author: JUSTICE LORENZ

text:
    PHILLIP LEHMAN et al., Plaintiffs-Appellees, v. EUGENE MATANKY & ASSOCIATES, INC., Defendant-Appellant.
    First District (5th Division)
    No. 81-1061
    Opinion filed July 9, 1982.

      Hollobow and Taslitz, of Chicago (Barry B. Kreisler and Alan B. Castator, of counsel), for appellant.
    Krause & Krause, of Mt. Prospect (David S. Krause and Carolyn H. Krause, of counsel), for appellees.
   JUSTICE LORENZ

delivered the opinion of the court:

Defendant appeals from the entry of an order granting summary judgment to plaintiffs and raises the following issues: (1) whether a dispute concerning the termination of the contract was within the scope of the arbitration clause so that the cause should have proceeded to arbitration and, in the alternative, (2) whether genuine issues of material fact remain concerning the termination of the listing agreement which precluded the entry of summary judgment in favor of plaintiffs.

Material to our disposition are the following facts. One September 18,1979, plaintiffs entered into a written real estate brokerage agreement whereby they employed Matanky as their exclusive sales agent to secure a buyer for the property located at 500 W. Touhy Avenue in Des Plaines, Illinois. The subject property was owned by Lehman Mobile Homes Park, Inc., an Illinois corporation, all of whose stock was owned in joint tenancy by the plaintiffs.

This agreement provided that Matanky’s employment as plaintiffs’ exclusive agent was “to extend for a period of not less than six months with authority to offer for sale, to advertise, to place a sign thereon and to sell said property * * *."

The brokerage contract also contained a notice requirement for termination of the exclusive agency relationship and a generic arbitration clause. The notice requirement stated: “This agreement shall remain in effect for the period above specified and thereafter until terminated by me or you in writing, giving the other party thirty (30) days prior notice.” The generic arbitration clause provided in pertinent part: “Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.” The subject property was placed on the market for an asking price of $1,200,000. The brokerage contract was executed by the Lehmans and by Ken Baldwin and Grace Stample as agents for defendant.

On February 11,1980, plaintiffs’ attorney Carolyn Krause sent a letter to the defendant’s office, notifying it that “in accordance with the Real Estate Listing Agreement dated September 18,1978, we are hereby giving you notice that the said agreement shall terminate on March 18,1980.” Ken Baldwin replied to the Lehmans on February 13,1980, acknowledging receipt of their letter “terminating our exclusive as of March 18, 1980.” The letter further stated: “We will keep the property listed in our cooperative sales agency until the expiration date, and meanwhile will continue our efforts to sell the property even after the exclusive expires unless you advise us otherwise or until it is sold.”

On March 19, 1980, plaintiffs’ attorney mailed a rough draft of a proposed real estate contract between the plaintiffs and Patrick Lasco and Charles Drew. The rough draft was not signed by any of the named parties.

On April 14, 1980, Ken Baldwin submitted an offer to purchase the subject property to the plaintiffs which was on the same form as the March 19 draft. However, the terms of the original offer had been altered to provide, inter alia, that the Lehmans would pay a broker’s commission to the defendant in the amount agreed to in the exclusive brokerage agreement. The April 4 offer was signed by a new prospective purchaser, Henry Criz, in place of Lasco and Drew, whose names have been deleted.

For reasons not revealed in the record, neither sale was consummated, nor did the Lehmans ever accept either offer by signing a contract.

On July 5, 1980, the American Arbitration Association notified the Lehmans that Matanky had filed a demand for arbitration of the issue of the $84,000 brokerage commission. The Lehmans protested that filing, and contested the jurisdiction of the American Arbitration Association by claiming that the brokerage agreement which provided for arbitration had been properly terminated and no longer compelled arbitration of the issue.

Plaintiffs subsequently filed this lawsuit seeking to enjoin defendant from proceeding to arbitration. Following cross motions for summary judgment, the trial court ruled in favor of plaintiffs, and it is from this order that defendant appeals.

Opinion

Defendant initially contends that the trial court erred in finding that the parties had not agreed to arbitrate a dispute concerning the termination of the contract.

Section 2(a) of the Uniform Arbitration Act (Ill. Rev. Stat. 1977, ch. 10, par. 102(a)) provides:

“(a) On application of a party showing an [arbitration] agreement * * *, and the opposing party’s refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party, otherwise, the application shall be denied.”

Under the Uniform Arbitration Act, adopted in Illinois in 1961, the trial court is authorized to determine arbitrability if one of the parties denies it has agreed to arbitrate. The chief effect and benefit of the 1961 Act is that it grants legal enforceability to arbitration agreements to settle future as well as existing disputes. Flood v. Country Mutual Insurance Co. (1967), 89 Ill. App. 2d 358, 232 N.E.2d 32, rev d on other grounds (1968), 41 Ill. 2d 91, 242 N.E.2d 149.

However, it is well settled that since arbitration is a matter of contract, a party cannot be required to arbitrate any dispute which he had not agreed to arbitrate (Butler Products Co. v. Unistrut Corp. (7th Cir. 1966), 367 F.2d 733; Atkinson v. Sinclair Refining Co. (1962), 370 U.S. 238,241, 8 L. Ed. 462, 466, 82 S. Ct. 1318, 1320-21), and it is for the courts to determine whether the claim is “on its face” covered by the contract. United Steelworkers v. American Manufacturing Co. (1960), 363 U.S. 564, 568, 4 L. Ed. 2d 1403, 1407, 80 S. Ct. 1343, 1346.

Thus, we note initially that the issue as to whether the brokerage contract in the present case required arbitration by its terms was properly decided by the trial court and not by an arbitrator. Board of Trustees v. Cook County College Teachers Union, Local 1600 (1980), 87 Ill. App. 3d 246, 408 N.E.2d 1026.

As for the proper perspective to apply, Illinois courts have developed a much stricter standard of review for arbitration of disputes which arise in the context of a commercial undertaking, in contrast to the more liberal standard preferred by the courts in the delicate sphere of collective bargaining agreement disputes. Croom v. City of De Kalb (1979), 71 Ill. App. 3d 370, 389 N.E.2d 647.

The applicable standard of review for a commercial arbitration dispute provides, in essence, that the parties are only held bound to arbitrate those issues which must be “stated in the contract between the parties in crystal clear language unextended and unenlarged either by construction or by implication.” (Blades, Inc. v. Jarman Memorial Hospital Building Fund, Inc. (1969), 109 Ill. App. 2d 224, 226, 248 N.E.2d 289, 290; Flood v. Country Mutual Insurance Co. (1968), 41 Ill. 2d 91, 94, 242 N.E.2d 149, 151.) As one author has commented, “This has almost led to the requirement that the settling of a dispute by the method of arbitration must be spelled out expressis verbis in the contract in order to give it effectiveness.” Herzog, Judicial Review of Arbitration Proceedings — A Present Need, 5 DePaul L. Rev. 14, 19 (1955).

We turn now to consider defendant’s argument that the issue of termination should have been decided by the arbitrator and not by the trial court. In the present case the brokerage agreement of September 18, 1979, provided for arbitration of any dispute arising in connection with the agreement, but also contained a provision for the termination of this agreement after six months had elapsed and proper notice had been given.

Relying primarily upon Beider v. Eugene Matanky & Associates, Inc. (1977), 55 Ill. App. 3d 354, 371 N.E.2d 29, defendant contends that the issue of termination of the arbitration agreement was within the scope of the arbitration clause and therefore should have been decided by the arbitrator. We do not agree.

In Beider, the generic arbitration provision and the notice requirement involved were identical to the instant case inasmuch as the same defendant in the present action was also a party to that suit. The Beider contract, however, gave Matanky authority for a period of not less than three months to offer the property for sale. There, the 30-day notice period, calculated from February 16, 1973, expired on March 18, 1973. However, on March 16, 1973, defendant procured an offer to purchase the property which plaintiff accepted on March 19, 1973.

When defendant sought arbitration of the dispute, the plaintiff requested a stay of the arbitration proceeding which was subsequently denied by the trial court. Unlike the present case, the Beider court specifically found that issues existed concerning proper notice of revocation of defendant’s agency and the effective date of that revocation. The appellate court affirmed, finding that the question of sufficient notice of termination as well as the issues surrounding procurement of a ready, willing and able buyer were within the scope of the generic arbitration clause.

Defendant also cites as authority the case of General Atomic Co. v. Commonwealth Edison Co. (1976), 37 Ill. App. 3d 716, 346 N.E.2d 437, which was relied upon by the Beider court. In General Atomic, a contract for the purchase and sale of nuclear fuel provided that “ ‘[a]ny dispute arising from this Contract, including any failure to agree upon any matter where this Contract provides for future agreement of the parties, shall be submitted to arbitration upon request of either party.’ ” (37 Ill. App. 3d 716, 719.) Either party to the contract could terminate upon the occurrence of force majeure circumstances affecting the ability of the other to perform. Unanticipated nuclear regulatory licensing delays subsequently prompted plaintiff General Atomic to terminate the contract under its force majeure clause, and similar court action to stay arbitration ensued. The appellate court held that whether the plaintiff had properly exercised the force majeure clause constituted a dispute arising from the contract, and was thus an arbitrable question under the contract’s arbitration clause.

We believe that the cases relied upon by Matanky are distinguishable from the case at bar. The present case differs in the following three respects: (1) the brokerage agreement had been unambiguously and effectively terminated, unlike Beider, where issues of proper notice and revocation remained; (2) the agreement was not terminated as a result of a party’s breach of contract, but by the expiration of its specified term, in contrast to General Atomic, where issues concerning revocation remained; and (3) the Criz offer was never accepted by the plaintiffs and the property had not been sold as of the time of summary judgment.

However, the thrust of defendant’s argument is that the plaintiffs’ letter of February 11, 1980, did not operate to terminate the listing agreement. Defendant persistently argues that plaintiffs’ notice of revocation letter of February 11, 1980, somehow did not effectively and unequivocally terminate the brokerage agreement, or, apparently in the alternative, that the letter merely operated to terminate the defendant’s exclusive agency while an agency relationship continued in force and effect. Defendant directs our attention to its reply letter of February 13, 1980, which states: “We will keep the property listed * * * until the expiration date, and meanwhile will continue our efforts to sell the property even after the exclusive expires unless you advise us otherwise or until it is sold.” We are not persuaded by the illogic of this argument.

As a general rule, a broker’s contract of employment is subject to being terminated by the principal’s revocation of the authority granted to the broker at any time and under any circumstances. (5 Ill. L. & Prac Brokers sec. 28 (1953).) Illinois decisional law indicates that the ordinary contract of agency for the sale of real estate is a unilateral offer and can be prematurely terminated at any time before it is accepted by the procurement of a purchaser, provided that the revocation is in good faith. Nicholson v. Alderson (1952), 347 Ill. App. 496, 107 N.E.2d 39.

It is well established that a contract which is not ambiguous in its expression of duration is not subject to judicial construction. (Donahue v. Rockford Showcase ir Fixture Co. (1967), 87 III. App, 2d 47, 230 N.E.2d 278.) Fundamental contract law mandates that the terms of a written contract bind the parties as to all of its provisions, including the manner in which the term granted may be terminated (Cox v. Grant (1978), 57 Ill. App. 3d 922, 373 N.E.2d 820), and such a stipulation will be enforced when made in good faith. (S & F Corp. v. American Express Co. (1978), 60 Ill. App. 3d 824, 377 N.E.2d 73.) Thus, the mere fact that the parties by their acts and declarations indicate an intention to treat a written contract as continuing after the time prescribed in it for its termination will not have the effect of continuing such a contract, although it may show a subsequent oral agreement on the same terms. 17A C.J.S. Contracts sec. 449 (1963).

In the present case, it is clear that there was no existing contract calling for arbitration after March 18, 1980. As one author has commented: “While the contract provides for arbitration of disputes as to the ‘meaning, performance, non-performance or application of its provisions, the mere assertion by a party of a meaning of a provision which is clearly contrary to the plain meaning of the words, cannot make an arbitrable issue * * *."(citing International Association of Machinists v. Cutler-Hammer, Inc. (1947), 271 App. Div. 917, 918, 67 N.Y.S.2d 317, 318). (See Herzog, Judicial Review of Arbitration Proceedings — A Present Need, 5 DePaul L. Rev. 14, 21 (1955).) We believe that this analysis is applicable to the case at bar.

Applying the foregoing principles to the present case, we find that the brokerage agreement was totally and unequivocally terminated pursuant to the notice requirement contained therein. The subsequent offer to purchase did not arise out of the terminated contract, which was no longer in force and effect.

Accordingly, we conclude that the issue of termination of the contract was not within the scope of the arbitration clause.

Finally, we consider defendant’s contention that the trial court erred in granting summary judgment due to the existence of genuine issues of material fact.

A careful review of the record discloses that defendant has never filed any counteraffidavits, nor have they at any time disputed any of the documents relied upon by the plaintiffs. Even though a complaint and answer may purport to raise issues of material fact, if such issues are not further supported by evidentiary facts through affidavits or such, summary judgment is then appropriate. Carruthers v. B. C. Christopher & Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457.

We therefore find that summary judgment in the present case was a proper procedure where only the construction and validity of the agreement were at issue. Bates v. Select Lake City Theater Operating Co. (1979), 78 Ill. App. 3d 153, 397 N.E.2d 75.

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

Affirmed.

MEJDA and WILSON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE ROMITI

license: Public Domain

text:
    NATIONAL BOULEVARD BANK OF CHICAGO, Trustee, et al., Plaintiffs-Appellants, v. CITIZENS UTILITIES CO. OF ILLINOIS, Defendant-Appellee.
    First District (4th Division)
    No. 81-1607
    Opinion filed June 3, 1982.
    Rehearing denied August 5, 1982.

      Edward G. Finnegan, Ltd., of Chicago, for appellants.
    Daniel J. Kucera and Christine Hehmeyer Rosso, both of Chapman and Cutler, of Chicago, for appellee.
   JUSTICE ROMITI

delivered the opinion of the court:

Plaintiffs initially objected to being charged sewage rates by the defendant and went before the Illinois Commerce Commission. That body determined that its decision depended on the ownership of certain sewer mains; an issue it had no jurisdiction to decide. Accordingly, this declaratory judgment action was filed in the Chancery Division because plaintiffs also sought equitable relief. The trial court held that the conduct of the parties and certain documents acknowledging defendant’s ownership of mains used by it established defendant’s ownership of the mains in question. We hold that the trial court erred in holding (1) that the mains embedded in plaintiffs’ property were personal property; (2) that plaintiffs’ predecessor’s conduct gave rise to an estoppel and (3) that the evidence shows ownership in defendant. Accordingly, we reverse and enter judgment for plaintiffs.

The pleadings, documentary evidence and testimony disclose that the property in question, Gladstone Glen Apartments, is a multiple-unit complex consisting of 466 units. While now part of the village of Prospect Heights, the area originally was part of unincorporated Cook County. It lies on the east side of Wolf Road and the north side of Willow Road. It runs approximately 1975 feet along Wolf and 625.7 feet along Willow. In 1965 the property line along Wolf Road extended to the center of that road. In 1963 the Metropolitan Sanitary District of Greater Chicago (MSD) was given an easement for its interceptor sewer within the property line east of the center of Wolf Road. The easement agreement provided that the grantor and its successors and assigns should have the right, at any time after the completion of that portion of the intercepting sewer located on the property, to connect its own sewers with the intercepting sewer.

In 1965 the developer-owner, Oakview Builders, started to build on the property. The project was constructed in three phases, the first 144 units being completed and occupied in 1965 and 1966; the remaining 322 apartments were completed at a later date. Collecting sewers connecting the various buildings were built by Oakview’s contractor on Oakview’s property. They ran, by gravitational pull, into a 23-foot-long, 12-inch-wide sewer main which connected directly into the MSD interceptor sewer. The 23-foot connecting sewer main ran from the edge of Wolf Road to the MSD interceptor sewer. In 1965 this was all on Oakview’s property. MSD granted the connection permit on July 8,1965. The permit provided that it was not transferable without the written permission of the MSD. It was stipulated by the parties that the only sewer mains used in collecting Gladstone Glen’s sewage are the 2,600 feet of collecting sewers located within plaintiffs’ present property line and the 23-foot sewer connection, all of which were built and paid for by Oakview, and the MSD interceptor sewer. Unless either the 2,600 feet of collecting sewers or the 23-foot sewer connection built at Oakview’s direction belong to defendant, no part of the system used is defendant’s. In other words, no connections were made into any part of defendant’s already existing sewerage system. No sewer main belonging to defendant was ever extended to Gladstone Glen.

Defendant, Citizens Utilities Company of Elinois, is a public utility engaged in furnishing water and sewer service in certain areas of Cook, Du Page and Will Counties, Elinois. On January 25, 1965, Oakview Builders sent a formal request to defendant for water and sanitary sewer service for parcels 1 and 3 of the property. On July 30, 1965, the Illinois Commerce Commission entered an order and certificate of convenience and necessity allowing defendant to render such service finding that there was no other service available in the area to meet the need. As already noted, three weeks before MSD had granted Oakview permission to hook up to its interceptor main.

Besides the 23-foot sewer main which was built in 1965 and the other sewer mains, Oakview also extended defendant’s water main 2,085 feet to its own property. Beginning on January 1, 1966, Oakview filed applications for service for the nine buildings of the first development, a total of 144 units, as each was completed and ready for occupancy. The applications, on forms prepared by defendant, read as follows:

“NO. MOV — 1600
SERVICE APPLICATION AND AGREEMENT
The undersigned applicant requests that CITIZENS UTILITIES COMPANY OF ILLINOIS hereinafter referred to as the ‘Company’ provide water and sanitary sewer service requirements at the premises described below, and agrees to accept and pay for service in accordance with the Company’s rates, rules, regulations and conditions of service from time to time on file with the Illinois Commerce Commission.
* * *
The applicant agrees to install, if not already installed, and to maintain at his own expense in good condition all service lines in the premises described below and that the Company owns and shall maintain at the Company’s expense all mains and other facilities used in rendering service to the applicant, including any meter located in the premises described below. The Company shall have free access to said meter at all reasonable times. If the meter is not read during any billing period, the Company shall render and the applicant agrees to pay an estimated bill for said billing period.”

No applications for service to the rest of the buildings, if there were any, were introduced into evidence.

On July 15,1966, an interoffice memo was sent by I. Jacobson stating they had to have improvement orders, easements, as-built engineering drawings, lien waivers and invoices showing the costs of all of the construction involved on the property, including the connecting mains. The easement was to confirm that the facilities within the subdivision were defendant’s. Exhibit A attached to the easement was to cover the entire tract. Both the easement and Exhibit A were to be recorded. In fact they were not.

The easement was not signed until December 8, 1966, over one year after the sewer connection was finished and the sewer put in operation. Relevant portions of the “Grant of Perpetual Right and Easement” read as follows:

“In consideration of Ten Dollars ($10.00) and other good and valuable consideration, receipt of which is hereby acknowledged, WOLF PALATINE GARDENS, AS AGENT FOR EXCHANGE NATIONAL BANK, TRUST U/T No. 18621, a partnership (hereinafter called ‘Grantor’) duly authorized to transact business in the State of Illinois, being the owner of that certain tract of real estate to be subdivided and known as of this date as Lamplighter Apartments, shown on and legally described on Exhibit A attached hereto and made a part hereof, hereby grants to Citizens Utilities Company of Illinois, an Illinois corporation (hereinafter called ‘Utility’), its successors and assigns, a perpetual right and easement in, upon, along and under the parcels of real estate designated or to be designated, within the tract of real estate shown by said Exhibit A, as ‘streets’, ‘roads’, ‘boulevards’, ‘lanes’, ‘drives’, and other public places, and also in, upon, along and under those parcels of real estate designated or to be designated therein as utility or drainage easements, to install, construct, operate, maintain, repair and renew water mains, pipes, gates, valves, hydrants, sewage collection lines, manholes, lampholes, effluent lines and all other appurtenances or facilities which may be used by Utility in furnishing water service and sewage collection, treatment and disposal service in the tract of real estate shown on and described by said Exhibit A, or in any adjacent or other territory, including, without being limited to, the right to enter upon said parcels of real estate designated or to be designated as aforesaid, to make openings therein, to excavate beneath the surface thereof for the purpose of installing, constructing, operating, maintaining, repairing or renewing any facilities of Utility, and to carry on its business as a public utility by means of the facilities located in, upon, along or under such streets, roads, boulevards, lanes, drives, public places, utility and drainage easements; provided, however, that any excavation or other work by Utility shall be completed in a reasonable time, and after completion Utility shall restore the surface of the area opened to substantially as good condition as it was in before such opening.
see
Grantor, for itself and for its successors or assigns to any or all parcels of real estate within the tract of real estate shown by said Exhibit A, hereby acknowledges that ownership of, control of, and title to all water mains, pipes, gates, valves, hydrants, sewage collection lines, manholes, lampholes, effluent lines and all other appurtenances or facilities which may be used by Utility in furnishing water service and sewage collection, treatment and disposal service in the tract of real estate shown on and described by said Exhibit A is vested solely in Utility, free and clear of all encumbrances or claims including claims for payment by Grantor, its successors or assigns or parties claiming under Grantor, its successors or assigns.”

Exhibit A attached to and referred to in the easement contains no legal description. It shows the west boundary line, Wolf Road, and the easement along it. While Willow Road is shown on the drawing, the length of the property along Willow is not shown. The northern boundary of the property is not shown at all and the eastern boundary is not designated. The drawing merely shows a 15-foot easement along Wolf and a 100-foot temporary easement. These appear to be identical easements given in 1963 to the MSD.

Also on December 8, 1966, a lien waiver was given by Oakview as contractor to defendant for and in consideration of $48,607.86. Certain other lien waivers naming Oakview Builders, Inc., as employer and signed by Oakview and others working on the site were also signed early in 1967 and turned over to defendant as a condition to Oakview’s receiving a refund. Likewise invoices for building water and sewer mains for phase I of the project were turned over to defendant. They were paid, however, by Oakview, not defendant. An improvement order covering the project was prepared on December 9, 1966, over one year after the sewer facilities were constructed and placed in service. And on February 24, 1967, a journal entry for the month of December 1966 was prepared, transferring the cost of water and sewer mains, in the amount of $60,945, from “Construction Work in Progress” to various accounts, primarily “Customers Advances for Construction.” In fact the total cost of all of the water and sewer mains now claimed by defendant was over $120,000. “Construction Work in Progress” accounts are to include the total of the balance of work orders in the process of construction but not ready for service on the date of the balance sheet. It appears the balance sheet was dated 1966, after the sewer mains were put in operation.

As already noted, the applications for service requested both sewer and water service. It is undisputed that both were paid for until 1975 when plaintiffs purchased the property.

On March 26, 1968, defendant sought permission from the Illinois Commerce Commission to require every customer taking water from defendant to take and pay for sewer service also. The Commission found that it had been the company’s policy to provide both water and sanitary sewer service to all customers where it was authorized to do so and both services were available, and had projected its expenses and established its staff on the basis it would provide both services. The Commission, however, held that the proposal was contrary to public policy.

In 1970 Oakview was finally paid $21,331.60 by defendant. The receipt prepared by defendant and signed by Oakview stated it was “payment in full for refunds due on main extension agreement providing for the extension of water and sewer mains to the property.” However as already noted in fact only defendant’s water main was extended to the property; no sewer main of defendant was extended to the property.

Early in 1975 plaintiffs acquired title to Gladstone Glen. The title policy issued in connection with the purchase does not indicate either the holding of an easement by defendant or its ownership of any of the sewer mains. (Apparently by this time no part of Wolf Road was part of the property, Wolf being now a dedicated expressway.) Defendant asked plaintiffs to sign an agreement for services for the sewers. Plaintiffs refused. When payment for sewage service was withheld, defendant terminated the water service. In order to obtain water service, the bills for sewerage service were then paid under protest. In October 1975, plaintiffs filed a complaint with the Illinois Commerce Commission challenging defendant’s right to assess sewage charges against plaintiffs’ property. At the hearing before the Commission, Walter S. Larson testified. He was defendant’s general manager and had been with the company for the previous 14 years. He testified that defendant only owned sewer mains in the easements or right-of-way and not on the on-site portion of the property; that they had easements and/or rights-of-way along Wolf Road. In answer to questioning by the hearing examiner he testified specifically that its sewer mains ran only and exclusively on Wolf Road. The Commission stated in its order that the parties agreed that any and all water and sewer facilities containéd within plaintiffs’ complex area were owned by plaintiffs and the contention was who owned the 12-inch main. The Commission found that defendant’s claim before it was based in part on an alleged oral main extension agreement with the only documentary evidence pertaining thereto being the receipt of January 1970. The Commission further found that defendant’s tariffs on file with the Commission on or before the date of the receipt did not contain any main extension agreement. The Commission also referred to the evidence of a lack of any maintenance or inspection of the main by defendant. The Commission held that the issues before it were dependent on a determination of ownership and the adjudication of rights under the “Grant of Perpetual Right and Easement” which was beyond the jurisdiction of the Commission. Plaintiffs thereupon filed this action in chancery seeking a declaration as to ownership and other equitable relief.

At trial Vincent Bolger, one of the beneficial owners of the property, testified as to the nature of the apartment complex and the events occurring in 1975, which have already been set forth. He testified that about three months after the complex was purchased, it was necessary for them to spend $943.34 to buy a sewer rodder to maintain the sewers. He had no knowledge whether Gladstone Glen had ever rodded the sewers. He also did not know if Gladstone Glen had ever requested defendant to rod the sewers.

Irving Lefkovitz was one of the partners of Oakview Builders. He testified that they acquired the property in 1964. At that time it was county farm land. They went to the county for building permits and to MSD for sewer permits. The Building Department of Cook County would not allow them building permits until they had a source of water for service to the property. Accordingly in January 1965 they applied to defendant for water service. While Lefkovitz testified that they knew at that time sewer service was going to be provided by a MSD tie-in, he acknowledged that the letter of January 25, 1965, requested both water and sewer service.

They received the permit from MSD in July and the actual connection was made three or four months later. Sewage was flowing through the mains by January 1, 1966. Occupancy of the first phase of the apartment complex probably began either late in 1965 or early in 1966.

When they approached defendant for water service, defendant’s water mains terminated at Willow and Lee over 2,000 feet away. They constructed a 2,100-foot main to connect defendant’s water main to the property. It cost between $20,000 and $25,000 for this extension and they had an agreement that they would be repaid that cost. They had no agreement with respect to extending defendant’s sanitary sewer lines or mains, and there was no extension of existing sanitary sewers belonging to defendant to the property.

Lefkovitz testified that they never needed sanitary sewer service from defendant. When they made applications beginning on January 1, 1966, for water and sewer service, the sewer was already connected and sewage was flowing through the mains. They had no need at that point for sanitary sewer service from defendant but they did need water service. The application forms were drawn up by defendant. Likewise Lefkovitz testified that on December 8, 1966, the date of the “Grant of Perpetual Right and Easement,” they had no need of sanitary sewer service from defendant; the MSD interceptor sewer was being utilized.

Plaintiffs’ last witness was James Muidowney, a professional engineer. He testified that the Exhibit A attached to the “Grant of Perpetual Right and Easement” appeared to be the same attached to the grant of easement to the Metropolitan Sanitary District. He also testified that defendant had not filed any inspection reports on the sewers in question although such are required by law.

Defendant’s only witness at trial was Charles Weiss, an assistant vice president and assistant secretary of defendant. Weiss did not become an employee until 1968 so he had no personal knowledge of any transactions in 1965 and 1966. Extensive testimony over plaintiffs’ objection as to what the parties did in those years being based not on his personal knowledge but on conclusions drawn from documents in evidence was not competent or probative.

Weiss also testified that he participated in the calculation of the 1970 refund in the amount of $21,331.60. The amount of the refund was computed by taking 2% times the first year’s revenues from the customer for water and sewer service. These revenues came from the 144 units originally built, not from the units built later. He testified that the forms for application for water and sewer service were company forms. He stated that the company has a separate form for water service only; however, he did not testify as to whether the company in 1966 had a separate form for requesting water service only.

Weiss also testified that defendant had recently entered into an agreement with MSD to perform physical and other tests of its system and perform any recommended rehabilitation work. The system in question would be part of the agreement.

On cross-examination, Weiss admitted that defendant was not a permittee to the connection with MSD. He stated that even though MSD had given Oakview permission to hook on, there was in 1965 still not an adequate source of sewer service to meet the needs of the property because MSD generally does not provide direct service, but he admitted that the correct practice is to name defendant as a co-permittee. When asked if there were any records showing entry on the premises for purposes of repairs, he said he had seen one record which indicated an examination of sewer facilities in 1976, after proceedings were filed before the Commission. He could name no other occurrence. He also admitted that to his knowledge defendant had not made any reports to MSD with respect to the maintenance of the sewer. He also admitted that no easements in favor of the company were recorded with the Cook County recorder of deeds.

I

The trial court’s finding for the defendant appears, from its opinion, to be based on three premises:

A. the sewer mains are personal property;
B. defendant’s predecessor would be estopped to challenge defendant’s title to sewer lines which it had heretofore by both overt action and passive acquiescence allowed Citizens to rely on for a lengthy period of time and plaintiffs as grantees of title take subject to whatever limitations bound their grantor;
C. while there is no document entitled “Bill of Sale” the sum of the evidence equates to such a definitive transfer.

We cannot agree on any of the premises.

The trial court in holding that the sewer mains are personal property relied on the Revenue Act of 1939 (111. Rev. Stat. 1979, ch. 120, par. 544), and Shelbyville Water Co. v. People ex rel. Craddick (1892), 140 111. 545, 30 N.E. 676. We do not believe either to be applicable. The Revenue Act merely provides that for the limited purpose of the assessment of personal property taxes, a utility’s mains are to be regarded as personal property. Clearly such statute does not otherwise affect their status. Likewise, the court in Shelbyville, persuaded by the current revenue statute, held that for purposes of taxation a utility’s mains and wires which were directly connected to the utility’s engines and boilers were personal property for the purpose of taxation since the engines and boilers which otherwise were part of the realty were, under the Revenue Act of 1939, personal property. (Johnson v. Roberts (1882), 102 111. 655.) The question here is not whether the mains can be assessed for personal property taxes; furthermore they are not directly connected with the defendant’s engines and boilers.

Fixtures are by definition real property because they are incorporated in or attached to the realty. (White Way Electric Sign & Maintenance Co. v. Chicago Title & Trust Co. (1938), 368 Ill. 482, 14 N.E.2d 839.) Chattels become real estate when annexed to the freehold under such circumstances that it appears clearly from an inspection of the property itself, taking into consideration the character of the annexation, the nature and adaptation of the articles annexed to the uses and purposes of the freehold at the time of the annexation, and the relation of the annexing person to the freehold in question, that a permanent annexation to the freehold was intended. (Galena Iron Works Co. v. McDonald (1911), 160 Ill. App. 211; 19 Ill. L. & Prac. Fixtures §2 (1956).) That water and sewer mains are normally considered real property is shown by the fact they are subject to the imposition of mechanics’ liens (Berry v. Blackard Construction Co. (1973), 13 Ill. App. 3d 768, 300 N.E.2d 627), although such may be imposed only on realty. Dual Temp Installations, Inc. v. Chicago Title 6- Trust Co. (1976), 41 Ill. App. 3d 415, 354 N.E.2d 131, appeal denied (1976), 64 Ill. 2d 595; Miller v. Reed (1973), 13 Ill. App. 3d 1074, 302 N.E.2d 131; Wanzerv. Smorgas-Brickan Developers, Inc. (1970), 130 Ill. App. 2d 378, 264 N.E.2d 435; Ill. Rev. Stat. 1979, ch. 82, par. 1.

All of the sewer mains here are clearly annexed to, indeed buried in, the plaintiffs’ property and were installed for the use of the freehold. Under such circumstances, there is a presumption that they are real property and the burden is on the person claiming they are personal property to show that they were not intended to be permanently annexed to the freehold but only to be personal property. Merchants Loan & Trust Co. v. Merchants Safe Deposit Co. (1912), 167 Ill. App. 315.

There is no evidence that the developer did not intend the mains to be a part of the property; to the contrary, the mains were constructed for the permanent use of the residents of the development. When annexations are made by the owner they are presumed to be made with the design of their permanent enjoyment with the realty. (Ayrshire Coal Co. v. Property Tax Appeal Board (1974), 19 Ill. App. 3d 41, 310 N.E.2d 667.) Furthermore, the evidence discloses that defendant recognized the mains to be real property since the memo of July 15, 1966, instructed that lien waivers were to be obtained and that the easement which “confirms that the facilities within the subdivision are ours” was to be recorded. The evidence in the record, however, indicates that despite the instructions it was not recorded and defendant at no time has contended that it was.

Whether the mains are real or personal property is relevant since in general title to real estate cannot be transferred by parol but can only be transferred by a writing (Skinner v. Francisco (1949), 404 Ill. 356, 88 N.E.2d 867; Wee gens v. Karels (1940), 374 Ill. 273, 29 N.E.2d 248), sufficiently describing the property. (Chicago & Alton R.R. Co. v. Longer (1919), 288 Ill. 16, 123 N.E. 61.) The service application and agreements obviously are insufficient since the sole words of description “all mains and other facilities used in rendering service” do not adequately and unambiguously describe the property. It is unclear what mains are referred to, those used to service the 144 units or others as well nor is it clear what are service lines belonging to applicant as opposed to mains. The “Grant of Perpetual Right of Easement” likewise suffers from ambiguity since it refers to all sewerage collection lines and effluent lines which may be used by the utility and does not define which ones are used by the utility. Furthermore it contains no legal description of the premises, and exhibit A referred to in the easement and attached to it merely shows the Wolf Road property line. Finally it was not recorded although a transfer of real property is ineffective against a purchaser without notice absent recording. (Ill. Rev. Stat. 1973, ch. 30, par. 29; Thorpe v: Helmer (1916), 275 Ill. 86,113 N.E. 954; Kovacevic v. City of Chicago (1977), 47 Ill. App. 3d 674, 365 N.E.2d 104; Kahn v. Deerpark Investment Co. (1969), 115 Ill. App. 2d 121, 253 N.E.2d 121.) No notice has been shown in this case.

II

But even if we were to hold that the mains were personal property, or that because the suit was in chancery, no proof of a written conveyance was required (see Ross v. Ross (1950), 406 111. 598, 94 N.E.2d 885 (dictum)), we still find that there is no evidence ownership in the mains is in the defendant. The trial court held that the plaintiffs’ predecessor in title was estopped to challenge defendant’s title and plaintiffs as purchasers had no greater rights. Before an estoppel can be found, there must be reliance resulting in prejudice to the party claiming estoppel. (Ladd Construction Co. v. Insurance Co. of North America (1979), 73 111. App. 3d 43, 391 N.E.2d 568; Gasbarra v. St. James Hospital (1980), 85 111. App. 3d 32, 406 N.E.2d 544, appeal denied (1980), 81 111. 2d 590; Old Mutual Casualty Co. v. Clark (1977), 53 111. App. 3d 274, 368 N.E.2d 702.) There is no evidence that defendant has suffered any injury here. It has not incurred any expense in relation to the lines or changed its position believing that it was owner thereof. To the contrary, while performing no service on the line it has benefitted by collecting revenues monthly for sewer service.

III

Defendant, relying on Weiss’ testimony, argues in its brief that defendant had Oakview Builders build the sewer mains as its contractor. As already noted, Weiss only joined defendant in 1968 and since he had no personal knowledge of what occurred in 1965 and 1966 could not properly testify as to what occurred in those years.

We are aware that Oakview Builders in 1966 did sign one lien waiver. Despite this lien waiver, the overwhelming evidence discloses that defendant was not the initial owner and indeed had little actual knowledge of the construction. Since defendant did not own the mains in question and did not even have an easement in question until 1966, to the extent it ever acquired an easement, it could not, in 1965, have hired a contractor to build mains on someone else’s property. Oakview, not defendant, paid for both work and supplies. Defendant did not pay for any part of the work at the time and in 1970 paid only a fraction of the total cost.

The defendant’s records disclose that, far from ordering Oakview as contractor to construct the mains, it did not know how much had been done or how much the work had actually cost. It recorded $60,945 as construction costs on its books of account and on its improvement order. The waiver of lien from Oakview dated December 8,1966, showed a total cost of $48,670.86. But the total cost of construction of all the mains defendant now claims it always owned was $125,000.

It is also clear that the defendant’s records were not made during the normal course of construction. Construction of the sewer main was completed before the end of 1965, but the defendant’s so-called improvement order is dated one year later despite Weiss’ testimony that the company issued the order when the contractor was retained. Under the circumstances neither the improvement order, made not during the regular course of construction but at some later time, nor the books of account also made after construction was completed have probative value in this case as to the intent and understanding of the parties. Indeed it is doubtful whether they even came within the scope of Supreme Court Rule 236 (73 Ill. 2d R. 236), which allows the consideration of business records as evidence, since they were not made at the time of the event or within a reasonable time thereafter.

Furthermore, the trial court by implication found that defendant was not the original owner of the mains since it held that “the sum of the evidence equates to such a definitive transfer.”

The trial court found such transfer based on documentation, conduct, and long-standing acquiescence. As this court has already held, Oakview’s conduct and long-standing acquiescence were insufficient to give rise to an estoppel since there was no prejudice to the defendant. We further hold that the documentation in evidence is insufficient to transfer either the on-site mains or the 23-foot sewer main to the defendant. The on-site sewer mains are not even referred to in the “Grant of Perpetual Right and Easement.” That document granted an easement only to the “parcels of real estate designated or to be designated, within, along or under the parcels of real estate shown by said Exhibit A,” as “streets,” “roads,” and similar terms plus the area designated as a utility or drainage easement, that is the easement along Wolf Road. The property allegedly transferred in paragraph 3 is only that in the real estate shown on and described by Exhibit A. The only description on Exhibit A is the length of the property along Wolf Road. The depth of the property is not described. Indeed any other construction of the document would mean that defendant owned mains it could not maintain since it has no easement on the property through which they run. The applications for service also do not support defendant’s contention that a transfer of the on-site mains was made. Those applications state “the applicant agrees to install and maintain at its own expense all service lines in the premises * # e and the company owns and shall maintain at the company’s expense all mains * * Obviously the applicant owns the service lines. Rut it is not clear from the service applications whether the on-site mains are “service lines on the premises” or “mains.” Absent clarification, this ambiguity would have to be construed against defendant as drafter of the document. (Ricke v. Ricke (1980), 83 Ill. App. 3d 1115, 405 N.E.2d 351; Crest Builders, Inc. v. Willow Falls Improvement Association (1979), 74 Ill. App. 3d 420, 393 N.E.2d 107; Quest v. Robertson (1979), 71 Ill. App. 3d 678, 388 N.E.2d 1335, appeal denied (1979), 79 Ill. 2d 617.) It is however clarified by Larson’s testimony before the Illinois Commerce Commission that the defendant’s sewer mains run only and exclusively on Wolf Road; they did not claim any on-site mains.

The documents were also insufficient to transfer the 23-foot sewer main, even if it should be considered personal rather than real property. The easement only transferred sewer collection lines and effluent lines which may be used by the utility in sewerage collection treatment and disposal service. Likewise the service applications only acknowledge that the company owned and should maintain mains used in rendering service. There was, however, no evidence that the company had rendered any sewerage service and thus had used the mains for that purpose. To the contrary it was admitted that the company had not performed any maintenance work on the mains. Defendant has not filed the inspection reports required by law. The mains are not hooked up to any lines of defendant; they are hooked into the MSD’s line. The permit to build and attach the main was issued to Oakview Builders, not to defendant, and was not transferable without written permission of the MSD. Lefkovitz testified that they never needed sanitary sewer service from defendant and it is apparent from the record that while defendant collected sewer charges for 10 years, it in fact rendered no service. Rendering no service, it did not use the mains and thus under the limitation in the alleged transfer agreements, the sewer mains do not belong to defendant.

We are aware that in 1970 the refund was based on revenues from both the water and sewer mains, and the receipt drawn up by defendant and signed by Oakview reflected that. But the undisputed testimony of Lefkovitz was that the agreement was that they would be repaid the cost of extending the water main and there was no agreement as to extending sewer lines. Defendant’s conduct in 1970, while it may be relevant, cannot alter the effect of an agreement made in 1966.

Before the Illinois Commerce Commission defendant contended that there was an oral conveyance of the main. However, the trial court, as already noted, made its finding of transfer based on documentation, conduct and long-standing acquiescence. It did not find any oral conveyance and there was no competent evidence of any oral conveyance.

Defendant contends on appeal that we are bound by the trial court’s findings and may not disturb them unless they are manifestly without support. But that rule is not applicable in this case where with minor exceptions the only competent and probative evidence is documentary. Where the evidence is documentary, the appellate court is not bound by the trial court’s findings of fact but can examine the evidence and reach an independent conclusion. (Wolverine Insurance Co. v. Jockish (1980), 83 Ill. App. 3d 411, 403 N.E.2d 1290; Carlson v. Carlson (1979), 74 Ill. App. 3d 673, 393 N.E.2d 643; Barraia v. Donoghue (1977), 49 Ill. App. 3d 280, 364 N.E.2d 952.) In any event the appellate court may always reverse where, as here, the judgment or findings of the trial court are unsupported by the evidence. Jack Frost Sales, Inc. v. Harris Trust & Savings Bank (1982), 104 Ill. App. 3d 933, 433 N.E.2d 951.

Since whether the sewer mains are considered real or personal property it is clear from the evidence that they were originally owned by Oakview and there is no evidence in the record to show they were transferred to defendant, the judgment of the trial court is reversed and judgment entered for plaintiffs.

Reversed; judgment entered for plaintiffs.

JOHNSON, P. J., and LINN, J., concur.


author: JUSTICE GOLDBERG

text:
    In re CUSTODY OF MARIA ATHERTON, a Minor.—(VIVIAN WITTIG et al., Petitioners-Appellants, v. PATRICIA ATHERTON et al., Respondents-Appellees.)
    First District (1st Division)
    No. 81-2711
    Opinion filed June 28, 1982.

      Charles Locker, of Chicago, for appellants.
    Alan P. Sobel, of Chicago, for appellees.
   JUSTICE GOLDBERG

delivered the opinion of the court:

Vivian and John Wittig (petitioners) filed a “petition for custody and other relief” against Patricia and Roger Atherton (respondents) seeking temporary custody, temporary visitation, and a declaratory judgment for permanent custody and adoption of Maria Atherton, a minor child. The trial court granted the respondents’ motion to dismiss. Petitioners appeal.

“On motion to dismiss we accept as true all well-pleaded facts.” (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 329, 371 N.E.2d 634.) On September 17, 1976, Vivian Wittig (then Vivian Matheny) gave birth to a daughter, Maria. Vivian and her husband were subsequently divorced. Vivian retained custody of Maria. On October 7, 1977, Vivian consented to adoption of Maria by respondents. (Ill. Rev. Stat. 1977, ch. 40, par. 1512.) Judgment for adoption was entered on December 15, 1978. Vivian subsequently married petitioner John Wittig.

In January 1981, respondents contacted petitioners and informed them Roger Atherton was ill. Respondents stated they could no longer care for Maria. Pursuant to mutual consent, Maria visited with petitioners and went to live with them as of February 6, 1981. Petitioners stated respondents agreed to permit petitioners to adopt Maria.

In “late June, 1981,” respondents informed petitioners they wished Maria returned to them. The parties subsequently entered into a “Memorandum of Agreement” on July 13,1981. This document, a copy of which was attached to the petition, provided Maria would return to the home of respondents for a period of time and would then go to the home of petitioners for “visitation.” The document provided the parties would resume “negotiating” the subject of Maria’s custody. Maria went to live with respondents.

On August 6, 1981, respondents informed petitioners by letter respondents expressly repudiated the terms of the agreement and withdrew any consent allowing contact between petitioners and Maria.

In their petition, petitioners requested the trial court to place Maria in their temporary custody according to the provisions of the memorandum between the parties. Count II of the petition sought temporary visitation rights. Count III requested a declaratory judgment the respondents must comply with the memorandum.

In this court, petitioners contend the trial court improperly dismissed their petition. Petitioners contend the trial court should have given effect to the memorandum agreement executed between the parties.

Adoption procedures are purely statutory in Illinois. The right of adoption “was unknown at common law ” ° e.” (Ekendahl v. Svolos (1944), 388 Ill. 412, 414, 58 N.E.2d 585.) It is undisputed petitioner Vivian Wittig formally placed her daughter Maria for adoption in October 1977. Also, she executed the requisite consent documents. (Ill. Rev. Stat. 1979, ch. 40, par. 1512.) Under the law of Illinois this consent to adoption is “irrevocable unless it shall have been obtained by fraud or duress * * Ill. Rev. Stat. 1979, ch. 40, par. 1513.

The record shows that on October 7, 1977, in adoption proceedings, the circuit court entered an order terminating the parental rights of the natural parents. On December 15, 1978, a formal judgment for adoption of Maria Atherton by the respondents was entered. Section 17 of the Adoption Act provides (Ill. Rev. Stat. 1979, ch. 40, par. 1521):

“After the entry either of an order terminating parental rights or the entry of an order of adoption, the natural parents of a child sought to be adopted shall be relieved of all parental responsibility for such child and shall be deprived of all legal rights as respects the child, 0 6

Therefore, we are impelled first to reject petitioners’ contention this case involves the child custody provisions of section 601 et seq. of the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 601 et seq.). Custody and adoption proceedings are distinguishable in that “adoption severs the rights and interests of natural parents; it permanently terminates the relation between parent and child.” In re Jones (1975), 34 Ill. App. 3d 603, 607, 340 N.E.2d 269.

Notwithstanding the formal adoption of Maria by respondents, petitioners contend the memorandum agreement between the parties should be enforced. Petitioners stress the general maxims of equity and the constitutional provision of a “remedy in the laws for all injuries and wrongs” (Ill. Const. 1970, art. I, §12) should permit the court to give effect to this document.

We find Willey v. Lawton (1956), 8 Ill. App. 2d 344, 132 N.E.2d 34, instructive here. There, the natural mother and father of two minor children were divorced. The mother, who was custodial parent of the children, and her second husband (the plaintiffs) entered into an oral agreement whereby the natural father would pay them $3,000 in cash and a note for $2,000. The natural mother and her husband agreed, in turn, to adopt the children in order to relieve the natural father of future child support payments. The father defaulted on the note and the plaintiffs brought suit. In finding the obligation of the father void, this court stated (8 Ill. App. 2d 344, 346-47):

“The sole justification for this disruption of the family relation and the termination of the natural association between parent and child, is the welfare of the child. It is not enough that the adopting parents are willing to assume the obligations to the child imposed by the adoption act and that the parents are willing that the child be adopted. The court must find that the welfare of the child will be promoted by the change in its status to an adopted child. The agreement between the natural parent and adopting parents whereby the latter for a consideration payable to them agree to adopt a child or children of the natural parent, is contrary to the public policy and therefore void. We have been referred to no case where the validity of a contract similar to the one before us was determined. In Hooks v. Bridgewater, Ill. Tex. 122, where the father delivered his child to a third person on a promise of the latter to leave his property to the child, the court said:
‘The law should not encourage the relinquishment by parents of their children and the renunciation of a sacred relation imposed by nature merely for the children’s enrichment by placing the seal of validity upon a contract in which a parent in effect barters' his child away for a property return. It is more concerned in fostering and maintaining that relation and guarding its valuable and wholesome influences than in promoting the child’s financial prosperity. Let it be once held that a parent’s contract of this kind is valid and may be enforced, and every parent will be free to transfer his children to any one willing to pay them well for the bargain. We are unwilling to subscribe to such a doctrine. It tends to the destruction of one of the finest relations of human life. . . .’
Plaintiffs object that this statement was obiter dicta. If so, it states a principle which is sound and should prevail. The same principle was stated in Parks v. Parks, 209 Ky. 127, 132, where the court said, ‘Infant children are neither parties nor privies nor the subject of barter.’
In principle the present contract is similar to contracts to get or permit a divorce. Authorities need not be cited to establish the fact that such contracts are against public policy and void.”

We find the principles expressed in Willey directly applicable to the facts before us. Here, the parties have attempted to alter the custody of the child by means of an agreement among themselves. Its ultimate effect was to bypass the custody decisions of the court, notwithstanding the previous termination of all parental rights of the natural parents. The purpose of formal statutory requirements in adoption cases “is to add stability and certainty to adoption proceeding.” (Regenold v. Baby Fold, Inc. (1977), 68 Ill. 2d 419, 432, 369 N.E.2d 858.) Thus, such determinations cannot be circumvented by an alleged agreement without judicial sanction.

The cases principally relied upon by plaintiffs are distinguishable. The sole issue before the court in Partington v. Department of Children & Family Services (1980), 91 Ill. App. 3d 205, 414 N.E.2d 540, was whether a natural parent who had consented to the adoption of a child could petition the court to adopt the child herself before the child had been adopted by others. Here, Maria Atherton had been formally adopted several years before the events which led up to this case. Plaintiffs also cite Monahan v. Monahan (1958), 14 Ill. 2d 449, 153 N.E.2d 1, and Weiss v. Beck (1953), 1 Ill. 2d 420, 115 N.E.2d 768. These cases, however, dealt with the question of equitable adoption where no formal adoption had been performed. They are far different from the facts before us. We also find no relation between the facts before us and those cases cited by plaintiff dealing with subject matter jurisdiction of child-support orders. Zalduendo v. Zalduendo (1977), 45 Ill. App. 3d 849, 360 N.E.2d 386, appeal denied (1977), 66 Ill. 2d 628; Parker v. Parker (1948), 335 Ill. App. 293, 81 N.E.2d 745, appeal denied (1949), 401 Ill. 631.

We wish to emphasize our decision here is based solely upon the inability of this court to give effect to the alleged agreement between the parties. The status of minors as wards of the court stands strongly upon ancient legal principles. (See In re Support of Bayuk (1979), 79 Ill. App. 3d 877, 881, 398 N.E.2d 1109, and the authorities there cited.) If this court were to give effect to the agreement here involved, the plenary jurisdiction of the court over the minor child would be destroyed. Our inability to enforce this agreement does not, however, forever preclude the natural mother from acting within the powers of the court in order to reestablish her rights as to Maria. We hold only that no party may usurp the powers of the court by private agreement. We therefore affirm the judgment without prejudice to such proper legal action as the parties may wish to institute.

Judgment affirmed.

CAMPBELL, P. J., and O’CONNOR, J., concur.


author: JUSTICE HARTMAN

text:
    GENERAL AMERICAN REALTY CO., INC., et al., Plaintiffs-Appellees, v. CAROLYN S. GREENE et al., Defendants-Appellants.
    First District (2nd Division)
    No. 81-1171
    Opinion filed June 29, 1982.
    Rehearing denied August 4, 1982.

      Steven N. Fritzshall, of Chicago (Fritzshall, Fritzshall & Bensinger, of counsel), for appellants.
    Arvey, Hodes, Costello & Burman, of Chicago (Roger G. Fein, Malcolm S. Kamin, Donald I. Resnick, and Judy I. Byrd, of counsel), for appellees.
   JUSTICE HARTMAN

delivered the opinion of the court:

Defendants, Carolyn S. Greene, C. Greene Equipment Co. and Melrose Park National Bank, as trustee, appeal from an order denying their motion for summary judgment and from an order granting the motion for summary judgment of plaintiffs General American Realty Co., Inc. (General American), and Citizens Bank and Trust Company, as trustee (Citizens), and awarding injunctive relief pursuant to counts I, II and III of the fourth amended complaint. The issues raised on appeal include questions of jurisdiction; plaintiffs’ damages; the presence or absence of material facts with respect to the granting of summary judgment; and whether certain contractual restrictions terminated with the delivery of the deed. For the following reasons we reverse that part of the trial court’s order pertaining to defendants’ alleged encroachment upon an underground water service line easement utilized for a master sprinkler system protecting plaintiffs’ and other nearby business properties (sprinkler waterline easement), and affirm the balance of the order.

In 1962 defendants, who bought, refurbished and resold machinery and equipment, .leased from Citizens the subject property, which was then improved with a building denominated “Building A,” and a yard. On November 1,1965, Citizens agreed to sell the subject property to Carolyn S. Greene, under an installment contract called “Articles of Agreement for Trustees’ Deed” (Articles), composed of lots 4, 5, 6, 7 and 16 in Richardson Industrial Park, Melrose Park, Illinois (Greene Property). The agreement expressly provided that the conveyance shall be subject to, among other things, building lines, utility zoning regulations, easements of record and building restrictions, as well as a public easement over the westerly 12' of the premises for ingress and egress to water, sewer, electric and telephone lines beneath or above the surface. The purchaser was required to pay her pro rata cost of making and maintaining roadway improvements and agreed to refrain from using the unenclosed vacant portion of the property for storage of personal property so that no such storage property could be viewed from surrounding premises. A 5' utility easement runs north and south through the approximate center of the Greene Property.

In 1967, defendants erected an addition to their property, shown as “Building C” on the plat of survey, with the approval of General American’s president. The structure lies directly above a portion of the underground sprinkler waterline easement running north and south through the Greene Property, just east of the 5' utility easement. On June 5,1969, defendant executed an agreement granting Citizens, its successors and assigns, an easement and right to go upon the premises for purposes of repairing and maintaining the underground sprinkler waterline and above surface sprinkler equipment, among other things.

After various disputes between them, on March 10, 1975, the parties executed a document labeled “Supplemental Articles of Agreement” (Supplemental Articles) wherein defendants acknowledged the existence of the subject easements and agreed to certain other conditions, which will be described and discussed later. Both the Articles and the Supplemental Articles were recorded in the office of the recorder of deeds of Cook County. Subsequently, the Greene Property was conveyed to defendant Melrose Bank as trustee by Citizens through a series of warranty deeds and nominee deeds in trust recorded in the office of the recorder of deeds of Cook County on May 4,1976.

In June 1977, defendants began erecting a 32' x 48' building on lot 4 of the Greene Property, “Building B”, directly over part of the 5' utility easement. Soon after construction of this building began, plaintiffs notified defendants that the building was being constructed over the 5' utility easement and demanded that the obstruction be removed. The construction continued and plaintiffs filed their first complaint in August 1977. At a deposition hearing, John Greene, office manager of C. Greene Equipment Co., testified that he picked the location of the building knowing that a utility easement ran through the property at that point. At no time prior to the commencement of construction did he request permission to build or for a release of the utility easement from plaintiffs. He informed the builder, Eck & Sons, that there was a utility easement that went through the proposed site, but that he was going to get releases for it. In September and October of 1977, defendants obtained releases of all right, title and interest in the 5' utility easement from various public utility companies, but not from Citizens.

I

Defendants contend that because the Illinois Commerce Commission (Commission) was given general supervision of all public utilities for which the easement was reserved, the trial court lacked jurisdiction to award injunctive relief with regard thereto without initial Commission action, relying upon the companion doctrines of exhaustion of remedies and primary jurisdiction. Both doctrines are concerned with developing proper relationships between the courts and administrative agencies charged with particular regulatory duties. (United States v. Western Pacific R.R. Co. (1956), 352 U.S. 59, 1 L. Ed. 2d 126, 77 S. Ct. 161.) Under the exhaustion doctrine, a party aggrieved by administrative action ordinarily cannot seek review in the courts without first pursuing all administrative remedies available to him. (Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill. 2d 350, 357-58, 326 N.E.2d 737.) Although the reasons for this rule have been variously stated, it is intended to allow administrative agencies to correct their own errors, clarify their policies, and reconcile conflicts before resort to judicial relief may be pursued. (Kenilworth Insurance Co. v. Mauck (1977), 50 Ill. App. 3d 823, 365 N.E.2d 1051.) Exhaustion, however, is not required if the administrative remedy is inadequate (Steward v. Allstate Insurance Co. (1980), 92 Ill. App. 3d 637, 641, 415 N.E.2d 1206), or where the agency lacks jurisdiction. (Miller v. Department of Public Aid (1979), 69 Ill. App. 3d 477, 480, 387 N.E.2d 810.) The doctrine of primary jurisdiction applies where a claim is originally cognizable in courts, but where enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body. United States v. Western Pacific R.R. Co. (1956), 352 U.S. 59, 63-64, 1 L. Ed. 2d 126, 132, 77 S. Ct. 161,165; Chicago ir Eastern Illinois R.R. Co. v. Martin Bros. Container & Timber Products Corp. (1980), 87 Ill. App. 3d 327, 334, 408 N.E.2d 1031.

Defendants contend that the instant controversy was subject to the jurisdiction and review of the Commission, citing sections, e.g., 8a, 10 — 15, 27(c), 32 and 68 of the.Public Utilities Act (Ill. Rev. Stat. 1979, ch. 111 2/3, pars. 8a, 10.15, 27(c), 32 and 72), emphasizing in particular that the easement releases executed by the public utility companies were subject to administrative review. Defendants’ reliance on these releases is misplaced; their existence does not affect plaintiffs’ rights as owners of the dominant estate or their authority to enforce those rights in courts. The easement could only be released by owhers of the dominant estate for whose benefit the easement was created. See Beloit Foundry Co. v. Ryan (1963), 28 Ill. 2d 379, 390, 192 N.E.2d 384.

None of the statutory provisions or cases cited by defendants (e.g., Cable Television Co. v. Illinois Commerce Com. (1980), 82 Ill. App. 3d 814, 403 N.E.2d 287; Friederich v. Illinois-American Water Co. (1981), 94 Ill. App. 3d 172, 418 N.E.2d 836) suggest that the Commission has jurisdiction over a dispute between private parties concerning the terms of an easement created pursuant to contract, and purported violations thereof. Since the Commission lacks subject matter jurisdiction over the controversy, the companion doctrines of exhaustion and primary jurisdiction are without application. (Miller v. Department of Public Aid (1979), 69 Ill. App. 3d 477, 480; see People ex rel. Fahner v. American Telephone & Telegraph Co. (1981), 86 Ill. 2d 479, 485-86,427 N.E.2d 1226.) Further, this is not a dispute raising issues outside the conventional experience of judges or requiring the exercise of specialized administrative discretion (Steward v. Allstate Insurance Co. (1980), 92 Ill. App. 3d 637, 642), nor is there an adequate administrative remedy available to plaintiffs. Defendants’ suggestion that the Commission may be able to order the utilities to retract the releases or to establish a new utility easement or plan to insure future utility service misses the mark. A retraction of the easement waivers by the utilities could not affect plaintiffs’ interest in the easement. The trial court properly exercised jurisdiction over the controversy.

II

The trial court found that defendants obstructed and encroached upon the 5' utility easement by placing and storing inventory, equipment and other material on the easement and by constructing “Building B” on and over the easement. Defendants and their successors and assigns were ordered to: permanently remove all material which in any way encroached upon or obstructed access to use, repair or maintenance of this easement; refrain from obstructing the utility easement; and, to permanently remove all portions of “Building B” constructed over the easement. The finding is amply supported by the record. In paragraph 3 of the Supplemental Articles, defendants agreed that the utility easement should not be used for the storage of any inventory, the operation of the business, or in any way cause any use which would obstruct easy and immediate access to the easement. Defendants chose the construction site for “Building B” knowing that a utility easement existed underneath it. Earl and John Greene conceded in effect that inventory and machinery also have been stored upon this easement from time to time.

Defendants maintain that plaintiffs were not entitled to injunctive relief for the encroachment on the utility easement because they failed to demonstrate factually that their use and enjoyment has been or soon will be impaired. Defendants observe that there is almost no evidence in the record as to the extent of defendants’ injury due to any obstruction of their future need of the easement. The absence of facts on this issue is immaterial. An award of injunctive relief under the circumstances presented does not require proof of substantial injury from the encroachment. (Hartman v. Wells (1912), 257 Ill. 167, 100 N.E. 500; Cordogan v. Union National Bank (1978), 64 Ill. App. 3d 248, 253, 380 N.E.2d 1194.) A court of equity may properly compel removal of an encroaching building in accordance with the express terms of the easement regardless of the relative hardship involved where, as here, such encroachment was deliberate. (Ariola v. Nigro (1959), 16 Ill. 2d 46, 51-52, 156 N.E.2d 536; Keesen v. Zarattini (1969), 119 Ill. App. 2d 284, 256 N.E.2d 377.) Since defendants constructed “Building B” knowing that it was directly above the easement, without seeking prior approval of the holder of the dominant estate, injunctive relief was properly granted. 16 Ill. 2d 46, 51-52.

Ill

The trial court found that defendants obstructed and encroached upon the sprinkler waterline easement described in the Supplemental Articles by placing and storing inventory, machinery and other material on the easement and by constructing “Building B” upon it. Defendants were ordered to: immediately and permanently remove all inventory, machinery and material which in any way encroaches upon or obstructs access to the sprinkler waterline easement; refrain from obstructing the easement; and, permanently remove all portions of the building which in any way encroach upon the said easement. Defendants maintain that the trial court should not have granted plaintiffs’ motion for summary judgment as to this issue, since a material question of fact exists as to whether defendants actually encroached on the sprinkler waterline easement.

In the Supplemental Articles, Greene expressly agreed “that the said hydrant locations, stand-pipe locations and the underground water service lines for the master sprinkling system shall be readily, easily, and unobstructed for easy access for use, service, and maintenance.” At his deposition, Earl Greene stated that in recent years there has been approximately a 10' path above the sprinkler waterline easement where no inventory is stored. John Greene at one point in his deposition stated that there was a 5' path above the sprinkler waterline easement where no equipment was stored. Later, John stated that they temporarily and occasionally stored inventory and equipment over that easement, but that in recent years the hydrant locations, stand-pipe locations and the underground service line for the master sprinkling system were readily, easily and unobstructedly available for easy access for use, service and maintenance.

That deposition testimony left unsatisfactorily resolved the material question of whether defendants stored equipment and inventory in such a manner as to obstruct easy access for use, service and maintenance of the sprinkler system and whether the location of “Building B” itself so obstructed the easement. According to John Greene, only a 5' wide path need be maintained over the sprinkler line easement, or 2)i' on either side of the easement. His testimony by itself is not dispositive on the issue of how close the building could be to the waterline without obstructing ready and easy access to it. Assuming that the building had to be located at least 2W from the easement, it is unclear from the plat of survey and the deposition testimony whether the building location was compatible with this range. A genuine issue of material fact thus exists as to whether the building does encroach upon the sprinkler line easement and summary judgment should not have been entered as to this question. Nolan v. Johns-Manville Asbestos & Magnesia Materials Co. (1979), 74 Ill. App. 3d 778, 392 N.E.2d 1352, affd (1981), 85 Ill. 2d 161.

IV

The trial court found that defendants violated the Supplemental Articles by, among other things: using the public roadways and right-of-way easements for the operation and performance of their business activity; conducting their business so that it encroaches beyond defendants’ property; piling inventory above and outside the 8' fence defendants agreed to construct around their property; allowing the fence to become battered; and otherwise conducting their business in a manner which creates an unsightly and dangerous condition that is readily visible from adjoining properties. Defendants were ordered to permanently maintain in good and sightly condition an 8' fence around the perimeter of the Greene property. They were permanently enjoined, inter alia, from operating their business in a manner which obstructs and prevents access to any right-of-way easements and public roadways, and operating their business in an unsightly and dangerous manner, including the storing of any inventory outside of and above the height of the 8' fence.

Defendants maintain that the trial court erred in granting the foregoing injunctive relief because a material question of fact remained regarding the extent and character of the defendants’ alleged encroachments. Both John and Earl Greene stated that parts of the 8' fence were in bad condition and that occasionally some pieces of inventory were piled above it. The photographs introduced into evidence clearly show the battered and unsightly condition of portions of the fence and the accumulation of inventory above its 8' height on various days. Such a violation was not de minimus as defendants contend. Hartman v. Wells (1912), 257 Ill. 167, 173.

In paragraph 4 of the Supplemental Articles, defendants agreed to “conduct, maintain, and perform the operation of its business within the confines of the property lines * ° * and refrain for any period of time from any operation beyond its property lines which constitute an encroachment.” They also agreed, in paragraph 6, not to “employ public road ways, utility easements or right-of-way easements for the operation and performance of its business activity.” Both Greenes conceded that the access road to the west of the Greene Property from time to time is used to load and unload machinery from trucks with the help of a crane. Pictures were introduced showing defendants’ crane on this roadway in the operation and performance of their business. The finding that they thereby violated the Supplemental Articles was thus supported by the evidence. The award of injunctive relief here cannot be held erroneous.

V

Defendants contend that the restrictions contained in the Supplemental Articles terminated upon the delivery of the deed to defendants. Defendants note that the consideration described in the Supplemental Articles refers to the forebear anee to declare a forfeiture against defendants. The restrictions on use and occupancy, defendants observe, were excerpted from “boilerplate” mortgage language selected at random, and are similar to the restrictions in the Supplemental Articles. Defendants argue that the intent of both documents is to provide security to the lender that the premises will be kept in proper condition until the purchase price has been tendered.

In construing a deed, the intent of the parties as revealed by the provisions of the instrument must be ascertained. (Deverick v. Bline (1949), 404 Ill. 302, 306, 89 N.E.2d 43.) That restrictions at issue here were intended to survive the delivery of the deed is demonstrated by the specific exceptions enumerated in the deed itself, which made it subject to: “1. Building restrictions of record and building lines; conditions and covenants of record as to use and occupance [sic], zoning laws and ordinances. * * * 3. Public and private roads and highways. * * * [and] 4. Easements for public ingress and egress and easements for public utilities.” Additionally, the conveyance of the Greene Property was expressly made subject to “other conditions, restrictions, grants, and easements of record,” among which are the restrictions set forth in the Supplemental Articles which were recorded prior to recordation of the deeds. We find no error in the trial court’s order in this respect.

For the reasons aforesaid, we affirm the order as to jurisdiction, summary judgment for plaintiffs as to the 5' utility easement violation, operation and performance of business activities, fencing and storage restrictions and the issue of merger of said restrictions in the deeds conveying the property to defendants. We also affirm the denial of defendants’ motion for summary judgment, which was addressed to the issue of jurisdiction, decided adversely to defendants under Point I of this opinion. We reverse summary judgment for plaintiff as to the issue of obstruction and encroachment by defendants upon the sprinkler waterline easement and remand this issue for trial.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with the views herein expressed.

DOWNING and PERLIN, JJ., concur.


author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THEODORE TAYLOR, Defendant-Appellant.
    First District (3rd Division)
    No. 80-380
    Opinion filed June 30, 1982.

      Ralph Ruebner and Eva Field, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Mary Ellen Dienes, and Gregory J. Ellis, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

In a jury trial, defendant, Theodore Taylor, was found guilty of murder and attempt murder and was sentenced to a term of 14 to 20 years for murder and a term of two to six years for attempt murder, the sentences to run concurrently. He contends that (1) he was denied due process because a gun and cartridges recovered at the scene were destroyed prior to trial; (2) he was denied due process because other evidence was not produced prior to trial or included in the State’s answer to discovery; and (3) his election of a jury trial was not knowingly made. We affirm.

At approximately 9 p.m. on April 5, 1977, defendant went to the home of Dorothy Taylor, his ex-wife, at 12232 S. Stewart in Chicago, Illinois. At the house, defendant saw Dorothy’s boyfriend, George Bullocks. Defendant returned Dorothy’s car keys and left after a short time.

At approximately 12 a.m., defendant returned to Dorothy’s house with a gun, entering through a basement window. He proceeded to Dorothy’s bedroom to talk to her about her relationship with Bullocks. According to Dorothy, defendant said that he had come to kill her. As Dorothy walked towards defendant, he shot her and then shot in the direction of Bullocks. Dorothy kept walking towards defendant and tried to pull the gun away from him. Dorothy and Bullocks then struggled with defendant for control of the gun. During the struggle, Dorothy called her son, Theodore, and told him to help hold the gun down while she went to another bedroom to call the police. Dorothy did not see any other gun that evening.

Defendant testified that when he entered Dorothy’s bedroom, Bullocks came after him with raised fists, so defendant pulled out his gun. Defendant and Bullocks began to struggle, and the gun fired. Defendant regained control of the gun and shot Bullocks. Dorothy approached defendant with her hands in a claw-like position, and when she was a few feet from defendant, he shot her. Defendant did not see any other weapons that evening.

The police arrived, and defendant told them that he shot Dorothy and Bullocks. Later, it was discovered that defendant was shot in the leg. Defendant told one of the police officers that he shot himself.

Defendant first argues that his right to due process was violated because of the State’s failure to preserve and produce certain evidence. Initially, defendant complains about the destruction of the gun and four cartridges recovered at the scene of the offense. On the first day of trial, it was learned that the gun and cartridges had been erroneously destroyed pursuant to routine internal procedures of the Chicago Police Department. At that time, defendant moved that the State be precluded from making any reference to these items at trial, and the trial court denied the motion. Defendant argues that the destruction of these items curtailed his ability to present a defense showing that another weapon might have been used. Defendant testified that he fired four shots, and he contends that Dorothy’s testimony created an inference that another weapon may have been used because she had seven bullet wounds, and Bullocks and defendant had also been wounded. Dorothy, however, testified that she was struck by two bullets, and there is no evidence that she was actually shot seven times or that each wound was caused by a separate bullet.

In addition, although we do not approve of or condone the destruction of the gun and cartridges, we do not believe that defendant’s right to due process was violated. Defendant has not shown how the gun or cartridges were material or favorable to his defense. (See People v. Borges (1980), 88 Ill. App. 3d 912, 918, 410 N.E.2d 1076, 1081; People v. Hovanec (1979), 76 Ill. App. 3d 401, 416-17, 394 N.E.2d 1340, 1351-52.) The theory which defendant states he intended to prove, i.e., that a second gun was involved, was clearly contradicted by defendant’s own testimony. (Cf. People v. Ellis (1981), 93 Ill. App. 3d 79, 83, 416 N.E.2d 1174, 1177.) At trial, defendant testified that he did not see any other weapon that evening. He stated that Bullocks came after him with clenched fists and that Dorothy approached him with her hands in a claw-like position. Furthermore, no other evidence at trial supports a theory that the destroyed gun was not defendant’s gun. Also, Dorothy’s testimony is in complete agreement with defendant’s testimony that no other gun was involved. Therefore, based on the overall evidence in the case, it is clear that the production of the gun would not have been material or favorable to defendant’s case. Moreover, defendant’s actions support this conclusion. Defendant made no pretrial request to examine the gun or subject it to testing, and he showed no interest in the gun until he discovered that it had been destroyed. Under the circumstances, we conclude that the destruction of the gun and cartridges did not result in a violation of defendant’s right to due process.

Defendant next contends that he was prejudiced due to the failure of the State to disclose the existence of a ballistics test. On the third day of trial, it was discovered that a bullet had been removed from Bullocks’ body and had been examined by a firearms expert of the Chicago Police Department. Defendant claims prejudice in that he never had an opportunity to examine the ballistics report. Defendant also maintains that error occurred because of the State’s failure to list a witness who was called to testify. In its answer to discovery, the State listed as prospective witnesses “Hospital Staff including [two named doctors]” but did not include Dr. Khan, who was called to testify. During the trial, the State asked for leave to amend its list of witnesses to add Dr. Khan’s name, and the court allowed the motion.

When there is a failure to comply with discovery requests, it is within the discretion of the trial court to determine the proper remedy. (People v. Wilson (1978), 61 Ill. App. 3d 401, 403, 377 N.E.2d 1284, 1286.) The court may, in its discretion, order a continuance, mandate disclosure and permit the use of the evidence at trial. (People v. Curtis (1977), 48 Ill. App. 3d 375, 383, 362 N.E.2d 1319, 1325.) Absent a showing of surprise or prejudice, the trial court’s decision will not be reversed. (People v. Kirkwood (1980), 82 Ill. App. 3d 252, 260, 402 N.E.2d 677, 685; People v. Bingham (1979), 75 Ill. App. 3d 418, 423, 394 N.E.2d 430, 434; People v. Wilson (1978), 61 Ill. App. 3d 401, 403, 377 N.E.2d 1284,1286.) Surprise or prejudice is not established if defendant has failed to take advantage of an opportunity to interview a witness and has not attempted to obtain a continuance. People v. Dees (1977), 46 Ill. App. 3d 1010, 1019, 361 N.E.2d 1126, 1132; see People v. Steel (1972), 52 Ill. 2d442, 450, 288 N.E.2d 355, 360.

As to the ballistics test, we find no surprise or prejudice to defendant. Defense counsel was given a copy of the firearms examiner’s report, and the firearms examiner was subsequently examined in chambers by the court and both counsel. The State did not use the report at trial. Furthermore, there was no showing that the report was favorable to defendant. The firearms examiner stated that after comparing the bullet removed from Bullocks and a test bullet fired from defendant’s gun, the bullet removed from Bullocks did not reproduce sufficient individual characteristics to enable him to make an identification. As the trial court stated, the report was noncommittal or neutral, and thus, it could not have affected the verdict. Consequently, defendant’s argument is without merit. See People v. Hofstetter (1980), 89 Ill. App. 3d 758, 762, 412 N.E.2d 33, 36; People v. Penland (1978), 64 Ill. App. 3d 656, 661, 381 N.E.2d 840, 843.

We also conclude that defendant has failed to make a showing of surprise or prejudice as to Dr. Khan. The trial judge told defendant that he would have an opportunity to interview Dr. Khan before he testified. The judge also said that defendant would be given additional time to investigate if he felt it was necessary. The record does not indicate that defendant took advantage of these opportunities. Under the circumstances, there is no showing that the trial court abused its discretion in allowing Dr. Khan to testify.

Lastly, defendant argues that his election to be tried by a jury was not knowingly made because at the time of his election, he was not aware that the gun and cartridges had been destroyed, that the ballistics report existed, and that Dr. Khan was going to testify. Initially, we note that defendant did not raise this issue at trial or in his post-trial motion, and therefore, he has failed to preserve the issue for review. (See People v. Blackwell (1979), 76 Ill. App. 3d 371, 381, 394 N.E.2d 1329, 1337.) In fact, defendant learned about the destruction of the gun and cartridges prior to trial, but he did not attempt to change his election to a bench trial.

As discussed above, defendant was not prejudiced by the absence or late disclosure of the evidence about which he complains. This case is distinguishable from People v. Norris (1978), 62 Ill. App. 3d 228, 379 N.E.2d 80, a case cited by defendant. In Norris, defendant had waived a jury trial based on the alleged belief that there were no eyewitnesses to the crime and that all the evidence against him was circumstantial. The State moved to amend its list of witnesses after defendant waived a jury trial and opening statements were made; the motion was granted. One of the added witnesses testified that he saw defendant pull a gun, and another added witness testified that he saw defendant shoot the deceased. Defendant moved for a mistrial after the testimony of the witness who saw defendant pull a gun, but the motion was denied. The appellate court held that the trial court should have declared a mistrial because defendant was unaware of the most damaging evidence against him at the time he waived his right to a jury trial. The court stated that the additional evidence surprised and prejudiced defendant. Here, defendant did not move for a mistrial based on his unknowing election of a jury trial when he became aware of the destruction of the ¡gun and cartridges, the existence of the ballistics report or the fact that Dr. Kahn would testify. Also, the undisclosed and destroyed evidence did not surprise or prejudice defendant here. Therefore, defendant’s contention is without merit. Accordingly, the judgment of the trial court is affirmed.

Affirmed.

WHITE, P. J., and McNAMARA, J., concur.