text:
    (No. 78-CC-1103
    Gerard E. Tanner, Claimant, v. The Board of Trustees of the University of Illinois, Respondent.

      Opinion filed May 9, 1989.

      Opinion upon Denial of Petition for Rehearing filed December 7, 1990.

    Erwin, Kirtley & Lietz, Ltd., for Claimant.
    Thomas Mamer & Haughey, for Respondent.
   OPINION

Raucci, J.

Claimant brings this action for an alleged breach of contract against the University of Illinois because of the failure of the University to grant him the degree of Doctor of Philosophy (Ph.D.).

Claimant was accepted in September of 1971 as a graduate student in the field of Management Science. The road to the Ph.D. degree encompassed (1) the successful completion of course work, (2) completion of preliminary examinations, and (3) preparation and defense of a thesis topic and dissertation.

Claimant maintains that he successfully completed all three (3) stages. The Respondent maintains that he successfully completed only the first stage.

The required course work was completed by Claimant in January 1973. The usual comprehensive examination of course work was waived. Graduate student handbooks during the years Claimant was in this program refer to both written and oral preliminary examinations as necessary to obtain the degree of Doctor of Philosophy in business. Claimant has been required to take both a written and oral preliminary examination. Oral examinations, as a part of the preliminary examinations, have always been required of students in Management Science.

The purpose of a preliminary examination committee is to determine whether the student has demonstrated his competence to be admitted to candidacy for the dissertation phase of the Ph.D. degree program. In 1971, in the Management Science Group, the preliminary examination consisted of both written and oral examinations before the preliminary examination committee.

The Claimant selected his preliminary examination committee consisting of Professors Marathe, Rom and Roberts and the committee came together informally about December of 1972. Of the three professors, only Dr. Roberts was still at the University of Illinois at the time of trial and is currently a professor in the Department of Business Administration. The preliminary examination committee gave the Claimant a written preliminary examination in December 1972 and March 1973. The members of his preliminary examination committee testified that he did not do well on this examination; however, since it was not a pass/fail examination, the Claimant was allowed to continue to the oral portion of the examination process.

During attempts to schedule the oral examination, Claimant was working in Chicago, pursuant to permission from the graduate school, and was not available most of the time. Professor Roberts was also out of town during the summer of 1973.

The first oral examination was held August 25,1973. Claimant could not answer some of the questions and testified that his mind went blank. Claimant did not feel he had performed satisfactorily and neither did his preliminary examination committee. However, his committee did not fail him and decided to give him another opportunity because they could not pass him. At the second oral examination held in October 1973, Claimant did even worse than on the first oral examination. Claimant did not perform well enough to be passed by the committee. The examination was again adjourned and the committee decided to give him yet another opportunity to show he was qualified. At the second oral examination, Claimant claimed that Professor Roberts mistreated him and acted in a bizarre fashion. The professors who were present and made up the preliminary committee denied these accusations.

The preliminary examination committee still did not fail Claimant, but decided to give him another chance. Claimant was offered an alternative to another oral examination. He could prepare a paper and present it orally on either one of two selected topics before a graduate seminar in Management Science. Claimant refused this offer.

Claimant believed that Professor Roberts was hindering his progress and complained to Professor Uhl, department head, and requested the removal of Professor Roberts from the preliminary examination committee. Professor Roberts was removed and replaced with Professor Zangwell, who was apparently satisfactory to the Claimant.

The Respondent continued to exhaustively cooperate with Claimant in the desire to allow him to complete his examinations. Recause of Claimant’s attitude, the relationship between him and Respondent deteriorated to the point where Claimant filed a lawsuit, despite numerous efforts by Respondent to accommodate Claimant.

The examination committee reported to the graduate college October 21,1975, that Claimant not be recommended as a suitable candidate for the doctorate degree and that he had failed his preliminary examinations. Claimant was so notified October 27, 1975, by Professor Uhl, department head.

A mandamus suit tried in the Circuit Court of Champaign County alleged the existence and breach of an agreement between Claimant and the University of Illinois. This complaint further alleged that the University abused its discretion and acted arbitrarily and capriciously in failing to award the degree. The complaint further alleged that the University failed to perform under the terms of its agreement with Claimant. Circuit court Judge James N. Sherrick found and ordered that Claimant was required to pass the preliminary examination before becoming a candidate for obtaining the Doctor of Philosophy degree sought. He further found and ordered that Claimant did not show that he successfully completed the oral preliminary examination and was a successfully competent candidate for the Ph.D. degree. Judge Sherrick also found that the University did not act in bad faith in refusing to award Claimant the Ph.D. degree in Business Administration. The mandamus action was dismissed.

The record before this Court includes the record in the circuit court mandamus case and the appellate court record, as well as the appellate court opinion in Tanner v. Board of Trustees of the University of Illinois (1984), 121 Ill. App. 3d 139, 459 N.E.2d 324 (Tanner II). Additionally, depositions, transcripts, exhibits and filings of the parties comprise the record which exceeds two feet. After examination of the record, we conclude that the claim should be dismissed.

The record establishes clearly that the heart of this dispute is Claimant’s inability to comply with the University’s procedures and practices.

Whether those procedures and practices are perfect or meet Claimant’s sense of “fairness” is not relevant. The General Assembly has empowered the University’s board of trustees to issue degrees “on recommendations of the faculty” or “such as the trustees may deem appropriate.” (Ill. Rev. Stat. 1979, ch. 144, par. 31.) This provision, which has been in our statutes unchanged since 1877, has been interpreted as conferring a discretionary and not mandatory duty to issue degrees to persons participating in its curriculum. In the absence of malicious conduct, or arbitrary and capricious action, Claimant cannot recover. We find that the facts in this case do not constitute malicious conduct or arbitrary and capricious action. Tanner v. Board of Trustees of the University of Illinois (1977), 48 Ill. App. 3d 680, 363 N.E.2d 208 (Tanner I).

Like the trial judge in Tanner II, who stated:

“I think the evidence supports the University’s position that actually he had not done well; he had not indicated on those exams that he was a competent candidate for the Ph.D. degree. * * * I think the evidence indicates the University did not act in bad faith. I don’t think they arbitrarily refused to award the degree. In fact, I think if the University is to be criticized, it’s for being that lenient in offering a degree and you begin to wonder, well, just how important * 0 * or what does a Ph.D. degree mean if you can get it maybe in this fashion.”

In affirming the trial court in Tanner II ((1984), 121 Ill. App. 3d 139 at 141, 143, 459 N.E.2d at 326-27), the appellate court stated:

“The evidence showed that the program for obtaining a degree of Doctor of Philosophy usually has three stages. e ° e In the second stage, the candidate undergoes preliminary examinations to determine whether the candidate is knowledgeable in his selected field and likely to be able to write a worthwhile thesis * 0 °.
0 0 0
Here, plaintiff admitted at trial that before he started the preliminary examination process, the faculty had explained to him and he understood that part of the preliminary examination would be oral. He proceeded with the preliminary examination process without complaint as to this requirement and the faculty continued to work with him on this basis. Thus, any original contract between the parties that included the terms of the catalog was modified by plaintiff’s tacit assent to the proposed procedure. Substantial evidence was presented that in practice the department of Business did require an oral examination as part of the preliminary examination. On the basis of the foregoing evidence the trial court (1) did not abuse its discretion in finding that defendant did require oral examination as part of the preliminary examination, and (2) was not prohibited from imposing the requirement.”

While Respondent has urged that the doctrine of collateral estoppel compels us to accept these prior findings, we have made our own examination of the record in those cases and the instant one. We come to the same conclusion as the circuit and appellate courts.

It is therefore ordered, adjudged and decreed that this claim is dismissed and forever barred.

OPINION UPON DENIAL OF PETITION FOR REHEARING

Raucci, J.

This matter comes before us on the Claimant’s petition for rehearing.

The petition for rehearing asserts that (1) the Claimant’s inability to access the Commissioner’s Report submitted to us prior to our opinion constitutes a denial of due process; (2) that our opinion failed to address the issues raised by Claimant in his brief, and that such failure “denies the Claimant the ability to determine whether or not the merits of his claim were addressed” and that such denial constitutes a denial of due process; and (3) that specific findings of fact were not made.

Claimant did not seek oral argument on the merits of his claim prior to our opinion although 74 111. Adm. Code 790.210 provides for such argument by indicating the request on the party’s brief. He did, however, seek oral argument on the petition and such argument was granted and heard. Claimant and Respondent also were granted leave to file additional written memoranda after oral argument.

As to Claimant’s first assertion, he has neither a statutory nor constitutional right to review the Commissioner’s Report. (Starnowski v. License Appeal Com'm. of the City of Chicago (1981), 101 Ill. App. 3d 1050, 428 N.E.2d 1102.) As in Starnowski, we are not bound by the Commissioner’s Report, which is nothing more than a recommendation and as our opinion recited, it was based upon our examination of the entire record. Claimant has cited no case authority for his proposition, and we are unaware of any such authority.

As to his second contention, our opinion sufficiently addresses the issues raised, and Claimant has not demonstrated “points supposed to have been overlooked or misapprehended by the Court” that would result in the granting of his claim.

Claimant has asserted that we have decided this case as if it were founded in mandamus rather than breach of contract. Claimant is mistaken. Our opinion began “Claimant brings this action for an alleged breach of contract * # and thereafter stated “(a)fter examination of the record, we conclude that the claim should be dismissed.”

We note that while not raised in his petition for rehearing, Claimant asserts in his post-oral argument memorandum that we have “no authority to interpret the law.” In that regard, he asserts that we adopted the mandamus standard rather than the breach of contract standard. Inasmuch as this ground was not raised in the petition for rehearing, it will not be considered.

Similarly, Claimant raises, after oral argument, and not in his petition for rehearing, alleged violations of the Administrative Procedures Act (Ill. Rev. Stat. 1987, ch. 127, pars. 1001-1020.) Inasmuch as this matter was not raised in the petition for rehearing, it will not be considered.

In conclusion, we have re-examined the record and our opinion. Our conclusion is that Claimant was required, as found by the appellate court and quoted by us (p. 5), to pass the preliminary examination and that an oral examination was a component of that preliminary examination. Claimant did not successfully comply with that requirement.

It is therefore ordered that the petition for rehearing is denied.


source: Caselaw Access Project

author: Raucci, J. Raucci, J.

license: Public Domain

text:
    (No. 79-CC-0080
    Henry Ross Construction, Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 29, 1988.

      Order on Petition for Reconsideration filed November 29, 1990.

    Bono, Goldenberg, Hopkins, Bilbrey & Hendricks (Mark C. Goldenberg, of counsel), for Claimant.

      Neil F. Hartigan, Attorney General (Charles S. Watson, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Raucci, J.

This is a claim brought by two Claimants, Henry Ross, hereinafter called “Ross,” and Henry Ross Construction Company, Inc., hereinafter called “Company.” The claim was to recover damages allegedly resulting from the violation by the Illinois Department of Transportation, hereinafter called “IDOT,” of the provisions of the Illinois Highway Code. (Ill. Rev. Stat. 1975, ch. 121, par. 4 — 510).

Ross was one of seven beneficiaries of the Green Acres Trust Number Two. In 1976, that trust owned certain unimproved real estate south of the city of Edwardsville in Madison County, Illinois. Prior to and during 1976, IDOT was engaged in planning a highway to be constructed in the east-west direction south of Edwardsville. This highway would intersect Route 159, and would travel through approximately the middle of the Green Acres Trust Number Two.

In accordance with section 4 — 510 of the Illinois Highway Code cited above, IDOT prepared a map showing the location and approximate widths of the rights-of-way needed for this highway. The highway was to be known as F.A. Route 207. The map was recorded in the office of the Madison County recorder. On April 30, 1976, a notice of the approval of the map, and filing with the county recorder, was sent by registered mail to the trustees of Green Acres Trust Number Two.

At that time the Highway Code, section 4 — 510 cited above, provided in part:

“The Department [of Transportation] may establish presently the approximate locations and widths of rights of way for future additions to the State highway system to inform the public and prevent costly and conflicting development of the land involved.
The Department shall make a survey and prepare a map showing the location and approximate widths of the rights of way needed for future additions to the highway system. The map shall show existing highways in the area involved and the property lines and owners of records of all land that will be needed for the future additions and all other pertinent information. Approval of the map with any changes resulting from the hearing shall be indicated in the record of the hearing and a notice of the approval and a copy of the map shall be filed in the office of the recorder of deeds for all counties in which the land needed for future additions is located.
Public notice of the approval and filing shall be given in newspapers of general circulation in all counties where the land is located and shall be served by registered mail within 60 days thereafter on all owners of record of the land needed for future additions.
The Department may approve changes in the map from time to time. The changes shall be filed and notice given in the manner provided for an original map.
After the map is filed and notice thereof given to the owners of record of the land needed for future additions, no one shall incur development costs or place improvements in, upon or under the land involved nor rebuild, alter or add to any existing structure without first giving 60 days notice by registered mail to the Department. This prohibition shall not apply to any normal or emergency repairs to existing structures. The Department shall have 45 days after receipt of that notice to inform the owner of the Department’s intention to acquire the land involved; after which, it shall have the additional time of 120 days to acquire such land by purchase or to initiate action to acquire said land through the exercise of the right of eminent domain. When the right of way is acquired by the State no damages shall be allowed for any construction, alteration or addition in violation of this Section unless the Department has failed to acquire the land by purchase or has abandoned an eminent domain proceeding initiated pursuant to the provisions of this paragraph.
Any right of way needed for additions to the highway system may be acquired at any time by the State or by the county or municipality in which it is located. The time of determination of the value of the property to be taken under this Section for additions to the highway system shall be the date of the actual taking, if the property is acquired by purchase, or the date of filing of a petition for condemnation if the property is acquired through the exercise of the right of eminent domain rather than the date when the map of the proposed right-of-way was filed of record.”

On May 24,1976, one of the trustees wrote to IDOT to acknowledge receipt of the April 30,1976, notice. The letter also provided IDOT with 60 days’ notice of the trustees’ intention to incur further development costs on the site. IDOT then responded by a letter dated June 10, 1976, wherein it informed the Trust that IDOT “* * 9 at this time, does not intend to acquire the needed right-of-way from the tract which is involved in the shopping center site.” Since the trust had also requested that this site have access to State Route 159, the IDOT letter of June 10,1976, further advised that the request for access had been reviewed. The letter went on to inform the trustee that he would be contacted by the permits engineer.

On November 9,1976, Ross wrote a letter to IDOT that referred to IDOT’s letter of June 10, 1976. Ross advised that he had acquired rights from Green Acres Trust Number Two to build the shopping center, “* * # and on the strength of the above-mentioned letter have gone in motion.” While the letter was signed by Ross in his capacity as president of the Company, testimony at the hearing revealed that Ross personally acquired the rights from the trust by virtue of an option dated July 3, 1976. The option was to give Ross personally the right to purchase from the trust by December 4, 1976, the land for the limited purpose of developing and constructing a Kroger food store and related stores on the premises. Ross went on in his letter to ask that IDOT again tell him what plans it has for the land.

On November 18, 1976, Ross met with representatives of IDOT and secured a letter reaffirming IDOT’s letter of June 10, 1976. The November 18, 1976, letter went on to notify Ross that IDOT “* * * at this time, does not intend to acquire the needed right-of-way from the tract which is involved in the shopping center site.”

Ross proceeded to expend about $12,000 on engineering and related studies to prepare for the construction of the shopping center. The shopping center was to be constructed in that portion of the land north of the proposed right-of-way for F.A. Route 207. Refore any actual construction could commence, IDOT sent Green Acres Trust Number Two a letter, dated February 25, 1977. That letter notified the trust, purportedly in accordance with Section 4 — 510 of the Highway Code, that IDOT “* * # does intend to acquire the needed right-of-way for the subject route from the tract known as Green Acres Trust Number Two.” The letter proceeded to rescind the letter of June 10, 1976, and went on to state that IDOT expected to make an offer to purchase the land in approximately 90 days.

Claimant Ross was president of the Claimant Company. Ross intended to own the land with his wife, and the Company would actually develop the shopping center. Ross and his wife would then lease the completed improvements to Kroger and other businesses. Ross secured a lease agreement with the Kroger Company on September 23,1976, for a term beginning July 1, 1977, and extending for 20 years.

Claimant Company had arranged to develop the shopping center as a general contractor. It had retained certain limited construction work for itself. Evidence was presented to show the future rental profits and tax benefits expected by Ross. Evidence was also presented to show the expected profits to the Company as general contractor and the actual expenses of the Company in preparing for development.

After the letter of February 25,1977, IDOT entered into negotiations with Green Acres Trust Number Two to purchase the land. In his capacity as one of the trust beneficiaries, Ross refused to agree to any purchase agreement which would not in some way reimburse him for his and the Company’s expenses and lost future profits. Therefore, IDOT sought, as part of the purchase negotiations, to attempt to meet these demands.

In the course of several meetings, it was finally suggested that Ross secure an option to purchase from the trust a portion of the land lying south of the proposed right-of-way of F.A. Route 207. This is referred to as site B. The initial shopping center development plans were on site A, which lay north of the proposed right-of-way. Ross agreed to investigate the feasibility of site B. Engineering studies for that purpose revealed that estimated construction costs on site B would be approximately $243,000 greater than on site A. This was primarily because the land contours on site B would require significant additional earth work to provide proper draining. This difference far exceeded the profit margin expected by the Company in its construction contracts, which had already been let by the Company. Therefore, Ross and IDOT representatives sought to determine whether IDOT could pay any or all of this excess as part of the purchase by IDOT of the land needed for the proposed right-of-way. Ross secured a new option on site B.

IDOT then inquired of the Attorney General’s office as to whether such additional expenses could be included as a portion of the purchase price. IDOT officials were advised that such expenses were not an element of the value of the land condemned nor an element of damages to the remainder not taken. IDOT therefore refused to include such expenses in the purchase price. Ross therefore decided not to purchase the land, and the Company canceled its development project. Ross then terminated the proposed lease with Kroger, although he later testified that Kroger would have accepted the development on either site A or site B. He also stated that Kroger would have kept its commitment on the lease if site B had been developed.

Ross continued to refuse to consent to the sale by Green Acres Trust Number Two of the right-of-way land to IDOT. As a result, condemnation proceedings were instituted by the State against the trustees in the circuit court of Madison County. Ross and the Company then sought to intervene and to pursue their claim for damages by way of counterclaim against the State. The circuit court allowed the intervention by Ross and the Company. On appeal, however, the appellate court reversed and held that such alleged damages were not an element in the condemnation proceedings. The appellate court went on to rule that such a claim must be brought in the Court of Claims. (Department of Transportation v. McGovern (1982), 103 Ill. App. 3d 461, 431 N.E.2d 437.) Both Claimants have based their claim for damages upon the provisions of section 4 — 510 of the Highway Code. Claimants specifically argue that IDOT violated the provisions of the sixth paragraph of that section by failing to inform Claimants or the trust of IDOT’s intention to acquire the land within 45 days after receipt of either the trustee’s letter of May 24, 1976, or Ross’ letter of November 9, 1976. Claimants argue that the same paragraph provides for damages to the Claimants because of the sentence which reads: “When the right-of-way is acquired by the State, no damages shall be allowed for any construction, alteration or addition in violation of this Section unless the Department has failed to acquire the land by purchase or has abandoned an eminent domain proceeding initiated pursuant to the provisions of this paragraph.” We find that the Claimants have misconstrued the meaning and intent of this statute.

The meaning of a statutory provision is derived from an examination of the language of the statute and its purpose. The statute must be evaluated as a whole, and each provision should be construed in connection with every other section or part. The statute shall also be construed in light of the general purposes of the statute. (Miller v. Department of Registration and Education (1979), 75 Ill. 2d 76, 387 N.E.2d 300.) Since there are no decisions from any reviewing court construing section 4 — 510 of the Highway Code, the legislative purpose must be first examined. That purpose is stated in general terms initially as “* * * to inform the public * * *” of future additions to the highway system and to “* * * prevent costly and conflicting development of land involved.” IDOT is then directed to survey “* * # and prepare a map showing the location and approximate widths of the rights-of-way needed for further additions # * Thg map js then to be recorded with the county recorder and notice to be given to the affected owner. Thereafter, owners of affected land are prohibited from improving the affected land without specific notice of intent to IDOT. IDOT is then given an opportunity to initiate procedures to acquire the land either by purchase or by condemnation. The obvious purpose of this legislative scheme is to allow the State to acquire the land before its value is increased by improvements and to thus keep down the costs of land acquisition. The specific provision of the statute at issue in this litigation is that part which provides, “When the right-of-way is acquired by the State, no damages shall be allowed for any construction, alteration, or addition in violation of this Section * # #.”

The key phrase therein is “* * # in violation of this Section.” It is a basic canon of statutory construction that relative or qualifying phrases are to be applied to words immediately preceding the phrase, not those more remote. (City of Mt. Carmel v. Partee (1979), 74 Ill. 2d 371, 385 N.E.2d 687.) Hence, the sentence refers to damages for “* * * construction, alteration or addition # * *” made in violation of the provisions of section 4— 510. The only such land improvement possible is that made by a landowner without giving the proper notice to IDOT. Damages are therefore only allowed for improvements for which the proper notice has been given to IDOT.

When that sentence is read in context, it is obvious that its purpose is to prevent an owner from recovering damages for the value of improvements which do not comply with the notice requirement at the time the right-of-way is acquired. If the State fails to acquire the land by purchase or abandons condemnation proceedings brought in accordance with the schedule outlined in the preceding sentence, then the owner can recover damages. If the landowner should rely upon the failure of the State to acquire by purchase or upon the failure of the State to condemn within the required time after the State gives notice of intent to acquire, then such a landowner would be justified in making improvements without needing to give the notice to the State. The improvements which were not the basis of the notice would then be included in an eminent domain proceeding as an element of the owners loss. Hence, the provision in question is simply a legislative limitation on damages and condemnation and therefore, has no application to this claim.

The Claimants raise two additional issues. The first is whether the Claimants are entitled to damages not specifically authorized by the statute because of the alleged non-compliance by IDOT with the notice of intent to acquire provision.

In order to prevail upon this issue, IDOT would in fact have to have failed to abide by the terms of section 4 — 510 of the Highway Code. All that this section required IDOT to do in response to a notice to develop or improve affected land is to inform the owner within 45 days of its intent to acquire. The owner must then place no improvements on the land, or he risks being in violation of the statute. If IDOT informs the owner, as it did here, of no intention to acquire, the owner may proceed to improve the affected land. IDOT will then have to pay an increased price for the land if they acquire it. This is to be resolved by the acquisition process, including eminent domain if applicable, and not by a separate claim in the Court of Claims. Unfortunately, Claimants do not fall within that category, as has already been decided by the Illinois Appellate Court when Claimants sought to assert their claim in the condemnation proceedings. Moreover, it is clear from the wording of the statute that IDOT need only give its notice of intent to acquire to protect itself from an increase in the value of the affected land by improvement. The statute does not mandate that IDOT give an affirmative notice unless IDOT wishes such protection. The statute also does not prohibit IDOT from giving a notice of intent later than 45 days after receipt of the notice of intent to improve.

In determining whether a cause of action is to be implied from a statute, it is necessary to consider at least whether the Claimants are within the class the statute was designed to protect and whether the loss or injury is one the statute was designed to prevent. (Sawyer Realty Group, Inc. v. Jarvis Corp. (1982), 89 Ill. 2d 379, 432 N.E.2d 849.) The general protection of this statute is afforded to the State so as to prevent excess cost in the taking of land for highway purposes. To a limited degree, it also protects owners who violate its notice provisions in certain expressly defined instances. The loss the statute was designed to prevent was extra expense in acquisition for costs by the State. So long as an owner complied with the terms of the notice requirements, any improvements he placed on the land enhanced the value of the land in the event of a subsequent acquisition by the State. Therefore, the first requirement to imply a cause of action would be met since the Claimants had an interest in the land to be taken and clearly complied with the notice requirements.

The second requirement has not been satisfied by the Claimant. The statute specifically does not prohibit IDOT from giving a notice of intent to acquire later than 45 days after receipt of the notice to improve. It expressly limits when damages may be recovered for construction made in violation of the owner’s notice requirements. The statute therefore was never designed to apply to the Claimants’ situation. It was designed to apply only in eminent domain proceedings.

In addition, the statute in question was never designed to prevent an act of IDOT similar to those that IDOT did, in fact, take in this case. IDOT simply did not violate any of the provisions of this statute. Therefore, the loss suffered by the Claimants herein was never intended to be in a class of those losses dealt with by section 4 — 510. Therefore, the Claimants have no implicit cause of action under that statute.

Claimants have also argued a possible claim for fraudulent misrepresentation. Section 790.20 of the Court of Claims Regulations provides that practice before this Court shall be governed by the Rules of the supreme court. Illinois Supreme Court Rule 341 (e)(7) provides that points not argued are waived. (Western Casualty and Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 475 N.E.2d 872.) The issue of fraudulent misrepresentation had either not been properly raised or abandoned prior to now. However, because there is adequate evidence in the record to make a finding on this issue, we will briefly consider it.

The evidence before the Court indicates that negotiations between IDOT and the Claimants were only as to a possible purchase price of the affected land from the trust. Roth Ross and the witnesses from IDOT acknowledged this. There was never a definite offer or representation from IDOT which could be accepted by the Claimants. IDOT clearly advised Claimants that its negotiations were just that and were subject to subsequent approval by other State authorities. In addition, the IDOT negotiating personnel had no authority to bind the State. Bellini v. State (1982), 35 Ill. Ct. Cl. 701.

As to the issue of fraudulent misrepresentation, we simply do not find that the Claimants have proven a case. Roth the IDOT letters stated that IDOT did not intend # at this time” to acquire the land in question. There is no evidence that any IDOT representative or employee knew such statement was false or negligently made such statement when he could have reasonably ascertained it to be false. In fact, there is no evidence that the statements were false at the time they were made.

For all the reasons stated above, we hereby deny this claim.

ORDER ON PETITION FOR RECONSIDERATION

Raucci, J.

This cause coming on to be heard on the Claimant’s petition for reconsideration, due notice having been given, and the Court being advised;

Having carefully considered Claimant’s petition and having heard oral argument on the issues raised therein, it is hereby ordered that Claimant’s petition be, and hereby is, denied.


author: Montana, C.J.

text:
    (No. 81-CC-1441B
    Thorlief Larsen & Son, Inc., Claimant, v. The State of Illinois, Respondent.

      Order filed March 18, 1991.

    O’Halloran, Kosoff & Miller (Kirk L. Miller, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Erin M. O’Connell, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Montana, C.J.

The Claimant, Thorlief Larsen & Son, Inc. (hereinafter referred to as TLS) brought this action, No. 81-CC-1441B, based on allegations of breaches of warranty and breaches of contract against the Respondent’s Capital Development Board (hereinafter referred to as the CDB) seeking compensation totalling $224,060.00 for damages, together with post-judgment interest, costs, and reasonable attorney fees. The case at bar is the second portion of a claim which was bifurcated. The first portion of the claim, No. 81-CC-1441A was previously resolved by entry of judgment in favor of TLS in the amount of $80,872.26 on July 15,1982. This judgment has been paid.

The case at bar was placed on general continuance in accordance with Ill. Rev. Stat., ch. 37, par. 24 — 5, and 74 Ill. Adm. Code 790.60 by order of Commissioner Cronin December 14, 1982, pending the disposition of another action arising out of the same circumstances as gave rise to this claim. The collateral action was pending in the circuit court of Cook County.

On February 18,1988, TLS moved to have the case restored to active status and sought leave to file an amended complaint. These motions were granted and the amended complaint was filed. Discovery and several pretrial conferences ensued.

On December 14,1990, a joint stipulation was filed by the parties with the intention of settling this claim. This joint stipulation is now before us for approval.

The stipulation reads in relevant part as follows:

“1. That this claim was brought for work performed by the claimant on the New Jefferson High School project, CDB project No. 762-201-001. That the Claimant was the masonry contractor for the project.
2. That during the course of this contract certain additions and deductions were made to Claimant’s contract balance.
3. That the services for which this claim is made were performed to the specifications and satisfaction of the Capital Development Board.
4. That the project funds and contingency funds for New Jefferson High School Project, Capital Development Board Project No. 762-201-001 have been depleted. No additional money is available for payment of this claim.
5. The respondent agrees that had the State of Illinois, Capital Development Board Project No. 810-072-001 funds not been depleted the Capital Development Board would have paid claimant Thorlief Larsen & Son, Inc., $85,000.
WHEREFORE, respondent respectfully moves this Court to enter an order dismissing the claim herein with prejudice.”

This Court is not bound by such stipulations but it does not seek to interpose controversy where none appears to exist. The Court does accept and approve the stipulation but is constrained to deny the claim for to do otherwise would be in effect adding money to the project account. Appropriation of funds is the prerogative of the General Assembly. However, as an advisory body to the General Assembly and in anticipation of possible further consideration of this matter by the General Assembly, the Court finds that both TLS and the CDB agree that the services for which this claim is made were performed to the specifications and satisfaction of the CDB and but for lack of funds the CDB would have paid, and TLS would have accepted, the sum of $85,000.00 in satisfaction and settlement of this claim.

It is hereby ordered that this claim be, and hereby is, denied solely because of insufficient funds remaining for the project.


text:
    (No. 81-CC-2466
    Guarantee Electrical Co., Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 30, 1991.

      Order filed June 18, 1991.

    Armstrong, Teasdale, Schlafly, Davis & Dicus, Ron Scharf and Gillespie, Cadigan & Gillespie, for Claimant.

      Roland W. Burris, Attorney General (William Webber, of counsel), for Respondent.
   OPINION

Montana, C.J.

The Claimant, Guarantee Electrical Company, brought this claim seeking $457,933.28 in damages incurred due to delays and other problems encountered in the performance of a construction contract with the Respondent’s Capital Development Board (hereinafter referred to as the “CDB”). The case was tried over many months by the commissioner assigned to the case. The cause was consolidated for trial purposes only with claims by Lippert Brick Contracting, Lowry Electrical Company, and K & S Associates, Inc.

On August 1,1978, .the CDB entered into a contract with Claimant in which Claimant agreed to be the electrical contractor for the construction of two of the three buildings in the East St. Louis Community College project. The project consisted of the Skilled Training Center, the Academic Building, and the Learning Resource Center. Guarantee Electrical Company worked on the Academic Building and the Learning Resource Center. The project was scheduled to begin in August of 1978 and be completed in 730 calendar days and by August 30,1980. Time was of the essence in the contract documents. The CDB gave Claimant bid documents and drawings upon which Claimant testified it relied in computing its bid and planning its work. With these documents and using the customary construction and bidding practices, Claimant’s bid including some change orders, was $505,090.00 and is documented in Claimant’s Exhibit No. 265.

In fact, the project was finally completed in about 1330 calendar days.. Claimant alleged that it was prevented from completing its work within the contractual 730 days due to delays not attributable to Claimant and that Claimant incurred actual costs of $963,023.28.

The Claimant, upon acceptance of its bid, was ready, willing and able to perform. The CDB, in August of 1978, told the contractors to begin the project and authorized the contractors to proceed pursuant to Exhibit 23, the authorization to proceed. Claimant asserts it performed its work under very adverse project conditions and was not responsible for any material delays.

It is apparent from the entire record that Guarantee Electrical Company caused no material delays on this project. The CDB had the obligation to obtain an excavator to begin the project. The project was to start on August 30, 1978. The CDB was unable to obtain a qualified excavator and the excavation was still incomplete over a year after the project began. The CDB’s utter failure to have the excavation start on time and continue was a major problem for over a year and was one of the major delays on the project. Because of the excavation problems, all of the project schedules were off from day one. This had a snowball effect as the delay caused the project to go through four winters rather than the scheduled two winters. Once the project was delayed by the excavation problem all of the coordination and sequencing was out of sync and the architect/engineer (“A/E”) and general contractor were not able to get the project back in sync.

Claimant did everything it could do. It notified the CDB of the delays due to no excavation, the problems of not being able to work outside in the winter, the problems of lack of heat in the buildings, and other problems. The CDB was unable to clear up these problems and the project was delayed almost two years beyond its scheduled completion date for the entire project.

Other acts of the CDB caused substantial delays on this project. The normal CDB project has five prime contractors. The East St. Louis Community College project was broken down to thirty-six prime contractors by CDB to obtain minority participation. CDB officials acknowledged that this number of contractors required increased coordination which the (A/E) and general contractor chosen by CDB were unable to perform. CDB did nothing to rectify the inept coordination even after it was apparent the A/E and general contractor were not up to the job. Another long delay was that the structural steel did not go up in time. The building was not enclosed on schedule so during the second winter the electricians could not work. There was no steel decking on the second floor and roof which caused delays. There was no heat, ice was on the floors, and the building was not weathertight, all of which caused delays. Also, there was no proper sequencing of the trades or proper coordination. Paperwork was not timely processed. There were many CDB personnel changes as the CDB had five different project managers on this project. All of these factors also caused delays.

Once the excavation problem got the project off to a horrendous start, the compression of the schedule caused increased costs and because K & S, the general contractor, failed to provide realistic schedules on time, the sequencing was out of sync. Electricians are at the mercy of the other trades. To be efficient, the electricians need to put in their conduit before other trades do their work. Here the scheduling was so bad that Guarantee was prohibited from efficiently doing its work.

Other delays were caused by the CDB failing to have some of the contractors be prequalified. The original excavator, Eanes Excavating, was unable to obtain a performance bond. Later, rather than obtain a qualified excavator, the CDB change ordered Eanes to work as a subcontractor to K & S, the general contractor. It then became apparent that Eanes just could not do the job. By then months and months were lost and the project was in real trouble. With the number of prime contractors on this project, coordination meetings should have been held once a week. They were held once a month. The CDB was to have people at the meetings with authority. The project managers did not have authority to act on the questions raised at the coordination meetings. Often no decisions on problems were made for months.

In Exhibit 274, the contract documents in Paragraph D state:

“The contractor will not be entitled to any claim for delays or compensation from the CDB on account of any delays except that the contract sum will be adjusted for delays caused by the CDB, the architect/engineer, or the construction manager in the administration of this contract when such delays are for an unreasonable period of time caused by the acts of CDB.”

Most of the preceding delays and particularly the excavating delays are attributable to the CDB. The A/E caused delays by failing to get shop drawings to the contractors on time. Six months after the job was to have started, they were still calling for shop drawings.

The testimony is devoid of any blame for delay on Guarantee Electrical. In fact, CDB officials testified Claimant did good work and was not responsible for delays. As previously stated, this project was unusual in that the CDB usually has five prime contractors. In the instant case, they had 36 prime contractors so that minority contractors could be used. Such a situation required great coordination skills which were not apparent in the CDB, the A/E, and the general contractor. Once the excavation did not proceed as scheduled, the entire project was ill-fated. The CDB failed to take appropriate steps to obtain a competent excavator and the project suffered. CDB officials admitted it was their obligation to obtain an excavator. The CDB was a major cause of the delay in allowing the excavation problem to continue so long, having an A/E not up to the job, and failing to terminate K 6c S Associates, Inc. when it became painfully obvious that the general contractor could not sequence the job once it got off to the bad start.

It is also obvious that the Claimant could not proceed with its electrical work until certain other phases of the construction were completed. There was no evidence that this Claimant contributed to any of the delays. The CDB gave Claimant passing marks in its evaluations. There was evidence that the Claimant notified the CDB in writing that delays were occurring and costs were mounting. The CDB was warned by Claimant of the impending wage increases. Other letters by Claimant to CDB document the delays and cost increases.

Claimant’s contract was with the CDB. The CDB has the primary responsibility for making the worksite available to the contractor in time for the contractor to do the work. As owner, the CDB is legally liable for the delays and resulting damages. (Pora Construction Co. v. State (1984), 37 Ill. Ct. Cl. 54.) The fact that the CDB separately contracted with other entities who may be to blame for the delays is of no consequence in this action. If the CDB is damaged by the actions it attributes to others, it may pursue those it believes caused the damage. Under circumstances as are involved here, where all the parties to the contract cannot sue each other in one forum, this result must obtain. The court stated in J.F. Inc. v. S.M. Wilson & Co. (1987), 152 Ill. App. 3d 873,

“This court finds that if the owner failed to make the site available to the contractor in time for the contractor to do its work, the contractor may sue the owner. (See W.H. Stubbings Co. v. Worlds Colombia Exposition, Co., (1903), 110 Ill. App. 210.) In this case, the prime contractor may sue the State in the Court of Claims (Ill. Rev. Stat., 1983, ch. 37, par. 439.1 et seq.) for its failure to properly supervise the construction project. (Ill. Rev. Stat., 1985, ch. 127, par. 780.04.) Even if the contract contained a no damage for delay provision, a prime contractor may sue and recover from the owner for delay damages caused by another prime contractor. (United States Steel Corp. v. Missouri Pacific R.R. Co. (1982), 668 F.2d 435.) Thus, the appropriate procedures for a prime contractor are change orders and possible lawsuit in the Court of Claims.”

Most if not all construction projects will have delays of one form or another. Those projects with multiple contractors calling for coordinated efforts are more likely to have delays. For a delay to be tolerated, it must be reasonable under the circumstances. The delay on this project was considerable and certainly beyond reasonable. The CDB has tried to put blame on the other contractors but has shown absolutely no excuse for the initial cause of the delay, the lack of an excavator on the project.

The Respondent defends by arguing that the starting and completion dates were provisional and did not impose a duty upon the owner to ensure completion by August of 1980. They cite Edwards Construction Co. v. Illinois State Toll Highway Authority (1975), 34 Ill. App. 3d 939. The Edwards court held that the owner was not liable for delays caused to a second phase contractor on the basis of a schedule that did not afford the plaintiff a prepared work site upon which to perform. The court held that the contract provided a completion date which was provisional and did not impose a duty upon the owner to ensure completion by that date.

In the present case, the entire project was to take 730 days. The project lasted almost four years. The CDB gave authority to proceed in early August of 1978. In bidding the contract, the Claimant only had the completion date to work backward from or a general estimate of when the work of the other contractors would be completed to arrive at an expectation of a starting date. With an actual starting date in August of 1978, the actual delays on the project greatly exceeded anything foreseeable or reasonable. Furthermore, adjustments could not be made as the project very slowly progressed because the work schedules were never realistic and seldom produced by K & S, the general contractor. Eventually, the A/E had to take over the coordination because K & S could not do the job.

Because Respondent started the job in August 1978, pursuant to an authorization to proceed, and because there was an outside completion date, Respondent’s argument in the face of the unreasonable delays is without merit. The Respondent has the responsibility for the damages sustained by this Claimant due to the delays. The State’s recoupment action against K & S is the subject of another opinion. However, the damages to Claimant are difficult to ascertain with exactitude. Claimant testified and presented sufficient evidence that its actual labor costs exceeded estimated labor costs. The labor costs sought by Claimant are as follows:

Actual Delay

Bid Cost Claim

Journeymen electricians $115,581.00 $291,621.16 $176,040.16

General foremen & foremen 78,576.00 156,404.00 77,837.00

Supervision contract manager -0-32,640.00 32.640.00

Labor escalation 43.783.00

There was unrefuted testimony that the original bid was reasonable. Claimant’s bid was 6.8% under the architect’s estimate for electrical work and 16% under the next lowest bidder. The increased labor costs were attributed to wage rate increases, loss of efficiency because of the necessity of stopping and starting work at various times, and the need to have supervisory personnel on or following the project for 1330 days rather than the 730 days.

With the unknown variable of an exact known starting date at the time of the bid, the fact that some delay is inevitable, and the inherently speculative nature of computing loss of efficiency, the Court finds the losses occasioned by delay for labor costs to be $275,000.00. Admittedly this figure is somewhat arbitrary and the delays were primarily the responsibility of the Respondent but we do not believe that the damages are computable down to the penny as Claimant has tried to show. Even Claimant’s expert, Jack Olsen, testified that inefficiency is difficult to quantify. As triers of fact, it is the Court’s responsibility to arrive at an amount after weighing the evidence. (See Neylon v. State (1985), 39 Ill. Ct. Cl. 65.) We believe that the foregoing finding represents a fair amount. Of this amount of $275,000.00 for labor costs from the delay, a significant amount remains at issue and the Respondent raises a valid argument thereon. The testimony indicates that Claimant is seeking $70,000.00 from Reed for work done by Reed but which had to be done over by Claimant. Because Reed was clearly a subcontractor of Claimant, there was privity between the two. Pursuant to Rule 6 of the Court of Claims, Claimant should have proceeded against Reed for the $70,000.00. There is no evidence of the results of any claim of Claimant versus Reed. Because of the failure to exhaust remedies and because the State should not be responsible for Claimant having to re-do work done by Claimant’s subcontractor, the labor delay claim should be reduced by the $70,000.00. Lyons v. State (1981), 34 Ill. Ct. Cl. 268.

The Claimant also asserts certain delay damage claims which were related to materials. Claimant seeks $60,508.38 for additional materials costs and $8,570.28 for material cost escalations due to delay. This increase is offset by $52,467.36 which is subtracted for actual cost estimating bid errors. At the preconstruction meeting, the CDB encouraged the contractors to place orders for materials as soon as possible. Because of the delays, materials ordered by Claimant could not be released by suppliers as Guarantee had no place to store the materials.

The Claimant has provided adequate proof of additional actual costs for materials over their bid estimates. However, like the labor costs, the material costs are subject to the same unknown variables stated heretofore in this opinion. In addition, CDB was not required to store the Claimant’s materials. Therefore, we find the Claimant’s losses for materials occasioned by delay to be $12,000.00. Admittedly this figure, too, is somewhat arbitrary but we do not believe the damages are easily figured particularly with the unknown variables aforesaid, the lack of a duty upon Respondent to store the materials, and with the requirement and encouragement of the CDB to purchase materials early in the project. We believe that the foregoing amount represents a fair amount for damages for delays related to materials.

Claimant further seeks $46,209.05 for tools and other job expenses. Claimant’s testimony and exhibits fail to specifically show just how this figure of $46,209.05 is determined and more importantly how Respondent is liable to pay the same. The evidence is not sufficient to show the State’s liability for $46,209.05 for tools and other job expenses. The State was not responsible for security on the job and the poor estimating is the responsibility of Claimant. The claims for other job expenses are denied based on the foregoing lack of State responsibility and proof of damages. Claimant’s expert, Jack Olsen, testified that he was familiar with Claimant’s claim for tools and other expenses. They have a piece of equipment and depreciate it over a certain period of time, add escalation to that for replacement, and then they charge that piece of equipment out on an hour, half-day, whole-day or weekly basis. That way they have monies coming in that will be used to replace that item of equipment or material. While the expert was familiar with this process as to this one area of damages, he did not testify the claimed amount was reasonable. Spencer Woodale testified for Claimant that this claim related to company-owned tools, the rental rates that are charged and that those rental rates cover the cost of maintenance, upkeep and their depreciation. They used AGC rental rates, the standard rental rates for tools. The only substantial damages are the indirect damages for tools at $367.00 per week for 38 weeks totaling $13,946.00 and such damages will be allowed. The “other expenses” were not properly substantiated and are not allowed.

The Respondent contests Guarantee’s claim for profits citing Egizii Electric v. State (1973), 32 Ill. Ct. Cl. 93. Egizii, supra, does not stand for the proposition espoused by respondent. That case states that “where a party to a contract has caused a breach, that party is liable for the increased costs and damages directly and proximately caused by such breach.” The State stipulated to the damages in that case and profits were npt an issue. The Court of Claims has awarded damages for profits and overhead in delay cases. (J.F. Inc. v. State (1988), 41 Ill. Ct. Cl. 5.) Indirect damages such as overhead and profit are appropriate measures of damages and the Court should allow such damages. (Johnson v. State (1973), 39 Ill. Ct. Cl. 36.) In the present case, Claimant’s testimony indicates the 16.5% of the amount of damages found to be reasonable herein.

The damages proven by Claimant for increased wages paid, materials and overhead, as heretofore found by the Court, were reasonable.

In summation, the Claimant has suffered damages in the following amounts:

Labor claim...................... $205,000.00

Materials Claim................... 12,000.00

Tools Claim...................... 13,946.00

Subtotal 230,946.00

X Overhead Percentage X .165

Overhead 38,106.00

Total Damages $269,052.00

Two questions remain. The Respondent raises the public policy issue that the actions of the State to try to keep Eanes Excavation on the job as a minority contractor was an important public goal and this excuses the State from delay claims caused by this important public service. The argument is that a public policy goal was minority business participation in State contracts. In this case, Eanes Excavating could not obtain a performance bond. Later, working under a change order through K & S, the general contractor, it became obvious that Eanes could not do the job. The Respondent argues that the CDB took its actions to try to keep the minority contractor working for good cause and its actions were consistent with a strong public policy, and that to penalize the State for adherence to this societal goal would effectively contravene public policy. Even if it is assumed that this is a valid defense, and we do not find that it is, we are not convinced that the goal could not have been met with other means. While the goal was laudable, these contractors should not be the sole bearers of the cost of reaching it. The only ones penalized here are a few contractors who the State wants to be left holding the bag. These contractors continued to work on the word of the CDB officials that they would be treated fairly. The State cannot be penalized because it is not the State’s money that will be used to pay Claimant. The money comes from all the taxpayers in the State. If anyone should be “penalized” as Respondent suggests, then all the people should pay to spread the cost to all taxpayers for the public purpose.

Finally, the question of entering an award remains. This Court cannot enter an award unless sufficient funds remained released and unexpended in the appropriation made to fund the project. See discussion in Loewenburg/Fitch Partnership v. State (1986), 38 Ill. Ct. Cl. 227 and Ude, Inc. v. State (1982), 35 Ill. Ct. Cl. 384. The transcripts in these joined cases are in excess of 3100 pages. The exhibits number in the hundreds and include hundreds if not thousands of pages of information related to the cases. In the Court’s review of the testimony and exhibits, no concrete evidence is found concerning any exact amounts of released and unexpended funds from the project. There is some evidence, although it appears to be hearsay, that the State was to fund 75% of the project and the user, East St. Louis Community College, was to fund 25%. Local funding had been an initial problem which caused the project a late start on bidding in the summer of 1978. There was also some testimony by CDB officials that there was no money available to pay any delay claims and that no delay claims were ever paid on this project. There was also some testimony about a contingency fund but nothing concrete enough for the Court’s purposes.

Before entering judgment for the Claimant or making a recommendation to the General Assembly, we will need the fiscal data including the balance of released funds which lapsed at the conclusion of the project. Respondent is ordered to file said information within fourteen days.

ORDER

These cases come on to be heard following the Respondent’s response to the opinions entered herein on May 30, 1991, and the Court being advised;

In the aforementioned opinions the Court found that each of the Claimants suffered damages but refrained from actually awarding the damages pending the Respondent’s submission of the fiscal data on the remaining balances of funds appropriated for the two projects. The Respondent has promptly complied with the directive and the claims are again before us.

The Respondent’s reply is accepted as prima facie evidence of the facts contained therein pursuant to 74 Ill. Adm. Code 790.14. Respondent stated that a total of $19,879.00 lapsed in Appropriation Account Code Number 141-51184-4470-28-78 for CDB Project Number 810-029-001, the East St. Louis Junior College and VoTech. On the Community College of East St. Louis project, No. 810-092-001, the Respondent stated that $88,762.62 lapsed in three separate Appropriation Account Codes, 141-51184-4470-28-78, 141-51184-4470-60-75, and 141-51184-4470-60-79. One Appropriation Account Code, 141-51184-4470-28-78, is listed under both projects. This appears to be an artificial separation made by the CDB. In appropriating funds for the project the General Assembly apparently did not so designate the money or else it would have made separate appropriations. The Court sees no reason that this money should not be comingled. However, an insufficient amount of funds lapsed to cover all of the damages.

As indicated in the prior opinion, it is this Court’s policy in breach of contract claims to limit awards so as not to exceed the amount of funds, appropriated and lapsed, with which payment could have been made. To do otherwise, i.e., to award money for debt incurred beyond the sum allotted by the General Assembly, would be tantamount to granting a deficiency appropriation. The appropriation of State funds is the constitutional prerogative of the General Assembly. It is the Court’s duty to uphold that process. It is also the Court’s duty to advise the General Assembly. (Thorlief Larsen & Son, Inc. v. State (1990), 42 Ill. Ct. Cl. 195; Mary B. Bojko v. State (1988), 41 Ill. Ct. Cl. 202; J.F. Inc. v. State (1988), 41 Ill. Ct. Cl. 5; Loewenberg/Fitch Partnership v. State (1986), 38 Ill. Ct. Cl. 227; Ude, Inc. v. State (1982), 35 Ill. Ct. Cl. 384.) Further, where there are several Claimants vying for the same lapsed funds and an insufficient amount lapsed to cover in toto all of the damages suffered, it is this Court’s policy to make awards on a first in first out (FIFO) basis. Thorlief Larsen & Son, Inc. v. State, supra; Board of Trustees of Southern Illinois University v. State (1988), 40 Ill. Ct. Cl. 146; Aurora College v. State (1985), 37 Ill. Ct. Cl. 321.

Among the four claims at bar, that of Guarantee Electrical Company was filed first. Guarantee suffered damages totalling $269,052.00 as a result of contract breaches on CDB Project No. 810-092-001 only. The total amount of lapsed funds on that project was $88,762.52. As previously pointed out, the lapsed funding for the other project should also be considered because it is one and the same appropriation. The $19,879.00 will be added for a total award to Guarantee of $108,641.62.

The allocation of all of the lapsed funds to Guarantee on the FIFO basis renders moot which contractor filed next as the funds are exhausted.

For purposes of potential consideration of these four claims by the General Assembly and in fulfilling our role as an advisory body to the General Assembly we reiterate our finding in the prior decisions and point out that but for the insufficient amount of lapsed appropriations on this project we would have made the following awards of damages:

1. Guarantee Electrical Company — $160,410.38 (over and above the award to be made herein-below)

2. Lowry Electric Company — $18,975.00

3. Lippert Brick Contracting — $22,376.81

4. K & S Associates, Inc. — $264,137.56

Accordingly, it is hereby ordered that Guarantee Electrical Company be, and hereby is, awarded the sum of $108,641.62 and the other claims are denied solely for the reasons stated herein.


author: Montana, C.J. Montana, C.J.

text:
    (No. 83-CC-0324
    Lowry Electric Co., Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 30, 1991.

      Order filed June 18, 1991.

    Elmer C. Weihl, for Claimant.

      Roland W. Burris, Attorney General (William Webber, of counsel), for Respondent.
   OPINION

Montana, C.J.

The Claimant, Lowry Electric Company, brought this claim seeking $122,487.31 in damages due to delays and other problems Claimant encountered in the performance of a construction contract with the Respondent’s Capital Development Board (hereinafter referred to as “CDB”). The cause was consolidated for trial purposes only with claims of Guarantee Electrical Company, Lippert Brick Contracting, and K & S Associates, Inc.

The facts of the case are sufficiently set out in separate opinions of this Court relating to the claims of the joined Claimants so that only those facts necessary to decide this claim will be stated herein.

On July 18, 1978, the CDB awarded a contract for electrical work to Claimant, Lowry Electric Company, for work on the Skilled Training Center of the East St. Louis Community College project. Claimant received its notice to proceed from the CDB on August 30, 1978. Lowry had 550 days from August 30, 1978, to complete its work. Time was of the essence according to the contract documents. Claimant was to be off the project by February 4,1980.

The project did not get off the ground for over a year from August of 1978 due to the inability of the State to get the excavating work done. Initially the excavator chosen by the CDB, Fanes Excavating, was unable to obtain a bond. Later, the CDB change ordered Fanes to work for K & S, the general contractor. Fanes was unable to do the work and eventually was terminated. The successor excavator also had problems. Over a year was wasted on an excavating contractor.

The CDB had the obligation to see that the site was excavated. It failed miserably. Of course, other problems plagued the project beyond the initial excavation problems. Once the project got off schedule, the architect/engineer and the general contractor, K & S, were incapable of getting the project back in sync. The roofing delayed the project. The CDB had five different project managers which delayed the project. Co-Mac, the concrete company, delayed the project. Incredibly poor coordination delayed the project, and theft delayed the project. The evidence is clear, however, that Lowry Electric caused no delays on this project. As electricians, they were at the mercy of the other trades. The CDB at one time gave Lowry two sets of drawings that cancelled each other out. On other occasions, Claimant could not work because other trades were working in the area and at other times, it would do their work and another tirade would move it, requiring the Claimant to do the work over. All of this was because of a lack of coordination initially caused by the project losing a year due to no excavation.

Because of the delays, Lowry did not receive its final acceptance from CDB until March 3, 1982. Claimant was paid its contract price of $237,860.00 but because of these delays, Claimant testified it experienced increased labor and material costs. Additionally, because of the delays and coordination problems, Lowry had to expend additional man-hours to complete its work over and above the man-hour estimations included in its bid. Lowry claims an additional 9426 hours expended because of delays.

Lowry’s Exhibit No. 1 is the owner contractor agreement. Exhibit No. 2 is the authorization to proceed dated August 30, 1978, by the CDB. Exhibit No. 3 is a copy of the IBEW Local 309 electrician rates September 1,1978, to August 31,1979; March 15,1978, to August 31, 1978; September 1, 1979, to February 28, 1980; March 1, 1980, to August 31, 1980; September 1, 1980, to December 31,1980; and September 1,1981, to February 28, 1982. Lowry’s Exhibit No. 4 documents Lowry’s alleged material increases. Exhibit 4A is the statement of monthly electrician hours expended; Exhibit 4B is a recap of the additional costs incurred by Lowry Electric Company. Exhibit No. 5 is a letter from Claimant to CDB reserving its rights to its delay claim. Exhibit No. 6 is the CDB’s letter to Claimant stating it does not have funds to pay the delay claim. Exhibit No. 7 is the CDB’s certificate of final acceptance to Claimant dated March 3, 1982. Exhibit 3 indicates the labor cost increases to Claimant by its union electricians. The labor rate of $17.58 per hour for journeymen plus $18.25 per hour for foremen effective on September 1, 1978, at the start of the job increased to $20.99 per hour for journeymen on September, 1980, through December 3, 1980, and the rate for foremen went to $23.69 per hour for September I, 1980, through February 28, 1982. The additional increases are documented.

As to the material, the contract specifications required Lowry to purchase the material at the time the bid was accepted. Claimant did not purchase all of its material at the time of bid acceptance. Claimant indicates it did not order the material at the time of bid acceptance because lengths of conduit were not ordered until the lengths were known.

Claimant’s contract was with the CDB. The CDB has the primary responsibility for making the work site available to the contractor in time for the contractor to do the work. As owner, the CDB is legally liable for the delays and resulting damages. The fact that the CDB reportedly contracted with other entities who may be to blame for delay is of no consequence to this action. If the CDB is damaged by the actions of others, it may pursue those it believes caused the damage under the circumstances as are involved here. Where all of the parties cannot sue each other in one forum, the Court of Claims is the proper forum and this result must obtain. J. F. Inc. v. S.M. Wilson and Co. (1987), 152 Ill. App. 3d 873.

It is inevitable that all construction projects will suffer delays of one form or another, particularly projects calling for coordinated efforts by multiple contractors. In the instant case, there were thirty-six prime contractors. Normally there are five. The State broke the contracts down to try to obtain minority participation on the project.

For a delay to be tolerated, it must be reasonable under the circumstances. The delay on this project of almost two years was considerable and intolerable. Other than to try to put the blame on other contractors, the Respondent has offered little excuse for the delay in excavation from the beginning.

In the present case, Lowry was given 550 days to complete its work from the authorization to proceed. The authorization to proceed issued on August 30,1978. The entire project was to be completed in 730 days pursuant to the project specifications. While the Respondent argues that the completion date was provisional and did not impose a duty upon the owner to ensure completion by that date, citing Edwards Construction Co. v. Illinois State Toll Highway Authority (1975), 34 Ill. App. 3d 929, Respondent’s reliance is misplaced. Here the contract was awarded in July of 1978, and the authorization to proceed was issued August 30, 1978. It was reasonable for Claimant to expect that its bid and completion date would correspond to the original specifications and the lower labor rates. Claimant could rely on the outside completion date of 730 days as a reasonable completion date.

The delays in this case were beyond being reasonable. Respondent had the responsibility for the damages sustained by the Claimant due to the delays. However, the damages are difficult to ascertain exactly. Claimant produced adequate evidence that its actual labor costs exceeded its estimated labor costs. From January 24, 1980, to December 1981, Claimant originally claimed 9426M hours at increased labor costs. There is nothing, however, to show that these hours are reasonable and the exhibits include certain estimates of time expended. The increased labor costs were attributed to wage rate increases, loss of efficiency because of the necessity of stopping and starting at various times, redoing work because of lack of coordination, and the requirement of having supervising personnel on the project for more than the original 550 days.

The Commissioner struck Claimant’s Exhibit 4B as to its claim for additional labor costs due to length of time to complete the project. Change orders for this work were evidently paid. The proof was insufficient to show any further monies due under that category and Claimant’s claim was reduced at trial to $80,337.58.

This leaves only the delay claim for labor due to labor rate increases totaling $21,030.68 in the Claimant’s Exhibit 4B. With the unknown variables, that some delay is inevitable, the inherently speculative nature of computing loss of efficiency, and the winter weather, the loss can fairly be stated for Claimant’s damages occasioned by delay for labor increases to $16,500.00. Admittedly, this figure is somewhat arbitrary and the initial delay was primarily the responsibility of the Respondent, but the Court does not think the damages are computable down to the penny and Claimant admits this in its brief. Unlike Lippert Brick, this Claimant did not finish its work within the time length specified. As the trier of fact, it is the Court’s responsibility to arrive at an amount of damages after weighing the evidence. See Neylon v. State (1986), 39 Ill. Ct. Cl. 65. These findings represent a fair amount.

The material claims of Claimant are more troublesome. The specifications required Claimant to purchase materials at the time of the bid award. Claimant apparently did not do so to the extent of its $5,212.77 claim for wire, cable and miscellaneous items. Claimant argues it did not know the number of feet of conduit work until other work was done and this should excuse Claimant from the contractual provisions. Claimant has failed to present any proof through exhibits or testimony to substantiate this claim beyond mere conclusions. Having not met their burden, the materials claim should be denied. All of the other arguments of Claimant concerning storage and security are merely speculation not supported by any proof.

Any other factor the Claimant seeks to have considered in arriving at the damages for delays are overhead and profits. Claimant seeks 15% of its delay for overhead and profit. The State cites Egizii Electric v. State (1973), 32 Ill. Ct. Cl. 93, in its opposition to profits as a measure of damages. The Respondent does not challenge an award for overhead. Suffice it to say Egizii, supra does not stand for the proposition that profit is not a measure of damages. This Court has made an award of 10% each for overhead and profit as a measure of damages in delay claims. (See J.F. Inc. v. State (1988), 41 Ill. Ct. Cl. 5.) Overhead and profit are appropriate items of damages. The 15% sought by Claimant is not out of line. Multiplying the previously stated amounts of damages by this percentage, additional damages of $2,475.00 are appropriate.

Two questions remain. The Respondent raises the public policy issue that the actions of the State to try to keep Eanes Excavation on the job as a minority contractor was an important public goal and this excuses the State from delay claims caused by this important public service. The argument is that a public policy goal was minority business participation in State contracts. In this case, Eanes Excavating could not obtain a performance bond. Later, working under a change order through K & S, the general contractor, it became obvious that Eanes could not do the job. The Respondent argues that the CDB took its actions to try to keep the minority contractor working for good cause and its actions were consistent with a strong public policy, and that to penalize the State for adherence to this societal goal would effectively contravene public policy. Even if it is assumed that this is a valid defense, and we do not find that it is, we are not convinced that the goal could not have been met with other means. While the goal was laudable, these contractors should not be the sole bearers of the cost of reaching it. The only ones penalized here are a few contractors who the State wants to be left holding the bag. These contractors continued to work on the word of the CDB officials that they would be treated fairly. The State cannot be penalized because it is not the State’s money that will be used to pay Claimant. The money comes from all the taxpayers in the State. If anyone should be “penalized” as Respondent suggests, then all the people should pay to spread the cost to all taxpayers for the public purpose.

In summation, the Claimant has suffered damages in the following amounts:

Labor increases $16,500

Overhead and profit 2,475

Total Damages $18,975

The question of entering an award remains. This Court cannot enter an award unless sufficient funds remain released and unexpended in the appropriation made to fund the project. See discussion in Loewenburg/Fitch Partnership v. State (1986), 38 Ill. Ct. Cl. 227, and Ude, Inc. v. State (1982), 35 Ill. Ct. Cl. 384. The record is devoid of fund summaries for the project, and the Court cannot determine if any funds remained available for the Court to award damages. There was some hearsay to the effect that there were no funds and that the CDB had not paid any delay claims. However, there was also some testimony about a contingency fund.

Before entering judgment for the Claimant or making a recommendation to the General Assembly, we will need the fiscal data including the balance of released funds which lapsed at the conclusion of the project. Respondent is ordered to file said information within fourteen days.

ORDER

Montana, C.J.

These cases come on to be heard following the Respondent’s response to the opinions entered herein on May 30,1991, and the Court being advised;

In the aforementioned opinions the Court found that each of the Claimants suffered damages but refrained from actually awarding the damages pending the Respondent’s submission of the fiscal data on the remaining balances of funds appropriated for the two projects. The Respondent has promptly complied with the directive and the claims are again before us.

The Respondent’s reply is accepted as prima facie evidence of the facts contained therein pursuant to 74 Ill. Adm. Code 790.14. Respondent stated that a total of $19,879.00 lapsed in Appropriation Account Code Number 141-51184-4470-28-78 for CDB Project Number 810-029-001, the East St. Louis Junior College and VoTech. On the Community College of East St. Louis project, No. 810-092-001, the Respondent stated that $88,762.62 lapsed in three separate Appropriation Account Codes, 141-51184-4470-28-78, 141-51184-4470-60-75, and 141-51184-4470-60-79. One Appropriation Account Code, 141-51184-4470-28-78, is listed under both projects. This appears to be an artificial separation made by the CDB. In appropriating funds for the project the General Assembly apparently did not so designate the money or else it would have made separate appropriations. The Court sees no reason that this money should not be comingled. However, an insufficient amount of funds lapsed to cover all of the damages.

As indicated in the prior opinion, it is this Court’s policy in breach of contract claims to limit awards so as not to exceed the amount of funds, appropriated and lapsed, with which payment could have been made. To do otherwise, i.e., to award money for debt incurred beyond the sum allotted by the General Assembly, would be tantamount to granting a deficiency appropriation. The appropriation of State funds is the constitutional prerogative of the General Assembly. It is the Court’s duty to uphold that process. It is also the Court’s duty to advise the General Assembly. (Thorlief Larsen & Son, Inc. v. State (1990), 42 Ill. Ct. Cl. 195; Bojko v. State (1988), 41 Ill. Ct. Cl. 202; J.F. Inc. v. State (1988), 41 Ill. Ct. Cl. 5; Loewenberg/Fitch Partnership v. State (1986), 38 Ill. Ct. Cl. 227; Ude, Inc. v. State (1982), 35 Ill. Ct. Cl. 384.) Further, where there are several Claimants vying for the same lapsed funds and an insufficient amount lapsed to cover in toto all of the damages suffered, it is this Court’s policy to make awards on a first in first out (FIFO) basis. Thorlief Larsen & Son, Inc. v. State, supra (1990); Board of Trustees of Southern Illinois University v. State (1988), 40 Ill. Ct. Cl. 146; Aurora College v. State (1985), 37 Ill. Ct. Cl. 321.

Among the four claims at bar, that of Guarantee Electrical Company was filed first. Guarantee suffered damages totalling $269,052.00 as a result of contract breaches on CDB Project No. 810-092-001 only. The total amount of lapsed funds on that project was $88,762.52. As previously pointed out, the lapsed funding for the other project should also be considered because it is one and the same appropriation. The $19,879.00 will be added for a total award to Guarantee of $108,641.62.

The allocation of all of the lapsed funds to Guarantee on the FIFO basis renders moot which contractor filed next as the funds are exhausted.

For purposes of potential consideration of these four claims by the General Assembly and in fulfilling our role as an advisory body to the General Assembly we reiterate our finding in the prior decisions and point out that but for the insufficient amount of lapsed appropriations on this project we would have made the following awards of damages:

1. Guarantee Electrical Company — $160,410.38 (over and above the award to be made herein-below)

2. Lowry Electric Company — $18,975.00

3. Lippert Brick Contracting — $22,376.81

4. K & S Associates, Inc. — $264,137.56

Accordingly, it is hereby ordered that Guarantee Electrical Company be, and hereby is, awarded the sum of $108,641.62 and the other claims are denied solely for the reasons stated herein.


author: Roe, C.J. Montana, C.J.

text:
    (No. 83-CC-1371
    Robert Grimmer, Claimant, v. The State of Illinois, Respondent.

      Order filed February 28, 1985.

      Order on Petition for Rehearing filed November 8, 1990.

    Anthony C. Raccuglia & Associates, for Claimant.
    Roland W. Burris, Attorney General (Michael Taylor, Assistant Attorney General), for Respondent.
   ORDER

Roe, C.J.

This cause having come for consideration of the Respondent’s Motion for summary judgment and the Court being duly advised in the premises:

FINDS, that Claimant’s complaint asserts negligence on the part of Respondent in failing to keep a snowmobile path safe for snowmobiles, that failure leading to Claimant’s injuries. “The Legislature has determined that there is no duty to keep premises safe for snowmobiling * * (Ostergren v. Forest Preserve District (1984), 104 Ill. 2d 128, 135.) The Snowmobile Registration and Safety Act provides that:

“An owner, lessee, or occupant of premises owes no duty to keep the premises safe for entry or use by others for snowmobiling, or to give warning of any unsafe condition or use of or structure or activity on such premises. This subsection does not apply where permission to snowmobile is given for a valuable consideration other than to this State, any political subdivision or municipality thereof, or any landowner who is paid with funds from the Snowmobile Trail Establishment Fund.” Ill. Rev. Stat. (1981), ch. 95½, par. 605-1(1).

It is therefore apparent that Claimant’s complaint is barred by statute.

It is therefore ordered that judgment is granted in favor of the Respondent.

ORDER ON PETITION FOR REHEARING

Montana, C.J.

This cause is before the Court on Claimant’s petition for rehearing and for leave to file amended complaint.

Claimant’s original complaint alleged in relevant part as follows:

“2. That on January 12th, 1982, at about 11:30 P.M., the claimant was operating a Snowmobile along and upon the Hennepin Canal near Aqueduct #3 in County of Bureau, State of Illinois.
3. That the aforementioned location of claimant at said time and place was located on property owned and maintained by the State of Illinois through the State of Illinois Department of Conservation, hereinafter called respondent.
4. That at the aforementioned location and time, while said claimant was operating his Snowmobile, he was caused to drive over the aqueduct, into the air 30 feet and hit a cement pier, dropping 20 feet to the creek bed below, severely injuring the plaintiff as is hereinafter mentioned.
5. That notwithstanding its duties under the circumstances, the respondent did or failed to do one or more of the following negligent acts and/or omissions.
A. Failed to warn the claimant of the roadway.
B. Failed to properly mark the Snowmobile trail along said canal by way of a sign indicating the presence of said curve.
C. Failed to properly sign said canal indicating that said canal was closed on said date.
D. Removed signs prior to the date of the accident indicating the presence of the curve and the presence of the aqueduct on said date.
6. That as a direct and proximate result of the negligence of the respondent, as setforth above, the claimant was thrown from his Snowmobile 20 feet to the bed of the Bureau Creeks, severely injuring himself, as is hereinafter mentioned.”

On February 23, 1985, this Court entered an order granting Respondent’s motion for summary judgment. The order was based on the decision of the supreme court of Illinois in Ostergren v. Forest Preserve District (1984), 104 Ill. 2d 128, 471 N.E.2d 191, which held that section 5 — 1(1) of the Illinois Snowmobile Registration and Safety Act (Snowmobile Act) (Ill. Rev. Stat. 1983, ch. 95½, par. 605 — 1(1)), was constitutional. That section provided:

“An Owner, lessee, or occupant of premises owes no duty to keep the premises safe for entry or use by others for snowmobiling, or to give warning of any unsafe condition or use of or structure or activity on such premises. This subsection does not apply where permission to snowmobile is given for a valuable consideration other than to this State, any political subdivision or municipality thereof, or any landowner who is paid with funds from the Snowmobile Trail Establishment Fund.”

Claimant thereafter filed a petition for rehearing and for leave to file amended complaint. In said petition Claimant asserted that the Ostergren case should not be applied to the facts in his claim. In support of his position Claimant’s petition states in relevant part as follows:

“A. That while said statute and the Ostergren case as applied may stand for the proposition that a Respondent such as the State of Illinois in this cause owes no affirmative duty to keep the premises safe for entry or use by others for snowmobiling, etcetera; the same it is respectfully submitted does not state, nor should the same be applied, to absolve the State of Illinois from liability when, as here, there is not only an act of omission but also one of alleged commission in removing a previously existing warning sign from the site of the occurrence. (See paragraph 5(D) of Claimant’s Complaint.)
B. That in further support of the manner submitted in 5(A) herein, it is respectfully submitted that there would be no need for the legislature to later pass Section 605(M) of Ch. 95!z, if Section 605(1) was intended to cover circumstances related to the maintenance of signs and signals, etcetera, as is involved in the case at bar.”

Section 5 — 1(M) of the Snowmobile Act, Ill. Rev. Stat. 1983, ch. 95½, par. 605 — 1(M), provided:

“Any owner, lessee or occupant of premises or any person or association who, with the permission of the owner of the premises, places, maintains or displays a sign, signal, marking or device to give warning of any unsafe condition *on the premises for snowmobiling shall not be liable for any personal injuries allegedly caused by his or her acts or omissions in providing such warning unless the alleged misconduct was willful or wanton. This subsection shall not apply where the owner, occupant or lessee of the premises grants express permission for snowmobiling in exchange for valuable consideration. However, this subsection will apply where such consideration is given to such owner, occupant or lessee by the State or one of its,political subdivisions.”

Claimant further asserts in his petition as follows:

“C. That additionally assuming arguendo that any claim by the Claimant in negligence in this cause is barred, which is respectfully denied, then in any event the said Claimant should be granted leave to formally file an Amended Complaint and in support thereof submits the following:
(1) That the Complaint of the Claimant in this cause has never been previously dismissed in this cause, nor has the Claimant ever previously filed an Amended Complaint in this cause;
(2) That even the original Complaint as filed, it is respectfully submitted, specifically in paragraph 5(D) thereof indicates that the Respondent may have been guilty of willful and wanton misconduct with reference to this matter.
(3) That the Claimant’s proposed First Amended Complaint, a copy of which is attached hereto and made a part hereof as Exhibit A, sets forth it is respectfully submitted a viable cause of action for negligence and willful and wanton misconduct as against this Respondent, and in further support of the request for Leave to File the same, the following is submitted:
(a) That it is at the least a question of fact as to whether or not the removal of the previously existing warning signs prior to the date of the occurrence in question constitutes negligence and/or willful and wanton misconduct on the part of the Respondent.
(b) That the same is especially so when one considers the fact that according to the information that has been supplied to the Claimant, said signs were again being put up the day following the occurrence in question.
(c) That the Claimant’s position in this regard is further buttressed by the allegations that the Respondents have allegedly in certain publications induced the Claimant and certain other members of the public to use the premises in question for the purpose of snowmobiling.”

After a thorough review of the record we find that Claimant has failed to persuade the Court that its prior decision was incorrect. The Ostergren decision clearly indicates that under the circumstances present in this case the Respondent is immune from a negligence action pursuant to section 5 — 1(1) of the Snowmobile Act. It also appears that under section 5 — 1(M) the Respondent would be immune from a negligence action. Even if the facts as pleaded by Claimant state a cause of action for willful and. wanton misconduct, Claimant’s reliance on section 5 — 1(M) is misplaced. Section 5 — 1(M) was added by Public Act 82 — 993. The effective date of Public Act 82 — 993 was September 10,1982, almost eight months after Claimant’s accident. In Ostergren the majority of the Supreme Court determined that a 1984 amendment to section 5 — 1(1) of the Snowmobile Act allowing recovery for willful or malicious failure to guard or warn against a dangerous condition should not be applied retroactively. That amendment, Public Act 83 — 1044, eff. January 5,1984, added to Section 5 — 1(1) as follows:

“Nothing in this section limits in any way liability which otherwise exists for willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.’’

This claim presents a situation similar to the facts presented in a case before the First District Appellate Court (5th Division) in Cwik v. Forest Preserve District (1985), 131 Ill. App. 3d 1097, 477 N.E.2d 21. The plaintiffs in Cwik alleged they were injured on February 1, 1981, when their snowmobile struck a cable on property owned and operated by the Forest Preserve of Cook County known as Miller’s Meadows. On this property was an asphalt road with concrete pillars on either side supporting a steel cable across the road, all of which were in an area designated for snowmobiling. Plaintiffs alleged that on the date of the incident, the pillars and steel cable were not visible because they were partially covered with snow. Plaintiffs further alleged that the defendant had previously marked the area with large picnic tables and other large objects to alert snowmobiles to the location of the obstacles, but on the day of the accident the pillars and cable were not marked. Plaintiffs asserted they were injured as the result of defendant’s acts or omissions of willful and wanton negligence in that defendant designated an area for snowmobiling which was not safe for such purposes, allowed the existence of a partially hidden cable within an area it knew or should have known that such cable constituted an obstruction and danger to snowmobile operators, and failed to post warning signs or markers within the vicinity of the snow-covered cable.

The trial court granted defendant’s motion to dismiss holding that the Snowmobile Act barred plaintiffs’ action. Plaintiffs contended the trial court erred in holding that defendant owed no duty of care to the plaintiffs and that sections 5 — 1(1) and (J) of the Snowmobile Act should not have been interpreted as relieving the defendant from liability for acts and omissions of willful and wanton negligence. Section 5— 1(J) of the Snowmobile Act (Ill. Rev. Stat. 1983, ch. 95½, par. 605 — 1(J)), provided:

“An owner, lessee or occupant of premises who gives permission to another to snowmobile upon such premises does not thereby extend any assurance that the premises are safe for such purpose, or assume responsibility for or incur liability for any injury to person or property caused by any act of persons to whom the permission is granted. This subsection shall not apply where permission to snowmobile is given for a valuable consideration other than to this State, any political subdivision or municipality thereof, or any landowner who is paid with funds from the Snowmobile Trail Establishment Fund.”

The appellate court affirmed the trial court’s decision and, citing the Ostergren decision, declined to give retroactive effect to the 1984 amendments to sections 5 — 1(1) and 5 — 1(J) which allowed actions for willful and wanton negligence.

Since the supreme court has determined that an amendment to the section of the Snowmobile Act, section 5 — 1(1), which would allow for actions for willful or malicious misconduct should not be applied retroactively, this Court fails to see why another section, section 5 — 1(M), allowing actions for willful or wanton misconduct should be applied retroactively to the time of Claimant’s accident.

Based on the foregoing we affirm our prior decision granting Respondent’s motion for summary judgment. Assuming arguendo that the circumstances giving rise to this claim would constitute willful and wanton negligence, if pleaded they would not constitute a cause of action. Therefore, Claimant’s request for leave to file an amended complaint is denied.

It is therefore hereby ordered that this claim be, and is, hereby dismissed.