author: JUSTICE HEIPLE

text:
    NORTHERN ILLINOIS GAS COMPANY, Plaintiff-Appellant, v. ENERGY COOPERATIVE, INC., Defendant-Appellee.
    Third District
    No. 3—83—0331
    Opinion filed March 27, 1984.

      Mayer, Brown & Platt, of Chicago, and Black & Black, of Morris, for appellant.
    Samuel A. Haubold and Stephen R. Patton, both of Kirkland & Ellis, of Chicago, and Eugene W. Hayes, of Dunn & Hayes, of Morris, for appellee.
    Neil F. Hartigan, Attorney General, of Springfield (Hercules F. Bolos, Special Assistant Attorney General, of counsel), for amicus curiae Illinois Commerce Commission.
   JUSTICE HEIPLE

delivered the opinion of the court:

An action was brought in the circuit court of Grundy County by Northern Illinois Gas Company (hereinafter NI-Gas), seeking a declaratory judgment that it had properly ceased performance under a long-term supply contract with Energy Cooperative, Inc. (hereinafter ECI). ECI counterclaimed for breach of contract and the jury returned a verdict for $305.5 million on ECI’s counterclaim. The facts are as follows.

NI-Gas is a public utility which distributes natural gas to customers throughout the northern third of Illinois (excluding Chicago). As a public utility, NI-Gas is subject to regulation by the Illinois Commerce Commission (hereinafter ICC) under the Public Utilities Act (Ill. Rev. Stat. 1981, ch. 111½, pars. 1 through 95).

In order to deal with a natural gas shortage in the early to mid-1970’s NI-Gas received permission from the ICC to construct a supplemental natural gas (SNG) plant. The plant began operation in 1974 using various types of feedstock which were converted into natural gas. One type of feedstock was naphtha, which was supplied by Atlantic Richfield Company (ARCO), pursuant to a contract entered into with NI-Gas in 1973. The ARCO contract was assigned to ECI in 1976.

The contract was to remain in force for 10 years or until 56 million barrels of naphtha had been delivered to NI-Gas. By late 1979 and early 1980 it became apparent to NI-Gas that the demand for natural gas was decreasing while the price of naphtha was steadily increasing. These changes were caused essentially by Federal decontrol of natural gas supplies in 1978 and increases in the price of crude oil which determined the price ECI charged for naphtha.

Between 1974 and 1978 NI — Gas had been holding large amounts of gas in storage facilities. In 1980, the ICC denied NI-Gas’ request for a rate increase partly because NI-Gas was holding, in ICC’s opinion, an unreasonably large amount of gas in storage. Since NI-Gas was not permitted to raise its rates, it decided to reduce the inventory by cutting back on SNG production, which was its most expensive source of gas.

NI-Gas successfully negotiated reductions in SNG feedstock shipments with two of its suppliers. At the time of the ICC rate order, ECI had been voluntarily delivering reduced quantities of naphtha. Rather than seek further reductions, NI-Gas attempted to negotiate an end to the contract with ECI. When negotiations failed, NI-Gas terminated its performance as of March 31, 1980.

On March 17, 1980, NI-Gas filed suit seeking a declaratory judgment that it had no further obligations under the contract and that ECI’s damages, if any, were limited to the amount specified by the liquidated damages clause of the contract. ECI counterclaimed for $230 million in damages (the alleged difference between the contract and market prices of naphtha on February 29, 1980, when ECI asserted it learned of NI-Gas’ termination of the contract), and unspecified additional damages.

NI-Gas’ reply to the counterclaim alleged as affirmative defenses that its nonperformance was justified by (1) circumstances beyond its control within the meaning of the force majeure provisions of the contract; (2) NI-Gas’ obligation to comply with the Illinois Public Utilities Act; (3) the commercial impracticability of continued performance; and (4) circumstances beyond NI-Gas’ control that had frustrated the purpose for which it had entered into the contract. NI-Gas further alleged that any relief to which ECI may be entitled is limited by the liquidated damages clause of the contract; that ECI is precluded from obtaining the relief requested because it failed to mitigate its damages; and that, with respect to any naphtha (or any product made from naphtha) disposed of by ECI to a third party, ECI’s damages, if any, are measured by the difference between the contract and resale prices, less expenses saved by ECI as a result of NI-Gas’ termination.

Subsequently, NI-Gas filed its second amended complaint, alleging the January 3, 1980, order of the ICC as a specific event of force majeure that excused its performance. The second amended complaint also added the allegations that ECI had deliberately overcharged NI-Gas for naphtha during the first three months of 1980, that ECI had not complied with its obligation of good faith in the performance of the contract and therefore had breached the contract, and, in addition, that NI-Gas had been damaged in an amount in excess of $3,000,000.

On June 10, 1982, the circuit court (1) denied NI-Gas’ motion for summary judgment on the force majeure and liquidated damages defenses; (2) granted ECI’s motion to strike NI-Gas’ liquidated damages defense; and (3) granted summary judgment for ECI on NI-Gas’ force majeure, frustration of purpose, and public utility defenses. Later, the trial court granted summary judgment for ECI on NI-Gas’ allegations of fraud and breach of contract by ECI because of its alleged overcharges to NI-Gas during the first quarter of 1982. The trial court directed a verdict for ECI on NI-Gas’ defense of commercial impracticability after the close of the evidence.

Prior to trial, the court entered judgment for NI-Gas for the amount of ECI’s overcharge and precluded NI-Gas from referring to this judgment during trial. The court also granted ECI’s motion in limine to exclude evidence concerning liquidated damages, force majeure-and NI-Gas’ status and duties as a regulated public utility.

Although NI-Gas raises six main issues on appeal, we need only discuss five. They will be presented under the following three headings: (1) Liquidated Damages; (2) The Affirmative Defenses and; (3) The Court’s Evidentiary Rulings.

LIQUIDATED DAMAGES

NI-Gas argues that the trial court erred in denying its motion for summary judgment on the liquidated damages clause and in striking the liquidated damages defense. The court held that the liquidated damages clause of the contract (section 13) gave the nonbreaching party the choice of recovering either actual or liquidated damages. ECI chose to pursue actual damages resulting in a jury award of $305.5 million.

NI-Gas contends that the liquidated damages clause is clear and unambiguous and provides the exclusive measure of damages in the event of default:

“XIII. Liquidated Damages:
If, prior to the delivery to PURCHASER of the total number of Barrels of Feedstock specified in Section III hereof, this Agreement is terminated by reason of either party's default, prior to the expiration of the term set forth in Section II above, then, upon demand of the party not in default, the defaulting party shall pay to the other as liquidated damages, a sum in cash determined by multiplying one cent ($0.01) by the difference between the total gallons specified in Section III, and the gallons actually delivered to PURCHASER pursuant to this Agreement.
It is further agreed that nothing herein contained shall prejudice the rights of either party to terminate this Agreement as hereinafter provided for and in the event the foregoing provision for liquidated damages is determined to be unenforceable for any reason, the party not in default shall not be precluded from exercising any other rights or remedies to which the party may be entitled under the terms of this Agreement or otherwise at law or equity.”

According to NI-Gas’ calculations, this section would limit ECI’s recovery to a maximum of $13,576,002.30.

ECI responds that section 13 contains two conditions which must be satisfied before the liquidated damages clause may be invoked. ECI also argues that section 13 is presumed to be nonexclusive under section 2 — 719 of the Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, par. 2 — 719).

ECI interprets section 13 as being contingent upon a demand for liquidated damages and termination pursuant to section 14 of the contract:

“XIV. Default and Termination
In the event either party is in default of any of its obligations hereunder, in addition to any other rights or remedies available at law or equity, the party not in default may cancel this Agreement by giving not less than thirty (30) Days prior written notice to the party in default; provided that such notice of default shall not be effective if the party claimed to be in default shall cure such default within thirty (30) Days after having received such notice. Any such termination shall be an additional remedy and shall not prejudice the rights of the party not in default to recover any amounts due it hereunder for any damage or loss suffered by it by virtue of such default, and shall not constitute a waiver of any other remedy to which the party not in default may be entitled for breach of this Agreement. Waiver of any defaults shall not be deemed a continuing waiver or a waiver of any subsequent default whether of the same or a different provision of this Agreement.”

ECI argues that liquidated damages are not available because ECI (the nonbreaching party) did not terminate under section 14 and did not demand liquidated damages. We find that sections 13 and 14 do not have to be read together, nor may the nonbreaching party avoid the liquidated measure of damages simply by failing to make a demand.

Section 13 clearly provides that liquidated damages are available when the contract is terminated by default. It does not say that the contract must be terminated pursuant to section 14, which simply provides the nonbreaching party with a means of formally ending the contract while reserving the right to recover damages for the unperformed portion. An additional distinction between the two sections is found in the language of section 14 which states that “*** any such termination shall be an additional remedy and shall not prejudice the rights of the party not in default to recover any amounts due hereunder ***.” This provision is inconsistent with any construction making termination pursuant to section 14 a prerequisite to recovery of liquidated damages. Section 14 is clearly an additional means of relief. This conclusion is also supported by similar language in section 13 stating that “*** nothing herein *** shall prejudice the rights of either party to terminate this agreement as hereinafter provided ***.” Inclusion of this language in both section 13 and 14 convinces us that the parties did not intend that the availability of relief under one section be conditioned on the operation of the other section.

ECI also contends that it has not made a demand for liquidated damages and, therefore, it has the option of seeking actual damages. Failure to demand a contractual right does not create rights greater than those bargained for. A liquidated damages clause is the agreement of the parties as to the amount of damages which must be paid in the event of default. (5 Corbin on Contracts sec. 1062, at 355-56 (1964).) Proof of liability is all that is required to entitle the injured party to recover the liquidated amount. (Weiss v. United States Fidelity & Guaranty Co. (1921), 300 Ill. 11.) If the nondefaulting party does not wish to demand this amount, he will not be forced to do so. But this does not create the right to seek a greater measure of damages than the amount bargained for.

Next, ECI relies on section 2 — 719(l)(b) of the Uniform Commercial Code, in arguing that the liquidated damages clause does not provide the exclusive measure of damages unless it is expressly agreed to be exclusive and labeled as such.

“Sec. 2 — 719. Contractual Modification or Limitation of Remedy. (1) Subject to the provisions of subsections (2) and (3) of this Section and of the preceding section on liquidation and limitation of damages,
(a) the agreement may provide for remedies in addition to or in substitution for those provided in this Article and may limit or alter the measure of damages recoverable under this Article, as by limiting the buyer’s remedies to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts; and
(b) resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy.” Ill. Rev. Stat. 1981, ch. 26, par. 2 — 719.

There are no Illinois cases which address the question of whether section 2 — 719(l)(b) applies to a liquidated damages clause. Other authorities are split on the issue.

NI-Gas takes the position that section 2 — 719(b) applies only to contract provisions which limit a remedy. A liquidated damages clause does not limit a remedy but instead provides an agreed upon measure of damages. Therefore, section 2 — 719(b) does not govern the liquidated damages clause in the contract with ECI.

The only reported decision which addresses this precise issue is a North Dakota Supreme Court case. Ray Farmers Union Elevator Co. v. Weyraueh (N.D. 1975), 238 N.W.2d 47, involved the anticipatory breach of three grain supply contracts which contained liquidated damage clauses. The plaintiffs claimed to have the option of seeking actual damages since the liquidated damage clauses were not declared to be exclusive as allegedly required by section 2 — 719(a)(b). The court rejected this argument holding that a liquidated damages clause is not a remedy within the portent of section 2 — 719. In accord with this decision is the commentary found in C. Bunn, H. Snead & R. Speidel, An Introduction to the Uniform Commercial Code 192 (1964), which characterizes section 2 — 719 as “*** primarily concerned with what remedies are available rather than the monetary amount of damage.” (Emphasis in original.)

ECI makes no distinction between a remedy and a measure of damages in arguing that a liquidated damages clause is subject to section 2 — 719(l)(b). ECI relies on Commonwealth Edison Co. v. Atlantic Richfield Co. (No. 76L3951, N.D. Ill., filed June 15, 1978), where, in a memorandum opinion, the Federal District Court held that the liquidated damages clause of the contract did not limit the plaintiffs damages to the liquidated amount. The court found that the parties had inserted a provision into the contract which stated that liquidated damages were in addition to any other rights or remedies. Therefore, liquidated damages were optional. Although the court referred to 2— 719(l)(b) in reaching its decision, its holding was based primarily on the express terms of the contract which made liquidated damages optional. We do not regard this as a definitive statement requiring liquidated damage clauses to comply with 2 — 719(l)(b) in order to be exclusive. We also note that this is an unpublished Federal trial court decision, which has no stare decisis effect in this court.

ECI also cites 6 D Willier & Hart, U.C.C. Reporter Digest sec. 2 — 719, at 2 — 666.58 (1983), which is critical of the majority opinion in Weyrauch. In this commentary, the authors point to section 1— 201(34) of the code which defines “remedy” as “any remedial right to which an aggrieved party is entitled with or without resort to a tribunal.” The authors contend that this definition is broad enough to encompass a liquidated damages clause. This is the same position taken by one dissenting justice in Weyrauch. For reasons which follow, we prefer the position taken by NI-Gas.

A liquidated damages clause which provides an agreed upon formula for calculating the amount of money damages owed in the event of nonperformance is not a limitation on a remedy. Liquidation or limitation of damages is governed by section 2 — 718; limitation of remedies falls under 2 — 719. The concepts are separate and distinct. The only cross reference between the two sections is found in 2 — 719 which states that it is “subject to” 2 — 718. If, instead, 2 — 718 were made subject to 2 — 719, then the restrictions of 2 — 719(l)(b) would arguably apply to a liquidated damages clause. But the fact that 2 — 719 is subject to 2 — 718 indicates that any restriction on the right to liquidate damages by agreement is contained in 2 — 718 and nowhere else. We see no reason to impose the additional restraints of 2 — 719(l)(b).

The trial court erred in finding that the liquidated damages clause did not prevent ECI from seeking an alternate measure of damages. The parties agreed to a liquidated sum a their damages in the event of default. This is often done in order to avoid the difficulty and uncertainty of proving damages by using market value, resale value or otherwise. Such an agreement is binding. Therefore, we reverse the court’s order striking the liquidated damages defense. Because of our decision on this issue, it is not necessary for us to review NI-Gas’ contention that the jury was improperly instructed on how to calculate ECI’s damages.

THE AFFIRMATIVE DEFENSES

At trial, NI-Gas argued that its nonperformance was excused by: (1) the force majeure clause of the contract; (2) the doctrine of frustration of purpose and (3) sections 2 — 615 of the U.C.C. on excuse by failure of presupposed conditions.

Before trial, NI-Gas filed a motion for summary judgment on its defense based on the force majeure clause of the contract which provides in relevant part:

“*** In no event shall any liability result to either party for *** non-performance caused by circumstances beyond the control of the party affected, including but not limited to * * * compliance with any law, regulation, requisition, request or direction made by any governmental authority *** or by reason of any similar or dissimilar causes ***.”

The court denied the motion, granted ECI’s motion to strike the force majeure defense and entered summary judgment for ECI. We affirm.

NI-Gas argues that an ICC rate order dated January 3, 1980, was the force majeure event which caused its nonperformance. We have reviewed the rate order and find that it did not direct NI-Gas to do anything which, on its face, was directly relevant or material to its performance of the contract with ECI. The operative portion of the rate order contains the following recitations:

“IT IS THEREFORE ORDERED by the Illinois Commerce Commission that the Filed Tariff Sheets referred to in Finding (15) be, and they are hereby, cancelled and annulled.
IT IS FURTHER ORDERED that the Filed Tariff Sheets referred to in Finding (16) shall continue in effect.
IT IS FURTHER ordered the Respondent be, and it is hereby, ordered and directed to file for inclusion in its Schedule of Rates new sheets containing charges referred to in Finding (17), and all other terms remaining the same as currently in effect; said rates to become effective on the date of filing.
IT IS FURTHER ORDERED that Respondent be, and it is hereby, ordered and directed to file for approval with the Commission a cost of service study.
IT IS FURTHER ORDERED that all petitions, motions, and objections that remain undisposed of be, and the same are hereby, disposed of consistent with the ultimate conclusions contained herein.

By order of the Commission this 3rd day of January, 1980.” This is simply the commission’s way of denying NI-Gas’ request for a rate increase. Other than ordering NI-Gas to file additional paperwork, the order contains nothing which required NI-Gas to engage in a particular course of conduct.

NI-Gas argues that the following events, culminating in the termination of the contract with ECI, were the direct result of NI-Gas’ efforts to “comply” with the rate order. The ICC had denied NI-Gas’ request for a rate increase partly because the higher rate structure was based on a large amount of stored gas which was not necessary to meet the demands of NI-Gas customers. The ICC ruled that a lower amount of stored gas was sufficient and its costs could be covered by the existing rates. Since it could not increase its rates, NI-Gas felt compelled to curtail production of supplemental natural gas (SNG). In order to reduce SNG production, NI-Gas terminated the contract with ECI since this was its most expensive supplier of SNG feedstock. NI-Gas maintains that this situation is similar to that found in Eastern Air Lines, Inc. v. McDonnell Douglas Corp. (5th Cir. 1976), 532 F.2d 957. We disagree.

Eastern Air Lines brought an action for breach of contract against McDonnell Douglas for excessive delays in delivering commercial airliners which Douglas had agreed to manufacture. The contract contained a provision regarding excusable delay which was essentially a force majeure clause. Douglas argued that the delays were excused by conditions caused by the Vietnam War. Due to wartime defense needs, the government had informally requested airline manufacturers to shift priority from civilian to certain military contracts. Compliance with these requests caused the delays in performance on the contract with Eastern. The trial court instructed the jury to consider only those delays which were caused by formal government directives rather than the informal “jawboning” over government priorities. The jury found no excusable delay.

The Fifth Circuit Court of Appeals reversed, holding that the trial court’s instruction was reversible error. Wartime conditions had resulted in government policies which the appeals court found to be fundamentally coercive. The court noted that airplane manufacturers had protested against additional changes in priority ratings under the Defense Production Act (DPA), arguing that such changes could cause shortages of scarce raw materials which would result in even greater delays on civilian contracts. The defense department agreed not to implement additional restrictions under the DPA but insisted that particular military contracts be given preference on an individual and informal basis. The appeals court found that the jury should have been allowed to determine whether any delays were proximately caused by compliance with the informal government requests.

In the present case we have neither a direct order nor an informal request. The rate order did not compel, suggest, or even recommend that NI-Gasact in any specific manner. It is true that the ICC approved the recommendation of its gas engineering staff that a lower amount of stored gas would be a reasonable level of inventory, but the order never directed NI-Gas to reduce its inventory. The net effect of the order was that NI-Gas could not raise its rates to cover the cost of unnecessary gas production.

Although NI-Gas felt that termination of the ECI contract was a commercially reasonable response to the rate order, we cannot say that NI-Gas was thereby complying with the order. By this we do not mean to say that in order to constitute a force majeure event, an ICC order or other utility regulation must specifically direct a party to breach an obligation. What is required is that the order clearly direct or prohibit an act which proximately causes nonperformance or breach of a contract.

The question of whether the rate order compelled NI-Gas to act involves interpretation of an administrative order which is a question of law for the court to decide. (See Hulett v. Central Illinois Light Co. (1980), 83 Ill. App. 3d 195, 197.) The trial court ruled against NI-Gas on this issue based on the undisputed facts contained in the ICC rate order of January 3, 1980. Summary judgment is appropriate where the pleadings and affidavits constitute all of the evidence before the court and upon such evidence, there is nothing left to go to the jury. (Fooden v. Board of Governors (1971), 48 Ill. 2d 580.) Since the rate order, as a matter of law, did not compel any performance by NI-Gas, there was no question of fact as to whether NI-Gas’ breach was proximately caused by compliance with the order as contemplated by the force majeure clause of the contract. Therefore, summary judgment was properly entered in favor of ECI.

NI-Gas contends that there are other force majeure events such as natural gas decontrol, escalating oil prices and other market conditions which excused its performance. These events were not presented to the trial court in connection with the motion for summary judgment and are waived. See Smith v. Ashley (1975), 29 Ill. App. 3d 932.

Next, NI-Gas argues that the trial court erred in granting ECI’s motion for summary judgment on NI-Gas’ frustration of purpose defense. In its reply to ECI’s counterclaim, NI-Gas alleged as an affirmative defense that its nonperformance was justified by circumstances beyond its control that frustrated the purpose for which it had entered the contract.

Frustration of purpose, commercial frustration as the doctrine has been called in Illinois, is a viable defense but is not to be applied liberally. (Smith v. Roberts (1977), 54 Ill. App. 3d 910.) The Smith decision sets out a rigorous two-part test which requires a party to show that: (1) the frustrating event was not reasonably foreseeable; and (2) the value of counterperformance has been totally or nearly totally destroyed by the frustrating event.

NI-Gas argues that due to increases in natural gas supplies, its need for the naphtha produced by ECI was reduced. This factor, coupled with increased naphtha prices caused by rising crude oil prices plus the ICC rate order and other regulatory restraints destroyed the value of ECI’s counterperformance. NI-Gas also contends that these events were unforeseeable and beyond its control.

First and foremost, as any trader knows, the only certainty of the market is that prices will change. Changing and shifting markets and prices from multitudinous causes is endemic to the economy in which we live. Market forecasts by supposed experts are sometimes right, often wrong, and usually mixed. If changed prices, standing alone, constitute a frustrating event sufficient to excuse performance of a contract, then the law binding contractual parties to their agreements is no more.

Moreover, we do not regard the events complained of by NI-Gas as unforeseeable. As early as 1972, NI-Gas executives were aware that demand for natural gas was being reduced due to consumer conservation caused by the OPEC oil embargo. Despite the fact that NI-Gas could not reasonably predict the future supply and demand of natural gas beyond two or three years, NI-Gas entered into an agreement which required it to take 56 million barrels of naphtha over a period of at least 10 years. Furthermore, as a regulated public utility, NI-Gas should have known that the ICC might not grant all of its future requests for rate increases to cover costs generated by its performance of the contract with ARCO.

In 1976, NI-Gas and ECI negotiated the terms under which ECI would assume ARCO’s rights and obligations under the naphtha supply contract. At this time, the nation was recovering from a crippling oil embargo by OPEC nations. Fully aware of how oil prices had behaved in the past, NI-Gas agreed to an amended price escalation formula which specified that the contract price for naphtha would increase at a rate 1.4 times any increase in crude oil costs. NI-Gas agreed to this amendment despite the fact that in 1974, the chairman of the board of NI-Gas was publically predicting that by the mid-1980’s, crude oil prices would be in the range of $32 to $35 a barrel. As predicted, crude oil prices rose to about $31 per barrel by late 1979.

Thus, in 1973 when the contract was formed and in 1976 when the contract was assigned to ECI, NI-Gas was aware of the potential for adverse market shifts which now form the basis for its defenses based on impracticability and frustration of purpose. At either time, NI-Gas could have included specific terms in the contract to provide relief when these events came to pass. NI-Gas failed to do so.

The facts which constitute the frustrating events complained of by NI-Gas are not in dispute and the record clearly demonstrates that these events were, to a large degree, foreseeable to NI-Gas and in some cases predicted by NI-Gas. Applying these facts to the test set out in the Smith decision, there is no room for a difference of opinion. As a matter of law, NI-Gas was unable to show that the supposed frustrating events were not reasonably foreseeable. Therefore, the defense of commercial frustration was not available to NI-Gas, and summary judgment was properly entered in favor of ECI.

The next defense raised by NI-Gas is based on section 2 — 615 of the Uniform Commercial Code:

“Sec. 2 — 615. Excuse by Failure of Presupposed Conditions. Except so far as a seller may have assumed a greater obligation and subject to the preceding section on substituted performance:
(a) Delay in delivery or non-delivery in whole or in part by a seller who complies with paragraphs (b) and (c) is not a breach of his duty under a contract for sale if performance as agreed has been made impracticable by the occurrence of a contingency the non-occurrence of which was a basic assumption on which the contract was made or by compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it later proves to be invalid.
(b) Where the causes mentioned in paragraph (a) affect only a part of the seller’s capacity to perform, he must allocate production and deliveries among his customers ***.” (Ill. Rev. Stat. 1981, ch. 26, par. 2 — 615.)

At the close of the evidence, the trial court directed a verdict for ECI on this defense.

The trial court apparently based its ruling on the fact that NI-Gas failed to show that it had allocated its performance reductions among its three suppliers of SNG feedstock as required by 2 — 615(b). We express no opinion as to whether this was a proper basis for the directed verdict since we find the ruling to be correct for other reasons.

We preface our comments by noting that section 2 — 615 by its terms applies only to sellers. However, comment 9 thereunder indicates that its provisions are equally applicable to buyers so long as they comply with all of the statutory requirements. (Ill. Ann. Stat., ch. 26, par. 2 — 615, Uniform Commercial Code Comment 9, at 501 (Smith-Hurd 1963).) The trial court permitted NI-Gas, as a buyer, to invoke 2 — 615 provided that all elements of the defense were satisfied. We agree with that ruling but find that NI-Gas failed to establish a prima facie case under 2 — 615.

A directed verdict is proper when all of the evidence, viewed favorably to the nonmovant, so overwhelmingly favors the movant that a contrary verdict could not stand. The evidence in the case at bar overwhelmingly demonstrates that NI-Gas failed to prove that its performance was made impracticable by an event, the nonoccurrence of which was a basic assumption on which the contract was formed. NI-Gas also failed to demonstrate that degree of impracticability necessary to excuse performance.

In order to prevail on this defense, NI-Gas had to show that the contract was based on the assumption that oil prices would not rise drastically, that demand for natural gas would not decline and that NI-Gas would be permitted to raise its rates in order to cover its costs. The terms of the contract and the evidence at trial do not support this proposition.

The question of whether the nonoccurrence of an event was a basic contract assumption is a question of foreseeability. (Eastern Air Lines, Inc. v. Gulf Oil Corp. (S.D. Fla. 1975), 415 F. Supp. 429.) As we have stated in our analysis of the commercial frustration defense, adverse shifts in oil and gas prices were foreseeable and NI-Gas was charged with knowledge that it might not always be able to raise its rates.

In addition, NI-Gas specifically agreed to take or pay for naphtha thus guaranteeing performance regardless of the demand for SNG. The record reveals that NI-Gas understood this provision to mean that it was obligated to pay for the product whether it was delivered and used or not. According to ECI, this is the meaning of a take or pay provision which is generally accepted in the petroleum and natural gas industry. Such a provision belies any assertion that the contract was based on the assumption that the buyer would have a continuing need for the sellers product, especially when inserted into a long-term supply contract such as this one.

The contract also contained a price escalation formula which based the contract price for naphtha on the price of crude oil. This formula guaranteed that the contract would remain profitable for ECI and indicates that the risk of increased naphtha prices due to increased crude oil prices (which were foreseeable) was shifted to NI-Gas. See Eastern Airlines, Inc. v. Gulf Oil Corp. (S.D. Fla. 1975), 415 F. Supp. 429.

NI-Gas also failed to demonstrate a sufficient degree of impracticability. The impracticability compláined of by NI-Gas was the substantial increase in the cost of its performance. Even if we had concluded that the events leading to the increased cost were events which the contracting parties assumed would not occur, increased cost does not usually constitute impracticability under section 2 — 615.

Comment 4 to section 2 — 615 states that “[ijncreased cost alone does not excuse performance unless the rise in cost is due to some unforeseen contingency which alters the essential nature of the performance.” (Ill. Ann. Stat., ch. 26, par. 2 — 615, Uniform Commercial Code Comment 4, at 500 (Smith-Hurd 1963).) The essential nature of NI-Gas’ performance under the contract was to take or pay for naphtha. What NI-Gas was to do with the naphtha was not specified by the contract. In fact, prior to terminating the contract, NI-Gas had begun to resell the naphtha on the open market and negotiated with ECI to obtain an amendment to the contract which would facilitate such sales.

When its application for a rate increase was denied, NI-Gas decided it would cost less to terminate the agreement that to continue to perform by whatever means possible. A party is expected to use reasonable efforts to surmount obstacles to performance and performance is impracticable only if it is so in spite of such efforts. (Restatement (Second) of Contracts sec. 261 (1961).) A party seeking to excuse his performance must show that he can operate only at a loss and that the loss will be so severe and unreasonable that failure to excuse performance would result in grave injustice. (Gulf Oil Corp. v. Federal Power Com. (3d Cir. 1977), 563 F.2d 588.) NI-Gas has made no such showing. Instead, the evidence overwhelmingly favors the opposite conclusion. Accordingly, we affirm the directed verdict for ECI on this issue.

NI-Gas’ final defense was based on allegations of fraud and lack of good faith by ECI in the performance of the contract. The court granted summary judgment for ECI. NI-Gas relies on section 1 — 203 of the Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, par. 1 — 203), which imposes an obligation of good faith in the performance or enforcement of a contract. A party’s lack of good faith in the performance of an obligation can serve as a defense to that party’s claim for damages. (See Toppert v. Bunge Corp. (1978), 60 Ill. App. 3d 607.) NI-Gas contends that before the contract was terminated, ECI breached its obligations of good faith, thus barring ECI’s claim for damages due to NI-Gas’ conduct.

NI-Gas alleges two separate acts by ECI which show lack of good faith. First, NI-Gas charges that ECI deliberately inflated the price it was charged for crude oil and then used that price to overcharge NI-Gas for naphtha shipments in the amount of $3,349,932. ECI does not dispute this amount and admits that NI-Gas was overcharged. ECI consented to a judgment against it for this amount but denies that the overcharge was deliberate or the result of bad faith performance. NI-Gas also accuses ECI of covering up the overcharge. NI-Gas did not discover the overcharge until approximately 29 months after it terminated the agreement.

ECI argues that the overcharge was a normal result of the billing procedure adopted by the parties. The contract price for naphtha was based on ECI’s crude oil costs. Such costs could not be determined until several months after naphtha deliveries were made due to late and revised billings by ECI’s crude suppliers and various retroactive Federal price programs. Accordingly, ECI and NI-Gas followed a standard practice of invoicing deliveries at a quarterly estimated price with a retroactive adjustment several months later when ECI’s actual crude oil costs finally could be determined. The adjustments went both ways, sometimes resulting in a credit and other times a debit to NI-Gas’ account. For example, the adjustment for the quarter preceding NI-Gas breach (October-December 1979) reflected the fact that NI-Gas had been underbilled by more than $4 million. NI-Gas was not invoiced for this adjustment until March 24, 1980, almost four months after the end of the quarter.

These same billing procedures were followed during the quarter when NI-Gas repudiated (January-March 1980). In December 1979, ECI notified NI-Gas of the estimated price for the quarter and NI-Gas was invoiced for deliveries in January, February and March 1980 at that estimated price. ECI’s actual crude oil costs for the first quarter of 1980 could not be determined until long after NI-Gas’ repudiation and the filing of this action on March 17, 1980. Those actual costs resulted in a credit to NI-Gas of $3,349,932.

NI-Gas states that during the first quarter of 1980, ECI based its price for naphtha on an estimated crude oil price of $31 per barrel. NI-Gas contends that this price was deliberately inflated because ECI, in a sworn filing with the Department of Energy (DOE), stated that its crude oil price would be only $27 per barrel. This alleged discrepancy, according to NI-Gas, shows bad faith on the part of ECI. We disagree.

■ Actually, ECI informed the DOE that its crude oil price would be $27 per barrel if it received a DOE allocation. This is an important condition. Since no allocation had been received when NI-Gas was billed for the first quarter of 1980, there was no reason for ECI to reduce its estimated price of $31 per barrel. ECI was not required to regard the DOE allocation as a certainty simply because it had received such allocations on two prior occasions.

In support of its allegation of a coverup, NI-Gas points to the fact that after the contract was terminated, ECI was aware of the overcharge (although not the precise amount), but never came forward to make an adjustment. Even if this allegation were true, it would not constitute a lack of good faith in performance of the contract since the alleged coverup occurred after the contract had been unilaterally terminated by NI-Gas. After NI-Gas revealed its intention to repudiate the agreement, ECI was permitted to suspend its performance. (Ill. Rev. Stat. 1981, ch. 26, par. 2 — 610.) Thus, this situation can be distinguished from cases cited by NI-Gas which permit a party to defend based on conduct occurring before repudiation but not discovered until afterwards. (See, e.g., College Point Boat Corp. v. United States (1925), 267 U.S. 12, 15-16, 69 L. Ed. 490, 493, 45 S. Ct. 199, 200-01.

For these reasons, we find that NI-Gas’ allegations of bad faith and fraud have no legal or factual basis and we affirm the trial court’s entry of summary judgment in favor of ECI. THE COURT’S EVIDENTIARY RULINGS

NI-Gas contends that the trial court erred in granting ECI’s motion in limine to exclude all reference to NI-Gas’ statutory and regulatory obligations as a public utility. NI-Gas presents this issue as if the very existence of such regulations provide an excuse for its breach. They do not. Although the regulations may explain why NI-Gas refused to perform, they are immaterial and provide no excuse unless presented in the context of a recognized defense. When, as here, an opposing party raises a challenge to the legal sufficiency of a defense grounded upon frustration of purpose or commercial impracticability, statutory obligations should be given the same consideration as other external events alleged in support of the defense. They do not confer a privileged status on one who is affected by them, nor do they act to broaden the availability of defenses which excuse nonperformance.

Two of the defenses raised by NI-Gas, force majeure and frustration of purpose, were properly disposed of by summary judgment before any evidence was presented to the jury. Therefore, the regulatory and statutory obligations of NI-Gas were material only as to its remaining defense based on section 2 — 615 of the commercial code, which was disposed of by a directed verdict for ECI at the close of the evidence. The fact that NI-Gas was unable to refer to its obligations as a utility in presenting this defense was not prejudicial. Statutory and regulatory restrictions provide a defense under section 2 — 615 only, if their operation or nonoperation were a basic assumption underlying the contract. Since we have already found that these factors did not support a section 2 — 615 defense, the court’s order excluding this evidence was harmless error.

NI-Gas argues that the court erred in permitting ECI to make references at trial to NICOR, Inc., NI-Gas’ parent company. NI-Gas contends that ECI portrayed NICOR as a greedy energy conglomerate which expected to reap the rewards of increased prices from gas decontrol but then attempted to use those same conditions as a means of breaking a contract which had become unprofitable. According to NI-Gas, ECI contrasted this picture of NICOR against the image of ECI as the representative of “half a million farm families.” We have reviewed the record and find that NI-Gas has ignored the purpose this evidence was put to.

One of the issues in this case was whether NI-Gas could invoke section 2 — 615 as a defense to nonperformance. ECI presented evidence showing that Ni-Gas’ chairman, along with representatives of NICOR, fully supported and argued in favor of the removal of Federal regulation of natural gas prices. This evidence tended to show that NI-Gas had foreseen and encouraged some of the events which allegedly made its performance impracticable. Thus, this evidence was both relevant and material and was properly admitted.

Finally, NI-Gas argues that it was prejudiced by the court’s order in limine which prevented NI-Gas from referring to or identifying the source of the retroactive billing adjustment which resulted in the judgment in favor of NI-Gas for $3,349,932.

Mr. Edward J. Filiatrault, the executive vice-president of NI-Gas, testified that NI-Gas was forced to terminate the contract with ECI in part because ECI’s SNG feedstock was inordinately more expensive than both pipeline gas and other sources of SNG feedstock. In the course of his testimony, Mr. Filiatrault laid the foundation for a chart listing the price of various feedstocks and pipeline gas. The chart was based in part on the price billed to NI-Gas by ECI for naphtha supplied during the first quarter of 1980, because that price was a substantial reason for NI-Gas’ decision to terminate the contract.

ECI objected to the admission of the chart, claiming that it was inaccurate because it did not account for the $3 million overcharge which ECI had conceded that it owed NI-Gas. NI-Gas responded that the chart accurately portrayed the situation confronting NI-Gas at the time of termination, but the trial court sustained ECI’s objection and ordered the exhibit stricken. The court ruled that the exhibit would be admitted only if NI-Gas corrected the error and then reintroduced the exhibit.

While cross-examining Mr. Filiatrault, ECI’s counsel stressed the fact that the exhibit had been based on a price figure which was too high. NI-Gas argues that it was prejudiced because it could not rehabilitate this witness by identifying ECI as the source of the erroneous figure.

As NI-Gas admits, this evidence was offered to show that it was forced to terminate the contract due to the expense of ECI’s naphtha. If, in fact, the credibility of this witness and his testimony was diminished in the eyes of the jury due to ECI’s cross-examination and the inability of NI-Gas to effectively rehabilitate on redirect, prejudice would result only if NI-Gas had been able to utilize defenses which were grounded on this evidence. Since we have affirmed the trial court’s rulings which eliminated NI-Gas’ affirmative defenses, any error in striking the exhibit or in preventing NI-Gas from identifying the source of the billing adjustment was harmless.

To summarize our decision, we reverse the judgment of the circuit court of Grundy County granting ECI’s motion to strike the defense based on the liquidated damages clause of the contract. The jury’s award of damages in the amount of $305.5 million is vacated and the cause is remanded for determination of ECI’s damages according to the formula contained in the liquidated damages clause. In all other respects, the judgment is affirmed.

Affirmed in part; reversed in part; remanded with directions.

STOUDER, P.J., and BARRY, J., concur.


source: Caselaw Access Project

author: JUSTICE HOPF

license: Public Domain

text:
      In re DISCONNECTION OF CERTAIN TERRITORY FROM THE VILLAGE OF MACHESNEY PARK (Illinois National Bank and Trust Company of Rockford, Petitioner-Appellee, v. The Village of Machesney Park, Respondent-Appellant).
    Second District
    No. 83—123
    Opinion filed March 22, 1984.

      Joseph L. Long, of Barrick, Jackson, Switzer, Long & Balsley, of Rockford, for appellant.
    Curtis D. Worden, of Rockford, for appellee.
   JUSTICE HOPF

delivered the opinion of the court:

The village of Machesney Park (Village) appeals from a judgment of the circuit court of Winnebago County which granted a petition to disconnect two tracts of real property from the Village pursuant to sections 7 — 3—1, 7 — 3—2, and 7 — 3—3 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, pars. 7 — 3—1, 7 — 3—2, 7 — 3—3). The Village contends on appeal that: (1) the trial court lacked jurisdiction to disconnect because the notice and hearing requirements of section 7— 3 — 2 were not met; (2) the court lacked jurisdiction to disconnect because the original petition did not contain the signatures of a majority of the owners of the land described in the petition, as required by section 7 — 3—1; (3) the court’s finding that disconnection would not unreasonably disrupt the growth prospects and plan and zoning ordinances of the Village was against the manifest weight of the evidence; and, (4) the court’s finding that disconnection would not unduly harm the Village through loss of tax revenue in the future was against the manifest weight of the evidence.

The Village was a newly organized village incorporated on February 24, 1981. The Illinois National Bank & Trust Company of Rockford (petitioner), as trustee, filed the instant petition to disconnect on February 19, 1982, within one year of the Village’s incorporation, as required by section 7 — 3—1 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 7 — 3—1). A hearing on the petition was set for March 12, 1982, and notice of the hearing was published on February 27, 1982. However, the notice failed to describe the property proposed to be disconnected, and failed to indicate that the municipality and any owners or residents of the territory to be disconnected or the municipality shall have an opportunity to be heard, as required by sections 7 — 3—2(2) and 7 — 3—2(4) of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, pars. 7 — 3—2(2), (4)).

On March 12, 1982, the Village was ordered to respond to the petition, and the response, filed March 19, 1982, admitted in relevant part that the petition was filed within one year of the Village’s organization.

The cause was subsequently continued on numerous occasions until November 18, 1982, pursuant to section 7 — 3—3 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 7 — 3—3). On that date petitioner moved to amend its petition to correct the legal description of the property in the petition. Petitioner’s counsel explained at the hearing that it discovered that the legal description of Tract I included property to the north which was not owned by petitioner. The court granted the motion, which was not objected to by the Village, and the petition was subsequently amended to exclude the encroached-upon property.

At the November 18 hearing the parties also filed a written stipulation which stated, in relevant part, that petitioner is the owner of the real property sought to be disconnected, that there are no electors residing on the property in question, and that the petition was properly filed within one year of the Village’s organization. Subsequently, the Village’s attorney stated that he was not admitting that the notice requirements of section 7 — 3—2 had been complied with, noting that they were not alleged in the petition and he had not yet seen the published notice. The deficiencies in the original notice were then discovered by the court and petitioner stated that the notice was prepared by it at the court’s direction. The Village expressed its willingness to waive notice as to itself; however, the court ordered that it be republished and the hearing reset on the belief that the notice requirements may be jurisdictional. The hearing was set for December 9, 1982, and the notice was republished on November 26, 1982, in proper form. The Village stipulated to service of the notice upon it.

On November 30, 1982, the Village filed a motion to dismiss the petition on the jurisdictional grounds raised in this appeal, which motion was argued on December 1, 1982. At the hearing on the motion, the Village requested leave to withdraw its previous waiver of notice, stating that the jurisdictional requirements of notice cannot be waived. The motion to dismiss was denied and the causé was continued for a hearing on the merits on December 9, 1982. Just prior to the December 9 hearing, the Village moved to amend its response to the petition to deny that the petition was properly filed within one year of the Village’s incorporation, and to strike that portion of the stipulation stating that the petition was properly filed within the one-year limitation period. The motion was granted.

At the hearing on the merits of the petition to disconnect, it was established that the territory sought to be disconnected contains 523 acres which represents approximately 10% of the 5,234 acres contained within the Village. This 523-acre parcel is comprised of two tracts of land. Tract I contains 350 acres of land presently zoned for planned community development under a special use permit. Under the permit, 73.3 acres of this tract is approved for commercial use, 50.8 acres for industrial use, and 227 acres for residential use. However, if by November 1984 the owner of the property, Alden Orput, has not undertaken development pursuant to the special use permit, it will terminate and the zoning will revert back to agricultural use. As of the date of the hearing, on December 9, 1982, no construction had yet been commenced on the property, and there were no plans for its development. Additionally, various other conditions of the special use permit, which are not relevant here, had not been met.

Tract II, which is just east of Tract I, contains 173 acres zoned agricultural, and is owned by Brian Hutchins. This tract is designated under the Winnebago County Year 2000 Plan as low and medium density housing. However, at the time of the hearing, no one was residing on any of the property in Tracts I or II.

It was also established at the hearing that disconnection of these tracts would result in a loss of $6,300 from the township road and bridge sharing fund. Receipts from this fund in 1982-83 fiscal year totaled approximately $63,500. However, disconnection would also result in the loss of a road annexed to the property and thus would presumably save the Village these maintenance costs. No property tax had ever been levied upon the subject property.

The Village first contends that the trial court was deprived of jurisdiction to grant the disconnection petition because proper notice was not published within the time prescribed in section 7 — 3—2 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 7 — 3—2), and because the original petition was not signed by a majority of the owners of the land described therein, as required by section 7 — 3—1 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 7 — 3—1).

Section 7 — 3—2 of the Illinois Municipal Code states, in relevant part:

“Sec. 7 — 3—2. Upon the filing of the petition as provided in Section 7 — 3—1, the court shall set the same for public hearing which date of public hearing shall be within 30 days of the date of the filing of the petition. The court shall give at least 10 days notice of such hearing by publishing notice *** not less than 10 days prior to the date set for the public hearing. The notice (1) shall refer to the petition filed with the court, (2) shall describe the territory proposed to be disconnected, (3) shall indicate the prayer of the petition and the date, time and place at which the public hearing will be held and (4) shall further indicate that the municipality and any persons residing in or owning property in the territory involved or in the municipality from which such territory is sought to be disconnected shall have an opportunity to be heard on the prayer of the petition.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 24, par. 7 — 3—2.)

It is undisputed that the original notice, published February 27, 1982, was defective under section 7 — 3—2 for failing to describe the territory in question and for failing to indicate that the Village and residents of the Village had an opportunity to be heard on the disconnection petition. (Ill. Rev. Stat. 1981, ch. 24, par. 7 — 3—2.) It is also undisputed that these defects were removed in the republication of notice on November 26, 1982, which republication was 13 days prior to the actual hearing date on December 9, 1982. However, the Village argues that the time limitations contained in the above statute are jurisdictional. Thus,. it argues that although the hearing was “set” within 30 days of the filing of the original petition, the defects in the notice deprived the court of jurisdiction to proceed, and made it impossible to have proper notice 10 days in advance of the original date set for public hearing, as purportedly required by the statute. Petitioner maintains, on the other hand, that the Village expressly waived any right it had to object to the defective notice, and that in any event the time limitations in the statute are not jurisdictional.

With respect to petitioner’s waiver argument, we note that although the Village initially expressed a willingness to proceed with the hearing despite the defects in notice, this position was later reversed when the Village requested leave to withdraw its previous waiver and moved to dismiss the petition on the grounds here urged. The motion to dismiss was denied on the merits; thus, it cannot be said that the Village waived its objections on this basis.

On the merits, we first emphasize that there is no issue as to whether proper notice to the Village’s residents prior to the hearing on the disconnection petition is mandatory. The residents here were in fact given advance notice. (Cf. People ex rel. Hopf v. Village of Bensenville (1971), 132 Ill. App. 2d 907, 909, 272 N.E.2d 50; In re Annexation to the Village of South Barrington (1972), 7 Ill. App. 3d 958, 960-61, 289 N.E.2d 1.) Rather, the inquiry here is only whether the proper notice is required to be given within 20 days of the filing of the disconnection petition.

Save for the powers enuring to a “home rule” municipality, municipalities are creatures of the legislature and are subject to the legislative will. (People v. Village of North Barrington (1968), 94 Ill. App. 2d 265, 268, 237 N.E.2d 350.) Thus, it is the legislature which is granted the power of prescribing the conditions relative to the alteration of municipalities — whether through annexation, disconnection or incorporation. (La Salle National Bank v. Village of Burr Ridge (1967), 81 Ill. App. 2d 209, 218, 225 N.E.2d 33.) The only duty of the courts is to construe the statutes in a reasonable and sensible manner. 81 Ill. App. 2d 209, 218, 225 N.E.2d 33.

The purpose of the disconnection statute is to grant relief to taxpayers in the disconnected area and to permit property not being used for municipal purposes to avoid the burdens of municipal taxation and regulations. (In re Disconnection from the City of Palos Heights (1961), 30 Ill. App. 2d 336, 341, 174 N.E.2d 574.) Thus, the courts have liberally construed disconnection statutes in favor of disconnection, whether it is by operation of law (In re Roberts Park Fire Protection District (1975), 61 Ill. 2d 429, 337 N.E.2d 8), or is initiated by a petition setting forth the requisite facts to support disconnection (Sun Electric Corp. v. Village of Prairie Grove (1978), 59 Ill. App. 3d 608, 612, 375 N.E.2d 984; In re Disconnection from the City of Palos Heights (1961), 30 Ill. App. 2d 336, 342, 174 N.E.2d 574; see also In re Disconnection from the Sanitary District of Rockford (1982), 111 Ill. App. 3d 339, 347, 443 N.E.2d 1079). However, in all cases construing a statute, it is the legislative intent which governs, and once ascertained must be given effect. Griffin v. City of North Chicago (1983), 112 Ill. App. 3d 901, 907, 445 N.E.2d 827; Balmes v. Hiab- Foco, A.B. (1982), 105 Ill. App. 3d 572, 574, 434 N.E.2d 482.

A mandatory provision in a statute is one which renders the proceeding to which the provision relates void and illegal if the provision is omitted or disregarded. When a statute prescribes performance of an act by a public official or a public body, the question whether it is mandatory or directory depends upon its purpose. (Andrews v. Foxworthy (1978), 71 Ill. 2d 13, 21, 373 N.E.2d 1332.) If the provision merely directs the conduct for guidance of officials or specifies time for performance of an official duty, it is directory, absent negative language denying performance after the specified time. (71 Ill. 2d 13, 21, 373 N.E.2d 1332; see also Walker v. Cronin (1982), 107 Ill. App. 3d 1053, 1059, 438 N.E.2d 582.) If the conduct is prescribed in order to safeguard someone’s rights, which may be injuriously affected by failure to act within the specified time, the provision is mandatory. Andrews v. Foxworthy (1978), 71 Ill. 2d 13, 21, 373 N.E.2d 1332.

In In re Annexation to the City of Darien (1973), 16 Ill. App. 3d 140, 145, 304 N.E.2d 769, this court applied the foregoing principles to a statute which prescribed the time within which a court must order an annexation hearing to be held upon a petition, and found the provision to be directory only. (See Ill. Rev. Stat. 1971, ch. 24, par. 7 — 1—2.) It was concluded that because there was no declaration in the statute that conformity to the time limitation was essential to the validity of the proceedings, the trial court’s failure in that case to enter an order fixing a hearing date within the prescribed time was not fatal to the proceedings which followed. Accord, Winfield Fire Protection District v. City of Wheaton (1975), 29 Ill. App. 3d 630, 634, 332 N.E.2d 43.

Pursuant to these authorities, we believe that the time limitations in section 7 — 3—2 of the Illinois Municipal Code (111. Rev. Stat. 1981, ch. 24, par. 7 — 3—2) are directory only and that the failure of the court to publish proper notice within the time prescribed does not affect the validity of the proceedings. (Winfield Fire Protection District v. City of Wheaton (1975), 29 Ill. App. 3d 630, 634, 332 N.E.2d 43; In re Annexation to the City of Darien (1973), 16 Ill. App. 3d 140, 145, 304 N.E.2d 769.) The provision in question contains no language denying performance after a specified time, and the Village has not indicated how a failure to act within the time limitation would injuriously affect anyone’s rights. It is also evident that the intent of section 7 — 3—2 was to afford the residents of the municipality the opportunity to be heard on the petition, and it is undisputed that such an opportunity was afforded here. We therefore find that the defects in the original notice which resulted in a failure to strictly comply with the time limitations set forth in section 7 — 3—2 did not deprive the trial court of jurisdiction. Ill. Rev. Stat. 1981, ch. 24, par. 7 — 3—2.

Relying upon People ex rel. Hoyne v. Stumpf (1916), 275 Ill. 81, 113 N.E. 994, and Soldier Creek Drainage & Sanitary District v. Illinois Central R.R. Co. (1926), 323 Ill. 350, 154 N.E. 153, the Village next contends that there was no jurisdiction because the original petition was not signed by a majority of the owners of the land described in the petition, as required by section 7 — 3—1 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 7 — 3—1). The Village’s argument is premised upon the fact that the original petition mistakenly included certain land which was not owned by petitioner, and whose owner never signed the petition. Thus, the Village reasons, the petition was signed by only one of two landowners and this does not constitute the required “majority.” (Ill. Rev. Stat. 1981, ch. 24, par. 7 — 3—1.) The Village further argues that the attorney for petitioner had no power to amend the petition without the signature of the bank. Petitioner contends that the Village’s failure to object to the amendment at trial, and its stipulation that the petition was properly filed within one year now waives the issue for review. Petitioner further contends that amendment was proper under section 2 — 616 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 616), to correct a technical defect in the pleadings.

With respect to petitioner’s waiver argument, we note that upon the Village’s motion, the word “properly” was stricken from the stipulation. Thus, it was only stipulated that the petition was “filed,” but not that it was filed “properly.” Further, although the Village did not object to the amendment at trial, there is support for the proposition that the signature requirement is jurisdictional in nature and, thus, cannot be waived. (See People ex rel. Hoyne v. Stumpf (1916), 275 Ill. 81, 84, 113 N.E. 994; People ex rel. Lange v. Old Portage Park District (1934), 356 Ill. 340, 345, 190 N.E. 664, holding that a similar requirement in the Park District Code (Smith’s Stat. 1933, ch. 105, par. 256 et seq.) was jurisdictional even though it contained no words to the effect that a defect in this requirement shall be fatal to the cause.) We, therefore, consider the argument despite the Village’s failure to raise it at trial. People ex rel. Eminger v. Sangamon & Drummer Drainage District (1912), 253 Ill. 332, 337, 97 N.E. 667.

In People ex rel. Hoyne v. Stumpf (1916), 275 Ill. 81, 113 N.E. 994, the court reviewed a petition to organize a park district under Hurd’s Stat. 1916, at 1880, codified today at Ill. Rev. Stat. 1981, ch. 105, par. 2 — 2. The original petition was alleged to have contained the signatures of more than 100 legal voters residing in the territory sought to be organized, as required under the statute. However, subsequent to the filing of the petition it was discovered that a portion of the territory described therein had been organized into another park district. The petition was thereafter amended to exclude this territory, and the remaining property was subsequently organized into a park district. The amended petition was signed only by the attorney for petitioners. The reviewing court found that the filing of a petition signed by the required number of legal voters was jurisdictional, and that the “county judge is not empowered to act and to call an election [for organization] in the absence of such a petition.” (275 Ill. 81, 84, 113 N.E. 994.) The court further noted that the proceeding was purely statutory and that the act nowhere provided for an amendment of the petition. The court finally concluded that while the original petition clearly defined the territory intended to be embraced within the district, it included within that territory lands which could not be legally included within such district. Under these circumstances, the court held that petitioners “had no recourse except to withdraw the petition and present another which complied with the requirements of the statute and correctly defined the territory which it was intended to organize into a park district.” (275 Ill. 81, 85, 113 N.E. 994.) The court also held that an amended petition which corrected the defect and was signed by the attorney alone could not vest the court with jurisdiction to act.

In Soldier Creek Drainage & Sanitary District v. Illinois Central R.R. Co. (1926), 323 Ill. 350, 154 N.E. 153, it was determined that the original petition, when filed, did not contain the signatures of a majority of the owners of the land described in the petition. The petition was further defective in that it contained land included within another park district and which could not legally be included in the petition. The amendment of the petition was sought for the sole purpose of reducing the acreage of the property so that the signature requirement would be met. Under these circumstances the court found that the original petition was fatally defective for failing to contain the required number of signatures, and that this defect was not curable by amendment because the county court never acquired jurisdiction of the subject matter.

While these cases seemingly support a reversal of the amendment allowed in this case, they are distinguishable from the facts of this case in several respects. First, there is no indication in the record here that the land originally included in the petition could not legally be disconnected from the Village, a fact which existed in both the Stmnpf and Soldier Creek cases. The defect in the instant case was an error of fact rather than one of law. Second, in the present case it can readily be determined that the required number of signatures existed for the disconnection petition after the property description was amended. In fact, the parties stipulated that petitioner was the owner of the property sought to be disconnected and that there were no electors residing on the real property in question. However, in both Stumpf and Soldier Greek, it was impossible to determine after the amendment that the petition contained the required number of signatures.

We conclude after reviewing this record that the issue here is really whether the legal description of the property could be amended to correct an inadvertent error, and not whether the original petition contained sufficient signatures to vest the trial court with jurisdiction to rule on the petition. It was never disputed that the property sought to be disconnected here had but one owner, and that that owner in fact signed the petition.

By way of analogy, courts in annexation proceedings have held that certain defects in the legal description of property may be amended prior to the hearing on the validity of the petition. In In re Annexation in the County of Kankakee (1961), 30 Ill. App. 2d 391, 174 N.E.2d 710, the court affirmed the trial court’s allowance of an amendment to eliminate lands in the petition which could not legally be included in the petition. While finding that section 7 — 4 of the Revised ■ Cities and Villages Act allowed such amendments (Ill. Rev. Stat. 1957, ch. 24, par. 7 — 4), the court further stated that the Civil Practice Act would permit such an amendment and would control in all matters of procedure wherein the special statute is silent. (In re Annexation in the County of Kankakee (1961), 30 Ill. App. 2d 391, 396, 174 N.E.2d 710; see Ill. Rev. Stat. 1981, ch. 110, par. 2 — 616.) This principle was also applied in a disconnection case dealing with the question whether intervention by other property owners was properly allowed under the statute. (First National Bank v. Village of South Pekin (1940), 303 Ill. App. 269, 25 N.E.2d 87.) We agree that the Civil Practice Act, now the Code of Civil Procedure, controls those matters of procedure on which the disconnection statute is silent. Further, we find no abuse of discretion in the trial court’s allowance of an amendment where the defect in the property description was inadvertent, where there is only one owner of the property in question and that owner in fact signed the original petition, where the amendment to the petition was made before the hearing on the validity of the petition itself (see In re Annexation to the Village of Plainfield (1975), 25 Ill. App. 3d 1026, 1033, 323 N.E.2d 841), where the Village did not object to the defect now alleged on appeal but to the contrary expressed a desire to proceed with the hearing, where the amendment was not sought to reduce the petitioner’s burden of producing the required number of signatures but was sought for the sole purpose of correcting a technical defect in its pleadings (cf. Soldier Creek), where recirculation of an amended petition would therefore add nothing to the clarity of the pleadings (see In re Annexation in the County of Kankakee), and where the amendment was used for the proper purpose of avoiding the bar of the statute of limitations (see In re Annexation to Oregon Park District (1978), 67 Ill. App. 3d 61, 65, 385 N.E.2d 67).

Next, the Village argues that the trial court’s finding that disconnection would not unreasonably disrupt its growth prospects and plan and zoning ordinances was against the manifest weight of the evidence because all the testimony presented was that of Village officers who each concluded that the prospects and ordinances would be unreasonably disrupted. (See Sun Electric Corp. v. Village of Prairie Grove (1978), 59 Ill. App. 3d 608, 375 N.E.2d 984; Ill. Rev. Stat. 1981, ch. 24, par. 7 — 3—1(5).) We disagree. Although all the witnesses, except for Mr. Orput, the owner of the subject property, were Village officers, we find that their testimony contained sufficient facts to support the trial court’s conclusion. Cf. Sun Electric Corp. v. Village of Prairie Grove (1978), 59 Ill. App. 3d 608, 375 N.E.2d 984.

It was demonstrated that although a portion of the land was currently zoned for planned community development under a special use permit, the permit would expire by its own terms in November 1984 if construction is not commenced by that time. Development of the land is apparently discretionary with the owner who, at the time of the hearing, had met none of the conditions of the permit, had not begun any construction on the property, and had no plans for its development. Upon termination of the special use permit the zoning would revert back to agricultural. Under these circumstances, we cannot conclude that the zoning ordinances would be unreasonably disrupted by disconnection.

With respect to the future growth of the Village, the Village president, Charles Beutell, testified that the property along Route 173, which borders the subject property to the south, is the property into which the Village wishes to expand. However, Beutell testified that if the subject property were disconnected there would still be a strip of land about 1,500 to 1,800 feet wide that would allow the Village to expand to the east to annex the desirable property along Route 173. David Sliktas, the planner for the Village, also testified that annexation of the land east of the Village along the highway would be possible even if the subject property were disconnected.

In La Salle National Bank v. Village of Willowbrook (1963), 40 Ill. App. 2d 359, 362, 189 N.E.2d 690, this court stated that it is the state of events that exist at the time of the hearing which controls the validity of the petition, and not the state of events that a litigant might desire. The court further stated that the Village, which was appealing from the disconnection order, could not defeat the order on the theory that it frustrates its future designs. (40 Ill. App. 2d 359, 362, 189 N.E.2d 690.) While in the present case certain utilities were available on the property at the time of the hearing, these were not located underground, as required by the special use permit. Neither had permission for a change in access to certain roads been obtained from the Federal Government, as required by the special use permit. Given the state of events that existed at the time of the hearing, we find adequate support in the record for the trial court’s finding that the growth prospects of the Village would not be unreasonably disrupted by disconnection.

Finally, the Village challenges the court’s finding that disconnection would not unduly harm the Village through loss of tax revenue in the future. (Ill. Rev. Stat. 1981, ch. 24, par. 7 — 3—1(7).) In reaching this conclusion, the trial court noted that the only evidence before it at the time of the disconnection hearing was the loss of $6,300 from the road fund. In 1981-82 the fiscal year budget of the Village was $845,000. In 1983 the fiscal year appropriation of the Village was $1,245,000. Thus, the $6,300 loss in tax revenue represents an insignificant portion of the total budget of the Village. In addition, the Village treasurer testified that if the subject property were disconnected the Village would no longer have to pay for the maintenance of Burden Road, which travels between Tract I and Tract II, and would therefore be saved that expense. Further, at the time of the hearing, no property tax had ever been levied upon the subject property.

The Village’s argument that future tax revenue will be lost is based upon its anticipation of the future development of the subject property. However, the record here does not support a finding that any development of the property is imminent, or even remotely planned at the present time. Thus, any finding of a loss of tax revenue which might be gained through development of the property in the distant future would be purely speculative. Accordingly, we conclude that the court’s finding that the Village would not be unduly harmed through loss of tax revenue in the future is not against the manifest weight of the evidence. The judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

LINDBERG and VAN DEUSEN, JJ., concur.


author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HENRY M. MERZ, Defendant-Appellant.
    Second District
    Nos. 83—685, 83—805 cons.
    Opinion filed March 27, 1984.

      G. Joseph Weller, Paul J. Glaser, and Michael F. Braun, all of State Appellate Defender’s Office, of Elgin, for appellant.
    Theodore Floro, State’s Attorney, of Woodstock (Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

While on probation for the offense of unlawful delivery of a controlled substance (Ill. Rev. Stat. 1981, ch. 56½, par. 1401(e)), defendant, Henry M. Merz, was found guilty of residential burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 3), theft in excess of $300 (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1(a)(1)), and criminal damage to property in excess of $300 (Ill. Rev. Stat. 1981, ch. 38, par. 21 — 1(a)), all arising out of an occurrence on January 1, 1983. The defendant was subsequently sentenced to a four-year term of imprisonment for the residential burglary offense only. The State also filed a petition for revocation of defendant’s probation based upon the January 1, 1983, incident to which the defendant later stipulated that he had been convicted of the three offenses. His probation was revoked and he was sentenced to a 40-month term of imprisonment to be served consecutively with the previously imposed four-year imprisonment term for residential burglary.

These two cases have been consolidated on appeal and the following issues are raised by defendant: (1) did the trial court commit reversible error in the residential burglary trial (a) by limiting his opportunity to impeach an alleged accomplice witness, (b) by repeatedly making unnecessary comments disparaging to defense counsel before the jury, and (c) in admitting certain physical evidence based on hearsay and an inadequate foundation; and (2) was the 40-month consecutive term of imprisonment following revocation of his probation (a) grossly disparate to that of a codefendant, and (b) improper because the trial court specifically found defendant was unlikely to commit another crime? Defendant also requests that if his conviction for residential burglary is reversed and remanded for a new trial, his probation revocation and sentence be reversed.

Defendant and Daniel T. Veenendaal were both charged, convicted, and placed on probation for the offense of unlawful delivery of a controlled substance occurring on June 29, 1982. Both defendant and Veenendaal were subsequently charged with residential burglary and related charges arising out of an entry into the home of Jack W. McGregor on January 1, 1983. Petitions to revoke their probation were also filed. The residential burglary offense proceeded to a jury trial against defendant solely. At trial the State’s evidence essentially was that the McGregor home was broken into in the late evening of December 31, 1982, and early hours of January 1, 1983; that various valuable items were taken and damage caused; that Veenendaal, who had previously pleaded guilty and was sentenced to a four-year term of imprisonment, testified he and defendant committed the burglary and his nephew, David Curpier, a minor, assisted as a lookout; that David Curpier testified he acted as a lookout while his uncle and defendant went to the McGregor home, which was next to his, and removed various items; and that defendant gave several oral statements to sheriff’s detective Chris Pandre in which he admitted being a lookout, admitted helping Veenendaal and Curpier, who he said committed the burglary, carry out various items from the McGregor home, and admitted he was going to get some of the money from the sale of these stolen items.

Defendant’s father and mother testified that defendant was home with them all evening; they went to bed about 2:30 a.m. George Punzio, who dropped off his small daughter at the Merz home that evening, testified defendant was home at 7 p.m. when he arrived and at 2:15 a.m. when he again arrived to pick up his daughter. Defendant did not testify.

Following the defendant’s conviction and four-year sentence of imprisonment for residential burglary, he stipulated to the guilty verdicts in connection with this burglary in the revocation of probation proceedings in his previous conviction for unlawful delivery of a controlled substance. His probation was revoked and he was sentenced to a 40-month term of imprisonment to be served consecutive to the residential burglary sentence. Veenendaal, who was a codefendant in both the unlawful delivery of a controlled substance case and the residential burglary case, had entered a negotiated plea of guilty to residential burglary and an admission to the probation violation prior to defendant’s trial. Pursuant to the plea agreement he was sentenced to a four-year term of imprisonment for residential burglary and his probation was revoked although no sentence was entered. He was further granted immunity from prosecution in relation to several other burglaries which he admitted committing.

Relating to the residential burglary case, defendant raises three arguments in which he contends he was deprived of a fair trial. His post-trial motion for a new trial failed to specifically raise any of these arguments. To preserve an issue for appeal, an objection must be raised at trial and in a post-trial motion. (People v. Jackson (1981), 84 Ill. 2d 350, 358-59, 418 N.E.2d 739.) An exception to the waiver rule is where there has been “plain error,” and the doctrine of plain error may be invoked in criminal cases where the evidence is closely balanced or where the error was of such magnitude that the accused was denied a fair trial. (People v. Lucas (1981), 88 Ill. 2d 245, 250-51, 430 N.E.2d 1091.) Pursuant to this principle we examine defendant’s appellate contentions.

First, defendant maintains that the trial court prohibited him from cross-examining the State’s witness, David Curpier, concerning juvenile arrests which had not resulted in court action. He argues that such evidence was admissible to show the witness was biased because of an expectation of leniency. The context in which this issue arose was on motion of the State prior to the beginning of trial. The prosecutor sought to preclude defendant from examining Curpier, who was 14 years of age, about prior arrests resulting in station adjustments without court action. It was acknowledged by the State that Curpier could be examined about two juvenile cases in which court adjudications and supervision had resulted. Subsequently, at trial, the two juvenile adjudications for which he was on supervision, which included the theft from the McGregor home, were extensively inquired into by the defendant, especially as it related to any possible “deal” with the State and any expectation of leniency. As to the other arrests and station adjustments, the record only reveals generally that there were several in 1981, and several in 1982 close to the date of the residential burglary on January 1, 1983, none of which resulted in court action or any supervision, just that the minor was “talked to.” Apparently the trial court denied admission of this evidence because it was not the equivalent of a conviction of guilty.

We would agree with the defendant that the trial court appeared to bar these prior arrests and station adjustments of the witness on the basis that they did not result in the equivalent of adult convictions. Under the facts here, any impeachment of the witness’ general credibility based on these past unadjudicated delinquencies would be improper. (See Ill. Rev. Stat. 1981, ch. 37, par. 702 — 9; People v. Harrell (1983), 112 Ill. App. 3d 241, 445 N.E.2d 496.) However, defendant maintains that this evidence was admissible as impeachment to show motive, bias, or interest which is not directed at discrediting the witness by showing that he has been charged with a crime, but its purpose is to demonstrate the testimony is biased because of an expectation of leniency. (See People v. Foley (1982), 109 Ill. App. 3d 1010, 441 N.E.2d 655; People v. Kellas (1979), 72 Ill. App. 3d 445, 389 N.E.2d 1382.) While the trial court did not directly address this argument, we do so, and we may affirm the trial court when correct for any reason appearing in the record and even though its decision may be based on improper reasoning. People v. Sylvester (1980), 86 Ill. App. 3d 186, 193, 407 N.E.2d 1002.

The confrontation clause of the sixth amendment of the United States Constitution (U.S. Const., amend. VI) guarantees the defendant the right to cross-examine a witness against him for, among other reasons, the purpose of showing the witness’ bias, interest or motive to testify falsely. (Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105.) Although the scope of cross-examination is generally within the trial court’s discretion (People v. Barr (1972), 51 Ill. 2d 50, 51-52, 280 N.E.2d 708), the widest latitude should be afforded a defendant to show bias and to develop matters that would reasonably show the bias, motive or willingness of the State’s witnesses to testify. (People v. Wilkerson (1981), 87 Ill. 2d 151, 156, 429 N.E.2d 526.) This is especially true where the witness is an accomplice, and the fact that the witness is a minor does not operate to restrict the permissible scope of cross-examination necessary to develop any matters which tend to impeach his fairness or impartiality. (People v. Norwood (1973), 54 Ill. 2d 253, 296 N.E.2d 852.) It has been held that this type of impeachment is not dependent on whether defense counsel can prove beforehand that promises of lenience had been made or any expectations of special favor existed in the witness’ mind. People v. Foley (1982), 109 Ill. App. 3d 1010, 1015, 441 N.E.2d 655.

The question before us here is whether evidence of juvenile arrests and station adjustments of a witness not resulting in supervision, occurring prior, although some were close in time, to the commission of the offense and trial of the defendant should have been admissible for the purpose of offering a motive for the witness to testify falsely. Defendant maintains such evidence barred him from showing that the witness’ testimony was influenced by an expectation that his testimony would be helpful in keeping these prior arrests from requiring court action. In determining this question we must operate from the facts in the record before us.

The juvenile witness was neither on any supervision or probation resulting from these station adjustments (See Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105), nor were any proceedings pending arising out of these arrests (see People v. Wilkerson (1981), 87 Ill. 2d 151, 429 N.E.2d 526). The trial court did allow evidence of Curpier’s admission in juvenile court proceedings to theft and dismissal of other allegations in the McGregor break-in, and his admission to another unrelated offense, for which he was under supervision at the time he testified. However, we believe that under the circumstances here where the juvenile witness was arrested for several offense and “talked to” as part of a station adjustment procedure without any formal proceedings or supervision resulting therefrom, all occurring prior to the date of defendant’s alleged crime and trial, the evidence sought to be introduced to show bias, interest or motive was too remote, uncertain, and speculative to be admissible for impeachment purposes. Defendant must at least present direct evidence, rather than uncertain or remote evidence, that such bias exists. People v. Richard (1980), 90 Ill. App. 3d 322, 330-31, 413 N.E.2d 5.

While defendant speculates in his appellate brief that the witness’ testimony might have been influenced by an expectation that his testimony would be helpful in keeping these arrests from “requiring court action,” there was no evidence offered below by defendant that the witness could be subject to juvenile proceedings after a station adjustment is made. The record does not disclose what procedures are used in McHenry County in station adjustments as they may pertain to any informal agreement with the prosecutor to forego permanently any commencement of proceedings under the Juvenile Court Act. Nor does the record indicate the nature of these arrests which could, for example, be for such typically juvenile-related violations as curfew or truancy. Under all the circumstances here, we find no error in the trial court’s limitation of cross-examination.

The second issue raised in this case is whether certain of the trial court’s comments, characterized by defendant as frequent and unnecessary, were disparaging toward his counsel so as to deprive defendant of a fair trial. In his appellate brief defendant sets out some 14 instances in the record which he asserts illustrate the trial court’s demeaning attitude toward his trial counsel. Generally, the complained-of comments made in the presence of the jury relate to cautioning defendant’s counsel not to interrupt either a witness, the prosecutor or the court, and advising counsel he was being repetitious, inquiring into improper evidence, or untimely in an objection. Two remarks of the court appear to be made in a humorous vein and are in response to defense counsel’s prior comment or questions. We need not reproduce all these complained-of comments. Nonetheless, we have thoroughly reviewed them all in the context in which they appear in this trial.

Every defendant, regardless of the nature of the proof against him or her, is entitled to a trial that is free from improper and prejudicial comments on the part of the trial judge. (People v. Heidorn (1983), 114 Ill. App. 3d 933, 936, 449 N.E.2d 568.) Jurors are quick to perceive any leaning of the judge and place great reliance upon what he says and does, so that his statements and intimations are liable to have the force of evidence and be most damaging to an accused. (People v. Lewerenz (1962), 24 Ill. 2d 295, 301, 181 N.E.2d 99.) Hostile conduct by the court toward an accused’s counsel is a factor which may well tend to influence a jury to the prejudice of an accused. People v. Marino (1953), 414 Ill. 445, 451, 111 N.E.2d 534.

It does appear in this record that defendant’s counsel did frequently interrupt the court, a witness, and the prosecutor. Counsel was cautioned about this once at some length outside the presence of the jury, and also admonished on numerous other occasions during the course of the trial. It also appears that defense counsel had a habit of interrupting, and the admonitions of the court in response were not unduly harsh. Under these circumstances, we find no error. Other complained-of comments of the trial judge were directed to instances where defense counsel asked repetitious or improper questions and was cautioned, for example, as follows: “Let’s go on to another question, Sir”; “[S]ir, let’ keep it within the proper bounds”; and “[Y]ou are repeating yourself. Let’s not do that.” Again, in the context in which these comments were made, they were neither prejudicial to defendant nor demeaning to defense counsel. We also observe that on several occasions the trial court cautioned the prosecutor when she exceeded the bounds of proper questioning.

Defendant also maintains that in two instances the trial judge, by attempting to turn defense counsel’s statements into the object of judicial humor, imparted to the jury the message that defense counsel should not be taken too'seriously. When defense counsel asked permission to approach the court reporter to have an exhibit marked, the trial court responded:

“THE COURT: You will be granted permission to approach from now to the end of this trial.
MR. MECZYK: Thank you, Judge.
THE COURT: And thereafter if she permits.
MR. MECZYK: Thank you.”

The other complained of comment occurred just before defense counsel called his last witness, and stated, “It will be very brief, Judge.” The court remarked, “Are you promising, Sir?”

Attempts at judicial humor by a judge during a trial are ill-advised and inappropriate to the performance of judicial duties. (People v. Bernatowicz (1952), 413 Ill. 181, 188, 108 N.E.2d 479.) As stated, in pertinent part, in the ABA Standards, Function of the Trial Judge sec. 6.4 (1972), “[t]he trial judge should be the exemplar of dignity and impartiality. He should exercise restraint over his conduct and utterances. He should suppress his personal predilections, and control his temper and emotions.” Similarly, Supreme Court Rule 61 (87 Ill. 2d R. 61) is instructive on the proper conduct of a judge. Here, we conclude the above-quoted comments of the trial judge were improper, but were fairly innocuous and not of such a nature to be prejudicial so as to deny defendant a fair trial.

One last instance of alleged improper judicial conduct occurred when the judge responded during cross-examination of the State’s witness, Dan Veenendaal, “He [Yeenendaal] said close to midnight, and ten o’clock could be close to midnight.” It is contended by defendant that the court expressed its opinion on the facts. We believe this comment by the court was improper as it tended to indicate an opinion on the witness’ testimony. Nevertheless, in the context in which the comment was made there is nothing particularly damaging to the defendant. Even where the court’s method of ruling on an objection does indicate an opinion as to the validity of a party’s position, the context of the judge’s remark may be such that there is no prejudice. (People v. Heidorn (1983), 114 Ill. App. 3d 933, 938, 449 N.E.2d 568.) We also feel compelled to point out that apparently trial counsel did not feel the judge’s comments throughout the trial were disparaging to him since he made no such contention in the post-trial motion for a new trial. Any error in the court’s remarks did not deprive defendant of a fair trial.

The last contention of error in the residential burglary case is that certain Newport-brand cigarette butts found in the McGregor home by Mr. McGregor were improperly admitted into evidence because the foundation for that evidence was McGregor’s hearsay statement that he found them. McGregor did not testify. Detective Pandre did testify that he had asked McGregor to check the home for things that did not belong to him, and McGregor pointed out some items the next day. An objection to this testimony was withdrawn. Later the court struck testimony of what McGregor said he found. Pandre then stated that he recovered two cigarette butts at the McGregor home. However, defense counsel himself later elicited on cross-examination evidence that McGregor turned over to Pandre the cigarette butts. If an accused procures, invites or acquiesces in the admission of evidence, even though it may be improper, he cannot then complain on appeal. (People v. Payne (1983), 98 Ill. 2d 45, 49-51, 456 N.E.2d 44; People v. Burage (1961), 23 Ill. 2d 280, 282-83, 178 N.E.2d 389; People v. Harris (1982), 104 Ill. App. 3d 833, 839, 433 N.E.2d 343; People v. Patterson (1980), 90 Ill. App. 3d 775, 783-84, 413 N.E.2d 1371. Furthermore, the State’s evidence also established through Veenendaal that defendant had smoked Newport cigarettes that evening, and through Detective Pandre that defendant orally admitted to him that the cigarette butts found in the McGregor home were his. For these reasons, we find no error in admission of this evidence.

Accordingly, the judgment of conviction for residential burglary is affirmed.

We turn now to defendant’s other case on appeal which stems from the revocation of his probation for the offense of unlawful delivery of a controlled substance which resulted in a 40-month sentence of imprisonment to be served consecutively with the four-year term of imprisonment for residential burglary. Defendant alleges error in the imposition of the consecutive sentence where, he contends, the trial court found defendant was unlikely to commit another crime.

“The court shall not impose a consecutive sentence unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—4(b).) Although it is the better practice for the trial court to state the opinion that a consecutive term is necessary for the protection of the public, failure to do so does not necessarily require reversal. (People v. Pittman (1982), 93 Ill. 2d 169, 177-78, 442 N.E.2d 836.) “What is required is that the record show that the sentencing court is of the opinion that a consecutive term is necessary for the protection of the public.” 93 Ill. 2d 169, 178, 442 N.E.2d 836.

In the case at bar, the trial judge in pronouncing his reasons for the sentence specifically found that “defendant’s conduct was a result of circumstances unlikely to recur” and “defendant’s character and attitude indicate he is unlikely to commit another crime.” Nevertheless, the court went on to find certain other factors in aggravation of the sentence and imposed a consecutive sentence. When requested by defendant’s counsel to reconsider the consecutive sentence, the court responded that it had considered making it concurrent, but did not because delivery of a controlled substance was a serious crime and “involves other persons.”

We agree with the defendant that the express findings of the trial judge here are incompatible with the statutory requirement that the court be of the opinion that a consecutive sentence is necessary to protect the public from further criminal conduct by the defendant. Although the State argues that the court’s statements were intended only to mean that defendant was unlikely to participate in another drug sale with Daniel Veenendaal, such a connotation is clearly not evident from the trial judge’s express findings. Instead, it appears that the trial court believed the delivery of a controlled substance to be a serious crime for which a lengthy sentence was necessary. This may be a justification for a sentence greater than the minimum, but cannot be the basis for a consecutive sentence under the circumstances here where the trial judge specifically found defendant was unlikely to commit another crime and his conduct a result of circumstances unlikely to recur. We therefore vacate the consecutive sentence.

Defendant had advanced a second argument for vacation of the sentence, contending it was grossly disparate with that of his co-defendant, Veenendaal, whose probation was revoked but no sentence entered. At oral argument defendant’s appellate counsel appeared to concede that this argument would not be valid if the consecutive sentence were vacated on the other basis argued above. Furthermore, the record does indicate that the disparity between the sentences was warranted by differences in the extent of the defendants’ participation in the delivery of a controlled substance (See People v. Godinez (1982), 91 Ill. 2d 47, 55-56, 434 N.E.2d 1121), and in view of Veenendaal’s negotiated plea to the residential burglary offense and probation violation and his cooperation in testifying for the State against defendant. (See People v. Bergman (1984), 121 Ill. App. 3d 100, 105-07, 458 N.E.2d 1370.) Accordingly, we modify the consecutive sentence to a concurrent sentence of 40-months’ imprisonment. People v. Griffin (1982), 113 Ill. App. 3d 184, 194, 446 N.E.2d 1175.

For the foregoing reasons, the judgment of conviction for residential burglary is affirmed, and the judgment of conviction for unlawful delivery of a controlled substance is affirmed as modified.

No. 83 — 685; affirmed.

No. 83 — 805; affirmed as modified.

VAN DEUSEN and HOPF, JJ., concur.