author: JUSTICE GREEN

text:
    CENTRAL INFORMATION FINANCIAL SERVICES, LTD., Plaintiff-Appellee, v. THE FIRST NATIONAL BANK OF DECATUR, Defendant and Third-Party Plaintiff-Appellant (North American Financial Services, Ltd., Third-Party Defendant-Appellee).
    Fourth District
    No. 4—83—0732
    Opinion filed November 26, 1984.

      Vernon H. Houchen, of Decatur, for appellant.
    John E. Fick, of Samuels, Miller, Schroder, Jackson & Sly, of Decatur, for appellee North American Financial Services, Ltd.
    James Walker, Ltd., of Bloomington, for other appellee.
   JUSTICE GREEN

delivered the opinion of the court:

This complex civil litigation arises from a written contract entered into between third-party defendant, North American Financial Services, Ltd. (North American), and defendant, the First National Bank of Decatur (Bank), on July 27, 1979. By the terms of the contract, the Bank agreed to purchase and North American agreed to supply certain data processing software services and supplies. The document also provided that North American would convert the Bank’s current data processing arrangement to that described in the contract. On the same date, with the Bank’s written consent, North American assigned its rights in the contract to its wholly owned subsidiary, plaintiff, Central Information Financial Services, Ltd. (Central).

On December 26, 1979, Central filed suit in the circuit court of McLean County against the Bank alleging a breach of the contract and seeking money damages. On March 6, 1980, the venue was transferred to the circuit court of Macon County pursuant to a Federal statute which limits the venue in which civil actions may be brought against national banking associations, such as the Bank, to the trial court of the locality wherein the bank is located. (12 U.S.C.A. sec. 94 (West Supp. 1945).) Subsequently, the Bank filed (1) an answer including an affirmative defense, (2) a counterclaim against Central, and (3) a third-party complaint against North American. The latter then counterclaimed against the Bank. During the jury trial, North American’s counterclaim was withdrawn. The circuit court entered judgment on verdicts (1) finding in favor of Central on the original complaint and awarding damages in the sum of $300,000, (2) finding against the Bank on its counterclaim against Central, and (3) finding in favor of North American on the third-party complaint.

The Bank has appealed maintaining, inter alia, that actions of Central’s counsel deprived it of a fair trial. We agree. The matters before the jury were complicated, and the Bank was entitled to have its evidence and arguments considered without the influence resulting from improper remarks concerning matters outside the record. Although the conduct of counsel for North American was entirely proper, we conclude that the remarks of Central’s counsel also prejudiced the Bank with respect to its dispute with North American. Considering also the contractual and other relationships between Central and North American, we find fairness to require that a new trial be granted as to all claims between all parties. We will discuss other claims of error to the extent necessary to render assistance in the rulings to be made upon remand.

Before discussing the point upon which reversal is granted, further explanation of the issues before the trial court is necessary. The complaint alleged that after Central had made extensive and expensive efforts to prepare to perform the contract, an anticipatory breach of the contract occurred when the Bank informed Central that the Bank would not proceed with the contract. In its answer, the Bank admitted that it had elected not to proceed under the contract, but maintained it had done so because of breaches by Central. The Bank’s affirmative defense, its counterclaim, and its third-party complaint alleged that, after the complaint was filed, the three parties had met and orally agreed to resolve the disputes pursuant to a document which had been reduced to writing but never signed by any party. The pleading asserted that the agreement required North American to complete the work, but that North American had failed to do so.

A copy of the document referred to in the affirmative defense, counterclaim and third-party complaint was attached to the Bank’s pleadings. It purported to make various minor changes in the terms of the contract and its pricing arrangements. The document also provided that upon its execution (1) Central would reassign its contractual obligations under the July 1979 contract to North American, and (2) the Bank would pay Central $14,351.37 as reimbursement for expenses which Central had incurred in attempting to convert the Bank’s data processing system. It also contained a schedule of dates for the conversion of the Bank’s data processing system. Under the purported terms of the document, Central agreed that after the Bank’s data processing system was converted to the North American system, Central would dismiss its case against the Bank.

Much of the evidence was undisputed. Apparently, a disagreement arose between the parties, and in the late fall of 1979 agents of the Bank told agents of the other parties that the Bank considered the contract to be terminated because of Central’s failure to perform. Then, on December 17, 1979, the Bank’s counsel sent Central’s counsel a letter stating in part:

“We believe that your clients have breached the agreement between the parties by reason of inability to perform under the terms thereof.
* * *
[Y]ou are advised that [the Bank] considers the matter at an end (except as to claims for damages that it might pursue), and, therefore, this letter is to give you and your client and, by copy, to North American notice of termination of the contract.”

The Bank does not dispute that the evidence at trial was sufficient to support a determination that it had breached the contract, but contends that the court erred in prohibiting it from introducing evidence that would have enabled it to show that matters occurring after the letter of December 17, 1979, and the filing of the complaint sufficiently proved the allegations of its affirmative defenses, counterclaim and third-party complaint.

The situation giving rise to the Bank’s complaint about the conduct of Central’s counsel started during a recess in the trial, when the court held a preliminary conference on instructions. Central offered Illinois Pattern Jury Instruction, Civil, No. 5.01 (2d ed. 1971), which, as drafted, concerned the failure of the Bank to call Bruce McKenzie as a witness. McKenzie was purportedly an expert witness on the conversions of data processing systems. Later, before the jury, Central called the Bank’s sole counsel, Vernon Houchen, as a witness. Central’s purpose was to support the giving of the instruction by showing that McKenzie had knowledge of the attempts that were made to convert the Bank’s data processing system and was closely connected with the Bank. Mr. Houchen’s objections to the testimony were overruled, and Central asked him some 15 questions concerning his relationship with McKenzie. The trial court refused to give the tendered instruction, explaining that no showing had been made that McKenzie was either under the Bank’s control or more accessible to one side than the other.

In closing arguments, Central’s counsel stated:

“Then we remember the testimony of Bruce McKenzie. He is the expert witness that didn’t testify. He is the person who the bank contacted to come and tell us that [Central] ***.”

The Bank objected to this argument, the trial court overruled the objection, and Central’s counsel continued as follows:

“[McKenzie] is the person the [Bank] contacted to come and tell us that [Central] didn’t have the power, whether its manpower or equipment or whatever, to process this contract. But he is the person who didn’t testify. And I think all of you know what inference to draw from that.”

The Bank again objected and moved that the remarks be stricken from the record. The court sustained the objection, but did not order the remarks stricken.

During the Bank’s closing argument, its counsel advised the jurors that (1) he was embarrassed by being called to the witness stand, and (2) although he knew that the jurors didn’t care about a lawyer’s being embarrassed, they surely had a sense of what was right and wrong and what was fair play. Central’s counsel objected to this statement. The trial court then sustained the objection and struck the remark from the record. Then, in rebuttal closing argument, Central’s counsel said:

“Now Mr. Houchen said there was something improper with my calling him as a witness. I called him as a witness to show one thing and that is that he announced he would call Bruce McKenzie as an expert witness and he chose not to do that.”

After the Bank’s objection to the foregoing was sustained, Central’s counsel then said:

“Then I called Mr. Houchen to show whatever his testimony showed. And he says there is something improper with that. There is absolutely nothing unethical about me calling Mr. Houchen as a witness.”

The trial court again sustained the Bank’s objection, and Central’s counsel then stated, “[W]ell, Mr. Houchen brought it up, Your Honor.”

After the trial court advised Central’s counsel that he had sustained the Bank’s objection and stricken the remarks from the record, Central’s counsel stated:

“Mr. Houchen says it is embarrassing to him. I did not mean to embarrass him in the slightest. And I don’t hesitate to say that Vernon Houchen is a skillful defense lawyer. He is good at his work. And one of the good things he did in this case is deciding not to call Bruce McKenzie to the stand because I took his deposition *** and I know what his testimony would be.”

After the Bank’s objection was sustained, Central’s counsel stated, “[I]t’s a credit to him that he made the decisions that he did in that regard.”

Only very unusual circumstances justify the calling of opposing counsel as a witness, but we need not rule upon the propriety of its occurrence here. The prejudice, if any, to the Bank was slight. Our concern is with the argument of Central’s counsel. In ruling on Central’s tendered instruction concerning the inference to be drawn because the Bank had not called McKenzie, the trial court ruled that the foundation proof was insufficient to give rise to the required inference. Nevertheless, Central’s counsel argued to the jury that an inference could be drawn and implied that the inference would be against the Bank. Then, after responding to Mr. Houchen’s argument that Central’s counsel improperly called him, Central’s counsel told the jury that he knew the contents of the testimony McKenzie gave in a deposition, again implying that McKenzie’s testimony would be unfavorable to the Bank.

Thus, Central’s counsel’s argument not only improperly implied that the jury could draw inferences which the court had ruled to be unsupported, but also implied personal knowledge of the existence of facts not before the jury. (Mileur v. Briggerman (1982), 110 Ill. App. 3d 721, 442 N.E.2d 1356.) This portion of counsel’s argument, although stated in response to Mr. Houchen’s argument that he was improperly called, was not invited by that argument and was not a proper response to that argument. The trial court sustained objection to the cited portion of Central’s argument, but that did not seem to deter Central’s counsel. The sustaining of the objections was insufficient to negate the prejudicial impact of the improper portions of Central’s argument. The argument “seriously jeopardized” the Bank’s opportunity to get a fair consideration by the jury of the complicated factual situation before the jury. (Vujovich v. Chicago Transit Authority (1955), 6 Ill. App. 2d 115, 120, 126 N.E.2d 731, 735.) For this reason, a new trial is required.

A major dispute concerning the admissibility of evidence will likely arise on retrial. On the first day of the trial, Central filed a motion in limine seeking to prohibit the Bank from communicating to the jury that (1) the parties entered into a written agreement “modifying the agreement dated July 27, 1979,” and (2) the parties entered into the agreement referred to in the Bank’s counterclaim against Central and its third-party complaint against North American. The trial court allowed the motion, basing its ruling upon the Statute of Frauds provision invalidating contracts “not to be performed within the space of one year from the making thereof” unless in writing and signed by “the party to be charged” (Ill. Rev. Stat. 1979, ch. 59, par. 1). Neither Central nor North American had pleaded the Statute of Frauds but Central, in arguing the motion in limine, had stated that it intended to amend its pleadings to formally raise the issue. The Bank concedes that the issue was properly raised.

Later, when the Bank was cross-examining John Oberding, a principal owner of North American, concerning various conversations he and another owner had with certain Bank officers, Central objected on the basis of the Statute of Frauds and the ruling on the in limine motion. However, the court overruled the objection, stating that the evidence was admissible under the “resolution of problems” paragraph of the July 1979 contract. Paragraph 26(E) of the July 1979 contract provides that “[Central] and [the Bank] agree to cooperate and negotiate in good faith to resolve any problems in connection with any Conversion hereunder.” Then, in an answer to a question by Bank’s counsel, Mr. Oberding stated that all of the parties had an agreement in principle to go forward and resolve the dispute, and all parties had cooperated until further problems developed in June of 1980.

Still later, after various witnesses had testified concerning the parties’ attempts to resolve their differences in the first months of 1980 and North American’s attempts to convert the Bank’s data processing system in June 1980, Central again objected to the introduction of such evidence. Central argued that the July 1979 contract was terminated by Decatur’s anticipatory repudiation of the contract in late 1979, and any evidence of negotiations or attempts to resolve the parties’ disputes after the repudiation was not relevant to determining the only issue in the case — the rights of the parties at the time of Decatur’s repudiation. Before ruling on Central’s objection, the trial court considered the previously mentioned letter of December 17, 1979, written by the Bank’s counsel to Central’s counsel. The court concluded that (1) as a matter of law, the letter constituted a termination of the July 1979 contract, and (2) accordingly, consideration of any evidence of further negotiations leading to a new oral contract between the parties would violate the Statute of Frauds. The Bank then made an offer of proof as to the evidence it would introduce concerning a subsequent agreement between the parties. Ultimately, the court permitted the Bank to introduce this evidence, but only for the limited purpose of showing whether Central had the ability to perform on the contract at the time of the repudiation. The court prohibited introduction for any other purpose. Subsequently, the trial court permitted the Bank to amend its pleadings to allege that the parties had resolved their differences pursuant to the terms of the existing written agreement of July 1979 and that the failure of North American to make the required conversions of the Bank’s data processing equipment was a breach of the existing agreement rather than a subsequent oral one.

The parties agree that the written contract of July 1979, any purported modification of that agreement, or any subsequent oral agreement between the parties would be one that could not “be performed within one year of the making thereof” within the meaning of the Statute of Frauds. No case has been called to our attention where an oral agreement to amend a written agreement has been held to be enforceable over a Statute of Frauds defense where, as here, the amendatory agreement would be executory, and if the amended agreement is subject to the Statute of Frauds. (See 2 Corbin, Contracts sec. 301, at 88 (1950).) No contention has been made here that any such amended or new agreement comes within any exception to the Statute of Frauds.

The Bank contends that the evidence would have tended to show waiver by its opponents of any reliance by them on the Bank’s repudiation of the July 1979 contract. The Bank also contends that the evidence would have shown that its opponents were estopped from so relying. Neither estoppel nor waiver was ever pleaded by the Bank. We do not know the context in which these issues might appear at retrial and do not express an opinion upon them other than to note that continued performance under a contract for construction or performance of service does not always constitute a waiver of a breach of the contract. John Kubinski & Sons, Inc. v. Dockside Development Corp. (1975), 33 Ill. App. 3d 1015, 339 N.E.2d 529.

Upon the basis of the record before the trial court, it ruled properly in restricting the admission of the evidence in dispute.

Another important point before the trial court consisted of Central’s proof of damages. It-presented proof of the contract price it would have received if the contract had been performed, and it presented evidence of expenses it would have incurred to perform the contract, but which it saved by not having to do so. The trial court let this evidence stand as being a sufficient showing to prove damages if Central was entitled to recover. The theory in support of Central’s position and the trial court’s ruling is that damages for a breach of a contract of this nature may be proved by subtracting the expenses saved from the contract price. The Bank contends that this formula is wrong, because some deduction should also be made for the overhead expense that Central would have incurred regardless of whether the contract was performed.

The question of the proper treatment of overhead expenses in awarding damages for the breach of a contract of this nature is one on which the authorities are not in agreement. (See Annot., 3 A.L.R. 3d 691 (1965).) The Illinois cases touching upon the question do not give a clear answer.

In Rivenbark v. Finis P. Ernest, Inc. (1976), 37 Ill. App. 3d 536, 346 N.E.2d 494, suit for breach of contract was brought by a building subcontractor against the general contractor who admitted on appeal that it had breached the contract. The trial court awarded the subcontractor certain sums for damages for work completed, interest on a note and anticipated profits from the contract. The appellate court reversed the award for anticipated profits and awarded a new trial on that issue. The plaintiff’s evidence of lost profits consisted of a calculation of the percentage of profit that had been realized on the work completed and application of that same percentage to the portion of the contract price attributable to the work not completed. The court stated:

“We find this figure erroneous because plaintiff’s witness employed an incorrect method of calculation of lost profits. Plaintiff presented no evidence of the projected cost of completion of the work. There was no testimony regarding anticipated direct costs (labor and material), indirect costs (overhead and other expenses) or how long it would have taken to complete the contract. Without such testimony the proper amount of lost net profit cannot be ascertained. It may be that plaintiff’s cost of completion would have been greater than the contract price for the work remaining. In this instance, plaintiff would not be entitled to any lost profits. On the other hand, plaintiff’s estimate may well approximate a fair amount of anticipated profits lost as a result of defendant’s breach. Under these circumstances we conclude that the court erred in awarding lost profits in the manner calculated.” 37 Ill. App. 3d 536, 541, 346 N.E.2d 494, 498.

Prior to determining that the trial court had permitted an improper method of calculation of damages, the Rivenbark court discussed principles of damages which it considered in reaching its decision. The court stated that “[t]he net profits lost by breach of contract are ascertained by deducting from the contract price those expenses necessary for full compliance on the plaintiff’s part.” (37 Ill. App. 3d 536, 539, 346 N.E.2d 494, 497.) The court then explained that a plaintiff’s direct costs of performing a contract are often avoided by a defendant’s breach, and clearly such costs should be deducted from the contract price in determining damages, but that the manner of treating indirect costs had not been decided in this State. The court then quoted at length from a text which explained that some cases take the position that indirect costs (overhead) should also be deducted from the contract price, but that such conclusions were often reached without explanation. 22 Am. Jur. 2d Damages sec. 178 at 255-56 (1965).

The text quoted in Rivenbark indicated that in cases where the breach of a contract by a defendant allowed the plaintiff an opportunity to enter into other contracts which would bear the same portion of the overhead costs as would the breached contract, the requirement that these costs also be deducted from the contract price was merely “an expression of the doctrine of avoidable consequences.” The text then stated:

“ ‘However, if the indirect costs are of the type which cannot be reduced following the breach, and if the plaintiff could have entered into further contracts even though the defendant had not breached the contract, then the fact that the plaintiff did enter into contracts after the defendant’s breach does not lessen or eliminate the plaintiff’s indirect costs. Had the defendant not breached the contract, the plaintiff would have had the defendant’s full contract payment, in addition to the payments from the subsequent contracts, to pay his fixed indirect costs. Deducting indirect costs from the contract price to arrive at net profit results in giving the plaintiff one less contract from which these costs can be paid, and reduces his total net profit by the amount of the deduction. Several cases recognize this factor of undercompensation and do not deduct overhead in arriving at net profit. These are, however, statements of general principles, and individual cases must be analyzed carefully to determine whether they vary from assumptions on which these principles are based.’ 22 Am. Jur. 2d Damages sec. 179, at 255-56 (1965).” (Emphasis added.) Rivenbark v. Finis P. Ernest, Inc. (1976), 37 Ill. App. 3d 536, 540, 346 N.E.2d 494, 497-98.

Whether the Rivenbark court followed the rationale of the quoted text is difficult to determine. If that theory were to be followed, it is difficult to see how the amount of the indirect costs referred to in the court’s explanation of its decision would be necessary. However, the opinion does not indicate whether the contractual breach there might have enabled the subcontractor to engage in work it could not otherwise have performed and to allocate portions of its overhead to that work. In S. A. Maxwell Co. v. DeSoto Inc. (1979), 73 Ill. App. 3d 844, 392 N.E.2d 33, and Henry’s Drive-In, Inc. v. Anderson (1962), 37 Ill. App. 2d 113, 185 N.E.2d 103, the courts concluded that allocated overhead costs must be deducted from the contract prices or gross receipts under contracts in computing damages for breach of contracts. In S. A. Maxwell, the opinion indicated that the breach would not have given rise to other opportunities for earnings to which portions of the overhead could be allocated. No such determination was possible from the Henry’s Drive-In, Inc. opinion. In any event, neither court discussed the question of overhead expenses as extensively as the Rivenbark court.

Despite the paucity of Illinois authority on the question of the proper consideration of overhead expenses and the indication in the cited cases that deduction for overhead should have been required here, we conclude that the trial judge here applied the proper rule. (22 Am. Jur. 2d Damages sec. 178, at 255-56 (1965).) The evidence indicated that Central had only one other contract and would have had overhead expenses which would not have been diminished by the Bank’s breach.

Our holding is supported by that in Vitex Manufacturing Corp. v. Caribtex Corp. (3d Cir. 1967), 377 F.2d 795. Vitex operated a plant in the Virgin Islands where it processed cloth. At a time when its plant was shut down, it entered into a contract to process cloth for Caribtex. In breach of the contract, the latter sent no material to Vitex for processing and Vitex sued for damages. The district court, sitting at bench, entered a judgment for Vitex. The damages were calculated by deducting the costs Vitex was saved from the contract price. Overhead expenses which would have been incurred regardless of the contract were not deducted. Caribtex contended that a deduction for overhead should have been made. In affirming, the Circuit Court of Appeals stated that “since overhead is fixed and nonperformance of the contract produced no overhead cost savings, no deduction from profits should result.” (377 F.2d 795, 798.) The court noted that if overhead expenses to Vitex were not considered to be a required deduction from contract price in considering profit, it should be considered an additional loss incurred.

As nearly as possible, damages for breach of contract should place the party injured in the position it would have been if no breach had occurred. If the injured party performs work and is entitled to receive money for performance under the contract, that injured party receives less revenue over which to spread its fixed costs unless it is enabled by the breach to obtain and perform similar work. If other work is not obtained, the injured party is not made whole unless some portion of the damages awarded compensates it for the portion of overhead which should be allocated to that contract. Any expense saved by the breach should not be treated as overhead.

As described in Vitex Manufacturing Co., either of two methods can be used to make whole the injured party with the type of overhead expense described. One is to award damages for the contract price less the award of expenses saved because the injured party is not required to perform. This method is the simpler, because it does not require any determination as to the amount of overhead to allot to the breached contract. The other method is to determine the amount of overhead applicable to the contract. This portion of overhead should then be included in the amount to be deducted from the contract price. Then, after determining loss of net profits in this manner, an additional award of damages should be made for the overhead expense applicable to the breached contract for which no reimbursement was obtained. This method has the advantage that the terminology used is more accurate. Overhead expense is universally treated as an expense necessary to deduct in determining net profit. Moreover, in contract analysis, the overhead expense is thus treated as an investment made in reliance on the contract for which the injured party should recover, and the net profit figure obtained is the gain prevented by the breach, or the expectation factor of the damage formula. Either method is permissible and will reach a fair result.

We recognize that the evidence may be difficult at retrial, particularly with reference to overhead expenses that might be saved. However, we deem it necessary for us to pass upon the general nature of the formula for the assessment of damages. Argument has been made as to the speculative nature of the evidence concerning damages. As the totality of this evidence is likely to differ on retrial, we do not pass upon that aspect of the evidence at the previous trial.

We do not consider it necessary or desirable for us to pass upon other claims of error. We reverse the judgments entered and remand to the circuit court of Macon County for a new trial.

Reversed and remanded.

MILLER and WEBBER, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE STOUDER JUSTICE BARRY,

license: Public Domain

text:
    GEORGE W. DOBCZYK, Plaintiff-Appellee, v. REBECCA KNOWLES, Defendant-Appellant.
    Third District
    No. 3—83—0069
    Opinion filed November 30, 1984.
    BARRY, J., dissenting.
    Sidney Z. Karasik, of Chicago, and Lawrence J. Stukel, of Robson, Masters, Ryan, Brumund & Belom, of Joliet, for appellant.
    Theodore J. Jarz, of McKeown, Fitzgerald, Zollner, Buck, Sangmeister & Hutchison, of Joliet, for appellee.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

This appeal arises from an automobile collision at an intersection in Lockport at 7:30 a.m. on September 19, 1975. This intersection is an open intersection with no stop signs in either direction. George Dobczyk, who was injured in the collision, sued Rebecca Knowles for negligence. This case was tried before the doctrine of comparative negligence was adopted in Illinois in 1981. At the defendant’s request, the jury was given a special interrogatory asking it to determine whether the plaintiff had contributed to the cause of his injuries. The jury returned a general verdict in favor of the defendant and answered the special interrogatory “No.” The trial court refused to enter judgment for the defendant and ruled that the general verdict and the answer to the special interrogatory were inconsistent and ordered a new trial on all issues. The defendant was granted leave to appeal pursuant to Supreme Court Rule 306 (Ill. Rev. Stat. 1983, ch. 110A, par. 306).

The sole issue raised on appeal is whether in fact the general verdict in favor of defendant is inconsistent with the special interrogatory which found that plaintiff was not guilty of contributory negligence.

Under the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1108), “When a special finding of fact is inconsistent with the general verdict, the former controls the latter and the court may enter judgment accordingly.” Illinois courts have interpreted this provision as requiring that an inconsistency be found “only when the special findings are clearly and absolutely irreconcilable with the general verdict.” (Lewis v. Beckman (1978), 57 Ill. App. 3d 482, 485, 373 N.E.2d 589, 592.) We disagree with the trial court that the special interrogatory was clearly and absolutely irreconcilable with the general verdict.

We base our conclusion upon several Illinois Appellate Court cases which have determined that the jury’s determination that plaintiff was not guilty of contributory negligence and the general verdict in favor of defendant are not inconsistent. These two determinations merely indicate that the plaintiff has failed to prove his case. In both Calcese v. Cunningham Cartage, Inc. (1975), 25 Ill. App. 3d 1094, 322 N.E.2d 620, and Legerski v. Nolan (1971), 132 Ill. App. 2d 51, 265 N.E.2d 696, weather conditions created a situation where the collision could have been an unavoidable accident. We believe that the circumstances in this case present an analogous situation here because trees obstructed the defendant’s view of the intersection and there was no definitive evidence as to who approached the intersection first, plaintiff or defendant. Therefore, neither party must be guilty as a matter of law, and the verdicts were, therefore, consistent.

The trial court relied upon Finnegan v. Davis (1979), 68 Ill. App. 3d 118, 385 N.E.2d 1103, which we find is easily distinguishable from the facts in this case. In Finnegan, a pickup truck and a motorcycle collided, causing plaintiff decedent’s death. The appellate court ruled that the jury’s “No” answer to the special interrogatory as to contributory negligence and the general verdict in favor of defendant were inconsistent because one of the parties was guilty as a matter of law. However, the court in Finnegan stated:

“We rule that it may under the unusual circumstances of this case, where under the evidence, the collision giving rise to the action could not have resulted from pure accident and must have been proximately caused by either plaintiff’s decedent or defendant.” (68 Ill. App. 3d 118, 119.)

In Finnegan, the road upon which the collision occurred was wide enough for two automobiles to pass, there were no adverse weather conditions and nothing to obstruct either party’s view. As we pointed out, the facts in this case are substantially different. There was testimony at trial that branches obstructed defendant’s view. Also, we believe that an open intersection collision can result from pure accident, unlike the head-on collision in Finnegan where one of the parties must have crossed the center line. Because this collision could have resulted from a pure accident we find that the special interrogatory and the general verdict were not inconsistent.

We, therefore, reverse the decision of the circuit court of Will County granting a new trial and remand this case with instructions to enter judgment in favor of the defendant on the general verdict.

Reversed and remanded.

SCOTT, J., concurs.

JUSTICE BARRY,

dissenting:

While I agree with the majority that there are Illinois Appellate Court cases which have held that a jury’s determination that a plaintiff was not guilty of contributory negligence and a general verdict in favor of a defendant are not inconsistent, I do not agree that such is true in the case before us. Under some factual conditions, including the one here, the general verdict for defendant and the special verdict for plaintiff would be inconsistent.

The trial court filed a written memorandum of opinion when it granted plaintiff a new trial, and in that memorandum, the court made several findings of fact, among which was an express finding that plaintiff was already in the intersection when he saw defendant approaching on 12th Street. Unless the record fails to support the trial court’s finding, I believe a reviewing court is required to accept it. Here we cannot say that the record fails to support the trial court’s finding, since the record on appeal does not include the testimony of the witnesses at trial (only the testimony of the rebuttal witnesses). The majority opinion states that there was “no definitive evidence” as to who approached the intersection first — an observation that cannot be substantiated on the basis of the incomplete record before this court. We are, of course, required to presume that the omitted evidence was sufficient to support the decision of the trial court. (Flynn v. Vancil (1968), 41 Ill. 2d 236, 242 N.E.2d 237.) I cannot agree with the majority that the trial court should be reversed on the theory that the unknown evidence must not have supported the trial court.

Under the Illinois Vehicle Code, defendant was required to yield the right-of-way to a vehicle on her right approaching the intersection at approximately the same time (Ill. Rev. Stat. 1975, ch. 95V2, par. 11 — 901), and defendant was also required to reduce speed to avoid colliding with a vehicle which had entered the intersection ahead of her vehicle (Ill. Rev. Stat. 1975, ch. 951/2, par. 11 — 601(a)). Presuming, as a reviewing court must, that here the plaintiff was in the intersection either at the same time or in advance of the defendant, then defendant must have violated one of those provisions of the Illinois Vehicle Code and must have been guilty of some degree of negligence.

I am convinced that defendant has failed to meet her burden of showing that the trial court abused its discretion in granting plaintiff a new trial, and therefore, I would affirm.


author: JUSTICE STOUDER

text:
    WARREN LATHROP, Plaintiff-Appellee, v. GERALD L. TYRRELL, Defendant-Appellant.
    Third District
    No. 3—84—0313
    Opinion filed November 30, 1984.

      Bernard C. Gillman, of Rock Island, for appellant.
    James E. Whitmire, Jr., of McGehee, Boling, Whitmire & Olson, Ltd., of Silvis, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant-appellant, Gerald Tyrrell, appeals from the trial court’s judgment awarding plaintiff-appellee, Warren Lathrop, $7,000 plus costs. Upon payment of the judgment and costs, Lathrop was ordered to return the purchased items to Tyrrell. For the following reasons, we affirm this decision.

The facts of this case may be briefly summarized as follows. Lathrop purchased a complete satellite receiving system from Tyrrell for $7,000. During the 11-month period following this sale and installation the system did not properly function for various reasons. After repeated attempts by Tyrrell to cure the defects in the system, Lathrop finally sent Tyrrell a letter revoking acceptance of the system and filed suit.

On appeal, we are asked to determine whether the trial court’s decision is against the manifest weight of the evidence. Tyrrell contends there was no breach of any warranty given, and the alleged nonconformity of the satellite receiving system did not substantially impair its value. Lathrop urges violation of an express warranty and of the implied warranties of merchantability and fitness for a particular purpose. While we believe there is evidence supporting the claim of violation of each of the warranties, we will only discuss the latter.

Section 2 — 315 of the Illinois Commercial Code states:

“Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.” (Ill. Rev. Stat. 1981, ch. 26, par. 2-315.)

Breach of an implied warranty of fitness for a particular purpose gives rise to a right to revoke acceptance under the provisions of section 2 — 608 of the Code. (Ill. Rev. Stat. 1981, ch. 26, par. 2 — 608.) In order for the right to revoke acceptance to arise, defects must exist as “substantially impair the value” of the item purchased. (Stamm v. Wilder Travel Trailers (1976), 44 Ill. App. 3d 530, 358 N.E.2d 382.) Once a person’s faith is shaken in a major investment, the item not only loses its real value in the buyer’s eyes, but also becomes an artide whose integrity has been substantially impaired and whose operation is fraught with apprehension. Overland Bond & Investment Corp. v. Howard (1972), 9 Ill. App. 3d 348, 292 N.E.2d 168.

In the present case, Tyrrell knew of the particular purpose for which the system was required by Lathrop. Knowing this, and knowing that Lathrop was relying on Tyrrell’s skill and judgment in selecting a suitable satellite receiving system for him, an implied warranty arose as a matter of law. The evidence discloses that the system was operational for only 44 days during a 340-day period prior to Lathrop’s revocation of his acceptance of the system. The defective condition of this system for such a sustained period of time discloses a breach of the implied warranty of fitness for a particular purpose. Furthermore, from the facts of this case, it is not against the manifest weight of the evidence to find that Lathrop’s faith in the satellite receiving system was shaken and that its value to him was substantially impaired. Lathrop, therefore, properly revoked his acceptance of the system. For these reasons, the judgment of the circuit court of Rock Island is affirmed.

Affirmed.

HEIPLE and SCOTT, JJ., concur.


author: JUSTICE BARRY

text:
    SCOTT J. NEIKIRK, Plaintiff-Appellant, v. CENTRAL ILLINOIS LIGHT COMPANY, Defendant-Appellee.
    Third District
    No. 3—84—0010
    Opinion filed November 28, 1984.

      Tim Swain, of Swain, Johnson & Card, of Peoria, for appellant.
    Franklin L. Renner, of O’Hern, Wombacher, Moon & Renner, of Peoria, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

On January 10, 1981, 25-year-old Scott J. Neikirk collided with a utility pole at the head of a “T” intersection in rural Tazewell County while riding a snowmobile, and he was thrown off his snowmobile onto another utility pole lying on the ground. Both poles were owned by Central Illinois Light Company (CILCO). Neikirk suffered a spinal fracture which has resulted in permanent paralysis from the mid-back down.

On October 4, 1983, some two years and 10 months after the accident, Neikirk filed a suit against CILCO seeking to recover $3,000,000 damages for his personal injuries. In counts I and II of the complaint, plaintiff Neikirk alleged that defendant CILCO violated regulations of the Illinois Commerce Commission in permitting an unlighted utility pole to be placed at the head of the “T” intersection, in failing to remove an abandoned utility pole from the ground, and in failing to comply with certain safety rules concerning installation and maintenance of electric and communication lines. Plaintiff asked for judgment pursuant to section 73 of the Illinois Public Utility Act (Ill. Rev. Stat 1983, ch. par. 77), which imposes liability for civil damages against public utilities for violation of any rules or regulations of the Illinois Commerce Commission. In addition to the counts seeking to recover for plaintiff’s personal injuries, plaintiff later amended his complaint by adding count III seeking $1,650 for property damage to his snowmobile, helmet and clothing; plaintiff also added two additional counts — one grounded in negligence and the other in product liability.

Defendant filed a motion for involuntary dismissal of all counts, and after a hearing, the trial court ruled that counts I, II, IV and V are barred by the two-year statute of limitations for personal injury actions (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 202). After dismissing those counts with prejudice, the court found, pursuant to Supreme Court Rule 304 (87 Ill. 2d R. 304), that there is no just reason for delaying appeal, and plaintiff then perfected this appeal.

Plaintiff’s primary contention on appeal is that his cause of action asserted is a statutory action which is governed by the five-year limitation period of section 13 — 205 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 205), rather than the two-year limitation under section 13 — 202. Section 13 — 202 provides:

“Actions for damages for an injury to the person, or for false imprisonment, or malicious prosecution, or for a statutory penalty, or for abduction, or for seduction, or for criminal conversation, except damages resulting from murder or the commission of a Class X felony and the perpetrator thereof is convicted of such crime, shall be commenced with 2 years next after the cause of action accrued.”

The section which plaintiff urges should apply is as follows:

“Par. 13 — 205. Except as provided in Section 2 — 725 of the ‘Uniform Commercial Code’ ***, and Section 11 — 13 of ‘The Illinois Public Aid Code’ ***, actions on unwritten contracts, expressed or implied, or on awards of arbitration, or to recover damages for an injury done to property, real or personal, or to recover the possession of personal property, or damages for the detention or conversion thereof, and all civil actions not otherwise provided for, shall be commenced within 5 years next after the cause of action accrued.” (Emphasis added.)

Plaintiff argues that his complaint alleges the type of statutory cause of action that was intended by the phrase “all civil actions not otherwise provided for” in section 13 — 205 and, therefore, that the catch-all five-year limitation applies to this action. Plaintiff relies upon such cases as Blakeslee’s Storage Warehouses, Inc. v. City of Chicago (1938), 369 Ill. 480, 17 N.E.2d 1, and People ex rel. Powles v. County of Alexander (1941), 310 Ill. App. 602, 35 N.E.2d 92, which held that an action to enforce liability resulting from a statute is “a civil action not otherwise provided for” within the meaning of the statute of limitation. However, these cases, and the other Illinois cases cited by plaintiff, are not cases where a plaintiff is suing for direct personal injuries, as is the case here. Contrariwise, the applicability of the two-year limitation is determined by the nature of the injury resulting to the plaintiff, and not the form of the action. (Hundt v. Burhans (1973), 13 Ill. App. 3d 415, 300 N.E.2d 318; Doerr v. Villate (1966), 74 Ill. App. 2d 332, 220 N.E.2d 767.) The fact that the alleged cause of action was statutory in origin does not remove plaintiff’s personal injury claim from the purview of section 13 — 202, and thus, the civil action here is provided for by a specific limitation provision.

This rule was reiterated by the Illinois Supreme Court in Mitchell v. White Motor Co. (1974), 58 Ill. 2d 159, 317 N.E.2d 505, where the five-year limitation now contained in section 13 — 205 was held applicable to an action for loss of consortium, rather than the two-year limitation of section 13 — 202, because the loss of consortium action is a consequential-damages action and does not involve direct physical injury to the plaintiff as is necessary to invoke the two-year limitation. Applying the rule of Mitchell and earlier Illinois cases, we hold that the two-year limitation does apply to bar plaintiff’s action to recover for the personal injuries he suffered.

Plaintiff also argues that justice and logic are somehow violated by a rule that bars his personal injury action but which does not bar his property damage claim arising out of the same accident. He urges this court to apply the principle of relation back to permit the same five-year limitation period for the personal injury claim as would govern the property damage claim, and he cites cases which have permitted amended pleadings to be filed after the limitation period has expired. We are persuaded that the legislature and courts of Illinois have long recognized the value of a shorter period of limitation for personal injury claims than for property damage claims, and we decline to depart from the well-established law of Illinois. Also, since two of the personal injury counts were filed first, there can hardly be a question of “relation back” in this instance.

Finally, plaintiff argues that he has been deprived of his constitutional rights to equal protection of law and due process because he was not given reasonably adequate notice of the period of limitation in which he could bring an action. Defendant points out that plaintiff did not raise these constitutional issues in the trial court and cannot raise them for the first time on appeal. We agree. We are also compelled to note that, in any event, we would not disturb the legislative determination that two years is a reasonable limitation for personal injury actions. That statutory provision serves the principles of fairness, the rights of investigation, and the opportunity to avoid stale or fraudulent claims. Further, we know of no precedent for plaintiff’s novel theory that every injured person should be given notice of whatever limitation periods may apply to any cause of action he might have. The creation of any such right to notice of limitations will have to originate in the halls of the State legislature, not from this court.

We conclude that the circuit court of Tazewell County ruled correctly in dismissing the personal injury counts of plaintiff’s complaint. We affirm the order of dismissal.

Affirmed.

HEIPLE and STOUDER, JJ., concur.


author: PRESIDING JUSTICE ALLOY JUSTICE BARRY,

text:
      In re MARRIAGE OF MAUREEN RIBORDY, Plaintiff-Appellant, and JAMES FRANCIS RIBORDY, Defendant-Appellee.
    Third District
    No. 3—84—0042
    Opinion filed November 29, 1984.

      BARRY, J., concurring in part and dissenting in part.
    Frank J. Black, of Black & Black, of Morris, for appellant.
    Gary A. Dobbs and Robert H. Adcock, both of Adcock & Dobbs, of Morris, for appellee.
   PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

The wife, Maureen Ribordy, appeals from a judgment of dissolution entered in the circuit court of Grundy County on December 21, 1983. Specifically, she contests the property distribution arrived at by the court, the failure of the court to award her maintenance, and the amount of attorney fees and court costs awarded to her.

As a preface to our examination of the issues raised by the wife, we will touch briefly on the relevant facts. The parties were married on February 17, 1962. Two children, a girl and a boy, were born of the marriage. They are now emancipated. The parties separated in 1974 and a judgment dissolving the marriage (grounds only) was entered on April 28, 1976. During the marriage, the husband was self-employed as a grain farmer, and the wife, at the husband’s request, did not work outside the home.

A review of the briefs filed by the parties and of the trial court’s written opinion reveals that all are in agreement that the wife’s future opportunities for the acquisition of capital assets and income appear bleak. She has a high school degree but was not employed outside the home, except for very brief periods, during the marriage. She now earns less than $8,000 annually gross. She has experienced recurring emotional difficulties, beginning at approximately the time the dissolution petition was filed, which have required numerous and lengthy hospitalizations. In contrast, the future opportunity for the acquisition of capital assets and income for the husband, who farms over 500 acres, appears to be good, though this is somewhat unpredictable due to the current uncertain status of American agriculture.

Further, the parties have apparently agreed to a substantial portion of the division of property, and the wife has raised no argument as to why that agreement must be vacated. Therefore, it appears that it is not now in dispute. As part of that agreement, the wife received 30 of the 70 acres owned by the parties, while the husband received the remaining 40. They agreed upon a value of $3,000 per acre for the 70 acres, and the husband agreed to pay the wife $15,000 for the additional five acres which he received. The wife’s 30 acres was encumbered by a $3,500 mortgage. It was further agreed that the husband had the right to farm the wife’s 30 acres for $130 per acre cash rent. Approximately $10,000 was owed on the land received by the husband. The parties stipulated this property division to be equal.

In its written opinion dividing the other marital property, the court indicated that the household items had long since been distributed in the interim between the parties’ separation in 1974 and the final dissolution of the marriage in 1983. The court further indicated that evidence as to the value of said property was insufficient for the court to reach a determination as to the value received by each party.

As to other property, the court divided the stock held by the parties equally, and, after an extended discussion of various farm assets, including equipment and crops, and debts, concluded that the husband should pay the wife $12,000 for her share in the cash on hand, harvested crops, growing crops, livestock, farming equipment, and machinery. The husband was then awarded all marital property related to the farming operation and associated debts. The wife was held responsible for debts pertaining to her family. The only maintenance which the wife was awarded was the cost of appropriate health insurance. The court further indicated that it was reserving the question of additional future maintenance because, in view of the disparate circumstances of the parties, such additional maintenance was likely to be required by the wife. Additionally, the husband was ordered to pay a portion of the wife’s attorney fees and litigation costs amounting to $7,677.09.

On appeal, the wife raises three issues: (1) whether the division of marital property was an abuse of judicial discretion; (2) whether the failure to award maintenance other than the cost of health insurance was an abuse of discretion; and (3) whether the court’s award of only $7,677.09 toward the $17,481.00 in attorney fees and court costs incurred by the wife constituted an abuse of discretion.

With respect to the property division question, we note initially that a significant portion of the division was by agreement of the parties and not in dispute here. With respect to the remaining property, the wife argues she received too small a share of the remaining marital property in view of her contribution as a homemaker and present ill health. We agree with the wife that, considering her contribution during the marriage, her present condition of ill health and her almost certain inability to acquire substantial assets through her own earning power, one might well expect that she would receive a larger portion of the marital assets than her husband. A thorough review of the record upon which the trial court’s opinion is based reveals that this is not the case. However, the trial court has broad discretion in these matters, and its decision will not be reversed absent an abuse of discretion. (In re Marriage of Rossi (1983), 113 Ill. App. 3d 55, 446 N.E.2d 1198; In re Marriage of Bentivenga (1982), 109 Ill. App. 3d 967, 441 N.E.2d 336.) Merely because, on these facts, this court might have reached a decision different from that reached by the trial court does not constitute adequate grounds for reversal." We do note, however, that the trial court did appear to place unnecessary emphasis on the fact that it was the husband who contributed most of the farm-related labor and upon the length of time that the parties had been apart prior to the final dissolution.

The second issue raised by the wife is whether the court erred in failing to award her maintenance other than the cost of health insurance. As we observed earlier, the court clearly appeared to anticipate that maintenance would be awarded later while at the same time declining to award it now.

In order for the court to award maintenance, it must find that the wife lacks sufficient property to meet her reasonable needs and is unable to support herself through appropriate employment. (Ill. Rev. Stat. 1983, ch. 40, par. 504(a).) From a review of the record it appears that the wife does lack sufficient property to meet her reasonable needs. On the other hand, she is employed, albeit in a low-paying and, according to her, unsatisfactory work situation.

In her brief, the wife argues that her standard of living has been drastically reduced while her former husband continues to enjoy a comfortable standard of living. According to the applicable statutory standard, however, need is the only factor to be considered in deciding whether to award maintenance. The standard of living is only considered once it is determined that maintenance is needed. (Ill. Rev. Stat. 1983, ch. 40, pars. 503(a) and (b).) Should the wife’s present employment terminate, it appears that she could anticipate an award of maintenance which would take into account such factors as the standard of living during the marriage and the emotional and physical condition of the parties.

As with the division of marital property, the determination as to an award of maintenance is within the discretion of the trial court and will not be disturbed on appeal unless there is an abuse of discretion or the determination is against the manifest weight of the evidence. (In re Marriage of Johnson (1982), 106 Ill. App. 3d 502, 436 N.E.2d 228; In re Marriage of Goldstein (1981), 97 Ill. App. 3d 1023, 423 N.E.2d 1201.) Although we note that the award of maintenance to an employed spouse has been upheld where the spouse’s earnings were inadequate (In re Marriage of Brenner (1981), 95 Ill. App. 3d 100, 419 N.E.2d 400; In re Marriage of Simmons (1980), 87 Ill. App. 3d 651, 409 N.E.2d 321), we decline to find an abuse of discretion on the part of the trial court. As indicated above, the mere fact that we might have reached a different result does not amount to an abuse of discretion.

Finally, we consider the amount of attorney fees awarded by the trial court. Here it appears that the wife, by the court’s order, would be required to pay approximately $10,000 of her own attorney fees, presumably out of the marital property awarded to her. We note, however, that the amount of her award for all farm-related property is only $12,000. Additionally, by agreement of the parties, the wife received $15,000 in payment for the additional five acres awarded to the husband. Aside from the rental payments she receives on the farm property, the wife has only her small income from which payment of her attorney fees could be taken.

Based on the clear disparity in the circumstances of the parties, the failure of the trial court to order the husband to pay all of the wife’s attorney fees constituted an abuse of discretion. (In re Marriage of Lovell (1981), 98 Ill. App. 3d 865, 424 N.E.2d 995.) We reach this conclusion based on the trial court’s observations concerning health problems and fragile financial status of the wife. Based on the facts adduced in the trial court’s written opinion, the husband is clearly capable of paying the full amount of the wife’s attorney fees while the wife is not. Although she does appear to have some funds, the attorney fees would cut almost in half the total amount of cash which she obtained from the marriage. Such an action would render her already insecure financial position, in view of her other difficulties, very vulnerable.

Accordingly, we find the refusal of the trial court to order the husband to pay the full amount of the wife’s attorney fees and costs to be an abuse of discretion. That portion of the order is, therefore, reversed, and the trial court is directed to enter an order requiring the husband to pay the full amount of the wife’s attorney fees and costs. All other portions of the order of the circuit court of Grundy County are hereby affirmed.

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

SCOTT, J., concurs.

JUSTICE BARRY,

concurring in part and dissenting in part:

While I concur generally with my colleagues’ determination that the trial court should be affirmed with respect to the division of marital property and the failure to award further maintenance at this time, I cannot entirely agree with the majority’s findings respecting attorney fees and costs, and I see no need to remand this case. The parties separated 10 years ago, and further litigation can only serve to confuse the question of who should pay fees and costs and in what amounts.

The issues inherent in the decision to award fees and costs in this case required a determination of the parties’ relative financial resources as well as a determination of a reasonable amount of fees and costs based on the necessity for the services and the nature and extent of counsel’s professional services in representing the wife’s interests. (In re Marriage of Dulyn (1980), 89 Ill. App. 3d 304, 422 N.E.2d 988; Ill. Rev. Stat. 1983, ch. 40, par. 508(a).) The record here supports the trial court’s conclusion that only a partial award of the wife’s fees should be granted. Although the trial court’s conclusion in this respect is somewhat unclear in its oral pronouncement of its decision, the partial award determination appears clearly in the written version of the court’s order, wherein the court states, “The husband is directed to pay *** $5000.00 *** to Maureen A Ribordy and Black and Black as and for part of wife’s attorneys’ fees; in addition, the husband shall pay to Maureen A. Ribordy and Black and Black *** the sum of *** $2677.09 *** for reimbursement of wife’s litigation costs.” (Emphasis added.) Contrary to the majority, I do not find that the evidence of the parties’ relative financial resources dictates a full, rather than partial, award. The trial court’s marital property division resulted in a fairly equitable distribution of assets. The husband’s financial position, all things considered, is not greatly disproportionate to the wife’s. I see no abuse of discretion in the trial court’s limiting the award of fees.

Next, although the reasonableness and necessity of attorney Black’s claimed fees and costs were disputed in the trial court, in my opinion the court’s order fails to adequately address these specific aspects of the wife’s attorney fees. The trial judge provided no clues as to how he computed the $5,000 fee award to be paid by the husband. Whether the court accepted the full amount claimed by the wife and her attorney, Mr. Black, as reasonable and necessary, or whether it presumed that some lesser amount would have been adequate cannot be gleaned from the record. Nonetheless, I find that the amount of the fee awarded is supportable, given the total financial resources and the proposed apportionment of the marital assets, and is within the range of the trial court’s discretion.

Attorney Black, testifying in support of the wife’s claim for fees and costs, explained that $168.84 of the total $2,677.09 of itemized costs and 22% hours of the total 316% chargeable hours expended on the wife’s case related to other matters, including a partition suit which was ultimately settled and dismissed. Attorney Black further testified that his firm had commenced its representation of the "wife in 1976, and that his hourly fees for both court and office time were limited to a flat $50 per hour charge with this in mind. Attorney Black’s basis for determining the flat rate was challenged in cross-examination, but no evidence was offered to directly contradict the reasonableness of the flat hourly fee arrangement. The trial court, in its oral pronouncement of the decision, stated that it had considered “the difference between court and office time,” but did not specifically determine that the flat fee charged in this case was unreasonable. Under the circumstances, and considering the complexity of this case, I find that $50 was a reasonable hourly charge for all necessary legal services.

In my opinion, the testimony and evidence of record will not support the wife’s claim for legal services relating to the partition suit. Certainly, the wife had the burden of establishing that such services were necessary to the dissolution action. Attorney Black during his testimony conceded that the 22% hours were not related to the dissolution action, and specified the dates and times included in his computation. Based on my review of the record on appeal I find that reasonable and necessary fees for Mr. Black’s services relating to the dissolution action are $14,500. On the basis of the evidence and testimony admitted at the hearing on attorney fees and costs, I would hold that there was no abuse of the trial court’s discretion with respect to a partial award of fees in the amount of $5,000 (discretion in awarding attorney fees will not be disturbed unless it is clearly abused (In re Marriage of Sipich (1980), 80 Ill. App. 3d 883, 891, 400 N.E.2d 696)), and I would reduce the amount of costs awarded to $2,508.25. The time for finality in this cause is long overdue. I would enter an appropriate order pursuant to Supreme Court Rule 366(a) (87 Ill. 2d R. 366(a)) to effectuate the decision on appeal.