author: JUSTICE DOWNING

text:
    FOSTER and KLEISER, A DIVISION OF METROMEDIA, INC., Plaintiff-Appellee, v. THE VILLAGE OF SCHAUMBURG, Defendant-Appellant.
    First District (2nd Division)
    No. 83—1026
    Opinion filed August 14, 1984.
    Jack M. Siegel, of Chicago, for appellant.
    Thomas T. Burke, William E. Ryan, and Barry A. Springer, all of Burke & Ryan, of Chicago, for appellee.
   JUSTICE DOWNING

delivered the opinion of the court:

This is a declaratory judgment action. Plaintiff Foster and Kleiser seeks to have the sign ordinance of defendant village of Schaumburg, which prohibits billboards, declared unconstitutional. The trial court entered a preliminary injunction enjoining enforcement of the sign ordinance and subsequently declared sections of the sign ordinance unconstitutional. Defendant appeals.

Plaintiff, a division of Metromedia Corporation, is engaged in the outdoor advertising business. Defendant is a home-rule municipality located in Cook and Du Page counties.

Plaintiff currently owns a billboard on a leased parcel of land in the village of Schaumburg. Plaintiff entered into a lease for the property on March 1, 1957. At that time, the property was in Du Page County. Since June 28, 1963, however, the property has been part of the village of Schaumburg. On November 26, 1957, plaintiff, then doing business as General Outdoor Advertising Co., Inc., secured a building and use permit from Du Page County authorizing the construction of a sign on the leased property. The sign was built soon thereafter and has been continuously maintained since the date of construction.

On August 27, 1974, the defendant adopted Sign Ordinance No. 1099 (sign ordinance), the effect of which was to render plaintiff’s sign unlawful. Section 26 — 4 of the sign ordinance provides:

“Billboards, flashing signs, projecting signs, permanent pennants and streamers, signs painted directly on wall, roof signs, and car signs are hereby expressly prohibited for erection, repair, alteration, or relocation within the village, except as permitted in other sections of this chapter.”

Section 26 — 1 of the sign ordinance defines billboards as follows:

“Any sign other than a directional sign, which directs attention to a business, commodity, service or activity not conducted, sold or offered upon the premises where such sign is located.”

Section 26 — 27 of the sign ordinance provides in part:

“Every sign or other advertising structure in existence on adoption of this chapter which violates or does not conform to the provisions hereof shall be removed or altered or replaced so as to conform with the provisions of this chapter within five years ***.”

Plaintiff was notified by defendant in 1975 that it would have to remove the sign subject to the amortization provisions of the ordinance. On November 2, 1979, defendant notified plaintiff by letter, signed by the village building inspector, that: “I am enclosing a copy of the sign ordinance that states ‘all non-conforming signs must be removed by September 29, 1979.’ ” Plaintiff failed to remove the sign and defendant commenced an ordinance violation proceeding. Plaintiff appeared in court on January 7, 1980, to answer the charge of display of an illegal sign; the quasi-criminal action was continued pending the determination of plaintiff’s petition for injunctive relief. On February 26,1980, the instant action was instituted by plaintiff.

Plaintiff sought and was granted a preliminary injunction enjoining enforcement of the ordinance. Plaintiff sought a declaration by the court that defendant’s sign ordinance was unconstitutional on its face and as applied to plaintiff’s sign. The case was continued pending a decision by the United States Supreme Court in Metromedia, Inc. v. City of San Diego (1981), 453 U.S. 490, 69 L. Ed. 2d 800, 101 S. Ct. 2882. After a hearing, the court found the sign ordinance to be unconstitutional on its face and permanently enjoined its enforcement. The trial court further directed that its written memorandum be attached to and made part of the order. Defendant appeals.

I

We first consider defendant’s claim that the trial court had no jurisdiction to grant an injunction or declaratory judgment during the pendency of a case in the municipal department of the circuit court of Cook County.

A

Circuit Court Of Cook County

In order to understand defendant’s contention, it is necessary to briefly describe the circuit court of Cook County. It is divided into two departments, county and municipal. The county department is divided into seven divisions, one of which is the law. Within the law division is the miscellaneous section where judges hear cases characterized as extraordinary remedies, which includes declaratory judgment and related injunction-type actions. The municipal department hears, amongst other things, cases involving quasi-criminal offenses. It is divided into six geographical districts.

By virtue of section 9, article VI, of the Judicial Article of the 1970 Constitution (Ill. Const. 1970, art. VI, sec. 9), the circuit court has original jurisdiction of all justiciable matters.

Supreme Court Rule 295 (87 Ill. 2d R. 295) provides that the chief judge of each circuit may assign an associate judge to hear and determine any matters, except the trial of certain criminal matters. In Cook County, associate judges are generally those sitting in the municipal department.

The general orders of the circuit court of Cook County set forth where civil and criminal proceedings are heard; e.g., section 2.2(b)(iii) provides:

“(iii) The Municipal Department also hears actions and proceedings filed by municipal corporations seeking relief, including in-junctive relief, except proceedings in which the validity of a zoning ordinance is in controversy;
(1) For the enforcement of building, housing and zoning ordinances;
(2) For the appointment of receivers in said cases to cause compliance with the said ordinances;
(3) For the demolition of dangerous, unsafe and uncompleted buildings.”

Section 2.2(e)(ii) (although not involved in the resolution of this matter) provides that quasi-criminal cases shall be filed whenever practicable in that district nearest to the location of the offense.

B

Litigation

79-3-007890-01

The defendant filed in the municipal department, on or about December 5, 1979, a case against plaintiff for failure to remove its sign as required by its sign ordinance, Village of Schaumburg v. Frederick A. Schmigle, Individually and as Agent for Foster & Kleiser Co., No. 79-3-007890-01.

The information concerning the quasi-criminal case is gleaned from the instant case, its pleadings, briefs and oral argument before this court.

80 L 4714

While the municipal department case was pending, plaintiff filed, on February 26, 1980, a complaint for declaratory judgment challenging the constitutionality of defendant’s sign ordinance adopted August 27, 1974, requesting that defendant be enjoined and restrained from enforcing the sign ordinance. This was assigned to the county department, law division, miscellaneous section. Because of the nature of relief requested (declaratory judgment and injunction), the instant case was assigned to the extraordinary remedy calendar of the law division. The complaint attached the sign ordinance, referred to various pertinent sections thereof, and alleged that the said sign ordinance violated both the United States and Blinois Constitutions. Plaintiff simultaneously filed a petition, containing identical allegations, for a preliminary injunction. Defendant answered by, amongst other things, challenging the jurisdiction of the law division (of the county department) in hearing the matter inasmuch as a previously filed suit, No. 79 — 3—007890—01, involving the same ordinance was pending in the municipal department.

The trial court entered a preliminary injunction and, following an evidentiary hearing, held portions of defendant’s sign ordinance to be unconstitutional. Thereafter, defendant was permanently enjoined from interfering with or prohibiting plaintiff from maintaining its sign.

II

Jurisdiction

A

The record in the instant case contains the original complaint for declaratory judgment as well as amended complaints for declaratory judgment and for a preliminary injunction. In all the said pleadings, plaintiff’s position clearly and unequivocally attacked the constitutionality of defendant’s “Sign Ordinance, Ordinance Number 1099.” All of the challenged “portions and sections” were from the sign ordinance. In none of the pleadings did plaintiff refer to any zoning ordinance of defendant’s municipal code.

In the preliminary injunction entered on March 24, 1980, defendant was enjoined from enforcing provisions “of its sign ordinance” and from taking any further action in case 79 — 3—007890—01. This order was not appealed. In the trial court’s final judgment order entered March 31, 1980, in the instant case, and in the accompanying memorandum, those portions of the sign ordinance that prohibit billboards as defined in the sign ordinance were declared unconstitutional. Nothing in any trial court’s orders or memoranda refer to any zoning ordinance of defendant.

The distinction between the “sign” and “zoning” ordinance has become critical because of the question as to conflict between the two actions and General Order 2.2(b)(iii). Plaintiff, in its brief and in oral argument before this court, characterized the sign code as a “zoning ordinance.”

The record in the instant case indicates that defendant, on August 27, 1974, adopted the sign ordinance. It was incorporated into the “Schaumburg Municipal Code” as chapter 26, titled “Signs.” All of the disputed provisions involved in this litigation are within chapter 26.

Defendant adopted, on December 5, 1961, a zoning ordinance. Article IX thereof referred to signs. This article was divided into sections for residence, business and manufacturing districts. None of the provisions of this article or ordinance have been referred to or complained about in any of plaintiff’s pleadings in the instant case. On September 23, 1980, defendant adopted its ordinance No. 1906 amending article IX of the said zoning ordinance as follows:

“*** That Article IX of the Zoning Ordinance of the Village of Schaumburg is hereby amended by deleting this entire Article and adding the following:
‘Article IX - Signs
Refer to Chapter 26, titled Signs, of the Schaumburg Municipal Code.’ ”

Defendant argues that the trial court in the instant appeal did not have jurisdiction by virtue of the action pending in the municipal department; that the constitutional issue could have been raised in that court; and that this case is not a zoning case. Plaintiff argues that the constitutional issue had to be raised in the instant proceeding and that this issue involves a zoning case. Plaintiff also suggests defendant should have appealed the trial court’s grant of a preliminary injunction but, on the other hand, in oral argument before this court acknowledged that defendant can now properly appeal the jurisdictional issue.

Plaintiff also suggests that defendant agreed to delay the municipal department case pending resolution of the instant case. However, the defendant’s pleadings in the instant case clearly challenged the trial court’s jurisdiction in the declaratory judgment case, and defendant disputes plaintiff’s contention. We find nothing in the record to support plaintiff’s claim that defendant agreed to any delay. Obviously, once the trial court in this matter entered the preliminary injunction on March 24, 1980, defendant was judicially enjoined from proceeding in the original case.

B

We next consider the question as to whether plaintiff’s challenge to the constitutionality of the sign ordinance could have been filed in the original municipal case. The answer to that is “yes.” In Malone v. Cosentino (1983), 99 Ill. 2d 29, 33, 457 N.E.2d 395, the supreme court noted that the constitutionality of penalties and fines imposed in a traffic case could have been challenged in that case. Malone brought a civil class action suit challenging the constitutionality of certain fines levied against himself in a traffic violation case. Malone did not appeal from the conviction and imposition of the fines. The supreme court held the civil action was an impermissible collateral attack on Malone’s criminal conviction. Malone v. Cosentino (1983), 99 Ill. 2d 29, 35, 457 N.E. 2d 395.

In City of Chicago v. Chicago City Ry. Co. (1906), 222 Ill. 560, 572, 78 N.E. 890, the supreme court said:

“Litigation commenced in a court of competent jurisdiction should be allowed to proceed to a final conclusion in that court, and for a court of equity to take jurisdiction to decide a suit upon a ground equally available in a court of law would be obvious error.”

See also, Delta Die Casting Co. v. Village of Schiller Park (1958), 17 Ill. App. 2d 543, 150 N.E.2d 843; and Mister Softee of Illinois, Inc. v. City of Chicago (1963), 42 Ill. App. 2d 414, 192 N.E.2d 424.

In the instant case, the constitutional issue could have, and should have, been raised by plaintiff in the first-filed case, i.e., in the municipal department.

C

Plaintiff, in its brief before this court, urged that as the ordinance named was a “zoning ordinance,” the municipal department was not authorized to determine the validity of such ordinance, since the trial court is the branch of the circuit court which hears challenges to the constitutionality of zoning ordinances.

The fallacy of plaintiff’s argument is its own pleadings. Throughout the entire case in the trial court, plaintiff asked for relief from the “Sign Ordinance.” At no time did it suggest to the trial court that it was challenging a “Zoning Ordinance.” The trial court’s judgment order and accompanying memorandum referred to the ordinance as a “Sign Ordinance.”

In fact, as earlier described in this opinion, the records of defendant Village indicate the disputed ordinance was a part of its “Sign Ordinance.” The amendment to the zoning ordinance adopted by defendant (Ordinance No. 1906) September 23, 1980, did not change the issue in the instant case.

General Order 2.2(b)(iii) authorized the filing, by the defendant, of the municipal department action. Accordingly the trial court in the instant matter should have deferred to the first-filed case. For that reason, the judgment in Case No. 80 L 4714 is reversed and the cause is remanded with directions that the said cause be dismissed.

III

In view of our action, we do not reach the constitutional question and the issues raised by Metromedia, Inc. v. City of San Diego (1981), 453 U.S. 490, 69 L. Ed. 2d 800, 101 S. Ct. 2882, and Members of the City Council v. Taxpayers for Vincent (1984), 466 U.S. _, 80 L. Ed. 2d 772, 104 S. Ct. 2118.

The judgment of the circuit court of Cook County is reversed and remanded with directions.

Reversed and remanded.

STAMOS and O’CONNOR, JJ., concur.

      This action was filed in the municipal department of the circuit court of Cook County, entitled Village of Schaumburg v. Frederick A. Schmigle, Individually and as Agent for Foster & Kleiser Co., No. 79 — 3—007890—01.

      See General Orders of the Circuit Court of Cook County No. 1.2 — Operation.

      For a scholarly discussion of the scope, extent and exceptions to this topic, see Fins, Illinois Appellate Practice Under the New Constitution 40-97 (2d ed. 1977).


source: Caselaw Access Project

author: JUSTICE McGILLICUDDY

license: Public Domain

text:
    FIRST CONDOMINIUM DEVELOPMENT COMPANY, Plaintiff-Appellee, v. APEX CONSTRUCTION & ENGINEERING CORPORATION, Defendant-Appellant, (Swann & Weiskopf, Ltd., et al., Defendants).
    First District (3rd Division)
    No. 82—2793
    Opinion filed June 29, 1984.

      Robert G. Cook, Jr., of Chicago, for appellant.
    Jenner & Block, of Chicago (Richard J. Gray and Darryl M. Bradford, of counsel), for appellee.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

This is an interlocutory appeal from the granting of First Condominium Development Company’s (First Condo) motion to stay arbitration and the denial of defendant Apex Construction & Engineering Corporation’s (Apex) motion to stay litigation in this cause.

In January 1979, First Condo began a condominium conversion project at the University Apartments on East 55th Street in Chicago. First Condo contracted with Apex for the construction of a pool, bathhouse and health club, including general contracting, plumbing, heating, ventilation, air conditioning and electrical work, “except work shown by others on plans or specifications.” The work was to be completed by May 30, 1979. Construction was actually completed on or about January 19, 1981. The contract documents which were prepared by First Condo incorporated the latest edition of the American Institute of Architects (AIA) Documents A201, General Conditions of Contract for Construction, which included a general arbitration clause at section 7.9.1.

On June 16, 1982, First Condo filed its first amended complaint against Apex and six codefendants. Count 1 was against Swann & Weiskopf, Ltd., James A. Swann and Malcolm S. Weiskopf (architect) based on contract. Counts 2 and 3 alleged wilful and wanton misconduct and misrepresentation by the architect. Count 4 against Apex was based on the breach of contract between Apex and First Condo. Count 5 against Apex alleged wilful and wanton misconduct. Count 6 for breach of contract was brought against the pool contractor, Paddock of the Midwest, Inc. (Paddock). Count 7 charged Paddock with wilful and wanton misconduct. Count 8 charged the engineer, Jerome M. Klipp & Associates (Klipp) with breach of contract. Paddock subsequently filed a third-party complaint against Trumbull Excavating Company on a subcontract. First Condo sought compensatory and punitive damages against the architect, Apex, and Paddock and compensatory damages against Klipp.

Essentially, First Condo’s complaint alleged that at different times during the construction of the pool, bathhouse and indoor health club, unidentified individuals under the supervision of the architect and/or Apex and/or Paddock severed an electrical utility line (September 25, 1979), a gas utility line (October 8, 1979) and a telephone cable and conduit system (June 14, 1980). Due to these mishaps it was necessary to relocate and re-excavate the pool on at least one occasion, resulting in money damages to First Condo, including construction cost overruns, the expense of obtaining zoning variances, damage to personal property, repair of utility lines, the cost of compensating the condominium association for the late opening of the pool and health club, and damage to First Condo’s business reputation and good will as a condominium developer, resulting in unsold condominium units.

On March 26, 1981, Apex filed with the American Arbitration Association a demand for arbitration for the balance due under the contract, plus extras ordered and furnished, of $108,629.41. On March 27, 1981, Apex filed a motion to stay proceedings against it on First Condo’s complaint in the trial court. On July 30, 1981, First Condo filed a motion to stay arbitration, denying the existence of a binding arbitration agreement between the parties. Both parties filed memoranda of law in support of their positions. The trial court found that the contract documents between First Condo and Apex included a valid arbitration clause. The court stated that the issue was whether the agreement should be enforced despite the pending multiparty litigation and third-party claims. Both parties again filed memoranda. On October 20, 1982, the trial court granted First Condo’s motion to stay arbitration and denied Apex’s motion to stay the law proceedings. Apex appeals.

The issue before this court is whether the trial court erred in enjoining arbitration once it had determined that an enforceable arbitration agreement existed between the parties.

Sections 2(a) and (d) of the Uniform Arbitration Act (Arbitration Act) (Ill. Rev. Stat. 1979, ch. 10, pars. 102(a) and (d)) provide:

“(a) On application of a party showing an agreement described in Section 1, and the opposing party’s refusal to arbitrate; the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party, otherwise the application shall be denied.
* * *
(d) Any action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application therefor has been made under this Section or, if the issue is severable, the stay may be with respect thereto only. When the application is made in such action or proceeding, the order for arbitration shall include such stay.”

Section 1 of the Arbitration Act referred to above provides as follows in pertinent part:

“Validity of arbitration agreement. A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable save upon such grounds as exist for the revocation of any contract ***.” Ill. Rev. Stat. 1979, ch. 10, par. 101.

It is a well-established principle that arbitration is favored by the State, Federal and common law. (Brennan v. Kenwick (1981), 97 Ill. App. 3d 1040, 425 N.E.2d 439; School District No. 46 v. Del Bianco (1966), 68 Ill. App. 2d 145, 215 N.E.2d 25, appeal denied (1966), 33 Ill. 2d 628.) The object of arbitration is to foster the final disposition of disputes in an easier, quicker and more economical manner than by litigation. Once a contract containing a valid arbitration clause has been executed, the parties are irrevocably committed to arbitrate all disputes arising under the agreement. School District No. 46 v. Del Bianco (1966), 68 Ill. App. 2d 145, 215 N.E.2d 25.

In Del Bianco a school district brought suit against the general contractor, the architect and the bonding company regarding the construction of an elementary school. The architect, Del Bianco, filed a motion to stay the proceedings and compel arbitration, which the trial court denied. In reversing the trial court order and ordering the parties to arbitrate, the appellate court stated that the sole issue under the Arbitration Act in a preliminary hearing to stay or compel arbitration is whether there is an agreement to arbitrate; and that the provisions of the Act militate against the argument that a party to an arbitration agreement may choose between a judicial or arbitration forum. 68 Ill. App. 2d 145, 156.

In commenting favorably upon the Del Bianco decision, the United States Court of Appeals for the Seventh Circuit stated in Galt v. Libbey-Owens-Ford Glass Co. (7th Cir. 1967), 376 F.2d 711, that section 2(d) of the Arbitration Act shows that the Illinois legislature contemplated arguments involving multiparty litigation and circuity of action and that consequently section 2(d) provides a court with two options: it may stay the entire proceeding pending arbitration, or, if the issue is severable, the stay may be with respect to that issue only.

Iser Electric Co. v. Fossier Builders, Ltd. (1980), 84 Ill. App. 3d 161, 405 N.E.2d 439, was the first Illinois case to consider directly the question of whether a court may refuse to compel arbitration involving some but not all the parties to multiparty litigation. The court stated the general rule that agreements to arbitrate will be enforced despite the existence of claims by third parties or of pending multiparty litigation. In Iser the defendant-counterplaintiff, Fossier, had contracted with defendants-counterdefendants, the Carriers, to build a home. The contract contained a general arbitration clause which provided that “ ‘all claims, disputes and other matters in question between the Contractor (Fossier) and the Owner (Carriers) arising out of, or relating to, the Contract, Documents or the breach thereof ***, shall be decided by arbitration ***.’ ” (84 Ill. App. 3d 161, 162.) After the Carriers terminated their contract with Fossier, plaintiff Iser, an electrical subcontractor, originally hired by Fossier and later by the Carriers, sued both Fossier and the Carriers for the balance due for work performed on the premises, seeking the entire amount from each party. In response to Iser’s suit, Fossier filed a counterclaim against the Carriers alleging that they had breached the contract by wrongfully terminating it. The Carriers filed a motion pursuant to section 2(b) of the Arbitration Act for an order severing the counterclaim or staying its prosecution pending arbitration, requiring Fossier to arbitrate its claim against the Carriers. The trial court denied the motion. The Carriers appealed.

In its argument on appeal Fossier relied principally upon a Minnesota case, Prestressed Concrete, Inc. v. Adolfson & Peterson, Inc. (1976), 308 Minn. 20, 240 N.W.2d 551, where a subcontractor had brought an action for damages against the owner and general contractor and the owner had brought counterclaims against its architects and engineers for indemnity and damages. Only the contract between the owner and architect contained an arbitration clause. The Minnesota court refused to compel arbitration, holding, “[w]here arbitration would increase rather than decrease delay, complexity, and costs, it should not receive favored treatment.” 308 Minn. 20, 24, 240 N.W.2d 551, 553.

In declining to adopt the reasoning of the Minnesota case, the court in Iser ordered Fossier to proceed to arbitration with the Carriers since their dispute was based on a separate contract involving different rights and obligations than those relied upon by Iser. The court pointed out that a decision by the arbitrator resolving Fossier’s claim against the Carriers would not bind Iser in its claim against the parties. Further, the court noted that in enacting the Arbitration Act the legislature determined that it was no longer equitable to enjoin arbitration to prevent multiplicity of actions. (84 Ill. App. 3d 161, 166.) Thus, the cause was reversed and remanded with directions that the counterclaim be severed and that the parties proceed to arbitration.

In the case at bar, the trial court determined that arbitration was not required in reliance upon J.F. Inc. v. Vicik (1981), 99 Ill. App. 3d 815, 426 N.E.2d 257, a case from the fifth district of this court which recognized an exception to the rule stated in Iser. The defendants, the Viciks, had contracted with a general contractor to construct a house. The contract contained an arbitration clause. A dispute arose between the general contractor and the Viciks, and while the parties were negotiating a settlement, four subcontractors and/or materialmen demanded foreclosure of their mechanics' liens against the owners and the general contractor. The general contractor demanded arbitration with the Viciks under the provisions of its contract with them. The Viciks petitioned the trial court to enjoin arbitration and to consolidate the foreclosure suits. The trial court denied the petition for injunction.

On appeal, the appellate court reached a decision similar to that of the Prestressed Concrete case. The court stated that while Iser recognized the general rule that arbitration agreements will be enforced despite pending multiparty litigation, the court in Iser implicitly recognized that the result may be different where the claims of multiple parties are more “intermingled and dependent.” The policy favoring arbitration should be weighed against the policy favoring joinder of claims. If arbitration of only a portion of the disputes would be less efficient in terms of time, expense and complexity of issues, it becomes counterproductive and should not receive favored treatment. (99 Ill. App. 3d 815, 820.) After considering all of the facts in Vicik, the court determined that the parties were not required to arbitrate their dispute.

First Condo urges this court to follow the reasoning of Vicik. Subsequent to the trial court’s decision in this matter, Kelso-Burnett Co. v. Zeus Development Corp. (1982), 107 Ill. App. 3d 34, 437 N.E.2d 26, was published, and the court discussed the enforceability of arbitration clauses in construction contracts. Kelso-Burnett (Kelso) entered into a subcontract with Zeus Development Corporation (Zeus), wherein Kelso agreed to perform electrical work for a project. Their contract contained an arbitration clause. A dispute arose in which Zeus terminated the contract upon Kelso’s default. Kelso filed a three-count complaint against Zeus and other defendants, including the record titleholder and its beneficiary, the mortgagee, and other subcontractors who had recorded claims against the property. Zeus filed a motion to stay the proceedings and to compel arbitration in accordance with the contract. The trial court denied Zeus’ motion. Zeus appealed.

On appeal, the appellate court held that once a valid arbitration agreement has been established, the trial court has no discretion but shall order arbitration. (Kelso-Burnett Co. v. Zeus Development Corp. (1982), 107 Ill. App. 3d 34, 437 N.E.2d 26.) Any action or proceeding involving an issue subject to arbitration shall be stayed if the arbitration has been ordered, or if the issue is severable the stay may be with respect to the arbitrable issue only. Thus, the parties were ordered to proceed to arbitration, and the legal proceedings were stayed pending the outcome thereof.

In our opinion the court in Kelso-Burnett presented an accurate analysis of Illinois law as it has developed since the adoption of the Arbitration Act.

Further, as the court in Kelso-Burnett noted, even if the court in Vicik was correct in deciding that arbitration may be enjoined in certain situations involving multiparty litigation, the facts of the Vicik decision are distinguishable from those in Kelso-Burnett. In Vicik neither of the parties to the arbitration agreement had initiated the litigation, and the court in Vicik specifically recognized the necessity of a showing that the issues and relationships of the parties were closely intermingled and interdependent.

In the instant matter, First Condo, the party whose documents incorporated the arbitration agreement, initiated the litigation, thereby creating the multiplicity problem. Further, our review of the record indicates that the claims against the codefendants are not so hopelessly intertwined as First Condo suggests. As in the Iser case, First Condo’s rights against each of the codefendants will be determined by separate contracts. We note that the only question properly before a reviewing court in an interlocutory appeal is whether there was a sufficient showing to sustain the order of the trial court granting or denying the relief sought. (See Ording v. Springer (1980), 88 Ill. App. 3d 243, 410 N.E.2d 428.) We cannot say that such a showing was made in the instant matter. The court erred in granting First Condo’s motion to stay arbitration.

Finally, First Condo argues that the trial court erred in finding that an arbitration agreement existed between First Condo and Apex. However, although it is well established that parties are only bound to submit to arbitration those issues which by clear language they have agreed to arbitrate, and that such agreements will not be extended by construction or implication (Flood v. Country Mutual Insurance Co. (1968), 41 Ill. 2d 91, 242 N.E.2d 149), the contract documents between First Condo and Apex specifically incorporated the latest edition of the American Institute of Architects (AIA) Documents A201, General Conditions for Construction, which included the following in pertinent part:

“Section 7.9.1
All claims, disputes and other matters in question between the Contractor and the Owner arising out of, or relating to, the Contract Documents or the breach thereof, *** shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association ***.”

We find that the trial court was correct in finding that the contract documents between First Condo and Apex included a valid arbitration clause which included the issue of the balance due Apex under the contract. (See Bunge Corp. v. Williams (1977), 45 Ill. App. 3d 359, 359 N.E.2d 844.) We do not see any merit in First Condo’s assertion that Apex’s demand for arbitration was premature. We conclude that this cause must be reversed and remanded with directions that the parties in this appeal, First Condominium Development Company and Apex Construction and Engineering Corporation, proceed to arbitration and that First Condo’s suit against Apex be stayed pending the outcome thereof.

Reversed and remanded with directions.

RIZZI, RJ., and McNAMARA, J., concur.


author: JUSTICE TRAPP

text:
    WILLIAM L. FURLING, Plaintiff-Appellee, v. THE COUNTY OF SANGA-MON, Defendant-Appellant.
    Fourth District
    No. 4—83—0668
    Opinion filed August 15, 1984.

      J. William Roberts, State’s Attorney, of Springfield (Elizabeth L. Collins, Assistant State’s Attorney, of counsel), for appellant.
    Presney, Huffman, Kelly & Appleton, of Springfield (James D. Kelly, of counsel), for appellee.
   JUSTICE TRAPP

delivered the opinion of the court:

Plaintiff William Furling sued to have the zoning ordinance of defendant Sangamon County declared unconstitutional as applied to his property. Plaintiff also sought to have defendant enjoined from hindering his development of the property. The trial court found no reasonable basis for the present zoning classification and issued the injunction. Defendant appeals, contending the trial court’s holding is against the manifest weight of the evidence.

Plaintiff owns 2.36 acres of land on Park Avenue in Sangamon County. The lot would be a rectangle, 240 feet wide and 519.5 feet deep, but the previous owner, Allen Post, sold off the front corner of the lot. This corner, measuring 125 feet wide and 140 feet deep, has a residence on it. Due to the sale, plaintiff’s property has a frontage on Park Avenue of only 115 feet. In addition, Post sold another one-tenth of an acre to a neighbor on the north boundary of the land.

Plaintiff bought the property from Post in 1981 for $10,000. At that time, plaintiff knew the land was zoned R-l for single-family residences. Plaintiff also knew a third party, who had wanted to develop the property, had attempted to get the property rezoned and had failed. The property has always been vacant. Plaintiff desired to build two seven-unit apartment buildings, permissible under a R-3 classification.

Plaintiff filed a petition to change the zoning from R-l to R-3. The Sangamon County Planning Commission recommended approval of the change because the land could not be economically used under the R-l classification. The zoning board of appeals, however, recommended denial of the petition. It found the area already had sewer and traffic problems. It further held plaintiff would suffer no hardship because he knew of the zoning restriction when he purchased the property. There were 53 neighbors who signed a petition opposing the rezoning. The Sangamon County Board voted to deny plaintiff’s petition due to the traffic and sewer problems. Plaintiff then filed his complaint for declaratory judgment and an injunction.

Plaintiff is an experienced real estate broker and developer. At trial, he testified his property would be worth $100,000 if classified R-3, and $50,000 if limited to only 14 apartments. He asserted there is a demand for apartments in the area. He also contended taxes would increase $6,000 to $8,000 if he develops the property. His proposed buildings would be set back from Park Avenue and away from all neighboring residences. He planned to fence and screen the lot for privacy and to fit in with the neighborhood. He believed his proposed use would not adversely affect property values in the area. He admitted, however, that his development would cause an increase in traffic in the vicinity.

David Kiliman, assistant director of the Springfield-Sangamon County Regional Planning Commission, had made the original recommendation approving the rezoning. Kiliman based his recommendation on the number of R-3 lots already in the area, which he testified established a trend. Because the area contained many large lots, the tendency was to try to develop those lots for multifamily use. He also based his recommendation on the large size and unusual configuration of plaintiffs property, which did not lend itself to economical development under the R-l classification. Kiliman testified the highest and best use of plaintiffs property would be for multifamily dwellings.

Kiliman testified the area generally had a drainage problem. He stated the increased roof area and parking lots from plaintiff’s development would have some effect on the problem, but he felt the property could still be properly developed. He acknowledged traffic in the area would increase. He also conceded that a rezoning would constitute spot zoning and would not be consistent with the county plan. On the other hand, he testified plaintiff’s proposed use would further the Planning Commission’s policy of developing urban areas around Springfield rather than agricultural areas.

Plaintiff and Kiliman testified as to the uses surrounding the premises in question. Park Avenue is a dead-end street with many single-family residences, but there are several other uses. Across the street from plaintiff’s property lies a pasture with five or six cattle. North of the lot is a four-plex apartment building. Also along Park are a small retail business, a home occupation photographic studio, and a large metal structure used for the storage of game machines. An automobile repair shop, which previously received a use variance, operates on the corner of North Street and Park, some 1,800 feet from plaintiff’s lot. About 300 feet south of plaintiff’s property, on the opposite side of the street, is a dog training school, a conditional permitted use in R-l areas.

Next to the dog training school lies a vacant lot changed from R-l to R-3 in 1973. When granting the petition in 1973, the zoning board of appeals found the general trend in the area was toward multifamily development. It held such use would not injure property values or the public welfare. The board stated the use would be in the public interest, would enhance neighboring property .values, and would not increase congestion of traffic. Besides this lot zoned R-3, there are three lots zoned R-2 for duplex development and two lots classified R-4, along Park Avenue.

There are various other uses in the area near plaintiffs property. Approximately 300 feet south of plaintiff’s lot is a mobile home park. The mobile home park does not abut Park Avenue; rather, its entrance is on Douglas Avenue, one block west of Park. The mobile home park preexisted the zoning ordinance, yet the land on which it is located was zoned R-3. Bordering plaintiff’s lot to the north are several single-family residences, and a duplex, rezoned for R-2 use in 1977. On Centre Street, 600 feet north of plaintiff’s parcel, is land zoned R-2 in 1972. A large number of duplexes were built on this street. Along Shiloh Drive, which intersects Park Avenue about 800 to 900 feet north of plaintiff’s land, are some four-plexes and tri-plexes, as well as an apartment complex. The city of Springfield lies 600 feet west of plaintiff’s property. The land just inside the city limits is zoned R-4, which is the equivalent of defendant’s R-3 classification. Most of this land is undeveloped.

Kiliman testified a rezoning normally affects the area within 1,000 feet of the property. In some cases, however, there is an easily identifiable neighborhood that is affected. In this case, Kiliman described that neighborhood as bounded by railroad tracks to the north and south, MacArthur Boulevard to the east, and the large open area inside Springfield to the west. In this neighborhood, there are five other areas that have been rezoned R-3 since the original ordinance was adopted in 1969. One of these sites has a 24-unit apartment complex. Several other use variances have been granted in the area. Besides a second mobile home park, individual mobile homes are scattered throughout the area. Kiliman testified mobile homes are nonconforming uses in the area.

Robert Alvey, district engineer for the Springfield Sanitary District, also testified for plaintiff. He testified the sanitary sewer under Park Avenue was constructed over 40 years ago. The Sanitary District had received many complaints in the past because the sewers had backed up into basements. The Sanitary District remedied the problem by building a release sewer in the area. Alvey testified the number of complaints had been significantly reduced. Due to the way the pipes were laid, however, the system also suffers from erosion of the crown of the pipes.

The Sanitary District imposed restrictions on the number of sewer hookups per acre. Under this restriction, plaintiff is limited to 14 apartments on his property. Alvey conceded an additional 14 hookups would increase the crown erosion problem to some degree, but he also stated the additional hookups would not appreciably affect either the aging or deterioration of the sewers. In other words, he believed whatever happens will happen regardless of whether plaintiff develops his property. If the problems become too severe, the sewer will be repaired.

Karen Hasara, clerk of the circuit court for Sangamon County, testified for defendant. She had sold real estate and had been a broker prior to becoming clerk. She testified plaintiff’s development would cause some devaluation of neighboring property values.

The trial court found in favor of plaintiff. The court concluded the evidence showed that there was no reasonable basis for the zoning classification. The court also found plaintiff’s proposed use was reasonable. The court, therefore, held defendant’s ordinance unconstitutional as applied to plaintiff’s property.

Generally, a zoning ordinance is presumed valid, and a party attacking it bears the burden of establishing its invalidity by clear and convincing proof. (Harris Trust & Savings Bank v. Duggan (1983), 95 Ill. 2d 516, 449 N.E.2d 69.) On review, however, the trial court’s determination is not to be disturbed unless it is contrary to the manifest weight of the evidence. Bauske v. City of Des Plaines (1957), 13 Ill. 2d 169, 148 N.E.2d 584.

Factors that should be considered in determining an ordinance’s validity include:

“(1) The existing uses and zoning of nearby property, [citations], (2) the extent to which property values are diminished by the particular zoning restrictions, [citations], (3) the extent to which the destruction of property values of plaintiff promotes the health, safety, morals or general welfare of the public, [citations], (4) the relative gain to the public as compared to the hardship imposed upon the individual property owner, [citation], (5) the suitability of the subject property for the zoned purposes *** [citations], and (6) the length of time the property has been vacant as zoned considered in the context of land development in the area in the vicinity of the subject property.” (La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46-47, 145 N.E.2d 65, 69.)

The trial court addressed each of these factors and concluded the ordinance was invalid as applied. Defendant argues the trial court’s decision is against the manifest weight of the evidence.

Concerning the first factor, the trial court found the neighborhood surrounding the premises in question, while predominantly single-family residences, was a mixture of various uses including duplex, home occupation and business, mobile home, and multifamily dwellings. We cannot conclude this finding is against the manifest weight of the evidence. Much of the area near plaintiff’s land has already been zoned to allow multifamily development. Kiliman stated the trend was toward multifamily use. The zoning board of appeals made a similar finding in allowing a change in zoning in 1973. Since that time, several other lots in the area have been reclassified to allow more intensive uses. While the area is comprised mainly of single-family residences, the rezoning and other nonconforming uses have a substantial bearing on the character of the neighborhood. Cf. People ex rel. Larsen & Co. v. City of Chicago (1962), 24 Ill. 2d 15, 179 N.E.2d 676.

The trial court held the present restriction diminished the value of the property. Plaintiff testified as to the lower value of his property under the R-l classification. Defendant did not contest this point. Defendant does contend, however, that this factor is not decisive because it is present in nearly every zoning case. First National Bank v. County of Lake (1955), 7 Ill. 2d 213,130 N.E.2d 267.

The parties disputed the extent to which the restriction benefits the public. The trial court decided plaintiff’s proposal would have no adverse effect on the public health, safety, or welfare. Defendant argues the trial court incorrectly assessed the potential sewer, drainage, and traffic problems in the area. Regarding the sewer and drainage problems, neither Kiliman nor Alvey felt these problems were of sufficient concern to interfere with plaintiff’s plans. While both conceded plaintiff’s apartments would have some effect on the problems, the same is true of any development on the property.

The parties agreed there will be an increase in traffic due to plaintiff’s development. No evidence was presented as to the extent of either the increase or its effect. While traffic is a factor in zoning cases, ordinarily, it is accorded little weight because it is a problem in most areas and is constantly getting worse. La Salle National Bank v. Village of Skokie (1962), 26 Ill. 2d 143, 146, 186 N.E.2d 46, 48; see also LaSalle National Bank v. County of Du Page (1977), 54 Ill. App. 3d 387, 369 N.E.2d 505.

Defendant argues plaintiff’s proposed use will decrease area property values. The trial court held otherwise. Plaintiff testified there would be no decrease, while defendant’s witness took a contrary position. In zoning cases, the testimony usually conflicts, and the credibility of the witnesses is of great importance. The trier of fact has a superior position to weigh credibility. (La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 48, 145 N.E.2d 65, 70.) As the supreme court stated:

“Mere conflict in testimony as to the highest and best use of property, the impact of the proposed land use on the areas involved or its effect upon property values, does not make irre-buttable the presumption that an ordinance is valid. A difference of opinion does not render the evidence of one party unbelievable, or require a finding that the reasonableness of an ordinance is debatable. In a trial before the court without a jury, the credibility of witnesses and the weight to be accorded their testimony are still to be determined by the trier of fact.” (Bauske v. City of Des Plaines (1957), 13 Ill. 2d 169, 181, 148 N.E.2d 584, 590-91.)

We cannot conclude the trial court’s finding on the third factor is against the manifest weight of the evidence.

The trial court concluded that any gain to the public from the present restriction was minimal when compared with the hardship imposed on plaintiff. The trial court found the public would benefit from plaintiff’s proposed development. Defendant argues plaintiff knew of the restriction before he purchased, and thus he has suffered no individual hardship. Plaintiff’s purchase in the face of the zoning restriction certainly is a factor to be considered. (American National Bank & Trust Co. v. City of Chicago (1964), 30 Ill. 2d 251, 254, 195 N.E.2d 627, 629.) Any financial disadvantage that plaintiff might suffer must be viewed as a self-created one. Maywood Proviso State Bank v. Village of Berkeley (1965), 55 Ill. App. 2d 84, 204 N.E.2d 144.

While a purchaser who challenges a preexisting zoning ordinance is not in as favorable a position as one who buys prior to a rezoning in reliance on the existing ordinance, he is not precluded from attacking the validity of the ordinance. A zoning ordinance cannot be sustained if it violates the constitution, no matter how long or by whom it is recognized as legal. (La Salle National Bank v. City of Evanston (1962), 24 Ill. 2d 59, 64, 179 N.E.2d 673, 676.) The purchaser may prevail when there is no gain to the public as compared with the economic detriment sustained if the restriction is enforced. Edgemont Bank & Trust Co. v. City of Belleville (1980), 85 Ill. App. 3d 665, 675, 407 N.E.2d 159, 167; Fay v. City of Chicago (1979), 71 Ill. App. 3d 603, 610, 390 N.E.2d 125, 131.

Thus, while plaintiff suffered no individual hardship, the value of his property decreased without any corresponding benefit to the public. Furthermore, plaintiff asserted his development would promote the public welfare by meeting the demand for apartments and by increasing the taxes collected on the property. The trial court found there was a need for apartments in the area.

The evidence demonstrated the highest and best use of the property involved was for multifamily dwellings. The trial court found the land was not suitable for single-family or duplex residences because of its unusual configuration and narrow frontage. If the individual characteristics of a tract make it unsuitable for the use to which it is restricted, then the ordinance classifying it is arbitrary in the absence of some substantial gain to the public accruing from its enforcement. La Salle National Bank v. City of Evanston (1962), 24 Ill. 2d 59, 63, 179 N.E.2d 673, 675.

Defendant contends a single-family residence can be built on the property; therefore, it is suitable for R-l purposes. To show an ordinance is arbitrary in its application, however, the law does not require the land to be totally unsuitable for the use to which it is restricted. It is sufficient if a substantial decrease in value results from a classification bearing no substantial relation to the public welfare. People ex rel. Larson & Co. v. City of Chicago (1962), 24 Ill. 2d 15, 19, 179 N.E.2d 676, 678; La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 48, 145 N.E.2d 65, 69-70.

Defendant points out that only one house can be built on the property because of the narrow frontage. Defendant’s ordinance requires 80 feet of frontage for a single-family residence. The narrow frontage resulted from the sale by the previous owner. Because plaintiff stands in the place of the previous owner, he is estopped from claiming the one-home restriction on his lot is invalid. (Reitman v. Village of River Forest (1956), 9 Ill. 2d 448, 137 N.E.2d 801.) The unsuitability for single-family use, however, stems not only from the narrow frontage, but also from the large lot size. Only three houses could have been built on the original lot. The lot would have had to have been divided into three sections, each 80 feet wide and 519.5 feet deep. The land was unsuitable under its restriction even before the prior sale. While the previous sale may have added to the problem, the lot’s unsuitability for single-family use is inherent in its size and shape. Cf. La Salle National Bank v. City of Evanston (1962), 24 Ill. 2d 59, 65, 179 N.E.2d 673, 676.

The final factor concerns the length of time the property has remained vacant as zoned. The trial court noted the property has always been vacant. Defendant maintains much of the area is unimproved; therefore, the vacancy is not attributable to the zoning restriction. Plaintiff’s attempt, however, is the second attempt to develop this property. The previous attempt failed solely because of the zoning restriction. The public receives no substantial benefit in keeping this land unimproved. Liebling v. Village of Deerfield (1961), 21 Ill. 2d 196, 201, 171 N.E.2d 585, 587.

The evidence clearly shows the present classification denies the property its highest and best use. The proposed use will only minimally interfere with the use of other property. Hence, the presumption of validity has been overcome. (First National Bank v. City of Springfield (1974), 22 Ill. App. 3d 22, 27, 316 N.E.2d 648, 652.) The trial court properly considered all the relevant factors, and its final determination is not contrary to the manifest weight of the evidence.

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

Affirmed.

MILLS, P.J., and GREEN, J., concur.


author: JUSTICE STOUDER

text:
    J. L. SIMMONS CO., INC., for the use and benefit of The Hartford Insurance Group et al., Plaintiff-Appellee, v. FIRESTONE TIRE & RUBBER CO., Defendant-Appellant and Counterplaintiff-Cross-Appellee (J. L. Simmons Co., Inc., Counterdefendant-Cross-Appellant).
    Third District
    No. 3-83-0525
    Opinion filed July 25, 1984.
    Rehearing denied September 5, 1984.

      W. Thomas Johnston, of McConnell, Kennedy, Quinn & Johnston, of Peoria, and Armstrong, Winters, Prince, Featherstun & Johnson, of Decatur, for appellant.
    John E. Cassidy III and David B. Mueller, both of Cassidy & Mueller, Jay H. Janssen, and Jerelyn D. Maher, all of Peoria, for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

This case was tried before a jury in the circuit court of Peoria County, Illinois. The plaintiff in this case was J.L. Simmons Co., Inc. (Simmons), by an agreement with its employee John Boone, who was injured while installing a beam at the Firestone Tire and Rubber Company (Firestone) plant in Decatur. Firestone is the only defendant. After the complaint was amended to reflect the agreement of the parties plaintiff that Simmons would bring suit in its name, Firestone filed a counterclaim against Simmons for contribution. The jury returned a verdict for $501,000 as total injuries sustained by Boone. The jury found Boone was 33%% negligent and that Firestone was 66%% negligent on the personal-injury claim and that Firestone was entitled to 50% contribution from Simmons.

The basic dispute between the parties is how the accident happened which caused permanent injury to John Boone’s back and necessitated several back operations. John Boone was an industrial carpenter who was employed by Simmons to install a dirt collector at the Firestone plant. At Firestone, slabs of rubber used in the manufacture of tires are packed with a layer of visqueen between each slab. These slabs are fed into a machine in rapid succession by an operator who throws the plastic to the side as he feeds in the slabs 10-12 at a time. Carbon black, a powdery substance used to color the tires, and oil are also used in the manufacturing process. Plaintiffs theory is that a pigment cart used to carry the carbon black transported a piece of vis-queen on one of its wheels into the area where John Boone was working. The visqueen was discolored by a combination of carbon black and oil from the floor of the plant and therefore not visible. While walking backward carrying one end of a 300-pound beam, John Boone slipped on the piece of visqueen and fell backwards. The beam then fell on top of Boone.

Firestone claims that the accident occurred because Simmons failed to supply enough manpower to safely do the job. Firestone’s theory is that John Boone twisted his back trying to carry the beam and injured his back.

Firestone has raised numerous issues for our review but primarily argues that it was prejudiced by the alignment of the parties whereby Simmons was named plaintiff and thereafter acted in the dual capacity of plaintiff and counterdefendant with all of the attendant advantages of the dual role. As previously mentioned, the alignment of the parties came about as a result of a settlement agreement of Boone’s workers’ compensation claim against Simmons. As a result of this agreement Simmons brought suit in its name for the use of John Boone and the Hartford Insurance Group, its compensation insurer.

Clear statutory support exists which allows an employer to bring an action against a third party to recover workers’ compensation paid to its employer where the employee’s injuries were caused by a third party. Section 5(b) of the Workers’ Compensation Act provides in pertinent part:

“(b) Where the injury or death for which compensation is payable under this Act was caused under circumstances creating a legal liability for damages on the part of some person other than his employer to pay damages, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer’s payment of or liability to pay compensation under this Act.
* * *
In the event the employee or his personal representative fails to institute a proceeding against such third person at any time prior to 3 months before such action would be barred, the employer may in his own name or in the name of the employee, or his personal representative, commence a proceeding against such other person for the recovery of damages on account of such injury or death to the employee, and out of any amount recovered the employer shall pay over to the injured employee or his personal representatives all sums collected from such other person by judgment or otherwise in excess of the amount of such compensation paid or to be paid under this Act, including amounts paid or to be paid pursuant to paragraph (a) of Section 8 of this Act, and costs, attorney’s fees and reasonable expenses as may be incurred by such employer in making such collection or in enforcing such liability.” Ill. Rev. Stat. 1981, ch. 48, par. 138.5(b).

Therefore, we find that the statute allows the employer to institute an action on behalf of its employee. Firestone contends that the statute does not apply because this action was commenced before the three-month period prescribed by statute for bringing such actions. However, the only possible prejudice which could result by an untimely filing of such a claim by an employer is to the employee and not to the third-party tortfeasor, and in this case the employee has consented to have suit brought in his name. Nor do we agree with Firestone that the employer should not have a right to participate in the trial of the suit. Again the possible prejudice resulting from the participation of the employer at trial is to the injured employee, not to the defendant third-party tortfeasor. Firestone relies upon Sjoberg v. Joseph T. Ryerson & Son, Inc. (1956), 8 Ill. App. 3d 414, 132 N.E.2d 56, where the appellate court held that an employer had no right to participate in a suit brought by its employee where the employer was joined because of a workers’ compensation lien for the proposition that Simmons could not participate in this proceeding. In Sjoberg the appellate court stated that the possible prejudice resulting from employer’s participation was to the employee. Both because the suit was brought by the employer and because no prejudice resulted to Firestone, we are not persuaded by the reasoning of Sjoberg.

Firestone has raised several allegations of trial error which it claims resulted from the improper alignment of the parties and prejudiced Firestone’s defense of this claim. Firestone first alleges that plaintiff was allowed to cross-examine its own witnesses. Our review of the record indicates that the parties had a considerable discussion outside of the presence of the jury as to the order in which they should proceed in examining plaintiff’s witnesses. It is apparent from their discussions that the trial judge considered the plaintiff and counterdefendant the same party with co-counsel and offered to let the plaintiff and counterdefendant examine its witnesses before Firestone cross-examined. This Firestone declined. It is clear that plaintiff Simmons had a right to examine on the counterclaim for contribution as to whether' it was jointly liable for the accident. We, therefore, find that the trial court did not err in allowing two examinations. We also point out that trial judges have considerable latitude in making decisions as to the order of proceedings. 87 Ill. 2d R. 233.

Firestone further argues that the trial court erroneously allowed plaintiff/counterdefendant to make two opening statements and two closing statements. It is clear from the record that the trial judge considered the personal injury claim a single cause of action. Supreme Court Rule 233 (87 Ill. 2d R. 233) sets out the parties, order of proceeding. Pursuant to the rule the parties are to proceed in the order in which they appear in the pleadings unless “otherwise agreed by all parties or ordered by the court. In consolidated cases, third-party proceedings, and all other cases not otherwise provided for the court shall designate the order.” (87 Ill. 2d R. 233.) It is clear from the rule that the court has discretion to control the order of argument and proof and further that the judge had discretion to split opening and closing statements between co-counsel if he felt it was in the best interest of the parties. Therefore, it was not error to allow both counsel for plaintiff-counterdefendant to make opening and closing remarks to the jury nor to allow them to proceed in a different order.

Firestone also contends that the plaintiff was improperly allowed to cross-examine Mary Campbell, Firestone’s witness, twice. During direct examination Mary Campbell testified that Boone had told her that Simmons sent him on a job that was too big for one man. This statement certainly tended to place fault with Simmons and gave Simmons a right to cross-examine Mary Campbell based upon the contribution claim against it. Therefore, it was not error for Simmons in its representative capacity and as counterdefendant to cross-examine Mary Campbell.

Firestone also raises several evidentiary errors which allegedly transpired during the trial. Firestone contends that Boone’s statement to Mahon, a Firestone employee who rushed over to help Boone when the beam fell on him, was not an excited utterance and should not have been admitted. We disagree. Mahon’s testimony was that he rushed over to help Boone immediately after he slipped. After Mahon had lifted the beam off of Boone 30 seconds to a minute and one-half after the accident, Mahon asked Boone what happened, and Boone replied, “That goddam plastic.” Although there was a slight lapse of time between the accident and Boone’s remark, timing is not the sole determinative factor. Other factors to be considered include the nature of the event, the condition of the declarant and the presence or absence of self-interest. (E. Cleary & M. Graham, Illinois Evidence sec. 803.3, at 550 (4th ed. 1984).) Boone was clearly in pain following a startling event and had little time or incentive to fabricate. We agree with the trial judge that Boone’s statement was properly admitted.

Firestone next contends that photographs of the interior of the Firestone plant which Firestone attempted to introduce were improperly excluded. With this we do not agree. The photographs apparently showed the cart on the wheels of which the visqueen was allegedly transported and.the interior of the plant. The floor, however, was free of carbon black and from the record appears to be in a considerably different state than when Boone fell. The trial court found that these photos were likely to mislead the jury even after the change in appearance had been explained to the jury. Furthermore, the arrangement of the objects was apparently favorable to Firestone’s theory of the case. Therefore, Firestone failed to show that the photographs accurately portrayed the interior of the plant at the time of the accident, and any probative value these photographs could have had was far outweighed by the prejudice to plaintiff by representing the positioning of objects in a manner favorable to Firestone’s theory of the case. See Levenson v. Lake-to-Lake Dairy (1979), 76 Ill. App. 3d 526, 394 N.E.2d 1359.

Firestone also contends that the admission of the testimony of Richard Bliss, a vocational counselor with Illinois Job Service, was error. Bliss testified that in his opinion Boone was unemployable as a result of the accident. Firestone argues that Bliss was improperly allowed to testify and that his testimony was improper subject matter for an expert. In Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322, the Illinois Supreme Court cast aside the former Illinois rule on experts and adopted Federal Rules of Evidence 702, 703 and 705. The Federal rules are considerably more flexible than the former Illinois rule and basically allow the admission of expert testimony if it will aid the jury in its understanding of the evidence or in determining a fact in issue. (E. Cleary & M. Graham, Illinois Evidence sec. 702.1, at 453 (4th ed. 1984).) Although Boone’s employability was not at issue in this case, whether or not Boone was employable certainly pertains to the issue of damages. Furthermore, plaintiff successfully established that Bliss had considerable experience with job-related disabilities and was employed to recommend retraining when an individual was capable of performing another type of job following an injury. Therefore, Bliss’s testimony was properly admitted.

Firestone further contends that the admission of Paul Campbell’s signed statement was error. Mary Campbell, a family friend of the Boones, took the stand as a Firestone witness and testified as to the telephone conversation she had had with Boone. This was the conversation where Boone allegedly told her that Simmons had sent him on a job too big for one man. On cross-examination, the attorney for Simmons offered a statement signed by Paul Campbell, Mary’s husband. The statement was signed and stated that Boone had slipped on visqueen and fallen, which clearly contradicted what Boone had told Mary. The trial court allowed a portion of Paul Campbell’s statement to be read to the jury over Firestone’s objection. Paul Campbell’s statement was clearly hearsay and was not admissible to impeach Mary because it was not her statement. Therefore, Paul Campbell’s statement should have been excluded.

Firestone also contends that a statement made by Boone in a deposition wherein he stated that “this all could have been prevented to the bottom line if I could have had another man for a stinking $110” should have been admitted. We agree. This was clearly an admission against Boone’s interest, and Boone was obviously a party even though his interests were being represented by Simmons, his employer. Plaintiff cannot now argue that Boone is not a party when throughout the proceedings it has argued that Boone and Simmons represented one interest and that both attorneys represented the plaintiff and the counterdefendant.

Firestone also makes several arguments about plaintiff’s use of the evidentiary deposition which Firestone took of Dr. Allen, a chiropractor. Firestone contends that plaintiff should not have been allowed to introduce Dr. Allen’s deposition into evidence without first asking Firestone if it intended to introduce the deposition because Dr. Allen was Firestone’s witness. Firestone claims that plaintiff’s failure to do so prejudiced Firestone. In Dobkowski v. Lowe’s, Inc. (1974), 20 Ill. App. 3d 275, 314 N.E.2d 623, the fifth district considered a similar issue, although not a physician’s deposition, and found that the proper procedure for introducing an evidence deposition taken by the opposing party was to ask in open court whether the opposing party intended to introduce the deposition of its witness, and if so, the party attempting to introduce the deposition must refrain from using the deposition until the party whose witness it is has had an opportunity to introduce the deposition. This procedure should have been followed in this case, but failure to do so was harmless error as found by the court in Dobkowski.

Firestone also argues that the plaintiff exceeded the scope of defendant’s direct examination by questioning Dr. Allen as to his findings when he examined Boone. In the deposition Firestone had only questioned Dr. Allen as to Boone’s history as revealed to Dr. Allen during his examination. The fact is that “back pain” was mentioned several times during the direct examination of Dr. Allen, but plaintiff’s questions as to what Dr. Allen’s examination revealed certainly expanded the perimeters of the direct examination of Dr. Allen and did not allow Firestone an opportunity to cross-examine as to what the examination of Boone showed. The proper procedure would have been for plaintiff to have made Dr. Allen its witness and examined Dr. Allen as to his examination of Boone. However, this again did not constitute reversible error.

Firestone also argues that Illinois Pattern Jury Instructions (IPI), Civil, No. 5.01 (2d ed. 1971) was improperly given. At trial Simmons argued that Firestone failed to produce witnesses to show the conditions at its plant. IPI Civil No. 5.01 states:

“5.01 Failure to Produce Evidence or a Witness
If a party to this case has failed [to produce a witness] within his power to produce, you may infer that the [testimony of the witness] would be adverse to that party if you believe each of the following elements:
1. The [witness] was under the control of the party and could have been produced by the exercise of reasonable diligence.
2. The [witness] was not equally available to an adverse party.
3. A reasonably prudent person under the same or similar circumstances would have [produced the witness] if he believed [the testimony would be] favorable to him.
4. No reasonable excuse for the failure has been shown”

and can be given only when the party seeking to use the instruction has offered evidence that the missing witness was under the other party’s control and not as available to it as to the other party. (See Goshey v. Dunlap (1973), 16 Ill. App. 3d 29, 305 N.E.2d 648.) In this case the “missing witnesses” were never identified, nor did plaintiff establish that they were unavailable to Simmons although they were said to be employees of Firestone. Furthermore, Firestone cannot be forced to dispute the condition of its plant as this is not at issue in these proceedings. Therefore, the instruction should have been refused, but again, we do not find this reversible error.

None of these evidentiary errors alone constitute reversible error. We have also considered the effect of these errors as a whole upon Firestone’s right to a fair trial and find that these errors did not substantially prejudice Firestone.

Plaintiff had also cross-appealed and contends that the counterclaim for contribution could not be maintained against it. With this we disagree. The recent Illinois Supreme Court decision in Doyle v. Rhodes (1984), 101 Ill. 2d 1, 461 N.E.2d 382, is dispositive of this issue and allows contribution between an employer and a third-party tortfeasor even though the employee cannot maintain an action directly against its employer. Ill. Rev. Stat. 1981, ch. 70, par. 301 et seq.

Simmons also contends that defendant’s instruction No. 20A (a modification of IPI Civil No. 50) was given erroneously. We agree.

Defendant’s instruction No. 20A reads as follows:

“John Boone was the agent of the Counter-defendant, J.L. Simmons Co., at the time of this occurrence. Therefore, any act or omission of the agent at that time was in law the act or omission of the counter defendant, J.L. Simmons Co., Inc.”

This instruction asks the jury to attribute Boone’s acts to Simmons, which in the context of the contribution claim is clearly contrary to the theory of comparative negligence and to the law of agency. Not only does the instruction penalize Simmons by increasing its liability on the contribution claim, but it effectively decreases Firestone’s potential liability. Under the theory of comparative negligence the plaintiff-injured party must account to the defendant for injuries which resulted from his own negligence. As the supreme court stated in Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886:

“the 90% negligent plaintiff will bear 90% of his own damages as well as 90% of defendant’s. On the other hand, the 10% negligent defendant will be made to bear 10% of his own damages as well as 10% of plaintiff’s.” (85 Ill. 2d 1, 25-26.)

By attributing acts to Simmons which have already reduced Firestone’s liability allows Firestone to reduce its liability twice for the same acts. Furthermore, this instruction misstates the law of agency. In Holcomb v. Flavin (1966), 34 Ill. 2d 558, 216 N.E.2d 811, the Illinois Supreme Court found that where the conduct of an agent for which he is liable gives rise to a derivative exposure on the part of the principal, a settlement by the former mandates the discharge of the latter. Nothing in the instruction limits the jury to a consideration of Simmons’ acts alone in deciding the proportion of liability for which Simmons was responsible. Therefore, whether or not the jury found that Simmons was negligent for refusing to supply more manpower to the job is certainly unclear, as it could as easily have found that Boone was responsible and that his acts were attributable to Simmons. The misleading language in defendant’s instruction No. 20A considerably prejudiced Simmons by increasing liability and constituted reversible error.

We, therefore, affirm the circuit court of Peoria County on the personal-injury claim but reverse as to Firestone’s claim for contribution and remand the contribution claim to the trial court for a new trial on the contribution claim of Firestone against Simmons.

Affirmed in part, reversed in part and remanded for a new trial on the issue of contribution.

BARRY and HEIPLE, JJ., concur.


author: JUSTICE WHITE

text:
    PIONEER BANK AND TRUST COMPANY, Plaintiff and Counterdefendant-Appellee, v. REV. HENRY MITCHELL et al., Defendants and Counterplain-tiffs-Appellants.
    First District (3rd Division)
    No. 83—551
    Opinion filed August 1, 1984.

      P. Scott Neville, Jr., of Chicago, for appellants.
    Kamm & Shapiro, Ltd., of Chicago (Jeffrey S. Blumenthal, of counsel), for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

The North Star United Missionary Workers of America, defendant and counterplaintiff-appellant (hereinafter North Star), appeals from an order of the trial court granting summary judgment in favor of Pioneer Bank and Trust Company, plaintiff and counterdefendant-appel-lee (hereinafter Pioneer Bank) on Pioneer Bank’s complaint for a deficiency judgment under section 9 — 504 of the Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, par. 9 — 504), and on North Star’s counterclaim. On appeal North Star contends that the trial court erred: (1) in granting summary judgment in favor of Pioneer Bank; (2) in granting Pioneer Bank’s motion for attorney fees; (3) in denying North Star’s motion for summary judgment on its counterclaim; and (4) in denying North Star’s motion for summary judgment on Pioneer Bank’s complaint.

On July 26, 1977, North Star purchased a 1977 Champion motor home from Open Air USA (Pioneer Bank’s assignor). Reverend Henry Mitchell, president of North Star, signed a retail installment contract for the Champion whereby North Star was to pay 84 monthly installments of $244.47 to Open Air USA. North Star defaulted on the contract by failing to pay the July 25, 1980, installment until September 2, 1980, and by failing to make any payment for August and September 1980. On September 26, 1980, North Star entered into an agreement with Pioneer Bank to surrender voluntarily possession of the Champion. According to the Reverend Mitchell, Pioneer Bank agreed to sell the Champion at its appraisal value as determined by Long Chevrolet. The Champion was later appraised at $12,000 to $12,500. On October 6, 1980, Reverend Mitchell surrendered possession of the Champion. Pioneer Bank then hired Statewide Detective Agency (hereinafter Statewide) to conduct the sale of the Champion. Statewide listed the Champion on a list of vehicles it had available for sale and posted the list on its premises. Prospective purchasers tendered bids for the Champion between October 20, 1980, and October 27, 1980. In all, four bids were tendered, and the highest bid was accepted. The Champion was sold to Ross J. Hall for $6,600.

As of October 6, 1980, North Star owed Pioneer Bank $10,135.70. Late charges and resale expenses increased that amount to $10,286.70. Pioneer Bank then brought an action under section 9— 504(2) of the Uniform Commercial Code to recover the difference between the amount owed and the resale price of the Champion. North Star counterclaimed that Pioneer Bank fraudulently misrepresented that the Champion would be sold at its appraisal value, i.e., $12,000 to $12,500; that Pioneer Bank violated the Consumer Fraud and Deceptive Business Practices Act by making a false promise (Ill. Rev. Stat. 1981, ch. 1211/2, par. 262) and by reselling collateral at a price intended to increase the amount of deficiency recoverable from North Star (Ill. Rev. Stat. 1981, ch. 1211/2, par. 262G). The parties cross-motioned for summary judgment on both the complaint and the counterclaim.

On appeal, North Star contends that the trial court erred in granting summary judgment in favor of Pioneer Bank and awarding the bank a deficiency judgment because Pioneer Bank failed to give notice of the sale to North Star as required by section 9 — 504 of the Uniform Commercial Code. (Ill. Rev. Stat. 1981, ch. 26, par. 9— 504(3).) That section provides in relevant part:

“Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, if he has not signed after default a statement renouncing or modifying his right to notification of sale.”

Pioneer Bank admits that North Star was not given notice of the sale, but argues that North Star waived its right to notice. On surrender of the Champion motorhome, North Star by its president, Reverend Henry Mitchell, signed the following statement:

“This voluntary surrender of possession of collateral, which is evidenced by this certificate is made by the undersigned to Pioneer Bank and Trust Co., for the purpose of facilitating the liquidation of the obligation due from the undersigned to Pioneer Bank and Trust Co. and the undersigned hereby waives any right to notice and hearing which it may have by virtue of statute or otherwise ***.”

The above statement was signed on October 6, 1980. North Star had previously defaulted on the contract by failing to pay the July 25, 1980, installment until September 2, 1980, and by failing to make any payment for August and September 1980. Section 9 — 504 requires notice to be given unless the debtor, after default, waives his right to notice. North Star here waived its right to notice. Consequently, we find meritless North Star’s contention that Pioneer Bank failed to meet the notice requirement of Section 9 — 504.

North Star next contends that the trial court erred in granting Pioneer Bank’s motion for summary judgment because Pioneer Bank failed to conduct a commercially reasonable sale as required by Section 9 — 504. An order granting summary judgment is appropriate where the pleadings, depositions and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1005(c).) In the instant case, we find that the trial court was presented with a genuine issue of material fact as to the commercial reasonableness of the sale of the Champion motorhome. Accordingly, we hold that the trial court erred in granting summary judgment in favor of Pioneer Bank on its complaint and awarding the bank a deficiency judgment.

Under the Uniform Commercial Code a secured creditor may repossess and resell collateral to satisfy the debtor’s obligation upon default. (Ill. Rev. Stat. 1981, ch. 26, par. 9 — 504.) However, every aspect of the disposition, including the method, manner, time, place and terms, must be commercially reasonable. (Ill. Rev. Stat. 1981, ch. 26, par. 9 — 504(3).) Section 9 — 507(2) furnishes criteria of commercial reasonableness:

“*** If the secured party either sells the collateral in the usual manner in any recognized market therefor or if he sells at the price current in such market at the time of his sale or if he has otherwise sold in conformity with reasonable commercial practices among dealers in the type of property sold he has sold in a commercially reasonable manner.”

In the instant case, the pleadings and affidavits submitted by the parties leave several issues of fact unresolved as to the commercial reasonableness of the sale. The affidavits fail to state what the reasonable commercial practices among dealers of motorhomes are. Accordingly, we cannot find that Statewide conformed to those practices in the sale of the Champion motorhome. The affidavits also leave a triable factual issue pertaining to whether the current or market price of the Champion motorhome was obtained. (California Airmo-tive Corp. v. Jones (6th Cir. 1969), 415 F.2d 554.) Lastly, the affidavits leave a triable issue of fact as to whether Statewide was a recognized market for the sale of motorhomes.

The criteria of commercial reasonableness specified in section 9— 507(2) are not exclusive. (See Ill. Ann. Stat., ch. 26, par. 9 — 507, Uniform Commercial Code Comment, at 361-62 (Smith-Hurd 1974).) A disposition of a repossessed article is commercially reasonable if every aspect of the sale, including the method, manner, time, ■ place and terms, are commercially reasonable. (Ill. Rev. Stat. 1981, ch. 26, par. 9 — 504(3).) We therefore inquire whether the pleadings and affidavits show that there is no genuine issue as to the commercial reasonableness of the sale. The affidavits submitted by Pioneer Bank show that each week Statewide posted on its premises a list of cars it had available for sale. The Champion motorhome was one of the vehicles on the list. Statewide thereafter received four bids for the Champion mo-torhome and accepted the highest bid. Statewide did not place advertisements in newspapers, trade magazines or newsletters announcing the sale of the Champion motorhome. Nor did Statewide contact prospective purchasers by letter or telephone to solicit their bids. On the basis of the present evidence we are not prepared to say that Pioneer Bank demonstrated that there was no genuine issue of fact regarding the commercial reasonableness of the sale.

Since we have determined that the pleadings and affidavits leave material issues of fact unresolved, we conclude that summary judgment was improperly entered by the trial court in favor of Pioneer Bank. Accordingly, we reverse the deficiency judgment and attorney fees awarded Pioneer Bank.

North Star next contends that the trial court erred in denying its motion for summary judgment on the counterclaim. North Star contends that there were no disputed issues of fact and it was entitled to judgment as a matter of law. North Star’s argument assumes that this court will find the trial court abused its discretion in allowing Pioneer Bank to file an answer to the counterclaim some 350 days after the answer was due. The facts stated in North Star’s counterclaim would then be uncontroverted. We need not deal with the question of the trial court’s discretion, however, because we find that North Star was not entitled to judgment on the counterclaim as a matter of law.

North Star’s counterclaim consists of three counts: count I is based on common law fraud and counts II and III are based on the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1981, ch. 121V2, par. 261 et seq.). North Star conceded in its reply brief that it is not entitled to summary judgment on count I of the counterclaim; we therefore deal only with counts II and III.

In count II of the counterclaim North Star alleged that Pioneer Bank made a false promise when it agreed to sell the Champion for the amount of its appraisal by Long Chevrolet and to tender any surplus of resale price over amount owed. North Star further alleged that Pioneer Bank misrepresented the fact that it could sell the Champion for the amount it was appraised by Long Chevrolet. The Consumer Fraud and Deceptive Business Practices Act provides:

“Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact *** in the conduct of any trade or commerce are hereby declared unlawful ***.” (Ill. Rev. Stat. 1981, ch. 12U/2, par. 262.)

The Act further provides:

“Any person who suffers damage as a result of a violation of *** this Act committed by any other person may bring an action against such person ***.” (Ill. Rev. Stat. 1981, ch. 1211/2, par. 270a.)

Assuming that a false promise was made by Pioneer Bank and that Pioneer Bank misrepresented the fact that it could sell the Champion for its appraisal value, we fail to see how North Star was in any way damaged. At the time the “false promise” and misrepresentation were made, North Star was in default on its payments and Pioneer Bank was entitled to repossess and resell the vehicle. North Star no longer had rights in the Champion, most certainly not the right to retain the vehicle. North Star could not be damaged by the sale of a vehicle in which it no longer had rights.

Count III of the counterclaim is based on section 262G of the Consumer Fraud and Deceptive Business Practices Act. (Ill. Rev. Stat. 1981, ch. 1211/2, par. 262G.) That section provides: “If the seller resells [repossessed] goods at a price intended to increase the amount of the deficiency recoverable from the defaulting buyer, that seller is guilty of an unlawful practice within the meaning of this Act.” Count III of the counterclaim does not allege that Pioneer Bank sold the Champion at a price intended to increase the amount of the deficiency recoverable from North Star. Moreover, the affidavit submitted by North Star in support of its counterclaim neither alleges nor proves that Pioneer Bank intended to increase the amount of the deficiency. The burden was on North Star to show a violation of the Consumer Fraud and Deceptive Business Practices Act. (See M & W Gear Co. v. A. W. Dynamometer, Inc. (1981), 97 Ill. App. 3d 904, 424 N.E.2d 356; Duhl v. Nash Realty Inc. (1982), 102 Ill. App. 3d 483, 429 N.E.2d 1267; Rice v. Snarlin, Inc. (1970), 131 Ill. App. 2d 434, 266 N.E.2d 438.) North Star did not meet its burden. Lastly, since we hold that on this record Pioneer Bank was not entitled to a deficiency judgment, North Star has not been damaged by an increase in the amount of the deficiency.

We hold that the trial court was presented with a triable issue of fact as to the commercial reasonableness of the sale, and therefore reverse that portion of the trial court’s order granting summary judgment in favor of Pioneer Bank on its complaint and awarding the Bank a deficiency judgment. We also reverse the award of attorney fees to Pioneer Bank. We affirm that portion of the trial court’s order denying North Star summary judgment on its counterclaim.

For the aforementioned reasons the judgment of the trial court is affirmed in part and reversed in part.

RIZZI, P.J., and McNAMARA, J., concur.