author: JUSTICE JONES

text:
    HAROLD D. ADAMS et al., Petitioners-Appellees, v. BRIDGETT LYNN ADAMS et al., Defendants.—(KATHERINE ATCHLEY, Defendant-Appellant.)
    Fifth District
    No. 81-123
    Opinion filed January 8, 1982.

      James M. Martin, Mark R. Bahn, and John Malee, all of Martin, Bahn and Cervantes, of Columbia, for appellant.
    William F. Meehan, P. C., of Cairo, for appellees.
   JUSTICE JONES

delivered the opinion of the court:

Petitioners, Harold and Cynthia Adams, sought to adopt two minor children, Bridgett Lynn Adams and Tiffany Ann Adams. Defendants, Jimmy Lowery, the natural father of Bridgett Lynn Adams, and Gale Quick, the natural father of Tiffany Ann Adams, were served by publication but did not appear or otherwise defend. After a hearing the trial court found “by clear and convincing evidence” that the defendant Katherine Atchley, the natural mother of both children, was unfit for failure to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the children (Ill. Rev. Stat. 1979, ch. 40, par. 1501 (D)(b)). The trial court terminated the parental rights of the natural parents and, finding that adoption was in the best interests of the two minor children, entered a judgment granting the petition for adoption. The trial court having denied the natural mother’s post-trial motion to vacate the order terminating her parental rights and to conduct a rehearing or hear additional evidence, she now appeals raising three issues: (1) “whether the Statute employed by the Court is constitutionally permissible,” (2) “whether the Trial Court’s Order is against the manifest weight of the evidence,” and (3) “whether the Trial Court correctly applied Illinois Law,” which presents a conflict of laws question. In view of the fact that appellant raises the constitutional question and the conflict of laws question for the first time in this court, we deem those two issues waived and decline to consider them. We turn to the question of whether the trial court’s finding of unfitness was contrary to the manifest weight of the evidence.

The principal witnesses to testify at the unfitness hearing were Harold and Cynthia Adams, Katherine Atchley, and her sister, Marsha Kramer. Katherine Atchley is the daughter of Harold Adams. Cynthia Adams is her stepmother, her own mother having died in 1971. On April 12, 1973, at the age of 21, Katherine Atchley gave birth out of wedlock to Bridgett Lynn Adams. In December of 1973, when Bridgett was seven months old, Harold and Cynthia Adams took the child to live with them at the request of Katherine Atchley. On September 16, 1974, Katherine Atchley gave birth out of wedlock to Tiffany Ann Adams. When that child was about a month old, Harold and Cynthia Adams took her to live with them with the consent of Katherine Atchley. When Katherine was 24 she married John Atchley. That marriage, a childless one, ended in divorce three years later. The two children have lived with and have been cared for by the Adamses since their infancy.

Cynthia Adams testified that in December of 1973, while she and her husband were living in Florida, Katherine Atchley, who was living in St. Louis, Missouri, called them to say that she could not raise Bridgett and to ask if they would come and get the baby. The witness stated that “we asked her if it was money problems or we ask [sic] her if she’d come to Florida and live with us or what the problem was and she said just, said I can’t raise her.” Cynthia Adams testified that Katherine refused an offer of money and that, in response to an offer to live with the Adamses in Florida with her child, Katherine said that she “didn’t want to leave her friends.” The witness said that during the five years that she and her husband lived in Florida with Bridgett, Katherine did not see the child. She testified further that with respect to the second child, Tiffany Ann, Katherine’s sister, Marsha, who lived near Katherine, had called the Adamses to tell them that “Kathy had had her baby and that she had given it up.” The Adamses thereupon called Katherine, who told them she had an appointment “to go sign consent papers for the people to adopt Tiffany.” The Adamses asked her to consider letting them “bring Tiffany down to raise her with Bridgett and she said she would think about it and call us back.” Cynthia Adams stated that Katherine again gave as the reason for not wanting to come to live with the Adamses and, by now, her two children, that “[s]he didn’t want to leave her friends.” The witness testified that during the five-year period from 1973 to 1978 when they lived in Florida with, first, Bridgett and, then, Tiffany there was no contact between Katherine and the two children. The witness said that Katherine called the Adamses during this time but did not speak to or ask about the children. She stated that during the seven-year period in which they had, first, one and, then, both of the girls Katherine never offered any money for the support of the children and that the Adamses never refused any such offer from her.

Cynthia Adams said that in 1975 Katherine Atchley came to Florida with a girlfriend and told them the night she arrived that she had come to take the children. The Adamses met her that night at a McDonald’s restaurant near their home to discuss the matter. Katherine did not see the children during this one-day visit. Cynthia Adams testified that Katherine had said she was taking a trip and was on her way to Daytona Beach. The witness testified that in 1975 she took the children to St. Louis, Missouri, to the home of her stepdaughter, Marsha, Katherine Atchley’s sister. Cynthia Adams had asked Marsha to call Katherine, who lived about five miles away, to ask her to come to see the children while they were there. Katherine refused to come and sent no presents to the children. In 1977 Harold Adams asked Katherine to come to Florida. She did so but did not see the children at that time, because, as other testimony indicated, they were elsewhere with Cynthia Adams as the result of marital difficulties between the two. Moving from Florida in 1978, the Adamses lived in Olive Branch, Illinois, for a few months before moving to Cape Girardeau, Missouri. While they lived in Olive Branch, the witness said that Katherine Atchley did not call the children, write to them, ask to see them or inquire about their welfare.

As a result of a habeas corpus proceeding in which Katherine Atchley sought custody of the children, she received on October 24, 1978, visitation rights for the hours between 1 and 5 p.m. on alternate Saturdays and Sundays. Cynthia Adams testified that the visitation rights were in effect for “at least a year,” that the number of visits Katherine Atchley made to the children amounted to “[a]t the most, fifteen,” and that Katherine did not always use the entire period of visitation. During this time Katherine Atchley was living, according to the witness, “no more than ten miles” from the children in consequence of another move by the Adamses. The witness testified that she never discouraged visitation. The witness thought that in addition to visiting the children during this period Katherine Atchley had called Bridgett once.

Harold Adams testified that when Katherine came to Florida in 1975 he did not allow her to see the children on advice of his attorney. He said that he remembered her demanding the children once, during the one-day visit in 1975. He said that when he spoke with her while the Adamses lived in Florida with the children she did not, “to the best of [his] knowledge,” inquire about the children.

Katherine Atchley’s sister, Marsha Kramer, testified in behalf of the petitioners. She testified with respect to the circumstances under which Katherine Atchley had relinquished custody of the children to the Adamses. She said that she and Katherine had called Cynthia Adams “to come up and get Bridgett.” She stated that at that time Cynthia Adams offered to take Katherine Atchley into her home with Bridgett so that Katherine could raise the child but that Katherine declined the offer because “all her friends were up here” and she would not leave them. The witness testified that after Tiffany was born Katherine called her and said that “she had taken Tiffany back to the doctor [sic] that the doctor had a couple that wanted to adopt her and then he was going to keep her over night and give her enough time to decide if she wanted to do it for sure, and she was real upset and so I went down to where she was staying with a couple and she said that she couldn’t raise Bridgett, that she didn’t see how she could raise Tiffany, that she thought that was the best thing for Tiffany that this family would give her a good home and stuff.” The witness said that after learning that Katherine was going to put Tiffany up for adoption she called her father with the information and that he had asked whether she thought Katherine would let the Adamses take Tiffany and raise the two girls together. Asked, “Prior to the Adams coming to pick up Tiffany and bring her down to Florida, did you have any discussion with Katherine about what arrangements or agreements or understanding was between the Adams and Mrs. Atchley as to the custody of Tiffany?” the witness answered that she had “talked to Kathy to see if that’s what she wanted to do” and that “[s]he said that you know, I’ll let her go down, Tiffany go down to Florida if they’ll promise not to let me see her again.” The witness was not aware of any time when Katherine had seen the children during the five-year period the Adamses lived in Florida with Bridgett and the four-year period they lived there with Tiffany. She testified that the Adamses had not to her knowledge discouraged Katherine from seeing the children. Of the trip to St. Louis with the children that Cynthia Adams had referred to in her testimony, the witness said, “I called her and told her that Cindy was going to be there and asked if she would like to come see them? [Sic.] She said she couldn’t see them, because she couldn’t see them and just leave them so she wouldn’t come.” The witness stated that once Katherine had given her money to buy clothing for the girls and that once she had given her toys for the girls.

Testifying in her own behalf, Katherine Atchley denied that her father had offered her money when she called to have him take the infant Bridgett. She said that the understanding between her and her father at the time he took Bridgett to Florida was “[t]hat when I got on my feet that my child would be returned to me.” She said that she had, apparently once, mailed clothes to Bridgett in Florida and that she had made telephone calls “quite often”—how often she could not say—in order to “see how Bridgett was doing.” Of Tiffany she said that she could not raise the child at the time of her birth because, as was the situation with Bridgett, of her strained financial circumstances. Asked, “What sort of arrangements had you made with Cindy and your father concerning the care of Tiffany?” she answered, “That they were to come up and get Tiffany and take care of her until I could have some responsibility.” After Tiffany was taken to Florida in 1974 the witness began to work as a waitress at West County Famous Barr where she was still employed at the time of the hearing six years later. She said that she had sent a check for $100 to the Adamses shortly after Tiffany was taken to Florida but that the check was never cashed. She testified that in June of 1975 she went to Florida, without giving notice of her doing so to the Adamses, in order “[t]o get my children” and that her father advised her to speak with the Adamses’ attorney because they were trying to adopt the children. Asked whether the Adamses refused to let her see the girls, she answered, referred to the nighttime meeting at the McDonald’s restaurant, “Well I didn’t come right out and ask to see the girls, I just told them I was there to get the girls and a block from the house, I didn’t see why they didn’t bring them with them.” She said that after her trip to Florida in 1975 she called “quite often” to say “[tjhat I wanted my children.”

Katherine Atchley testified that she had provided support for the children after June of 1975, describing it as follows: “Well after the check was not cashed my sister had frequent contact and would go on vacation and visit my father and so I sent toys and I also sent money with her.” She said she had sent “$100.00 by my sister.” Of the visitation rights granted on October 24,1978, she said that she worked on Saturdays and that she had not visited on a few of the Sundays, explaining, “I did miss a few because of the weather, I wouldn’t take the girls out in bad weather.” She said she had missed visitation also because she “went over there a few times and they were not there.” The truth of this statement Cynthia Adams, testifying again, later denied. Asked if she had other contact with her children during this time, Katherine Atchley answered, “Probably.” She testified that she had asked to see the girls at other times and that “[a] lot of times I could see them, it wasn’t my day to visit.”

In a subsequent habeas corpus proceeding occasioned by a move by the Adamses to Illinois, Katherine Atchley obtained visitation rights, which she exercised. The distance between her residence and that of the Adamses after this move to Illinois was about 120 miles.

In its order terminating Katherine Atchley’s parental rights the trial court found specifically that

“Katherine Atchley voluntarily gave up custody of Bridgett Lynn Adams to Petitioner Harold D. Adams to be taken to Florida, on or about November 1973, when the child was seven months old, and from the time of this relinquishment of custody until almost five years later, Defendant Katherine Atchley never saw Bridgett Lynn Adams, spoke with her or maintained any personal contact with her. In addition, Defendant Katherine Atchley voluntarily relinquished custody of her daughter Tiffany Ann Adams to the Petitioners in October of 1974 to be taken to Florida, and that from the date of Defendant Katherine Atchley’s relinquishment of custody of Tiffany until after January of 1978, Defendant Katherine Atchley did not visit, speak with or maintain any personal contact with Tiffany Ann Adams. Furthermore, Defendant Katherine Atchley rejected, without any reasonable explanation, an offer extended to her by the Petitioners for her to move with her daughters into the Petitioner’s home in Florida. Finally, Defendant Katherine Atchley has failed to provide adequate support for either Bridgett Lynn Adams or Tiffany Ann Adams, and the conduct of Defendant Katherine Atchley on the whole has exhibited an unreasonable regard for the welfare of her daughters.”

As we said in Pyatt v. Pyatt (1980), 88 Ill. App. 3d 8, 19, 410 N.E.2d 241, 248,

“To justify termination of parental rights, the parent’s unfitness for the exercise of parental rights must be established not merely by a preponderance of the evidence but by clear and convincing evidence presented in strict compliance with the Adoption Act. [Citation.] It is axiomatic that a court of review may not disturb the findings of the trial court unless they are palpably against the manifest weight of the evidence. [Citation.] The opportunity of the trial court to observe the conduct and the demeanor of the parties while testifying is, of course, a vital factor in the evaluation of the correctness of the court’s determination.”

In the case at bar, insofar as the testimony of the witnesses was conflicting, and it was on numerous points which need not be reiterated, the trial court apparently resolved questions of credibility against the defendant Katherine Atchley. We do not question that determination, given the opportunity of the trial court to observe the demeanor of the witnesses as they testified. Defendant Atchley urged the trial court, and calls attention to this fact in her brief here, to evaluate her conduct “at the time of the filing of the Petition [which occurred on May 30, 1980] in determining the fitness of the mother.” We cannot agree that the period of time of conduct to be considered by the court should be so limited. In determining fitness a court must look not to the conduct of the parent during any single, isolated period of time but to the conduct of the parent over the entire period of time in question, that is, to the entirety of the parent’s conduct. Using this principle as a guide in our examination of the entire record on appeal, we cannot say that the trial court’s finding of unfitness was contrary to the manifest weight of the evidence.

Affirmed.

KASSERMAN and WELCH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WEBBER

license: Public Domain

text:
    CITIZENS FOR A BETTER ENVIRONMENT, Plaintiff-Appellant, v. ILLINOIS COMMERCE COMMISSION, Defendant-Appellee.—ILLINOIS POWER COMPANY, Plaintiff-Cross-Appellant, v. ILLINOIS COMMERCE COMMISSION, Defendant-Cross-Appellee.—AMERICAN STEEL FOUNDRIES, DIVISION OF AMSTED INDUSTRIES, INC., et al., Plaintiffs, v. ILLINOIS COMMERCE COMMISSION, Defendant-Appellee.—(ILLINOIS POWER COMPANY, Defendant-Appellee and Cross-Appellant.)—GEORGIA HAMPTON et al., Plaintiffs-Appellants, v. ILLINOIS COMMERCE COMMISSION et al., Defendants-Appellees.
    Fourth District
    No. 17086
    Opinion filed December 30,1981.

      Robert Goldsmith, of Citizens for a Better Environment, and Debra Senn and William J. Herrmann, both of Governor’s Office of Consumer Services, both of Chicago (Barbara J. Revak, of counsel), for appellant Citizens for a Better Environment.
    Susan B. Drake, of. Land of Lincoln Legal Assistance Foundation, Inc., of Champaign, and Jack'Ver Steegh, of Land of Lincoln Legal Assistance Foundation, Inc., of East St. Louis, for appellants Georgia Hampton et al.

    Schiff, Hardin & Waite, of Chicago, and Hatch, Blockman & McPheters, of Champaign (William T. Hart, Owen E. MacBride, and Lawrence R. Hatch, of counsel), for appellee Illinois Power Company.
    Tyrone C. Fahner, Attorney General, of Chicago (Hercules F. Bolos and J. Thomas Russell, Assistant Attorneys General, of counsel), for appellee Illinois Commerce Commission.
   JUSTICE WEBBER

delivered the opinion of the court:

This appeal lies from an order of the circuit court of Champaign County which affirmed an order of the Illinois Commerce Commission (Commission) granting a general increase in its gas and electric rates to Illinois Power Company (IPC).

Some brief background will be helpful in understanding the issue with which we are concerned. IPC filed a request for rate increases with the Commission on January 9, 1979. Hearings were held by the Commission, and various parties were permitted to intervene. Among these were the two groups of appellants here: (1) Georgia Hampton and six other low-income, elderly customers of IPC (Hampton), and (2) Citizens for a Better Environment (CBE), a state-wide consumer and environmental group, which has been active in Commission proceedings for a number of years.

The Commission granted the rate increase by an order issued November 28, 1979. Rehearing was denied by the Commission and appeals were taken to the circuit court of Champaign County by Hampton, CBE and certain other intervenors. IPC cross-appealed. On March 2, 1981, the circuit court entered its order affirming the Commission.

Meanwhile, during the pendency of the appeal in the circuit court, on August 8, 1980, IPC filed revised tariff sheets with the Commission. The Commission thereupon suspended the tariffs which are the subject of this appeal and entered into an investigation of the tariffs submitted August 8. About a year later, on July 1, 1981, the Commission issued its order “permanently cancelling and annulling” the tariffs under this appeal and directed IPC to place into effect the tariffs of August 8,1980, although at a lesser amount than IPC requested in those tariffs. Rehearing was denied by the Commission of its July 1,1981, order, and no appeal has been taken from that denial.

The order of the circuit court affirming the Commission was appealed to this court by Hampton and CBE; IPC cross-appealed. In October 1981, the Commission filed a motion in this court to dismiss the appeal on the ground of mootness, viz., the tariffs and rate increases granted by the Commission and affirmed by the circuit court had been entirely superseded by the new tariffs of July 1, 1981, which were not appealed, and therefore this court could grant no relief,

Responses were filed to the motion by Hampton and CBE, and we took oral argument on the motion only. We concluded that the appeal had become moot, but notwithstanding, the question of inclusion of construction work in progress (CWIP) in the rate base, as provided in the Commission’s order, was one of public importance, required authoritative guidance in the future for public officers, and was likely to recur. Under this exception to the mootness doctrine (People ex rel. Wallace v. Labrenz (1952), 411 Ill. 618, 104 N.E.2d 769), we denied the motion to dismiss.

While some peripheral issues have been raised in this appeal, the principal and only significant issue is the inclusion of CWIP in the rate base. IPC cross-appealed in the circuit court and in this court, alleging the failure of the Commission to determine fair value rate bases and using instead original cost. However, counsel for IPC has represented to the circuit court and to this court that if the order of the Commission is affirmed, IPC would not request reversal on that ground, and in effect would withdraw its cross-appeal. Since we do affirm, we will not concern ourselves with the cross-appeal. The cross-appeal was based on the decision in Union Electric Co. v. Illinois Commerce Com. (1979), 77 Ill. 2d 364, 396 N.E.2d 510, which was handed down on October 2,. 1979, very near the end of the Commission hearings in the instant case and was still in' the process of application for rehearing at the time of the Commission’s order.

The CWIP question arises in the instant case by reason of IPC’s request to include in its rate base $240,000,000 attributable to an atomic generating station which has been under construction near Clinton, Illinois, since 1975. The record demonstrates that at December 31, 1978, IPC had invested in this plant, known as Clinton Unit No. 1, some $443,000,000 which had been acquired for the most part through the sales of securities. Projections indicated that for construction during the period 1978-1982 over $1,450,000,000 would be required, of which about $1,230,000,000 would be raised through the sale of new securities. No date upon which the Clinton station would become operational was indicated, but it would appear to be several years away. Meanwhile, fresh infusions of cash would be needed. IPC’s position was that the servicing of such a large burden of securities which generated no cash earnings was damaging its financial condition and credit-worthiness, so that it would be more difficult to raise additional capital to complete the Clinton station.

IPC therefore requested that the $240 million mentioned above be included in its rate base. The Commission allowed $97 million.

Anterior to any discussion of CWIP as an element in a rate base, we may dispose quickly of a procedural point. The trial court struck from Hampton’s and CBE’s briefs before it any discussion of CWIP on the basis that the question had not been properly preserved as a matter of law in their petitions for rehearing before the Commission and therefore it could not be appealed under section 67 of the Public Utilities Act (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 71). However, the trial court did discuss the issue in the framework of manifest weight of the evidence. That section provides in part: “* 0 * No person or corporation in any appeal shall urge or rely upon any grounds not set forth in such application for a rehearing before the Commission.” We disagree with the trial court.

The components of a rate base must be determined from statutory and case law. Therefore, it is a legal, not a factual, question. Upon examination of the record, we find that Hampton properly raised the CWIP question as a legal issue. Her petition for rehearing reads in part:

“An allowance for CWIP for the Clinton plant is contrary to the rate making principle that the rate payer should pay for plant which is ‘used or useful’ in supplying electricity to the consumer.”

The “used or useful” language derives from section 36 of the Public Utilities Act (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 36). While we have some reservations about the application of section 36 to a CWIP question, nevertheless, the question is raised as one of law and all parties to the appeal were therefore on notice of its existence as such. CBE’s petition for rehearing raises the question in the posture of manifest weight of the evidence, a mixed question of law and fact. While not so strong as Hampton’s position, there is an easily seen parallelism between the two throughout the case, even though there has been no formal adoption of each other’s briefs. We therefore are of the opinion that the question has been adequately raised both in the trial court and in this court.

The Commission and IPC argue that if the question has been raised, it has not been passed on by the trial court which struck the matter at that level, and therefore the case must be remanded for findings by that court. We do not agree. The record in this case is almost stupefying in its size; over 8,000 pages of testimony before the Commission covering 56 days of hearings, together with an enormous number of exhibits. To require a trial court to reconsider the record and to make conclusions which would only return to this court which has already spent large amounts of time in digesting that record would be an extremely unwise use of judicial time and effort. The question has been adequately briefed here, and we see nothing to be gained by remandment. Compare Krasnow v. Bender (1979), 78 Ill. 2d 42, 47, 397 N.E.2d 1381.

Any discussion of the inclusion of CWIP in a rate base must begin with an examination of the pertinent statutes. Section 36 of the Public Utilities Act (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 36) states in part as follows:

“Whenever there shall be filed with the Commission any schedule stating an individual or joint rate or other charge * * * the Commission shall have power * * * to enter upon a hearing concerning the propriety of such rate or other charge * *“.**“ On such hearing, the Commission shall establish the rates or other charges* * * which it shall find to be just and reasonable. * * *.
Whenever the Commission is of the opinion and so finds after an examination of any report or reports, annual or otherwise, filed with the Commission by any public utility, together with any other facts or information which the Commission may acquire or receive from an investigation of the books, records or papers or from an inspection of the property of such public utility, that the net income of such public utility after reasonable deductions for depreciation and other proper and necessary reserves, is in excess of the amount required for a reasonable return upon the value of said public utility’s property used and useful in rendering its service to the public, and if the Commission is of the opinion and so finds in said cause that a hearing to determine all of the issues involved in a final determination of rates or services will require more than 120 days of elapsed time, the Commission shall have the power in cases of such emergency and it is hereby given authority to at once enter a temporary order, after notice to said public utility, fixing a temporary schedule of rates, which order shall be forthwith binding upon said public utility; * * (Emphasis added.)

Another pertinent statute is section 30 of the Public Utilities Act (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 30) which states:

“The Commission shall have power to ascertain the value of the property of every public utility in this State and every fact which in its judgment mayor does have any bearing on such value. In all proceedings before the Commission, initiated by the Commission upon its own motion, or initiated by an application of such public utility, in which the value of the property of any public utility or utilities is an issue, the burden of establishing such value shall be upon such public utility or utilities. In making such valuation the Commission may avail itself of any information, books, documents, or records in the possession of any officer, department or board of the State or any subdivision thereof. The Commission shall have power to make revaluation from time to time and also to ascertain the value of all new construction, extensions, and additions to the property of every public utility.”

It is to be noted that the foregoing statutes are neutral on the subject of CWIP. They neither specifically authorize its inclusion in a rate base, nor do they prohibit it. Both Hampton and CBE emphasize the concept of “used and useful,” arguing that the Clinton station is not being used nor can it be useful until it becomes operational.

As an aside, we note that the words “used and useful” appear in that portion of section 36 which deals with the imposition of temporary rates. The general legislative mandate to the Commission is contained in the preceding paragraph which directs that rates be “just and reasonable.” It therefore follows that the concept of “used and useful,” if it is to be applied to just and reasonable rates, can do so only by implication. However, this appears to be the almost universal practice. Nearly every order of the Commission in similar cases employs “used” or “useful” or some similar term. In the instant case a portion of the Commission’s order states:

“The Commission has long allowed property held for future use to be included in the rate base even though it was not expected to be put into use for some years. The Commission has also stated in other rate cases that CWIP may be as used and useful and to the benefit of the customer as property held for future use.”

The supreme court has also used language of the same character; for example, “Upon a review of the entire record, it is our conclusion that the rates approved by the commission provided a fair, just and reasonable return on the fair value of the company’s property used and useful in the public service.” Villages of Milford v. Illinois Commerce Com. (1960), 20 Ill. 2d 556, 567, 170 N.E.2d 576, 582.

In its generic sense, the phrase “used and useful” connotes that which is appropriate to the task and is customarily employed therein. In our opinion the general legislative purpose of the Public Utilities Act is to afford the Commission a wide discretion in its determinations. Therefore, the inquiry concerning “used and useful” should center upon how the utility will employ the property, not when.

Even if we were to adopt Hampton’s and CBE’s interpretation, we do not believe that a different result should ensue. We find analogy in two decisions by the Supreme Court of Oregon which dealt with the Oregon ad valorem taxing statute. In Willamette University v. State Tax Com. (1966), 245 Or. 342, 344, 422 P.2d 260, 261, the plaintiff was an exempt institution and the question was whether student housing under construction was entitled to exemption under the Oregon statute which provided exemption for “ ‘(1) 0 0 0 only such real or personal property or proportion thereof, as is actually and exclusively occupied or used in the literary, benevolent, charitable or scientific work carried on by such institutions.’ ”

The Oregon court exhaustively reviewed decisions from other jurisdictions and concluded:

“We are of the opinion that the better rule is found in the opinions of the courts which have carefully considered the issue and reached the conclusion that ‘actually occupied and used’ pertains to whether or not the premises are then being prepared to carry out purposes of the exempt charity and if they are they fall within the legislative intent.” 245 Or. 342, 349, 422 P.2d 260, 263-64.

The Willamette University decision was distinguished in Emanuel Lutheran Charity Board v. Department of Revenue (1972), 263 Or. 287, 502 P.2d 251. In that case the plaintiff, admittedly exempt under the statute, had purchased some vacant land but was making no immediate use of it. The court held that táx exemption statutes are to be construed strictly, but reasonably, and that something more than mere ownership, or even ownership with an intent to put the property to an exempt use in the future, was necessary to claim the exemption.

In the instant case it is undisputed that the Clinton station is owned by IPC and is being prepared to carry out the purposes of the utility, the generation and distribution of electric current. It is therefore actually being used, and is “used and useful” within the meaning of section 36.

Both IPC and the Commission claim that CWIP has been included in rate bases for more than 50 years, and Hampton and CBE do not seriously dispute this. However, they claim that with the current inflation, high interest rates and high costs of construction, all occurring since 1975, the problem is now much more acute than formerly.

Both sides appear to be factually correct. There is a sprinkling of cases involving CWIP decided by the Commission as long ago as 1920 (e.g., Re Peoples Power Co. (1920), P.U.R. 1920E, 710, 717-18; Re Interstate Water Co. (1922), P.U.R. 1922E, 246, 261; Illinois Commerce Com. v. Chicago Telephone Co. (1923), P.U.R. 1924A, 213, 229-30.) However, more significant amounts in terms of dollars have been appearing since 1975; e.g., Central Illinois Light Co. (1975), 8 P.U.R. 4th 617; Union Electric Co. (1976, Docket No. 59648); Illinois Bell Telephone Co. (1976), 13 P.U.R. 4th 482; Central Illinois Public Service Co. (1977), 18 P.U.R. 4th 682.

We do not mention these Commission cases as precedent, because they are not, but they do demonstrate the practices of the Commission itself in CWIP situations. These practices take on significance when they are coupled with legislative inaction. This principle has been enunciated several times by the supreme court in passing upon various provisions of the Public Utilities Act.

In Illinois Bell Telephone Co. v. Illinois Commerce Com. (1953), 414 Ill. 275, 111 N.E.2d 329, the court was considering the two-year period of repose provided by section 67 of the Public Utilities Act (Ill. Rev. Stat. 1951, ch. 111 2/3, par. 71). The Commission had made the same interpretation of this provision over a long period of years. The court said:

“The legislature is well aware of the rulings on this point, has revised the Public Utilities Act once and has amended it numerous times, without changing the language of the quoted sentence. Surely, if it would have intended the sentence to act as a limitation of jurisdiction of the administrative body and found that such limitation was being ignored by the tribunal created by it, the legislature would have amended the act in such a manner that its meaning be made clear.” 414 Ill. 275, 279, 111 N.E.2d 329, 332.

In two recent cases the court followed the same policy. In Radio Relay Corp. v. Illinois Commerce Com. (1977), 69 Ill. 2d 95, 370 N.E.2d 528, it had occasion to construe section 55 of the Public Utilities Act (Ill. Rev. Stat. 1975, ch. 111 2/3, par. 56) concerning the necessity of a certificate of public convenience and necessity when new equipment and facilities are extensions of existing ones. The Commission had for a long time interpreted that section to provide for exemption from the certificate requirements. There had been no legislative action during that period. The supreme court held that substantial weight should be accorded such a long-standing interpretation of a statute by the administrative body charged with its application.

Union Electric Co. v. Illinois Commerce Com. (1979), 77 Ill. 2d 364, 396 N.E.2d 510, presents yet another facet of legislative inaction. The Commission in an earlier day had used a fair-value method of valuation. However, it had drifted into an original-cost method. The supreme court had steadfastly held to fair-value. The Public Utilities Act had been amended and reenacted several times during the almost 60 years that conflict had endured. The court held that the construction it had placed on the Act had, in effect, become part of the Act.

Insofar as “used and useful” as discussed above is a predicate for inclusion, these words were first placed in section 36 in 1933; the section was amended in 1955,1961,1965,1976, and 1978; in no instance were the words altered or eliminated. A clearer case of legislative inaction would be difficult to find. In addition, two bills (H.B. 1152 and S.B. 424) were introduced into the 1980 legislative session. These bills would have specifically prohibited the inclusion of CWIP in a rate base. Neither bill was passed. During the 1981 legislative session five bills (H.B. 13, H.B. 1213, S.B. 479, S.B. 509 and S.B. 537) of similar import were introduced, and none was passed.

Furthermore, we know of no supreme court decision outlawing CWIP as an element in a rate base.

We conclude that the legislature has acquiesced in the decisions of the Committee, none of which have been upset by the supreme court on that ground. CWIP is properly included in a rate base.

All parties have cited to us a variety of CWIP cases, or purportedly analogous cases, from other jurisdictions. We do not find these particularly helpful since each State has its own version of a public utility act and with the variations of language, variations in results are inevitable.

One case deserves some comment. In Columbus Gas & Fuel Co. v. Public Utilities Com. (1934), 292 U.S. 398, 78 L. Ed. 1327, 54 S. Ct. 763, the Supreme Court dealt with the inclusion of certain leases of gas fields in a rate base. It held the procedure improper unless the time for using them was so near that they might be said to have the quality of working capital. The court pointed out that leases are often purchased for the purpose of stifling competition and might never be used, so inclusion would penalize ratepayers. Such is not the case here with a nuclear generating plant. It is being built only because it is needed and will be used in the future. Its prognosis is certain. In deciding Columbus Gas the court stated that working capital is not to be determined upon some rigid formula but must vary with the circumstances. This leaves a broad discretion to the utility commissions of the various States, unless their statutes, unlike Illinois, contain specific directions.

A number of derivative arguments merit short mention. Hampton claims that the CWIP method by which costs of construction are added to the rate base and thus are paid by the ratepayers should yield to the method used known as allowance for funds used during construction (AFUDC). Under the latter system of accounting construction funds are raised by the sale of securities and a portion of them (under a complex formula not pertinent here) are allocated to capital. Upon completion of the project the AFUDC is added to the rate base and recovered through depreciation and a larger base upon which to compute return requirements. The AFUDC method in the short run casts the principal burden of construction on the investors in the company, while the CWIP method places the onus on the ratepayers. Hampton argues that the Commission did not perform a balancing test between rate-payers and investors and by including CWIP in the rate base forced today’s ratepayers to finance utility service for those who will obtain it when the Clinton station becomes operational sometime in the future.

The argument has some appeal, but must fail when it is observed that the Commission allowed only $97 million CWIP out of $240 million asked, or about 40%. This, in itself, indicates a balancing of interests. The Commission is charged not only with protecting the interests of the ratepayers, but also with protecting the financial stability of the utility. There was much testimony that investors have become wary of utility securities when the issuer’s capital structure is overly heavy with AFUDC, as the testimony further showed to be the case with IPC. Even with the full $240 million in CWIP, if allowed by the Commission, the testimony was that IPC could barely maintain a minimal double A rating on its bonds.

While we feel that the Commission might have been more specific on the point, the totality of the evidence and its order demonstrates that it performed its proper function. We find one portion of the order appropriate:

“The exclusion of all CWIP from the rate base, from the evidence presented in this proceeding, could place the company in a financial position that could cause a further delay in the completion of Clinton Unit No. 1, and thus magnify extreme financial problems which have a direct adverse effect on ratepayers and investors alike.”

It is also argued that the Commission did not make the proper findings, particularly the basis for including $97 million of CWIP in the rate base. We do not agree. Camelot Ütilities, Inc. v. Illinois Commerce Com..(1977), 51 Ill. App. 3d 5, 365 N.E.2d 312, sets forth the necessary findings to be made and we find each of them in this record. The Commission also made the ultimate finding, viz., that CWIP may be included in the rate base. We discern no basis for the contention that it must also by specific findings demonstrate its mathematical calculations.

Hampton and CBE also contend that with the changes wrought by economic conditions since 1975, i.e., high costs and long periods needed for construction, the probabilities of mismanagement and cost overruns are magnified; and that the exclusion of CWIP from the rate base would be a disciplinary measure, providing an incentive to the utility to be prudent and to keep costs down. The record contains much evidence of cost overruns amounting to substantial sums of money, and of timetables extended often for substantial periods. IPC claims that none of this is its fault.

We are not impressed with IPC’s answer, but we do believe that the Commission’s action is appropriate. It has made a decision to monitor the Clinton station and the construction work there and will evaluate incentives for cost control.

The Commission is empowered to discipline a utility and it need not do so in a rate proceeding, but may take action independently. Supervision of service and supervision of rates may be separated. Village of Apple River v. Illinois Commerce Com. (1960), 18 Ill. 2d 518, 165 N.E.2d 329; City of Alton v. Illinois Commerce Com. (1960), 19 Ill. 2d 76, 165 N.E.2d 513.

Hampton and CBE have raised a number of technical objections: matching principle, consumer discount rate, intergenerational equities. In view of the moot nature of this appeal and our decision confirming the inclusion of CWIP in a rate base, we will not lengthen this opinion by extended discussion of these matters. Suffice it to say, th.ey all lay within the expertise of the Commission, and the record shows that they were considered.

For all the foregoing reasons, we find that inclusion of construction work in progress in the rate base of a utility is authorized under the Public Utilities Act, and the order of the circuit court of Champaign County is accordingly affirmed.

Affirmed.

GREEN, P. J., and LONDRIGAN, J., concur.


author: JUSTICE MILLS

text:
    DOROTHY MEHARRY, Ex’r of the Estate of John F. Meharry, Plaintiff-Appellee, v. MIDWESTERN GAS TRANSMISSION COMPANY, Defendant-Appellant.
    Fourth District
    No. 17298
    Opinion filed December 30, 1981.
    Charles C. Hall, of Young, Welsch, Young & Hall, of Danville, for appellant.
    Paul H. Vallandigham and Winkelmann & Winkelmann, both of Urbana, for appellee.
   JUSTICE MILLS

delivered the opinion of the court:

Arbitration is intended to be a swift and speedy method to resolve disputes.

But this case involved two arbitrations, two trips to the circuit court, and took .8 years and 7 months from the date of injury to the final judgment below! Although the wheels of justice admittedly grind exceedingly fine, this inexorable delay is a sad commentary.

However—we affirm.

On October 20,1977, plaintiff filed a complaint seeking damages for lost crops based on a right-of-way agreement entered into on May 21, 1959. The defendant (Company) moved to dismiss the complaint, alleging that its liability under the right-of-way agreement was restricted to crop damage and did not include damage to machinery, and that the dispute over damage to crops was subject to arbitration. Plaintiff filed objections to this motion to dismiss and, eventually, an application for stay of court action and for an order compelling arbitration. After some delay, the court proceedings were stayed and an order compelling arbitration was granted.

An arbitration hearing was finally held on July 16, 1980. At that hearing, evidence was presented that, subsequent to the Company’s installation of a gas pipeline across the plaintiff’s land, rocks began to appear on the surface of the land over the pipeline, although there had been no such problem with rocks prior to installation. The Company did not dispute this evidence.

Evidence presented at the hearing further showed that on October 20, 1972, at about dusk, while operating in a field of beans over the Company’s pipeline, the plaintiff’s combine was damaged by a rock. At the time of this mishap, there were approximately 20 acres of beans left to be combined. Testimony indicated that four of the 8 to 12 hours it would have taken to finish the harvest could have been completed that evening.

A mechanic was called to repair the combine, but the necessary parts were not available locally and the combine was not restored to working order for three days. The plaintiff attempted to locate a substitute combine but was unsuccessful. Due to wet conditions, the plaintiff was unable to harvest the remaining 20 acres of beans until January 1973. The yield in January was half of what it would have been in October.

The Company presented evidence of rainfall in Sidell, Illinois—a town about 12 to 14 miles from the Meharry farm: .03 inch on October 21, 1972; .38 inch on October 22; and .68 inch on October 23. The Company’s witness admitted that the rainfall on the Meharry farm could have been different from that in Sidell, and that the rain on October 22 and 23 might have been sufficient to keep the plaintiff out of the field for a couple of days.

The arbitrators found liability on the part of the Company and awarded the plaintiff $4,879.27. This figure represented $3,470 for lost crops, $124.84 for repairing the combine, and 6% interest on the award from the date of the injury. The $3,470 award for lost crops was arrived at by multiplying 440 bushels by $8.50 per bushel. These figures represent, respectively, the amount of the decrease in plaintiff’s yield and the average price of beans from January 1973 to June 1973.

The Company filed a motion to vacate and set aside the award, stating as the ground therefor that the arbitrators’ finding of liability was erroneously based on an inadmissible offer of settlement. The Company also objected to the method used to compute the value of lost crops and to the award of prejudgment interest. No objection was made to the award of damages for the combine.

The court found that the arbitrators had made a “gross mistake of fact” in premising the Company’s liability on its offer of settlement. The court also found that the arbitrators had exceeded their authority in awarding prejudgment interest. The court remanded the case to the arbitrators without further disturbing the award. The arbitrators were to state facts to support any further award they might make.

The arbitrators again found for the plaintiff. The damage award was the same, less prejudgment interest. The trial court confirmed this award over the Company’s objection that the arbitrators had not stated facts to support their conclusion and that the “form and substance of the revised award showed that the arbitrators merely repeated the mistakes they originally made and made no effort to reevaluate the case based on the record.”

The Company appeals, alleging numerous errors. We affirm.

I

The Company first asserts that there are no facts in the record to sustain the award. The parties seem to agree that the 1959 agreement binds them to arbitrate disputed damages to crops, fences, and timber resulting from the construction, maintenance, and operation of the Company’s pipeline. It is elementary that the object of arbitration is to avoid the formalities, delays, and expenses of litigation and that judicial review of an arbitrator’s decision is limited. (Seither & Cherry Co. v. Illinois Bank Building Corp. (1981), 95 Ill. App. 3d 191, 419 N.E.2d 940.) In accord is a long line of supreme court cases beginning with Merritt v. Merritt (1850), 11 Ill. 565, and continuing through Root v. Renwick (1854), 15 Ill. 461, Sherfy v. Graham (1874), 72 Ill. 158, White Star Mining Co. v. Hultberg (1906), 220 Ill. 578, 77 N.E. 327, Podolsky v. Raskin (1920), 294 Ill. 443, 128 N.E. 534, and Garver v. Ferguson (1979), 76 Ill. 2d 1, 389 N.E.2d 1181.

As the facts set forth above adequately support an award to the plaintiff, we need not reach the issue of the limits of our ability to disturb an arbitrator’s award.

II

It is usually held that the law requires only that an arbitrator announce his award, not that he state detailed reasons therefor. (Podolsky; Cohen v. Meyers (1969), 115 Ill. App. 2d 286, 253 N.E.2d 144.) However,, the “agreement of the parties fixes the conditions, limitations and restrictions to be observed by the arbitrator in making his award 0 * (Pillott v. Allstate Insurance Co. (1977), 48 Ill. App. 3d 1043, 1048, 363 N.E.2d 460, 464.) Thus, what the law does not require, the parties by their agreement may. The parties are in accord that the arbitrators were required to give a statement of facts. The Company’s second argument is that this duty was not fulfilled.

Construing the award to resolve doubts in favor of a finding of validity (Garver), it appears that the arbitrators did do all that was required of them. The award shows that they considered the facts and found that: (1) plaintiff’s combine picked up a rock and was damaged; (2) the laying of the pipeline caused the rock to come to- the surface; (3) the plaintiff was delayed in harvesting; (4) yields dropped; (5) the amount of the drop was 440 bushels; and (6) the value per bushel was $8.50. These findings—although not set forth in exhausting detail—adequately support a conclusion that the Company was liable, and we find no error.

III

The Company’s next contention is that the arbitrators’ award contains an error of law apparent on its face and that reversal is mandated. While the Company’s statement of the law is correct, we cannot agree that reversal is required in. this case. The Company’s argument is that the award shows that the arbitrators used the average price of beans from January to June 1973 in calculating damages. This is said to be an error of law and to be apparent on the face of the award.

Without expressing any opinion as to the propriety of the measure of damages, we decline to disturb the award. The older cases which state this exception to the rule of limited review of arbitration awards indicate that what was meant by error on the face of an award was an incorrect statement'of the law coupled with a manifestation to be bound by the law as stated. (White Star Mining Co. v. Hultberg (1906), 220 Ill. 578, 77 N.E. 327 (indicating that it is mistake, not mere error in judgment, which constitutes grounds for vacating an arbitrator’s award); Podolsky v. Raskin (1920), 294 Ill. 443, 128 N.E. 534 (also adopting the “mistaken” terminology); Sherfy v. Graham (1874), 72 Ill. 158 (speaking of “reforming” an award because of a mistake).) Garver v. Ferguson (1979), 76 Ill. 2d 1, 389 N.E.2d 1181, the recent supreme court pronouncement on the subject, reaffirms these old cases. As there is no mistake apparent here, we will not disturb the award.

IV

As to the next issue, the Company argues that the agreement to arbitrate does not include injury to a combine and that the arbitrators exceeded their authority in awarding such damages. The plaintiff argues, first, that the Company has waived the issue by failing to raise it below and, in the alternative, that a damage release executed by the Company modified and enlarged its liability under the original agreement. Because we find that the Company has waived any error, we need not reach the modification issue. This court held in Board of Education v. Champaign Education Association (1973), 15 Ill. App. 3d 335, 342, 304 N.E.2d 138, 143 (CEA), that “a timely objection to arbitrability preserves the right to challenge the award after participating in the arbitration proceedings.” However, the Company’s action here was insufficient to preserve the arbitration issue.

The Company did file a motion to dismiss the original Meharry complaint, contending that its liability, if any, was limited to damage to crops, fences, and timber—not to combines. However, no hearing was ever held on this motion and unlike the school district in CEA, the Company did not object at the outset and continue its objection throughout the arbitration proceedings. Nor did the Company raise the issue in either its motion to vacate the original award or the revised award. See Wilcox Co. v. Bouramas (1979), 73 Ill. App. 3d 1046, 392 N.E.2d 198, holding that failure to object in the trial court to denial of an opportunity to present evidence at the arbitration hearing waived the issue on appeal.

V

The Company cites no case law in support of its final argument— that the trial court should not have remanded to the same panel of arbitrators—and we are aware of none. Nor does the arbitration statute in effect when the parties entered into their agreement (Ill. Rev. Stat. 1959, ch. 10, pars. 1-12) provide any guidance in this matter. However, section 12 of the Uniform Arbitration Act (Ill. Rev. Stat. 1979, ch. 10, par. 112) does outline a procedure for resubmission of the case to arbitration after the original decision has been vacated. It provides:

“In vacating the award on grounds other than stated in clause (5) of subsection (a) [no arbitration agreement] the court may order a rehearing before new arbitrators chosen as provided in Section 3, or if the award is vacated on grounds set forth in clauses (3) [the arbitrators exceeded their powers] and (4) [the arbitrators refused to hear evidence] of subsection (a) the court may order a rehearing before the arbitrators who made the award or their successors appointed in accordance with Section 3.” Ill. Rev. Stat. 1979, ch. 10, par. 112(5) (c).

While the Uniform Act is not a part of the agreement in this case, Garver v. Ferguson (1979), 76 Ill. 2d 1, 389 N.E.2d 1181, indicates that as it relates to a court’s power to vacate an arbitration award, the Act is consistent with prior law. In the absence of authority, we will rely on section 12.

The original award was vacated because the trial judge found that the arbitrators had made a gross mistake of fact and had exceeded their powers. Even assuming that vacating the original award was proper (plaintiff does not contend otherwise), the grounds stated do not constitute fraud, corruption, partiality or undue means and section 12(c) does not require appointment of a new panel of arbitrators. The trial judge was thus acting within her authority in resubmitting the case to the same panel of arbitrators, and we will not intervene.

Affirmed.

LONDRIGAN and TRAPP, JJ., concur.


author: JUSTICE LONDRIGAN

text:
    THE PEOPLE ex rel. THE DEPARTMENT OF TRANSPORTATION, Plaintiff-Appellant, v. PAUL FANSLER, Defendant-Appellee and Third-Party Plaintiff.— (FLOYD FUNK, Third-Party Defendant.)
    Fourth District
    No. 17044
    Opinion filed January 8, 1982.

      Tyrone C. Fahner, Attorney General, of Chicago (Edward M. Kay, Assistant Attorney General, of counsel), for appellant.
    McDonald, Strickland & Clough, of Carrollton (Hugh A. Strickland, of counsel), for appellee.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

The Department of Transportation obtained an injunction ordering Fansler to remove portions of a levee that is on his farmland. In one section the levee forms an angle: one line extends northwest from the vertex and the other line goes west. Intending to order the removal of the northwest line, the trial judge instead entered an order mistakenly directing Fansler to remove the northeast line, which did not exist. Fansler leveled the west or lower line. Not wanting the landowner to bear the cost of his mistake, the court later ruled that Fansler had substantially complied with the terms of the injunction. The Department appeals this determination, and we reverse.

The Department argues that compliance with an injunction must be measured against the intent or purpose of the court’s order and that Fansler acted at his peril in removing the west line. Fansler responds that the Department should have noticed the court’s mistake when the order was entered and that the Department is now equitably estopped from complaining.

Following the literal terms of an injunction is not always enough; failure to comply may be found when one violates the purpose of an order though not its express terms. (West Disinfecting Co. v. Koppelman (1920), 216 Ill. App. 438.) In John B. Stetson Co. v. Stephen L. Stetson Co. (2d Cir. 1942), 128 F.2d 981, 983, the court said:

“In deciding whether an injunction has been violated it is proper to observe the objects for which the relief was granted and to find a breech of the decree in a violation of the spirit of the injunction, even though its strict letter may not have been disregarded. [Citations.]”

The purpose of the injunction in this case is clear on review and was clear to the parties and the court below. From the beginning of this dispute the Department has maintained that the levee causes flood waters from a nearby creek to flow onto neighboring farmland. In August 1976 the Department received a letter complaining about an embankment on land owned by Floyd Funk, Fansler’s predecessor in title, and told Funk to seek a permit (Ill. Rev. Stat. 1975, ch. 19, par. 70). The next month Funk applied for an “after the fact” permit for his levee. The Department informed Funk in February 1977 that it would not issue a permit unless he moved the levee back or breached it in several designated places. In March 1977 the Department told Fansler what it had told Funk the previous month; the Department had learned that Fansler was negotiating the purchase of this land from Funk. •

Fansler bought the land May 5, 1977; he did not respond to the Department’s requests in June and August of that year that he submit a list of proposed changes that would bring the levee into compliance.

In an order entered November 1, 1979, the trial judge directed Fansler to breach the levee in accordance with the Department’s plans, which sought the removal of the angle in question here as well as the landowner’s choice of one of two other sections. This order required the removal of both lines forming the angle.

The Department petitioned for a rule to show cause January 22,1980, charging that Fansler had not made the necessary breaks in the embankments. Three hearings followed; the court wanted more information about the need for the breaks that had been ordered in November. David R. Boyce, the Department’s chief flood-plain management engineer, attended the second of these hearings to answer the court’s questions; the court admitted testimony and affidavits at the third hearing, and Boyce testified then. We note that although the Department objected to the introduction of testimony and to the court’s intention to redetermine what had already been decided, this point is not raised on appeal; also, the Department submitted two affidavits of its own.

The information presented to the court showed that an embankment perpendicular to the flow of water is a greater impediment than one running parallel. The floodwaters here flow to the southwest. The northwest line from the apex of the angle involved here is nearly perpendicular to the creek’s flow; the west line, however, is more parallel—as we see from the exhibits, the west line is at roughly a 45-degree angle to the southwesterly flow.

In his appearances before the court Boyce explained that because the waters flow southwesterly, section A, which is the angle involved here, was an impediment to the flow and had to be removed. Boyce testified that section A is 1,400 feet long but that the portion of that section perpendicular to the flood flow is only 400 feet long. Asked about the effect of a levee near Fansler’s, Boyce explained that because it was parallel to the southwesterly flow of floodwaters it was not a significant obstruction. An affidavit submitted by Boyce iterated that embankments perpendicular to the flow of water are greater impediments than parallel ones.

In' a docket entry made May' 2, 1980, the trial court “modified, supplemented, and clarified” its earlier decree, ordering “that an opening-be made at location A, commencing at the apex of the levee at that point nearest the creek, then proceeding for a distance of 250 feet in a north easterly direction.” The court also ordered the defendant to remove another portion of the levee. The defendant was to make these changes as soon as the weather permitted.

After seven months of delay and two more hearings—during this time neither party called the court’s mistake to the court’s attention—the Department filed a motion December 29,1980, to determine compliance with an order dated August 15, 1980; the August 15 order had directed Fansler to breach the embankment “in substantial compliance” with the order of May 2, 1980, on or by October 15,1980.

The last hearing in the case was held January 16,1981. The trial judge acknowledged his mistake in directing the removal of the nonexistent northeast line and said that he had intended the northwest line. Although Fansler had breached the west line, the court found him in substantial compliance with the May 2 order, saying that the defendant should not have to bear the cost of the court’s mistake.

We conclude that Fansler was not in substantial compliance. In Pfeiffenberger v. Illinois Terminal R.R. Co. (1946), 329 Ill. App. 476, 481, 69 N.E.2d 355, 357, the court said:

“In determining whether there has been a breach or violation of an injunction, the decree or order for the injunction is to be construed with reference to the nature of the proceeding and the purpose of the injunction as shown by the pleadings and the relief prayed for.”

A review of the evidence and proceedings in this case shows why the trial court wanted the northwest rather than the west line of portion A removed; Fansler’s removal of the west line not only failed to conform to the literal and impossible terms of the order but also violated its spirit. When Fansler breached the levee he interpreted the court’s order at his own peril. In State ex rel. Jarboe v. Holt (Mo. 1969), 444 S.W.2d 857, 859, the court said:

“[W]hen a party is in doubt about what the Court intends his duties to be under an injunction order, and proceeds under his own construction, he does so at his peril.”

The court ordered Fansler and not the Department to breach the levee; if Fansler doubted the court’s instructions he should have sought clarification. Fansler argues that the Department is estopped from questioning his compliance with the order, however, because it did not notice the court’s mistake. Although public bodies are not immune from estoppel, the doctrine is applied much less readily against them than against private persons. (Kovacevic v. City of Chicago (1977), 47 Ill. App. 3d 674, 365 N.E.2d 104.) The general rule is that a public body will not be estopped unless it has induced the opponent’s acts by its own positive acts. (Hickey v. Illinois Central R.R. Co. (1966), 35 Ill. 2d 427, 220 N.E.2d 415.) Kovacevic found estoppel through inaction, however; there the city failed to record its 19-year-old interest in a piece of property and was held to be estopped from denying a building permit to the bona fide purchaser without notice. The city’s interest in the property was a commitment from a neighboring landowner that the parcel would be used for a parking lot. The court cited a State statute protecting bona fide purchasers and a city ordinance implicitly requiring that commitments for parking lots be recorded or registered.

In this case the Department did not mislead Fansler; also, the Department had no greater opportunity than Fansler to seek clarification of the court’s order. The Department’s silence, although passive negligence, did not contravene any law; the Department is not equitably estopped from questioning Fansler’s compliance with the injunction.

We therefore remand the cause so that the trial court may enter an order directing Fansler to remove the northwest line of portion A, beginning at the vertex of the angle and proceeding northwest 250 feet. This represents the order that the court intended to enter May 2, 1980.

Reversed and remanded.

GREEN, P. J., and WEBBER, J., concur.


author: JUSTICE WELCH

text:
    BRADLEY J. CAMPBELL, Plaintiff-Appellant, v. NORTHERN SIGNAL COMPANY et al., Defendants-Appellees.
    Fifth District
    No. 80-177
    Opinion filed December 29, 1981.

      John Dale Stobbs, of Stobbs and Sinclair, Ltd., of Alton, for appellant.
    Thomas O. Falb, of Reed, Armstrong, Gorman and Coffey, of Edwardsville, for appellee Evelyn Tiemann.
    Robert W. Schmieder, of Wagner, Bertrand, Bauman and Schmieder, of Belleville, for appellees Northern Signal Company and Jerseyville Farm and Home Supply Company.
   JUSTICE WELCH

delivered the opinion of the court:

This case arises from a unique gasoline explosion and fire which occurred on August 14, 1975. That day, Bradley Campbell and his brothers, Brian and Bill, were at the farm of their grandmother, Evelyn Tiemann, in Godfrey, Illinois. Mrs. Tiemann’s husband had passed away several months earlier and the Campbell boys, all of whom were then in their early to mid-teens, often assisted with farm chores. They were so engaged on the morning of August 14.

The Campbell boys had been instructed by their father to perform repair work on a livestock loading chute that day. To that effect, the three went to a large storage shed on the Tiemann farm to begin work. That shed, which was constructed of corrugated metal, was wired for electricity and was open on one side. When the Campbells arrived at the shed, they noticed a number of bumblebees flying in the area which they had selected as a work site. Bill and Brian could not identify the source of the bees, but Brad discovered that they were coming from a hole in the ground about 15 feet in front of the open side of the storage shed.

It was an established practice on the Tiemann farm to kill bumblebees by pouring gasoline on them. Observing this procedure, Brad filled a five-gallon plastic bucket three to four inches deep with gasoline from a container in the shed. He stepped over to the hole and began to pour the fluid. Almost instantaneously flames shot upward from the hole and engulfed Brad. He rolled in a nearby mud puddle to extinguish the fire on his body. Brian patted out the fire with a burlap sack, while Bill got a hose to use to spray Brad. Mrs. Campbell, who was in another nearby shed, came to Brad’s assistance after she heard the boys’ voices. Bill, Brian and Mrs. Campbell removed Brad’s shirt, shoes, and trousers and washed him with water from the hose. Mrs. Campbell gave Brad a pair of cut-offs to wear and then brought him to the office of the family’s physician.

The doctor recommended that Brad go to a hospital, so Mrs. Campbell took him to St. Joseph’s Hospital in Alton. There, he was given morphine and valium to relieve pain and he was transported to the burn treatment facilities at St. John’s Hospital in St. Louis. Brad was attended to by Nurse Cissy Condict at St. John’s. In her admitting notes, Nurse Condict reported that Brad told her that he had lit a match after pouring the gasoline and he came into the hospital in cut-offs because his long trousers were burned in the fire.

In 1976, suit was brought on Brad’s behalf in the Circuit Court of Madison County. It sought compensation for his injuries from Mrs. Tiemann and from Jerseyville Farm and Home Supply Co. and Northern Signal Co., seller and manufacturer, respectively, of an electric fence charger called the “Blitzer Stock Stopper” (Blitzer) in use at the Tiemann farm. Against each defendant, the plaintiff asserted two theories of liability. The first theory against all defendants was res ipsa loquitur, while the second theory was based on the premise that the fire was caused by a spark produced by the Blitzer. Defendant Tiemann was said to be negligent in not properly maintaining the Blitzer, and in permitting Brad to use gasoline without her supervision. The complaint also alleged that the Blitzer was unreasonably dangerous because it produced sparks and because the Blitzer contained no warning about this tendency. The second theory of liability against defendants Northern Signal and Jersey-ville Farm Supply was therefore in strict products liability.

The case proceeded to trial, which resulted in a jury verdict in favor of all three defendants. The plaintiff appeals and points to several rulings of the trial court which were alleged to have prejudiced him in the presentation of his case. The majority of his objections have to do with the admission of Nurse Condict’s testimony. Specifically, the plaintiff argues that his statement that he lit a match should not have been admitted, because of his physical and mental condition when he first spoke to Nurse Condict. It is claimed that even if that statement had been properly admitted at trial, he should have been allowed to counteract it by calling an expert witness to testify on the effects of morphine and valium, by introducing Brad’s long trousers to prove that they were not burned, contrary to Nurse Condict’s report, and by having several instructions given to cure the prejudicial impact of the statement to Nurse Condict.

Other trial errors are alleged by the plaintiff. He states that the defendants should not have been permitted to introduce certain electrical codes and he should have been allowed to produce evidence of fires which had been caused by other Northern Signal products. The plaintiff also contends that the defense attorneys made several improper comments during closing arguments and that the jury was not appropriately instructed.

Under our view of the trial, we need not consider plaintiff’s specific assignments of error. Even disregarding Nurse Condict’s report in its entirety, we cannot see that the evidence presented at trial establishes a prima facie case against any defendant under any theory of liability alleged by the plaintiff. Consequently, according to the standards of Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504, the trial court should have directed a verdict in favor of all defendants.

To begin with the res ipsa loquitur counts, it should be noted that that doctrine allows an inference of negligence in certain circumstances where the alleged instrument of injury was shown to have been in the exclusive control of the party said to be negligent. (Lynch v. Precision Machine Shop, Ltd. (1981), 100 Ill. App. 3d 771, 427 N.E.2d 176; Spidle v. Steward (1980), 79 Ill. 2d 1, 402 N.E.2d 216.) The undisputed evidence in this case shows that neither Mrs. Tiemann nor any servant of Northern Signal or Jerseyville Farm Supply was present on the farm at the time of the accident. The sole eyewitnesses to the fire were the plaintiff and his two brothers. As a practical matter, the fact that Mrs. Tiemann owned the farm or that the other defendants sold and manufactured the Blitzer does not give any defendant a significant measure of control over the Blitzer or any other claimed cause of the fire. Since the evidence at trial suggests an insufficient degree of control by these defendants over the alleged instrumentalities of injury, this case is inappropriate to permit an inference of their negligence by the use of res ipsa loquitur. Lynch v. Precision Machine Shop, Ltd.

The evidence at trial also fails to establish Mrs. Tiemann’s liability under those portions of the negligence count which aver that she did not supervise Brad in his use of the gasoline. This is because it was not shown that Mrs. Tiemann was under a duty to supervise Brad’s activities. The law in this State does not generally require a landowner to watch over minors who are invited onto their property (Bazos v. Chouinard (1981), 96 Ill. App. 3d 526, 421 N.E.2d 566; Bonamie v. Welsh (1981), 95 Ill. App. 3d 349, 420 N.E.2d 243), and the evidence presented in this case provides no reason to hold Mrs. Tiemann to a higher standard of care. In fact, the presence of Mrs. Campbell in the vicinity of the accident when it occurred acts to reduce the level of conduct expected from Mrs. Tiemann. As the court stated in Kay v. Ludwick (1967), 87 Ill. App. 2d 114, 119, 230 N.E.2d 494, 497, “the primary responsibility for the safety of this minor child rested with its mother. That responsibility can be shifted to the host only if it may be said that the host is at fault under some recognized theory of liability.” In other words, because Mrs. Campbell was on the farm, Mrs. Tiemann was not negligent for failing to supervise Brad, even though she could be liable for other acts or omissions. This, of course, brings us to the issues concerning the maintenance of the Blitzer and fence.

Under the remaining theories of liability against all defendants, the plaintiff must prove that the fire was caused by a spark produced by the Blitzer. That device operates according to fairly simple principles of electronics. The operator of the Blitzer must supply it with a 6-volt D.C. battery and must attach two wires to its terminals. One of these wires, the hot wire, is attached to the fence to be electrified. The hot wire should be insulated, as it was at the Tiemann farm. The second wire serves as a ground, and, according to Northern Signal literature, should be attached to a three-fourths inch diameter (or larger) galvanized pipe which should reach six feet underground.

When operating with a resistance of 500 ohms, which all expert witnesses agreed was a fair estimate for the average wire fence, the Blitzer would produce a voltage of approximately 10,000 volts for a duration of 1/4000 of a second. This pulse is produced about 50 times every minute. If an animal makes contact with the electrified fence, the current will run through its body, into the ground, and to the ground rod. This completes the circuit and shocks the animal.

The system will not work if the ground rod is not properly installed and connected, for then the circuit cannot be completed. Similarly, if conducting material makes contact both with the electrified fence and with the ground, the system will be shorted out and the fence will no longer shock animals which touch it. At the Tiemann farm, the fence was often shorted out by weeds or grass, or by dirt which the pigs pushed up against the fence. In fact, on the morning of August 14, the Campbell boys discovered that , the system had been shorted out, so they walked the length of the fence and removed the weeds and dirt which rested against the fence.

Four expert witnesses testified about the properties of the Blitzer, one on behalf of the plaintiff and three for the defendants. Three of these witnesses agreed that, under a 500-ohm resistance, the Blitzer would generate sufficient voltage to create a spark at a gap of up to one-fourth inch along the completed circuit. In other words, if an animal came within one-fourth inch of the electrified fence, or if a gap of less than one-fourth inch existed in the wiring of the system or along the fence, a spark could be produced. The fourth expert witness could not produce a spark over a gap of one-sixty-fourth inch, but it is difficult to tell from the record how the resistance was set up on the test that he performed.

At the Tiemann farm, the Blitzer was located inside the shed at its northeast corner, at the junction of the north wall and the open east side. It was placed slightly more than four feet above ground level. Both the insulated hot wire and the bare ground wire went around the northeast corner post, the hot wire leading 20 feet past the shed to the electrified fence, and the ground wire connecting to the ground rod on the north side of the shed. A direct line from either the fence or the ground connection to the bee hole would therefore pass through the north wall of the shed. That north wall did not touch the ground, but the several-inch gap between the ground and the bottom of the wall was usually obstructed by various materials which were stored in the shed.

Neither Mrs. Tiemann nor any member of the Campbells ever saw a spark produced by the Blitzer. The Campbells testified that they had seen sparks at intervals of up to one-fourth inch at the fence itself, although Mrs. Tiemann had not observed this phenomenon. Barbara Campbell and Mrs. Tiemann stated that they noticed nothing wrong with the ground wire, but Mr. Campbell and the boys remarked that the clamp which attached the ground rod to the ground wire was occasionally loose, and sparks had occurred when someone was close to the clamp. The three occurrence witnesses, Brad, Bill and Brian, stated that they did not notice any sparks from the Blitzer, its wires or the fence on the day of the accident.

All expert witnesses seemed to be in agreement about several general principles. The first of these is that gasoline fumes, being heavier than air, tend to stay close to the ground. The experts also stated that in order for combustion of gasoline fumes to occur, the ratio of those fumes to air must be between V¡í and 712:100, by volume.

The three expert witnesses introduced by the defendants were of the opinion that the Blitzer and fence assembly could not have been the cause of the fire. The plaintiffs expert, physics professor Frederick Zurheide, was of a contrary view. He baséd his conclusions, in part, on a test which he had performed with the Blitzer. Professor Zurheide filled a garbage can lid with gasoline and set up a completed circuit with the Blitzer in such a way that a one-fourth inch gap in the circuit was created about three inches above the gasoline. It was discovered that, under these conditions, the gasoline fumes could be ignited. Professor Zurheide performed a similar second test, in which the gasoline was poured onto the ground. Again, the fumes were ignited. No test was conducted in which a spark was created at a distance of greater than three inches from the gasoline.

Professor Zurheide was questioned extensively on his opinion that the Blitzer or fence could have ignited the gasoline fumes. He admitted that he did not examine other possible causes, such as defective wiring or other loose electrical connections in the shed. He also opined that had the Blitzer or fence caused the fire, a flame would follow the fumes from the Blitzer or fence back to the source of the fumes, namely the bucket and the bee hole. The flames would not emanate upwards from the hole.

When we distill all of the evidence presented at trial and view it most favorably to the plaintiff, we are still unable to conclude that the plaintiff has made a prima facie showing that the Blitzer assembly was the cause of the fire. Plaintiff’s sole expert, Professor Zurheide, responded to a hypothetical question by stating that “the explosion of gasoline fumes could have, and very likely would have been achieved by sparks created from the fence charger in operation.” But, this opinion is based on a series of assumptions, the probability of which was never established.

Not only must a gap of less than one-fourth inch have occurred somewhere in the system, but that gap must have been reached from the other side of the north shed wall, by gasoline fumes which constituted between llá and l)i% by volume of the air around the assumed spark. The fire must also have not been caused by other sources, such as the wiring in the shed, or from something inside the hole itself.

A plaintiff may prove his case by using circumstantial evidence, and that evidence need not both create a reasonable inference of the fact to be shown and also exclude all other possible inferences. (Illinois Bell Telephone Co. v. Purex Corp., Ltd. (1980), 90 Ill. App. 3d 690, 413 N.E.2d 106.) However, the expert testimony in this case accomplishes neither function. It is no more than speculation upon a number of conditions, the existence of which was largely left to guesswork. We cannot accept Professor Zurheide’s testimony as anything greater than what it purported to be—a statement that if conditions were right, the Blitzer or fence could have caused the fire.

Moreover, even if the physical setting envisioned by Professor Zurheide was shown to have more than a remote possibility, his testimony conflicts with the accounts of the accident given by the Campbell boys. According to Professor Zurheide, if a spark had ignited the gasoline fumes, the flames would have come from the direction of the spark and not from the hole. But, not only did none of the boys see a spark that day, they were also unequivocal in stating that the flames arose from the bee hole to engulf Brad. Thus, even disregarding the remoteness of the assumptions inherent in Professor Zurheide’s conclusions, it is apparent that the plaintiff has failed to present evidence of a theory consistent with eyewitness accounts of the fire.

Because the plaintiff has introduced no evidence to show that res ipsa loquitur applies to this case or that Mrs. Tiemann had a duty to supervise him in his use of gasoline, and because his evidence that the Blitzer and fence caused the fire was both highly speculative and internally inconsistent, we must conclude that the trial court should have directed verdicts in favor of all defendants. For that reason we affirm the judgment of the Circuit Court of Madison County.

Affirmed.

KARNS, P. J., and HARRISON, J., concur.


author: JUSTICE NASH

text:
    COUNTRY SERVICE & SUPPLY COMPANY, Plaintiff-Appellant, v. HARRIS TRUST & SAVINGS BANK, Trustee, et al., Defendants-Appellees.
    Second District
    No. 80-924
    Opinion filed December 28, 1981.
    Fred Wieszmann, of Northbrook, for appellant.
    Lewis W. Schlifkin, of Berman, Roberts and Kelly, of Chicago, for appellees.
   JUSTICE NASH

delivered the opinion of the court:

Plaintiff, Country Service & Supply Co. (Country Service), appeals from a summary judgment entered in favor of defendant, Harris Trust & Savings Bank, as trustee under Trust No. 33867 (Harris), dismissing plaintiff’s complaint to foreclose a mechanics’ lien against defendant’s property. Country Service contends that summary judgment was improperly granted because there existed genuine issues of material fact.

As disclosed by the pleadings, affidavits, exhibits and depositions on file the pertinent facts are as follows: In September 1973 Country Service entered into a subcontract with defendant-contractor, Andrew A. Malone & Co. (Malone), to perform certain excavation work on a project known as Knollwood Planned Development in Lake County. Under the contract its work was to be performed on a time and material basis whereby Country Service would be paid a fixed hourly rate for the rental of its excavation and grading machinery and operators. The Knollwood Planned Development was being constructed on land which included a tract then and now owned by defendant Harris which was then being purchased from Harris by Malone under a contract. (The contract was subsequently forfeited.) Country Service performed extensive excavation and earth work on the Knollwood project, much of which was carried out on areas which were subsequently conveyed out by the owners and are not the subject of this action. A substantial amount of the work was also performed on the tract owned by Harris and referred to by the parties as “Phase 3.” The work on Phase 3 consisted primarily of excavations to create waiter retention lakes and a roadway required by the village of Lake Zurich to permit development of the tract. From time to time between June 4,1974, and April 18,1975, as the work by Country Service progressed on Phase 3, the subcontractor, Malone, issued payout orders to it which were submitted, together with lien waivers and contractor’s affidavits executed by Country Service, to the lending agency, the Bank of Commerce and Industry of Chicago, for payment. Prior to April 18, 1975, plaintiff thus received total payments of $145,000 for work it had performed on Phase 3. When further payments for work performed were not forthcoming, however, Country Service perfected its mechanics’ lien by filing a claim for lien as to Phase 3 with the recorder of deeds of Lake County and on September 13, 1976, filed a complaint to foreclose its lien against that tract.

Harris answered the complaint admitting ownership of a portion of the premises improved by Country Service, but denied that any sums were due and owing to it. On August 4,1978, Harris moved for summary judgment alleging inter alia that payments to Country Service by the developers of Knollwood Planned Development for work performed by it were required by their agreements to be made through the Bank of Commerce and Industry in Chicago and that the limited phase of Country Service’s work which affected the Harris property consisted of the excavation of a lake and road designated as Phase 3 of the development project. It further alleged that from time to time during the work payments had been made to Country Service of sums totaling $145,000 for that work and that for each such payment Country Service had executed and delivered a lien waiver to the Bank of Commerce and Industry by which Country Service had released all claims for a mechanics’ lien for work performed prior to April 18, 1975, the daté of the last waiver of lien. The several lien waiver forms referred to were attached as exhibits to Harris’ motion.

In its motion for summary judgment Harris also acknowledged Country Service had performed some additional work on Phase 3 of the project after April 18 and attached as exhibits invoices and work tickets relating to that work. They described the work performed and totaled $1,184 which Harris tendered in court as full payment and satisfaction of Country Service’s claim for lien against its property.

Country Service’s response to Harris’ motion admitted it had presented lien waivers and received payments, but denied that the waivers were final; it asserted the waivers were only partial and were understood and intended by the parties to waive Country Service’s lien rights only to the extent of the sums actually paid to it from time to time. Country Service alleged it retained full lien rights to the balance of the contract sums as set forth on the last payout order in the sum of $117,751.20. Country Service’s response also agreed it had performed certain work after April 18,1975, but denied the amount set forth in Harris’ motion was the sum due to it.

Harris subsequently supplemented its motion for summary judgment with the affidavit of Richard P. Larsen, president of the Bank of Commerce and Industry, in which he stated the lien waivers were taken by it and intended to whive all lien rights to their dates and that payments would not have been made otherwise. Country Service thereupon also supplemented its response by the affidavit of Willis Clark, its president, stating the lien waivers in question had been executed by him or at his direction and that it was his intention they should be effective to waive plaintiff’s lien rights against Harris’ premises only to the extent of the sums received from time to time and to preserve the balance set forth on a statement of account noted on the payout orders accompanying the lien waivers. Clark also stated in his affidavit that it was customary in the building industry in Lake County to use such lien waiver forms to waive lien rights only to the extent of the amount actually received and that there remained an unpaid balance due Country Service of $121,467.70 for work performed by Country Service on Phase 3 of the project. Country Service also submitted affidavits by certain contractors doing business in Lake County, an officer of the Lake County Contractor’s Association and a title officer in the Lake County office of Chicago Title & Trust Company, each of which stated that the “lien waiver to date” form under consideration in this case is usually and customarily considered by contractors and subcontractors in Lake County to waive lien rights only to the extent of the money received by them to the date of the lien waiver and that all other lien rights are preserved. Harris responded with an affidavit by Andrew A. Malone, president of the contractor company, refuting the Willis Clark affidavit and stating the lien waivers were intended and so state that they waived Country Service’s lien rights to their respective dates.

The trial court found that by virtue of the lien waivers executed and delivered by Country Service that it was precluded as a matter of law from enforcing a mechanics’ lien against Phase 3 of the project for any work performed prior to the dates of the lien waivers and granted Harris’ motion for summary judgment.

The purpose of summary judgment proceedings is not to try an issue of fact,'but to determine whether one exists. (Econo Lease, Inc. v. Noffsinger (1976), 63 Ill. 2d 390, 393, 349 N.E.2d 1, 2.) Summary judgment shall be granted if the pleadings, admissions, depositions and affidavits, if any, show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law (Ill. Rev. Stat. 1979, ch. 110, par. 57; Erasmus v. Chicago Housing Authority (1980), 86 Ill. App. 3d 142, 144, 407 N.E.2d 1031, 1032-33), and if it is thus disclosed that a genuine issue of material facts does exist the motion should be denied. Dakovitz v. Arrow Road Construction Co. (1975), 26 Ill. App. 3d 56, 61, 324 N.E.2d 444, 448.

The lien waivers executed and delivered by Country Service from time to time in exchange for payments to it by the Bank of Commerce and Industry were all in essentially the same general form and language. Each document, except for one, was entitled “Waiver of Lien to Date”; and the exception was entitled “Partial Waiver of Lien.” They were each dated, directed to whom it may concern and stated that Country Service had been employed by the contractor, Malone, to furnish excavating work to Phase 3 of the Knollwood project. The lien waivers each further stated that in consideration of the respective sums specified in them, Country Services does:

“hereby waive and release any and all lien or claim or right of lien under the statutes of the State of Illinois, relating to mechanic’s liens, on the above described premises and improvements thereon, and on the monies or other considerations due or to become due from the owner on account of labor or services, material, fixtures or apparatus heretofore furnished to this date by [Country Service] for the above described premises.” (Emphasis added.)

Each waiver also stated at the bottom of the form “NOTE: all waivers must be for the full amount paid.”

Included as a part of each document upon which the lien waivers were printed was a contractor’s affidavit form which in each case was also executed by a representative of Country Service. It stated that Country Service was a contractor for work on Phase 3 of the Knollwood project and affirmed:

“that all waivers are true, correct and genuine and delivered unconditionally and that there is no claim either legal or equitable to defeat the validity of said waivers * 0 ° that there are no other contracts for said work outstanding, and that there is nothing due or to become due to any person for material, labor or other work of any kind done or to be done upon or in connection with said work * *

Also printed on the same document with the lien waiver and contractor’s affidavit was a “payout order” directed to The Bank of Commerce and Industry which was signed by the contractor and approved by the owner. It certified that. Country Service was entitled to the sums claimed for work done on Phase 3 of the Knollwood project. Each payout order also was signed by a representative of Country Service in a section designated “received payment in full.”

The payout orders also contained a section entitled “Statement of Account” in which the amount of the original contract, approved additions and deductions, net contract, previous payments, and this payment and balance were listed. The statement of account on the last payout order of April 18,1975, listed a balance of $117,751.20.

Country Service contends the trial court erred in determining as a matter of law that the waivers bar its claim for a mechanics’ lien for all work performed prior to April 18,1975, the date of the last “waiver of lien to date.” It asserts that it intended by the series of lien, waivers to only surrender its lien rights to the extent of the payments made to it and to preserve its right to a lien for work performed before those dates, but not yet billed. Country Service suggests that when the payout orders and lien waiver forms are read together they are ambiguous and extrinsic evidence of the parties’ intent and custom in the trade with respect to the documents may be considered to determine the scope of the lien waivers. Edward Hines Lumber Co. v. Dell Corp. (1977), 49 Ill. App. 3d 873, 884, 364 N.E.2d 368; Burgoyne v. Pyle (1931), 261 Ill. App. 356, 368.

It is well established that, absent ambiguity in the written terms of a contract, the language of the instrument provides the sole criteria of the intention of the parties. (Althoff Industries, Inc. v. Elgin Medical Center, Inc. (1981), 95 Ill. App. 3d 517, 520, 420 N.E.2d 800, 803.) Where its terms are plain and unambiguous, the intent of the parties must be ascertained solely from its language. (Western Illinois Oil Co. v. Thompson (1962), 26 Ill. 2d 287, 291, 186 N.E.2d 285, 287; Chicago Investment Corp. v. Dolins (1981), 93 Ill. App. 3d 971, 974-75, 418 N.E.2d 59, 62; Maloney v. Maloney (1980), 88 Ill. App. 3d 146, 148, 410 N.E.2d 416, 417.) Whether an ambiguity exists is a question of law to be initially determined by the court before any extrinsic evidence may be considered. Pioneer Trust & Savings Bank v. Lucky Stores, Inc. (1980), 91 Ill. App. 3d 573, 575, 414 N.E.2d 1152, 1154; see also Susmano v. Associated Internists of Chicago, Ltd. (1981), 97 Ill. App. 3d 215, 219, 422 N.E.2d 879, 882; Herbert Shaffer Associates, Inc. v. First National Bank (1975), 30 Ill. App. 3d 647, 653, 332 N.E.2d 703, 708.

We do not agree that the lien waivers executed by Country Service may realistically be considered ambiguous. Each of them states in clear, express language that they release and waive any mechanics’ lien or right to such lien against the subject premises due or to become due from the owner on account of labor, material or services heretofore furnished to this date by Country Service. Nor does reference to the separate form designated as a payout order lend weight to Country Service’s argument by limiting application of the lien waivers to the payment made when each was submitted. At most, the statement of account on the payout form simply provides a review of the status of the contract between Country Service and the contractor, Malone. It does not suggest that the designated “balance” was for work actually performed under the contract for which Country Service was then entitled to payment nor does it provide by its terms for a reservation of lien rights contrary to the express terms of the lien waivers. The construction urged by Country Service is unacceptable in light of the explicit terms of the lien waiver forms tendered by it for payment. Such construction would also be in conflict with the contractor’s affidavit submitted by plaintiff in which Country Service affirmed that the lien waivers were delivered unconditionally and there was nothing due or to become due to any persons for material or labor in connection with the work.

Country Service acknowledges in its brief that the lending agency, the Bank of Commerce and Industry, which accepted the lien waivers and made payment to Country Service, believed that the “balance” noted in the statement of account was the balance to complete the contract and not, as now suggested by Country Service, the balance then due to it. If that were the case it was incumbent upon Country Service to then reserve its lien rights by appropriate language in its waiver of lien. An innocent party has the right to rely upon a signed waiver of lien (Richard’s Lumber & Supply Co. v. National Bank (1975), 32 Ill. App. 3d 835, 336 N.E.2d 820), and no issue of fraud has been raised in this case. See Contract Builders Service Corp. v. Eland (1981), 101 Ill. App. 3d 366, 428 N.E.2d 178.

We conclude that when considered alone, or together with the accompanying contractor’s affidavit and payout forms, there is no apparent ambiguity in the terms of the lien waivers which would permit consideration of extrinsic evidence to vary those terms. There is therefore no basis for consideration of the conflicting affidavits submitted by the parties directed to their intent or custom in use of these lien waiver forms. The trial court correctly determined Harris was entitled to summary judgment as to the claims by Country Service prior to April 18, 1975. Compare St. Joseph Data Service, Inc. v. Thomas Jefferson Life Insurance Co. of America (1979), 73 Ill. App. 3d 935, 941, 393 N.E.2d 611, 616-17; Keep Productions, Inc. v. Arlington Park Towers Hotel Corp. (1977), 49 Ill. App. 3d 258, 263, 364 N.E.2d 939, 943.

We also find that the trial court was correct in entering summary judgment against Country Service for work performed after April 18, 1975. Harris attached work tickets and invoices as an exhibit to its motion which it asserted related to all work performed by Country Service on Phase 3 after that date. These demonstrated that $1,184 was due to Country Service for that period, and Harris tendered such sum in court with its motion. Country Service’s only response was a denial that was the correct sum due. Fredman v. Clore (1973), 13 Ill. App. 3d 903, 301 N.E.2d 7, aff'd in part 6- rev d in part on other grounds (1974), 59 Ill. 2d 20, 319 N.E.2d 18.

Accordingly, the judgment of the circuit court of Lake County will be affirmed.

Affirmed.

HOPF and LINDBERG, JJ., concur.