author: JUSTICE DUNN

text:
    JOHN ROCHE et al., Plaintiffs, v. THE COUNTY OF LAKE, Defendant-Appellant (Bruce Fratus et al., Plaintiffs-Appellants; Charles Godshall et al., Intervening Plaintiffs-Appellants; Lake County Board et al., Defendants).
    Second District
    No. 2—90—0091
    Opinion filed November 6, 1990.

      Fred L. Foreman, State’s Attorney, and Brydges, Riseborough, Morris, Franke & Miller, both of Waukegan (Helen S. Rozenberg, Assistant State’s Attorney, and Daniel R Field, of counsel), for appellant County of Lake.

      Robert J. Hauser and Peter M. Schlax, both of Sullivan, Smith, Hauser & Noonan, Ltd., of Waukegan (Richard J. Smith, of counsel), for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Defendant, County of Lake, appeals from a court order determining the meaning of “full-time deputy sheriff” as it was used in a 1983 summary judgment order entered against defendant. That order entitled plaintiffs, 16 employees of the Lake County sheriff’s office, to credit under the retirement annuity for sheriff’s law enforcement employees (Ill. Rev. Stat. 1981, ch. 108½, par. 7 — 142.1) from the time they were employed as full-time deputy sheriffs.

In 1989, seven of the plaintiffs from this judgment and five new plaintiffs filed a petition to enforce the judgment, claiming that they had not received full credit from the time they became full-time deputy sheriffs. Defendant claimed these plaintiffs were not full-time deputy sheriffs during the time they occupied positions that were not certified by the Lake County Sheriff’s Office Merit Commission. The trial court ruled that, regardless of whether an employee had been certified by the merit commission, a full-time deputy sheriff included a person sworn by the sheriff and paid as a full-time deputy to act at the direction of the sheriff. For the reasons stated below, we agree with the trial court and affirm.

In 1981, 16 employees of the Lake County sheriff’s office brought a complaint against the County of Lake and other defendants alleging various causes of actions arising out of a pay disparity between plaintiffs and other employees in the sheriff’s office. In count IX of their second amended complaint, these plaintiffs alleged that, as full-time deputies, they were entitled to credit under the more beneficial retirement annuity plan for full-time sheriff’s law enforcement employees (Ill. Rev. Stat. 1981, ch. 108½, par. 7 — 142.1) as opposed to the regular plan under the Illinois Municipal Retirement Fund (IMRF) (Ill. Rev. Stat. 1981, ch. 108½, par. 7 — 142). In paragraph one of count IX, plaintiffs alleged the following:

“That at the present and for long periods of time prior thereto, the Plaintiffs and each of them were employed by the Lake County Sheriff’s Office in the Civil Process and Warrant Division as full time Deputy Sheriffs].”

In paragraph three, plaintiffs asserted that they were full-time deputies from the dates of their employment listed in exhibit C. Plaintiffs also attached copies of their written oaths as deputies.

Defendants admitted paragraphs one and three in their answer to plaintiffs’ complaint. Plaintiffs then filed a summary judgment motion on count IX, pointing out that defendant admitted they were full-time deputy sheriffs as stated in paragraphs one and three. Plaintiffs also attached the deposition testimony of Roger Sloot, personnel director of Lake County. Sloot stated that all of the plaintiffs were in either the civil process or warrant divisions of the sheriffs office and, as of January 1, 1981, these positions were certified by the merit commission. Sloot stated that certification determined whether an individual was entitled to participate in the retirement fund for sheriffs.

In written response to plaintiffs’ summary judgment motion, defendant stated:

“This count seeks placement of plaintiffs under SLEP [(the parties referred to the retirement plan as the ‘Sheriff's Law Enforcement Plan’)] on or prior to January 1, 1981. It is not defendants’ intention here to oppose the relief sought in this count.”

Preceding this statement, in addressing plaintiffs’ motion for summary judgment on count IV, defendant stated that the undisputed fact was that plaintiffs were employed as full-time deputy sheriffs as process and warrant servers prior to 1981.

The trial court granted summary judgment to plaintiffs on count IX, ruling as follows:

“[Plaintiffs are entitled to and shall be placed under Illinois Municipal Retirement Fund for Sheriffs for the period prior to January 1, 1981, during which time they were full time deputy sheriffs, and the court retains jurisdiction of said matter for the purposes of implementation of said judgment.”

On June 1, 1989, seven of the plaintiffs from the earlier suit and five new plaintiffs (defendant did not object to joinder of additional plaintiffs) filed a petition claiming that defendants had not complied with the judgment. Specifically, they claimed that the judgment entitled them to participate in the sheriff’s retirement fund from the date that they took the deputy’s oath of office. The County of Lake responded with a pretrial memorandum stating that it was necessary to determine whether an employee had to be certified by the merit commission in order to be a full-time deputy sheriff. Defendant attached a list of all the named plaintiffs, stating when each began employment with the sheriff’s office, what position each started in, what position each was transferred to, and when each received coverage under the regular IMRF plan and under the sheriff’s plan.

At the conclusion of a hearing on the issue in which no new evidence was submitted, the trial judge stated that he had considered the briefs and oral arguments of both sides as well as his notes and the evidence from the trial of the earlier proceeding. The trial judge stated that there were uncontroverted factors concerning all deputies that he could take everyday notice of, specifically:

“[T]he deputies, regardless of certification, wearing the same uniform, armed while on duty, [were] responsible for the safety and well-being of court personnel, the public, and the like, who are required to come to the aid, and by statute, of fellow officers, who have, in essence, in my judgment, been given the duty and authority by the sheriff to arrest and detain people apprehended by violating laws, [and] to whom an offense is aggravated battery as opposed to a regular citizen.”

The written order of the trial court stated:

“The court finds that ‘full time deputy sheriff’ means all persons sworn by the Sheriff as evidenced by the oaths which are exhibits to the petition who are paid as full-time deputies to act at the direction of the sheriff ***.”

The trial court’s remarks appear to be at least partly a reflection of the testimony adduced at trial on the other counts in the original complaint. In that trial, the sheriff of Lake County testified that plaintiffs who worked in the civil process and warrant divisions could be called to respond to a riot or other disturbance because they had been sworn as deputies and received the proper training. The sheriff stated that there were people in clerical positions who had not taken an oath of office. He stated that he had three different sections in his office, including (1) highway and uniform patrol; (2) support systems, which included civil process, warrants, communications, bailiffs, court security and others; and (3) the administrative agency, which included the clerical positions. We note that the testimony at trial focused on the duties of persons in the civil process and warrant divisions. There was no testimony on the duties of sworn deputies who acted in positions as jailers or other positions the county now contends are not typical law enforcement positions.

Before addressing the merits of defendant’s argument, we must first determine whether this court has jurisdiction to entertain defendant’s argument. Plaintiffs contend this argument should have been raised on appeal within the proper time from the 1983 judgment and cannot be made following a clarification order. An order or judgment is final and appealable when it terminates the litigation or some definite part of it on the merits. (Bank of Ravenswood v. Maiorella (1982), 104 Ill. App. 3d 1072, 1073.) Notice of appeal must be filed within 30 days of entry of the final judgment or entry of an order disposing of a timely filed post-trial motion. (107 Ill. 2d R. 303(a).) Any judgment or decree from which an appeal could have been taken may not be reviewed on appeal from a subsequent order entered in the matter. (Ravenswood, 104 Ill. App. 3d at 1074.) A final order or judgment will not be considered on appeal from an order merely incidental to carrying out the final order or judgment. Harty v. Kirby (1975), 26 Ill. App. 3d 688, 689-90.

In this case, defendant could not have raised its argument following the original judgment. Looking at the summary judgment motion and the judgment that was entered on that motion, it is clear that the issue of whether a full-time sheriff’s employee would be designated as a full-time deputy sheriff from the time that person took the deputy’s oath was not considered or decided by the trial court. Thus, defendant cannot be expected to have appealed from the original judgment on this issue. The trial court’s order in 1989 was not merely an incidental order; it decided an issue that had not been raised in the earlier proceeding.

Plaintiffs argue that defendant is barred from raising its argument by virtue of its answer to paragraph three of count IX of their second amended complaint. In its answer, defendant admitted paragraph three, which stated that plaintiffs were full-time deputy sheriffs from the dates of plaintiffs’ employment stated in exhibit C. Plaintiffs argue that this answer is a conclusive admission against defendant. Since the summary judgment order provided plaintiffs relief from the time they were full-time deputy sheriffs, plaintiffs argue, the issue was settled at this time, and defendant cannot contest the issue at this late date. We disagree.

What constitutes a judicial admission must be decided under the circumstances of each case. (Malauskas v. Tishman Construction Corp. (1980), 81 Ill. App. 3d 759, 761-62.) It is clear from paragraph one of count IX of plaintiffs’ complaint and from the testimony at trial that plaintiffs were asserting that they were entitled to benefits under the sheriff’s retirement plan from the time they were employed in the civil process and warrant divisions as full-time deputy sheriffs. Paragraph one, which defendant admitted, states that plaintiffs were employed in the civil process and warrant divisions as full-time deputy sheriffs. The dates of employment listed in exhibit C do not correspond to the dates when plaintiffs began working in the civil process • and warrant divisions as full-time deputy sheriffs; rather, these dates represent the dates .plaintiffs were employed full-time in other departments. Defendant did not contest that plaintiffs were entitled to the sheriff’s benefits from the time they were employed in the civil process and warrant divisions. It never admitted, however, that plaintiffs were entitled to this benefit from the time they were employed in other positions in the sheriff’s office. Thus, we construe defendant’s answer to paragraph three only as an admission that plaintiffs were employed full-time under the sheriff’s office from the dates listed in exhibit C. It is not a conclusive admission that plaintiffs were full-time deputy sheriffs as that term was used in the summary judgment motion.

Turning to defendant’s argument, defendant asserts that, when these plaintiffs began employment with the sheriff’s office, they first worked in positions that defendant argues are not certified by the merit commission. These include positions in the records department, work release department, communications/radio department and jail department. Since the time plaintiffs started in these positions, all five have been transferred to positions that the defendant submits are certified positions. These include positions in the highway patrol, civil process, and warrant departments. Defendant does not dispute that plaintiffs are entitled to coverage under the sheriff’s retirement plan from the time that plaintiffs served in certified positions, but it denies that plaintiffs are entitled to participate in this plan for the time that they worked in noncertified positions.

The retirement plan for sheriffs is provided to all sheriff’s law enforcement employees. A “sheriff’s law enforcement employee” is defined as follows:

“A county sheriff and all deputies, other than special deputies, employed on a full time basis in the office of the sheriff.” Ill. Rev. Stat. 1981, ch. 108½, par. 7-109.3(a)(l).

Defendant contends that only those employees who come under the jurisdiction of the merit commission are full-time deputies and employees in noncertified positions do not come under the jurisdiction of the merit commission. In a deposition, Daniel Sloot, personnel director of Lake County, stated that only employees in certified positions were entitled to credit under the sheriff’s retirement plan. According to defendant, plaintiffs from the original lawsuit have been allowed credit under the plan for the time prior to 1981 that they served in the civil process and warrant divisions because, pursuant to an ordinance, these positions were made certified positions by the merit commission in 1981. This ordinance is not cited, has not been made a part of the record, and has not been attached to the appendix.

The Sheriff’s Merit System Act provides a system for counties to create a Sheriff’s Office Merit Commission. (Ill. Rev. Stat. 1981, ch. 125, par. 151 et seq.) The Act provides that “[a]ll full time deputy sheriffs shall be under the jurisdiction of this Act and the county board may provide that other positions, including jail officers, as defined in ‘An Act to revise the law in relation to jails and jailers’, approved March 3, 1874, as now or hereafter amended, shall be under the jurisdiction of the Commission.” (Ill. Rev. Stat. 1981, ch. 125, par. 157.) The Act also provides that “[t]he appointment of all personnel subject to the jurisdiction of the Merit Commission shall be made by the sheriff from those applicants who have been certified by the Commission as being qualified for appointment.” Ill. Rev. Stat. 1981, ch. 125, par. 160.

The Act does not provide that a merit commission shall create certified positions to designate which deputies come under its jurisdiction. Nowhere does the Act provide for the creation of certified positions for deputies; it states that all full-time deputies are under its jurisdiction. The only time the Act uses the word “certified” is when it states that all appointments shall be made from applicants who have been certified for appointment. The Act does provide that the merit commission may require different tests for different classifications of deputies (Ill. Rev. Stat. 1981, ch. 125, par. 160), but these classifications would be made among all full-time deputy sheriffs since the merit commission only has jurisdiction of full-time deputy sheriffs.

Defendant argues that the Lake County sheriff’s office merit commission rules and regulations provide that noncertified positions are those positions that are outside the merit commission’s jurisdiction. We disagree. The introductory paragraph to the rules states the following:

“The following Rules and Regulations, as adopted and revised by the Lake County Sheriff’s Office Merit Commission shall apply to all personnel, deputized by the Sheriff and compensated by the County of Lake.”

The rules then define “personnel” in article I as classified and unclassified:

“Classified Personnel: Male or female employees of the sheriff’s office, whether in uniform or civilian attire, who were in office on September 14, 1965, regardless of their duties at that time, and all deputy sheriffs.
Unclassified Personnel: All employees of the sheriff’s office designated as deputies and having only limited police power, whether in uniform or civilian attire, including stenographers, secretaries, bookkeepers, elevator operators, janitors and jail officers.”

It appears that when defendant states that a position is not certified, defendant means that it is an unclassified position. The rules clearly provide that jailers and others are unclassified personnel; however, the rules do not state that unclassified personnel are outside the jurisdiction of the merit commission. To the contrary, the introductory paragraph provides that the rules are applicable to all personnel deputized by the sheriff and compensated by Lake County. Furthermore, the unclassified personnel definition states that these employees have been designated as deputies. Section 2 of article II of the rules provides that the appointment of deputies shall be made from those applicants who have been certified by the Commission as being qualified for appointment. This requirement is not limited to only classified personnel. Thus, according to the merit commission’s own rules, all unclassified personnel who have been deputized do come under the jurisdiction of the merit commission.

Defendant relies on an Attorney General opinion that states that the Lake County sheriff’s office merit commission has no jurisdiction over persons employed in such positions as jailers, stenographers, secretaries and bookkeepers. (1971 Ill. Att’y Gen. Op. 77.) Of course, the opinions of the Attorney General are not binding on this court, though a well-reasoned opinion is entitled to considerable weight in resolving a question of first impression regarding the construction of an Illinois statute. (City of Springfield v. Allphin (1978), 74 Ill. 2d 117,130-31.) This opinion is not well reasoned.

In the 1971 Illinois Attorney General Opinion 77, the Attorney General considered the rules and regulations of the commission, specifically the provision that provided that the commission’s rules applied to all personnel deputized by the sheriff. It concluded that the commission’s jurisdiction was limited to full-time deputy sheriffs; all other types of employees were excluded. Specifically, the commission had no authority over stenographers, secretaries and bookkeepers; nor did it have authority over jailers because they were defined in a separate act (Ill. Rev. Stat. 1963, ch. 75, pars. 2, 3). (1971 Ill. Att’y Gen. Op. at 81.) That act provided that the sheriff shall be the warden of the jail, and employees who are charged with the care and custody of prisoners shall be known as jail officers. Ill. Rev. Stat. 1963, ch. 75, pars. 2, 3(a).

The opinion as it relates to jail personnel is not persuasive. The fact that a separate act states that employees charged with the care and custody of prisoners shall be known as jail officers does not necessarily mean that jail officers cannot also be deputy sheriffs. We point out that the act in relation to jails and jailers does not require jail officers to take an oath of office. The act in relation to sheriffs, however, requires all deputies to take an oath of office (Ill. Rev. Stat. 1981, ch. 125, par. 9). Thus, we believe jailers who have taken the deputy's oath are not only jailers; they are also deputy sheriffs.

We find the remainder of the Attorney General opinion does nothing more than state the issue. The opinion concludes that the merit commission only has jurisdiction of full-time deputy sheriffs, but it fails to define adequately a full-time deputy sheriff. It purports that “deputy sheriff” has a special meaning in Illinois, quoting County of Winnebago v. Industrial Comm’n (1968), 39 Ill. 2d 260, 261, but this quote does not help define the term. The definition of a full-time deputy sheriff was not at issue in this case. The quote from the opinion was addressed to whether a full-time deputy sheriff was an official or an employee for purposes of the Worker's Compensation Act. The quoted portion states:

“Deputy sheriffs are recognized in section 9 of article X of the Illinois constitution: ‘The number of the deputies and assistants of such officers [including sheriffs] shall be determined by rule of the circuit court, to be entered of record, and their compensation shall be determined by the county board.’
Our statutes specifically provide for the appointment, the powers, and the duties of deputy sheriffs. Section 7 of the Act relating to sheriffs and deputies (Ill. Rev. Stat. 1967, chap. 125, par. 7) provides that a sheriff may appoint one or more deputies not exceeding the number allowed by rule of court and may take a bond from him for his indemnity. *** Section 12 of the same act authorizes a deputy sheriff to perform any and all duties of the sheriff and provides that the acts of the deputy are the acts of the sheriff. (Ill. Rev. Stat. 1967, chap. 125, par. 12.) Also, the sheriff is liable for any neglect or omission of the duties of office occasioned by a deputy as he would be for his own personal neglect or omission. Ill. Rev. Stat. 1967, chap. 125, par. 13.” (County of Winnebago, 39 Ill. 2d at 262-63.)

There is nothing in the above quotation that helps to determine the elements that make up a full-time deputy sheriff. The Attorney General opinion not only fails to define full-time deputy sheriff, it also fails to recognize that the Lake County sheriff’s office merit committee rules do not state that the rules apply to all personnel in the sheriff’s office; rather, as the introductory paragraph states, the rules only apply to those personnel who have been deputized.

Another Attorney General opinion cited by defendant ironically supports the position that all deputies, regardless of whether they perform law enforcement duties, such as bailiffs, process servers and radio operators, come under the jurisdiction of the merit commission. (1965 Ill. Att’y Gen. Op. 114.) Defendant cited this opinion for the proposition that jailers are not included under the jurisdiction of the merit commission. The opinion is not persuasive in this respect as it gives the same rationale stated in the 1971 Illinois Attorney General Opinion 77. The opinion is persuasive, however, in its finding that the use of the phrase “all deputies” in the Act authorizing merit commissions includes all deputies regardless of whether they worked in typical law enforcement positions. The opinion states:

“In the absence of statutory definitions indicating different legislative intention, courts will assume that words have their common dictionary meaning or their popularly understood meaning. Conlon-Moore Corp. v. Cummins, 28 Ill. App. 2d 368, affirmed 23 Ill. 2d 341; Stice v. Beard, 46 Ill. App. 2d 304.
Webster’s Second International Dictionary defines the word ‘all’ in part as follows:
‘Every member or individual component of; each one of;— used with a plural noun. In this sense, all is used genetically and distributively, meaning that a statement is true of every individual or case; as, all men are mortal.’
Applying the above rule of statutory construction to the question under consideration, it is obvious that the words ‘all deputies’ *** mean each and every deputy sheriff in the office of the sheriff.” (Emphasis in original.) 1965 Ill. Att’y Gen. Op. at 115.

For the foregoing reasons, defendant’s argument that plaintiffs are not entitled to credit under the sheriff’s pension plan because they do not come under the jurisdiction of the merit commission fails.

Defendant also appears to argue that plaintiffs are not full-time deputies from the time they took their oaths because they were not chosen from a list of applicants certified by the merit commission as qualified. This is a procedure clearly stated under the Sheriff’s Merit System Act (Sheriff’s Act) (Ill. Rev. Stat. 1981, ch. 125, par. 160). Defendant argues that employees who have not been selected from a certified list are not “duly appointed and qualified.” Section 12 of the Sheriff’s Act provides:

“Deputy sheriffs, duly appointed and qualified, may perform any and all the duties of the sheriff, in the name of the sheriff, and the acts of such deputies shall be held to be acts of the sheriff.” (Ill. Rev. Stat. 1981, ch. 125, par. 12.)

There may be an argument that appointed deputies who have not been certified by the commission may not have been duly appointed; however, the argument has not been adequately presented in this case, nor is there any evidence in the record pertaining to the procedure followed in the selection of plaintiffs as deputy sheriffs.

Defendant also argues that its position is supported by a memorandum it received from the Executive Director of the Illinois Municipal Retirement Fund which stated that the sheriffs fund applied to full-time employees who were (1) in positions of deputy sheriffs authorized by the circuit court, (2) were appointed under merit principles established by the merit board or commission, and (3) subscribe to the constitutional oath of office. The memorandum also stated that the plan did not apply to jailers who are not appointed as regular deputies, as well as special deputies, bailiffs, and employees deputized who work part time in nondeputy positions.

This memorandum, of course, is not binding on this court. More importantly, it is not persuasive. For one thing, though the three criteria set out by IMRF seem appropriate to define a duly appointed deputy sheriff, there has been no evidence that plaintiffs do not meet these criteria. Secondly, the interpretation that the sheriff’s fund does not apply to deputized employees who work in nondeputy positions is unsound. The problem with IMRF’s interpretation is that the retirement plan for sheriff’s law enforcement employees does not state that it applies to only those employees who work full time in typical law enforcement positions. It applies to sheriff’s law enforcement employees defined as “all deputies, other than special deputies, employed on a full time basis in the office of the sheriff.” (Ill. Rev. Stat. 1981, ch. 108½, par. 7 — 109.3.) Had the legislature intended the fund to apply only to deputy sheriffs who work full time in typical law enforcement positions, it could have said so. The only limitation made by the legislature excluded special deputies. Special deputies are mentioned in the Sheriff’s Act (Ill. Rev. Stat. 1981, ch. 125, par. 1 et seq.) under section 10. That section states:

“A sheriff may appoint a special deputy to serve any summons issued out of a court, by indorsement thereon ***.” (Ill. Rev. Stat. 1981, ch. 125, par. 10.)

There is no argument that plaintiffs served in positions as special deputies.

Defendant has admitted that employees serving as civil process servers, warrant officers, and bailiffs are covered under the sheriff’s pension plan. This fact defeats its position that plaintiffs should not be included because they held jobs that were not typically related to law enforcement. Clearly, process servers, warrant officers and bailiffs do not occupy typical law enforcement positions.

We conclude that the trial court reached the correct definítion of a full-time deputy sheriff for purposes of the sheriff’s pension plan; it includes any person sworn by the sheriff as a deputy and paid full time to act at the direction of the sheriff. It is evident from the language of the written oath for deputy sheriff, stated below, that the oath conveys the authority and duty of a deputy sheriff. Certified copies of the written oaths submitted by the original plaintiffs in their summary judgment motion include two parts, one part signed by the sheriff and one part signed by the employee. The first part states:

“I [name] Sheriff in and for the County of Lake in the State of Illinois, hereby appoint [name] as Deputy Sheriff of Lake County, Illinois to act and perform the duties of such office until by me removed.”

The second part states:

“I do solemnly swear that I will support the Constitution of the United States of America, and the Constitution of the State of Illinois, and that I will discharge the duties of the office of Deputy Sheriff of Lake County, Illinois, according to the best of my ability.”

By these oaths, plaintiffs have taken on all the duties of a deputy sheriff. The fact that they are not called upon to participate in law enforcement duties on a daily basis does not deny the fact that they have been sworn as deputies and are bound to perform the duties of the sheriff’s office as commanded by the sheriff. Therefore, plaintiffs are entitled to participate in the sheriff’s pension plan from the time they were employed full-time by the sheriff’s office and sworn as deputies.

The circuit court is affirmed.

Affirmed.

REINHARD and WOODWARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE INGLIS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLAYTON JORDAN, Defendant-Appellant.
    Second District
    No. 2—88—1207
    Opinion filed November 6, 1990.

      G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Clayton Jordan, was charged by indictment with murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a)(1)), aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12— 14(a)(2)), intimidation (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 6(a)(1)), and concealment of a homicidal death (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 3.1). Following a jury trial, defendant was found guilty of each offense and was sentenced to an extended term of 80 years’ imprisonment for murder, 30 years for aggravated criminal sexual assault, and five years each for intimidation and concealment of a homicidal death, with each sentence to run concurrent to the murder sentence. Defendant filed a timely notice of appeal.

On appeal, defendant contends that his convictions should be reversed and a new trial ordered because of the trial court’s ruling denying his motion in limine. The motion in limine attempted to prevent the State from informing the jury that one of its witnesses, Brian Telander, was currently employed as an associate circuit court judge. Defendant argues that the State improperly bolstered Telander’s credibility by continually referring to him as “judge” during the direct examination and closing arguments. For the reasons stated below, we affirm.

Prior to trial, defendant’s motion in limine attempted to prevent the State from informing the jury that Brian Telander was currently employed as a judge. In denying the motion, the trial court ruled that the jury could be informed as to Telander’s current occupation, but cautioned the State not to “refer to him as Judge Telander in any manner or fashion.”

The following facts can be summarized from the lengthy record on appeal. Cornell Finley, an 11-year-old boy, testified that he was a friend of the victim in this case, 11-year-old Taneka Jones. Cornell stated that on January 9, 1988, Taneka came over to the Finley apartment in Hinsdale around 6 p.m. and stayed with Cornell while both of their mothers went to Chicago. Shortly thereafter, defendant came to the apartment and Taneka let him in. Cornell and Taneka knew defendant because he lived in the same apartment complex as they did. Defendant played a video game with Taneka and then left the apartment, returning a short time later to get keys to his apartment. After receiving the keys, defendant again left the apartment. Cornell indicated that John Kines then came to the apartment, with defendant arriving shortly thereafter. Defendant talked to Kines and then left the apartment. Cornell stated that Kines then went into his mother’s bedroom, and Cornell fell asleep on the sofa in the living room.

Cornell woke up later that night and saw defendant drag Taneka out of the living room and into his mother’s bedroom. Cornell heard a bed squeaking and Taneka saying “Stop. That hurts.” Cornell went to his mother’s bedroom, looked inside, and saw Taneka on the bed with defendant on top of her “[mjoving up and down.” Cornell went back to the living room, but returned to his mother’s bedroom when the noise stopped. At this time, Cornell saw Taneka lying on the floor with a blanket wrapped around her. He also saw Kines “tightening something on her neck.” Defendant, Kines, and Saul Berry then took Taneka out of the apartment and down into the basement of the building.

Cornell indicated that he followed the men into a storage area in the basement. He saw the three men standing in the basement but could only see Taneka’s feet. Both Kines and Berry were laughing, and defendant was masturbating. Cornell returned to his apartment, and the three men arrived a short time later. All three men told Cornell that the same thing would happen to him and his mother if he said anything.

The following morning, Cornell’s and Taneka’s mothers returned to the apartment and began to search for Taneka. Shortly thereafter, Taneka’s body was found, and the police were called. Cornell stated that he did not tell anyone what happened to Taneka because he was scared. It was not until six days after Taneka’s murder that Cornell was able to tell the police what happened that night. Cornell also stated that he lied to Kines’ attorneys a few months later because “they was there to get [Kines] out of jail.”

Dr. Larry Blum, a forensic pathologist, testified that he performed an autopsy on Taneka Jones. It was his opinion that the cause of Taneka’s death was ligature strangulation. He noted that death by ligature strangulation occurs when the blood flow to the brain ceases. In Taneka’s case, he observed an abrasion one-half inch wide which went completely around her neck. A portion of Taneka’s blouse, which was knotted in the front and “drawn up tight to the front of the neck,” caused the abrasion.

Detective Warren Wilkosz of the Du Page County sheriff’s department testified that he interviewed defendant on the day following the homicide. Initially, defendant stated that he was alone in his apartment for the entire previous night. Detective Wilkosz then read defendant his Miranda rights and informed defendant that he knew defendant was with Berry during the night. Defendant then stated that he was arrested that evening and was later released after posting a bond. Defendant admitted being in Cornell’s apartment that night, but denied seeing Taneka or being in the basement storage area. Defendant then agreed to submit to hair, saliva and blood samples.

Brian Telander, an associate judge in Du Page County, testified that he was the chief of the criminal division of the Du Page County State’s Attorney’s office during the murder investigation. He indicated that he was informed of the homicide on January 10, 1988, and drove to the apartment complex in Hinsdale. Telander had conversations with several police officers and later saw Cornell, whom Telander described as nervous and afraid.

On January 13, 1988, Telander spoke to Cornell and learned that the crime may have occurred in Cornell’s apartment. On January 15, 1988, Telander again spoke to Cornell at the State’s Attorney’s office. At this time, Cornell told Telander “what really happened,” and search and arrest warrants were then issued. At approximately 11 p.m., defendant was placed under arrest. Around midnight, defendant was read his Miranda rights and indicated that he would speak to Telander. Defendant admitted that he had been in Cornell’s apartment twice on the night in question, once to get his keys and the other time to play a video game with Taneka. He denied being in the apartment at any other time that night.

Telander then told defendant that he was not “being truthful,” and defendant asked if Berry and Hines had been arrested yet. Te-lander answered in the affirmative, and defendant indicated that he would tell “what really happened.” Defendant then stated that he and Berry went to Cornell’s apartment, where Kines greeted them. A short time later, defendant saw Kines grab Taneka and take her into the bedroom. Defendant held Taneka’s head and Kines removed her clothing. Defendant stated that he then “had sex with her” while Kines and Berry held her down. The three men then agreed to kill Taneka to keep her from identifying them. Kines picked up a shirt and proceeded to strangle her. They then took her body into the basement storage area, and defendant proceeded to masturbate over her body.

Defendant then told Telander that the three men returned to the apartment and told Cornell that the same thing would happen to Cornell and his mother if he said anything about what happened. The three men then discussed the crime and prepared and practiced a story in case the police questioned them.

Telander stated that he had defendant again recite what transpired to make sure that Telander’s notes were accurate. The notes were typed in memorandum form two days later.

On cross-examination, Telander indicated that he did not ask defendant to sign the typed memoranda. In addition, Telander did not ask defendant to write out his own version of the events on the night in question.

Following Telander’s testimony, the State rested. Defendant’s motion for a directed verdict was denied, and he did not present any evidence at trial. Following closing arguments, the jury, after lengthy deliberations, found defendant guilty of each offense charged. Defendant’s motion for a new trial was denied, and he was sentenced to 80 years’ imprisonment for murder, 30 years for aggravated criminal sexual assault, and 5 years each for intimidation and concealment of a homicidal death, with each sentence to run concurrently. This appeal followed.

On appeal, defendant contends that the trial court erred in denying his motion in limine seeking to prevent the State from informing the jury that Brian Telander was currently employed as a judge. Defendant argues that the only reason the State wanted to inform the jury as to Telander’s occupation was to “qualify Telander as a sort of expert on credibility, coloring the jurors’ perception both of what Telander himself had to say and of what Cornell Finley and [defendant] supposedly admitted to him.”

A motion in limine is addressed to the trial court’s inherent power to admit or exclude evidence. (People v. Escobar (1988), 168 Ill. App. 3d 30, 43.) The court’s decision to grant or deny the motion is within its discretion, and we will not reverse the decision on appeal absent a manifest abuse of this discretion. Escobar, 168 Ill. App. 3d at 43; People v. Goka (1983), 119 Ill. App. 3d 1024, 1029-30.

In the present case, we cannot say that the trial court manifestly abused its discretion in denying defendant’s motion in limine. Certainly, the jury was entitled to know that Brian Telander was now employed as an associate judge in Du Page County. The reason for this is that the witness’ occupation and related background is of value to the jury in determining the credibility of the witness and his testimony. (See People v. Crane (1922), 302 Ill. 217, 224-25; M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §607.6, at 335 (4th ed. 1984).) As such, the trial court properly ruled on defendant’s motion in limine with respect to Telander’s occupation as a judge.

We next consider defendant’s contention that he was prejudiced by the cumulative effect of the State’s repeated references to Brian Telander’s position as an associate judge. Defendant argues that these references artificially bolstered Telander’s credibility with the jury. In addition, defendant asserts that the references were improper given that the trial court, in denying defendant’s motion in limine, instructed the State not to “refer to him as Judge Telander in any manner or fashion.” Defendant correctly points out that the State, during direct examination, addressed Telander as “Judge Te-lander” a total of nine times. However, at no time did defendant object to the State’s reference to the witness as “Judge Telander.” In addition, defendant also brought out the fact that Telander was a judge on cross-examination, when the following colloquy occurred:

“Q. [Defense counsel] Well, you are a judge now?
A. [Brian Telander] And a lawyer.
Q. You are a lawyer, but you are still a judge?
A. I think I am both.”

In support of his position, defendant cites to several cases in which a prosecutor testified as a witness. (See People v. Janes (1985), 138 Ill. App. 3d 558; People v. Knox (1967), 90 Ill. App. 2d 149; People v. Nelson (1967), 89 Ill. App. 2d 84.) In each of these cases, the assistant State’s Attorney was actually prosecuting the case in which he also testified as a witness. The Janes decision pointed out that courts are reluctant to allow a prosecutor to testify during the trial due to the possibility that the jury may place more weight on the prosecutor’s testimony than on that of an ordinary witness. Janes, 138 Ill. App. 3d at 568.

Defendant concedes that Telander did not have a prosecutor’s role in defendant’s trial, but argues that the “prestige and prominence” of his position as an associate judge and his former position as chief of the criminal division of the State’s Attorney’s office artificially enhanced his credibility in the eyes of the jury. Defendant points out that the State referred to Telander’s credibility several times during closing argument in order to greatly enhance the credibility of his testimony.

Initially, we note that a prosecutor is allowed a great deal of latitude in giving a closing argument. (People v. Cisewski (1987), 118 Ill. 2d 163, 175; People v. Siefke (1990), 195 Ill. App. 3d 135, 144.) In reviewing allegations of error during closing argument, we must closely examine the arguments of both the State and the defendant in their entirety to place the complained-of comments in their proper context. (Siefke, 195 Ill. App. 3d at 144.) However, it is generally improper for a prosecutor to express his personal belief in the credibility of the witnesses. (People v. Rogers (1988), 172 Ill. App. 3d 471, 476; People v. Valdery (1978), 65 Ill. App. 3d 375, 378.) In addition, courts have determined that a prosecutor should not insinuate that a particular witness is more believable than other witnesses simply due to the witness’ occupation. See Rogers, 172 Ill. App. 3d at 476-77 (police officers); People v. Ford (1983), 113 Ill. App. 3d 659, 662 (same).

Examining the alleged improper comments during the prosecutor’s closing and rebuttal arguments leads us to conclude that no error was committed in this case. Both the prosecutor and defense counsel referred to Brian Telander’s testimony on numerous occasions during their closing arguments. On four occasions, the prosecutor referred to Telander’s current position as a judge. While defendant did not object to any of these references, the court did, on one occasion, tell the prosecutor to “[ajrgue the evidence in this case.” We have carefully reviewed these four references and conclude that it was not reversible error for the prosecutor to make these isolated references in this case. The jury was certainly well aware that Brian Telander was currently employed as a judge, especially given that both sides elicited this information during the direct and cross-examination of Telander.

We have also reviewed defendant’s contention that the prosecutor insinuated that Brian Telander was a more believable witness due to his positions as a prosecutor and judge and find it to be without merit. During closing argument, the prosecutor stated:

“We also have a confession that is taken by the Chief of the Criminal Division then — now judge Telander, who rose to the level — one of the top prosecutors in Cook County and then the top prosecutor in Du Page County 12 years as an attorney.
* * *
[Defense] [counsel's argument that this case hinges on the testimony of a single witness is nonsense. It does not. It is all of the evidence. His Honor will tell you that it is all of the evidence taken in combination. Look at all of the evidence. If this is the kind of a case where we have to rely on one single witness, I would like to have it rely on the testimony of Mr. Telander. That is outstanding, unrebutted evidence of the defendant’s confession. I wish we had that kind of evidence in every criminal case that I try in these criminal courts.”

Unlike the objectionable and erroneous comments in Rogers and Ford, these comments do not improperly bolster the credibility of Telander’s testimony. Instead, these comments merely requested the jury to review all of the evidence in the case, including Telander’s testimony, before reaching a verdict. It was also reasonable for the prosecutor to place a great deal of emphasis on Telander’s testimony given the overall importance of this witness to the State’s case.

For these reasons, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

McLAREN and GEIGER, JJ., concur.


text:
    FIRST MIDWEST BANK OF WAUKEGAN, Special Adm’r of the Estate of Vincent Moore, Deceased, Plaintiff-Appellant, v. JACK DENSON, Defendant-Appellee.
    Second District
    No. 2—89—1319
    Opinion filed November 8, 1990.

      David A. Decker, of Decker & Linn, Ltd., of Waukegan, for appellant.
    Glen E. Amundsen, Victor J. Piekarski, Michael Resis, and Timothy J. Fagan, all of Querrey & Harrow, Ltd., of Chicago, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, First Midwest Bank of Waukegan, as special administrator of the estate of Vincent Moore, filed a wrongful death action against defendant, Jack Denson. The jury determined that Denson was not liable for Moore’s death because Denson was acting in self-defense when he shot Moore. On appeal, plaintiff asserts that the trial court erred by denying its motion for a directed verdict on the issue of defendant’s liability and that the jury verdict was against the manifest weight of the evidence. We affirm.

At the time of Vincent Moore’s death, defendant owned a building with several apartments at 1041 Glenn Drive in North Chicago. Moore and his younger brother were tenants in a basement apartment in the building from January 1987 until mid-September of that year. They moved out because Denson had served them with a five-day notice for failure to pay rent.

Early in October 1987, Denson went out of town on vacation. He returned later that month and went to the building at 1041 Glenn Drive on the evening of October 27 to inspect a water heater. While there, Denson noticed that the locks to the basement apartment he had rented to the Moores and a studio room in the basement were broken. Denson also found three sets of clothing, two sleeping bags, and two metal bars in the studio room. He left two notes in the basement to warn the apparent intruders. Denson put the clothes in plastic bags and then put the bags in a dumpster behind the building.

The next day Denson returned to the building to perform some repairs. He was wearing a holster which contained a revolver. Lee Terry testified that he played basketball with Vincent Moore and Wade Adams that day. Afterwards, Moore persuaded Adams to drive him over to Denson’s apartment building. Adams and Terry waited in the car while Moore went inside the building.

After a few minutes, Terry joined Moore inside the building. Moore and Denson were arguing because Denson had thrown the clothes away. At this time, Moore and Terry were in the basement while Denson was just inside the front door standing near a staircase which led to the basement. Terry and Moore then walked behind the building and saw Moore’s clothes in the dumpster.

Moore and Terry then approached Denson at the front door. To reach the entrance, they had to go up a few stairs. At the top of the staircase, there was a 46-inch landing between the stairs and the front door. Moore and Terry went up the stairs and asked Denson why he had thrown the clothes away. Denson stated in a loud and angry voice that he did not know who owned the clothes at the time he threw them away.

According to Terry, he and Moore then began to walk away. When Terry reached the bottom of the stairs, Denson yelled an obscene phrase. Terry went back up the stairs and asked why Denson had made the remark. Moore walked to a point near the top of the staircase. During this argument, Denson began to talk louder, and Moore put a hand on Terry’s left shoulder. Shortly thereafter, Denson drew his gun. Terry and Moore began to run away. Denson fired a shot which struck Moore, who was four to six feet away from Denson at the time. Terry did not see the gun go off. Moore briefly continued running but then collapsed on the front lawn of the building.

Wade Adams testified that he drove Moore over to Denson’s apartment building on the date in question. About five minutes after Moore went in the building, Terry went in. A couple of minutes later, Adams saw Moore and Terry walk to the back of the building.

Adams then saw Terry and Moore walk over to the entrance to the building. Moore was behind Terry, who stood partially inside the doorway. Moore was on the top step of the stairway. Adams heard some loud conversation between Terry and the person inside the building. Moore was not taking part in the conversation. After about a minute, Moore told Terry to forget about it, that they should leave and go home. Terry then started to walk down the stairs.

According to Adams, he then heard the person inside the building yell some cuss words at Terry. Terry started back up the steps. Moore again told Terry to just forget about it. At the time, Terry was on the second step from the top, and Moore had one foot on the top step and one on the landing. Adams then saw the barrel of a gun appear from inside the doorway. A shot was fired which struck Moore. Moore ran down the steps but collapsed on the front lawn. Neither Moore nor Terry ever charged toward the man in the doorway. Adams then ran over to Moore. He saw Denson start to raise the gun up toward them, although Denson did not raise it all the way up.

Jack Denson testified that when Vincent Moore first entered the apartment building on the day of the shooting, he asked about his clothes. Denson thought Moore might have left some clothes in the basement apartment when he moved out. When Denson saw Moore go into the studio room, however, he realized he had thrown Moore’s clothes away. Denson told Moore that he had thrown the clothes in the dumpster, and Moore became angry. Denson told Moore that the studio room was not living quarters and told him to leave. Moore stated that he was not going anywhere.

Lee Terry joined Moore in the basement. The two of them walked to the rear of the apartment building. They then walked up the front steps and approached Denson, who was performing repairs on the lock of the front door. Terry asked why Denson had thrown Moore’s clothes away. Terry was angry and started to argue with Denson. According to Denson, Terry then removed some keys from the front door lock and threw them inside the foyer after Denson asked him to put them back in the lock. Terry admitted in his testimony that he removed the keys from the lock but stated that he merely handed them to Denson.

Denson testified that he then asked Moore and Terry to leave. Moore either grabbed or pushed Terry’s left shoulder and Denson started to close.the door. Terry kicked back the door that Denson was trying to close; Terry and Moore then charged at Denson. Denson moved backwards slightly and was only about a foot from the staircase leading to the basement. Denson was unable to escape to his left or right because there was an occupied apartment in one direction and a vacant apartment in the other; additionally, the door Terry kicked out of Denson’s hands blocked potential entry into the vacant apartment. Denson fired a shot from his revolver because he was afraid Terry and Moore would knock him down the stairs. At the time he fired the shot, Moore was within two feet of him.

Valerie Evans, Denson’s stepdaughter, lived in an apartment at 1041 Glenn Drive at the time of the shooting. Evans and Denson both testified that after the shot was fired, Evans came out of her apartment and asked what had happened. They also testified that Denson told her he was trying to prevent the others from pushing him down the stairs. According to Evans, Denson also stated he was just trying to scare them. Denson denied that he said this. Evans further testified that, after the shooting, she ran over to Moore, who was on the ground. She heard Moore say he was sorry. Evans stated during her testimony that Moore was a friend of hers.

Rodney Pitts, Denson’s stepgrandson, testified that he spoke to Denson after the shooting. Denson told Pitts he did not mean to shoot Moore. Defendant’s attorney impeached Denson’s trial testimony with his deposition testimony that he did not intend to pull the trigger and that Moore was not angry on the day of the shooting. The evidence showed that Moore was 21 at the time he was killed. Denson was 67 years old at this time, and Terry was in his early twenties. Denson was 6 feet 3 inches tall and weighed 250 pounds; Moore was also 6 feet 3 inches and weighed about 195 pounds; Terry was 5 feet 4 inches and weighed about 180 pounds.

Dr. Larry Blum, a forensic pathologist, testified that he performed an autopsy upon Vincent Moore. Dr. Blum testified that Moore had suffered a gunshot wound in the upper back portion of his left arm. The bullet then exited the arm and entered Moore’s chest. It passed through Moore’s lungs and the left ventricle and right atrium of his heart. In Blum’s opinion, the bullet traveled in a straight line and was not deflected while passing through Moore’s body. The trajectory of the bullet was downward. Blum stated that the cause of death was internal hemorrhaging resulting from the bullet wound. Blum also testified that he believed Moore was over two feet away from Denson at the time of the shooting because he found no gunshot residue on Moore’s corpse during the autopsy. Blum testified that gunshot residue is generally not found if the victim is standing more than two feet from the gun, although this can vary.

Testimony was presented from various witnesses indicating that both Denson and Moore had reputations as peaceful individuals. At the close of the evidence, plaintiff’s motion for a directed verdict on the issue of Denson’s liability was denied. The jury determined that Denson was not liable, and, in the response to a special interrogatory, the jury found that, at the time of the shooting, Denson reasonably believed the use of deadly force was necessary to prevent death or great bodily harm to himself.

A jury verdict is against the manifest weight of the evidence if the opposite conclusion is clearly evident or the findings of the jury are unreasonable, arbitrary, and not based upon the evidence. (Netzel v. United Parcel Service, Inc. (1989), 181 Ill. App. 3d 808, 812.) The credibility of the witnesses and the weight to be accorded their testimony are matters to be resolved by the jury. (Netzel, 181 Ill. App. 3d at 815.) Thus, in determining whether a new trial is warranted on the basis that a jury verdict was against the manifest weight of the evidence, neither the trial court nor a reviewing court should act as a second jury by considering the nuances of the evidence or the credibility and demeanor of the witnesses. 181 Ill. App. 3d at 812-13.

Section 7 — 1 of the Criminal Code of 1961 concerns use of force in defense of person and states as follows:

“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.” (Ill. Rev. Stat. 1989, ch. 38, par. 7 — 1.)

The following factors will be considered in determining whether an individual acted in self-defense: (1) whether that individual was the aggressor; (2) whether the danger of harm was a present one; (3) whether unlawful force, either criminal or tortious, was threatened; (4) whether the individual actually believed that the danger existed, that his or her use of force was necessary to avoid the danger, and that the type and amount of force used was necessary; and (5) whether the individual’s belief in each of the above aspects was reasonable even if mistaken. (People v. Everette (September Term 1990), No. 69351, slip op. at 7.) The issue of whether a killing is justified because of self-defense is a factual question to be resolved by the jury. People v. Jordan (1960), 18 Ill. 2d 489, 492.

Although section 7 — 1 is a criminal statute and Everette and Jordan are criminal cases, it is well established that the law of self-defense applies in both criminal and civil cases. In Ewurs v. Pakenham (1972), 8 Ill. App. 3d 733, the court quoted that portion of section 7 — 1 which states that an individual may use force intended to cause death or great bodily harm only if the individual reasonably believes such force is necessary to prevent death or great bodily harm to himself or another and then said this statement of the law applied to civil cases as well. (Ewurs, 8 Ill. App. 3d at 736.) In Winn v. Inman (1983), 119 Ill. App. 3d 836, the court held that a certain instruction offered by plaintiff concerning the question of self-defense should have been given. (Winn, 119 Ill. App. 3d at 841.) The court in Blackburn v. Johnson (1989), 187 Ill. App. 3d 557, cited Winn and Ewurs in support of its conclusion that a jury in a civil case was properly instructed on the question of self-defense. Blackburn, 187 Ill. App. 3d at 563-64.

Furthermore, in another civil case, Schnepf v. Grubb (1970), 125 Ill. App. 2d 432, the court mentioned section 7 — 1 and several criminal cases in its discussion of the law of self-defense. (See Schnepf 125 Ill. App. 2d at 435.) Thus, we believe it is clear that criminal cases and statutes pertaining to self-defense are persuasive authority in civil cases in which this affirmative defense is raised.

In Schnepf as in the case at bar, the jury concluded that defendant acted in self-defense when he shot and killed an unarmed man. About a week prior to the shooting, defendant, a 76-year-old police officer, was involved in an altercation with decedent, age 19, and decedent’s brother, after he stopped decedent’s car. According to defendant’s testimony, decedent and his brother were the aggressors. The brother grabbed defendant’s billy club and struck him in the face. Decedent pushed and shoved defendant, pushing him into a fence at one point. Defendant suffered a broken nose and other injuries during this altercation. (Schnepf 125 Ill. App. 2d at 435.) Other testimony revealed that decedent had a poor reputation in the community for peacefulness. 125 Ill. App. 2d at 437.

On the evening of the shooting, defendant and two other officers stopped a car containing decedent and two companions. Defendant and his companions left the car and walked toward another officer. Decedent then turned away and started to move quickly toward defendant. Defendant warned decedent three times to stop, but he continued to approach defendant. When decedent moved within six feet, defendant fired the shot which killed him. 125 Ill. App. 2d at 437.

The court in Schnepf concluded that the jury verdict was not against the manifest weight of the evidence, determining that the jury could have rationally felt that defendant reasonably believed he had to use potentially lethal force to prevent severe bodily injury to himself. (125 Ill. App. 2d at 438.) The court cited the differences in age and physical strength between defendant and decedent, decedent rapidly approaching defendant for no apparent reason while ignoring warnings to stop, and the prior altercation between the two as factors which could have led defendant to reasonably hold such a belief. 125 Ill. App. 2d at 438.

In the case at bar, as in Schnepf there is a large difference in age between defendant and decedent. Plaintiff emphasizes the fact that Denson was bigger than Moore, ignoring the fact that Terry, who was also quite young, was also rushing toward Denson, according to Den-son’s testimony. Another similarity is that, according to Denson, Moore and Terry were rushing toward him for no apparent reason, as decedent was in Schnepf.

There had been no prior altercation between Denson and Moore as there had been between defendant and decedent in Schnepf. Moore, however, had apparently illegally broken into Denson’s building and stayed there, another circumstance which could have supported a belief that Moore posed a threat to him. Additionally, a factor present in this case that was not present in Schnepf is that a danger existed that if Terry and Moore had come into contact with Denson, they could have easily knocked him down a flight of stairs.

As we have previously stated, it was the function of the jury to determine the credibility of the witnesses. The jury apparently believed Denson’s version of events was more credible than that of Terry or Evans. The jury could have rationally concluded from Den-son’s testimony and other evidence that Denson reasonably believed lethal force was necessary to prevent Terry and Moore from knocking him down the stairs and causing him serious bodily injury. Therefore, the verdict was not against the manifest weight of the evidence.

Plaintiff also contends it was entitled to a directed verdict at the close of the evidence on the issue of Denson’s liability. A motion for a directed verdict will only be granted if all the evidence, when viewed in a light most favorable to the opponent, favors the movant so overwhelmingly that no contrary verdict could stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510; Netzel v. United Parcel Service, Inc. (1989), 181 Ill. App. 3d 808, 817.) Since we have determined that the verdict was not against the manifest weight of the evidence, it is apparent that the PedricJc standard cannot be met, and plaintiff was not entitled to a directed verdict. See Netzel, 181 Ill. App. 3d at 817.

Accordingly, for the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

REINHARD and WOODWARD, JJ., concur.


author: JUSTICE REINHARD

text:
    MOR-WOOD CONTRACTORS, INC., Plaintiff-Appellee, v. CRAIG OTTINGER et al., Defendants-Appellants.
    Second District
    No. 2—89—1320
    Opinion filed November 8, 1990.

      Emalfarb, Swan & Bain, of Highland Park (Peter G. Swan, of counsel), for appellants.
    Charles R. Purcell, of Chicago, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

After a bench trial conducted by the circuit court of Lake County, plaintiff, Mor-Wood Construction, Inc. (Mor-Wood), was awarded $30,170.50 under the theory of quantum meruit for the reasonable value of services it performed in partially constructing a home for defendants, Craig and Heike Ottinger (the Ottingers).

The Ottingers now appeal from the judgment entered below, and they raise four issues on appeal: (1) whether the trial court erred in determining that the parties’ conduct evidenced a.rescission of the contract rather than a unilateral abandonment on the part of MorWood; (2) whether there was sufficient evidence of the reasonable value of the work performed by Mor-Wood to support an award under quantum meruit; (3) whether the trial court erred in failing to apply the actual cost measure of recovery; and (4) whether the trial court’s calculation of damages failed to reflect credits due the Ottingers.

The dispute between the parties arose after they entered into a contract whereby Mor-Wood was to construct a single-family home for the Ottingers. The action below commenced with Mor-Wood’s filing of a three-count complaint against the Ottingers. Count I sought foreclosure of a mechanic’s lien; count II alleged a breach of contract; and count III sought recovery under quantum meruit. The Ottingers filed a two-count counterclaim against Mor-Wood. Count I of the counterclaim sought recovery for Mor-Wood’s failure to complete construction of the home and for defective workmanship; count II sought recovery under a theory of fraudulent inducement. The Ottingers also filed a third-party complaint against Frank Morvay and Tim Morvay, officers of Mor-Wood, alleging fraudulent inducement. The Ottingers voluntarily dismissed the third-party complaint and count II of the counterclaim before judgment.

The facts adduced at trial can be summarized as follows. In June 1987, the Ottingers purchased an undeveloped parcel of property in the Village of Hawthorn Woods (the Village). On June 30, 1987, J. & W. Trenching Service, Inc., filed with the Lake County Health Department (the Health Department) an application for a permit to build a septic system for the property on the Ottingers’ behalf. The site plan accompanying the application, which was based on a plan originally made for the prior owner of the property, showed a proposed septic field to the west of the planned home. The site plan also showed a proposed drainage swale to be cut on the southwest portion of the lot. The Health Department issued the Ottingers a septic permit on approximately July 21,1987, based on J. & W.’s application.

In July 1987, the Ottingers retained an architect to draw up plans for the construction of a single-family home on the property. The architect’s site plan shows that the house was to be set slightly counterclockwise on the lot instead of being perfectly square within it. The site plan also shows that the lot was to be graded to create a valley or swale sloping away from the southwest corner of the home.

The Ottingers and Mor-Wood began negotiations for a contract for construction of a house on the property. The Ottingers gave MorWood three sets of the architect’s plans and the application for the septic permit on August 17, 1987. On August 30, 1987, the parties entered into a contract under which Mor-Wood was to completely grade the property and construct the home pursuant to the architect’s plans and specifications for a price of $152,500. The work was to be completed by February 1, 1988. Two of the contract’s provisions are relevant here. Section 9.4 states:

“If the Contractor fails to correct defective Work or persistently fails to carry out the Work in accordance with the Contract Documents, the Owner, by a written order, may order the Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated.”

Section 20.2 provides:

“If the Contractor defaults or persistently fails or neglects to carry out the Work in accordance with the Contract Documents or fails to perform any provision of the Contract, the Owner, after seven days’ written notice to the Contractor and without prejudice to any other remedy he may have, may make good such deficiencies and may deduct the cost thereof *** from the payment then or thereafter due the Contractor or, at his option *** may terminate the Contract and take possession of the site and of all materials, equipment, tools, and construction equipment and machinery thereon owned by the Contractor and may finish the Work by whatever method he may deem expedient, and if the unpaid balance of the Contract Sum exceeds the expense of finishing the Work, such excess shall be paid to the Contractor, but if such expense exceeds such unpaid balance, the Contractor shall pay the difference to the owner.”

Mor-Wood retained Lake-Cook Trenching as a subcontractor for the project, and Lake-Cook applied to the Health Department for a new septic permit on September 21, 1987. Accompanying the application was a site plan showing the septic field to the south of the home instead of to its west, and the plan did not reveal a swale as indicated on the architect’s plans. The planned home was depicted as sitting square within the lot rather than being turned slightly counterclockwise. The permit was issued on October 21, 1987. Tim Morvay testified that, while the lot was being graded, Craig Ottinger insisted that the swale be cut even though Morvay indicated that it would traverse the septic area. The excavator who cut the swale testified that it was cut at Ottinger’s insistence and over Tim Morvay’s objection. Morvay testified that the Health Department was then called to examine the site to determine if the swale cut necessitated reevaluation of the septic field.

At some point thereafter, a Health Department inspector visited the jobsite, and, as a result of his inspection, the inspector sent a letter to the Ottingers on November 6, 1987, stating that the septic permits were revoked as of that day. The letter gave the following reasons for revocation: (1) soil in the lot had been damaged by the traffic of heavy equipment; (2) unacceptable fill had been placed and compacted in the septic area; (3) the swale as cut interfered with septic lines and reduced the available septic absorption area; and (4) the house had been placed 10 feet south of the location indicated on the plans submitted to the Health Department, further reducing the available septic area. Tim Morvay testified that, after he learned of the letter, he discussed the septic problems with Ottinger and ordered a new soil test to be taken.

On November 17, Tim Morvay met with Craig Ottinger to pick up a check for partial payment under the contract, and Ottinger issued a check to Mor-Wood in the amount of $52,431. Sometime on November 17, the Village posted a “stop work” order on the Ottingers’ property because of the revoked septic permits. Later that day, Ottinger discovered the stop-work order on the property, and so he stopped payment on the check. Ottinger testified that he telephoned Frank Morvay to inform him that he was stopping payment of the check, but he denied firing Mor-Wood. Frank Morvay testified that Ottinger was “very upset” when he called on November 17. Morvay was told that Ottinger’s attorney would contact him, and Ottinger further told him, “[Yjou’re fired, I don’t want you on the job any more and that’s it.” Both Frank and Tim Morvay denied that they knew the stop-work order had been posted when the $52,431 check was collected from Ottinger.

Later on November 17, Ottinger met with attorney Lawrence Rochell to discuss the situation. At trial, Rochell recounted what he was told by Ottinger:

“[H]e told me that he had been upset for some period of time because he had been requesting copies of subcontractor bills and that the builder would not give them to him. He was upset because the builder had asked him for a check toward construction in the face of this work stoppage order and he gave that check, then he received the letter so he stopped payment on that check, and he wanted to be placed back to where he was originally and finish the job himself and have the builder leave the project.”

The next day, Rochell telephoned Rick Ament, Mor-Wood’s attorney. Rochell testified that, in his conversation with Ament, he stated that “there were many areas of negligence that we believed MorWood Contractors performed resulting in this work stoppage order and we have to get together and talk about it.” Rochell then sent a letter to Ament restating his client’s concern that the Morvays had attempted to secure a check from Ottinger despite their alleged knowledge that a stop-work order had been posted. The letter indicated that Mor-Wood had failed to give the Ottingers éopies of subcontractor’s affidavits as requested and that Mor-Wood’s negligence led to the stop-work order issued after revocation of the septic permit. The letter stated that the Ottingers were exercising their rights under article 20 of the contract by demanding that Mor-Wood “stop any further work at the project site.” The letter closed by stating:

“Upon a review of the enclosed material and comparing it to the contract executed by the parties, I believe you will agree that a recission [sic] of this contract would be in your client’s best interests.
I am happy to discuss this further.”

Rochell testified that, in drafting the letter, he “didn’t talk about termination” because he wanted to avoid litigation for his client. It was Rochell’s understanding that the problem with the septic field might render the home uninhabitable for several years and that damages could be “theoretically substantial.” As a result, Rochell felt that Mor-Wood would want to talk to him about “placing everything back to where they were before the contract was entered into.”

Mor-Wood’s workers left the jobsite on or about November 19, and all of Mor-Wood’s equipment was also removed at this time. The parties and their attorneys did not meet again until December 8, 1987. At the meeting, each party contended that the problem with the septic field was caused by the other party. The meeting concluded with each side submitting a list of damages to the other.

The Ottingers subsequently completed construction of the home without Mor-Wood’s involvement. They retained RAF & Associates to redesign the septic field. The septic field was only slightly modified in order to receive the Health Department’s approval. The field remained south of the home in the same general area, but it was extended somewhat to the west. The septic lines south of the home were shortened to allow for isolation of the swale cut. A percolation test indicated that the soil in the septic area had not been damaged, and no new fill was required. George G. Carlberg, who had been employed as a carpenter for 15 years by George A. Carlberg & Sons Company, testified that he was retained by the Ottingers to finish the framing work on the house. Carlberg estimated that 75% of the rough work and one-third of the full carpentry work had already been completed before he began working on the house. Carlberg stated that the prior work on the house constituted “a well constructed job.”

Both parties testified as to expenses they incurred in the project. Gloria Morvay, Frank Morvay’s wife and Tim Morvay’s mother, testified that she kept Mor-Wood’s books. Gloria Morvay testified regarding her entries in three different accounting documents: a ledger of the Ottingers’ account with Mor-Wood; a calculation of the amount of the mechanic’s lien made November 9, 1987; and a “Re Cap” of Ottingers’ account through November 30, 1987. The ledger showed that, as of November 21, Mor-Wood had expended $57,674.50 on the Ottinger construction project. An examination of all three documents reveals that this amount disbursed equaled the total of the following ledger entries:

This total does not include $160 for a well permit, $528.92 for a school board tax, and $5,300 to Prate Roofing, all of which was paid by the Ottingers. Moreover, the total reflects a credit of $157.77 for returned material, and other expenditures for returned material was credited against the amount owed to Wolohan Lumber. The total of $57,674.50 was only the sum of monies expended on the project; it did not include approximately $13,000 in expenses incurred by Mor-Wood which had not yet been paid.

Craig Ottinger presented copies of various checks, invoices and receipts incurred in the process of completing construction on the house. Ottinger claimed that these costs totaled $157,864.59, plus an additional $4,500 in rent expense paid after February 1, 1988, during the home’s construction.

At the close of Mor-Wood’s case, the trial court dismissed count I of Mor-Wood’s complaint seeking foreclosure of its mechanic’s lien for failure to comply with the Mechanics’ Liens Act (Ill. Rev. Stat. 1987, ch. 82, par. 1 et seq.). After the close of all evidence, the trial court made the following findings which are relevant here:

“3) Plaintiff’s work up to the posting of the stop work order on or about November 17, 1987 was done in a good workmanlike fashion and in substantial compliance with the contract.
4) The septic field problem which precipitated the stop work order was not a substantial defect or departure from the contract such that Plaintiff was in default thereof, or such that Defendant thereby had cause to terminate the contract.
5) Defendant’s clear intent by his attorney’s letter to Plaintiff’s attorney on or about the 18th of November, 1987 (Plaintiff’s Exhibit No. 16) was to terminate Plaintiff from the job.
6) Plaintiff failed to preserve its rights to claim wrongful termination by failing to bring itself within Sec. 5 of the Illinois Mechanics [sic] Lien [sic] Law.
7) Plaintiff’s removal of tools and building materials from the job site [sic] in the face of Defendant’s termination letter (Plaintiff’s Exhibit No. 16) operates as a rescission of the contract.
8) Defendant would be unjustly enriched if allowed to keep Plaintiff’s work without compensation to Plaintiff.
9) There is adequate evidence in the record to support an award to Plaintiff of the reasonable value of the work performed by referring to the contract price, the testimony of George Carlberg that the house was basically well-constructed, had 75% of rough work and Vs of total carpentry work done, but no electricity and only minor heating and plumbing work done, and the testimony of Gloria Morvay as to what bills had been paid. The reasonable value of Plaintiff’s work up to November 18, 1987 is $57,674.60.
10) Defendant is entitled to credits of $27,504 [for payments already made to Mor-Wood].
11) Judgement should enter for Plaintiff in the amount of $30,170.50.”

The court so entered judgment on count III of Mor-Wood’s complaint and dismissed all other counts and the counterclaim. Mor-Wood filed a motion seeking to increase the award of damages based on the omission of approximately $13,000 in pending bills, but this motion was withdrawn on November 22, 1989. The Ottingers then filed this appeal.

The first argument raised on appeal by the Ottingers is that the November 18, 1987, letter sent by their attorney, Rochell, to MorWood’s attorney, Ament, did not constitute either a termination of Mor-Wood or a rescission of the contract. The trial court apparently focused on Rochell’s demand that Mor-Wood “stop any further work at the project site” and the statement that “recission [sic] of the contract would be in [Mor-Wood’s] best interests.” The Ottingers, on the other hand, focus on the closing line of the letter, which states that Rochell would be “happy to discuss this further.” The Ottingers contend that the plain language of the letter does not indicate that they intended to terminate Mor-Wood or rescind the contract.

The letter makes it clear that the Ottingers’ demand that MorWood cease work on the project was made pursuant to article 20 of the contract. This provision deals with “TERMINATION OF THE CONTRACT.” The Ottingers argue, however, that while section 20.2 does deal with termination, it also separately empowered the Ottingers to “make good” deficiencies in Mor-Wood’s work. Thus, the Ottingers contend, Rochell’s letter was merely notifying Mor-Wood that the Ottingers would exercise this right under the contract.

This interpretation of Rochell’s letter is untenable for two reasons. First, some of the defects noted in Rochell’s letter pertained to Mor-Wood’s failure to provide the Ottingers with subcontractors’ affidavits, a deficiency the Ottingers could not “make good” themselves. Second, the letter never expressed the Ottingers’ intention to “make good” any deficiencies in Mor-Wood’s performance. Instead, the letter demanded that Mor-Wood stop work completely, a demand which is more consistent with outright termination. If the Ottingers had merely wished to order Mor-Wood to cease work while deficiencies in its performance were remedied, then they could have done so pursuant to section 9.4 without terminating the contract. We believe that the reference to article 20 of the contract can only be interpreted as a reference to the Ottingers’ authority to terminate the contract, and so we believe that the trial court correctly determined that Rochell’s letter constituted an attempt to terminate the contract on behalf of the Ottingers.

The Ottingers argue that we must determine the intent of Rochell’s letter with reference only to the plain words expressed therein and without examining the other testimony presented. As noted above, we believe that the words of the letter evidence an attempt to terminate the contract. Therefore, it is unnecessary to consider the other evidence.

The legal ramifications of this termination are clouded by the fact that the count of Mor-Wood’s complaint seeking damages for wrongful termination was unsuccessful because of Mor-Wood’s failure to comply with the Mechanics’ Liens Act. As a result, the issue here is not whether termination was proper. The issue, which arises in the context of the Ottingers’ counterclaim, is whether Mor-Wood breached the contract. The Ottingers frame the issue as one of whether Mor-Wood “abandoned” the contract as opposed to the trial court’s finding of a rescission thereof.

Generally, rescission means the cancelling of a contract so as to restore the parties to their initial status. (Puskar v. Hughes (1989), 179 Ill. App. 3d 522, 528, 533 N.E.2d 962, 966.) Rescission can arise in two settings. First, rescission of a contract can occur by mutual agreement of the parties. (Chicago Limousine Service, Inc. v. Hartigan Cadillac, Inc. (1989), 191 Ill. App. 3d 886, 896, 548 N.E.2d 386, 391.) Second, rescission is also an equitable remedy which can be afforded to one party under a contract because of the other party’s fraud (Douglass v. Wones (1983), 120 Ill. App. 3d 36, 47-48, 458 N.E.2d 514, 523) or substantial nonperformance or breach (Eager v. Berke (1957), 11 Ill. 2d 50, 54, 142 N.E.2d 36, 38-39). A party seeking rescission must restore the other party to the status quo existing at the time the contract was made. Puskar, 179 Ill. App. 3d at 528, 533 N.E.2d at 966.

Although the terms “abandonment” and “rescission” are sometimes used interchangeably (see Kalman v. Bertacchi (1980), 80 Ill. App. 3d 530, 533, 400 N.E.2d 507, 510), it has been stated that a distinction should be drawn:

“Where, upon a material breach by one party, the other party treats the breach as total by refusing to perform further and by maintaining an action for damages for such total breach, he is said to abandon further performance, but such abandonment is not technically a rescission of the contract, but a mere acceptance of a situation created by the wrongdoing of the adverse party.” 17 Am. Jur. 2d Contracts §484 (1964).

In the instant case, the Ottingers’ use of the word “abandonment” appears to mean unilateral abandonment or, in other words, a breach of Mor-Wood’s obligation to perform under the contract. The Ottingers argue that Mor-Wood’s removal of equipment from the jobsite and the failure to return constitutes “abandonment” or a breach of the contract. The trial court, on the other hand, found that the Ottingers’ termination of Mor-Wood by the November 18 letter, combined with MorWood’s evacuation of the jobsite, effectuated a rescission of the contract.

The trial court’s determination is supported by the record. As noted above, the Ottingers terminated Mor-Wood and demanded that Mor-Wood stop working on the project. The letter from the Ottingers’ attorney went so far as to suggest that rescission would be in MorWood’s best interests. This alone cannot constitute rescission, however, because cancellation or rescission of a contract by mutual consent requires more than the mere communication of intent from one party to another. (See Copley v. Pekin Insurance Co. (1986), 111 Ill. 2d 76, 86, 488 N.E.2d 1004, 1009.) The Illinois Supreme Court has stated:

“Although one party to a contract may not alone rescind it, he may, nevertheless, by neglecting or refusing to perform it on his part, place it in the power of the other party, where he is not also derelict, to avoid it, or not, at his pleasure. The breach of one party may, in such case, be treated by the other as an abandonment of the contract, authorizing him, if he choose to do so, to disaffirm it; and thus, the assent of both parties to the rescisión of the contract is sufficiently manifested ***.” Bannister v. Read (1844), 6 Ill. 92, 99-100.

Thus, based on the trial court’s finding that Mor-Wood did not breach the contract, if any party here abandoned the contract, it was the Ottingers. In any event, it is clear that the trial court correctly determined that the contract was rescinded. A proposal to rescind may become binding if it is accepted before it is withdrawn (see 17 Am. Jur. 2d Contracts §490 (1964)), and rescission of a contract can be implied from the course of the parties’ conduct (see Kalman, 80 Ill. App. 3d at 533, 400 N.E.2d at 510). Here, the trial court found that Mor-Wood’s decision to leave the jobsite after receiving the termination letter from the Ottingers’ attorney constituted an effective rescission of the contract. The evidence presented at trial amply supports this conclusion.

Mor-Wood elected to treat the contract as rescinded and to seek recovery under quantum meruit for the reasonable value of the services it performed for the Ottingers before the contract was rescinded. Where one party repudiates a contract and refuses to be bound by it, the injured party may treat the contract as rescinded and recover upon quantum meruit so far as he has performed. (Lake Shore & Michigan Southern Ry. Co. v. Richards (1894), 152 Ill. 59, 80, 38 N.E. 773.) Here, the rescission at issue was mutual, so there is no injured party per se as there might be in the case of a breached contract. However, “[wjhere one of the parties to a contract, while the contract is still executory, directs the other not to proceed further with the performance thereof, the latter may bring an action for damages for the breach of the contract or an action upon quantum meruit for the value of the services rendered and any materials furnished.” (17 Am. Jur. 2d Contracts §519 (1964).) Thus, the trial court correctly determined that Mor-Wood could recover under quantum meruit.

The Ottingers’ second argument deals with the proper amount of Mor-Wood’s recovery. The proper measure of recovery under quantum meruit is the reasonable value of plaintiff’s services. (Ellis v. Photo America Corp. (1983), 113 Ill. App. 3d 493, 500, 447 N.E.2d 852, 857.) The Ottingers contend that Mor-Wood did not present sufficient evidence of reasonable value. We disagree for three reasons.

First, Gloria Morvay, Mor-Wood’s bookkeeper, testified regarding expenditures made by Mor-Wood on the Ottinger project, and the portion of the ledger containing entries of these expenditures was introduced into evidence. This evidence, which was not objected to by the Ottingers, quantifies the expenditures made by Mor-Wood on the project. If anything, the $57,674.50 amount reflected in the ledger understates Mor-Wood’s total expenses for the project because it represents only those expenses already paid but not those which were yet to be paid. Uncontroverted testimony under oath regarding amounts paid is properly admissible as proof of damages (Saunders v. Wilson (1969), 114 Ill. App. 2d 380, 382, 253 N.E.2d 89), and where such testimony is not inherently improbable it cannot be disregarded (Elliot v. Villa Park Trust & Savings Bank (1978), 63 Ill. App. 3d 714, 717, 380 N.E.2d 507, 510).

Second, George Carlberg, the contractor who completed the project, testified that Mor-Wood’s work was “well constructed” and approximately one-third complete. Consideration of the workmanlike manner of construction is proper when determining the amount of a quantum meruit award. See Hirz v. Lee (1965), 64 Ill. App. 2d 455, 212 N.E.2d 498 (abstract of opinion).

Finally, the fact that Mor-Wood expended an amount approximately equal to one-third of the contract price to complete one-third of the construction provides an objective indication of the reasonableness of the quantum meruit award. Reference to contractual terms is not an improper method of measuring the reasonable value of a plaintiff’s services for purposes of an award under quantum meruit. (See Ellis, 113 Ill. App. 3d at 500-01, 447 N.E.2d at 857.) The determination of what constitutes a reasonable award under quantum meruit may be difficult and often depends upon the peculiar facts of the individual case. (Elliot, 63 Ill. App. 3d at 717-18, 507 N.E.2d at 510.) The finding of a trial court, sitting without a jury, as to damages will not be disturbed on review unless it is manifestly erroneous. (Poeta v. Sheridan Point Shopping Plaza Partnership (1990), 195 Ill. App. 3d 852, 858, 552 N.E.2d 1248, 1252.) We do not believe that the trial court’s finding with regard to the reasonable value of Mor-Wood’s services is manifestly erroneous.

We note that the Ottingers also appear to argue in a one-paragraph statement in their brief that the award under quantum meruit should not include the services of Lake-Cook Trenching and Ryan Excavating because these expenditures paid by Mor-Wood caused some of the problems with the septic system leading to the stop-work order. This contention is meritless because the trial court, faced with conflicting evidence as to whether this work was done at Craig Ottinger’s own direction, found that Mor-Wood was entitled to recover the value of these services.

The Ottingers’ next contention is that the trial court erred by failing to apply the “actual cost” measure of recovery, which would allow the Ottingers to recover under their counterclaim for the actual cost of expenditures they made in completing construction of the home. However, the trial court found that Mor-Wood’s work on the project prior to the posting of the stop-work order was performed in a good, workmanlike manner and that the problem with the septic field did not constitute a breach on Mor-Wood’s part. Thus, the court clearly determined that the Ottingers could not recover for breach of contract and awarded the Ottingers no damages. Having failed to establish a basis for recovery on their counterclaim, the Ottingers’ argument regarding the proper measure of recovery is irrelevant.

.Finally, the Ottingers maintain that the trial court’s computation of damages failed to account for credits due the Ottingers for unused and returned materials ($5,940.62) and a roofing bill which was actually paid by the Ottingers ($5,300). The Ottingers correctly note that the trial court’s calculation of the reasonable value of Mor-Wood’s services began with the amount of $57,674.50, which is the total of Mor-Wood’s expenditures on the Ottinger project as evidenced by the ledger and the testimony of Gloria Morvay. The Ottingers apparently assume that this amount improperly reflects the expenditures noted above, and they ask us to reduce Mor-Wood’s award accordingly.

As demonstrated in the calculations made above, however, the $57,674.50 total does not reflect any of the items which the Ottingers assume it does. Credits for returned materials were either deducted from the calculation of expenditures or credited against the amounts owed to various subcontractors or suppliers arising out of the Ottinger project. There is no support whatsoever in the record to support the Ottingers’ argument that they were’not properly credited for expenditures made by them or for materials which were ultimately returned by Mor-Wood.

The judgment of the circuit court is, therefore, affirmed.

Affirmed.

WOODWARD and DUNN, JJ., concur.