author: JUSTICE SULLIVAN

text:
    LUCZAK BROTHERS, INC., Plaintiff-Appellee, v. TASKER GENERES et al., Defendants-Appellants—(Scarlet Glow Engineering, Plaintiff-Appellee and Cross-Appellant).
    First District (5th Division)
    No. 82—1838
    Opinion filed June 3, 1983.
    Rehearing denied August 1, 1983.

      Richard H. Kane, of Chicago, for appellants.
    Demling & Eckhardt, of Glen Ellyn (John W. Demling, of counsel), for appellee Scarlet Glow Engineering.
    Fox and Grove, Chartered, of Chicago (Russell M. Kofoed and Steven P. Cohn, of counsel), for appellee Luczak Brothers, Inc.
   JUSTICE SULLIVAN

delivered the opinion of the court:

This appeal is from judgments for plaintiffs Luczak Brothers, Inc. (Luczak), and Scarlet Glow Engineering Company (Scarlet Glow) on their counterclaims for foreclosure of mechanics’ liens. Defendants Tasker and Dorothy Generes (Generes) contend that (1) the trial court erred as a matter of law in finding (a) that the counterclaims were not barred either by notice of waiver of lien provisions contained in the general contract or by the subcontracts of Luczak and Scarlet Glow and (b) that Luczak’s counterclaim was not barred by its tender of a final waiver of lien; and (2) the court’s finding that Luczak and Scarlet Glow substantially performed their subcontracts is against the manifest weight of the evidence. Scarlet Glow cross-appeals from those portions of the orders which limit the amount of its lien to $2,380 and find that it failed to prove its claim for conversion against Paul H. Bach, president of Structon Corporation (Structon).

On January 31, 1978, Structon and Generes entered into a general contract which provided that Structon would build a single-family residence in Northbrook, Illinois, on property owned by Generes. That document consisted of nine pages, the first three of which were recorded with the recorder of deeds of Cook County on April 3, 1978. Among the recorded provisions was a paragraph which incorporated by reference the American Institute of Architects Document A — 201 General Conditions (the AIA document), which provides in pertinent part:

“5.3.1 All work performed for the Contractor by a Subcontractor shall be pursuant to an appropriate agreement between the Contractor and the Subcontractor *** which shall contain provisions that:
1. preserve and protect the rights of the Owner and the Architect under the Contract with respect to the Work to be performed under the subcontract so that the subcontracting thereof will not prejudice such rights;
2. require that such Work be performed in accordance with the requirements of the Contract Documents;
* * *
4. obligate each Subcontractor specifically to consent to the provisions of this Paragraph 5.3.
* * *
9.3.3 The Contractor warrants and guarantees that title to all Work, materials and equipment covered by an Application for Payment, whether incorporated in the Project or not, will pass to the Owner upon the receipt of such payment by the Contractor, free and clear of all liens, claims, security interests or encumbrances, hereinafter referred to in this Article 9 as ‘liens’; and that no Work, materials or equipment covered by an Application for Payment will have been acquired by the Contractor; or by any other person performing the Work at the site or furnishing materials and equipment for the Project, subject to an agreement under which an interest therein or an encumbrance thereon is retained by the seller or otherwise imposed by the Contractor or such other person.”

The unrecorded portion of the general contract was amended on April 16,1978, to add the following provisions:

“3. Additional Terms
* * *
(d) Seller agrees that the building shall be completed free and clear of all mechanics’ and materialmen’s liens.
(e) The general contractor and all subcontractors and materialmen hereby waive all mechanics’ liens and materialmen’s liens.
(f) STRUCTON CORPORATION will hold purchaser harmless against all mechanics’ liens and mechanic’s lien litigation.”

The entire general contract, including amendments, was recorded on March 23,1979.

Structon entered into a subcontract with Luczak on August 23, 1978, for the installation of galvanized metal lathing and the application of Air Entraining Portland Cement stucco on the exterior walls of the residence. Luczak was to be paid $6,900 for the work, which was completed on October 7, 1978, but it has received only $3,000. A subcontract for heating, air-conditioning, and ventilating work was executed by Structon and Scarlet Glow on June 21, 1978. Scarlet Glow provided labor and materials in the value of $4,500 before it was instructed by Structon to cease work on the project because Generes refused to make any further payments. Scarlet Glow received no payment. Each of the subcontracts provided that it would “conform to” the AIA document, but no copy thereof was attached.

The general contract provided for progress payments to be made by Generes in the following amounts: $29,000 upon completion of the first floor; $23,000 upon completion of the second floor; $26,000 upon completion of the roof sheething; $28,000 upon inspection approval of the village of Northbrook; and $27,500 upon receipt of a village occupancy certificate. However, the contract further provided that no payments would be made unless Generes received Structon’s sworn statement of the amounts paid and to be paid to subcontractors and waivers of lien from the contractor and subcontractors for the work completed. Generes made the first three payments upon receipt of contractor’s statements dated June 23, June 28, and June 29, 1978. Although the payments were made in the amounts requested in the statements which complied with the scheduled progress payments in the contract, no waivers of lien were received from Luczak and Scarlet Glow. Generes received a fourth contractor’s statement on February 7, 1979, but refused to make further payments because no lien waivers in conformity with the contractor’s statements were provided. Generes terminated the general contract on April 5, 1979, before the residence was completed, and Structon brought suit to foreclose a mechanics’ lien against the property in question, naming as defendants Generes and various lien creditors, among them Luczak and Scarlet Glow. Luczak then counterclaimed for the foreclosure of a mechanics’ lien and for breach of contract against Structon. Scarlet Glow also counterclaimed, seeking foreclosure of a mechanics’ lien, breach of contract damages against Structon, and damages for conversion against Paul H. Bach, president of Structon. This appeal is concerned solely with the trial of the two counterclaims.

Luczak’s Claim

Norbert Paprocki, a foreman employed by Luczak, testified that he worked on the subject property periodically from July to October of 1978. He was instructed by his employers to install metal laths and stucco to a thickness of three-quarters of an inch or more to the exterior of the building. The pattern of the stucco was to conform to that used in the model home and, since he had applied the stucco on the model, he instructed the employees working on the Generes residence how to do it. A short time later, while the men were still working, he (Paprocki) learned that Generes was not satisfied with the pattern of the stucco, complaining that the texture was too heavy. He told his men to change the pattern, and later learned that Generes accepted it although it was slightly different from the model. When completed, the stucco was between seven-eighths and one inch thick and the pattern was somewhat rougher than that in the model home.

James Luczak, secretary-treasurer of Luczak, testified that Paul Bach, president of Structon, provided the plans and specifications for the work, which were the same as for the model home, and the work done by Luczak on the Generes residence was in conformity therewith. The pattern used on the stucco had a minimum thickness of three-quarters of an inch, and when texture was added the total thickness would be seven-eighths to one inch. Air Entraining Portland Cement was ordered and used in performing the work. An invoice was sent to Structon in the amount of $6,900, but only $3,000 was received in payment. He (Luczak) was never informed that the general contract contained a waiver of lien provision and was not shown a copy of that document, nor did he ask to see it. He never read the AIA document, although he was aware that his contract had to conform thereto. There is no substantial difference between three-quarters of an inch of stucco and seven-eighths of an inch, and no complaints were received about the work done.

Paul Bach, called as an adverse witness, testified that the general contract called for three-quarters of an inch of Air Entraining Portland Cement, and he knew that was used because he saw it on the jobsite and observed Luczak’s men applying it. Generes did complain about the stucco work, but to his (Bach’s) knowledge, the problem was corrected and the stucco work on the Generes residence was equal to or better than that on the model home. After the work was completed, Generes stated in a letter that he was dissatisfied with the stucco finish because it was not exactly the same as the model. The three contractor’s statements for which payment was received showed a contract with Luczak for $8,000 which had not been paid. The fourth statement, for which no payment was received, stated that Luczak was paid $6,900 for the work completed, although Luczak in fact was not paid until April 12, 1979, and then received only $3,000 of the money due. The subcontractors did not receive copies of the general contract and were not told of the waiver provisions therein. Although the subcontracts refer to the AIA document, he (Bach) did not know it contained a waiver of lien provision and did not discuss any of its provisions with the subcontractors. Generes, who is an attorney, wrote the general contract.

Tasker Generes, called as an adverse witness, testified that according to the general contract, construction of the residence was to conform to the plans and specifications for the model home, to the FHA minimum standards for multifamily housing, and to the building code of the village of Northbrook. The specifications call for three-quarters of an inch of stucco, but the FHA standard calls for seven-eighths of an inch. He (Generes) measured the stucco in two places approximately 21!z years after the work was completed and found that it was only one-half inch thick. No measurements of the stucco were taken during construction of the residence. There is a difference in the pattern of the stucco on his residence and that on the model home, but he said that opinions could differ as to whether the difference was great or small. He had taken no steps to correct the alleged defects and did not have any idea of the cost to do so.

Irving M. Addis, an architect, testified that he was retained by Generes to examine the structure and mechanical equipment in the residence and compare them to the drawings and specifications prepared by Bach. He inspected the residence in May of 1979 and noted that the pattern of stucco was not uniform around the building. He measured the stucco at one point near the chimney in December 1981 and found it to be one-half inch thick. Extremes of weather would not affect the thickness of stucco over a three-year period. The building code of Northbrook requires a one-inch thickness of stucco.

Generes testified on his own behalf that he read the AIA document, discussed it with Bach, and modified it before incorporating it into the general contract. While the stucco was being applied, he noticed that the pattern was different from the model home, but when he complained he was told the pattern could not be changed and he would have to accept it. Later, the workmen did modify the pattern, and there are now three different patterns on the front of the residence and four or five different patterns on the back. On each of the first three contractor’s statements, he noted that $8,000 was due on a contract with Luczak, but nothing had been paid. The fourth statement showed that Luczak was paid $6,900 and he also saw a final lien waiver executed by Luczak. He acknowledged that he did not pay any money when the Luczak waiver was shown to him, and that he received an occupancy permit from the village of Northbrook.

Scarlet Glow’s Claim

Edward McCracken, a sheet metal work foreman for Scarlet Glow, testified that he worked on the Generes residence at various times between June 30, 1978, and January 3, 1979. As of the latter date, the work was 85 to 90% completed. Duct work was completed for the heating and the bath and kitchen exhaust systems, and the gas flume and smoke pipe were installed, as were a Lenox 165,000 BTUH furnace, an Aprilaire humidifier, and an electronic air cleaner. An air-conditioning unit, thermostat, and registers were delivered to the general contractor’s office but were not installed in the residence by Scarlet Glow. Scarlet Glow did not install the laundry chute or provide gutters and flashings. He received no complaints about the work that was done.

Robert Rieder, comptroller of Scarlet Glow, testified that it provided approximately $4,500 in labor and materials during work on the Generes residence but had not received any payment. All materials required by the contract were delivered to the jobsite, the last delivery being made on February 8, 1979. Scarlet Glow ceased working after receiving a letter from Structon instructing it to do so because Generes had not made the required payments.

Bach, again called as an adverse witness, testified that Generes insisted that an express waiver of lien provision be added to the general contract, but assured him (Bach) that if a dispute arose over the contract, he could still file a lien. Subcontractors were not given notice of these added provisions. Scarlet Glow delivered a thermostat, an air-conditioning unit, and registers to his office, and these items were installed in the Generes residence. He (Bach) initiated termination of the contract when Generes refused to make the fourth payment. Subcontractors were instructed to cease working on the Generes residence in February or March of 1979. Generes insisted on receiving contractor’s statements, and they were prepared to account for the sums due under the progress payment schedule set forth in the general contract. Some of the statements in the affidavit with regard to contract amounts, work completed, material dollar value, amounts previously paid, and net amounts due were false. The affidavits were prepared by his (Bach’s) secretary, then signed by him and given to Generes. The checks received from Generes were deposited in Structon’s general account, and no payments were made to Scarlet Glow because it had not yet done the work, although the statement indicated otherwise. There were no deficiencies in the work performed by Scarlet Glow, and the only complaint received from Generes was that the furnace was installed later than scheduled.

Generes testified as an adverse witness that he was to make progress payments to Structon after receiving a contractor’s statement and waivers of lien from the contractor and subcontractors for the work completed. The second contractor’s statement indicated that $3,000 was due Scarlet Glow, and when he paid Structon he intended that part of the money be used to pay Scarlet Glow, although he did not withhold $3,000 or receive a waiver of lien. The third statement showed that Scarlet Glow had completed $4,500 of the work, that $3,000 had been paid, and that $2,300 was due on work yet to be completed. The fourth statement indicated that Scarlet Glow had not been paid at all. He (Generes) terminated the general contract on April 5, 1979, and Scarlet Glow had not completed its work. As originally written, the contract contained a payment schedule, but that was eliminated when the contract was modified. He (Generes) prepared the general contract with the help of another attorney.

Addis testified that, pursuant to his agreement with Generes, he inspected the work done by Scarlet Glow. On December 19, 1981, he looked at the furnace, duct work, and openings. The ducts got cooler to the touch the farther he got from the furnace, which indicated a design deficiency resulting in insufficient air movement.

Generes testified on his own behalf that when he inspected the residence on April 10, 1979, the air-conditioner, humidifier, range exhaust duct work, dryer vent, thermostat, registers, and the internal mechanism of the electronic air cleaner had not been installed. He called Scarlet Glow and asked them to come back to finish the work, but they refused to do so unless paid the $4,500 due. He (Generes) thought that was too much for the small amount of work done, and engaged other contractors to complete the work. On December 19, 1981, he tested the system by setting the thermostat at 70 degrees and placing thermometers in various rooms. Temperatures ranged from 58 to 80 degrees. He acknowledged that he did not know whether the system was ever balanced; that he did not withhold money from his payments to Structon to cover the payments due subcontractors; that the general contract had a payment schedule, and that schedule was followed; that other contractors had worked on the heating system since it was installed; and that a different" contractor installed the air-conditioner, but he never complained to that contractor about problems with cooling since he just assumed that the problems were caused by Scarlet Glow’s duct work.

The trial court found that the provision in the subcontracts requiring Luczak and Scarlet Glow to “conform to” the AIA document was not the type of notice contemplated by section 21 of the Mechanics’ Liens Act (Ill. Rev. Stat. 1979, ch. 82, par. 21); and that paragraph 9.3.3 of the AIA document was not a waiver of the subcontractor’s liens. With regard to Luczak’s counterclaim, it found that Generes did not rely on the final lien waiver executed by Luczak; and that Luczak had substantially performed its contract and was entitled to a mechanics’ lien in the amount of $3,900 and a judgment against Structon in the amount of $3,900 for breach of contract. With regard to Scarlet Glow’s counterclaim, the court found that it was entitled to a mechanics’ lien in the amount of $2,380, a lien of $4,500 against any funds found to be due Structon from Generes, and a judgment in the amount of $4,500 against Structon for breach of contract. It further found that Scarlet Glow had not met its burden of proving that Bach had converted funds belonging to it. Generes’ post-trial motion was denied, and this appeal followed.

Opinion

Generes first maintains that the trial court erred in ruling that Luczak and Scarlet Glow did not waive their rights to a mechanics’ lien against the property in question. His contention is based on two distinct arguments: (1) that references to the AIA document in both the general contract and the subcontracts were sufficient to constitute notice of the express waiver of lien provisions contained in the general contract as required by section 21 of the Mechanics’ Liens Act; and (2) that the AIA document incorporated by reference into the subcontracts expressly waives the subcontractors’ lien rights.

Turning to Generes’ initial argument, we note that section 21 provides that “[i]f the legal effect of any contract between the owner and contractor is that no lien or claim may be filed or maintained by any one, such provision shall be binding” on the subcontractor, but only if one of two notice conditions is met. (Ill. Rev. Stat. 1979, ch. 82, par. 21.) Either the subcontractor must have actual notice of the waiver before he furnishes any labor or material, or the contract between the owner and the general contractor must be recorded within the statutorily prescribed time period. (Ill. Rev. Stat. 1979, ch. 82, par. 21.) Generes concedes that the amended general contract, which contained an express waiver of liens by both the contractor and all subcontractors, was not filed in compliance with section 21. However, he maintains that the timely recordation of the first three pages of the general contract, which incorporated the AIA document, gave notice of the waiver provisions contained in paragraph 9.3.3 thereof. He further argues that the AIA document incorporated by reference in the subcontracts of Luczak and Scarlet Glow required them to read the general contract in its entirety, and thus constituted actual notice of the express waiver provision contained therein.

Generes’ first argument assumes that the legal effect of paragraph 9.3.3 of the AIA document is that no lien may be filed or main-tamed by anyone, since that is the only type of provision which will satisfy the requirements of section 21 of the Mechanics’ Liens Act. Therefore, we must ascertain the intention of the parties (Chemical Petroleum Exchange, Inc. v. Metropolitan Sanitary District (1980), 81 Ill. App. 3d 1005, 401 N.E.2d 1203) by looking first to the language of their agreement (Crane v. Mulliken (1980), 86 Ill. App. 3d 1076, 408 N.E.2d 778) and giving the words used therein their ordinary, natural meaning (Barnes v. Rakow (1979), 78 Ill. App. 3d 404, 396 N.E.2d 1168). Any doubts or ambiguities raised by that language will be resolved against the drafter (Epstein v. Yoder (1979), 72 Ill. App. 3d 966, 391 N.E.2d 432) and against a finding of waiver (Edward Hines Lumber Co. v. Dell Corp. (1977), 49 Ill. App. 3d 873, 364 N.E.2d 368), since “it should be presumed, in the absence of clear evidence to the contrary, that one has not disabled himself from the use of so valuable a privilege as that given by statute for the enforcement of builder’s rights” (Burgoyne v. Pyle (1931), 261 Ill. App. 356, 369).

Under the plain language of paragraph 9.3.3 of the agreement, which was drafted by Generes, Structon made two promises. First, it warranted that the property would pass to Generes free of any liens when it (Structon) received payment. In effect, it is a guarantee that all subcontractors and materialmen would be paid if Structon were paid. Thus, the language does not even waive Structon’s right to a mechanics’ lien in the event of nonpayment, and merely provides Generes with a remedy against Structon should one of the subcontractors assert a lien after Structon had been paid in full. Second, Structon warranted that none of the labor or material used in construction would be acquired by anyone “subject to an agreement under which an interest therein or an encumbrance thereon is retained by the seller or otherwise imposed by the Contractor or any other person performing work at the site.” Generes, here, used the words “subject to an agreement” rather than “subject to a lien.” It appears that this language was used deliberately and does not include liens, since paragraph 9.3.3 provides that the word “lien” shall include all liens, claims, security interests or encumbrances. Having included this broad definition for “lien,” Generes nevertheless chose to use the word “agreement”; therefore, we must give that word its ordinary meaning and will not read it as including liens. The reference, then, is to security agreements alone and is inapplicable to mechanics’ liens, since they do not arise by agreement but by statutory grant. Moreover, the language employed merely gives Generes a right of action against Structon should it breach its warranty, with no waiver of the rights of third parties to assert their claims. We do not believe that the legal effect of this provision is, as Generes maintains, that “no lien or claim may be filed by any one.” Thus, any notice Luczak and Scarlet Glow might have had thereof is immaterial, since section 21 of the Mechanics’ Liens Act is inapplicable.

Generes also argues that the AIA document incorporated in the subcontracts by reference requires the subcontractors to read the general contract in its entirety, including the express waiver of lien provisions added before the subcontracts were executed. In effect, he contends that they had “actual notice” as opposed to recorded notice of these provisions. Luczak and Scarlet Glow posit that since they never saw or read the AIA document, they had no notice of its provisions. Their position is untenable, however, since they have not contested the trial court’s ruling that the subcontracts incorporate the AIA document by reference. Once that point is conceded, Luczak and Scarlet Glow may not avoid the terms of their agreement by an assertion that they neglected to read the provisions thereof. (See Leon v. Max E. Miller & Sons, Inc. (1974), 23 Ill. App. 3d 694, 699, 320 N.E.2d 256, 260.) Therefore, we must determine whether the terms of the AIA document constitute actual notice of the express waiver contained in the general contract.

Actual notice is “such notice as is positively proved to have been given to a party directly and personally, or such as he is presumed to have received personally because the evidence within his knowledge was sufficient to put him upon inquiry.” (Black’s Law Dictionary 957 (5th ed. 1979).) Generes relies on the latter definition when he reasons that since paragraph 5.3 of the AIA document requires that the subcontractors’ work “be performed in accordance with the requirements of the Contract Documents,” they had to read the general contract to discover those requirements and, had they done so, they incidentally would have seen the waiver provisions. We agree with the trial court’s ruling that this is not the type of notice contemplated by section 21 of the Mechanics’ Liens Act. Under paragraph 5.3, the subcontractor need only concern himself with those portions of the general contract directly relating to work performance; that is, the plans and specifications with regard to the work subcontracted. Such knowledge did not require a reading of the entire general contract, or even a portion thereof; since, at least in the instant case, the plans and specifications were provided to the subcontractors by Structon and the specific work requirements were set forth in detail in each subcontract. If Generes wished to bind the subcontractors to the express waiver contained in the general contract, he could have done so quite easily by recording the entire document as provided in section 21. Having failed to do so, he cannot now impose upon the subcontractors some generalized duty to discover those provisions.

Generes also argues that paragraph 9.3.3 of the AIA document, incorporated by reference in the subcontracts, is an express waiver by Luczak and Scarlet Glow of their lien rights. However, as we noted earlier, that paragraph is in the nature of a warranty by Structon, not a waiver of lien. It is clear from the definitions of contractor and subcontractor contained in paragraphs 4.1.1 and 5.1.1 of the AIA document respectively, that these warranties were not made by Luczak or Scarlet Glow. Paragraph 4.1.1 defines contractor as “the person or organization identified as such in the Agreement ***”; while subcontractor is separately defined at paragraph 5.1.1 as “a person or organization who has a direct contract with the Contractor to perform any of the Work at the site.” The subcontracts executed by Luczak and Scarlet Glow identify Structon as the contractor. Furthermore, that portion of paragraph 9.3.3 which Generes asserts constitutes a waiver; i.e., the warranty that no labor or materials provided shall be subject to a security agreement, is inapplicable to statutorily created liens. For these reasons, we believe that the trial court did not err in finding that Luczak and Scarlet Glow did not waive their rights to mechanics’ liens.

Generes next contends that, as a matter of law, Luczak’s delivery of a final lien waiver to Structon constitutes an absolute bar to its action for a mechanics’ lien. He correctly notes that a clear, unambiguous waiver of lien rights bars an action under the Mechanics’ Liens Act (William Aupperle & Sons, Inc. v. American National Bank & Trust Co. (1975), 28 Ill. App. 3d 573, 329 N.E.2d 458) regardless of whether adequate consideration was received therefor (Capitol Plumbing & Heating Supply Co. v. Snyder (1969), 104 Ill. App. 2d 431, 244 N.E.2d 856); however, this rule is applicable only where an innocent party has relied upon that waiver in making payments to the general contractor (compare Contract Builders Service Corp. v. Eland (1981), 101 Ill. App. 3d 366, 428 N.E.2d 178, with Edward Hines Lumber Co. v. Dell Corp. (1977), 49 Ill. App. 3d 873, 364 N.E.2d 368). Therefore, the question here is not whether tender of a final lien waiver bars recovery, but whether the lien waiver provided to Structon was delivered to Generes and relied upon by him in making payments. This is a question of fact, and we will not disturb the trial court’s finding thereon unless it is contrary to the manifest weight of the evidence. La Grange Metal Products v. Pettibone Mulliken Corp. (1982), 106 Ill. App. 3d 1046, 436 N.E.2d 645.

In the instant case, Generes initially contended in its briefs that delivery of the lien waiver to Bach, president of Structon, was sufficient because Bach was his agent. At oral argument, however, Generes conceded that no agency relationship existed. Furthermore, he does not dispute that while the lien waiver was shown to him by Bach in an attempt to obtain the fourth payment, it was not delivered to him (Generes) because he refused to pay, and that no payments were made subsequently to Structon in reliance thereon. Since these facts support the trial court’s conclusion that Generes did not rely on the final lien waiver in question, it is our view that its finding is not against the manifest weight of the evidence.

Finally, Generes contends that the trial court’s finding that Luczak and Scarlet Glow substantially performed their contracts is against the manifest weight of the evidence. With regard to Luczak’s counterclaim, he argues that its failure to conform the stucco pattern to that used in the model home, to use the type of cement required by the contract, and to comply with the one-inch thickness of stucco required by the Building Code of the village of Northbrook constituted a material breach of contract which barred any recovery.

A determination whether the provisions of a contract have been substantially performed depends on the particular facts of a given case (Joray Mason Contractors, Inc. v. Four J’s Construction Corp. (1978), 61 Ill. App. 3d 410, 378 N.E.2d 328), and the trial court’s findings thereon will not be disturbed unless contrary to the manifest weight of the evidence (Miller v. Racine Trust (1978), 65 Ill. App. 3d 207, 382 N.E.2d 41; George Butkovich & Sons, Inc. v. State Bank (1978), 62 Ill. App. 3d 810, 379 N.E.2d 837). Here, Generes himself conceded that opinions might differ as to whether the variation in pattern was great or small, while Paprocki and Bach testified that the patterns were only slightly different. Additionally, the only testimony with regard to the type of cement applied indicates that Luczak used Air Entraining Portland Cement as required by the contract. It appears that the standards incorporated in the contract contained conflicting provisions with regard to the thickness of stucco to be applied; the specifications required three-quarters of an inch, the FHA standard required seven-eighths of an inch, and the Building Code of the village of Northbrook required one inch. There was conflict in the testimony on the question of how thick the stucco actually was. Witnesses for Generes testified that it was one-half inch thick; while witnesses for Luczak testified that it was seven-eighths to one inch thick. The trial court found the latter more credible, and we will not disturb his finding thereon, since he was in a superior position to assess the credibility of these witnesses. (Agrinetics, Inc. v. Stob (1980), 90 Ill. App. 3d 107, 412 N.E.2d 714.) Generes argues that failure to comply with the Building Code by applying a full inch of stucco .bars recovery; however, even if the stucco were only seven-eighths of an inch thick, “[wjhere a slight violation of the law is involved by which the public interest is not harmed in a substantial way the breach of the contract will be overlooked, and recovery on the contract will be allowed.” (South Center Plumbing & Heating Supply Co. v. Charles (1967), 90 Ill. App. 2d 15, 18, 234 N.E.2d 358, 360.) Here, the uncontradicted testimony is that a one-eighth inch variation in the thickness of stucco is not substantial. There is no testimony with regard to how the public interest is harmed by this variation, nor even how Generes is harmed, since a village occupancy permit was issued despite the alleged failure to comply with the Building Code. Moreover, if in fact some breach occurred, whether or not substantial, the proper course would not be to bar the mechanics’ lien, but to allow Generes a setoff for damages caused by the alleged breach (see Dean v. Rutherford (1977), 49 Ill. App. 3d 768, 364 N.E.2d 625; Narowetz Heating & Ventilating Co. v. Solar Sales, Inc. (1967), 86 Ill. App. 2d 387, 230 N.E.2d 37); however, Generes made no claim therefor at trial and admitted that he had taken no steps to correct the alleged defects or even to ascertain the cost of such correction.

With regard to Scarlet Glow’s counterclaim, Generes argues that it is not entitled to a mechanics’ lien because (a) it abandoned the project before completion, (b) the portion of the work completed before abandonment was defective, and (c) materials Scarlet Glow claims to have provided were not in fact delivered. Turning to Generes’ first argument, we note that a contractor or subcontractor claiming a mechanics’ lien must show performance of the contract or an excuse for nonperformance, such as breach of the contract by the other party. (Miller v. Reed (1973), 13 Ill. App. 3d 1074, 302 N.E.2d 131.) In the latter case, under section 4 of the Mechanics’ Liens Act, the contractor is entitled to abandon the work and enforce a lien for the value of the work performed. (Ill. Rev. Stat. 1979, ch. 82, par. 4; see also Contract Builders Service Corp. v. Eland (1981), 101 Ill. App. 3d 366, 428 N.E.2d 178.) Here, Scarlet Glow showed, and Generes does not dispute, that Structon breached its subcontract with Scarlet Glow by failing to pay it for the work performed; but Generes asserts that he asked Scarlet Glow to return and complete the work after the general contract was terminated. However, Generes further testified that he refused Scarlet Glow’s request to cure the breach by paying the $4,500 due to it before it resumed work. Scarlet Glow would have been justified in assuming that it would never be fully compensated for the work and materials already provided, since Generes informed it that, in his opinion, the amount requested was “too much” for the work done, and he would not pay it. For these reasons, we do not believe that Scarlet Glow “willfully and intentionally abandoned the construction project,” as Generes maintains; rather, Structon breached the subcontract, and Generes’ demand that Scarlet Glow return to work without being paid for work already performed did not alter that fact. Therefore, Scarlet Glow was entitled to recover for the work actually performed pursuant to section 4 of the Mechanics’ Liens Act.

Generes next asserts that the work performed by Scarlet Glow was defective. There was conflicting testimony on this point, and we will not disturb the trial court’s determination of the credence to be accorded the witnesses or the weight to be given their testimony unless it is against the manifest weight of the evidence. (Schoenberger v. Chicago Transit Authority (1980), 84 Ill. App. 3d 1132, 405 N.E.2d 1076.) In the instant action, Generes testified to the wide variations in temperature in the residence, and Addis, called by Generes as an expert witness, testified that his examination of the duct work indicated a “design deficiency.” However, Generes admitted that other contractors had worked on the system in the three years since its installation; that he did not know if the system had ever been balanced; and that he did not complain to the contractors he engaged to complete the work about the problems because he “just assumed” they were caused by Scarlet Glow’s duct work. Furthermore, there is nothing in the record before us to indicate that Scarlet Glow’s work was not in accordance with the specifications or that it was responsible for the design of the system. The trial court resolved this factual question in Scarlet Glow’s favor, and we do not believe, based on the foregoing testimony, that its determination was against the manifest weight of the evidence.

Generes’ further contention that various items which Scarlet Glow claimed to have delivered for use in his residence were not in fact delivered is similarly without merit. Section 7 of the Mechanics’ Liens Act (Ill. Rev. Stat. 1979, ch. 82, par. 7) provides in relevant part:

“[N]or shall any such lien for material be defeated because of lack of proof that the material after the delivery thereof, actually entered into the construction of such building or improvement, although it be shown that such material was not actually used in the construction of such building or improvement; Provided, it is shown that such material was delivered either to the owner or his or her agent for that building or improvement, to be used in that building or improvement, or at the place where said building or improvement was being constructed, for the purpose of being used in construction ***.”

Thus, a subcontractor providing materials is entitled to assert a lien upon a showing that materials were delivered for the purpose of being used in construction, regardless of whether they were in fact so used, (Hinkle v. Creek (1969), 113 Ill. App. 2d 454, 251 N.E.2d 111.) Here, employees of Scarlet Glow testified that an air-conditioning unit, a thermostat, and registers were delivered to Structon’s office in the model home for installation in the Generes residence, and Bach confirmed that these items were so delivered. There is nothing in the record to refute this testimony, and Generes, in his briefs, admits that Structon was his agent for this purpose. Therefore, Scarlet Glow has met its burden of proof as set forth in section 7, and it is not defeated by Generes’ assertion that the items delivered were not in fact installed in his residence.

In its cross-appeal, Scarlet Glow first contends that the trial court erred in limiting its lien against the property in question to $2,380 rather than allowing the full amount of $4,500 found to be the value of the labor and materials actually provided. It argues that, under section 27 of the Mechanics’ Liens Act (Ill. Rev. Stat. 1979, ch. 82, par. 27), Generes was required to retain sufficient funds to pay the claims of subcontractors and that, having failed to do so, Generes is not entitled to receive any credit for the payments made to Structon.

It is established that an owner who relies on a contractor’s affidavit in making payments is protected as against subcontractors if he has no knowledge or notice of the falsity of any statements therein (Sanaghan v. Lawndale National Bank (1967), 90 Ill. App. 2d 254, 232 N.E.2d 546); but once an owner has notice of a subcontractor’s claim, he must retain sufficient funds to pay that claim, and he is not entitled to a credit for payments made in derrogation of the subcontractor’s rights, even if the general contractor has been paid in full (Brady Brick & Supply Co. v. Lotito (1976), 43 Ill. App. 3d 69, 356 N.E.2d 1126; Krack Corp. v. Sky Valley Foods, Inc. (1971), 133 Ill. App. 2d 469, 273 N.E.2d 202). Here, the contractor’s statements required by section 5 of the Mechanics’ Liens Act (Ill. Rev. Stat. 1979, ch. 82, par. 5) were provided and listed Scarlet Glow as a subcontractor in the amount of $6,850; thus, Generes had notice of Scarlet Glow’s claim. The second statement indicated that $3,000 was due, and a balance of $3,880 was to become due; the third statement listed a $3,000 payment to Scarlet Glow, with $1,500 then due and a balance of $2,380 to become due. Generes made the full payments requested on each of these statements. It is Scarlet Glow’s position that these payments were wrongful because Generes failed to retain any of the funds in question and he therefore should not be allowed any credit for the payment made. In effect, Scarlet Glow suggests that we disregard the fact that two more payments totaling $55,500 were yet to be made — funds more than sufficient to cover its claim — because the general contract was breached at a later date and Generes’ position at trial was that no additional funds were due anyone as a result of that breach.

Scarlet Glow does not cite, nor has our own research discovered, any case which supports its position. However, we need not address this question in the instant case, for the trial court’s ruling is not based on Generes’ claim that no further funds were due anyone. In fact, despite that claim, and while the suit between Generes and Structon was as yet unresolved, the court imposed a lien against the property in Scarlet Glow’s favor. What the trial court found was that Generes had relied on Structon’s statement that $4,500 had been paid to Scarlet Glow, leaving a balance due of $2,380. The identical situation arose in Knickerbocker Ice Co. v. Halsey Brothers Co. (1914), 262 Ill. 241, 104 N.E. 665, wherein the supreme court first held that an owner may rely upon the truth of a contractor’s sworn statement in the absence of notice to the contrary. There, the owner had notice of a subcontractor’s claim through a contractor’s statement showing a subcontract in the amount of $1,550.50. Subsequent statements contained false information showing various amounts due under the subcontract, and the owner, in reliance thereon, paid the general contractor until the balance to become due shown on the statement was $900. The final contractor’s statement, however, showed that the true balance due was over $1,400. The supreme court held that the subcontractor was entitled to a lien only in the amount of $900, because the owner had justifiably relied on the contractor’s sworn statement that monies paid to him were being sent to the subcontractor. Similarly, here, Generes made payments in reliance on the contractor’s sworn statement that portions thereof had been, or would be, transmitted to Scarlet Glow. Moreover, Scarlet Glow has not contended here that Generes did not rely on those statements; therefore, it is entitled to a lien only in the amount shown to be due on the last statement for which payment was made, and must look to Structon for the balance of its claim. (See Knickerbocker Ice Co. v. Halsey Brothers Co. (1914), 262 Ill. 241, 246, 104 N.E. 665, 666.) In this vein, we note that the trial court imposed a lien in the amount of $4,500 in Scarlet Glow’s favor on any funds subsequently determined to be due Structon under the general contract, as well as breach of contract damages in the amount of $4,500 against Structon.

Scarlet Glow also maintains that the trial court’s finding that it failed to prove its claim for conversion against Bach is against the manifest weight of the evidence. It argues that its claim was adequately proved by uncontroverted testimony that Bach collected payments in the amount of $4,500 which, according to his sworn affidavit, were due Scarlet Glow, and deposited those funds in Structon’s general account, and that Scarlet Glow has never received payment.

Initially, we note that Bach has not filed a brief in this cross-appeal. While we will not act as his advocate in this matter (People ex rel. Mihm v. Miller (1980), 89 Ill. App. 3d 148, 411 N.E.2d 592), automatic reversal is not required (In re Custody of Baty (1980), 83 Ill. App. 3d 113, 403 N.E.2d 747), and “if the record is simple and the claimed errors are such that the court can easily decide them without the aid of an appellee’s brief, [we] should decide the merits of the appeal” (First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976) , 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495).

The sole question here is whether, on the record before us, Scarlet Glow has met its burden of proof. It was required to show that Bach committed some act which constituted the exercise of unauthorized control over property in a manner inconsistent with Scarlet Glow’s right of possession (Connelly v. Estate of Dooley (1981), 96 Ill. App. 3d 1077, 422 N.E.2d 143); that it not only had property rights in the money but also “a right to immediate possession which is absolute and unconditional and not dependent upon the performance of some-act” (Jensen v. Chicago & Western Indiana R.R. Co. (1981), 94 Ill. App. 3d 915, 932, 419 N.E.2d 578, 593); and that it made a demand for possession (People ex rel. Carey v. Lincoln Towing Service, Inc. (1977) , 54 Ill. App. 3d 61, 369 N.E.2d 94) unless some other independent act of conversion can be shown such that a demand for possession would be futile (see Jensen v. Chicago & Western Indiana R.R. Co.).

In the instant case, Scarlet Glow maintains that Bach’s conduct in collecting funds allegedly due Scarlet Glow and placing them in Structon’s general account constituted conversion. However, it has not shown that, at the time these acts occurred, Scarlet Glow was entitled to receive any payment. The subcontractor provides that “[payment shall be made *** as the work progresses monthly an.amount equal to (90%) ninety per cent of the value of the work completed during the preceding calendar month ***” and that no payments would be made unless invoices and shipping document were received showing the purchase order or contract number and job number. The last payment from Generes was received on July 31, 1978, but Scarlet Glow’s work on the project did not begin until June 30, 1978, and extended through February 8, 1979. Furthermore, there is no evidence in this record that proper invoices were tendered to Structon as required by the subcontract, or that any demand was made for possession of the funds when they did finally become due. Therefore, we cannot say that the trial court’s ruling was against the manifest weight of the evidence.

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

WILSON, P.J., and MEJDA, J., concur.


source: Caselaw Access Project

author: JUSTICE MILLS

license: Public Domain

text:
    DAVID PETERSON, Plaintiff-Appellee, v. BROCK HENNING, Defendant-Appellant.
    Fourth District
    No. 4—82—0669
    Opinion filed July 18, 1983.

      Costigan & Wollrab, of Bloomington (James C. Wollrab and Michael D. Boge, of counsel), for appellant.
    Jerome Mirza & Associates, Ltd., of Bloomington (Jerome Mirza, of counsel), for appellee.
   JUSTICE MILLS

delivered the opinion of the court:

Hit and run. ■

Question: Is evidence of the “run” admissible?

Answer: Yes.

We affirm.

Brock Henning appeals from a judgment on a verdict in favor of David Peterson for personal injuries sustained by Peterson when he was struck by an automobile driven by Henning. Peterson was in a bar in Bloomington, Illinois, on August 3, 1976, when he met Henning’s girlfriend, Mary Mooney. Mooney and Henning had had a dispute earlier in the evening at another bar and Mooney had walked out on Henning. Shortly afterwards, Henning arrived and a shoving match ensued between Peterson and Henning over who would drive Mooney home. The three — -Peterson, Henning, and Mooney — were asked to leave the bar. Peterson and Mooney left first in Peterson’s truck with Henning following close behind in his car.

Eventually, Peterson pulled his truck over onto the shoulder of the road and stopped. Henning stopped about a car’s length behind Peterson’s truck but stayed on the road. Peterson exited his truck, with tire iron in hand, and walked back towards Henning’s car. Mooney also exited the truck on the driver’s side and followed Peterson. Henning testified he could see Peterson in his headlights about 20 feet in front of his car. Henning turned his wheels to the left, accelerated the car, and ducked as he saw Peterson throw the tire iron at the windshield. Henning stopped his car alongside of Peterson’s truck and called for Mooney to get in his car. Mooney attempted to start Peterson’s truck and, failing to do so, joined Henning in the car. They drove about a mile down the road, pulled over, and spent the night in Henning’s car. They noticed that his windshield was smashed but, according to their testimony, they did not discuss whether Peterson had been struck by Henning’s car. Both Henning and Mooney testified that they neither saw nor were aware that Peterson had been struck by Henning’s car. The next morning Henning and Mooney drove to an auto repair shop and had the smashed windshield replaced. Henning and Mooney eventually learned from Mooney’s roommate and the roommate’s boyfriend that Peterson had been injured.

Peterson was found lying in a ditch off the road at 5:30 the next morning by a passing motorist. He testified that all he could remember was leaving the bar and then waking up in a ditch when he was discovered by the motorist. Peterson underwent extensive treatment for severe injuries to his hip, abdomen, and right leg.

His two-count complaint alleged that Henning was negligent and wilful and wanton in the operation of his automobile. The jury returned a verdict in favor of Peterson finding his total damages to be $267,000, but also finding him 35% negligent. Accordingly, the jury found Peterson’s recoverable damages to be $173,550. The trial court entered judgment on the verdict.

I

Defendant Henning alleges several errors on appeal, the most significant of which is the trial court’s denial of defendant’s motion in limine to exclude evidence that defendant left the scene of the accident. Defendant argues that his failure to stop bore no causal relationship to plaintiff Peterson’s injuries and cites several cases from other jurisdictions in support of this argument. See Clark v. Mask (1957), 232 Miss. 65, 98 So. 2d 467; Schlosberg v. Doup (1933), 187 Ark. 931, 63 S.W.2d 337; Springer v. Adams (1927), 37 Ga. App. 344, 140 S.E. 390.

Plaintiff counters with cases which have held that evidence of a defendant’s failure to stop is admissible in personal injury suits. (See Brooks v. E. J. Willig Truck Transportation Co. (1953), 40 Cal. 2d 669, 255 P.2d 802; Grzys v. Connecticut Co. (1938), 123 Conn. 605, 198 A. 259; Petroleum Carrier Corp. v. Snyder (5th Cir. 1947), 161 F.2d 323; Shaddy v. Daley (1938), 58 Idaho 536, 76 P.2d 279; Langenstein v. Reynaud (1930), 13 La. App. 272, 127 So. 764.) However, even in jurisdictions which allow the admission of evidence of a defendant’s failure to stop, it is acknowledged that the evidence is not relevant to establish the proximate cause of the plaintiff’s injuries. See Grzys; Hallman v. Cushman (1941), 196 S.C. 402, 13 S.E.2d 498; Battle v. Kilcrease (1936), 54 Ga. App. 808,189 S.E. 573.

In Illinois, a motorist has a statutory duty to remain at the scene of an accident in which he is involved. (See Ill. Rev. Stat. 1981, ch. 95½, par. 11—401(a).) The violation of such a duty may result in personal liability for the aggravation of injuries sustained in the accident or additional injuries incurred after the accident. (See, e.g., Karl v. C. A. Reed Lumber Co. (1969), 275 Cal. App. 2d 358, 79 Cal. Rptr. 852.) In the present case, plaintiff neither alleged nor proved that he suffered either aggravated or additional injuries as a result of defendant’s failure to remain at the scene of the accident. Consequently, defendant’s conduct after the accident was not a proximate cause of plaintiff’s injuries. However, this does not necessarily render evidence of defendant’s failure to stop inadmissible.

First, it has been held that leaving the scene of an accident is evidence of a wilful, wanton or reckless state of mind. (See Richards v. Office Products Co. (1977), 55 Ohio App. 2d 143, 380 N.E.2d 725; Hallman.) In Busbee v. Quarrier (Fla. App. 1965), 172 So. 2d 17, 22, the court stated: “The evidence was also sufficient to support a finding of negligence on the part of the operator who apparently did not stop or otherwise show any normal reaction after striking the deceased, for these acts suggest lack of control of faculties or a degree of callousness of which no sober person would be guilty.” In a hit and run accident, the defendant’s wilful and wanton state of mind immediately following the accident is some evidence of a wilful and wanton state of mind at the time the accident occurred where the conduct of driving a vehicle from the scene of the accident is a continuation of the conduct which caused injury, i.e., driving the vehicle into the victim. In the present case, defendant’s wilful and wanton state of mind was raised by plaintiff’s pleadings and was in issue at trial.

Second, some courts have allowed evidence of a defendant’s failure to stop as evidence of his “consciousness of responsibility.” (Karl; Brooks; Grzys; Shaddy; Langenstein.) A defendant’s flight from the scene of the accident can be interpreted as an admission of his negligence, for if he were "guilt free” it is reasonable to assume he would stop to ascertain the nature of the accident or the extent of the victim’s injuries. Naturally, a defendant may present evidence to explain his failure to stop, as defendant attempted in the present case by testifying that he was afraid of plaintiff.

Finally, some courts have determined that evidence of a defendant’s failure to stop raises an inference of the defendant’s negligence in failing to keep a proper lookout or control of his vehicle. (See Jones v. Strelecki (1967), 49 N.J. 513, 231 A.2d 558; Vuillemot v. August J. Claverie & Co. (1929), 12 La. App. 236, 125 So. 168.) If the nature of the accident suggests that the victim’s presence and contact with the motor vehicle would have been known to a driver keeping a proper lookout and control of the vehicle, yet, the driver fails to stop because he was unaware of the accident, his failure to stop raises an inference of his failure to keep a proper lookout or control. In the present case, defendant testified that he saw plaintiff 20 feet in front of his car. Furthermore, the nature of plaintiff’s injuries — which included a broken hip and extensive internal injuries — suggested that there was solid contact between plaintiff and defendant’s car. Nevertheless, defendant testified he was not aware that he struck plaintiff. Evidence that defendant failed to stop (coupled with his testimony that he was unaware that he struck plaintiff) gives rise to an inference that defendant was negligent in failing to keep a proper lookout or control of his automobile.

We hold that evidence of defendant’s leaving the scene of the accident was admissible and that the trial court did not err in denying defendant’s motion in limine to exclude such evidence.

II

Defendant next argues that the verdict was against the manifest weight of the evidence. Plaintiff’s complaint alleged both negligent and wilful and wanton conduct and the jury returned a general verdict in favor of plaintiff. Defendant maintains that when both negligence and wilful and wanton counts are submitted to a jury and a general verdict is returned in favor of the plaintiff, the proof must sustain the wilful and wanton count. We disagree.

In Moore v. Jewel Tea Co. (1970), 46 Ill. 2d 288, 294, 263 N.E.2d 103,106, the supreme court stated:

“It is settled law that where several causes of actions are charged and a general verdict results, the verdict will be sustained if there are one or more good causes of action or counts to support it. *** [H]ad these defendants desired to ascertain upon which count or counts the jury returned its verdicts, they could have done so by submitting a separate form of verdict as to each count. (See: Ill. Rev. Stat. 1965, ch. 110, par. 68(3).) Not having done so, they cannot complain or seek to take advantage of their failure. [Citations.]”

It is clearly the jury’s function to determine the preponderance of the evidence and a reviewing court will reverse only if that determination is against the manifest weight of the evidence. (Lawson v. G. D. Searle & Co. (1976), 64 Ill. 2d 543, 356 N.E.2d 779; Lau v. West Towns Bus Co. (1959), 16 Ill. 2d 442, 158 N.E.2d 63.) We find here that the jury verdict in favor of plaintiff was not against the manifest weight of the evidence. Under the facts of this case, defendant’s conduct in accelerating his automobile while plaintiff was standing 20 feet in front of the auto could reasonably be found to be either negligent or wilful and wanton conduct.

III

Defendant also urges that the trial court erred in allowing plaintiff’s motion to strike a phrase from Mary Mooney’s deposition before it was read into evidence at trial. The stricken phrase reflected Mooney’s opinion of the veracity of a statement made to her by plaintiff. Defendant does not argue that the phrase was admissible, but rather, contends that plaintiff waived any objection by failing to raise it at the time Mooney’s deposition was taken.

Supreme Court Rule 211(c)(1) (87 Ill. 2d R. 211(c)(1)) provides:

“Grounds of objection to the competency of the deponent or admissibility of testimony which might have been corrected if presented during the taking of the deposition are waived by failure to make them at that time; otherwise objections to the competency of the deponent or admissibility of testimony may be made when the testimony is offered in evidence.”

The defect of Mooney interjecting her opinion could not have been “corrected” at the time her deposition was taken. Accordingly, Supreme Court Rule 211(c)(1) permitted plaintiff to object to the testimony at the time the deposition was offered into evidence. No error.

IV

The other issues raised by defendant on appeal have been waived — either by defendant’s failure to make a timely objection at trial, raise the issue in his post-trial motion, or treat the issue in his initial brief on appeal.

The judgment of the trial court is affirmed.

Affirmed.

TRAPP and GREEN, JJ., concur.


author: JUSTICE EARNS

text:
    PAULINE CARROLL, Plaintiff-Appellee, v. JEFFREY C. MILLER, Director of Public Aid, et al., Defendants-Appellants.—VANETA CURTIS, Plaintiff-Appellee, v. JEFFREY C. MILLER, Director of Public Aid, et al., Defendants-Appellants.
    Fifth District
    No. 83—33
    Opinion filed July 22, 1983.
    Neil F. Hartigan, Attorney General, of Springfield (Karen Konieczny, Assistant Attorney General, of counsel), for appellants.
    George Bell, of Land of Lincoln Legal Assistance Foundation, Inc., of Champaign, and Sarah Hofmann-Mullett, of Land of Lincoln Legal Assistance Foundation, Inc., of Mt. Vernon, for appellees.
   JUSTICE EARNS

delivered the opinion of the court:

These consolidated cases are here on the pleadings. The verified complaints for mandamus allege that the plaintiffs, Pauline Carroll and Vaneta Curtis, applied to the Illinois Department of Public Aid (IDPA), at Jefferson and White County offices, for financial and medical assistance under the Aid to the Aged, Blind and Disabled program (AABD). The complaints further allege that the applications for assistanee were approved on a presumptive eligibility basis and plaintiffs began receiving assistance but that AABD assistance was later denied because the plaintiffs had been determined not to be disabled by the Social Security Administration. The complaints allege that plaintiffs appealed within 10 days to the Illinois Department of Public Aid.

The answers filed on behalf of the Director of the Department of Public Aid and administrators of the respective county departments admitted these allegations of the complaints. Affirmative defenses filed, as here relevant, only denied that mandamus was an appropriate remedy as there was no clear legal right to assistance pending administrative appeal to the Illinois Department of Public Aid, and that in any event, plaintiffs’ remedy was under the Administrative Review Act. Ill. Rev. Stat. 1981, ch. 110, par. 3—101 et seq.

The trial courts granted the relief prayed for, requiring the IDPA to continue to pay assistance until the IDPA determined, after administrative hearing within the Department, that plaintiffs were not disabled. These appeals followed.

In 1974, the Congress of the United States enacted the Supplemental Security Income program, commonly referred to as SSI (42 U.S.C. secs. 1381 through 91 (1976 & Supp. IV 1980), providing assistance to those who are blind, disabled or aged, who meet statutory income and resources requirements; the program is administered by the Social Security Administration (SSA). Prior to the enactment of this legislation, the several States were primarily responsible for aiding the disabled, although the State programs were supplemented by Federal grants. The purpose of the Federal SSI program was to promote uniformity at established levels of assistance. The States were allowed, however, to supplement the SSI assistance (42 U.S.C. sec. 1382e; 20 C.F.R. sec. 416.2001(a)(1)) by a Supplemental Security Payment (SSP). Illinois has elected to supplement the Federal (SSI) assistance. Ill. Rev. Stat. 1981, ch. 23, pars. 3—13, 3—14, 3—15.

A person requesting assistance at a county department of public aid is required to apply for SSI at the Social Security office (IDPA, AABD Categorical Assistance Manual PO-415.1); this agency determines an applicant’s eligibility for SSI assistance (42 U.S.C. secs. 1382a, 1382b, 1382c) and the public aid relies on this determination of eligibility for SSP supplementary assistance. AABD Categorical Assistance Manual PO-430 states that applicants for AABD assistance must be determined disabled by the SSA, which defines disability as the inability to engage in any substantial gainful activity because of physical or mental impairment “which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months.”

Applications for SSP are made to the local public aid office. Interim financial and medical assistance from the State is granted an applicant pending the initial determination by disability by the Social Security Administration, and in the event the applicant is determined to be ineligible, Federal law provides for administrative review of the question of eligibility (20 C.F.R. secs. 416.1425 through 416.1429; 416.1441 through 416.1487) including judicial review (42 U.S.C. sec. 1383(c)(3)). The IDPA relies on this appellate procedure to determine an applicant’s entitlement to SSP, retroactively, if an initial determination of noneligibility is later overturned.

Notwithstanding the passage of this Federal legislation and the supplementary State assistance legislation (SSP), the existing State program for aid to the aged, blind and disabled (AABD) contained in article III of the Illinois Public Aid Code (Ill. Rev. Stat. 1981, ch. 23, par. 3—1 et seq.) was not repealed, nor was the existing State program for medical assistance (Medicaid) provided in article V of the Code repealed. Ill. Rev. Stat. 1981, ch. 23, par. 5—1 et seq.

Under IDEA, AABD Categorical Assistance Manual PO-710.1, an applicant for AABD is presumed to be eligible for assistance and interim assistance, wholly financed by the State, is furnished pending a determination of eligibility at the local level. SSP is not paid until an applicant’s entitlement to SSI is determined. AABD Categorical Assistance Manual PO-235 provides that an applicant for AABD assistance who is denied assistance by the county department of public aid is entitled, upon timely appeal, to continue to receive assistance until the question of disability has been determined on appellate review by the Department as provided in section 11—8.1 of the Code (Ill. Rev. Stat. 1981, ch. 23, par. 11—8.1). Rule 7.03 of the Department likewise requires that interim assistance must continue pending a decision on appeal after a fair hearing at which a determination of disability is made. Disability under the Illinois Public Aid Code and regulations, we are told, is defined more favorably to the applicant than under SSI legislation. See Ill. Rev. Stat. 1981, ch. 23, par. 3—1.

Defendants argue that the plaintiffs did not apply for AABD assistance under State statutes and regulations, rather SSI and SSP under Federal law and regulations. They argue that on appeal to the Director of the Illinois Department of Public Aid from a denial or termination of interim assistance, which is gratuitous, the only issue at the hearing is whether the Social Security Administration has made an initial determination of disability.

However, in their complaints, plaintiffs alleged that they applied for AABD assistance, and these allegations were admitted in defendants’ answers. (As a practical matter, an applicant for assistance undoubtedly walks into the public aid office and requests help.) The parties agree that any applicant for assistance at a county department of public aid is referred to the Social Security Administration office and required to apply for SSI. Defendants admit that “interim assistance” (an expression not found in the Illinois Public Aid Code or the IDPA, AABD Categorical Assistance Manual) is furnished such applicants and that such assistance is neither SSI nor SSP.

Considering the pleadings on file and the posture of this case before us, we believe that we are obliged to follow the holding of a division of this court (see Mattis & Yalowitz, Stare Decisis Among [sic] the Appellate Court of Illinois, 28 DePaul L. Rev. 571 (1979)). In Johnson v. Quern (1980), 90 Ill. App. 3d 151, 412 N.E.2d 1082, appeal denied (1981), 83 Ill. 2d 570, the court decided these precise issues adversely to the Illinois Department of Public Aid. That court held that the payment of AABD assistance on a presumptive disability basis was not gratuitous; that such assistance must be furnished until an applicant receives a disability hearing within the IDPA. Neither the Illinois Public Aid Code nor the rules and regulations of the IDPA, as here relevant, have been amended or modified subsequent to the decision in Johnson v. Quern. Indeed, IDPA, AABD Categorical Assistance Manual PO-415.1 provides that receipt of SSI is not prerequisite to AABD assistance.

Defendants argue that Johnson v. Quern is not dispositive of the issues raised here as plaintiffs were applicants for SSI and SSP. This assertion is belied by an examination of the pleadings.

Not only have these same questions been litigated in Johnson v. Quern, but the IDEA has litigated this matter without success in numerous. instances in the circuit courts of this State, some of the cases presently being on appeal. (See Feldman v. Department of Public Aid (1st Dist.), No. 83—533; Nugent v. Miller (2d Dist.), No. 82—937; Blackman v. Miller (3d Dist.), No. 3—83—0061; Corp v. Miller (3d Dist.), No. 3—83—0100; Watterson v. Miller (4th Dist.), No. 4—83—0034.) The plaintiffs argue that the defendants are bound under principles of collateral estoppel from relitigating this question before this court. (See Illinois State Chamber of Commerce v. Pollution Control Board (1979), 78 Ill. 2d 1, 398 N.E.2d 9.) While we find merit to this argument, we need not consider it as we adopt the reasoning and holding of Johnson v. Quern.

Under the result we reach, we believe that mandamus is an appropriate remedy as plaintiffs have established a clear right to con-timed assistance, and a nondiscretionary duty on the part of IDPA to provide assistance, until the IDPA has furnished them the mandated appellate disability hearing. They need not await the outcome of a protracted administrative review process whereby they could be denied needed assistance.

The judgments of the circuit courts of Jefferson County and White County are affirmed.

Affirmed.

KASSERMAN and JONES, JJ., concur.


author: PRESIDING JUSTICE WILSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE ADAMS, Defendant-Appellant.
    First District (5th Division)
    No. 81—367
    Opinion filed July 8, 1983.

      Steven Clark and Kenneth L. Jones, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Raymond Brogan, and Joseph L. Ponsetto, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE WILSON

delivered the opinion of the court:

Following a bench trial, defendant was convicted of robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18—1) and sentenced to a term of three years’ imprisonment. On appeal, defendant claims that the trial court’s application of the affidavit requirement of Rule 15.1(e) of the rules of the circuit court of Cook County (the Rule) to his motion to suppress identification testimony violated his rights of equal protection of the laws and freedom from self-incrimination, and also infringed upon the attorney-client privilege. Further, in the event the Rule is not found to be unconstitutional, defendant claims that his attorney’s failure to comply with the affidavit requirement deprived him of effective assistance of counsel. For the reasons that follow, we affirm the trial court.

The pertinent facts indicate that prior to trial, defendant moved to suppress identification testimony which was based upon an allegedly suggestive and improper lineup conducted on April 10, 1979. The State responded that because the motion was based on facts not appearing of record, the Rule required that a supporting affidavit be filed. Further, because defendant had failed to comply with this requirement, the motion should be denied. In response, defendant argued that the law did not require an affidavit when an evidentiary hearing on the motion was scheduled. Rather, the affidavit was required only when facts were not going to be of record. The court then stated, “You have to have the affidavit to show before the hearing, that is the purpose of the rule.” As a caveat, the court explained that the defendant himself did not have to file the affidavit, “but somebody has to file it to substantiate these facts not of record” and to limit the issues.

Defense counsel replied that they would stand on their motion as filed, arguing that to require defendant to file an affidavit was a form of self-incrimination. For the record, defense counsel stated that defendant’s motion alleged facts that would prove that the lineup was suggestive and improperly conducted, and that they were prepared to present evidence to satisfy their burden of proof.

After further arguments of counsel, the trial court reiterated its ruling that the affidavit requirement must be complied with or else he would strike the motion. Defense counsel declined to comply with the requirement and stated that the court’s decision to strike the motion would deny defendant “his rights to counsel, *** to trial by jury, *** to raise constitutional issues relative to an identification which he has specifically laid out the facts in his motion which he expect [sic] to prove at a *** full evidentiary hearing.” Defense counsel then presented the following offer of proof: (1) defendant was arrested on February 27, 1979; (2) defendant participated in a lineup on April 10, 1979, during which he was viewed by the alleged victim, June Wilson; (3) on March 5, 1979, the victim made a photographic identification of defendant and these photographs were present in the lineup room and shown to the victim during the course of the lineup; (4) defendant requested that his attorney be present at the lineup; (5) Roxanne Wisnar of the Cook County public defender’s office would testify that at the time the lineup was conducted, defendant was represented by the public defender’s office in an unrelated matter; that she was notified by the police that defendant was going to appear in a lineup one hour before the lineup was scheduled; that she did not have time to notify defendant’s attorney and could only post a notice about the lineup on the bulletin board at 26th and California; that the assistant public defenders who represented defendant were in Markham, Illinois, at the time of the lineup and, thus, received no notice of the lineup.

Thereafter, trial proceeded by way of stipulation. The State stipulated that if the victim, June Wilson, were called to testify, she would testify as follows. On February 18, 1979, approximately 8:30 p.m., as she was standing outside of her apartment hallway, defendant approached her with a pointed metal object in his left hand and said, “Give it up.” Before defendant grabbed her purse and ran off, Wilson had a direct look at him for approximately 20 seconds in a well-lit area. Immediately after defendant fled the scene, Wilson called the police and, subsequently, gave them a detailed physical description of her assailant.

Thereafter, on March 4, 1979, at police headquarters, Wilson was shown three or four mug shot books which contained approximately 1,000 photographs from which she identified a photograph of defendant as her assailant. On April 10, 1979, at a lineup proceeding at Cook County jail, Wilson again identified defendant as her assailant. The State further stipulated that if Wilson were shown a photograph of a lineup conducted on February 27, 1979, she would identify defendant as her assailant and testify that defendant was wearing the same clothing in the photograph that he wore on the night of the robbery. Defense counsel then stipulated that the facts related by the State would be those testified to by the victim; however, he would not stipulate to the truth of those facts.

After the State rested its case, defendant’s motion for a directed verdict was denied. Subsequently, defendant’s offer to testify was withdrawn and defendant rested his case without presenting any evidence. The court then rendered its judgment.

Thereafter, defendant moved for an arrested judgment, or, in the alternative, a new trial on the ground that when the trial court refused to grant a hearing on defendant’s motion to suppress, it denied defendant due process of law, equal protection of the law, and effective assistance of counsel. At the post-trial motion hearing, the State argued that the rules of the circuit court apply to all cases and the decision not to file an affidavit was a tactical decision, not an act of incompetence. In denying the post-trial motion, the court admitted that the Rule is not uniformly enforced, but emphasized that adherence to the Rule is necessary to avoid “a discovery hearing that wonders [sic] all over the lot.” Defendant’s timely appeal followed.

Opinion

We first address defendant’s claim that application of the Rule’s affidavit requirement to his motion to suppress violated his right to equal protection of the law. In support of his contention, defendant argues that: (1) the Rule is not uniformly enforced among criminal litigants, and (2) civil litigants are not required to file a similar affidavit.

Pursuant to legislative authority, the rules of the circuit court of Cook County were adopted by the circuit judges in order to effectuate the administration of justice and to simplify judicial procedure. In determining the constitutionality of a legislative enactment or a law passed pursuant to legislative authority, the judiciary is limited to a determination of whether the law is a valid exercise of the State’s police power to promote the public comfort, health, safety, morals or welfare. (Henson v. City of Chicago (1953), 415 Ill. 564, 570-71, 114 N.E.2d 778.) To be valid, the legislation must not only bear a reasonable relationship to one of the foregoing interests, but the means adopted to promote that interest must be reasonable. (Sherman-Reynolds, Inc. v. Mahin (1970), 47 Ill. 2d 323, 327, 265 N.E.2d 640.) Because the legislature is granted broad discretion in determining how best to secure the interests of the public welfare, the court will not disturb a police regulation merely because there is a difference of opinion as to its wisdom, necessity or expediency. (City of Carbondale v. Brewster (1979), 78 Ill. 2d 111, 115, 398 N.E.2d 829.) Moreover, a strong presumption of constitutional validity attaches to authorized enactments, and the party attacking a law has the burden of showing that it is unreasonable. People v. Copeland (1980), 92 Ill. App. 3d 475, 479-80, 415 N.E.2d 1173.

With these legal axioms in mind, we now analyze the Rule’s affidavit requirement for a determination of its reasonableness. The trial court, in making its ruling on the requirement, stated that the Rule requires that an affidavit attesting to the veracity of the facts in a pretrial motion be filed before a hearing on the motion if those facts have not yet become a matter of record. The court further explained that the objectives of the Rule were to limit the issues and to prevent the hearing from becoming a discovery deposition. We concur with the trial court’s rationale and find that the affidavit requirement is a reasonable means by which to efficiently administer justice and simplify judicial procedure, as authorized in section 1—104 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 1—104). Furthermore, we find that it is a valid exercise of the State’s police power to promulgate bodies of statutory law establishing and regulating its criminal justice system. People v. Zahn (1979), 71 Ill. App. 3d 585, 589, 390 N.E.2d 93.

Regarding equal protection, defendant argues that the trial court’s admission that the Rule is “not uniformly enforced” is sufficient proof in and of itself to establish that this right was violated. We disagree. The constitutionality of a statute is not dependent on its susceptibility of misapplication. (People v. Raby (1968), 40 Ill. 2d 392, 397, 240 N.E.2d 595.) As discussed, the Rule was enacted pursuant to a valid exercise of the State’s police power. The fact that the Rule has not been consistently enforced does not reflect on the constitutionality of the Rule. Further, the fact that the trial court had previously ruled in this case that an affidavit was not required to support defendant’s earlier motions to quash arrest and suppress statements is evidence of nothing more than a trial court error from which defendant gained a benefit. Such a ruling does not preclude the trial court from correcting its error at a later time, nor does it render the Rule unconstitutional.

Defendant further argues that requiring criminal litigants, but not civil litigants, to file an affidavit with pretrial motions also violates the equal protection clause. We disagree. The equal protection clause does not deny States the power to treat different classes of persons in different ways. (Eisenstadt v. Baird (1972), 405 U.S. 438, 446-47, 31 L. Ed. 2d 349, 358, 92 S. Ct. 1029, 1034-35.) Only “[w]hen the law lays an unequal hand on those who have committed intrinsically the same quality of offense and [penalizes] one and not the other” is the equal protection clause violated. (Skinner v. Oklahoma (1942), 316 U.S. 535, 541, 86 L. Ed. 1655, 1660, 62 S. Ct. 1110, 1113.) Moreover, the equal protection clause requires equality between groups of persons similarly situated and does not require equality or proportionality of penalties for dissimilar conduct. (People v. Bradley (1980), 79 Ill. 2d 410, 416, 403 N.E.2d 1029.) In this regard, it cannot be argued that a defendant convicted of a criminal offense is similarly situated to one found guilty in a civil action. Therefore, we concur with the rationale expressed by the supreme court in Bradley and conclude that no equal protection violation emerges in the case at bar.

We next address defendant’s contention that the Rule’s affidavit requirement violates his right to be free from self-incrimination. The privilege against self-incrimination protects an accused from being compelled to testify against himself, or otherwise provides the prosecution with evidence of a testimonial or communicative nature. (Schmerber v. California (1966), 384 U.S. 757, 761, 16 L. Ed. 2d 908, 914, 86 S. Ct. 1826, 1830.) The circumstances in the case at bar do not fall within this protection for two critical reasons. First, defendant was not compelled to sign the affidavit. The trial court explicitly stated that anyone with knowledge of the facts could sign the affidavit, even defendant’s attorney. In this regard, defendant argues that if his attorney had signed the affidavit, the attorney-client privilege would have been violated. We find this argument untenable. In order to be a confidential communication protected by the attorney-client privilege, the parties must have intended that the contents of that communication not be disclosed to a third party other than in the rendition of legal services. (E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 505.2, at 206 (3d ed. 1979).) Clearly, the information contained in defendant’s motion to suppress was obtained by his attorney with the mutual intent that it be disclosed to other individuals as necessary to the rendition of legal services. To view the communication otherwise would suggest absurd consequences. When defendant divulged information to his attorney indicating that the lineup was improperly conducted, the clear intent was for that information to be made public by filing. Therefore, the attorney-client privilege would not have been violated had defense counsel signed the affidavit.

The second reason the circumstances at bar do not invoke the privilege against self-incrimination is that neither the motion nor the affidavit contained testimony that would inculpate defendant. The motion merely admitted that defendant was in the lineup, a fact that is not in issue. All other allegations therein, if true, aid, rather than hinder, defendant’s situation. Therefore, because defendant was not compelled to sign the affidavit and because his guilt could not be inferred from the substance of either the motion or the affidavit, we conclude that no risk of incrimination exists. Collaterally, we note that defendant’s right to be free from self-incrimination is afforded further legal protection in that the contents of the motion and the affidavit could not have been used against him at trial if objected to by his counsel (People v. Wade (1979), 71 Ill. App. 3d 1013, 389 N.E.2d 1230; Wade v. Franzen (7th Cir. 1982), 678 F.2d 56), and the affidavit does not act as a waiver to invoking the privilege against self-incrimination in the event defendant had taken the stand. Samuel v. People (1896), 164 Ill. 379, 383, 45N.E. 728.

Finally, we address defendant’s alternative argument that if the Rule does not conflict with any constitutional guarantees, the cause must be reversed and remanded on the ground that defendant was denied his right to an evidentiary hearing as a result of defense counsel’s incompetent representation.

When faced with the question of competency of counsel, the pertinent inquiry is whether counsel caused such substantial prejudice to his client that the outcome was probably changed. (People v. Talley (1981), 97 Ill. App. 3d 439, 443, 422 N.E.2d 1084.) To make this evaluation in the case at bar, we must look to the substance of defendant’s motion and determine whether if an affidavit had been filed and a hearing held, the outcome of the trial would probably have been different.

As grounds for his motion to suppress identification testimony based upon an improper lineup, defendant contends that: (1) the victim was shown photographs of defendant while she was viewing the lineup, and (2) defendant was prejudiced by his counsel’s absence at the lineup. Upon review of the record, we find no evidence to support defendant’s allegation that photographs were present at the lineup proceeding. A bare allegation without support is not sufficient for our review. Thus, our focus will be on the absence of counsel at the lineup identification. In support of this allegation, defendant stated in his offer of proof that Roxanne Wisnar of the public defender’s office would testify that she was given one hour’s notice that defendant was to appear in a lineup and that, during that time, she was unable to locate the particular public defenders who were currently assigned to represent defendant in an unrelated matter.

It is well established that, absent waiver, the sixth amendment right to counsel includes the right to have counsel present at a post-indictment lineup. (United States v. Wade (1967), 388 U.S. 218, 237, 18 L. Ed. 2d 1149, 1163, 87 S. Ct. 1926, 1937.) Because defendant did not waive this right, we conclude that the lineup was conducted improperly and that defendant’s motion to suppress would probably have been granted had a hearing been held. However, our analysis does not stop here. We must next consider whether suppression of the identification testimony would have probably changed the outcome of the case. The facts reveal that the victim initially identified defendant’s photograph from mug shots shown to her at police headquarters shortly after the robbery incident. Where an identification confrontation is found suggestive, another may be admissible if it is shown by clear and convincing evidence that the other identification had an independent origin arising from an earlier uninfluenced observation of the defendant. (See People v. Camel (1974), 59 Ill. 2d 422, 431, 322 N.E.2d 36.) The criteria for determining whether an independent origin exists for an identification are set forth in People v. Canter (1977), 56 Ill. App. 3d 316, 322, 371 N.E.2d 1072 as follows: (1) opportunity of the witness to view the accused at the time of the crime; (2) accuracy of the witness’ prior description of the crime; (3) the witness’ degree of attention; and (4) the length of time between the crime and the confrontation.

In the case at bar, the victim had ample opportunity to view the robber in a well-lit area. She provided a detailed, uncontradicted description of the defendant to the police immediately after the robbery. Her description of defendant’s clothing was corroborated by a photograph of defendant taken at the prior unrelated lineup. The photographic identification took place within a week of the incident. Applying the Gantner standard, it is our opinion that these facts convincingly establish that the victim had an uninfluenced observation of defendant, independent of the improperly conducted lineup, that was sufficient to support defendant’s conviction of robbery.

Therefore, although we find that defense counsel’s strategy not to file an affidavit was based on a misinterpretation of the constitutional guarantees of equal protection and freedom from self-incrimination, and, as a result, deprived defendant of a hearing to which he was otherwise entitled, we do not find that counsel’s actions caused such substantial prejudice to defendant that the outcome of the trial was probably changed. Therefore, we affirm the trial court’s judgment.

Affirmed.

LORENZ and MEJDA, JJ., concur.

      Rule 15.1(e) of the rules of the circuit court of Cook County states in pertinent part:
      “*** A motion founded upon facts not appearing of record in the case shall be supported by affidavit reciting the facts.”

      Section 1—104(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 1—104(a)) authorizes the Illinois supreme court to promulgate rules of pleading, practice and procedure for the circuit, appellate and supreme courts. Pursuant to this authority, the Illinois supreme court promulgated the Supreme Court Rules (87 Ill. 2d R. 1 et seq.), which include:
      “(a) Appellate Court and Circuit Court Rules. *** [A] majority of the circuit judges in each circuit may adopt rules governing civil and criminal cases ***.”(87 Ill. 2d R. 21(a).)


author: JUSTICE JOHNSON

text:
    MICHAEL WALTERS, Plaintiff-Appellant, v. MIDLAND-ROSS CORPORATION et al., Defendants-Appellees.
    First District (4th Division)
    No. 82—471
    Opinion filed July 7, 1983.

      Thomas R. Challos, Jr., of Finn, LeSueur and Challos, of Chicago, for appellant.
    Pretzel, Stouffer, Nolan & Rooney, of Chicago (Robert Marc Chemers and Mark C. Amador, of counsel), for appellee Midland-Ross Corporation.
    Baker & McKenzie, of Chicago (Gerald L. Maatmon, Jr., Peter J. Mone, and Francis D. Morrissey, of counsel), for appellee Esis, Inc.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Michael Walters, brought suit in the circuit court of Cook County on September 8, 1981, seeking interest on an award granted him under the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.19(n)). Plaintiff seeks to maintain a class action suit on behalf of all others similarly situated. The trial court sustained motions to dismiss by both defendants and this appeal followed.

On appeal, the following issues are raised: (1) whether interest should be paid on an arbitrator’s award of workers’ compensation benefits when neither party sought a review of the award; (2) whether plaintiff should have exhausted his administrative remedies before resorting to the circuit court; (3) whether the question of interest is moot; (4) whether the action is duplicative of plaintiff’s petition which was pending before the Illinois Industrial Commission when this action was filed; and (5) whether plaintiff’s complaint sufficiently states a cause of action both individually and as a member of a class.

We affirm.

Plaintiff Walters was an employee of defendant Midland-Ross Corporation (Midland-Ross) when he sustained a job-related injury on June 15, 1979. He filed an application for adjustment of claim with the Illinois Industrial Commission (IIC) seeking benefits under the Workers’ Compensation Act (Act). Defendant Esis Incorporated (Esis) defended the claim on behalf of Midland-Ross for whom it was the workers’ compensation service agent.

The claim was heard by an arbitrator of the IIC on September 25, 1980, and on November 21, 1980, plaintiff was awarded benefits pursuant to the Act. The award gave plaintiff benefits totaling SO1/* weeks of disability representing a 15% loss of use of his right middle finger and a 100% loss of use of his right ring finger, totaling $5,041.77. Additionally, plaintiff received $904.78 for 53/y weeks of temporary disability plus $618 for payment of medical expenses. The total amount awarded plaintiff was $6,544.55.

Attorneys for both plaintiff and defendants were notified of the arbitrator’s award on December 9, 1980. Neither party filed a petition for review of the arbitrator’s award within the 15 days allowed by section 19(b) of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.19(b)).

On March 4, 1981, plaintiff filed a petition with the IIC pursuant to section 19(k) of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.19(k)) seeking penalties against defendant Midland-Ross for failure to pay the award promptly. On March 10, 1981, plaintiff received a check from Esis for the amount awarded ($6,564.55). A hearing was held on plaintiff’s petition on April 28, 1981.

Testimony at the April 28, 1981, hearing established that Esis did not receive permission from Midland-Ross to pay the award until mid-January 1981. A change by Esis from a manual to a computerized system resulted in a backlog of checks to be paid. Plaintiff’s check was erroneously sent to Midland-Ross instead of to plaintiff and had to be returned to Esis and reissued before plaintiff received it.

At the close of the hearing before the IIC commissioner on April 28, 1981, the commissioner asked the parties to submit written memoranda of law on the issues. It appears that no decision had been rendered by the IIC commissioner as of the time of filing of this action in the circuit court of Cook County.

On September 8, 1981, plaintiff filed suit in the circuit court of Cook County seeking interest on the award. Plaintiff also sought to maintain the action as a class action suit.. On October 15, 1981, defendant Esis sent plaintiff’s attorney a check in the amount of $116.53 representing interest on the award computed at the rate of 6% from November 21, 1980, to March 10, 1981. Plaintiff refused to accept the check, and the action remained pending before the circuit court.

On October 27, 1981, defendant Esis filed a motion to dismiss plaintiff’s suit on the following grounds: (1) plaintiff’s claim was moot since defendant attempted to tender the amount of interest sought by plaintiff; (2) section 19(n) of the Act allows interest only on awards that are confirmed or increased by the full IIC; (3) plaintiff had not exhausted his administrative remedies and the action was duplicative of plaintiff’s petition then pending before the IIC; and (4) the delay in payment was due to clerical and administrative errors and was not a deliberate act by defendant. Defendant Midland-Ross adopted defendant Esis’ motion to dismiss and additionally filed its own amended motion to dismiss on the following grounds: (1) that defendant Esis had complete responsibility for and control of all Midland-Ross’ workers’ compensation claims; (2) that plaintiff’s complaint is insufficient to establish the prerequisite for maintaining a class action suit; and (3) that the action should be dismissed with prejudice.

The trial court granted defendant Esis’ motion to dismiss and Midland-Ross’ motion to dismiss with prejudice. The trial court did not reach the merits of the case or the question of plaintiff’s eligibility to maintain a class action.

Plaintiff makes a lengthy argument in support of his claim for interest on the arbitrator’s award. However, defendant Esis sent a check for $116.53 to plaintiff’s attorney on October 15, 1981. The amount represented interest at 6% per annum on the award from November 21, 1980, to March 10, 1981. Plaintiff refused to accept the check and continued to press his claim in the circuit court. It thus appears that plaintiff previously refused to accept that which he is now seeking from this court.

We agree with defendant Esis that as to this issue a controversy no longer exists between the parties. A court of review will not decide a moot issue merely to settle a dispute or guide future litigation. An issue is moot when there is not actual controversy. La Salle National Bank v. City of Chicago (1954), 3 Ill. 2d 375, 378, 121 N.E.2d 486, 488.

In this case the issue of interest due plaintiff became moot when defendant Esis acknowledged owing interest by attempting to tender the amount in question to plaintiff. We find no reason to depart from the established rule that a reviewing court will not reach the merits of a case when no actual rights of the parties will be affected. Wheeler v. Aetna Casualty & Surety Co. (1974), 57 Ill. 2d 184, 189, 311 N.E.2d 134, 137.

We next address the issue of whether plaintiff should have exhausted his administrative remedies before resorting to the circuit court. Plaintiff argues that exhaustion of administrative procedures was not required because the IIC could not provide an adequate remedy. Plaintiff cites Saldana v. American Mutual Corp. (1981), 97 Ill. App. 3d 334, 422 N.E.2d 860, in support of his argument. However, Saldana is inapposite to plaintiff’s case. In Saldana, the arbitrator’s award had been reviewed by the IIC as required by statute. That is not so in this case.

Plaintiff never sought a review of the award. Instead, he later sought penalties against defendants under section 19(k) of the Act. While that action was pending, plaintiff commenced the instant action in circuit court. Assuming, arguendo, that the IIC had granted plaintiff’s petition for penalties coupled with defendants’ attempt to tender interest, plaintiff would have been made whole in the manner contemplated by the statute. (See III. Rev. Stat. 1981, ch. 48, par. 138.19(k).) However, contrary to statutory requirements, plaintiff did not wait for the ruling of the IIC before filing suit in the circuit court. We hold that the trial court properly dismissed plaintiff’s suit for failure to exhaust administrative remedies and that the matter was not properly before the circuit court.

In view of our holding, we will not address the other issues raised by plaintiff.

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

Affirmed.

ROMITI, P.J., and JIGANTI, J., concur.