text:
    PAUL L. SMITH, a Minor, by Linda J. Smith, His Mother and Next Friend, et al., Plaintiffs-Appellants, v. KATHY PITCHFORD, Defendant-Appellee.
    Fifth District
    No. 5—90—0622
    Opinion filed September 18, 1991.

      James H. Cooksey and David M. Foreman, both of Crain, Cooksey, Veltman & Miller, Ltd., of Centraba, for appellants.
    Richard A. Cary and Janie F. Smith, both of Wham & Wham, of Centraba, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Plaintiff, Paul Smith, by Linda Smith, his mother and next friend, brought an action in the circuit court of Washington County to recover damages for personal injuries he sustained when he was bitten by a dog owned by Kathy Pitchford. The jury returned a verdict in favor of Pitchford and against plaintiff. Plaintiff’s post-trial motion was denied, and he appeals. For the reasons which follow, we hold that the circuit court should have entered judgment notwithstanding the verdict in favor of the plaintiff on the question of liability and ordered a new trial on the issue of damages. We, therefore, reverse and remand with directions.

The evidence established that on April 15, 1987, plaintiff, Paul Smith, an eight-year-old child, was bitten by Kathy Pitchford’s dog, Roscoe. Paul, along with an eight-year-old girl named Heather Neil, went to defendant’s home to visit defendant’s daughter sometime around 5 p.m. that day. Defendant’s daughter, Kerry Pitchford, and Heather Neil were classmates and friends. Paul had been to the Pitchford home to play on a previous occasion.

With Paul walking and Heather riding her bike, the children approached the Pitchford home and saw Kathy Pitchford barbecuing out front on a partially enclosed patio. While still in the street the children called out to Mrs. Pitchford and asked if Kerry was home. Defendant told them that Kerry was not home and returned to her barbecuing.

Paul walked up the driveway towards the patio entrance until he was between a fence which partially enclosed the patio and a car parked in the driveway. At this time Paul was met by the defendant’s dog, Roscoe. Paul stood with his back to the car, and Roscoe was positioned in front of him. Paul testified that he said, “Hi Roscoe,” whom he had met on his prior visit, and began to pet the dog. After approximately 30 seconds Paul looked down at the dog at which time Roscoe jumped up and bit plaintiff in the face. During all these events Mrs. Pitchford remained on the patio, her view of Paul obstructed by the fence.

When she heard Heather’s screams, Kathy Pitchford walked around the fence, and saw blood on Paul’s face. Heather rode home for help, and Mrs. Pitchford sent Paul into the house, where she gave him a damp washcloth for his face. Both returned outside and were met by Paul’s father, who had been notified by Heather.

Paul’s father took him to the local emergency room. There the wounds were treated and stitched. Paul returned to the hospital a few days later due to swelling about the face and neck. To treat the infection the doctor removed the original stitches, drained the wounds, and restitched them. Plaintiff was left with some permanent facial scarring which may be partially remedied by surgery.

Plaintiff’s claim is based on section 16 of the Animal Control Act (Ill. Rev. Stat. 1985, ch. 8, par. 366):

“If a dog or other animal, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the owner of such dog or other animal is liable in damages to such person for the full amount of the injury sustained.”

Under this section there are four elements which must be proved by the plaintiff: (1) injury caused by an animal owned by the defendant; (2) lack of provocation; (3) peaceable conduct of the person injured; and (4) the presence of the injured person in a place where he has a legal right to be. Robinson v. Meadows (1990), 203 Ill. App. 3d 706, 710, 561 N.E.2d 111, 113.

There was no dispute at trial as to the first element. Defendant admits ownership of the dog and injury to plaintiff. As to the second and third elements, defendant offered no evidence. Plaintiff testified that upon encountering the dog he stopped, said “Hi Roscoe,” and began to pet him. No evidence was offered to contradict or supplement this testimony. Mere presence on private property does not constitute provocation regardless of how the animal may interpret the visitor’s movements. (Messa v. Sullivan (1965), 61 Ill. App. 2d 386, 209 N.E.2d 872.) Provocation cannot be said to exist within the meaning of section 16 of the Animal Control Act (Ill. Rev. Stat. 1985, ch. 8, par. 366) where such unintentional stimuli as greeting or petting a dog result in the dog attacking the plaintiff viciously and the attack is “out of all proportion to the unintentional acts involved.” (Robinson v. Meadows (1990), 203 Ill. App. 3d 706, 713, 561 N.E.2d 111, 115.) All evidence presented indicated that plaintiff’s conduct was peaceable and involved no provocation within the meaning of the statute. Paul’s testimony was corroborated in all relevant aspects by the testimony of Heather Neil, and there were no inconsistencies between the testimony of Kathy Pitchford and that of Paul. It is the function of a jury to weigh the conflicts and inconsistencies of testimony presented in determining the credibility and weight to be given such testimony. Where, however, the testimony of a witness is neither contradicted, either by positive testimony or by circumstances, nor inherently improbable, and the witness has not been impeached, that testimony cannot be disregarded even by a jury. (People ex rel. Brown v. Baker (1981), 88 Ill. 2d 81, 430 N.E.2d 1126.) This is just such a case. Paul’s testimony was not contradicted in any relevant aspect nor was it inherently improbable. As such the jury, contrary to arguments by the defense, was not at liberty to reject the unimpeached testimony of plaintiff on the issues of provocation and peaceable conduct.

The fourth and final element concerned the lawful presence of the injured party. There is no debate as to the location of the plaintiff on the driveway of the defendant at the time of the injury; thus, there is no factual dispute. It has been held:

“An owner of property who provides a path or walk from the public way to his door, without some indication (sign, posting of notice or words) warning away those who seek lawful business with him extends a license to use the path or walk during the ordinary hours of the day. Persons who thus make use of the path or walk are licensees.” (Dobrin v. Stebbins (1970), 122 Ill. App. 2d 387, 389-90, 259 N.E.2d 405, 407.)

The record indicates that the driveway was the sole means of access to the door of the house from the public way. There were no signs or notices posted, and defendant testified that she gave the plaintiff no words of warning. Paul’s uncontradicted and unimpeached testimony indicated that he entered the defendant’s property by means of the driveway for purposes of a social visit. However unusual this may seem for an eight year old, it is not inherently improbable and the jury was not free to disregard it. Plaintiff was clearly in a place where he had a legal right to be at the time of the injury.

The record establishes that the evidence, when viewed in its aspect most favorable to the defendant, so overwhelmingly favors the plaintiff that no contrary verdict could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) We hold that the circuit court erred in denying plaintiff’s motion for a judgment notwithstanding the verdict on the issue of liability. Robinson v. Meadows (1990), 203 Ill. App. 3d 706, 561 N.E.2d 111.

The judgment of the circuit court is reversed, and the cause is remanded with directions to enter judgment notwithstanding the verdict in favor of plaintiff on the issue of liability and to grant plaintiff a new trial on the issue of damages.

Reversed and remanded with directions.

HOWERTON and GOLDENHERSH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE CHAPMAN

license: Public Domain

text:
    TRINITY BIBLE BAPTIST CHURCH, Plaintiff-Appellant, v. FEDERAL KEMPER INSURANCE COMPANY et al., Defendants-Appellees (Jerry Sokolowski, Defendant).
    Fifth District
    No. 5—90—0379
    Opinion filed September 18, 1991.

      Bruegge & Becker, of Breese (William J. Becker, of counsel), for appellant.
    Daniel J. Leahy and Paul 0. Watkiss, both of Leahy, Eisenberg & Fraenkel, Ltd., of Chicago, for appellee Federal Kemper Insurance Company.
    Douglas W. Richard, of Satter, Ewing, Beyer & Spires, of Collinsville, for appellee Union Automobile Indemnity Association.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Trinity Bible Baptist Church (Trinity) brought suit against the defendants to recover for damages to its parsonage caused by a fire which occurred on October 6, 1986. Trinity claimed coverage under policies issued by Federal Kemper Insurance Company (Kemper) and Union Automobile Indemnity Association (Union), and also sought damages from Jerry Sokolowski for his alleged negligence in failing to procure insurance coverage. The trial court granted summary judgment in favor of Kemper and Union because each insurance policy contained a one-year time limitation for bringing claims, and Trinity failed to file suit within one year of the occurrence of the fire. The trial court also denied Trinity leave to file an amendment to its complaint to allege negligent conduct on the part of Union. No dispositive rulings were entered with respect to the case against Sokolowski, but the court entered an appropriate Supreme Court Rule 304(a) finding (134 Ill. 2d R. 304(a)).

Trinity raises the following issues: (1) whether the one-year time limitations in the Union and Kemper insurance policies were tolled; (2) whether the one-year time limitations were waived by Union and Kemper and/or whether Union and Kemper are estopped from asserting the one-year limitation; and (3) whether the trial court erred in refusing to allow Trinity to amend its complaint. We reverse.

The order appealed from provides:

“[T]he court grants the motions for summary judgment filed on behalf of Defendants *** Kemper *** and Union ***. Each contract for insurance had a one year period of limitations. No proof of loss was requested by either defendant. Therefore no tolling of the period of limitations occurred. Plaintiff failed to bring suit within the specified period of time.” (Emphasis added.)

Both the Kemper and Union insurance policy limitations provisions provide in part:

“No action can be brought unless the policy provisions have been complied with and the action is started within one year after the date of loss.”

This provision is further limited by section 143.1 of the Insurance Code, which states:

“Whenever any policy or contract for insurance *** contains a provision limiting the period within which the insured may bring suit, the running of such period is tolled from the date proof of loss is filed, in whatever form is required by the policy, until the date the claim is denied in whole or in part.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 73, par. 755.1.)

Both the Kemper and Union policies contain the following proof-of-loss provision:

“2. Your Duties After Loss. In case of a loss to covered property, you must see that the following are done:
a. give prompt notice to us or our agent;
* * *
g. send to us, within 60 days after our request, your signed, sworn proof of loss which sets forth, to the best of your knowledge and belief:
(1) the time and cause of loss;
(2) the interest of the insured, and all others in the property involved and all liens on the property;
(3) other insurance which may cover the loss;
(4) changes in title or occupancy of the property during the term of the policy;
(5) specifications of damaged buildings and detailed repair estimates;
(6) the inventory of damaged personal property described in 2e above ***.” Emphasis added.

It is undisputed that no request for a proof of loss was made by either Union or Kemper. The trial court ruled: (1) the policy requires the plaintiff to file a proof of loss only if so requested, (2) the statute provides that tolling of the one-year period of limitation occurs from the date the proof of loss is filed in whatever form required by the policy, and (3) no proof of loss was requested; therefore, no tolling occurred and the claim was time barred. We disagree with the trial court’s analysis.

The basic difficulty with the trial court’s interpretation of the tolling provision and the policy is that it equates “in whatever form is required by the policy” with “after our request.” The statute is not concerned with the timing of the request. The language “in whatever form is required in the policy” is intended to allow the insurers to elicit certain information in a certain form. (See Vole v. Atlanta International Insurance Co. (1988), 172 Ill. App. 3d 480, 526 N.E.2d 653.) Whether or not the insurer makes a “request” for the proof of loss has nothing to do with the form in which the information must be furnished.

Where the terms of an insurance policy are clear and unambiguous, the words of the policy will be given their plain meaning. (Giardino v. American Family Insurance (1987), 164 Ill. App. 3d 389, 391, 517 N.E.2d 1187, 1188.) The word “form” in the statutory tolling provision has been defined as:

“A model or skeleton of an instrument to be used in a judicial proceeding or legal transaction, containing the principal necessary matters, the proper technical terms or phrases and whatever else is necessary to make it formally correct, arranged in proper and methodical order, and capable of being adapted to the circumstances of the specific case.” (Black’s Law Dictionary 586 (5th ed. 1979).)

The phrase in the proof-of-loss provision, “send to us within 60 days after our request,” does not dictate the form of the proof of loss. Rather, the phrase operates as a condition precedent to the companies’ requirement that a proof-of-loss be filed. Kemper and Union admit that they never requested a proof of loss. Whether or not the request was made, however, is irrelevant to the form which the proof is to take. The proof-of-loss provision in the Kemper and Union policies clearly outlines the form in which the proof is to be submitted: it must be a signed and sworn proof of loss setting forth particular information regarding the claim.

The trial court did not address the question of whether a proof of loss was filed and, if so, whether it was in proper form. The only condition on the filing of the proof of loss is that it be in whatever form is required by the policy. The form of the proof of loss required by Kemper and Union is set forth with particularity in the proof-of-loss provision of the companies’ policies. The question is not whether a proof of loss was requested but whether it was filed in the form required. If it was filed, the tolling occurs whether the company requested it or not. We conclude that the trial court erred in holding that because no proof of loss was requested, no tolling of the period of limitations occurred. The primary rule of statutory construction is that the court must ascertain and give effect to the intent of the legislature. (People v. Ullrich (1989), 135 Ill. 2d 477, 483, 553 N.E.2d 356, 359.) When construing a statute, the court should look first to the language of the statute, giving the terms of the statute their plain and ordinary meaning. (Ullrich, 135 Ill. 2d at 483, 553 N.E.2d at 359.) The language in section 143.1 specifies that the period of limitation is tolled from the date the proof of loss is filed.

Our holding is consistent with the intent of the legislature with regard to section 143.1, as evidenced by the legislative debate:

“Schuneman: '*** Would this Bill [sic] allow a longer period during which time lawsuits could be brought against insurance companies? ***’
Jaffe: “*** Basically, what happens is that an individual has a policy. He makes a claim against his insurance company and the insurance company just sits on the policy ... on that proof of loss and doesn’t do anything. And that person believes that at that particular point that he is in fact protected by the insurance company. What really turns out is that while he has filed that thing with the proof of loss, [sic] the insurance company has not moved on, the statute of limitations runs and therefore, the person is out [sic] in making his claim in court. So, basically, this is a consumer protection ***.’ ” (82d Ill. Gen. Assem., House Proceedings, April 22, 1981, at 11 (statements of Representatives Schuneman and Jaffe).)

To hold that the tolling provision does not apply where the insurance company does not specifically request a proof of loss could lead to absurd results. For instance, assume an insurance policy which is completely devoid of a proof-of-loss provision, but with an insured who, on his own initiative, files a thorough proof of loss three months after the date of loss. Further assume that the insurance company maintains contact with the insured, conducts an investigation of the claim, and one day after the one-year anniversary of the loss denies the claim. If we adopt the defendants’ interpretation of section 143.1, the insured would not be allowed the benefit of the statutory tolling provision, even though he diligently filed a thorough proof of loss and the insurance company continued to process his claim. The deprivation of the tolling provision would occur simply because the company did not “request” the proof of loss, but the statute does not limit its tolling provision to cases in which the insurance company requested a proof of loss. The tolling provisions are available whenever the proof of loss has been filed whether requested or not. Applying section 143.1 as we have done affords the insured the “consumer protection” which the legislature intended when it passed section 143.1.

This interpretation does no disservice to the insurance company if the insured furnishes all information required and in the form required. The company can conduct whatever further investigation is necessary and then promptly pay or deny the claim. The statute of limitations is tolled only for the limited time that the company is continuing its investigative and deliberative processes after it has received all the information from its insured.

The trial court did not address the adequacy of the plaintiff’s proof of loss. Both Kemper and Union contend that coverage would not be afforded even absent their one-year limitation defense. Because the trial court concerned itself solely with the tolling provision in awarding summary judgment for Kemper and Union, we reverse for a determination of the adequacy of the information furnished to comply with the proof-of-loss provision.

Kemper cites Koclanakis v. Merrimack Mutual Fire Insurance Co. (N.D. Ill. 1988), 709 F. Supp. 801, aff’d (7th Cir. 1990), 899 F.2d 673, as support for its position. In Koclanakis the insured brought an action to recover for a burglary loss. The insurer filed a motion for summary judgment on the ground that the insured’s suit was not timely filed. The district court granted the insured’s motion and held that the tolling statute did not apply.

The proof-of-loss provision in the Koclanakis policy included language similar to that in the instant case:

“In case of loss, the named insured shall:
* * *
(e) submit to the Company within 60 days after requested a signed, sworn statement ***.” (Emphasis added.) (709 F. Supp. at 806.)

The court held:

“Koclanakis can draw no comfort from [the tolling statute]: He never satisfied the precondition for statutory tolling because, as already discussed, he never filed a proof of loss ‘in whatever form is required by the policy.’ ” (709 F. Supp. at 808.)

Kemper argues that the virtually identical policy language in Koclanakis and in this case requires this court to follow the ruling of the district court. We disagree.

An examination of the facts in Koclanakis reveals that approximately six months after the burglary occurred, the insurer mailed a “sworn statement in proof of loss” to the insured, and requested that the insured sign the form, thereby swearing to the proof of loss. The insured did not comply with this request but instead filed his proof of loss almost two years after the burglary. The one-year limitation for filing a claim had expired well before the insured filed a proof of loss. It is clear that were the court in that case to have allowed the insured relief, it would have had to interpret the statutory tolling provision as permitting the insured to file proof of loss at any time and consequently to indefinitely extend the statute. As noted in People v. Steppan (1985), 105 Ill. 2d 310, 473 N.E.2d 1300, it cannot be presumed that the legislature intended absurdity, inconvenience, or injustice. We do not disagree with the Koclanakis holding that the tolling provision did not apply, but the insured in this case argues that it filed a proof of loss well within the first year after the fire, which makes Koclanakis distinguishable.

Given our decision as to the first issue raised on appeal, we need not reach the issue of whether Kemper and Union waived or are estopped from asserting the one-year time limitation.

We turn now to the final issue, whether the trial court erred in refusing to allow Trinity to amend its complaint against Union.

Trinity’s complaint against Union currently includes a count for breach of contract and one for vexatious refusal to pay. Trinity attempted to add a count because Sokolowski issued an insurance binder on Union and forwarded it to Union, and Union held the binder issued by Sokolowski, making no effort to issue a policy, cancel the binder, or otherwise advise Trinity and Sokolowski of the status of the insurance before the premises were destroyed by fire.

Section 2 — 616 of the Code of Civil Procedure provides:

“At any time before final judgment amendments may be allowed on just and reasonable terms, *** changing the cause of action or defense or adding new causes of action or defenses ***.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 616.)

Section 2 — 616 is to be liberally construed so that cases are decided on their merits and not on procedural technicalities. (Campbell v. Feuquay (1986), 140 Ill. App. 3d 584, 590, 488 N.E.2d 1111, 1115.) The decision to permit the amendment of the pleadings is within the sound discretion of the trial court, but any doubt as to whether pleadings should be amended should be resolved in favor of the amendment. Deming v. Montgomery (1989), 180 Ill. App. 3d 527, 533, 536 N.E.2d 150, 154.

Union argues that motions to amend pleadings based on information known to the movant should be made before the case reaches the summary judgment stage. One factor to be considered in ruling on amendments is whether the motion to amend the pleadings would prejudice or surprise the other party. (Shiner v. Friedman (1987), 161 Ill. App. 3d 73, 80, 513 N.E.2d 862, 865.) It is true that Trinity had filed a motion for summary judgment on the issues of Sokolowski’s agency status and the issuance of the binder before it moved to amend. The record also shows that Union filed a response to Trinity’s motion and contested the facts set forth by Trinity. No ruling on the motion for summary judgment has yet been made, and Union has not demonstrated that it would be prejudiced or surprised by an amendment of plaintiff’s complaint.

Union also contends that the trial court properly denied leave to amend because it is apparent that Trinity will be unable to plead a viable cause of action. (See Village of Lake in the Hills v. Illinois Emcasco Insurance Co. (1987), 153 Ill. App. 3d 815, 506 N.E.2d 681.) The mechanism for challenging a pleading which is claimed to be substantially insufficient in law is not through objection to a motion for leave to amend, but through a motion with respect to pleadings filed under section 2 — 615 (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615). (Bituminous Casualty Corp. v. Fulkerson (1991), 212 Ill. App. 3d 556, 557, 571 N.E.2d 256, 264.) We cannot say at this stage that Trinity will be unable to plead a viable cause of action alleging negligence by Union and, therefore, we conclude that the trial court abused its discretion in denying Trinity leave to file its amended complaint.

For the foregoing reasons, we reverse the decision of the circuit court of Clinton County and remand this cause for further proceedings in accordance with this opinion.

Reversed and remanded.

HOWERTON and GOLDENHERSH, JJ., concur.


text:
      In re MARRIAGE OF PHYLLIS D. GIRRULAT, Petitioner-Appellee, and JOSEPH L. GIRRULAT, Respondent-Appellant.
    Fifth District
    No. 5—90—0389
    Opinion filed September 19, 1991.

      Fuller, Hopp, McCarthy & Quigg, of Decatur (Glenn 0. Fuller, of counsel), for appellant.
    William E. Farr, of Pana, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Phyllis and Joseph Girrulat were married February 2, 1961. Phyllis filed a petition for dissolution of marriage on December 19, 1988. Joseph Girrulat raises two issues in his appeal: (1) whether the award of permanent maintenance to Phyllis with no provision for review was an abuse of discretion; and (2) whether the court erred in ordering him to pay a portion of Phyllis’ attorney fees. We reverse.

At the time of trial Phyllis was 46 years of age. She has an eighth-grade level of education. After the parties separated, Phyllis took measures to obtain a high school equivalency certificate. She testified that she was unable to obtain the certificate, however, because her ability to concentrate was reduced after the divorce proceedings began. During the parties’ marriage, Phyllis rarely worked outside the home. On occasion she took cleaning jobs, helped Joseph remodel and build houses, and worked on a packaging line for a period of two years in the late 1970’s. Phyllis was principally a housewife as her husband did not want her to work outside the home. At the time of the dissolution hearing, Phyllis was working 30 hours a week at $4 per hour for Lutheran Home Health Care. Her financial affidavit stated her total monthly living expenses were $959.

Although medical experts were not called to testify on Phyllis’ behalf, she testified that she had developed problems with her nerves, for which she was taking medication prescribed by a doctor. Phyllis testified that the medication was not working well. Three years prior to the hearing, Phyllis had surgery on her main heart artery to correct a blockage problem. The surgery was successful, and she needs to see her doctor only if she has a problem. Her doctor advised her to watch her weight and her diet because of high cholesterol levels.

Miles Feller, manager of Watson Foods Company, testified that in the late 1970’s he was manager of a business where Phyllis worked for two years. Feller attempted to contact Phyllis two weeks prior to the hearing to offer her a job. He testified that although he left two messages on Phyllis’ answering machine advising her that he had a job for her, he did not receive a return call from her. Phyllis testified that she attempted to return his call, but was unable to reach him. She stated that she was unaware of Feller’s reason for attempting to reach her. Feller stated that he was going to offer her a job at $4 per hour for 40 hours per week and that she would have received an increase to $4.25 per hour after 30 days. In addition, annual increases were paid and those averaged 8% for employees in Phyllis’ pay area. The job would have been offered to Phyllis despite her medical problems. The job was no longer available at the time of the hearing, however, because Feller was unable to contact Phyllis, and the position had been filled.

Joseph was 48 years of age at the time of trial. He is employed at Firestone Tire and Rubber Company, where he has worked for 25 years as a truck tire builder. In 1988, his gross income was $41,791.40. He testified that beginning in 1989, however, the policy regarding overtime changed, which resulted in a decrease in his gross annual wage. Joseph’s average gross weekly pay for 40 hours is $700. After deductions are taken for State and Federal taxes, union dues, life and medical insurance, a voluntary retirement contribution, and a United Way contribution, Joseph’s net take-home pay averages $480 per week. According to Joseph’s financial affidavit, his total monthly living expenses are $932.

The court entered a memorandum of decision. Both parties had items of nonmarital property, but not all of the items were assigned a value. Of the items which were assigned a value, the trial court awarded $2,550 to Phyllis, and $690 to Joseph. The court’s order further provided:

“2. Award of marital estate to former wife.
a. marital house $43,500.00
b. household items in the marital house with the exception of that awarded to
former husband 350.00
c. 1 silver bar no evidence d. ring purchased 12-15-88 965.14 e. her IRA f. Vz of former husband’s workman’s 300.00 compensation claim, if any g. Mz of former husband’s asbestos no evidence claim, if any h. a portion of the Firestone pension to be paid to former wife as the pension is disbursed, and to be allocated at a rate determined as follows: the amount of each disbursement times xlz times a fraction whose numerator is the months of the marriage (336) and whose denominator is the total months of former husband’s employment with Firestone, with the court retaining jurisdiction to enforce the decree no evidence Total marital estate to former wife 3. Award of marital estate to former husband. $45,115.14 a. 1983 Cadillac $2000.00 b. 1977 Plymouth truck 1000.00 c. 1969 Massey Ferguson tractor 3000.00 d. 1983 bass boat 3000.00 e. utility trailer 100.00 f. tools g. guns: 12 gauge goose gun, 16 gauge single barrel, 357 magnum Ruger Black Hawk, see 1(A)(2)(a) for problem in valuing 1599.00 guns 150.00 h. 1 silver bar no evidence i. all bonds j. xlz of his workman’s compensation 3400.00 claim, if any no evidence k. 1lz of his asbestos claim, if any l. that portion of his Firestone pension not allocated to former wife no evidence m. pool located at the marital home 3000.00 n. Vine Street real estate 3250.00 o. John Street real estate 18,000.00 p. 10 acre tract 5000.00
q. 20 acre tract 12,000.00
Total marital estate to former husband $55,499.00
4. Dissipation charge against husband’s marital estate: Former wife was found to have dissipated $1906.58, and former husband was found to have dissipated $3375.26. Net dissipation is $1468.68 by former husband. Former wife is awarded $1468.68 of the bonds that are listed above in former husband’s award, leaving former husband $1931.32 of the bonds.
* * *
IV. Maintenance
A. Considerations.
1. Former husband is able to meet his financial needs independently. As stated previously, he is healthy, has prospective income from employment of at least $35,000 per year (without overtime), and appears economically astute.
2. Former wife is unable to support herself through appropriate employment. She currently works 6 hours per day at $4 per hour, and she has little prospect of increased income in the near or distant future. ***
* * *
4. Without maintenance, not only will former wife not be living at or near the standard of living established during the marriage, she will not be able to meet her basic monthly expenses.
B. Indefinite award of maintenance to former wife is appropriate and is set at $150 per week.”

The court further ordered Joseph to pay $2,500 of Phyllis’ attorney fees, and Phyllis was ordered to pay the balance of $557.50. Joseph filed a motion to reconsider, and the court, in a supplemental judgment order, amended its ruling and ordered Joseph to pay $1,907.50 of Phyllis’ attorney fees, leaving Phyllis responsible for the $1,150 balance. Post-trial motions were filed by both parties, and the court denied the motions. Joseph filed a notice of appeal on June 18,1990.

Joseph first argues that the trial court abused its discretion in awarding Phyllis $150-per-week maintenance indefinitely. Joseph does not contest that Phyllis is presently entitled to $150-per-week maintenance; however, he argues that the award of permanent maintenance without provision for review was an abuse of discretion because no showing was made that Phyllis could not rehabilitate herself economically.

Generally, the awarding of maintenance will not be disturbed on appeal absent a showing of an abuse of discretion. (In re Marriage of Heller (1987), 153 Ill. App. 3d 224, 233, 505 N.E.2d 1294, 1300.) Section 504(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 504(a)) provides that a court may grant maintenance only if it finds that the spouse seeking maintenance: lacks sufficient property, including marital property, to provide for her reasonable needs; is unable to support herself through appropriate employment; or is otherwise without sufficient income. In determining the amount and duration of an award of maintenance, the trial court should consider all relevant evidence and should specifically examine the parties’ financial resources; education; current standard of living; duration of the marriage; and age and physical condition of the parties. Ill. Rev. Stat. 1989, ch. 40, par. 504(b).

As indicated earlier Joseph does not contest that Phyllis is entitled to an award of maintenance. Moreover, it is clear that Phyllis does not have sufficient income with which to provide for her reasonable needs or to maintain the standard of living established during the marriage. Joseph does have income sufficient to meet his own expenses while providing maintenance to Phyllis. We agree with Joseph, however, that the trial court abused its discretion in awarding Phyllis permanent maintenance without provision for review.

The spouse who is awarded maintenance is under an affirmative obligation to seek appropriate employment. (In re Marriage of McNeeley (1983), 117 Ill. App. 3d 320, 328, 453 N.E.2d 748, 754.) One objective of the Illinois Marriage and Dissolution of Marriage Act is to enable a formerly dependent spouse to become financially independent in the future. (Marriage of Heller, 153 Ill. App. 3d at 235, 505 N.E.2d at 510; In re Marriage of Wilder (1983), 122 Ill. App. 3d 338, 352, 461 N.E.2d 447, 456.) In this case there is evidence that Phyllis will obtain a high school equivalency certificate, and will be able to find full-time employment which pays more than she is currently receiving.

Phyllis argues that her future employment may be hindered because of her health. We note that respondent objected to Phyllis’ testimony on this point but did not raise the objection in his post-trial motion. Objections not raised in a post-trial motion are generally deemed waived. Regardless of any waiver, however, the testimony by Phyllis related only to her present condition. There was no medical or lay testimony that would establish that the conditions of which she complained were permanent. Therefore, while the court may have considered the testimony in awarding current maintenance, it could not support an award of indefinite maintenance. In short, the evidence does not support a finding that Phyllis’ health will prevent her from seeking gainful employment in the future.

We recognize that section 510(a) of the Illinois Marriage and Dissolution of Marriage Act provides for modification of a judgment respecting maintenance upon a showing of substantial change in circumstances. Under the court’s present order, there is no incentive for Phyllis to seek either additional training or further employment. The court, by not making its award subject to review, requires Joseph to proceed under section 510(a) of the Illinois Marriage and Dissolution of Marriage Act if he wishes to obtain a modification in the future. Under section 510(a), no change would be made unless there is a showing of substantial change in circumstances. In view of the evidence adduced, we believe the trial court abused its discretion by not making provision for review of the maintenance award after a given period of time.

Joseph next argues that the trial court erred in ordering him to pay a portion of Phyllis’ attorney fees.

Of the $3,057.50 balance due attorney Fombelle, Phyllis was ordered to pay $1,150, and Joseph was ordered to pay the remaining $1,907.50. Joseph contends that he does not have sufficient income to pay the fees, and that the trial court’s memorandum of decision clearly reflects this fact. That portion of the court’s memorandum to which Joseph refers states:-

“Court notes that former husband complained at trial that his monthly burden of debt and maintenance payments was too heavy, and he asked for relief. From the evidence, it appears that as a result of the temporary orders of the Court, former husband has a current monthly obligation for debt and maintenance of approximately $1566.87. If he chooses, he may now sell the bass boat, tractor, Cadillac, 20 acres, 10 acres, bonds and the pool and have remaining debt of only approximately $3103.64 (plus costs of sale). With his income, the remaining debt can quickly be retired. His monthly obligation is then only $650 per month rather than $1566.87.”

“An award of attorney fees in a dissolution proceeding rests in the sound discretion of the trial court, and a court of review will reverse only for an abuse of discretion. The party seeking the attorney fees must show a financial inability to pay and must show the financial ability of the opposing spouse to pay.” (In re Marriage of Osborn (1990), 206 Ill. App. 3d 588, 602, 564 N.E.2d 1325, 1333.) Joseph submits that the affidavits of the parties show that neither he nor Phyllis has the income needed to pay her attorney fees. There is a great disparity in the incomes of the parties, and Phyllis earns significantly less than Joseph. While Joseph’s current monthly debt and maintenance obligation is estimated at $1,566.87, it is clear from the trial court’s memorandum that Joseph has the ability to quickly reduce his debt, a fact which Joseph does not deny. Considering Joseph’s income in relation to his wife’s income, and his ability to reduce his debt, we do not find that the trial court abused its discretion in ordering Joseph to pay a portion of his wife’s attorney fees.

Joseph next argues that the award of attorney fees should be remanded to the trial court because no evidence was presented as to what the usual and customary fees for like services are in Christian County. The factors to consider in determining the amount of attorney fees are: the skill and standing of the attorney, the nature of the case, the novelty and difficulty of the questions in issue, the amount and importance of the subject matter, the degree of responsibility, the usual and customary charges, and the benefits resulting to the client. Marriage of Osborn, 206 Ill. App. 3d at 602, 564 N.E.2d at 1333.

With regard to the evidence as to the usual and customary charges for like services, attorney Fombelle testified on direct examination as follows:

“I am an attorney licensed to practice in the State of Illinois, currently practicing in a multi county area in Central Illinois. * * *
* * *
*** I am familiar with the usual and customary rate charged in the Central Illinois area, and they range somewhere around Seventy-five Dollars an hour to my top figure of Two Hundred and Fifty Dollars an hour in Court.”

Attorney for the respondent cross-examined Fombelle, asking at one point, “[Y]ou are stating that Two Hundred and Fifty Dollars per hour would be reasonable here in Christian County?” In response Fombelle testified:

“I am saying that Two Hundred and Fifty Dollars per hour is what I charge for trial work, and I do trial work all over Central Illinois. I do not find Christian County to be a backward community. *** I do not feel that Christian County differs from any of the surrounding Illinois counties like Macon and Sangamon ***.
* * *
I believe that Two Hundred and Fifty Dollars an hour is reasonable for me, yes. I do not say that it is reasonable for every lawyer.”

Although attorney Fombelle testified that $250 was a reasonable fee for his services, he did not establish the amount of the usual and customary fee for like services in Christian County. The attorney fees allowed should be fair to both the party required to pay and to the attorney requesting them. (Marriage of Heller, 153 Ill. App. 3d at 237, 505 N.E.2d at 1302.) Because no evidence was presented as to what the usual and customary fees are for like services in Christian County (see In re Marriage of Morse (1986), 143 Ill. App. 3d 849, 493 N.E.2d 1088), we conclude that the amount of the attorney fees awarded constituted an abuse of discretion, and we remand this cause for a reconsideration of the customary fees in Christian County and of the proper award of attorney fees in this case.

The decision of the circuit court of Christian County is affirmed in part and reversed in part and remanded.

Affirmed in part; reversed in part and remanded.

HOWERTON and GOLDENHERSH, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. EVERETT G. MASTEN, Defendant-Appellee.
    Fifth District
    No. 5—90—0293
    Opinion filed September 20, 1991.

      Gregory B. Grigsby, State’s Attorney, of Taylorville (Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    No brief filed for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Defendant, Everett G. Masten, was charged with felony driving while license revoked in violation of section 6 — 303 of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 6 — 303) and with felony driving under the influence of alcohol in violation of sections 11— 501(a)(2) and (d)(1) (Ill. Rev. Stat. 1989, ch. 951/2, pars. 11 — 501(a)(2), (d)(1)). The trial court granted defendant’s motion to dismiss the charges, and the State appeals. We reverse.

Defendant was convicted of driving under the influence of alcohol on March 25, 1976, and his license was revoked on May 18, 1976. Defendant was subsequently convicted of driving while license revoked on three occasions with the latest conviction occurring on July 18, 1983.

On April 7, 1989, defendant pled guilty in Montgomery County, Illinois, to driving under the influence of alcohol, and, while he was never sentenced on that charge, the abstract of defendant’s driving record reveals that defendant was under a statutory summary suspension from May 13, 1989, through November 13, 1989. Defendant obtained a Virginia driver’s license on June 9, 1989. He was arrested for the current offenses on March 7,1990.

We shall first address the trial court’s dismissal of the driving while license revoked charge.

Section 6 — 303 of the Illinois Vehicle Code provides in pertinent part:

“(a) Any person who drives or is in actual physical control of a motor vehicle on any highway of this State at a time when such person’s driver’s license, permit or privilege to do so or the privilege to obtain a driver’s license or permit is revoked or suspended as provided by this Code or any other law *** shall be guilty of a Class A misdemeanor.
* * *
(d) Any person convicted of a second or subsequent violation of this Section shall be guilty of a Class 4 felony if the original revocation or suspension was for a violation of Section 11 — 401 or 11 — 501 of this Code ***.” Ill. Rev. Stat. 1989, ch. 95V2, pars. 6 — 303(a), (d).

When a defendant’s driver’s license has been revoked, he is not permitted to drive in Illinois until he obtains a license in compliance with the Illinois Vehicle Code. (Ill. Rev. Stat. 1989, ch. 95x/2, par. 6 — 210; People v. Cummings (1988), 176 Ill. App. 3d 293, 298, 530 N.E.2d 672, 676.) The driver’s license compact (Compact) to which Illinois and Virginia are parties is incorporated in the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 95x/2, par. 6 — 700 et seq.). Under section 6 — 704(2) of the Compact, a party-State may not grant a driver’s license to a person who has a party-State’s license currently revoked unless one year has passed from the date of revocation and the application is permitted by law. (Ill. Rev. Stat. 1989, ch. 95x/2, par. 6— 704(2); People v. Cummings, 176 Ill. App. 3d at 298-99, 530 N.E.2d at 676.) The Compact also provides that a party-State may not grant a driver’s license to a person who has a party-State’s license suspended until the suspension period has ended. Ill. Rev. Stat. 1989, ch. 95x/2, par. 6-704(1).

Defendant’s license had clearly been revoked for over a year when the Virginia license was issued to him on June 9, 1989, and the passage of the year would have allowed him to obtain a license under the Compact. However, as noted above, defendant was under a statutory summary suspension from May 13 through November 13, 1989. The question before us is whether defendant’s license should be considered “suspended,” thereby rendering the issuance of the Virginia license invalid under the Compact. We conclude that defendant’s license was in fact “suspended” on June 9, 1989, that defendant’s Virginia license was invalid under the Compact, and that the trial court improperly dismissed the driving while license revoked charge. Were we to hold otherwise, it would lead to the absurd result that one whose license has been previously revoked could avoid the effect of the summary suspension by obtaining a license in a foreign State as defendant did in this case.

We shall now address the felony driving under the influence charge. Section 11 — 501(d)(1) (Ill. Rev. Stat. 1989, ch. 95V2, par. 11— 501(d)(1)) provides:

“(d) Every person convicted of committing a violation of this Section shall be guilty of a Class 4 felony if:
(1) Such person committed a violation of paragraph (a) for the third or subsequent time.”

As noted earlier, defendant was convicted and sentenced to driving under the influence of alcohol in 1976. In addition, he pled guilty in 1989 to driving under the influence of alcohol. However, he was never sentenced on the 1989 charge. In dismissing the felony charge, the trial court relied upon People v. Phillips (1978), 56 Ill. App. 3d 689, 371 N.E.2d 1214.

In Phillips the defendant pled guilty on the same date to two offenses of unlawful delivery of a controlled substance. Defendant pled guilty and was sentenced on the first charge to a term of imprisonment of not less than 20 years but not more than 20 years. Shortly thereafter defendant pled guilty and was sentenced on the second charge to a term of imprisonment of not less than nine years nor more than 27, an enhanced penalty.

We stated in Phillips:

“Enhanced penalty statutes are enacted as a warning to a first offender of the consequences of a second conviction, and it cannot legally be known that an offense has been committed until there has been a conviction. (Kane v. State (Del. 1974), 327 A.2d 744.) Further, an enhanced penalty should not be imposed until the offender has had the opportunity to reform due to the salutary discipline of the punishment which he has received as a consequence of his first conviction. (State v. Mitchell (1970), 2 Wash. App. 943, 472 P.2d 629; State v. Conley (Iowa 1974), 222 N.W.2d 501.)” Phillips, 56 Ill. App. 3d at 695, 371 N.E.2d at 1219.

It is the second sentence of the quotation set forth above that the trial court apparently relied upon in dismissing the felony charge. The trial court dismissed the charge because the defendant had not yet been sentenced on the 1989 charge. We conclude that the trial court’s reliance on this statement was misplaced because the statement was dicta.

The actual holding of Phillips is as follows:

“[W]e hold that for a defendant to be sentenced to enhanced penalties of section 408 of the Controlled Substance Act the following must occur: (1) The defendant must be convicted of a narcotics violation charge as defined in (b) of section 408; (2) he must then commit another narcotics offense which leads to his second or subsequent conviction; and (3) the enhanced penalties provision must be specifically invoked by the trial court when imposing sentence.” (Emphasis added.) (Phillips, 56 Ill. App. 3d at 695, 371 N.E.2d at 1219.)

In Phillips we determined that the defendant was not subject to an enhanced penalty because the act constituting the second offense did not occur after defendant had been convicted of the first offense. See also People v. Leckner (1986), 149 Ill. App. 3d 314, 500 N.E.2d 721.

We conclude that defendant was properly charged with felony driving under the influence. Defendant was convicted and sentenced in 1976 for driving under the influence. In 1989 he pled guilty to driving under the influence. The fact that he was not sentenced on that charge does not affect the State’s ability to presently charge defendant with felony driving under the influence.

The definition of “conviction” contained in the Unified Code of Corrections supports our conclusion:

“§5 — 1—5. Conviction. ‘Conviction’ means a judgment of conviction or sentence entered upon a plea of guilty or upon a verdict or finding of guilty of an offense, rendered by a legally constituted jury or by a court of competent jurisdiction authorized to try the case without a jury.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 1—5.)

“It is clear that under this section, a ‘conviction’ encompasses judgments or sentences entered after a trial by judge or jury or upon a plea of guilty.” People v. Baker (1983), 114 Ill. App. 3d 803, 809, 448 N.E.2d 631, 636.

For the foregoing reasons, the judgment of the circuit court of Christian County is reversed and remanded for further proceedings.

Reversed and remanded.

RARICK, P.J., and GOLDENHERSH, J., concur.


author: JUSTICE CHAPMAN JUSTICE GOLDENHERSH,

text:
    GEORGE BRUNER, Plaintiff-Appellant, v. ILLINOIS CENTRAL RAILROAD COMPANY, Defendant-Appellee.
    Fifth District
    No. 5—90—0102
    Opinion filed September 27, 1991.
    GOLDENHERSH, J., dissenting.
    Richard F. Sharrard, of Blunt & Schum, of Edwardsville, for appellant.

      Thomas W. Alvey, Jr., Kurt E. Reitz, and Daryl G. Clarida, all of Thompson & Mitchell, of Belleville, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

The trial court granted defendant’s motion for summary judgment based upon a release. Plaintiff appeals. We affirm.

On January 5, 1988, the plaintiff was paid $32,000 in exchange for a release which provided:

“George E. Bruner does hereby release and forever discharge Illinois Central Gulf Railroad Company *** from any and all claims, demands, damages, actions, causes of action, or suits of any kind or nature whatsoever which the undersigned now has or seems to have or which may hereafter accrue against the parties herein released arising out of George E. Bruner’s employment with Illinois Central Gulf Railroad Company *** including but not limited to, (1) the alleged exposure to diesel fumes described above, (2) any hearing loss or hearing disturbance, and (3) any disease or disorder resulting from exposure to dust, paint, vapors, gases, fumes, minerals or chemicals (including Dioxin).
The undersigned acknowledges that he has sought medical and legal advice and consultation with respect to his alleged injuries as described above; *** that the full extent of his injuries may not yet be known to him; that his condition may deteriorate or become aggravated in the future; and knowing the above, the undersigned accepts the sums and other considerations described above in full and final settlement of his claims * * * n

On October 13, 1988, plaintiff brought an action under the Federal Employers’ Liability Act (45 U.S.C.A. §51 et seq. (West 1986)) which claimed in essence that he had been an engineer for the railroad for many years, and that as a result of the railroad’s negligence, he suffered a permanent loss of hearing in both ears. The railroad filed a motion for summary judgment relying upon the quoted language in the release. The plaintiff responded by filing an affidavit which stated that he had developed a disabling lung condition as a result of his employment and that the lung condition was the subject of the suit for which he had signed the release. The affidavit also stated that he was represented by the firm of Pratt & Callis, P.C., on his lung disease claim, that he settled it for $32,000, and that at the time that he signed the release he did not know either that he had a hearing loss or that exposure to noise from his work could cause a hearing loss. The affidavit stated that while he had observed employees of the railroad perform tests concerning noise levels, he was never informed as to whether there was any danger which might be posed by noise or whether there was any potential danger of hearing loss from the noise. The affidavit concluded by stating that the railroad had information concerning noise levels in his work environment which was not disclosed to him at the time that he signed the release and that the railroad had never provided him with an audiometric test to determine whether he had any hearing loss. Finally the affidavit stated:

“That at the time that I entered into the release in question neither I or [sic] the Illinois Central knew I suffered from an occupational hearing loss.”

On January 22, 1990, the trial court allowed the defendant’s motion for summary judgment. This appeal followed.

Plaintiff claims that the release does not bar his hearing loss claim for two reasons: first, the release contains specific recitals pertaining to the settlement of the lung disease claim so that any words of general release cannot be construed for the hearing loss claim; second, defendant did not pay any consideration for the release of the hearing loss claim. Neither of these reasons is persuasive in view of the language of the release.

While defendants are not entitled to bar claims by using vaguely and broadly worded releases to include everything from the first day of the earth up to and including the end of the world, such a result is not necessarily achieved when a general release of all claims arising from one’s employment is executed. (Perschke v. Westinghouse Electric Corp. (1969), 111 Ill. App. 2d 23, 249 N.E.2d 698.) In this case, while the introductory language might leave some question with regard to what exactly was being released, i.e., “any and all claims, demands, damages, actions,” the same is not true when the plaintiff specifically released “any hearing loss or hearing disturbance.” Plaintiff, while represented by an attorney, executed a release including the language specifically referring to all hearing loss claims in exchange for $32,000. Obviously the $32,000 or some portion of it, perhaps even most of it, was in settlement of the lung disease claim andI or the potential claim for any disease or disorder resulting from exposure to dust, et cetera. This does not, however, negate the fact that some portion of the $32,000, according to the terms of the release, was paid for the hearing loss claim.

Because a release is a contract, its construction is governed by the rules of law that prevail in contract cases. In the construction of contracts where no ambiguity is presented, the meaning of the agreement and the intention of the parties must be ascertained from the words employed therein. (Shultz v. Delta-Rail Corp. (1987), 156 Ill. App. 3d 1, 10, 508 N.E.2d 1143, 1148.) Where contract terms are clear and unambiguous, they must be given their ordinary and natural meaning and parol evidence cannot be considered to vary their meaning, in the absence of fraud, duress, mistake, or illegality. (Koester v. Weber, Cohn & Riley, Inc. (1989), 193 Ill. App. 3d 1045, 1049, 550 N.E.2d 1004, 1006; Frank Rosenberg, Inc. v. Carson Pirie Scott & Co. (1963), 28 Ill. 2d 573, 579, 192 N.E.2d 823, 827.) Thus, parol evidence may be used to show the real agreement between the parties when a mistake has been made. Beynon Building Corp. v. National Guardian Life Insurance Co. (1983), 118 Ill. App. 3d 754, 760, 455 N.E.2d 246, 250.

The release Bruner signed was direct and unambiguous in stating that it was a release of any and all claims arising out of any hearing loss or hearing disturbance. Bruner alleges that he had a mistaken opinion as to his physical condition at the time he executed the release. In his affidavit he alleges that at the time he signed the release he was unaware that he suffered from an occupational hearing loss. The law in Illinois is clear that a person claiming that a release is invalid because of a mistake must show that a mistake is mutual. A unilateral or self-induced mistake will be insufficient to void a release. (Kiest v. Schrawder (1978), 56 Ill. App. 3d 732, 735, 372 N.E.2d 442, 443; Ogren v. Graves (1976), 39 Ill. App. 3d 620, 622, 350 N.E.2d 249, 251; Martin v. Po-Jo, Inc. (1969), 104 Ill. App. 2d 462, 467, 244 N.E.2d 851, 854.) On appeal the trial court’s finding will not be set aside unless it is against the manifest weight of the evidence. Child v. Lincoln Enterprises, Inc. (1964), 51 Ill. App. 2d 76, 82, 200 N.E.2d 751, 754.

We believe that the allegations in plaintiff’s affidavit are insufficient to establish a mistake sufficient to avoid the release. Bruner has not alleged that the release was executed as the result of a mutual mistake. He only alleges that he was mistaken as to his physical condition at the time he signed the document. At the most, the mistake here is one of law, and not one of fact. A party may not avoid a contract fairly entered into because of a mistaken opinion of its legal effect. Joseph v. Lake Michigan Mortgage Co. (1982), 106 Ill. App. 3d 988, 992, 436 N.E.2d 663, 666; McCarthy v. McCarthy (1956), 9 Ill. App. 2d 462, 472, 133 N.E.2d 763, 769.

Finally, in brief response to the position taken by the dissent, it is well settled that affidavits in support of and in opposition to a motion for summary judgment shall be made on the personal knowledge of the affiants; they shall not consist of conclusions but of facts admissible in evidence, and they shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto. (134 Ill. 2d R. 191(a).) Conclusional matter is inadmissible and cannot be considered in opposition to motions for summary judgment. (Milwaukee Cheese Co. v. Cornerstone Inn, Inc. (1986), 142 Ill. App. 3d 840, 843, 492 N.E.2d 231, 233.) Here, the affidavit submitted by Bruner, particularly paragraphs 7, 9, and 10, was conclusory and stated allegations that were not based on Bruner’s personal knowledge.

For the reasons stated, we find that the trial court properly allowed the defendant’s motion for summary judgment.

Affirmed.

LEWIS, J., concurs.

JUSTICE GOLDENHERSH,

dissenting:

I respectfully dissent.

The majority, in its opinion, fails to consider factors leading to opposite conclusions on those issues that it has framed. The majority opinion also fails to consider the inadequacy of the trial court order as an appropriate summary judgment.

The majority accurately states that parol evidence should not be considered in the absence of fraud, duress, mistake, or illegality. Although the majority opinion summarizes the contents of plaintiff’s affidavit filed in response to defendant’s motion for summary judgment, the clear language shows that the majority is incorrect in concluding that the affidavit fails to raise a question of mutual mistake, was conclusory in nature, or stated allegations not based on personal knowledge of the affiant.

After reciting the identity of affiant and describing the filing of the prior lawsuit and its settlement, the affidavit states:

“5. That at the time I signed the release I did not know I had a hearing loss; I did not know that exposure to noise from my work could cause hearing loss; and I was never informed of the potential danger of hearing loss by any supervisor on the railroad.
6. That I have observed employees of the railroad perform tests concerning noise levels, but I was never informed as to whether there was any danger which might be posed by noise.
7. That the Illinois Central had knowledge of the noise test results at the time I signed the release in question.
8. That the Illinois Central Railroad never provided me with an audiometric test to determine whether I had any hearing loss.
9. That at the time I entered into the release in question neither I [n]or the Illinois Central knew I suffered from an occupational hearing loss.
10. That at the time I entered into the release in question the Illinois Central railroad did have information concerning the noise levels in my work environment which was not disclosed to me.”

Reviewing the affidavit recited above, especially paragraph 9, but also paragraphs 7, 8, and 10, it is my conclusion that a sufficient issue of mutual mistake has been raised.

This analysis leads to the second infirmity of the majority opinion, that it does not consider the question, raised on appeal by appellant, whether summary judgment was properly granted. As stated in Beals v. Huffman (1986), 146 Ill. App. 3d 30, 36-37, 496 N.E.2d 281, 286:

“A motion for summary judgment should be granted only when the pleadings, depositions, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867.) The court has a duty to construe the evidence strictly against the moving party and liberally in favor of the nonmoving party. (Taylor v. City of Beardstown (1986), 142 Ill. App. 3d 584, 491 N.E.2d 803.) While use of the summary-judgment procedure is to be encouraged as an aid in the expeditious disposition of a lawsuit, it is a drastic means of disposing of litigation and therefore should be allowed only when the right of the moving party is free from doubt. Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867; Taylor v. City of Beardstown (1986), 142 Ill. App. 3d 584, 491 N.E.2d 803.”

Again referring to the affidavit, clearly a genuine issue of material fact has been raised concerning a mutual mistake. The record on appeal is devoid of any counteraffidavit or other evidentiary submission by defendant to controvert plaintiff’s affidavit. Applying the standards as noted in Beals, there was a genuine issue of material fact raised by the record before the trial court, and therefore, the trial court was in error in granting summary judgment.

For the foregoing reasons, I would reverse the judgment of the circuit court of Madison County and remand for further proceedings.


author: JUSTICE SLATER

text:
    THE COUNTY OF WILL et al., Appellants, v. THE ILLINOIS STATE LABOR RELATIONS BOARD et al., Appellees.
    Third District
    No. 3—90—0785
    Opinion filed September 12, 1991.
    Edward Burmila, Jr., State’s Attorney, of Joliet (David A. Hibben, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for petitioners.

      Roland W. Burris, Attorney General, of Springfield, and Jacalyn J. Zimmerman, of Illinois State Labor Relations Board, of Chicago (Rosalyn B. Kaplan, Solicitor General, and Daniel N. Malato, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois State Labor Relations Board.
    Cornfield & Feldman, of Chicago (Jacob Pomeranz, of counsel), for other respondent.
   JUSTICE SLATER

delivered the opinion of the court:

This direct administrative review action stems from the Illinois State Labor Relations Board’s (Labor Board’s) finding that the County of Will is a joint employer with the Will County Board of Health (Board of Health) for the purposes of collective bargaining with the Board of Health employees. Because the county board’s authority over the Board of Health’s funding directly affects negotiations over wages, meaningful bargaining cannot take place without the presence of the County of Will according to the decision of the Labor Board. We believe that the decision is proper, and we affirm.

The American Federation of State, County and Municipal Employees, Council 31, AFL-CIO (AFSCME) petitioned the Labor Board for certification as the collective bargaining representative for certain employees of the Board of Health. AFSCME asserts that the Board of Health and the County of Will (county) are joint or co-employers of the Board of Health employees.

An administrative hearing was held on July 9, 1990, after which the hearing officer issued a recommended decision and order finding that effective and meaningful negotiations over essential terms and conditions of employment could not take place without the presence of both the Board of Health and the county. The hearing officer concluded as a matter of law that the county is a joint employer with the Board of Health for the purposes of collective bargaining. The county and the Board of Health filed exceptions to the recommended decision, and AFSCME filed a timely response thereto. The Labor Board, after reviewing the record, exceptions, responses and briefs, accepted the recommended decision of the hearing officer and adopted it as the decision of the Labor Board, certifying AFSCME as the exclusive representative for the purposes of collective bargaining with the joint employers. On its petition for administrative review, the county contends that the Labor Board’s decision is against the manifest weight of the evidence.

Generally, a reviewing court must give deference to an administrative agency’s interpretation of the statute it was created to enforce. (City of Decatur v. American Federation of State, County, & Municipal Employees, Local 268 (1988), 122 Ill. 2d 353, 361, 522 N.E.2d 1219, 1222.) A significant reason for deferring to an agency’s interpretation of its enabling statute is that the agency makes informed decisions based on its experience and expertise. (Illinois Consolidated Telephone Co. v. Illinois Commerce Comm’n (1983), 95 Ill. 2d 142, 153, 447 N.E.2d 295, 300; Village of Wheeling v. Illinois State Labor Relations Board (1988), 170 Ill. App. 3d 934, 941, 524 N.E.2d 958, 963, aff’d (1990), 135 Ill. 2d 499, 554 N.E.2d 155.) The key consideration in determining employer status under the statute is the extent to which an entity is necessary to maintain a stable and effective bargaining relationship. (City of Rockford v. Illinois State Labor Relations Board (1987), 158 Ill. App. 3d 166, 173, 512 N.E.2d 100, 104; Du Page County Board, 1 Pub. Employee Rep. (Ill.) par. 2003, Nos. S-RC-9, S-RC-17 (ISLRB April 26, 1985).) The Labor Board can consider a number of facts in determining whether an entity is a joint employer, including whether that entity has authority to hire and discharge employees, to fix compensation and fringe benefits, to adopt personnel rules and regulations, to tax and raise funds, and to approve its budget and grant funding. (See County of Kane v. Illinois State Labor Relations Board (1988), 165 Ill. App. 3d 614, 518 N.E.2d 1339.) The Labor Board must consider the facts of each particular case on a case-by-case basis in order to determine whether there is joint employer status in any given situation.

The Board of Health was established by referendum in 1946. As a result, the Will County Board is authorized to levy annually a tax not to exceed 0.1% of the value of all taxable property in the county which shall be levied and collected in like manner as general county taxes and shall be paid into the county treasury. (Ill. Rev. Stat. 1989, ch. 34, par. 5 — 25010.) The revenue derived from this local tax accounts for approximately 40% of the Board of Health’s annual budget of $6,500,000. The county treasurer maintains a County Health Fund and serves as treasurer of the Board of Health, issuing all checks for the Board of Health. The county auditor audits all Board of Health receipts and expenditures.

Other significant sources of income for the Board of Health include State and Federal grants, State personal property tax replacement receipts and fees generated by the Board of Health from water well inspections, restaurant inspections and other services. The fees are set by county ordinance in some cases and others are determined by the Board of Health.

The Board of Health must submit its annual budget to the county board. (Ill. Rev. Stat. 1989, ch. 34, par. 5-25013(A)(13).) All funds, whether derived from local property taxes, grants, or fees, pass through the county board’s appropriation process. In 1989 the county board reduced the Board of Health’s proposed appropriation for personnel services by $190,000, which in turn forced the Board of Health to reorganize its salary schedule.

The Board of Health is comprised of eight members who are appointed by the county executive with the approval of the county board. Members serve four-year terms without compensation. They may be removed only by the county executive with the approval of the county board. Ill. Rev. Stat. 1989, ch. 34, par. 5 — 25012.

The Board of Health establishes significant terms and conditions of employment for its health department employees. The Board of Health has statutory authority to hire, establish job duties and determine compensation of its employees. (Ill. Rev. Stat. 1989, ch. 34, pars. 5 — 25013(A)(10), (A)(ll), (A)(12).) It has adopted the Will County Health Department Personnel Policies and Employee Handbook. The county board does not establish any personnel policy for health department employees.

The Board of Health maintains longevity pay and vacation plans which are different from the benefits the county employees receive. Health insurance benefits for health department employees are the same as county employees receive. The county’s deferred compensation program is available to health department employees in the same fashion that it is to all county employees. The county is listed as employer of the health department employees and pays the employer’s contribution to the Illinois Municipal Retirement Fund (IMRF).

We find that this case is analogous to County of Kane (165 Ill. App. 3d 614, 518 N.E.2d 1339), wherein joint employer status was found to exist between the County of Kane and the Kane County sheriff. Although in that case the sheriff had internal operations control over his office including conduct, discipline, scheduling, hiring and promotions, the sheriff submitted an annual budget to the county board for approval. Because the county board had authority to appropriate funds and the sheriff was required to stay within those appropriations, the court found that the sheriff did not have complete control over the wages, hours and working conditions of his employees. The county was held to be a necessary party to the creation of an effective bargaining relationship and a joint employer. In like fashion, the City of Rockford court relied primarily on the issue of funding control in finding that a joint employer status existed between the city and the library.

Applying the County of Kane and City of Rockford cases to the facts of this case, it is clear that the county’s discretionary control over the funding of the Board of Health requires the county’s inclusion as a joint employer in order to create an effective bargaining relationship. The county is required to levy taxes each year which amount to 40% of the total Board of Health budget. All Board of Health funds, regardless of their source, must pass through the county board’s appropriation process. The county is not required to appropriate those funds at any particular time. The appropriation process is not necessarily automatic and in the past the county board has refused to appropriate grant money into the Board of Health budget. This evidence establishes that the county has exercised significant control over sources of revenue for the Board of Health.

Other evidence establishing a joint employer relationship between the County of Will and the Will County Board of Health, includes the indirect authority the county executive and the county board exercise over the Board of Health by virtue of their appointment and removal authority. In addition, health department and county employees receive the same health insurance benefits and participate in the same deferred compensation program. IMRF contributions for Board of Health employees are paid by the county. The county treasurer maintains all funds for the Board of Health and issues payroll checks for the Board of Health. Clearly there is a shared control over the Board of Health’s operations by the County of Will.

We affirm the decision of the Illinois State Labor Relations Board holding that the County of Will is a joint employer with the Will County Board of Health. The stay previously issued by this court is hereby dissolved.

Affirmed.

GORMAN and McCUSKEY, JJ., concur.


author: PRESIDING JUSTICE STOUDER

text:
    RICHARD NEIBERT et al., Plaintiffs and Counterdefendants-Appellants, v. SCHWENN AGRI-PRODUCTION CORPORATION, Defendant and Counterplaintiff-Appellee.
    Third District
    No. 3—91—0039
    Opinion filed September 12, 1991.
    Sebat, Swanson, Banks, Carman & Townsley, of Danville (Gill M. Car-man, of counsel), for appellants.
    Tungate & Tungate, of Watseka (Susan Sumner Tungate, of counsel), for appellee.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The plaintiffs, Richard Neibert and Joyce Neibert, appeal from a judgment entered in favor of the defendant, Schwenn Agri-Production Corporation (the Corporation). We affirm in part, reverse in part and remand.

The record shows the Neiberts were tenant farmers in Newton County, Indiana. On February 8, 1986, the Neiberts entered into four separate contracts with the Corporation, which were each entitled “Production Agreement.” The contracts were identical except as to the land described and the landlord. The contracts provided that any litigation arising out of the agreements would be brought in the circuit court of Iroquois County and decided under Illinois law.

Under the the contracts, the Neiberts were to grow and harvest sunflowers on 612 acres. The Corporation was to supply the seed, pesticides and herbicides. After the harvest, the contracts required the Corporation to pick up the sunflower seed from the Neiberts’ storage facilities. The Corporation was to pick up all of the seed by October 30, 1986. The contracts provided the Neiberts would be paid 12$ per pound for all seeds over 17/64 of an inch in size.

Harvesting commenced in late August of 1986 and was completed around September 10. The record shows the first truckload of seed was picked up on September 4. After four loads had been picked up and delivered to the processing facilities, the Corporation made its first payment to the Neiberts. According to Joyce Neibert, the Neiberts received the first payment on September 18. They were surprised by the amount of small seed for which they did not receive any payment. They immediately called Steve Schwenn, president of the Corporation, to complain. They informed Schwenn they would not allow any more seed to be picked up until the problem was resolved. By this point a total of eight loads had been shipped.

On September 24, 1986, the Neiberts flew to Fargo, North Dakota, the headquarters of the Corporation. On the morning of September 25, 1986, the Neiberts met with Schwenn. A series of meetings took place over the course of the day on September 25 and on the morning of September 26, 1986. At the conclusion of the last meeting, the parties spoke with Robert Watts, the trucker, and informed him the dispute had been resolved and deliveries would resume.

The Neiberts testified the parties had agreed to amend the Production Agreements to pay the Neiberts 10$ per pound for the small seed. However, Schwenn testified he had agreed to review the financial aspects to see if it was economical to amend the contracts to pay for the small seed. He had agreed to pay for the small seed contained in the loads already delivered. He also paid the Neiberts for the small seed contained in the shipment picked up immediately after the meetings in Fargo.

A draft amendment was drawn up; however, on October 24, 1986, Schwenn informed the Neiberts by letter that he could not afford to pay them for the small seed, and that he would have to stick to the terms of the original contracts. Schwenn and his wife also placed a call to the Neiberts on Sunday, October 26, 1986. Sue Schwenn questioned the Neiberts about whether the Neiberts were calling other buyers for the seed. The Schwenns both testified that the Neiberts told them no more seed would be shipped. The Neiberts denied making such a statement.

In November and December of 1986 there were further contacts between the parties. The record makes reference to the Neiberts’ request, in November of 1986, for guarantees of payment. The Corporation picked up a portion of the remaining seed during the period from December of 1986 to February of 1987. According to the evidence presented at trial, approximately 472,600 pounds of seed were sold to other buyers or used as livestock feed by the Neiberts.

On March 19, 1987 the Neiberts brought an action for breach of contract against the Corporation, and the Corporation filed a counterclaim also alleging breach of contract. Following a bench trial and a hearing on damages, the trial court entered judgment for the Corporation on the counterclaim. Regarding the conflicting evidence, the trial court found the Corporation’s version of events to be more credible. The trial court awarded the Corporation damages in the amount of $22,450.23. The Neiberts appealed.

On appeal, the Neiberts contend the trial court erred in finding they breached the contracts, and in finding the contracts were not modified following the meeting in Fargo.

The issue as to which party breached the contract is a question presented to the trier of fact, and its finding will not be disturbed unless it is contrary to the manifest weight of the evidence. (F.E. Holmes & Son Construction Co. v. Gualdoni Electric Service, Inc. (1982), 105 Ill. App. 3d 1135, 435 N.E.2d 724.) The trial judge, as the trier of fact, is in a position superior to a court of review to observe the demeanor of witnesses while testifying, to judge their credibility and to determine the weight their testimony should receive. (Greene v. City of Chicago (1978), 73 Ill. 2d 100, 382 N.E.2d 1205.) Consequently, where the testimony is conflicting in a bench trial, the court’s findings will not be disturbed unless they are against the manifest weight of the evidence. In re Application of the County Treasurer (1989), 131 Ill. 2d 541, 546 N.E.2d 506.

In the instant case, the testimony regarding the statements and actions of the parties during the autumn of 1986 was contradictory. On review of the record, we cannot say the trial court’s finding that the Neiberts breached the Agreements was against the manifest weight of the evidence. The record supports the trial court’s finding that the Neiberts’ actions surrounding their attempt to reform the Agreements “contributed significantly” to the failure of the Corporation to pick up the seed within the time specified in the Agreements.

In addition, we cannot say the trial court erred in finding the Agreements were not modified following the Fargo meeting. The trial court found Steve Schwenn’s version of events more credible. Given the conflicting testimony as to what was agreed to at the Fargo meeting, it was within the province of the trial court to determine which testimony it found most credible. We note that amendments to the Agreements were required to be in writing and signed by both parties. No written amendment was ever entered into by the parties, although a draft was prepared. In sum, the trial court’s findings that the Neiberts breached the Production Agreements and that the Agreements were not modified were not against the manifest weight of the evidence.

The Neiberts also contend the trial court erred in assessing damages. The trial court found the Corporation’s argument concerning damages was supported by the record, and adopted the Corporation’s calculation of damages with some modifications.

In assessing damages, the trial court multiplied the number of pounds of seed not delivered to the Corporation (472,600) by 17$, for a total of $80,352.20. The 17$ figure was derived from one of the contracts the Corporation had with a party who was buying seed from the Corporation. After making certain allowances for small seeds, and subtracting what the Corporation would have to pay the Neiberts at 12$ a pound, the base figure for the Corporation’s damages was $34,057.99.

The trial court then subtracted $8,102.16, representing the value of three loads of seed the Corporation had picked up and not yet paid for. The court also credited the Neiberts $671.60 for costs owed to them by the Corporation. This figure was derived from the court’s finding that the Corporation owed the Neiberts $4,500 for a chemical carrying the brand name Lasso which was sprayed on the sunflowers. From this $4,500, the trial court subtracted $1,300 for extra seed which the Neiberts obtained from the Corporation and $2,528.40 for the herbicide, Ambien, which the Corporation supplied and paid for, but was used at a rate in excess of the recommendation of Steve Schwenn. The trial court also subtracted from the Corporation’s award $2,834, representing what it would cost to ship the 472,600 pounds of seed from the Neiberts’ farm to processing facilities in Joliet, Illinois. This left a sum of $22,450.23 owed to the Corporation by the Neiberts.

The Neiberts challenge numerous aspects of the trial court’s damage calculation, including the use of the 17$ figure in valuing the seed not delivered to the Corporation. We agree the trial court erred in using the 17$ figure, but for reasons other than those raised by the Neiberts.

In pertinent part, section 2 — 711 of the Uniform Commercial Code-Sales (the Code) (Ill. Rev. Stat. 1989, ch. 26, par. 2 — 711(1)) provides:

“(1) Where the seller fails to make delivery or repudiates *** then with respect to any goods involved, ***, the buyer may cancel and whether or not he has done so may in addition to recovering so much of the price as has been paid
(a) ‘cover’ and have damages under the next section as to all goods affected whether or not they have been identified to the contract; or
(b) recover damages for non-delivery as provided in this Article (Section 2 — 713).”
Section 2 — 712 (Ill. Rev. Stat. 1989, ch. 26, par. 2 — 712) provides:
“(1) After a breach within the preceding section the buyer may ‘cover’ by making in good faith and without unreasonable delay any reasonable purchase of or contract to purchase goods in substitution for those due from the seller.
(2) The buyer may recover from the seller as damages the difference between the cost of cover and the contract price together with any incidental or consequential damages as hereinafter defined (Section 2 — 715), but less expenses saved in consequence of the seller’s breach.
(3) Failure of the buyer to effect cover within this Section does not bar him from any other remedy.”

Regarding the buyer’s damages for nondelivery, section 2 — 713 (Ill. Rev. Stat. 1989, ch. 26, par. 2 — 713) provides:

“(1) Subject to the provisions of this Article with respect to proof of market price (Section 2 — 723), the measure of damages for non-delivery or repudiation by the seller is the difference between the market price at the time when the buyer learned of the breach and the contract price together with any incidental and consequential damages provided in this Article (Section 2 — 715), but less expenses saved in consequence of the seller’s breach.
(2) Market price is to be determined as of the place for tender or, in cases of rejection after arrival or revocation of acceptance as of the place of arrival.”

Under the provisions of the Code, in a breach by the Neiberts, the Corporation had the option of effecting “cover” and retrieving the resulting loss under section 2 — 712, or recovering damages pursuant to section 2 — 713. The comments to section 2 — 713 state that the remedy provided by section 2 — 713 is completely alternative to the option to cover, and that the section only applies when and to the extent the buyer has not covered. Ill. Ann. Stat., ch. 26, par. 2 — 713, Uniform Commercial Code Comment, at 565 (Smith-Hurd 1963).

In the instant case, we find the record shows the Corporation elected to effect cover when it could not obtain the seed it needed from the Neiberts in September of 1986. Steve Schwenn testified it was his intention to fill a contract he had with a repurchaser, Dahlgren, with the seed he received from the Neiberts. Under the Dahlgren contract, Dahlgren paid 17$ per pound for 1 million pounds of seed. The Neiberts raised approximately 1 million pounds of sunflower seed. Schwenn testified that after the Neiberts refused to ship any more seed, he filled the Dahlgren contract with seed obtained from other contract growers. He also bought seed from a third party at 11.66$ to 11.8$ per pound. The contract was filled by October 6, 1986. Schwenn did not testify that he could not fill the contract with Dahlgren because the Neiberts breached the Agreements.

We recognize the Corporation had a number of sources for seed and would utilize those sources which were the most economical. This might mean that the Neiberts’ seed could have been used to fill other obligations. However, the Corporation is bound by its assertions at trial. Schwenn claimed the Neibert seed was to be used to fill the Dahlgren contract. When that seed became unavailable, he switched to other sources and was able to cover the Dahlgren obligation. Thus, under the circumstances presented, the proper measure of the Corporation’s damages was the difference between the cost of cover, i.e., the cost of buying other seed in the market to fill the Dahlgren contract, and the 12$ per pound to be paid to the Neiberts under the Purchase Agreements.

Therefore, the trial court erred in adopting the Corporation’s method of calculating this part of its damages. The cause must be remanded for an appropriate determination of the Corporation’s damages. The Corporation will have to show what it paid to purchase substitute seed to fill the Dahlgren contract and whether it incurred any loss therefrom.

We also address the other challenges the Neiberts raise to the trial court’s damage calculation as they may arise on remand. The Neiberts contend the trial court erred in determining trucking cost on the nondelivered seed. This aspect of the damages is tied to the cost of purchasing substitute seed to fill the Dahlgren contract and will have to be taken into consideration on remand.

The Neiberts contend there was no basis for crediting the Corporation $1,300 for the cost of 10 bags of planting seed. The record shows the Corporation originally supplied the Neiberts with 96 bags of seed, which according to Steve Schwenn was sufficient to plant the 612 acres. Without notifying Schwenn, Richard Neibert obtained an additional 15 bags from Schwenn’s father-in-law, which Neibert claimed he used for replanting. Neibert’s field records indicate he replanted 35 to 40 acres. Schwenn testified it would take approximately five bags to replant that amount of acreage. We find the record adequately supports the trial court’s finding that Neibert obtained 10 bags of seed in excess of his planting and replanting needs.

The Neiberts also assert the trial court erred in crediting the Corporation $2,528.40 for Ambien herbicide. Schwenn recommended Ambien be used at a rate of 1.8 pounds per acre. The vendor recommended 2.2 to 3.6 pounds per acre. Neibert’s records show he used 2.2 to 2.4 pounds per acre. We note the Purchase Agreements required Neibert to follow the vendor’s recommendation. Neibert’s application of the Ambien was within the vendor’s recommended amount. The Neiberts were acting within the requirements of the Purchase Agreements in using the Ambien. Therefore the trial court’s finding on this issue is against the manifest weight of the evidence.

Finally, both parties agree the cost of Lasso to be credited the Neiberts is $5,087.25 rather than the $4,500 found by the trial court.

For the foregoing reasons, the judgment of the circuit court of Iroquois County on the issue of liability is affirmed. The damage award is reversed and the cause remanded for a determination of damages consistent with this opinion.

Affirmed in part; reversed in part and remanded.

BARRY and McCUSKEY, JJ., concur.


author: JUSTICE HAASE

text:
    RITA HERMANN, Plaintiff-Appellee, v. GEORGE HERMANN, Defendant-Appellant.
    Third District
    No. 3—90—0854
    Opinion filed September 12, 1991.
    Samuel N. Warsawsky, of Chicago, for appellant.
    Sheila Donahue Kramer, of Prairie State Legal Services, of Kankakee (Michael O’Connor, of counsel), for appellee.
   JUSTICE HAASE

delivered the opinion of the court:

The plaintiff, Rita Hermann, and the defendant, George Hermann, were married in 1984 in Kankakee, Illinois. The couple then moved to Tennessee. The husband returned to Illinois shortly thereafter. The wife returned in November of 1988. The wife filed a petition for dissolution of marriage on January 18, 1989. On November 5, 1990, the court entered a judgment of dissolution and final property settlement. The husband’s first attorney, Joseph Yurgine, withdrew from the case on March 9, 1989. During the course of the proceedings, the court granted the husband several continuances to employ new counsel.

He repeatedly failed to do so.

Finally, the court set May 22, 1989, as one of the two hearing dates on the division of marital property. On May 22, 1989, the husband appeared without counsel. The wife was again present with counsel and ready to proceed. The husband made an oral motion to continue, which the court denied. The husband proceeded pro se. On appeal, the husband contends (1) the court lacked subject matter jurisdiction over the case; (2) the court abused its discretion when it denied his oral motion to continue on May 22, 1989; and (3) he was denied his sixth amendment right to counsel by the court’s ruling. We affirm.

The wife filed a petition for dissolution of marriage on January 18, 1989. At the time of filing, she had not resided in Illinois for 90 days. On January 31, an order of protection was entered. The husband was present at this hearing through his attorney, Joseph Yurgine. On February 6, 1989, the court found that grounds for dissolution existed, but did not enter a judgment of dissolution. On March 9, 1989, an agreed order of protection was entered by the parties’ respective counsel. Yurgine then moved to withdraw from the case. The court granted the motion and continued the case until April 11, 1989, for the husband to employ new counsel. On April 11, the husband appeared without counsel. The court continued the setting of a trial date on the property settlement until May 2, 1989.

On May 2, the husband failed to appear nor had an appearance of counsel been filed. The court set the cause for hearing on May 15, 1989. On that date, the husband again failed to appear. The plaintiff was present with counsel and ready to proceed. The court reset the hearing date for May 22, 1989. The husband was given timely notice of this new hearing date. On May 22, 1989, the husband was present but had failed to secure counsel. The husband made an oral motion to continue. The husband stated that he needed the continuance to hire an attorney. The court denied the motion. The first of two hearings on the remaining matters was held.

On June 1, 1989, the husband’s attorney on appeal, Samuel Warsawsky, filed an unsigned appearance in the trial court and filed a motion to vacate the judgment of dissolution. The motion was set for hearing on November 21, 1989. On that date, Warsawsky failed to appear. The husband appeared and the court denied the motion. The court found that since no judgment of dissolution had yet been entered, there was nothing to vacate.

The husband then filed some 17 pro se motions or notice of hearings. The motions contended that the court lacked jurisdiction to enter a judgment of dissolution and that the husband had been denied his right to counsel at the May 22, 1989, hearing. The court set the second hearing for “Judgment for Dissolution of Marriage; Property and All Remaining Issues” for October 17, 1990. On that date, Warsawsky again failed to appear. At the conclusion of the hearing, the court took the matter under advisement and rendered a written order on November 5,1990.

Contrary to the defendant’s contentions, the court possessed subject matter jurisdiction over the case. First, the wife resided in Illinois for more than 90 days prior to the judgment of dissolution. Section 401(a) of the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act or Act) (Ill. Rev. Stat. 1989, ch. 40, par. 401(a)) requires a party to be domiciled in Illinois for 90 days prior to the court’s final decision in order for the court to have jurisdiction. (In re Marriage of Mates (1987), 156 Ill. App. 3d 26, 508 N.E.2d 1181.) The purpose of the 90-day requirement is to allow newly arrived litigants to petition for relief under the Act without having to wait 90 days. The 90-day wait between arrival and final judgment, however, is necessary in order to assure a sufficient nexus between the forum State and the action. See 9A U.L.A. §302, at 122 (1979).

Even if we were to accept the defendant’s argument that the Dissolution Act requires a party to have resided in Illinois 90 days before dissolution proceedings can be commenced, the defendant admits he was domiciled in Illinois for more than 90 days prior to his wife’s filing for divorce. Under the Dissolution Act, either spouse’s presence in Illinois for the requisite amount of time vests the court with jurisdiction.

Next, the husband contends the court abused its discretion when it denied his oral motion to continue on the day of hearing. A motion for continuance, except where it is based upon a statutory cause, is addressed to the sound discretion of the trial court. (Kehrer v. Kehrer (1960), 28 Ill. App. 2d 296, 171 N.E.2d 239.) Once a case has reached the trial stage, the moving party must give especially grave reasons for the continuance because of the potential inconvenience to the witnesses, the parties and the court. (Teitelbaum v. Reliable Welding Co. (1982), 106 Ill. App. 3d 651, 435 N.E.2d 852.) In the case at bar, the defendant did not allege any good cause existed for his failure to procure counsel. Nor did he offer any affidavits in support of his motion. The trial court gave the defendant more than ample opportunity to employ counsel. Denying the defendant’s oral motion to continue on the day of hearing was not an abuse of discretion.

Nor do we find that the court treated the defendant unfairly or improperly during the hearing held on May 22 as claimed by defendant. A review of the record reveals that the court informed the defendant that it could not act as his attorney or give him legal advice. When the defendant encountered problems laying the proper foundation for exhibits or correctly formulating questions, he repeatedly requested guidance from the court. The court again informed the defendant it could not act as his trial counsel. When the defendant persisted, the court admonished the defendant accordingly. The defendant’s confusion as to the rules of evidence is understandable, but it would be improper for a court to conduct extensive examination of witnesses or usurp the functions of counsel. (People v. Santucci (1962), 24 Ill. 2d 93, 98, 180 N.E.2d 491.) The court’s refusal to act as counsel for the defendant was proper.

Finally, the defendant claims his sixth amendment right to counsel was violated by the court’s refusal to grant him a continuance on May 22, 1989. The sixth amendment applies to criminal prosecutions. (Faretta v. California (1975), 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525; Dear v. Locke (1970), 128 Ill. App. 2d 356, 262 N.E.2d 27.) The cases the defendant cites in support of his argument are either criminal or quasi-criminal in nature. The very words of the sixth amendment limit its scope to criminal proceedings: “In all criminal prosecutions, the accused shall enjoy *** the Assistance of Counsel for his defense.” (U.S. Const., amend. VI.) It would be an extravagant expansion of the sixth amendment to hold that it applies equally to civil and criminal proceedings. Certainly the defendant had the right to employ counsel. In fact, the trial court gave him every opportunity to do so. But by his own delay, the defendant waived his opportunity to be represented by counsel.

For the aforesaid reasons, the judgment of the circuit court of Kankakee County is affirmed.

Judgment affirmed.

STOUDER, P.J., and GORMAN, J., concur.