author: JUSTICE BARRY

text:
    CAROL S. LARSEN, Plaintiff-Appellee, v. WILLIAM R. LARSEN, Defendant-Appellant.
    Third District
    No. 3—83—0622
    Opinion filed August 17, 1984.
    James Bambrick, of Bambrick & Bambrick, P.C., of Lemont, for appellant.
    Richard B. Orloff, of Joliet, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

The defendant-appellant, William R. Larsen, and the plaintiff-ap-pellee, Carol S. Larsen, were divorced on October 21, 1977. They had one child, a daughter, Christian. The divorce decree, which incorporated a property settlement agreement between the parties, provided that William would be responsible for his daughter’s four-year undergraduate education based on his ability to pay and other statutory requirements. On August 11, 1983, the circuit court of Will County ordered William to contribute $6,000 toward his daughter’s college expenses for the 1983-84 school year. The court reserved for future consideration the issue of contribution for subsequent years. William appeals.

William’s first contention is that the trial court abused its discretion in requiring him to contribute $6,000 toward his daughter’s college expenses, since it only considered his financial resources and not the financial resources of his former wife, Carol. We disagree.

Section 513 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) states that a trial court may provide for the education and maintenance of a child out of the property and income of either or both of the child’s parents as equity may require. In making such awards, the court shall consider all relevant factors, including: the financial resources of both parents, the standard of living the child would have enjoyed had the marriage not been dissolved, and the financial resources of the child. Ill. Rev. Stat. 1983, ch. 40, par. 513.

In the instant case, specific responsibilities were created regarding Christian’s college expenses when the parties entered into the separation agreement which was later incorporated into the divorce decree. This is not a situation where the trial court was faced with the question of college expenses for the first time after the divorce decree was entered. We agree with the trial court that the clear intent of the divorce decree was that William would bear the burden of his daughter’s college expenses if he was financially able to do so. While it is true that no direct testimony was presented regarding Carol’s financial resources, the court stated that it need not consider the financial resources of both parents (section 513(a)), because the decree provided that William should be responsible for the expenses.

We find that the trial court did not abuse its discretion in ordering William to pay $6,000 toward his daughter’s first year of college without directly receiving testimony regarding Carol’s finances. Section 513 specifically states that the court may provide for a child’s education and maintenance out of the property and income of either or both of the child’s parents. Where, as here, the obligation to provide for a child’s college expenses is included in a property settlement agreement which is later incorporated in a divorce decree, that obligation is said to be even more definite and obligatory. Sovey v. Sovey (1975), 30 Ill. App. 3d 690, 692, 333 N.E.2d 299, 301.

William’s second contention is that it was against the manifest weight of the evidence for the trial court to conclude that he had sufficient property and income to contribute $6,000 toward his daughter’s first year of college. We disagree.

Section 513 of the IMDMA states that the court may provide for the education and maintenance of a child out of the property and income of either or both of the child’s parents as equity may require. The record indicates that William and Carol owned a house and property valued at approximately $200,000, of which William was awarded 50%. In addition, William and his present wife own real estate with a net equity of about $40,000; he has stock in a restaurant in which he invested $20,000; and he owns a construction company. On the other hand, William had outstanding loans of $55,000, was personally liable on a $30,000 loan to his construction company, and the company reported a loss of $8,000 in 1983.

We find that it was not against the manifest weight of the evidence for the trial court to conclude that William had sufficient property and income to contribute $6,000 toward his daughter’s first year of college.

William’s third contention is that the trial court erred in not ordering his daughter, Christian, to spend her personal funds to help defray the costs of her college education. We disagree.

Apparently, as of August 11, 1983, Christian had a joint account with Carol with a balance of $10,300. Christian was the sole beneficiary of a trust account with a balance of $7,068, and she had another trust account with a balance of $850. However, children of divorced parents are not required as a matter of law to spend their own funds in obtaining a college education. Rather, the extent of a child’s contribution is left to the trial court’s discretion after it has considered the property, income, and responsibilities of the parents and child. (Flatley v. Flatley (1976), 42 Ill. App. 3d 494, 497, 356 N.E.2d 155, 159.) More importantly, the trial court instructed Christian to apply $1,200, which she had earned working at McDonalds, toward her college expenses for the 1983-1984 school year.

For the foregoing reasons, the order of the circuit court of Will County is affirmed.

Affirmed.

ALLOY, P.J., and STOUDER, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    PIERRE LePAGE, Plaintiff-Appellant, v. WALSH CONSTRUCTION COMPANY, LTD., et al., Defendants-Appellees.
    Third District
    No. 3—83—0510
    Opinion filed August 24, 1984.
    Patrick T. Moos, of Moos, Schmitt & O’Brien, of Peoria, for appellant.
    R. J. Lannon, Jr., and Robert M. Hansen, both of Herbolsheimer, Lan-non, Henson, Duncan & Reagan, P.C., of La Salle, for appellees.
   JUSTICE BARRY

delivered the opinion of the court;

Plaintiff Pierre LePage, an electrician, sustained injuries when he fell from a scaffold on June 9, 1978, at the La Salle County construction site of a nuclear power plant owned by Commonwealth Edison. Plaintiff was employed by H. P. Foley Company, the electrical contractor on the project. Plaintiff brought suit against Commonwealth Edison under the Illinois Structural Work Act (Ill. Rev. Stat. 1979, ch. 48, pars. 60 through 69), and following a jury trial, a verdict was returned in favor of defendant from which plaintiff appeals.

The only issue raised upon appeal is whether the trial court’s error in refusing to admit into evidence the standards of the Occupational Safety and Health Act (OSHA) was prejudicial to plaintiff, thereby requiring a new trial. Only those facts necessary to this issue will be given.

On the day of the accident, plaintiff was installing conduit trays in Reactor 1. To do this work he stood upon a pick (a long aluminium plank) which stretched about 20 feet from a scaffold placed along the east-west wall to the south wall of the reactor. In order to reach the pick, plaintiff used a ladder in the morning, but in the afternoon after lunch he elected to climb the rungs on the east end of the scaffold, since there were welders, welding machines, and leads on the pick between the ladder and the scaffold which obstructed his path. When he reached the top of the scaffold, he attempted to put his right foot onto the plywood platform, when he fell backwards about 10 feet to the concrete floor below. He sustained injuries to his back.

According to the testimony of other witnesses who arrived at the scene soon after plaintiffs fall, the plywood platform on top the scaffold extended over the top rung 12 to 18 inches. No one saw any handrails or guardrails above the platform on the day of the accident. Plaintiff’s foreman' climbed the scaffold immediately after the accident and determined that one plywood plank on the platform was not secured and was loose.

At trial, plaintiff’s expert testified concerning American National Standards Institute (ANSI) standards relating to scaffolds, and he identified those standards as user-created standards. He stated that the scaffold in question did not comply with the applicable ANSI standards. When plaintiff then attempted to introduce into evidence the OSHA standards, the trial court ruled them to be inadmissible since defendant was not plaintiff’s employer. In the court’s memorandum opinion disposing of plaintiff’s post-trial motion, the trial court admitted that its ruling was erroneous and that the OSHA standards were admissible under the law of Illinois, but the court concluded that the error was not prejudicial to plaintiff since the OSHA standards were identical to the ANSI standards which were already in evidence. The trial court then denied plaintiff’s motion for a new trial.

In an earlier case from La Salle County, Avery v. Moews Seed Corn Co. (1971), 131 Ill. App. 2d 842, 268 N.E.2d 561, a truck driver delivering corn to defendant’s plant was injured while helping defendant’s employee with a stalled conveyor belt. The driver filed a negligence action against defendant and, following a jury trial, recovered $39,500 damages. Plaintiff’s attorney was permitted to use two rules promulgated under the Illinois Health and Safety Act for the limited purpose of establishing a standard of conduct applicable to defendant’s plant but not for the purpose of showing that the rules were binding on defendant, since plaintiff was not an employee of defendant. In affirming the trial court, this court ruled that it was appropriate to read the rules into evidence as a basis for establishing a standard of care even though they were not conclusive as to that standard. The same result was reached in Clements v. Schless Construction Co. (1972), 8 Ill. App. 3d 291, 290 N.E.2d 21, where it was held that the Health and Safety Rules were admissible as standards in determining liability under the Structural Work Act even though there was no employer-employee relationship. (See also Darling v. Charleston C.J. Hospital (1965), 33 Ill. 2d 326, 211 N.E.2d 253.) On the basis of these cases, we agree that the trial court here erred in refusing to admit the OSHA rules into evidence even though plaintiff was not an employee of defendant.

Defendant does not deny that the court erred, but rather argues that there was no prejudice to plaintiff because admission of the rules would have been merely cumulative, since the ANSI rules were before the jury and since those rules are identical to the OSHA rules. In a similar situation, this court ruled that the refusal to allow introduction of Health and Safety Rules was prejudicial error. In Pyatt v. Engel Equipment Co. (1974), 17 Ill. App. 3d 1070, 309 N.E.2d 225, the trial court had permitted an expert witness to describe the standards set forth in those rules but not to identify the source of the rules. Justice Stouder, writing for a unanimous court, found the error prejudicial and stated:

“[I]t would be of substantial relevance in evaluating a standard to know the source of the standard as distinguished from the opinion of a single expert.” 17 Ill. App. 3d 1070, 1072, 309 N.E.2d 225, 227.

Similarly, we believe it would be “of substantial relevance” in evaluating the standard to know that its source was a government agency. The ANSI standard had been identified as a user-created standard. Since Commonwealth Edison was not a “user” in the sense of a construction company, the jury could well have been mistaken as to the weight to be given the standard. Evidence that OSHA standards were not met would not have been merely cumulative but would have been helpful to the jury in weighing the evidence. Cf. Grant v. Joseph J. Duffy Co. (1974), 20 Ill. App. 3d 669, 314 N.E.2d 478.

We conclude, therefore, that the trial court erred in denying plaintiff’s motion for a new trial. Prejudicial error occurred during trial which prevented plaintiff from receiving a fair trial. We reverse the judgment of the circuit court of La Salle County and remand for a new trial.

Reversed and remanded.

HEIPLE and STOUDER, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SCOTT A. WISSLEAD, Defendant-Appellant.
    Third District
    No. 3—83—0744
    Opinion filed August 24, 1984.
    Daniel P. Nagan, of Barash, Stoerzbach & Henson, of Galesburg, for appellant.
    John R. Clerkin, State’s Attorney, of Macomb (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

Defendant, Scott Wisslead, was convicted of unlawful restraint, aggravated assault and simple assault (Ill. Rev. Stat. 1981, ch. 38, pars. 10 — 3, 12 — 2 and 12 — 1, respectively) following a jury trial in the circuit court of McDonough County. The court sentenced defendant to concurrent terms of probation of 30 months for unlawful restraint and one year each for aggravated assault and simple assault.

In this appeal, defendant challenges the sufficiency of the information charging him with unlawful restraint; contends that the unlawful restraint statute is unconstitutional; and argues that his convictions for assault and aggravated assault must be vacated as lesser included offenses. The State concedes that assault under section 12 — 1 of the Criminal Code of 1961 is by definition a lesser included offense of aggravated assault under section 12 — 2 (see Ill. Rev. Stat. 1981, ch. 38, par. 2 — 9(a)) and that defendant’s conviction for simple assault must, therefore, be vacated under the rule of People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838. Accordingly, we vacate the assault conviction under section 12 — 1 and consider the remaining disputed issues before us.

The defendant was charged on April 1, 1981, by a two-count information alleging in count I armed violence predicated on unlawful restraint, and in count II, unlawful restraint. Count I was dismissed by the circuit court on grounds that it was unconstitutional as applied. The dismissal was upheld by the supreme court in People v. Wisslead (1983), 94 Ill. 2d 190, 446 N.E.2d 512, and the case was remanded to the circuit court for trial on the remaining count.

In count II, the information alleged that on March 31, 1981, the defendant:

“[K]nowingly without legal authority, detained Nancy Rutledge Wisslead, and did then and there, thereby, commit the offense of UNLAWFUL RESTRAINT, in violation of Chapter 38, Section 10 — 3(a) of the Illinois Revised Statutes.” (Emphasis added.)

The italicized language mirrors the wording of section 10 — 3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 10 — 3).

The defendant argues that the information is insufficient to sustain his conviction because it fails to set forth “the nature and elements of the offense charged” (Ill. Rev. Stat. 1981, ch. 38, par. Ill— 3(a)(3)). Where, as here, the statute allegedly violated is framed in generic language, defendant continues, a complaint merely reciting the statutory definition will fail if its language does not apprise the defendant of the precise offense with which he is charged. In support of his position, defendant urges that we consider People v. Hayes (1979), 75 Ill. App. 3d 822, 394 N.E.2d 80 (complaint framed in language of reckless-conduct statute (Ill. Rev. Stat. 1977, ch. 38, par. 12 — 5) held insufficient), and People v. Lyda (1975), 27 Ill. App. 3d 906, 327 N.E.2d 494 (indictment framed in words of obstructing-justice statute (Ill. Rev. Stat. 1971, ch. 38, par. 31 — 4(a)) held insufficient). While the defendant can point to no reported Illinois cases considering the unlawful-restraint statute in this context, he asks that we analogize the generic nature of the statutory definitions of the offenses considered in Hayes and Lyda to the statutory definition set forth in section 10 — 3.

The State, acknowledging that there are no reported Illinois cases directly on point, contends that the statutory language, “knowingly without legal authority detains another,” sufficiently particularizes the offense so as to apprise the defendant of the precise conduct which allegedly was in violation of the unlawful restraint statute. The State asks us to analogize the information in this case to the instrument upheld as sufficient to charge aggravated kidnaping in People v. Bauer (1969), 111 Ill. App. 2d 211, 249 N.E.2d 859.

Having duly considered the issue presented and the precedents cited by both parties, we find the information fatally defective. The defendant challenged the sufficiency of the information in the trial court via a motion in arrest of judgment. Accordingly, our analysis of this issue, as the parties agree, is guided by the “strict adherence” rule of People v. Lutz (1978), 73 Ill. 2d 204, 383 N.E.2d 171, rather than the more liberal standard of review applicable to challenges raised for the first time on appeal. (See People v. Pujoue (1975), 61 Ill. 2d 335, 335 N.E.2d 437; People v. Deal (1979), 69 Ill. App. 3d 74, 387 N.E.2d 21.) Moreover, as observed by Justice Goldenhersh in Lutz, the strict adherence rule requires that a charging instrument provide greater detail to support a conviction for a choate offense, such as unlawful restraint, than for an inchoate offense, such as attempt or conspiracy.

The narrow question before us is whether count II of the information charging unlawful restraint is sufficiently particularized as to strictly conform with the statutory requirement of section 111— 3(a)(3) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 111 — 3(a)(3)), which mandates that the instrument set forth the “nature and elements” of the offense. “Significance and effect should *** be accorded every *** phrase and word” of a statute, and “[a] statute should be so construed *** that no word *** is rendered meaningless or superfluous.” (People v. Lutz (1978), 73 Ill. 2d 204, 212, 383 N.E.2d 171, 174.) These principles of statutory construction require us to give meaning and effect to both “nature” and “elements” as they are used in section 111 — 3(a)(3). As we see it, the “elements” of unlawful restraint are adequately set forth in the information since they have been lifted directly from the statutory definition of unlawful restraint. Were we to hold, as the State suggests, that the information therefore meets the statutory requirement of setting forth “nature and elements” of the offense, we would render superfluous or meaningless the words “nature” and “and.” The “strict adherence” rule of Lutz (recently reaffirmed in People v. Smith (1984), 99 Ill. 2d 467, 459 N.E.2d 1357) precludes such a result. By failing to describe with particularity any specific act or conduct by the defendant which “detained” the victim, the information fails to set forth the “nature” of this defendant’s alleged commission of the offense of unlawful restraint. Consequently, the defendant’s motion in arrest of judgment should have been granted with respect to that offense.

The defendant has also attacked the unlawful restraint statute on constitutional bases. However, since his conviction of that offense is being reversed, we do not reach the constitutional issues.

Finally, defendant contends that his conviction of aggravated assault must be reversed because aggravated assault is a lesser included offense of unlawful restraint and the conviction was obtained on the basis of the invalid charge of unlawful restraint. The State, on the other hand, argues: (1) that aggravated assault is not by definition a lesser included offense of unlawful restraint since all of the elements of one offense are not included in the other; (2) that the defendant should not be permitted to introduce error into the trial by tendering a jury instruction on a lesser degree offense — in this case, aggravated assault, a Class A misdemeanor — based upon evidence of an inherently related greater degree offense — in this case, unlawful restraint, a Class 4 felony — and then attacking his conviction of the lesser offense on grounds that the charging instrument was defective for the greater degree offense; and (3) that the defendant, in any event, has waived the issue by failing to provide a verbatim transcript of trial proceedings to support his contention that the State relied upon the same act(s) in proving the two offenses.

For the reasons suggested by the State, defendant’s arguments concerning his conviction of aggravated assault fail to persuade. In effect, the defendant is asking us to extend our holding in People v. Dace (1983), 114 Ill. App. 3d 908, 449 N.E.2d 1031 (appeal docketed, No. 58643, cons, with 58658), so as to equate the concept of “inherently related” offenses to that of “lesser included” offenses. We decline to do so precisely to avoid the type of mischief that the second prong of defendant’s argument exposes.

While we have no quarrel with affording the defendant his right to effectively defend himself at trial by instructing the jury on inherently related lesser degree offenses supported by the evidence (People v. Dace (1983), 114 Ill. App. 3d 908, 449 N.E.2d 1031), neither the issue presented in Dace nor our reasoning therein mandate that the “lesser included” doctrine be thereby subsumed by the broader “inherent relationship” analysis applied in Dace. Our holding in Dace finds its constitutional underpinnings in a defendant’s right to stand convicted of an offense only if the State produces proof of each element beyond a reasonable doubt. By giving a defense-tendered jury instruction on inherently related, lesser-degree offenses, the defendant stands to derive the full benefit of the reasonable-doubt standard; but, at the same time, he runs the risk inherent in giving the jury a “third option” in addition to the conviction/acquittal decision to be made on the charged offense.

In the instant case, in addition to the State-tendered instruction on unlawful restraint (Illinois Pattern Jury Instructions (IPI), Criminal, Nos. 8.06 through 8.07 (2d ed. 1981)), the defendant tendered jury instructions on aggravated assault, simple assault and battery (IPI Criminal Nos. 11.01 through 11.06 (2d ed. 1981)). The jury found the defendant guilty of unlawful restraint, assault, and aggravated assault. The jury acquitted the defendant of battery. Although the defendant argues that his convictions of aggravated assault and unlawful restraint were both carved from the same act, we cannot agree. The record on appeal consists of the common law record alone. Without a transcript of the trial proceedings, we must presume that the trial court correctly concluded that the defendant’s convictions of unlawful restraint and aggravated assault did not violate the rule in King. As the State correctly asserts, one offense is not, by definition, a lesser included offense of the other.

Obviously, the defendant cannot complain of lack of notice of a charge against him which he has introduced into his own trial through, jury instructions. Since, as we have earlier determined, the defendant’s convictions of simple assault and unlawful restraint are vacated, the defendant cannot claim prejudice for multiple convictions and sentences. Under these circumstances, we find no constitutional infirmity in affirming the defendant’s aggravated assault conviction and sentence, even though count II of the information — unlawful restraint— the only count remaining at the time of defendant’s trial — was legally insufficient to sustain a conviction for that offense.

For the foregoing reasons, we reverse and vacate the defendant’s convictions and sentences for unlawful restraint and assault, and we affirm the defendant’s conviction of aggravated assault. A resentencing hearing is not necessary, since there is no indication that the sentencing judge may have been influenced by the vacated convictions in determining the punishment for aggravated assault.

Reversed in part; vacated in part; affirmed in part.

HEIPLE and SCOTT, JJ., concur.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. TIMOTHY C. McCOLLINS, Defendant-Appellee.
    Third District
    No. 3—83—0822
    Opinion filed August 24, 1984.

      Edward E Petka, State’s Attorney, of Joliet (John X. Breslin and Gerry R. Arnold, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Kenneth A. Grnacek, of Joliet, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant-appellee, Timothy C. McCollins, was arrested for and charged with the offenses of driving under the influence of alcohol and improper lane usage. Prior to trial, the defendant filed a motion in limine requesting the trial court to prohibit the State from offering any evidence of an alleged refusal by him to submit to a breath analysis after his arrest. The motion alleged that at an earlier implied consent hearing, the trial judge ruled in his favor and thus refused to suspend his license. The trial court granted the defendant’s motion, and the State appeals.

On appeal, the State contends that the trial court erred when it held that the ruling at the implied consent hearing of necessity required that, at the criminal trial for the offense of driving while under the influence of alcohol, evidence of the defendant’s refusal to submit to a breath analysis be suppressed without considering the reasons for the ruling at the implied consent hearing. However, for the reasons set out below, we need not address this issue.

On the court’s motion, we instructed the State to show why the order of the trial court granting the defendant’s motion in limine is appealable. Supreme Court Rule 604(a)(1) provides in pertinent part that “[i]n criminal cases the State may appeal only from an order or judgment the substantive effect of which results in *** suppressing evidence.” (87 Ill. 2d R. 604(a)(1).) Pursuant to this rule, the State may appeal “a pretrial suppression order whenever the prosecutor certifies to the trial court that the suppression substantially impairs the State’s ability to prosecute the case.” (Emphasis added.) People v. Young (1980), 82 Ill. 2d 234, 247, 412 N.E.2d 501, 507.

Citing Young, the State argues that Supreme Court Rule 604(a)(1) allows it to appeal the trial court’s order simply upon certification that its ability to prosecute this case has been substantially impaired as a result of the trial court’s order. It maintains that nothing besides certification is required. We agree that Young requires the State to file a certification and that the State has done so here. However, the certification must relate to an order which is appealable pursuant to Rule 604(a)(1). On the facts in this case, the State may appeal only if the substantive effect of the trial court’s order which granted the defendant’s motion in limine was to suppress evidence. If not, then the order does not become appealable simply because the State certified that its ability to prosecute is substantially impaired.

As the Illinois Supreme Court has recognized, defining that which constitutes an order of suppression and determining whether a trial court’s ruling falls within that definition is a difficult task. (People v. Young (1980), 82 Ill. 2d 234, 412 N.E.2d 501.) In the context of Supreme Court Rule 604(a)(1), a distinction must be made between the suppression of evidence and the exclusion of evidence. This distinction is not merely semantic. Rule 604 was not intended to give the State the right to appeal from every ruling excluding evidence offered by the State. (People v. Van De Rostyne (1976), 63 Ill. 2d 364, 368, 349 N.E.2d 16, 19.) It is suppression orders, as distinguished from evidentiary rulings, that are appealable under the rule. People v. Flatt (1980), 82 Ill. 2d 250, 258, 412 N.E.2d 509, 513.

Historically, the State was not allowed to appeal in criminal cases. (People v. Young (1980), 82 Ill. 2d 234, 238, 412 N.E.2d 501, 503; Ill. Rev. Stat. 1874, ch. 38, par. 427.) Today, the State’s right to appeal under the rule includes, but is not limited to, cases involving illegally seized evidence and involuntary confessions. (People v. Carlton (1983), 98 Ill. 2d 187, 190, 455 N.E.2d 1385, 1386.) Yet, the State may not appeal trial court rulings based solely on the grounds of relevancy or materiality or hearsay. People v. Johnson (1983), 113 Ill. App. 3d 367, 374, 447 N.E.2d 502, 506.

In this case, the defendant requested that the court prohibit the State from offering any evidence of an alleged refusal to submit to a breath analysis by means of a motion in limine. Such motions are generally said to relate to evidentiary matters. (People v. Flatt (1980), 82 Ill. 2d 250, 266, 412 N.E.2d 509, 517.) As stated above, it is suppression orders, not evidentiary rules, that are appealable under the rule. We find that the trial court’s order which granted the defendant’s motion in limine is not a suppression order as that term is used in Supreme Court Rule 604(a)(1) and, therefore, is not appealable.

For the foregoing reasons, this appeal is dismissed.

Appeal dismissed.

ALLOY, P.J., and SCOTT, J., concur.


author: JUSTICE ROMITI

text:
    MARGARET QUEL, Plaintiff and Counterdefendant-Appellee, v. CHARLES HANSEN et al., Defendants and Counterplaintiffs-Appellants.
    First District (4th Division)
    No. 83—2675
    Opinion filed August 16, 1984.
    Allen I. Brown, of Allen I. Brown, Ltd., of Chicago, for appellants.
    Scott Michael Alexander, of Chicago, for appellee.
   JUSTICE ROMITI

delivered the opinion of the court:

Defendants-appellants Charles Hansen and Geraldine Splitt appeal from an order of the circuit court of Cook County in a forcible entry and detainer action awarding possession of a townhouse leased by appellants and damages of $4,275 for unpaid rent.to plaintiff-appellee Margaret Quel, the lessor. The sole issue on appeal is whether the trial court erred in barring appellants from adducing evidence seeking to establish as an affirmative defense to this action based on nonpayment of rent that appellee Quel had breached an agreement to give defendants rent credit for services performed by Hansen for Quel.

We hold that this was germane evidence which was improperly excluded and we reverse and remand for a new trial.

Defendants leased a townhouse from plaintiff pursuant to a lease with a term apparently extending from May 1, 1981, to April 30, 1983. (The lease is not included in the record on appeal and some testimony in the trial transcript suggests that the lease expired April 30, 1982, with month-to-month payments made after that until August 1982.) In June 1983, plaintiff Quel filed a forcible entry and detainer action against defendants requesting possession and $4,275 for rent allegedly not paid from August 1982 to May 1983. Defendants filed a pleading captioned “Answer and Counterclaim.” That pleading also contained a section captioned “Further Defense,” in which defendants alleged that the parties to the lease had mutually agreed that defendant Hansen would become building manager and caretaker of premises leased by plaintiff, in consideration for which plaintiff had agreed to grant Hansen rent credit. It was further alleged that defendant Hansen had fully performed but plaintiff had refused to give him the rent credit. In the counterclaim, apparently based on this same agreement, defendants specified that Hansen was to have been compensated at the rate of $5 per hour plus $5,000 in agreed-upon stock and 4% of the gross rental of certain property leased by plaintiff in Palos Heights. The property leased to defendants was in Palos Hills. According to the counterclaim, none of this money had been paid to defendant Hansen, and defendants sought payment of $8,562.60 (including $5,000 for the stock) plus 4% of the gross rentals. This counterclaim was stricken on plaintiff’s motion, and no issue concerning it has been raised on appeal.

Defendants concede that at the trial on this matter it was established that they had not paid to plaintiff $4,275 in accrued rentals. However, it is also clear from the record that the trial court did not permit defendants to present any significant amount of evidence concerning their affirmative defense that they were entitled to rent credit. Plaintiff has noted several isolated instances in which fragmentary evidence on this issue was permitted by the trial court, but our review of the record establishes that the court determined that such evidence would not be considered and that defendants’ claim was not germane to this trial and would have to be raised in a separate action.

Section 9 — 106 of the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1983, ch. 110, par. 9 — 106) provides:

“Pleadings and evidence. On complaint by the party or parties entitled to the possession of such premises being filed in the circuit court for the county where such premises are situated, stating that such party is entitled to the possession of such premises (describing the same with reasonable certainty), and that the defendant (naming the defendant) unlawfully withholds the possession thereof from him, her or them, the clerk of the court shall issue a summons.
The defendant may under a general denial of the allegations of the complaint offer in evidence any matter in defense of the action. No matters not germane to the distinctive purpose of the proceeding shall be introduced by joinder, counterclaim or otherwise. However, a claim for rent may be joined in the complaint, and judgment may be entered for the amount of rent found due.”

In support of the trial court’s determination that defendants’ affirmative defense was not germane to this action for possession and rent, plaintiff primarily relies on two Illinois appellate court cases involving actions brought solely for possession in which the courts narrowly construed what was germane to those actions. Thus defendant cites Sauvage v. Oscar W. Hedstrom Corp. (1944), 322 Ill. App. 427, 54 N.E.2d 725, a forcible entry and detainer action in which only possession was sought and obtained. The defendant in that cause contended on appeal that the trial court erred in not permitting evidence on a counterclaim in which the defendant alleged he had heated the plaintiff’s garage on the leased premises and was due a sum in excess of the rent allegedly due the plaintiff. After noting that plaintiff had not sought a judgment for rent and that defendant’s actions in heating the garage were purely gratuitous, the court held that in an action for forcible entry and detainer no cross-demand in the nature of recoupment could be introduced, as the sole issue was the right to possession of the leased premises. Sauvage was cited with approval in Peoria Housing Authority v. Sanders (1973), 2 Ill. App. 3d 610, 276 N.E.2d 496, also relied on by plaintiff, in which the appellate court held that in a forcible entry and detainer action brought solely for possession the defendant could not raise by counterclaim the issue of whether her tender of rent had been improperly refused. The appellate court held that such a claim was not germane to the forcible entry and detainer action, as the sole question involved was the right to possession. What plaintiff has failed to note is that Peoria was reversed on appeal by our supreme court in a holding which also appears to have overruled, sub silentio, the holding of Sauvage. (Peoria Housing Authority v. Sanders (1973), 54 Ill. 2d 478, 298 N.E.2d 173.) The court noted that in Jack Spring, Inc. v. Little (1972), 50 Ill. 2d 351, 280 N.E.2d 208, it had held that in an action brought solely for possession the defendants’ affirmative defenses alleging damages arising from the breach of express covenants to repair were germane to the crucial issue of whether rent was due. The Peoria court followed this reasoning in holding that:

“*** when an action for possession is based upon nonpayment of rent, the question whether the defendant owes rent to the plaintiff is germane, whether or not the plaintiff seeks judgment for the rent that he says is due.” Peoria Housing Authority v. Sanders (1973), 54 Ill. 2d 478, 483, 298 N.E.2d 173, 175.

In this cause, it is even clearer that the issue of rent credits was germane, because the plaintiff also sought and obtained a judgment for rent allegedly due. Thus, the trial court erred in barring defendants from attempting to establish that such rent was not due because of rent credits to which they were entitled. Peoria Housing Authority v. Sanders (1973), 54 Ill. 2d 478, 298 N.E.2d 173; Fisher v. Holt (1977), 52 Ill. App. 3d 164, 367 N.E.2d 370; Richardson v. Wilson (1977), 46 Ill. App. 3d 622, 361 N.E. 2d 110.

For the foregoing reasons the judgment of the trial court is reversed and the cause remanded for a new trial.

Reversed and remanded.

LINN, P.J., and JOHNSON, J., concur.


author: PRESIDING JUSTICE LINN

text:
    RONALD D. MORROW et al., Plaintiffs-Appellants, v. L. A. GOLDSCHMIDT ASSOCIATES, INC., et al., Defendants-Appellees.
    First District (4th Division)
    No. 83—2119
    Opinion filed August 16, 1984.

      Siegan, Barbakoff, Gomberg, Gordon & Elden, Ltd., of Chicago (Steven P. Gomberg and James A. Reiman, of counsel), for appellants.
    Ash, Anos, Freedman & Logan, of Chicago (Bruce T. Logan, George J. Anos, and James L. Glass, Jr., of counsel), for appellee First Charter Service Corporation.
    Gordon & Glickson, P.C., of Chicago, for appellees L. A. Goldschmidt Associates, Inc., and American National Bank.
   PRESIDING JUSTICE LINN

delivered the opinion of the court:

Plaintiffs, purchasers of townhomes, brought an 11-count complaint against defendants, designer/builder/vendors, alleging breach of express warranty and breach of implied warranty of habitability, and requesting punitive damages. Counts VIII through XI, requesting punitive damages for wilful and wanton misconduct by defendants, were dismissed with prejudice. The remaining counts were sustained.

Plaintiffs now appeal the dismissal of counts VIII through XI.

We reverse the decision of the trial court and remand with directions to reinstate counts VIII through XI.

Facts

Plaintiffs alleged the following facts in their third amended complaint. Defendant, L. A. Goldschmidt Associates, Inc., is an Illinois corporation engaged in the construction business. Defendant Leo A. Goldschmidt is a contractor and developer, and defendant First Charter Service Corporation (First Charter) is a bank service corporation. In 1976, these defendants jointly purchased a parcel of land in Palos Park, Illinois, and placed title to the property in defendant American National Bank, as land trustee.

Defendants Goldschmidt Associates, Leo A. Goldschmidt and First Charter formed a business entity known as The Commons of Palos Park (Commons). The Commons planned, designed and constructed a residential housing project in Palos Park known as “The Commons, Phase I,” consisting of single-family townhomes and condominiums. The homes ranged in price from over $70,000 to over $90,000.

Plaintiffs contracted with the Commons, agent for the trustee, to purchase four of the townhomes in the development. These purchase contracts were entered into prior to the completion of the construction of the homes. Closings on plaintiffs’ transactions respectively occurred on December 29, 1978 (Morrow), December 15, 1978 (Strenk), February 27, 1979 (Majchrzak and Kukulka), and July 21, 1978 (Lev-ings).

At the time of each closing, the Commons executed an express warranty with the purchaser which provided that for a period of one year from the date of the execution of the warranty, the Commons would, among other things:

A. Correct all structural defects due to faulty construction and/or defective materials;
B. Warrant the basement to be waterproof and free from infiltration of water from penetration through the walls or floors;
C. Warrant the roof and roof flashings to be free from leaks; and
D. Warrant all plumbing to be in proper working order and free from all defects of workmanship and/or materials.

Both the sales contracts and the express warranties were made part of the pleadings.

Plaintiffs allege that at the time the townhomes were conveyed to them by defendants, numerous and substantial structural defects and contract variances were present. Several such defects are common to each home purchased: these include floors improperly supported due to lack of or improper installation of the floor support system, non-functioning of the reverse osmosis water system, and defective carpentry. In addition to these common defects, plaintiffs allege other defects particular to each home: these include extraordinary flooding and water leakage in the basement; roofs incapable of supporting design loads; gas and water leaks resulting from improperly fitted fixtures; sump pumps connected in violation of the Palos Park Municipal Sanitary Code; and malfunctioning of the heating/ventilation system.

Plaintiffs further allege that defendants had actual knowledge of these defects. In factual support of this allegation, plaintiffs refer to letters, made part of the pleadings, informing defendants of various building and code violations. In a letter dated September 11, 1978, authored by the building inspector of the village of Palos Park and hand delivered by the police to the construction manager of the Commons, defendants were informed that the “workmanship [of the Commons] was extremely bad” and that there were code violations, some of which included:

“1. Floors not level
2. Supports foundation to plate, wedging not acceptable.
3. Lack of support under some floor areas.
4. Part of fire wall missing
5. Steel support beams resting on wooden blocks and wedges or a piece of brick. Should have steel plate and mortar.
and many other items I discussed with you ***.”

In another letter dated June 5, 1978, the chief engineer of the Metropolitan Sanitary District of Greater Chicago informed the mayor of Palos Park, with a copy to defendants, that the sewer system serving one of plaintiffs’ homes was improperly installed such as to be substantially below minimum grade. Still another letter dated September 1978, authored by a building inspector for the village of Palos Park and addressed to Palos Commons with copies to defendants, admonishes the Commons that it has been repeatedly notified to correct certain deficiencies and that occupancy is not to be allowed until permits have been issued subsequent to such correction. The admonition informs defendants that “[fjailure to comply will result in a complete order to stop all construction and the posting of non occupancy notices on all buildings.”

Plaintiffs further allege that they provided oral and/or written notice of the defects to defendants and made demands to repair all defects in accordance with the provisions of the warranties and that defendants, despite repeated demands by plaintiffs and actual "knowledge of the defects, have failed to correct and cure them.

In counts VIII through XI, plaintiffs request punitive damages for “wilful and wanton” misconduct as evidenced by defendants’ failure to supervise the construction of the homes and to determine the competency of their agents; defendants’ failure to inspect, attempt to detect and correct construction defects, reinspect, and search for similar defects in light of defendants’ actual knowledge. Within each of these counts, plaintiffs enumerate in substantial detail the specific defects particular to each home.

Pursuant to the Code of Civil Procedure, section 2 — 619 (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 619), defendants moved to strike and dismiss plaintiffs’ third amended complaint. In an order dated April 11, 1983, the trial court dismissed with prejudice counts VIII through XI, those counts seeking punitive damages for wilful and wanton misconduct. The order was certified for appeal.

Plaintiffs now appeal the dismissal of those counts.

Opinion

In determining the propriety of a dismissal based on a motion to dismiss, the appellate court is concerned only with questions of law presented by the pleadings. (Circle Security Agency, Inc. v. Ross (1981), 99 Ill. App. 3d 1111, 425 N.E.2d 1283.) The question presented by the instant appeal is whether plaintiffs state a claim for an award of punitive damages, generally a form of tort recovery, where the action brought sounds in contract, and the actual damages alleged reflect economic loss.

Defendants point out, and correctly so, that the general rule in Illinois precludes the recovery of punitive damages in an action for breach of contract. (Ash v. Barrett (1971), 1 Ill. App. 3d 414, 274 N.E.2d 149) Defendants quote Alsip Homebuilders, Inc. v. Shusta (1972), 6 Ill. App. 3d 65, 69, 284 N.E.2d 509, 512, to explain the reasoning behind this rule:

“The theory behind this rule rests upon a distinction drawn between compensation and punishment. If the general purpose underlying the law of damages is to promote security and prevent disorder, as Corbin points out, and breaches of contract do not cause as much resentment or other physical or mental discomfort as do wrongs called torts or crimes, then the remedies needed to prevent breaches of contract and satisfy the injured party are not as severe as those needed to punish the tort feasor or criminal.”

Out of this very reasoning emerges the exception to the general rule. The general rule denying punitive damages for breach of contract does not apply in those exceptional cases where the breach amounts to an independent tort and there are proper allegations of malice, wantonness or oppression. (Wallace v. Prudential Insurance Co. of America (1973), 12 Ill. App. 3d 623, 299 N.E.2d 344.) In such cases, the allowance of punitive damages is actually for the tort, or, more precisely, for the defendants’ culpable state of mind (D. Dobbs, Remedies sec. 3.9, at 207 (1973)) and the motive and conduct with which the tort was committed. (St. Ann’s Home for the Aged v. Daniels (1981), 95 Ill. App. 3d 576, 420 N.E.2d 478.) To support the existence of an independent tort, plaintiffs must allege facts which would bring their claim for punitive damages under any recognized tort theory. Illinois Sterling, Inc. v. KDI Corp. (1975), 33 Ill. App. 3d 666, 338 N.E.2d 51.

In the instant case, the tort theory asserted by plaintiffs to justify the award of punitive damages is wilful and wanton misconduct. The trial court found that wilful and wanton misconduct is not an.independent tort. Our research persuades us otherwise.

Wilful and wanton misconduct is essentially the separate tort of aggravated negligence. Dean Prosser explains:

“A different approach, at least in theory, looks to the actor’s real or supposed state of mind. Lying between intent to do harm, which *** includes proceeding with knowledge that the harm is substantially certain to occur, and the mere unreasonable risk of harm to another involved in ordinary negligence, there is a penumbra of what has been called ‘quasi intent.’ To this area the words ‘wilful,’ ‘wanton,’ or ‘reckless,’ are customarily applied *** They have been grouped together as an aggravated form of negligence, differing in quality rather than in degree from ordinary lack of care. *** They apply to conduct which is still merely negligent, rather than actually intended to do harm, but which is so far from a proper state of mind that it is treated in many respects as if it were so intended. Thus, it is held to justify an award of punitive damages, and may justify a broader duty, and more extended liability for consequences ***.” (Prosser, Torts sec. 34, at 184 (4th ed. 1971).)

Consistent with Prosser’s explanation is our supreme court’s discussion of the necessary elements of a wilful and wanton act:

“ '*** 111 will is not a necessary element of a wanton act. To constitute an act wanton, the party doing the act or failing to act must be conscious of his conduct, and, though having no intent to injure, must be conscious, from his knowledge of the surrounding circumstances and existing conditions, that his conduct will naturally and probably result in injury. An intentional disregard of a known duty necessary to the safety of the person or property of another, and an entire absence of care for the life, person or property of others, such as exhibits a conscious indifference to consequences, makes a case of constructive or legal wilfulness.’ ” Chmiel v. Pierce (1973), 9 Ill. App. 3d 130, 132-33, 291 N.E.2d 862, 864, quoting Bartolucci v. Falleti (1943), 382 Ill. 168, 46 N.E.2d 980.

The standard for wilful and wanton negligence or misconduct was more recently reiterated in Lynch v. Board of Education (1980), 82 Ill. 2d 415, 412 N.E.2d 447, and in O’Brien v. Township High School District 214 (1980), 83 Ill. 2d 462, 415 N.E.2d 1015. Defendants attempt to distinguish Lynch because it concerned judgment on a general verdict rather than sufficiency of a complaint, and O’Brien because it involved the statutorily mandated standard of conduct for personal injury suits against school districts, not contract actions.

These features, rather than rendering the definitions of wilful and wanton misconduct set forth in these cases inapplicable, merely illustrate a point raised by the Lynch court itself; namely, that the rule of law (regarding what constitutes wilful and wanton misconduct) does not vary although the facts to which the law is applicable always present divergent circumstances and facts which, in most instances, are wholly dissimilar. (Lynch v. Board of Education (1980), 82 Ill. 2d 415, 412 N.E.2d 447.) Moreover, wilful and wanton misconduct may be found to exist as an independent tort where there is no personal injury involved. Thus, in Wolinsky v. Kadison (1983), 114 Ill. App. 3d 527, 449 N.E.2d 151, the court found that plaintiff, who alleged that the condominium board’s exercise of the right of first refusal regarding the purchase of a condominium unit was in wilful and wanton disregard of the bylaws of the condominium association, adequately alleged that the board members were guilty of wilful and wanton misconduct. Finding that plaintiff had sufficiently described the actions of the board members and sufficiently informed them of her claim that the actions were intentional or taken with reckless disregard of her rights, the court reversed the trial court’s dismissal of that count. There was no personal injury involved.

Based on the foregoing analysis and the applicable case law, we acknowledge the independent tort of wilful and wanton misconduct, different in kind from both ordinary and gross negligence (O’Brien v. Township High School District 214 (1980), 83 Ill. 2d 462, 415 N.E.2d 1015) in the state of mind required, and justifying the award of punitive damages where attendant circumstances of aggravation, as evidenced by a conscious and deliberate disregard for the rights or safety of others, are present. Prosser, Torts sec. 2, at 10 (4th ed. 1971).

Having found valid the tort of wilful and wanton misconduct or aggravated negligence, we must now determine whether in this case plaintiffs have alleged facts sufficient to convert a complaint for breach of contract into a complaint alleging this tort.

A motion to dismiss accepts all well-pleaded facts as true, as well as all reasonable inferences favorable to the nonmoving party which can be drawn from those facts. (Browder v. Hanley Dawson Cadillac Co. (1978), 62 Ill. App. 3d 623, 379 N.E.2d 1206.) While ultimate facts necessary to support an action must be alleged, the pleader need not set forth evidence which very well may be derived from discovery subsequent to the filing of the complaint. Ingram v. Little Company of Mary Hospital (1982), 108 Ill. App. 3d 456, 438 N.E.2d 1194.

A complaint for wilful and wanton misconduct is sufficient if-its allegations establish reckless disregard for plaintiffs’ safety. (O’Brien v. Township High School District 214 (1980), 83 Ill. 2d 462, 415 N.E.2d 1015.) While the measure of punitive damages for wilful and wanton misconduct is a question for the fact finder, the preliminary question of whether the facts alleged support the claim is properly one of law. Pendowski v. Patent Scaffolding Co. (1980), 89 Ill. App. 3d 484, 411 N.E.2d 910.

Plaintiffs have alleged, in substantial detail, defendants’ responsibility for and total failure to cure certain defects in plaintiffs’ home which threaten their health and safety. We cannot conclude, as a matter of law, that there is no evidence under these facts that could prove wilful and wanton misconduct, or that the allegations of the complaint, either singularly or in combination, are insufficient to establish defendants’ reckless disregard for plaintiffs’ safety. (O ’Brien v. Township High School District 211 (1980), 83 Ill. 2d 462, 415 N.E.2d 1015.) Because of the necessity to closely scrutinize the facts of each case alleging wilful and wanton misconduct, plaintiffs should be allowed to present evidence in support of their allegations.

In addition, defendants’ motion to dismiss was brought pursuant to Code of Civil Procedure section 2 — 619, apparently under subsection (a)(9), which allows for dismissal of an action based on the assertion of affirmative matter that avoids the legal effect of or defeats the claim. (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 619(a)(9).) The alleged affirmative matter asserted to defeat the claim or demand must be something more than evidence offered to refute a well-pleaded fact in the complaint, and must negate the cause of action completely or refute crucial conclusions of law or conclusions of material fact unsupported by allegations of specific fact contained in or inferred from the complaint. Russo v. Boland (1982), 103 Ill. App. 3d 905, 431 N.E.2d 1294.

Defendants, in their motion to dismiss, attempt to refute plaintiffs’ conclusions of law by asserting that, absent allegations of physical injury, a breach of contract action cannot support an award of punitive damages. Defendants largely base this assertion on Album Graphics, Inc. v. Beatrice Foods, Inc. (1980), 87 Ill. App. 3d 338, 408 N.E.2d 1041, and Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443. We will distinguish each of these cases in turn.

In Album Graphics, plaintiff corporation, in the business of manufacturing and designing cosmetic containers, brought an action alleging breach of express and implied warranty, negligence, and fraud against defendant glue manufacturer when the cosmetic packages plaintiff sold to its customer fell apart. The appellate court reversed the trial court’s dismissal of the warranty counts but let stand the dismissal of the negligence count.

In explaining its affirmance of the dismissal of the negligence count, the reviewing court phrased the issue before it as whether a plaintiff can recover purely economic losses for the failure of a defendant to carefully perform duties imposed upon it by contract: “In other words, the issue is whether we should recognize a cause of action in negligence to recover purely contractual remedies for breach of contract.” (Album Graphics, Inc. v. Beatrice Foods, Inc. (1980), 87 Ill. App. 3d 338, 349, 408 N.E.2d 1041, 1049.) The court went on to conclude that the law does not consider breach of contract tortious or wrongful and that fault is irrelevant to a breach of contract action.

The issue in the instant case is clearly not that addressed in Album Graphics. A faulty cosmetic container can hardly be compared to potentially life threatening defects resulting in substandard homes. Moreover, the tort alleged here is not negligence, it is wilful and wanton misconduct. A cause of action based upon conduct which is wilful and wanton differs fundamentally in both its nature and its legal consequences from a cause of action based on negligence. (Nosko v. O'Donnell (1931), 260 Ill. App. 544.) An action based on negligence and carelessness and one based upon wilfulness and wantonness are independent and diverse causes of action that proceed from different principles. (Robbins v. Illinois Power & Light Corp. (1929), 255 Ill. App. 106.) Negligence and wilfulness are as unmixable as oil and water: “Wilful negligence” is as self-contradictory as “guilty innocence.” (Prosser, Torts sec. 34, at 184 n.79 (4th ed. 1971).) In situations of wilful and wanton misconduct, defendant’s conduct operates as a breach, not only of the contract, but also of a duty imposed by law. D. Dobbs, Remedies sec. 3.9, at 207 (1973).

In the tort of wilful and wanton misconduct, it is exactly defendant’s state of mind which is at issue, and it is his conscious and reckless disregard for the rights or safety of others that is being punished, not the breach of contract. (Anvil Investment Limited Partnership v. Thornhill Condominiums, Limited (1980), 85 Ill. App. 3d 1108, 407 N.E.2d 645.) The exception to the general rule denying punitive damages for breach of contract only comes into play in the face of a wilful tort, for it is this wilfulness which society, via the court, seeks to punish. (Ash v. Barrett (1971), 1 Ill. App. 3d 414, 274 N.E.2d 149.) The purpose of punitive damages is to punish a defendant so as to teach him not to repeat his intentional, deliberate, and outrageous conduct, and to deter others from similar conduct. (Anvil Investment Ltd. Partnership v. Thornhill Condominiums, Ltd. (1980), 85 Ill. App. 3d 1108, 407 N.E.2d 645.) For these reasons, we find that Album Graphics does not control the case at bar.

We find Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443, similarly inapposite. In Moor-man, plaintiff purchased a bolted-shell grain-storage tank from defendant manufacturer. A crack developed in one of the steel plates on the second ring of the tank. Plaintiff attempted to recover in tort, arguing that the defect posed an extreme threat to life, limb, and property. The court ruled that to recover in negligence there must be a showing of harm above and beyond disappointed expectations and that a buyer’s desire to enjoy the benefit of his bargain is not an interest that tort law traditionally protects. The court concluded that plaintiff only suffered a commercial loss of the type the law of warranty was designed to protect and held that there can be no strict liability in tort for economic loss. The court further held that this restriction on tort recovery for economic loss applied with equal force to negligence actions.

As did Album Graphics, Moorman addressed negligence for latent defects in products. In Moorman a gradual deterioration caused by a latent defect resulted in the eventual crack in a single tank. Here, plaintiffs allege substantial design and construction defects, present in not one but four separate homes, many of which were patent, and of which defendants were aware and failed to cure despite repeated requests, in conscious disregard of plaintiffs’ safety. What we are dealing with here is the conscious disregard of a known risk and a displayed indifference to the consequences of that risk. It is this highly unreasonable, antisocial conduct that here gives rise to the tort of wilful and wanton misconduct as opposed to the strict liability of Moorman. Moorman does not involve the concept of fault nor the goals of punishment and deterrence; it involves economic loss. For these reasons, the reasoning and the prohibition of Moorman do not apply to the instant case.

Counts VIII through XI contain detailed factual allegations of the potentially life-threatening structural defects present in plaintiffs’ homes, defendants’ actual knowledge of those defects, plaintiffs’ repeated demand for cure of those defects, and defendants’ continued failure to cure them, in conscious disregard for human safety. Defendants have failed to negate the legal conclusion that punitive damages may lie in a breach of contract action where the facts alleged give rise to an independent wilful tort. Because wilful and wanton misconduct is an independent wilful tort, we hold that counts VIII through XI of plaintiffs’ complaint, based on wilful and wanton misconduct, are sufficient to withstand defendants’ motion to dismiss.

Accordingly, we reverse the decision of the trial court and remand with directions to reinstate counts VIII through XI.

Reversed and remanded.

JOHNSON and ROMITI, JJ., concur.


author: JUSTICE McGILLICUDDY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HERMAN E. PRICE, Defendant-Appellant.
    First District (3rd Division)
    No. 83—1792
    Opinion filed August 15, 1984.
    James J. Doherty, Public Defender, of Chicago (Jeffrey M. Howard and Frank P. Madea, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Jeanette Sublett, and David A. Izzo, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

Following a jury trial, defendant was convicted of retail theft (Ill. Rev. Stat. 1981, ch. 38, pars. 16A—3(a), 16A—10(2)). Subsequently, he was sentenced to a term of three years’ incarceration. On appeal, the issue is whether, in order to obtain the enhanced penalty contained in section 16A—10(2), the State, in presenting its case to the trier of fact, must prove that the alleged offense was a second or subsequent offense of retail theft.

A summary of the evidence presented at trial is as follows: On November 12, 1982, two security officers employed at Carson Pirie Scott & Company, located at One South State Street in Chicago, observed defendant place certain merchandise from a cosmetic counter into a bag he carried. Upon stopping defendant, they searched the bag and recovered several bottles of cologne valued at $68.

The trial court relied upon People v. Hayes (1981), 87 Ill. 2d 95, 429 N.E.2d 490, in reaching its decision to allow the State to present evidence regarding defendant’s prior conviction for retail theft during the sentencing hearing instead of during trial proceedings as defendant requested. During trial proceedings and in his brief, defendant rejected People v. Hayes and maintained that the line of opinions more recently evidenced by People v. Palmer (1983), 120 Ill. App. 3d 707, 458 N.E.2d 1044, appeal allowed (1984), 99 Ill. 2d 533, should be followed. While both cases involve the question of whether evidence of a defendant’s prior felony conviction should be presented before the trier of fact or sentencing judge, we believe that defendant’s reliance on People v. Palmer is misplaced.

In People v. Hayes (1981), 87 Ill. 2d 95, 429 N.E.2d 490, defendant was convicted of retail theft of less than $150 after a bench trial. The information, in three counts, charged three separate instances of retail theft, but did not state whether the offense charged was a misdemeanor or a felony. When defendant first appeared before the trial court, she was advised that the State would seek a felony conviction. Also, during trial proceedings a stipulation was entered regarding her prior conviction.

The question presented for review in Hayes was whether, in order to invoke the felony provisions of section 16A—10(2) of the Criminal Code of 1961, it was necessary to allege in the information that the offense was a second or subsequent offense of retail theft and to prove such matter during the trial. People v. Hayes held that in order to invoke the provisions of the enhanced penalty statute, the trial court at sentencing must find beyond a reasonable doubt, after notice to defendant and an opportunity to refute the allegations, that defendant was in fact convicted of a prior offense of retail theft and that the record supports that finding.

People v. Palmer (1983), 120 Ill. App. 3d 707, 458 N.E.2d 1044, involved consolidated cases in which defendants were charged with unlawful use of weapons within five years of a prior felony conviction. (Ill. Rev. Stat. 1981, ch. 38, pars. 24—1(a), 24—1(b).) There, the appellate court held that evidence of defendant’s prior convictions must be proved before the jury as an element of the felony offense of unlawful use of weapons.

People v. Palmer (1983), 120 Ill. App. 3d 707, 458 N.E.2d 1044, is distinguishable from People v. Hayes (1981), 87 Ill. 2d 95, 429 N.E.2d 490, in that an accused’s prior conviction for theft is not an element of an offense which must be included in the charging instrument. (People v. Jackson (1984), 99 Ill. 2d 476, 459 N.E.2d 1362.) The fact that an accused has a prior conviction for retail theft and is again charged with that offense affects sentencing, not whether he is guilty of theft, and the prior conviction need not be proved before the trier of fact but need only be presented during the sentencing hearing.

In the instant matter, it is uncontested that prior to trial and at the commencement of proceedings when the State requested 10 peremptory challenges, defendant was advised of the State’s intent to seek a Class 4 felony sentence against him upon conviction. Once defendant’s guilt was determined by the jury, the State again manifested its intent to proceed against defendant pursuant to the felony provisions of section 16A—10(2) of the Criminal Code of 1961. During the sentencing hearing, a stipulation was entered regarding defendant’s prior conviction for retail theft. While defendant maintains that the State was required to prove his prior conviction for theft before the jury, we cannot agree. To do as defendant argues would clearly subject an accused to the risk of prejudice. We cannot conclude that the procedures followed by the trial court to invoke the provisions of section 16A — 10(2) were improper. See People v. Hayes (1981), 87 Ill. 2d 95, 429 N.E.2d 490.

Accordingly, the judgment of the circuit court of Cook County is affirmed. As part of our judgment, we grant the State’s request that defendant be assessed $50 as costs for this appeal.

Judgment affirmed.

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


author: JUSTICE McGLOON

text:
    BOISE CASCADE HOME & LAND CORP., Plaintiff and Counterdefendant-Appellee, v. UTILITIES, INC., Defendant and Counterplaintiff-Appellant.
    First District (1st Division)
    No. 83—1035
    Opinion filed August 20, 1984.

      Paul W. Schroeder, Pamela B. Strobel, and Clay A. Tillack, all of Isham, Lincoln & Beale, of Chicago, for appellant.
    Francis J. Higgins and Carol Childs, both of Bell, Boyd & Lloyd, of Chicago, for appellee.
   JUSTICE McGLOON

delivered the opinion of the court:

This appeal arises from a contract action filed by Boise Cascade Home & Land Corp. and a counterclaim for breach of contract filed by Utilities, Inc. Utilities, Inc., appealed from a judgment entered on directed verdicts in favor of Boise on both claims. On appeal, Utilities contends (1) the trial court’s finding that the contract was unambiguous and its construction of the contract were erroneous; (2) a question of fact in Utilities’ counterclaim precluded the entry of a directed verdict; (3) the trial court erred in directing a verdict on Boise’s claim against Utilities; and (4) the trial court erred in awarding prejudgment interest on Boise’s claim at Indiana’s statutory rate.

We affirm in part, reverse in part and remand.

The actions from which this appeal arises were based on a contract for the sale of Twin Lakes Utilities, Inc. (Twin Lakes), an Indiana corporation. In 1961, a predecessor and subsidiary of plaintiff-counterdefendant Boise Cascade Home & Land Corp. (Boise) was engaged in planning and developing a project in Indiana known as Lakes of the Four Seasons Development. Twin Lakes had been incorporated to provide water supply and sewage treatment and disposal facilities for the development. In 1968, defendant counterplaintiff Utilities, Inc. (Utilities), purchased Twin Lakes from Boise.

“As an additional inducement to Purchaser to enter into this agreement, Seller agrees *** to construct and install, or to cause to be constructed and installed, without cost or expense to Utility or to Purchaser all sanitary sewage collection facilities portrayed by the plans therefor *** heretofore delivered to Purchaser, along with all facilities and equipment incident thereto and reasonably required to provide complete and adequate sewerage service to lot purchasers in the Development.”

Utilities specifically alleged that the sewage system lacked sufficient main capacity to serve all lot purchasers in the Lakes of the Four Seasons Development and that new mains had to be installed at a cost in excess of $200,000.

The actions were consolidated with another not involved in this appeal, and Utilities proceeded first in presenting its evidence at trial. Utilities called as witnesses David Owens, its executive vice-president, and Joseph Rezek, an engineering expert in the design and construction of sewer systems.

Owens identified the sales contract and testified that the certificate of territorial authority referred to therein was a certificate issued by the Indiana Public Service Commission authorizing the utility to provide water and sewer service in a particular area. Boise had applied for the certificate and defined the area to be serviced. In May 1979, an area north of the northeast section of Lakes of the Four Seasons known as T-Bone Lake was added to the certificated area. An agreement dated May 25, 1966, entered into by Twin Lakes and Mid-America Homes, Incorporated, the developer of T-Bone Lake subdivision, required Twin Lakes to apply for the certificate of territorial authority when Mid-America chose to develop the area. Under its contract with Boise, Utilities was obligated to honor the agreement between Twin Lakes and Mid-America.

Owens further testified that when Utilities purchased Twin Lakes, only about half of the sewage system had been installed. Boise agreed to pay for and install the remainder of the system. Utilities received design plans of the water supply and sewage disposal and treatment facilities.

According to Owens, the sewer system in the Development was neither designed nor built correctly. As a result, the capacity was inadequate and maintenance was difficult. Owens explained that the system operated on principles of gravity and the slope and diameter of the mains determined the system’s capacity. The system would have functioned properly if the existing mains had been installed at a steeper angle or if larger mains had been used. Owens calculated the projected peak sewage flows for the single-family lots, the 14 major multifamily and commercial lots within the originally certificated area, and the T-Bone Lake subdivision. Owens concluded that the existing sewer system would not be able to accommodate the sewage flow from these areas when each was fully developed. Utilities had considered using the existing system to its maximum capacity and adding new trunk lines to handle excess sewage.

On cross-examination, Owens admitted that the majority of the T-Bone Lake Subdivision was not part of the certificated area when Utilities purchased Twin Lakes. He also stated that his conclusion on the inadequacy of the system depends on the inclusion of T-Bone Lake and the commercial tracts in the Lakes of the Four Seasons. The system would be adequate to service single-family lots in the Lakes of the Four Seasons. Owens further testified that the inadequacy would not become apparent for several more years, when all of the property used in his calculations was fully developed. Prior to purchasing Twin Lakes, Utilities inspected the existing sewage treatment plant, lift stations, pumps, wells, and sewer and water mains and found the facilities acceptable. The plans for the sewer system were delivered prior to closing and had been examined by Utilities and approved by the State of Indiana.

On redirect, Owens testified that in a few instances, Utilities found mains running in the wrong direction or missing. He assumed that the agreement between Boise and Mid-America obligated Boise to install mains in the originally certificated area which would have the capacity to service T-Bone Lake when such service was requested.

Joseph Rezek testified that during the summer of 1979 his engineering firm was retained by Utilities to design a sewage treatment plant expansion in Lakes of the Four Seasons. Utilities had requested Rezek’s services because areas within and outside of the originally certificated area were under development and required sewer facilities. Rezek reviewed the plans of the existing sewer facilities and conducted a field survey in Lakes of the Four Seasons and T-Bone Lake to determine the capacity of the system. He explained that sewer systems are generally designed for 40 to 50 years of service and testified that under this standard, the system installed at Lakes of the Four Seasons was inadequate. Rezek proposed that Utilities install additional mains to transport sewage from T-Bone Lake to the sewage treatment plant in Lakes of the Four Seasons.

On cross-examination, Rezek testified that some sewer mains had already been installed to collect sewage from T-Bone Lake Development. Under his proposal, T-Bone Lake would be serviced by a separate system. His analysis of the system’s capacity included areas other than single-family lots in Lakes of the Four Seasons, and he could only estimate what facilities would not be needed if T-Bone Lake was not included in an analysis of the capacity of the system. At the time of trial, the sewer system was serving single-family lots adequately; however, other lot owners had not yet built residences.

At the close of Utilities’ case, Boise moved for directed verdicts on Utilities’ counterclaim and on its action for payment of connection fees due under the contract. In support of its claim, Boise presented a stipulation entered into by the parties stating the amount due under the formula specified in the contract. The trial court granted Boise’s motions, entered judgment against Utilities in both actions, and ordered Utilities to pay $230,250. Boise’s motion for prejudgment interest at Indiana’s statutory rate of 8% was also granted.

On appeal, Utilities first contends the trial court erred in directing a verdict in favor of Boise on Utilities’ counterclaim for breach of contract. It argues that contract ambiguities and questions of fact as to the adequacy of the sewer system precluded the entry of a directed verdict.

Regarding the issue of contract interpretation, Utilities contends the trial court erred in restricting the definition of the term “lot purchasers in the Development” to purchasers of single-family lots in the Lakes of the Four Seasons Development. Utilities contends the phrase is ambiguous and could reasonably be construed to include tracts and parcels on which commercial establishments, schools, clubhouses and multiple family dwellings were built. Also, Utilities argues that under the terms of the contract, Boise was required to provide a sewer system which would adequately service the T-Bone Lake subdivision if and when Mid-America requested sewer service for that area.

A contract is ambiguous if it is reasonably susceptible to being understood in more than one sense or is obscure in meaning. (Joseph v. Lake Michigan Mortgage Co. (1982), 106 Ill. App. 3d 988, 436 N.E.2d 663.) Whether an ambiguity exists is a question of law to be determined by the court. (Joseph v. Lake Michigan Mortgage Co. (1982), 106 Ill. App. 3d 988, 436 N.E.2d 663; Pioneer Trust & Savings Bank v. Lucky Stores, Inc. (1980), 91 Ill. App. 3d 573, 414 N.E.2d 1152.) Where no ambiguity is present, the meaning of the agreement and the intent of the parties must be ascertained from the language of the contract. Touhy v. Twentieth Century-Fox Film Corp. (1979), 69 Ill. App. 3d 508, 387 N.E.2d 862.

After reviewing the contract and construing the provisions as a whole, we find no error in the trial court’s finding that the phrase “lot purchasers in the Development” means single-family lots within the Lakes of the Four Seasons Development. The first paragraph of the agreement indicates the term “Development” means the Lakes of the Four Seasons Development. Additionally, various terms are used throughout the contract to describe sections of realty within the development. In addition to the specific reference to lot purchasers in the clause in issue, the agreement stated that Boise had not permitted lot purchasers to acquire any interest in the system. Distinctions between lots and other divisions of realty within the development were made in article IV, paragraph 7 and article III, paragraph 1. In these paragraphs, Boise represented that it was retaining a large investment in other property in the development and that it had a large inventory of lots for sale. Boise excluded from the transfer lines and facilities located upon lots or tracts held by it for investment or sale. Also, in article I, paragraph 7, the parties used the terms “units” and “subdivisions” to describe the areas in which Boise had installed and was in the process of extending sewage collection mains. As noted by the trial court, the contract indicates that the Lakes of the Four Seasons Development was divided into different areas and that the parties deliberately used the words lots, units, subdivisions or development to specifically identify the areas to which they intended to refer. In reaching its conclusion, the trial court followed the well-established rules that a contract must be construed to give meaning to each term and that words are inserted purposefully and deliberately to indicate the parties’ intent. State Farm Mutual Automobile Insurance Co. v. Schmitt (1981), 94 Ill. App. 3d 1062, 419 N.E.2d 601; Pierce v. MacNeal Memorial Hospital Association (1977), 46 Ill. App. 3d 42, 360 N.E.2d 551.

Furthermore, we do not agree with Utilities’ contention that the sewer system was intended to service the T-Bone Lake area. Article I, paragraph 4, of the purchase agreement provides:

“There are no contracts or obligations of any nature between Utility and any other party except an Agreement for Construction and Indemnity dated March 1, 1966, between Utility and United States Land, Inc. and an agreement made under date of May 25, 1966, between Seller and Mid-America Homes, Inc., and assumed by Utility under date of September 17, 1966, copies of which agreements have been delivered to Purchaser.”

This section contains no representations as to the sewer system’s capacity to serve Mid-America’s T-Bone Lake area, nor did Boise undertake the obligation to provide a system which would accommodate T-Bone Lake’s sewage flow. Rather, the parties merely acknowledged the existence of the agreement and the assumption of it by Utilities. We have found no other contract provision supporting Utilities’ contention that Boise agreed to provide a sewer system which would adequately service T-Bone Lake.

Utilities also argues that even if the term “lot purchasers in the Development” is restricted to single-family lots within the Lakes of the Four Seasons Development, the evidence presented at trial presented a question of fact as to the adequacy of the sewer system which should have been decided by the jury. Utilities particularly stresses the evidence that some mains were not installed properly and according to the plans submitted by Boise. For the following reasons, we find no merit to Utilities’ argument.

An integral part of Utilities’ proof was the sewer system’s incapacity to service T-Bone Lake subdivision and areas other than single-family lots in the Lakes of the Four Seasons Development. However, Boise’s promise of adequacy did not extend to these areas. Furthermore, Utilities represented in the agreement that it was satisfied with the physical condition and location of the facilities which Boise had installed before the contract was executed. However, there is no evidence presented to show whether design inadequacies were within the approved area or in the area constructed after the agreement was signed. Most importantly, Owens admitted that the system had been and was, at the time of trial, adequately servicing the customers in Lakes of the Four Seasons. Neither Owens nor Rezek could anticipate with much certainty when, if ever, the sewer system would become inadequate to serve the area specified in the contract.

In summary, we find that the trial court properly granted Boise’s motion for a directed verdict on Utilities’ counterclaim for breach of contract. The evidence, when viewed in its aspect most favorable to Utilities, so overwhelmingly favored Boise that no contrary verdict could stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.

Third, Utilities contends the trial court erred in directing a verdict on Boise’s action for payment of connection fees. It argues that the stipulation upon which the directed verdict was based was merely a stipulation as to damages and did not relieve Boise of its burden of proving performance of its obligations under the contract by a preponderance of the evidence.

The pertinent provisions of the stipulation provide:

“7. Taking into account all payments made, which include $100,000 down plus the $69,750 paid through July 31, 1975, the principal sum Utilities owes to BCH&L under the Purchase Agreement (aside from any alleged counterclaim, set-off, breach of contract or failure of condition) is $320,250 [sic] ($400,000 minus $169,750).
8. This Stipulation does not constitute a waiver of any contention, either factual or legal, of either Utilities or Boise, except as set forth herein.”

In construing a stipulation, the main objective is to determine the intent of the parties (ITT Abrasive Products Co. v. Lewis (1973), 12 Ill. App. 3d 83, 298 N.E.2d 242), and the words therein must be given their natural and ordinary meaning. (Laff v. John O. Butler Co. (1978), 64 Ill. App. 3d 603, 381 N.E.2d 423.) Applying these principles to the case at bar, we find Utilities’ contention to be without merit. The stipulation clearly states that Utilities owed Boise the unpaid connection fees due under the agreement, and the obligation to pay was not conditioned on proof by Boise of substantial compliance with the contract. Other provisions do not restrict the scope of the stipulation only to the damages claimed by Boise. In fact, the only matters excluded by the stipulation were those raised in Utilities’ counterclaim for breach of contract wherein it sought damages as a set-off. The intent of the parties was that the stipulation was not to affect Utilities’ right to pursue its counterclaim.

The final issue raised by Utilities is whether the trial court erred in applying the significant contacts test in awarding prejudgment interest at the Indiana statutory rate of 8%. Utilities does not contest the assessment of prejudgment interest, but argues that Illinois has not recognized the significant contacts test in contract actions and that under traditional conflict of laws principles, Illinois law should have been applied. Utilities further argues that even if the significant contacts test is applicable, the trial court’s finding that Indiana had the most significant relation to the action was erroneous.

Under traditional Illinois conflict-of-laws principles, the law of the place where the contract is performed and executed is applicable in determining the validity, construction and obligations of the contract. Where performance and execution occur in different States, the law of the place of performance governs. Where a contract is to be performed in more than one State, the law of place of execution is controlling. (Oakes v. Chicago Fire Brick Co. (1944), 388 Ill. 474, 58 N.E.2d 460.) Federal courts applying Illinois law have followed the traditional test, but have noted a trend in Illinois of adopting the most-significant-contacts test in conflict of laws cases. (Overseas Development Disc Corp. v. Sangamo Construction Co. (7th Cir. 1982), 686 F.2d 498, 510-11 n.43; Zlotnick v. MacArthur (N.D. Ill. 1982), 550 F. Supp. 371, 373 n.2; Adams Laboratories, Inc. v. Jacobs Engineering Co. (N.D. Ill. 1980), 486 F. Supp. 383, 389 n.6.) However, the courts in each of the aforementioned cases were required to resort to the most-significant-contacts test because the contracts in issue were performed and executed in more than one State.

In Champagnie v. W.E. O’Neil Construction Co. (1979), 77 Ill. App. 3d 136, 395 N.E.2d 990, this district applied the most-significant-contacts test in deciding that Illinois law was applicable in an action challenging the validity of an indemnity contract. Under the traditional test, Wisconsin law would have governed because performance was to take place there. In holding that the most significant contacts test was appropriate, the court reasoned that since Ingersoll v. Klein (1970), 46 Ill. 2d 42, 262 N.E.2d 593, wherein the court adopted the significant-contacts test in multistate tort actions, the application of the test had not been restricted to tort cases. Champagnie v. W.E. O’Neil Construction Co. (1979), 77 Ill. App. 3d 136, 144, 395 N.E.2d 996.

In the case at bar, either of the aforementioned analyses would lead to the same result. Under the traditional test still employed by the Federal courts, the significant-contacts test would be applicable because performance was to take place in both Indiana and Illinois, and the record does not contain conclusive evidence of the place of execution. Champagnie clearly requires analysis under the significant-contacts test. We further note that had the facts of this case been different, we would have followed Champagnie, and we believe that the most-significant-contacts test should be followed in conflict of laws cases involving contracts.

The factors to be considered in determining the State which has the most significant relationship are the place of contracting, negotiating and performance, the location of the subject matter of the contract, and the domicile, residence, place of incorporation and business of the parties. (Champagnie v. W.E. O’Neil Construction Co. (1979), 77 Ill. App. 3d 136, 145, 395 N.E.2d 990, 996; McIntosh v. Magna Systems, Inc. (N.D. Ill. 1982), 539 F. Supp. 1185, 1188.) These factors are to be evaluated in light of the relevant policies of the forum and other interested States and those States’ interest in the issue. Champagnie v. W.E. O’Neil Construction Co. (1979), 77 Ill. App. 3d 136, 145, 395 N.E.2d 996.

As noted above, the contract was to be performed in Illinois and Indiana. Negotiation appears to have occurred in both States, and the place of execution is uncertain. Boise and Utilities are Delaware corporations with principal places of business in Palo Alto, California, and Northbrook, Illinois, respectively. The subject matter of the contract is located in Indiana. The foregoing reveals that both Illinois and Indiana have contacts to the litigation. However, the Illinois interest is greater than that of Indiana because enforcement of the contract was sought in Illinois and the interest was awarded on a judgment for damages rendered under Illinois law. We therefore find that prejudgment interest should have been assessed at the Illinois statutory rate.

For the foregoing reasons, we affirm the judgments entered in favor of Boise on Boise’s action for connection fees and on Utilities’ counterclaim. We reverse that part of the judgment awarding prejudgment interest and remand for computation of prejudgment interest at the Illinois statutory rate.

Judgments affirmed in part, reversed in part; cause remanded.

BUCKLEY, P.J., and GOLDBERG, J., concur.