author: Montana, C.J.

text:
    (No. 84-CC-0588
    K & S Associates, Inc., Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 30, 1991.

      Order filed June 18, 1991.

      Amended order filed November 14, 1991.

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

Montana, C.J.

The Claimant, K & S Associates, Inc., brought this claim on January 4, 1984, seeking $476,110.50 in damages incurred due to delays and other problems Claimant encountered in the performance of a construction contract with the Respondent 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 Electric Company, and Guarantee Electrical Company.

Claimant makes the following claims against the State: a lapsed appropriation claim; a claim for reimbursement for money paid by Claimant to an excavator; a claim for excessive layouts; a claim resulting from lack of security at the site; a claim for consumables; a claim for additional labor resulting from roofing delay and water leaks in connection with the roof construction on the Academic Building and Learning Resource Center; a claim for metal siding for walkways; a claim for end-splash and support; a claim for expansion joint covers on the Academic Building and Learning Resource Center; a claim for additional lintels due to architectural error; a claim for aluminum thresholds; a claim based on the mop-up of the coal-tar buildups on the center section roof of the Skilled Training Center; a claim for sandblasting and painting of metal decking; a claim for security losses at the Skilled Training Center; a claim based on window water leaks caused by the CDB’s failure to properly administer the glazing contract; a claim for extra labor and material due to water penetration because of a lack of the center section roofing; and a delay claim.

The State countered in this lawsuit with a recoupment action against this Claimant. Each claim of the Claimant will be discussed separately and in light of the State’s recoupment claim.;

On August 1, 1978, the CDB entered into contracts with Claimant in which Claimant agreed to be the general contractor in the construction 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 Resources Center. Claimant also was awarded a separate contract for the roofing of the Skilled Training Center. The project was scheduled to begin on August 30th 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 was $1,182,000.00. Claimant attached a bid addendum to its bid which limited some of its duties. The bid addendum was accepted by the State although to do so was contrary to State policy.

In fact, the project was finally completed on December 16, 1982, with final acceptance on June 24, 1983. 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 $450,603.50.

The Claimant, upon acceptance of its bid, was ready and willing to perform. The CDB, on August 30, 1978, told the Claimant to begin the project and authorized the Claimant to proceed. The initial problem to occur which caused the major delay was the inability of the CDB to obtain an excavator for the project. The excavation contract involved the clearing, grading and excavation necessary to complete the project. A prime contract was originally awarded to Eanes Excavation Company. Eanes was unable to obtain a performance bond as required. Rather than terminate the excavating contract with Eanes, the CDB requested Claimant to subcontract the excavating work to Eanes through Claimant. Although this was tried, it became obvious Eanes was incapable of performing the required excavation work. In March of 1979, the CDB indicated it would seek a new excavator.

On May 1, 1979, East St. Louis Equipment and Leasing submitted a bid for the excavation work. This excavator underestimated the work on its bid, requested more money, and was not paying its workers which resulted in the threat of a union shutdown. The CDB requested Claimant to pay this excavator more money to keep the project going. Other difficulties between the CDB and East St. Louis Equipment and Leasing led the new excavator to leave the job. 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 the major delay 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 the Claimant, the general contractor, were not able to get the project back in sync.

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 have 36 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.

Dennis Larson, the last of five project managers for the CDB, found the CDB at fault for delays at least in four major instances: (1) Breaking the projects down into multiple contracts. There were 36 total prime contractors. While the idea was to obtain minority participation, the idea backfired as one company, J. J. Altman & Company, was awarded many of the general-type work contracts. The coordination of so many contracts was very difficult; (2) The acceptance of K & S Associates bid attachments and subsequent award of general work contracts to K & S created many contractor responsibility disputes. Previous CDB legal decisions stated CDB did not accept qualified bids. However, CDB did accept this qualified bid; (3) The initial site excavation contract was mishandled. The CDB proceeded with issuing change orders to the general contractor which created payment and performance problems; (4) A delay was experienced over CDB’s decision concerning what roofing system would be acceptable in the flat section of the Skilled Training Center roof. The problem was noted in the A/E minutes of November 1979; however, a direction to the contractor was not given until March of 1980. This caused delay.

The A/E also caused delay. CDB officials considered the A/E construction documents prepared by the A/E as poor at best. Timely processing of paperwork was another cause of delay attributable to the A/E.

However, this Claimant was also accountable for substantial delays. Once the excavation delay put the project off to a bad start, K&S lacked the ability to coordinate and schedule the project to get it back on track. The Claimant’s inability to provide realistic schedules for the work process dictated the CDB giving the A/E responsibility for job sequencing on August 27, 1980. The A/E and John Kraska of Claimant appeared to have a personality conflict which also did not aid the orderly completion of the work. Other documented delays by K & S are as follows: coordination of subcontractors and prime contractors of K & S was a problem throughout the construction. The project layout by K & S caused delays in the structural concrete work. The slow steel erection by K & S’s subcontractor, Milner Steel, delayed the masonry start. There was a dispute over K&S not maintaining adequate heat in the building in the winters of 1980 and 1981. K & S’s removal of their trailer from the site in February of 1982 caused a lack of coordination on the punch-list work that remained to be done.

There were other delays where the blame is shared. The structural steel did not go up in time. The building was not enclosed on schedule so that 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 problems 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, such as Guarantee Electrical and Lowry Electric, were 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 and Lowry were prohibited from efficiently doing their work.

With the number of prime contractors on this project, coordination meetings should have been held more often than 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 were made for months.

The majority 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. Of the remainder of the delays, a substantial portion are attributable to the Claimant, the general contractor K & S Associates, Inc.

Some small delays were attributable to other prime contractors.

The Delay Claim

Claimant seeks monetary damages for costs incurred after the contractually scheduled completion date. The Skilled Training Center was to be completed by January 23, 1980. The building, in fact, was not completed until the spring of 1982. The Academic Building was to be completed by August 1, 1980, but wasn’t completed until the summer of 1982. Claimant’s Exhibits 212 and 214 suggest the delay costs sought by the Claimant for work on the Academic Building and Learning Resource Center and the Skilled Training Center, respectively. Damages of $129,992.00 are sought for the delay costs for the Academic Building and Learning Resource Center and damages of $162,774.00 are sought for the delay costs for the Skilled Training Center. These alleged damages are for the increased costs of carpenters, laborers, superintendents, clerical, management, material flows trailers, tooling, utilities, heating, insurance and equipment incurred by Claimant after the contractually scheduled completion date and which Claimant alleges would not have been incurred had the project been completed on time. Claimant also seeks delay costs of $4,559.00 attributable to the separate roofing contract on the Skilled Training Center and Claimant’s Exhibit 217 is used by Claimant to substantiate its claim.

Most if not all construction projects will have delays of one form or another. Projects with multiple contractors calling for coordinated efforts are more likely to have delays. The East St. Louis Community College project had 36 prime contractors when the usual project has just five. 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 Claimant and 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. It cites 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. In fact, the project lasted almost four years. The CDR gave authority to proceed on August 30,1978. 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. The appellate 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 owners. (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.”

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 some of the damages sustained by this Claimant due to the delays. The State’s recoupment action against K & S will be discussed later in this opinion. Because Claimant was responsible for substantial delay because of its inability to fulfill its coordination duties under the contracts, such culpability must be considered in determining damages. In addition, the damages to Claimant are difficult to asertain with exactitude. Claimant testified and presented sufficient evidence that its actual labor costs exceeded estimated labor costs. The labor and material delay costs sought by Claimant are as follows:

Academic Building and Learning Resource Center

Labor

Carpenters $ 7,500.00

Laborers 3,800.00

Superintendents 3,900.00

Clerical 1,560.00

Usage Superintendents 19,500.00

Usage Clerical 13,182.00

Usage Management 15,600.00

Laborers for clean-up 4,000.00

Loss of momentum 6,000.00

Losses due to redundant learning curves 5,000.00

Lack of orderly flow of material 4,000.00

Use of equipment 14,400.00

Utilities 13,050.00

Excessive temporary heating 3,500.00

Excessive replanning and scheduling 2,500.00

Escalation of material prices 3,000.00

Insurance 1,500.00

Board-up for weather protection 3,000.00

Cost of monies used ahead of change orders 5,000.00

Of these damages claimed, there is insufficient evidence presented by Claimant to justify any award for loss of momentum, losses due to redundant learning curves, excessive replanning and costs of K & S money.

Skilled Training Center

Labor

Carpenters $ 4,580.00

Laborers 3,343.00

Superintendents 5,000.00

Clerical 2,000.00

Usage Superintendents 30,500.00

Usage Clerical 20,618.00

Usage Management 24,400.00

Laborers for clean-up 3,000.00

Loss of momentum 5,600.00

Losses due to redundant learning curves 5,200.00

Lack of orderly flow of materials 4,000.00

Extended use of K & S equipment 21,650.00

Utilities 14,383.00

Temporary heating 3,000.00

Replanning and rescheduling 2,500.00

Escalation of material prices 2,500.00

Insurance 1,500.00

Excessive temporary board-up 3,000.00

Cost of K & S money 6,000.00

Of these damages claimed, there is insufficient evidence presented by Claimant to justify any award for loss of momentum, losses due to redundant learning curves, excessive replanning, and costs of K & S money.

Separate Roofing Contract

Labor

Roofers $ 560.00

Laborers 300.00

Superintendent/clerical 150.00

Usage of clerical 300.00

Supervision 600.00

Loss of momentum 400.00

Losses due to redundant learning curves 400.00

Lack of flow of materials 300.00

Use of equipment 400.00

Escalation of material prices 800.00

Insurance 349.00

Claimant presented insufficient evidence to justify any award for loss of momentum and losses due to redundant learning curves.

There was testimony that the original bid was reasonable. 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 almost four years rather than the 730 days. The material increases were attributed to cost increases and storage.

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, along with the substantial delays caused by Claimant, we find the losses occasioned by delay for insurance, equipment, utilities, labor and material costs as heretofore stated to be $50,000.00. 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. 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. This amount takes into account the aforesaid variables and Claimant’s culpability in the delays. Of course, the State’s recoupment action would have an effect on the amount of any award.

The Lapsed Appropriations Claim

The State has acknowledged that Claimant is entitled to $46,204.09 for its lapsed appropriations claim subject to the State’s recoupment action herein. However, we will need more information on this issue as will be noted later.

The Claim for Reimbursement for Money Paid by Claimant to an Excavator

The project manager from the CDB directed Claimant to pay East St. Louis Community Equipment & Leasing, the second excavator, the sum of $18,584.08. This excavator had underestimated the job and was not paying his workers. A union had threatened to shut the entire project down. The CDB directed Claimant to pay the extra money to the excavator over Claimant’s protest. At the time of the payment, the excavator was not due any further payment based upon the percentage of completion of its contract. The CDB advised Claimant they would be reimbursed for such payment in a matter of weeks. To date, Claimant has not been so reimbursed. Respondent failed to respond to this claim in its brief. Claimant is entitled to reimbursement of the $18,584.08 paid by Claimant and with the allowable mark-up, Claimant is entitled to $26,369.00.

The Claim for Excessive Layouts

Because of the excavation problems, K & S had to perform a number of layouts because the excavator failed to perform in a timely fashion and therefore Claimant’s layout stakes would be removed or buried. Claimant complained to the CDB about this problem and incurred $3,500.00 in additional costs therefrom. The State did not argue against this claim in its brief.

Claims Resulting from the Lack of Security at the Site

Claimant seeks damages for an alleged violation of a warranty on the part of the State as owner to keep the work site safe. East St. Louis at the time of construction was widely known to be a high crime area. The contract documents required Claimant to put up a construction fence. No other security was provided by anyone. Claimant argues that the State should have provided a night watchman and a guard dog. K & S suffered break-ins on December 10, 1979, March 3, 1980, May 4, 1980, May 19, 1981, and May 28, 1981. They also had vandalism problems on August 28, 1981, and a further loss of couplings not covered by insurance totaling $75.00. Total losses from theft and vandalism to K & S were $5,989.00. Claimant also seeks an additional $400.00 because it was required to store some materials off site to protect the materials. Claimant is not entitled to an award for its claim for lack of security at the site. The contract manual at page 01010-5, sec. 1.06(d) places the responsibility for such security on Claimant. Section 01630, paragraph 1.01(B) also states that the work includes an obligation on the part of each contractor to provide and maintain storage for materials and equipment to be installed on project and protection for stored materials and equipment on and off site. This language is not so ambiguous as argued by Claimant and covers the losses as alleged by Claimant. In fact, most of the losses are insurance deductibles. Claimant therefore had insurance for part of these losses. Because Claimant had the obligation for security, its request for an award for damages for lack of security by the State is denied as the Claimant has failed to prove that security was beyond the basic requirements of its contract.

The Claim for Consumables

Claimant attempts to create an ambiguity here where none exists. Originally the contract manual had a section for Temporary Utilities encompassing sections 1.04A and 1.04B. Section 1.04B was deleted by addendum 3.

Section 104 stated as follows:

“A. Installation, operation & maintenance
1. Designated contractor pay all costs on installation, operation and maintenance of temporary utilities for designated time periods.
a) Heating: General Contractor until substantial completion;
b) Ventilation: General Contractor until substantial completion;
c) Electrical system: General Contractor until substantial completion;
d) Lighting systems: General Contractor until substantial completion;
e) Telephone services: General Contractor until final completion;
f) Water service: General Contractor until substantial completion;
g) Toilets: General Contractor until substantial completion.” (Emphasis added.)

The contract document and its language were not ambiguous. Contract obligations are determined from the plain wording of the contract. Here, early-on, Claimant knew that the State was holding Claimant responsible for all consumables. Payment for the consumables were a part of Claimant’s basic contract. The documents were sufficiently clear. Claimant has failed to prove this claim.

The Claim for Additional Labor Resulting from Roofing Delay and Water Leaks on the Academic Building and Learning Resource Center

Co-Mac, a prime contractor, failed to provide the roofing for the Academic Building and Learning Resource Center in a timely fashion and water leaked into the building. Because there were no proper sewers, the water had to be mopped up and removed from the building. The delay in roofing was six to eight months. Claimant had to expend additional manpower to clean up and mop up the water due to Co-Mac’s failure to perform for a total of $2,000.00 in damages. Claimant blames the CDB for failing to terminate Co-Mac and asserts that Co-Mac, as a prime contractor, was not subject to any penalties or action from Claimant to perform.

The Respondent asserts that the State was not to blame for Co-Mac’s, failure to perform and that Claimant was responsible for all scheduling, coordinating, and expediting of the work. However* only the CDB had the power to terminate a prime contractor.

The Respondent failed to use its power to push Co-Mac to work. Only the State’s powers had adequate penalties behind them to force Co-Mac to work. Here the delay was caused by the State to a substantial degree and the contractor is entitled to damages of $2,000.00.

Metal Siding for Walkways

Metal siding for walkways was not included in Claimant’s bid on the Academic Building and Learning Resource Center. The CDB ordered Claimant to perform the work over Claimant’s protest. When the State modifies a contract, the Claimant is entitled to additional compensation. All of Claimant’s claim will be allowed in the sum of $9,899.00. The CDB accepted Claimant’s bid and must live with the consequences of those things not included in the bid.

Claim for End Splash and Support

An error in a construction drawing indicated that a shelf was to be placed between two walls but failed to show any indication of a support for the shelf. Claimant was directed by the CDB to correct the error. The Claimant’s extra work was due to the State’s error in the plans and specifications and Claimant’s claim for $310.50 should be allowed.

Expansion Joint Covers in the Academic Building and Learning Resource Center

Here again, the specification for expansion joints was not included in Claimant’s bid which was accepted by the CDB. The State did pay Claimant extra for expansion joint covers in the Skilled Training Center but refused to pay extra for the expansion joint covers in the Academic Building and Learning Resource Center. For the reasons heretofore stated, Claimant is entitled to $2,462.50 for performing additional work at the direction of the CDB based on inadequate specifications and drawings.

Claim for Additional Lintels Due to Architectural Error

For the foregoing reasons, Claimant is entitled to $2,196.00 for this claim due to inadequate and conflicting drawings requiring Claimant to perform additional work at the direction of the CDB.

Claim for Aluminum Thresholds

Claimant is entitled to $237.00 on this claim. The aluminum thresholds were not in its bid and were extra work due to poor drawings and specifications.

Claim for Mop-Up of Coal Tar Buildup at the Skilled Training Center for the Center Section of the Roof

The project specifications outline two different roofing types for the center section of the Skilled Training Center roof. A disagreement developed over whether to use an expensive coal-tar buildup roof or a less expensive asphalt surface on the roof. The A/E took the position the coal-tar must be used. Claimant took the position that the specifications were not clear and the asphalt surface was an appropriate material under the specifications. Eventually the CDB, after a second review, adopted Claimant’s position that the specifications were unclear as to what type roofing to use. The State did then advise Claimant that a coal-tar buildup surface was to be used and Claimant received a verbal authorization to proceed. The change order was not issued until four months later and for no explained reason was reduced over $7,000.00 below the agreed price for the coal-tar buildup.

The State later raised the amount they would pay by almost $4,000.00. The Claimant introduced evidence that the original agreed price was reasonable and the State does not argue this issue in its brief. Claimant is entitled to $3,261.00 on its separate roofing contract for the Skilled Training Center. Claimant also seeks $1,703.00 as a partial reinstatement of a reduction made in a change order as a result of the deletion of the requirement that K & S Associates supply a Lelotex guarantee on the center roof section. The guarantee had been deleted as the State’s project specifications failed to meet Lelotex requirements. The State, entitled to a deduction, reduced K & S’s contract price $4,253.00. Claimant protested that the deduction should be only $2,550.00. The evidence presented by Claimant is insufficient to show that the reduction made by Respondent was not reasonable. The Claimant has the burden of proving its damages.

Claim for Sandblasting and Painting of Metal Decking

While the roof was delayed on the Skilled Training Center by the State’s inaction on the dispute as to the proper roofing material, water leaked into the building. Metal decking deteriorated from the elements. Claimant had to perform extra work to sandblast and paint the decking at a cost of $2,362.50 to which Claimant has presented sufficient evidence to substantiate its claim.

Skilled Training Center Security Losses

The Court previously disallowed the claim for security losses as security was an obligation of Claimant under the basic contract documents.

Window Water Leaks Caused by CDB’s Failure to Properly Administer Glazing Contract

Claimant seeks $600.00 for an alleged failure of CDB to properly administer its prime contract with Southern Illinois Plate Glass. While the dispute over window caulking between CDB and Southern Illinois Plate Glass was ongoing, K & S had to mop up water and repair items damaged by water. Claimant made no showing that CDB’s actions as to the contractor were unreasonable or the cause of delay. It may have been that CDB was right in the dispute. This claim is denied.

Claim for Extra Labor and Material Due to Water Penetration for Lack of Center Section Roofing

The Claimant seeks additional damages for labor, materials, bond costs and markups based on water damage caused by the delay in the roofing of the Skilled Training Center. Because the sewer system was inadequate, water entered the building which had to be mopped up after each rain. The structural steel deteriorated due to the water and had to be refurbished. The total claimed including materials, labor, bond increase, overhead, and profit was testified to by Mr. Kraska of K & S to be $15,336.00. There was no contrary testimony to contradict the amount claimed and that such amount was reasonable. This claim will be allowed.

The Respondent does not contest Claimant’s claim for profits which were included in the foregoing amount of damages citing Egizii Electric v. State (1973), 32 Ill. Ct. Cl. 93. Egizii 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 not 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.

The damages proven by Claimant for its delay claim and direct claims, as heretofore found by the Court, are reasonable.

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

Delay claim $150,000.00

Lapsed appropriation claim 46.204.00

Claim for monies paid to excavator 26.369.00

Claim for excessive layouts 3.500.00

Claim for Co-Mac’s failure to timely perform 2,000.00

Metal siding for walkways 9.899.00

Claim for end splash and support 310.50

Claim for expansion joint covers 2,462.56

Claim for additional lintels 2.196.00

Claim for aluminum thresholds 237.00

Claim for coal-tar buildup roof on the center section of the Skilled Training Center 3,261.00

Claim for sandblasting and painting metal deck 2,362.50

Claim for extras due to water penetration because of lack of center section roofing 15.336.00

Total Damages $264,137.56

Claimant also requests interest on its damages. The Court of Claims has consistently followed the rule that the State is not liable for interest in the absence of a statute expressly subjecting it to such liability. Claimant cites no statute expressly making the State liable for interest in this case. Gendel v. State (1987), 38 Ill. Ct. Cl. 76; Doe v. State (1988), 40 Ill. Ct. Cl. 37.

Three 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, 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 would be 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.

The second remaining question before the Court is the State’s recoupment action against Claimant. The State cites 111. Rev. Stat. 1983, ch. 37, par. 439.25 in its affirmative pleading against Claimant for recovery, setoff or recoupment. Recoupment is a defense and this Court has jurisdiction thereof pursuant to section 8(e) of the rules of the Court of Claims.

The State seeks recoupment for the damages awarded by the Court to Lippert Brick, Lowry Electric and Guarantee Electrical in an amount attributable to the breaches of the contract on the part of K & S Associates, Inc. K & S as general contractor had the obligation to manage the entire project by supervising, coordinating and expediting the assigned contractors. The general contractor had the duty to inspect the work as it was performed to assure compliance with contract documents.

The record is replete with competent evidence that the Claimant was not capable of coordinating this project once delay due to excavation problems took the project out of sync. Eventually the State took the coordination duties from K & S and gave them to the A/E due to Claimant’s inability to coordinate the project. K & S was unable to develop appropriate recovery schedules. The construction schedules prepared by K & S were not realistic and provided for work out of sequence. K & S failed to provide office space at the site as required early in the project. This caused administration problems as no phones or utilities were available and pay progress meetings could not be held at the site. K & S failed to provide temporary heat at the site during the winter which slowed the progress of the work. Walls had to be relocated, anchor bolts required base plate corrections, pilings were not coordinated, and window frames had to be disassembled and refabricated due to K & S inadequacies. K & S was slow in processing insurance claims of Guarantee Electrical. Claimant was also very slow in submitting shop drawings which caused delays and K & S also has some culpability in the delay of the installation of the structural steel.

The State is to blame for the majority of delay on this project due to the excavation delay. The A/E has to share in the blame, too, for its poor draftsmanship. The Claimant must also be charged with a substantial part of the delay due particularly to its inability to schedule and coordinate the project. While again the Court may seem arbitrary in its ruling, it would appear that a fair percentage of delay attributable to K & S would be 25%. The State was the cause of 65% of the delay and the A/E and others responsible for 10% of the delay. The damages in the three other cases totalled $310,403.81, 25% of which is $77,600.95 and that amount will be set off. We find that this Claimant should be compensated $186,536.61.

Finally, 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 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 to 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 14 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, 1989), 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.

AMENDED ORDER

This cause comes on to be heard on the Court’s own motion to amend the order entered herein on June 18, 1991, so as to make a technical correction;

It is hereby ordered that the amount of damages for the Claimant K & S Associates, Inc. stated in the third line from the bottom of page 2 of the aforesaid order is changed from $264,137.56 to $186,536.61.


source: Caselaw Access Project

license: Public Domain

text:
    (No. 84-CC-1816
    John J. Gordon and Savanna State Bank, Claimants, v. The State of Illinois, Respondent.

      Opinion filed January 8, 1991.

    Nack, Richardson & Kelly (William A. Kelly, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (John Buckley, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Montana, C.J.

This cause arises out of a dispute concerning Claimants’ alleged ownership and security interest in a parcel of land located next to the Plum River by Illinois Route 84 south of Savanna, Illinois.

In 1956 John J. Gordon and his now deceased wife, Harriet B. Gordon, purchased a parcel of property from John and Jewell Meeker. A building housing a restaurant known as Meeker’s Seafood Inn was located on the property. The building had housed a restaurant since at least 1942. A parking lot used by restaurant patrons was located immediately adjacent to the restaurant to the west. The legal description in the 1956 deed to the Gordons did not include the property containing the parking lot which is now claimed by Claimants and Respondent. The record title owner of the property on which the parking lot was located was Oskar Skaien and previously his predecessors in title until 1977 when Skaien quitclaimed his interest to the State of Illinois.

The Gordons continued to operate the restaurant until 1972 when the restaurant was sold on contract to Gary Harmsen who continued to operate the restaurant. In 1976 Harmsmen defaulted and Savanna State Bank instituted foreclosure proceedings. Possession passed to Lyle Law as receiver and John J. Gordon remains the owner.

In 1977 the Department of Transportation of the State of Illinois (D.O.T.) was constructing the current bridge for Route 84 across the Plum River when it took control of a portion of the parking lot on the property at issue for use as the northern approach to the bridge. It appears that three other bridges had been built crossing the Plum River at this approximate location and then torn down when replaced by new bridges constructed next to the bridge being replaced. The current bridge is allegedly in the approximate location of a bridge which existed prior to 1929.

In 1980 Claimants filed suit in the circuit court of Carroll County seeking the issuance of a writ of mandamus compelling D.O.T. to commence condemnation proceedings regarding the portion of the parking lot D.O.T. took control of in 1977. Claimants asserted that the portion of the parking lot taken by D.O.T. was on land that their predecessors had acquired from Oskar Skaien and his predecessors in title by adverse possession. Exhibit A attached to Claimants’ complaint was the legal description of the property Gordon allegedly owned and in which Savanna State Bank allegedly held a security interest. It stated:

“A part of the Northwest Quarter of Section Fourteen (14), Township Twenty-four (24) North, Range Three (3), East of the Fourth Principal Meridian, bounded and described as follows;
Beginning at a point on the East line of the Northeast Quarter of the Northwest Quarter of Section Fourteen (14), Township Twenty-four (24) North, Range Three (3), East of the Fourth Principal Meridian, Nine Hundred Ninety-two (992) feet South of the Northeast comer of said Northeast Quarter of the Northwest Quarter;
Thence South 19°10' East 272.0 feet;
Thence South 74°20' West 190.0 feet to a point on the East Right of Way line of Illinois State Route No. 84;
Thence North 18°40' West 304.0 feet more or less to a concrete Right of Way post on the East Right of Way line of Route No. 84;
Thence North 83°44' East 191.5 feet to the Point of Beginning.
EXCEPT
Right of ingress and egress over the following easements is hereby reserved by Harriett B. Gordon as follows;
Easement ‘A’ — a twelve (12) foot driveway, the center of the east end of which is on the west line and 206 feet north of the Southeast corner of the above tract — the center of the West end is on the West line and 238 feet North of the Southwest comer of the above described tract.
Easement ‘B’ — a twelve (12) foot driveway parallel to and immediately North of the South line.”

This legal description includes the disputed property that is the subject of this claim. Exhibit B attached to Claimants’ complaint was a copy of a plat in which the disputed parcel of property is shaded. D.O.T. claimed it owned this property based on the 1977 quitclaim deed from Oskar Skaien or by common law dedication or prescription. The legal description of the disputed shaded property was described in interrogatories answered by Gordon as:

“A part of the Northwest Quarter of Section Fourteen (14), Township Twenty-four (24) North, Range Three (3), East of the Fourth Principal Meridian, bounded and described as follows:
Beginning at a point on the East line of the Northeast Quarter of the Northwest Quarter of Section Fourteen (14), Township Twenty-four (24) North, Range Three (3) East of the Fourth Principal Meridian, Nine Hundred Ninety-two (992) feet South of the Northeast comer of said Northeast Quarter of the Northwest Quarter;
Thence South 19° 10' East 272.0 feet;
Thence South 74° 20' West 190.0 feet to a point on the East Right-of-Way line of Illinois State Route No. 84;
Thence North 18° 40' West 304.0 feet more or less to a concrete Right-of-Way post on the East Right-of-Way line of Route No. 84;
Thence North 83° 44' East 191.5 feet to the point of beginning.
EXCEPT: Right of ingress and egress over the following easements is hereby reserved by Harriet B. Gordon as follows:
Easement ‘A’: A twelve (12) foot driveway, the center of the east end of which is on the east line and 206 feet north of the Southeast corner of the above tract — the center of the West end is on the West line and 238 feet North of the Southwest corner of the above described tract.
Easement ‘B’: A twelve foot driveway parallel to and immediately North of the South line.

ALSO, EXCEPTING THEREFROM THE FOLLOWING:

A part of the Northwest Quarter of Section Fourteen (14), Township Twenty-four (24), North, Range Three (3), East of the Fourth Principal Meridian, bounded and described as follows: Beginning at a point on the East line of the Northeast Quarter of the Northwest Quarter of Section Fourteen (14), Township Twenty-four (24) North, Range Three (3) East of the Fourth Principal Meridian, Nine Hundred Ninety-two (992) feet South of the Northeast corner of the said Northeast Quarter of the Northwest Quarter, from which said point of beginning a section of steel fence post driven into the ground and using a declination of North Four (4) degrees East, running thence along said East line South Two (2) degrees Forty-five (45) minutes East Two Hundred Sixty-eight (268) feet to a stake on the North bank of Plum River; thence along said North bank South Seventy-two (72) degrees Twenty (20) minutes West Forty-six (46) feet to the East line of State Bond Issue Route Number 80; thence along said East line North Seventeen (17) degrees Forty (40) minutes West One Hundred Twenty-five (125) feet to a concrete right of way post; thence North Twenty-nine (29) degrees Forty-four (44) minutes West One Hundred Sixty-eight (168) feet to a section of steel fence post driven into the ground; and thence North Eighty-four (84) degrees Thirty (30) minutes East One Hundred Forty-five and Two Tenths (145.2) feet to the point of beginning, all in the Northeast Quarter of the Northwest Quarter of section Fourteen (14), Township Twenty-four (24) North, Range Three (3) East of the Fourth Principal Meridian and containing Fifty-seven Hundredths (.57) acres, more or less.

ALSO, EXCEPTING THEREFROM THE FOLLOWING:

The property lying East of the East line of the Northwest Quarter of Section Fourteen (14), Township Twenty-four (24) Range Three (3) East of the Fourth Principal Meridian.”

Following a bench trial the trial court issued a memorandum opinion finding that Claimants and their predecessors had adversely possessed the disputed property since 1942 against Skaien and his predecessors in title, and that D.O.T. had not acquired the property because Skaien did not have an interest in the property when he conveyed the quitclaim deed to D.O.T. The trial court further found that D.O.T. had failed to prove it acquired the property by common law dedication or prescription. The clerk of the circuit court was directed to issue the writ as prayed for by Claimants.

D.O.T. filed a post-trial motion asking for reconsideration and a rehearing. Shortly thereafter D.O.T. filed a motion to dismiss requesting that the action be dismissed since the State could not be a defendant or party in any court except as provided in the Court of Claims Act (111. Rev. Stat. 1979, ch. 37, par. 439.1 et seq.). After the trial court denied both motions D.O.T. appealed to the appellate court of Illinois, second district, seeking reversal of the trial court judgment and remand for entry of an order of dismissal.

In Gordon v. Department of Transportation (1982), 109 Ill. App. 3d 1071, 441 N.E.2d 904, the trial court judgment was reversed because the appellate court determined that the proper forum for Claimants’ lawsuit was the Illinois Court of Claims. In so doing the appellate court reasoned at 109 Ill. App. 3d 1074, 441 N.E.2d 906:

“In the case at bar, the Department of Transportation of the State of Illinois is named as the only defendant in this lawsuit and ownership of the property in question was disputed, litigated and determined in the court below. A department of State government is a part, or division, of the government, and a suit against a department of the State is a suit against the State. (Noorman v. Department of Public Works (1937), 366 Ill. 216, 8 N.E.2d 637.) When the property of the State is involved, the State is directly and adversely affected by the suit and the action must be held to be one against the State. (Sass v. Kramer (1978), 72 Ill. 2d 485, 21 Ill.Dec. 528, 381 N.E.2d 975.) It is readily apparent here that the State is, in reality, a defendant in a suit in which a determination was made in the court below that the State had no interest in certain property. Clearly, then, the action is one against the State which under the holding in Sass cannot be brought in any court except as provided in the Court of Claims Act.”

In response to Claimants’ argument that a mandamus proceeding does not pursue a claim against the State, but rather seeks to enforce the performance of an official duty by a public official, the appellate court stated at 109 Ill. App. 3d 1075, 441 N.E.2d 907:

“Mandamus is an appropriate remedy to compel a public officer to exercise the discretion vested in him (People ex rel. Tucker v. Kotsos (1977), 68 Ill. 2d 88, 99, 11 Ill.Dec. 295, 368 N.E.2d 903), or to compel public officials to comply with statutory or constitutional duties. (Overend v. Guard (1981), 98 Ill.App.3d 441, 443, 53 Ill.Dec. 940, 424 N.E.2d 731.) Nonetheless, the defendant in the instant case is a department of State government which makes this a suit against the State. (Noorman v. Department of Public Works (1937), 366 Ill. 216, 8 N.E.2d 637.) Thus, the State is a defendant in a suit which, pursuant to ‘An Act in relation to immunity for the State of Illinois’ (Ill. Rev. Stat. 1979, ch. 127, par. 801), cannot be maintained in any court except as provided in the Court of Claims Act. See Sass v. Kramer (1978), 72 Ill. 2d 485, 21 Ill.Dec. 528, 381 N.E.2d 975.
Even were plaintiffs here to have brought this action against the Secretary of the Department of Transportation, under the facts of this case the issue which must necessarily be decided before a writ of mandamus could issue compelling institution of eminent domain proceedings is ownership of the property in question. As the determination of title to property involves and directly affects an interest in property of the State of Illinois, the State is the real party in interest and cannot be sued except as provided in the Court of Claims Act. (Sass v. Kramer (1978), 72 Ill. 2d 485, 21 Ill.Dec. 528, 381 N.E.2d 975.)”

Claimants then appealed to the supreme court of Illinois. In Gordon v. Department of Transportation (1983), 99 Ill. 2d 44, 457 N.E.2d 403, the supreme court affirmed the appellate court’s decision stating at 99 Ill. 2d 47, 457 N.E.2d 405:

“Section 4 of article XIII of the Illinois Constitution of 1970 provides:
‘Except as the General Assembly may provide by law, sovereign immunity in the State is abolished.’
Section 1 of ‘An Act in relation to immunity for the State of Illinois’ (Ill. Rev. Stat. 1979, ch. 127, par. 801) provides:
‘Except as provided in ‘An Act to create the Court of Claims, to prescribe its powers and duties, and to repeal An Act herein named’, filed July 17, 1945, as amended, the State of Illinois shall not be made a defendant or party in any court.’
In the case at bar, the State of Illinois has title to the disputed property. Since the State acquired the property by quitclaim deed, it is clear that the Court of Claims, and not the circuit court, had jurisdiction. It is the legislature’s task to codify public policy; we refrain from undertaking such impermissible judicial legislation. (S.J. Groves & Sons Co. v. State (1982), 93 Ill.2d 397, 407, 67 Ill.Dec. 92, 444 N.E.2d 131.) We need not reach the question of whether a different result would obtain if the State were not the actual owner of the property. (See also Granite City Moose Lodge No. 272 v. Kramer (1983), 96 Ill.2d 265, 268-69, 70 Ill.Dec. 505, 449 N.E.2d 852; Sass v. Kramer (1978), 72 Ill.2d 485, 489, 21 Ill.Dec. 528, 381 N.E.2d 975; Comment, State Immunity in Illinois: The Court of Claims 15 DePaul L. Rev. 340, 342-44 (1966).)”

While their appeal was pending with the supreme court Claimants filed their first complaint with this Court on January 23, 1983. An amended complaint was filed on December 11, 1985, and a second amended complaint was filed on February 27,1986. A hearing was held before Commissioner Barry Fisher who duly filed his report. Oral argument before the judges of the Court of Claims was held on December 6,1988.

Claimants’ second amended complaint states three counts and attached to it are the Exhibit A and Exhibit B that were attached to the original trial court complaint. Count I seeks the issuance of a writ of mandamus ordering the secretary of D.O.T. to commence condemnation proceedings with regard to the property taken. Count II seeks approximately $153,000.00 based on an implied contract between the State and Claimants for the State to pay just compensation for the property allegedly taken from Claimants. Count III requests the Court to quiet title to the disputed property in favor of Claimants. At the oral argument however, Claimants’ attorney indicated Claimants were only seeking to have this Court determine whether Claimants’ right to the disputed property had been perfected through adverse possession. He stated that if Claimants were successful in having the Court determine the Claimants had a superior claim to the property than the State, then Claimants would return to the circuit court and seek a writ of mandamus if negotiations with D.O.T. were unsuccessful. Respondent’s attorney agreed with Claimants’ attorney’s characterization of the procedure that would be followed if Claimants received a favorable decision from the Court regarding the title to disputed property.

It appears the parties have agreed to have the record of the prior proceedings serve as the record for this Court to use in making its determination. The report submitted by Commissioner Fisher was accompanied by the following items:

1. Illinois Supreme Court Order

2. Proposed Order of Claimant

3. Proposed Order of Respondent

4. Court Records of Carroll County 80-MR-l

5. 8 Photos of location in question

6. Petitioner’s Brief Carroll County

7. Appellate Court Order 82-46

8. Motion to Amend

9. Respondent’s Argument and Brief Carroll County

10. Petition for Writ of Mandamus

11. Memorandum Opinion & Order entered November 20,1981

12. Evidence Deposition Circuit Court

13. Historical Background Circuit Court

In rendering this opinion, we observe that in some respects the record lacks detail. However, it is the parties’ responsibility, not ours, to make a record that supports their respective positions. We presume that the parties fulfilled that responsibility to the best of their ability and we will rule accordingly.

Claimants allege they and their predecessors, the Meekers, have adversely possessed the disputed property from 1942 until D.O.T. forcibly took a portion of it in 1977. They assert that D.O.T.’s taking under color of the Skaien quitclaim deed was beyond the 20-year limitations period formerly set forth in section 1 of the Limitations Act (Ill. Rev. Stat. 1973, ch. 83, par. 1 et seq.), but now incorporated in the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 1 — 101 et seq.) in section 13 — 101. That section provides:

“No person shall commence an action for the recovery of lands, nor make an entry thereon, unless within 20 years after the right to bring such action or make such entry first accrued, or within 20 years after he, she or those from, by, or under whom he or she claims, have acquired title or possession of the premises, except as provided in Sections 13-102 through 13-122 of this Act.”

Regarding claims of adverse possession the supreme court of Illinois stated in Joiner v. Janssen (1981), 85 Ill. 2d 74, 421 N.E.2d 170; at 85 Ill.2d 80, 421 N.E.2d 173:

“The essence of the doctrine of adverse possession is the holding of the land adversely to the true titleholder. ‘A party, claiming title by adverse possession, always claims in derogation of the right of the real owner. He admits that the legal title is in another. He rests his claim not upon a title in himself, as the true owner, but upon holding adversely to the true owner for the period prescribed by the Statute of Limitations.’ (Mercer v. Wayman (1956), 9 Ill. 2d 441, 445-46, 137 N.E.2d 815; White v. Harris (1903), 206 Ill. 584, 592, 69 N.E. 519; 3 Am. Jur.2d Adverse Possession sec. 7, at 87 (1962).) To hold that because the possessor knows or should know that record title is in another precludes any possibility of the possessor’s title being adverse is the antithesis of the doctrine of adverse possession as it has existed in this State. (Illinois Central R.R. Co. v. Houghton (1888), 126 Ill. 233, 18 N.E. 301.) The possessor’s good faith in claiming title is, of course, required by the statutory provisions relating to possession for seven years under color of title (Ill. Rev. Stat. 1977, ch. 83, pars. 6,7); it is not relevant under the 20-year doctrine (Ill. Rev. Stat. 1977, ch. 83, par. 1).
What is essential in order to establish title under the 20-year adverse-possession doctrine incorporated in section 1 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 1) is that there must be 20 years’ concurrent existence of the five elements: (I) continuous, (2) hostile or adverse, (3) actual, (4) open, notorious, and exclusive possession of the premises, (5) under claim of title inconsistent with that of the true owner. (Cannella v. Doran (1961), 21 Ill. 2d 514, 173 N.E.2d 512; Cagle v. Valter (1960), 20 Ill. 2d 589, 170 N.E.2d 593; Mercer, supra.) Presumptions are in favor of the title owner, and the burden of proof upon the adverse possessor requires that each element be proved by clear and unequivocal evidence. (Walter v. Jones (1958), 15 Ill.2d 220, 154 N.E.2d 150; Schwartz v. Piper (1954), 4 Ill. 2d 488, 122 N.E.2d 535.) The incidents of that possession determine its character. The ‘hostile’ nature of the possession does not imply actual ill will, but only the assertion of ownership incompatible with that of the true owner and all others. (Hunsley v. Valter (1958), 12 Ill. 2d 608, 147 N.E.2d 356.) ‘Where there has been an actual, visible and exclusive possession for twenty years it is not essential to the bar of the Statute of Limitations that there should have been any muniment of title or any oral declaration of claim of title, but it is sufficient if the proof shows that the party in possession has acted so as to clearly indicate that he did claim title, ‘No mere words could more satisfactorily assert that the defendant claimed title than its continued exercise of acts of ownership over the property for a period of twenty years does. Using and controlling property as owner is the ordinary mode of asserting claim of title, and, indeed, is the only proof of which a claim of title to a very large proportion of property is susceptible.’ [Citations.] Such improvements or acts of dominion over the land as will indicate to persons residing in the immediate neighborhood who has the exclusive management and control of the land are sufficient to constitute possession. [Citations.]’ Augustus v. Lydig (1983), 353 Ill. 215, 221-22, 187 N.E.278; see also Hunsley v. Valter (1958), 12 Ill. 2d 608, 614, 147 N.E.2d 356.”

The record before this Court shows Gordon and his predecessors in title used the disputed property for parking of restaurant patrons from at least 1942 to 1977. The parking area was unpaved until 1964 when Gordon had a portion of it blacktopped. Gordon has proven the existence of the necessary elements set forth in Joiner, supra, to establish adverse possession. He and his predecessors had actual, open, notorious, and exclusive possession of the property for a continuous period over 20 years. The possession was hostile or adverse to the true owners of the property at the time, Oskar Skaien and his predecessors, and Gordon and his predecessors while in possession acted so as to clearly indicate that they did claim title. We must conclude that when D.O.T. acquired title to the disputed property by quitclaim deed from Oskar Skaien, Skaien’s interest in the property had already been extinguished by the adverse possession of Gordon and his predecessors. A quitclaim deed conveys only the grantor’s interests in the property described therein. (See Hulke v. International Manufacturing Co. (1957), 14 Ill. App. 2d 5, 31, 142 N.E.2d 717, 731.) Therefore, the State, through D.O.T. did not acquire any interest in the property through the Skaien quitclaim deed.

Respondent, however, maintains it already had an interest in the disputed property irrespective of the Skaien deed based on either common-law dedication or prescription. The adverse possession claimed by Gordon was therefore against the State. Respondent correctly propounds that adverse possession does not run against a governmental body regarding property devoted to public use. See People ex rel. Kenney v. City of Goreville (1987), 154 Ill. App. 3d 1091, 1098, 507 N.E.2d 1247, 1251.

In People ex rel. Markgraff v. Rosenfield (1943), 383 Ill. 468, 50 N.E.2d 479, the supreme court of Illinois stated at 383 Ill. 473, 50 N.E.2d 482:

“To constitute a common-law dedication it is essential that there be an intention on the part of the owner of the land to donate the same to the public use and an acceptance thereof by the public. The proof of all these facts must be clear and unequivocal. The vital and controlling principle in a common-law dedication is the animus donandi, which may be indicated by a formal declaration or by acts from which it may be so fairly presumed as to equitably estop him from denying such intention. But without such manifestation of intent by either of those modes, it cannot be said that a valid dedication is shown.”

The legal description in the warranty deed by which the Gordons acquired the property on which the restaurant stood from the Meekers in 1956, as set forth in interrogatories answered by Gordon, describes the southern boundary of the property as running “thence along said North Bank South Seventy-two (72) degrees Twenty (20) minutes West Forty-six (46) feet to the East line of State Bond Issue Route Number 80 * * (State Route 80 was later changed to State Route 84). This is also set forth in Gordon’s legal description of the disputed shaded property on page 5, supra. This indicates that at one time the northern approach to a prior bridge may have indeed run through the disputed property. However, based on the record before this Court, Respondent has not provided the necessary proof of an intention on the part of any owners in the Skaien chain of title to ever dedicate a portion of the disputed property to the public. Respondent’s contention asserting possession of an interest in the property based on common law dedication must therefore fail.

Section 2 — 202 of the Illinois Highway Code (Ill. Rev. Stat. 1989, ch. 121, par. 1 — 101 et seq.) provides that a public highway may be established if 15 years of public use can be shown. The appellate court of Illinois, fifth district, stated in People ex rel. Kenney, supra, at 154 Ill. App. 3d 1097, 507 N.E.2d 1251:

“The requirements necessary to establish a public highway by prescription under the statute are the same as those necessary to establish a private easement by prescription. The use by the public must be adverse, under a claim of right, continuous, and uninterrupted, with the knowledge of the owner but without his consent. People ex rel. Carson v. Mateyka (1978), 57 Ill. App. 3d 991, 997-98,15 Ill.Dec. 125, 129-30, 373 N.E.2d 471, 475-76.)”

As stated before, it appears the northern approach to a prior bridge may have run through the disputed property at one time. Respondent asserts the approach to the bridge was used from 1870 to 1929. However, based on the record before this Court, Respondent has not provided evidence showing continuous and uninterrupted use of an approach and bridge for any 15-year period during that time to establish a public highway. Respondent’s contention asserting possession of an interest in the property based on prescription must therefore fail.

Based on the foregoing, we find that the State of Illinois did not acquire any interest in the disputed property in 1977 through the quitclaim deed from Oskar Skaien because Skaien’s interest had been previously extinguished by adverse possession by John J. Gordon and his predecessors. We further find that the State of Illinois has failed to prove it had an interest in the disputed property irrespective of the Skaien quitclaim deed based on common-law dedication or prescription that would have prevented John J. Gordon and his predecessors from acquiring the disputed property by adverse possession.


author: Raucci, J. Raucci, J. Raucci, J. Raucci, J.

text:
    (No. 84-CC-2589
    Virginia J. Seitenzahl a/k/a Virginia J. Scellato, Claimant, v. The State of Illinois, Respondent.

      Order filed June 22, 1987.

      Order on Motion to Dismiss filed January 11, 1990.

      Order on Motion to Reconsider and/or Clarify filed May 3, 1990.

      Order on Motion to Reconsider filed September 17, 1990.

    Drugas, Maione, Morgan & Hyink (Robert C. Samko, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Gregory Abbott, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Raucci, J.

This cause coming on to be heard on the motion of Respondent to dismiss the claim herein, the response of Claimant and the Court being fully advised in the premises:

The court finds that the instant claim sounds in tort and seeks recovery for personal injuries allegedly sustained on March 23,1983, as a result of negligence on the part of the Respondent.

Section 22 — 1 of the Court of Claims Act (Ill. Rev. Stat. 1983, ch. 37, par. 439.22 — 1) provided that the requisite notice of action for personal injuries must contain certain information, including:

“• e * the place or location where the accident occurred * ° ®” and, “® ° ° a brief description of how the accident occurred 0 0

The notice of action in the instant cause was filed September 8,1983. The introductory paragraph lists the accident location as, * * at or near the vicinity of the intersection of 50th Street and Harlem Avenue” (emphasis added). Subsequently, in paragraph 5 of the notice, the accident is alleged to have occurred on Harlem Avenue, “between 56th and 57th Streets” (emphasis added). The complaint alleges that the accident occurred between 56th and 57th Streets.

In addition, the notice states that Claimant, # was injured through the negligence of the State of Illinois in that it improperly maintained its highway.” The complaint, filed March 23,1984, alleges that Claimant was a pedestrian and fell into a roadway defect.

The defects did not deprive Respondent of the opportunity to properly investigate this matter and to defend itself against Claimant’s allegations.

We hold that Claimant has substantially complied with section 22 — 1 of the Court of Claims Act, and her claim should not be dismissed.

It is therefore ordered that the motion of Respondent be, and the same is hereby denied.

ORDER ON MOTION TO DISMISS

Raucci, J.

This cause coming on to be heard on the Respondent’s motion to dismiss, it is

Ordered that the motion to dismiss is denied.

ORDER ON MOTION TO RECONSIDER AND/OR CLARIFY

Raucci, J.

This cause coming to be heard on Respondent’s motion to reconsider and/or clarify, due notice having been given the parties hereto, and the Court being fully advised in the premises:

The Court finds: that upon reconsideration of Respondent’s motion to dismiss, the claim is hereby dismissed with prejudice.

ORDER ON MOTION TO RECONSIDER

Raucci, J.

This cause coming on to be heard on the Claimant’s motion to reconsider, and the Respondent’s response thereto, it is ordered that the Claimant’s motion to reconsider is denied.


author: Dillard, J.

text:
    (No. 85-CC-0192
    Estate of Phyllis La Shawn Russell, by Phyllis Davis, Representative, Claimant, v. The State of Illinois, Respondent.

      Order filed August 9, 1990.

    George C. Howard, for Claimant.
    Neil F. Hartigan, Attorney General (Daniel Brennan, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Dillard, J.

The Claimant, Phyllis Davis, the duly appointed administrator of the Estate of Phyllis LaShawn Russell, brings this action of negligence on behalf of the decedent, who was six years of age at the time of her death and was residing in a foster home in which she had been placed by the State of Illinois, Department of Children and Family Services (DCFS).

The complaint alleges that through wrongful acts and neglect and default of the foster parents, the decedent was administered an overdose of medicine which resulted in her death; that DCFS had a duty to place the decedent in a safe foster home where the parents would provide reasonable care.

The record in this cause discloses that the decedent was placed in protective custody by DCFS on August 20, 1980, pursuant to the provision of the Abused Neglected Child Reporting Act (ANCRA) (Ill. Rev. Stat. 1979, ch. 23, par. 2051 et seq.). On August 22,1980, the decedent was placed in the custody of Respondent, as temporary guardian, pursuant to order of the court. The proceedings with respect to guardianship resulted from a report to Respondent alleging that the decedent and her sisters were being physically and sexually abused by a non-family member residing in the same domicile with the natural mother.

The facts further reveal that during the initial investigative process, the decedent was hospitalized at LaRabida Children’s Hospital for clinical evaluation, during which period the decedent exhibited sporadic bed-wetting. The drug Tofranil was prescribed to control this problem. A psychological evaluation of the decedent at age 4 discloses that decedent had a speech deficit and measured by the Stanford Benet Intelligence Scale, she had obtained a mental age of three years and ten months, which places her as functioning within the high end of the mentally defective range of intelligence. The staff psychologist administering the test, recommended that decedent be placed “in a long-term supportive home environment.”

In August 1981, Respondent placed the decedent and her sister in a foster-home setting, with Mr. and Mrs. Henry Franklin. Mrs. Franklin is the mother-in-law of the decedent’s maternal aunt. The foster parents had cared for numerous other wards of Respondent apparently with no complaints. While in the foster care of the Franklins, the decedent somehow obtained and ingested an overdose of the drug Tofranil, which proved fatal. The report of the Cook County medical examiner indicated the cause of death to be an overdose of Tofranil. No criminal charges were ever filed against the Franklins.

The Claimant’s theory of liability is that Respondent was negligent in selecting the Franklins as foster parents in view of Decedent’s emotional problems which were manifested by her bed wetting, speech impediment and mental condition. The condition of the decedent should have influenced Respondent to run a background check on the foster parents. However, the record indicates that the Franklins had, on at least 10 or 12 prior occasions, housed DCFS wards without any record of complaints or improper care. Therefore, a background check of the foster parents would have only disclosed a clean record. Further, the very inexplicable act of the Decedent, without any apparent cause or provocation, could have occurred with any foster parent, no matter how highly qualified. The foster parents selected not only had a clean past record, but there was some familial setting between the decedent and one of the foster parents since she was the maternal aunt of the mother-in-law of the decedent’s natural mother.

The Claimant further contends that Respondent should have advised the foster parents that the Decedent needed consistent counseling due to her aforesaid emotional problems. This argument is also without merit. The psychological evaluation of LaRabida Children’s Hospital, mentioned supra, at the request of Respondent, made recommendations of its findings and there is nothing in the record to indicate that said recommendations were not followed.

The Claimant’s theory that the advanced age of the foster parents was an act of delinquency is further without merit. It is clear that the experience of the Franklins as foster parents qualified them to provide the necessary care for the decedent.

The prescription of Tofranil was made in the best judgment of qualified professional medical personnel. Thus, the allegation that prescribing Tofranil was negligent is also without merit.

Therefore, the Claimant has failed to show that the act of the Respondent in selecting the foster parents in the present claim was an act of negligence. In addition, the Claimant has failed to show that the foster parents were negligent and caused the death of Phyllis Russell.

It is therefore ordered that this claim is denied and the Claimant’s complaint is dismissed for the aforementioned reasons.


author: Sommer, J.

text:
    (No. 85-CC-0445
    Universal Printing Company, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 29, 1990.

    Kenneth R. Langsdorf, for Claimant.
    Neil F. Hartigan, Attorney General (Claire Gibson Taylor, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, J.

This claim arises out of a printing contract between the Claimant and the Department of Commerce and Community Affairs. The parties have entered into a stipulation which is as follows:

Stipulation

1. Claimant’s claim is grounded on and based upon section 8(b) of the Court of Claims Act. Ill. Rev. Stat. 1973, ch. 37, par. 439.8(b).

2. As a result of a sealed bid opening on August 29, 1983, Claimant was awarded a contract based upon its bid dated August 26, 1983, for the printing of 300,000 “1983 Illinois books” and 100,000 white Kraft envelopes.

3. The contract forming the basis of the claim was effective on August 29, 1983, was signed September 22, 1983, and was confirmed by print order No. 37962 dated October 5,1983.

4. The specifications of the contract and print award called for a delivery date of not later than October 31,1983.

5. The printing work was ultimately delivered to and accepted by Respondent on or about July 11,1984.

6. Based upon the contract and the specifications calling for a delivery of “no later than October 31,1983,” Claimant did order, specifically for this printing job, the paper stock necessary for printing of these books. These orders were placed by Claimant with its suppliers in September 1983, following the notification of the award of the contract on August 29,1983. The paper stock was received by Claimant and paid for within the normal terms of the paper merchant.

7. The specifications for the printing job called for an exact reprint of the sample book furnished to the bidders and for “all negatives and separations” to be furnished the printer by the Department of Commerce and Community Affairs.

8. Subsequent to the placing of the order for paper, the Department of Commerce and Community Affairs made a number of changes in the specifications, which delayed the printing of the books and envelopes. Instead of receiving the necessary “negatives and separations” from the State of Illinois in October 1983, changes in copy were being made at the specific request of the Department of Commerce and Community Affairs as late as May 17,1984. Final authorization to proceed was not given to Claimant until on or about June 1,1984.

9. By letter of July 19, 1984, Claimant requested relief from the Department of Commerce and Community Affairs in the amount of $24,306.10. Claimant’s claim for additional costs was not processed by the Illinois Department of Commerce and Community Affairs, because it was not received by June 30,1984, the end of the State’s fiscal year, and therefore, constituted a “lapsed appropriation.”

10. Monies were available in the Department of Commerce and Community Affairs appropriated budget for the fiscal year commencing July 1, 1984, to pay the full amount of Claimant’s claim.

11. On September 17, 1984, Claimant submitted a claim for $24,306.10 to the director of the Illinois Court of Claims.

12. Claimant’s claim is composed of three elements:

Element No. 1 — Warehousing costs $ 2,562.72

Element No. 2 — Carrying cost of paper 17,653.36

Element No. 3 — Incremental printing costs— increase factor 4,090.02

$24,306.10

13. On October 3, 1985, in response to the request of Respondent for more detailed justification of the warehousing cost component of the claim, Claimant forwarded certain materials to Respondent under cover of letter of that date.

14. The parties agree that, should this Court find liability on the part of Respondent, the appropriate amount for an award for element No. 1 is $2,562.72, and for element No. 3 is $4,090.02.

15. With respect to element No. 2 of the claim, “carrying cost of paper,” the parties have not come to agreement as to the amount of monies due and owing Claimant and submit the determination as to the amount to the Commissioner, based upon the facts herein and previously set forth.

16. All delays and change orders in carrying out the printing contract, subsequent to the award of printing order No. 37962 to Claimant on August 29,1983, until the final authorization to proceed with printing by Respondent to Claimant on or about June 1, 1984, were at the specific request and instance of Respondent.

17. Immediately upon receiving the notice of authorization to proceed, Claimant promptly, and to the complete satisfaction of Respondent, completed all work required under said contract with delivery on or about July 11,1984.

18. Claimant did forthwith, upon the award of the contract to it, order, receive shipment of, pay for and store the necessary paper stock at its own facility, awaiting authority to proceed, until ultimately utilized— a period of approximately 8M months.

19. The cost of the paper stock, as paid for by Claimant, was $176,534.00.

(End of stipulation)

The issues under consideration are whether or not the Claimant is entitled to recover the stipulated amount of damages sustained for warehousing costs in the amount of $2,562.72 and for incremental printing costs in the amount of $4,090.02 as well as Claimant’s alleged damages for what Claimant defines as carrying costs of paper stock beyond the bid date of October 31,1983.

Claimant submitted its bid for the printing of a number of “1983 Illinois books” on August 26, 1983, which bids were opened by the Respondent on August 29, 1983 and a contract was signed September 22, 1983 and was confirmed by print order issued by the Respondent on October 5, 1983. The bid solicitation as well as the specifications of the contract and print award provided for a delivery date of not later than October 31, 1983. Claimant immediately placed an order for paper stock which was then delivered to Claimant and payment made therefore. Subsequent to the placing of the order for the paper by the Claimant, the Department of Commerce and Community Affairs made a number of changes in the specifications, thus delaying the printing of the books and envelopes. Changes were requested by the Respondent as late as May 17, 1984, and it did not give final authorization that Claimant should proceed until on or about June 1,1984.

Respondent suggests that a careful reading of the contract would show that no delivery date is provided, but that it merely states that the contract has a term of August 29, 1983 through June 30, 1984. Respondent maintains that although the delivery date of no later than October 31, 1983 was stated in the original bid specifications, said bid specifications are not incorporated by reference into the contract.

The United States Supreme Court has held that acceptance by public authorities of a bid submitted pursuant to a proposal or advertisement for bids for a contract for public work upon the specifications and terms of such proposal converts the offer into a binding contract. (Harvey v. United States (1882), 105 U.S. 671.) Therefore, the public authorities who award a bid are limited by the plans and specifications as defined prior to the submission of the bid, and cannot award a contract which significantly detracts from that so indicated in the specifications.

In the instant case, the bid specifications clearly call for a delivery date of October 31, 1983. In fact, no delivery date is stated in the contract itself. When the Claimant calculated its bid, it justifiably relied upon the delivery date as set forth in the specifications.

The Illinois Court of Claims has consistently held that where a Claimant enters into a contract with the State, and sustains damages through no fault of its own, but occasioned solely by the State through a change of plans and specifications, the Claimant is entitled to an award for damages. (Hemp & Co. v. State (1944), 13 Ill. Ct. Cl. 183; Hoeffken Bros., Inc. v. State (1975), 30 Ill. Ct. Cl. 453.) Therefore, the Claimant herein is clearly entitled to payment of $4,090.02 in incremental printing costs, that is, increased labor costs.

In regard to the other elements of damages, this claim is somewhat different than the usual claim presented to this Court dozens of times each year. Usually, the Claimant has delivered goods to the State and has not been paid. There are many reasons for no payment; but it can be caused by the State’s error, invoices are lost, vouchers are not presented, etc. In this claim the paper was not delivered but sat in the Claimant’s warehouse for eight months. The Claimant would have gladly delivered printed paper but was prevented from doing so by the State. There is a real, though indirect, cost of storing the paper in the quantity and bulk herein and protecting it from damage. Therefore, we award the stipulated amount of $2,562.72 for storage or warehousing costs.

The Claimant also prays for damages for the “carrying cost” of the paper. This is the cost of having money tied up in the paper that could have been employed in earning profits or interest. “Carrying cost” appears to be an artful form of claiming interest. The Illinois Supreme Court has held that interest costs are not chargeable to the State unless a statute specifically imposes such against the State. (City of Springfield v. Allphin (1980), 82 Ill. 2d 571.) In the usual case a vendor delivers goods and is not paid until later. In these cases, interest always has been denied, even if the State caused the payment delay, due to the lack of statutory authority or equitable powers to pay interest. (Branch-Nicoloff Co. v. State (1988), 40 Ill. Ct. Cl. 252.) See Gendel v. State (1985), 38 Ill. Ct. Cl. 76, for a detailed discussion of the issue of “interest.” This claim appears to be no different in substance from the usual interest claim. This claim is for interest and must be denied by us. It is therefore, ordered that the Claimant be paid $6,652.74.


text:
    (No. 85-CC-1739
    Jane Doe, Claimant, v. The State of Illinois, Respondent.

      Order on Motion to Dismiss filed October 1, 1987.

      Order on Motion to Vacate and for General Continuance filed March 30, 1988.

      Order on Motion to Reconsider and for General Continuance filed September 12, 1988.

      Order filed June 3, 1991.

    Frank J. Mackey, Jr., for Claimant.
    Roland W. Burris, Attorney General (Gregory Abbott, Assistant Attorney General, of counsel), for Respondent.
   ORDER ON MOTION TO DISMISS

Raucci, J.

This cause coining on to be heard on Respondent’s motion to dismiss the Claimant’s response thereto, and the Court being fully advised in the premises finds:

1. Claimant cites five of our prior decisions in which no issue was raised that the Claimants had not sought relief against mental patients who had attacked them or stolen their property. Three of these cases were decided before the enactment of section 25 of the Court of Claims Act (Ill. Rev. Stat. 1972, ch. 37, par. 439.24— 5). (Maloney v. State (1957), 22 Ill. Ct. Cl. 567; Callbeck v. State (1958), 22 Ill. Ct. Cl. 722; and Robinson v. State (1965), 25 Ill. Ct. Cl. 67.) In two other cases, the causes of action arose less than six months after January 1,1972, the effective date of section 25. (Smith v. State (1974), 30 Ill. Ct. Cl. 167; and Choiniere v. State (1974), 25 Ill. Ct. Cl. 174.) Nothing in Smith or Choiniere indicated that the Claimants’ failures to comply with section 25 had been brought to the Court’s attention. In this case, however, the failure of Claimant has been raised.

2. That Claimant failed to exhaust remedies against Gerald Washington, and by virtue of our decision in Boe v. State (1984), 37 Ill. Ct. Cl. 72, this action is barred.

It is therefore ordered, that the Respondent’s motion to dismiss is granted, and this claim is dismissed, with prejudice.

ORDER ON MOTION TO VACATE AND FOR GENERAL CONTINUANCE

Raucci, J.

This case coming on to be heard on the Claimant’s motion to vacate and for a general continuance, the Court being fully advised in the premises, the Court:

Finds that on October 1, 1987, we entered an order dismissing this action for the reason that Claimant had not exercised her remedies against Gerald Washington, the man who allegedly raped and assaulted her. On October 28,1987, 27 days after our order, Claimant filed an action in the circuit court of Cook County sounding in tort. It alleges August 14, 1983, as the date of the rape and assault. On its face it is well outside the two-year statute of limitations. It is therefore ordered that the motion to vacate and for a general continuance is denied.

ORDER ON MOTION TO RECONSIDER AND FOR GENERAL CONTINUANCE

Raucci, J.

This cause coming on to be heard on the Claimant’s motion to reconsider and her separate motion for general continuance, the Court being fully advised in the premises, the Court

Finds:

1. On October 1,1987, we dismissed this action for failure of Claimant to exhaust her remedies against Gerald Washington, the person alleged to have assaulted and raped her in the John Madden Mental Health Center on August 14,1983.

2. On October 27, 1987, the Claimant filed an action against Gerald Washington, and, on October 29, 1987, filed a motion to vacate and for a general continuance. We denied that motion on March 30,1988, noting that on its face, the suit was outside the two-year statute of limitations.

3. On April 19, 1988, Claimant filed a motion to reconsider urging that because Claimant is mentally ill she is under a legal disability and that pursuant to Ill. Rev. Stat. 1987, ch. 110, par. 13 — 211, the Statute of Limitations is tolled. It also appears that while Mr. Washington was served with summons in the circuit court action, no issue has been raised in the circuit court concerning the Statute of Limitations.

4. On May 27, 1988, Claimant filed a motion for general continuance.

It is therefore ordered:

1. The orders of March 30, 1988 and October 1, 1987 are hereby vacated and held for naught.

2. The Respondent’s motion to dismiss is hereby denied without prejudice to being reasserted if a determination is made in the circuit court action that the Statute of Limitations was violated.

3. The motion for general continuance is granted.

ORDER

Raucci, J.

This cause coming on to be heard on the joint stipulation of the parties, the Court being fully advised in the premises,

Finds:

A. The parties have stipulated as follows:

1. That this claim sounds in tort and is brought pursuant to Section 8(d) of the Court of Claims Act. Ill. Rev. Stat. 1989, ch. 37, par. 439.8(d).

2. That on August 14, 1983, Claimant was admitted to the John Madden Mental Health Center located in Hines, Illinois. Madden Mental Health Center is a facility operated by the Illinois Department of Mental Health and Developmental Disabilities.

3. That on August 14, 1983, the Claimant, while in Madden Mental Health Center, was raped by a male patient at the facility.

4. That Claimant, Jane Doe, exhausted all remedies against her attacker.

5. That the parties hereto have agreed to a settlement of this claim in order to avoid further litigation, and that the Respondent, State of Illinois, hereby agrees to the entry of an award in favor of Claimant, Jane Doe in the amount of thirty seven thousand five hundred dollars and no cents ($37,500.00), in full and final satisfaction of the claim herein.

6. That it is understood and agreed between the parties that the settlement herein does not constitute an admission of any liability, nor have any expressions been made by either party, or the attorneys therefore, as to any legal liability or other responsibility of any party thereto.

7. That each party agrees to assume its own costs and fees.

8. That Claimant, her estate, heirs, and assigns, hereby waives, releases and relinquishes any claim or suit for personal, emotional or bodily injury against the State of Illinois, the Illinois Department of Mental Health and Developmental Disabilities, John Madden Mental Health Center, their subdivisions, officers or employees, arising out of or in connection with the incident complained of herein.

B. We have examined the entire record in this cause. Among other things, the record contains a transcript of proceedings of the 9 September 1983, hearing before the grand jury of Cook County. The transcript illustrates what evidence would be adduced at a hearing.

Claimant, then 22 years of age, was brought by her mother to be checked in as a resident at the Madden Mental Health Center in Hines, Illinois. Claimant was in a co-educational living unit. In that unit, there are people who are charged with crimes and have been committed by order of court, and others, such as Claimant, who have problems that have been diagnosed by doctors. Doors are not locked.

Another resident, Denise Komanecki, saw one resident, Gerald Washington, taking Claimant in the direction of his room. The transcript reveals that Washington was at the Madden Center for evaluation after being charged with aggravated battery as a result of his alleged attack on a woman and for slamming her baby into the sidewalk.

Washington had previously attempted to get Komanecki to his room for the purpose of engaging in sex.

Komanecki immediately informed a nurse, Linda Harley, of what was occurring in the unit. Harley then found Washington and Claimant in another patient’s room. They were engaged in an act of sexual intercourse. She called security, and Washington was restrained. He was charged with rape.

Respondent had three staff members and 43 patients in the unit.

The record also reveals that a court-appointed psychiatrist found Washington “was Legally Insane at the time of the crime” by virtue of schizophrenia. His history with the Department of Mental Health and Developmental Disabilities began in 1982. The Respondent’s clinical report describes him as “grandiose, delusional and paranoid.”

C. The record establishes that there is a factual basis for the joint stipulation. We further find that the joint stipulation is not unfair and is not unreasonable, and should be approved.

It is ordered, adjudged, and decreed that Claimant is awarded $37,500.00 in full and complete satisfaction of this claim. It is further ordered that the Claimant be designated as Jane Doe for purposes of publication.