text:
    BONG JIN KIM et al., Parents and Next Friends of Linda Sung Hee Kim, Plaintiffs-Appellants, v. G. NAZARIAN et al., Defendants-Appellees.
    Second District
    No. 2 — 90—1005
    Opinion filed July 19, 1991.
    Dan Karlin, Ltd., Dan Brusslan, of Fischel & Kahn, Ltd., and Linda A. Bryceland, of David A. Novoselsky & Associates, all of Chicago (David A. Novoselsky, of counsel), for appellants.
    Steven L. Larson, of Wildman, Harrold, Allen & Dixon, of Waukegan (Daniel P. Felix, of counsel), for appellees.
   PRESIDING JUSTICE REINHARD

delivered the opinion of the court:

Plaintiffs, Bong Jin Kim and Young Sil Kim, parents and next friends of Linda Sung Hee Kim (Linda), brought the instant medical malpractice action in the circuit court of Lake County to recover from defendants, Gordon R. Nazarian, M.D., and Lake County Radiology Associates, S.C. (Lake County Radiology), for their failure to diagnose Linda’s illness. Following trial, the jury returned a verdict in favor of defendants, and plaintiffs now appeal.

At issue on appeal is whether the trial court committed reversible error in allowing defendants’ expert witnesses, in the process of giving their own expert opinions, to testify regarding the corroborative opinions of nontestifying experts with whom they consulted.

In April 1982, Linda, then a 13-year-old student at Hawthorne Junior High School, experienced pain in her right hip while engaged in gymnastics at school. A few days later, Linda was examined by her family physician, Dr. Pu Woong Kim (no relation), who recommended that Linda not engage in gymnastics for a while and wrote her a prescription for an X ray. The X ray was taken on May 8, 1982, at Con-dell Memorial Hospital (Condell) under the direction of Lake County Radiology. Defendant Gordon R. Nazarian, M.D., a radiologist and an independent contractor employed by Lake County Radiology, examined the X ray and determined that it was normal.

During the summer of 1982, Linda stopped exercising, and the pain in her hip “got better.” When she started riding a bicycle, however, the pain returned. It subsided when she stopped riding, so Linda thought the pain was the result of exercising or using her hip too much. In the fall of 1982, Linda’s hip was stiff and inflexible, and she experienced throbbing pain at times.

Subsequently, in February 1983, Mr. Kim noticed that Linda walked with a slight limp. In April 1983 Linda was examined by Dr. James R. Creath, an orthopedic surgeon. Dr. Creath directed Linda to have another X ray taken. After concluding that the X ray revealed an abnormality, Dr. Creath referred Linda to Dr. Mihran D. Tachdjian, a licensed and board-certified pediatric orthopedic surgeon. Dr. Tachdjian had served as a professor of orthopedic surgery at Northwestern Medical School and had published a textbook on pediatric orthopedics.

Dr. Tachdjian first saw Linda on April 20, 1983, and he recommended that Linda be hospitalized in order to examine her. CAT scans revealed signs consistent with a diagnosis of tuberculosis of the hip bone. Dr. Tachdjian performed surgery to confirm this diagnosis. A pathologist’s test of the tissue removed during surgery confirmed that Linda had tuberculosis of the hip. On July 5, 1983, he performed a second surgical operation on Linda’s hip to clean the joint of infected tissue.

In 1985, plaintiffs filed a 12-count complaint in the circuit court of Cook County against Dr. Kim, Condell, Dr. Nazarian, and Lake County Radiology alleging various acts of negligence in failing to detect Linda’s condition earlier. That action was transferred to the circuit court of Lake County on October 23, 1985. A second amended complaint was filed November 18, 1986. After plaintiffs’ complaint was dismissed without prejudice as to Dr. Nazarian for failure to exercise due diligence in serving him (134 Ill. 2d R. 103(b)), plaintiffs filed a new complaint against Nazarian pursuant to section 13 — 217 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 13— 217). The circuit court granted plaintiffs’ motion to consolidate the existing case with the newly filed action against Dr. Nazarian. Dr. Kim’s motion for summary judgment on those counts of plaintiffs’ complaint directed against him was granted on October 11, 1988, and is not an issue in this appeal.

Plaintiffs’ six-count, third amended complaint was filed March 16, 1990, and named Condell, Lake County Radiology, and Dr. Nazarian as defendants. All six counts were based on defendants’ alleged negligence in failing to diagnose the abnormality in Linda’s X ray, and each of the three defendants was the subject of one count seeking recovery for Linda’s injuries and one count pursuant to the statutory provision regarding family expenses (Ill. Rev. Stat. 1989, ch. 40, par. 1015) to recover payments made by Linda’s parents for her medical expenses.

Defendants’ answers to the complaint denied that they were negligent in reading Linda’s X ray. Defendants also put forth as an affirmative defense plaintiffs’ comparative fault in failing to bring Linda to the doctor in light of her continuing pain. The court subsequently dismissed Condell from the action pursuant to plaintiffs’ motion. This ruling has not been appealed.

Prior to trial, plaintiffs filed a motion in limine seeking, inter alia, to have the trial court prevent defendants’ experts from testifying to the opinions of other nontestifying doctors with whom they may have consulted regarding Linda’s X rays. The trial court denied this motion in limine.

The cause proceeded to trial on April 10, 1990. During his opening statement, defendants’ attorney made the following remarks in regard to the anticipated testimony of defendants’ expert witnesses:

“MR. FELIX: *** Dr. Richard Buenger — he just stepped down as Chairman of the Radiology Department down in St. Luke’s Hospital, down in Chicago. He is also a general radiologist, and he will also tell you in his work what he does is consult with other doctors on the staff, other radiologists, to make sure his opinion is correct. And he did that. He reviewed this with several radiologists on his staff, including a specialist in child radiology pictures. And they all agreed it was normal.
MR. BRUSSLAN [plaintiffs’ attorney]: Your honor, I would like to make an objection at this time with regard to the point of the consulting radiologist.
THE COURT: Your objection is noted. Continue, please.
MR. FELIX: Thank you, your Honor.
The other doctor who saw the X-rays in the same context as Dr. Nazarian is a fellow by the name of Dr. Mandel Schwartz. He is the Chief Radiologist over here at Victory Hospital. He will tell you he looked at these X-rays. *** He said those X-rays are absolutely normal. And you will hear him say that. And he also consulted with his partner in the course of developing and confirming his opinion of these X-rays. The partner agreed they were normal.”

Plaintiffs’ case began with the testimony of Mr. Kim, who stated that Linda never complained of pain in her hip after the consultation with Dr. Kim. Mr. Kim stated that Dr. Kim never told him to bring Linda in again if the pain persisted.

Plaintiffs called Dr. Nazarian as an adverse witness pursuant to section 2 — 1102 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2— 1102). Dr. Nazarian testified that the three X rays taken of plaintiff on May 8, 1982, which he again viewed in the courtroom, were “normal.” Dr. Nazarian stated that certain darkened areas in the X rays, or “radiolucency,” were the result of “technique” and would not indicate an abnormal finding. Dr. Nazarian explained that these differences can occur because of different levels of X-ray penetration through bones of varying thickness.

Plaintiffs then presented the videotaped testimony of Dr. Tachdjian. After recounting his diagnosis and treatment of Linda’s tuberculosis, Dr. Tachdjian testified that, although the tuberculosis process had healed, Linda had residual arthritis of the hip. Dr. Tachdjian testified that the 1982 X rays of Linda’s hip revealed an abnormality in the form of bone destruction or erosion in the neck of the femur. In Dr. Tachdjian’s opinion, Dr. Nazarian deviated from the standard of care for radiologists in Lake County when he determined the X rays were normal. Dr. Tachdjian further opined that Dr. Nazarian’s breach of the standard of care caused a delay in diagnosis and allowed for further destruction of the hip which, in turn, required more extensive surgery and increased the likelihood of Linda developing arthritis. On cross-examination, Dr. Tachdjian admitted that, in his prior deposition, he stated that he did not know if the delay in Linda’s treatment was caused by the improper diagnosis or by Mr. Kim’s failure to listen to his daughter’s complaints. Dr. Tachdjian also admitted that he is not board certified in radiology.

Dr. Jack Melamed, a physician specializing in radiology, testified for plaintiffs that he had viewed the 1982 X rays of Linda’s hip and determined that they “revealed an abnormal region.” Dr. Melamed testified that Dr. Nazarian deviated from the standard of care for radiologists in Lake County in reading the X rays as normal.

Linda testified regarding her injury and the events leading up to the detection of her tuberculosis. Plaintiffs then rested.

Defendants called as a witness Dr. Edward May, a physician specializing in radiology and the president of Lake County Radiology. It was only after the instant litigation had commenced that Dr. May viewed the X rays taken of Linda in 1982. Dr. May concluded the X rays were negative.

Dr. Kim, plaintiffs’ family physician, testified for defendants, but he gave unclear testimony as to whether he instructed plaintiffs to report back to him if Linda’s pain persisted.

Defendants called as a witness Dr. Thomas H. Brendel, a physician specializing in radiology and vice-president of Lake County Radiology. Dr. Brendel, who first viewed Linda’s 1982 X rays after the initiation of the instant action, testified that the X rays “were within normal limits” and that darkened areas on the X rays were due to technique and varying bone density.

Dr. Mandel Schwartz, a radiologist and radiology director at St. Therese Hospital in Waukegan, testified for defendants that, in his opinion, the 1982 X rays of Linda’s hip were normal. Defense counsel then asked the following question:

“Q. In formulating your opinion, did you consult with any other radiologists in your department?
MR. BRUSSLAN [plaintiffs’ attorney]: I object, your Honor.
THE COURT: Your objection is noted. Overruled.
THE WITNESS: A. I passed the radiologies around to at least one of my partners, as I recall.
* * *
Q. And what were you told by that radiologist as to what his interpretation was?
A. He thought it was normal.”

Dr. Schwartz testified that Dr. Nazarian did not deviate from the standard of care in finding the X rays to be normal.

On cross-examination, Dr. Schwartz testified that he concluded the X rays were normal on the day he was first shown them by defendants’ attorney. The following was asked on redirect examination:

“Q. Doctor, just following up on one thing. Is it customary for you to consult -with other radiologists on your staff before coming up with a final interpretation?
A. Oh, no. I usually come up with — I come up with a verification first. I always have my own opinion. But we frequently pass around films, you know, or have meetings. I had formed my opinion on this case when I first looked at the X-rays.
Q. Okay. Once you did that, why did you make a consultation?
A. Well, because I was advised by the attorney that this was a legal case and if something turned up on the hip. So I just passed it around to see if somebody else saw something that I didn’t. But I had my opinion already. ***
Q. *** If, supposing one of the radiologists you consulted with suggested that he or she did see some type of abnormality, would you consider that in your opinion?
A. Yes.
* * *
Q. After you came up with your first opinion, in the interpretation of these films, then passed it around and discussed it with other radiologists in your department, what did you do * * *^>
* * *
A. I didn’t form any other opinion.
* * *
Q. Could you explain to us why you didn’t change your opinion after you consulted with the other radiologists in your department?
MR. BRUSSLAN: Objection, your Honor.
THE COURT: Overruled.
THE WITNESS: A. The other radiologists felt that the films were normal.”

Plaintiffs’ attorney renewed his objection to this line of testimony, but the objection was again overruled. On re-cross-examination, plaintiffs’ attorney asked the following:

“Q. If one of the radiologists had made some suggestions to you and said, ‘Hey, I think that maybe those two darkened areas should be explored further, and I don’t know if you can read that as normal,’ would you have changed your mind?
A. I might have.”

Dr. Creath testified for defendants that, when he reviewed Linda’s 1982 X rays shortly after she consulted with him in April 1983, he determined that they were normal. He did, however, find abnormality in the additional X rays he had taken at that time.

Dr. Richard E. Buenger, chairman emeritus of the department of radiology and nuclear medicine at the Rush-Presbyterian-St. Luke’s Medical Center in Chicago, testified for defendants that, when he first viewed Linda’s 1982 X rays, he concluded that they were completely normal. After being told that Linda was diagnosed with tuberculosis of the hip, his opinion did not change, and he could not detect early signs of tuberculosis in the X rays. Defense counsel then posed the following question:

“Q. In finalizing your opinion, did you consult with various other radiologists in your department?
A. Yes, which is my usual case. I take the films to other members of my department. In this case, I took them to a bone radiologist and I took them to a pediatric radiologist, both of whom were instructing residents an [sic] the time, and I put the films up and asked them to look at them and asked them if they could see anything wrong with the films, and neither one was able to see anything wrong with the films, at which time I asked them if this turned out to be a case of tuberculosis, where do you think it would be, and they said we don’t know, because we can’t see anything wrong with the films.
Q. And in your work generally, outside as a consultant in legal cases, is it your custom to occasionally, or frequently, consult with other radiologists in your department in formulating your opinions?
A. We all do this every day. That is one of the benefits of a large department. When there is a problem case or there is [sic] symptoms where the answer isn’t found, we ask others to come look at the films, and we take our films to others so we can get a consensus.
Q. *** [I]f in consulting with other radiologists in the department, you find disagreement, does that get factored into your interpretation?
A. Yes. In fact, the report will often state there is a difference of opinion in the interpreters. So the referring physician knows it. ***
Q. And did any of the doctors you consulted indicated [sic] there was any abnormality on these films?
A. None of them saw any abnormality.”

Dr. Buenger testified that, in his opinion, Dr. Nazarian did not depart from the standard of care in his reading of Linda’s 1982 X rays.

On cross-examination, plaintiffs’ attorney explored Dr. Buenger’s consultations with other doctors:

“Q. *** You consulted with other radiologists before you rendered that first opinion?
A. No, sir. I rendered my opinion after looking at them myself. I told [defense counsel] my opinion. Then we went to see other people.
Q. Okay. So I think I understand. You rendered your opinion without consulting any other of your colleagues?
A. Yes. And then I went to check my opinion the same day, the same time.
Q. When you say you went to check your opinion, you talked to a group of radiologists in your hospital, or your group?
A. Yes, sir.
Q. How many did you talk to?
A. I only said two or three because I only remember two by names specifically.
* * *
Q. Okay. And if, Doctor, one or two of them would have said that they feel these films show an abnormality, would you you [sic] have changed your opinion?
A. I would have told [defense counsel] there is a difference of opinion.
Q. But would you have changed your personal opinion?
A. I’m agreeable to change if they can point out something to me that I missed or not understood, yes, I could be subject to change.”

Defendants then rested.

Before closing arguments, defendants withdrew their comparative negligence defense. During closing argument, defendants’ attorney commented on the number of expert witnesses testifying for each side:

“[I]f you take that common sense fact that you have two against six, you have to come back to the burden of proof and say, did they prove it, did they prove to you, did they convince you that it is more likely true than not true that these X-rays were abnormal.
Ladies and gentlemen, the only way that you can give a verdict for the plaintiffs is if you say that all the people, all six of those doctors are either grossly incompetent or came up and lied to you.”

The jury returned a verdict in favor of defendants, and the trial court entered judgment accordingly.

Plaintiffs subsequently filed a post-trial motion to set aside the verdict on the ground that two of defendants’ experts were allowed to testify regarding their colleagues’ corroborating opinions even though these corroborating opinions were not, in fact, relied on by the experts. The trial court determined that it was error to allow defendants’ expert witnesses to testify regarding their colleagues’ opinions when the expert’s opinion was formed before, and not in reliance on, such consultation. Nevertheless, finding that this testimony was cumulative in light of other expert testimony that the X rays were normal, the court denied plaintiffs’ motion.

The central issue raised on appeal is whether the trial court erred in allowing two of defendants’ expert witnesses to testify that the opinions of other, nontestifying physicians corroborated their opinions. Both parties agree that this question must be answered according to the principles set out in Wilson v. Clark (1981), 84 Ill. 2d 186, 196, 417 N.E.2d 1322, wherein the Illinois Supreme Court adopted Federal Rules of Evidence 703 and 705 (28 U.S.C.A. Rules 703, 705 (West 1984 & Supp. 1991)).

Federal Rule 703 allows an expert to give an opinion based on information reasonably relied upon by experts in the particular field, even if the information is not otherwise admissible in evidence. (28 U.S.C.A. Rule 703 (West Supp. 1991).) The Notes of the Advisory Committee on Proposed Rules contain the following pertinent remarks regarding Rule 703:

“[T]he rule is designed to broaden the basis for expert opinions beyond that current in many jurisdictions and to bring the judicial practice into line with the practice of the experts themselves when not in court. Thus a physician in his own practice bases his diagnosis on information from numerous sources and of considerable variety, including statements by patients and relatives, reports and opinions from nurses, technicians and other doctors, hospital records, and X rays. Most of them are admissible in evidence, but only with the expenditure of substantial time in producing and examining various authenticating witnesses. The physician makes life-and-death decisions in reliance upon them. His validation, expertly performed and subject to cross-examination, ought to suffice for judicial purposes.” (Emphasis added.) (28 U.S.C.A. Rule 703, Notes of Advisory Committee on Proposed Rules, at 98 (West 1984).)

Rule 703 does not create an exception to the rule against hearsay because the underlying facts or data are admitted not for their truth, but for the limited purpose of explaining the basis of the expert’s opinion. City of Chicago v. Anthony (1990), 136 Ill. 2d 169, 185, 554 N.E.2d 1381.

Rule 703 allows an expert to base his opinion on the opinions of others which are not in evidence so long as experts in the field ordinarily rely on such opinions in forming their own opinions. (See Metro Utility v. Illinois Commerce Comm’n (1990), 193 Ill. App. 3d 178, 186, 549 N.E.2d 1327.) For example, a psychiatric expert may rely on the reports of a patient’s psychiatric history in arriving at his diagnosis. (People v. Anderson (1986), 113 Ill. 2d 1, 7-8, 495 N.E.2d 485.) In such circumstances, the opinion of the nontestifying expert would serve simply as a premise supporting the testifying expert’s opinion on a broader issue. In the instant case, however, the opinions of the nontestifying experts do not serve as merely a narrow premise upon which the testifying experts’ opinions are based. Instead, the nontestifying experts offered corroborating opinions on the same issue as that addressed by the testifying experts.

Accepting for the moment, arguendo, defendants’ contention that their experts reasonably relied on their consultation with other experts in forming their opinions, we believe that neither Wilson nor Rule 703 allows an expert’s testimony to simply parrot the corroborative opinions solicited from nontestifying colleagues. (United States v. Grey Bear (8th Cir. 1989), 883 F.2d 1382, 1392-93; but see Lewis v. Rego Co. (3d Cir. 1985), 757 F.2d 66, 73-74.) Testimony as to the basis of an expert’s opinion need not be allowed if its probative value in explaining the expert’s opinion is outweighed by the likely prejudicial impact or the tendency to confuse the jury. (Anthony, 136 Ill. 2d at 185, 554 N.E.2d at 1388-89.) The fact that a colleague agreed with the testifying expert’s opinion is of dubious value in explaining the basis of the opinion. The party who is unable to cross-examine the corroborative opinion of the expert’s colleague, on the other hand, will likely be prejudiced. See Emigh v. Consolidated Rail Corp. (W.D. Pa. 1989), 710 F. Supp. 608, 611-13.

Moreover, we are not convinced that the expert’s process of consultation with colleagues is the same as actual reliance on the corroborative opinions elicited during such consultation. If the expert’s colleague merely corroborates the opinion independently arrived at by the expert, such corroboration might reinforce the expert’s confidence in the opinion; the corroborative opinion, however, is not the basis of the expert’s opinion. Even if a colleague’s “second opinion” brings to light a factor which the expert overlooked (see Lebrecht v. Tuli (1985), 130 Ill. App. 3d 457, 483, 473 N.E.2d 1322), it would presumably be the overlooked factor, not the second opinion itself, upon which any change in the expert’s opinion would be based. The fact that the expert considered the opinion of a colleague on the specific issue on which he is to testify in the case does not constitute the reasonable reliance required by Wilson, and allowing testimony of the out-of-court opinion would impermissibly circumvent the rule against hearsay. See Denny v. Burpo (1984), 124 Ill. App. 3d 73, 77-78, 463 N.E.2d 1074; Landsman, Wilson v. Clark: Determining the Trustworthiness of an Expert’s Underlying Data, 79 Ill. Bar J. 290, 292 (1991).

The record in the instant case demonstrates that defendants’ experts did not, in fact, “rely” on their colleagues’ opinions in forming their own opinions. Dr. Schwartz stated, “I just passed it around to see if somebody else saw something that I didn’t. But I had my opinion already.” Dr. Buenger testified that he did not consult with his colleagues before arriving at his opinion, which was based on his own examination of Linda’s X rays. It appears, then, that the consultation with other doctors only confirmed the experts’ opinions; the opinions of the other doctors were not actually relied on by the experts in forming their opinions. Again, even if a colleague had pointed out factors not considered by the testifying expert, the record suggests that it would have been the overlooked factors, not the colleague’s opinion, upon which the expert’s opinion would have been based.

Defendants argue that, even if it was improper to allow the corroborative testimony, the trial court correctly determined that such evidence was merely cumulative and does not require reversal. Where evidence is erroneously admitted, reversal is required unless the record affirmatively shows that the error was not prejudicial. (Freeding-Skokie Roll-Off Service, Inc. v. Hamilton (1985), 108 Ill. 2d 217, 223, 483 N.E.2d 524.) The admission of improper evidence is harmless where there is other evidence to support the verdict. Raines v. New York Central R.R. Co. (1972), 51 Ill. 2d 428, 437, 283 N.E.2d 230.

Here, we cannot characterize the improperly admitted evidence as merely cumulative. It is true that defendants’ two retained experts provided their own opinions on the point at issue. Because the erroneous admission of corroborative opinions will always be cumulative to the opinion evidence presented by the testifying expert, however, viewing the improper corroborative testimony as “merely” cumulative would render meaningless the prohibition against such testimony. Defendants further note that four other physicians testified that Dr. Nazarian did not violate the standard of care. Of these four, however, two were officers of defendant Lake County Radiology who gave their opinion only after the initiation of litigation, and one was Dr. Nazarian himself. The fourth, Dr. Creath, barely addressed the question of Dr. Nazarian’s breach of the standard of care.

Moreover, defendants’ attorney highlighted the corroborative testimony in his opening statement, and he also emphasized in his closing argument that more experts agreed with defendants’ position than with plaintiffs’. Finally, we note that the question of whether Linda’s 1982 X rays revealed an abnormality was in reality the only issue in this case, and the testimony of the experts on both sides was central to the resolution of this issue.

We conclude that the record does not affirmatively demonstrate that the improperly admitted testimony was not prejudicial to plaintiffs, so the error is not harmless. Accordingly, plaintiffs are entitled to a new trial.

The judgment of the circuit court of Lake County is reversed, and the cause is remanded.

Reversed and remanded.

UNVERZAGT and WOODWARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE INGLIS

license: Public Domain

text:
    EARL H. MYERS et al., Plaintiffs-Appellees and Cross-Appellants, v. POPP ENTERPRISES, INC., Defendant-Appellant and Cross-Appellee.
    Second District
    No. 2 — 90—1188
    Opinion filed July 23,1991.

      Joseph R. Voiland, of Law Offices of Joseph R. Voiland, of Aurora, for appellant.
    Joseph P. Sauber of Shearer, Blood, Agrella, Boose, McGuirk & Peterson, of St. Charles, for appellees.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Popp Enterprises, Inc., appeals from an order of the circuit court of Kane County which entered judgment on behalf of plaintiffs, Earl H. Myers and Barbara S. Myers. The issue raised by defendant on appeal is whether the trial court erred in finding that plaintiffs were entitled to the return of their earnest money where they did not comply with the notice provision of the real estate contract entered into by the parties. Plaintiffs have cross-appealed from that portion of the trial court’s order which denied their motion for attorney fees. We affirm the trial court’s order, except as to the denial of plaintiff’s motion for attorney fees, for which we remand the case for a hearing on that sole issue.

On September 7, 1989, the parties entered into a contract whereby plaintiffs agreed to purchase a residence from defendant for the purchase price of $236,000. The contract itself was a standard four-page real estate form contract, with the specific terms of this contract typed in. Plaintiffs paid $5,000 as earnest money, and the closing was set for October 15, 1989. Paragraph 33 of the contract provided that the sale was contingent upon plaintiffs’ closing the sale of plaintiffs’ home on or before October 16, 1989. The clause also stated:

“If Buyer is unable to close the sale of Buyer’s home by the date specified herein and so notifies Seller thereof on or before said date in writing, THIS CONTRACT SHALL TERMINATE AND BE OF NO FURTHER FORCE AND EFFECT AND THE EARNEST MONEY SHALL BE REFUNDED TO BUYER. IF BUYER FAILS TO NOTIFY SELLER WITHIN THE TIME SPECIFIED HEREIN, IT SHALL BE CONCLUSIVELY PRESUMED THAT BUYER WILL CLOSE ON THE SALE OF HIS HOME OR WILL PURCHASE THE REAL ESTATE WITHOUT THE SALE OF HIS HOME.”

Paragraph 9 of the contract stated, in pertinent part:

“All notices required pursuant to this Contract shall be in writing and signed by Seller or Buyer or their attorney or agent and shall be given by: (a) certified or registered mail, return receipt requested, and sent to the Parties at the addresses recited herein, which notice shall be effective on the date of post mark in the U.S. mail or (b) personally served on the Seller or Buyer, and a receipt obtained with the date and time of service, which notice shall be effective upon the date of receipt, or (c) personal service upon Seller or Buyer, in accordance with the Civil Practice Act of the State of Illinois.”

The contract also named Bonnie Siems of Realty World-Hullmark and Sharon Weis of Baird and Warner, Inc., as brokers in this transaction and stated: “[T]he brokers are the agents of Seller and as such are to be compensated by Seller.”

On November 7, 1989, plaintiffs filed their complaint seeking the return of their $5,000 earnest money plus costs of suit. They alleged that they timely notified defendant that they did not sell their home, thereby entitling them to the return of the earnest money pursuant to the contingency clause contained in paragraph 33 of the contract.

Defendant filed an answer to the complaint and an affirmative defense which stated that plaintiffs were not entitled to the return of the earnest money because they failed to give notice in accordance with paragraph 9 of the contract. Plaintiffs filed a reply denying that allegation in defendant’s affirmative defense and subsequently were granted leave to file an amended complaint which included a request for attorney fees.

At trial Earl Myers testified that during October 1989 he resided in Los Angeles, California. On October 13, 1989, he sent a copy of the contract termination notice to Baird and Warner by fax machine. On the same date, he mailed the original document to Baird and Warner by Federal Express. The notice, which was admitted into evidence at trial, was dated October 10, 1989, and stated:

“This constitutes Buyer’s notice to Seller that Buyer has been unable to close the sale of Buyer’s home within the time specified pursuant to Paragraph 33 of the above referenced Residential Real Estate Contract. THE CONTRACT SHALL TERMINATE AND BE OF NO FURTHER FORCE AND EFFECT.”

The notice was signed by Earl Myers, for himself and for Barbara Myers. The bottom portion of the form contained a space for the Seller’s signature acknowledging receipt. This portion of the form was not completed.

Bonnie Siems testified that she was employed by Realty WorldHullmark. On October 13, 1989, John Holt of Baird and Warner, Geneva, Illinois, delivered a faxed copy of the notice to her. The same day, she personally delivered the notice to John Popp, Jr. She received the original notice on October 16, 1989. This original notice was marked “void” and placed in her file.

John Popp, Jr., testified that he was vice-president of Popp Enterprises, Inc. He testified that the faxed copy of the notice was left at his office with the receptionist. He testified that he did not see it until 5 to 10 days after October 13, 1989. He stated that he then contacted Bonnie Siems to advise her that he expected plaintiffs to comply with the terms of the contract. John Popp, Sr., testified that he never saw the notice.

The parties stipulated that they entered into the contract; that a notice was not sent to defendant by certified or registered mail; and that plaintiffs did not obtain from defendant a signed receipt with the time and date of service of the notice.

The trial court took the matter under advisement and later entered judgment for defendant. Plaintiffs then filed a motion for findings. The court entered an order stating that it found that Siems gave John Popp, Jr., a faxed copy of the “notice to terminate contract” on October 13, 1989, but neither requested nor received seller’s signature on the notice; that, per stipulation of the parties, notice was not served by certified mail; and that plaintiffs did not comply with paragraph 9(c) of the contract.

Plaintiffs filed a post-trial motion on June 6, 1989. They argued that, as the trial court found that Siems served Popp with timely notice, they complied with paragraph 9(c) of the contract. Defendant replied to the motion, arguing that plaintiffs did not serve defendant in accordance with paragraphs 9(a), 9(b) or 9(c) of the contract. Defendant maintained that paragraph 9(c) required that the notice be served by a sheriff, a private detective or a private person appointed by the court, apparently relying on section 2— 202(a) of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 202(a)). Citing Thakral v. Mattran (1987), 156 Ill. App. 3d 849, defendant argued that plaintiffs’ service of notice was not in compliance with the clear and unambiguous notice requirements in the contract and was not valid.

The court, on September 10, 1990, sent a letter decision to the parties. The court noted that the parties stipulated at trial that notice was not given by the method set out in either paragraph 9(a) or paragraph 9(b) of the contract. The court then stated that it had reconsidered its finding that notice also was not given by the method prescribed in paragraph 9(c). It found that the meaning of this provision was ambiguous and unclear and that defendant could not reasonably rely on its proposed construction of paragraph 9(c) to provide the basis for a forfeiture of the earnest money. The court further found, therefore, that, under paragraph 33, the contract terminated on October 13, 1989, when defendant, received notification in writing that plaintiffs were unable to close on the sale of their home. The court then determined that plaintiffs were entitled to the return of the earnest money and granted plaintiffs’ post-trial motion. It requested that plaintiffs’ attorney draft an appropriate order.

On September 27, 1990, plaintiffs filed a motion for attorney fees, relying on paragraph 15 of the real estate contract. They requested an order granting them attorney fees and setting the matter for a hearing with respect to the fees. An order was entered on September 27, 1990, which entered judgment in favor of plaintiffs in the amount of $5,000 plus costs of $88. The order also stated that plaintiffs’ motion for attorney fees was denied.

Defendant filed a timely notice of appeal, and plaintiffs have cross-appealed seeking reversal of the order denying their motion for attorney fees.

Defendant argues on appeal that the trial court erred in determining that defendant was served in accordance with paragraph 9(c) of the contract. It contends that paragraph 9(c) is clear and unambiguous and that, in order for service to have been made according to the “Civil Practice Act” (now the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 1 — 101 et seq.)), the service had to meet the following requirements: (1) pursuant to section 2 — 202(a) of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 202(a)), notice had to be served by a sheriff, a private detective, or a private person not a party to the action who was appointed by the court; and (2) pursuant to section 2 — 203(b) of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 203(b)), a certificate or affidavit of service identifying the person upon whom notice was served and stating the time, date and place of service had to be prepared.

While conceding that compliance with these requirements may have been difficult if not impossible, defendant asserts that the requirements were not met because Siems was not appointed by the court, was a party to the action and did not complete a certificate of service. Defendant does not explain why Siems was a party to the action, but is presumably relying on the language in the contract which states that she was an agent of defendant. Defendant argues that since plaintiffs failed to comply with the notice requirements pursuant to paragraph 33 of the contract, and thereafter failed to purchase the real estate from defendant, plaintiffs forfeited their $5,000 earnest money paid to defendant. We disagree.

We premise our analysis by noting, as did the trial judge in her letter opinion of September 10, that, as a general rule, courts do not look upon contract forfeitures with favor. (Jones v. Seiwert (1987), 164 Ill. App. 3d 954, 957.) In construing similar provisions in a real estate contract, this court has held that a provision which results in forfeiture must be strictly construed against the party seeking to enforce it. (Barnes v. Brown (1990), 193 Ill. App. 3d 604, 612.) A party seeking to enforce a forfeiture provision must prove that the right to forfeiture clearly and unequivocally exists and that the exercise of the right will cause no injustice. Jones, 164 Ill. App. 3d at 957.

Also, the construction of a written contract should be controlled by its spirit and purpose, and a court should not adopt a strict construction which renders a result different from that which the parties intended. (Dato v. Mascarello (1989), 197 Ill. App. 3d 847, 851.) Whether an ambiguity exists in a contract is to be determined by the trial court as a question of law, and, where the court determines that an ambiguity exists, its subsequent construction of the contract will not be disturbed on review unless it is contrary to the manifest weight of the evidence. Dato, 197 Ill. App. 3d at 851.

We conclude that defendant failed to prove its right to a forfeiture. Paragraph 9 of the contract provided three methods for giving notices required by the contract. The method at issue here, contained in subparagraph (c), states that notice shall be given by “personal service upon Seller or Buyer, in accordance with the Civil Practice Act of the State of Illinois.” The trial court found paragraph 9(c) of the contract ambiguous and thus construed it to mean that personal service of a written notice was sufficient. As the court found that Siems did serve John Popp, Jr., with notice prior to the deadline in the contract, it determined that plaintiffs complied with the requirements of the agreement and were entitled to the return of their earnest money. We see no reason to disturb that determination on review.

We initially note that the Civil Practice Act was replaced by the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 1 — 101 et seq.), effective July 1, 1982. The Code provides that article II of the Code may be referred to as the Civil Practice Law. (Ill. Rev. Stat. 1989, ch. 110, par. 1 — 101(b).) Paragraph 9(c) of the form contract can only be considered ambiguous and unclear as it required compliance with a statute that applies only to matters filed in the Illinois court system and not to giving notice in noncourt, private contractual situations. In fact, defendant concedes in its brief that “compliance with the provisions of service as set forth in the Civil Practice Act may be difficult if not impossible to meet by the contracting parties.” It is difficult to determine, from a plain reading of the provision, what was required beyond personal service. We therefore agree with the trial court’s determination that the personal service accomplished by Siems was adequate to comply with the requirements of paragraph 9(c). This construction of the provision is consistent with the spirit and purpose of the contract. The purpose of the contract provisions at issue was to assure that defendant received written notice before a specified time that plaintiffs were unable to close on the sale of their home and would not be able to complete the purchase of the real estate from defendant. The object of notice is to inform the party notified (Vole, Inc. v. Georgacopoulos (1989), 181 Ill. App. 3d 1012, 1019), and that was accomplished here.

Defendant’s reliance on Thakral v. Mattran (1987), 156 Ill. App. 3d 849, is therefore misplaced. In Thakral, we held that service of a notice pursuant to a provision in a contract must be in compliance with the plain and ordinary meaning of the language used. (Thakral, 156 Ill. App. 3d at 856.) There is no “plain and ordinary” meaning of the notice provision in this case.

We further note that, even if the provision was read to require compliance with the requirements of the Code of Civil Procedure, plaintiffs’ service on defendant did so comply. While the Code does contain the requirements noted by defendant for service of process (see Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 202(a), 2 — 203(b)), service of notice, as opposed to process, may be done by anyone without a court order. In re Marriage of Betts (1987), 155 Ill. App. 3d 85, 94.

The trial court therefore correctly determined that defendant received notice prior to the date specified in paragraph 33 of the contract, that the contract was terminated, and that the earnest money should be refunded to plaintiffs. The trial court properly entered judgment in favor of plaintiffs.

In their cross-appeal, plaintiffs argue that the trial court erred in denying their motion for attorney fees without a hearing. They contend that there was no basis for the trial court to ignore the provision of the contract providing that if suit is brought, the non-prevailing party shall pay all reasonable attorney fees incurred by the prevailing party. We agree.

Paragraph 15 of the contract provided, in pertinent part, that “the non-prevailing Party shall pay all reasonable attorney fees and costs incurred by the prevailing Party in enforcing the terms and provisions of this Contract, including forfeiture or specific performance or any other remedy, or in defending any proceeding to which Buyer or Seller is made a party as a result of any act or omission of the other Party.” Plaintiffs maintain that, as they were forced to sue to obtain the refund of their earnest money and prevailed in the trial court, they were entitled to recover their attorney fees. They ask that this matter be remanded for a hearing regarding their attorney fees.

Defendant has not argued that plaintiffs are not entitled to fees under the terms of the contract. Instead, it contends that the trial court’s ruling regarding attorney fees should be affirmed because: (1) plaintiffs failed to include in the record a report of proceedings of the hearing on plaintiffs’ motion for attorney fees, and that this court should therefore presume that the missing matter supports the trial court’s decision and affirm on that basis; and (2) plaintiffs failed to introduce any evidence at the time of trial in support of their request for attorney fees and did not ask for attorney fees until several months after trial. We conclude that neither of defendant’s arguments has merit.

The general rule is that an unsuccessful party in a lawsuit is not responsible for the payment of the other party’s attorney fees. (Saltiel v. Olsen (1981), 85 Ill. 2d 484, 488; Exchange National Bank v. Sampson (1989), 186 Ill. App. 3d 969, 973.) However, provisions in contracts for awards of attorney fees are an exception to this rule. (Abdul-Karim v. First Federal Savings & Loan Association (1984), 101 Ill. 2d 400, 411-12.) In this case, the contract provided that the prevailing party is entitled to all reasonable attorney fees incurred in enforcing the terms and provisions of the contract. Plaintiffs were ultimately the prevailing parties in the trial court, and, under the terms of the contract, defendant was obligated to reimburse plaintiffs for the attorney fees they incurred, to the extent that the fees were reasonable. (See Computer Sales Corp. v. Rousonelos Farms, Inc. (1989), 190 Ill. App. 3d 388, 393.) As attorney fees were specifically authorized by the contract, it was error for the trial court to fail to provide for them. (Amoco Realty Co. v. Montalbano (1985), 133 Ill. App. 3d 327, 335; see also Shipka v. Inserra (1991), 211 Ill. App. 3d 735, 737-38; Hadley Gear Manufacturing Co. v. Zmigrocki (1986), 152 Ill. App. 3d 358, 360.) Because we have concluded that the trial court erred in denying plaintiffs’ motion for attorney fees which requested a hearing regarding the amount of the fees incurred, the plaintiffs’ failure to include in the record the basis for the trial court’s ruling is immaterial.

Further, defendant’s argument that plaintiffs were properly denied an award of fees because they did not request fees until several months after trial and presented no evidence at trial in support of their request for attorney fees must also fail. Plaintiffs’ amended complaint, filed prior to trial, did include a request for attorney fees. Also, plaintiffs promptly filed their motion for attorney fees after they received the trial court’s September 10, 1989, letter which stated that their post-trial motion would be granted. This was the earliest time that plaintiffs could be considered the prevailing parties. We also note that the motion for attorney fees was filed the same day as the order which entered judgment in their favor.

The case of Touchdown Sportswear, Inc. v. Hickory Point Mall Co. (1987), 165 Ill. App. 3d 72, is instructive on this point. The court in Touchdown Sportswear noted that a trial court must determine who is the “prevailing party” before it can concern itself with the issue of attorney fees due under the terms of a contract. The court then held that, where fees were pleaded and were an entitlement to the prevailing party, a petition for attorney fees filed within 30 days of the judgment was timely. (Touchdown Sportswear, 165 Ill. App. 3d at 74-75.) Plaintiffs’ motion, filed the day judgment was entered, was sufficient to preserve the issue of attorney fees. We note that plaintiffs must, on remand, prove that the fees incurred were reasonable. See Mars v. Priester (1990), 205 Ill. App. 3d 1060, 1064-65; Kaiser v. MEPC American Properties, Inc. (1987), 164 Ill. App. 3d 978, 983-84.

For the foregoing reasons, we affirm that portion of the trial court’s order which entered judgment in favor of plaintiffs in the amount of $5,000 plus costs of $88 and reverse that portion of the order which denied plaintiffs’ motion for attorney fees. The cause is remanded for a determination and judgment as to the amount of reasonable attorney fees incurred by plaintiffs.

Affirmed in part; reversed in part and remanded.

BOWMAN and GEIGER, JJ., concur.


author: JUSTICE GEIGER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY BRONSON, Defendant-Appellant.
    Second District
    No. 2 — 89—1017
    Opinion filed July 23,1991.

      G. Joseph Weller and Sherry R. Engelstad, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Val Gunnarsson, State’s Attorney, of Mt. Carroll (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GEIGER

delivered the opinion of the court:

On June 13, 1989, the defendant, Larry Bronson, pleaded guilty to three counts of armed violence predicated on aggravated battery (Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 4(a), 33A — 2). The trial court sentenced the defendant to concurrent terms of six years’ imprisonment on each count and ordered him to pay restitution of $18,000 within five years to compensate the victims, Robert Bailey and Jack Shepard, for their medical expenses. The defendant’s pro se motion to reduce his sentence and his counsel’s motion to reconsider the sentence were denied on September 18, 1989. Neither motion raised the issue of the propriety of imposing restitution.

The defendant timely appeals, raising the issue whether the trial court could impose restitution as a part of the defendant’s sentence where it is alleged that, in accepting the defendant’s guilty plea, the trial court never properly admonished the defendant of the possibility of imposing restitution. The State argues that the defendant has waived this issue by failing to raise it in the trial court. We agree, and we affirm.

We recite only those facts relevant to a resolution of the issue presented. At the guilty plea hearing, with the exception of the possibility of being required to pay restitution, it appears that the defendant was admonished pursuant to Supreme Court Rule 402 (134 Ill. 2d R. 402). The trial court went over the three counts of armed violence and explained that the charges, as Class 2 felonies, carried a minimum penalty of three years’ imprisonment and a maximum penalty of 14 years’ imprisonment, including enhanced penalties, and that the defendant would then be subject to a mandatory supervised release term of two years. The court also explained that there could be a fine of up to $10,000, periodic imprisonment of up to 18 months or from 18 months to 30 months, and probation for a period of up to four years. The possibility of imposing restitution was not mentioned. The court stated that the defendant would be giving up various rights by his plea of guilty, including the right to a jury trial or a bench trial; the right to call and subpoena witnesses; and the right to require the State to prove him guilty beyond a reasonable doubt. The defendant acknowledged that he understood the admonishments.

For the factual basis of the plea, the court read each charge of the information, and the defendant persisted in his plea of knowingly causing great bodily harm to each of three named victims while he was armed with a broken beer glass. The court accepted his blind plea.

At the sentencing hearing on August 1, 1989, Bailey testified regarding the barroom incident which resulted in the charges. Bailey received injuries to his hand and wrist which resulted in $7,000 to $8,000 in medical bills. Shepard also testified that, as a result of injuries to his right eye and left forearm, he was not able to work for three weeks, and he incurred $11,000 in medical expenses.

The State, noting the defendant’s prior criminal history, sought the maximum sentence of 14 years’ imprisonment and restitution of $18,000. Defense counsel noted the factors in mitigation, including the defendant’s problems with alcohol and the impairment of his judgment on the date in question and the need for alcohol treatment. Defense counsel also stated to the court:

“As far as disqualifying factors here, additional factors are damages. The Court has the option if it wants to do that. What I am arguing here is that if the Court imposes a substantial amount of jail time, we do have other measures here such as the monetary responsibility. If he doesn’t meet that, we can be back here. That’s certainly something the Court should consider.”

The court noted that the defendant did not qualify for TASC (Treatment Alternatives to Street Crimes) and that the offenses were not probational. After considering the factors in aggravation and in mitigation, the court ordered that restitution in the amount of $18,000 be paid within five years, and the defendant was sentenced to concurrent, six-year terms of incarceration on the three counts. The defendant made no objection of any kind regarding the restitution ordered by the court.

In his pro se motion for a reduction of his sentence, the defendant complained principally of the length of the sentence under the circumstances and, among other things, noted his potential for rehabilitation and future employment and expressed his remorse for having harmed the victims. No mention was made of the restitution. At the hearing on September 18, 1989, in arguing his motion to reconsider the sentence, the defendant’s counsel stressed the need for alcohol treatment and rehabilitation. The trial court denied both motions and noted that the previously ordered restitution should come from the defendant’s bond. Again, no objection was made to the order of restitution.

On appeal, the defendant contends that the trial court erred in ordering restitution when it had not admonished the defendant, prior to accepting his plea, that restitution was a possible incident to a sentence of imprisonment; therefore, the defendant asks that this part of the sentence be vacated. We do not reach the merits of the defendant’s contention because he failed to raise it in the trial court. The defendant did not file a Rule 604(d) motion to vacate his guilty plea (134 Ill. 2d R. 604(d)). A defendant who pleads guilty is not required to file such a motion as a prerequisite to an appeal if he is only challenging the sentence, but he must file a motion to reconsider the sentence in the trial court. People v. Wallace (1991), 143 Ill. 2d 59, 61.

The purpose of a motion to reconsider a sentence is to allow the trial court an opportunity to review the appropriateness of the sentence imposed and to correct any errors made. (Wallace, 143 Ill. 2d at 61, citing People v. Wilk (1988), 124 Ill. 2d 93, 110.) Following this rationale, this court, in two recent cases, has held that any issue not raised in a motion to reconsider the sentence is waived on appeal. (People v. Carroll (1990), 195 Ill. App. 3d 445, 446-47; People v. Favelli (1988), 176 Ill. App. 3d 618, 622-23.) We adhere to the rule in this case. To consider on appeal an issue related to sentencing not raised in either a motion to reconsider or a motion to withdraw a guilty plea would further modify Rule 604(d) in such a way as to obliterate its purpose. (Carroll, 195 Ill. App. 3d at 447.) As the Wilk court pointed out, a defendant who is aggrieved by the failure of his counsel to preserve properly an issue for appeal may, in proper circumstances, have an alternate remedy by way of a post-conviction hearing. (See Wilk, 124 Ill. 2d 108-09; Ill. Rev. Stat. 1987, ch. 38, par. 122-1 et seq.) Since the defendant did not contest the imposition of restitution in the trial court when he had at least two opportunities to do so, we consider any claimed error in sentencing waived on direct appeal. See People v. Osborn (1983), 111 Ill. App. 3d 1078,1084.

In support of our conclusion that this issue is waived, we also observe that, at the sentencing hearing, defense counsel (as evidenced by his remarks quoted verbatim above) appeared to argue that the trial court had the option of imposing restitution instead of the maximum sentence of imprisonment. The defendant, in fact, only received 6 years of a possible 14-year sentence. This would explain why neither the defendant nor his counsel ever objected to the substantial amount of restitution ordered. This apparent acquiescence of the defendant and his counsel should preclude the defendant from complaining of a sentence which is less than what he could have received. See People v. Wilson (1980), 87 Ill. App. 3d 544, 549.

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

Affirmed.

McLAREN and NICKELS, JJ., concur.


text:
    THE PEOPLE ex rel. NEIL F. HARTIGAN, Attorney General, Plaintiff and Counterdefendant-Appellee, v. KNECHT SERVICES, INC., a/k/a AAA Knecht, Inc., et al., Defendants and Counterplaintiffs-Appellants.
    Second District
    Nos. 2 — 90—0697, 2 — 90—0839 cons.
    Opinion filed July 26,1991.
    — Rehearing denied August 27,1991.

      Shari L. Friedman, of Keck, Mahin & Cate, of Chicago (Richard K. Wray, of counsel), for appellants.
    Roland W. Burris, Attorney General, of Springfield (Colleen McLaughlin, Assistant State’s Attorney, of Wheaton, of counsel), for appellee.
    Patricia M. Kelly, of Illinois Retail Merchants Association, of Chicago, for amicus curiae.

   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, the People of the State of Illinois ex rel. Neil E Hartigan, Attorney General, filed a six-count complaint against defendants, Knecht Services, Inc., a/k/a AAA Knecht, Inc., and James M. Knecht individually, president of Knecht Services, Inc., seeking injunctive and other relief based on allegations that defendants violated the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (Ill. Rev. Stat. 1987, ch. 1211/2, par. 261 et seq.) by engaging in certain unfair or deceptive practices with respect to their advertising, servicing, and charging of customers in their plumbing, heating, and air-conditioning business. A counterclaim was filed by Knecht against Attorney General Neil Hartigan for defamation based on allegations that Hartigan made false and misleading statements about Knecht and Knecht Services, Inc.

After a six-week bench trial, the trial court entered judgment in favor of defendants on counts I through IV of the complaint, which were titled, respectively, as follows: “(I) Home Repair Fraud”; (II) “Misrepresentation as Plumber/False Advertisement”; (III) “Notice of Cancellation” (premised on section 2B of the Consumer Fraud Act (Ill. Rev. Stat. 1987, ch. 121½, par. 262B)); and (IV) “Used Parts” (installed instead of new parts). Judgment was entered against defendant Knecht Services, Inc., on count V of the complaint, entitled “Poor Workmanship” but in favor of Knecht, individually. Judgment was entered against both Knecht Services, Inc., and Knecht individually, on count VI of the complaint, entitled “Excessive Charges.” Defendants’ post-trial motion was denied, and they filed a timely notice of appeal. The trial court subsequently granted the Attorney General’s motion to dismiss the counterclaim filed against him, and defendants appeal that order as well. The two appeals have been consolidated, and the Illinois Retail Merchants Association was permitted to file an amicus curiae brief.

The following issues are raised by the appeal: (1) whether the trial court was correct in finding that a contract implied in law was created; (2) whether the Consumer Fraud Act is applicable in the absence of a finding that little or no services were rendered; (3) whether the failure to call a former employee as a witness at trial can properly be considered in rendering judgment against the former employer; (4) whether the judgment of the court with regard to counts V and VI is against the manifest weight of the evidence; and (5) whether the trial court erred in finding the Attorney General absolutely immune from liability. We affirm.

Briefly, the record reveals the following facts. Knecht Services, Inc., is an Illinois corporation with its principal place of business at the residence of defendant James Knecht. Knecht has been in the business of performing home repairs, consisting primarily of repair or replacement of boilers, forced air furnaces, water heaters, central air-conditioners, and related equipment since 1962. He has worked full time as the proprietor of his own business since 1976. Knecht testified that as his business grew and he saw the need to employ helpers, he developed written checklists of the service items to be reviewed on each particular job. The company’s practice was to be both methodical and thorough in diagnosing and repairing mechanical problems. According to Knecht, his methodical checklist approach to heating and cooling systems has resulted in his repeatedly finding and correcting systems failures.

Plaintiff presented evidence indicating that from the mid-1970’s to 1987, defendants placed the following advertisement in the Yellow Pages of the phone book: “HONESTY & MINIMUM CHARGE IS OUR POLICY.” The advertisement was subsequently changed in 1987 to read: “HONESTY & HIGHEST QUALITY IS OUR POLICY.” The advertisement was listed under the heading “plumbing contractors” at a time when no one at Knecht Services, Inc., had a plumber’s or apprentice plumber’s license.

While defendants presented testimony from satisfied customers, plaintiff presented testimony from numerous dissatisfied customers in an effort to support the six-count complaint. There was much testimony given on behalf of plaintiffs comparing defendants’ business practices to customary practices. According to plaintiff’s experts, at the time of trial, the prevailing hourly rate in the area for heating and air-conditioning repair services was $44 to $48 per hour, and for plumbers it was $52 per hour or less. When Knecht charged by the hour, as opposed to a flat rate, he charged $69 per hour, plus a one-hour minimum fee of $69 for a trip charge. Knecht had been in the policy of charging customers a “premium” for certain types of services, such as $120 per hour for work on a window air-conditioner and $30 per hour extra for service in a crawl space.

Contrary to industry custom, defendants failed to inform consumers when overtime rates were to be charged. Defendants also performed routine maintenance during overtime service calls without affording the customer the option of having the routine services performed during regular working hours. Even during regular working hours, defendants routinely performed or offered to perform unnecessary repairs or maintenance.

Plaintiffs experts indicated that defendants took two or three times longer than necessary to complete repair work and they consistently charged for parts at least three to four times more than a reasonable retail price or the manufacturer’s suggested retail price. Defendants also utilized the services of a subcontractor and charged consumers three to four times more than what the subcontractor charged defendants for the services rendered.

There was also testimony presented indicating that defendants had refused to provide quotes. When Knecht and Robert Leo, an employee of defendants, did quote a price, they often charged the customer a substantially higher price. In addition, defendants frequently charged consumers for two servicemen when only one performed the work or when only one worker was necessary. Consumers were sometimes charged with tradesmen rates when the work was performed by apprentices or helpers.

Finally, there was testimony indicating that Knecht Services, Inc. utilized the services of untrained and unsupervised helpers who provided shoddy and unnecessary services. In addition to incidents involving other workers, there was testimony that Robert Leo installed a water heater for a consumer at a time when he was unlicensed, even as an apprentice plumber. His work was reportedly done in a totally unworkmanlike manner, and intimidation was used to collect payment. Subsequently the consumer had to hire a licensed plumber to redo the installation.

After the conclusion of the trial, the trial court entered judgment in favor of defendants on counts I through IV of the complaint. Judgment was entered against defendant Knecht Services, Inc., only, on count V of the complaint, which was entitled “Poor Workmanship.” The court specifically found that the evidence did not establish that Knecht personally performed any shoddy or unworkmanlike services. However, the trial court entered judgment against both Knecht and Knecht Services, Inc., on count VI of the complaint, which alleged excessive charges. The court concluded, without argument in support from either side, that when defendants perform work for a customer without any preliminary discussion or agreement as to how the charges for work and materials are to be computed, a contract implied in law is created. In such a situation, the customer is only obligated to pay the “reasonable value” of the services rendered, and the court has the right to determine whether charges made in an implied contract are reasonable. The court concluded that defendants’ charges were not reasonable, and judgment was entered against them.

The court then entered a permanent mandatory injunction allowing defendants to continue in business provided they comply with certain conditions, including informing customers in advance of the charge for a service call and, upon arriving at the customer’s home, obtaining the customer’s written approval of the diagnostic fee. Once the problem is diagnosed, defendants must provide a written estimate and have the customer acknowledge its receipt in writing. Defendants were further enjoined “from making any threats or other actions either express or implied intended to coerce the customer to pay.” A civil fine of $10,000, as authorized by the Consumer Fraud Act (Ill. Rev. Stat. 1987, ch. 121½, par. 267), was imposed on defendants jointly.

The trial court dismissed the counterclaim filed by defendants against Attorney General Neil Hartigan. The court found the Attorney General to be absolutely immune from the claim of defamation. Defendants appeal not only from the dismissal of the counterclaim but also from the trial court’s judgment on counts V and VI of the complaint as well.

Defendants first argue that the trial court erred in entering judgment in favor of plaintiff on count VI of the complaint, which alleged excessive charges. In rendering its judgment, the trial court held that because defendants’ charges were far in excess of the reasonable value of the services, the Consumer Fraud Act imposed upon Knecht “the duty to advise of the manner in which he computes bills for his services, before he does any work whatever including making a service call.” The trial court ruled that, where defendants had been called to perform work and had completed that work prior to disclosing what their charges would be, no express contract was created; rather, only a contract implied in law was created. According to the trial court, in such situations, the consumer is only obligated to pay the “reasonable value” of the services.

Defendants initially argue that the trial court erred in determining that a contract implied in law was created. They contend that, rather, a contract implied in fact was created.

An implied contract is created as a result of the parties’ acts; such contracts are further divided into contracts implied in fact and those implied in law. (Heavey v. Ehret (1988), 166 Ill. App. 3d 347, 354.) Contracts implied in fact arise from a promissory expression which may be inferred from the facts and circumstances showing an intent to be bound. (Century 21 Castles By King, Ltd. v. First National Bank (1988), 170 Ill. App. 3d 544, 548.) Contracts implied in law result, notwithstanding the parties’ intentions, from a duty imposed by law and are contracts merely in the sense that they are created and governed by principles of equity. (Heavey, 166 Ill. App. 3d at 354-55.) No claim of a contract implied in law can be asserted if an express contract or a contract implied in fact exists between the parties and concerns the same subject matter. Heavey, 166 Ill. App. 3d at 355.

We hold that the trial court’s finding of a contract implied in law is manifestly against the weight of the evidence. (Century 21, 170 Ill. App. 3d at 549.) “In order to establish an implied in fact contract to pay for services, the party seeking payment must show that the services were carried out under such circumstances as to give the recipient reason to understand that they were not performed for some other person, and that they were not rendered gratuitously.” (12 Ill. L. & Prac. Contracts §5, at 246 (1983).) In the case at bar, the consumers contacted defendants requesting their services. Testimony indicated that the consumers intended to pay defendants for the services rendered. Thus, it is clear that the consumers were aware that the services were being performed for them and were not rendered gratuitously.

Plaintiff argues that a contract implied in fact cannot exist because there was never a meeting of the minds nor assent to any terms. Plaintiff concludes that a contract implied in law must therefore exist. (Euclid Engineering Corp. v. Illinois Power Co. (1967), 79 Ill. App. 2d 145, 152.) However, “contracts based on promises implied in fact arise on circumstances being proved which, according to the ordinary course of dealing and the common understanding of persons, show that it is in law regarded as sufficient for a mutual intent to contract.” (12 Ill. L. & Prac. Contracts §5, at 245-46 (1983).) Here, the fact that the consumers contacted defendants for their services and defendants provided those services indicates, in the ordinary course of dealing, a mutual intent to contract. Further, the consumers admittedly intended to pay defendants their regular charges. Thus, we find sufficient intent to support a contract in fact. Consequently, a contract in law finding is barred. Heavey, 166 Ill. App. 3d at 355.

In its brief to this court, plaintiff contends that the trial court was correct in its ruling; however, plaintiff maintains that use of a contract theory leaves many gaps and inconsistencies within the trial court’s decision. It proposes that a different analysis under the Consumer Fraud Act is more appropriate. Specifically, plaintiff argues that, under the Consumer Fraud Act, defendants’ actions were unfair and deceptive.

Defendants contend that the State may not raise these arguments on appeal because the trial court made findings contrary to those arguments and no cross-appeal was filed by plaintiff. In ruling in favor of plaintiff on the excessive charges count, the court noted:

“Knecht has the absolute right to set his charges, and his setting them at a much higher figure than others in the industry is not, in itself, a violation of the Consumer’s [sic] Fraud Act. However, failing to advise in advance of this practise [sic], and not announcing the results of his computation until the work has been accomplished does violate the act.”

Defendants contend that in making the above ruling, the trial court found that defendants’ prices were not unconscionable; therefore, in the absence of a cross-appeal, plaintiff should be barred from arguing to the contrary.

Initially, we note our disagreement with defendants’ claim that the trial court found defendants’ prices not to be unconscionable. Throughout its ruling, the court referred to defendants’ prices as “outrageous,” “not reasonable,” “gouging,” and “improper.” However, the court concluded that excessively high prices, alone, did not violate the Consumer Fraud Act. At no time did the court conclude that defendants’ prices were not unconscionable.

Further, we disagree with defendants’ argument regarding the cross-appeal. Findings of the trial court adverse to the appellee do not require the appellee’s cross-appeal if the judgment of the trial court was not at least in part against the appellee (Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387.) It is the judgment rather than the reasoning of the court that is to be reviewed on appeal (City of Evanston v. Regional Transportation Authority (1991), 209 Ill. App. 3d 447, 457); thus, the necessity of filing a cross-appeal arises only in situations where the appellee requests the reversal or modification of the judgment below. (Mid-West Na tional Bank v. Metcoff (1974), 23 Ill. App. 3d 607, 610.) Because plaintiff simply requests the affirmance of the trial court’s judgment on counts V and VI of the complaint, no cross-appeal was necessary. Defendants’ citation to Iacovelli v. First Security Trust & Savings Bank (1990), 202 Ill. App. 3d 982, and Cleys v. Village of Palatine (1980), 89 Ill. App. 3d 630, does not persuade us to the contrary. In those cases, the judgment of the trial court was at least in part against the appellee. (Iacovelli, 202 Ill. App. 3d at 985; Cleys, 89 Ill. App. 3d at 635.) Here, judgment was entered in favor of plaintiff, and plaintiff does not seek reversal or modification of that judgment. Consequently, no cross-appeal was necessary.

As a reviewing court, we can sustain the decision of the trial court on any grounds which are called for by the record regardless of whether the circuit court’s reasoning was correct. (Bell v. Louisville & Nashville R.R. Co. (1985), 106 Ill. 2d 135, 148.) Thus, we next consider whether defendants’ actions were unfair or deceptive under the Consumer Fraud Act. Section 2 of the Act forbids unfair or deceptive acts, or practices, including the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, in the conduct of any trade or business with the intent that others rely on the deceptive practices. (Ill. Rev. Stat. 1987, ch. 121½, par. 262; People ex rel. Daley v. Grady (1989), 192 Ill. App. 3d 330, 332.) Thus, in order to fall within the purview of section 2, it need only be shown that defendants are engaged in a trade or commerce and in unfair or deceptive acts or practices in the conduct of that trade or commerce. (People ex rel. Hartigan v. Stianos (1985), 131 Ill. App. 3d 575, 580.) Clearly, defendants are engaged in trade or commerce. (Ill. Rev. Stat. 1987, ch. 121½, par. 261(f).) Plaintiff argues that defendants’ actions were both unfair and deceptive. Plaintiff notes that a practice may be unfair without being deceptive (see Federal Trade Comm’n v. Sperry & Hutchinson Co. (1972), 405 U.S. 233, 31 L. Ed. 2d 170, 92 S. Ct. 898) and thus presents the two arguments separately.

The determination of whether a certain practice is “unfair” under the Consumer Fraud Act requires a case-by-case determination. (Elder v. Coronet Insurance Co. (1990), 201 Ill. App. 3d 733, 742; People ex rel. Fahner v. Testa (1983), 112 Ill. App. 3d 834, 837.) However, the Illinois legislature has specifically stated that, in construing section 2 of the Act, “consideration shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to Section 5(a) of the Federal Trade Commission Act.” (Ill. Rev. Stat. 1987, ch. 121V2, par. 262.) Section 5(a) of the Federal Trade Commission Act (15 U.S.C. §45(a)(l) (1982)) provides that unfair methods of competition in or affecting commerce are declared unlawful. In Federal Trade Comm’n v. Sperry & Hutchinson Co., the Supreme Court set out the standards employed in determining whether a practice is unfair:

“ ‘(1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise— whether, in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers (or competitors or other businessmen).’ ” 405 U.S. at 244-45 n.5, 31 L. Ed. 2d at 179 n.5, 92 S. Ct. at 905 n.5, quoting 29 Fed. Reg. 8355 (1964).

See also People ex rel. Fahner v. Walsh (1984), 122 Ill. App. 3d 481, 484; People ex rel. Fahner v. Hedrich (1982), 108 Ill. App. 3d 83, 89.

Plaintiff contends that unconscionably high prices alone are sufficient to render a contract “unfair” under the Consumer Fraud Act. Plaintiff then argues that this court has already determined that defendants’ prices were unconscionably high in Ahern v. Knecht (1990), 202 Ill. App. 3d 709. In Ahern, a consumer brought a small claims action to recover monies paid to defendant, James Knecht, for the repair of a central air-conditioning unit. The trial court found that defendant should have charged $150 for his work, rather than the $762 he charged. After the court deducted $72, the amount paid to a subsequent repairman, defendant was allowed a total of $78 for his work. The trial court then entered judgment in favor of the plaintiff in the amount of $684. Defendant appealed, and we affirmed, finding that the circumstances existing when the contract was entered were such that the terms of the contract should be set aside as unconscionable. Ahern, 202 Ill. App. 3d at 716.

In Ahern, we held that while gross excessiveness of price alone can make an agreement unconscionable, it is clear that the services rendered by defendant were of little or no value in contrast to the price paid. (Ahern, 202 Ill. App. 3d at 716.) We noted defendant’s superior bargaining position, given the consumer’s lack of experience in this type of transaction, his substantial charge for travel and diagnosis, his representations that the services were all necessary, and his insistence on immediate payment suggesting urgency. We concluded that the consumer had no meaningful choice and the agreement was not voluntarily and understanding^ entered into. (Ahern, 202 Ill. App. 3d at 717.) Consequently, we affirmed the trial court’s decision to set aside the unconscionable terms of the agreement and to allow defendant the actual value of his services. Ahern, 202 Ill. App. 3d 709.

The consumer in Ahern also testified on behalf of plaintiff in the case at bar regarding the previously litigated incident. Plaintiff contends that our ruling in Ahern is sufficient evidence to support the judgment of the trial court in the present case. We disagree. Our ruling in Ahern was based on the requirements necessary to rescind a contract, not on the requirements necessary to prove “unfairness” under the Consumer Fraud Act. (Ahern, 202 Ill. App. 3d at 715-16.) Plaintiff argues, without citation to authority, that “the factors used by many courts in determining what is unfair parallel the criteria Illinois courts have used when determining whether a contract is unconscionable.” However, because plaintiff has failed to offer any authority in support of this argument, we need not consider it as it is waived. 134 Ill. 2d R. 341(e)(7); Schwebl v. Seifer (1991), 208 Ill. App. 3d 176, 182; see Spengler v. V & R Marathon, Inc. (1987), 162 Ill. App. 3d 715, 717 (Consumer Fraud Act differs from a common-law action in fraud).

Defendants contend that it is not enough that their prices were unconscionable. The amicus brief filed by the Illinois Retail Merchants Association argues the same. Both contend that in order to prove a violation of the Consumer Fraud Act on the basis of high prices, it must be shown that the prices were unconscionably high, that little or no services were rendered, and that the consumer had no real alternative. Hedrich, 108 Ill. App. 3d at 89-90; see also Lane v. Fabert (1989), 178 Ill. App. 3d 698, 705.

In Hedrich, this court held that a mobile home park committed an unfair practice by not allowing residents of the park to sell their homes without paying a large transfer fee, while providing essentially no services related to the transfer. In applying the three-prong test set forth in Sperry & Hutchinson, we found that charging an unconscionably disproportionate price for little or no services offends public policy. (Hedrich, 108 Ill. App. 3d at 90.) We then found that the defendant was able to collect the unconscionably large fee for little or no services merely because the residents were in a position in which they had no reasonable alternative but to pay and agree to pay; we found this practice to be oppressive. (Hedrich, 108 Ill. App. 3d at 90.) Finally, we found that the residents of the park, as consumers, were injured by the defendant’s practices. (Hedrich, 108 Ill. App. 3d at 90.) Consequently, the defendant’s practices were found to violate the Consumer Fraud Act.

We do not find that the holding in Hedrick set forth new criteria in determining whether a practice violates the Consumer Fraud Act; rather, we used the Sperry & Hutchinson test, which remains in effect. However, the facts and holding in Hedrick do tend to support defendants’ contention that simply charging unconscionably high prices, by itself, is not unfair within the meaning of the Consumer Fraud Act. See also Charles Hester Enterprises, Inc. v. Illinois Founders Insurance Co. (1986), 114 Ill. 2d 278, 291-92.

Plaintiff argues that there were other factors, in addition to the unconscionably high prices. Plaintiff argues, inter alia, that the parties were in unequal bargaining positions, that defendants charged overtime rates for same day service during regular working hours, that defendants charged premiums without the consumer’s knowledge for certain types of work, that defendants charged for two servicemen when only one was required, that defendants padded their labor time, that defendants failed to quote or misquoted the cost of services, that defendants charged for two tradesmen when providing one tradesman and one helper, that defendants performed routine tasks while on overtime, that defendants sold parts unnecessary to the repairs while on overtime, that defendants charged for work not done, that defendants performed unnecessary repairs, that defendants recommended service where it was not warranted, and that defendants intimidated customers into paying,

In applying the Sperry & Hutchinson standards to the case at bar, we find that defendants’ practices were unfair. First, we note that charging for services that were not rendered and charging for servicemen that were not needed or not present offends public policy. Second, we find that defendants were in a superior bargaining position and used intimidation to collect payment; this we find to be unethical. Finally, we find that by charging excessively high prices, defendants caused substantial injury to consumers. Consequently, defendants’ actions were unfair and violated the Consumer Fraud Act.

Next, we consider plaintiff’s contention that defendants’ practices were deceptive. To establish a deceptive practice claim, a plaintiff “must show (1) a deceptive act or practice, (2) an intent by defendants that he rely on the deception, and (3) the deception occurred in the course of conduct involving a trade or commerce.” (Crowder v. Bob Oberling Enterprises, Inc. (1986), 148 Ill. App. 3d 313, 316.) Section 2 of the Uniform Deceptive Trade Practices Act (Act) (Ill. Rev. Stat. 1987, ch. 121½, par. 311 et seq.), which is incorporated into the Consumer Fraud Act (Ill. Rev. Stat. 1987, ch. 121½, par. 262), defines certain conduct as deceptive. In part, the Act provides:

“A person engages in a deceptive trade practice when, in the course of his business, vocation or occupation, he:
* * *
(7) represents that goods or services are a particular standard, quality or grade or that goods are a particular style or model, if they are of another;
***
(9) advertises goods or services with intent not to sell them as advertised;
* * *
(12) engages in any other conduct which similarly creates a likelihood of confusion or of misunderstanding.” Ill. Rev. Stat. 1987, ch. 121½, par. 312.

An advertisement has been held to be deceptive on its face if it creates the likelihood of deception or has the capacity to deceive. (Williams v. Bruno Appliance & Furniture Mart, Inc. (1978), 62 Ill. App. 3d 219, 222.) In affirmative misrepresentation or omission cases under the Act, a plaintiff must allege the misrepresentation of a material fact. (Elder, 201 Ill. App. 3d at 751.) A misrepresentation is material if it relates to a matter upon which the plaintiff could be expected to rely in determining whether to engage in the conduct in question. Elder, 201 Ill. App. 3d at 751.

Here, defendants advertised that their services were offered at a “minimum charge.” The record indicates that defendants’ advertisements were far from accurate. While they may have been an insufficient basis for a false advertising claim, we find that they were sufficiently deceptive to support a Consumer Fraud Act violation. In particular, defendants advertised that their services were offered at a minimum charge, the record showed that defendants’ charges were anything but minimal; yet, consumers could have been expected to rely on such a statement in determining whether to solicit defendants’ services. (Elder, 201 Ill. App. 3d at 751.) The statement was likely to create a misunderstanding as to defendants’ charges and was therefore deceptive. (Ill. Rev. Stat. 1987, ch. 121½, par. 312(12).) Further, we find that defendants intended the consumers to rely on the deception, which occurred in the course of conduct involving trade or commerce. (Crowder, 148 Ill. App. 3d at 316.) Consequently, we find that defendants’ practices were deceptive in violation of the Consumer Fraud Act.

The Illinois Retail Merchants Association argues in its amicus _ brief that it was neither deceptive nor fraudulent for defendants not to disclose their pricing practices since there was no special duty or relationship requiring disclosure. The Association relies on Stefani v. Baird & Warner, Inc. (1987), 157 Ill. App. 3d 167, 174-75. However, Stefani involved the concealment, suppression or omission of a material fact, whereas the present case involves deception and misrepresentation. Thus, it is not simply a matter of nondisclosure and Stefani is, therefore, inapplicable.

Defendants make various arguments in support of their contention that courts should not interfere with contracts to which parties have agreed. However, the cases relied upon by defendants deal with the issue of setting aside or rescinding a contract, which is not the situation in the present case. Here, plaintiff sought relief under the Consumer Fraud Act, and thus the cases cited by defendants are inapplicable.

Next, defendants contend that it was reversible error for the trial court to consider the absence of a witness in ruling against Knecht Services, Inc., on count V of the complaint. Count V was entitled “Poor Workmanship.” In ruling against Knecht Services, the court found:

“The evidence did support the fact that the corporations did employ servicemen guilty of shoddy workmanship, and persons with inadequate training and supervision to perform work to which they were assigned. This includes Bob Leo who was not available to testify. Without any contrary evidence from him, the evidence establishes unworkmanlike performance by Leo as well as other employees.”

Defendants contend that, in order for an adverse inference to be drawn from the failure to produce a witness, it must be established that the witness was under the control of the party against whom the inference is to be drawn and that he could have been produced by the exercise of reasonable diligence. (Illinois Pattern Jury Instructions, Civil, No. 5.01 (3d ed. 1991).) Defendants contend that Bob Leo is no longer in their employ and has moved out of State. Thus, they contend that an unfavorable inference may not be drawn by their failure to call him. Tuthill v. Belt Ry. Co. (1908), 145 Ill. App. 50, 55.

However, we find that it does not appear that the judge drew an adverse inference from defendants’ failure to call the witness; rather, the judge simply noted that plaintiff’s evidence concerning the quality of the workmanship provided by Leo and others hired by Knecht Services sufficiently established that the company inadequately trained and supervised their servicemen who, in turn, provided shoddy workmanship. We do not find that the trial court erred in noting the absence of contrary testimony from the servicemen, given that neither Knecht nor any other defense witness had any personal knowledge of the service calls conducted solely by the servicemen. The consumers testified as to the shoddy workmanship, and their testimony was simply unrebutted by competent testimony.

Next, defendants argue that the trial court’s judgment on count V was not supported by the evidence. Defendants first contend that there was no finding of intentional misconduct. However, it is clear that in most cases intent is not a material factor of the Consumer Fraud Act. Walsh, 122 Ill. App. 3d at 486.

Second, defendants claim that the work done by Knecht Services, Inc., is of generally high quality and the work done by Bob Leo was only occasionally not up to the high standards of Knecht Services. Defendants contend that, consequently, actionable deception under the Consumer Fraud Act was not established. Defendants cite People ex rel. Hartigan v. Maclean Hunter Publishing Corp. (1983), 119 Ill. App. 3d 1049, 1059, for the proposition that “[t]he Act prohibits deception rather than error.”

Judgment was entered against Knecht Services, Inc., on count V, not on the basis that Bob Leo made an occasional mistake in performing services; rather, judgment was based on the fact that Knecht Services employed servicemen guilty of shoddy workmanship and persons with inadequate training and supervision to perform work to which they were assigned. This was not simply an error on behalf of Knecht Services. Using unqualified workers and representing them as something else constitutes unfair and deceptive practices under the Consumer Fraud Act.

Finally, defendants contend that the trial court erred in dismissing the counterclaim filed against Attorney General Hartigan. In the counterclaim, defendants sought to recover damages for allegedly libelous statements contained in a press release made by the Attorney General and certain other oral statements made to the press by his assistant Attorney Generals. Specifically, defendants alleged that the following false and misleading statements were made:

“a. That James M. Knecht was not licensed to perform plumbing work.
b. That Knecht Services, Inc. had no officer or employee who was a licensed plumber.
c. That counterplaintiffs had ‘cheated’ customers in their business dealings.
d. That the general quality of the work done by counter-plaintiffs was ‘shoddy, incomplete, unsatisfactory or unnecessary.’ ”

The trial court granted the Attorney General’s section 2 — 619(a)(9) motion to dismiss (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(9)) on the basis of absolute immunity. Defendants contend that simply because conduct is arguably authorized or within the scope of the duties of the Attorney General does not entitle such conduct to be absolutely privileged. Defendants contend that the analysis of absolute immunity should be based upon the activity involved rather than the office held. If the conduct is essentially a bureaucratic task which could be performed by any number of employees, defendants contend that absolute immunity should not apply.

Initially, we note that a complaint should not be dismissed, pursuant to section 2 — 619, unless it clearly appears that no set of facts can be proved which would entitle the plaintiff to recover. (Ogle v. Fuiten (1984), 102 Ill. 2d 356, 360-61.) In assessing a section 2 — 619 motion to dismiss, the trial court must take all facts properly pleaded as true. (Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill. 2d 502, 505.) On review, the appellate court is concerned only with questions of law presented by the pleadings. (Ronning Engineering Co. v. Adams Pride Alfalfa Corp. (1989), 181 Ill. App. 3d 753, 758.) “The standard of review on appeal is whether the complaint alleged facts which sufficiently state a cause of action.” Alford v. Phipps (1988), 169 Ill. App. 3d 845, 857.

The Attorney General contends that he is entitled to absolute immunity since the allegedly libelous statements were made in conjunction with a matter clearly committed to the responsibility of the Attorney General. The Attorney General relies on Barr v. Matteo (1959), 360 U.S. 564, 3 L. Ed. 2d 1434, 79 S. Ct. 1335, which held that a director of a governmental agency, who issued a press release stating why he intended to suspend two employees, was immune from liability. The court emphasized the reasons for the privilege, stating:

“It has been thought important that officials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties — suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government.” Barr, 360 U.S. at 571, 3 L. Ed. 2d at 1441, 79 S. Ct. at 1339.

The Supreme Court noted that the immunity doctrine is limited to situations in which the official’s act is within the scope of his powers. (Barr, 360 U.S. at 572, 3 L. Ed. 2d at 1441, 79 S. Ct. at 1340.) The Court held that the issuance of the press release was within the “outer perimeter” of the defendant’s line of duty, which was sufficient to render the privilege applicable. Barr, 360 U.S. at 575, 3 L. Ed. 2d at 1443, 79 S. Ct. at 1341.

The rationale of Barr was adopted by our supreme court in Blair v. Walker (1976), 64 Ill. 2d 1. The Blair court held that the Governor is protected from actions for civil defamation by an absolute privilege when issuing statements which are legitimately related to matters committed to his responsibility. (64 Ill. 2d at 10.) The court explained that “[t]he Governor must be afforded an absolute privilege commensurate with the scope of the discretion he is required to exercise if the goal of unrestrained and fearless administration of government is to be achieved.” (Blair, 64 Ill. 2d at 10.) The court recognized that the effective functioning of a free government depends largely on the force of an informed public opinion, and thus it is within the bounds of the Governor’s inherent, discretionary authority of his office to inform the public of actions he had directed to be instituted against the plaintiffs. Blair, 64 Ill. 2d at 10.

More recently, the appellate court has adopted the rulings of Barr and Blair in Morton v. Hartigan (1986), 145 Ill. App. 3d 417, and Dolatowski v. Life Printing & Publishing Co. (1990), 197 Ill. App. 3d 23. In Morton, the court held that the Attorney General, the first assistant Attorney General, and the division chiefs are absolutely immune from civil liability for acts done within the scope of their employment. In Dolatowski, the court held that a deputy police superintendent is protected from liability by absolute privilege for alleged defamatory statements made by him within the scope of his responsibilities. The defendant in Dolatowski told a newspaper reporter that the plaintiff was among 14 women charged with the unlawful solicitation of rides along a roadway. The defendant then stated that the crackdown on prostitution would continue. The court held that the statements made by the defendant were within the scope of his duties and, thus, were absolutely privileged. Dolatowski, 197 Ill. App. 3d at 28-29.

Defendants contend that the above cases are inconsistent with a number of Supreme Court decisions handed down after Barr. Most recently is Forrester v. White (1988), 484 U.S. 219, 98 L. Ed. 2d 555, 108 S. Ct. 538, in which the Court held that a State court judge does not have absolute immunity from a suit for damages under section 1983 of the Civil Rights Act (42 U.S.C. §1983 (1988)) for his decision to demote and dismiss a court employee. The employee, a probation officer, alleged that she was demoted and discharged on the basis of her sex, in violation of the equal protection clause of the fourteenth amendment. In determining whether immunity should apply, the court utilized a “functional” approach, whereby the nature of the functions with which a particular official has been entrusted is examined in order to evaluate the effect that exposure to particular forms of liability would likely have on the appropriate exercise of those functions. (Forrester, 484 U.S. at 223-24, 98 L. Ed. 2d at 563, 108 S. Ct. at 542.) The Court noted that judges have long enjoyed absolute immunity from liability in damages for their judicial or adjudicatory acts, primarily in order to protect judicial independence by insulating judges from vexatious actions by disgruntled litigants. (Forrester, 484 U.S. at 226, 98 L. Ed. 2d at 564, 108 S. Ct. at 543-44.) However, the Court stated that truly judicial acts must be distinguished from the administrative, legislative, or executive functions that judges may occasionally be assigned by law to perform. (Forrester, 484 U.S. at 227, 98 L. Ed. 2d at 565, 108 S. Ct. at 544.) The Court concluded that the defendant judge was acting in an administrative capacity, rather than a judicial capacity, when he demoted and discharged the plaintiff; consequently, he was not entitled to absolute immunity. Forrester, 484 U.S. at 229, 98 L. Ed. 2d at 566, 108 S. Ct. at 545.

Even assuming, without deciding, that the functional approach is applicable here, we find that the statements of the Attorney General in the case at bar were privileged. It is the function and responsibility of the Attorney General to bring consumer fraud actions. As such, he must be allowed to keep the public informed of his actions without fear of personal liability. Educating and informing the public is just as much a part of the Attorney General’s function as prosecuting fraudulent and deceptive practices. We find that his actions were essentially governmental in character and thus protected under the immunity doctrine. See Hanzel Construction, Inc. v. Wehde & Southwick, Inc. (1985), 130 Ill. App. 3d 196, 200.

The Attorney General also raises the issue of sovereign immunity, claiming that the Court of Claims has exclusive jurisdiction. However, given our above ruling we need not address this issue.

For all the foregoing reasons, we affirm the judgment of the trial court.

Affirmed.

REINHARD, P.J., and UNVERZAGT, J., concur.