author: JUSTICE CAMPBELL

text:
    CARL L. KLEIN, Plaintiff-Appellant, v. STEEL CITY NATIONAL BANK, as Trustee, et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—89—1189
    Opinion filed March 25, 1991.
    Rehearing denied May 9, 1991.

      Carl L. Klein, of Oak Lawn, appellant pro se.

    Sosin & Schuster, Ltd., of Alsip (Naomi H. Schuster and Kimberly A. Opasinski, of counsel), for appellees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Carl L. Klein, appeals from an order entered by the trial court which severed a previously consolidated law action filed by Klein from a municipal action filed by defendants, Steel City National Bank, as trustee under trust No. 894, and 4544-50 Partners, against Klein; and which granted defendants’ section 2—1401 motion (Ill. Rev. Stat. 1989, ch. 110, par. 2—1401) to vacate a dismissal for want of prosecution order (the DWP order) as to the municipal action. The municipal action was predicated on an office lease executed on October 31, 1980, by Steel City, as lessor, and Gerhardt Gliege and Carl L. Klein, as lessees. The law action filed by Klein against defendants arose out of the municipal action and alleged breach of the lease, fraud, and willful and wanton misconduct. On appeal, Klein contends that: (1) the trial court erroneously entered an order sua sponte to sever the previously consolidated municipal and law actions; (2) the trial court improperly granted defendants’ section 2 — 1401 motion to vacate the DWP order as to the municipal action; and (3) defendants should have been barred from filing any pleadings or maintaining any claim as the result of their alleged failure to comply with Klein’s discovery requests. For the following reasons, the judgment of the trial court is affirmed.

The following facts are relevant to this appeal. On December 16, 1983, 4544-50 Partners, as lessors, filed a one-count municipal complaint (No. 83—M5—2244) against Carl L. Klein, as lessee, seeking $3,679.27 in real estate taxes for the period from August 24, 1983, to December 16, 1983, plus costs. The complaint was subsequently amended to add a request for attorney fees to the original count and to add a second count which alleged that Klein had failed to pay the sum of $1,700 for rent for the period from December 1, 1983, and sought $1,700 plus attorney fees and costs. In an order entered September 21, 1984, the trial court allowed an oral motion by 4544-50 Partners to amend its complaint on its face to add Steel City National Bank, as trustee under trust No. 894, as a party plaintiff.

On December 27, 1984, Klein filed a six-count complaint at law (No. 84—L—27093) against defendants. Counts I through IV alleged breach of the lease, count V alleged fraud in the computation of real estate tax increases, and count VI alleged willful and wanton misconduct in the filing of the municipal, action. On Klein’s motion, the trial court consolidated the municipal action and the law action into case No. 84—L—27093.

On July 30, 1985, defendants moved for judgment on the pleadings as to the municipal action and also moved to strike Klein’s law action complaint. When Klein failed to appear at the hearing on defendants’ motions, the trial court granted both motions and entered judgment on November 25, 1985, against Klein in the amount of $5,379.27 plus $1,500 in attorney fees plus costs. Klein’s motion to vacate the November 25, 1985, order was denied on June 10, 1986. Klein then filed a motion to vacate the June 10, 1986, order. The trial court granted the motion, thereby reinstating Klein’s motion to vacate the November 25, 1985, order, which the court also granted. As a result, defendants’ motions for judgment on the pleadings (the municipal action) and to dismiss (the law action) were reinstated.

On January 15, 1987, before defendants’ motions were ruled upon, Klein filed an amended complaint. Thereafter, in an order dated March 10, 1987, the trial court: (1) granted defendants’ motion to strike Klein’s law action; (2) granted leave for Klein to file an amended complaint instanter-, (3) entered judgment on the pleadings as to the municipal action; and (4) granted defendants leave to file an affidavit for attorney fees' regarding the municipal action.

Klein then filed motions to vacate the March 10, 1987, order and to declare the March 10, 1987, order invalid on the ground that it failed to indicate the specific amount of the money judgment. In response, defendants filed motions to amend or modify the March 10, 1987, order to provide for the award as prayed for in the amended complaint and as incorporated in the motion for judgment on the pleadings. On June 25, 1987, the trial court entered its order denying Klein’s motions and granting defendants’ motion to modify the June 10, 1987, order. As a result, judgment was entered on the pleadings as to the municipal action and Klein filed an amended complaint in the law action.

Klein then moved to vacate the June 25, 1987, order, and filed a second amended complaint. Before the motion to vacate was ruled upon, defendants moved to strike and dismiss the second amended complaint and for an award of attorney fees. Defendants’ motion was granted as to counts II and III of the second amended complaint, but denied as to count I and its request for sanctions. Further, Klein was granted leave to file a third amended complaint, which he did. During these proceedings, no ruling was made on Klein’s motion to vacate the June 25, 1987, order.

On February 2, 1988, Klein moved to vacate the March 10, 1987, order and all related orders. The trial court denied this motion on May 24, 1988. As a result, judgment on the pleadings remained as to the municipal action and Klein’s third amended complaint was still viable. On July 6, 1988, defendants moved to dismiss Klein’s third amended complaint. Subsequently, on July 20, 1988, Judge Sudak entered the DWP order as to case No. 84 — L—27093. Despite the DWP order, on August 30, 1988, an order was entered by Judge Lassers in the consolidated action, continuing the matter to September 27, 1988, for a ruling on the posture of the case, and allowing either party to file briefs on or before September 20, 1988. Defendants then filed their brief. The record does not indicate whether a brief was filed by Klein.

On November 4, 1988, prior to a ruling on the posture of the consolidated action, defendants filed a “Motion for Special Findings or, in the alternative, a motion to vacate in part the order of July 20, 1988, of dismissal for want of prosecution pursuant to section 2 — 1401 of the Illinois Code of Civil Procedure.” Following a hearing on defendants’ motion, the trial court entered an order, dated April 25, 1989, setting forth the following adjudications: (1) Hein’s law action and defendants’ municipal action were severed on the court’s own motion; (2) defendants’ section 2 — 1401 motion to vacate the DWP order was granted as to the municipal action; and (3) pursuant to Hein’s request, that portion of the DWP order dismissing Hein’s law action remained in full force and effect. In another order entered the same day, the municipal action was transferred to the municipal branch for a determination of attorney fees and costs. Hein’s timely appeal from the April 25,1989, order followed.

Initially, Hein contends that the trial court erroneously entered an order sua sponte to sever the previously consolidated municipal and law actions. In response, defendants contend that Hein has waived this issue on appeal by failing to object to the trial court’s sua sponte order to sever. It is well established that to preserve a question for review, a party must make an appropriate objection in the trial court. Failure to do so constitutes a waiver of that issue on appeal. (Brown v. Timpte, Inc. (1985), 137 Ill. App. 3d 1053, 485 N.E.2d 488.) This court’s review of the record supports defendants’ contention. Accordingly, Klein has waived this issue for review. However, even if this issue were not waived, Klein’s argument would not provide grounds for reversal.

Klein argues that the trial court had no jurisdiction to enter the sua sponte order and that the order denied Klein’s constitutional right of due process. As support for his position that the trial court lacked jurisdiction to enter a sua sponte order to sever, Klein relies on Johnson v. Miller (1894), 55 Ill. App. 168. However, Johnson does not support Klein’s contention and, in fact, supports a contrary conclusion. The Johnson court defined the test for determining “jurisdiction” as whether the tribunal had power to act, not whether “its methods were regular, its findings right or its conclusions in accordance with the law.” Further, the Johnson court stated that the court’s power to proceed to judgment is not dependent upon the written pleadings of parties. Instead, if the allegations either directly or inferentially show that the parties either sought the judgment or were entitled to it, the judgment would be shielded from collateral attack. (55 Ill. App. at 176.) Thus, Johnson acknowledges that judgments may be entered pursuant to express requests by the parties or by the court’s own determination of entitlement. The propriety of entering a sua sponte order to sever is further supported by Knab v. Alden’s Irving Park, Inc. (1964), 49 Ill. App. 2d 371, 199 N.E.2d 815, in which the court held that when no motion to sever has been made by the parties, the duty devolves upon the trial court to order a severance.

Moreover, section 2 — 1006 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—1006) expressly authorizes a trial court to sever an action “whenever it can be done without prejudice to a substantial right.” The trial court is given broad discretion in making that determination (Galliher v. Holloway (1985), 130 Ill. App. 3d 628, 474 N.E.2d 797; Needy v. Sparks (1977), 51 Ill. App. 3d 350, 366 N.E.2d 327), and it will not be reversed absent evidence of prejudice. (Prince v. Atchison, Topeka & Santa Fe Ry. Co. (1979), 76 Ill. App. 3d 898, 395 N.E.2d 592.) In the present case, Klein’s sole claim of prejudice by the severance action was that he was denied his constitutional rights to due process. In our view, his claim is unfounded. Klein was present at the time the order was entered and had the opportunity to argue against severance or to request a continuance to address the issue. He chose to do neither. Due process guarantees the opportunity to be heard. If a party does not take advantage of that opportunity, he cannot later rely on his failure to act as grounds for reversal. Accordingly, because Klein has failed to show how the trial court’s order severing the consolidated action prejudiced a substantial right, we conclude that the trial court properly entered the order to sever sua sponte.

Klein further argues that the severance order of April 25, 1989, was invalid because at the time it was entered, the DWP order was still in effect. Therefore, there was nothing to sever. Klein’s argument is erroneously predicated on the following sequence in which the trial court listed the adjudications in the April 25,1989, order:

“1. The previously consolidated law action filed by Klein and municipal action filed by Steel City are hereby severed on the court’s motion.
2. The motion of Steel City to vacate the order of 7-20-88 of Dismissal for Want of Prosecution as to the municipal case is granted pursuant to Sec. 2 — 1401.
3. On the request of Carl Klein in open court the order of dismissal as to the law action remains in full force and effect.
4. The municipal cause is hereby transferred to Judge Foreman for all further proceedings.”

Contrary to Klein’s contention, the sequence in which a trial court lists its various adjudications within an order does not affect either the validity of the individual adjudications or the validity of the order itself. (In re S.J.K. (1986), 149 Ill. App. 3d 663, 500 N.E.2d 1146.) Accordingly, we reject Klein’s contention that the adjudication to sever was invalid because it sequentially preceded the adjudication to vacate the DWP order.

In addition, Klein contends that on April 25, 1989, no municipal action existed for the court to sever because, on August 26, 1988, he had paid all of the monetary demands made by defendants in the municipal action. Specifically, count I of defendants’ municipal action asked for $3,679.27 for real estate taxes pursuant to the Lease. Count II asked for $1,700 for the December 1983 rent. Following the DWP order, Klein allegedly paid defendants the $3,679.27 requested under count I and $200 of the amount requested under count II, crediting his $1,500 security deposit against the last month’s rent. Without authority, Klein argues that defendants’ alleged acceptance of this amount “constituted full satisfaction of any and all claims” that defendants had against Klein. Therefore, according to Klein, the municipal action became “null and void” and there remained no municipal action to be severed.

In response, defendants do not dispute the amount paid by Klein, but they argue that that amount does not satisfy the total amount sought under the municipal action because there remained a determination of attorney fees to be awarded to defendants pursuant to the March 10, 1987, order. Therefore, Klein’s payment had not extinguished the claim.

The record supports defendants’ position. After the DWP order was entered, Klein paid the amount claimed by defendants for real estate taxes and rent, crediting himself for the security deposit already paid. However, at the time he made the payment, the question of attorney fees was still before the court. Therefore, monetary claims under the municipal action were pending at the time the April 25,1989, order was entered.

Next, Klein contends that the trial court erred in granting defendants’ section 2 — 1401 motion to vacate the DWP order as to the municipal action. Section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—1401) provides, in pertinent part:

“Relief from judgments, (a) Relief from final orders and judgments, after 30 days from the entry thereof, may be had upon petition as provided in this Section. ***
(b) The petition must be filed in the same proceeding in which the order or judgment was entered but is not a continuation thereof. The petition must be supported by affidavit or other appropriate showing as to matters not of record. All parties to the petition shall be notified as provided by rule.
(c) The petition must be filed not later than 2 years after the entry of the order or judgment.”

The purpose of section 2 — 1401 is to allow a party to bring to the trial court’s attention any facts which, if the trial court had known them at the time of judgment, would have prevented the entry of the judgment. (Fabian v. Norman (1985), 138 Ill. App. 3d 507, 486 N.E.2d 335.) Section 2—1401 relief is addressed to the equitable powers of the trial court and its decision will not be disturbed on review absent a showing of abuse, of discretion. (Fabian v. Norman, 138 Ill. App. 3d 507, 486 N.E.2d 335.) The party seeking section 2 — 1401 relief must establish: (1) the existence of a meritorious defense or claim; (2) due diligence in filing the petition for relief and in presenting the defense in the original action; and (3) the trial court’s misapprehension of the facts or a valid defense, through no fault or negligence of the petitioner, when judgment was entered. Because relief is granted under this section to achieve justice, courts use a liberal construction of the circumstances to achieve that result. Beno v. DeBoer Asphalt Paving Co. (1983), 114 Ill. App. 3d 871, 449 N.E.2d 1021.

In the present case, at the time judgment was entered on the pleadings as to the municipal action on March 10, 1987, the matter was continued to determine the effect, if any, of Klein’s security deposit on the amount of the judgment and a date was set for a hearing on defendants’ motion for attorney fees in the municipal action. Subsequently, on May 24, 1988, the trial court resolved the issue as to the security deposit and set June 21, 1988, for a hearing on attorney fees. The hearing was subsequently continued to July 12, 1988, then to August 30, 1988. While defendants’ motion for attorney fees was pending before Judge Lassers, Judge Sudak entered the DWP order as to case No. 84 — L—27093. In light of the fact that judgment on the pleadings had been entered as to the municipal action, defendants interpreted the DWP order to apply only to the law action, which had also been numbered 84 — L—27093 prior to the consolidation. However, Klein claimed that the DWP order dismissed the consolidated municipal/law action, not just the legal action. When the parties appeared before Judge Lassers on August 30, 1988, for a hearing on defendants’ motion for attorney fees, Klein and defendants argued their positions as to the status of the municipal and law actions. Following their arguments, the trial court stated:

“I will tell you folks, here is my view: I think there are several possibilities here which can have serious consequences for the parties. One, there is the possibility the 84L case only was DWP’s [sic] leaving only the 83 M5 case. Number two, is the possibility that the 84L case and 83 M5 case were DWP’d.
It seems to me that this may depend on the effect of a consolidation order. There is a third possibility, did Judge Sudak have jurisdiction? If not, is the.7/20/88 order void? If so, is the case in the same posture it was? And four, who decides if an order is void?
Now, you know this case has been so hotly contested I am reluctant to make snap rulings here. I think that we ought to take a look at the court file and see what the orders really are. And I think that the parties ought to have an opportunity to do more in the way of research that I can’t do by thumbing through the Annotated Statutes.”

The trial court then continued the cause to September 27, 1988, to determine the posture of the case. Pending the ruling, defendants filed their section 2 — 1401 motion to vacate the DWP order. With respect to the three prerequisites for section 2 — 1401 relief, i.e., meritorious claim, due diligence and the trial court’s misapprehension of the facts, defendants argued that the March 10, 1987, order granting judgment on the pleadings as to the municipal action evidences the existence of their meritorious claim. With respect to their due diligence, defendants asserted that their section 2 — 1401 motion had been presented with due diligence in that they had not learned until August 30, 1988, at the hearing on their motion for attorney fees, that the DWP order had acted to dismiss the municipal action. At that time, an order was entered continuing the cause to September 27, 1988, for a ruling on the posture of the case. Pending the ruling as to the effect of the DWP order on the pending petition for attorney fees in the municipal action, defendants filed their section 2 — 1401 motion. Regarding the trial court’s alleged misapprehension of the facts, defendants argued that because of the confusion as to the status of the law action and the municipal action at the time the DWP order was entered, the trial court entered the order under a misapprehension of the facts.

The section 2 — 1401 prerequisite that the trial court must have misapprehended the facts is not at issue on appeal. Regarding the necessity for a meritorious claim, Klein argues that no claim existed because of his prior payment to defendants. As previously discussed, Klein’s payment did not moot the municipal action. Moreover, in our view, judgment on the pleadings in the municipal action is sufficient evidence of a meritorious claim to satisfy the section 2 — 1401 prerequisite. The principal thrust of Klein’s argument that the trial court erred in granting defendants’ section 2 — 1401 motion is that it was not filed with due diligence. In addressing the element of diligence, courts are primarily concerned with determining whether a party has willfully disregarded the process of the court or is so indifferent to it that he is chargeable with culpable negligence. (Beno v. DeBoer Asphalt Paving Co. (1983), 114 Ill. App. 3d 871, 449 N.E.2d 1021.) The record clearly indicates that defendants had not acted in willful disregard of the court process. Defendants had had judgment entered on their pleadings in the municipal action on March 10, 1987, and had been actively pursuing an attorney fee determination since that date. As evidenced by the. order of July 12, 1988, the hearing on fees was set for August 30, 1988, and a pleading schedule was set regarding the law action, which provided for Klein to file his response to defendants’ motion to strike Klein’s third amended law action by August 9, 1988, and for defendants to reply to Klein’s response by August 23, 1988. There is no order in the record setting up a pretrial conference or a status hearing for July 20, 1988, the date the DWP order was entered. In that regard, we note that none of the parties appeared on July 20, 1988.

When defendants and Klein appeared at the scheduled August 30, 1988, hearing, Klein argued that the DWP order had dismissed the municipal action. Defendants diligently argued against Klein’s position, and the cause was continued to September 27, 1988. On November 4, 1988, pending the trial court’s determination of the posture of the consolidated action, defendants filed a section 2 — 1401 motion to vacate the DWP order as to the municipal action. Based on the actions taken by defendants throughout the trial court proceedings, we find that defendants exercised the necessary due diligence in filing their section 2 — 1401 motion.

Finally, upon review of those cases relied upon by Klein to demonstrate lack of diligence in filing a section 2 — 1401 motion to vacate, we find that they are factually distinguishable and unpersuasive: Shaw v. Carrara (1942), 312 Ill. App. 410, 38 N.E.2d 785 (petition to vacate default judgment filed 34 days after judgment entered failed to show that petitioner had acted with diligence); Elmwood Ford Motors, Inc. v. Mardegan (1963), 42 Ill. App. 2d 342, 192 N.E.2d 445 (defendant failed to make a sufficient showing of a meritorious defense or due diligence); Groves v. Sebastian (1968), 98 Ill. App. 2d 347, 240 N.E.2d 192 (49 days had elapsed since garnishee summons on August 4 without any action by defendant-insurer after undisputed knowledge that defendant-insurer had known of May 20 judgment); Houston v. Churchill (1968), 100 Ill. App. 2d 56, 241 N.E.2d 560 (defendant’s insurer failed to file an appearance and defend, ignored a post-judgment letter, and did not take steps to vacate the judgment until garnishment proceedings were instituted). Accordingly, we find that the trial court properly granted defendants’ section 2 — 1401 motion.

Next, Klein argues that defendants should have been barred from filing any pleadings or maintaining any claim as the result of their alleged failure to comply with Klein’s discovery requests. On February 4, 1988, Klein filed a motion for sanctions against defendants for failure to respond to his discovery requests. At the February 4, 1988, hearing, defendants explained that they had not complied due to their pending motion to strike Klein’s complaint. When the trial court struck only part of Klein’s complaint, defendants stated that they would comply with discovery within 30 days. Accordingly, Klein withdrew his motion for sanctions. Before the 30-day period expired, Klein refiled his motion for sanctions.

In response to Klein’s argument, defendants argue that Klein never noticed up the February 22, 1988, motion for a hearing and, thus, no hearing was held or order entered. In his reply brief, Klein admits that, at the time the DWP order was entered, his February 22, 1988, motion for sanctions had been filed, but not noticed up for a hearing. As a general rule, an issue not presented to or considered by the trial court cannot be raised on appeal. (Jachera v. Blake-Lamb Funeral Homes, Inc. (1989), 189 Ill. App. 3d 281, 545 N.E.2d 314.) For this reason and the absence of relevant legal authority to support his position (Brown v. Tenney (1988), 125 Ill. 2d 348, 532 N.E.2d 230), Klein has waived this issue for review.

Based on the aforementioned, the judgment of the trial court is affirmed.

Affirmed and remanded.

MANNING, P.J., and O’CONNOR, J., concur.

      It is unclear as to whether the DWP order referred to the consolidated action or to only Klein’s law action.


source: Caselaw Access Project

author: JUSTICE COCCIA

license: Public Domain

text:
    LEOCO, S.A., et al., Plaintiffs-Appellants, v. CARIBE CROWN, INC., et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—89—2025
    Opinion filed March 26, 1991.
    Rehearing denied May 8, 1991.

      Paul S. Anderson, of Sonnenberg, Anderson, O’Donnell & Rodriguez, of Chicago, for appellants.
    Botti, Marinaccio, DeSalvo & Tameling, Ltd., of Chicago (Aldo E. Botti and Howard R. Wertz, of counsel), for appellees.
   JUSTICE COCCIA

delivered the opinion of the court:

Plaintiffs Leoco, S.A., Lincoln Diversified Systems, Inc., and A.E. Fegan, Jr., appeal from a circuit order denying their motion for sanctions and fees under section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—611). The motion sought to sanction defendants Caribe Crown, Inc., and Gerald Márchese, for filing a section 2 — 611 motion without grounds.

In 1984, plaintiffs filed a first amended complaint alleging tortious interference with prospective economic advantage and contractual interference. On January 28, 1987, the court denied defendants’ motion for summary judgment. On December 18, 1987, plaintiffs voluntarily dismissed the case.

On January 19, 1988, defendants filed a section 2 — 611 motion for attorney fees and costs. Defendants’ motion alleged that plaintiffs’ complaint contained untrue allegations of fact; that the intent of the pleading was to harass and penalize defendants; and that plaintiff Fegan contacted potential defense witnesses and threatened them with physical harm, injury and death if they helped the defense.

A July 1988 evidentiary hearing was held, following which the court denied defendant’s motion. The court stated:

“This Court will not be used as a whipping post for a litigant. I find that the 2 — 611 motion that was brought [by defendants] was highly improper to be brought, that you should not have brought this motion.
* * *
I find no foundation for this motion whatsoever. It’s denied.”

The court ruled that not one of the required points for a section 2— 611 motion had been met.

On August 19, 1988, plaintiffs filed their section 2 — 611 motion for attorney fees and costs, which is the motion at issue in this appeal.

Plaintiffs’ motion alleges that defendants’ section 2 — 611 motion was not well-grounded in fact or law, and was filed for purposes of harassment. The court subsequently denied plaintiffs’ motion. At a hearing on the motion for reconsideration, the court stated that it denied the motion on the basis that it did not “know of any authority for a sanction — a 2 — 611 on a 2 — 611.” The court declined to go into the specific facts underlying plaintiffs’ motion until a higher court decided whether the law permitted the imposition of sanctions for the groundless filing of a section 2 — 611 motion. “There was no necessity for me to go any further in your motion to ferret out what was said, who said what, if there was a reasonable basis for it, if it was converted to existing law, et cetera, et cetera. I didn’t do that and I think I made it clear to you last time. I asked that question during oral argument: Is there any basis for 2 — 611 on 2 — 611?”

On appeal, plaintiffs contend that, where a party moves for section 2 — 611 sanctions without any basis in law or fact, the court may impose section 2 — 611 sanctions against the moving party. We agree.

Section 2 — 611 of the Illinois Code of Civil Procedure, which was substantially amended effective November 25, 1986, is nearly identical to Rule 11 of the Federal Rules of Civil Procedure. (See Ill. Ann. Stat., ch. 110, par. 2—611, Supplement to Historical & Practice Notes, at 23 (Smith-Hurd Supp. 1990); Schmitz v. Campbell-Mithun, Inc., (N.D. Ill. June 29, 1989), No. 88—C—2314.) In the absence of any Illinois cases interpreting this question, therefore, we will consider Federal cases interpreting the issue of imposing sanctions for the opposing party’s improper filing of a Rule 11 motion for sanctions. See Schmitz v. Campbell-Mithun, Inc. (N.D. Ill. June 29, 1989), No. 88—C—2314 (courts should look to Federal precedent for guidance in applying section 2 — 611), citing Frisch Contracting Service Co. v. Personnel Protection, Inc. (1987), 158 Ill. App. 3d 218, 224, 511 N.E.2d 831, 835-36; Chicago Title & Trust Co. v. Anderson (1988), 177 Ill. App. 3d 615, 532 N.E.2d 595 (section 2—611 nearly identical to Rule 11, and therefore court looks to Federal precedent for guidance in application of section 2—611).

Most significantly, every Federal court which has addressed the issue has held that Rule 11 motions are properly subject to the provisions of Rule 11.

See Traina v. United States (5th Cir. 1990), 911 F.2d 1155 (affirming imposition of sanctions for frivolous sanctions motion); Foy v. First National Bank (7th Cir. 1989), 868 F.2d 251 (a frivolous request for sanctions is itself sanctionable); Roberts v. Peat, Marwick, Mitchell & Co. (9th Cir. 1988), 857 F.2d 646, 654 (Rule 11 should not itself become a retaliatory device); Lebovitz v. Miller (7th Cir. 1988), 856 F.2d 902, 907 n.6 (court notes magistrate’s finding that defendant’s sanctions motion not so thinly based as to warrant sanctions against him); Meeks v. Jewel Cos. (7th Cir. 1988), 845 F.2d 1421 (under Rule 38, Rule ll’s counterpart for appeals, any frivolous motion, pleading or request is subject to sanctions, including a motion or request for sanctions); Local 106, Service Employees International Union v. Homewood Memorial Gardens, Inc. (7th Cir. 1988), 838 F.2d 958, 961 (unwarranted motion for Rule 11 sanctions is itself sanctionable); In re Central Ice Cream Co. (7th Cir. 1987), 836 F.2d 1068, 1073 (noting that district court held that request for sanctions under Rule 11 was itself “sanctionably frivolous”); Gaiardo v. Ethyl Corp. (3d Cir. 1987), 835 F.2d 479, 484-85 (court may impose sanctions when Rule 11 is invoked for improper purpose such as additional tactic of intimidation and harassment); Bergeson v. Dilworth (D. Kan. Dec. 12, 1990), No. 87—1579—T (court warns that case is close to “forbidden territories” where Rule 11 motion itself may be basis for sanctions); Ophir v. Goldstein (S.D. N.Y. Oct. 10, 1990), No. 86 Civ. 2963 (magistrate recommends sanctions for a frivolous sanctions motion); Eldon Industries, Inc. v. Rubbermaid, Inc. (N.D. Ill. 1990), 735 F. Supp. 786, 795 (defendants’ motion for sanctions itself violated Rule 11); Colby v. J.C. Penney Co. (N.D. Ill. 1989), 127 F.R.D. 509 (court imposes sanctions due to repeated, groundless requests for sanctions); Lewandoski v. Two Rivers Public School District (E.D. Wis. 1989), 711 F. Supp. 1486 (Rule 11 sanctions can be imposed on parties and attorneys who make frivolous motions for Rule 11 sanctions); Schmitz v. Campbell-Mithun, Inc. (N.D. Ill. June 29, 1989), No. 88—C—2314 (sanctions request was sanctionable); Quaker Oats Co. v. Uni-Pak Film Systems, Inc. (N.D. Ill. 1987), 683 F. Supp. 1186 (court states that if Rule 11 motion is not warranted by existing law and fact, appropriate sanctions may be assessed, warning that “counsel would do well to choose their Rule 11 battles with more care”); Williams v. Whitmill (N.D. Ill. Aug. 12, 1986), No. 84—C—4910 (sanctions motion may be subject to provisions of rule permitting sanctions); Harris v. WGN Continental Broadcasting Co. (N.D. Ill. 1986), 650 F. Supp. 568 (Rule 11 motion which is not well-grounded in fact or law may result in imposition of sanctions against moving party).

This rule is consistent with the underlying purpose of both Rule 11 and section 2 — 611, which is to sanction groundless litigation proceedings. See McMahon v. Shearson/American Express, Inc. (2d Cir. 1990), 896 F.2d 17 (litigant should think twice before tiling sanctions motion as reflex response, since the very purpose of Rule 11 is to eliminate baseless litigation).

Based on this authority, we conclude that section 2 — 611 motions which are filed with no foundation in fact and are unwarranted by law may result in the imposition of sanctions against the moving party. In determining whether section 2 — 611 sanctions should be imposed for the groundless filing of a section 2 — 611 motion, the' court should use the same standards and factors used in deciding any section 2 — 611 motion. We therefore remand this case to the trial court with directions to consider the merits of plaintiffs’ section 2 — 611 motion. In so holding, we do not intend to indicate in any way whether or not plaintiffs’ motion has any validity.

Defendants make various arguments before this court, all of which we find unpersuasive. For example, defendants contend the appeal should be dismissed because one transcript is missing from the record and another is uncertified. Apparently no transcript exists for the hearing in question, as no court reporter was present. As to the other transcript, there is in fact a certified copy in the record.

Defendants point out that plaintiffs did receive partial relief when the trial court granted expenses under Supreme Court Rule 237(b). (134 Ill. 2d R. 237(b).) Under the facts before us here, the record does not show that the Rule 237(b) expenses were considered as part of the section 2 — 611 motion, and that ruling did not affect the trial court’s determination that the section 2 — 611 motion could not be considered on its merits as a matter of law.

Defendants contend the trial court had no jurisdiction over this matter because defendants’ own section 2 — 611 motion was filed more than 30 days after the order granting plaintiffs’ motion for voluntary nonsuit and dismissal. In considering the intervening Sunday and court holiday, however, defendants’ motion was timely filed and thus jurisdiction here was proper. Ill. Rev. Stat. 1987, ch. 110, par. 2—1203.

Finally, we are unpersuaded by defendants’ contention that plaintiffs’ motion was untimely because under Supreme Court Rule 182(c) a motion “attacking a pleading other than the complaint must be filed within 21 days after the last day allowed for the filing of the pleading attacked.” (134 Ill. 2d R. 182(c).) We find nothing in the law indicating that Rule 182(c) extends to a request for sanctions which, in effect, always attacks the pleader, not the pleading itself.

For the foregoing reasons, the judgment of the circuit court is reversed and the cause is remanded for further proceedings in accordance with the holdings contained herein.

Reversed and remanded with directions.

HARTMAN and DiVITO, JJ., concur.

      We note that section 2 — 611 was repealed as of August 10,1990.


author: PRESIDING JUSTICE JIGANTI

text:
    J. WILLIAM HOLLAND, Trustee in Bankruptcy for the Estate of American Reserve Corporation, Plaintiff-Appellant, v. ARTHUR ANDERSEN AND COMPANY, Defendant-Appellee.
    First District (4th Division)
    No. 1—90—0949
    Opinion filed March 28, 1991.
    Rehearing denied May 10, 1991.

      Ross & Hardies and Beigel & Sandler, Ltd., both of Chicago (William P. O’Keefe, Jr., Jeffery M. Cross, Leslie D. Locke, Herbert Beigel, and PhilipFertik, of counsel), for appellant.

      Burke, Wilson & Mcllvaine, of Chicago (Charles W. Boand, Robert F. Forrer, Quintín F. Seamons, and Christopher C. Dickinson, of counsel), for appellee.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiff, J. William Holland, trustee in bankruptcy for the estate of American Reserve Corporation (ARC), appeals from a summary judgment order entered in favor of the defendant, Arthur Andersen & Co. On appeal, the plaintiff contends that the circuit court erred in granting the defendant’s summary judgment motion because there remains a genuine issue of material fact as to the existence of any damages sustained by ARC.

This is the second time this case has come before this court. In the first appeal, the plaintiff sought reversal of a circuit court order dismissing the plaintiff’s complaint for failure to state a cause of action. On appeal this court reversed the circuit court on five of the six counts of the complaint and ruled that as of the pleading stage of the litigation, ARC had standing to assert the causes of action alleged in its complaint. (Holland v. Arthur Andersen & Co. (1984), 127 Ill. App. 3d 854, 469 N.E.2d 419.) As of the instant appeal, the parties have moved beyond the pleading stage of the litigation to a determination of whether the plaintiff has come forward with evidence of damages to ARC such that there is a genuine issue of material fact under which the parties may advance to a full trial. We do not believe that there exists a genuine issue of material fact as to damages. We therefore affirm the ruling of the trial court.

American Reserve Corporation (ARC) is a bankrupt holding company. Two of ARC’s subsidiaries, American Reserve Insurance Company and Reserve Insurance Company, property and casualty insurance companies, were declared insolvent, placed in receivership, and finally liquidated in 1979. Another ARC insurance subsidiary, Market Insurance Company, was placed into rehabilitation and also subsequently liquidated. In 1980, ARC filed for chapter 11 reorganization. The reorganization proceeding was converted to a chapter 7 liquidation proceeding and J. William Holland was appointed as trustee.

As trustee in bankruptcy for ARC, J. William Holland brought suit in 1982 in the circuit court of Cook County against the defendant, Arthur Andersen & Co., ARC’s former accountant. The plaintiff alleged that misleading financial statements and unqualified opinions issued by the defendant about ARC’s financial condition had damaged ARC. The complaint contained six counts of common law fraud and breach of contract alleged against the defendant. Arthur Andersen moved to dismiss the complaint for failure to state a cause of action. (Ill. Rev. Stat. 1983, ch. 110, par. 2— 615.) The circuit court granted the defendant’s section 2 — 615 motion, and the plaintiff appealed the dismissal to this court in Holland v. Arthur Andersen & Co. (127 Ill. App. 3d 854, 469 N.E.2d 419). As noted above, this court reversed the circuit court on five counts, affirmed the court on one count and remanded the case to the trial court.

As part of the appeal in Holland v. Andersen, it was necessary for this court .to consider whether the trustee, J. William Holland, had standing to assert the causes of action outlined in the complaint. Arthur Andersen argued that the claims the plaintiff was seeking to bring were claims which in fact belonged to third-party creditors and shareholders, for which the plaintiff lacked standing to sue. This court determined that as of the pleading stage of the litigation, the plaintiff’s allegations that various members of ARC, its “audit committee, investors, creditors and others,” were prevented from taking action on behalf of ARC because of Andersen’s misconduct, were sufficient to maintain a cause of action belonging to ARC. Holland v. Andersen, 127 Ill. App. 3d at 862, 469 N.E.2d at 424.

In 1985, the plaintiff refiled its complaint. The refiled complaint is identical to the original complaint except for the omission of the one count whose dismissal this court upheld in Holland v. Andersen. In the complaint, the plaintiff asserted that the defendant was liable to ARC in that had ARC’s audit committee, investors, creditors, and others relying on Andersen’s opinion, known the true financial disposition of ARC, they could have, among other things, replaced management personnel, sought independent actuarial counseling, instituted procedures to prevent ARC’s subsidiaries from becoming insolvent, sought additional capital to eliminate the insolvency of ARC or any of its insolvent subsidiaries, and prevented ARC from engaging in further bad business or encumbering further debt. The plaintiff further alleged that ARC was damaged as a result of Andersen’s actions because ARC’s principal insurance subsidiaries ultimately were liquidated and ARC lost substantial assets. The plaintiff subsequently characterized the pleadings as in part setting forth a theory of ARC’s “deepening insolvency.”

In response to the plaintiff’s refiled complaint, the defendant filed an answer denying each allegation of injury to ARC. The defendant also propounded interrogatories to the plaintiff. Defendant’s interrogatory No. 3 requested the plaintiff to respond as follows:

“Describe each category of damages you contend ARC sustained as a result of the liquidation of Reserve and of each of its subsidiaries, and state the amount of damages as to each such category. Include a detailed description of the method by which each category of damages was determined or calculated and set forth the calculation as to each category.”

In answer to interrogatory No. 3, the plaintiff responded:

“The subject-matter of the interrogatory is limited by its terms to damages ‘ARC sustained as a result of the liquidation of Reserve and each of its subsidiaries.’ Plaintiff does not contend that ARC’s damages resulted solely from the ‘liquidation’ of Reserve per se. As Trustee in Bankruptcy of the Estate of ARC, plaintiff brought this action expressly on behalf of the Estate for the benefit of its creditors and understands the damages to each creditor to be based in part on the loss such creditor suffered as a result of the events leading up to and including the collapse and liquidation of Reserve.”

The plaintiff went on to note three categories of ARC creditors as damaged: several banking institutions by name, holders of subordinated debentures, and trade creditors. The plaintiff stated that further investigation and analysis might reveal further damages, and also objected to the interrogatory on the basis that the plaintiff had not consulted a damages expert. The plaintiff reserved the right to do so. The plaintiff also stated that the answer to interrogatory No. 3 was incomplete in that not all of the information necessary was “known, determined or calculated” at the time of the plaintiff’s response.

The defendant moved for a summary judgment on the basis that the plaintiff had failed to establish any genuine issue of material fact as to the existence of any compensable damages suffered by American Reserve Corporation. In support of the motion, the defendant referred to the plaintiff’s answer to interrogatory No. 3 and argued that the only damages claimed by the plaintiff were those of ARC’s creditors, claims for which ARC had no standing to pursue.

The plaintiff’s response to the defendant’s summary judgment motion rested on the allegations of the refiled complaint, the answers to the defendant’s interrogatories, and copies of proofs of claims filed against ARC in bankruptcy court by La Salle National Bank and The Bank of California. La Salle National Bank alleged that ARC was indebted to La Salle in the sum of $3,567,262. The Bank of California alleged an ARC debt in the amount of $2,234,426. The indebtedness to each of the institutions arose as a result of the issuance and sale by ARC in September of 1977 of certain of its notes. As one of the events leading up to ARC’s default of payment, the banks noted the “false and misleading representation and statements in material respects, made by certain persons in connection with the issuance” of the notes. Following a hearing on the motion, the circuit court granted summary judgment in favor of the defendant. The plaintiff follows with this appeal.

The plaintiff’s first argument is that our prior ruling on the issue of ARC’s standing to sue in Holland v. Andersen (1984), 127 Ill. App. 3d 854, 469 N.E.2d 419, precludes a finding of summary judgment in favor of the defendant. We disagree. We do not view the defendant’s motion for summary judgment as raising a purported failure of the plaintiff to plead damages in the complaint as the plaintiff argues. We view the defendant’s summary judgment motion as an assertion, not of a defect in the pleadings, but rather, an argument that the plaintiff has failed to present any evidence of damages to ARC. This is not the same issue that we addressed in our prior ruling in Holland v. Andersen.

In the prior proceeding, Andersen, through a section 2 — 615 motion to dismiss, attacked the legal sufficiency of the plaintiff’s complaint. (See Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 312 N.E.2d 605.) This court determined that at that “stage of the litigation,” ARC’s allegations were sufficient to maintain causes of action belonging to ARC. (Holland v. Andersen, 127 Ill. App. 3d at 862, 469 N.E.2d at 424.) Upon reaching the summary judgment stage of these proceedings, we have moved beyond an examination of the sufficiency of the pleadings to a determination of whether there are any material issues of fact to advance to a full trial. (Loyola Academy v. S&S Roof Maintenance, Inc. (1990), 198 Ill. App. 3d 799, 556 N.E.2d 586, leave to appeal granted (1990), 133 Ill. 2d 559, 561 N.E.2d 693, citing Janes v. First Federal Savings & Loan Association, 57 Ill. 2d 398, 312 N.E.2d 605.) For the reasons outlined below, we believe that there are not. The plaintiff has failed to sufficiently contradict the factual basis for the defendant’s motion for summary judgment. We must conclude that the plaintiff lacks the evidence to support the element of damages, an element essential to his case.

The plaintiff argues that in moving for a summary judgment, the defendant must set forth evidentiary facts which avoid every theory of recovery in the complaint (Harris v. Bethlehem Steel Corp. (1984), 124 Ill. App. 3d 449, 464 N.E.2d 634), and that in the present case the defendant has failed to negate the material issue of damages raised in the plaintiff’s pleadings. The plaintiff asserts that the defendant’s fact support for the summary judgment motion, interrogatory No. 3, did not address all of the damage theories the plaintiff has pleaded. Quoting from interrogatory No. 3, the plaintiff maintains that the interrogatory was limited to “damages *** ‘ARC sustained as a result of the liquidation of Reserve.’ ” According to the plaintiff, the defendant has specifically failed to overcome the plaintiff’s theory that ARC’s own insolvency was deepened due to the defendant’s fraud. Under the plaintiff’s theory of deepening insolvency, ARC continued to sustain loss and incur debt it could have avoided had it known its true financial condition.

The plaintiff’s further argument is that in order to support the summary judgment motion, the defendant must do more than simply point out deficiencies in the plaintiff’s answer to an interrogatory. (Komater v. Kenton Court Associates (1986), 151 Ill. App. 3d 632, 502 N.E.2d 1295.) The defendant must set forth well-pleaded facts and supporting affidavits clearly establishing his right to judgment as a matter of law. The plaintiff also maintains that the response to interrogatory No. 3 actually contradicts the defendant’s argument that ARC suffered no damages because the answer to the interrogatory is expressly incomplete. The plaintiff points to those portions of the response in which the plaintiff stated: “Plaintiff does not represent or imply that his work on damages calculations and proof is complete. *** Plaintiff reserves his right to *** revise his damages theories in light of all pertinent facts and opinions. *** There may be additional elements of damages, which further investigation and analysis may reveal."

Finally, the plaintiff argues that even if the only damages pleaded are those damages suffered by ARC’s creditors, the plaintiff has standing to pursue those claims, and therefore summary judgment in favor of the defendant was improper. We believe that the trial court properly granted the defendant’s motion for summary judgment. In response to interrogatory No. 3, the plaintiff asserted claims of ARC creditors. We do not believe that the plaintiff may pursue the creditors’ claims as those claims are personal to the creditors. As the plaintiff has failed to identify any other damage to ARC, summary judgment is in order.

The plaintiff’s failure to provide any evidence of a material issue of fact as to damages to ARC goes beyond a mere deficiency in its interrogatory response. The plaintiff has failed to provide any support for what is a central and necessary element of its case. (See Estate of Henderson v. W.R. Grace Co. (1989), 185 Ill. App. 3d 523, 541 N.E.2d 805.) Upon the defendant’s motion for summary judgment, the plaintiff has an affirmative duty to bring forth all facts and evidence that satisfy his burden of proving the existence of a cognizable cause of action. (Golden v. Marshall Field & Co. (1985), 134 Ill. App. 3d 100, 479 N.E.2d 1211.) While the plaintiff need not prove his case at this stage of the litigation, he must at least come forward with enough evidence to create a genuine issue of material fact. Estate of Henderson, 185 Ill. App. 3d 523, 541 N.E.2d 805.

We believe it is clear from the defendant’s interrogatory No. 3 that the focus of the defendant’s discovery was any legally cognizable damages to the plaintiff. In response to the interrogatory, the plaintiff identified only damages suffered by three classes of ARC creditors. Moreover, in neither the plaintiff’s memorandum in opposition to the defendant’s motion, nor in response to the questioning of the circuit court during the hearing on the motion, did the plaintiff provide any further support for a theory of damages as to ARC. The copies of proofs of claims that La Salle Bank and The Bank of California have filed in bankruptcy court serve only to underscore the fact that these individual creditors have personal claims against ARC.

Further, we are not persuaded by the plaintiff’s theory of ARC’s deepening insolvency. In its opposition to the summary judgment memorandum, the plaintiff explained the “deepening insolvency” of ARC as follows: “The concealment of the deepened insolvency of ARC, and the deepened insolvency itself, resulting from Andersen’s fraud, caused harm to ARC because, inter alia, its creditors, instead of taking action to save ARC (and thus their own loans), extended credit as late as September 1977, long after the actual date of insolvency.” While the deepening insolvency theory may be one the courts have recognized (see Schacht v. Brown (7th Cir. 1983), 711 F.2d 1343, cert. denied (1983), 464 U.S. 1002, 78 L. Ed. 2d 698, 104 S. Ct. 508), the plaintiff’s version of the theory appears to be no more than a restatement in different terms of the injuries suffered by ARC’s creditors.

We also do not believe that the plaintiff can avoid a motion for summary judgment by alleging, as it did in response to interrogatory No. 3, that further evidence might be forthcoming, or that the testimony of an expert in damages might add to the plaintiff’s response. The purpose of the summary judgment procedure is to avoid the needless expense and time of a full trial where there is no showing that the plaintiff has even a prima facie case. (Kimbrough v. Jewel Companies, Inc. (1981), 92 Ill. App. 3d 813, 416 N.E.2d 328.) In the present case, the defendant’s interrogatories were propounded to the plaintiff eight years after the original complaint was filed. The plaintiff never asked for additional time for discovery on the issue of damages. The time for the plaintiff to establish the damages element of his case was at hand. To allow the plaintiff to avoid the summary judgment stage of these proceedings by alluding to some vague and possible future evidence would be contrary to the purposes of a summary judgment motion. See Smalling v. LaSalle National Bank (1982), 104 Ill. App. 3d 894, 433 N.E.2d 713.

We also reject the plaintiff’s alternative argument that even if the only damages the plaintiff has pleaded are damages ARC’S creditors have suffered, the plaintiff, because he has standing to bring the creditors’ claims, has withstood the summary judgment challenge. The plaintiff does not dispute that a trustee in bankruptcy does not have standing to bring the “personal” claims of creditors: those causes of action where “the claimant himself is harmed and no other claimant or creditor has an interest in the cause.” (Koch Refining v. Farmers Union Central Exchange, Inc. (7th Cir. 1987), 831 F.2d 1339, 1348, cert. denied (1988), 485 U.S. 906, 99 L. Ed. 2d 237, 108 S. Ct. 1077.) The plaintiff argues that the creditors’ claims he seeks to bring in the present case are in the nature of “general” claims, those in which the liability is to all creditors without regard to the personal dealings of each.

For support, the plaintiff cites to cases in which bankruptcy trustees were held to have standing to prosecute creditors’ claims. (Koch Refining v. Farmers Union Central Exchange, Inc. (7th Cir. 1987), 831 F.2d 1339; In re Kaiser (7th Cir. 1986), 791 F.2d 73, cert. denied (1986), 479 U.S. 1011, 93 L. Ed. 2d 710, 107 S. Ct. 655; In re MortgageAmerica Corp. (5th Cir. 1983), 714 F.2d 1266.) By the plaintiff’s own admission, these cases involved either the fraudulent conveyance of an entity’s assets wherein the trustee is empowered by statute to assert the creditors’ claims or situations in which the trustee on behalf of the creditors pierced the corporate veil to retrieve assets to be rightfully distributed amongst the creditors in general. These are not the circumstances of this case.

We accept the plaintiff’s distinction between personal and general claims of creditors. However, we believe that in the present case the plaintiff’s proof of damages goes only to creditors’ claims properly classified as personal. This case presents a situation similar to that in Begier v. Price Waterhouse (E.D. Pa. 1987), 81 Bankr. 303. In Be gier, a trustee brought an action against the debtor’s former accountant alleging that creditors had been injured when they relied on financial statements and unqualified opinions of the debtor’s accountants in making financial decisions. The Eastern District Court of Pennsylvania ruled that the creditors’ claims were personal to the creditors, requiring proof that each creditor received and relied on the information prepared by the defendant.

In the present case, the plaintiff has made allegations similar to those of the Begier trustee. The plaintiff has provided proofs of claims submitted by La Salle Bank and The Bank of California. These proofs indicate that ARC was indebted to two distinct institutions for two distinct amounts, claims that would require proof as to each creditor. We believe that the claims of these banks are personal in nature and not of the general type which the plaintiff is entitled to bring. In its answer to interrogatory No. 3, the plaintiff asserted that the damages for each of the three categories of creditors noted in its response were based on the amounts set forth in the proofs of claim filed by those creditors in ARC’s bankruptcy proceedings. We have no reason to believe that the nature of these claims is different from the proofs of claims submitted by La Salle Bank and The Bank of California. In Holland v. Andersen (127 Ill. App. 3d 854, 469 N.E.2d 419), we stated that a liquidation trustee may pursue only those claims which belong to the estate of the debtor corporation. The only damages for which the plaintiff has provided evidence are those claims which belong personally to the creditors. As such, we believe that the circuit court properly granted the defendant’s summary judgment motion. The circuit court’s order is affirmed.

Affirmed.

JOHNSON and LINN, JJ., concur.


text:
    LEO D. ALLEN, Plaintiff, v. INTERNATIONAL HARVESTER COMPANY et al., Defendants and Third-Party Plaintiffs-Appellants (Van Craft Industries, Inc., et al., Third-Party Defendants-Appellees).
    First District (4th Division)
    No. 1—90—1825
    Opinion filed March 28, 1991.
    Rehearing denied May 8, 1991.

      Arnstein & Lehr, of Chicago (Louis A. Lehr, Jr., Arthur L. Klein, and John T. Wagener, of counsel), for appellant Navistar International Transportation Corporation.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Steven M. Puiszis, and Bruce L. Carmen, of counsel), for appellee Freight Consolidation Services, Inc.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

Navistar International Transportation Corporation, successor in interest to International Harvester Company, filed a third-party action to enforce a contractual indemnity provision between it and third-party defendant, Freight Consolidation Services, Inc. (FCS). Navistar sought to enforce the indemnity agreement following a lawsuit filed against it by one of FCS’s employees who was injured while loading freight into an International Harvester trailer. FCS filed a motion to dismiss Navistar’s complaint, arguing that the occurrence that formed the basis for the underlying negligence suit brought by FCS’s employee was not within the scope of the indemnity agreement. The trial court dismissed Navistar’s complaint and Navistar follows with this appeal.

The plaintiff in the underlying action, Leo Allen, was an employee of Freight Consolidation Services, Inc. In his complaint, Allen alleged he was injured at the FCS freight terminal while loading freight into a trailer supplied by International Harvester. Allen alleged that at the time of the injury he was using a forklift truck to load pallets of freight into the trailer. Affixed to the interior walls of the trailer were devices known as decks. The decks could be lowered and raised by a chain and latch to accommodate the loading of freight onto them. As Allen pulled the chain of one of the decks to position it for loading, the latch gave way and the deck fell onto him. Allen asserted that his injury was the proximate result of International Harvester having equipped or maintained the deck with a defective latch; failing to inspect the proper working order of the deck and latch or doing so carelessly and negligently; and improperly maintaining the deck and latch.

The work that Allen was performing at the time he was injured was being done pursuant to a freight consolidation contract between Navistar’s predecessor in interest, International Harvester, and FCS. Under the terms of the freight consolidation agreement, FCS agreed to consolidate, store, handle, and distribute International Harvester’s freight in the FCS terminal. As the shipper, International Harvester was to have sole control of all transportation used in conjunction with FCS’s services and the right to designate and redesignate the carrier or carriers used to transport the freight. The trailer involved in plaintiff Allen’s injury had been leased by International Harvester from Ryder Truck Rental, Inc., a codefendant in the underlying suit.

Also under the terms of the consolidation agreement between International Harvester and FCS, FCS agreed to an indemnity clause which reads in pertinent part as follows:

“Consolidator, [FCS], shall protect, indemnify, hold and save harmless the Shipper [International Harvester], *** against all claims *** and expenses of whatsoever nature for loss or damage to property of, or for injury or death to, any person or persons, (including the person and property of [International Harvester] and/or [FCS] and/or the person or property of their respective employees *** and all other persons) resulting in any manner, directly or indirectly, from the services to be performed hereunder by [FCS], its employees, agents, *** and regardless of whether said loss, damage, injury, or death shall be caused by the negligence of [International Harvester].”

In its third-party complaint, Navistar alleged that if Allen was successful in securing a judgment against Navistar, then the language of the indemnity clause of the freight consolidation agreement required FCS to indemnify Navistar for the judgment.

FCS moved to dismiss Navistar’s complaint, arguing in pertinent part that under the standard enunciated in Westinghouse Electric Elevator Co. v. La Salle Monroe Building Corp. (1946), 395 Ill. 429, 70 N.E.2d 604, the indemnity agreement between International Harvester and FCS did not provide clearly and unambiguously for the circumstances under which plaintiff Allen was injured. FCS argued that Allen’s injury arose out of his contact with defective equipment, a risk it alleged was not contemplated under the terms of the indemnity agreement. FCS characterized plaintiff Allen’s activity at the time of his injury as mere presence in the Navistar trailer. Citing to Burlington Northern R.R. Co. v. Pawnee Motor Service, Inc. (1988), 171 Ill. App. 3d 1043, 525 N.E.2d 910, FCS argued that because the contractual language in the indemnity agreement did not at the least specify the “mere physical presence” of the injured employee on Navistar’s property, Navistar could not in this case enforce the indemnity contract. The trial court granted FCS’s motion to dismiss and Navistar follows with this appeal.

We believe that the trial court erred in dismissing Navistar’s claim for indemnity against FCS. In interpreting a contract for indemnity, the courts must give the agreement a fair and reasonable interpretation based upon a consideration of the agreement as a whole. (Smart v. International Harvester Co. (1975), 33 Ill. App. 3d 241, 337 N.E.2d 68.) While the indemnity provision must be strictly construed (Owens v. Midwest Tank & Manufacturing Co. (1989), 192 Ill. App. 3d 1039, 549 N.E.2d 774), each case also depends upon the language and facts of that particular case. Bearing these standards in mind, we believe that the scope of the indemnity agreement between Navistar and FCS clearly embraces the circumstances which allegedly caused the injury to plaintiff Allen. See Westinghouse Electric Elevator Co. v. LaSalle Monroe Building Corp. (1946), 395 Ill. 429, 70 N.E.2d 604; Burlington Northern R.R. Co. v. Pawnee Motor Service, Inc. (1988), 171 Ill. App. 3d 1043, 525 N.E.2d 910.

The parties do not disagree that the indemnity agreement provides for instances in which FCS would be obligated to indemnify Navistar for Navistar’s own negligence. Nor do they dispute that Allen in his suit against Navistar intends to allege a cause of action in negligence. It is FCS’s argument that any negligence in the present case arose not out of the performance of the consolidated freight contract per se, but resulted rather from Navistar’s negligence in maintaining its equipment, a circumstance FCS asserts was not contemplated by the indemnity agreement. FCS characterizes Allen’s status at the time of the injury as one of “mere physical presence” in the International Harvester trailer, a situation not specifically covered under the terms of the indemnity agreement.

This case presents an issue similar to the issue addressed by the court in Burlington Northern R.R. Co. v. Pawnee Motor Service, Inc., 171 Ill. App. 3d 1043, 525 N.E.2d 910. Accepting the fact that the indemnity agreement provides for FCS to indemnify Navistar even in cases of Navistar’s own negligence, the question becomes what limitations, if any, are imposed on Navistar’s acts of negligence.

In Burlington, the injury to the indemnitor Pawnee’s employee occurred when the employee was on the indemnitee Burlington’s premises for the purpose of picking up a tractor-trailer pursuant to an agreement between Pawnee and Burlington. While conducting a required inspection of the vehicle, the employee fell into a hole and suffered injuries. The court determined that the negligence alleged by Pawnee’s employee against Burlington was covered by an indemnity agreement between Burlington and Pawnee that specified that Pawnee was to indemnify Burlington for occurrences involving Burlington’s own negligence. The Burlington court pointed out that the scope of the agreement included, as part of those general circumstances triggering Pawnee’s duty to indemnify, acts caused by reason of the presence of Pawnee’s employees on Burlington property.

The court also reasoned, however, in response to Pawnee’s argument that the agreement failed to specify “defects in the premises” that the case of Westinghouse Electric Elevator Co. v. La Salle Monroe Building Corp. (395 Ill. 429, 70 N.E.2d 604), did not stand for the proposition that in order to be effective, an indemnity provision must state the specific acts of negligence to be covered. The Burlington court concluded that Westinghouse stands for the general rule that where the parties intend that the indemnity agreement will encompass the indemnitee’s own negligence, the language so stating must be clear and unequivocal, a condition the Burlington court determined had been met in the case before it.

Like the court in Burlington, we do not believe that the holding in Westinghouse requires that in order to be effective an indemnity agreement must specify the cause of the injury. We therefore do not accept the suggestion in FCS’s argument that the agreement between Navistar and FCS is not enforceable in this case because the agreement addressed only injury caused by Navistar’s negligence and not injury caused by Navistar’s negligence in maintaining its equipment.

We also do not believe, as FCS argues, that to be effective in this case the agreement must have at least contained a reference to the injured’s physical presence on the indemnitee’s property. In support of this argument, FCS relies heavily on the case of Smart v. International Harvester Co. (1975), 33 Ill. App. 3d 241, 337 N.E.2d 68, a case in which the indemnity agreement under scrutiny contained neither an express covenant to indemnify against the indemnitee’s own negligence, nor a provision covering the injured’s “mere physical presence” on the indemnitee’s property. (See Smart v. International Harvester Co., 33 Ill. App. 3d at 245, 337 N.E.2d at 71.) The agreement in Smart did address itself to injuries growing out of the acts of a party in connection with the performance of the work contemplated in the contract. The Smart court determined, however, that this language was insufficient to cover an injury that resulted from the indemnitee’s operation of a conveyor system on which construction was not yet complete. The injured plaintiff in the case was an employee of the construction company indemnitor. He was injured when an object fell off of the overhead conveyor striking him. The court in Smart concluded that a fair and reasonable interpretation of the indemnity provision in question demonstrated that the parties intended that the act causing the injury be directly connected with and a part of the construction contract work being performed by the indemnitor.

In the present case, in addition to the clear and unambiguous language whereby FCS agreed to indemnify Navistar for Navistar’s own negligence, the indemnity agreement between FCS and Navistar provided that FCS would indemnify Navistar for injuries resulting in any manner “directly or indirectly” from the services to be performed under the contract. According to the allegations in plaintiff Allen’s complaint, he was injured while he was in the process of loading freight into the International Harvester trailer. It is undisputed that the loading of freight into trailers was a service encompassed within the freight consolidation contract between FCS and International Harvester. Allen further alleged that, in order to position one of the trailer decks for loading, he pulled on the deck chain. It was at this point that the latch gave way and the deck fell and injured him. Under the circumstances Allen has outlined, we are not persuaded, as FCS argues, that Allen was “merely present” in International Harvester’s trailer. Rather, we believe that at the time he was injured Allen was, at the very least, indirectly involved in the performance of a service required under Navistar and International Harvester’s freight consolidation agreement.

We believe that taken as a whole, the indemnity agreement between Navistar and FCS is enforceable against FCS: the agreement clearly and unequivocally provides for FCS to indemnify Navistar for Navistar’s own negligence, and the situation under which Allen’s injury arose falls within the circumstances outlined in the agreement.

In further argument, FCS urges us to affirm the trial court’s dismissal of Navistar’s complaint, at least to the extent Navistar prays for FCS to indemnify Navistar based upon Navistar’s agreement to indemnify Ryder Truck Rental. In support of this argument, FCS cites only to Westinghouse Electric Elevator Co. v. LaSalle Monroe Building Corp. (395 ILl. 429, 70 N.E.2d 604), and makes the general statement that indemnity clauses must be strictly and narrowly construed. The issue as we see it is whether FCS must indemnify Navistar for any contractual obligation Navistar assumed in its dealing with Ryder. The Westinghouse proposition does not bear on this issue of FCS’s relation to Navistar as Navistar relates to Ryder.

For the foregoing reasons, we believe that the trial court erred in dismissing Navistar’s claim for indemnity against FCS. The judgment of the circuit court is accordingly reversed and the cause is remanded for further proceedings.

Reversed and remanded.

LINN and McMORROW, JJ., concur.


author: PRESIDING JUSTICE LORENZ

text:
    EDWARD J. PRZISLICKI, Appellant, v. THE CITY OF CHICAGO, Appellee.
    First District (5th Division)
    No. 1—89—0982
    Opinion filed March 28, 1991.
    Rehearing denied May 21, 1991.

      Louis B. Garippo, Susan G. Feibus, and Thomas A. Moore, all of Louis B. Garippo, Ltd., of Chicago, for appellant.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Ruth M. Moscovitch and L. Anita Richardson, Assistant Corporation Counsel, of counsel), for appellee.
   PRESIDING JUSTICE LORENZ

delivered the opinion of the court:

Appellant, Edward J. Przislicki, a bridgetender employed by appellee, the City of Chicago, sought administrative review after he was discharged by the city’s personnel board for reporting to work under the influence of alcohol. The trial judge affirmed and Przislicki now appeals. We consider the following four issues: (1) whether the board’s decision was invalid when it was not issued within 50 days of the hearing as required by its own rules; (2) whether the board admitted the result of Przislicki’s blood-alcohol test without proper foundation; (3) whether the board improperly excluded evidence that the bridge in question was inherently unsafe; and (4) whether the board’s decision was against the manifest weight of the evidence. For the following reasons, we affirm.

On April 14, 1987, at approximately 10:15 p.m., the driver of a taxicab was killed and two people were injured on the Kinzie Street bridge when Przislicki, the bridgetender on duty, raised and lowered the bridge to allow,a boat to pass through.

After an investigation of the accident, the city’s Department of Public Works (department) sought to discharge Przislicki from his employment for violating Personnel Rule XVIII, section 1, subsection 24, which prohibits reporting to work under the influence of alcohol. A hearing was held and Przislicki was discharged. We summarize below the relevant testimony from the hearing.

Przislicki testified that before he reported to work on April 14, he drank two 12-ounce bottles of beer between 6:50 p.m. and 8:15 p.m. Although he was not scheduled to work until 11 p.m., he arrived at the bridge house early, at 9:40 p.m., and relieved Bruno Lewandziewski.

At approximately 10:15 p.m., a boat requested passage through the bridge and, not seeing any vehicles or pedestrians, Przislicki raised and lowered the bridge. Przislicki stopped the lowering of the bridge when he saw a man on the bridge waving his arms. Someone on the boat’s loudspeaker then told him to raise the bridge, which he did. Within a few minutes, police and fire department personnel arrived at the bridge and Przislicki called the department informing them there was a problem. Officials and other employees from the department soon arrived on the scene. Subsequently, Przislicki left the bridge house and saw that a taxicab had been crushed by the bridge. He realized that a driver must have been in the taxicab.

Several hours after the accident, Przislicki agreed to submit to a blood-alcohol test when he was told he would be fired if he refused. Przislicki was driven from the bridge to a hospital at approximately 2:30 a.m. The nurse swabbed his arm with a clear liquid and drew a blood sample. After receiving the results, Przislicki was driven back to his car and drove himself home.

Przislicki’s wife, Patricia, testified that in her opinion, he was not intoxicated when he left for work that evening.

Lewandziewski, the bridgetender on duty before Przislicki, testified that when Przislicki relieved him at approximately 10 p.m., they spoke for 10 to 15 minutes. He did not smell alcohol on Przislicki’s breath and did not observe anything unusual about him. In his opinion, Przislicki was not intoxicated at that time. However, he did not have an opinion as to whether he was under the influence of alcohol. Lewandziewski admitted that a bridgetender could be disciplined for turning over a bridge to another bridgetender who was intoxicated.

Louis Koncza, an engineer for the department, testified he arrived on the scene at approximately 11 p.m. and observed Przislicki after the accident. His face was flushed, he seemed nervous, his hands were shaking, and his steps were unsteady. Koncza thought Przislicki may have been drinking although he could have been under stress from the accident.

Deborah O’Malley, a news producer for WMAQ-TV, testified that she arrived on the scene shortly after the accident and spoke to Przislicki briefly at approximately 11:20 p.m. He looked shaken and there was a strong smell of alcohol on his breath.

Paul Karas, commissioner of the department, testified that he arrived at the bridge at approximately 11:30 p.m. and spoke with Przislicki. Przislicki appeared ruddy and dried out, his eyes were yellow, and it looked as if he had been drinking recently. Karas testified that when he was previously interviewed during the investigation of the accident, he stated that Przislicki did not appear intoxicated and he smelled of wintergreen not alcohol. He could not testify that Przislicki was sober. Przislicki initially refused to take a blood-alcohol test; however, Karas eventually told him that if he did not, he would be suspended without pay.

Chicago police officer John T. Burke, Jr., of the major accident investigation section, testified that he and his partner, Officer James T. Hopkins, interviewed Przislicki at 12:50 a.m. for approximately 25 minutes. Przislicki’s speech was slurred, his face was red, and his breath smelled of alcohol. In Burke’s opinion, Przislicki had been drinking but Burke could not testify that Przislicki was either sober or intoxicated.

Officer Hopkins, Burke’s partner, testified that he also smelled alcohol on Przislicki’s breath but he did not appear intoxicated.

Ron Hagers, a news reporter for WHAQ-TV, testified that at approximately 2 a.m., he spoke with Przislicki and said, “it smells like you might have been drinking tonight.” Przislicki responded that he had to be joking. Hagers smelled alcohol on Przislicki’s breath and his face was red, his eyes were bloodshot, and he was belligerent. Hagers admitted that camera lights were shining in Przislicki’s face at the time.

Ted Kaczkowski, a structural engineer for the city, testified that he drove Przislicki to the hospital for a blood-alcohol test. He did not inform the hospital’s personnel that the results were to be used in court. After the test, he drove Przislicki back to his car and Przislicki drove himself home. Kaczkowski did not smell alcohol on Przislicki’s breath and he did not show signs he was intoxicated. Kaczkowski did not have an opinion as to whether Przislicki was intoxicated.

Joyce Adelberg, a nurse at the hospital, testified she took a sample of Przislicki’s blood at 2:43 a.m. following standard, routine, and customary procedure. She wiped his arm with betadine, a brown-colored nonalcohol solution, and drew the blood into a tube. She labelled the tube with Przislicki’s name and social security number and sent it to the laboratory for analysis. At the time, she was only handling Przislicki’s sample.

Adelberg testified that Przislicki did not show visible signs of intoxication because he was alert, did not slur his words, or have difficulty walking. However, his breath smelled of alcohol. Before receiving the test result, Adelberg believed Przislicki had been drinking although he was not intoxicated. Based on the result of the test, however, she had the opinion that Przislicki was intoxicated. His blood-alcohol level was 152 milligrams per deciliter or .152% and the diagnosis was acute alcohol intoxication.

Carol Seguban, a medical technician working in the laboratory that morning, testified that the laboratory tested all the blood samples for the hospital. When she received Przislicki’s blood sample, she prepared it for analysis by diluting it with an equal amount of distilled water. She tested the sample by running it with an alcohol reagent pack through an ACA machine. She handled Przislicki’s sample in the standard and customary manner for the laboratory. Seguban also testified that at the beginning of every shift, a calibration pack was run through the ACA machine and a control pack was run every morning.

Lisa Cummings, a medical technologist also working in the laboratory, testified that the test was completed at approximately 3:30 a.m. She computed the result of Przislicki’s blood-alcohol test from the ACA machine because Seguban was on break. Following standard procedure, she multiplied the result of the test, which was 76, by two to compensate for the dilution. The final result was 152. Blood samples were retained for two days after they were tested. In her two years of working in the laboratory, Cummings was not aware of any time that the ACA machine was inaccurately calibrated and she never had a test result invalidated.

Dr. Jorge del Castillo, an expert for the city, testified he was a senior attending physician in the emergency room for two hospitals. In his position, he dealt with patients who had alcohol-related illnesses. According to Dr. del Castillo, a blood-alcohol test would determine whether a person was under the influence of alcohol. He also testified that a person is under the influence of alcohol if he has one drink.

Based on the result of Przislicki’s blood-alcohol test of .152 at 2:40 a.m., Dr. del Castillo gave an opinion of Przislicki’s blood-alcohol level at 9:40 p.m., the time he reported to work. To achieve the result, Dr. del Castillo calculated the blood-alcohol level of .152 with accepted metabolism rates relevant to whether Przislicki was a light, moderate, or heavy drinker. If Przislicki was a light drinker, his blood-alcohol level at 9:40 p.m. would have been .200, if he was a moderate drinker it would have been .250, and if he was a heavy drinker, it would have been .300. This calculation was unreliablé to the extent that Dr. del Castillo did not know Przislicki’s exact metabolism rate.

Dr. del Castillo testified that based on the test result, Przislicki was under the influence of alcohol six hours earlier. With a blood-alcohol level of .152, a person would suffer some neurological impairment. However, without actually observing Przislicki, Dr. del Castillo could not say whether Przislicki was impaired at that time.

In discussing the differences between clinical and forensic settings, Dr. del Castillo testified that if the same bodily fluid and the same machine were used, the result would be the same in either setting.

Andrew H. Principe was an expert for Przislicki and executive director of the Northern Illinois Police Crime Laboratory, which dealt with forensic science. Based on his review of the testimony of the hospital’s personnel, he testified that they did not follow accepted forensic methods when they tested Przislicki’s blood sample. Accordingly, in Principe’s opinion, the result of Przislicki’s blood-alcohol test was unreliable. However, he also testified that he was not familiar with either the ACA machine used to test Przislicki’s blood sample or the enzymatic method of testing used by the hospital. As a result, he could not specifically testify as to the accuracy or reliability of the blood test.

Brian E. Lavin, an expert for Przislicki and a biochemist, testified he was familiar with the operation of hospital laboratories and the ACA machine and he reviewed the testimony of the hospital’s personnel. Lavin testified that some forms of betadine, which Adelberg testified she used to wipe Przislicki’s skin before withdrawing blood, contain alcohol. On the other hand, if the solution was clear, as Przislicki testified, it may have been isopropyl alcohol. In either case, if the solution contained alcohol, it could have affected the result of the test.

Lavin also testified that two blood samples should have been taken rather than only one, the sample should have been put in a tube approved for forensic purposes, the tube should have been sealed, and the sample should have been identified by number rather than name. Additionally, the sample should not have been diluted, there was no record supporting Seguban’s testimony that the sample was diluted, and the test was not run twice.

Based on Lavin’s review of the hospital’s records, the ACA machine had not been calibrated for 18 months prior to Przislicki’s blood test. Lavin testified that the manufacturer did not recommend how often the machine should have been calibrated. However, he would have had the machine calibrated at every shift even though it would have been expensive and taken approximately three hours a day.

Lavin testified that the hospital’s records indicated there was a problem with the internal temperature of the ACA machine, which was critical to its accuracy. On April 14, the day before Przislicki’s test, the ACA machine was serviced for a temperature problem. On April 23, the records indicated maintenance for the same problem. Also, the ACA machine had to be kept at 37 degrees centigrade plus or minus .05 degrees. However, the hospital recorded the temperature only in whole numbers. Lavin conceded that if the temperature was out of the accepted range, it would have affected the results of the control pack.

From either a clinical or forensic standpoint, Lavin believed the results of Przislicki’s test were unreliable.

The discharge hearing ended on May 19, 1988. In her report to the board, the hearing officer stated that conflicting evidence was presented as to whether Przislicki reported to work under the influence of alcohol. However, based on several witnesses’ testimony that Przislicki’s breath smelled of alcohol and his movements were unsteady, Przislicki’s testimony that he had two beers before work, and the blood test result, Przislicki was “more likely than not” under the influence at the time he reported to work that day. The officer found that the city proved its charge against Przislicki by a preponderance of the evidence. The board issued a decision on July 12, 1988, and Przislicki was discharged.

Przislicki sought review of the board’s decision by common law writ of certiorari to the circuit court. The trial judge affirmed the board’s decision and Przislicki now appeals.

Opinion

The decision of an administrative agency may be reviewed by writ of certiorari when, as in the present case, the administrative agency has not expressly adopted the Administrative Review Law (Ill. Rev. Stat. 1989, ch. 110, par. 3—101 et seq.). (Dubin v. Personnel Board (1989), 128 Ill. 2d 490, 539 N.E.2d 1243.) The nature and extent of review under either method are virtually the same. Dubin, 128 Ill. 2d 490, 539 N.E.2d 1243.

Judicial review of an administrative agency’s decision is limited to determining whether it was against the manifest weight of the evidence. (Martin v. Thompson (1990), 195 Ill. App. 3d 43, 551 N.E.2d 1082; Zenith Vending Corp. v. Village of Schaumburg (1989), 180 Ill. App. 3d 354, 535 N.E.2d 1033.) The reviewing court cannot evaluate the credibility of the witnesses or resolve conflicting evidence (Martin, 195 Ill. App. 3d 43, 551 N.E.2d 1082), and if the evidence fairly tends to support the agency’s decision, it should be affirmed (Zenith, 180 Ill. App. 3d 354, 535 N.E.2d 1033).

I

Initially, Przislicki argues that the board’s decision was invalid because it was not issued within 50 days of the hearing as required by the board’s procedural rules. Section 26(h) of the board’s administrative hearing procedures required that the board issue its decision on discharge within 50 days of the close of the hearing. In this case, the board issued its decision 54 days after the hearing. The city argues that the rule was merely permissive rather than mandatory.

However, at the time of the board’s decision, the Chicago Municipal Code provided that when an employee appeals the decision of a department head to discharge him and a hearing is held before the board, it must issue a decision within 60 days after the hearing. (Chicago Municipal Code §2 — 74—060(b) (1990) (effective November 10, 1987).) Accordingly, the board’s decision, issued within 60 days of the close of the hearing, was timely.

II

Przislicki next. argues the result of his blood-alcohol test was admitted without proper foundation.

Both parties rely on Woolley v. Hafner’s Wagon Wheel, Inc. (1961), 22 Ill. 2d 413, 176 N.E.2d 757, to support their positions. In Woolley, the supreme court found that the result of a blood-alcohol test was admissible in civil actions if a proper foundation was laid. The court stated:

“In our opinion, in a civil case, the foundation laid for introduction of evidence of a blood analysis need not preclude every possibility of a doubt as to the identity of the specimen or the possibility of a change of condition in the blood. If the routine and procedures of a laboratory are shown by the evidence as having been commonly accepted by the medical profession, and the business of the laboratory is the securing, handling and analysis of blood specimens, amongst other types of specimens, those routines and procedures ought to be acceptable to the courts. *** Any discrepancy in [the witnesses’] testimony or concerning the adequacy of the records goes to the weight to be accorded the evidence rather than to its admissibility.” (Woolley, 22 Ill. 2d at 418-19, 176 N.E.2d at 760.)

The strict rules of evidence that apply in a judicial proceeding do not apply in proceedings before an administrative agency. (Giampa v. Illi nois Civil Service Comm’n (1980), 89 Ill. App. 3d 606, 411 N.E.2d 1110.) Although Woolley did not involve the review of an administrative agency’s decision, it lends guidance here.

To establish a foundation for admitting the test result, the city presented the testimony of Adelberg, Seguban, and Cummings, who were the hospital employees involved in testing Przislicki’s blood sample. Adelberg testified she withdrew the blood sample into a tube, la-belled it with Przislicki’s name and social security number, and sent the sample to the laboratory. She took the sample at 2:43 a.m., and it was the only blood sample she was handling at the time. Seguban testified that the laboratory tested all the blood samples for the hospital. When she received Przislicki’s sample, she prepared it for analysis by diluting it with distilled water and ran it through the ACA machine. Cummings testified that the test was completed at approximately 3:30 a.m. She read the result from the machine and multiplied it by two to compensate for the dilution. Adelberg, Seguban, and Cummings testified they followed standard, customary, and routine procedure when they handled Przislicki’s blood sample.

Przislicki challenged the procedure of the hospital personnel in testing his blood sample with the testimony of his experts, Principe and Lavin. In detailed testimony, these experts criticized the manner in which Przislicki’s blood sample was taken and tested. Principe, however, was not familiar with either the ACA machine or the method of testing used by the hospital. Some of Lavin’s testimony was merely speculative, such as his testimony that the solution used to cleanse Przislicki’s arm may have contained alcohol and that there may have been a problem with the internal temperature of the ACA machine when the sample was tested. Further, Principe and Lavin testified that the result of Przislicki’s blood test was unreliable from either a forensic or clinical viewpoint.

Their testimony, however, merely conflicted with the testimony of Adelberg, Seguban, and Cummings. The board apparently resolved the conflicts in favor of the city, and this court cannot reweigh the evidence. Martin, 195 Ill. App. 3d 43, 551 N.E.2d 1082.

The testimony of Adelberg, Seguban, and Cummings met the foundation required under Woolley for admitting the result of Przislicki’s blood-alcohol test. They established who handled the blood sample, the sample was tested within a short period of time after being drawn, it was tested according to customary, standard, and routine procedure, and the laboratory tested all the blood samples for the hospital, As a result, the blood test result was properly admitted.

III

Przislicki also argues the board improperly excluded evidence that he followed the normal procedure when he operated the bridge and that the bridge itself was inherently unsafe. Przislicki, however, did not cite authority to support this argument in his brief and this court may consider the issue waived. (134 Ill. 2d R. 341(e)(7); Collins v. Mid-America Bag Co. (1989), 179 Ill. App. 3d 792, 535 N.E.2d 48.) We note that in the proceedings before the board, the city charged that Przislicki reported to work under the influence of alcohol. The cause of the accident was not at issue. As a result, Przislicki’s offered evidence was not relevant to the issue before the board.

IV

Lastly, Przislicki contends the board’s finding that he reported to work under the influence of alcohol was against the manifest weight of the evidence because the city presented insufficient evidence and the city did not prove he was impaired.

In reviewing whether an administrative agency’s decision was against the manifest weight of the evidence, the court cannot reweigh the evidencé or reevaluate the credibility of the witnesses. (Martin, 195 Ill. App. 3d 43, 551 N.E.2d 1082.) If the decision of the board is supported by the evidence, it must be affirmed. Zenith, 180 Ill. App. 3d 354, 535 N.E.2d 1033.

Officers Burke and Hopkins, O’Malley and Magers from WMAQTV, and Nurse Adelberg all testified that they smelled alcohol on Przislicki’s breath after the accident. Officer Burke testified that Przislicki’s speech was slurred and his face was red. Burke thought Przislicki had been drinking and, although he did not think he was intoxicated, Burke did not think Przislicki was sober. Adelberg thought Przislicki had been drinking, although he did not exhibit visible signs of intoxication. However, based on the result of the blood-alcohol test, she thought he was intoxicated. Both Koncza and Karas, with the department, thought Przislicki had been drinking. Koncza testified that Przislicki’s face was flush, he seemed nervous, his hands were shaking, and his steps were unsteady. Koncza conceded that Przislicki may have been under stress from the accident. Karas testified that he did not think Przislicki was intoxicated but he did not believe Przislicki was sober either. Przislicki admitted he drank two beers within three hours of reporting to work that day.

Further, Przislicki’s blood-alcohol level was .152 at 2:40 a.m., which was five hours after he reported to work. The diagnosis was acute alcohol intoxication. Dr. del Castillo testified that Przislicki’s blood-alcohol level would have been between .200 and .300 at the time he reported to work. He also testified that Przislicki was under the influence of alcohol.

This evidence fully supports the board’s conclusion that Przislicki reported to work when he was under the influence of alcohol.

Przislicki, however, contends that to support the board’s finding that he was under the influence, the evidence must show that he was impaired. He argues by analogy that an employee’s recovery under the Workers’ Compensation Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.) is not automatically barred if he was intoxicated (M & M Parking Co. v. Industrial Comm’n (1973), 55 Ill. 2d 252, 302 N.E.2d 265) and that sections 11 — 501(a)(3) and (a)(4) of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 95½, pars. 11—501(a)(3), (a)(4)) prohibit driving under the influence of alcohol if the driver is incapable of driving safely. Przislicki ignores that section 11 — 501(a)(2) prohibits driving under the influence without mention of incapability. (Ill. Rev. Stat. 1989, ch. 95½, par. 11—501(a)(2).) Regardless, neither argument is persuasive here. The rule Przislicki was charged with violating prohibited reporting to work under the influence of alcohol without mention of impairment. The issue of impairment would address the question of whether Przislicki was at fault for the accident, which was not the issue before the board.

Based on a review of the record, the board’s decision to discharge Przislicki from his employment with the city was not against the manifest weight of the evidence.

Affirmed.

MURRAY and GORDON, JJ., concur.