text:
    THOMAS A. FOLEY, Plaintiff-Appellee, v. THE METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO et al., Defendants-Appellants.
    First District (5th Division)
    No. 1—88—2925
    Opinion filed April 19, 1991.
    Rehearing denied June 4, 1991.
    Allen S. Lavin, of Chicago (James B. Murray and Ina S. Winston, of counsel), for appellants.
    Edward J. King, of Chicago, for appellee.
   JUSTICE COCCIA

delivered the opinion of the court;

Plaintiff Thomas A. Foley was suspended for 30 days from his job with defendant, the Metropolitan Sanitary District of Greater Chicago (MSD), and following a hearing without plaintiff’s participation before the Civil Service Board (Board), he was discharged from his job. On administrative review, the circuit court reversed the Board’s decision on the ground that the Board had no jurisdiction to discharge plaintiff where the Board had failed to hold a hearing within 30 days of the initial suspension. On appeal, defendants, the Metropolitan Sanitary District of Greater Chicago; its general superintendent Frank E. Dalton; plaintiff’s supervisor, Earl Knight; plaintiff’s department head, John M. Ryan; the Civil Service Board, its chairman, Gay-Lloyd Lott; and its individuals members, Richard Rochester and John L. Roach, contend that notice and hearing was sufficient.

Plaintiff worked for the MSD in the classified service as a Treatment Plant Operator II. On February 29, 1988, at 3:15 a.m., plaintiff was arrested by the Stickney police as he drove away from the MSD’s West-Southwest sewage treatment plant in Stickney, Illinois, with approximately $1,000 of equipment belonging to the MSD.

Following an initial investigation, the MSD suspended plaintiff for 30 days commencing on March 1, 1988, and ending March 30, 1988. Notice of the suspension was mailed to plaintiff’s Willow Springs address and received by plaintiff on March 2, 1988. The notice stated that specific charges would be filed seeking his termination. Plaintiff did not exercise his right to appeal this suspension.

On March 22, 1988, attorney Edward King appeared at the MSD offices and spoke with Ina Winston, the MSD’s head assistant attorney. Winston stated at the March 28, 1988, hearing that King introduced himself and stated that he would be representing plaintiff in the termination case.

On March 24, 1988, the MSD filed formal written charges against plaintiff with the Board, all within the 30-day suspension period. It charged plaintiff with “conduct which tends to render his continued employment detrimental to discipline efficiency or reputation of the District’s service.” It sought discharge of plaintiff from the classified service.

The Board set the cause down for a hearing on March 28, 1988, at 2 p.m.

On March 25, 1988, the Board mailed to plaintiff, by registered mail, formal notification of the charges and the time and place of hearing. These were sent to plaintiff’s last two known addresses, including the Willow Springs address to which copies of the earlier notice of suspension had been mailed and received by plaintiff.

In addition, on March 25, 1988, a summons dated March 24, 1988, and a copy of the charges were personally served on King at his law offices in Chicago.

On March 28, 1988, at 2 p.m., the Board opened the hearing. King appeared.

Winston introduced the formal charges, written summons, and proof of mailing. The return receipt had not yet been returned to the MSD.

The Board’s hearing officer allowed the charges into evidence.

King then introduced into evidence a letter from himself to the Board, dated March 28, 1988. It stated, in relevant part, as follows:

“Approximately one week ago I was contacted by [a coworker of plaintiff ***. He asked me if I could provide legal assistance to his fellow employee. I told him to have the suspended employee call me at my law office.
The following day I was contacted by [plaintiff. *** I told him to call me when and if he received the charges.
On March 22, 1988 while visiting the offices of the MSD on a matter unrelated to [plaintiff I stopped by the MSD law department and asked for the attorney handling the Foley suspension.
Attorney Ina Winston introduced herself. I told her that I had been contacted by [plaintiff. She told me that she thought the hearing was scheduled for the 28th of March. I responded that were I [plaintiff’s] lawyer I could not prepare by that date. She made a phone call and learned the next date the Commission meets is April 19, 1988.
I called [plaintiff at a number he gave me. I left messages on a phone answering machine that responded. I did not hear back from [plaintiff] regarding his receipt of any charges from the Civil Service Commission.
I have called and spoken to [plaintiff at his home on two other occasions. When I spoke to him, on March 26, 1988, he had yet to receive any charges. He did not retain me as his attorney.
At 12:17 p.m. on March 28, 1988 I returned to my law office to find that a copy of charges and specifications regarding [plaintiff were hand delivered to my office on the afternoon of Friday, March 25, 1988.
As a courtesy to this Commission, I appear today in response to the charges served on me on March 25,1988.
I am not yet [plaintiff’s] attorney of record. I do not know if he has yet been served with any notice regarding this hearing. I do not know if he has retained counsel.
I have twice called the phone number I received from [plaintiff this afternoon. I got only a recorded message.
I would enter a special and limited appearance on behalf of [plaintiff] to protect his constitutional rights. I would argue that the Commission, as far as I know, has no jurisdiction over [plaintiff] in that he has yet to receive any notice of this hearing.
[Plaintiff] received notice as I did, within two hours of the hearing, the notice is defective and the Commission still has no jurisdiction.”

On March 29, 1988, plaintiff received additional copies of the charges and a summons, which had been sent by registered mail on March 25, 1988.

On March 29, 1988, the MSB hired Hotline Messenger Service to personally serve plaintiff with the charges, summons and an accompanying letter advising him that the hearing was continued to April 19, 1988. The letter advised plaintiff that if he had any objection to the matter being continued to April 19, he could call the MSB offices and they would be glad to commence the hearing on March 30, 1988, if he so requested.

The sworn affidavit of Hotline’s messenger was later introduced into evidence at the April 19, 1988, hearing, attesting that on March 29, 1988, he “personally delivered upon Thomas A. Foley” the documents, at the Willow Springs address.

On April 5, 1988, the MSB sent plaintiff a certified letter informing him that the matter would be heard on April 19, 1988. The return receipt shows plaintiff received the letter at his Willow Springs address on the following day, April 6,1988.

At the April 19, 1988, hearing, plaintiff appeared before the Board represented by King, who filed a special and limited appearance and a motion to quash the service of summons which had been served on March 29, and March 30, 1988. The motion incorporated an affidavit from plaintiff stating he did not receive notice of the March 28 hearing until March 29. He did not receive notice that the hearing could be commenced on March 30, until 5:30 p.m. on March 30. He was not personally served, and instead his wife found the notice in their mailbox.

The MSB tendered a registered letter receipt dated March 25, 1988, addressed to plaintiff at Willow Springs and a registered letter receipt to plaintiff at a Chicago address. Winston stated the green cards were never returned to her. Winston also stated before the Board:

“On March 22, Mr. King came to my office. He said he is representing [plaintiff]. He asked all about the discovery procedures, asked when the hearing would be. I told him it was going to be set for a special date on the 28th. He said he couldn’t possibly be prepared. I said, ‘Well, let me find out when the regular meeting date is.’
I found out it was April 19. I told him that. He said, ‘I will not be prepared then I will want all of your documents.’
I said, ‘There is no problem. You don’t have to go through formal discovery motions and so on.’ We had this discussion about procedures of the Civil Service Board.”

The Board found:

“[W]ith regard to the March 28 hearing, there is no evidence that the respondent was served in advance of the hearing, whether it was a day or an hour in advance of the hearing. The evidence does not support the finding that he was served prior to that hearing. Nevertheless, the charges were filed in apt time, and we have an uncontroverted proof of service dated March 29, indicating that one Joe W. Handy, a messenger, personally served Foley at 151 Glenwood, Willow Springs, Illinois, 60480, a summons dated March 24, together with the charges filed, and that the hearing on March 28 and the hearing on March 29 respectively were continued from time to time and have now been continued to April 19.
The Board finds that it has acquired jurisdiction, that the respondent has been notified of the charges against him, and has been given an opportunity to defend against those charges.
So I don’t think that the motion to quash the service of summons on March 29 can be sustained and accordingly is denied.”

The Board held further that no action had been taken on March 28 to prejudice plaintiff. The Board refused to dismiss the charges. The Board offered to grant plaintiff a continuance from the April 19 date, but plaintiff declined.

The Board informed plaintiff that if he stood on the jurisdictional issue and did not participate in the hearing on the merits, the MSB would proceed with a prove up with the possible result of discharging plaintiff from service. Plaintiff remained present for the entire argument and ruling. He and his attorney left the hearing before the prove up.

King repeatedly stated to the Board that he would have “no objection to the granting of the motion to quash and re-serving [plaintiff] here and let the Board do what it may at this point as far as rescheduling any future hearing.” He continued, “If in fact the Board is saying that he was not properly served for either of those hearing dates then I would ask that the Board rule that — that the Board grant my just offered motion to quash and to re-serve [plaintiff] today. I have no objection to that whatsoever.”

King stated his client would stand on the jurisdictional objection, and they left the meeting.

The hearing officer proceeded with the prove up.

On May 23, 1988, the Board filed its findings and discharged plaintiff after finding him guilty of conduct which tends to render his continued employment detrimental to the discipline, or efficiency or reputation of the MSB’s service.

On June 14, 1988, plaintiff timely perfected a complaint for administrative review of the Board’s findings, pursuant to section 4.14 of “An Act to create sanitary districts ***” (Ill. Rev. Stat. 1989, ch. 42, par. 323.14). Plaintiff also filed an emergency motion for temporary restraining order and motion for preliminary injunction and other relief. Plaintiff argued that the Board’s order was contrary to the manifest weight of the evidence; contrary to personnel rules of the MSB; contrary to State statutes; and violative of his due process rights. He sought reinstatement of his former position, back pay, and attorney fees and costs.

On September 20, 1988, the court reversed the Board’s order discharging plaintiff. It found that although plaintiff had been served with the formal charges and date of hearing within the 30-day period, plaintiff was denied the opportunity to have the hearing within that 30-day period. The court found that plaintiff had never asked for a continuance of the hearing.

On September 27, 1988, the MSB filed a notice of appeal, and the trial court stayed the effect of its September 20, 1988, order until further order.

The personnel rules of the MSB provide that it may suspend an employee for 30 days or less. (Rule 11.042(3).) He shall then be returned to employment “unless charges are filed.” (Rule 11.042(5).) Charges must be filed “not less than five (5) days prior to the expiration of the suspension period.” (Rule 11.051.) Plaintiff’s charges were filed March 24, and the suspension period expired March 30.

The personnel rules provide that charges shall be “served personally upon the employee or by registered mail addressed to the employee at his last known residence.” (Rule 11.052.) Plaintiff was served by registered mail on March 29, 1988, and was apparently personally served on that same day.

The relevant statute requires that a hearing be held “within thirty days from the date of suspension under” charges to remove or discharge a classified Civil Service employee. “The hearing may be postponed or continued with the consent of the accused.” (Ill. Rev. Stat. 1989, ch. 42, par. 323.14.) Similarly, the personnel rules of the MSD provide that the charges “shall be heard by the Civil Service Board *** within thirty (30) days of the date of suspension under said charges.” (Rule 12.03.) Plaintiff was suspended on March 1, and the hearing was initially convened March 28.

Even if it were true that plaintiff has a right to a hearing within 30 days, we agree with the decision in Holliday v. Civil Service Comm’n (1984), 121 Ill. App. 3d 763, 460 N.E.2d 358, as approved in Perez v. Civil Service Comm’n (1987), 153 Ill. App. 3d 176, 505 N.E.2d 1067, that such rights cannot be construed as unqualified. In Holliday, the court found that because the delay in the hearing was caused by the employee’s discovery request, his rights were not infringed upon. It held that an employee has no absolute right to a hearing within 30 days where a hearing delay is attributed to the employee’s conduct. Consequently, because the hearing delay was a result of the employee’s actions, the Commission retained jurisdiction over the dispute.

Clearly, the 30-day hearing requirement in the personnel code cannot be read to be so inflexible that an employee, by merely requesting a continuance or asking for discovery of certain documents, is thereby able to divest the Commission of jurisdiction over a particular dispute. In the instant case, it could well be that King misled the MSD to believe that he was the attorney for plaintiff and suggest that he had requested a continuance to be prepared for trial.

The determinative question which this court is not able to answer on the record before us is whether or not King was plaintiff’s attorney, when King visited Winston on March 22 and requested a continuance; was served with notice on March 25; and appeared before the Board on March 28.

The Board made no findings regarding when the attorney-client relationship between King and plaintiff began; whether King’s March 22 meeting with Winston as well as subsequent conduct tended to show he had authority to act for plaintiff in the cause; whether King sought a continuance of the March 28 and April 19 hearing when he met with Winston; whether plaintiff, through King, waived all rights to rely on the fact that plaintiff was not tried within the alleged 30-day suspension period when King advised Winston he could not be ready for trial on March 28, or April 19, 1988; and whether notice to King on March 25 was sufficient notice of the March 28 hearing.

Generally, notice to an attorney is notice to the client and knowledge of an attorney is knowledge of, or imputed to, the client notwithstanding whether the attorney has actually communicated such knowledge to the client. In re Marriage of Mierlak (1981), 100 Ill. App. 3d 228, 426 N.E.2d 1010, citing People ex rel. Rogers v. Elrod (1975), 35 Ill. App. 3d 26, 340 N.E.2d 598. See also In re Marriage of Clarke (1990), 194 Ill. App. 3d 248, 550 N.E.2d 1220; County of Cook v. Schroeder (1965), 55 Ill. App. 2d 449, 205 N.E.2d 257.

Attorney King received notice of the March 28, 1988, hearing on March 25, 1988. This would be sufficient notice to plaintiff, regardless of whether or not King communicated the information to his client. If King were acting as plaintiff’s attorney, the Board would have met the requirement of providing sufficient notice of the March 28 meeting within the requisite 30-day time period.

The question of whether King was acting as plaintiff’s attorney on March 22, 25, and 28, 1988, is a factual question, and one which the Board did not address. We therefore remand to the Board with directions to receive such evidence as it deems necessary and make a factual determination on this issue. See Havlen v. Waggoner (1981), 92 Ill. App. 3d 916, 416 N.E.2d 684 (litigants’ arguments on appeal implicitly require factual determination regarding whether attorney made general appearance; case remanded for sole purpose of evidentiary hearing and making findings of fact on issues of whether attorney made general appearance and whether service of summons proper); see also Armis Construction Co. v. Cosmopolitan National Bank (1985), 134 Ill. App. 3d 177, 479 N.E.2d 1111 (court ordered supplemental arguments on issue of whether attorney represented plaintiff in any litigation at time attorney was served with notice).

In determining whether King acted as plaintiff’s attorney, the Board should be guided by certain principles of law which we set forth here. Generally, in administrative matters, due process is satisfied by procedures suitable to the nature of the determination to be made and conforming to the fundamental principles of justice. (Desai v. Metropolitan Sanitary District (1984), 125 Ill. App. 3d 1031, 466 N.E.2d 1045.) An administrative body has broad discretion in conducting its hearing. Administrative procedure is simpler, less formal and less technical than judicial procedure. Desai v. Metropolitan Sanitary District, 125 Ill. App. 3d 1031, 466 N.E.2d 1045.

Whether or not an attorney-client relationship exists involves principles of contract and agency. In regard to the facts apparent from the record before us, we especially express concern that plaintiff has completely failed to provide in the record any affidavit or sworn statement by himself stating that he did not believe King was his attorney, and the reasons therefor.

It is a question of fact whether the trier of fact believes that the attorney’s appearance was unauthorized. (Mierlak, 100 Ill. App. 3d 228, 426 N.E.2d 1010.) Issues of witness credibility must be left to the trier of fact, which is able to hear and view the witnesses. See, e.g., Mierlak, 100 Ill. App. 3d 228, 426 N.E.2d 1010 (attorney reported to court that he had been engaged by respondent’s brother; respondent failed to offer affidavits or testimony from his brother or the attorney that the appearance was not authorized, and offered only his own denial, which was insufficient to rebut the presumption of authorization). Cf. People v. Mickow (1978), 58 Ill. App. 3d 780, 374 N.E.2d 1081 (a nameless attorney who was never identified appeared at hearing on behalf of defendant; court held no personal jurisdiction was ever attained over the out-of-State defendant because he was never served, and defendant submitted uncontradicted affidavits stating he never retained an attorney or even communicated with the person who represented himself as defendant’s attorney).

The Board should consider the March 22 meeting between Winston and King. On March 22, King appeared at the MSD’s legal offices on behalf of plaintiff. He did not, for example, simply run into Winston on the street or in a restaurant and casually inquire about the Foley case. Instead, King went to the MSD’s legal offices; sought out an attorney representing the MSD on this case; discussed in detail the discovery and hearing procedures; and, most significantly, negotiated with that attorney a delay from not one, but two, hearing dates before the Board. He did not casually remark that he was busy in March and April. Instead, he discussed it in enough detail to cause Winston to telephone for a postponed hearing date.

The Board may also consider the fact that King appeared on March 28,1988, on behalf of plaintiff.

Notably, our supreme court rules prohibit an attorney from appearing before a court if that attorney has not filed an appearance. (107 Ill. 2d R. 11.) The record here does not show whether the Board has a similar rule.

Generally, an attorney has no right to appear as an attorney for another without the latter’s authority. If there is no attorney-client relationship, the attorney does not owe a duty to appear and cannot lawfully and ethically do so. (Zych v. Jones (1980), 84 Ill. App. 3d 647, 406 N.E.2d 70.) The plaintiff in Zych told his attorney he would let him know if he wished his services. Unlike what appears to have happened in the present case, the attorney in Zych filed an appearanee without compensation only at the request of plaintiff’s employer, as a favor.

Generally, where an attorney appears of record for a party, the presumption is that the appearance in such a capacity was duly authorized by the person for whom the attorney appears. (Mierlak, 100 Ill. App. 3d 228, 426 N.E.2d 1010, citing Gray v. First National Bank (1944), 388 Ill. 124, 129, 57 N.E.2d 363, 365.) The presumption may be rebutted by evidence to the contrary. (Zych v. Jones (1980), 84 Ill. App. 3d 647, 406 N.E.2d 70.) Also, an attorney’s authority to appear may be implied or apparent authority and may arise from the circumstances and facts where there is a reasonable appearance, due to the acts of another, that the person is authorized to act as agent for such other person. See also Meeker v. Gray (1986), 142 Ill. App. 3d 717, 492 N.E.2d 508 (court found no affirmative evidence that defendant hired the attorney other than the attorney’s entry of appearance five years prior to trial; notices went to the attorney and there was no indication that defendant was served, but defendant was never misled, so there was no error).

For example, in Meldoc Properties v. Prezell (1987), 158 Ill. App. 3d 212, 511 N.E.2d 861, after an attorney had filed a special and limited appearance on behalf of defendant, the defendant herself appeared and argued she never received notice, and the attorney had not been hired by her and had no authority to even file the special and limited appearance. Apparently the attorney had been retained by defendant’s ex-husband, who was also a defendant in the underlying suit. Defendant produced a letter to her from the attorney, stating that the ex-husband had hired him, that he had filed the appearance, and that defendant might want to hire either him or someone else. This court held that there was no attorney-client relationship. Defendant had successfully rebutted the presumption of the attorney’s authority to appear, and judgment against her was vacated. The record contains no similar evidence in the present case.

Furthermore, King’s authorization to represent plaintiff may be established through proof of ratification. (Gray v. First National Bank (1944), 388 Ill. 124, 57 N.E.2d 363.) For example, the Board may find it significant that King continued to represent plaintiff at every stage of the proceedings before the Board, the circuit court and this court.

It may also find it significant that King first told Winston he was not prepared to conduct a defense at the hearing on March 22, and that King consistently argued thereafter that the defense could not be ready within the 30-day period. The Board may find that plaintiff’s conduct in permitting this continued argument of prejudice due to insufficient time to prepare ratified King’s initial requests for continuance made to Winston on March 22.

King argued in his letter before the Board that plaintiff suffered prejudice for three reasons when he did not get additional time— within the 30 days — to prepare for the hearing. First, King argued that plaintiff had insufficient time to retain counsel. This argument is not persuasive. On February 29, plaintiff was arrested while allegedly attempting to steal equipment from the MSD during the night shift. On March 2, plaintiff received notice of his 30-day suspension and that the MSD would seek his termination. On March 20, plaintiff contacted King about this case. On March 25, charges and summons were delivered to King’s law offices. On March 26, King spoke with plaintiff on the telephone. On March 28, King stated he left messages on plaintiff’s answering machine and called and spoke with plaintiff on two other occasions; spoke with him on March 26; and appeared for him on March 28. Clearly, obtaining counsel was not a problem.

Second, King argued that plaintiff was prejudiced because he would have insufficient time to “inform counsel of the specifics of the charges alleged against him.” Again, given the amount of communication between King and plaintiff, and King’s receipt of the formal charges on March 25 at his law offices, we would find no prejudice.

Third, King argued that plaintiff was prejudiced because he would have insufficient time to “take[ ] any reasonable discovery.” This is also not persuasive, considering the MSD’s immediate acquiescence, through Winston, to permit King to delay the hearing past March, and past April, to some third time which would be agreeable to King.

Moreover, plaintiff suffered no prejudice as a result of the March 28 meeting of the Board. The Board convened as a formality, King specially appeared, and no evidence was taken beyond King’s letter to the Board. No action was taken by King, or by the Board, at that meeting, which could prejudice plaintiff. The case was then continued, and the Board immediately served plaintiff again with notice of the charges and hearing which could be held either March 30 or April 19.

The Board has the power to administer oaths and secure by subpoena the attendance and testimony of witnesses and the production of books, papers or other evidence. (MSD Personnel Rule 12.03.) It should use these powers and any other relevant powers to secure the information needed to make findings regarding the questions this court has set forth above.

If on remand the Board determines that an attorney-client relationship existed prior to and on March 28; that notice was served on Attorney King on March 25; that it therefore had jurisdiction to convene a hearing on March 28; and that the continuance of that hearing beyond the 30-day period was due to the conduct of plaintiff and his attorney, then defendant must evaluate his options in deciding whether or not to defend the case on the merits. If he wishes to do so, defendant should be permitted to present a defense on the merits before the Board. If he chooses to default and collaterally attacks the Board’s rulings on the jurisdictional question, he will lose his right to defend the case on the merits if his jurisdictional argument does not prevail on appeal. See generally, R. Michael, 3 Illinois Practice: Civil Procedure Before Trial §10.7 at 127-28 (1989).

For the foregoing reasons, the judgment of the circuit court of Cook County reversing the decision of the Civil Service Board is reversed, and the Board’s decision is reinstated.

Reversed and remanded to the Board with directions.

LORENZ, P.J., and MURRAY, J„ concur.


source: Caselaw Access Project

author: JUSTICE WHITE

license: Public Domain

text:
    GOLF MANAGEMENT COMPANY, INC., Plaintiff-Appellant and Counterdefendant, v. EVENING TIDES WATERBEDS, INC., et al., Defendants-Appellees and Counterplaintiffs.
    First District (3rd Division)
    No. 1—89—0866
    Opinion filed April 24, 1991.

      Daniel J. Stohr, of Chicago, for appellant.
    Burke, Wilson & Mcllvaine, of Chicago (Stephen C. Voris and Clinton J. Wesolik, of counsel), for appellees.
   JUSTICE WHITE

delivered the opinion of the court:

Plaintiff and counterdefendant Golf Management Company, Inc. (Golf), appeals from a jury verdict and award of damages in favor of defendant and counterplaintiff Evening Tides Waterbeds, Inc. (Evening Tides).

On August 11, 1981, Golf and Evening Tides entered into a commercial lease for property located at 1735-39 West Golf Road in the Golf Plaza Shopping Center in Mt. Prospect, Illinois. The lease ran from October 1, 1981, until September 30, 1986, and provided that the property could not be subleased without the previous written consent of Golf. The lease also provided for a base rent of $6.25 per square foot which, together with insurance, real estate taxes, and other expenses, amounted to a monthly payment of $5,184.75. In addition, Evening Tides agreed to pay as rent 5% of its sales in excess of a certain amount.

On July 1, 1984, 25 months before the expiration of its lease, Evening Tides vacated the property and stopped paying rent. In June 1985, Golf filed suit against Evening Tides charging it with breach of the lease contract and seeking to recover $67,124.35 in unpaid rent.

Evening Tides filed an answer and affirmative defense alleging that Golf had breached the terms of the lease by unreasonably refusing to accept the subtenants proffered by Evening Tides. Evening Tides argued that Golf’s breach relieved Evening Tides of any obligations and duties under the lease. Evening Tides also filed a counterclaim against Golf, seeking damages for Golf’s refusal to accept the proposed subtenants.

At trial, Golf called Robert Krueger, president of Evening Tides, as an adverse witness. Krueger testified that on August 11, 1981, he entered into a five-year lease with Golf for the property located at 1735-39 Golf Road in Mount Prospect; that he operated a furniture store at that location; that he was frequently late in paying the rent on the property; and that after paying the June 1984 rent he made no further payments under the lease. Krueger was Golf’s only witness and following his testimony, Golf rested its case.

Evening Tides’ first witness was Salvatore DiMucci, president of Golf. DiMucci testified that he received three offers for a sublease of the Evening Tides property. The first offer was made by Prakash Jotwani and Ram Shahani. DiMucci stated that he refused this offer because Jotwani and Shahani wanted to sublease only a portion of the space.

DiMucci stated that an offer to sublease the Evening Tides space also was made by John Torris. DiMucci stated that he refused this offer because Torris wanted to use the space for a bar and restaurant and the property was not zoned for the sale of liquor.

DiMucci testified that another offer for a sublease was made by Jerome Weinberg, who wanted to operate a furniture store in the Evening Tides space. DiMucci stated that Golf entered into a new lease with Weinberg at a base rent of $5,696, or approximately $10 per square foot, but Weinberg never took possession of the property. DiMucci stated that he entered into a new lease with Weinberg rather than a sublease because Weinberg requested a new lease.

In June 1986, a portion of the property was leased to a bakery at a rental equal to $8.40 per square foot. DiMucci stated that the bakery’s rent was lower than Weinberg’s because the space was smaller and in the rear of the shopping center.

Evening Tides’ other witnesses included Martin Meadow, a former Golf employee who testified that it was DiMucci’s policy to refuse subleases. Also testifying for Evening Tides were Krueger, Ram Shahani, John Torris, and Jerome Weinberg.

Shahani, Torris, and Weinberg all testified that they were interested in subleasing Evening Tides’ property, but were told that they would have to enter into new leases at a higher rent. In addition, all testified that before entering into negotiations with Golf for a new lease, they were required to pay $50 for a credit investigation.

According to Evening Tides’ witnesses, in March 1984 Jotwani and Roshani met with Krueger, and expressed an interest in subleasing the property for operation of a “Computerland” franchise. Initially, Jotwani and Roshani wanted to lease only a portion of the property, but after being told that DiMucci would not allow the space to be divided, they agreed to take the entire space. Krueger testified that he, Jotwani; and Shahani negotiated a sublease under which Jotwani and Shahani agreed to pay $4,737 of the monthly rent and Krueger agreed to pay the difference between that amount and the gross monthly rent of $5,184. The agreement was reduced to writing in a letter of intent signed May 9,1984.

The letter of intent stated that the agreement was conditioned upon Jotwani and Shahani obtaining an option to renew the lease after September 1986 and upon the lease being approved by Computerland’s national headquarters. In addition to the letter of intent, Jotwani and Shahani presented personal financial statements to Golf. These statements showed Jotwani’s net worth to be $281,605 and Shahani’s to be $266,595.

Krueger testified that when he presented the letter of intent to Golf’s employee Tom Gimino, Gimino informed him that a sublease would not be allowed and that Jotwani and Shahani would have to enter into a new lease. Shahani testified that he was told that Golf wanted a direct lease rather than a sublease and that the rent under the new lease would be $13 per square foot, more than twice the amount Evening Tides was paying. Jotwani and Shahani did not enter into a new lease with Golf, but leased property elsewhere. Shahani testified that this was because the rent Golf requested was too high.

In July 1984, after Evening Tides vacated the Golf Road property, Krueger made a second attempt to sublease. Krueger entered into negotiations with John Torris, who wanted to operate a restaurant and bar. Both Torris and Krueger testified that Torris wanted to sublease the property, but that this was not allowed. Krueger testified that Torris originally agreed to sublease the property from Krueger for $6,500 per month at a profit to Krueger of approximately $1,300 per month. After Golf refused to allow the sublease, Torris agreed to enter into a new lease with Golf.

On July 16, 1984, Krueger and Torris signed a letter of intent, in which Torris agreed to enter into a new three-year lease at a rent of $6,500 per month. The letter also stated that Torris’ offer was subject to his obtaining a liquor license. Torris never signed the new lease, and in a letter dated July 30, 1984, he stated that this was because he was unwilling to pay annual increases in the $6,500-per-month rent. Torris testified that another reason he did not sign the lease was because he did not like some of the terms it contained, including requirements that he pay Golf 8% of his gross sales, that Golf approve the cash registers used in the store, and that he submit to arbitrary audits of his gross sales.

In August 1984, Krueger was contacted by Weinberg, who expressed an interest in subleasing the property for operation of a furniture store. After meeting with Krueger, Weinberg drafted a letter in which he stated he would be willing to sublease the property at a $9-per-square-foot base rent “for the balance of Evening Tides’ lease plus 3 additional years with a 5 year option after that.”

Weinberg and Krueger testified that when they met with DiMucci and Gimino, they were informed that Weinberg would not be allowed to sublease the property and that the only type of lease that would be allowed was a direct lease with Golf. On September 20, 1984, Weinberg sent a letter of intent to Krueger stating that Weinberg would be willing to sign a new lease with Golf for a 10-year term at a rent of $10 per square foot plus a 5% increase per year.

Weinberg and Krueger again met with DiMucci and Gimino on October 1, 1984, at which time Weinberg made a security deposit equal to two months’ rent ($11,000) and was presented with a lease. Weinberg testified that during the meeting, DiMucci demanded an additional month’s security and told him that he would be required to sell furniture at wholesale costs to DiMucci and DiMucci’s family and employees. Weinberg signed the lease and next to his signature he wrote the phrase “contingent on my accountant’s approval.” It was stated in an offer of proof that Weinberg included this phrase because he was concerned about the requirement that he sell furniture at cost to DiMucci.

Weinberg testified that later, after considering the additional demands made by DiMucci, he wrote Golf stating that he was withdrawing his offer to lease because he could not obtain financing for the store. Weinberg admitted that this statement was untrue.

Evening Tides’ final witness was Hugh Robinson. Robinson, who was called as an expert in the area of commercial leases, testified that the rents Golf demanded of Shahani, Torris, and Weinberg were excessive. Robinson testified that in his opinion, the rent should have been in the range of $6.50 to $7.50 per square foot.

At the close of Evening Tides’ case, Golf made a motion for a directed verdict on Evening Tides’ counterclaim. The trial court reserved its ruling on Golf’s motion and the case was submitted to the jury. The jury returned a verdict against Golf and in favor of Evening Tides on both the complaint and the counterclaim. The jury also assessed damages against Golf in the amount of $35,000. Golf’s motions for judgment notwithstanding the verdict or for a new trial were denied. This appeal followed.

In its appeal, Golf argues that the jury’s verdict should be overturned. Golf contends that it could not be found to have unreasonably refused its consent for a transfer of the lease because Evening Tides failed to tender a suitable subtenant.

Under Illinois law, where a lease forbids any sublease or assignment without the consent of a landlord, the landlord cannot unreasonably withhold his consent to a sublease. (Jack Frost Sales, Inc. v. Harris Trust & Savings Bank (1982), 104 Ill. App. 3d 933, 433 N.E.2d 941; Reget v. Dempsey-Tegler & Co. (1966), 70 Ill. App. 2d 32, 216 N.E.2d 500.) However, before a landlord can be held liable for failure to consent to a transfer of a lease, a tenant must meet its burden of proving that it tendered a subtenant who was ready, willing, and able to take over the lease and who, at the very least, met reasonable commercial standards. Jack Frost, 104 Ill. App. 3d at 944.

Relying on Jack Frost, Golf argues that Evening Tides did not meet its burden of proving that the subtenants it tendered were ready, willing, and able to take over the lease. Golf contends that the offer made by Jotwani and Shahani was insufficient because Jotwani and Shahani wanted an option to renew the lease and because the offer was contingent upon the approval of Computerland’s national headquarters. Golf claims that Torris’ offer was insufficient because Torris also wanted an option and because this offer was contingent upon Torris obtaining a liquor license. Finally, Golf claims that Weinberg’s offer also was insufficient because he signed the lease “contingent on my accountant’s approval.” We believe that Golf’s arguments are based on a misinterpretation of our decision in Jack Frost.

In Jack Frost, this court reversed a jury verdict in favor of a plaintiff who had attempted to assign its interest in a lease. The plaintiff operated a bar in the leased premises and in 1972 it entered into a contract with a yet to be formed corporation for the sale of the business and certain personal property. The sale was conditioned upon the issuance of a liquor license to the corporation and upon the corporation securing an assignment of the remaining leasehold interest of the plaintiff. The sale failed to go through and plaintiff sued the landlord alleging that the landlord unreasonably withheld its consent to the lease assignment.

At the trial, both plaintiff’s president and the attorney for the purchasers testified that the landlord refused to consent to the assignment. However, the landlord and three of the purchasers testified that the purchasers wanted an option for a new five-year lease and that the purchasers turned down the assignment when they were informed that the building housing the bar was to be demolished at the end of plaintiff’s lease.

On appeal, this court ruled that the jury’s verdict for plaintiff should be reversed because the jury had not been properly instructed and because there was no evidence that the proposed purchasers met reasonable commercial standards. However, despite evidence that the sale was conditioned upon the issuance of a liquor license and testimony that the purchasers refused to consummate the sale because there was no option to extend the lease, this court also held that it was unwilling to say that there was no evidence to support the jury’s finding that there was an assignee ready to take the lease. In the present case, we again are unwilling to say that there was no evidence to support the jury’s finding that there was an assignee ready to take the lease.

It is well settled that in reviewing a jury’s verdict, a court of appeal should not substitute its judgment for that of the jury and set aside a verdict unless there is no reasonable basis for the verdict shown in the record. (Hernandez v. Lukas (1982), 104 Ill. App. 3d 692, 432 N.E.2d 1028.) A jury’s findings should not be disturbed unless the reviewing court is able to say that there is no evidence that tends to support the verdict. (Zelinski v. Security Lumber Co. (1985), 133 Ill. App. 3d 927, 479 N.E.2d 1091.) If there is evidence which supports the jury’s verdict, this court should not interfere with the result. (Derrico v. Clark Equipment Co. (1980), 91 Ill. App. 3d 4, 413 N.E.2d 1345.) We find that there was evidence in the record to support a conclusion that Evening Tides tendered ready, willing, and able subtenants and that Golf’s refusal to consent to a sublease was unreasonable.

Considering first the offer from Jotwani and Shahani, we note that in addition to the unrebutted testimony of a former Golf employee that it was Golf’s policy to refuse subleases, there was testimony from Krueger and Shahani that Golf refused to allow a sublease of Evening Tides’ space and would consent only to a new lease at more than twice Evening Tides’ rent. As for Golf’s claim that the offer was conditional because of Jotwani and Shahani’s desire for an option, Shahani testified that he and Jotwani wanted to sublease the space and were willing to negotiate with Golf concerning an option to renew.

In Jack Frost, we refused to hold that the desire for an option precluded a jury from finding that the purchasers were ready to assume the lease, even though the building was scheduled to be demolished and no negotiations for an option were possible. We will not hold in this case that a desire for an option precludes a jury from finding that a subtenant was ready to take a lease, when there was testimony that he wanted the property and was willing to negotiate for an extension of the lease and there was no evidence that an extension would not have been possible.

In arguing that Jotwani and Shahani’s offer was insufficient, Golf makes the additional claim that the offer did not meet reasonable commercial standards because it was conditioned upon the approval of the Computerland national headquarters and this approval had not been obtained when Jotwani and Shahani first contacted Golf about subleasing the space. This argument is without merit.

In Vranas & Associates, Inc. v. Family Pride Finer Foods, Inc. (1986), 147 Ill. App. 3d 995, 498 N.E.2d 333, a tenant who was denied permission to sublease presented evidence that the proposed subtenant entered into a similar transaction with another party several months later. The appellate court held that this evidence was admissible to counter the landlord’s contention that the subtenant was not ready, willing, and able and would not have been able to consummate the deal in question. 147 Ill. App. 3d at 1005-06.

In the present case, Shahani testified that the approval of the Computerland national headquarters eventually was obtained and that he and Jotwani later opened a Computerland store at another location. We believe that this testimony rebuts Golf’s claim that Jotwani and Shahani’s offer was not commercially reasonable.

Also on the issue of commercial reasonableness, we note that Shahani testified that he and Jotwani paid Golf $50 for a credit investigation, that they gave Golf copies of their personal financial statements, and that, subsequently, Golf attempted to negotiate a new lease with them. From these facts, a jury could conclude that Golf found Jotwani and Shahani to be commercially reasonable tenants. See Cowan v. Chalamidas (1982), 98 N.M. 14, 644 P.2d 528 (holding that evidence that, shortly after refusing to consent to a sublease to two individuals, a landlord leased the property directly to the same two individuals established that the landlord considered them to be acceptable tenants).

Turning to the offers made by Torris and Weinberg, both testified that they wanted to sublease and that it was only after Golf demanded a new lease at a higher rent and set additional requirements that they decided not to take the property. In addition, like Shahani, Torris and Weinberg testified that they paid for credit investigations and that Golf subsequently attempted to enter into new leases with them. A jury could conclude from this testimony that Golf found Torris and Weinberg to be commercially suitable and that its refusal to allow them to sublease was unreasonable.

Golf also argues that Evening Tides is not entitled to take advantage of the terms of the contract allowing a sublease of the property because it was in breach of the contract. Golf contends that by abandoning the property on July 1, 1984, Evening Tides breached its lease contract and therefore could not avail itself of the terms of the contract or recover damages.

We previously have held there was sufficient evidence that Evening Tides presented suitable subtenants in Jotwani and Shahani and that Golf’s refusal to allow a sublease was unreasonable. Thus, it was Golf who initially breached the lease and Evening Tides is not precluded from taking advantage of the lease terms or recovering damages.

Golf finally argues that it was denied a fair trial by the cumulative effect of errors in the trial court. Golf argues that comments made by Evening Tides’ attorney in opening and closing arguments and the admission of irrelevant evidence were improper and served only to inflame the passions of the jury. We have reviewed the comments and evidence complained of and we are not persuaded they were so prejudicial as to deprive Golf of a fair trial. See Bresland v. Ideal Roller & Graphics Co. (1986), 150 Ill. App. 3d 445, 501 N.E.2d 830.

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

Affirmed.

CERDA, RJ., and RIZZI, J., concur.


author: JUSTICE KNECHT

text:
    PRAIRIE LAND CONSTRUCTION, INC., Plaintiff-Appellant, v. THE VILLAGE OF MODESTO, Defendant-Appellee.
    Fourth District
    No. 4—90—0439
    Opinion filed May 16, 1991.
    Rehearing denied June 11, 1991.

      Stuart Dobbs and Barbara B. Collins, both of Stratton, Dobbs, Nardulli & Lestikow, of Springfield, for appellant.
    Richard J. Bertinetti and Brent A. Cain, both of Bertinetti & Cain, of Carlinville, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

Plaintiff Prairie Land Construction, Inc. (Prairie Land), entered into a contract with the Village of Modesto (Village) for the construction of a water line. After the project had been substantially completed, the Village reported to Prairie Land what appeared to be a leak in one of the water pipes it installed. A Prairie Land employee viewed the scene of the suspected leak the day it was reported. After various Prairie Land employees and equipment arrived at the scene on the following day, a Prairie Land employee “shut the main down” and “bled the pressure,” which revealed there was no leak. For this Prairie Land billed the Village $1,158.50. The circuit court held Prairie Land was entitled to only $114 and entered judgment against the Village in that amount. Prairie Land appeals, and we affirm.

An invoice attached to Prairie Land's small claims complaint provides the following itemization of the amount which Prairie Land claimed:

March 16, 1989
Send lowboy to Gillespie (from Prairie Land’s Virden shop) to get backhoe 3 hours at $50 $150
Send Bill Garrison (pipefitter) to Modesto to locate any other utilities in area of leak 3 hours at $38 $114
Sheldon Black, superintendent (making phone calls, organizing men and equipment to go to scene of supposed leak) 1 hour at $45 $ 45
March 17, 1989
Haul backhoe on lowboy (from Virden) to and from ■ Modesto (to Virden) 2.5 hours at $50 $125
Return backhoe (on lowboy) to Gillespie (from Virden) 3 hours at $50 $150
Time lost (by backhoe and backhoe operator) on Gillespie job 5.5 hours at $45 $247.50
Bill Garrison, pipefitter 4 hours at $38 $152
Don Tigo, laborer 4 hours at $32.50 $130
Sheldon Black, superintendent 1 hour at $45 $ 45
$1,158.50

At the bench trial of this cause, Peter Libbra, Prairie Land’s president, testified the firm had a contract to construct a water line in the Village of Modesto, and that in March 1989, the job was substantially complete and was under warranty. He stated that on March 16, 1989, the Village reported a water leak to Prairie Land. The official who contacted Prairie Land indicated the leak was not an emergency and the repairs could wait until the next morning. On March 16, Bill Garrison, a Prairie Land employee, went to Modesto to determine the location of the supposed leak and to find out if any other utilities would have to be notified of the repair work. Libbra further testified the closest backhoe belonging to Prairie Land was at Gillespie, where Prairie Land was constructing a sewer plant, and on March 16, Prairie Land sent a laborer to Gillespie to transport the backhoe to Prairie Land’s shop at Virden.

Libbra stated that on the following morning, a backhoe operator, a pipefitter, and a laborer, who were Prairie Land employees, went to Modesto to fix the supposed leak. Libbra stated the charges for the time of Sheldon Black, superintendent, were attributable to “organizing the men and machines for [the repair] project [at Modesto].”

Libbra also testified the charges for the services for which Prairie Land claimed reimbursement were “consistent with prices in relation to the bid which [Prairie Land] made to the Village of Modesto.” In his testimony, Libbra suggested that if there had been a leak in the water line on March 16, and Garrison had shut down the nearest valve short of the leak, the individuals served by the water line would not have been able to use water until Prairie Land’s employees arrived the next morning to repair the leak.

On cross-examination, Libbra stated (1) he did not know whether the backhoe was being used in Gillespie on March 16, 1989, and (2) he did not have to call in another backhoe for the Gillespie job on March 17.

Also testifying on Prairie Land’s behalf was Bill Garrison. He testified that on March 16, 1989, he was the first Prairie Land employee to be notified of the suspected water leak in Modesto. He testified that after being notified of the suspected leak during the midafternoon of March 16, he contacted Sheldon Black, who said he would line up the crew for the next morning. On Black’s instructions, Garrison went to Modesto and inspected the supposed leak. Upon arriving at the site of the suspected leak, he noticed that in a ditch located over a water line, “there was water bubbling up quite profusely.” Because of the possibility of disrupting service to customers on the water line, Garrison did not shut off the line in order to determine whether a leak actually existed. Garrison testified that on the following day, the water main was shut down, but the water kept bubbling. This established the bubbling water was not being caused by a leak in the main.

At trial, a portion of the contract between Prairie Land and the Village for construction of the water line was admitted into evidence. This contract provides, in pertinent part:

“d. Should it be considered necessary or advisable by the Local Public Agency at any time before final acceptance of the entire work to make an examination of work already completed by uncovering the same, the Contractor shall on request promptly furnish all necessary facilities, labor, and material. If such work is found to be defective in any important or essential respect, due to fault of the Contractor or his subcontractors the Contractor shall defray all the expenses of such examination and of satisfactory reconstruction. If, however, such work is found to meet the requirements of the Contract, the actual cost of labor and material necessarily involved in the examination and replacement, plus 15 percent of such costs to cover superintendence, general expenses and profit, shall be allowed the Contractor and he shall, in addition, if completion of the work of the entire Contract has been delayed thereby, be granted a suitable extension of time on account of the additional work involved.”

After taking the cause under advisement, the circuit court entered a written order, which provided in part:

“Court finds that upon the plaintiff being notified of the possibility of a leak it became the responsibility of the plaintiff to determine whether or not work was or was not required. Court further finds the facts of this case show that no actual work or equipment was required to remedy the problem that was thought to exist. It is therefore ordered that the defendant be responsible for only that time and labor involved in order for the plaintiff to have an adequate opportunity to make a determination as to whether or not work was or was not required. Court finds that time to be 3hrs [sic] for Bill Garrison in the amount of $114.00 on March 16, 1989. All other costs and expenses incurred by the plaintiff are disallowed as part of the plaintiff’s claim.”

Accordingly, the court entered judgment in favor of Prairie Land in the amount of $114.

Prairie Land argues on appeal that under the unambiguous terms of the parties’ contract, it is entitled to the full amount for which it billed the Village, and the circuit court in effect rewrote the parties’ contract in holding it is entitled to less. Prairie Land states there is no basis for concluding Garrison should have shut down the water line on March 16 and thus risked disrupting service to customers served by the line. Prairie Land asserts instead that it acted reasonably in doing this on March 17, when it was in a position to immediately repair any leak which it discovered, thus ensuring customers would be without water for the shortest possible time. Prairie Land finally argues the various components of the total amount which it billed the Village are reasonable charges for services rendered and states the Village presented no evidence which establishes these charges were unreasonable.

The Village asserts before bringing a crew and equipment to Modesto, Prairie Land should have performed some perfunctory tests to ascertain whether a leak existed. The Village also contends that before committing men and equipment, Prairie Land should have informed Village officials of the probable amount of expenses it would incur if no leak was discovered. The Village further argues the court did not rewrite the parties’ contract, but rather, the expenses which the court disallowed were not “necessarily” incurred in the examination of the pipe for the suspected leak under the language of the contract. Also, the Village asserts the amount claimed by Prairie Land includes overcharges and is not supported by adequate time records.

In its reply argument, Prairie Land contends it was only required to establish it moved its equipment and crew to the site of the suspected leak in furtherance of the parties’ contract, and it was not required to establish its- actions were reasonable per se. Prairie Land further asserts in a situation such as is involved in the present case, it has no incentive to bring a greater amount of men or equipment to the site of a suspected leak than is necessary, because if there is a leak which was caused by faulty materials or workmanship, it bears the entire cost of responding to the leak. Prairie Land maintains there was no need for it to consult with Village officials regarding the costs the Village might incur in advance of responding to the suspected leak, since the matter of costs was already clearly spelled out in the parties’ contract. Prairie Land points out the circuit court apparently concluded the charges billed for March 17, 1989, were not recoverable, as opposed to being unreasonable, and maintains if this court takes a different view, we should remand this cause for further proof of damages under appropriate directions.

The contractual language here at issue, or similar language, is apparently used in many government construction contracts. (See, e.g., Stoeckert v. United States (1968), 183 Ct. Cl. 152, 391 F.2d 639; Len Co. & Associates v. United States (1967), 181 Ct. Cl. 29, 385 F.2d 438; Roberts v. United States (1966), 174 Ct. Cl. 940, 357 F.2d 938.) Curiously, though, there appear to be no cases interpreting this language as it applies to a situation similar to that here present.

As noted by Prairie Land, the intent of the parties to an unambiguous contract must be determined solely from the words of the contract. (Village of Grandview v. City of Springfield (1984), 122 Ill. App. 3d 794, 461 N.E.2d 1031.) A contract is ambiguous if its words are capable of being understood in more than one sense, either because of indefiniteness of expression or because a double meaning is attached to the words. (Village of Grandview, 122 Ill. App. 3d 794, 461 N.E.2d 1031; Joseph v. Lake Michigan Mortgage Co. (1982), 106 Ill. App. 3d 988, 436 N.E.2d 663.) If a contract is ambiguous, parol evidence may be considered in interpreting it. Lewis v. Board of Education of North Clay Community Unit School District No. 25 (1989), 181 Ill. App. 3d 689, 537 N.E.2d 435.

We hold the above-quoted portion of the parties’ contract is ambiguous, because the words “necessarily involved in the examination and replacement” are capable of being understood in more than one sense. These words may mean the labor necessarily involved in examining a water system for a suspected defect includes having a complete crew and the requisite equipment present when a suspected water leak is investigated, so repairs may begin immediately upon discovery of a leak and disruption of water service may be held to an absolute minimum. On the other hand, these words may mean having a complete repair crew and equipment present when a water system is examined for a suspected defect is not labor necessarily involved in examining the system, so long as a repair crew and equipment can be obtained in a reasonable amount of time after discovery of a defect. Prairie Land presented no evidence concerning industry or trade practices with regard to this matter, nor any other evidence which sheds light on the meaning of this ambiguous term of the parties’ contract. Thus, Prairie Land did not sustain its burden of establishing it has a contractual right to recovery of the entire amount claimed.

In addition to the lack of evidence as to whether all of the amounts claimed by Prairie Land were “necessarily involved in the examination and replacement” of the supposedly defective water line, there is an additional basis, not discussed by the parties, on which we may nevertheless affirm the circuit court’s judgment. See Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 457 N.E.2d 9; Computer Teaching Corp. v. Courseware Applications, Inc. (1989), 191 Ill. App. 3d 203, 547 N.E.2d 718.

The first sentence of the previously quoted paragraph of the parties’ contract requires the contractor to “promptly furnish all necessary facilities, labor, and material” if, before final acceptance of the entire work, the Village considers it necessary to make an examination of the previously completed work “by uncovering the same.” The remaining two sentences of this paragraph state the factors controlling the determination of who is responsible for the costs of any such examination. According the language of this paragraph its plain and obvious meaning (Johnstowne Centre Partnership v. Chin (1983), 99 Ill. 2d 284, 458 N.E.2d 480), the portions thereof which allocate responsibility for costs apply only when the Village requires the uncovering of a portion of previously completed work.

Here, there is no evidence (1) the employees which Prairie Land sent to Modesto to inspect the supposed leak at any time uncovered or excavated any portion of the water lines which Prairie Land installed, or (2) Prairie Land’s employees were specifically directed or advised by the Village to do so. It follows Prairie Land is not entitled to recover damages under the contractual language on which it relies, and Prairie Land asserts no grounds for recovery other than the quoted contractual language.

The Village has not cross-appealed the judgment in the amount of $114 which the circuit court entered in Prairie Land’s favor. Therefore, although the pertinent contractual language arguably affords Prairie Land no basis for recovery, we must affirm the judgment entered against the Village.

Affirmed.

SPITZ and GREEN, JJ., concur.


author: JUSTICE McCULLOUGH

text:
      In re MARRIAGE OF FRANCINE CHEGER, Petitioner-Appellee, and DAVID M. CHEGER, Respondent-Appellant.
    Fourth District
    No. 4—90—0579
    Opinion filed May 9, 1991.

      Gary R. Thompson, of Bloomington, for appellant.
    Don C. Hammer, of Hayes, Schneider, Hammer, Miles & Cox, of Bloomington, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

The marriage of David M. Cheger and Francine Cheger was dissolved on May 1, 1990. Respondent David M. Cheger appeals the judgment of dissolution and raises issues concerning the award of maintenance, distribution of property, and order for attorney fees. We affirm.

Only those facts necessary to a resolution of the issues raised will be recited.

On March 3, 1989, petitioner Francine Cheger filed a petition for dissolution of marriage on the grounds of respondent’s adultery. On March 10, 1989, respondent denied the allegations of adultery and filed a counterpetition for dissolution on the grounds of mental cruelty. Petitioner denied the allegations in the counterpetition. On August 17, 1989, respondent amended his response to petitioner’s petition and admitted committing adultery while married to petitioner. The trial court ordered the dissolution of marriage on the grounds of mental cruelty.

Respondent and petitioner, both age 37 at the time of the initiation of the dissolution proceedings, were married on November 22, 1975. One child, Justin, was born to the parties during the marriage and he was 10 years old at the initiation of these proceedings. Petitioner was awarded custody of Justin, and respondent was ordered to pay $1,000 a month in child support. Respondent does not challenge the custody or child support orders.

Throughout most of their marriage, the parties together operated a retail carpet business in Bloomington known as Floor Covering Associates of Bloomington, Inc. (FCA). Respondent was the president of FCA; petitioner was the corporate secretary. Petitioner, who received an associate degree in accounting in 1972, was employed in the accounting department of FCA from 1977 until March 1989 when respondent terminated her employment. While employed at FCA, petitioner’s duties included advertising, and the overseeing of the accounting department. Petitioner was in charge of auditing the bank statements for FCA accounts and had authority to hire and fire persons in the accounting department. Prior to and while working at FCA from 1976 to 1980, petitioner was also employed as an office manager for another business where she was responsible for the bookkeeping. There, petitioner received a salary of $15,000 per year. Petitioner’s salary at FCA when she was terminated in 1989 was $5,200 per year. In previous years, petitioner received a salary of $2,500 to $3,000 a year which was used to fund an IRA account for petitioner. Petitioner worked 30 to 32 hours per week in the last two years of employment at FCA. Following her termination by respondent, petitioner did not apply for any other jobs. At the time of the final hearing on the dissolution petition, petitioner was enrolled as a student at Illinois State University (ISU). Petitioner entered ISU after the dissolution petition was filed, and at the time of the final hearing in this case, she had completed six credit hours of course work and was then taking courses totalling 10 credit hours for a degree of speech communications or business. Petitioner testified she did not know how long it would take to complete her studies. Petitioner also stated she believed she could not obtain employment comparable to the job she held at FCA without completing her education. Petitioner has no physical or mental disabilities.

Respondent established his own salary and had received $22,000 to $24,000 per year as president of FCA. In addition, respondent received commissions and he determined the amount and time of taking of the commissions. The parties leased property to FCA and received monthly lease payments in the amount of $4,776 before November 1, 1989, and $6,250 after November 1, 1989. Respondent had full use of a Cadillac, a van, and another vehicle at the expense of FCA. Respondent also received in excess of $24,000 in reimbursements from FCA from January through November 1989. The reimbursements represented business and personal expenses of respondent.

The parties stipulated that the following is a list of all marital assets except FCA and their values:

ITEM VALUE
3005 Gill Street Bloomington, Illinois $232,500.00
2612 Hall Court Bloomington, Illinois $102,500.00
15300 Bells Bay Charlevoix, Michigan 30,000.00
Sarasota time share 3,500.00
45-foot Starratt yacht 77,500.00
210 Cessna airplane 56,500.00
1984 Cadillac 8,000.00
Mercedes 280SL 27,000.00
1979 Dodge van 1,500.00
1982 Kawasaki motorcycle 1,000.00
Snowmobile 200.00
Husband’s IRA 56,380.00
Wife’s IRA 24,717.00
Phone System 1,000.00
Computer 1,500.00
Personal property at 2612 Hall Ct. 13,500.00
Cash 12,000.00
TOTAL $649,297.00

The marital debts were found as follows:

Mortgage on GUI Street property $ 86,873.14
Mortgage on Hall Court property 18,012.22
Debt on plane 23,093.77
Debt on Mercedes 7,765.00
TOTAL $135,744.13

In her financial affidavit, petitioner stated she had no monthly income and her expenses were $3,655. This figure includes the monthly mortgage payment on the Hall Court property ($450) and the monthly car payment for the Mercedes ($430). Respondent stated his monthly gross income was $7,850 and his monthly expenses were $6,629, which included the monthly payments on all the marital debts as listed above ($3,289), the child support and témporary maintenance respondent was paying petitioner in the total amount of $2,250, and respondent’s other monthly expenses in the amount of $1,090.

The trial court divided the marital property as follows:

Respondent Petitioner
Gill Street $232,500.00 0.00
Hall Court 0.00 $102,500.00
Bells Bay 30,000.00 0.00
Sarasota time share 0.00 3,500.00
Yacht 77,500.00 0.00
Airplane 56,500.00 0.00
Cadillac 8,000.00 0.00
Mercedes 0.00 27,000.00
Dodge van 1,500.00 0.00
Motorcycle 1,000.00 0.00
Snowmobile 200.00 0.00
IRA’s 0.00 81,097.00
Phone system 1,000.00 0.00
Computer 1,500.00 0.00
Personal property 0.00 13,500.00
Cash 0.00 12,000.00
FCA Stock 260,000.00 0.00
TOTAL $669,700.00 $239,597.00

Respondent was ordered to pay all the marital debts and to pay $150,000 to petitioner in three installments as follows: $55,407.85 by August 1, 1990; $50,000 by July 1, 1991; and $50,000 by July 1, 1993. The first installment includes $5,407.85 in additional and unenumerated payments required to be paid by respondent to petitioner. Although not listed by the trial court in its order, the $5,407.85 represents a reimbursement to petitioner for attorney fees paid by FCA on respondent’s behalf and educational expenses petitioner paid ISU for her education. The court also ordered respondent to pay petitioner $2,500 a month in rehabilitative maintenance from May 1, 1990, through April 1, 1993; $1,500 per month from May 1, 1993, through April 1, 1996; and $1,000 per month thereafter until April 1, 2000.

On November 29, 1989, petitioner filed a motion under Supreme Court Rule 137 (134 Ill. 2d R. 137) for sanctions and attorney fees against respondent for the false pleading respondent filed in response to petitioner’s dissolution petition. Petitioner presented evidence that she incurred additional attorney fees in the amount of $4,072.55 on account of the false pleading. The trial court ordered respondent to pay the $4,072.55 in attorney fees for petitioner.

Respondent’s motion for reconsideration of the judgment was granted in part but concerned issues not raised in this appeal.

Respondent first contends the award for rehabilitative maintenance to petitioner for 10 years is contrary to the evidence and the law. Respondent points to the fact that petitioner worked throughout their marriage in management positions as evidence that petitioner has present ability to obtain “very appropriate employment” to meet her reasonable needs. Respondent argues petitioner made no showing that additional education would assist her in obtaining employment. Respondent further argues the maintenance award should be reversed because petitioner only asked for maintenance for five years with a review at the end of five years. Given the marital property awarded to petitioner, respondent contends she will have more than enough assets to meet her monthly expenses. Respondent also argues the trial court did not properly consider respondent’s ability to pay maintenance.

Section 504 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 504) directs a court may grant maintenance only if it finds the spouse seeking maintenance:

“(1) lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs, and
(2) is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home, or
(3) is otherwise without sufficient income.” (Ill. Rev. Stat. 1989, ch. 40, par. 504(a).)

Section 504 further provides that the amount of the maintenance order and the period during which maintenance is to be paid shall be determined after the court considers all relevant factors, including:

“(1) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
(2) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(3) the standard of living established during the marriage;
(4) the duration of the marriage;
(5) the age and the physical.and emotional condition of both parties;
(6) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance; and
(7) the tax consequences of the property division upon the respective economic circumstances of the parties.” (Ill. Rev. Stat. 1989, ch. 40, par. 504(b).)

In authorizing rehabilitative maintenance, the Act aims to provide incentive for the spouse receiving support to use diligence in procuring training or skills necessary to attain self-sufficiency. (In re Marriage of Wilder (1983), 122 Ill. App. 3d 338, 461 N.E.2d 447.) This goal, however, must be balanced against a realistic appraisal of the likelihood that the spouse will be able to support herself in some reasonable approximation of the standard of living established during the marriage. (In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 464-65, 426 N.E.2d 1087, 1096.) The propriety of a maintenance award as well as the amount and duration thereof are matters which lie within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. (In re Marriage of Hart (1990), 194 Ill. App. 3d 839, 851, 551 N.E.2d 737, 744.) An abuse of discretion occurs where no reasonable man would take the view adopted by the trial court. In re Marriage of Weinberg (1984), 125 Ill. App. 3d 904, 916, 466 N.E.2d 925, 933, citing In re Marriage of Johnson (1982), 106 Ill. App. 3d 502, 436 N.E.2d 228.

In light of the factors set forth in section 504, we conclude the maintenance award is supported by the evidence. Prior to the initiation of these proceedings, petitioner worked 30 to 32 hours per week in a very successful family business in a management and bookkeeping position at a salary less than $5,000 per year. Petitioner also had primary responsibility for her son. After the petition for dissolution was filed, petitioner returned to school to continue her education which she stated was needed for her to gain appropriate employment. Respondent presented no evidence to the contrary. Where the court has specific evidence regarding educational background, present educational pursuits, and income at the time of dissolution, there is sufficient evidence to set a specific period of time for maintenance. (In re Marriage of Wisniewski (1982), 107 Ill. App. 3d 711, 437 N.E.2d 1300.) Petitioner’s desire to return to school to improve her chances for employment distinguishes this case from In re Marriage of Banach (1986), 140 Ill. App. 3d 327, 489 N.E.2d 363, which respondent asserts is authority for his argument that petitioner does not need additional training for future employment.

The benchmark for a determination of maintenance is the reasonable needs of a spouse seeking maintenance in view of the standard of living established during the marriage, the duration of the marriage, the ability to become self-supporting, the income-producing property of a spouse, if any, and the value of the nonmarital property. (Bentley v. Bentley (1981), 84 Ill. 2d 97, 417 N.E.2d 1309.) In her financial affidavit, petitioner stated she had no income and her monthly expenses were $3,655. Disregarding $390 of petitioner’s expenses, which are attributable to her son, and $830 which represents, debts respondent was ordered to pay, petitioner is still left with $2,435 of debt each month. The parties enjoyed a lavish life-style during their 14-year marriage. With her present educational background, petitioner may be able to obtain employment similar to her bookkeeping position at the other retail business which paid only $15,000 per year. This is far below the standard of living established during her marriage. Respondent’s gross income for 1988 was $87,687 while petitioner earned $4,050. Respondent’s financial affidavit showed his monthly income, exclusive of commissions, was $7,850. While respondent’s monthly expenses, including child support of $1,000 and maintenance of $2,500, amount to $8,710 and exceed his monthly income, respondent has complete control over the amount of his commissions and when he can draw them. The evidence established respondent has the financial resources to meet his needs as well as those of petitioner. Further, respondent will continue to have greater earning power than petitioner.

Respondent argues petitioner has sufficient marital assets which may be invested to provide her support. However, petitioner is not required to sell or impair capital assets to provide for her support where respondent has sufficient income to meet his needs as well as hers. In re Marriage of Heller (1987), 153 Ill. App. 3d 224, 234-35, 505 N.E.2d 1294, 1300-01; see also In re Marriage of Emery (1989), 179 Ill. App. 3d 744, 750, 534 N.E.2d 1014, 1018; In re Marriage of Thornton (1980), 89 Ill. App. 3d 1078, 1088, 412 N.E.2d 1336, 1344.

Respondent also contends the maintenance award should be reversed because the court did not make it reviewable after five years and exceeded petitioner’s request for maintenance for five years. In the May 1, 1990, order, the trial court "reserve[d] jurisdiction in this cause for the purpose of entering any Orders required in accordance with the terms contained herein.” While receiving maintenance, petitioner has an affirmative obligation to seek appropriate employment and to make a good-faith effort to become financially independent. (In re Marriage of Wade (1987), 158 Ill. App. 3d 255, 511 N.E.2d 156.) Should petitioner not fulfill her obligations, section 510(a) of the Act directs that the maintenance award may be modified upon respondent’s showing of substantial change in circumstances. (Ill. Rev. Stat. 1989, ch. 40, par. 510(a); Rice v. Rice (1988), 173 Ill. App. 3d 1098, 528 N.E.2d 14 (rehabilitative maintenance for 42 months may be modified during the period pursuant to section 510(a) upon a substantial change in circumstances).) A substantial change in circumstances may be a change in the ability of petitioner to support herself. (In re Marriage of Henzler (1985), 134 Ill. App. 3d 318, 480 N.E.2d 147; see also Ill. Ann. Stat., ch. 40, par. 510(a), Historical and Practice Notes, at 699 (Smith-Hurd 1980).) Thus, while the order did not provide for review of the maintenance award, respondent is not precluded from seeking a review during the 10-year period if there is a substantial change in circumstances. As to the fact that maintenance was awarded for five years beyond the period requested by petitioner, we deem the trial court acted within its discretion in independently determining the amount and duration of the maintenance award.

Next, respondent argues the order requiring him to pay petitioner $150,000 in three installments to equalize the distribution of marital property imposes a financial hardship on him and should be reversed. Respondent contends the transfer of fixed assets from him to petitioner such as the yacht and airplane in lieu of the cash payment would accomplish a nearly equal distribution of property, leaving respondent to pay only $16,000 to fully equalize the property distribution.

Petitioner argues respondent agreed in the proceedings below to the distribution of property as ordered by the trial court and cannot now claim error in the distribution. Petitioner maintains respondent has not demonstrated why he cannot sell some of the marital assets, such as the plane and yacht, to raise the money needed to pay petitioner or mortgage some of the assets to make the payments.

Section 503(d) of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 503(d)) provides marital property shall be divided in “just proportions” considering all relevant factors as well as others deemed relevant to the case. (In re Marriage of Riech (1991), 208 Ill. App. 3d 301, 308, 566 N.E.2d 826, 830; In re Marriage of Aschwanden (1980), 82 Ill. 2d 31, 37, 411 N.E.2d 238, 241.) The touchstone of proper apportionment is whether the distribution is equitable, with each case resting on its own facts. (Hart, 194 Ill. App. 3d at 847, 551 N.E.2d at 741.) The trial court’s discretion in dividing marital property will not be disturbed absent clear abuse. Riech, 208 Ill. App. 3d at 309, 566 N.E.2d at 830; In re Marriage of Cecil (1990), 202 Ill. App. 3d 783, 790, 560 N.E.2d 374, 378.

As noted, the trial court divided the marital property by allocating a total of $389,597 in assets to petitioner, including the $150,000 cash payment in three installments and $519,700 in assets to respondent. Because respondent is responsible for the marital debts, the net assets he received are $383,955.87. Prior to the final division of assets, respondent proposed he be awarded the yacht and airplane along with other marital assets and that he pay petitioner a cash sum of $103,212 to equalize the division of property. Respondent cannot now claim error in the division of property to which he acquiesced in the trial court. (See Doyle v. Shlensky (1983), 120 Ill. App. 3d 807, 458 N.E.2d 1120 (waiver of errors which were not objected to in the proceedings below).) Further, we find no abuse of discretion in the division of marital property. As we noted previously, respondent has significantly more earning power than petitioner and has sufficient resources to make the cash payments to petitioner as directed.

Next, respondent claims the order requiring him to pay $4,072.55 of petitioner’s attorney fees must be reversed because no itemized bill for these fees was submitted, no evidence was presented on the necessity and reasonableness of these fees, and there was no showing of the inability of petitioner and of the ability of respondent to pay these fees. Petitioner contends any argument addressed to the sufficiency of her evidence on attorney fees is waived because respondent did not object at trial. Petitioner argues that while it is unclear whether the fees were awarded under section 508 of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 508) or as a sanction under Rule 137, the evidence supports the award as a sanction and under the Act.

The record shows petitioner presented evidence through testimony and billing statements from her attorneys that between March and August 1989, she incurred additional attorney fees in the amount of $4,072.55 on account of respondent’s false pleading denying his adultery. Respondent did not object to the sufficiency or introduction of the billing statements into evidence. Thus, respondent has waived any issue regarding the sufficiency of the evidence on this issue. Wade, 158 Ill. App. 3d 255, 511 N.E.2d 156.

The judgment entered on May 1, 1990, does not reflect whether the $4,072.55 in attorney fees was awarded pursuant to section 508 of the Act or under Rule 137. We conclude the award was proper under the Act and as a sanction against respondent for his false pleading. Section 508(a)(1) authorizes the award of attorney fees after consideration of the financial resources of the parties for the maintenance or defense of any proceeding under the Act. (Ill. Rev. Stat. 1989, ch. 40, par. 508(a)(1).) Rule 137 allows, as a sanction against a party filing a false pleading, an order for the reasonable expenses, including attorney fees, incurred because of the false pleading. (134 Ill. 2d R. 137.) The record clearly shows respondent filed a false pleading and did not withdraw the false pleading for five months. Further, the evidence established petitioner has no ability to pay the fees and respondent does. We find no error.

For the foregoing reasons, the order of the trial court is affirmed.

Affirmed.

GREEN and STEIGMANN, JJ., concur.

      Book value as established by petitioner through expert testimony.