author: PRESIDING JUSTICE WEBBER JUSTICE GREEN,

text:
      In re MARRIAGE OF CYNTHIA KAY UPHOFF, Petitioner-Appellant and Cross-Appellee, and DAVID MICHAEL UPHOFF, Respondent-Appellee and Cross-Appellant.
    Fourth District
    No. 4—82—0260
    Opinion filed December 7, 1982.
    Rehearing denied December 30, 1982.

      GREEN, J., concurring in part and dissenting in part.
    Duane D. Young, of Costello, Young & Metnick, of Springfield, for appellant.
    Thomas J. Logue, of Glenn and Logue, of Mattoon, for appellee.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

Both parties appeal from a judgment order of the circuit court of Coles County making a property distribution and awarding maintenance and child support. No appeal is taken from the order of dissolution.

Before proceeding to the merits of the case, we must first dispose of a question of this court’s jurisdiction. The second part of the bifurcated proceedings commenced on September 1, 1981, and terminated with the final order, which is the subject of this appeal, entered on January 4, 1982. Both parties filed post-trial motions attacking various aspects of the order: the husband’s (respondent-appellee and cross-appellant) was filed January 22, 1982; the wife’s (petitioner-appellant and cross-appellee) was filed February 5, 1982; the trial court denied both motions on March 26, 1982; the wife filed her notice of appeal at 8:30 a.m. on April 22, 1982; the husband filed his notice of cross-appeal at 1:15 p.m. on the same date. This court, on its own motion, entered a rule to show cause on the wife as to why her appeal should not be dismissed: her post-trial motion was filed more than 30 days after final judgment and was therefore untimely under section 68.3 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 68.3) now section 2 — 1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1203); the motion being untimely, the judgment was not stayed and a notice of appeal on April 22 from a judgment entered January 4 was likewise untimely. The wife filed a response to the rule which we have taken with the case.

The response in substance makes the argument that if any party files a post-trial motion, jurisdiction remains in the trial court and any party may then appeal within apt time following disposition of the motion; in short, a “coat-tail” argument. We do not agree. The response cites City of DeKalb v. Anderson (1974), 22 Ill. App. 3d 40, 316 N.E.2d 653, and Jurgens v. Eads (1978), 67 Ill. App. 3d 52, 383 N.E.2d 1003, for this proposition. Those authorities are inapposite. In DeKalb both parties had filed timely post-trial motions and the question became whether one side could appeal while the other’s motion was still pending and undisposed of below. This matter was settled by the supreme court in Elliott v. Willis (1982), 92 Ill. 2d 530. In Jurgens the court held that one side’s motion filed 87 days after final judgment could not be considered by the trial court.

Elliott made clear that the trial court retains jurisdiction to dispose of all timely post-trial motions, even though the dispositions are seriatim. It did not say that the trial court retains general jurisdiction until all such timely motions are disposed of; in fact, in Elliott a notice of appeal had been filed following the ruling on the first post-trial motion considered by the trial court and the principal question was the status of other post-trial motions not yet considered. It did not alter the fundamental principle that after a final judgment is entered a party has 30 days in which either: (1) to appeal, or (2) to file a post-trial motion, or (3) to seek an extension of time in which to file a post-trial motion. We note in passing that in a nonjury case, such as the case at bar, a post-trial motion is not required, the statute being permissive; and under Supreme Court Rule 366(b)(3)(ii) (87 Ill. 2d R. 366(b)(3)(h)) the scope of review is not limited either by the filing or the failure to file a post-trial motion.

It appears implicit in the wife’s argument that she could not intelligently appeal until the husband’s post-trial motion had been ruled upon. The remedy is specifically provided for in Supreme Court Rule 303(c)(4):

“The notice Of appeal may be amended without leave of court within 30 days after the entry of the judgment, or, if a timely post-trial motion directed against the judgment is filed, whether in a jury or a nonjury case, within 30 days after the entry of the order disposing of the motion.” 87 Ill. 2d R. 303(c)(4).

For the foregoing reasons, the wife’s appeal is dismissed for lack of jurisdiction in this court. We therefore construe the husband’s cross-appeal, filed later on the same day, as an original appeal and consider the case on that basis.

The evidence demonstrated that the parties have acquired a very substantial amount of assets, something in excess of $550,000, but all of them are heavily encumbered, so that their net worth is about $28,000. This latter figure was found by the trial court and is not seriously disputed. The husband farms 670 acres which he rents; he has acquired a one-third interest in 195 acres of farm land, encumbered to the Federal Land Bank; he has a one-third interest in a seed company, the other interests being owned by his brothers; he owns considerable farm machinery; and there is a marital residence of moderate value, also largely encumbered.

The wife has not been employed outside the home, except for two brief periods, during the marriage. She has no employable skills. Three children were born to the marriage, two of whom were still minors on the date of the order.

Much evidence was received concerning the parties’ income. The wife testified that she believed it to be from $40,000 to $50,000 per year. A certified public accountant, testifying on her behalf, stated that he had examined the parties’ income tax returns and noted that income from farming operations fluctuated. As an example, he stated that their 1980 return showed income of only $1,766, but if grain had been sold in that year, the income would have been $127,000. He believed that their “disposable” income for the years 1977 through 1980 was between $45,000 and $48,000 annually.

The husband’s brother, who has an accounting degree, testified on his behalf that he had examined the tax returns and that the “disposable” income after taxes averaged from $13,000 to $15,000 annually for the years 1977 through 1980.

In its judgment order the trial court found that the husband’s income was “from $13,000 to $45,000 to $48,000,” and that the net marital assets were $28,000. It then awarded $28,000 in marital assets to the wife, together with a 1981 automobile valued at $12,500. The remainder of the marital assets was awarded to the husband. Child support was fixed at $450 per month for each of two minor children with payments to be made to the clerk of the court. Maintenance for the wife was fixed at $600 per month with payments to be made to the clerk of the court. Use of the marital home was awarded to the wife and children with all expenses thereof, mortgage payments, taxes, insurance and repairs, to be paid by the husband. The $900 child support payment was to be reduced each month by two-thirds of the mortgage, tax and insurance payment, if made by the husband; the $600 maintenance payment was to be reduced by the remaining one-third of any such mortgage, tax and insurance payment. The husband was ordered to assume and pay all of the debts of the wife. These amounted to about $17,360 which included approximately $5,200 in attorney fees and witness fees.

A variety of issues are raised on appeal, including the allocation of marital property, the allowance of maintenance and child support, the allowance of fees; but the principal issue on which all else depends, in our judgment, is the curious finding, in reality no finding at all, concerning the husband’s income.

The Illinois Marriage and Dissolution of Marriage Act (the Act) requires that the trial court consider the ability of the husband to pay when making an award of maintenance or child support. Section 504(b)(6) of the Act (Ill. Rev. Stat. 1979, ch. 40, par. 504(b)(6)) lists as one of the factors to be considered in awarding maintenance “the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.” In similar fashion, section 505(a)(5) of the Act (Ill. Rev. Stat. 1979, ch. 40, par. 505(a)(5)) lists as one of the factors to be considered in awarding child support “the financial resources and needs of the noncustodial parent or parents.”

These factors cannot truly be said to have been considered in the instant case when the finding regarding the husband's income is some indefinite figure between $13,000 and $48,000 per year. It requires only simple arithmetic to ascertain that the monthly payment of $1,500 is $18,000 annually; that would be 139% of a $13,000 income; at the high end it would be 37.5% of a $48,000 income. With such a spread there is no rational basis upon which a reviewing court can judge the propriety of the awards. It is analogous to a situation in which there has been a division of marital assets without any assignment of value. Compare In re Marriage of Olsher (1979), 78 Ill. App. 3d 627, 397 N.E.2d 488.

We are aware of the difficulty in fixing a sensible figure when a trial court is dealing with a fluctuating income; however, the task is not impossible and some figure must be arrived at in order to serve as a predicate for the ability to pay, which is what the statute requires. (In re Marriage of Dwan (1982), 108 Ill. App. 3d 808, 439 N.E.2d 1005.) This record is fraught with such concepts as “disposable income,” “after-tax income,” “living off depreciation,” and other such arcana, but the trial court failed to make an ultimate judgment.

The same taint spreads to the division of assets. The husband, while admitting that an equal division is not required, argues that he received a negative $11,000 of debts over assets while the wife received $37,500 of assets over debts; contra, the wife argues that the husband received all of the income-producing assets, while she received only dead assets. Neither proposition can intelligently be considered until the husband's income is determined.

We also note with disapproval the sliding scale used to determine the monthly payments. Just how the clerk could ever keep his records straight under this order escapes us. It is akin to other sliding scale awards which have been the subject of much appellate criticism. See McManus v. McManus (1976), 38 Ill. App. 3d 645, 348 N.E.2d 507; Busby v. Busby (1973), 11 Ill. App. 3d 426, 296 N.E.2d 585.

Finally, the husband complains about the requirement of his payment of the wife’s attorney fees. Section 508 of the Act (Ill. Rev. Stat. 1979, ch. 40, par. 508) now speaks of notice and hearing on the matter, but we need not decide whether this requirement is mandatory. This record is totally devoid of any indication of the reasonableness of the fees. Without such evidence no fee award can stand. In re Marriage of Jacobson (1980), 89 Ill. App. 3d 273, 411 N.E.2d 947.

For all the foregoing reasons, the order of the circuit court of Coles County making a property distribution and awarding maintenance and child support is reversed. The cause is remanded to that court with directions to take additional evidence, if the court deems it necessary, and to enter a new order in conformity with the views expressed in this opinion.

Reversed and remanded with directions.

TRAPP, J., concurs.

JUSTICE GREEN,

concurring in part and dissenting in part:

I concur in the decision to reverse the judgment and remand but dissent from the order to dismiss the appeal of petitioner.

Supreme Court Rule 303(a) (87 Ill. 2d R. 303(a)) states that, except in situations not involved here, a notice of appeal must be filed “within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed *** within 30 days after the entry of the order disposing of the motion.” (Emphasis added.) The rule speaks in terms of “a” post-trial motion and does not say that the motion must be that of the appellant. When a post-trial motion is timely filed and denied, subsequent appeals are from the underlying final judgment and not from the ruling on the post-trial motion, although errors in the ruling on the post-trial motion may be considered. (Sears v. Sears (1981), 85 Ill. 2d 253, 258, 422 N.E.2d 610, 612.) Here, petitioner filed a notice of appeal which, by operation of law, was from the final judgment entered. It was filed within 30 days after the ruling on respondent’s post-trial motion which was “a timely post-trial motion directed against the judgment.” By the express wording of Rule 303(a) petitioner’s notice of appeal was timely filed.

Had respondent’s cross-appeal, treated by the majority as a notice of appeal, been originally designated as such, petitioner would have had 10 days from its filing to file a cross-appeal by the terms of Rule 303(a). As the trial was at bench, she could have raised by cross-appeal, any claim of error she wished. Thus, it would not appear that there is any compelling policy requirement that requires she not be permitted to file a notice of appeal merely because it was not filed within 30 days of a ruling upon a post-trial motion filed by her. Apparently, the precise question in issue here has never been ruled upon before. Certainly, Elliott does not require a holding that petitioner’s notice of appeal was not timely. Absent either precedent or compelling policy reason, we should not do so when our holding is contrary to the express wording of Rule 303(a).


source: Caselaw Access Project

author: JUSTICE SCOTT

license: Public Domain

text:
    JEFFREY HUBER, Plaintiff-Petitioner, v. JOHNNIE R. WATTS Indiv. and d/b/a Johnnie’s Foundations et at., Defendants-Respondents.
    Third District
    No. 82—412
    Opinion filed December 8, 1982.

      Nat P. Ozmon, Laird M. Ozmon, and Dario A. Giribaldi, all of Anesi, Ozmon, Lewin & Associates, Ltd., of Chicago, for appellant.
    George C. Hupp, Sr., and Gale F. Murrin, both of Hupp, Irion & Hupp, P.C., of Ottawa, for appellees.
   JUSTICE SCOTT

delivered the opinion of the court:

This is an appeal by the plaintiff Huber from an order of the circuit court of La Salle County which granted the defendants a new trial from a verdict of a jury.

The plaintiff, a cement truck driver, was injured on October 2, 1978, while delivering a load of concrete to a subdivision near Aurora for the defendant, Johnnie R. Watts individually and d/b/a Johnnie’s Foundations. The injury occurred when the plaintiff was attempting to pour the ready-mixed cement from a chute attached to his truck. When he arrived at the job site the plaintiff backed his truck into position and while doing so noticed that the rear main chute which was lashed at a right angle to the back of his truck was elevating itself, which indicated a malfunction of the hydraulic system. After stopping the truck the plaintiff went to the back of the truck for the purpose of getting the main chute down or lower so it would pour concrete. An employee of the defendant Johnnie Watts, one Manley “Bud” Olson (also a defendant in this case), unlatched the main chute of the truck so that it was extending straight out from the rear of the vehicle. The plaintiff, being at the rear of the vehicle, locked the main chute into the straight out position and attempted to operate the electric-hydraulic switch on the left rear of the truck, which should have lowered the chute, but in this instance the switch failed to bring about the desired result. The evidence in this case established that when such a situation occurred it was standard and accepted procedure for the driver to hold the end of the main chute with his right hand, thereby placing weight on the chute, while again operating the electric-hydraulic switch with his left hand. All of this activity consumed one or two minutes of time. With the plaintiff’s hand on the main chute for the purpose of imposing weight upon the same, the defendant Olson actuated a secondary or “flop-over” chute by pulling it so that it came down upon the plaintiff’s hand, which was severely injured.

The evidence established that the defendant had a clear view of the plaintiff during the operations concerning the problems with the main chute. During the trial the truck involved in the accident was brought to the courthouse and the jury was given a demonstration of the maneuvering of the chute which enabled them to see just what view the defendant Olson would have had of the plaintiff. Also during the trial it was established that there was a “sticker” on the driver’s side of the chute stating “Warning. Keep out from under chutes at all times. Keep fingers clear of pinch points.” The plaintiff’s hand was injured in a pinch point area.

The trial of this case was conducted pursuant to our relatively new comparative negligence doctrine. The jury returned a verdict setting damages at $325,000 and apportioned fault at 10% to the plaintiff and 90% to the defendants. The trial court granted a motion for a new trial on the grounds that the allocation of fault was disproportionate and it (the allocation of fault) was manifestly contrary to the evidence. In the trial court’s written correspondence granting a new trial the court took no exception as to the amount of the verdict. If necessary, additional evidence adduced during the trial of this case will be set forth if the same becomes pertinent to the determination of this appeal.

The paramount question presented to this court is whether the trial court was correct in granting a new trial to the defendants.

In addressing this question, attention is first directed to assignments of error which the defendants contend occurred during the trial of this case and which would compel the granting of a new trial. Plaintiff argues that since the trial court granted a new trial solely on the grounds of a disproportionate allocation of fault by the jury and that since the defendants failed to ask for a rule by the trial court on other matters, i.e., amount of verdict, closing argument statements, there has been a waiver by the defendants of such alleged errors. We disagree with this argument of the plaintiff. The matters assigned as errors by the defendants were included in defendants’ post-trial motion for a new trial and were argued at the hearing on such motion. Though an appellant who brings a case to an appellate court for review must indicate by his assignment of errors the errors of which he complains, and his argument must be confined to the errors so assigned, an appellee is subject to no such requirement. The appellee can sustain the decree appealed from by any argument and on any basis appearing in the record which shows that the trial court’s decree is right. See Becker v. Billings (1922), 304 Ill. 190, 136 N.E. 581, and Hall v. Humphrey-Lake Corp. (1975), 29 Ill. App. 3d 956, 331 N.E.2d 365.

The defendants contend that certain remarks of counsel for the plaintiff during final argument to the jury misstated the law and were so prejudicial as to deny the defendant a fair trial. The complained-of remarks by counsel for the plaintiff were the result of his repeated invitations to the jury to equate damages with the sum of money that an injured party would offer to not to have sustained the injury in question. During oral argument before this court counsel for the plaintiff attempted to minimize the effect of such remarks by claiming that they consumed but a few minutes of time in a lengthy trial and that the trial court directed the jury to disregard the remarks and properly instructed the jury as to the law which should be followed in computing damages. In the light of such argument the determination of this issue will be best served by setting forth in full the complained-of remarks and the colloquy which ensued between court and counsel for all parties:

“MR. OZMAN: What would a reasonable person give not to have an injury with nature, extent and duration?
MR. HUPP: Now, Your Honor, I’m objecting to that statement.
MR. OZMAN: I think it’s totally proper what a reasonable man would offer.
THE COURT: Yes, Proceed.
MR. OZMAN: What would the reasonable man give to be free, not have that type of problem? A hundred thousand dollars from the day of this occurrence for the next forty-six years?
MR. OZMAN: What would someone give to face that kind of situation, have these kinds of things taken away? Would a reasonable man say, give me $200,000.00 and I’ll jump and put myself in Jeffrey’s place?
MR. HUPP: I’m going to object to that.
THE COURT: Yes, I think you’re going too far.
MR. OZMAN: Would a reasonable man give $200,000.00 to have this problem in the future and have these types of problems now?
MR. HUPP: I’ll object to that and ask the jury to disregard it and this is not the test to have this removed.
MR. OZMAN: That’s not what I said, I said the reasonable man.
THE COURT: I sustained the objection. You’ve gone too far.
MR. OZMAN: I doubt that the reasonable person would take that $200,000.
MR. HUPP: Again, Your Honor, I’m going to object to that.
THE COURT: Sustained. Strike that out.
MR. HUPP: And ask that the jury be instructed to totally disregard that.
MR. OZMAN: I have an absolute right to comment on what the reasonable man would give, Your Honor.
THE COURT: You do not have a right, as I understand the law, to auction off the amount which people might accept for assuming this responsibility.
MR. OZMAN: For the loss of advancement, the losses of activity, the loss of recreation, from the date of this occurrence until the year 2027, when we know what’s happening to money now — what’s happening to money now? What’s the dollar like over the last, just the last ten years? What’s it going to be like in 2027?
MR. HUPP: Again, I’m going to have to object to this argument.
THE COURT: There’s no evidence in the record of inflation or the value of the dollar.
MR. OZMAN: I think Your Honor can take judicial notice that inflation is a definite part of society.
THE COURT: No, I can’t do that.
MR. OZMAN: I think a fair-
MR. HUPP: Again, Your Honor, I’m going to have to ask the jury to disregard this argument.
THE COURT: The Court is going to instruct the jury that if you decide for the plaintiff on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate him for any of these elements of damages which have been proved by the evidence to have resulted from the negligence of the defendant. This is the rule that you will follow in deciding what the amount of damages will be.
MR. OZMAN: A fair and reasonable sum to have this hand; is there such a thing? Would a person say, if you give me $150,000.00, I’ll have my hand smashed?
MR. HUPP: I’m going to object to this again, Your Honor, and ask that the Court admonish Counsel and instruct this jury that they are not to consider this type of an argument.
THE COURT: They are not to consider this. You are to consider in fixing these figures what I just read to you. That is the law that you are to apply and not what Mr. Ozman is now saying.”

All of the foregoing colloquy was in the presence of the jury. In spite of the trial court’s efforts counsel for the plaintiff was not to be deterred in his persistent efforts to misstate the law. Six times counsel invited the jurors to assume that they were the plaintiff and asked them to decide how much monetary consideration they would pay not to suffer the injury that was suffered by the plaintiff. At the conclusion of the plaintiff’s argument to the jury yet before the jury a further colloquy ensued between counsel for the parties. We will not set forth verbatim these lengthy remarks; however, their effect was to accentuate the prejudicial effect of the preceding remarks made by counsel for plaintiff. The complained-of remarks were not the type which could be classified as isolated and inadvertent, but instead show a persistent effort to prejudice the jury by misstating the law in such a manner as to appeal to the sympathy of the jury. It would be sheer speculation to conclude that the trial court’s admonishments to the jury concerning the remarks eliminated their prejudicial effect. A situation quite similar to that present in the instant case occurred in the case of Brant v. Wabash R.R. Co. (1961), 31 Ill. App. 2d 337, 176 N.E.2d 13. In Brant the reviewing court held that such remarks deprived the defendant of a fair trial, and we reach the same conclusion in the instant case.

Having determined that the - defendant is entitled to a new trial for errors occurring during the course of the trial, we need not consider whether the trial court was correct in granting a new trial on the grounds that the jury erred in disproportionately allocating fault between the parties. Our determination also eliminates the necessity of considering other issues raised in this appeal.

For the reasons set forth the judgment of the circuit court of La Salle County granting a new trial is affirmed.

Affirmed.

ALLOY and STOUDER, JJ., concur.


author: JUSTICE LONDRIGAN

text:
    JERRY SIDENSTRICKER, Plaintiff-Appellee, v. ROGER DOBBS, d/b/a Dobbs’ Grain Bin, Defendant.—(Grain Systems, Inc., Defendant-Appellant.)
    Fourth District
    No. 4—82—0089
    Opinion filed November 22, 1982.
    Tenney, Tietz & Heavner, of Decatur (Richard L. Heavner, of counsel), for appellant.
    Robert E. Cummins, of Kidwell, Cummins & Bast, of Mattoon, for appellee.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

Defendant Grain Systems, Inc. (GSI) failed to answer the plaintiff’s complaint and was defaulted. More than 30 days after judgment was entered GSI filed a motion to vacate the default; the trial court correctly construed this as a petition for relief under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72), now section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401), and denied it. GSI appeals, and we affirm.

This action stems from defendant Roger Dobbs’ agreement to provide and erect for the plaintiff a grain bin and equipment necessary for its use; Dobbs is not a party to this appeal. Count I of the complaint alleged that Dobbs erected the bin improperly and that the bin and equipment were not what had been ordered. Count II alleged that GSI “was to provide and to supply to [Dobbs] for the use and benefit of Plaintiff a transfer augering system *** but that the proper augering system was not supplied.” As a result, the plaintiff had to acquire and install the proper auger himself. Count II also alleged that GSI’s “failures to provide thé proper equipment” required the plaintiff to try to “repair the bin so that it could be used for its intended purpose.” This count does not specify the failures but incorporates the allegation from the first count that the bin was not the one ordered “and was deficient in numerous respects.”

The complaint was filed June 1, 1979, and Craig Sloan, president of GSI, was served with a summons and the complaint June 5, 1979. GSI did not file an answer. A hearing was held November 21, 1979, for the plaintiff to prove his damages; GSI was not represented. The plaintiff listed expenses and losses totaling $9,647.50 incurred in correcting the bin and auger, which he said are still not satisfactory. The trial court defaulted GSI and entered a judgment of $9,647.50, plus costs.

Sloan was served with a citation to discover assets January 11, 1980, and 11 days later GSI petitioned to vacate the default judgment. The petition alleged that the plaintiff’s lawyer, Robert E. Cummins, and Robert Swiney, an employee of GSI, talked on the telephone about the case June 25, 1979, which was several weeks after GSI’s president was served. According to the petition, this conversation, left Swiney with the impression that GSI would not need to file an answer. The petition also alleged that GSI did not know of the default judgment until the citation to discover assets was served and that GSI had been diligent and had a meritorious defense. In an affidavit accompanying the petition Swiney asserted that to provide time to settle the dispute, Cummins and he agreed that GSI would be given an extension of time to answer and that judgment would not be entered. Swiney understood from the conversation that the plaintiff would not seek a judgment against GSI until the parties had talked again. Swiney also said that GSI heard nothing from the plaintiff until the citation was served and that GSI was not represented by counsel until January 1980. Swiney explained GSI’s defense: defendant Dobbs is an independent contractor who orders bins and augers from GSI, and GSI does not control any aspect of Dobbs’ business, including installation; in this case GSI merely supplied the auger ordered by Dobbs and had no part in the agreement between the plaintiff and Dobbs. Accompanying the affidavit is a copy of a letter from Cummins to Swiney; the letter, dated June 26, 1979, and dictated the previous day, says:

“This is to confirm our conversation of today’s date to the effect that I will agree that you be granted an extension of time to August 1, 1979, in which to file an Answer to the Complaint filed by Mr. Sidenstricker against you here in Coles County.
The extension of time is granted with" the purpose in mind of discussing settlement of the claims pending on behalf of Mr. Sidenstricker.”

GSI first argues that the trial court applied the wrong standard in denying its section 2 — 1401 petition. In a letter to the parties explaining the decision, the trial judge said:

“To enable the Court to vacate a judgment under the provisions of Section 72 of the Civil Practice Act, the movant must show in addition to the meritorious defense that the judgment was entered originally due to mistake or unavoidable inadvertence.”

GSI agrees that a meritorious defense must be shown but says that the other requirement is whether the petitioner has been diligent or has a reasonable excuse for the lack of diligence. At least with default judgments, however, this is the same as requiring the petitioner to show “that the judgment was entered originally due to mistake or unavoidable inadvertence,” for section 2 — 1401 is intended to present information dehors the record that would have prevented entry of the judgment complained of (Hogan & Farwell, Inc. v. Meitz (1976), 45 Ill. App. 3d 216, 359 N.E.2d 740). Thus, a party relying on section 2— 1401 “is not entitled to relief ‘unless he shows that through no fault or negligence of his own, the error of fact or the existence of a valid defense was not made to appear to the trial court.’ (Brockmeyer v. Duncan, 18 Ill. 2d 502, 505.)” Brunswick v. Mandel (1974), 59 Ill. 2d 502, 504, 322 N.E.2d 25, 27.

As the trial judge noted, Cummins’ letter to Swiney explicitly instructed GSI to answer the complaint if the dispute was not settled by August 1, 1979. GSI did nothing. A party must follow his case, and section 2 — 1401 will not save a party from his or his lawyer’s fault or negligence. (Esczuk v. Chicago Transit Authority (1968), 39 Ill. 2d 464, 236 N.E.2d 719; Brockmeyer v. Duncan (1960), 18 Ill. 2d 502, 165 N.E.2d 294.) In view of Cummins’ instructive letter, GSI’s fault in not appearing and answering the complaint is particularly apparent. GSI offers no excuse except Swiney’s impression from his conversation with Cummins June 25, 1979, that the plaintiff would talk with GSI again before seeking judgment. Cummins’ letter, which GSI submitted to support its petition, does not say who would initiate settlement discussion.

The requirement of diligence in presenting the defense in the original or underlying action is relaxed or ignored when the prevailing party has acted unfairly or unconscionably in obtaining its favorable judgment. (In re Marriage of Lorenzi (1980), 84 Ill. App. 3d 427, 405 N.E.2d 507; Gary Acceptance Corp. v. Napilillo (1967), 86 Ill. App. 2d 257, 230 N.E.2d 73.) GSI argues that the plaintiff has acted unfairly by waiting more than 30 days after judgment to collect the award, which has been construed as “castpng] a ‘cloud’ upon the proceedings” (Manny Cab Co. v. McNeil Teaming Co. (1975), 28 Ill. App. 3d 1014, 1020, 329 N.E.2d 376, 380).

In Elfman v. Evanston Bus Co. (1963), 27 Ill. 2d 609, 190 N.E.2d 348, the section 2 — 1401 petitioner alleged that the prevailing party deliberately waited until June 20, 1960, to execute a default judgment entered May 18, 1960, so that the petitioner would not know about the default in the 30-day period after judgment. The supreme court decided that relief was proper for several reasons and said:

“While not completely controlling or conclusive, further casting a cloud on the proceedings was the conduct of plaintiff in delaying execution until after 30 days from judgment had expired, [citations] and [an unrelated reason].” (27 Ill. 2d 609, 614, 190 N.E.2d 348, 351.)

Within 30 days of judgment a defaulted party may move under section 2 — 1301(e) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1301(e)), formerly section 50(5) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 50(5)), to have the judgment set aside. Delays of more than 30 days in execution signify unfairness only if section 2 — 1301 is easier to proceed under than section 2— 1401. Both sections are addressed to the court’s equitable powers, but in Patrick v. Burgess-Norton Manufacturing Co. (1976), 63 Ill. 2d 524, 531, 349 N.E.2d 52, 56, the supreme court said, in reviewing a section 2 — 1301(e) motion, “We agree with the appellate court that reversal of the judgment [denying the motion] did not require that the circuit court have abused its discretion.” The circuit court’s ruling on a section 2 — 1401 petition to vacate a default, however, “will be reversed only for a clear abuse of *** discretion.” (Slates v. International House of Pancakes, Inc. (1980), 90 Ill. App. 3d 716, 724, 413 N.E.2d 457, 463.) Besides different standards of review, sections 2— 1301(e) and 2 — 1401 require different allegations; in People ex rel. Reid v. Adkins (1971), 48 Ill. 2d 402, 270 N.E.2d 841, the court said of motions under section 2 — 1301(e):

“Under this section, it is no longer necessary that such relief be sought on the precise grounds that there is a meritorious defense and a reasonable excuse for not having timely asserted such defense. The overriding consideration now is whether or not substantial justice is being done between the litigants and whether it is reasonable, under the circumstances, to compel the other party to go to trial on the merits. [Citations.]” (48 Ill. 2d 402, 406, 270 N.E.2d 841, 843.)

This standard is easier to satisfy than the one required by section 2— 1401, which still requires allegations of a meritorious defense and diligence.

The failure to begin efforts to execute a judgment within 30 days of its entry does not by itself render the default unfair or unconscionable; cases that find the original proceedings cloudy because of delay in execution also find other grounds or additional unfair acts to justify relief under section 2 — 1401 (e.g., Whitworth v. Morgan (1977), 46 Ill. App. 3d 292, 360 N.E.2d 1198; Howard v. Decor Home Builders, Inc. (1976), 37 Ill. App. 3d 173, 345 N.E.2d 719; Manny Cab Co. v. McNeil Teaming Co. (1975), 28 Ill. App. 3d 1014, 329 N.E.2d 376; Gary Acceptance Corp. v. Napilillo (1967), 86 Ill. App. 2d 257, 230 N.E.2d 73). If delay alone vitiated a default, then most section 2 — 1401 petitions would be granted, which is not the case.

We therefore conclude that the trial court correctly denied GSI’s petition.

Affirmed.

WEBBER and MILLS, JJ., concur.


author: JUSTICE WEBBER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK A. SHELTON, Defendant-Appellant.
    Fourth District
    No. 4—82—0200
    Opinion filed November 22, 1982.
    Gregory A. Mattingley, of Brown, Hawkins, Basóla & Mattingley, of Decatur, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur (Robert J. Biderman and Garry W. Bryan, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WEBBER

delivered the opinion of the court:

Defendant was originally charged by information filed in the circuit court of Macon County with the offenses of theft by deception of property having a value in excess of $150 and attempt (theft by deception of property having a value in excess of $150). These offenses are not involved in this appeal. Two days after the filing of the original informations, the State sought, and was granted, leave to file an additional information charging the offense of arson (intent to defraud an insurer) in violation of section 20 — 1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 20 — 1(b)). This was designated as count III. Still later, approximately six days before trial, the State again sought, and was granted, leave to file an additional information charging the offense of arson (damaging the property of another) in violation of section 20 — 1(a) of the Code. (Ill. Rev. Stat. 1979, ch. 38, par. 20 — 1(a).) This was designated as count IV. A jury trial was held on counts III and IV. The count alleging attempt was dismissed and the record does not disclose any disposition as to the count alleging theft. The jury found defendant guilty on both counts and the trial court sentenced him to three years’ imprisonment on count IV only, since both counts of arson arose out of the same set of circumstances.

No question of reasonable doubt has been raised on appeal. Therefore only such factual matters as are necessary to understand the issues which have been raised will be examined.

The principal issue, in our opinion, is the contention by the defendant that the trial court erred in denying his motion to suppress evidence. This, in turn, depends upon the validity of a consent to search executed by James Shelton, defendant’s father.

It appeared that defendant resided with his parents in Decatur; he was the possessor of a 1975 Chevrolet automobile, although title to the vehicle was in the name of his father, James. Evidence was received that the defendant had stated to a friend, Todd Gober, that he had in mind to burn the car and collect the insurance proceeds. This conversation took place on October 17, 1981, in the garage at the parents’ home where the car was located. At that time and place defendant removed certain personal property from the car, stuffed some paper into the dashboard ash receiver, and then placed a lighted cigarette in the ash receiver. This occurred about 6 p.m. Defendant was then called into the house for supper. The Decatur fire department responded to an alarm at about 7 p.m. The automobile was destroyed in the blaze.

A fire inspector examined the car on the evening of the fire, October 17, and again the next day, October 18, but was unable to determine with certainty the cause of the fire. On October 17, at the time of the fire, a consent to search was obtained from James Shelton. This was on a form apparently in common use by the fire department. There are three pertinent provisions for the purposes of this opinion: (1) the consent is to search “premises commonly known as 3544 E. Orchard St.”; (2) the consent allows the members of the fire department to enter the premises “at such times as they deem appropriate”; and (3) the consent provides “that this consent may be revoked by me at any time.”

The fire inspector testified that he became convinced that the fire was of criminal origin on account of two factors: first, that it appeared to have originated in the ash receiver, and second, an interview which he had with Todd Gober. He then returned to the Orchard Street address on October 30, 1981. He attempted to find someone to consent to a search but no one was at home so he proceeded under the consent given on October 17 and removed the ash receiver and its contents from the car which was still sitting where it had been left on the night of the fire, just off the driveway outside the house.

Defendant filed a motion to suppress the items seized. At the hearing on that motion, James Shelton testified that he had executed the consent; that he understood that the fire department wanted to return the next day during the daylight hours to search; that all the conversation about the consent concerned the automobile, not the house; that both the police and fire departments asked for his consent on October 30 but he refused; that between October 17 and October 30 he never contacted the fire department to revoke the consent; and that he did not consider that the consent extended to October 30.

At the same hearing, the fire inspector testified that on October 17 he explained to James Shelton that the consent could be revoked at any time; that Shelton asked how this could be done and that he told him to contact himself, the inspector; that he told Shelton that he was certain they would be back the next day to examine the car; that he did return on October 30 and searched as above described; that the ash receiver contained burnt bits of paper and a cigarette butt; that later on the same day he asked Shelton for permission to search and was refused; that defendant was then placed under arrest; and that he received no notification of revocation of the consent between October 17 and October 30.

Defendant makes two arguments in support of his contention that the consent to search was invalid and hence that the trial court should have allowed the motion to suppress. First, he claims that a consent to search “premises” does not include an automobile; and second, that neither Shelton nor the fire inspector understood the consent as a continuing one, but rather it was limited to a search on October 18.

The first argument is without merit. Both Shelton and the fire inspector understood that it was the car which was to be searched; there is no indication that the house was in any wise damaged and no reason therefore existed either to obtain a consent or to give it for a search of the house. The question of the subject matter of the consent itself is a factual one (People v. Cole (1977), 53 Ill. App. 3d 711, 368 N.E.2d 1308) and will not be disturbed unless the conclusion below is against the manifest weight of the evidence. It is not.

The second contention is much more troublesome. The supreme court has stated: “An arresting officer has no more right to make a search beyond the limit prescribed in a consent to search than he has to exceed the limit prescribed in a search warrant.” (People v. Schmoll (1943), 383 Ill. 280, 283, 48 N.E.2d 933, 934.) While no question of police arrest is involved here, the same principle applies to a search pursuant to a consent given to a fire inspector. (See People v. Holloway (1981), 86 Ill. 2d 78, 426 N.E.2d 871.) The fact that the consent in Schmoll was oral, while in the instant case it was written, does not distinguish the cases.

The question may then be posed thus: Is there a limit on a “blanket” consent such as was given in the case at bar, and if so, what is it? Corollary questions are: assuming the existence of some limit, how does it apply in the number of searches and in time constraints?

We know of no authority which condemns such a consent as being per se illegal or unconstitutional. Two prior cases have dealt with the question, although not in the precise posture of the instant case. In People v. Jackson (1978), 57 Ill. App. 3d 720, 373 N.E.2d 729, the police obtained the consent of a counselor in charge of parolees at a YMCA, of whom defendant was one, to search defendant’s room. This was done in defendant’s absence. Later the officers returned and arrested defendant, who was then in his room, and at that time seized certain evidence not related to the offense for which defendant was arrested. The appellate court affirmed a suppression order, but on the basis that no consent had been obtained from the counselor for the second search and that the original consent did not extend to the second search; nor was there any consent of the defendant obtained for the second search. The case did not consider nor pass upon a situation involving a consent of indefinite duration.

Nearer factually to the instant case is People v. Lee (1981), 93 Ill. App. 3d 894, 417 N.E.2d 1090. In that case the defendant was arrested in his apartment and executed what the court called a “blanket, comprehensive consent form.” The opinion does not tell us the exact terms of the form. The police then conducted a brief search of the apartment and later returned for a more extensive one. The court upheld the second search but stated, “[W]e deem it noteworthy that the defendant gave the key to his apartment to the officers, never requested its return, and that after the complained-of second search he again executed a consent-to-search form, to wit, of his automobile.” (93 Ill. App. 3d 894, 896, 417 N.E.2d 1090, 1092.) It appears to us that the court’s decision was based in large part on a subsequent ratification by the defendant of the actions of the officers under the “blanket” consent. No such ratification exists in the instant case; in fact, James Shelton revoked his consent on October 30, but too late to prevent the subsequent search.

The State has also cited cases from other jurisdictions. People v. Nawrocki (1967), 6 Mich. App. 46, 148 N.W.2d 211, cited in both Lee and Jackson, involved the search of defendant’s automobile at the scene of his arrest, and a second search of the car while being held at a police garage. The court found the second search permissible because defendant gave permission to the police to “impound the car and to search it at any time.” In People v. Trujillo (1977), 40 Colo. App. 186, 576 P.2d 179, a consent form with no time limit was found to authorize a search two days after the initial consent. In Phillips v. State (Alaska 1980), 625 P.2d 816, the failure to object to additional searches implied a continuation of the initial consent. In United States v. White (5th Cir. 1980), 617 F.2d 1131, the lack of indication that defendant sought to withdraw his consent or was otherwise prejudiced allowed a two-day delay in searching defendant’s van. However, since we have concluded that the determination of the question will be a factual matter, these authorities are of little assistance.

We believe that the proper rule is that a consent to search which is unlimited as to time or number of searches must be judged under a rule of reason and that what is reasonable is a factual determination to be made after considering all the circumstances under which the consent has been executed. This accords with the rationale of the fourth amendment which prohibits only “unreasonable” searches. (Chimel v. California (1969), 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034.) In judging what is reasonable deference should be given to the general rule that a consent is ordinarily given upon the understanding that the search will be conducted forthwith and that only a single search will be made. (Lee.) Due allowance should also be made for the fact that a consent is by nature more flexible than an application for a search warrant. A consent necessarily involves the defendant himself, or someone who has legal authority to consent for him, while the application is ex parte, ordinarily without even the knowledge of the defendant.

In applying the rule to the instant case, we find that the trial court’s ruling was against the manifest weight of the evidence. Both James Shelton and the fire inspector testified that the conversation on October 17 concerned a search during the daylight hours of October 18; this search was in fact accomplished, and it is only reasonable to presume that Shelton then believed that the purpose of the consent had been fulfilled and that no reason then existed to register a formal revocation. More significant, however, is the fire inspector’s testimony that on October 30 he first sought an additional consent to search, but in the absence of anyone on the premises to give such consent, he elected to proceed under the two-week-old consent. We believe that this is clear evidence that the inspector himself no longer believed the October 17 consent to be valid.

The trial court’s ruling in denying the motion to suppress was error, but in view of the overwhelming evidence against the defendant, the error was harmless. As has already been indicated, Todd Gober testified as to a conversation with defendant about burning the car in order to obtain the insurance proceeds; he also observed the removal of personal property from the vehicle and the placement of incendiary materials in the ash receiver. In his own testimony defendant admitted removing the personal articles and did not contradict Gober’s testimony except to claim that he wadded up the paper in the ash receiver rather than shredding it as stated by Gober. The articles seized, i.e., the ash receiver, burnt paper, and a cigarette butt, were at best only cumulative and corroborative.

Defendant raises two additional issues which may be dealt with more briefly. First, he claims that failure to hold a preliminary hearing as to count IV infringes on his rights under article I, section 7, of the 1970 Illinois Constitution. We do not agree. A preliminary hearing was held as to count III and probable cause was found to believe that the offense of arson had been committed and that the defendant committed it. Count IV arose out of the same transaction and conduct. Section 111 — 2(f) of the Code of Criminal Procedure of 1963 provides:

“(f) Where the prosecution of a felony is by information or complaint after preliminary hearing, or after a waiver of preliminary hearing in accordance with paragraph (a) of this Section, such prosecution may be for all offenses, arising from the same transaction or conduct of a defendant even though the complaint or complaints filed at the preliminary hearing charged only one or some of the offenses arising from that transaction or conduct.” (Ill. Rev. Stat. 1979, ch. 38, par. 111— 2(f).)

The predecessor provision of the Code was held constitutional in People v. Redmond (1977), 67 Ill. 2d 242, 367 N.E.2d 703.

Defendant’s second additional issue presents an evidentiary question. Gregg Scott testified about a prior consistent statement made by Todd Gober, which affirmed some of Gober’s testimony at trial. As has been indicated above, Gober testified to the events and conversation with defendant in the garage on October 17 shortly before the fire. During cross-examination, Gober admitted that he had made contradictory statements; specifically, that on October 27 he had told Officer Ward Davis that he did not know how the fire had started; on October 30 he told Officer Davis the same story which he related at trial; on redirect Gober stated that he had denied knowledge of the fire because he did not want to see defendant get into trouble. Gober also stated during cross that he was frightened when talking to Davis in that he might be arrested for the offense himself.

Scott testified that Gober told him about the events and conversation in the garage two or three days prior to October 30. The State argues that defense counsel’s elicitation of Gober’s acknowledgment that he was afraid of Officer Davis and feared that he himself might be arrested was an attempt by the defense to attack Gober’s credibility by implying that he was motivated to testify falsely under police pressure; therefore, evidence of a prior consistent statement was admissible.

The general rule is that in order to rebut a charge or inference that a witness is motivated to testify falsely, evidence of a prior consistent statement is admissible. In the case at bar Gober talked to Davis on both October 27 and October 30; he talked to Scott either on the 27th, 28th, or 29th of October. On October 27 Gober told Davis he had no knowledge of the fire; on October 30 he told Davis the same story he related at trial. Therefore, if the story at trial was a false story resulting from pressure by Davis, Gober apparently did not feel it on October 27, but did feel it on October 30; the conclusion is that the conversation with Scott sometime between the 27th and the 29th occurred prior to any motive to testify falsely and was admissible as confirming a prior consistent statement. No error was committed.

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

Affirmed.

GREEN, RJ., and TRAPR J., concur.


author: JUSTICE LEWIS JUSTICE WEBBER,

text:
    J.R. SINNOTT CARPENTRY, INC., Plaintiff and Counterdefendant-Appellant, v. JAMES E. PHILLIPS et al., Defendants and Counterplaintiffs-Appellees.
    Fourth District
    No. 4—82—0280
    Opinion filed November 18, 1982.

      WEBBER, J., specially concurring.
    John T. Phipps, of John T. Phipps Law Offices, P.C., of Champaign, for appellant.
    Arnold E. Blockman, of Hatch, Blockman & McPheters, of Champaign, for appellees.
   JUSTICE LEWIS

delivered the opinion of the court:

Roger Sinnott, on behalf of the plaintiff corporation J.R. Sinnott Carpentry, Inc., entered into a contract with defendants, James and Susan Phillips, for the construction of an addition to defendants’ house in Urbana, Illinois. Plaintiff brought this suit to recover a sum allegedly due under the contract. Defendants’ counterclaim alleged that (1) plaintiff breached the contract; (2) plaintiff was negligent in the construction of the addition; and (3) plaintiff breached a written warranty against defects and negligence.

The contract provided that defendants were to pay for all labor at the rate of $12.95 per hour, payable monthly, and to pay for all material at plaintiff’s cost payable on the first day of each month. The contract provided that work was to be performed “in accordance with the plans and specifications attached hereto.” However, no plans or specifications were attached to the contract. James Phillips testified that he did not want Sinnott “feeling trapped into a fixed type contract” and that they wanted Sinnott to have enough latitude to build what defendants wanted. Sinnott testified that he had made floor plans from sketches made by Susan Phillips and that defendants indicated they did not need any more detailed plans or specifications than what they had. Susan Phillips testified that she asked Sinnott if they would need an architect and he said it would not be necessary because he had enough plans to go ahead and build the addition.

Susan Phillips’ sketches depicted floor plans for the addition. Susan testified that the sketches represented three livable floors and that the third floor was to have two rooms, a play room and a sewing room, and that there were to be dormer windows on the third floor. Sinnott made blueprints from the sketches and subsequently had a second set of blueprints made by Thompson Lumber Company.

The Thompson Lumber Company blueprints indicated dormer windows on the third floor. There was also a door on the third floor which was marked as six feet eight inches high and a wall which divided the third floor into two distinct areas. Sinnott testified that he represented to defendants he could build the structure shown in the Thompson Lumber Company blueprints. He also testified that he always believed he was going to build two floors with a storage attic and never envisioned a three-story project. He thought the third floor was for storage and possibly a play room.

Susan Phillips testified that she specifically told plaintiff that she wanted a third floor which was to consist of a play room and a sewing room and was to have dormer windows. James Phillips testified that before the contract was entered into he told Sinnott that they wanted three floors with livable space.

Defendants’ expert, Richard Willms, a general contractor, testified that Sinnott’s blueprints and the Thompson Lumber Company blueprints called for three stories of habitable space with dormer windows. The basis for his belief that three stories were called for was the six-foot eight-inch door on the third floor shown in the Thompson Lumber Company blueprints. He said defendants’ addition was not in accordance with the plans because it did not have dormer windows or a third floor. He said the structure could not be repaired without tearing it down. He also testified that it is customary to provide vertical section drawings which give floor elevation and headroom and without such drawings one cannot tell whether the structure can be built.

Henry Spies, a staff member of the Small Homes Council and Building Research Council at the University of Illinois, testified in an evidentiary deposition that the plans called for three floors of habitable space and dormer windows and that the building was not in accordance with the plans. Spies testified that it was customary to provide section plans and that a competent contractor should have realized that a building could not have been built according to the Thompson Lumber Company blueprints.

Susan Phillips testified that she was not aware of a problem with the height of the third floor until the roof was put on the addition and the side of the house adjacent to the addition was broken into. She said she did not go up to the third floor earlier because it was only accessible by a ladder which she did not want to climb because she was “carrying around” a small baby. She testified that the height of the third floor is about five feet six inches in the center. A photograph of the attic shows exposed wooden rafters that slope downward from the center of the attic. Susan further testified that, after she discovered the low ceiling on the third floor, she told Sinnott there was no reason to install dormer windows on the third floor. She testified that Sinnott never told her there would not be three floors of habitable space.

At trial, defendants introduced evidence relating to alleged defects in material and workmanship. Susan Phillips testified that she wanted one-inch by eight-inch tongue-and-groove pine flooring. She said plaintiff installed tongue-and-groove flooring on the second floor, but installed common pine on the first floor. She testified that the boards on the first floor were pulling apart and splitting. Defendants also presented evidence of the following defects: a stairwell with insufficient headroom; a leak in the vestibule resulting from improper flanging on the roof; a stairway with a bottom step 10 inches high and all other steps six inches high; the walls of the building were only four inches thick, whereas defendants had asked for six-inch walls; one of the windows on the first floor was not thermopane although defendants. had requested that all windows be thermopane; and a problem with the threshold where the second floor of the addition met the second floor of the house.

Campbell Evans, a real estate appraiser, testified that the replacement cost of an addition similar to what defendants have now would be $73,246 and the fair market value of such an addition would be $43,948.80. He testified that the replacement cost of a three-floor addition would be $122,850 and the addition would have a fair market value of $73,710. Evans’ figures for replacement costs were derived by multiplying the square footage of habitable floors by $60 per square foot. The figures for market values were obtained by multiplying the replacement cost by 0.6.

James Phillips testified that plaintiff originally estimated the cost of the project to be $40,000. Defendants have paid to plaintiff $84,216.63 under the contract.

Sinnott testified at trial that $17,455.91 was due under the contract for labor and materials. Defendants responded that they were billed twice in the amount of $1,233.31 for work done by a subcontractor. Defendants also disputed other charges but conceded that their balance was $14,543.47.

The trial court found that the contract provided for three floors of habitable space; that this provision was an essential part of the contract; and that plaintiff failed to substantially perform the contract by not building three floors of habitable space. Accordingly, the court held that plaintiff could not recover under the contract. The court also determined that, although plaintiff breached the contract and was negligent in failing to provide section drawings, defendants suffered no ascertainable economic loss other than the cost of repairing the defects in material and workmanship. Finally, the trial court found that defendants had been damaged by plaintiff’s negligence in disconnecting an electric freezer which caused the loss of meat inside the freezer. The trial court awarded defendants $9,101.36 as the cost of repairing defects and $250 as damages resulting from plaintiff’s negligence.

I

Plaintiff maintains that certain parts of the trial court’s judgment were against the manifest weight of the evidence. For a judgment to be against the manifest weight of the evidence it must appear that the conclusions opposite to those reached by the trier of fact are clearly evident. Joray Mason Contractors, Inc. v. Four J’s Construction Corp. (1978), 61 Ill. App. 3d 410, 378 N.E.2d 328.

First, plaintiff argues that the trial court’s finding that the contract called for plaintiff to build a three-story addition was against the manifest weight of the evidence.

Susan Phillips testified that she specifically told plaintiff that she wanted “[a] three-story addition with livable space on all three floors” with dormer windows and that the third floor was to be a play room and a sewing room. James Phillips testified that he told plaintiff he wanted three floors of livable space. The Thompson Lumber Company blueprints procured by plaintiff indicate that the third floor was to have dormer windows, a dividing wall, and a door six feet eight inches high. The dormer windows, the wall, and the height of the door indicate that the third floor was to be used for something other than storage. Defendants’ two experts testified that the plans indicated three floors of habitable space. Finally, Sinnott even testified that he thought the third floor was to be for storage and a play room.

Plaintiff’s only evidence indicating that the addition was not to be for three floors of habitable space was Sinnott’s testimony that the contract was for a two-story addition with an attic and that he never envisioned a three-story project. Plaintiff also noted that the blueprints and Susan Phillips’ sketches labeled the third floor plans as “attic plans.” However, the word “attic” does not necessarily mean a space only usable for storage. Furthermore, we reiterate, that the Thompson Lumber Company blueprints, drawn pursuant to Roger Sinnott’s directions, indicate a dividing wall and a six-foot eight-inch door on the third floor. This suggests that Sinnott, at one time, envisioned something other than what he built.

Plaintiff’s conclusion that the parties contracted for only two floors and a storage attic is not clearly evident. Therefore, we hold that the trial court’s finding that the contract required three habitable floors was not against the manifest weight of the evidence.

Second, plaintiff argues that the trial court’s finding that plaintiff failed to substantially perform the contract was against the manifest weight of the evidence. The general rule is that a builder is not required to perform perfectly, but rather is held only to a duty of substantial performance in a workmanlike manner. (Brewer v. Custom Builders Corp. (1976), 42 Ill. App. 3d 668, 356 N.E.2d 565; Watson Lumber Co. v. Guennewig (1967), 79 Ill. App. 2d 377, 226 N.E.2d 270.) The question of whether substantial performance has been given depends on the facts of each case. (Joray; Brewer.) In Watson Lumber Co. v. Mouser (1975), 30 Ill. App. 3d 100, 333 N.E.2d 19, the court stated that the “pristine qualities” of the doctrine of substantial performance were substantial performance of the work required by the contract and a good faith performance of the essential points of the contract. In the present case, the trial court found that the requirement of three habitable floors was an “essential point” of the contract and, consequently, plaintiff failed to substantially perform the contract by not building a third habitable floor.

Defendants’ expert witness, Campbell Evans, testified that the fair market value of a three-story addition was $73,710 whereas the fair market value of an addition similar to what plaintiff built would be $43,948. This evidence shows that there is a substantial difference between what defendants contracted for and what they received. Plaintiff presented no evidence to rebut Evans’ testimony. Furthermore, plaintiff made no argument to the trial court or to this court that the addition it built was in substantial performance of a contract which required three habitable floors.

The trial court’s conclusion that plaintiff failed to substantially perform the contract by not building three habitable floors was not against the manifest weight of the evidence.

Finally, plaintiff argues that the finding of negligence on its part was not supported by the record. The trial court awarded $250 to defendants for the loss of meat resulting from plaintiff’s alleged negligence in disconnecting electricity to a freezer. Defendants do not address the issue of whether the trial court’s finding of plaintiff’s negligence involving the disconnection of the freezer was against the manifest weight of the evidence and, therefore, have waived the issue. See Supreme Court Rule 341(e)(7), (f) (87 Ill. 2d R. 341(e)(7), (f)).

Even absent defendants’ waiver, the evidence does not support the trial court’s finding that plaintiff was negligent. The only evidence concerning the disconnected freezer was testimony by James Phillips. He said one of the workmen disconnected the freezer but he did not know whether the workman was employed by plaintiff or a subcontractor. An employer is generally not liable for the acts of an independent contractor. (Pasko v. Commonwealth Edison Co. (1973), 14 Ill. App. 3d 481, 302 N.E.2d 642.) Consequently, although the evidence showed that plaintiff might have been negligent, the evidence was equally compatible with the fact that someone other than plaintiff was negligent. Defendants were required to show by a preponderance of the evidence that plaintiff breached a duty owed to defendants by a negligent act. (See Wallace v. Weinrich (1980), 87 Ill. App. 3d 868, 409 N.E.2d 336.) Defendants failed to sustain this burden of proof.

The portions of the judgment finding plaintiff negligent in disconnecting the freezer and awarding defendants $250 as a result of that negligence are vacated.

II

Plaintiff argues that the trial court’s award of damages was improper. In Brewer, the trial court stated that a contractor whose work amounts to less than substantial performance has no right to the contract price. In such a case, the builder’s right is under a theory of quantum meruit and he is entitled to recover only reasonable compensation for value received by the purchaser over and above the injuries suffered by the builder’s breach. In the present case, the only testimony of the value of the addition was defendants’ expert who testified that the fair market value of an addition similar to what plaintiff built was $43,948. It was undisputed that defendants have paid plaintiff $84,216.63. Consequently, plaintiff has received compensation far in excess of the value received by defendants and, therefore, has no damages under a quantum meruit theory.

The court in Brewer also stated that “[a]s a general rule, the measure of damages, or the credit due the purchaser, when performance by the builder has been less than full performance, is the cost of correcting the defects ***.” (42 Ill. App. 3d 668, 674, 356 N.E.2d 565, 570.) The trial court awarded damages to defendants based on the cost of repairing defects in material and workmanship. The award was calculated as follows:

1. Stairway between second and third levels
2. Second level threshold
3. First level flooring
4. First level non-thermopane window
5. Vestibule roof leak
TOTAL
$2,250.00
64.60
6,304.26
102.00
380.50
$9,101.36

Defendants were entitled, at least, to the cost of repairing these defects. Furthermore, plaintiff has not challenged this part of the judgment on appeal. We find no cause for reversal of the trial court’s judgment with respect to the foregoing damages.

Ill

Plaintiff argues that in awarding damages to defendants, the trial court erred because defendants’ failure to pay an installment was a material breach of the contract which barred any recovery. Plaintiff did not raise this issue in the trial court. Matters not presented to or ruled upon by the trial court may not be argued as error on appeal. (Gentile v. Gentile (1980), 87 Ill. App. 3d 311, 409 N.E.2d 52; McCoy v. Board of Fire & Police Commissioners (1979), 79 Ill. App. 3d 742, 398 N.E.2d 1020.) Consequently, plaintiff has waived this issue.

Even if plaintiff did not waive the issue, the court in Brewer stated that the purchasers’ refusal to pay is not a breach of contract when the builder’s work amounts to less than substantial performance. Therefore, as a result of plaintiff’s failure to substantially perform the contract, defendants’ failure to pay the installment was not a breach of the contract and they were entitled to recover the cost of repair for defects.

IV

Plaintiff, citing Brewer, argues that it is entitled to recover on the contract because defendants “accepted” plaintiff’s less than substantial performance. In Brewer, the court determined that, as a result of numerous defects, the builder breached his contractual duty to perform the work in the “best workmanlike manner.” The court found the builder’s performance to be less than substantial, but nevertheless, allowed him to recover on the contract because the purchaser’s “activities in correcting many of the claimed defects and in proposing to correct many others, amount[ed] to acceptance and use of the structure of such a character as to recognize that [the builder’s] performance [was] substantial.” 42 Ill. App. 3d 668, 674, 356 N.E.2d 565, 571.

Brewer is distinguishable from the present case. Here, plaintiff’s less than substantial performance was a result of his failure to perform an essential part of the contract rather than merely a result of numerous defects. Furthermore, defendants have made no attempt to correct the “defect” of the lack of a third floor. On the facts of this case, there was no “acceptance” by defendants that would permit plaintiff to recover under the contract.

The trial court’s judgment is affirmed except for the finding that plaintiff was negligent in disconnecting defendants’ freezer and the award to defendants of $250 for damage resulting from that negligence. The judgment is to be modified to conform with this opinion.

Affirmed in part, vacated in part and remanded.

LONDRIGAN, J., concurs.

JUSTICE WEBBER,

specially concurring:

Although I agree with the result reached by my brothers, I respectfully disagree with the theory upon which they reached it. The principal opinion speaks in various places of “substantial performance” and “substantial breach.” These are concepts which relate to a contract which is sufficiently definite and certain as to be susceptible of specific performance. No such contract exists here. It is even questionable whether a contract exists at all in this case as the evidence showed no manifestation of mutual assent. The only sound theory upon which the trial court’s judgment can be affirmed is that of quantum meruit.

A contract must be clear, definite, and complete in all of its material terms to be enforceable. Although a lack of nonessential details will not render a contract unenforceable, a contract will only be deemed to be sufficiently definite and certain if a court is able to determine, from its terms, what the parties have agreed to do. (First National Bank v. Minke (1981), 99 Ill. App. 3d 10, 425 N.E.2d 11.) In the case at bar the contract in no way provides what the parties have agreed to do. The agreement signed by the parties specified that the addition was to be constructed pursuant to plans and specifications which were to be attached to the contract. No such plans or specifications were ever attached, although blueprints were obtained from sketches made by defendant Susan Phillips. The parties apparently reviewed these blueprints prior to beginning construction of the addition. However, it is obvious from the evidence that the blueprints were drafted in such a manner as to be susceptible to at least two conflicting interpretations, i.e., that the blueprints called for an addition of two stories, or that they called for an addition of three stories. Consequently, the contract was uncertain as to its very subject matter; a contract must be reasonably certain as to its subject matter. (17 Am. Jur. 2d Contracts sec. 81 (1964).) This uncertainty of the subject matter extends to the price and time terms. Without knowing whether a two-story or a three-story addition was to be constructed, the parties could not have known the ultimate price with any definiteness or the time in which the project was to be completed.

The record reveals that the parties referred to the third story variously as an “attic,” a “playroom,” and a “sewing room.” Only a necromancer could say what they had in mind individually, and certainly there is no evidence of agreement upon any one of these terms, or any other term, for this third story. Yet, the trial court and the majority seize upon a six-foot eight-inch door, obviously a minor item in an $80,000 project, as conclusive evidence of intent.

For the same reasons it is questionable whether a contract existed between the parties at all. One of the essential elements for formation of a contract is manifestation of agreement or mutual assent by the parties to the terms thereof. The failure to agree upon an essential term may indicate that mutual assent is lacking. Allen v. Amber Manor Apartments Partnership (1981), 95 Ill. App. 3d 541, 420 N.E.2d 440.

The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy. (Restatement (Second) of Contracts sec. 33(2) (1981).) The document which purports to be the contract between the parties in the case at bar is so uncertain that it is not capable of specific performance. Specific performance will not be granted unless the terms of a contract are sufficiently certain to provide a basis for an appropriate order. (Restatement (Second) of Contracts sec. 362 (1981).) Without knowing what plaintiff was to construct, a court could not order him to specifically perform. Further, the agreement is not susceptible to an order of damages in the event of breach. Again, without knowing what it was that plaintiff was to do, there would be no way of determining damages in the event of his breach. Moreover, without knowing what it was plaintiff was to do there is no way of knowing the ultimate price defendants were to pay and therefore no way of assessing damages in the event of their breach.

Likewise, without knowing what it was that plaintiff was to do, there is no way to determine whether there has been substantial performance. A court’s primary object in construing a contract is to give effect to the intentions of the parties. (First National Bank.) It is not necessary that a party perform perfectly. (Brewer.) However, where, as here, the contract is so uncertain as to be unenforceable the intentions of the parties are not discernible and it becomes impossible to define substantial performance.

Since the contract is not clear, definite, and complete in all of its material terms it is not enforceable. (First National Bank.) Moreover, as has been indicated above, it is questionable that a contract even existed between the parties. Consequently recovery may only be had under the doctrine of quantum meruit. In this regard the evidence at trial is of little assistance. The evidence of cost and value is at best suspect. The value of the addition was viewed in isolation, rather than being viewed in relation to the increased value of the entire existing structure by virtue of the addition. Nevertheless, the evidence of the cost of the existing addition and a three-story addition is unrefuted. Therefore the trial court and the court on review are limited to ruling based on that evidence. Further, the evidence of repairs is uncontested.

Under the doctrine of quantum meruit a quasi-contract, or a contract implied in law, is not based on the apparent intentions of the parties but is an obligation created by law for reasons of justice. (Restatement (Second) of Contracts sec. 4, Comment b (1981).) In order to be successful upon a contract implied in law the plaintiff must prove the performance of services, the reasonable value of those services, and the receipt by the defendant from the plaintiff of a benefit which it would be unjust for him to retain without paying the plaintiff. A contract implied in law, which is equitable in nature, exists only where there is a plain duty and a consideration. O’Neil & Santa Claus, Ltd. v. Xtra Value Imports, Inc. (1977), 51 Ill. App. 3d 11, 365 N.E.2d 316.

In the instant case the plaintiff has proved performance of services. The only evidence of value is the suspect cost evidence that what defendants have now would cost $73,246 to replace. Finally, it is obvious that it would be unfair to allow defendants to retain the benefit conferred on them by plaintiff without paying therefor. The addition constitutes the consideration on the part of plaintiff and results in a duty on the part of the defendants to pay for the addition.

Defendants have paid plaintiff $84,216. Plaintiff conceded that there were approximately $9,000 worth of defects in construction which needed repair. Consequently, after performing the repairs, or paying defendants to have them done, plaintiff would receive approximately $75,000. Quantum meruit means literally that which he deserves. (Black’s Law Dictionary 1408 (4th ed. 1968).) Since the only evidence of the cost of building the addition as it now exists was approximately $73,000 and plaintiff after the cost of repairing defects will have received approximately $75,000, he has received no more than that which he deserves based on the evidence.

For the foregoing reasons I would affirm the judgment of the circuit court of Champaign County, but only on a quantum meruit basis. If the evidence of value were to reveal that the addition has enhanced the entire property more than $73,000 (as may be suspected), I would reverse.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRUCE FEARING, Defendant-Appellant.
    Fourth District
    No. 17291
    Opinion filed November 30, 1982.
    Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender’s Office, of Springfield, for appellant.

      Edmond H. Rees, State’s Attorney, of Carlinville (Robert J. Biderman and Garry W. Bryan, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

This case presents the question whether the defendant’s appeal should be dismissed because it violated a promise that he made as part of a plea agreement. The defendant went to trial and was found guilty by a jury of burglary and felony theft; judgment was entered on the verdicts. The defendant then entered into a plea agreement, which the trial judge accepted, involving the two convictions and six pending charges that arose from the defendant’s escape from custody while awaiting trial; the agreement included the defendant’s promise not to appeal the burglary and theft convictions. The defendant filed an appeal, however. The State moved for its dismissal, and the motion was taken with the case. We now grant the motion and dismiss the appeal.

In accordance with the plea agreement the defendant waived a presentence investigation report and a sentencing hearing and was sentenced to concurrent terms of three and two years’ imprisonment for the burglary and theft. With respect to the six pending charges, No. 81 — CF—38, the defendant pleaded guilty to one, escape, and was sentenced to six years’ imprisonment, to be served consecutively to the first two sentences. The defendant was also ordered to pay costs in both cases. The State dismissed the five remaining charges in No. 81 — CF—38. Finally, the defendant waived his right to appeal the convictions for burglary and theft.

The defendant first argues that no authority justifies dismissing his appeal and that the State is in effect seeking equitable relief, specific performance, but has not alleged the lack of an adequate legal remedy. Although the defendant does not argue that his waiver of appeal per se violates constitutional or other rights, some remarks on that question are in order. Article VI, section 6, of the Illinois Constitution (Ill. Const. 1970, art. VI, sec. 6), grants the right to appeal a criminal conviction — there is no Federal constitutional right to State review of a State conviction (Estelle v. Dorrough (1975), 420 U.S. 534, 43 L. Ed. 2d 377, 95 S. Ct. 1173 (per curiam); McKane v. Durston (1894), 153 U.S. 684, 38 L. Ed. 867, 14 S. Ct. 913). Like other constitutional and statutory rights, however, the right to appeal may be waived, whether by neglect or by conscious choice. In this case the waiver results from the defendant’s promise made as part of a plea agreement. Although uncommon, such a promise does not by itself vioíate constitutional rights. (Staton v. Warden (1978), 175 Conn. 328, 398 A.2d 1176; State v. Gibson (1975), 68 N.J. 499, 348 A.2d 769; contra, People v. Stevenson (1975), 60 Mich. App. 614, 231 N.W.2d 476.) We are not faced with the question of enforcing a defendant’s promise to forego a challenge to the guilty plea, as by a motion to withdraw it.

A plea agreement binds the defendant as well as the State. (People v. White (1972), 5 Ill. App. 3d 205, 282 N.E.2d 467; see In re F.D. (1980), 89 Ill. App. 3d 223, 411 N.E.2d 1200 (delinquent minor).) The State’s failure to fulfill its promise made to induce the defendant’s acceptance of a plea agreement renders the plea involuntary. (Santobello v. New York (1971), 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495; People v. Pier (1972), 51 Ill. 2d 96, 281 N.E.2d 289; People v. Robinson (1978), 66 Ill. App. 3d 601, 384 N.E.2d 420.) Also, charges that have been settled or dismissed may not be reinstated if the defendant has performed his obligations under the terms of the settlement (People v. Johnson (1939), 372 Ill. 18, 22 N.E.2d 683), and a defendant who testifies in exchange for a grant of immunity on a charge may not later be convicted of the charge (People v. Bogolowski (1927), 326 Ill. 253, 157 N.E. 181). By the same token, when a guilty plea is vacated on review and the defendant allowed to plead anew, charges that were dismissed as part of the plea agreement may be reinstated. People v. McCutcheon (1977), 68 Ill. 2d 101, 368 N.E.2d 886.

Plea bargaining is an important and widely used method of the criminal justice system for resolving prosecutions quickly and economically. (Blackledge v. Allison (1977), 431 U.S. 63, 52 L. Ed. 2d 136, 97 S. Ct. 1621; McCutcheon.) Dismissing the appeal will keep the total agreement intact; by appealing, the defendant in effect unravels portions of it. Enforcing the defendant’s promise will carry out the policies that underlie plea bargaining. (Cf. Metropolitan Sanitary District ex rel. O’Keeffe v. Ingram, Corp. (1981), 85 Ill. 2d 458, 426 N.E.2d 860 (agreement not to appeal award of attorney fees in taxpayer’s derivative action violated public policy because unincluded taxpayers were not adequately represented when fees were set).) Thus, unless the defendant can show that the agreement not to appeal was made involuntarily or unintelligently or suffers from some similar infirmity, it may be enforced. Contra, State v. Gibson (1975), 68 N.J. 499, 348 A.2d 769 (holding that the right to appeal a trial conviction may be waived as part of a plea agreement but saying, in dictum, that if a defendant violates his promise and appeals, the better course is to hear the appeal and let the State revoke all its concessions).

The defendant next argues that because his agreement not to appeal the convictions is tantamount to a guilty plea, the trial court should have admonished him about what specific rights were being lost. We conclude that the trial court did that.

The defendant’s agreement not to appeal is not a guilty plea in the technical sense, for the defendant pleaded not guilty to the charges and went to trial. By insulating the convictions from review, however, the agreement operates much like a guilty plea to those charges and is in fact part of one. The trial judge explained to the defendant what rights were being waived by the agreement not to appeal:

“THE COURT: Now in Cause 81 — CF—1 if you were sentenced as has been proposed on June 11th — we will have a sentencing hearing and I don’t know what your sentence would be on that date. On that date if you were sentenced, you would then be advised that you have a right to appeal that decision to the Appellate Court. You would be advised that in Cause 81— CF — 1, the burglary and theft, after you are sentenced you would be advised that you have a right to appeal the sentence, that you have a right to have a lawyer appointed for you to represent you on an appeal, that you have a right to have a copy of the transcript and that a copy would be furnished to you free of charge if you couldn’t afford it and that you would be furnished with an attorney free of charge to represent you in appealing the burglary and theft conviction, 81 — CF—1.
You understand that?
THE DEFENDANT: Yeah.
THE COURT: Now, I have been advised that as part of the plea agreement you are waiving and giving up your right to appeal the jury decision and the jury verdict in 81 — CF—1, is that correct?
THE DEFENDANT: Yeah.
THE COURT: And are you doing that on the basis of this total plea agreement in Cause 81 — CF—1 and 81 — CF—38?
THE DEFENDANT: Yeah.”

The trial judge fully explained to the defendant the appellate rights waived by the agreement. Also, the defendant was represented by counsel. We conclude that the defendant knowingly and voluntarily waived his right to appeal and therefore grant the State’s motion to dismiss the appeal.

Appeal dismissed.

WEBBER and TRAPP, JJ., concur.