Torcasso and prospective advertisers that the vacant sign space had been rented. However, the sign had not been rented to anyone. Swoboda allegedly made these misrepresentations to prevent the sign space from being rented to anyone other than Swoboda’s usual clients. Further, Torcasso relied on Swo-boda’s misrepresentations to his detriment. Torcasso sought $12,000 in compensatory damages in both counts, and an additional $20,000 in punitive damages in count II.

Swoboda moved to dismiss the amended complaint pursuant to section 2 — 619(a)(4) of the Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(4).) He claimed that Torcasso’s lawsuit was barred under the theories of res judicata and collateral estoppel.

On October 10, 1990, the trial court granted Swoboda’s motion to dismiss. The court subsequently denied Torcasso’s motion to reconsider. Torcasso timely appeals.

Opinion

The trial court dismissed the complaint pursuant to the Code of Civil Procedure section 2 — 619(a)(4). Subsection (a)(4) provides as a ground for dismissal “[t]hat the cause of action is barred by a prior judgment.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(4).) The trial court ruled that Swoboda’s prior lawsuit and resulting judgment barred Torcasso’s lawsuit, based on either res judicata or collateral estoppel.

The doctrine of res judicata provides that a final judgment rendered by a court of competent jurisdiction is conclusive as to the rights of the parties and their privies and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand, or cause of action. (Hilti, Inc. v. Griffith (1978), 68 Ill. App. 3d 528, 532, 386 N.E.2d 63, 65.) The rule embraces not only all matters that were actually litigated in the prior case, but also extends to all matters that should have been or could have been litigated. Baird & Warner, Inc. v. Addison Industrial Park, Inc. (1979), 70 Ill. App. 3d 59, 64, 387 N.E.2d 831, 837, quoting Prochotsky v. Union Central Life Insurance Co. (1971), 2 Ill. App. 3d 354, 356-57, 276 N.E.2d 388, 390.

Res judicata is based on the principle that the law grants every person an opportunity to present his or her case on the issues in question, but requires that person to put forth all grounds of recovery he or she has. (Morris v. Union Oil Co. (1981), 96 Ill. App. 3d 148, 154, 421 N.E.2d 278, 283.) “This rule is founded upon the plainest and most substantial justice, that litigation should have an end and that no person should be unnecessarily harassed with a multiplicity of suits.” Baird & Warner, 70 Ill. App. 3d at 64, 387 N.E.2d at 7.

Thus, to apply the doctrine of res judicata, a court must determine whether the two lawsuits involve the same cause of action. The test that Illinois courts generally use to determine this is whether the evidence needed to sustain the second action would have sustained the first action, i.e., whether the causes of action arise out of a single group of operative facts. Morris, 96 Ill. App. 3d at 156-57, 421 N.E.2d at 284-85; Hilti, 68 Ill. App. 3d at 532, 386 N.E.2d at 65-66, quoting Pierog v. H.F. Karl Contractors, Inc. (1976), 39 Ill. App. 3d 1057, 1060-61, 351 N.E.2d 249, 252.

Torcasso argues that he was not required to plead his allegations as a counterclaim in Swoboda’s prior lawsuit. Rather, Torcasso argues, he could bring a subsequent independent lawsuit.

Torcasso invokes section 2 — 608 of the Code of Civil Procedure, formerly section 38 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 38). Section 2 — 608(a) provides that any defendant, who desires to seek a judgment against any existing party to a lawsuit, may assert a counterclaim. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 608(a).) The provision is designed to simplify litigation by allowing all issues to be tried in one forum at the same time. However, the word “may,” which is used in the provision, indicates that the provision is permissive rather than mandatory. Miller v. Bank of Pecatonica (1980), 83 Ill. App. 3d 424, 426-27, 403 N.E.2d 1262, 1264; Ill. Ann. Stat., ch. 110, par. 2 — 608, Historical & Practice Notes, at 183 (Smith-Hurd 1983).

Thus, a defendant is not required under section 2 — 608(a) to immediately assert his or her rights by way of a counterclaim if it would be inconvenient or strategically inadvisable to do so. Rather, the defendant may assert the claim in a subsequent independent action. (Keith v. B & B Builders Supply, Inc. (1981), 101 Ill. App. 3d 1123, 1125, 428 N.E.2d 1194, 1196.) However, if a defendant’s claim involves the same operative facts as the plaintiff’s claim, the doctrine of res judicata may operate to bar the subsequent independent action. Block & Co. v. Storm Printing Co. (1976), 40 Ill. App. 3d 92, 96, 351 N.E.2d 271, 274; 2 C. Nichols, Illinois Civil Practice §1314 (1990).

Applying these principles to the present case, we conclude that a single group of operative facts is at the heart of both Swobo-da’s prior lawsuit and Torcasso’s subsequent lawsuit — the performance of the brokerage agreement. As we stated earlier, Swoboda alleged in his prior lawsuit essentially that he performed the brokerage agreement and was entitled to a commission. Torcasso alleged in his answer essentially that they terminated the agreement and that Swo-boda had not procured an advertiser for the sign.

The trial court entered judgment in favor of Swoboda. The major issues that were necessarily resolved in Swoboda’s prior lawsuit were that he performed the brokerage agreement, i.e., he procured an advertiser who was ready, willing, and able to rent sign space, and that he was entitled to a commission.

In count I of his present complaint, Torcasso alleges that Swoboda failed to use his “best efforts” to procure an advertiser. In count II, Torcasso alleges that Swoboda committed fraud by telling Torcasso and prospective advertisers that the vacant sign space had already been leased when it had not. Torcasso allegedly relied on these misrepresentations to his detriment. However, the trial court already decided that Swoboda did procure an advertiser and was entitled to a commission. The evidence needed to sustain Torcasso’s present lawsuit would have controlled the outcome of Swoboda’s lawsuit.

The underlying facts are the same in these two lawsuits; both suits are based upon the same brokerage agreement and the acts of the parties surrounding the agreement. Torcasso merely relabelled the theories of recovery. (See Morris, 96 Ill. App. 3d at 157, 421 N.E.2d at 285.) “The mere fact that different claims are alleged is immaterial; the assertion of different kinds or theories of relief still constitutes a single cause of action if a single group of operative facts give rise to the assertion of relief.” Baird & Warner, 70 Ill. App. 3d at 64, 387 N.E.2d at 838.

In Torcasso’s present lawsuit, what is at issue are matters involving the brokerage agreement. Torcasso could have raised these matters as a defense or counterclaim in Swoboda’s initial action. (See McLain v. West Suburban Hospital Medical Center (1990), 208 Ill. App. 3d 613, 616, 567 N.E.2d 532, 534.) It was the duty of Torcasso “to litigate the issues with respect to that contract in those proceedings, and his failure to do so constitutes a bar to a subsequent action involving the same contract.” (Douglas v. Papierz (1970), 121 Ill. App. 2d 242, 247, 257 N.E.2d 570, 573.) “Indeed, any contrary view would be counter to the accepted rule that a judgment fixing contractual rights and damages in a given dispute acts as a bar to any further action by the same parties with respect to the same dispute.” (International Industrial Leasing, Ltd. v. H.J. Coleman & Co. (1978), 66 Ill. App. 3d 884, 890-91, 384 N.E.2d 1, 6.) We uphold the trial court’s ruling that, based on the doctrine of res judicata, the judgment entered in Swoboda’s prior lawsuit barred Torcasso’s subsequent lawsuit.

For the foregoing reasons, the order of the circuit court of Cook County, which dismissed Torcasso’s amended complaint, is affirmed.

Affirmed.

JOHNSON and McMORROW, JJ., concur.


text:
    JOSEPH POLAK et al., Plaintiffs-Appellants, v. ROLAND PERSON, Defendant (The Chicago Park District et al., Defendants-Appellees).
    First District (2nd Division)
    No. 1—91—0717
    Opinion filed July 28, 1992.

      Sandman, Levy & Petrich, of Chicago (Robert R. Dlugajczyk, of counsel), for appellants.
    Gessler, Flynn, Fleischmann, Hughes & Socol, Ltd., of Chicago (Terence E. Flynn, William P. Jones, and Kimberley Marsh, of counsel), for appellee Chicago Park District.
    Kirkland & Ellis, of Chicago (Jeffrey S. Powell, of counsel), for appellee Skidmore, Owings & Merrill.
    Schiff, Hardin & Waite, of Chicago (Paul M. Lurie, Joseph J. Krasovec III, and Edward J. Wong III, of counsel), for other appellees.
   JUSTICE SCARIANO

delivered the opinion of the court:

Joseph and Dorothy Polak (plaintiffs) appeal the trial court’s October 23, 1990, order granting summary judgment in favor of Skidmore, Owings and Merrill (Skidmore), and Helmut Jahn, C.F. Murphy and Murphy/Jahn, Inc. (collectively, Murphy/Jahn), and its January 20, 1991, order granting summary judgment in favor of the Chicago Park District (District). Plaintiffs also appeal the trial court’s February 26, 1991, denial of its motion to reconsider and clarify these orders.

In 1975, the architectural firms of Skidmore, Owings & Merrill, Murphy/Jahn, Inc., and Loebl, Scholssman, Dart and Hackl (Loebl) entered into a joint venture agreement after they were retained by the City of Chicago to design signs for Soldier Field as part of the Bicentennial Improvement Project. During the course of the project, they specified both the design and placement of the “Park Lot D” sign, which was constructed of steel and supported by two posts, each of which was embedded in a three-inch concrete base. The sign was located near the southbound lanes in the area of 1600 S. Lake Shore Drive, along a grassy area on the west shoulder of the road, lined with light poles and mature trees.

On July 21, 1984, plaintiffs were traveling southbound on the straight stretch of Lake Shore Drive, in the vicinity of “Park Lot D,” when Roland Person (Person), who was drag “racing with a late model Camaro” at a “high rate of speed,” rammed the back of their vehicle while he was attempting to change lanes. The impact of the collision with Person’s car caused plaintiff Joseph Polak to lose control of his vehicle, which swerved across two lanes of traffic, left the traveled portion of the roadway, went over a concrete barrier, into the grassy area, and collided with one of the “Park Lot D” sign’s steel posts, which did not yield upon impact. Both plaintiffs were knocked unconscious by the impact of the collision with Person’s car and neither recalled the secondary collision with the sign. As a result of these collisions, plaintiffs sustained serious personal injuries and extensive property damage to their vehicle. Person was later charged with making an unsafe lane change.

On October 4, 1984, plaintiffs filed a four-count complaint against Person, first amending it on January 13, 1986, to add the District as a defendant, alleging negligence in the placement of the sign. On July 21, 1986, plaintiffs filed a second amended complaint, adding Skid-more and Murphy/Jahn, alleging negligence in the placement and design of the sign. Thereafter, on January 22, 1988, plaintiffs amended their complaint to include two counts sounding in negligence against Loebl, but these counts were later dismissed for failing to meet the requirements of the statute of limitations. The gravamen of plaintiffs’ complaint is their contention that the sign should have been made with “break-away” posts and that the posts’ concrete bases should have been smaller; had the sign been so designed, plaintiffs allege, they would have suffered little or no injuries attributable to their colliding with it.

On July 6, 1990, Skidmore filed a motion for summary judgment, asserting that it owed no duty to plaintiffs and that its conduct was not a proximate cause of their injuries. On July 20, 1990, later amended on August 27, 1990, Murphy/Jahn filed a motion for partial summary judgment, contending that the sign met the certain applicable design requirements and was therefore not too close to the roadway, that the concrete bases also met the design requirements, and that these bases did not, in fact, cause plaintiff’s injuries. Thereafter, Skidmore was given leave to adopt Murphy/Jahn’s motion as well. On October 10, 1990, the District filed a motion for summary judgment, making the same arguments as Skidmore and Murphy/Jahn. After hearing arguments of counsel on Skidmore’s and Murphy/Jahn’s motions, the trial court, on October 23, 1990, entered an order granting summary judgment in favor of both. On November 16, 1990, plaintiffs filed a motion for reconsideration and clarification, requesting the court to reverse its prior ruling, or alternatively, that it articulate its rationale in refusing to find the existence of a legal duty, pointing out that it had stated at the hearing:

“It seems to me that the manner in which somebody uses the roadway, coming around the road at Soldier Field, is really not relevant to hitting the sign, because somebody can just skid on ice or skid on water and do the same thing that happened. I feel that within the realm of allowable foreseeability, that this could be foreseeable.
Coming down Lake Shore Drive and jockeying for position in heavy traffic and going off the roadway, that’s foreseeable.
I already said that I think on the foreseeability issue I’m not going to go any further because I think there is foreseeability. The only thing I’m going to take under advisement is the duty because I want to read the cases.”

On January 20, 1991, the trial court heard the District’s motion for summary judgment, and, based on its prior ruling of October 23, 1990, it granted the motion. On January 30, 1991, plaintiffs filed a motion, later consolidated with the November 16, 1990, motion, for reconsideration and clarification of the January 20, 1991, order. On February 26, 1991, the trial court denied plaintiffs’ motions, finding that the October 23, 1990, order in favor of Skidmore and Murphy/ Jahn was final, and that there was no just reason to delay enforcement or appeal of the order, pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). On February 28, 1991, plaintiffs filed their notice of appeal.

I

Since the parties are of two different thoughts on the subject, we address first the issue of what is the correct standard of review in the appeal of a motion for summary judgment. Two of the defendants, the District and Skidmore, claim that the proper standard is abuse of discretion, but this is emphatically not the case despite the fact that there are several appellate court cases holding to the contrary. (Fearon v. Mobil Joliet Refining Corp. (1984), 131 Ill. App. 3d 1; Kemp v. Sisters of the Third Order of St. Francis (1986), 143 Ill. App. 3d 360; Alop v. Edgewood Valley Community Association (1987), 154 Ill. App. 3d 482; Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76.) Rather,

“[t]he sole function of a reviewing court in reviewing the trial court’s entry of a summary judgment is to determine whether the trial court correctly ruled that no genuine issue of material fact had been raised. [Citation.] If no such issue remained, then [the reviewing court] must determine whether judgment was correctly entered for the moving party as a matter of law.” (Emphasis added.)

(Coomer v. Chicago & North Western Transportation Co. (1980), 91 Ill. App. 3d 17, 21; see also Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 272; Derby Meadows Utility Co. v. Inter-Continental Real Estate (1990), 202 Ill. App. 3d 345, 354; Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) Neither the finding of an absence of a genuine issue of material fact nor the application of the correct rule of law to facts as to which there is no dispute can be said to require the exercise of discretion in any sense of the term.

II

Regarding the merits of the appeal, the District asserts that the trial court was correct in holding that it did not owe plaintiffs a duty of ordinary care regarding either the design or placement of the sign. (Gouge v. Central Illinois Public Service Co. (1991), 144 Ill. 2d 535; Boylan v. Martindale (1982), 103 Ill. App. 3d 335; Hoffman v. Vernon Township (1981), 97 Ill. App. 3d 721.) Plaintiffs argue that the trial court erred in failing to find the existence of a legal duty after it had stated that it was foreseeable that “somebody can just skid on ice or skid on water and do the same thing that happened. I feel that within the realm of allowable foreseeability, that this could be foreseeable. *** I think there is foreseeability.”

In order to state a cause of action for negligence, plaintiffs must allege that the defendant owes them a legal duty, that the defendant has breached this duty, and that the defendant’s breach of this duty was the proximate cause of their injuries. (Gouge, 144 Ill. 2d at 542.)

“Whether a duty exists is a question of law to be determined by the court, and depends on whether the parties stood in such a relationship to one another that the law imposes an obligation on the defendant to act reasonably for the protection of the plaintiff. *** [T]he court will consider whether the risk of harm to the plaintiff was reasonably foreseeable.” (Emphasis in original.) (Gouge, 144 Ill. 2d at 542.)

Although reasonable foreseeability of injury is a key concern in determining whether a duty exists, a court need also consider the likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing the burden on the defendant. Gouge, 144 Ill. 2d 535; Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 525; Lance v. Senior (1967), 36 Ill. 2d 516, 518.

The controlling case in this instance is Gouge, in which Johnnie Gouge, one of the plaintiffs, lost control of his car as he approached a sharp curve in the road, skidded 65 feet, and eventually left the paved surface of the road. After careening across a gravel shoulder, his car struck a utility pole owned by the defendant. The pole was located approximately 15 feet from the edge of the paved surface of the road, and attached to the top of the pole was a 7,200-volt transformer filled with a flammable substance. Upon impact, the pole fractured approximately 10 to 12 feet above the ground, which caused the part of the pole containing the transformer to fall onto Gouge’s automobile and through its windshield. The transformer broke open, causing the flammable substance to spill out, ignite, and severely burn and disable him. Johnnie and his wife Vicki filed a complaint basing it, in part, on negligence.

The defendant utility company argued that it was not reasonably foreseeable that Gouge would leave the roadway and strike this particular utility pole, and relying on Boylan and Hoffman, claimed that utility companies owe no duty to motorists in terms of the placement of utility poles because it is not reasonably foreseeable that a motorist in the ordinary course of travel would leave the traveled portion of the roadway and strike that utility pole. (Gouge, 144 Ill. 2d at 540.) The supreme court agreed, and citing Boylan and Hoffman with approval, stated that “it was not reasonably foreseeable that Gouge would strike this utility pole, [hence] we do not believe [defendant] owed a duty to plaintiffs to ensure that the pole would fall ‘away from the roadway’ when struck by Gouge’s automobile.” (Gouge, 144 Ill. 2d at 545.) The court, in holding for the defendant utility company, also went on to cite factors other than foreseeability, such as the “onerous and almost impossible burden” as well as the “staggering” “economic costs” that would be placed on the defendant if the court were to find the duty urged by the plaintiffs. Gouge, 144 Ill. 2d at 547.

In Hoffman, the plaintiff’s decedent was killed when the vehicle which he was driving left the roadway and proceeded out of control for approximately 60 feet after striking a utility pole. In his complaint the plaintiff averred that the utility company was negligent in placing the pole in that location. Relying on the Restatement (Second) of Torts §368 (1965), regarding the liability of owners and occupiers of land for artificial conditions near a highway, the court noted that

“ ‘[a] possessor of land who creates or permits to remain *** [an] artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact with such condition while traveling with reasonable care upon the highway, is subject to liability for physical harm thereby caused to persons who
(a) are traveling on the highway, or
(b) foreseeably deviate from it in the ordinary course of travel’ ” (Emphasis added.) (Hoffman, 97 Ill. App. 3d at 725.)

The Hoffman court relied on official comment g to further note that:

“ ‘[The rule] applies also to those who reasonably and expect-ably deviate from the highway and enter upon the abutting land in the ordinary course of travel.’ ***
‘In determining whether the condition is one which creates an unreasonable risk of harm to persons lawfully travelling on the highway and deviating from it, the essential question is whether it is so placed that travelers may be expected to come in contact with it in the course of a deviation reasonably to be anticipated in the ordinary course of travel.’ ” (Hoffman, 97 Ill. App. 3d at 725, quoting Restatement (Second) of Torts §368 (1965).)

The Hoffman court also noted that “duty is not bottomed on foreseeability alone” (Hoffman, 97 Ill. App. 3d at 724), but that there also existed a public policy approving of the placing of utility poles along highway right-of-ways. (Hoffman, 97 Ill. App. 3d at 727.) The court concluded that “it was [not] reasonably foreseeable to [the utility company that] under the facts here *** the decedent would deviate from the road as he did as a normal incident of travel.” Hoffman, 97 Ill. App. 3d at 726.

In Boylan, the plaintiff sued the City of Elmhurst, Illinois Bell, and Commonwealth Edison for injuries incurred when the vehicle in which he was a passenger struck a wooden utility pole which was located near the intersection of North and Myrtle Avenues in that municipality. The plaintiff alleged that (1) the city was negligent in permitting placement of the pole in a dangerous position along North Avenue, and that (2) Illinois Bell and Commonwealth Edison breached their duties to operate, manage, maintain, and control the pole, and were negligent in placing it in a dangerous position along North Avenue. Relying upon Hoffman and section 368 of the Restatement, the court affirmed the trial court’s dismissal of six of the counts of the plaintiff’s fourth amended complaint, and its granting of summary judgment on another count, stating that “ ‘[flor a duty to attach the person must foreseeably deviate in the ordinary course of travel.’ ” (Emphasis in original.) (Boylan, 103 Ill. App. 3d at 344, quoting Hoffman, 97 Ill. App. 3d at 726.) The court went on to hold that

“[i]t is common knowledge that vehicles collide in roadways and on occasion leave the roadway and strike a utility pole or tree adjacent to the roadway. However, for a duty to third persons to be imposed upon those who erect and maintain such utility poles, there must be a reasonable anticipation of such deviation from the roadway as a normal incident of travel.” Boylan, 103 Ill. App. 3d at 346.

Accordingly, if it is not reasonably foreseeable that a motorist will lose control of his car on a sharp curve, skid 65 feet, leave the paved portion of the roadway, and after crossing a gravel shoulder strike a utility pole loaded with a flammable substance 15 feet from the paved part of the road (Gouge, 144 Ill. 2d 535), neither can it be successfully contended that it is reasonably foreseeable that a motorist will be “rear-ended” on a straight stretch of road by a drag-racing “lane-jumper,” causing the first motorist to lose consciousness and control of his vehicle, swerve over two lanes of roadway and leave it, go over a concrete barrier into a grassy area, and strike a sign post. Merely to state the proposition is to reach the obvious conclusion. We hold, therefore, that the trial court was correct in granting summary judgment in favor of the District, for we cannot agree that the District must be held to anticipate deviations from the roadway of the type that occurred in this case as a normal incident of travel.

“The question of whether a legal duty exists must also be analyzed in view of the public policy” interests at stake. (Hoffman, 97 Ill. App. 3d at 727.) It would be the sheerest form of tautology to say that the public has an interest in having necessary informational signs placed near highways so that motorists are able to easily see and heed them. For this reason as well we decline to impose a duty on the District.

Ill

With respect to defendants Skidmore and Murphy/Jahn, plaintiffs argue that Gouge, Boylan, and Hoffman are inapposite to the factual situation before the court, since these cases pertain only “to the duty owed by one with a possessory interest in the land upon which the dangerous condition was placed,” and not to the duty owed by an architect. Moreover, they claim, “this distinction is significant to the duty issue as set forth in Section 385 of the Restatement of Torts (Second).”

Plaintiffs claim instead that Miller v. De Witt (1965), 59 Ill. App. 2d 38, aff’d in part and rev’d in part and remanded (1967), 37 Ill. 2d 273, sets forth the appropriate duty owed by architects: “An architect who plans and supervises construction work, as an independent contractor, is under a duty to exercise ordinary care in the course thereof for the protection of any person who foreseeably and with reasonable certainty may be injured by his failure to do so.” (Miller, 59 Ill. App. 2d at 91.) In Miller, plaintiff construction workers were injured when the roof of the building on which they were working collapsed. Plaintiffs claimed that because the architects had taken responsibility both for the design of the building and for the supervision of the actual construction, they had “a duty to prevent the contractor from carrying out the work in a faulty manner.” Miller, 37 Ill. 2d at 276.

“As a general rule it has been said that the general duty to ‘supervise the work’ merely creates a duty to see that the building when constructed meets the plans and specifications contracted for.” (Miller, 37 Ill. 2d at 284.) In Miller, however, the court noted that the architects had agreed to do more than merely supervise the work, that “under the terms of the contracts the architects had the right to interfere and even stop the work if the contractor began to shore in an unsafe and hazardous manner ***[;] under the terms of these contracts the architects had the right to insist upon a safe and adequate use of that method.” (Miller, 37 Ill. 2d at 284-85.) Because the architects had agreed to assume this additional burden, the court found that they took on an additional duty as well.

We find plaintiffs’ reliance on Miller inapt. First, the duty imposed in Miller stemmed from the architects’ having contractually undertaken the duty to intervene and stop work; no such undertaking is implicated here. Second, Miller imposes a duty on behalf of an architect “to exercise ordinary care *** for the protection of any person who foreseeably and with reasonable certainty may be injured by his failure to do so.” (Emphasis added.) Miller, 59 Ill. App. 2d at 91.

We also find that plaintiffs’ reliance on section 385 of the Restatement (Second) of Torts does not enhance their position. While they are correct in applying that provision to “one who designs” (Johnson v. Equipment Specialists, Inc. (1978), 58 Ill. App. 3d 133, 139), such application is not inconsistent with the result reached by the circuit court here. In Ferentchak v. Village of Frankfort (1984), 121 Ill. App. 3d 599, aff’d in part, rev’d in part (1985), 105 Ill. 2d 474, Robert Hamilton, a civil engineer, designed and oversaw construction of a subdivision in accordance with the applicable code requirements of the defendant village. His plans, however, lacked specifications as to foundation levels for the homes and design criteria for drainage swales, and contained inadequate specifics for the grading of the subdivision. The plaintiff homeowners brought suit when they began to experience water problems in their new home and were unable to remedy the problems. In determining the issue of whether Hamilton’s liability, as an independent contractor for the developer, terminated upon completion and acceptance of his work by the developer, the court noted an erosion of the doctrine of nonliability as set forth in Paul Harris Furniture Co. v. Morse (1956), 10 Ill. 2d 28, and cited favorably Hunt v. Blasius (1978), 74 Ill. 2d 203, 208-09, which rejected the Paul Harris doctrine and substituted a “traditional negligence analysis as to duty.” (Ferentchak, 121 Ill. App. 3d at 609.) The court, in acknowledging the provisions of section 385, utilized a “traditional tort analysis, focusing upon foreseeability of the injury ***, rather than artificial concepts such as privity” to determine the duty owed by Hamilton. Ferentchak, 121 Ill. App. 3d at 609.

Moreover, comment c of section 385 supports an application of “traditional tort analysis,” noting that the “manufacturer of a chattel *** is subject to liability for bodily harm caused to persons who may be expected, to use it[,] *** to all persons whom he should expect to be upon the land with the consent of his employer or to be in its vicinity.” (Emphasis added.) (Restatement (Second) of Torts §385, comment c, at 294 (1965).) In determining whether it was reasonably foreseeable that plaintiffs would be injured under the circumstances we encounter here, we find that Gouge, Boylan and Hoffman provide the necessary tests, the same tests that were applied to the District. Accordingly, for the same reasons discussed above with respect to the District, we hold that Skidmore and Murphy/Jahn owed no duty to plaintiffs.

IV

Plaintiffs further make the argument that defendants implicitly violated the Illinois Vehicle Code (III. Rev. Stat. 1985, ch. 95V2, par. 11 — 301) by not ensuring that the sign in question was in conformity with the manual on Uniform Traffic Control Devices for Streets and Highways (manual). We find this argument to be merit-less. Plaintiffs suggest that defendants’ violation of the Motor Vehicle Code consisted of their not replacing the sign with one made of a “break-away” design, which, they allege, was required by the manual. The statute itself, however, clearly and unmistakably exempts from its coverage, during their useful lives, nonconforming signs in use prior to January 1, 1985. Clearly the “Park Lot D” sign was in use prior to January 1, 1985, and plaintiffs make no argument that the sign had outlived its useful life. Thus, even if the sign were nonconforming, it was exempt from the coverage of the statute.

Accordingly, for all of the foregoing reasons, we affirm the judgment of the circuit court.

Affirmed.

HARTMAN, P.J., and McCORMICK, J., concur.

      The record does not clearly state the distance of the sign from Lake Shore Drive, since it was removed prior to the initiation of this suit.

      The court’s February 26, 1991, order does not state that the January 20, 1991, order in favor of the District was final, although the February 26, 1991, order is addressed in part to the District.

      Section 385 provides as follows:
      “One who on behalf of the possessor of land erects a structure or creates any other condition thereon is subject to liability to others upon or outside of the land for physical harm caused to them by the dangerous character of the structure or condition after his work has been accepted by the possessor, under the same rules as those determining the liability of one who as manufacturer or independent contractor makes a chattel for the use of others.” Restatement (Second) of Torts §385 (1965).

      The general rule is that where an independent contractor is employed to construct or install any given work or instrumentality, and has done the same and it has been accepted by the employer and the contractor discharged, he is no longer liable to third persons for injuries received as the result of defective construction or installation. (Empire Laundry Machinery Co. v. Brady, 164 Ill. 58.) This rule, however, is subject to certain well recognized exceptions whereby a contractor may be held liable even after acceptance of his work by the contractee (1) where the thing dealt with is imminently dangerous in kind, such as explosives, poisonous drugs, and the like, (2) where the subject matter of the contract is to be used for a particular purpose, requiring security for the protection of life, such as a scaffold, and (8) where the thing is rendered dangerous by a defect of which the constructor knows but deceitfully conceals, and which causes an accident when the thing is used for the particular purpose for which it was constructed.” Paul Harris, 10 Ill. 2d at 40.

      The section provides as follows:
      “Department to adopt sign manual. The Department shall adopt a State manual and specifications for a uniform system of traffic-control devices consistent with this Chapter for use upon highways within this State. Such manual shall include the adoption of the R 7-8 sign adopted by the United States Department of Transportation to designate the reservation of parking facilities for the handicapped. Non-conforming signs in use prior to January 1, 1985 shall not constitute a violation during their useful lives, which shall not be extended by other means than normal maintenance. The manual shall also specify insofar as practicable the minimum warrants justifying the use of the various traffic control devices. Such unform system shall correlate with and, where not inconsistent with Illinois highway conditions, conform to the system set forth in the most recent edition of the national manual on Uniform Traffic Control Devices for Streets and Highways.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 95V2, par. 11 — 301.