author: JUSTICE SCOTT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN MANNING, Defendant-Appellant.
    Third District
    No. 3-88-0344
    Opinion filed July 6, 1989.

      Peter A. Carusona, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Gary L. Peterlin, State’s Attorney, of Ottawa (David E. Mannchen, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

Defendant was charged by indictment with residential burglary and attempted criminal sexual assault. Following a jury trial, he was convicted and sentenced to concurrent terms of imprisonment of four years. No questions are raised on the indictment.

The charges against defendant essentially alleged that, on June 14, 1987, he unlawfully entered the home of Lori King (Lori) with the intent to commit the offense of criminal sexual assault, and that once inside he performed a substantial step toward committing the offense in that he entered Lori’s bedroom and by the use of force fondled her and unzipped his pants.

It is undisputed that defendant was in Lori’s home without authority at the time in question. At issue, however, was whether defendant had the requisite intent to commit the charged offenses. Lori’s testimony, her pretrial statement to the police, and defendant’s testimony provided the bulk of the evidence presented at trial.

Lori testified that on June 13, 1987, she went to bed at approximately 11:30 p.m. wearing a T-shirt and underwear. She had one daughter and both slept in separate upstairs bedrooms. Lori’s husband, Don King, was not at home because they had separated a few days earlier. Lori stated she was awakened in the early morning when a man put his hand over her mouth, while holding her down onto her bed. The man told her, if she screamed or tried to look at him, he was going to hurt her. Lori stopped struggling and told the intruder not to hurt her. The man then told Lori he was drunk and needed someone to comfort him and make love with, because he and his wife had separated. The man fondled her breasts and vagina, and put his hand back over her mouth when she started to struggle. After Lori told the man that she had been raped before, he stopped fondling her and they talked for about 20 minutes.

Lori stated the man eventually began to fondle her again and he unzipped his pants. A short time thereafter, Lori’s daughter walked into the room. The intruder identified the young girl by name and Lori asked how the man knew her daughter’s name. He replied that he always saw them walking. The daughter then got into bed with them. Lori also stated that the man told her he knew her husband would not be coming home because they were separated. Apparently, some more conversation then took place, and the man promised the young girl that he would buy her a swing set and a swimming pool.

Lori further stated the man was talking to her as if he wanted her for a girl friend and told her he was unable to just walk up to her and start kissing her. He stated he knew what he was doing was not the way to have her and apologized. He then said he was going to trust her and let her see him and it was then that Lori saw the man was the defendant. At this point, defendant had been in her room for about one hour.

Defendant said that he left Lori’s house at around 5:10 a.m. He asked Lori if they could keep the incident between the two of them. Defendant called Lori a few times over the next several days and apologized.

After the defense rested, the State called Officer Eugene Lowery (Lowery) as a rebuttal witness. Lowery testified that he interviewed defendant, in June 1987, about the incident in question. After defendant waived his rights, he made a 17-minute tape-recorded statement. After Lowery identified the tape, the State moved to have it played for the jury as an admission. Defendant, however, objected to its use as substantive evidence because it was improper rebuttal. The court agreed with defense counsel and held that the tape could be used solely for impeachment purposes and then only if a proper foundation had been laid for each statement by way of confronting defendant with the statement. The State then questioned Lowery, over defendant’s continuing objections, about defendant’s pretrial statement.

At closing arguments, defense counsel objected to certain comments by the prosecutor, moved for a mistrial during the arguments and included a detailed post-trial motion concerning the prosecutor’s comments. The jury was instructed on the charged crimes — attempt and residential burglary — as well as the lesser included offenses of unlawful restraint, criminal sexual abuse and criminal trespass.

The jury found defendant guilty of all charges. Sentence, however, was only imposed on the charged crimes of attempted criminal sexual assault and residential burglary.

The issue defendant raises on appeal is whether the State’s Attorney’s misconduct during the evidentiary and argument phases of the trial denied defendant his right to a fair jury determination of his guilt or innocence. In particular, defendant argues two points: First, that the State’s Attorney committed gross misconduct by eliciting testimony concerning defendant’s pretrial statement under the guise of impeachment during rebuttal after the court refused to admit same as substantive evidence and then arguing the substantive value of the statement in closing argument; and second, the State’s Attorney’s closing argument was prejudicial in that he expressed his personal opinion, misstated the presumption of innocence, confused the jury by diverting their attention, continued improper argument after sustained objections, commented on the severity of sentences and argued that the victim deserved sympathy. We need not consider defendant’s second point, however, because we reverse the jury verdict and remand the cause for a new trial based on the prosecution’s misuse of the pretrial statement for impeachment purposes.

The prosecution made no attempt whatsoever to introduce the pretrial statement of defendant as substantive evidence in its case in chief, but first attempted to admit the statement on rebuttal. The trial court, however, ruled the tape inadmissible as substantive evidence but allowed the prosecution to use the tape for impeachment purposes to those questions where proper foundation had been laid. The State’s Attorney, then, went through a question and answer procedure with Officer Lowery, wherein Lowery was asked if a particular question was posed to defendant and a particular response given. These questions and answers were read in their entirety and, therefore, in effect the pretrial statement, instead of being played to the jury, was read aloud by the State’s Attorney to the jury. The reading of the questions and answers was not necessarily improper standing alone, but in order to do so for impeachment purposes, the prosecution must have first confronted defendant with the time, place and circumstances of each prior statement and allowed defendant to either admit or deny making said statement. (See People v. Smith (1980), 78 Ill. 2d 298, 399 N.E. 2d 1289; People v. Boulahanis (1946), 394 Ill. 255, 68 N.E. 2d 467; People v. Perri (1942), 381 Ill. 244, 44 N.E. 2d 857.) Our thorough review of the record reveals the prosecution did not lay a proper foundation for the reading of the questions and answers to the jury for impeachment purposes. Although the defendant was asked a few general questions about what he told the police, on cross-examination, he was not confronted with the prior statement and given the opportunity to admit or deny making the allegedly inconsistent statement.

Additionally, prior statements used to impeach a witness must be materially inconsistent with and tend to discredit the witness’s testimony. (Zelinski v. Security Lumber Co. (1985), 133 Ill. App. 3d 927, 479 N.E. 2d 1091; People v. Hayes (1975), 32 Ill. App. 3d 953, 337 N.E. 2d 280.) For the most part, the answers defendant gave in his pretrial statement were not materially inconsistent with his testimony at trial. Thus, the jury was in effect asked by the prosecution to question defendant’s credibility regarding statements not necessarily inconsistent. Regardless of whether the jury determined the statements to be inconsistent, it was highly prejudicial to defendant to have the prosecution creating credibility questions without a proper basis for doing so.

To add insult to injury, the State’s Attorney then argued the substantive value of the pretrial statement in closing argument. Specifically, the prosecutor stated he wanted the jury to “[cjonsider all of the things the police said,” and that defendant “[w]as more generous when he talked to the police.” Had the pretrial statements been admitted in the State’s case in chief as substantive evidence, those remarks would not be objectionable, but considering the limited purpose for which the pretrial statements were admitted, the prosecution clearly asked the jury to consider the statements as defendant’s true story and disregard what he said under oath.

The State raises the case of People v. Ellis (1976), 41 Ill. App. 3d 377, 354 N.E. 2d 369, for the proposition that when a prior inconsistent statement of a defendant amounts to an admission, it is admissible not only as impeachment, but also as substantive evidence of guilt regardless of whether it was admitted during the State’s rebuttal. Ellis, however, is not on point for the following reasons: First, the Ellis court was apparently faced with a situation where the State had laid the proper foundation for impeaching the defendant with his prior inconsistent statements. Proper foundation for impeachment is lacking in this case; second, the prior statement in this case was not inconsistent, but merely reiteration of what the evidence already was. Therefore, the State was not properly using rebuttal as a means of contradicting or disproving defendant’s testimony or other evidence. In Ellis, we can only assume that the State was presenting proper rebuttal evidence. As a further note, the Ellis decision is not uncontradicted. In People v. DeBoise (1976), 35 Ill. App. 3d 298, 341 N.E. 2d 483, the court suggested that such rebuttal evidence cannot be considered as substantive evidence.

We further find that although the trial court gave instructions regarding the use of the pretrial statement as evidence, we do not believe the instruction cured the prejudicial effect to defendant. Similarly, the error was not harmless beyond a reasonable doubt. People v. Suane (1987), 164 Ill. App. 3d 997, 518 N.E. 2d 458.

Accordingly, the judgment of the circuit court of La Salle County and the sentence imposed thereon is reversed and this case is remanded to the circuit court for a new trial.

Reversed and remanded.

WOMBACHER, P.J., and BARRY, J., concur.


source: Caselaw Access Project

author: JUSTICE HEIPLE JUSTICE BARRY,

license: Public Domain

text:
    VIC T. TSAI, Plaintiff-Appellant, v. MICHAEL L. KANIOK, Defendant-Appellee.
    Third District
    No. 3-88-0762
    Opinion filed July 11, 1989.

      BARRY, J., specially concurring.
    Douglas L. Ziech, of Joliet, for appellant.
    Dinah Lennon Archambeault, of Murphy, Timm, Lennon, Spesia & Ayers, of Joliet (Charles L. Bretz, of counsel), for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

The plaintiff brought suit in the circuit court of Will County to recover the balance due oh a bill he submitted to the defendant for medical services he rendered. Following a bench trial, the court entered judgment in favor of the defendant, finding the plaintiff had received a fair and reasonable fee. The plaintiff pursued this appeal. We affirm.

Twelve-year-old Michael Kaniok, the defendant herein, received facial injuries in an accident involving a three-wheel motorized vehicle, and the plaintiff, Dr. Tsai, was contacted to perform surgery. Dr. Tsai is a board-certified plastic surgeon whose practice is located in Joliet, Illinois. Dr. Tsai made no agreement with either Michael or his parents regarding the fees he would charge for performing the necessary procedures.

On the first evening Dr. Tsai treated Michael, he closed the gaping wound to the nose and ordered X rays. The next day in surgery, Dr. Tsai removed bone from Michael’s skull to perform grafts to Michael’s nose and to the bone under his left eye. He also sutured the remaining lacerations. Michael returned to Dr. Tsai for follow-up visits, but Dr. Tsai said his recovery was unremarkable. Dr. Tsai charged $800 for the services he performed during the first evening he saw Michael, and a total of $6,100 for the services he rendered the next day. Michael’s father’s insurer paid Dr. Tsai $2,445, an amount it considered the usual and customary fee in the community for the services provided. Dr. Tsai filed suit to recover the remaining $4,455.

At trial, Dr. Tsai testified and served as his sole expert on usual and customary fees. He told the court there is only one other plastic surgeon in Will County. Dr. Tsai stated that his fees were based on his experience and knowledge, including that which he received from rendering second opinions on “nose jobs” to insurance companies and from information from a few communications with colleagues. Dr. Tsai testified that he does not make any specific effort to find out how much another surgeon charges for a procedure, but stated he has a general idea of the fees charged by other plastic surgeons. Dr. Tsai told the court that in his opinion, his own fees were usual and customary in the Joliet, Will County, area. The original bill for $6,900 was submitted as evidence of the plaintiff’s fee.

Dr. Richard Corley, a board-certified plastic surgeon, testified for the defense. After listing his qualifications, Dr. Corley testified he was familiar with fees charged by plastic surgeons in the Joliet area and throughout much of the nation because he had worked as a consultant for Caterpillar Tractor Company and the Peoria Medical Society. He referred to a “Relative Value Study,” which is a listing of physicians’ services and their associated values, and indicated he utilized the information to reach his opinion in this case. Dr. Corley stated he also examined and X-rayed Michael before rendering his opinion. Finally, Dr. Corley testified that the fees charged by Dr. Tsai in this case exceeded the usual and customary fees charged in the area.

Dr. Robert Hertenstein, a board-certified surgeon serving as the medical director for group insurance for Caterpillar, also testified for the defense. He testified as to his qualifications, which were extensive, and indicated he had been involved in numerous projects in the area of establishing and reviewing physician fees. Dr. Hertenstein told the court that in the process of reviewing physician fees, including the fees of plastic surgeons, he had become familiar with the fees charged by plastic surgeons in the Will County area. He testified that Dr. Tsai billed the defendant for more complicated procedures than he actually performed, and he charged a separate fee for each individual procedure he performed in surgery, a practice the American College of Surgeons considers inappropriate. He explained what he believed Dr. Tsai’s services were worth and the reasons for his decision. In Dr. Hertenstein’s opinion, the fee Dr. Tsai charged was grossly excessive, not only for the Will County area, but for the entire nation as well.

After considering the evidence, the trial court stated the issue was not one of credibility, but one of the weight to be given to the testimony. The court found the testimony of the defendant’s witnesses on the issue of usual and customary fees to be more persuasive and ruled in favor of the defendant.

On appeal, Dr. Tsai contends the court erred in admitting the testimony of the defendant’s experts because they were not qualified to testify. He contends neither of the experts was familiar with the usual and customary fee charged in Will County. We disagree. The party offering the expert has the burden of establishing the expert’s special knowledge, but the determination of the sufficiency of qualifications rests largely in the sound discretion of the trial court. (People v. Free (1983), 94 Ill. 2d 378.) The trial court’s decision is subject to reversal only if it constitutes a gross abuse of discretion. The record establishes that the defendant’s experts were familiar with the usual and customary fees in Joliet, and discloses the manner in which each gained his familiarity. The plaintiff’s assertion is therefore meritless.

The plaintiff also argues that the court applied an improper standard in determining his fees were excessive. He contends that the court should not have relied on the testimony of the defendant’s experts because they based their opinions on nationwide or global standards rather than standards within the locality, as is required. (Weinlander v. Volkman (1910), 153 Ill. App. 137.) The defendant does not dispute that the locality rule set out in Weinlander is the proper standard to be applied in this case. He contends, however, that his experts and the court applied that standard in this case. We agree with the defendant.

Drs. Corley and Hertenstein each testified that the plaintiff’s fees were excessive for the Joliet, Will County, area and offered opinions of customary, usual charges for the services. The fact that Dr. Hertenstein was also familiar with customary and usual fees for many other areas of the United States and was able to testify that he “wouldn’t expect to see that kind of fee at the highest priced place in the country for the procedure” does not in any way establish that the wrong standard for determining customary fees was applied. Accordingly, the court’s finding that the defendant’s experts were more persuasive does not support the plaintiff’s claim that the court did not apply the locality standard.

The plaintiff also argues, rather vaguely, that the court erred in giving any weight to the testimony of the defendant’s experts, and appears to suggest the experts’ testimony was irrelevant because it referred to customary practices and standards outside Will County. As previously discussed, the experts were qualified and did testify about customary practices and fees in Will County. Furthermore, it is well established that the weight to be afforded a witness’ testimony is a matter for the trier of fact based on the assessments made at trial, and this assessment is not to be disturbed on appeal absent an abuse of discretion. (In re Marriage of Ligas (1982), 110 Ill. App. 3d 1.) The trial court’s decision regarding the weight of the experts’ testimony is amply supported by the record and we will not disturb it on appeal.

For the reasons set out above, the judgment of the circuit court of Will County is affirmed.

Affirmed.

WOMBACHER, P.J., concurs.

JUSTICE BARRY,

specially concurring:

For the reason that Dr. Tsai’s supporting evidence was extraordinarily weak and did not overcome the defendant’s expert testimony of the unfair practice of “unbundling” (see Honeywell Information Systems, Inc. v. Maricopa County (1977), 118 Ariz. 171, 575 P.2d 801), I concur in the majority opinion in this case.


author: JUSTICE BARRY

text:
      In re MARRIAGE OF MARY ELLEN BRENKACZ, Petitioner-Appellee, and THEODORE BRENKACZ, Respondent-Appellant.
    Third District
    No. 3-88-0558
    Opinion filed July 13, 1989.

      Richard C. Schoenstedt, of Gilbert & Schoenstedt, of Joliet, for appellant.
    Leanne M. Lantz, of McSteen, Kozlowski & Polito, of Joliet, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

Theodore Brenkacz appeals from a post-dissolution order entered by the circuit court of Will County on his petition to modify unallocated support and maintenance,and on a petition filed by his former wife, Mary Ellen Brenkacz, to fix the parties’ contributions for college expenses of their two sons. The order appealed from is dated July 25, 1988. In it, the court granted Theodore’s petition to terminate unallocated family support and determined that maintenance should be paid in the amount of $672 per month — the same amount previously ordered to be paid as unallocated family support before the parties’ youngest child, Theodore, Jr. (T.J.), attained age 18. The court reaffirmed a prior order directing Theodore to pay an additional sum representing $314 per month in unallocated family support accumulating from April 1988 and payable in a lump sum on October 1, 1989. The court further ordered Theodore to pay two-thirds of the college expenses of their older son, Craig, the balance to be paid by Mary Ellen; and the court reserved ruling on T.J.’s college expenses on the ground that T.J.’s plans for attending college in California in January 1989 were too remote in time.

Theodore contends that the court’s order is against the manifest weight of the evidence because it requires him to contribute to Craig’s college education and it fails to reduce the total monthly sum he must pay upon his youngest child’s emancipation.

Before addressing the parties’ arguments, we must determine the grounds, if any, of our jurisdiction. Obviously, the court’s July 25, 1988, order is not “final” in that it does not dispose of all matters presented for the circuit court’s determination. The reservation of any judgment respecting T.J.’s college expenses precludes a finding that this order is appealable as of right under Supreme Court Rule 301 (107 Ill. 2d R. 301). Nor was there any attempt to advance the cause for interlocutory review pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)).

In In re Marriage of Stockton (1988), 169 Ill. App. 3d 318, 523 N.E.2d 573, an analogous procedural context was presented. There, the former husband petitioned the court for modification of child support and contribution for college expenses for the parties’ oldest child. In an order entered July 16, 1987, the court set the rate for child support for the youngest child and stated that a further order regarding college expenses would be forthcoming. The order also stated that there was “no just reason *** to delay enforcement or appeal.” A motion for reconsideration was denied; however, no further action was taken until September 9, 1987, when the court issued an order fixing the parties’ contributions for college expenses. On October 1, the former wife appealed from both the July and September orders. 169 Ill. App. 3d at 321-22, 523 N.E.2d at 576.

On a challenge to the timeliness of the wife’s appeal from the July order, the Stockton court determined that, regardless of the inclusion of Supreme Court Rule 304(a) language, that order was not in fact final as to a claim. The court’s reasoning is instructive for purposes of this appeal and merits quotation.

“[W]e are passing upon two petitions which involve issues that affect one another. One petition asks for a reduction of child support, in part, because the daughter is attending college, thereby incurring significant educational expenses. The second petition requests contribution for the educational costs. The same evidence of the financial assets of the parties determines the result of each petition. The evidence was produced at one hearing. The court made its findings in its letter of June 26, 1987, and related the amount of child support for the youngest child to the added burden of paying for a year of college for the elder daughter. The matters are interrelated and dependent upon each other. They constitute a single claim, and Rule 304(a) has no application. It is only common sense that they be decided together. Therefore, we hold that Leopando [In re Marriage of Leopando (1983), 96 Ill. 2d 114, 449 N.E.2d 137] applies to post-dissolution proceedings. When a petition or petitions are filed which seek modification of issues determined in the dissolution proceedings, all matters which are interrelated, that is, where the resolution of one affects the outcome of the other, must be determined before an appeal may be filed.” 169 Ill. App. 3d at 323-24, 523 N.E.2d at 577.

The court held, therefore, that an appeal from the July order would have been premature without a further order fixing the parties’ contributions for college expenses.

In this case, the parties’ petitions to modify support and to fix contributions for college expenses are similarly interrelated. The parties’ income and expenses were finite amounts for which evidence was presented in the hearing on these petitions. The period for which the parties were ordered to contribute for Craig’s college education extends well into the first college semester for which T.J. planned to enroll. Certainly it cannot be denied that the amount the court ultimately will order the parties to pay for T.J.’s education will depend to some degree upon the amount Mary Ellen receives in maintenance. Until such time as the court enters its ruling regarding the parties’ contributions to TJ.’s college expenses, any appeal of this cause is premature. Stockton, 169 Ill. App. 3d 318, 523 N.E.2d 573.

In sum, we hold that the court’s July 25, 1988, order is not final for purposes of appeal. Lacking jurisdiction to review, we hereby dismiss this appeal.

Appeal dismissed.

WOMB ACHE R, P.J., and STOUDER, J., concur.


text:
    CITIZENS UTILITIES COMPANY OF ILLINOIS, Plaintiff-Appellee and Counterappellant, v. CENTEX-WINSTON CORPORATION et al., Defendants-Appellants and Counterappellees (Shell Oil Company, Intervening Defendant-Appellant and Counterappellee).
    Third District
    No. 3-88-0413
    Opinion filed April 7, 1989.
    Rehearing denied August 16, 1989.
    Stuart D. Gordon and George A. Marchetti, both of Moss & Bloomberg, Ltd., of Bolingbrook (Barry L. Moss, of counsel), for appellant Village of Bolingbrook.
    Thomas R. Wilson, of Herschbach, Tracy, Johnson, Bertani & Wilson, of Joliet, and Marlaine McVisk and John M. Touhy, both of Mayer, Brown & Platt, of Chicago (Lee N. Abrams, of counsel), for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

At issue in this appeal is the validity and enforceability of a consent decree entered into in 1971 by the Village of Bolingbrook (Village) and Citizens Utilities Company of Illinois (Citizens). In the court below, Citizens sought a permanent injunction prohibiting the Village from violating the consent decree. Specifically, Citizens sought (1) an order enjoining the Village from supplying water service to Shell Oil Company (Shell) in an area where the consent decree prohibited the Village from providing water and sewer services and (2) an order enjoining the Village from otherwise attempting to provide water or sewer services in the prohibited territory.

The relevant portion of the consent decree entered into in 1971 provides, with a few exceptions not relevant here, that Citizens is generally prohibited from providing water and sewer service east of State Route 53 and the Village is generally prohibited from providing such service west of State Route 53.

In 1978, the Village purchased the Oak Tree Sewer and Water Supply Company (Oak Tree). Oak Tree had previously been certified by the Illinois Commerce Commission (ICC) to provide water and sewer services to all of section 7 and a portion of section 18 of Du Page Township, an area located west of State Route 53 and at the time of purchase serving but four customers. The only positive step made by Citizens in objecting to the purchase of Oak Tree by the Village was an October 26, 1976, letter to the Village indicating that the consent decree “prohibits Village water or sanitary sewer service in the Oak Tree area.” The Village nonetheless went forward with the purchase, but development in the Oak Tree area apparently did not take place as rapidly as the Village anticipated, resulting in an annual deficit in its operation of roughly $100,000 per year. The Oak Tree service area did expand, however, and at the date of hearing in the trial court serviced 140 customers, about one-third the number needed to make the system viable. /

In 1981, Citizens learned that the Village was considering supplying water and sewer services to Hinsdale Hospital, located west of Route 53. Citizens promptly notified the Village that the action would violate the consent decree. As a result, an agreement was entered into between the Village and Hinsdale Hospital wherein the Village provided funding for construction of water facilities for the hospital without acquiring any interest in those facilities or providing any water or sewer services to the hospital. Citizens apparently had no participation in securing water and sewer facilities to the hospital, although it was located west of Route 53.

In August 1986, Shell Oil Company contacted Citizens about obtaining water and sewer services for a gas station and car wash to be built in an area west of Route 53. Citizens indicated it would provide such services but, according to a Shell representative, because the nearest water main owned by Citizens was located 2,000 to 3,000 feet away, it was not financially feasible to incur the cost of a water main extension and Citizens would provide no financial assistance. Citizens maintains that Shell then informed Citizens that Shell planned to drill its own well and use a septic system for sewage.

Around the same time period, Shell also applied to the County of Will for a rezoning of the property. The Village objected on the grounds of increased traffic at the intersection, the location of curb cuts at the intersection and the difficulty in fighting a fire if the property was serviced with water from a private well. Following negotiations between the Village and Shell, the Village agreed to absorb 50% of the cost of extending the Oak Tree water main to the Shell parcel and Shell agreed to become annexed to the Village sometime after 1991. A copy of the engineering plans for extending the Oak Tree water main was sent to Citizens in July of 1987. Citizens, however, voiced no objection to the agreement between Shell and the Village until actual construction of the water main was set to begin in February of 1988, well after the contracts were executed and land purchased by Shell.

The Village, in open court, expressed its intention to provide both water and sanitary sewer service, insofar as the same is both economically and physically feasible, to all properties west of Route 53 unless it is restrained from doing so. Citizens, however, has also made plans to serve the area west of Route 53 and has made expenditures of funds in constructing facilities to provide that area with both water and sewer services.

On February 26, 1988, Citizens sought and received a temporary restraining order prohibiting any further construction on the water main from Oak Tree to Shell until further hearing. Subsequent hearings were had, and on June 1, 1988, the trial court denied Citizens’ motion for permanent injunction to restrain the Village from completing the installation of the water main to the Shell site and further denied Citizens’ motion relating to all areas west of Route 53 previously certified to be served by Oak Tree. The court also found that the consent decree was validly entered into between the parties and, except as mentioned above, remained in full force and effect. The Village submits that the territorial boundary of utility service areas contained in the consent decree are unenforceable by Citizens for various reasons. Citizens basically takes the opposite position.

Consent decrees, which are utilized to effectuate settlement, are considered contracts between parties to litigation, and accordingly, the law of contracts controls their interpretation. (Clark v. Standard Life & Accident Insurance Co. (1979), 68 Ill. App. 3d 977, 386 N.E.2d 890.) The parties chose the language of the document, not the court.

It cannot be disputed that the Village violated the consent decree when it purchased the Oak Tree System and now again by contracting with Shell for water service. The question is whether Citizens’ nonaction amounted to a waiver of its right to object to such encroachments and, if so, to what extent have its rights been waived. Waiver is the “ ‘intentional relinquishment of a known right.’ ” (Sexton v. Smith (1986), 112 Ill. 2d 187, 193, 492 N.E. 2d 1284, 1287, quoting Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 499, 475 N.E.2d 872, and Vermilion County Production Credit Association v. Izzard (1969), 111 Ill. App. 2d 190, 195, 249 N.E .2d 352.) “It may be express or implied, and arise from acts, words or conduct of the one waiving the right.” (Sexton, 112 Ill. 2d at 194.) The trial court’s evidentiary finding of whether Citizens has waived any rights will not be disturbed unless that decision is contrary to the manifest weight of the evidence. (Sexton, 112 Ill. 2d at 194.) Nonetheless, the legal effect of waiver is an issue of law and thus not subject to the manifest weight standard.

In this case, it is clear that Citizens made no express waiver of its right to prohibit the Village from providing services west of Route 53. At the time the Village purchased Oak Tree, Citizens took no court action to prohibit the purchase. It did apparently send a letter to the Village referencing the Village’s violation of the consent decree but did nothing more. At the time Oak Tree was purchased, it serviced only four customers but has since expanded, without objection by Citizens, and now services roughly 148 customers. The Village has not expanded the Oak Tree facility beyond the area it was certified to serve. Similarly, Citizens took no positive prohibitive action to prevent Shell from acquiring water service from the Village until all of the preparations had been made. We agree with the trial court that Citizens has therefore waived any right to enforce the consent decree as to these areas. We disagree, however, with the trial court’s determination that the paragraph of the consent decree regarding same remains in full force and effect excepting the Oak Tree and Shell areas therefrom.

In Watts v. Fritz (1963), 29 Ill. 2d 517, the supreme court of Illinois construed certain provisions of a restrictive covenant imposed upon property allegedly prohibiting property owners from subdividing existing lots and from erecting more than one principal building. The court determined that if in fact the covenant created such restrictions, plaintiff waived any right to invoke the provisions because he had acquiesced in prior subdividing of lots and building of additional homes on those lots. Further, that merely talking to the developer of the original subdivision and possibly an attorney about the defendant’s intentions was not positive preventive action. (Watts, 29 Ill. 2d 517.) Regarding the extent of the waiver, the court stated:

“Minor violations of a restriction will not prohibit the subsequent enforcement of it. (Henricks v. Bowles, 20 Ill. App. 2d 148.) However, where there has been acquiescence in prior violations of the very substance of a general plan or particular restriction, the plaintiff will be held to have waived any right he may have had to enforce it. Thus, in Wallace v. Hoffman, 336 Ill. App. 545, at 554, the court said: The law is well settled that even where a general plan is shown the restrictions under the plan will not be enforced where violations have been acquiesced in.’ To the same effect are McGovern v. Brown, 317 Ill. 73 and Curtis v. Rubin, 244 Ill. 88. It appears to us that even if the restrictions here were construed to prohibit the subdividing and the building thereon, yet plaintiff has so acquiesced in prior violations as to be unable to enforce any such restriction.” Watts, 29 Ill. 2d at 523-24.

In accord with Watts is Saverslak v. Davis-Cleaver Produce Co. (7th Cir. 1979), 606 F.2d 208, wherein plaintiff sued defendant for damages resulting from, among other things, defendant’s failure to include plaintiff’s trademark on the label of turkey rolls sold by defendant as required by paragraph 22 of a patent-licensing agreement entered into between the parties. The trademark was eliminated from the label in 1963, but plaintiff, despite full knowledge of the breach and ample opportunity to protest, did not seek to enforce paragraph 22 of the agreement until 1970. Thus, defendant argued that plaintiff waived any right to enforce paragraph 22. Regarding the waiver issue, the court noted that “waiver occurs when an obligor manifests an intent not to require an obligee to strictly comply with a contractual duty.” (Saverslak, 606 F.2d at 213.) Therefore, plaintiff’s failure to assert his right for seven years caused the court to conclude that plaintiff did not retain an underlying contractual right upon which to base a claim for damages. Saverslak, 606 F.2d 208.

In this case, we get the impression that the area west of Route 53 is on the eve of substantial growth, creating a demand for water and sewer services. However, when the consent decree was entered into, there were very few users of such services in the same area. Moreover, when Oak Tree was established and certified to serve an area west of Route 53, the apparently expected growth of the area never materialized and the Village, without significant objection by Citizens, took over Oak Tree and has operated the facility at a loss ever since, although the number of customers serviced by Oak Tree is expanding to a point near viability. Also true is that Hinsdale Hospital was built west of Route 53 and eventually had water services supplied from its own water facility constructed with financial assistance from the Village. There is mention that the Village was at first going to connect the hospital to the Village system but this proposal drew objection from Citizens. Also significant is that Citizens acknowledged that it has constructed expensive physical facilities so that it can provide service when significant development occurs there'. We interpret this to mean that until such time as significant development occurs, Citizens was not providing services and the few customers in need of such service had to look elsewhere and they did. Thus, when Oak Tree was in financial distress, the Village stepped in and provided services at a loss. Since a substantial term of the consent decree precluded the Village from providing services in this area, Citizens should have taken positive action to protect its rights regardless of whether there was no gain to be had by the Village. This was not a minor violation by the Village in that it went to the very substance of the consent decree, and Citizens’ acquiescence in this prior violation precludes it from enforcing that provision of the consent decree. Citizens simply cannot, in a piecemeal fashion, determine which violations will be objected to and which ones will not without some type of writing modifying the consent decree. The “substance of the agreement” rationale of Watts and the “length of time” rationale of Saverslak are both applicable to this case. Citizens has waived any rights it had to prohibit the Village from providing water and sewer services west of Route 53, and the trial court’s order dated June 1,1988, regarding this issue is reversed accordingly.

We do, however, affirm the trial court’s decision in all other respects concerning the validity of the consent decree, and except as noted above, the consent decree remains in full force and effect.

Finally, Citizens filed a motion to strike certain parts of the Village’s brief as proffering new arguments not raised at the trial level. The motion is denied.

Reversed in part and affirmed in part.

BARRY and STOUDER, JJ., concur.


author: JUSTICE WOODWARD JUSTICE LINDBERG,

text:
    RICHARD URBAITIS et al., Plaintiffs-Appellants, v. COMMONWEALTH EDISON et al., Defendants-Appellees.
    Second District
    No. 2-88-0633
    Opinion filed March 19, 1989.
    Stephen M. Cooper and Richard L. Cooper, both of Cooper, Hochberg, Storm & Petesch and Marc E. Webbles, both of Geneva (Peter M. Storm, of counsel), for appellants.
    Peter K. Wilson, Jr., and Steven Sullivan, both of Puckett, Barnett, Larson, Mickey, Wilson & Ochsenschlager, of Aurora (Donald C. Bevins, of counsel), for appellees.
   JUSTICE WOODWARD

delivered the opinion of the court:

Plaintiffs, a group of property owners, appeal from the trial court’s dismissal of their second amended complaint, which sought to quiet title and to prevent trespass to a strip of land 100 feet in width commonly known as the former Chicago, Aurora and Elgin Railway right-of-way located in Geneva, Illinois. Both plaintiffs and the defendants, Commonwealth Edison (Edison) and its successor in interest, Kane County Forest Preserve District (District), claim title to this strip of land through a deed executed in 1909 by Benjamin W. Dodson.

Initially, defendants moved to dismiss the first amended complaint for failure to state a cause of action. Relying on this court’s decision in Schnabel v. County of DuPage (1981), 101 Ill. App. 3d 553, the trial court held that the heirs of Benjamin Dodson, not the adjoining landowners, would hold title to the abandoned right-of-way. The trial court dismissed the first amended complaint, reasoning that, even if the Dodson deed (deed) granted only an easement for right-of-way purposes and assuming the abandonment of the right-of-way use, plaintiffs would not have acquired title to the 100-foot strip of property (subject property).

Thereafter, plaintiffs located the surviving heirs of Benjamin Dodson and purchased their interests in the subject property. A second amended complaint was then filed alleging that plaintiffs had title both as adjoining landowners and as successors to Benjamin Dodson’s interest.

Each of the defendants then moved to dismiss the second amended complaint alleging the plaintiffs’ failure to state a cause of action. The trial court construed the nonspecified motions to be section 2 — 615(e) motions (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615(e)) for judgment on the pleadings and dismissed the second amended complaint with prejudice without an evidentiary hearing. The court below found that as a matter of law, the Dodson deed conveyed a fee simple estate to the railroad rather than a right-of-way easement and entered an order dismissing the second amended complaint. This appeal followed. We reverse and remand for an evidentiary hearing as hereinafter provided.

Whether the Dodson deed conveyed a fee simple or a right-of-way easement is critical in this case. If a fee simple was conveyed by said deed, this interest passed down to the various owners, ending in Edison and District; on the other hand, if only a right-of-way easement was granted by the Dodson deed, the ownership of the subject property would vest in the plaintiffs, as successors of the Dodson heirs.

On appeal, plaintiffs raise three issues, namely: (1) the trial court erred in granting judgment on defendants’ motion attacking the pleadings because there were issues of material fact to be determined; (2) the trial court erred in finding the Dodson deed conveyed a fee simple estate rather than a right-of-way easement; and (3) public policy prohibits or disfavors the creation or conveyance of a fee simple estate in a narrow strip of land to a railroad. Because of our decision regarding the first issue, it is not necessary to address the other issues raised.

Since the trial court entered judgment in favor of the defendants pursuant to the motions of the defendants, which were construed as motions pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615), it first becomes necessary to examine in detail the facts alleged in the second amended complaint. Plaintiffs allege that they are owners of residential properties in the City of Geneva which abut the subject property, which is a 100-foot by 2,713-foot strip of land formerly used as an interurban railroad right-of-way. The railroad ceased operation of the railroad in 1946 and thereafter conveyed its interest in the subject property to Western United Gas and Electric Company. Defendant Commonwealth Edison Company is the successor in interest to the Western United Gas and Electric Company and presently uses the subject property for its overhead power transmission lines. Defendant Kane County Forest Preserve District claims the right to use the disputed strip of land for a bike path by virtue of a perpetual easement granted to it by Edison in 1986.

It is further alleged that the subject property runs in an east-west direction from East Side Drive to Illinois Route 25 in the City of Geneva. The property is accessible at either end, i.e., the west opens onto the intersection of Route 25 and Dodson Street, and the east end opens onto East Side Drive, which is a public north-south street.

Originally, the subject property was a part of a larger tract owned by Benjamin Dodson. On May 24, 1909, the Chicago, Wheaton and Western Railway Company filed a condemnation action in the county court of Kane County seeking to condemn certain properties for a proposed right-of-way to connect the City of Geneva with the Chicago, Wheaton and Western Railway branch at West Chicago. The condemnation complaint stated in pertinent part:

“Your petitioner further shows that it had located its right-of-way, over, upon and across the lands and premises hereinafter described, and that said lands are necessary for the construction and maintenance of its railroad as aforesaid, and your petitioner now seeks to acquire for the purpose of building, constructing, operating and maintaining its said railroad with its said appurtenances the lands and premises in the County of Kane, State of Illinois, hereinafter described.”

Under the Illinois Constitution of 1870, the railroad’s condemnation authority was limited to obtaining easements in property to be used for right-of-way purposes. (Ill. Const. 1870, art. II, §13.) The condemnation case was set for trial on July 14, 1909, but it was settled on July 9, 1909, when Benjamin Dodson executed a deed conveying the subject property to the railway.

The deed reads in pertinent part as follows:

“MISCELLANEOUS RECORD This Indenture, Witnesseth, that the grantor, Benjamin W. Dodson, a widower, of the City of Geneva, Kane County, Illinois, for and in consideration of the sum of Thirty-Five Hundred Dollars ($3500), conveys and warrants to Chicago, Wheaton and Western Railway Company, a corporation of the State of Illinois, the following described real estate, to-wit:
A piece or parcel of a tract of land situated in ***, said tract being bounded on the West by the River Road and on the East by the St. Charles Road, and containing Fifty-nine (59) acres more or less; said piece or parcel being bounded and described as follows, to-wit:
[Metes and Bounds Description] containing Six and Twenty-four Hundredths (6.24) acres, more or less, and constituting a strip of land one hundred (100) feet wide and Twenty-seven hundred thirteen (2713) feet long, lying fifty (50) feet on each side of the located center line of the Chicago, Wheaton and Western Railway Company, as now located across said tract and measured at right angles thereto, situated in the County of Kane, State of Illinois, and as shown on the blue print map attached hereto and made part hereof, marked ‘Exhibit A’, hereby releasing and waiving all rights under and by virtue of the Homestead Exemption laws of this State and all damages to the above described tract of land not herein conveyed which have or may hereafter be caused by reason of the construction, maintenance and operation of the railroad of said Railway Company on said granted promises, or by reason of any lawful use whatsoever of said granted promises by said Railway Company, its successor and assigns.

This conveyance is made upon the express conditions:

(1) That said grantee shall construct and maintain, on the lands above described, a grade crossing at a point where East Fourth Street of the City of Geneva, Illinois, would intersect said right-of-way where said street opened and extended across said right-of-way and of the full width of said East Fourth Street.
(2) That said grantee shall construct and maintain a culvert underneath its roadbed, of sufficient width and height for the purpose of allowing cattle to pass thereunder at a point near where its said right-of-way intersects East First Street of the City of Geneva, Illinois.
(3) This conveyance is made subject to all taxes and assessments levied after the year 1908, and to all existing leases.” (Emphasis added.)

From 1909 to 1946, the subject property was used as a part of the interurban line between Geneva and West Chicago, first by the Chicago, Wheaton and Western Railway Company, and later by its successor, the Chicago, Aurora and Elgin Railroad Company. In 1946, the railroad operations over the land ceased, and the tracks were removed. Thereafter, the Chicago, Aurora and Elgin Railroad Company conveyed and quitclaimed all its interest in the subject property to Western United Gas and Electric Company in a deed dated March 1, 1946.

Plaintiffs’ second amended complaint alleges that Edison unlawfully claimed title to the subject property by a subsequent conveyance from Western United Gas and Electric Company. On September 8, 1986, Edison as grantee, executed, and delivered to the Kane County Forest Preserve District, as trustee, an indenture giving and granting without warranty, a perpetual easement for purposes of constructing and maintaining a bike path over the subject property. The bike path indenture from Edison describes the property as “the former Chicago, Aurora and Elgin Railroad right-of-way,” and contains the many provisions, including the right of Edison to maintain its electrical facilities thereon, and also the following provisions:

“Grantee understands that the title of the Grantor to the premises, in whole or in part, is based on conveyances from the Chicago, Aurora and Elgin Corporation and may be adjudged deficient. Grantee agrees it shall not have any claim against Grantor for damages on account of any deficiency in title of the subject premises, and agrees in the event of failure of such title, the sole remedy of the Grantee shall be to the return of the proportionate share of the consideration which paid, without interest for any period in which Grantee is deprived of possession of the subject premises by superior title to that of the Grantor.”

In March 1987, the District began construction of a bike path on the subject property, and plaintiffs filed this action to quiet title and to prevent the alleged trespass. Also, plaintiffs’ second amended complaint alleged that the subject property was in the possession of plaintiffs; that they were entitled to possession thereof; and that Edison and the District unlawfully claim title and the right to possession thereof.

Defendant, Commonwealth Edison, filed a motion to dismiss plaintiffs’ second amended complaint, stating that it fails to state a cause of action in that the Dodson deed conveyed a fee simple in the subject property and not a right-of-way easement; that plaintiffs would take no ownership in the subject property upon any abandonment by way of their status as adjoining landowners. Defendant, Kane County Forest Preserve District, also filed a motion to dismiss the second amended complaint which adopted the motion of Edison and which further stated that its position as a defendant only pertained to count III which sought injunctive relief and that said relief was dependent first on the alleged trespass asserted against Edison in counts I and II.

Plaintiffs filed a response to Edison’s motion to dismiss; it asserted that the motion admitted that plaintiffs acquired an interest in the subject property, in part, by reason of abandonment of the right-of-way easement, but it denied that the interest necessarily arose at the time of abandonment. Plaintiffs’ response further asserted the Dodson deed conveyed only a right-of-way based on the language used and the relevant evidence of the surrounding circumstances. Lastly, said response points out that the motion fails to state whether it is brought pursuant to section 2 — 615 or 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, pars. 2 — 615, 2 — 619) but that plaintiffs have deemed that it is a section 2 — 615 motion. Plaintiffs also filed a response to the motion to dismiss filed by the defendant, Kane County Forest Preserve, which essentially adopts the response to the motion filed by Edison.

The defendants’ motions to dismiss and the response of the plaintiffs thereto were heard by the trial court as a section 2 — 615 motion seeking judgment on the pleadings; the issue was framed by the judge on whether or not the Dodson deed conveyed a railroad right-of-way or a fee simple; the motions to dismiss filed by the defendants were granted; and the case was dismissed with prejudice on April 14,1988.

Within 30 days, plaintiffs filed a motion to reconsider the judgment of April 14, 1988. This motion reargued most of the points previously made and further asserted that the circumstances surrounding the execution of a document are relevant to the issue of intention and should be admitted. This motion also called the court’s attention to the language heretofore quoted in the agreement between Edison and the District. The trial court heard arguments of counsel and denied the motion to reconsider. Thereafter plaintiffs appealed.

Plaintiffs contend that the judgment of the trial court was improper without first having an evidentiary hearing. The standard of appellate review on this issue was stated by this court in Teeple v. Hunziker (1983), 118 Ill. App. 3d 492, 497, as follows:

“On review of an order granting judgment on the pleadings, the appellate court must ascertain whether the trial court correctly determined that no genuine issue as to ány material fact was presented by the pleadings and, if there was no such issue, whether judgment was correctly entered.”

Analysis of count I of plaintiffs’ complaint reveals that there are certain facts that are pertinent to the issues here presented. For example, it is alleged that Chicago, Aurora and Elgin Railroad abandoned the subject property in 1946; there is an allegation in the complaint that the plaintiffs are in possession of the subject property and have improved it with garden plots, landscaping, structures, and plantings; however, there is no evidence as to when and where this occurred or as to when Edison’s utility facilities were placed upon the subject property and what, if any, maintenance has Edison provided. The subject property is a parcel of land comprising more than six acres; consequently, taxes were undoubtedly levied and paid by someone. Also, evidence of additional streets, if any, crossing the subject property should be submitted together with the persons or agency involved, if any. These facts and such other facts pertaining to the use, treatment, and condition of the subject property since the railroad ceased operations in 1946 may be relevant to the decision in this case.

Since it is the decision of this court to remand this case for an evidentiary hearing, it is pointed out that the previous finding of the trial court that the Dodson deed conveyed a fee simple interest is correct. Further evidence pertaining to determining the intention of the grantor, Dodson, is unnecessary, as the deed is not ambiguous. (Tollman v. Eastern Illinois & Peoria R.R. Co. (1942), 379 Ill. 441, 444; Tishman Midwest Management Corp. v. Wayne Jarvis, Ltd. (1986), 146 Ill. App. 3d 684, 689; Village of Grandview v. City of Springfield (1984), 122 Ill. App. 3d 794, 797.) The language within the four comers of the deed clearly reveals that Dodson intended to convey a fee simple interest in the subject property. This conclusion is based on the terms- used in the deed as follows: (1) the use of the words “conveys and warrants” in the granting portion; (2) the description is by metes and bounds, and it is further referred to as a strip of land; (3) the use or purpose of the conveyance is not limited to a railroad right-of-way but also provides or by reason of any other lawful use whatsoever of said granted premises; and (4) the use of the term “right-of-way” in describing the two express conditions contained in the deed was used only for the purpose of locating the strip of land conveyed by the grantees as part of a larger tract. Keen v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. (1945), 392 Ill. 362; Sowers v. Illinois Central Gulf R.R. Co. (1987), 152 Ill. App. 3d 163.

Accordingly, the judgment of the trial court is vacated, and this cause is remanded for further proceedings in accordance with this opinion.

Judgment vacated and remanded with directions.

LINDBERG and McLAREN, JJ., concur.

Dissent Upon Granting of Rehearing

JUSTICE LINDBERG,

dissenting:

I joined in the court’s granting of the petition for rehearing by defendants-appellees, who essentially prevailed on appeal by reason of our determination that the deed in question was one of fee simple and not one granting only a “right-of-way.” Having prevailed on the determinative issue, defendants-appellees, in their petition for rehearing, objected to our remanding the cause for further proceedings.

Defendants reminded this court that plaintiffs’ two-count amended complaint was based exclusively upon plaintiffs’ contention that the deed was a “right-of-way” deed and did not convey a fee simple. In particular, plaintiffs did not plead ownership of the property pursuant to the doctrine of adverse possession. (See Joiner v. Janssen (1981), 85 Ill. 2d 74, 421 N.E.2d 170; see also In re Application of DuPage County Collector (1981), 98 Ill. App. 3d 950, 424 N.E.2d 1204.) Defendants further contended that plaintiffs pleaded facts showing that they did not have exclusive possession of the property, exclusive possession being one of the elements of a claim under adverse possession, in that the utility used the property for its overhead power lines and supports in addition to any use for which any plaintiffs may have used the property. Defendants concluded that we erred in remanding the cause for further proceedings. I agree and plaintiffs, in their response to defendants’ petition for rehearing, have provided no authority to support a remand.

When the trial court strikes a complaint and the plaintiff does not ask leave to amend, this is considered to be an election to stand by the complaint. If the lawsuit is dismissed, the cause of action must stand or fall upon the contents of the stricken pleading. (Mlade v. Finley (1983), 112 Ill. App. 3d 914, 445 N.E.2d 1240.) Nonetheless, the granting of a motion to dismiss for failure to state a cause of action should be affirmed on appeal only when no set of facts can be proved under the pleadings which will entitle plaintiffs to relief. Payne v. Mill Race Inn (1987), 152 Ill. App. 3d 269, 504 N.E.2d 193.

The pleading here was that the deed was for a right-of-way, and we concluded that the judgment of the trial court in dismissing plaintiffs’ suit was correct because the deed was one in fee simple. Plaintiffs asserted no facts entitling them to relief under that pleading, nor was there a pleading asserting ownership through adverse possession. The case should not have been remanded.

I conclude that our holding that the deed was for a fee simple disposed of the only issue raised in plaintiffs’ pleading. No facts pled or adduced at the hearing supported a claim of ownership pursuant to deed as contended, and, thus, plaintiffs were entitled to no relief.

I no' longer adhere to the majority disposition that the judgment be vacated and the cause be remanded with directions. I would simply affirm the judgment of the circuit court.


author: JUSTICE KNECHT

text:
    KURLAND STEEL COMPANY, Plaintiff-Appellant, v. CARLE FOUNDATION HOSPITAL et al., Defendants-Appellees.
    Fourth District
    No. 4-89-0383
    Opinion filed July 18, 1989.

      Michael J. Tague and Leonard T. Flynn, both of Franklin, Flynn & Palmer, of Champaign, for appellant.
    Anne C. Burr and William J. Brinkman, both of Thomas, Mamer & Haughey, of Champaign, for appellee Carle Foundation Hospital.
   JUSTICE KNECHT

delivered the opinion of the court:

This is an interlocutory appeal from an order of the circuit court of Champaign County dismissing for failure to state a cause of action a complaint for preliminary injunction to stay arbitration proceedings. We affirm.

On April 20, 1987, the defendant, Carle Foundation Hospital (Carle), as owner, entered into a contract with English Brothers Company (English Brothers), as general contractor, to remodel a portion of Carle’s building. The contract contained a clause stipulating all disputes arising out of and relating to the contract were to be decided by arbitration.

English Brothers entered into a subcontract with the plaintiff, Kurland Steel Company (Kurland), which provided Kurland would furnish and erect steel for the Carle project. The subcontract contained an indemnification clause in favor of English Brothers; however, it did not include an agreement to arbitrate. Kurland ordered certain specified steel plates for the project from Robinson Steel Company (Robinson). After the receipt and installation of the plates, it was discovered the steel did not meet the agreed-upon carbon content specifications. Consequently, the defective steel plates were removed and replaced by and at the expense of Kurland.

By reason of delay caused by the removal and reinstallation of the steel plates, Carle has claimed damages and demanded English Brothers submit to binding arbitration pursuant to the parties’ construction contract. The matter is set for arbitration before the American Arbitration Association. Neither Kurland nor Robinson is designated as a party to the arbitration. Relying on the subcontract, English Brothers has demanded Kurland defend and indemnify it from the damage claims Carle has advanced.

On February 22, 1989, Kurland filed a complaint for declaratory judgment. Count I of the complaint requested the court (1) issue a preliminary injunction staying arbitration between Carle and English Brothers and (2) resolve in a court of law the rights and obligations of all the parties involved. Carle filed a motion to dismiss for failure to state a cause of action (Ill. Rev. Stat. 1987, ch. 110, par. 2— 615(a)), arguing count I failed to allege lack of an agreement to arbitrate as required by the Uniform Arbitration Act (Ill. Rev. Stat. 1987, ch. 10, par. 102(b)).

On May 2, 1989, the trial court granted Carle’s section 2 — 615 motion to dismiss, finding count I of the complaint filed by Kurland was substantially insufficient in law. The court relied on J&K Cement Construction, Inc. v. Montalbano Builders, Inc. (1983), 119 Ill. App. 3d 663, 456 N.E.2d 889, and its progeny. A contrary holding by the Fifth District Appellate Court in J.F. Inc. v. Vicik (1981), 99 Ill. App. 3d 815, 426 N.E.2d 257, was specifically rejected by the trial court. The trial court found there was no just reason to delay enforcement or appeal. 107 Ill. 2d R. 304(a).

The sole question before a reviewing court on an interlocutory appeal is “whether there was a sufficient showing to sustain the order of the trial court granting or denying the relief sought.” (Kelso-Burnett Co. v. Zeus Development Corp. (1982), 107 Ill. App. 3d 34, 41-42, 437 N.E.2d 26, 31.) Here the trial court denied Kurland’s petition for an injunction to stay arbitration between Carle and English Brothers. We conclude Kurland’s failure to allege the parties lacked a contractual agreement to arbitrate in the event of a dispute constituted a sufficient showing to sustain the order of the trial court.

In Illinois, contractual arbitration agreements are construed in light of the Uniform Arbitration Act (Act). (Ill. Rev. Stat. 1987, ch. 10, par. 101 et seq.) Section 2(b) of the Act provides “[o]n application, the court may stay an arbitration proceeding commenced or threatened on a showing that there is no agreement to arbitrate.” (Ill. Rev. Stat. 1987, ch. 10, par. 102(b).) None of the parties involved in this case deny a valid arbitration agreement exists between Carle and English Brothers. In its petition to stay the arbitration proceedings between Carle and English Brothers, Kurland failed to allege the former parties did not agree to arbitrate their disputes. Instead, Kurland argued the policy of joinder supported the issuance of a permanent injunction enjoining such arbitration so the common rights and interests of all the parties could be decided by a court of law. Kurland maintained a single legal proceeding joining all of the interested parties and determining the cause of Carle’s damages would avoid a multiplicity of lawsuits and inconsistent results. Kurland presents the same arguments on appeal.

Kurland relies heavily on J.F. Inc. v. Vicik (1981), 99 Ill. App. 3d 815, 426 N.E.2d 257, to support its theory the arbitration proceedings between the owner and general contractor in this case should be stayed because the contract dispute is closely intermingled with the disputes between multiple parties, some of which are not subject to binding arbitration. In Vicik, the owners contracted with a general contractor for the construction of a home. When a contract dispute arose between the principal parties, the subcontractors and material men filed suit to foreclose their mechanic’s liens. The general contractor filed a motion to compel arbitration of its dispute with the owner under the provisions of its contract with them. The subcontracts lacked arbitration clauses. The owners moved to consolidate the foreclosure suits and petitioned the court to enjoin the arbitration. The motion was granted. The trial court later reversed itself on a motion to reconsider and denied the petition for injunction.

The Fifth District Appellate Court reversed the holding of the trial court after finding the policies favoring joinder outweighed those favoring arbitration. The court held:

“Where an arbitration agreement involves some, but not all, of the parties to a multiparty litigation, the policy favoring arbitration must be weighed against the policies favoring joinder of claims. Where arbitration would increase rather than decrease delay, complexity and costs, it should not receive favored treatment. However, it is not sufficient to show merely that litigation would be the speedier and more economical means of resolving controversy. It also must be shown that the issues and the relationships among the parties to the multiparty litigation are closely intermingled. Factors to be considered are whether the claims of all the parties arise from the same project and involve common issues and evidence. Also important is the possibility of inconsistent results.” (Vicik, 99 Ill. App. 3d at 819-20, 426 N.E.2d at 261.)

The court concluded the claims of the subcontractors and material men all arose from and were intertwined with the dispute between the owners and the general contractor. The court determined arbitration of only a portion of the dispute would waste time and money, as well as entertain the possibility of inconsistent results between the legal and arbitration forums.

Several appellate court opinions have criticized and distinguished Vicik. (Kelso-Burnett, 107 Ill. App. 3d 34, 437 N.E.2d 26; J&K Cement, 119 Ill. App. 3d 663, 456 N.E.2d 889; Diersen v. Joe Keim Builders, Inc. (1987), 153 Ill. App. 3d 373, 505 N.E.2d 1325; Geldermann, Inc. v. Mullins (1988), 171 Ill. App. 3d 255, 524 N.E.2d 1212; Landmark Properties, Inc. v. Architects International-Chicago (1988), 172 Ill. App. 3d 379, 526 N.E.2d 603.) These cases have followed “the general rule in Illinois that arbitration agreements in multiparty litigations should be enforced despite the existence of claims by third parties which create the potential for duplicative proceedings.” (J&K Cement, 119 Ill. App. 3d at 679, 456 N.E.2d at 900-01, citing Iser Electric Co. v. Fossier Builders, Ltd. (1980), 84 Ill. App. 3d 161, 166, 405 N.E.2d 439, 442.) In J&K Cement, as in Vicik, a dispute arose between the owner and general contractor. When the subcontractors filed suits to foreclose on mechanics’ lien claims, the general contractor filed for an order to stay all proceedings and to compel arbitration under the general contract.

The Second District Appellate Court relied on the policy favoring arbitration and concluded the trial court erred in refusing the motion to compel arbitration. The court rejected the arguments that judicial economy and intermingled issues would have favored consolidation of all the parties’ claims for resolution by the trial court rather than arbitration of a portion of the dispute between the owner and general contractor. The court further ruled the broad language of an arbitration clause, like the one contained in the contract between Carle and English Brothers, will be construed as an agreement by the parties to resolve any and all disputes arising out of the subject matter of the contract. In applying the general rule that favors enforcement of arbitration agreements as a means of dispute resolution, the court in J&K Cement noted public policy would be frustrated if courts did not recognize and give weight to such agreements. In construing the rationale behind the Uniform Arbitration Act, the court stated:

“Parties agree to broad arbitration clauses in construction contracts specifically to encompass disputes which are not foreseeable at the time of contracting and expect that such agreements will be specifically enforceable in a court action. To deny *** [the] motion to compel arbitration here would deny parties the right to their contractually chosen method of dispute resolution. We are not prepared to ignore the policy favoring arbitration simply because of the presence of multiple parties. Similarly, we believe the drafters of the Uniform Arbitration Act anticipated multiparty problems and intended that arbitration agreements nonetheless be enforced in such situations.” J&K Cement, 119 Ill. App. 3d at 682, 456 N.E.2d at 902-03.

We agree with the above reasoning behind the general rule favoring arbitration and apply it to the simple realities of this case. Here, Carle and English Brothers agreed by contract to arbitrate their disputes. Neither party has refused to arbitrate by denial of the existence of such an agreement. In its attempt to stay the arbitration proceedings, Kurland failed to show, pursuant to statutory directive, the contract between Carle and English Brothers lacked an agreement to arbitrate. (Ill. Rev. Stat. 1987, ch. 10, par. 102(b).) Accordingly, the motion by Kurland to enjoin arbitration was properly dismissed by the trial court for failure to state a cause of action.

We fail to see how arbitration of the dispute between Carle and English Brothers will either hinder judicial economy or promote inconsistent results. To the contrary, it seems arbitration will only serve to define the issues and make more manageable the resolution of the disputes of the parties outside the arbitration agreement. Joinder of multiple parties in litigation frequently fails to save the time and money of the court and parties involved. Moreover, even if we believed time would be saved by enjoining arbitration in this instance, we conclude judicial economy is an inadequate reason for ignoring the existence of the arbitration agreement between Carle and English Brothers. See J&K Cement, 119 Ill. App. 3d at 676, 456 N.E.2d at 899.

We affirm the dismissal of Kurland’s request to stay arbitration.

Affirmed.

LUND and SPITZ, JJ., concur.