author: PRESIDING JUSTICE BUCKLEY

text:
    BRENDA KAYE LAWING KILCOYNE et al., Plaintiffs-Appellants, v. C. PAELMO et al., Defendants-Appellees.
    First District (1st Division)
    No. 1 — 88—2974
    Opinion filed September 24, 1990.

      Sheats & Kellogg, of Chicago (Dennis J. Kellogg and Lititia Spunar-Sheats, of counsel), for appellants.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Ralanda Webb, Assistant Attorney General, of Chicago, of counsel), for appellees.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Brenda Kaye Lawing Kilcoyne (plaintiff), individually and as independent administrator of the estate of her father, Jesse Lawing, brought an action against mental health care professionals (defendants) employed by Chicago-Read Mental Health Center (Read), a State of Illinois mental health care facility, alleging medical malpractice and seeking recovery under the Illinois Wrongful Death Act (Ill. Rev. Stat. 1987, ch. 70, par. 1 et seq.). Plaintiff, individually and as guardian of her minor children, also brought an action to recover for personal injuries sustained by plaintiff and her children as a result of defendants’ alleged negligence. The circuit court granted defendants’ motion for summary judgment on the grounds that plaintiff failed to state a cause of action and that her action was jurisdictionally barred. It is from this order that plaintiff appeals. We affirm.

On March 25, 1983, plaintiff filed a “Petition for Involuntary Admission,” of Patrick Kilcoyne on the grounds that Patrick had threatened to kill his father-in-law, Lawing, and cause harm to plaintiff. Pursuant to court order, Patrick was admitted to Read for examination and evaluation purposes. Defendants’ evaluation of Patrick disclosed that he was “mentally ill and because of his illness [he was] reasonably expected to inflict serious physical harm upon himself or another in the near future.” A hearing was scheduled on plaintiff’s petition for March 31, 1983.

On March 28, 1983, Patrick requested formal voluntary admission to Read under the “Voluntary Admission of Adults” provision of the Mental Health and Developmental Disabilities Code (the Code) (Ill. Rev. Stat. 1987, ch. 91V2, par. 3 — 400). Defendant Dr. C. Paelmo, Patrick’s examining physician, certified Patrick’s request for informal admission pursuant to section 3 — 300 of the Code. (Ill. Rev. Stat. 1987, ch. 91x/2, par. 3 — 300.) The circuit court subsequently granted Patrick’s voluntary admission request and dismissed plaintiff’s petition for involuntary admission.

The record discloses that during one of plaintiff’s visits while Patrick was confined, he demanded that plaintiff permit him to return home, struck her in the abdomen, despite her pregnant condition, and threw food at her. Also during Patrick’s confinement, he threatened to kill Lawing, plaintiff and himself.

On April 4, 1983, Patrick exercised his statutory right to be discharged from Read under section 3 — 403 of the Code (Ill. Rev. Stat. 1987, ch. 91x/2, par. 3 — 403). Patrick informed plaintiff of his discharge, and plaintiff subsequently discussed Patrick’s discharge with a Read therapist. Patrick informed plaintiff that upon his discharge he intended to live with a relative, participate in an out-patient counsel-ling program, and continue taking his prescribed medication.

On April 7, 1983, Patrick telephoned plaintiff and informed her of his intent to visit her residence. Plaintiff indicated to Patrick that he was not welcome, hung up the telephone and barricaded the front door of the home with furniture. Patrick arrived at plaintiff’s home shortly thereafter and, after an unsuccessful attempt to “break the door down,” gained entry to plaintiff’s residence through a window which he had broken. Upon entering plaintiff’s residence, Patrick stabbed Lawing to death and held Patrick’s two stepchildren hostage at knife point in the basement of the home until he was later arrested by police.

Plaintiff’s five-count amended complaint alleges the following. Counts I and V allege that defendants negligently released Patrick after failing to properly diagnose and treat him. Count II alleges that defendants’ conduct was willful and wanton. Counts III and IV allege that the defendants’ negligent acts resulted in trauma to plaintiff and her children.

We believe that the instant action is one against the State of Illinois and, hence, one that should have been brought in the Court of Claims. Article XIII, section 4, of the Illinois Constitution states, “[e]xcept as the General Assembly may provide by law, sovereign immunity in this State is abolished.” (Ill. Const. 1970, art. XIII, §4.) The legislature, acting under its constitutional authority, has reinstated sovereign immunity. Section 1 of “An Act in relation to immunity for the State of Illinois” states the following:

“Except as provided in the ‘Illinois Public Labor. Relations Act’, enacted by the 83rd General Assembly, or except as provided in ‘AN ACT to create the Court of Claims, ***’ *** the State of Illinois shall not be made a defendant or party in any court.” Ill. Rev. Stat. 1987, ch. 127, par. 801.

The Court of Claims Act (Ill. Rev. Stat. 1987, ch. 37, pars. 439.1 through 439.24 — 9) establishes a Court of Claims to serve as a forum for actions against the State. Section 8 of the Court of Claims Act provides:

“The court shall have exclusive jurisdiction to hear and determine the following matters:
* * *
(d) All claims against the State for damages in cases sounding in tort, if a like cause of action would lie against a private person or corporation in a civil suit ***; provided, that an award for damages in a case sounding in tort, other than certain cases involving the operation of a State vehicle ***, shall not exceed the sum of $100,000 to or for the benefit of any claimant.” (Ill. Rev. Stat. 1987, ch. 37, par. 439.8.)

The determination of whether an action is in fact one against the State, and therefore one that must be brought in the Court of Claims, depends not on the formal identification of the parties, but rather on the issues involved and the relief sought. (Healy v. Vaupel (1990), 133 Ill. 2d 295, 549 N.E.2d 1240; Herget National Bank v. Kenney (1985), 105 Ill. 2d 405, 475 N.E.2d 863; Senn Park Nursing Center v. Miller (1984), 104 Ill. 2d 169, 470 N.E.2d 1029; Hudgens v. Dean (1979), 75 Ill. 2d 353, 388 N.E.2d 1242; Sass v. Kramer (1978), 72 Ill. 2d 485, 381 N.E.2d 975; Moline Tool Co. v. Department of Revenue (1951), 410 Ill. 35, 101 N.E.2d 71.) “Thus, the prohibition ‘against making the State of Illinois a party to a suit cannot be evaded by making an action nominally one against the servants or agents of the State when the real claim is against the State of Illinois itself and when the State of Illinois is the party vitally interested’.” (Healy, 133 Ill. 2d at 308, 549 N.E.2d at 1247, quoting Sass v. Kramer (1978), 72 Ill. 2d 485, 491, 381 N.E.2d 975, 977.) If a judgment for a plaintiff could operate to control the actions of the State or subject it to liability, it will be deemed an action against the State and the circuit court is without jurisdiction to entertain the action. Schwing v. Miles (1937), 367 Ill. 436, 441-42, 11 N.E.2d 944, 947; G.H. Sternberg & Co. v. Bond (1975), 30 Ill. App. 3d 874, 877, 333 N.E.2d 261, 264.

The above principles were applied in Robb v. Sutton (1986), 147 Ill. App. 3d 710, 498 N.E.2d 267, wherein the plaintiff brought an action in the circuit court for negligent and reckless misrepresentation by the defendant; 'an assistant dean employed by Southern Illinois University. The defendant moved to dismiss the complaint on the grounds that the action was in essence one against the State and that the Court of Claims had exclusive jurisdiction over the matter. The circuit court granted the defendant’s motion, and the appellate court affirmed. The appellate court determined that when “there are (1) no allegations that an agent or employee of the State acted beyond the scope of his authority through wrongful acts; (2) the duty alleged to have been breached was not owed to the public generally independent of the fact of State employment [emphasis added]; and (3) where the complained-of actions involve matters ordinarily within that employee’s normal and official function of the State,” then the cause of action is only nominally against the employee and must, therefore, be brought in the Court of Claims. Robb, 147 Ill. App. 3d at 716, 498 N.E.2d at 272.

Relying on Madden v. Kuehn (1978), 56 Ill. App. 3d 997, 372 N.E.2d 1131, and Watson v. St. Annes Hospital (1979), 68 Ill. App. 3d 1048, 386 N.E.2d 885, plaintiff argues that the present action falls under appellate court authority allowing certain tort actions against State doctors and employees to be brought in the circuit courts. Plaintiff’s reliance on Madden and Watson is misplaced, as both cases are factually distinguishable from the instant case.

In Madden, the plaintiff filed a wrongful death action against the estate of a deceased physician, alleging that the plaintiff’s decedent died as a result of the physician’s negligent failure to diagnose and treat a hereditary disease while the plaintiff’s decedent was a prison inmate. At the time of the treatment in question, the physician was employed by the Illinois Department of Corrections, and the circuit court dismissed the claim against his estate on the ground that the action was barred by sovereign immunity. The appellate court reversed, rejecting the argument of the physician’s estate that the Court of Claims had exclusive jurisdiction over the matter. The appellate court stated that the doctor was alleged to have breached duties “which every physician owes his patient, rather than obligations incurred solely by virtue of holding a public office” and that the State could not be rendered liable on the claim against the physician’s estate, since no action had been brought against the State in the Court of Claims and the plaintiff’s suit sought recovery only from the assets of the physician’s estate or from his insurance carrier. (Madden, 56 Ill. App. 3d at 1001, 372 N.E.2d at 1134.) The appellate court concluded that the action against the physician’s estate was not one against the State and therefore could be brought in the circuit court. Madden, 56 Ill. App. 3d at 1001, 372 N.E.2d at 1134.

Like Madden, Watson involved four consolidated medical malpractice actions filed in the circuit court against physicians and nurses employed by a State instrumentality for their failure to treat and diagnose their patients’ conditions. Following defendants’ motions to dismiss, the circuit court ruled that these tort actions were in effect against the State which must be heard and determined in the Court of Claims. Relying extensively on Madden, the appellate court reversed, holding that since plaintiffs’ suits were against the individual defendants seeking recovery against their personal assets or their insurance, the State was not the real party in interest. (Watson, 68 Ill. App. 3d at 1053, 386 N.E.2d at 889.) The court further stated that a judgment for plaintiff would not control the actions of the State. Watson, 68 Ill. App. 3d at 1053, 386 N.E.2d at 889.

Both Madden and Watson involved those duties “which every physician owes his patient, rather than obligations incurred solely by virtue of holding a public office.” (Madden, 56 Ill. App. 3d at 1001, 372 N.E.2d at 1134.) These duties involve those duties directly owed by the doctor to his patient, such as the duty to exercise reasonable care in the treatment and diagnosis of his patient.

The services performed by the mental health care professionals here involved the determination of whether a person should be institutionalized by the State and the additional obligations incurred in making this determination. We do not believe that these duties equate with those duties generally owed to patients by their doctors. The alleged duties here arose solely by virtue of defendants’ State employment. (See Robb, 147 Ill. App. 3d at 716, 498 N.E.2d at 272.) Furthermore, the duty allegedly owed here was to a third party, whereas in Madden and Watson the duty was directly owed to the patient.

The Madden and Watson courts found persuasive the fact that the State would not be subject to liability in those actions. That is not the case here. During oral argument plaintiff’s counsel conceded that a judgment against defendants here would ultimately be a judgment against the State. We believe that a judgment for plaintiff here could operate to control the actions of the State, as it would effectively require the State to redraft its policies and guidelines regarding the incarceration and release of mental patients.

We note that our supreme court in Healy v. Vaupel (1990), 133 Ill. 2d 295, 549 N.E.2d 1240, expressed its concern over the fact that the Madden and Watson decisions have been criticized as “working an improper severance of the relationship between master and servant.” (Healy, 133 Ill. 2d at 312, 549 N.E.2d at 1249, citing LeBlang, Medical Negligence And The Court Of Claims: A Dilemma For The Sovereign’s Doctors, 68 Ill. B.J. 534 (1980).) Because the factual situation here is distinguishable from those cases, we need not determine the correctness of those decisions.

In summary, we hold that the Madden and Watson decisions are factually inapposite to the instant circumstances and that the State is the real party in interest here which requires plaintiff to bring suit in the Court of Claims. (See Senn, 104 Ill. 2d 169, 470 N.E.2d 1029; Schwing, 367 Ill. 436, 11 N.E. 944; Brucato v. Edgar (1984), 128 Ill. App. 3d 260, 470 N.E.2d 615.) Accordingly, we affirm the circuit court’s entry of summary judgment in favor of defendants.

Affirmed.

CAMPBELL and O’CONNOR, JJ., concur.

      The following mental health care professionals are named defendants in this appeal: Dr. C. Paelmo, Dr. Kris Lall, Gloria Gnmbinger, Gloria Handricks, Dr. Margaret Melstrom, Dr. Mary Lou Bischman, L. Padernis, E. Jones, L. Gaines, J. Houston, C. Wilson, L.P.N., Dr. R. Malow, Dr. E. Morales, L. Bradley, Dr. John Doe, Mary Anderson, L.P.N., estate of K. Knight, a/k/a H. Knight, and Tamara Handricks.


source: Caselaw Access Project

author: JUSTICE RAKOWSKI

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JESSIE FERGUSON, Defendant-Appellant.
    First District (6th Division)
    No. 1 — 89—0809
    Opinion filed September 21, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Pamela Pfrang, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb and Judy L. DeAngelis, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

Following a bench trial, defendant, Jessie Ferguson, was convicted of possession of a stolen motor vehicle (Ill. Rev. Stat. 1987, ch. 951/2, par. 4 — 103(a)(1)) and sentenced to three years in the Illinois Department of Corrections. Defendant now appeals, contending: (1) an insufficiency of the evidence to find guilt beyond a reasonable doubt; (2) the facial unconstitutionality of section 4 — 103(a)(1) as its presumption of knowledge that a vehicle is stolen is arbitrary and irrational; and (3) a violation of due process as the penalty imposed for the lesser-included offense of possession of a stolen motor vehicle (Ill. Rev. Stat. 1987, ch. 951/2, par. 4 — 103(b)) is greater than that which might be imposed for commission of the greater offense of theft.

At trial, the testimony of Chicago police officers Audrey Nowakowski and Joseph Cox established that the following events occurred. About 4 a.m. on September 3, 1988, Officer Nowakowski and her partner, Officer Cox, were sitting in their squad car facing east on Wilson Avenue when Nowakowski and Cox observed a 1981 Buick Regal headed towards them, “veering” over the center line of westbound traffic on Wilson. The vehicle nearly struck a pedestrian who was talking to the officers before continuing westbound on Wilson Avenue.

Nowakowski and Cox made a U-turn in their squad car and followed the vehicle. The driver of the vehicle drove through a red light at the intersection of Clark and Wilson and turned left headed south on Clark. The officers then activated their emergency lights and pulled over the vehicle. As they were doing so, Nowakowski testified that they noticed a white piece of elastic tape over the vehicle’s trunk-lock area.

The officers approached defendant, who was the driver. Nowakowski requested defendant to produce his driver’s license, but he had none. Defendant then exited the vehicle, the officers conducted a pat-down search of him and defendant then sat back down in the vehicle. At this time, Nowakowski noticed that the steering column had been “peeled.” Nowakowski testified that there was a piece of cloth on the upper part of the column, which did not cover the area of the column that was “peeled.” Cox testified that there had been a black elastic band approximately one-inch wide wrapped around the steering column, but it was not covering the damaged portion of the column. Upon redirect examination of Nowakowski, the State confirmed that she had stated in her case report that when pulling the vehicle over, the officers observed “black tape covering the trunk lock area and peeled column.” A subsequent computer check of the vehicle identification number revealed that the vehicle had been reported as stolen. The officers then placed defendant as well as his two passengers under arrest. After advising defendant of his Miranda rights, defendant told the officers that he did not know to whom the vehicle belonged. Both Nowakowski and Cox denied that defendant told them that the man who had given him the car was at the Foster Avenue beach.

Subsequent to the arrests, the officers removed the tape from the trunk-lock area and saw that the key lock, but not the mechanical punch lock, had been removed. The officers also checked the vehicle license plate, finding that the number was listed to a different vehicle.

Officer Cox subsequently tried to start the vehicle numerous times with the key that was in the ignition. Cox was finally able to start the vehicle by putting a screwdriver on the “peeled” column lever and pushing it upwards. According to Cox, that was the only way he could start the vehicle because of its damaged condition. Cox then drove the vehicle to the police station, where it was returned that morning to the owner, Ruth Garcia.

The parties then entered a stipulation that Garcia, if called to testify, would state that she is the owner of the recovered 1981 Buick Regal and that on September 1, 1988, she had reported the vehicle stolen. Furthermore, she would testify that when she last saw her car, the steering column had not been damaged. Also, she had never given anyone permission to drive or possess her car.

A second stipulation was entered that Secretary of State records listed the recovered vehicle as belonging to Garcia and the license plate it displayed as belonging to a 1971 AMC vehicle owned by another individual.

Following the trial court’s denial of defendant’s motion for a directed verdict, defendant testified. During direct examination, defendant testified that prior to his arrest, he, the two persons arrested with him and a group of other persons he did not know were sitting around drinking beer at Foster Avenue beach. A man that defendant had never seen and had not seen since told defendant that defendant could take the vehicle in order to obtain more beer. The group was comprised of four or five persons who gave defendant $10. According to defendant, the car was parked in a parking space at the beach with its motor running. Defendant also stated that he did not know that the car was stolen, he did not look into the trunk, and the steering column “just had keys in it.” During cross-examination, in response to the question of when he had arrived at the beach, defendant stated, “[I]t had to be about, it was there like 3:00, mostly all day until they put us out.” Defendant described “when they make everybody leave” as being 4 a.m. In response to the question of who made them leave, defendant said that a police officer told them that the beach was closed. In response to what next happened defendant stated, “so then on the way to go get the beer, I got pulled over.” Also according to defendant, when told that the beach was closing, he and others “still had time.”

In response to further questioning, defendant confirmed that he had arrived at the beach at 1 a.m. He also testified that the subject vehicle was at the beach when he arrived; that it was driven as were other cars to get beer; that “the car was already running when we made it there, *** it was running, people running back to the store in the car”; and that the unknown man had told him that he did not need the keys because the car was “cranked and running,” and the car had keys in it.

Defendant further testified that he did not notice that the trunk had tape on it, or that the steering column was damaged. Defendant reiterated that he did not know the group of persons at the beach with whom he had been drinking, but that he had met the two persons he had been arrested with because they had all taken the bus to the beach.

During redirect examination, defense counsel attempted to clarify whether defendant, by saying that the car was “running,” meant that people were either using or driving the car. Defendant responded negatively and said that the car was just “running” and “would be hard to get it jumped.”

Following closing arguments, the trial court stated that defendant was found guilty of burglary and trespass. Defense counsel then asked whether defendant was guilty of possession of a stolen motor vehicle, and the trial court answered affirmatively.

On March 8, 1989, defendant’s motion for a new trial was denied. The trial court then sentenced defendant to three years’ imprisonment. The order of sentence and commitment states that defendant was sentenced for the offense of possession of a stolen motor vehicle.

Sections 4 — 103(a)(1) and (b) of the Illinois Vehicle Code provide:

“(1) A person not entitled to the possession of a vehicle or essential part of a vehicle to receive, possess, conceal, sell, dispose, or transfer it, knowing it to have been stolen or converted; additionally the General Assembly finds that the acquisition and disposition of vehicles and their essential parts are strictly controlled by law and that such acquisition and disposition are reflected by documents of title, uniform invoices, rental contracts, leasing agreements and bills of sale. It may be inferred, therefore that a person exercising exclusive unexplained possession over a stolen or converted vehicle *** has knowledge that such vehicle or essential part is stolen or converted, regardless of whether the date on which such vehicle or essential part was stolen is recent or remote.
(b) Sentence. A person convicted of a violation of this Section shall be guilty of a Class 2 felony.” Ill. Rev. Stat. 1987, ch. 951/2, pars. 4 — 103(a)(1), (b).

Defendant first argues that the evidence was insufficient to prove him guilty of possession of a stolen motor vehicle and burglary beyond a reasonable doubt. As a threshold matter, we note that while the trial court made a finding that defendant was guilty of burglary, judgment was entered and defendant was sentenced only on the possession of a stolen motor vehicle charge. A 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.” (Ill. Rev. Stat. 1987, ch. 38, par. 2 — 5.) Since no judgment was entered here as to the charge of burglary, we need not consider this issue further. People v. Caballero (1984), 102 Ill. 2d 23, 51, 464 N.E.2d 223.

We now turn to the sufficiency of the evidence as it pertains to defendant’s conviction of possession of a stolen motor vehicle. A person commits the crime of possession of a stolen motor vehicle when that person, who is not entitled to possession of a vehicle, receives or possesses that vehicle knowing it to have been stolen or converted. Ill. Rev. Stat. 1987, ch. 951/2, par. 4 — 103(a)(1); People v. Tucker (1989), 186 Ill. App. 3d 683, 542 N.E.2d 804.

The element of knowledge may be established by proof of circumstances that would cause a reasonable man to believe that the property had been stolen. Direct proof of this element is not necessary, and where possession has been shown, an inference of defendant’s knowledge can be drawn from the surrounding facts and circumstances. (People v. Malone (1989), 188 Ill. App. 3d 1094, 1096-97, 545 N.E.2d 168; People v. Hall (1989), 187 Ill. App. 3d 1084, 1087, 543 N.E.2d 1038; People v. Tucker (1989), 186 Ill. App. 3d 683, 694, 542 N.E.2d 804; see also People v. Mijoskov (1986), 140 Ill. App. 3d 473, 477, 488 N.E.2d 1374.) The possession statute provides that the requisite knowledge of the stolen nature of the vehicle may be inferred from a person’s exclusive and unexplained possession of it. The inference of knowledge arising from exclusive possession of recently stolen property may be rebutted by defendant’s explanation; however, defendant must offer a reasonable story or be judged by its improbabilities. (See Mijoskov, 140 Ill. App. 3d at 477.) The trier of fact is not required to accept defendant’s version of the facts, but may consider its probability or improbability in light of the surrounding circumstances. Mijoskov, 140 Ill. App. 3d at 477.

The trier of fact determines the credibility of witnesses and the weight to be given their testimony. (People v. Locascio (1985), 106 Ill. 2d 529, 537, 478 N.E.2d 1358.) A reviewing court does not reweigh the facts and will not set aside a finding of guilty unless the evidence is so palpably contrary to the finding or so unreasonable, improbable or unsatisfactory as to cause a reasonable doubt as to the guilt of the accused. People v. Shum (1987), 117 Ill. 2d 317, 356, 512 N.E.2d 1183.

In the present case, the evidence clearly demonstrated that defendant exercised exclusive possession of a stolen motor vehicle. Additionally, defendant stated in response to Officer Nowakowski’s questioning that he did not know to whom the vehicle belonged. Nowakowski and Cox both testified that defendant did not tell them that a man who had allegedly given him the vehicle was at the Foster Avenue beach. Additionally, the vehicle’s trunk-lock area was visibly taped and, most importantly, the steering column was visibly “peeled.” Defendant’s explanation that he obtained an already operating vehicle from a man he had never seen before; that he did not see that the steering column was “peeled” as he was driving while police officers who were not in the car noticed that fact; and that he was undertaking a lengthy, late night errand to obtain beer for a group of strangers who had given him $10 strains belief. We therefore believe that sufficient evidence was presented to raise an inference that defendant knew that the vehicle he was driving was stolen. We also believe that defendant has not successfully rebutted that inference.

Defendant’s second argument is that section 4 — 103(a)(1) is facially unconstitutional as it allows an irrational evidentiary inference of knowledge which undercuts innocent persons who gain possession informally, i.e., borrowing a vehicle from a friend, family member or neighbor.

Statutorily created permissive inferences, such as the inference contained in section 4 — 103, do not violate due process guarantees where three considerations are satisfied: (1) there is a rational connection between the facts proven and the ultimate fact presumed; (2) the presumed fact is more likely than not to flow from the proven fact; and (3) the inference is supported by corroborating evidence of guilt. (People v. Gentry (1989), 192 Ill. App. 3d 774, 778, 549 N.E.2d 609; see People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151; County Court v. Allen (1979), 442 U.S. 140, 165, 60 L. Ed. 2d 777, 797, 99 S. Ct. 2213, 2228; People v. Hester (1989), 131 Ill. 2d 91, 100, 544 N.E.2d 797.) If there is no corroborating evidence, the leap from the proven fact to the presumed element must still be proved beyond a reasonable doubt. Hester, 131 Ill. 2d at 100; Housby, 84 Ill. 2d at 421, citing Allen, 442 U.S. at 167, 60 L. Ed. 2d at 798, 99 S. Ct. at 2229-30.

A permissive inference or presumption is one where the fact finder is free to accept or reject the suggested presumption. (Allen, 442 U.S. at 156, 60 L. Ed. 2d at 791, 99 S. Ct. at 2224; Hester, 131 Ill. 2d at 99.) “It places no burden on the defendant and ‘affects the application of the “beyond a reasonable doubt” standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference.’ ” Hester, 131 Ill. 2d at 99-100, quoting Allen, 442 U.S. at 157, 60 L. Ed. 2d at 792, 99 S. Ct. at 2224-25.

Basic to defendant’s argument in the instant case is a misapprehension of the effect of the section 4 — 103(a)(1) permissive inference. Contrary to defendant’s assertions, the allowance of this inference is not tantamount to the imposition of criminal liability. To that extent, any application of the due process test as enunciated in People v. Wick (1985), 107 Ill. 2d 62, 65-66, 481 N.E.2d 676, and applied in Gentry (192 Ill. App. 3d at 776-77), to consider whether a statute bears a reasonable relationship to its intended purpose is beside the point. The discussion under consideration in Wick and Gentry concerned the statute’s imposition of criminal liability. The issue here concerns rather an evidentiary assist, a permissive inference, which the trier of fact is free to utilize only where corroborating evidence also exists. The elements of the offense must still be proven beyond a reasonable doubt, and a defendant is not deemed guilty because the inference has been raised. This evidentiary device may not undermine the fact finder’s responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt. Allen, 442 U.S. at 156, 60 L. Ed. 2d at 791, 99 S. Ct. at 2224.

In Gentry (192 Ill. App. 3d at 778), this court held that the section 4 — 103 permissive inference was rationally related to and would more often than not follow from facts showing the “exclusive unexplained possession of a vehicle.” Thus, clearly, as the statute is presently construed, a person who gains possession by innocently borrowing a stolen vehicle from a friend or family member would not suffer the application of this inference, unless other unexplained, improbable facts and circumstances also existed. We find, therefore, that section 4 — 103(aXl) passes constitutional muster.

Defendant’s third contention is that section 4 — 103(b) is unconstitutional and violative of due process inasmuch as it determines possession of a stolen motor vehicle (Ill. Rev. Stat. 1987, ch. 951/2, par. 4 — 103(a)(1)) to be a Class 2 felony, punishable by three to seven years’ imprisonment, while the greater offense of theft (Ill. Rev. Stat. 1987, ch. 38, par. 16 — 1) is a Class 3 felony (Ill. Rev. Stat. 1987, ch. 38, par. 16 — 1(e)(3)), punishable by two to five years’ imprisonment. Defendant’s argument, however, is premised upon the notion that possession of a stolen motor vehicle remains a lesser-included offense of theft following amendment to the Illinois Vehicle Code, effective January 1,1985.

The Illinois Supreme Court has recently made clear that such is not the case. In People v. Bryant (1989), 128 Ill. 2d 448, 457, 539 N.E.2d 1221, the court unequivocally stated:

“Under previous statutory schemes, possession of a stolen motor vehicle may have been considered a lesser included offense of theft. [Citations.] However, any previous lesser included offense rule is not applicable to the current statutory scheme for possession of a stolen motor vehicle. The steady increase in the penalty provision for possession of a stolen motor vehicle is indicative of the legislature’s intent to make possession of a stolen motor vehicle is a separate, more serious offense than theft, rather than a lesser included offense of theft.”

The court reasoned that the legislature was empowered to define criminal conduct and determine the nature and extent of punishment thereof. (See People v. Steppan (1985), 105 Ill. 2d 310, 319, 473 N.E.2d 1300.) Thus, the legislature might reasonably alter any previous statutory scheme to allow an increase of penalties, particularly to remedy the increasing frequency of an offense.

Defendant contends, however, that by altering the statutory scheme, thusly, the legislature, in effect, has deprived him of the option of conviction of a lesser-included offense, which thereby enhances the risk of unwarranted convictions and results in deprivations of due process. However, the cases cited by defendant for support (Beck v. Alabama (1980), 447 U.S. 625, 637, 65 L. Ed. 2d 392, 402-03, 100 S. Ct. 2382, 2389; Keeble v. United States (1973), 412 U.S. 205, 212-14, 36 L. Ed. 2d 844, 850-51, 93 S. Ct. 1993, 1997-99) involved preclusions of lesser-included offense jury instructions. Significantly, neither Beck nor Keeble found a violation of due process by the failure to instruct as to a lesser-included offense. A fortiorari, defendant here would seem to have no cognizable due process interest in the statutory scheme as it existed prior to amendment. We therefore find Bryant dispositive, and no further comment is necessary.

Accordingly, we affirm the judgment of the circuit court. As part of our judgment, we grant the State’s request and assess defendant $50 as costs for this appeal.

Affirmed.

LaPORTA, P.J., and McNAMARA, J., concur.


author: JUSTICE MANNING

text:
    MAHMOUD HASSAN, a/k/a Mohmoud Hassan, Plaintiff-Appellee, v. GAYLE S. WAKEFIELD et al., Defendants-Appellants.
    First District (1st Division)
    Nos. 1 — 87—1796, 1—87—3884 cons.
    Opinion filed September 24, 1990.

      Robert V. Gildo, Ltd., of Wheaton (Robert V. Gildo, of counsel), for appellants.
    Elmore & DeMichael, of Oak Forest (Joseph E. Daudish and Joseph J. DeMichael, of counsel), for appellee.
   JUSTICE MANNING

delivered the opinion of the court:

Defendants appeal from the granting of summary judgment to the plaintiff, Mahmoud Hassan, a/k/a Mohmoud Hassan (hereafter Hassan), as to count I of his complaint and the trial court’s denial of the defendants’ motion to reconsider (No. 1 — 87—1796). A subsequent appeal related to this matter (No. 1 — 87—3884) was filed on December 22, 1987, by the defendants from an order of the trial court granting summary judgment to the plaintiff as to counts II through IX of his complaint and the denial of defendants’ motion to dismiss. On April 19, 1988, an order was entered by this court consolidating the two related appeals.

On December 18, 1980, Hassan entered into a long-term lease agreement with defendants, Gayle S. Wakefield (hereafter Wakefield) and Fair Automotive Repair, Inc., for property located at 4800 West 111th Street, Oak Lawn. Wakefield is the president and majority stockholder of Fair Automotive Repair, Inc. The lease agreement required the defendants to make monthly rental payments and periodic payments of additional rent determined by gross sales and real estate taxes. During the lease period payments were made to either Marathon Finance Company or Hassan. On April 11, 1986, it was determined that Wakefield had defaulted by his failure to pay the basic rent for the preceding nine consecutive months plus the additional rent based on gross sales and real estate taxes.

A notice of default was sent to the defendants on April 11, 1986, and received on April 14, 1986, requiring a payment in excess of $40,000 for past-due rent. Payment was due to be made by April 30, 1986, and on that date, Hassan’s attorney received several checks totalling $40,166.41 from the defendants as payment for the past-due rent obligation. On May 1, 1986, Hassan took the checks to the First Security Bank of Downers Grove (hereafter Bank) to have the checks either cashed or certified. The Bank refused to cash the checks since they totaled more than the amount available in the defendants’ account officially known as “uncollected funds.” These are funds credited to a drawer’s account that have not cleared. The checks were stamped “uncollected funds” and returned to Hassan without payment. Hassan did not attempt to deposit these checks into his account.

On May 2, 1986, Hassan sent the defendants a notice of termination of lease. Thereafter, Hassan filed a complaint in forcible detainer. Count I sought possession of the premises and counts II through IV requested monetary damages. On May 16, 1986, the defendants’ attorney sent Hassan a letter informing him that the check given to Hassan for the sum of $40,166.41 “was available for deposit and presently there are sufficient funds to cover that check.”

On December 10, 1986, Hassan filed a motion for summary judgment as to count I of his complaint seeking a vacatur of the premises. This motion was granted by the trial court on March 12, 1987. The defendants did not vacate the premises at the scheduled time. Instead, they filed a motion to reconsider the March 12, 1987, order which was denied on May 6, 1987. Hassan filed an emergency motion for an order of immediate possession of the premises which was granted on May 26, 1987. Defendants filed a notice of appeal on June 4, 1987, appealing the trial- court’s March 12, 1987, order granting summary judgment as to count I of their complaint and the May 6, 1987, order denying the defendants’ motion to reconsider.

On June 12, 1987, plaintiff filed a motion to dismiss appeal No. 1 — 87—1796, asserting that this court lacked jurisdiction because defendants failed to file a timely notice of appeal. We ordered this motion to be taken with the case. The initial issue that must be decided is whether this court has jurisdiction to consider the merits of this appeal. The timely filing of a notice of appeal is both jurisdictional and mandatory. (Supreme Court Rule 301 (107 Ill. 2d R. 301); City Auto Paint & Supply, Inc. v. Brandis (1979), 73 Ill. App. 3d 863, 865, 392 N.E.2d 703.) Moreover, a reviewing court must be certain of its jurisdiction prior to proceeding in a cause of action where the court’s jurisdiction is lacking. Brandis, 73 Ill. App. 3d at 865.

This appeal was filed pursuant to Supreme Court Rule 304(a). The purpose underlying the enactment of Rule 304(a) is to provide for an immediate appeal in cases involving judgments as to fewer than all the parties or claims. (Carter v. Chicago & Illinois Midland Ry. Co. (1988), 119 Ill. 2d 296, 308, 518 N.E.2d 1031; Elg v. Whittington

(1986), 149 Ill. App. 3d 307, 311, 500 N.E.2d 568, aff’d (1987), 119 Ill. 2d 344, 518 N.E.2d 1232.) Rule 304(a) provided:

“Rule 304: Appeals from Final Judgments That Do Not Dispose of an Entire Proceeding
(a) Judgments As To Newer Than All Parties or Claims — Necessity for Special Finding. If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. Such a finding may be made at the time of the entry of the judgment or thereafter on the court’s own motion or on motion of any party. The time for filing the notice of appeal shall run from the entry of the required finding.” 107 Ill. 2d R. 304(a).

On March 12, 1987, the trial court granted plaintiff’s motion for summary judgment as to count I of his complaint and denied defendants’ motion for summary judgment. The order was entered containing the language of Supreme Court Rule 304(a) that “this is a final order and there is no just reason to delay enforcement or appeal hereof.” On April 1, 1987, defendants filed a motion to reconsider the trial court’s March 12, 1987, order which was denied on May 6, 1987. Plaintiff filed a notice of appeal on June 4, 1987. Although plaintiff filed a timely post-trial motion to reconsider, the notice of appeal was untimely filed since it was not filed within 30 days of the March 12, 1987, order in which the trial court issued its Rule 304(a) finding. (See Mostardi-Platt Associates, Inc. v. American Toxic Disposal, Inc. (1989), 182 Ill. App. 3d 17, 537 N.E.2d 922; Smith v. Beltran (1988), 166 Ill. App. 3d 411, 519 N.E.2d 1034.) Moreover, a pending motion to reconsider under the prior rule did not toll the time to appeal from a final judgment. (See Beltran, 166 Ill. App. 3d 411; Whittington, 149 Ill. App. 3d at 313, aff’d (1987), 119 Ill. 2d 344, 518 N.E.2d 1232.) To allow a party to toll the time for appeal by filing a motion to reconsider would “thwart” the purpose and rationale of that prior Rule 304(a). (Whittington, 149 Ill. App. 3d at 311, aff’d (1987), 119 Ill. 2d 344, 518 N.E.2d 1232.) Instead, the post-judgment motion had to be filed first, and after denial of the motion, the Rule 304(a) finding obtained. Whittington, 149 Ill. App. 3d at 311, aff'd (1987), 119 Ill. 2d 344, 518 N.E.2d 1232.

Under the rule as it existed at the time of the instant judgment, when parties failed to file their appeal of an interlocutory order within 30 days of entry of the final order, they waived their right to appeal. (Predny v. Village of Park Forest (1987), 164 Ill. App. 3d 688, 693, 518 N.E.2d 1243; Whittington, 149 Ill. App. 3d at 313; see also Archambault v. Reliance Insurance Co. (1981), 95 Ill. App. 3d 632, 635, 420 N.E.2d 552.) It is clear from the record that defendants’ notice of appeal was not filed within 30 days of the trial court’s order granting summary judgment as to count I which included a Rule 304(a) finding. Therefore, this court does not have jurisdiction to review the merits of defendants’ untimely appeal. Accordingly plaintiff’s motion to dismiss the appeal in cause No. 1 — 87—1796 for lack of jurisdiction is granted.

We must now consider the remaining consolidated appeal. In this appeal, counsel for the parties failed to comply with the supreme court rules governing briefs since briefs were not filed by either party to this action. (See 107 Ill. 2d R. 341.) However, the record reveals that in this cause of action, on June 11, 1987, Hassan filed a motion for summary judgment as to counts II through X of the complaint. Thereafter, defendants filed a motion to stay all proceedings pending the outcome of appeal No. 1 — 87—1796 which was denied on August 3, 1987, by the trial court. On November 23, 1987, the trial court granted plaintiff’s motion for summary judgment as to counts II through IX and denied the motion as to count X and pursuant to plaintiff’s motion count X was withdrawn. The trial court also contemporaneously denied defendant’s motion to dismiss.

On December 22, 1987, defendants filed a notice of appeal from the November 23, 1987, order pursuant to Supreme Court Rule 303(a). As previously noted, defendants failed to submit any briefs in support of its notice of appeal nor did the plaintiff submit any briefs. It is well settled that a reviewing court is entitled to have the issues on appeal clearly defined, including the citation of pertinent authority and the presentment of cohesive legal argument. (Thrall Car Manufacturing Co. v. Lindquist (1986), 145 Ill. App. 3d 712, 719, 495 N.E.2d 1132; Bass v. Washington-Kinney Co. (1983), 119 Ill. App. 3d 713, 728, 457 N.E.2d 85.) Further, a reviewing court is not a depository in which an appellant may dump upon the court the entire matter of pleadings, argument, and research. (Lindquist, 145 Ill. App. 3d at 719; In re Estate of Kunz (1972), 7 Ill. App. 3d 760, 763, 288 N.E.2d 520.) We have frequently held that bare contentions without providing argument or citations do not merit consideration on appeal. (People ex rel. Aldworth v. Dutkanych (1985), 131 Ill. App. 3d 1007, 1009, 476 N.E.2d 805, aff'd (1986), 112 Ill. 2d 505; Deckard v. Joiner (1970), 44 Ill. 2d 412, 255 N.E.2d 900.) Therefore, we will not address the merits of defendants’ appeal. (See 107 Ill. 2d R. 341; Dutkanych, 131 Ill. App. 3d at 1009, aff'd (1986), 112 Ill. 2d 505.) Accordingly, the appeal as to cause No. 1 — 87—3884 is also dismissed.

Appeal dismissed.

CAMPBELL and O’CONNOR, JJ., concur.

      Effective January 1, 1989, Rule 304(a) was amended to provide that the time for filing a notice of appeal shall be as provided in Rule 303, which requires that the notice of appeal must be filed within 30 days after entry of the final judgment appealed from, or if a timely post-trial motion directed against the judgment is filed, within 30 days after entry of order disposing of the last pending post-trial motion.


text:
    ROBERT DUNCAN, Indiv. and d/b/a Chicago Do-All Custom Home Remodeling, Plaintiff and Counterdefendant-Appellee, v. LAURETTA CANNON, Defendant and Counterplaintiff-Appellant.
    First District (1st Division)
    No. 1 — 88—3007
    Opinion filed September 24, 1990.

      Benjamin C. Duster, of Chicago, for appellant.
    Joel A. Brodsky, of Chicago, for appellee.
   JUSTICE MANNING

delivered the opinion of the court:

Defendant and counterplaintiff Lauretta Cannon (Defendant) appeals from the judgment of the circuit court in favor of plaintiff and counterdefendant (Plaintiff) in the amount of $9,600, which represents the unpaid contract price of $1,900 for work performed and $7,700 for “extra” work. Defendant raises three issues on appeal: (1) whether plaintiff was entitled to additional payment for alleged extra work; (2) whether plaintiff’s failure to file plans pursuant to the Chicago Building Code (Ordinance) precludes him from recovering for extra work; and (3) whether the circuit court erred in denying defendant’s request for a continuance.

The record reveals that defendant owns a three-flat apartment building in Chicago. In March 1986 defendant entered into a contract with plaintiff to modify the single boiler in the building, which heated all three apartments, by cutting it down to heat only the first floor. The original radiators were to remain on the first floor. Plaintiff was to install a new steam boiler to heat the third floor with the original radiators remaining, and a new hot water boiler to heat the second floor, which would be connected to new baseboard radiators. Pursuant to the contract, all three boilers were to be connected to separate gas meters. The contract price was listed as $5,900, which included all labor and materials.

Shortly thereafter, the parties entered into a second contract which modified their original agreement and stated:

“Building is a 3-flat building. Boiler is now heating the entire building. Present boiler will be cut down and only used for 1st floor and present radiators. Other 2 floors will be heated with 260,000 BTU boilers steam with lo-cut offs and automatic water feeders. Use present radiators and hook up all three boilers to separate gas meters. 3 gas meter connections. Price includes all labor and material and work to be done in a workmanlike manner.”

The contract amount was listed as $7,000, “one half xk down payment on delivery — balance to be paid on completion.”

After the work was completed, plaintiff brought this cause of action. Defendant asserted a number of affirmative defenses and filed a counterclaim alleging that plaintiff had performed faulty work.

On August 29, 1988, the case was set final for trial. However, on that date defense counsel presented an oral motion for a continuance on the ground that defendant’s expert witness was suddenly and unexpectedly unavailable. The trial court denied defendant’s motion and proceeded with trial. Following the trial, the court entered judgment on behalf of plaintiff on counts I and II of his complaint and judgment for the defendant on her counterclaim in the amount of $450.

We first address defendant’s argument that because the work in question was required by the original contract it could not be considered as extra work. In order for a contractor to recover additional payment from an owner for extra work, he must establish by clear and convincing evidence each of the essential elements in his case. He must establish that: (1) the work was outside the scope of the original contract; (2) the extra items were ordered at the direction of the owner; (3) the owner agreed either expressly or impliedly to pay extra; (4) the extra items were not voluntarily furnished by the contractor; and (5) the extra items were not rendered necessary by any fault of the contractor. (Watson Lumber Co. v. Guennewig (1967), 79 Ill. App. 2d 377, 389-90, 226 N.E.2d 270.) Moreover, our courts have continually reiterated that the proof that the items are extra, that the defendant ordered them as such and agreed to pay for them must be by clear and convincing evidence. R & R Construction Co. v. Junior College District No. 529 (1977), 55 Ill. App. 3d 115, 118, 370 N.E.2d 549, citing Guennewig, 79 Ill. App. 2d at 390; see also Athens v. Prousis (1989), 190 Ill. App. 3d 349, 356, 546 N.E.2d 695; Cencula v. Keller (1989), 180 Ill. App. 3d 645, 652, 536 N.E.2d 93; Ambrose v. Biggs (1987), 156 Ill. App. 3d 515, 520, 509 N.E.2d 614; Wingler v. Niblack (1978), 58 Ill. App. 3d 287, 289, 374 N.E.2d 252.

Defendant argues that plaintiff failed to establish by clear and convincing evidence that the work in question was extra. She urges that the trial' court’s judgment for plaintiff was against the manifest weight of the evidence.

It is well established that “clear and convincing evidence is considered to be more than a preponderance while not quite approaching the degree of proof necessary to convict a person of a criminal offense.” (In re Estate of Ragen (1979), 79 Ill. App. 3d 8, 14, 398 N.E.2d 198.) “The manifest weight of the evidence is that which is ‘the clearly evident, plain and indisputable weight of the evidence.’ [Citations.] In order for a finding to be contrary to the manifest weight of the evidence, an opposite conclusion must be clearly apparent. [Citation.]” In re Application of County Collector (1978), 59 Ill. App. 3d 494, 499, 375 N.E.2d 553.

At the trial below, four witnesses testified. Plaintiff testified, inter alia, that the extra work included installation of 12 new steam pipe lines, which were run from the new boilers in the basement to 12 radiators in the second- and third-floor apartments, and work on the walls and floors of the premises to accommodate the lines; defendant orally requested the new steam lines and promised to pay for them; the work was outside the scope of the contract since it was always his intent to use the existing pipe lines to hook up the boilers to the radiators; he did not submit plans to the city because he did not believe the Ordinance applied to the job; and the boiler installation was subcontracted out to a third party.

Mr. Poulas, an expert witness for plaintiff, testified that he was not a licensed plumber but had been in the heating business in the Chicago area for over 35 years. He stated “that he did not know how many lines were run from the basement to the *** floors” but, “individual lines were run from the basement to the radiators in the second and third floor apartments.” However, Mr. Poulas offered no other testimony to establish that the work was extra, and what he did testify to was based on his visit to the second floor only.

Defendant testified on her counterclaim as to the faulty work provided by plaintiff as well as the case in chief. The record reflects that defendant testified that “other than the boiler change for which she agreed to pay an extra $1,000, she never requested that any extra work be done by plaintiff.” She conceded that “individual lines were run from the basement to the radiators on the second floor” but denied requesting this “configuration as an extra.” Defendant further stated that she considered the running of pipes from each boiler to the floor that boiler was to heat as incidental and necessary to the work required under the written contract, and that the configuration proposed by plaintiff, i.e., connecting the existing pipe lines in the basement to the new boilers and then through the original boiler, which already had pipe lines extending from the basement to the individual floors, would not give rise to separate heating systems and hence separate billings.

Mr. Cannon, husband of defendant, corroborated her testimony when he testified “that [although] individual lines were run from the basement to the second floor through his apartment (on the first floor), no lines were run from the basement to the third floor.” When asked on cross-examination “how does heat get to the third floor apartment if there are no pipes from the basement to the third floor radiators[?]” Mr. Cannon replied “that the new boiler for the third floor was connected to the original boiler by piping in the basement, and the heat was sent to the third floor through the original pipes in the old heating system.”

As noted previously, the law in Illinois applicable to the subject of extras is specifically enunciated. (Watson Lumber Co. v. Mouser (1975), 30 Ill. App. 3d 100, 109, 333 N.E.2d 19, citing Bulley & Andrews, Inc. v. Symons Corp. (1975), 25 Ill. App. 3d 696, 699-700, 323 N.E.2d 806.) In the instant case, the record is devoid of evidence as to elements four and five and the evidence is disputed as to elements two and three. (See Guennewig, 79 Ill. App. 2d at 389.) The testimony of plaintiff urges that defendant requested and agreed to pay for the extra work. Conversely, defendant denied those allegations. Defendant insinuates that plaintiff voluntarily installed the lines as necessitated by the contractual agreement; however, she offered no evidence to substantiate the theory and neither did plaintiff offer any evidence to dispute it once placed into issue by the defendant. Although the trial court made no specific findings of fact, we can infer from its judgment for plaintiff that it agreed with plaintiff. We disagree with that conclusion, finding it to be overbroad and general; moreover, based on our review of the record, we conclude that plaintiff failed to establish by clear and convincing evidence that he was entitled to additional payment for extra work.

Plaintiff further argues that he presented some evidence on each element, and consequently, we are to disregard the fact that defendant presented conflicting evidence on the ground that as a reviewing court we must accept the finding of the trier of fact. It is well established that where the evidence presented is conflicting, it is the duty of the trial court to listen to the testimony of the witnesses and resolve any conflicts therein on the grounds that credibility of witnesses and the weight to be given to conflicting evidence are solely matters for the trier of fact. (In re Marriage of Ligas (1982), 110 Ill. App. 3d 1, 6, 441 N.E.2d 12.) However, it is also well settled that a finding of the trier of fact will be reversed when against the manifest weight of the evidence (Bass v. City of Joliet (1973), 10 Ill. App. 3d 860, 870, 295 N.E.2d 53), where it appears there is no evidence at all to support the finding (see Breslin v. Bates (1973), 14 Ill. App. 3d 941, 303 N.E.2d 807), or where the evidence is clearly insufficient. See Hammer v. Slive (1960), 27 Ill. App. 2d 196, 169 N.E.2d 400.

In the case at bar, while it is arguable that the contradictory evidence presented goes to the matter of the credibility of the witnesses, we find that the evidence presented as to the first element, whether the work was outside the scope of the original contract between the parties or necessary to the contract, is controlling. Labor and materials which are incidental and necessary to the execution of the contract generally cannot be regarded as extra work for which a contractor or builder may recover. 17A C.J.S. Contracts §371(6), at 412 (1963). Mayer Paving & Asphalt Co. v. Carl A. Morse, Inc. (1977), 48 Ill. App. 3d 73, 365 N.E.2d 360.

Furthermore, the only evidence before the trial court was allegations of general discussions between the parties. However, it is well settled that the burden of establishing these matters is the plaintiffs burden, and evidence of general discussion will not supply all of these elements. (Guennewig, 79 Ill. 2d at 390.) In the instant case, there was no expert testimony or other evidence presented as to whether new pipe lines had to be installed incidental to the contract, as advocated by the defendant, or whether existing pipe lines could be altered to run from the new boilers in the basement through the original boiler to the radiators in the apartments in order to generate separate heating bills, as advocated by the plaintiff.

Moreover, the determination of this issue was required to be resolved by more than mere assertions or denials by the parties. The trial court had an obligation to do more than weigh the testimony of the witnesses; rather, the court had a duty to consider the contract itself, and the intent of the parties at the time they entered into the contract. A contract must be enforced according to its terms. (Sweeting v. Campbell (1956), 8 Ill. 2d 54, 58, 132 N.E.2d 523, 525.) When construing a contract, the trial court’s primary objective is to ascertain the intent of the parties at the time they entered into the contract. (Cedar Park Cemetery Association, Inc. v. Village of Calumet Park (1947), 398 Ill. 324, 75 N.E.2d 874.) If the terms of the contract are unambiguous, then the intent of the parties must be ascertained solely from the words used. (Schoeneweis v. Herrin (1982), 110 Ill. App. 3d 800, 806, 443 N.E.2d 36.) A contract is ambiguous if its terms are capable of being understood in more than one sense because either an indefiniteness of expression or a double meaning is attached to them. Joseph v. Lake Michigan Mortgage Co. (1982), 106 Ill. App. 3d 988, 991, 436 N.E.2d 663.

We have scrutinized the contract here and determine that it is ambiguous in as much as it fails to specify the number of pipe lines to be used and connections to be made to hook up the boilers to the radiators in the apartments. Nor does it state whether the “present” pipe lines are to be used or “remain” on the premises. Plaintiff asserts that the present lines were to be used but for defendant’s request for new lines. He urges that the trial court agreed with him when, during the hearing on the motion for reconsideration, the court commented that the work was a “major modification.” However, our review of the record finds nothing to base the trial court’s conclusion upon.

Because the contract is ambiguous, it was incumbent upon the trial court to look to the intent of the parties at the time they entered into the contract. In this manner, the court could have properly determined whether the work was within the bounds of the contractual agreement or outside of the scope of the contract. However, the record is devoid of any indication of the trial court having made such an assessment. We have reviewed the contract and believe that the intent of the parties thereunder is clear, that intent being to produce three separate heating systems. The contract specifies that the “present boiler will be cut down” to heat the “1st floor” and that “the other 2 floors will be heated with steam boilers.” It clearly states that all three boilers will be hooked up to separate gas meters and provides for “3 gas meter connections.” Similarly, it states that “present radiators” will be used.

Conversely, neither the contract language, the actions of the parties, nor the testimony of plaintiff’s expert witness sheds any light on the technical issue of whether new pipe lines were necessary to the contract:

“In order to recover for items as ‘extras,’ they must be shown to be items not required to be furnished under plaintiff’s original promise as stated in the contract, including the items that the plans and specifications reasonably implied even though not mentioned. A promise to do or furnish that which the promisor is already bound to do or furnish, is not consideration for even an implied promise to pay additional for such performance or the furnishing of materials.” Guennewig, 79 Ill. App. 2d at 391.

Accordingly, we hold that on this record, it is manifestly against the weight of the evidence to find that the work was outside the scope of the original contract between the parties. As to the testimony presented by plaintiff, he offered no evidence of the specific time, place or nature of any discussions with, or conduct of, defendant involving installation of the 12 steam pipe lines. The evidence, to the contrary, discloses that plaintiff may not have used separate lines for the third floor at all. There was no expert testimony or authority presented to the court to explain how various plumbing configurations render different results. Yet, such specific evidence is required for the recovery of extras, particularly where, in addition, no bill or documentation of labor and materials provided for extra work is ever submitted.

It is the plaintiff’s burden to prove each and every element by clear and convincing evidence, which he has here failed to do. Thus, we conclude that the evidence presented by plaintiff is insufficient to sustain the judgment, and we reverse the trial court’s judgment and remand this matter for further proceedings not inconsistent with this opinion.

Furthermore, the contract here, which was drafted by plaintiff, provides that all extra work be in writing. The contract states in pertinent part: “Any alteration or deviation from specifications below involving extra costs will be executed only upon written orders, and will become an extra charge over and above the estimate.” However, there is no evidence of a written order. Plaintiff correctly asserts that oral modifications to written contracts are allowed. The rule is that a condition that all extra work be performed only upon written orders can be waived orally by the owner; but, before the contractor is entitled to compensation for extras, the waiver must be proved by clear and convincing evidence. See Atlee Electric Co. v. Johnson Construction Co. (1973), 14 Ill. App. 3d 716, 303 N.E.2d 192.

In the case at bar, there is no evidence, let alone clear and convincing evidence, put forth by plaintiff that defendant waived the requirement that any modification to the contract be in writing. As discussed above in this opinion, although the trial judge commented that the installation work was a “major modification” of the parties’ agreement, he made no specific finding of fact as to why such modification was not required to be in writing pursuant to the contract. Accordingly, we conclude that plaintiff failed to prove a waiver of the writing requirement by clear and convincing evidence.

Ordinarily, because of our disposition on the first issue, we would not consider the remaining issues. However, as the question regarding the applicability of the Ordinance may resurface on remand, we will briefly discuss it.

"We summarily conclude that defendant’s argument, which proposes that a party’s failure to strictly abide by the Ordinance, assuming it is applicable to the contract, operates as a bar to recovery in a cause of action for extra work, is unsupported by law. See generally Abingdon Bank & Trust Co. v. Bulkeley (1945), 390 Ill. 582, 62 N.E.2d 447.

Assuming the Ordinance was applicable to the instant matter, we find the strikingly similar case of South Center Plumbing & Heating Supply Co. v. Charles (1968), 90 Ill. App. 2d 15, 234 N.E.2d 358, to be dispositive of the issue. In South Center, this court determined that the failure of a repairman, who had contracted with the building owner to remove and relocate plumbing in one apartment of the building, to obtain a permit for the work to be performed and submit plans for approval of the city as required by the ordinance did not prohibit him from recovering on a contract or quantum meruit basis for services rendered. The court there reasoned that, although the repairman violated the ordinance, he was not prohibited from recovering for work performed because the ordinance did not manifest legislative intent to declare illegal contracts performed in violation of permit and filing requirements. Furthermore, as here, the record in South Center did not reflect that any harm was caused to the public welfare. 90 Ill. App. 2d at 20; see also Lavine Construction Co. v. Johnson (1981), 101 Ill. App. 3d 817, 428 N.E.2d 1069.

In the instant case, the Ordinance merely provides, inter alia, that the failure of the owner or agent to file plans and specifications with the Department and to obtain a permit therefrom for “installation” of any boiler or unfired pressure vessel subjects him or her to pay a “fine of twenty-five dollars for each day on which he shall have prosecuted such installation *** without said permit.” Chicago Building Code §17 — 2B.5 (1979).

Accordingly, we conclude that although a municipal ordinance which is applicable to the contract becomes by operation of law an implied term of the contract (Burns v. Regional Transportation Authority (1982), 112 Ill. App. 3d 464, 472, 445 N.E.2d 348; Lavine Construction Co. v. Johnson (1981), 101 Ill. App. 3d 817, 819, 428 N.E.2d 1069; Bethel Terrace, Inc. v. Village of Caseyville (1976), 43 Ill. App. 3d 276, 279, 356 N.E.2d 1269), the Ordinance neither precludes recovery nor provides for a remedy in the form of an absolute defense in the underlying contract action between the contractor (plaintiff and the owner (defendant).

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed in part; reversed in part and remanded for further proceedings consistent with the views expressed herein.

Affirmed in part; reversed in part and remanded.

CAMPBELL and O’CONNOR, JJ., concur.

      The record on appeal does not contain a transcription of the trial proceedings that were held on August 29, 1988, since no court reporter was present on that day. However, pursuant to Supreme Court Rule 323(c) (107 Ill. 2d R. 323(c)), the trial judge certified a report of proceedings based upon the parties’ proposed report of proceedings, objections, answer and amended proposal.

      Seetion 17 — 2B.1 of the City of Chicago Building Code provides in pertinent part that “[t]he provisions of this chapter [chapter 17] *** shall not apply to single dwellings nor to any multiple dwelling having not more than three apartments.” Chicago Building Code ch. 17, §17 — 2B.1 (1979).


text:
    TDC DEVELOPMENT CORPORATION et al., Plaintiffs-Appellees, v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF OTTAWA, Defendant-Appellant.
    First District (1st Division)
    No. 1 — 89—0317
    Opinion filed September 24, 1990.

      Martin, Craig, Chester & Sonnenschein, of Chicago (Thomas H. Donohoe and William A. Kummerer, of counsel), for appellant.
    Altheimer & Gray, of Chicago (Lionel G. Gross and William P. Caputo, of counsel), for appellees.
   JUSTICE MANNING

delivered the opinion of the court:

This is an appeal from an order entered December 6, 1988, which granted judgment on the pleadings under the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615(e)) in favor of plaintiffs in an action to recover money for certain real estate taxes allegedly owed by defendant pursuant to the terms of a written agreement. The question presented is whether the trial court improperly granted judgment on the pleadings in favor of plaintiffs by finding that the agreement’s terms were a “matter of contract and clearly stated within the contract.”

On February 29, 1980, defendant, First Federal Savings and Loan Association of Ottawa (Ottawa), loaned money to plaintiff, TDC Development Corporation (TDC), for the construction of a 96-unit condominium development to be built upon certain real estate that was held in a land trust which listed TDC as the sole owner of the beneficial interest. By June 1982, the loan was alleged to be in default and the project, which remained uncompleted and required additional funds to cover the costs of completion, was the subject of litigation between Ottawa, TDC and other parties.

On June 14, 1982, Ottawa, TDC, the owners of the stock of TDC (Sam Pancotto, Norman E didin, Gary Edidin and Milton Levenfeld), who are plaintiffs and parties to this appeal, and the land trust and the project contractor, neither of whom are parties before this court, entered into an “Agreement” under which the lender, Ottawa, agreed to provide additional funds to complete the project. Ottawa also agreed to pay TDC and to assume specific obligations and liabilities under the project in consideration of TDC and other interested parties performing certain conditions, in particular, TDC’s promise to convey title to the real estate or assign its beneficial interest to Ottawa or a nominee selected by Ottawa.

Title to the subject real estate was conveyed to Ottawa and it was required to pay $49,033.15 for real estate taxes due on the property for the years 1980-82. Ottawa deducted this amount from the sum due to TDC under the terms of the agreement. Consequently, plaintiffs sued Ottawa alleging, inter alia, that Ottawa had assumed the full responsibility for payment of the real estate taxes pursuant to the agreement. Ottawa denied liability; however, the trial court entered judgment on the pleadings in the amount of $49,033.15, plus interest on behalf of plaintiffs. We reverse and remand.

It is well established that a motion for judgment on the pleadings, as provided in section 2 — 615(e) of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615(e)), tests the sufficiency of the pleadings by determining whether the plaintiff is entitled to the relief sought by his complaint or, alternatively, whether the defendant by his answer has set up a defense that would entitle him to a hearing on the merits. (Teeple v. Hunziker (1983), 118 Ill. App. 3d 492, 496, 454 N.E.2d 1174; Hartlett v. Dahm (1981), 94 Ill. App. 3d 1, 3, 418 N.E.2d 44; David v. J. Elrod Realtors on Devon, Inc. (1979), 75 Ill. App. 3d 449, 451, 394 N.E.2d 583; see also Carebuilt Corp. v. Horsting (1963), 40 Ill. App. 2d 280, 189 N.E.2d 364; Milanko v. Jensen (1949), 404 Ill. 261, 88 N.E.2d 857.) In deciding the motion, the trial court must examine all pleadings on file, taking as true the well-pleaded facts, and reasonable inferences to be drawn therefrom, set forth in the opposite party’s pleadings (Walker v. State Board of Elections (1976), 65 Ill. 2d 543, 552-53, 359 N.E.2d 113), to determine whether a material factual dispute exists or whether the controversy can be resolved strictly as a matter of law. See Baker-Wendell, Inc. v. Edward M. Cohon & Associates, Ltd. (1981), 100 Ill. App. 3d 924, 427 N.E.2d 317; David, 75 Ill. App. 3d 449.

It is well settled that where such examination of the pleadings discloses the existence of issues of one or more material facts, evidence must be taken to resolve such issues (Bank & Trust Co. v. Arnold N. May Builders, Inc. (1980), 90 Ill. App. 3d 454, 456-57, 413 N.E.2d 183; see also Heller v. Goss (1980), 80 Ill. App. 3d 716, 400 N.E.2d 70), and the motion for judgment on the pleadings must be denied (Triangle Sign Co. v. Weber, Cohn & Riley (1986), 149 Ill. App. 3d 839, 843, 501 N.E.2d 315; see generally Christensen v. Wick Building Systems, Inc. (1978), 64 Ill. App. 3d 908, 381 N.E.2d 1189; Allis-Chalmers Credit Corp. v. Mc Cormick (1975), 30 Ill. App. 3d 423, 331 N.E.2d 832; Affiliated Realty & Mortgage Co. v. Jursich (1974), 17 Ill. App. 3d 146, 308 N.E.2d 118), since a judgment on the pleadings is proper if only questions of law and not of fact exist after the pleadings have been filed. Walker, 65 Ill. 2d at 552-53.

In deciding the propriety of an order granting judgment on the pleadings, the reviewing court must ascertain whether the trial court correctly determined that no material issue of fact was presented by the pleadings (Kemper v. Worcester (1982), 106 Ill. App. 3d 121, 123, 435 N.E.2d 827), and if there was no such issue, whether judgment was correctly entered. Teeple v. Hunziker, 118 Ill. App. 3d at 497. See also Urbaitis v. Commonwealth Edison (1989), 185 Ill. App. 3d 616, 540 N.E.2d 352.

In the case at bar, the trial court found that the terms as used in the agreement were clear and unambiguous and best stated the parties’ intentions, where it stated:

“THE COURT: Notwithstanding anything to the contrary contained herein, Ottawa agrees to assume responsibility for the following obligations related to the Project to the extent to which such obligations are or become liens upon the Project, up to the amounts designated: (1) Those claims, liens, and title exceptions found in the Commitment for Title Insurance, attached hereto as Exhibit B, except item number 35 on page 10 thereof, up to the amounts set forth therein — .
So the questions are whether the taxes for 1980, 1981, and 1982 are or will become liens upon the Project, and whether they are in Exhibit B — and whether they are covered by the provision ‘up to the amounts set forth therein.’
It seems to me that tax obligations are liens, and it seems to me that the intent of the parties would take that into account.
It seems to me, also, that within Schedule B, which is attached and in connection with the Project, it states that taxes for the years 1980, 1981 and 1982 are liens which somebody is going to have to be responsible for at some point.
This Agreement was made on June 14, 1982, and so, obviously, that would be on the mind of the person who entered into the Agreement.
*** [I]t seems to me that where the parties wanted to except certain things within Schedule B, he knew how to do that — So the parties, both sophisticated in the business that they were in, had the ability to specifically except things if they wished to — .”

It is well settled that the meaning to be given to the language or terms used in an agreement between the parties is governed by contract law. Our courts have determined that where contract language is unambiguous it should be given its plain and ordinary meaning (Reynolds v. Coleman (1988), 173 Ill. App. 3d 585, 593, 527 N.E.2d 897), without resorting to rules of construction (P.A. Bergner & Co. v. Lloyds Jewelers, Inc. (1986), 112 Ill. 2d 196, 203, 492 N.E.2d 1288), and without the court searching for ambiguity where there is none. (United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill. 2d 1, 4, 429 N.E.2d 1203.) Moreover, construction of a contract presents a question of law (see Mazanek v. Rockford Drop Forge Co. (1981), 98 Ill. App. 3d 956, 424 N.E.2d 1271), for the trial court’s determination where the parties have attached no peculiar or unusual meaning to the words (Ahlvers v. Terminal R.R. Association (1975), 31 Ill. App. 3d 166, 171-72, 334 N.E.2d 329). Where, however, the language leaves the true intent of the parties in doubt, it is necessary to receive extrinsic evidence as the question becomes one of fact for the trier of fact. (See generally Hagerty, Lockenvitz, Ginzkey & Associates v. Ginzkey (1980), 85 Ill. App. 3d 640, 406 N.E.2d 1145.) Stated another way, the determination of whether a document’s language is ambiguous is a matter of law which must be decided by the trial court in the first instance. Chicago Investment Corp. v. Dolins (1981), 93 Ill. App. 3d 971, 974, 418 N.E.2d 59; see also URS Corp. v. Ash (1981), 101 Ill. App. 3d 229, 427 N.E.2d 1295; National Tea Co. v. American National Bank & Trust Co. (1981), 100 Ill. App. 3d 1046, 427 N.E.2d 697.

TDC contends that the plain and ordinary language of the agreement conclusively establishes that Ottawa assumed liability for all of the title exceptions which were or could become liens and were described in the “Commitment for Title” unless it specifically stated otherwise; and since the tax report pages were attached as a title exception and Ottawa failed to specifically state that it was not assuming liability for that attachment, Ottawa has the liability for and obligation to pay the real estate taxes for the years 1980,1981 and 1982.

Conversely, Ottawa first contends that open-ended liability, including liability for taxes, was not within the parties’ intent in making the agreement; but, if the terms are to be given their plain meaning and judgment is to be entered in any amount, it must be entered on its behalf for a definite amount as described in the title commitment “up to the amounts designated,” which equates to $5,641.22. Ottawa next asserts that the extraordinary high taxes were imposed on the land once the project was completed, as the increase in the taxes resulted from the assessment being changed from one on the partially completed project to a fully completed one, and urges that it was not its intent to be liable for the increase in taxes above the amount shown in the title commitment resulting from the property’s designation from unimproved to improved.

Alternatively, Ottawa urges that the meaning to be attributed to the phrases “up to the amounts designated” and “up to the amount set forth therein” is ambiguous so as to preclude judgment on the pleadings. The agreement itself does not define the terminology in question. While the parties point to definitions of the words used singularly, neither party has cited to, nor has our research disclosed, conclusive authority with respect to the definition of the phrases. The phrases are found in that part of the agreement regarding the obligations to be assumed by Ottawa and states:

“Notwithstanding anything to the contrary contained herein, OTTAWA agrees to assume responsibility for the following obligations related to the project to the extent which such obligations are or become liens upon the Project, up to the amount designated: (1) those claims, liens and title exceptions set forth in the commitment for Title Insurance, attached hereto as Exhibit B, except item number 35 on page 10 thereof, up to the amounts set forth therein, (2) claims of Commonwealth Edison, up to a maximum of $15,633.00, and (3) claims of the Condominium Home Owner’s Association for unpaid assessments due to be paid by the developer, up to a maximum of $8,844.64. All other claims or obligations, attributable to the period of time prior to the date of conveyance provided for in paragraph 2a, which are or become liens upon the project shall be the obligation of TDC.” (Emphasis added.)

We have reviewed the agreement and the pleadings before the trial court, and in our opinion the trial court’s finding that the terms in the agreement, which pertained to Ottawa’s obligation to assume certain liens that presumably included the real estate taxes, were clearly stated in the contract and, thus, unambiguous was error. Moreover, we believe it was improper for the trial court to ascertain its own meaning of the phrases that were capable of being understood in more than one sense and draw its own inferences of the parties’ intent under the agreement without evidence of extrinsic facts and circumstances to resolve the factual dispute.

The parties presented in their respective pleadings and memoranda before the trial court several assertions which demonstrate that numerous interpretations can be attributed to the terms as used in the agreement. One interpretation implies that Ottawa is liable only for the exact amounts disclosed in the title commitment as the defendants intended to limit their liability only to “the amounts set forth [therein]” in the title commitment in those exceptions. Another interpretation suggests that Ottawa is liable for the total amount of the taxes, whatever that amount might be, on the premise that the amount are liens or are capable of becoming liens and that the amount is designated since the taxes ’are fixed at a given time by the governmental agency that imposes such taxes.

The title commitment, which is attached to and made a part of the agreement, discloses, besides the taxes, four items which can be described as “liens” with “amounts designated”: item No. 32, a subcontractor’s claim for lien in the amount of $1,287.60; item No. 33, a subcontractor’s claim for lien in the amount of $950.18; item No. 34, a subcontractor’s claim for lien in the amount of $1,390.50; and item No. 36, a claim for mechanic’s hen in the amount of $6,764.11. The tax exceptions are described on the tax report pages, also attached to and made a part of the agreement, which is dated June 8, 1982, and states that the property is subject to taxes for 1980, 1981 and 1982. There are “amounts designated” but only for 1980 and 1981, as follows:

Parcel 1 Parcel 2
1980 $2,353.00 $682.34
1981 $2,033.84 $572.04
which totals to $5,641.22.

As noted by the trial judge and evidenced by the document itself, all of the exceptions described in the agreement explicitly state the “amounts designated” and “the amounts set forth therein” in numeric figures. Nowhere in the agreement is the amount of $49,033.15 shown in unambiguous or unequivocal terms. However, the agreement does make a reference to the “taxes for the years 1980, 1981 and 1982.” Consequently, we believe that a factual dispute exists as to the meaning to be attributed to the phrases at issue.

In addition, we find that a factual dispute exists as to the meaning to be attributed to the term “lien.” Although the agreement limits Ottawa’s liability to those obligations which are or will become liens, the tax pages only show that the 1980 taxes had already been forfeited and therefore were presumably liens upon the project. However, there is nothing shown in the pleadings to demonstrate that the 1981 taxes had become liens, and the 1982 taxes were not even scheduled to become delinquent for almost a year after the tax report was printed.

Language that is ambiguous when it is capable of being understood in more than one sense, as is the situation presented here (see Joseph v. Lake Michigan Mortgage Co. (1982), 106 Ill. App. 3d 998, 991, 436 N.E.2d 663), or because of indefiniteness of language or expression (see Inland Construction Co. v. Home Indemnity Co. (1983), 113 Ill. App. 3d 558, 559, 447 N.E.2d 1023), should be submitted to and resolved by the trier of fact to ascertain the true meaning of the contract. (See Pioneer Trust & Savings Bank v. Lucky Stores, Inc. (1980), 91 Ill. App. 3d 573, 414 N.E.2d 1152; Lichtenstein v. Anvan Co. (1978), 62 Ill. App. 3d 91, 378 N.E.2d 1171; Franks v. North Shore Farms, Inc. (1969), 115 Ill. App. 2d 57; Bertlee Co. v. Illinois Publishing & Printing Co. (1943), 320 Ill. App. 490, 52 N.E.2d 47.) Specifically, the meaning of particular words raises a question of fact for the jury where the words are of estimate or probable distance or amount. (See, e.g., Geiger v. Kaestner (1909), 148 Ill. App. 529.) Where the question is submitted to the jury to determine what the contract is, the court should submit the question of fact to the jury under proper alternative instructions as to the construction to be given to the contract in the event of each possible finding of fact. See DuHamel v. Board of Education of Community Unit School District No. 1 (1955), 7 Ill. App. 2d 487, 130 N.E.2d 10; Schneider v. Neubert (1923), 308 Ill. 40, 139 N.E. 84.

We conclude, therefore, based upon our review of the pleadings before the court at the time of entry of the judgment that there existed material issues of fact rendering judgment on the pleadings for either party improper since the language in the agreement is capable of being understood in more than one sense. Ottawa has alleged that TDC knew it did not intend to assume open-ended liability for payment of the taxes beyond that stated in the agreement, and TDC has denied such an understanding. Because the terms used in the agreement were open to more than one reasonable interpretation, evidence of extrinsic facts and circumstances is admissible to aid the trier of fact on remand in its interpretation of the agreement and to determine the true intent of the parties. Inland Construction, 113 Ill. App. 3d at 559; see also Kokinis v. Kotrich (1979), 74 Ill. App. 3d 224, 392 N.E.2d 697; Standard Steel & Wire Corp. v. Chicago Capital Corp. (1975), 26 Ill. App. 3d 915, 326 N.E.2d 33.

Accordingly, the judgment of the circuit court of Cook County is reversed and the cause remanded.

Reversed and remanded.

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