text:
    (No. 76-CC-2574
    Virginia Mahlkuch, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 13, 1980.

    Cornfield and Feldman, for Claimant.
    William J. Scott, Attorney General (Paul M. Sengpiehl, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

This is a claim for retroactive salary based upon a reconsideration opinion as a result of the Claimant’s request for a job reallocation. The original request for audit and reallocation was denied by the agency in June of 1975 when the Claimant filed a request for reconsideration with the Department of Personnel. The procedure involving a reconsideration is commonly referred to as a fourth level grievance procedure and is governed by Rule 1 — 30 of the Department of Personnel rules as interpreted by the director of the Department of Personnel. The procedure under Rule 1 — 30 is for the back pay to be granted retroactive to the date of application for reconsideration.

This case is analogous to the situation that was brought before this Court in the case of Claire Crawford v. State of Illinois, No. 77-CC-1790, in that the claim is for retroactive salary back to the date of the application for reconsideration. In Claire Crawford (supra) this Court held that the retroactive salary was not prohibited by Ill. Rev. Stat., ch. 127, par. 145, which generally prohibits back pay except in cases involving the application of the prevailing rate principle or based upon the effective date of a collective bargaining agreement. This case happens to be neither of the above but as in Claire Crawford (supra) we find that the fact that the Claimant was paid at a. rate less than that called for by the duties being performed by the Claimant takes it out of the prohibition of Ill. Rev. Stat., ch. 127, par. 145, in that the retroactive payment would not be a payment which “would constitute in fact an additional payment for work already performed and for which remuneration had already been made,” which is prohibited by Ill. Rev. Stat., ch. 127, par. 145.

Therefore, inasmuch as this retroactive salary payment is not prohibited by Ill. Rev. Stat., ch. 127, par,. 145, and it is not in violation of Rule 1 — 30 as interpreted by the director of personnel, we hereby grant an award to this Claimant in the amount of $337.27 subject to .the appropriate additions and withholdings as required by the State Employee’s Retirement System, F.I.C.A. and State and Federal income tax requirements-


source: Caselaw Access Project

author: Holderman, J.

license: Public Domain

text:
    (No. 76-CC-2690
    Alan R. Miller, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 3, 1980.

   Holderman, J.

This case arose as a result of .the Speaker of the House of Representatives of the State of Illinois, W. Robert Blair, hiring Claimant to represent him in some extraordinary legal matters other than appearances in Court.

The record discloses that in 1974, the Speaker of the House of Representatives of the State of Illinois was seeking an opportunity to answer various media charges on events that had taken place in the current legislative session.

A representative of Mr. Blair, Speaker of the House of Representatives at that time, contacted the Attorney General’s office requesting legal advice and assistance in securing media time in which to answer the alleged charges. According to the affidavit filed by another member of the House who made the contact, the Attorney General informed the Speaker that he did not intend to represent him and if he desired counsel, he should secure someone to represent him, which was done. Claimant was hired and performed certain services for which a bill was submitted in the amount of $5,140.93.

The Attorney General of the State of Illinois filed objections to the payment of said bill on three grounds.

1. That the law relative to statutory contracts in cases where the amount is over $2,500.00 states that a copy of said contract must be filed with the Comptroller. In this instance, the Respondent cited Ill. Rev. Stat. 1977, ch. 127, pars. 132.3, 132.9a, and 132.10. These statutes outline the procedure that must be followed in contracts over $2,500.00.

2. That the Speaker of the House of Representatives, in his official capacity, cannot properly retain the services of a private attorney to legally represent him as Speaker, as representation must be by the Attorney General of the State of Illinois.

3. That the alleged contract created an indebtedness which exceeded the amount of funds appropriated for his office.

This question has arisen in the State of Illinois before. Probably the leading case on the subject is that of Fergus v. Russel, 270 Ill. 304,110 N.E. 130,145. This case was decided in 1915 and is to the general effect that the Attorney General is the sole representative of the various State offices and State agencies. One of the recent cases dealing with this subject is a 1977 case, The Environmental Protection Agency v. The Pollution Control Board et al., 69 Ill. 2d 394. This case laid down the rule that the Attorney General’s powers encompass advising and representing the State and all its agencies in all legal proceedings and that the Attorney General must approve any private counsel hired by State agencies. The only exception to this rule seems to be when the Attorney General is interested or there is a conflict of interest, which is covered by Ill. Rev. Stat. 1975, ch. 14, par. 6, which states that “whenever the Attorney General or State’s Attorney is sick or absent, or unable to attend, or is interested in any cause or proceeding, civil or criminal, which it is or may be his duty to prosecute or defend, the Court may appoint some competent attorney to prosecute or defend such cause.”

In the case of People ex rel. William J. Scott v. Briceland et al., 65 Ill. 2d 485, the supreme court reiterates the rule that the Attorney General is the sole officer authorized by the 1970 Constitution to represent the people where the State is the real party in interest. An opinion by Justice Ryan of the supreme court laid down the rule that when the Attorney General is a party to litigation in which he would ordinarily represent the State office or agency, the Court may appoint special counsel to represent the State office or agency when they otherwise would not be represented.

There is an article in the University of Illinois Law Forum, Vol. 1975, No. 3, at page 470 which discusses the Illinois cases and indicates that under certain circumstances where the State office or agency would otherwise be unrepresented, if, certain conditions are followed, they can secure counsel.

In a discussion of these cases, it is apparent that “in-house counsel” is acceptable but not in cases of actual litigation.

It appears in the present case that the Speaker would not have adequate legal representation if he had not secured claimant to represent him. There was never a copy of the contract filed and there was not a contract executed. All the evidence discloses is a memorandum, not signed by either Claimant or the Speaker of the House, and the procedure laid down by Illinois Statutes relative to State contracts in amounts over $2,500.00 was not followed.

It appears, therefore, that there not having been a valid contract and the provisions of the statutes not having been followed, the most that can be recovered by Claimant is the amount of $2,500.00.

The Court finds that at the time the Claimant’s services were rendered, there was sufficient money in the appropriation to pay for his services.

Award is hereby entered in favor of Claimant in the amount of $2,500.00.


text:
    (No. 76-CC-2695
    Diana C. Harris, Individually and as Executor of the Estate of Chester W. Harris, Deceased, Claimant, v. The State of Illinois and Central Engineering Company, Respondents.

      Opinion filed January 28, 1980.

   Holderman, J.

This matter comes before the Court upon Respondent’s motion to strike and dismiss, Respondent’s motion for summary judgment, Claimant’s response to Respondent’s motion to strike and dismiss, and motion by Claimant for continuance.

This claim was filed as a result of an accident that occurred on January 13, 1976, in which the decedent, Chester W. Harris, died on January 19,1976.

Suit was brought by the Claimant, individually and as executor of the estate of Chester W. Harris, deceased, in which she alleged that she, as widow, and her three minor children, have been deprived of the services, comfort, protection, society and support of their husband and father, and request damages in the amount of $500,000.00.

Certain third party suits were started by Claimant and as a result certain covenants not to sue in regard to this matter in the amount of $105,711.00 were executed.

It is Claimant’s contention that the $100,000.00 statutory limitation claimed by the Respondent is not a limitation on the entire amount but a limitation only upon what any one individual can receive and, therefore, in this case the widow and each of her three children should be entitled to a maximum amount of $100,000.00.

Respondent, in its motion for summary judgment, cites Ill. Rev. Stat., ch. 37, par. 439.8(d) which states that “an award for damages in a case sounding in tort shall not exceed the sum of $100,000.00 to or for the benefit of any claimant.” Respondent also calls attention to Ill. Rev. Stat., ch. 37, par. 439.11 which states that the State of Illinois shall be allowed “all just credits” to be deducted from any amount recoverable against the State.

Respondent’s motion further states that Claimant has already received more than the limitation fixed by statute and, therefore, the case against the State of Illinois should be dismissed.

The Court of Claims has held that a Claimant is entitled to but one satisfaction, and the Court must deduct from the statutory limit any amount received under a covenant not to sue. See Dolores LaBoda and Sam Anzalone, Administrator of the Estate of Sam Anzalone, Jr., deceased v. State, 24 Ill. Ct. Cl. 172, and where the amount already paid or covenanted exceeds the statutory limit, the claim will be denied. See LaBoda et al. v. State, supra, Marin v. State, 22 Ill. Ct. Cl. 179, and Flisk v. State, 21 Ill. Ct. Cl. 363.

This Court also held in the case of Powers et al. v. State, 28 Ill. Ct. Cl. 130, that where a party has received more than the maximum amount recoverable by statute and has executed a covenant not to sue regarding that amount received, that the State’s motion for summary judgment will be granted.

Motion for summary judgment is granted and this cause is dismissed.


author: Per Curiam.

text:
    (No. 76-CC-2736
    Jeannette Lewis, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 17, 1980.

    Jerome F. Goldberg, for Claimant.
    William J. Scott, Attorney General (Paul M. Sengpiehl, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

This case comes before the Court on a joint stipulation of the parties. That stipulation reads in its entirety, as follows:

“1. This is a claim for a retroactive salary adjustment pursuant to a reallocation originally denied by the director of personnel but reversed by the Civil Service Commission. This stipulation is entered into pursuant to the provisions of the Department of Personnel Rule 1 — 30.
2. Prior to June 1,1975, Rule 1 — 30 provided as follows:
‘Reconsideration: In the event a request for reconsideration is made by an employee within 90 days after the employee’s receipt of notice of the director’s decision as to the allocation of his position:
a. The director shall investigate .the duties and responsibilities of such position and if necessary related positions to determine the allocation. The employee shall be given a reasonable opportunity to be heard.
b. Notice of the decision of the director shall be served on the employee in person or by registered mail.
c. If the employee does not accept the director’s decision he may appeal to the Civil Service Commission, in writing, within 15 days after receipt of notice of the decision. (As revised by amendment approved by the Civil Service Commission December 16,1966.)’
3. Effective June 1,1975 Rule 1 — 30 provided as follows:
‘Reconsideration: Within 30 days after receiving notice of such decision the incumbent in such position may make a request in writing of the director for a reconsideration of the decision. Thereafter, the director shall reinvestigate the duties and responsibilities of such position and related positions, if necessary, and the affected employee shall be given a reasonable opportunity to be heard.
After such investigation, the director shall render a decision in writing and it shall be served on the employee in person or by certified mail, return receipt requested at the last address shown in the personnel file. The effective date of the directors reconsidered decision shall be the date such request for reconsideration was received by the director. (Emphasis added.)
An employee wishing to appeal the director’s reconsidered decision shall serve upon the Civil Service Commission notice of appeal of said reconsidered decision in writing within 15 days after receipt of notice of the reconsidered decision. A copy of the notice of appeal shall also be served upon the director.’
4. The director of personnel pursuant to the personnel code is given the duty and the power to promulgate a set of personnel rules which when properly filed with the Secretary of State have the force and effect of law.
5. Rule 1 — 30 is a rule so promulgated as above stated.
6. Rule 1 — 30 having the force and effect of law must be followed by the director of personnel and this Court until amended or rescinded pursuant to the statute.
7. The departmental report of the director of personnel dated May 16,1980 and attached hereto as Exhibit A sets forth a chronology of events in the case currently before this Court which states as follows:
‘December 18, 1974 The date of Jeannette Lewis’ letter which requested reconsideration of the public aid case worker position and received by the director of personnel on December 18,1974.’
8. Although Ms. Lewis was paid by the agency at the direction of the Department of Personnel only back to July 1,1975, a strict adherence to the provisions set forth in Rule 1 — 30 mandate that Jeannette Lewis is entitled to retroactive salary adjustment back to December 18,1974 (the date of the receipt of the request for reconsideration by the director of personnel).
9. The parties agree that pursuant to the provisions of Rule 1 — 30 and the calculations of the Department of Personnel. The Claimant is entitled to a retroactive salary adjustment in the amount of $462.60 to be subject to additions for employer contributions for FICA and/or retirement and likewise subject to deductions and withholdings for employee contributions to FICA and/or employee retirement as well as State and Federal income taxation.”

This Court having carefully reviewed the file agrees with the position set forth in the stipulation and finds that Rule 1 — 30 having force and effect of law must be given effect by this Court and although the director of personnel previously directed that Claimant be paid back to July 1,1975, it is the finding of this Court that, pursuant to the provisions of Rule 1 — 30, this Claimant is entitled to the retroactive salary adjustment back to December 18, 1974, the date on which the Claimant’s request for reconsideration was received by the director of personnel.

It is, therefore, ordered that this Claimant be granted an award in the amount of $462.60 subject to additional benefits for employer contributions and withholdings for employee contributions to FICA and/or retirement as well as Federal and State income tax.


text:
    (No. 76-CC-2825
    Rudolf H. Poebel and Iola Ruth Poebel, Claimants, v. The State of Illinois, Respondent.

      Opinion filed July 23, 1979.

    James Valentino, Jr., for Claimant.
    William J. Scott, Attorney General (Francis M. Donovan, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This claim arises out of a lease between Claimants and Respondent, on behalf of the Department of Corrections, of certain property located at 5132 South Ellis, Chicago, Illinois.

The lease was entered into on July 30,1971, and the lease terms was from September 1,1971, to June 30,1973. It was renewed pursuant to its terms for an additional two years, from July 1, 1973, to June 30, 1975, and was further extended from June 30, 1975, to July 31, 1975.

During the lease term, the subject property became damaged by acts of the agents of Respondent which caused a decrease in the market value of said property. The Department of Corrections has admitted liability for the damage to said property which occurred during the lease term.

Claimants have sought damages in the amount of $11,500.00 on the basis of two real estate contracts which represent an arm’s length bargaining agreement.

The first real estate contract was entered into between the Claimants and John L. Brown on or about February 18, 1974, for the sale and purchase of the property located at 5132 South Ellis in Chicago, Illinois, at a negotiated price of $42,500.00. The prospective purchaser was unable to meet certain contract requirements and the contract was never consummated.

A second real estate sales contract was entered into between Claimants and Frank and Annette Goldschmidt on or about March 25, 1975, for the sale of the property located at 5132 South Ellis in Chicago, Illinois, at a negotiated price of $31,000.00. The property was sold to the Goldschmidts pursuant to the terms of the March 25, 1975, contract.

Claimants allege that the $11,500.00 decline in property value of the subject property was directly attributable to the damage caused by agents of Respondent during the lease term.

A hearing was held on this matter before Joseph P. Griffin, Commissioner of the Illinois Court of Claims on July 18,1978, at 10:00 a.m. and witnesses were present and ready to testify.

Prior to said hearing, an agreement was reached between Claimants and Respondent to settle this matter for an agreed amount of $6,750.00.

At said hearing, based on the complaint and attachments filed in the instant claim, together with a report from the Department of General Services, leasing agent for Respondent, wherein the Department of Corrections admitted liability for the damages caused to the subject property, Respondent agreed to an award of $6,750.00 in favor of Claimants.

A joint stipulation was prepared by the Attorney General but Respondent has failed to act upon same or to pay the amount due in settlement.

An award is hereby entered in favor of Claimants in the amount of $6,750.00.


text:
    (No. 76-CC-3055
    Ronnie Jarrett, Claimant, v. State of Illinois, Respondent.

      Opinion filed September 13, 1979.

   Holderman, J.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated.

Claimant contends that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State of Illinois is liable as a bailee for the return of that property.

This Court has held in Doubling v. State decided January 7, 1976, that the State has a duty to exercise reasonable care to safeguard and return an inmate’s property when it takes actual physical possession of such property, as during the course of the transfer of an inmate between penal institutions, or when the institution receipts for property.

While bailment is ordinarily a voluntary contractual transaction between bailor and bailee, various types of constructive and involuntary bailments have been recognized:

“A constructive bailment can be created between an owner of the property and one in possession thereof.” Chesterfield Sewer and Water, Inc. v. Citizens Insurance Company of New Jersey, 57 Ill. App. 2d 90 207 NE2d 84.

In Chesterfield, the Court quotes from Woodson v. Hare, 244 Ala. 301,13 So. 2d 172, at 174, as follows:

“An actual contract or one implied in fact is not always necessary to create a bailment. Where, otherwise than by mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, such person and the owner of the property are, by operation of law, generally treated as bailee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, express or implied, to such relationship.”

The loss of damage to bail property while in the possession of the bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. The affect of this rule is not to shift the ultimate burden of proof from the bailor to the bailee, but simply to shift the burden of proceeding or going forward with the evidence. Bell v. State of Illinois, Bargas v. State and Romero v. State of Illinois.

In the present case, Claimant was the owner and possessor of a stereo headphone set valued at $35.00 and a clock radio valued at $46.43, which he had acquired from the prison commissary at Menard, where he was incarcerated. On the date in question, the Claimant was a member of a vocational training program at Menard Correctional Center. Claimant testified that due to a rash of thefts in his cell block, he asked the guard on duty as he left for class in the morning to place his cell on “deadlock.” The testimony showed that once a cell was placed on deadlock, it cannot be opened except by a correctional officer.

When Claimant returned from class, he discovered his radio and stereo headphones missing. The property was never recovered.

In the case at bar, there is no evidence tending to show that the responsibility for the theft rests with the Respondent. There is no proof that the property came into possession of the Respondent. The proof is to the contrary. Claimant asks this Court to assume that the Respondent is liable on the theory that the personal property stolen could not have been removed from the cell unless a correctional officer had opened the cell. This is mere conjecture and speculation and may not act to shift the burden to the Respondent of proceeding with proof of due care upon the loss of Claimant’s property.

Claim denied.


text:
    (No. 76-CC-3086
    Helen Deutsch, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 10, 1980.

   Per Curiam.

This case comes before the Court on a joint stipulation of the parties. That stipulation reads in its entirety, as follows:

“1. This is a claim for a retroactive salary adjustment pursuant to a reallocation originally denied by the director of personnel but reversed by the Civil Service Commission. This stipulation is entered into pursuant to the provisions of the Department of Personnel Rule 1 — 30.
2. Prior to June 1,1975, Rule 1 — 30 provided as follows:
‘Reconsideration: In the event a request for reconsideration is made by an employee within 90 days after the employee’s receipt of notice of the director’s decision as to the allocation of his position:
a. The director shall investigate the duties and responsibilities of such position and if necessary related positions to determine the allocation. The employee shall be given a reasonable opportunity to be heard.
b. Notice of the decision of the director shall be served on the employee in person or by registered mail.
c. If the employee does not accept the director’s decision he may appeal to the Civil Service Commission, in writing, within 15 days after receipt of notice of the decision. (As revised by amendment approved by the Civil Service Commission December 16,1966.)’
3. Effective June 1,1975, Rule 1 — 30 provided as follows:
‘Reconsideration: Within 30 days after receiving notice of such decision the incumbent in such position may make a request in writing of the director for a reconsideration of the decision. Thereafter, the director shall reinvestigate the duties and responsibilities of such position and related positions, if necessary, and the affected employee shall be given a reasonable opportunity to be heard.
After such investigation, the director shall render a decision in writing and it shall be served on the employee in person or by certified mail, return receipt requested at the last address shown in the personnel file. The effective date of the directors reconsidered decision shall be the date of such request for reconsideration was received by the director. (Emphasis added)
An employee wishing to appeal the director’s reconsidered decision shall serve upon the Civil Service Commission notice of appeal of said reconsidered decision in writing within 15 days after receipt of notice of the reconsidered decision. A copy of the notice of appeal shall also be served upon the director.’
4. The director of personnel pursuant to the personnel code is given the duty and the power to promulgate a set of personnel rules which when properly filed with the Secretary of State have the force and effect of law.
5. Rule 1 — 30 is a rule so promulgated as above stated.
6. Rule 1 — 30 having the force and effect of law must be followed by the director of personnel and this Court until amended or rescinded pursuant to the statute.
7. The departmental report of the director of personnel dated February 14, 1979, and attached hereto as Exhibit A sets forth a chronology of events in the case currently before this Court which states as follows:
‘January 28,1975 The date of Helen Deutsch’s letter which requested reconsideration of the public aid case worker position and received by the director of personnel on January 30, 1975.’
8. Although Ms. Deutsch was paid by the agency at the direction of the Department of Personnel only back to September 1, 1975, a strict adherence to the provisions set forth in Rule 1 — 30 mandate that Helen Deutsch is entitled to retroactive salary adjustment back to January 30, 1975 (the date of the receipt of the request for reconsideration by the director of personnel).
9. The parties agree that pursuant to the provisions of Rule 1 — 30 and the calculations of the Department of Personnel. The Claimant is entitled to a retroactive salary adjustment in the amount of $1,117.50 and the Claimant specifically agrees to accept this figure, $1,117.50 to be subject to additions for employer contributions for FICA and/or retirement and likewise subject to deductions and withholdings for employee contributions to FICA and/or employee retirement as well as State and Federal income taxation.”

This Court having carefully reviewed the file agrees with the position set forth in the stipulation and finds that Rule 1 — 30 having full force and effect of law must be given effect by this Court and although the director of personnel previously directed that the Claimant be paid back to September 1, 1975, it is the finding of this Court that, pursuant to the provisions of Rule 1 — 30, this Claimant is entitled to the retroactive salary adjustment back to January 30, 1975, the date on which the Claimant’s request for reconsideration was received by the director of personnel.

It is, therefore, ordered that this Claimant be granted an award in the amount of $1,117.50 subject to additional benefits for employer contributions to FICA and/or employee retirement and subject also to deductions and withholdings for employee contributions to FICA and/or retirement as well as Federal and State income tax.


text:
    (No. 76-CC-3122
    Norbert Moorleghen, Regional Superintendent of Schools of Clinton-Washington Counties, Claimant, v. The State of Illinois, Respondent.

      Order filed September 19, 1978.

      Rehearing denied December 31, 1979.

   Per Curiam.

Claimant, Norbert Moorleghen, the Regional Superintendent of Schools of Clint on-Washington Counties, has brought this action seeking an award in the sum of $914.90. Claimant contends that during the 1975-1976 fiscal year the Clayton-Washington Region was entitled to two payments in the amount of $1,000.00 each to its supervisory expense fund. Claimant bases his action on Section 18 — 6 of the School Code of Illinois, Ill. Rev. Stat., ch. 122, par. 18 — 6, which provides:

Supervisory Expense Fund. The superintendent of public instruction shall set aside semi-annually and pay into the State treasury an amount from the State school fund as a county supervisory expense fund, aggregating $500 per county per half-year. He shall draw his warrants upon the State Treasurer monthly in the sum of $83.33, payable to the county superintendent of schools in each county. Each county superintendent of schools may draw upon this fund for the expenses necessarily incurred in providing for supervisory service in his county. On or before October 1 of each year, the county superintendents of schools shall submit to the superintendent of public instruction a certified statement of the expenditures made from this expense fund.

Claimant also relies on a memorandum, dated June 1, 1976, from the assistant legal advisor to the State Superintendent of Education, which interprets Section 18 — 6 as requiring payment of $1,000.00 per county in a multi-county region, rather than $1,000.00 per region. Claimant contends that each county comprising his region was thus entitled to a separate payment of $1,000.00, but that for the period in question, the region was underpaid by $914.90.

Respondent has moved to dismiss, on the ground that amendatory veto action by Governor Walker resulted in the reduction in payments to the multi-county regions. It appears that Senate Bill 1935 was passed by the 79th General Assembly, providing for $102,000.00 for the supervisory expense fund under Section 18 — 8 of the School Code. This would have provided $1,000.00 for each of the 102 counties of the State. However, by amendatory veto, the Bill was amended to a reduced amount of $78,000.00, which provided for $1,000.00 for each of the 78 educational service regions within the State.

This Court has only the authority granted it by the legislature to hear and determine claims against the State of Illinois. This Court has no jurisdiction to determine that the Governor acted illegally in exercising his amendatory veto, and has no authority to appropriate funds to satisfy the requirements of Section 18 — 6 of the School Code.

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


author: POCH, J.

text:
    (No. 76-CC-3218
    Howard Sutton and Helen Sutton, Claimants, v. The State of Illinois, Respondent.

      Opinion filed September 26, 1979.

    Joseph J. Neeley, for Claimant.
    William J. Scott, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

This action is brought by Claimants pursuant to 111. Rev. Stat., ch. 37, par. 439.8 vesting in this Court exclusive jurisdiction in all claims against Respondent, the State of Illinois, for damages in cases sounding in tort. Claimants are the owners and possessors of a 65-acre tract adjacent to the Mermet Wildlife Refuge, owned and operated by Respondent as a hunting area for water fowl and to provide a facility for fishing. The water supply of the Claimants consists of a 22-foot deep water well characterized as a “shallow well,” which for years prior to 1974 produced sufficient fresh, pure water for the needs of Claimants.

In Edwards v. Hager, 180 Ill. 99, the Supreme Court said:

“Water which is the result of natural and ordinary percolation through the soil is part of the land itself and belongs absolutely to the owner of the land, and, in the absence of any grant, he may intercept or impede such underground percolation, though the result be to interfere with the source of supply of springs or wells on adjoining premises.”

If this rule as announced in Edwards v. Hager, supra, is applied to the case at bar, Claimant’s claim must be denied, since Respondent would have an absolute right to use percolating waters under Respondent’s land even though it was shown that Claimant’s enjoyment of their land might thereby be adversely affected.

Another Illinois decision dealing with the rights of a landowner to percolating water is Behrens v. Scharringhausen, 22 Ill. App. 2d 326. That case involved a suit by the plaintiffs to restrain the defendant landowners from removing water from defendant’s gravel pit. Claimants asserted that the use of large and powerful pumps to remove that water depleted the water supply of plaintiffs both below and upon their adjoining lands. A decree of the Trial Court dismissing the suit for want of equity was affirmed by the Appellate Court. In its opinion, however, the Appellate Court stated in dicta that if the Supreme Court were called upon to again review the Illinois rule with respect to the use of percolating waters the Supreme Court might well apply a “reasonable use” doctrine to the effect that the right of a landowner to the use of percolating water under his lands must be reasonable as may be necessary for some useful purpose. The question of whether or not the use by a landowner of water is reasonable would be a question of fact to be determined on the facts of each particular case.

Respondent argues that whether this Court adopts the test of Edwards v. Hager, supra, or the dicta of Behrens v. Scharringhausen, supra, with regard to “reasonable use”, in either event this Court must hold for Respondent because as a matter of fact the use to which Respondent put the percolating water from the wells on the Mermet Wildlife Refuge is “reasonable” as a matter of law. The property was being used as a waterfowl refuge, fishery and hunting area subject to the policy of the State of Illinois, acting through the legislature of the State of Illinois in establishing and funding this activity. The proof is undisputed that there was a need for a water supply to improve the program of wildlife and public hunting benefits. They conclusively establish that there was an improvement in benefits.

Claimant asserts that the use of the water by Respondent was an unreasonable use in light of the actual injury to Claimants’ place of habitation and the interference with their use and enjoyment of the same. With respect to this issue, it should be observed that the funding and establishment of this State facility by the Illinois legislature is the clearest expression of the public policy of Illinois with respect to the establishment, maintenance, operation and use of facilities such as the Mermet Refuge; it is not the province of the Court of Claims to second guess the Illinois legislature as to whether or not the use and operation of facilities such as the Mermet Refuge is reasonable or unreasonable in light of a clear expression of legislative policy. Therefore, Claimant’s argument that the use of this water as a benefit to the Mermet Refuge is unreasonable as a matter of law is not well taken.

The Illinois law relative to the use of percolating waters by a landowner is, at the present time, that the landowner may make any use of the percolating water that is of reasonable benefit to the enjoyment of the landowner’s occupation and possession of the property; the fact that the adjoining landowners are thereby adversely affected does not give rise to a cause of action unless it can be demonstrated that the use to which the water is being put is unreasonable in light of all the attendant circumstances.

The Court of Claims cannot substitute its judgment for the judgment of the Illinois legislature in funding the operations at Mermet Wildlife Refuge and permitting the installation and operation of wells to utilize percolating waters in the operation and use of the refuge.

Accordingly, the claims of Claimants are denied.


text:
    (No. 77-CC-0191
    Hubert Frederick Bates, Claimant, v. The State of Illinois, Respondent.

      Order filed February 13, 1980.

   Holderman, J.

Hubert Frederick Bates was employed by the Illinois Department of Corrections as a Youth Supervisor III. His place of employment was Pere Marquette State Boys Camp. He began his employment in June 1968. While employed, he joined the Illinois Municipal Employees Association. In an early month in 1973, he was offered an opportunity to purchase a disability income insurance policy through his membership in the Illinois Municipal Employees Association. He accepted the offer and made the necessary application and in addition thereto, signed a State of Illinois Insurance Deduction Authorization card, whereby the State of Illinois agreed to deduct the premiums from Mr. Bates’ pay. On March 1, 1973, he was issued a Disability Insurance policy by Horace Mann Insurance Company which would in essence pay him $500.00 per month for 12 months in the event Mr. Bates became disabled and unable to work. Payroll deductions were made by the State of Illinois as requested. In addition to the deductions for the Horace Mann Insurance, Mr. Bates had other payroll deductions for insurance. Among them was Blue Cross-Blue Shield. In September of 1973, he cancelled the deduction for Blue Cross-Blue Shield and made application for Golden Rule hospitalization insurance. At no time did he cancel the deductions for the Horace Mann Disability Insurance. At this point Harriet Jordan, a payroll clerk for the Department of Corrections, erred and cancelled the deductions for Mr. Bates’ Horace Mann Disability Insurance. However, for a period of four to five months the new deductions for Golden Rule Hospitalization Insurance went to the Illinois Municipal Employees Association to pay for Mr. Bates’ Horace Mann Policy. Eventually the State of Illinois realized that the Golden Rule Deductions were going to the Illinois Municipal Employees Association for the disability policy, and the deductions were then transferred to Golden Rule. Apparently even at this point the State of Illinois never realized its error in cancelling Mr. Bates’ Horace Mann Disability Policy, for it never notified Mr. Bates of the mistake. In the meantime, on January 1, 1974, the Horace Mann Disability Policy was transferred to Sentry Life Insurance Company of which Mr. Bates was notified and in fact received a policy to that effect. In March of 1974, Mr. Bates became ill. He never returned to work and is now considered to be totally disabled and is receiving disability retirement pay from the State of Illinois. In the summer of 1974, Mr. Bates made application for disability payments pursuant to the terms- of his Sentry Life Insurance Company Disability Policy. Payment was refused in that the premium had not been paid.

The Claimant instituted a law suit against Sentry Life Insurance Company in the Circuit Court of the Seventh Judicial District in Jersey County, Illinois. This case was settled in Claimant’s favor before going to trial. Claimant now seeks an additional award against the State of Illinois in the amount of $2,000.00.

The issues before the Court concern the contractual relationship between the Claimant and the appropriate agents of the State of Illinois.

Where a person makes a promise to another based on valid consideration, for the benefit of a third person, such third person may enforce the contract without any proof of any consideration flowing from such third person. See Cobb v. Herron (1899), 180 Ill. 49, 54 N.E. 189. Even though this case as well as others cited by Claimant are rather ancient, they seem to define that part of the law of contracts involved in this case.

The State breached its duty to Claimant in not deducting the Horace Mann-Sentry premium.

An award of $2,000.00 is made to Claimant, Hubert F. Bates.


text:
    (No. 77-CC-0208
    John W. Evanchuk, Claimant, v. The State of Illinois, Respondent.

      Order filed January 21, 1980.

    John Evanchuk, pro se, for Claimant.
    William J. Scott, Attorney General (Paul M. Sengpiehl, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

This is a claim for $185.05 in travel expenses incurred by Claimant during the months of February 1973, through June 1973, inclusive.

Commencing in November 1972, and during 1973, Claimant was a VISTA volunteer in a program designed to help with the problems of senior citizens in Cook County, Illinois, who did not speak English.

The project is currently known as Project Senior Ethnic Find, has a director and 23 VISTA volunteers, and covers ten ethnic communities in Chicago and one in Rockford, Illinois. When the program originated (during Governor Ogilvie’s tenure), it was assigned to the Governor’s Office of Human Resources. During Governor Walker’s term it was assigned to the Governor’s Action Offices. At the present time it is administered by the Illinois Department on Aging.

The current director, Leo Kazaniwisky, testified on behalf of Claimant as follows:

“The arrangements that we have are that the Federal Government supplies VISTA volunteers to the project. That means that the Federal Government is responsible for paying them a stipend and a living allowance, which comes to me as sponsor, and I pass it out to the individual VISTA volunteers.”
“The State assumes a responsibility for paying for travel, telephones, if necessary, if we can’t get communities to donate that kind of money, mimeograph, printing, xeroxing or any other costs that are necessary to maintain the program’s operation in the ethnic communities of Chicago and Rockford.”

Claimant, 73 years old and of Ukrainian background, worked with the Ukrainian senior citizens in Chicago. Claimant’s travel voucher for the month of January 1973, was paid by the State (Claimant’s Exhibit A). His travel vouchers for the months of July 1973, through December 1973, were paid by the State (Claimant’s Exhibit B-6). However, the travel vouchers submitted by him for the months of February 1973, through June 1973, were never paid.

Striking from his claim the sum of $9.35 for lunches not authorized by the travel regulations in force in 1973, it appears on the face of the record that Claimant has a valid claim for $175.70 mileage.

In a closing argument the Attorney General took the position that Claimant had the burden of proving as part of his prima facie case that during the time in question there was an appropriation for travel and that it had not run out at the time Claimant submitted his vouchers.

Such matters would not be part of Claimant’s prima facie case but would be matters of affirmative defense to be proved by the State. The State acknowledged that it was unable to prove its defense.

Two fellow employees of Claimant called as witnesses on his behalf testified that their travel vouchers for the months in question were paid.

An award is hereby entered in favor of Claimant in the amount of $175.70.


text:
    (No. 77-CC-0220
    J. M. Corbett Co. et al., Claimants, v. The State of Illinois, Respondent.

      Opinion filed February 29, 1980.

   Per Curiam.

This claim coming on to be heard pursuant to the joint stipulation of the parties hereto, and the Court being fully advised in the premises.

The Court finds: That this claim is based on a paving contract dated June 14, 1974, wherein Claimant alleges damages totalling $337,176.68 as and for paving, repairing and penalties due to work on the Dan Ryan Expressway (1-94); all of which was fully investigated by the Illinois Legislative Investigating Commission in 1976.

That the Claimants have agreed to accept the sum of $145,000.00 as and for a full, complete and final settlement of all claims against Respondent, State of Illinois.

It is hereby ordered that the sum of $145,000.00 be and is hereby awarded to Claimants, J. M. Corbett Company, Thomas W. Madden Company, and Palumbo Excavating Company, as a joint venture, in full satisfaction of any and all claims presented to the State of Illinois in the above captioned cause.


text:
    (No. 77-CC-0347
    Gary Cook, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 16, 1980.

   Per Curiam.

Claimant filed a claim for damages allegedly suffered when he sustained an injury at the Illinois State Fairgrounds in Springfield, Illinois, on October 10, 1976.

On the above date, Claimant exited the grandstand area and walked approximately one-half block in front of the grandstand; from there he walked across a grassy area directly to his brother-in-law’s truck which was in the parking area. As he was walking along this grassy area, he stepped off the area into a hole which was covered with weeds and tall leaves. Claimant was unable to walk to the truck without assistance and he went to the emergency room at Memorial Medical Center in Springfield, Illinois, on the evening of October 10,1976. X-rays revealed a fracture of the left lateral malleolus. A cast was applied to Claimant’s ankle which remained for a period of six weeks.

The State offered no rebuttal testimony to the evidence.

Claimant testified he lost $2,100.00 in lost wages and the medical expenses incurred by him as a result of this accident were in the amount of $800.00.

In view of the testimony of Claimant, the corroboration thereof of his witness and the absence of any testimony on behalf of the State of Illinois, it appears that Claimant was a business invitee upon the premises owned and occupied by Respondent. This being the case, it is well established that the owner owes a duty to exercise ordinary and reasonable care for the safety of its business invitees. Bases of law are well founded for these points in Claimant’s briefs; therefore, in the absence of any proof to the contrary by Respondent, it appears the Claimant has proven a prima facie case and should be awarded the amount claimed; to wit, $2,900.00 special damages and $3,000.00 representing pain and suffering for a total amount of $5,900.00.

Award is hereby made to Claimant in the amount of $5,900.00.


text:
    (No. 77-CC-0353
    Linda Thomas Dropek, as Administrator of the Estate of Donald C. Thomas, Claimant, v. The State of Illinois, Robert H. Blasius, and Philip Bustin, Respondents.

      Opinion filed May 11, 1979.

      Rehearing denied January 21, 1980.

   Per Curiam.

This cause coming on to be heard on Claimant’s motion to file amended complaint and Respondent’s motion to vacate a prior order of this Court to continue the cause generally and to dismiss, and the Court having examined the pleadings and the briefs and arguments of the parties and being fully advised in the premises, finds:

1. The complaint is based upon the alleged wrongful death of Claimant’s decedent which occurred on October 10, 1972; letters of administration were issued to Claimant on November 13,1974; a suit was filed against the individual Respondents herein in the Circuit Court of La Salle County and dismissed with prejudice as to such parties on March 17, 1976. The State was not named as party defendant in said Circuit Court action.

2. No notice of action for personal injuries, required under section 22 of the Court of Claims Act (111. Rev. Stat. 1977, ch. 37, par 439.22) was ever filed.

3. The instant suit was originally filed in this Court on February 16, 1977, four years and three months following the death and two years and four months following issuance of the letters of administration.

4. The amended complaint herein sought to be filed differs from the original only insofar as it pleads a cause for property damage.

5. That Claimant’s complaint for personal injuries is barred by reason of Claimant’s failure to (i) comply with section 22 of the Court of Claims Act (111. Rev. Stat. 1977, ch. 37, par. 439.22), relating to the giving of notice and (ii) file within the period of limitations as set forth in section 22 of the Act.

6. That Claimant’s complaint for property damage, were it to be allowed to be filed, would necessarily be defective for Claimant’s failure to file within the period of limitations as set forth in section 22 of the “Court of Claims Act.”

Wherefore, the Court hereby orders that the prior order of this Court dated March 7,1977, be and the same is hereby vacated and set aside.

That Respondent’s motion to dismiss be and is hereby granted and the cause dismissed.


text:
    (No. 77-CC-0551
    Tommy Lynn Morris, Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 13, 1979.

    Tommy Lynn Morris, pro se, for Claimant.
    William J. Scott, Attorney General, for Respondent.
   Holderman, J.

Claimant was incarcerated as an inmate at the Menard Correctional Center. He filed this claim based on loss of pay at the rate of $8.00 per month for three months, or a total of $24.00.

It appears to the Court that this claim is based upon the theory that Claimant was wrongfully placed in “segregation.” The Administrative Review Board of the Menard Correctional Center found that this incarceration was incorrect and on an appeal prosecuted by Claimant within the administrative framework of the Administrative Review Board at Menard, the disciplinary action against Claimant was cancelled and “compensatory good time” for the time spent by Claimant in the disciplinary segregation was restored.

One of the aspects of disciplinary segregation was that Claimant would not receive his monthly allotment in the amount of $8.00 per month, which is awarded to each inmate in general population and in good standing within the correctional center.

The evidence discloses that Claimant admitted he had failed to present his claim for $8.00 per month for the three months involved at the time of his hearing before the Menard Correctional Center Administrative Review Board.

It appears to this Court that Claimant has failed to exhaust the administrative remedies available to him.

Claim denied.


text:
    (No. 77-CC-0559
    Margaret Slaughter, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 7, 1979.

    Donald R. Jackson (Joe Billy Me Dade, P. C., of counsel), for Claimant.
    William J. Scott, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

In 1971, the Claimant was employed at Jubilee Lodge, a juvenile female correctional institution. In September of 1971 the camp closed. On June 1,1972, the lodge was reopened as a camp for juvenile male offenders. Male employees were rehired while females were not. Claimant filed a complaint before the F.E.P.C. along with several other former female employees of said institution alleging sex discrimination. The Fair Employment Practice Commission (F.E.P.C.) agreed to an award of $5,512.35.

The claim is in the amount of $5,512.35 which is the difference between what the Claimant would have earned during the period of time in question, when figured one year at a time, and what she actually earned for the periods of time in question plus interest on the difference. The actual salary differential, figured one year at a time, is $4,366.29.

During the period of time in question the Claimant received $3,076.16 in welfare payments from the State of Illinois.

The first issue presented before this Court is whether the F.E.P.C. has the authority to award damages. This issue has previously been decided in the affirmative. A. P. Green Services Division of Bigelow-Liptak Corp. v. F.E.P.C. (1974), 19 Ill. App. 3d 875, 312 N.E.2d 314.

Next, Respondent challenged the propriety of Claimant’s claim that the award should include interest computed at the legal rate of six percent from the time of award to payment. In Coach Corporation of Freeport v. State of Illinois, 18 Ill. Ct. Cl. 156, this Court stated that the State of Illinois is not liable for payment of interest in the absence of a statute subjecting it to such liability.

Claimant cites Ill. Rev. Stat. 1977, ch. 74, par. 3, as authority for the awarding of interest. This statute does not apply. The general provisions of the statute in question refers to “judgment.” Judgments are issued by Circuit Courts. Ill. Rev. Stat. 1977, ch. 127, par. 801, states that the State of Illinois shall not be made a defendant or party in any Court except as provided in the Court of Claims Act. Since the State may not be made a defendant or party in a Circuit Court a “judgment” may not be obtained against it on either the F.E.P.C. “order,” the “agreement” or an “award” of this Court. Therefore, the Claimant’s only alternative is to obtain whatever award she can from this Court and trust that the legislature will honor the award as presented to it for its consideration. The claim for interest is denied.

The third issue before this Court is the question of mitigation. The law is clear that a Claimant must do all in its power to mitigate its damages. Sullivan v. State, 26 Ill. Ct. Cl. 117.

It is evident from the decision of the F.E.P.C. that Claimant should have been recalled from layoff on June 1, 1972, when Jubilee Lodge reopened as a camp for male juvenile delinquents. The F.E.P.C. determined that the refusal to rehire Claimant constituted sexual discrimination. Claimant’s uncontroverted testimony at the hearing established that she was hired by Caterpillar Tractor Company on September 21, 1972. Based on these facts, Claimant did fulfill her duty to mitigate her damages.

Claimant contends that once this Court is satisfied that the Claimant has properly fulfilled the obligation to mitigate damages, the Court should inquire no further and approve the stipulated settlement agreement reached by the parties. Leon Morris v. State 77-CC-23. The Morris case is distinguishable from the case at bar in that F.E.P.C. did not award Morris interest on the damages.

It is hereby ordered that the Claimant be awarded $4,366.29 less $3,076.16, the amount received in Public Aid, leaving a balance of $1,290.13.

An award is hereby made to Claimant, Margaret Slaughter in the amount of $1,290.13.


text:
    (No. 77-CC-0561
    Mae Ella Buckley, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 7, 1979.

      Rehearing denied March 20, 1980.

    Donald R. Jackson (Betty L. Beer, of counsel), for Claimant.
    William J. Scott, Attorney General (William Webber, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

In 1971, the Claimant was employed as a youth supervisor with the Department of Corrections at Jubilee Lodge, a juvenile female correctional institution. In September of 1971 the camp was closed. On June 1, 1972, Jubilee Lodge re-opened as a camp for juvenile male offenders. Male employees who were in layoff status (and were formerly employed as youth supervisors at the correctional facility) were recalled from the layoff list. The female employees were not recalled and new male workers were assigned the same duties formerly handled by Claimant and other female employees. Complaints were filed with the Fair Employment Practices Commission (F.E.P.C.) on behalf of several of the female employees alleging the refusal to rehire was because of their sex.

As a result of the hearing before the F.E.P.C., the Respondent was ordered to pay each of the complainants a sum equivalent to the amount each would have earned had she been employed as a youth supervisor at Jubilee as of the date she would have ordinarily been entitled to recall from layoff until the date each complainant was employed or might have become employed in that capacity.

Claimant seeks from Respondent payment of the sum of $41,949.32 for and as payment in full satisfaction of a settlement agreement entered into pursuant to the F.E.P.C. order.

In Lion Morris v. State of Illinois, 77-CC-233, this Court stated that the Court of Claims is not merely a rubber stamp for settlements of the F.E.P.C. The pertinent language of that opinion is as follows:

“Once the F.E.P.C. has made their determination or has approved the settlement, it is not for this Court to look behind the determination of settlement and second guess the Commission as to whether or not fair employment practices were violated. However, it is this Court and not the F.E.P.C. that is charged with the responsibility of determining the merits of a claim for monetary recovery and recommending or not recommending to the legislature that a given claim be paid or not paid. It is in the fulfillment of this responsibility that this Court would be remiss if it did not scrutinize the dollar amount agreed to, to determine whether or not the Claimant has properly mitigated his damages. It is the sole question this Court will address itself once the F.E.P.C. has determined by hearing, or agreement, that there was adequate proof of a fair employment practices violation.”

It is well settled in this State that a Claimant must do all in his/her power to mitigate damages. Schneider v. State, 22 Ill. Ct. Cl. 453; Anderson v. State, 25 Ill. Ct. Cl. 198; Sullivan v. State, 26 Ill. Ct. Cl. 117. It is apparent from the testimony and the evidence obtained at the hearing that Claimant failed to fulfill the duty imposed on her by the law in regard to mitigation of damages.

It is, therefore, the order of this Court that the claim be denied.


text:
    (No. 77-CC-0566
    Robert Lee Echols, Claimant, v. The State of Illinois, Respondent.

      Order filed February 4, 1980.

   Per Curiam.

We have reviewed the entire record before us.

Claimant has proceeded sufficiently to substantiate his claim without adequate objection by Respondent.

Award is made in the sum of $166.00 to Claimant.


text:
    (No. 77-CC-0601
    Lawrence Packnett, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 23, 1979.

    Richard J. Habiger, for Claimant.
    William J. Scott, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This claim was filed by Claimant as a result of an incident at the Menard Correctional Center in Chester, Illinois.

Claimant was an inmate of said State institution and while an inmate, he authorized his friend to take from the resident dining room of the penitentiary a pair of shoes to Claimant in the officers’ kitchen. While his friend was transporting the shoes, a correctional officer seized the shoes on the ground that they were contrary to institutional standards, the reason being that the shoes had four-inch heels which violated institutional guidelines.

The shoes had a value of approximately $60.00. While the shoes were in the possession of Respondent, they were lost.

Respondent sets forth that the shoes violated the institutional standards and that there was a rule and regulation in effect at the penitentiary which prohibited inmates from loaning articles of clothing to each other.

Claimant argues that he is entitled to summary judgment because of respondent’s failure to comply with Rule 2 of the Court of Claims, and Rule 216 of the Illinois Supreme Court. Respondent did not file an answer to request to admit facts within the 28 day time period specified in Rule 216. It is true that Respondent ignored the request for admissions of fact. This Court has in fact entered awards based in part on admissions made by respondent. Arles v. State of Illinois (1978), 76-CC-2974.

The request in the present case sought admission to every issue of material fact in Claimant’s cause. However, the Court need not reach this issue for the reason that the record as a whole clearly establishes that respondent did assume possession of the Claimant’s property and that the property was not returned to Claimant and was lost. A decision in this case is governed by the holding of this Court in Doubling v. State of Illinois (1976), 75-CC-833, which held that the State has a duty to safeguard and return property which it has taken from an inmate. See Arles v. State of Illinois (1978), 76-CC-2974. The only evidence as to the value of the shoes was the testimony of the Claimant, which was uncontradicted. The shoes cost Claimant somewhat over $60.00.

Respondent argues that since the shoes were contraband items under the applicable rules of the Menard Correctional Center that the State can have no liability for the loss of the shoes. The State cites cases which hold that the destruction of “contraband” such as guns, slot machines, and other gambling apparatus has been upheld. In such cases, however, the items in question were “contraband” per se and prohibited by State law. We do not believe that items of wearing apparel that are not dangerous or illegal per se can be dealt with under the authority of the State that might be exercised with respect to contraband items such as unlawful weapons and gambling devices.

An award is hereby entered in favor of Claimant in the amount of $60.00.


text:
    (No. 77-CC-0678
    Robert C. Bohne and Eleanor G. Bohne, Claimants, v. The State of Illinois, Respondent.

      Opinion filed October 5, 1979.

    Block, Levy & Block (Alan W. Block, of counsel), for Claimant.
    William J. Scott, Attorney General (Carl Klein, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

In this case, complainant seeks to recover damages sustained by him as a result of Respondent’s alleged violation of statute. The statute involved is 111. Rev. Stat., ch. 121, par. 4 — 508(c).

The facts giving rise to the complaint áre as follows:

Faced with a condemnation suit, Claimants sold part of their horse farm to the State in 1962 for $27,780.00. The State never used the land for the purpose intended. In 1972 the State offered it back to the Claimants for $92,000.00. The offer was accepted, but the transaction not completed because the necessary legislative action was not forthcoming. Subsequently, in 1973, at the request of the legislature, a reappraisal was made at $105,600.00. Claimants accepted the reappraisal and the legislature still refused to act.

On January 5, 1977, the property was sold at public sale to a third person for $132,000.00.

Ill. Rev. Stat., ch. 121, par. 4 — 508(c) provides as follows:

“(c) If at the time any residential property previously determined by the Department to be needed for highway purposes is declared no longer needed for.such purposes, and the person from whom such property was acquired resides in a dwelling on such property and has resided there since the acquisition by the Department, the Department before making any disposition of that property shall first offer in writing that property to the party residing thereon at the then fair appraised value of the property. If the offer is not accepted in writing within 60 days of the date of the written offer, all rights under this paragraph shall terminate.”

The tract purchased contained 5.556 acres. This tract was used as farm land and did not contain a residence. From the time it was purchased the property was never used for its intended purpose, and in 1971, it was declared surplus by the Department of Transportation with a recommendation it be sold. The Attorney General advised in his opinion that the property could be sold under section 4 — 508(a) (Ill. Rev. Stat. 1977, ch. 121, par. 4 — 508(a)). This subsection provides for sale at auction or by sealed bids at a price not less than its appraised value.

The dispute centers around whether or not this tract was residential and resided on by Claimant. If so, then section 4 — 508(c) comes into play. In such case, the property would have to be offered first to Claimant.

At all times relevant to this matter, Claimant owned the property adjacent and contiguous to the tract purchased by the State. The two parcels contained approximately ten-plus acres. The tract taken by the State had a barn on it and the remaining portion of the ten acres contained Claimant’s dwelling. Claimant argues that the entire ten acres constituted residential property on which the Claimant resided. The entire ten acres had been operated as a single-unit horse farm, completely fenced.

While there undoubtedly is a limit to what might be considered residential property on which a person is said to reside, we are of the opinion that in this case the facts indicate that the tract taken by the State did constitute a part of the residential property of Claimant. They took approximately one-half of Claimant’s property. Taking one-half of a ten-acre tract is much different from a case where five acres are taken from a much larger tract.

We award Claimant $26,400.00, being the difference between the last offer which was accepted by Claimant, and the actual sales price.


text:
    (Nos. 77-CC-0759 and 77-CC-0827
    Klingberg Schools, Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 31, 1979.

    Nicholas D. Chabraja and David J. Bradford, both for Claimant.
    William J. Scott, Attorney General (Richard J. Grossman, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

The above two cases have been consolidated and were tried as one case.

Lengthy motions for summary judgment filed by both parties have heretofore been disposed of by an order by then-Chief Justice Polos dismissing both motions for summary judgment. This order also disposes of two points raised by Claimant. The order of April 1,1979 denied the motion for summary judgment filed by Claimant and a similar motion filed by Respondent. This order also found that any settlement agreement or stipulation entered into by a State agency is subject to review by this Court, citing Lewson v. State (1925), 5 Ill. Ct. Cl. 80. In the same order, the Court disposes of a point raised by Claimant that an award should be made based upon the theory of quantum meruit.

The facts in this case are as follows: The Claimant, Klingberg Schools, is an Illinois not-for-profit corporation, and has been operated as a residential school for the mentally retarded for approximately 12 years. It is licensed by the Illinois Department of Mental Health and Developmental Disabilities (DMHDD) which is authorized by statute to place patients in Klingberg and similar facilities. Through individual care grants, DMHDD reimburses facilities for the care and treatment of patients entitled to receive financial assistance. Most of the patients at Klingberg receive such aid. The State of Illinois is the primary source of income for most of the patients at Klingberg Schools.

Klingberg’s status is that of a “provider agency” from which State agencies purchase care of individual patients under an “individual care grant” system. The type of care involved in this claim has been furnished by Claimant to the State for several years.

The complaint of the Claimant is based upon a request for monies that it insists is rightfully due Claimant.

It appears from the record that for several years the Claimant had furnished services to the State of Illinois, it had billed the State for the services at the amount agreed upon, and these amounts were paid to Claimant and accepted by Claimant. Claimant is now claiming that additional monies are due on the theory that the services that were furnished the Respondent were paid for at such a low rate that a substantial amount of money was lost by Claimant.

It is evident that there was a contract or agreement between the parties hereto whereby the Respondent agreed to pay Claimant certain definite sums for certain services that were rendered. The total amount involved in the two claims is approximately $196,000.00.

From the record, it appears that the State paid Claimant from July 1, 1975 to December 31, 1975 on the basis of $16.87 per resident per day. Claimant alleges that the actual cost during that period was $27.69 per resident per day. This figure was not substantiated by an audit made later by the State.

The per diem rate provided by the State from January 1, 1976 to June 30,1976 was $19.40 per resident per day.

Upon receiving the payments based upon the rates agreed upon, Claimant, in October 1975, contacted Respondent and requested an immediate increase in the State per diem rate.

Claimant started an action mandamus in the Circuit Court of Cook County to try and compel Respondent to pay the various variances between its alleged costs and payments received. This suit was started in May 1976, and it was in March 1977 that DMHDD and Claimant entered into a so-called settlement agreement. Under this agreement, Klingberg agreed to make certain policy changes, eliminate certain expenditures, and dismiss the mandamus suit. In the agreement, DMHDD promised, among other things, to support a claim by Klingberg Schools to be filed in the Court of Claims seeking compensation at the rate of $23.86 per diem for the fiscal year beginning July 1,1975 and ending June 30,1976.

It was later agreed upon by the Claimant and Respondent that Claimant’s actual cost was $22.40 per resident per day,-which figure is less than the amount actually claimed by Claimant.

It is Claimant’s contention that the State is liable to Klingberg Schools for the amount tentatively agreed upon between the parties in the settlement agreement and the fact that monies had already been paid and accepted was of no consequence.

It is Respondent’s contention that Claimant and Respondent entered into a contract, which has been performed by both parties, and cannot be revised by a subsequent agreement. Respondent also contends that Claimant’s action is barred by the doctrine of accord and satisfaction and by statutory and constitutional provisions. It further contends that the so-called settlement agreement of March 25,1977 is unenforceable because it requires payments in excess of the lapsed appropriation for that fiscal year which had been diminished by a transfer of funds to the Department of Public Aid. It also cites numerous cases, statutory provisions, and Court of Claims rulings to the effect that any contracts in excess of appropriations are null and void.

After the action was started by Claimant in the Court of Claims, a stipulation was agreed upon wherein certain facts were stipulated and the Court was requested to make a decision based upon the stipulated facts.

During the proceedings, an audit was made by the State of Illinois which was to the effect that the rates should have been smaller — in the neighborhood of $20.01. This figure is somewhat indefinite due to the fact that it is the State’s contention that certain amounts allowed in this figure were excessive and were amounts that should not have been allowed. The final figure in the stipulation, as shown by Exhibit B, was $23.86 per resident per day.

The entire question, in the opinion of the Court, is whether or not the State is obligated to pay an increase in the per diem rate even though the claim was paid at the prevailing per diem rate upon the figure agreed upon between the parties, and was accepted by Claimant for services rendered to Respondent.

The Court calls attention to the fact that the action on the part of Claimant was voluntary in all of these matters, the contract was voluntarily entered into between the parties, Claimant was under no obligation whatsoever to provide these services, the figure agreed upon was accepted by both parties, and the payment of said agreed-upon figure was accepted by Claimant. It was only after the billing and acceptance of the amount agreed upon that Claimant raised the question of additional compensation.

As previously stated, the question of quantum meruit raised by Claimant has been disposed of as has the question of whether or not an agreement such as the Claimant is relying upon here can be passed upon by the Court of Claims.

In Pickus Engineering and Construction Co. v. State of Illinois (1943,), 13 Ill. Ct. Cl. 39. The Claimant, a general business contractor, submitted a proposal to do work described in a general offer set forth by a department of the State. The State accepted the contractor’s proposal. Subsequent to the State’s acceptance, the contractor wanted to revise his bid but agreed to do the work according to his initial proposal. The Claimant who performed the work was issued a warrant and cashed the same. The ¡Claimant then sought an increase in compensation, filing suit in the Illinois Court of Claims based on his allegation that his labor costs exceeded the contract price.

The Respondent argued that the Claimant had no right to receive additional compensation under the contract. The Court held that the-contract was determinative of the matter and denied the Claimant additional relief.

In Worden-Allen Corp. v. Illinois (1947), 16 Ill. Ct. Cl. 138, the Claimant contended that the State caused a substantial delay in the performance of a contract between them. The Claimant alleged that as a result of the delay, he had to expend an additional $1200.00 to complete his part of the contract. Payment was tendered after his completion of the contract. The Claimant endorsed and cashed the check. Respondent contended that the cashing of the warrant constituted a full release from any and all actions arising out of the contract, and the Court held that payment under the contract constituted a full release. The Court further stated that no award can be made on a contract with the State once payment has been accepted.

Respondent cites the case of Schutte & Koerting v. State of Illinois (1957), 22 Ill. Ct. Cl. 592 as authority for three propositions: (1) that a State agency cannot contract in excess of its appropriations unless expressly authorized by law so to do; (2) that every claim or contract if not within the amount of appropriation already made is void; and (3) that where a contract is prohibited by law, there can be no recovery on a quantum meruit basis.

In 26 Ill. Ct. Cl. 256, it states that where the defendant is the State, the doctrine of quantum meruit does not apply.

The Claimant alleges that the State of Illinois had an absolute duty to set forth “pay schedules” which are commensurate with the “actual cost of treatment” of the DMHDD-placed patients and further alleges that compensation at a rate below its “break even” point amounts to a confiscation, which violates the due process clause of the Illinois and United States Constitutions. Claimant cites D. C. Transit, Inc. v. Washington Metropolitan Area Transit Comm'n., 466 F.2d 394, 418. There is a vast difference between the Transit case and the present case. In the Transit case, the Claimant was a public utility which could be forced to provide the services even at a loss. In the present case, the supplier of the services was not under any law that would compel it to provide services of any kind or character. It was strictly a voluntary act which was entered into with a full knowledge of the circumstances and was not under compulsion by the Respondent to do anything.

Claimant also raises the point that the State is estopped by the actions of its officers and agents and therefore must honor the settlement agreement. The principal that the State cannot be estopped on a contract, entered into by an agent without authority, is set forth in Dement v. Rokker, 126 Ill. 199 where the following language is used:

“The State is never estopped, as an individual or private corporation may be, on the ground that the agent is acting under apparent authority which is not real — the conclusive presumption being that his powers are known rendering such a consequence impossible.”

Schoenig v. State, 11 Ill. Ct. Cl. 634, lays down the rule that even if a director has authority to act in entering into a contract, estoppel is restricted when Claimant shows that its application is necessary to prevent a gross injustice.

In People v. Woods, 354 Ill. 224, the Court directly confronted the question of whether estoppel could be asserted against the State. The Court summarized, stating that the general rule is that neglect or omissions of public officers cannot work an estoppel against the State. The Court also stated that in exceptional cases, the doctrine of estoppel can be applied in a very limited sense.

The Court is of the opinion that the present case is not an extraordinary case in which the doctrine of estoppel could be applied. It is the Court’s opinion that this is merely a case of a contract being entered into between the parties, the terms lived up to by both parties, payment made and accepted, and after the acceptance of said payment in full, a request made by Claimant for additional compensation. It is unfortunate that instances like this happen because of the lack of knowledge on the part of some of the State’s employees in not recognizing the limitations of their office.

This Court is of the opinion that the decision in 10 Ill. Ct. Cl. 497, summarizes the present situation, and we quote from that decision:

“Counsel for Claimant filed an able and persuasive reply brief but we are compelled to hold that whoever deals with a municipality does so with notice of the limitations on it or its agents’ powers. All are presumed to know the law, and those who contract with it or furnish it supplies do so with reference to the law, and, if they go beyond the limitations imposed, they do so at their peril. This may seem unjust to the Claimant but the answer to that is: That it is better that a private individual suffer as plaintiff must do in this case than have this Court let down the bars and permit statutory enactments for the benefit of the public at large to be ignored so that the unscrupulous may unfairly and unjustly obtain public moneys. We cannot recognize or put the stamp of approval on the actions of the State officials in entering into such an informal contract.”

Award denied.


text:
    (No. 77-CC-0925
    Ned Mitchell, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 3, 1980.

    Owens & Owens (Gerald D. Owens, of counsel), for Claimant.
    William J. Scott, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

This cause arises out of a contract entered into between Claimant and the State of Illinois. Jurisdiction of the Court of Claims is asserted under section 8(b) of the Court of Claims Act. Ill. Rev. Stat. 1977, ch. 37, par. 439.8(b).

Claimant alleged that on July 1, 1976, he entered into a contract with the State to render certain services in consideration for payment of the sum of $800.00 per month. A copy of the contract was attached to the complaint. The contract is dated July 1,1976, and is on a form furnished by the State entitled “Services Contract.” Under the contract, Claimant was to work in the southern part of the State to develop contracts with private vendors to repair State vehicles where a State garage is not in close proximity. The work was to be done in a good and workmanlike manner and Claimant was to receive $800.00 monthly. The term of the contract was for one year and contained various other terms and conditions set forth in paragaphs III through XIII.

Claimant alleged in his complaint that on February 16,1977, Respondent breached the contract by failing to pay the amount due Claimant without just or legal cause within the terms of the contract. Claimant seeks compensation due him for the latter half of February and the months of March, April, May and June of 1977.

Respondent denied that it breached the contract and alleged that the contract was terminated because Claimant failed to perform the services specified in a good and workmanlike manner.

The record is barren of any evidence whatsoever that the Claimant ever performed services as described in the contract. The record is silent as to the performance of any services whatsoever; the Court does not believe that the testimony of the Claimant with respect to purported services performed is credible. On the contrary, the Court is of the considered opinion that the testimony of the Claimant with respect to purported services performed for the State pursuant to this contract was in fact not credible.

Hence, this claim must be and is hereby denied.


text:
    (No. 77-CC-1031
    Hoel-Steffen Construction Company, Claimant, v. The State of Illinois, Respondent.

      Order filed December 6, 1979.

   Per Curiam.

This claim coming on to be heard on the joint stipulation of the parties and the recommendation of the Commissioner of this Court, and the Court being fully advised in the premises.

The Court finds:

That the parties having stipulated to an entry of an award in the amount of $6,254.40 for damages as alleged in paragraphs 4 and 6 of Claimant’s complaint.

It is hereby ordered that the Claimant be awarded in full satisfaction of any and all claims presented to the State of Illinois under the above-captioned cause the sum of $6,254.40.


text:
    (No. 77-CC-1167
    William R. Chambers, Claimant, v. The State of Illinois, Respondent.

      Order filed June 5, 1980.

   Per Curiam.

This matter comes before the Court upon a motion of Claimant to reconsider order of dismissal entered in this cause.

The complaint in this matter was filed on June 30, 1977. On November 14,1979, Respondent made a motion to dismiss said cause, the grounds of said motion being that Claimant had been furnished interrogatories on September 12, 1977, which Claimant had failed to answer. On January 28,1980, this Court granted the motion of Respondent to dismiss and said cause was dismissed.

The attorney for Claimant entered his appearance on November 30,1979. In the motion to reconsider order of dismissal, Claimant sets forth that he was unaware of the fact that he was required to answer the interrogatories received by him in 1977, yet the record indicates that he did nothing to protect his interests until November of 1979, two years after the receipt of the interrogatories. It was at this time that he consulted an attorney and the attorney filed his appearance. This was over two years after having received said interrogatories and it is the Court’s opinion that due diligence was not exercised on the part of Claimant as it was his responsibility to protect his interests long before he did.

It is hereby ordered that Claimant’s motion for reconsideration be, and the same is, denied.


text:
    (No. 77-CC-1280
    Warchol Construction Co., Inc., Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 2, 1979.

    Louis C. Warchol and Nicholas S. Zagone, both for Claimant.
    William J. Scott, Attorney General (Frances Donovan, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This claim arises as a result of a contract entered into on or about May 17, 1973, between Claimant and the Capital Development Board of the State of Illinois for the general construction work of the Davea Center in Du Page County, Illinois.

The work of the general contractor was to include excavating, backfilling, grading, sitework and applying base and bituminous (asphalt) paving of the ringroad around said building and service area and parking lots on the north, south and west sides of the building.

The construction work began/ in June of 1973. It appears that in late September or early October 1973, the architect’s representative issued a verbal stop-order concerning the on-going grading and paving on the south side of the building until such time as the architect could issue a bulletin which would price out the value of certain planned change-orders and modifications which would alter the elevations of the existing grades, increase the water retention pond and the installation of four new catch basins and storm sewers all located on the south side of the building.

It further appears that the architect did follow up his stop-order with Bulletin No. 4. on October 8, 1973, and further issued revised drawings changing the elevations in these areas. It appears the following changes were requested:

(a) Re-location and enlargement of retention pond;

(b) Add four catch basins (two in the middle of south ringroad) and add new storm lines;

(c) Raise the grade of the south parking lot 18 inches in the center.

(d) Raise the grade of the south ringroad approximately 4 inches.

(e) Raise the grade approximately 4 inches at parts of the service area.

Pursuant to said stop-order, no work was done by the Claimant-contractor concerning the grade elevations or the paving operation in the south parking lot, south service areas or the south portion of the ringboard with the exception of the base course being put in the south portion of the ringroad, so that there would be access to the building site.

During the same period of time, to-wit: in October 1973, the Claimant-contractor was able to and did complete the grading, leveling and applying of bituminous (asphalt) paving in the north parking lot and other portions of the ringroad.

During this period of time, the cost of construction, and in particular the cost of asphalt, was escalating daily, sometimes rising two or three times a day. During the winter months when it was impossible to do any grading and asphalt paving, no work was done.

Before Bulletin No. 4 could result in a change-order being issued, the architect’s representative on April 5, 1974, issued another bulletin, Bulletin No. 8. This was six months after the grading and paving had been stopped and this bulletin again changed the grades and elevations on the south side of the building.

As a result, Bulletin No. 8 resulted in a change-order request No. 43 which contained the final grades and elevations and paving to be installed on the project.

The Capital Development Board did not approve and forward the signed change-order request No. 43 to Claimant until January 3, 1975.

The evidence is that the work on the revised elevations, grading and paving was done by Claimant in the spring and summer of 1975 at an additional cost of $73,510.90, which cost was due largely to increased costs for asphalt, grading and paving.

The evidence shows that the stop-order actually affected part of the south ringroad and south area and 90 percent of the south parking lot.

The record discloses that Claimant had a sub-contract with the John Ward Paving Company for the grading and bituminous paving at the site in the amount of $125,321.00. Ward commenced work on said project and did complete grading and paving of part of its contract for which it was paid $47,000.00, leaving a balance of $78,321.00 unfinished on its contract. Ward refused to perform under the contract because of increased cost of asphalt. Thereupon, the balance of Ward’s contract was awarded to Rock Road Construction Company who was paid $151,831.90 to complete said contract. This amount is $73,510.90 in excess of the amount remaining in Ward’s contract.

Testimony was given by one Ray Jensen of Claimant’s construction company to the effect that 75.33 percent of the total uncompleted job was affected by the stop-order, and Claimant’s evidence indicates that the sum of $55,375.76 is the amount of damages it sustained by the unreasonable delay caused by the architect’s stop-order.

Claimant also requests the sum of $17,720.24 as interest due it for non-payment of the principal amount.

The evidence is uncontradicted that the delays were caused as a result of the various changes in plans of the State and that unfortunately these changes in plans occurred so that when the contractor could resume work, the weather conditions during the winter months were such that they could not be completed. It is also uncontradicted that the costs of construction, particularly that of asphalt, were rising almost daily as a result of the Arab oil embargo.

Ordinarily a contractor is bound by the terms of his contract and must perform under the terms of said contract unless the other party to the contract, in this case, the State, by its own actions causes the additional costs. The record is undisputed in the present case that the delays were caused by changed orders of the State from which the contractor could not protect himself and, as a result of said changed orders, Claimant did sustain considerable loss.

This Court, in the case of Blades, Inc. v. State of Illinois, 30 Ill. Ct. Cl. 388, laid down the rule that “contractor is entitled to damages caused by mistakes in bid plans prepared by the State.”

The Court believes the present case falls within the scope of the above-cited decision.

The Court also believes the unreasonable delay caused by Respondent when it issued its stop-order, coupled with the cold weather and the Arab oil embargo, resulted in a substantial escalation of the cost of asphalt and other construction costs.

It is the opinion of this Court that Claimant is entitled to the sum of $45,000.00 in payment of additional costs and an award is hereby entered in that amount.


text:
    (No. 77-CC-1317
    Richard Kennedy et al., Claimants, v. The State of Illinois, Respondent.

      Order filed May 19, 1980.

   Per Curiam.

This claim coming on to be heard pursuant to the stipulation to dismiss of the parties hereto, and the Court being fully advised in the premises.

The Court finds: That this claim is based on a vehicle collision on April 18, 1977, wherein Claimant alleges damages totaling $5,000.00 as and for injuries and property damage.

That the Claimants have agreed to accept the sum of $500.00 as and for a full, complete and final settlement of all claims against Respondent, The State of Illinois.

It is hereby ordered that the sum of $500.00 be and is hereby awarded to Claimants, Richard Kennedy and Nancy A. Kennedy in full satisfaction of any and all claims presented to the State of Illinois in the above captioned cause.


text:
    (No. 77-CC-1432
    Judith Ann Chamness, Claimant, v. The State of Illinois, Respondent.

      Order filed September 13, 1979.

   Per Curiam.

This cause comes on for hearing on a complaint filed by Claimant on August 2, 1977, pursuant to Section 8(a) of the Court of Claims Act (Ill. Rev. Stat. 1977, ch. 37, par. 439.8(a)) seeking payment of the sum of $8,824.92 from Respondent, pursuant to the terms of a certain settlement agreement entered into by and between Claimant and Respondent resolving a charge by Claimant of unfair employment practices filed with the Illinois Fair Employment Practices Commission. Claimant appears pro se in support of her claim.

A certain settlement and agreement was entered into by and between Claimant and the Illinois Department of Corrections executed by the Illinois Department of Corrections on July 5, 1977, purporting to grant to Claimant the amount set forth above as an award for wages which would have been paid but for an unfair labor practice and sex discrimination by the Illinois Department of Corrections.

Introduced as an exhibit by Claimant are the findings of the Fair Employment Practices Commission and the terms of settlement and agreement entered into between Claimant and the Illinois Department of Corrections.

The Attorney General’s Office cross-examined Claimant with respect to the truthfulness of her allegations that she sought employment elsewhere in an attempt to mitigate her damages. Respondent offered into evidence certain letters received back from employers Claimant stated were contacted and to whom applications for employment were made, one of which verified Claimant’s application and five stated that their records did not indicate that she had ever sought employment with their company or place of business.

In the case of Sullivan v. State of Illinois, 26 Ill. Ct. Cl. 117, this Court laid down the following rule:

“During a period of illegal removal from office, Claimant must diligently seek employment, and do all in his power to mitigate damages.”

The testimony of the Claimant as to what assistance had been provided is not clear. She stated she did receive some food stamps but did not know how much, if anything, she received in unemployment compensation.

It appears from the record that Claimant solicited nine potential employers during the time of her unemployment of one year. This would indicate she was making an application for employment less than once each month.

It is the Court’s opinion that Claimant did not sufficiently assert herself to mitigate damages of which she claims.

Award denied.