author: JUSTICE UNVERZAGT JUSTICE REINHARD,

text:
      In re S.R.H., a Minor.—(THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. S.R.H., Respondent-Appellant.)
    Second District
    No. 81-584
    Opinion filed May 12, 1982.

      REINHARD, J., dissenting.
    Mary Robinson, of State Appellate Defender’s Office, of Elgin, for appellant.
    Dennis Schumacher, State’s Attorney, of Oregon (Phyllis J. Perico and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The respondent, S.R.H., was adjudicated delinquent and a ward of the court following a hearing on a supplemental petition filed by the State on March 3, 1981, pursuant to section 4 — 1 of the Juvenile Court Act (hereinafter the Act) (Ill. Rev. Stat. 1979, ch. 37, par. 704 — 1). A previous petition to revoke probation filed on January 14, 1981, alleging the respondent’s commission of a theft, was never acted upon. The supplemental petition alleged the respondent was delinquent in that: “On or about February 28, 1981, in Monroe Center, Ogle County, Illinois, said minor did commit the offense of burglary in violation of section 19 — 1 of Chapter 38 of the Illinois Revised Statutes of said State, in that said minor knowingly entered a building, a garage of James Marx, located at Rural Route 1, Eddy Road, Monroe Center, Illinois, with the intent to commit therein a theft.”

In oral argument following the adjudicatory hearing, the respondent’s attorney argued inter alia that the petition failed to allege the respondent entered the garage “without authority” and, therefore, no cause of action had been stated against him. Later, the trial court found counsel’s argument unavailing, citing People ex rel. McLain v. Housewright (1973), 9 Ill. App. 3d 803. That case followed the “public building doctrine” in holding that an indictment charging the burglary of a supermarket was not invalid for lack of the phrase “without authority.” Immediately after the court denied the respondent’s motion for discharge, defense counsel here sought to, and was allowed to, reopen the evidence in order to present additional testimony which tended to show the respondent had authority to be in the garage. After argument, the trial court found the respondent’s authority or lack of it was not dispositive since he entered and/or remained in the garage with the intent to commit theft and, therefore, he committed a burglary. The respondent was sentenced to the Department of Corrections, Juvenile Division, following the disposition hearing. A post-trial motion was filed which did not specifically raise the issue of the sufficiency of the supplemental petition for failure to allege the respondent was “without authority” to enter the garage. According to the docket record sheets, that motion was heard and denied on May 14,1981, but no report of proceedings was included in the record on appeal. The notice of appeal was timely filed.

The respondent raised three issues, only one of which we need consider here: whether the supplemental petition under which the respondent was adjudicated delinquent was fatally defective in that it charged him with burglary, but did not allege that he entered the garage “without authority.” We determine that it was fatally defective, and we reverse.

In its argument to affirm, the State relies on the same precedent the trial court had, People ex rel. McLain v. Housewright (1973), 9 Ill. App. 3d 803, for the proposition that the omission of the phrase “without authority” from a burglary indictment did not invalidate the charging document. The court there reasoned that since the authority of a person to enter a public building is limited to entry consistent with the reason the building is open, entry with the unlawful intent to commit a felony makes the entry unauthorized. Thus, mere entry of a public building with a wrongful intent allows the inference that the entry is unauthorized. In further support of its argument, the State asserts that a juvenile petition need not be as strict as an adult pleading, citing In re Whittenburg (1973), 16 Ill. App. 3d 224.

The respondent distinguishes Whittenburg on the basis that even though the petition there failed to include a necessary element of aggravated battery — “great bodily harm or permanent disability or disfigurement” — the petition was nevertheless held to be sufficient to bring the minor within the statutory definition of delinquency because the allegations which were set forth in the petition stated a cause of action for simple battery. The respondent finds Housewright distinguishable as well, for the reason that the premises burglarized there was a supermarket. As such, the Housewright court considered all members of the public have authority to enter such public buildings provided they enter with lawful intentions. The instant case is distinguishable in that the respondent entered through the open door of a garage attached to a private residence. The residence belonged to a minister of whose church youth group the respondent was a member. The respondent asserts that this court in People v. Peace (1980), 88 Ill. App. 3d 1090, and in People v. Baker (1978), 59 Ill. App. 3d 100, has explicitly refused to extend the public building rationale expressed in Housewright to apply to private premises; thus, respondent contends the element of entry without authority must be established apart from the element of entry with intent to commit a theft.

According to sections 2 — 1, 2 — 2, and 4 — 1(2) (a) of the Act:

“§2 — 1. 0 0 0 Proceedings may be instituted under the provisions of this Act concerning boys and girls who are delinquent, * * * as defined in Sections 2 — 2 through 2 — 5.”
“§2 — 2. * * * Those who are delinquent include any minor who prior to his 17th birthday has violated or attempted to violate, 0 0 0 any federal or state law or municipal ordinance; ° °
“§4 — 1(2). 600 [The petition for adjudication shall] set forth (a) facts sufficient to bring the minor under Section 2 — 1; * # Ill. Rev. Stat. 1979, ch. 37, pars. 702 — 1, 702-2 and 704 — 1(2).

Consequently, a petition for adjudication of delinquency must set forth facts sufficient to show that the minor has violated or has attempted to violate any Federal or State law or municipal ordinance.

The instant supplemental petition purported to charge the respondent with burglary committed in violation of State law. (Ill. Rev. Stat. 1979, ch. 38, par. 19 — 1(a).) As observed in People v. Weaver (1968), 41 Ill. 2d 434, 438-39:

“While a common-law breaking is no longer an essential element of the crime of burglary (reference and citation omitted), the statute requires an entry which is both without authority and with intent to commit a felony or theft. (Ill. Rev. Stat. 1967, chap. 38, par. 19 — 1.) A criminal intent formulated after a lawful entry will not satisfy the statute. But authority to enter a business building, or other building open to the public, extends only to those who enter with a purpose consistent with the reason the building is open. [Citation.] * ” (Emphasis added.)

The court in Housewright followed Weaver in rejecting the defendant’s theory there that the crime of burglary cannot be charged or even committed in a public building because authority to enter is available to everyone upon the implied invitation of the owner. The State finds the fact that the premises burglarized in Housewright was a supermarket and in the instant cause it was a private garage is a “distinction without a difference.” We cannot agree with the State’s assessment, and observe, as respondent argues, that this court has previously specifically refused to give Weaver — hence, Housewright — so broad an application as now urged by the State. This court in People v. Baker (1978), 59 Ill. App. 3d 100,102-03, expressed itself thusly:

“We are aware of cases holding that authority to enter a business building or other building open to the public extends only to those who enter with a purpose consistent with the reason the building is open and that an entry into such a building with intent to commit a theft cannot be said to be within the authority granted those who might enter. (Citations omitted.) These holdings were in response to arguments that because the buildings were open to the public, any entry during business hours would be without authority and therefore no burglary could be committed therein. In our view these cases are clearly distinguishable from the case at bar where the public building aspect is absent; we are concerned here with a private parking garage open only to those who are authorized by the owners and tenants to enter. We find no authority warranting extension of the principle urged by the State to the present case and believe that the element of entry without authority must be established apart from the element of entry with intent to commit a felony or theft in this circumstance.”

The garage in the instant cause was also a private garage, open only to a number of members of the minister’s church youth group. Consequently, we find that the element “without authority” is a necessary one in an instrument charging the burglary of premises which are not business buildings or buildings open to the public.

The standard for review of the sufficiency of a charging instrument which has first been objected to in the trial court is:

“ ‘[Wjhether the document sets forth the nature and elements of the offense charged in accordance with section 111 — 3 of the Code of Criminal Procedure of 1963 * * V ” (People v. Kavinsky (1981), 98 Ill. App. 3d 579, 583, citing People v. Lutz (1978), 73 Ill. 2d 204 and People v. Hayes (1979), 75 Ill. App. 3d 822; Ill. Rev. Stat. 1979, ch. 38, par. 111 — 3(a)(3).)

The fact the respondent’s challenge to the sufficiency of the charging instrument here occurred at trial makes the aforegoing the applicable standard rather than the standard which is applied when the challenge occurs for the first time on appeal. In that instance, the standard is whether the charge apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow the pleading of a resulting conviction as a bar to future prosecutions arising out of the same conduct. (People v. Walker (1980), 83 Ill. 2d 306, 314; People v. Johnson (1979), 69 Ill. App. 3d 248,250-52; People v. Pujoue (1975), 61 Ill. 2d 335, 339.) Where an element of the offense intended to be charged is not set forth in an indictment, it fails to state an offense and it is void. (People v. Kavinsky (1981), 98 Ill. App. 3d 579, 583; People v. Abrams (1971), 48 Ill. 2d 446.) By the omission of the element “without authority,” no offense was stated, and the supplemental petition must be viewed as having failed to state sufficient facts to bring the minor within the statutory definition of “delinquent.”

Accordingly, we conclude the trial court erred in denying the respondent’s motion for discharge, and we reverse.

The judgment of the circuit court of Ogle County is reversed.

Judgment reversed.

HOPE, J., concurs.

JUSTICE REINHARD,

dissenting:

In my opinion both People ex rel. McLain v. Housewright (1973), 9 Ill. App. 3d 803, 293 N.E.2d 911, appeal denied (1973), 53 Ill. 2d 610, and People v. Alequin (1973), 12 Ill. App. 3d 837, 298 N.E.2d 723, expressly hold that omission of the words “without authority” in a charging instrument alleging the offense of burglary is not a defect fatal to the sufficiency of the charge. As stated by the court in Housewright, wherein the words “without authority” were omitted from the indictment:

“The petitioner was fully apprised of the crime charged and his conviction or acquittal could be pleaded in a bar of a subsequent prosecution for the same offense.” 9 Ill. App. 3d 803, 807, 293 N.E.2d 911.

The rationale of the majority is that Housewright is distinguishable from the instant case since the burglary charged in Housewright was of a public building. The logical conclusion that follows from that reasoning is that the words “without authority” must be contained in the charging instrument alleging burglary of private premises but are not required when burglary of a business building or building open to the public is charged. I find that position to be unsustainable in logic and precedent. In my judgment the majority should either expressly decline to be bound by Housewright and Alequin or follow precedent. Any attempt to distinguish those cases is erroneous in my view, and I would adhere to them as precedent on the sufficiency of the charge issue.

I must add that I agree with the decisions in both People v. Peace (1980), 88 Ill. App. 3d 1090, 411 N.E.2d 334, and People v. Baker (1978), 59 Ill. App. 3d 100, 375 N.E.2d 176. However, the distinction between the holding in those cases and the issue upon which the majority decides this case is that both Peace and Baker were decided on the basis of sufficiency of the evidence, not sufficiency of the charge as determined here.


source: Caselaw Access Project

author: JUSTICE HARTMAN

license: Public Domain

text:
    JOSEPH K. PLEPEL, Plaintiff-Appellee and Cross-Appellant, v. ALEX NIED, a/k/a Alex Niedzialek, Defendant and Counterdefendant-Appellant and Cross-Appellee.—(LYONS SAVINGS & LOAN ASSOCIATION, Defendant and Counterplaintiff-Appellant and Cross-Appellee.)
    First District (2nd Division)
    No. 81-909
    Opinion filed April 20, 1982.
    Rehearing denied June 1,1982.

      Theodore W. Wrobleski, of Chicago, for appellant Alex Nied.
    E. Paul Lanphier, of Elmhurst, for appellant Lyons Savings & Loan Association.
    John B. Murnighan, of Kovar & Smetana, of Chicago, for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

In an amended two-count complaint against several defendants, including Alex Nied (Nied) and Lyons Savings & Loan Association (Lyons), plaintiff Joseph K. Plepel (Plepel) sought foreclosure of a mechanic’s lien on Nied’s property, contract damages and certain other relief. Both counts alleged, inter alia, that plaintiff orally contracted with Nied to perform architectural services between June 23 and September 20, 1976, in connection with property located at 40th & Harlem Avenues in Stickney, Illinois, which was then beneficially owned in part by Nied, who subsequently caused the sale of the property to Lyons.

Count I of the amended complaint sought to foreclose on Plepel’s original and amended claim for an architect’s lien in the amount of $19,249.50, the claims having been attached and incorporated as Exhibits A and B. Count II prayed for judgment on a breach of oral contract theory, claiming damages in the same amount. Subsequent to the commencement of Plepel’s actions, Lyons filed a counterclaim against Nied seeking to be indemnified for all expenses, attorney fees and liabilities that it potentially could incur as a result of Plepel’s complaint against it and an amended counterclaim consisting of count II seeking to have Nied deposit $25,000 as security, among other things. After a protracted bench trial, on January 13, 1981, the trial court awarded Plepel $13,416.44 plus statutory interest and costs on counts I and II of the complaint. Subsequently, the court allowed Lyons $3,693 for attorney fees and costs on its counterclaim. Default judgments, which had been theretofore entered on February 14, 1980, against two trusts apparently holding legal title to the property, were reduced from $19,249.50 plus interest and costs, to $13,416.44. The February 14,1980, order contained appropriate language as to finality and appealability (Ill. Rev. Stat. 1977, ch. 110A, par. 304(a)); however, no appeal had been taken from its provisions.

Nied appeals the judgment for Plepel and the allowance of fees on the counterclaim; Lyons appeals the judgment for Plepel; and, Plepel cross-appeals, seeking an increase in the amount of the judgment on count II entered in his favor. The principal issues raised on appeal include whether: (1) Plepel sustained his burden of proof, either on the mechanic’s lien or breach of contract count; (2) Plepel could recover on either an express or implied contract, or quantum meruit theory; (3) certain documents were properly admitted into evidence; (4) the award of damages and interest was excessive and against the manifest weight of the evidence; and, (5) an agreement executed by Nied’s attorney provided for the allowance of attorney fees as sought in Lyons’ counterclaim against Nied. In Plepel’s cross-appeal, the issues raised are whether: (1) the award of damages was inadequate and against the manifest weight of the evidence; and (2) the trial court had jurisdiction to reduce the amounts of the final judgments previously entered.

For the reasons which follow, we affirm the judgment as to Lyons’ counterclaim; reverse and remand for a new trial as to counts I and II of the amended complaint; and reverse that part of the judgment which amends earlier judgments entered against the trustees possessing legal title to the real estate.

Evidence relevant and material to the issues raised on appeal will be discussed in the body of the opinion.

I

Although out of chronological development, consideration of Plepel’s cross-appeal at the outset will help clarify the issues presented for our consideration, since it deals with the threshold issue of whether or not an “express” contract existed. Plepel urges that there was sufficient evidence to support both the mechanic’s lien judgment on count I and the judgment for damages on his breach of oral contract in count II based upon an express oral contract. As to count I, Plepel concedes that he cannot claim a lien in excess of that set forth in his recorded claim for lien as against Lyons, a subsequent purchaser by virtue of section 7 of the Illinois Mechanic’s Lien Act (Ill. Rev. Stat. 1979, ch. 82, par. 7). He maintains, however, that he was entitled to damages under count II in excess of the amount awarded: his damages should have been computed in accordance with the purported express contract which existed between Plepel and Nied calling for architectural fees of 6% of the final construction costs of $560,000 or $33,600, less the $1,100 amount previously paid to him. He maintains that the trial court’s finding that a final design never crystallized and that final construction costs were never determined is against the manifest weight of the evidence.

A. The Contract

The evidence in the record, including Plepel’s testimony, Nied’s admissions and other testimony, clearly establishes that a contractual relationship existed between Plepel and Nied whereby the former was to render architectural services to the latter. The trial court so found. Less patent are the issues of whether there was a breach of its terms and, if so, whether Plepel sufficiently proved the damages he seeks.

B. The Breach

Plepel claims that the terms of the contract called for payment to him of 6% of the “total cost of construction” in return for his drafting of architectural plans for Nied’s proposed improvement. He testified that such plans were in fact drawn, represented by plaintiff’s Exhibits 10 and 12 in evidence. His drawings were not completed to the point where they could be submitted for mechanical drawings because of changes being requested. The trial court sustained objections to plaintiff’s offer to prove the “cost” of mechanical and electrical drawings yet to be completed.

Mrs. Barbara Miller, then secretary of Lyons and, at the time of trial, its president, testified as an adverse witness under section 60 (Ill. Rev. Stat. 1979, ch. 110, par. 60), that Nied applied to Lyons for a loan and that the loan application was accompanied by plaintiff’s Exhibit 10. She ordered an appraisal of the property and, after changes in Exhibit 10 recommended by the appraiser were made, Lyons’ loan committee approved the loan “conditionally.” The loan was never granted, she asserted, because the conditions were never fulfilled. Arthur Gouvis, an architect, testified that Plepel’s plans constituting plaintiff’s Exhibit 12 were suitable for bid documents although they lacked mechanical and electrical specifications and detail. Nevertheless, he stated, “intelligent” contractors could give bid quotations based upon the degree of completion of the plans.

No countervailing evidence was adduced by Nied or Lyons as to what services had been agreed upon by Plepel and Nied, aside from the bare assertions by Nied, on section 60 examination by Plepel, that he told Miller he had an architect who would work “cheap” and that Plepel agreed to and accepted a fee of $1,100 for his services. Nied testified that he terminated Plepel’s services by telling him in July 1976 that “* * * this woman changed her mind and that I am not going through with the building. * * * Forget the whole problem.”

From the foregoing, evidence it is clear that Plepel was engaged to draw such plans as would form the basis upon which a loan application could be made, construction bids solicited and mechanical and electrical drawings and detail completed. Having been prevented from completing those plans by Nied’s unilateral action and direction to Plepel to “forget the whole problem,” Plepel has manifestly demonstrated Nied’s breach of the oral agreement for which he was entitled to damages.

C. The Damages

The law has recognized that the services of an architect, being highly creative in nature, entitles him to a percentage of his fee when he submits preliminary plans and specifications regardless of ultimate property development. (Furst v. Board of Education (1959), 20 Ill. App. 2d 205, 223, 155 N.E.2d 654.) Were this not the case, an owner who engaged the architect could simply refuse to proceed with the plans drawn and the architect would be paid nothing for valuable services rendered, where, as here, a project is abandoned before construction begins. (Orput-Orput & Associates, Inc. v. McCarthy (1973), 12 Ill. App. 3d 88, 94-95, 298 N.E.2d 225.) In order to recover his fee in circumstances where the construction is never begun, the architect is obligated to prove the amount of “construction costs” as shown by admissible evidence, as well as the percentage of completion of his drawings submitted to the owner, which would establish a reasonable basis for the computation of contract damages. Brewer v. Custom Builders Corp. (1976), 42 Ill. App. 3d 668, 677-78, 356 N.E.2d 565; Michalowski v. Richter Spring Corp. (1969), 112 Ill. App. 2d 451, 457-58, 251 N.E.2d 299.

Evidence of construction costs presented by Plepel in the instant case arose first from his own testimony, based upon information received from Richard Frolick, a civil engineer Plepel claimed to have been in his employ, that “zoning out this plot” was “around” $560,000 “to the best of his recollection.” Although that figure and $565,000 were repeated several times, obscure and conclusory references to “zoning out this plot” does not supply the necessary construction cost base from which the damages could be computed. The trial court, during the hearings, mentioned, “we have nothing but ballpark estimates of $560,000 to $565,000,” to which Plepel’s counsel assented. Plepel complains that his efforts to have Nied or Lyons produce a copy or the original of the contractor’s sworn statement of costs of construction were unavailing and, in the absence of contradictory evidence, Plepel’s testimony must be accepted. Miller testified that she was “pretty sure” Nied had submitted a contractor’s statement of construction costs, but she found no such document in her files and could not recall any figures it may have contained. Nied denied that he ever submitted an application for a loan to Lyons. It is further apparent that Frolick, who allegedly secured the bids from which the cost of construction was taken, was available and could have supplied the necessary evidentiary formulation which the trial court found lacking in Plepel’s case. Curiously, Plepel never called Frolick to testify, although he was alleged to have been in Plepel’s employ.

The trial court found, in its judgment order, that the cost of construction of the proposed building could not be the basis of Plepel’s claim for architectural services because, “[t]he Contractors Statements, which allegedly were to represent a breakdown of trades and cost for construction of a building, may have had some initial basis on bids received by Frolic [sic], but the several Statements introduced as evidence appeared to be based on inflated guesstimates. The amount identified for ‘architectural services’ on these Statements changed from $6,000 to $11,000, to $14,000.” Plaintiff testified that these amounts were not representative of his actual fees. Our own examination of the record, including plaintiff’s Exhibits 14,15 and 16, purporting to the contractors’ statements of construction costs, together with Plepel’s testimony that some of the figures were inflated, show that the trial court’s findings were fully supported by the record. Not only did the component costs of architectural services vary from document to document, but other putative costs varied as well, such as plumbing, wiring and glazing, among others. Two written bids, apparently secured by Frolick, received in evidence as plaintiff’s Exhibits 18 and 19, were never listed on the contractors’ statements of costs, Exhibits 14,15 and 16.

Evidence of the percentage of architectural work actually completed by Plepel was never determined, a necessary factor in computing fees under the circumstances of this case. (Michalowski v. Richter Spring Corp.) Plepel’s offer to prove the cost of preparing mechanical and electrical plans and detail did not supply the necessary percentage of completion evidence, particularly in the absence of a viable cost of construction figure with which a necessary comparison would have had to have been made. Plepel’s effort to distinguish Michalowski on the ground that he had fully performed on his contract, whereas Michalowski did not, is contrary to his own testimony that some work yet remained to be performed on the contract.

From the foregoing, it cannot be concluded that the trial court’s findings against Plepel’s express contract damages for breach and proposed computation were against the manifest weight of the evidence under count II. (Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 356, 226 N.E.2d 624.) Accordingly, the damage award for breach of contract cannot be increased as Plepel demands.

II

Nied, and Lyons, which adopted certain of Nied’s arguments, maintain that the damages awarded by the trial court cannot be supported by record evidence under an implied contract or quantum meruit theory, citing, e.g., Excellent Builders, Inc. v. Pioneer Trust & Savings Bank (1973), 15 Ill. App. 3d 832, 305 N.E.2d 273, and Goodman v. Motor Products Corp. (1959), 22 Ill. App. 2d 378, 161 N.E.2d 31. Relying upon Crowen v. Meyer (1930), 342 Ill. 46, 174 N.E. 55, and Michalowski v. Richter Spring Corp., they argue that the amounts awarded Plepel under the count II breach of contract action fail for want of sufficient evidence because Plepel never properly proved the necessary bases for a quantum meruit recovery. They therefore question the evidentiary basis of the decision. Plepel contends that the evidence submitted relating to his expenses was not intended to show his actual expenses; rather, it was presented only as evidence of consideration for the contract. Neither Plepel’s amended complaint nor his argument on appeal appear to articulate an implied contractual or quantum meruit theory for recovery, although some of the evidence submitted by him at trial, e.g., testimony as to the reasonable value of the services he rendered, tended to point in that direction. The trial court appears to have based its decision upon quantum meruit. Since Plepel on appeal seeks alternative relief, either recognition of his express contract damages claim or affirmance of the trial court’s judgment, except as to the default judgment amendments to be addressed subsequently, we shall consider Nied’s argument on its merits.

As noted above, the express oral contractual damages were not satisfactorily proven. When damages for defendant’s breach of an express contract are not established, plaintiff may seek recovery on a quantum meruit basis where it can be shown that, in fact, valuable services were rendered. (See Slater v. Jacobs (1977), 56 Ill. App. 3d 636, 638, 371 N.E.2d 1054.) The record shows that Plepel has rendered valuable services but was prevented from fully performing so as to earn the agreed compensation. (5 Corbin on Contracts sec. 1109 (1964).) In an otherwise rather confused record, it is evident Nied obtained the benefit of these architectural services, which provided him with the means and opportunity to seriously explore his idea of improving the property. See Comm v. Goodman (1972), 6 Ill. App. 3d 847, 286 N.E.2d 758.

Nied and Lyons contend that the trial court erred in admitting the “back-up” or supporting pages of plaintiff’s Group Exhibit No. 13 into evidence, the invoice for architectural services and related costs, over his objection. It is apparent that the trial court considered this exhibit in establishing the mechanic’s lien in count I and in granting Plepel’s damages under count II. The challenged documents consisted of a summary sheet listing the component expenses shown on the invoice and several sheets indicating the hours of certain draftsmen who worked on the project. On the basis of these documents, the trial court considered $6,262.44 as proven expense for drafting work performed on the project. These hearsay documents were neither offered nor received as business record exceptions under Supreme Court Rule 236, whereby Plepel could show that they were kept in the regular course of his profession and that it was in the regular course of his professional business to keep such records. (Ill. Rev. Stat. 1977, ch. 110A, par. 236; A. J. Davinroy Plumbing & Heating v. Ernest, Inc. (1980), 87 Ill. App. 3d 1047,1054, 409 N.E.2d 372; Erickson v. Ottawa Travel Center, Inc. (1979), 69 Ill. App. 3d 108, 111, 387 N.E.2d 49.) The “back-up” sheets stand as hearsay statements offered for the truth of the matters asserted and were improperly admitted into evidence and considered by the trial court in its computations. (People v. Carpenter (1963), 28 Ill. 2d 116, 190 N.E.2d 738.) Indeed, Plepel’s testimony at trial suggests only that the time sheets were filled in on an ad hoc and irregular basis.

Nied also properly questions the recognition of $5,900 for the work performed by Frolick. The basis of that obligation was never fully explained. Plepel admitted that he neither received a bill from Frolick, nor fully paid him. This award is also questioned because it was based partly upon three checks identified by Nied for use on cross-examination but never admitted into evidence. Even had the checks been so offered and received, two bear notations indicating their application to matters other than the Stickney property. The trial court lacked authority to base an award of damages upon documents not admitted into evidence.

Since a substantial portion of the evidence upon which the trial court relied was erroneously considered, as noted above, the judgment on both counts I and II must be reversed and remanded for a new trial.

Ill

Because of the need for a new trial, we consider, next, issues which may again arise and should be resolved beforehand.

Nied and Lyons insist that the $1,840 allowed by the trial court for “Met structural,” $700 for Mel Hansen mechanical services, and $214 for blueprints utilized in the court’s decision were so unreliable as to be useless. The record, however, reveals that in each of these instances there was sufficient independent testimony to corroborate those amounts without reference to the summary sheets. Further, the trial court’s application of multipliers in order to arrive at some of these sums was not an abuse of discretion in view of expert testimony that the use of such multipliers in billing clients was customary in the architectural profession.

Nied and Lyons assert that the allowance for interest and costs was erroneous. Section 1 of the Mechanic’s Lien Act (Ill. Rev. Stat. 1977, ch. 82, par. 1) specifically provides that a contractor shall have a lien for the amount due from the service, material and labor furnished “and interest from the date the same is due.” The allowance was proper with respect to the foreclosure of the mechanic’s lien claim asserted in count I. (Aupperle & Sons, Inc. v. American National Bank & Trust Co. (1975), 28 Ill. App. 3d 573, 578, 329 N.E.2d 458; Ahmer v. Peters (1958), 17 Ill. App. 2d 113, 149 N.E.2d 503.) Since the mechanic’s lien judgment under count I was based, in part, upon evidence improperly admitted, however, the lien interest must be recomputed following retrial of this case. With respect to count II, the allowance of interest was improper. The amount owing under that count depended primarily upon the interpretation of an oral contract and questions of fact about which there could be differing opinions. General Dynamics Corp. v. Zion State Bank (1981), 86 Ill. 2d 135, 140-41, 427 N.E.2d 131.

IV

We turn next to the issues raised with respect to the allowance of attorney’s fees and costs pursuant to Lyons’ counterclaim. At the time of the real estate closing, Nied’s attorney, R. L. Dichtl, executed the following handwritten agreement:

“I agree to serve a 30 day demand for suit upon Jos. K. Plepel re his alleged mechanic’s lien recorded in Cook Co., Ill. as doc. #23674627 and to defend such action to conclusion.
R. L. Dichtl.”

Shortly after Plepel’s action was commenced against Nied and Lyons, Dichtl in a letter asserted that he could not adequately represent both Nied and Lyons, and advised the latter to retain counsel to protect its own interests. Subsequently, Lyons filed a counterclaim seeking, inter alia, attorney fees and costs. On appeal, Nied argues, in effect, that the clause “to defend” should be construed to mean “to defend Nied only”; whereas Lyons urges, in effect, that the clause should be interpreted to mean “to defend Lyons.”

Absent a statute or contractual agreement, attorney fees and the ordinary expenses of litigation are not allowable to the successful party. (Kerns v. Engelke (1979), 76 Ill. 2d 154, 390 N.E.2d 859.) An indemnity agreement must be construed as any other contract and the dominant rule of construction is to determine the intention of the parties. (Montgomery Ward & Co. v. Wetzel (1981), 98 Ill. App. 3d 243, 251, 423 N.E.2d 1170; National Bank v. West Construction Co. (1976), 41 Ill. App. 3d 686, 355 N.E.2d 43.) The agreement is ambiguous as to who Dichtl agreed to defend; therefore, parol evidence was admissible to explain the ambiguity. (Felbinger & Co. v. Traiforos (1979), 76 Ill. App. 3d 725, 732, 394 N.E.2d 1283.) When the written agreement to Dichtl is examined in the context of the real estate closing, it becomes evident that the trial court did not abuse its discretion in allowing fees. According to the president of Lyons, the real estate sales contract was predicated upon several conditions to satisfy or clear the lien of record, including the agreement of Nied’s attorney to defend Plepel’s lawsuit so that Lyons “didn’t have to get involved ” * Contemporaneously with the formation of this agreement, Nied executed a note wherein he promised to pay Lyons as much as $19,249.50 to satisfy Plepel’s lien and assigned to Lyons his beneficial interest in other property as additional security. On the basis of this evidence, the trial court could have properly found that at the time Dichtl’s agreement was executed it was intended that Lyons’ specific interest would be defended in the event of a lawsuit. The cases cited by Nied, Singleton v. County of Cook (1977), 53 Ill. App. 3d 994, 369 N.E.2d 227, and Schwieger v. Dean Van Lines, Inc. (1971), 132 Ill. App. 2d 154, 269 N.E.2d 520, are inapposite, since they involve contractual language which is substantively different than that used in the agreement here. We conclude that the allowance for fees and costs was wholly proper.

V

Plepel argues that the trial court lacked jurisdiction to reduce the amounts of two prior default judgments. On February 14, 1980, the trial court entered default judgments against the Bank of Lyons and Western National Bank of Cicero in their capacities as trustees (legal titleholders to the real estate), in the amounts of $19,249.50, for failing to appear, file their answers or otherwise defend. Appropriate finality and appealability findings were set forth in the order. (Ill. Rev. Stat. 1979, ch. 110A, par. 304(a).) Oral motions to vacate those judgments were made during proceedings on February 21, 1980. The trial court directed that they be made in writing and they were filed on March 24, 1980, alleging that neither trust existed prior to the initiation of the instant lawsuit. Supporting documents disclosed that both trusts were closed on February 4,1977. Those motions were denied on May 12, 1980. No appeal was ever taken from those orders. The judgment of January 13, 1981, purports to amend the February 14, 1980, order by reducing the default judgments to $13,416.44, thus conforming them to the present judgments.

Nied suggests that Plepel’s notice of cross-appeal does not request relief from the trial court’s action in this regard; however, our examination of the notice language reveals that it is broad enough to encompass this issue. It is evident that the trial court was without jurisdiction to reduce the amount of the prior judgments entered approximately 11 months earlier. Accordingly, the instant order so modifying the February 14,1980, order must also be reversed.

Affirmed in part and reversed in part and remanded.

STAMOS, P. J., and DOWNING, J., concur.


author: JUSTICE MEJDA

text:
    JOSEPH SWIETON et al., Plaintiffs and Counterdefendants-Appellants, v. HENRY LANDOCH et al., Defendants and Counterplaintiffs-Appellees.
    First District (5th Division)
    No. 80-2297
    Opinion filed March 12,1982.
    Rehearing denied May 28,1982.

      Lawrence W. Krupa, of Chicago, for appellants.
    Marshall J. Belgrad, of Skokie, for appellees.
   JUSTICE MEJDA

delivered the opinion of the court:

Plaintiffs, Joseph Swieton and Donna Swieton, filed a complaint for ejectment on an encroachment upon their property. Defendants, Henry Landoch and Emma Landoch, filed a counterclaim for declaratory relief seeking the imposition of an easement by prescription or implication. After a bench trial the court entered judgment granting defendants an easement by implication. Plaintiffs appeal.

The issue on appeal is whether defendants have established an easement by implication by clear and convincing evidence. The accompanying diagram is provided to facilitate comprehension of the following facts.

In 1971 the plaintiffs purchased a single-family residence located on Lot 11 except the South 30 feet (plaintiffs’ parcel), which lot fronts on Narragansett Avenue and is bounded on the north and east by an alley. To the immediate south, and adjacent to the plaintiffs’ property, is another house located on the South 30 feet of Lot 11 (defendants’ parcel), also fronting on Narragansett Avenue. This latter parcel had been owned and occupied from 1971 by Michael LaBrose (LaBrose) until he sold it to defendants, Henry and Emma Landoch, in February of 1976. At the time of the defendants’ purchase a white wooden picket fence stood between the respective back yards. The fence extended in an east-west direction from the eastern alley line to a point adjacent to the rear of the plaintiffs’ home; however, no fencing existed between the dwellings themselves.

The defendants’ home has a front entrance on Narragansett Avenue and a side door on its north side, the threshold of which is several feet higher than ground level. The side door exits onto a concrete stoop from which several steps on the westerly side allow descent to the front walk and steps on the easterly side allow descent to the rear service walk of defendants’ house. A concrete walk installed by defendants’ predecessor LaBrose extends west from the stoop steps and from one building to the other. Located within the walk at the west base of the steps is a sewer catch basin for the defendants’ home. Another concrete service walk extends from the alley on the east across the entire length of the rear yard and continues along the north wall of defendants’ home to the east steps of the stoop.

Soon after taking title to their real estate, the defendants decided to replace the white picket fence, which they assumed to be located on their own land, and entered into a contract with Tru-Link Fence Company to erect a metal chain link fence between the respective properties. Henry Landoch and his brother removed the existing white wooden picket fence and a few days later workers for Tru-Link placed metal upright posts in position. However, it became apparent that the chain link fence would be of a greater length than the picket fence and would divide the area between the houses of the parties — an area which had previously been open and undivided.

At a point in time prior to the attachment, erection and completion of the chain link fencing itself, Donna Swieton made several protests concerning the positioning of these posts to Emma Landoch, complaining that the posts were on her property. The defendants then consulted their original survey, dated January 21,1976, and prepared in connection with the acquisition of their real estate. They discovered for the first time that it failed to portray the front walkway, the catch basin, the stoop and its steps, the rear service walk, and the white picket fence. However, the erection of the fencing went ahead and was completed in February 1976. The defendants obtained a second survey on March 12, 1976, which showed that the entire length of newly installed fence, as well as several inches of the defendants’ stoop and stairs and sidewalk, protruded onto plaintiffs’ side of the property line.

In June 1976 plaintiffs filed an action in ejectment against defendants, asserting that encroachments existed, and that defendants refused to remove the chain link fence and the protruding portions of the walks and stoop after repeated demands to do so. Plaintiffs prayed for a judgment for possession and damages. Defendants’ amended answer raised as affirmative defenses the existence of a constructive easement over plaintiffs’ property and that plaintiffs’ complaint was barred by laches. Defendants prayed dismissal of plaintiffs’ complaint, a constructive easement in perpetuity to run on plaintiffs’ land, and reformation of the original plat to show defendants’ residence, structures and improvements located entirely upon the real property of the defendants, and all other relief deemed just. Defendants also filed a counterclaim for declaratory relief imposing an easement by prescription or implication. Plaintiffs’ reply to defendants’ answer denied the existence of any easement on plaintiffs’ property.

The evidence introduced at trial showed that both parcels of real estate originally were contained in and owned as one lot, and at all times herein were registered under the Torrens system. Neither the Torrens certificates of title nor any deeds contained any reference to the easements claimed herein.

In 1948, title to all of Lot 11 was acquired by Bessie Rosenthal who on March 12, 1952, conveyed by quitclaim deed to Herbert Rosenthal and Roy Schoenbrod the South 30 feet of Lot 11 (defendants’ parcel), which deed was filed for record on May 16, 1952. Rosenthal and Schoenbrod conveyed defendants’ parcel to Frank and Anna Miller on May 31, 1955, as evidenced by document filed with the registrar of titles.

The plaintiffs’ claim of title also goes back to Rosenthal and Schoenbrod, who conveyed plaintiffs’ parcel in a deed dated February 8, 1954. The trial record is devoid of any deed showing a conveyance of plaintiffs’ parcel from Bessie Rosenthal to Herbert Rosenthal and Roy Schoenbrod. However, prior to trial defendants filed an “Amended Request to Admit Facts and Genuineness of Documents” which plaintiffs failed to answer. The facts requested to be admitted included that as of August 4, 1948, Bessie Rosenthal owned all of Lot 11 in fee simple; that on or about March 12, 1952, she executed a quitclaim deed for Lot 11 in its entirety to Herbert and Kaye Rosenthal and Barbara and Roy Schoenbrod; that on or about March 10, 1952, two building permits were issued to construct single-family residences on Lot 11; that subsequent to the erection of the two residences the Rosenthals and Schoenbrods divided Lot 11 into two parcels; that they first conveyed the plaintiffs’ parcel on or about February 8,1954, and then conveyed defendants’ parcel on or about May 31, 1955. Finally, the request to admit asserted that at the time of the improvements to the realty all of Lot 11 was owned by common owners, the Rosenthals and Schoenbrods. At the beginning of the bench trial the court stated that as plaintiffs failed to respond to defendants’ request to admit facts, it took the facts stated therein to be admitted. Plaintiffs’ counsel made no objection. The evidence included testimony that the two homes were constructed on the property in 1953.

Following trial the court entered an order finding that there was an admitted encroachment as to the sidewalk, the catch basin, the concrete stoop and steps and the chain link fence; that a permanent easement by implication existed as to the concrete stoop and steps, the sidewalk between the residences and the catch basin, but not as to the chain link fence. The court ordered that the Cook County registrar of titles memorialize the easement by implication upon the Torrens certificates of title of both the plaintiffs and defendants. Plaintiffs appeal those portions of the order creating and impressing an easement by implication and its memorialization upon their title.

Opinion

Preliminarily, we address plaintiffs’ contention that the court improperly granted equitable relief here because defendants’ counterclaim, upon which this relief was granted, was not properly before the trial court. Plaintiffs base their argument on the absence in the record of any order allowing defendants to file their counterclaim. We find no merit to this contention, however, as the record clearly supports the presumption which exists in favor of the regularity of the proceedings in the trial court. (Witvoet v. Berry (1977), 48 Ill. App. 3d 485, 359 N.E.2d 1117.) The counterclaim, included as part of the record on appeal, was time and date stamped and filed with the clerk of the circuit court. Furthermore, at the beginning of trial the court specifically denominated and treated plaintiffs as “counterdefendants” and defendants as “counterplaintiffs.” Noting that the encroachments were admitted by defendants, the court stated that the burden of going forward with the proof would rest with defendants who sought the imposition of the easement. It must be noted that defendants’ answer to plaintiffs’ ejectment complaint denied the existence of the encroachments. Such encroachments were admitted in defendants’ counterclaim. Plaintiffs, who would have the burden of going forward with the proof in an ejectment action, never objected to these designations nor to this procedure. Finally, plaintiffs’ own notice of appeal designates themselves as “Plaintiffs and Counter-defendants” and also designates defendants as “Defendants and Counter-plaintiffs.” We can only conclude from the conduct of the court and the parties as evidenced by the record that defendants’ counterclaim was properly before the court. We proceed, therefore, to consider whether the trial court properly granted an easement by implication as requested in the counterclaim.

The rule is well settled that where the owner of a single tract has arranged it so that one portion thereof derives a benefit from the other of an apparent and continuous character, and then sells one of such parts without mention being made of these incidental uses, the purchaser takes the portion sold with all of the benefits and burdens which appear at the time of sale to belong to it. (Gilbert v. Chicago Title & Trust Co. (1955), 7 Ill. 2d 496, 131 N.E.2d 1; Frantz v. Collins (1961), 21 Ill. 2d 446, 173 N.E.2d 437.) The moment the severance occurs easements or servitudes are created corresponding to the benefits and burdens mutually existing at the time of sale. Gilbert.

As pointed out in Carter v. Michel (1949), 403 Ill. 610, 617, 87 N.E.2d 759, 762, the essential elements which must exist to establish an easement by implication are: “(1) there must be separation of the title; (2) before the separation occurs, the use which would give rise to an easement must have been so long continued, obvious or manifest to that degree which will show the use was meant to be permanent; and (3) it is necessary that the use of the claimed easement be essential to the beneficial enjoyment of the land granted or retained.” This “apparent use” does not necessarily mean notorious visibility, especially when a pipe, sewer, or drain is involved, but refers rather to a use which is either known or could have been discovered upon reasonable inspection. (Frantz.) The burden rests on the party seeking the easement to establish the elements necessary to raise an easement by implication. Partee v. Pietrobon (1957), 10 Ill. 2d 248, 139 N.E.2d 750.

Plaintiffs assert that defendants failed to establish that the use giving rise to the easement occurred prior to the separation of title in the two parcels. Plaintiffs argue that the evidence introduced at trial only shows that Bessie Rosenthal took title to all of Lot 11 in 1948 and conveyed defendants’ parcel to Rosenthal and Schoenbrod on March 12, 1952, and that no deed showing a conveyance of the remaining portion of Lot 11 to Rosenthal and Schoenbrod was introduced into evidence. According to plaintiffs the failure to introduce the latter establishes that the separation of title occurred in 1952, prior to the construction of the homes in 1953. However, plaintiffs’ argument disregards their failure to respond to defendants’ request to admit facts and their resulting admission, not objected to at trial, that Bessie Rosenthal conveyed all of Lot 11 to the Rosenthals and the Schoenbrods in 1952. (Ill. Rev. Stat. 1979, ch. 110A, par. 216(c).) Furthermore, defendants on appeal have directed our attention to, and have filed in this court, a certified copy of a deed filed with the registrar of titles whereby Bessie Rosenthal conveyed plaintiffs’ parcel to Rosenthal and Schoenbrod on March 12,1952. This document is a public record (Ill. Rev. Stat. 1979, ch. 116, par. 43.103) and as such we take judicial notice of it. (Nordine v. Illinois Power Co. (1965), 32 Ill. 2d 421, 206 N.E.2d 709; Lubershane v. Village of Glencoe (1978), 63 Ill. App. 3d 874, 380 N.E.2d 890.) As Bessie Rosenthal conveyed both parcels, constituting all of Lot 11, to the same owners on March 12,1952, there was a unity of ownership in the two adjoining parcels in Rosenthal and Schoenbrod when the homes were constructed thereon. While there is a unity of ownership the owner or owners may adapt or arrange the two adjoining properties in such a way that one may be charged with the burden of servitude for the benefit of the other. (Cosmopolitan National Bank v. Chicago Title & Trust Co. (1955), 7 Ill. 2d 471, 131 N.E.2d 4.) Thus, the date the unity of ownership (and the consequent authority to arrange and adapt the properties) ceases is the point of reference in ascertaining what servitudes, if any, have been imposed. (Cosmopolitan National Bank.) Here the conveyance of both parcels to Rosenthal and Schoenbrod continued a common ownership of both properties sufficient to indicate the ability to arrange and adapt the property in a manner sufficient with the rules of property in the establishment of an easement by implication. (Cosmopolitan National Bank.) Thus, the severance of title did not occur here until Rosenthal and Schoenbrod conveyed plaintiffs’ parcel to a third party in a deed dated February 8, 1954, sometime after the construction of the two houses in 1953.

Plaintiffs additionally assert, however, that although the record establishes that the houses were built on the property in 1953, the record is silent as to when the now existing improvements were made for which an easement by implication was granted. Defendants concede as much suggesting that a logical inference would establish that the creation of the stoop, stairs, catch basin and sidewalk occurred simultaneously with the construction of the homes in 1953. However, resort to inference is unnecessary as plaintiffs have admitted by reason of their failure to respond to defendants’ request to admit facts that at the time of the construction of the improvements to the realty in question, all of Lot 11 was owned by the Rosenthals and Schoenbrods. Therefore, despite plaintiffs’ assertion to the contrary defendants established that the improvements to the property which would give rise to an easement by implication were made prior to the separation of title.

Finally, plaintiffs assert that defendants failed to establish that “the use of the claimed easement [is] essential to the beneficial enjoyment of [defendants’ property].” (Carter v. Michel (1949), 403 Ill. 610, 617, 87 N.E.2d 759, 762.) It is well established that the law does not require a showing of absolute necessity to support the imposition of an easement by implication over the lands of others, but it is sufficient that such easements be reasonable, highly convenient and beneficial to the dominant estate. (People ex rel. Helgeson v. Hackler (1961), 21 Ill. 2d 267,171 N.E.2d 599.) The catch basin provides access to the sewer system. Therefore, the benefit to defendants’ property derived from the catch basin is self-evident and the grant of an easement for the catch basin was proper. However, a review of the record indicates that very limited testimony was introduced to establish that the easements in the stoop, steps and sidewalk, a matter of inches, were highly convenient and beneficial to defendants’ property. The sole evidence presented consisted of Emma Landoch’s testimony that she did not know if she would be able to fully open her side door if required to cut the stoop and stairs and to move her chain link fence flush with the cut stoop and stairs. Moreover, there is nothing in the record to show that defendants’ use of their property is in any way enhanced by an easement in the sidewalk between the two homes insofar as it encroaches on plaintiffs’ parcel. Implied easements cannot be raised upon meager facts (Partee v. Pietrobon (1957), 10 Ill. 2d 248,139 N.E.2d 750) and likewise cannot be raised in the absence of facts.

For the reasons cited herein that portion of the judgment in favor of defendants granting an implied easement as to the catch basin is affirmed. That portion granting an implied easement as to the encroachment of the concrete stoop and stairs, and of the sidewalk between the residences is reversed, and the cause is remanded to the circuit court with directions to enter judgment therein in favor of plaintiffs and against defendants consistent herewith.

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

SULLIVAN, P. J., and LORENZ, J., concur.


author: PRESIDING JUSTICE WHITE

text:
    THE VILLAGE OF FRANKLIN PARK, Plaintiff-Appellee, v. RICHARD B. OGILVIE, Trustee, Defendant-Appellant.
    First District (3rd Division)
    No. 80-1224
    Opinion filed April 21,1982.
    Carol Richards Lutz, of Chicago, for appellant.
    Kinnaird and Kinnaird, of Chicago (Dorothy Kirie Kinnaird and R. Burke Kinnaird, of counsel), for appellee.
   PRESIDING JUSTICE WHITE

delivered the opinion of the court:

The Chicago, Milwaukee, St. Paul and Pacific Railroad Company (railroad) appeals from orders entered by the circuit court of Cook County denying its amended motion to vacate default judgments. The relevant facts follow. Between December 1976 and January 1979 the Village of Franklin Park (village), a municipal corporation, filed over 200 complaints in the circuit court against the railroad for violation of the village’s municipal code. The Municipal Code of the Village of Franklin Park provides in chapter 19 “Miscellaneous Offenses and Provisions” and in section 19 — 17 “Railroad not to obstruct grade crossings”:

“(a) It is unlawful for a railroad corporation to permit any train, railroad car or engine to obstruct public travel at a railroad-highway grade crossing for a period in excess of ten (10) minutes, except where such train, railroad or engine cannot be moved by reason of circumstances over which the railroad corporation has no control.”

The actual violations occurred between December 24,1976, and September 29,1978. On December 19, 1977, the railroad petitioned for reorganization in the United States District Court for the Northern District of Illinois under section 77 (chapter VIII) of the Bankruptcy Act of 1898 (11 U.S.C. §205 (1976)). On the following day, the bankruptcy court entered an order which provided, among other things, that:

“10. All persons and all firms and corporations, whatsoever and wheresoever situated, located or domiciled, hereby are restrained and enjoined from commencing or continuing any court or other proceeding against the Debtor, ** * * subject, however, to the further order of this court made in accordance with the provisions of Rule 8 — 501 of the Rules of Bankruptcy Procedure except that this order shall not operate (a) to stay the commencement or prosecution to judgment of any claim or action for damages caused by the operation of trains, buses, or other means of transportation, or 0 * (Emphasis added.)

There are 210 proceedings for violations of section 19 — 17 involved in this appeal. Of these 210, judgments for the village were entered by default in 112 of the cases on December 29,1977, and in 98 of the cases on May 24,1979. Fines were imposed on each of the judgments. Thus, all of the default judgments were entered after the filing of the petition for reorganization, although proceedings against the debtor were commenced and the actual road blockages occurred both before and after the filing of the petition.

Subsequently, on January 18, 1980, Richard B. Ogilvie, trustee of the railroad, filed a motion to vacate the default judgments entered on December 29, 1977, and May 24, 1979. An amended motion to vacate these default judgments was filed on March 7,1980, and it is from the denial of this motion that this appeal is taken.

The railroad argues on appeal that the court proceedings below were stayed during the pendency of the railroad reorganization and that the failure of the plaintiff to obtain the permission of the reorganization court to bring these 210 actions to judgment is a jurisdictional defect which requires reversal of the judgments entered by the circuit court. Conversely, appellee village contends that the trial court had jurisdiction of the person and of the subject matter in entering the judgments against the railroad. According to the village, the judgments were therefore valid, and should be submitted to the bankruptcy court to determine whether they will be enforced.

If the court below lacked jurisdiction of the subject matter when it entered the judgments, as the Milwaukee Road contends, then the judgments entered by that court were void. (People ex rel. Scott v. Janson (1974), 57 Ill. 2d 451,459, 312 N.E.2d 620.) Since a void judgment may be set aside at any time (Johnson v. Hawkins (1972), 4 Ill. App. 3d 29, 31, 280 N.E.2d 291), the two-year limitation and other requirements of section 72 of the Civil Practice Act will not prevent relief to the railroad if the judgments entered against it were void. See Ill. Rev. Stat. 1979, ch. 110, par. 72(3), (6).

Section 77 of the Bankruptcy Act of 1898 (11 U.S.C. §205 (1976)) is applicable to the facts of this case. (See Bankruptcy Reform Act of 1978, 11 U.S.C.A. §403(a) (transition) (1979); In re Chicago, Milwaukee, St. Paul & Pacific R.R. Co. (7th Cir. 1981), 654 F.2d 1218, 1220 n.2.) Under section 77(a), in railroad cases the reorganization court has “exclusive jurisdiction of the debtor and its property wherever located.” (See also In re Chicago, Milwaukee, St. Paul & Pacific R.R. Co. (7th Cir. 1981), 654 F.2d 1218, 1220.) Subsection (j) gives a judge in a reorganization proceeding discretion to enjoin or stay suits, in the following words:

“In addition to the provisions of section 29 of this title for the staying of pending suits against the debtor, the judge may enjoin or stay the commencement or continuation of suits against the debtor until after final decree; * * * Provided, That suits or claims for damages caused by the operation of trains, buses, or other means of transportation may be filed and prosecuted to judgment in any court of competent jurisdiction and any order staying the prosecution of any such cause of action or appeal shall be vacated. # * *” (11 U.S.C. §205(j).)

Bankruptcy Rule 8 — 501(a) (11 U.S.C.A. Bankruptcy Rule 8 — 501(a) (1977)) provides:

“A petition filed under Rule 8 — 102 or 8 — 103 shall operate as a stay of the commencement or the continuation of any court or other proceeding against the debtor, or the enforcement of any judgment against it, 99 9 except that this rule shall not operate (1) to stay the commencement or prosecution to judgment of any claim or action for damages caused by the operation of trains, buses, or other means of transportation, 9 9 9.”

Parties affected by this stay are given ample means under subdivisions (c) and (d) of the rule to obtain relief from the stay. (See Advisory Committee’s Note to Rule 8 — 501.) Thus, in the instant case, the commencement or continuation of suits against the debtor was stayed by both the order of the bankruptcy judge and Rule 8 — 501. The stay order entered by the bankruptcy judge is, for our purposes, identical to the stay imposed by the rule.

The exception to the stay “of any claim or action for damages caused by the operation of trains” is clearly not applicable here. These are not claims or actions for damages. Rather, they are quasi-criminal actions seeking to impose a fine or penalty upon the railroad. The village argues that these prosecutions for violations of the ordinance resulted in the imposition of punitive damages, and, therefore, that they may properly be maintained in State court. The plain meaning of the terms “damages” and “punitive damages” prevents such a conclusion. Damages are “[a] pecuniary compensation or indemnity, which may be recovered in the courts by any person who has suffered loss, detriment, or injury, whether to his person, property, or rights, through the unlawful act or omission or negligence of another.” (Black’s Law Dictionary 466 (4th ed. 1968).) Punitive, or exemplary, damages are “damages on an increased scale, awarded to the plaintiff over and above what will barely compensate him for his property loss, where the wrong done to him was aggravated by circumstances of violence, oppression, malice, fraud, or wanton and wicked conduct on the part of the defendant, and are intended to solace the plaintiff for mental anguish, laceration of his feelings, shame, degradation, or other aggravations of the original wrong, or else to punish the defendant for his evil behavior or to make an example of him.” (Black’s Law Dictionary 467-68 (4th ed. 1968).) The fines that the village is trying to recover are clearly not damages because they are not compensatory in nature. Similarly, they are not punitive damages because they are not enhanced damages. Rather they are penalties, i.e., punishment imposed as a consequence of the commission of an offense. (Black’s Law Dictionary 1290 (4th ed. 1968).) We, therefore, conclude that this case does not fall within the aforementioned express exception to the stay. See United States v. Dorigan (E.D.N.Y. 1964), 236 F. Supp. 106,108.

The railroad relies primarily upon United States v. Dorigan in arguing that the circuit court lacked jurisdiction to enter the judgments at issue in this appeal. That case involved an action by the United States government against the trustees of a debtor railroad to recover a penalty for violation of the Federal Safety Appliance Act. The violation had occurred prior to the filing of the petition for reorganization, and on the day the petition was filed, the bankruptcy court entered an order which restrained and enjoined all persons “from commencing or continuing any suits against the debtor” subject to an exception similar to the aforementioned exception to the stays in this case. In holding that the complaint would be dismissed unless consent to institute the suit was obtained from the bankruptcy court, the court stated:

° ° there is no authorization for such suit after the appointment of trustees. Failure of the Government to obtain permission of the Bankruptcy Court to bring the present action was a jurisdictional defect justifying dismissal.” (Emphasis added.) (236 F. Supp. 106, 109.)

The court also stated that the purpose of staying suits was “to require all suits against the Debtor to be determined by the Bankruptcy Court so that the Court might not be delayed or frustrated in expeditiously reorganizing the properties of the Debtor.” (236 F. Supp. 106,109.) The railroad, on the authority of Dorigan, argues that the failure of the village to file a complaint pursuant to Bankruptcy Rule 8 — 501(c) seeking relief from the stay was a “fatal flaw.”

Notwithstanding Dorigan, there is authority for the position that the old Bankruptcy Act was not intended to interfere with the criminal or quasi-criminal laws of a State. Thus, in People v. Penn Central Transportation Co. (1978), 95 Misc. 2d 748, 417 N.Y.S. 822, a court stated that bankruptcy proceedings are civil in nature and do not divest a State court of criminal jurisdiction. The instant case involves a civil action to enforce a quasi-criminal ordinance. Colonial Tavern, Inc. v. Byrne (D. Mass. 1976), 420 F. Supp. 44, is instructive on the effect of the old Bankruptcy Act on the police power of the State. In that case, the Federal district court affirmed the order of the bankruptcy judge which vacated a temporary restraining order and refused to grant a preliminary injunction enjoining the licensing board of the City of Boston, the police commissioner of the City of Boston, and the Massachusetts Alcoholic Beverages Control Commission from enforcing the suspension for 60 days of liquor licenses held by the debtors. That case involved a stay imposed by Bankruptcy Rule 11 — 44 upon the filing of a petition under Chapter XI of the Bankruptcy Act. The court stated:

“In my view, the true relationship between the Bankruptcy Act and comprehensive state regulation was described by Judge Augustus Hand in In re Bay Ridge Inn, Inc., Smith v. New York State Liquor Authority, 94 F.2d 555, 557 (2d Cir. 1938). 0 0 0 [T]he powers of a Bankruptcy Court do not extend to interference in the comprehensive regulatory laws of a state. * * *
* * * If the debtor’s position were to be adopted, Chapter XI would provide an instantly available, cheap and easy sanctuary from all state regulatory proceedings.
Nothing in the prior case law of section 314 of the available history of Rule 11 — 44 suggests that the Bankruptcy Act was ever intended by Congress to subvert the valid police power of the states in this manner.” (420 F. Supp. 44, 45-46.)

Similar language is also found in In re Application of Lewis (S.D.N.Y. 1981), 512 F. Supp. 1146, 1149, where the court said: “a state’s exercise of regulatory or ‘police’ power is not divested of jurisdiction or authority by the fact that the subject is under the exclusive jurisdiction of a federal bankruptcy court.”

Here, the ordinance involved is a “police power” provision. As such, we conclude that Congress did not intend to interfere with its enforcement, at least insofar as the State court proceedings do not result in a taking of property. Accordingly, we hold that the circuit court had jurisdiction to enter the judgments and impose fines. We make no holding as to the enforceability of those judgments or fines. By limiting the scope of our decision, our State courts will not be interfering with the reorganization of the properties of the debtor.

Having determined that the circuit court had jurisdiction to enter the judgments, the only remaining question is whether the railroad was entitled to relief under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72). The railroad’s first motion to vacate was filed on January 18, 1980, more than two years after the December 29, 1977, judgments. Section 72(3) provides with certain exceptions not applicable here that a petition be filed not later than two years after the entry of judgment. Therefore, the trial court did not err in denying the amended motion to vacate as to the December 29, 1977, judgments. Johnson v. Hawkins (1972), 4 Ill. App. 3d 29, 32, 280 N.E.2d 291.

Furthermore, the railroad was not entitled to relief under section 72 from the judgments entered on May 24,1979. To warrant section 72 relief, the petitioner must demonstrate: (1) the existence of a meritorious defense or claim; (2) due diligence in presenting this defense or claim to the trial court in the original action; (3) that through no fault of his own an error of fact was made or a defense or claim was not raised; and (4) due diligence in filing the section 72 petition. The petitioner must set forth specific factual allegations supporting each of these elements and must prove his right to the relief sought by a preponderance of the evidence. (Canton v. Chorbajian (1980), 88 Ill. App. 3d 1015,1021,410 N.E.2d 1166; Mitchell v. Seidler (1979), 68 Ill. App. 3d 478, 482, 386 N.E.2d 284.) In order to obtain relief from a default judgment a petitioner must show that his failure to defend against the lawsuit was the result of an excusable mistake and that he acted reasonably, and not negligently, when he initially failed to resist the judgment. (American Reserve Corp. v. Holland (1980), 80 Ill. App. 3d 638, 643, 400 N.E.2d 102.) In the instant case, the railroad failed to allege and prove the exercise of due diligence in presenting a defense in the original action. The affidavit of counsel for the railroad which accompanied the motion to vacate, merely stated that he had informed village prosecutors of the pendency of the bankruptcy proceedings and the stay order, and that he was never informed that judgments in the State court had been entered. A section 72 petition is not intended to relieve a party from the consequences of his own mistake or negligence (Brockmeyer v. Duncan (1960), 18 Ill. 2d 502,505,165 N.E.2d 294), and a litigant has a duty to follow the progress of his case (Mitchell v. Seidler (1979), 68 Ill. App. 3d 478, 483). Here, the railroad did not. Accordingly, the railroad was not entitled to relief from any of the judgments under section 72.

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

Affirmed.

McNAMARA and RIZZI, JJ., concur.

       Subsequent to the filing of the petition, the Bankruptcy Act of 1898 has been replaced • by the Bankruptcy Reform Act of 1978.

       Although section 77 is applicable here, it has been superseded by provisions of the Bankruptcy Reform Act of 1978.


author: JUSTICE McGILLICUDDY

text:
    THE STATE OF ILLINOIS ex rel. SAMUEL K. SKINNER, Chairman, Capital Development Board, Plaintiff-Appellee, v. THE LOMBARD COMPANY, Defendant-Appellant.—(FITCH/LA ROCCA ASSOCIATES, INC., et al., Defendants.)
    First District (3rd Division)
    No. 81-0006
    Opinion filed April 21,1982.

      Clausen, Miller, Gorman, Caffrey & Witous and Snow & Snow, Ltd., both of Chicago (James T. Ferrini, David B, McAfee, and Robert H. Mittelman, of counsel), for appellant.
    Tyrone Fahner, Attorney General, of Chicago (Saul A. Epton, Special Assistant Attorney General, and Epton, Mullin, Segal & Druth, Ltd., of counsel), for appellee Capital Development Board.
    Lord, Bissell & Brook, of Chicago (Richard E. Bueller, of counsel), for amicus curiae Chicago Builders Association.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

This case comes before this court as a permissive interlocutory appeal pursuant to Supreme Court Rule 308 (Ill. Rev. Stat. 1979, ch. 110A, par. 308) and concerns the interpretation of a certain building contract.

The plaintiff, the State of Illinois ex rel. Samuel K. Skinner, Chairman, Capital Development Board (Capital), brought this action in the circuit court of Cook County for breach of contract and negligence arising out of alleged deficiencies in the construction of Morton Community College. The defendants are the architect, Fitch/LaRocca Associates, Inc.; the general contractor, the Lombard Company (Lombard); its surety, Aetna Casualty and Surety Company; the electrical contractor, Gordon Electric Construction Co.; and its surety, Fidelity and Deposit Company of Maryland.

Lombard filed a motion to dismiss the action or, in the alternative, for a stay of proceedings and to compel arbitration as provided in its construction contract with Capital. The contract between Capital and Lombard, which was executed on December 6, 1973, consisted of the general conditions of the contract for construction, prepared by the American Institute of Architects as Document A201, and the supplemental general conditions, prepared by the parties. The pertinent provisions of the contract, relating to the motion, are as follows:

“7.6 RIGHTS AND REMEDIES
7.6.1 The duties and obligations imposed by the Contract Documents and the rights and remedies available thereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law.”
“7.10 ARBITRATION
7.10.1 All claims, disputes and other matters in question arising out of, or relating to, this Contract or the breach thereof, except as set forth in Subparagraph 2.2.9 with respect to the Architect’s decisions on matters relating to artistic effect, and except for claims which have been waived by-the making or acceptance of final payment as provided by Subparagraphs 9.7.5 and 9.7.6, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.”
“7.10.3 The Contractor shall carry on the Work and maintain the progress schedule during any arbitration proceedings, unless otherwise agreed by him and the Owner in writing.”

On December 11, 1980, the trial court denied the motion to dismiss, finding that:

“It was the clear intention of the agreement as expressed in Articles 7.6.1 and 7.10 of the General Conditions of the Contract for Construction that arbitration be used for any and all claims or problems that arose during the course of construction. Once the building was completed, all remedies available by law under Article 7.6.1, namely, a lawsuit, may be used.”

On December 19, 1980, the trial court certified the following questions for immediate appeal:

“(1) Whether an arbitration provision in a building construction contract preempts suit, when the contract also provides that the remedies available thereunder ‘shall be in addition to and not in limitation of any duties, obligations, rights and remedies otherwise imposed or available by law.’
(2) Whether an arbitration provision in a building construction contract which also provides the remedies available thereunder are ‘in addition to and not in limitation of any remedies otherwise available by law was intended to settle disputes arising while the contract was executory and that suit is an available remedy for matters which arise after completion of construction.”

It is a general rule that parties are bound to arbitrate only those issues which by clear and unequivocal language they have agreed to arbitrate. (Flood v. Country Mutual Insurance Co. (1968), 41 Ill. 2d 91, 242 N.E.2d 149; Ozdeger v. Altay (1978), 66 Ill. App. 3d 629, 384 N.E.2d 82.) Article 7.10.1 of the construction contract clearly and unequivocally provides that all claims arising out of or relating to the contract or the breach thereof shall be decided by arbitration. It is undisputed that the claims in the instant case arose out of an alleged breach of the construction contract.

It is Capital’s position, and the trial court agreed, that the provision for mandatory arbitration was modified by certain other provisions of the contract. Capital asserts that the parties intended that only disputes arising during construction be submitted to arbitration and points out that article 7.10.3 provides for the continuation of the construction during arbitration. Capital concludes that if arbitration is allowed after completion of the construction, article 7.10.3 is rendered meaningless.

In United States Fidelity & Guaranty Co. v. Bangor Area Joint School Authority (E.D. Pa. 1973), 355 F. Supp. 913, the court considered whether article 7.10.3 rendered the arbitration clause inapplicable after completion of the construction. The court concluded that there is “nothing in a ‘work stoppage’ clause, standing alone, which is inconsistent with the intention that the arbitration clause remain viable after completion of the work.” (355 F. Supp. 913, 915. See also Chester City School Authority v. Aberthaw Construction Co. (1975), 460 Pa. 343, 333 A.2d 758.) Article 7.10.3 merely provides that the work shall continue during any arbitration proceeding which occurs during construction.

Capital distinguishes United States Fidelity by pointing out that the construction contract in that case did not contain a reservation of remedies provision. Capital asserts that the arbitration provision in the instant contract must be construed together with article 7.6.1 which provides that the remedies available under the contract are in addition to and not a limitation of the remedies available by law. Thus, Capital concludes that once the construction was completed, it was entitled to pursue its common law remedy of filing a lawsuit.

We first note that if article 7.6.1 renders arbitration optional, arbitration is always optional regardless of whether the dispute arises before or after the completion of the construction. However, we do not believe that the reservation of remedies provision makes the arbitration requirement optional. If it did, the mandatory requirement of arbitration in article 7.10.1 has no meaning. Contractual terms will be construed to avoid the conclusion that other terms are redundant or meaningless. Pierce v. MacNeal Memorial Hospital Association (1977), 46 Ill. App. 3d 42, 360 N.E.2d 551.

Article 7.6.1 is a general provision designed to cover rights and remedies available under the law of a given jurisdiction which are not specifically provided for in the contract. It does not vitiate the explicit mandate of article 7.10.1 that claims and disputes shall be decided by arbitration. Thus, the trial court’s finding of fact concerning the intent of the parties was erroneous.

Capital asserts two additional reasons to support the trial court’s refusal to dismiss this action. First, it argues that the circuit court is the only forum available to resolve all of its claims against all defendants in a single action. If Capital proceeded to arbitrate its claim against Lombard and simultaneously to proceed against the other defendants in an action at law, Capital asserts that there is a possibility of inconsistent adjudications as to which defendants were responsible for the alleged construction defects. Second, Capital contends that it lacked the statutory authority to agree to arbitrate and, thus, cannot be compelled to arbitrate its claim.

The record does not reveal whether the trial court addressed either of these issues. In any event, neither of these questions were certified by the trial court in its December 19,1980, order. Because Supreme Court Rule 308 provides an exception to the general rule that an appeal may be taken only from final judgments of the circuit court, it should be strictly construed and sparingly exercised. An appeal thereunder should be limited to the questions certified by the trial court. (Getto v. City of Chicago (1981), 92 Ill. App. 3d 1045,416 N.E.2d 1110.) This court should not expand upon the questions properly brought before us by the trial court in order to answer others which could have been included. (Potter v. Chicago Heights Motor Freight, Inc. (1979), 78 Ill. App. 3d 676, 396 N.E.2d 1366.) Thus, we will not consider Capital’s two additional arguments.

Accordingly, the first certified question is answered in the affirmative; the second certified question is answered in the negative; the order of the trial court of December 11, 1980, is vacated; and this matter is remanded to the trial court for further proceedings consistent with the views expressed herein.

Remanded.

WHITE, P. J., and RIZZI, J., concur.

       By leave of court, an amicus curiae brief was filed by Chicago Builders Association.


author: JUSTICE LINN

text:
    EVELYN CHMIELESKI, Plaintiff-Appellee, v. VENTURE STORES, INC., Defendant-Appellant.
    First District (4th Division)
    No. 81-153
    Opinion filed April 22,1982.
    Thomas J. Keevers and Daniel N. Janich, both of Chicago, for appellant.
    No brief filed for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff filed an action for personal injuries which she sustained when she fell on defendant’s sidewalk outside its store. A directed verdict for liability was entered against defendant, and the jury then awarded $41,600 in damages. Defendant now raises numerous issues in challenging this judgment. While plaintiff has not filed a brief as appellee, we shall consider the merits of defendant’s position.

About 9 a.m. on Sunday, December 5, 1976, defendant’s employee cleaned the sidewalk by defendant’s store in Oak Lawn. This employee could not recall the later events, but his maintenance report for that day indicated that he would have checked the sidewalk every 30 minutes thereafter. Plaintiff arrived at defendant’s store about 3:30 p.m. After conducting her business, she walked out onto the store sidewalk. About 25 feet from the defendant’s doorway she fell, even though she walked carefully on the slippery sidewalk which was bumpy from footprints in the ice and “slushy in spots.”

The bystander, who witnessed the accident and then assisted plaintiff, testified that the sidewalk was very slippery. Although he did not see an accumulation of ice and snow in the immediate area, he recalled that the sidewalk was wet with a light layer of dirt which formed a “slime condition.” After assisting plaintiff into a store to await an ambulance, he went outside and saw several store employees salting the sidewalk.

Over a defense objection a letter supposedly written by Roger Coin, an employee of defendant’s insurer Liberty Mutual, was read to the jury by plaintiff’s counsel. This letter had been sent to plaintiff’s treating physician. Counsel for plaintiff stated to the jury that the letter bore the name of Liberty Mutual Insurance Company, its business address and the date of January 17, 1977. Plaintiff’s counsel quoted from the letter indicating that Liberty Mutual was defendant’s insurer; that Coin, a member of the claims department, had investigated the accident and was of the opinion that defendant was liable; and that he would handle all claims and expenses incurred by plaintiff as a result of the accident. Evidence was also introduced that over approximately a 7-month period from the date of the accident certain medical and other bills were paid by the insurer.

Defendant’s initial contention is that the trial court erred in denying its motion for a directed verdict and in granting plaintiff’s motion for a directed verdict on the issue of liability. The question of defendant’s liability is closely interwoven with the admissibility of the letter from Roger Coin.

As stated in Timmons v. Turski (1981), 103 Ill. App. 3d 36, 38, 430 N.E.2d 1135:

“It is well settled that a property owner is not liable for injury sustained by a business invitee in a fall on an icy sidewalk or parking lot maintained by the property owner for the use of his customers where the condition is a natural one and not caused or aggravated by the property owner. (Zide v. Jewel Tea Co. (1963), 39 Ill. App. 2d 217,188 N.E.2d 383.) On the other hand, a property owner may be liable for injury sustained by a business invitee who falls and is injured as a result of snow and ice which did not accumulate as a result of natural causes but as the result of the property owner’s conduct in creating an unnatural or artificial accumulation of the snow and ice. (Zide.) Although there is no duty to remove snow and ice from one’s premises, a voluntary undertaking to remove such snow and ice may be the basis of liability if the removal is performed negligently. (DeMario v. Sears Roebuck & Co. (1972), 6 Ill. App. 3d 46, 284 N.E.2d 330.) However, mere removal of snow, which may leave a natural ice formation remaining on the premises does not of itself constitute negligence.”

(See also Smalling v. La Salle National Bank (1982), 104 Ill. App. 3d 894, 433 N.E.2d 713.) We are of the opinion that absent the letter by Roger Coin, the evidence does nót show any basis to direct a verdict in favor of plaintiff on the issue of liability, or to even establish a basis for defendant’s liability to be submitted to the jury.

Defendant maintains that there was no authentication for the letter; that no foundation to show Coin’s authority to bind defendant as a principal was demonstrated; and Coin’s statement that defendant was liable was merely a legal conclusion or expression of opinion and not an admission on the ultimate issue of fact.

In commenting upon the introduction of an otherwise inadmissible hearsay statement of a third party in a situation such as the present case, one authority has stated: “[I]t must be proved prima facie, that the third person was an agent * * *; and it must appear or be shown that he had authority as agent # e ” or otherwise to make the statement ° ° ° in question or that his statement or act had been ratified. Where a statement is in writing, it must also be identified by a witness who testifies to its correctness.” 5 Callaghan’s Illinois Evidence, sec. 10.77, pp. 424-425 (1964).

The evidence in the present case does not demonstrate that Roger Coin was an agent authorized to make a statement which would bind defendant. (Kapelski v. Alton & Southern R.R. (1976), 36 Ill. App. 3d 37, 42, 343 N.E.2d 207.) Further, Coin’s statement was merely an expression of his opinion that defendant later disavowed. (Strauch v. United States (7th Cir. 1980), 637 F.2d 477,481.) We therefore believe that Coin’s letter to plaintiff’s physician was inadmissible as an admission. Absent this consideration the evidence presented by plaintiff was insufficient to establish defendant’s liability. (Compare Timmons v. Turski, and authorities cited therein.) A directed verdict for defendant should therefore have been granted.

Accordingly, the judgment of the circuit court is reversed.

Reversed.

JOHNSON, P. J., and ROMITI, J., concur.

       The co-defendant, Great Atlantic and Pacific Tea Company, received a directed verdict in its favor, and no question is raised as to the propriety of that ruling.

       At the time of trial plaintiff’s counsel represented that Roger Coin was no longer employed by Liberty Mutual and was unavailable to testify.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES WATSON, Defendant-Appellant.
    First District (4th Division)
    No. 81-985
    Opinion filed April 22, 1982.
    James J. Doherty, Public Defender, of Chicago (Thomas W. Murphy, Assistant Public Defender, of counsel), for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Casimir J. Bartnik, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Following a bench trial, defendant was found guilty of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 2). He was sentenced to 6 years in prison. On appeal, defendant contends that he was not proved guilty beyond a reasonable doubt.

At trial it was stipulated that on July 22, 1980, at approximately 4:30 a.m., while Rachel Ramos and Dolores Haltquist were waiting for a bus, Kenneth Barnes jumped out of a tan station wagon and, at gunpoint, robbed Mrs. Ramos of her purse containing $15 and identification cards. Barnes then told her to run, at which time he fired a shot; then he returned to the station wagon.

Chicago police officer Raymond Howe testified that pursuant to a radio message of a robbery he stopped the tan station wagon in which defendant and Barnes were riding. The officer searched them and found a 20-gauge shotgun and a .38-caliber revolver in the station wagon. At the police station defendant told him that he and Barnes had been robbed by some gang members earlier, so they went to defendant’s house and got his father’s guns. Defendant drove and at 110th and Western Avenue, Barnes said, “Let’s get them.” Defendant pulled over, Barnes got out of the car carrying a revolver, then returned shortly with a purse. On cross-examination, Officer Howe admitted that his report of the incident did not contain the interview with defendant.

Defendant testified that he and Barnes were leaving a fast-food franchise at 105th and Halsted Streets at 1 a.m. when Barnes was robbed by gang members. They then went to defendant’s house, took his father’s guns, and drove around the neighborhood looking for their robbers. They saw them at 103rd and the expressway but kept driving. At about 111th and Western Avenue, Barnes told defendant to pull over, which he did. Barnes then jumped out of the car. Defendant did not see a gun in Barnes’ hand, and Barnes did not indicate that he was going to rob Ramos or Haltquist. Defendant saw Barnes pull out his father’s revolver as he approached the women. Defendant testified he did not know whether to run since it was his father’s gun. Barnes took the purse, returned to the car, rummaged through the purse, then threw it out the window. Defendant started driving but was pulled over by the police shortly thereafter. He did not try to flee. He told the police at the station that he had not wanted and had not played any part in the robbery.

Defendant contends that he was not proved guilty of armed robbery beyond a reasonable doubt based on accountability. He maintains that he was not aware of Barnes’ intent to rob Mrs. Ramos and that no evidence was presented to show that he assisted Barnes. Furthermore, defendant points to the trial court’s comments as reservations about his guilt.

Section 5 — 2(c) of the Criminal Code of 1961 provides that a person is legally accountable for the conduct of another when:

“(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.” (Ill. Rev. Stat. 1979, ch. 38, par. 5 — 2(c).)

Mere presence at the scene of the crime or negative acquiescence in another’s action is insufficient to establish accountability. (People v. Nugara (1968), 39 Ill. 2d 482,487, 236 N.E.2d 693.) One may aid and abet, however, without actively participating in the overt act. (People v. Dandridge (1979), 79 Ill. App. 3d 693, 695, 398 N.E.2d 955.) Defendant’s presence during commission of a crime without disapproving or opposing the commission of the crime, a continued close affiliation with the co-defendant after the commission of the crime, and his failure to report the incident or confide in anyone about it are all factors which may be considered in establishing accountability. People v. Lopez (1979), 72 Ill. App. 3d 713, 716, 391 N.E.2d 105.

In the instant case, defendant’s contention in his brief that whether Barnes said “Let’s get them” is immaterial. It is undisputed that defendant pulled the car over to the curb, that Barnes got out, and that defendant saw him point a gun at Mrs. Ramos, take her purse, and return to the car with the purse. Defendant did nothing to dissuade Barnes from taking Mrs. Ramos’ purse nor did he drive away without Barnes to look for police. Instead, he drove Barnes away from the scene of the crime. In spite of defendant’s acquiescence to the police stop and his statement to the police that he did not know what to do because Barnes used his father’s gun to commit the robbery, there was sufficient evidence for the trier of fact to reach the conclusion that defendant assented to the commission of the crime, lent to it his countenance and approval, and thereby aided and abetted the crime. See generally People v. Morgan (1977), 67 Ill. 2d 1, 364 N.E.2d 56.

Moreover, the trial court’s comments, which defendant contends showed reservations about his guilt, actually showed reservations about defendant’s punishment. Despite the fact that defendant had no prior criminal record, had supportive parents, and was only 17 years old, the court was mandated by the legislature to sentence defendant to a minimum of 6 years in prison if he was found guilty of armed robbery. As to guilt, the trial court stated that certain factual matters were confirmed by defendant’s testimony himself and the case was “prima facie” and “iron-clad” unless defendant had an explanation. The trial court weighed defendant’s testimony about the gang robbery and Officer Howe’s testimony that defendant knew Barnes’ intention. The court found defendant’s explanation unacceptable in view of the other testimony in the case. The credibility of a witness and the weight to be given his testimony are to be determined by the trier of fact. (People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313.) A reviewing court will not reverse a criminal conviction unless the evidence is such as to raise a reasonable doubt of guilt. (People v. Jones (1975), 60 Ill. 2d 300, 308, 325 N.E.2d 601.) In light of our above finding of sufficient evidence, we find defendant guilty beyond a reasonable doubt of armed robbery based on accountability.

The judgment of the circuit court of Cook County is affirmed.

Affirmed.

JOHNSON, P. J., and ROMITI, J„ concur.

       Kenneth Barnes pleaded guilty in a separate proceeding.