Opinion
No. 2-12-1013
07-24-2013
THE BOARD OF EDUCATION OF DURAND COMMUNITY UNIT SCHOOL DISTRICT NO. 322, Plaintiff-Appellee, v. THE BOARD OF EDUCATION OF THE CITY OF CHICAGO, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court
of Winnebago County.
No. 07-L-111
Honorable
J. Edward Prochaska,
Judge, Presiding.
JUSTICE delivered the judgment of the court.
Justices Hutchinson and Schostok concurred in the judgment.
ORDER
¶ 1 Held: (1) Defendant's argument that the trial court erred in awarding damages to plaintiff at a "residential" tuition rate when plaintiff did not provide housing to the students at issue was forfeited for failure to raise it below and was otherwise without merit; (2) the record supports the difference in the allocation of expenses between pupils designated as "day school" students and those designated as "residential" students; therefore, the trial court's award of damages is not against the manifest weight of the evidence; and (3) trial court was not required to draw a "negative inference" against plaintiff for its alleged failure to produce certain documentation related to special education costs. ¶ 2 Plaintiff, the Board of Education of Durand Community Unit School District No. 322 (District), filed an eight-count complaint in the circuit court of Winnebago County seeking reimbursement from defendant, the Board of Education of the City of Chicago (Board), for the cost of special education services provided to four students. At the time the services in question were rendered, each student was living within the District's attendance boundaries and attending the Dolan Education Center (Dolan), a school operated by the District, but each student's parent or guardian was residing within the Board's attendance boundaries. The parties filed opposing motions for summary judgment. The circuit court of Winnebago County granted the District's motion for summary judgment, denied the Board's motion, and awarded the District the sum of $250,802.35 as damages pursuant to section 14-7.01 of the School Code (105 ILCS 5/14-7.01 (West 2006) (governing reimbursement of the cost of educating children with disabilities who attend classes "in another district")). The Board appealed to this court, challenging the rulings of the trial court with respect to both liability and damages. In an order filed on November 16, 2010, we affirmed the judgment of the trial court granting summary judgment in favor of the District on the issue of liability. However, we reversed the judgment of the trial court with respect to the issue of damages and remanded the cause for further proceedings. See Board of Education of Durand Community School District No. 322 v. Board of Education of the City of Chicago, No. 2-09-0940 (November 16, 2010) (unpublished order under Supreme Court Rule 23). ¶ 3 Upon remand, the trial court held an evidentiary hearing on the issue of damages. Following that hearing, the trial court awarded damages to the District in the amount of $256,265 plus court costs. In this appeal, the Board urges reversal of the trial court's award of damages on three distinct grounds. First, the Board contends that the trial court erred in awarding damages to the District at a "residential" tuition rate because the District did not provide housing for the students at issue. Second, the Board argues that the trial court erred in "failing to draw a negative inference" against the District for its failure to produce certain documentation in support of its request for damages. Third, the Board argues that the record does not support the disparity in the allocation of expenses between "residential" students and other categories of students. We do not find any of the Board's arguments persuasive. Accordingly, we affirm.
¶ 4 I. BACKGROUND
¶ 5 A. Underlying Appeal
¶ 6 On March 20, 2007, the District filed an eight-count complaint seeking reimbursement from the Board for the cost of special education services provided to four students: Amanda N., Silina M., Alexandria V., and Valerie M. The complaint alleged as follows. At various times relevant, each student was living at the Maryville Farm Campus for Young Women (Maryville), a private residential treatment center for girls with mental illnesses. Maryville is located in Durand, Illinois, within the District's attendance boundaries. During each student's stay at Maryville, her parent or guardian resided within the Board's attendance boundaries. While each student resided at Maryville, the District provided her with education services at Dolan. The District sought payment from the Board for the cost of the services it provided, but the Board denied the requests. The District asserted, inter alia, that because each student's parent or guardian resided within the Board's attendance boundaries at the time the District provided special education services to the student, various provisions of the School Code (see 105 ILCS 5/1-1 et seq. (West 2006)) obligated the Board to reimburse the District for the cost of each student's education. ¶ 7 In May 2009, the parties filed cross-motions for summary judgment. See 735 ILCS 5/2-1005 (West 2008). Following a hearing, the trial court granted the District's motion for summary judgment and denied the Board's motion. After announcing its ruling, the trial court asked the parties to present argument on the issue of damages. The District informed the court that it would "stand as pled" on damages, relying in part on an affidavit from Mark Parent, the principal at Dolan, which was attached to its motion for summary judgment. The Board argued that the District failed to satisfy its evidentiary obligation on the issue of damages. The Board asserted that during his deposition, Parent indicated that it was not he, but rather an individual by the name of William Damon, who actually calculated the students' education costs. In light of the parties' arguments, the trial court decided to "set [the matter of damages] over for a proveup requiring some input from Mr. Damon." ¶ 8 Thereafter, the District filed affidavits from Damon, the District's business director, and Susan Miller, the business manager of the Winnebago County Special Education Cooperative (Cooperative) regarding the process used to calculate the cost for the four students at issue to attend a special education program at Dolan. The Board filed a response to the District's claim for damages. In its filing, the Board argued, among other things, that based on information obtained during a discovery deposition at which Damon testified, the District calculated, without reasonable explanation, that the cost of educating students in Dolan's "residential" program (i.e., students housed at Maryville) was, on average, $13,000 per year more than the cost of educating students in Dolan's "day school" program (i.e., students who were bussed between Dolan and their home school districts every day). The Board further asserted that the affidavits submitted by the District were conclusory and failed to provide the requisite evidentiary foundation to meet its burden of proving damages. Attached to the Board's response was the discovery deposition of Damon and the exhibits that had been appended to Damon's deposition. After considering the parties' positions, the trial court awarded damages to the District in the amount of $250,802.35 plus court costs. In so holding, the court determined that the affidavits of Damon and Miller satisfied the requirements of Illinois Supreme Court Rule 191 (eff. July 1, 2002). In addition, it rejected the Board's other objections on the basis that it did not present any evidentiary material in opposition to the affidavits of Damon and Miller. ¶ 9 The Board timely appealed the ruling of the trial court. This court affirmed that portion of the trial court's decision granting summary judgment to the District on the issue of liability. Board of Education of Durand Community School District No. 322, No. 2-09-0940 (November 16, 2010) (unpublished order under Supreme Court Rule 23). We concluded, however, that the trial court improperly ruled in the District's favor on the issue of damages, explaining:
"[The] Board asserts that it has raised sufficient questions regarding the propriety of damages to [the District] to preclude summary judgment on the issue of damages. We agree. For instance, [the] Board notes that students at Dolan were classified as either 'residential' or 'day school.' Students attending Maryville were considered 'residential' students and, for the 2005-06 school year, were charged $13,000 more than the 'day school' students. In his deposition, Damon stated that it was his 'understanding' that the reason for this disparity was that Maryville residents 'require a higher intensity level of services; they have greater needs.' As [the] Board points out, the forms [used to calculate special education costs] break down expenditures into various categories. However, the forms *** for 'residential' students and those for 'day school' students contain the same line items and do not reflect that the
'residential' students received a 'higher intensity level of services.' Therefore, we find that there remains a genuine issue of material fact as to the amount of [the District's] damages, and we remand this matter for an evidentiary hearing on the issue of damages." Board of Education of Durand Community School District No. 322 v. Board of Education of the City of Chicago, No. 2-09-0940, slip op. at 26-27 (unpublished order under Supreme Court Rule 23).
¶ 10 B. Evidentiary Hearing on Damages
¶ 11 At the April 30, 2012, evidentiary hearing on damages, the District presented evidence that calculating the tuition reimbursement for the students at issue involves the preparation of three forms developed by the Illinois State Board of Education (ISBE): Form 50-66A (entitled "Special Education Tuition Cost Sheet"), Form 50-66B (entitled "Special Education Documentation Sheet"), and Form 50-66C (entitled "Special Education Tuition Bill and Claim Computation"). Regarding the process used to prepare these forms, the District presented the testimony of four witnesses: Miller, Damon, Mary Nimmer, and Parent.
¶ 12 1. Miller's Testimony Regarding Form 50-66B
¶ 13 Miller testified that she is the business manager for the Cooperative and has been so employed since May 2007. Prior to that, from October 1990 until May 2007, Miller was employed as the Cooperative's bookkeeper. Miller testified that her responsibilities as bookkeeper and business manager have been essentially the same, with the exception that as business manager, she is no longer involved with the Cooperative's payroll and purchasing. Miller testified that the District is one of nine school districts that is a party to a joint agreement through which the Cooperative provides member school districts support with respect to special education services, such as speech pathologists, psychologists, social workers, and physical therapists. ¶ 14 As bookkeeper and business manager of the Cooperative, Miller is involved in the process of preparing forms for special education programs operated by the Cooperative's member school districts. Miller testified that she has been trained by the ISBE in preparing these forms and that she uses ISBE rules, regulations, and procedures in doing so. Moreover, Miller testified that she annually trains all business personnel within the Cooperative's member districts regarding the preparation of these forms pursuant to ISBE rules, regulations, and procedures. ¶ 15 Miller explained that calculating the tuition for the special education program operated at Dolan involves completing Forms 50-66A, 50-66B, and 50-66C. Miller testified that she initially completes Form 50-66B and provides it to the District. Someone at Dolan then uses Form 50-66B to complete Form 50-66A. Once Form 50-66A is completed, it is sent to Miller. Miller then uses Form 50-66A to complete Form 50-66C, which she sends to Dolan for use in tuition billing. ¶ 16 Miller testified that Form 50-66B consists of two separate schedules, one relating to "personnel documentation" and the other to "student documentation." Miller stated that she prepares the schedule relating to student documentation, but the schedule relating to personnel is "generated at the district." She stated that although the personnel documentation "ties into" Form 50-66A, she does not look at the personnel documentation schedule because "it's part of the costing process. It's part of the billing process." Thus, Miller limited her testimony regarding Form 50-66B to the student documentation schedule. ¶ 17 Miller testified that she prepares Form 50-66B by generating it from the "I-Point" system, an electronic system developed by the ISBE for use by school districts "to report students to the state board who are in a special education program of any type or receive any type of special education services." Form 50-66B displays the program in which special education students are enrolled, each student's resident district, the number of days that each student was enrolled in the program, and the program's average daily enrollment (ADE). Form 50-66B also indicates whether a student required an individual aide, contractual services, or special equipment that is not included in the general tuition cost. Miller noted, however, that an entry is made in the columns related to aides, contractual services, and special equipment only if the cost is attributable solely to a particular student. In other words, if the cost of an aide, contractual service, or piece of equipment is associated with all students, it is included in the program cost itself. When asked where she obtains the underlying data necessary to prepare Form 50-66B, Miller testified that, in regard to the four students at issue in this matter, she spoke with Mary Nimmer from Dolan to verify that the students' days of enrollment in the I-Point system matched Nimmer's records. ¶ 18 Miller stated that she prepares Form 50-66B for Dolan on an annual basis in the ordinary course of the Cooperative's business. In particular, Miller prepared Dolan's Form 50-66B for the 2005-06 school year on July 12, 2006, Dolan's Form 50-66B for the 2006-07 school year on July 19, 2007, and Dolan's Form 50-66B for the 2007-08 school year on July 30, 2008. These forms were admitted into evidence during the April 30, 2012, hearing as Plaintiff's Group Exhibit 1. ¶ 19 Miller testified that the Form 50-66B generated for the 2005-06 school year shows that out of a possible 174 days of enrollment in Dolan for that term, each of the four students was enrolled for 166 days. Miller further testified that the Form 50-66B generated for the 2006-07 school year shows that out of a possible 174 days of enrollment in Dolan for the 2006-07 school year, Valerie M. was enrolled for 163 days and Alexandria V. was enrolled for 154 days. Finally, Miller testified that the Form 50-66B generated for the 2007-08 school year shows that out of a possible 174 days of enrollment in Dolan for the 2007-08 school year, Valerie M. was enrolled for 125 days and Alexandria V. was enrolled for 167 days.
¶ 20 2. Damon's Testimony Regarding Form 50-66A
¶ 21 Damon testified that he is employed as the business director for the District and has been so employed since 1999. Damon testified that as business director for the District, he handles all business functions of the school district, including all accounting and financial reporting, and preparing and monitoring the budget. Damon stated that his responsibilities also include preparation of Form 50-66A for the Dolan special education program and that he prepared this form for the 2005-06, 2006-07, and 2007-08 school years. Damon testified that he annually receives training regarding the preparation of Form 50-66A from the Cooperative and through other educational opportunities at annual conferences, and that he has annually reviewed the special education pupil reimbursement fiscal procedures published by ISBE. Damon testified that he creates Form 50-66A as part of the District's regular business practices. ¶ 22 Damon testified that Form 50-66A consists of various sections, including those entitled "Special Education Data," "Regular Education Data," "Expenditures," and "Receipts." Regarding the process he uses to prepare Form 50-66A, Damon testified that he first completes line one of the form which is part of the "Special Education Data" section. Line one references the total ADE for the program. Damon related that he obtains the program's ADE from Form 50-66B, which is supplied to him by the Cooperative. Damon then inputs the number of special education pupils enrolled in the program (line three of the "Special Education Data" section), a number which he also obtains from Form 50-66B. ¶ 23 Damon testified that the "Regular Education Data" section of Form 50-66A is not relevant to the Dolan program "because the information that is supplied there is used for an allocation of regular education costs to special education programs, but the program at Dolan is entirely 100 percent special ed." Nevertheless, Damon acknowledged that if a student at Dolan also takes a class at the local public high school, "it would not be 100 percent special ed" for that student and the tuition cost would be lower. ¶ 24 Damon testified that he completes the next section of Form 50-66A, entitled "Expenditures," based upon information that he extracts from Dolan financial and budget reports (which were admitted into evidence as part of Plaintiff's Group Exhibit 7). Form 50-66A lists various categories of expenditures, including instruction, health services, office of principal, support services, and "other" expenses. Damon stated that the "other" expenses category encompasses a variety of costs, such as transportation, cafeteria services, and services provided by the Cooperative. Damon then completes the "Receipts" section of Form 50-66A. Damon derives this information from an annual claim he files with the ISBE for reimbursement for special education personnel (which were admitted into evidence as Plaintiff's Group Exhibit 8). Damon explained that once the ISBE claim is finalized, he is able to allocate the portion of the total claim for Durand, extract the part of it that is specific to Dolan personnel, and "subtract that information from the gross expenses or the total expenditures to come down with a net expenditure amount that then gets allocated per student." ¶ 25 Damon testified that he prepared three Forms 50-66A for Dolan for the 2005-06 school year in July of 2006: one for Dolan's "residential" program, one for Dolan's "day school" program, and one labeled as Dolan's "regular term" program. Damon testified that he prepared these forms in the ordinary course of business and they were admitted into evidence during the April 30, 2012, hearing as part of Plaintiff's Group Exhibit 7. Damon noted that Plaintiff's Group Exhibit 7 also includes "reports generated out of [the District's] budget or [its] financial statements that support the information on the [Forms] 50-66A." Similarly, Damon testified that in July 2007, he prepared three Forms 50-66A for Dolan for the 2006-07 school year and in July 2008, he prepared three Forms 50-66A for Dolan for the 2007-08 school year. The Forms 50-66A related to the 2006-07 school year, along with the budget from which the expenditures for the 2006-07 school year were identified, were admitted as Plaintiff's Group Exhibit 10, while the Forms 50-66A related to the 2007-08 school year, along with the budget from which the expenditures for the 2007-08 school year were identified, were admitted as Plaintiff's Group Exhibit 12. ¶ 26 Damon explained that there are three different Form 50-66A tuition cost sheets for each school year because the "regular term" sheet contains enrollment, expense, and revenue information for the entire Dolan program, i.e., both the "residential" and "day school" programs, whereas the other sheets respectively contain enrollment, expense, and revenue information for only the "residential" or "day school" students. Damon related that unlike "day school" students, who are bussed in on a daily basis between Dolan and their home school district, "residential" students live at Maryville. According to Damon, "residential" students require "more services than day school students, a higher intensity of services." Thus, with respect to the "residential" students, the tuition rates during the regular school year are higher than the rates of "day school" students. Damon testified, for instance, that for the 2005-06 school year, the established "residential" rate per student was $35,000 and the established "day school" rate per student was $21,727, a difference of more than $13,000. Similarly, Damon testified that for the 2006-07 school year, each student in Dolan's "residential" program was billed in excess of $8,000 more than each student in the "day school" program and that for the 2007-08 school year the cost of tuition for a student in Dolan's "residential" program was $16,000 more than the cost of tuition for a student in Dolan's "day school" program. Damon testified that Parent, the principal at Dolan, allocates the overall program costs between "residential" and "day school" students. Damon stated that he "accepted" Parent's allocation without examining any underlying data in support of it. ¶ 27 Following the regular school term, Dolan runs an "extended school year" (ESY) program. Damon noted that, with respect to the ESY program, he does not prepare different Forms 50-66A for the "residential" and "day school" programs because all of the students who attend the ESY program "have similar needs of the staff from a service level of intensity requirements." Thus, he prepared one Form 50-66A for Dolan for the 2006 ESY program in September of 2006. Damon prepared this form in the ordinary course of business, and it was admitted into evidence during the April 30, 2012, hearing, along with the budget from which the expenditures for the 2006 ESY program were identified, as Plaintiff's Group Exhibit 9. During questioning, the trial court noted that, with respect to the 2006 ESY program, the line item for costs related to the office of the principal is $225 higher on Form 50-66A than it is in the budget. Damon acknowledged the discrepancy, but was unable to explain it, other than to state that "[t]here may be something in [his] other files that would indicate there was another expense that got picked up." Damon also testified that in October 2007, he also prepared one Form 50-66A for Dolan's 2007 ESY program and in October 2008, he prepared one Form 50-66A for Dolan's 2008 ESY program. Both of these forms, along with the budgets from which the expenditures related thereto were identified, were admitted into evidence during the April 30, 2012, hearing as Plaintiff's Group Exhibit 11 and Plaintiff's Group Exhibit 13, respectively.
¶ 28 3. Testimony Regarding Form 50-66C
¶ 29 Miller testified that she prepares Form 50-66C by generating it from the I-Point system, but that before she generates Form 50-66C, she must input information from Form 50-66A, which she receives from the District. Miller further testified that Form 50-66C displays the school year that is involved, the student's name, the number of days that the student was enrolled for the particular tuition billing period, the program in which the student was enrolled, the district that is providing or preparing the particular tuition bill, the cost if the student had been enrolled in the program for every day of the school year (which she obtains from Form 50-66A), and the cost for the actual amount of days that the student was enrolled in said program. Once Miller generates Form 50-66C on the I-Point system, the District provides Form 50-66C to the student's home school district for tuition billing purposes. ¶ 30 Miller testified that she prepares Form 50-66C in the ordinary course of the Cooperative's regularly conducted business activities. Miller explained that each time a student enrolls at Dolan and then leaves, there is a separate enrollment period. Because each enrollment period requires a separate Form 50-66C, some students have multiple Forms 50-66C for each school term. On July 12, 2006, Miller prepared one Form 50-66C for the 2005-06 school year for each of the four students at issue. On July 19, 2007, Miller prepared three Forms 50-66C for the 2006-07 school year for Alexandria V. and two Forms 50-66C for the 2006-07 school year for Valerie M. On July 21, 2008, Miller also prepared two Forms 50-66C for the 2007-08 school year for Alexandria V. and four Forms 50-66C for the 2007-08 school year for Valerie M. These forms were admitted into evidence during the April 30, 2012, hearing as Plaintiff's Group Exhibit 3. Miller also prepared one Form 50-66C for Valerie M. for the 2007 ESY program on October 16, 2007, one Form 50-66C for Alexandria V. for the 2007 ESY program on October 16, 2007, and one Form 50-66C for Valerie M. for the 2008 ESY program on October 28, 2008. These forms were admitted into evidence during the April 30, 2012, hearing as pages four and five of Plaintiff's Group Exhibit 4 and Plaintiff's Group Exhibit 5. ¶ 31 Miller testified that an individual student's tuition is calculated by multiplying the cost of tuition for a full-time student for the entire school year by the individual student's ADE. The individual student's ADE is the number of days the student attended the program divided by the number of days in the school year. Thus, for instance, there were 174 days in the 2005-06 school year. Silina M. attended 166 of the 174 days, resulting in an ADE of 0.954 (166 divided by 174). The cost of tuition for a student in Dolan's "residential" program who attended the entire 2005-06 school year was $35,000 (as calculated on Form 50-66A). As a result, the special education cost of Silina M. for the 2005-06 school year is $33,390 ($35,000 multiplied by 0.954). ¶ 32 Damon testified that he prepared Forms 50-66C for Silina M., Alexandria V., and Valerie M. for the 2006 ESY program. Damon testified that he prepared these documents based on the budget sheets which come from the District's financial records, that they were prepared in the ordinary course of the District's business, and that he prepared them during September 2006. These forms were admitted into evidence during the April 30, 2012, hearing as pages one through three of Plaintiff's Group Exhibit 4. ¶ 33 As evidenced by the Forms 50-66C in Plaintiff's Group Exhibit 3 and Plaintiff's Group Exhibit 4, the District calculated the following amounts to educate the four students at issue for the school terms designated:
+----------------------------------------------------------------------------+ ¦ ¦ ¦DAYS ENROLLED /¦ ¦FULL -TIME ¦ ¦ ¦STUDENT ¦TERM ¦ ¦ ADE ¦ ¦ STUDENT COST ¦ ¦ ¦ ¦DAYS IN TERM ¦ ¦ COST ¦ ¦ +-------------+--------+----------------+------+-------------+---------------¦ ¦Silina M. ¦2005-06 ¦166/174 ¦0.954 ¦$35,000 ¦$33,390 ¦ +-------------+--------+----------------+------+-------------+---------------¦ ¦Amanda N. ¦2005-06 ¦166/174 ¦0.954 ¦$35,000 ¦$33,390 ¦ +-------------+--------+----------------+------+-------------+---------------¦ ¦Alexandria V.¦2005-06 ¦166/174 ¦0.954 ¦$35,000 ¦$33,390 ¦ +-------------+--------+----------------+------+-------------+---------------¦ ¦Valerie M. ¦2005-06 ¦166/174 ¦0.954 ¦$35,000 ¦$33,390 ¦ +-------------+--------+----------------+------+-------------+---------------¦ ¦Silina M. ¦2006 ESY¦26/26 ¦1.0 ¦$1,233 ¦$1,233 ¦ +-------------+--------+----------------+------+-------------+---------------¦ ¦Alexandria V.¦2006 ESY¦26/26 ¦1.0 ¦$1,233 ¦$1,233 ¦ +-------------+--------+----------------+------+-------------+---------------¦ ¦Valerie M. ¦2006 ESY¦26/26 ¦1.0 ¦$1,233 ¦$1,233 ¦ +-------------+--------+----------------+------+-------------+---------------¦ ¦Alexandria V.¦2006-07 ¦154/174 ¦0.883 ¦$32,300 ¦$28,521 ¦ +-------------+--------+----------------+------+-------------+---------------¦ ¦Valerie M. ¦2006-07 ¦163/174 ¦0.936 ¦$32,300 ¦$30,233 ¦ +-------------+--------+----------------+------+-------------+---------------¦ ¦Alexandria V.¦2007 ESY¦19/24 ¦0.791 ¦$1,282 ¦$1,014 ¦ +-------------+--------+----------------+------+-------------+---------------¦ ¦Valerie M. ¦2007 ESY¦24/24 ¦1.0 ¦$1,282 ¦$1,282 ¦ +----------------------------------------------------------------------------+
As noted by Miller, due to breaks in enrollment, multiple Forms 50-66C were prepared for certain students during certain terms. Where this is the case, the ADE listed in the table represents the sum of the ADE for that student on each separate Form 50-66C for the term. As a result, and due to rounding, the ADE listed in the table may not equate with the number of days enrolled divided by the number of days in the term.
Where multiple Forms 50-66C were prepared for a particular student due to a break in enrollment, the student cost represents the sum of the cost to educate that student for each period of enrollment as calculated on each separate Form 50-66C for that enrollment period.
As calculated on Form 50-66A for the designated term. For school-year terms (as opposed to ESY terms), full-time cost is based on the District's calculation to educate a student in Dolan's "residential" program.
+----------------------------------------------------+ ¦Alexandria V.¦2007-08 ¦167/174¦0.958¦$37,644¦$36,063¦ +-------------+--------+-------+-----+-------+-------¦ ¦Valerie M. ¦2007-08 ¦125/174¦0.716¦$37,644¦$26,953¦ +-------------+--------+-------+-----+-------+-------¦ ¦Valerie M. ¦2008 ESY¦12/24 ¦0.5 ¦$1,883 ¦$942 ¦ +----------------------------------------------------+ Thus, the total tuition calculated by the District as represented by the Forms 50-66C admitted into evidence for Silina M., Amanda N., Alexandria V., and Valerie M. is $262,267.
¶ 34 D. Testimony of Mary Nimmer
¶ 35 Also testifying on behalf of the District at the April 30, 2012, evidentiary hearing on damages was Mary Nimmer. Nimmer testified that she has been employed as an administrative assistant at Dolan since August 1988. Nimmer testified that her job responsibilities include handling student registration, entering student enrollment data into the Dolan database, maintaining student enrollment and attendance data, and preparing a "FACTS" sheet documenting student enrollment (which she forwards to the Cooperative). Nimmer explained that a student could be dropped from enrollment due to a change in educational placement by the student's individual educational team or due to a hospitalization for psychiatric treatment. Nimmer's practices related to changing a student's enrollment status were consistent during the 2005-06, 2006-07, and 2007-08 school years. Nimmer testified that Plaintiff's Group Exhibit 2 consisted of various documents containing enrollment and attendance data for the students at issue for the 2006, 2007, and 2008 ESY programs. Nimmer testified that she prepared these documents in the ordinary course of the business of the District, and they were admitted into evidence during the April 30, 2012, evidentiary hearing on damages. ¶ 36 Nimmer further testified that she is involved in efforts to collect tuition for students who attend Dolan in that she sends out installment letters estimating a student's tuition billing at the beginning of each school year and sends final tuition bills with actual tuition amounts during July or August following the school year. These actual tuition bills are based on figures provided by Miller and Damon. Nimmer followed this practice with regard to the four students at issue. However, she never received payment from the Board. During the April 30, 2012, evidentiary hearing, the Board stipulated to the fact that they received invoices for tuition reimbursement for the four students at issue and it has not paid any tuition. ¶ 37 Nimmer testified that the data used to complete Form 50-66B comes from the FACTS sheet she sends to the Cooperative. Nimmer testified, however, that she did not provide the FACTS sheets to the District's attorney. Nimmer explained that some students appear multiple times on Form 50-66B due to a break in enrollment. For instance, she noted that during the 2006-07 school year, both Valerie and Alexandria had a break in enrollment due to hospitalizations. During the hospitalizations, the students were not considered enrolled at Dolan. She also noted breaks in enrollment due to hospitalizations for Valerie and Alexandria during the 2007-08 school year. Nimmer pointed out that the Form 50-66B for the 2005-06 school year shows that none of the four students at issue had a break in enrollment.
¶ 38 E. Testimony of Mark Parent
¶ 39 Mark Parent testified that he has been employed by the District for 22 years as a special education teacher, a dean of students in a special education setting, and, most recently, as the principal at Dolan. Parent's responsibilities as principal include ensuring that the education of Dolan students is appropriate, evaluating and training staff, making recommendation to the board of education, overseeing building maintenance, and ensuring Dolan stays on a budget. Parent explained that students with learning disabilities or who are emotionally disturbed attend Dolan, which provides such students with a therapeutic, highly structured program in a small building with a low teacher-to-student ratio. Students also receive related services at Dolan, such as social and psychology services. ¶ 40 As principal, Parent was involved in apportioning tuition between Dolan students in the "residential" and "day school" programs during the 2005-06, 2006-07, and 2007-08 school years. In particular, Parent set up staffing for these students based on his experience at Dolan, data gained through a "point system" used to track student behavior, and his familiarity with individual students' needs. Parent stated that he was familiar with the needs of individual students based on a review of the student's records, interviews with the student and the student's relatives, and the type of interaction the student has upon first attending Dolan. Parent then informed Damon as to the types of needs and services that each category of student needed. ¶ 41 Parent explained that "residential" students traditionally have a higher need for supervision because they typically engage in aggressive behaviors towards themselves or others, which causes them to be five times more likely to be hospitalized or involved in juvenile corrections as compared to "day school" students. Parent further explained that "residential" students who engage in self-harming behaviors must be escorted around the building 100% of the time and they access personnel such as the dean of students, principal, school nurse, or social worker more frequently than other students. Parent related that when he recommends a "residential" tuition rate to Damon, he does so based on a "common sense formula," whereby a higher need dictates a higher rate. Parent opined that the "residential" rate "should be a little higher. It could be 10 percent. It could be 8 percent." He stated, however, that the exact rate difference varies from year to year. In Parent's opinion, and based upon his years of experience with special education at Dolan, it is appropriate to charge a different rate for "residential" and "day school" students. He explained:
"I think it's appropriate just because of the level of need that those students have to keep them safe and secure.¶ 42 On cross-examination, Parent testified that he never provided Damon a "hard figure" regarding the amount to charge each year for "residential" students. In addition, Parent denied telling Damon how to allocate his salary between students in Dolan's "day school" program and students in Dolan's "residential" program. ¶ 43 Parent also acknowledged that Silina M. took a class at the local high school in Durand. Thus, Parent conceded, she was not "100 percent in attendance at the special education setting." Parent further testified on cross-examination that the four students at issue attended class with the students in Dolan's "day school" program and none of the four students had a dedicated aide or was in need of assistive technology. Parent also acknowledged that it is possible that some of the students from Dolan's "day school" program would have needed extra monitoring, "but not nearly to the duration or frequency that the residential kids have." Parent added that he is speaking "generally." Thus, when he stated that "residential" students are five times more likely to be hospitalized, he was not necessarily referring to the four students at issue. Parent also acknowledged that the use of the services provided by the Cooperative, e.g., psychologist, speech therapy, and social worker, depended on the needs outlined in the student's individualized education program (IEP). ¶ 44 Parent further testified on cross-examination that although he ultimately takes responsibility for the decision to set only one tuition rate for Dolan's ESY program, it was something he and Damon mutually agreed upon. Parent testified that although ESY takes place at the end of the regular school term, it is not the equivalent of summer school. He explained that ESY is in addition to the regular school year to prevent regression issues with certain students whereas summer school is for a student who has "flunked and is trying to pass a grade." Parent testified that the reason for not having differential billing during ESY is because each student's needs during that term were the same. He explained:
Like I said earlier, the residential kids are five times more likely to be hospitalized. And when I say 'hospitalized,' that's not for tonsillitis. That's for psychiatric hospitalization.
That's based on hurting themselves. It could be banging their head against the wall, cutting, self mutilation of some sort. Or because of aggressive behavior towards staff or students, they could be-they're five times more likely to go into some kind of juvenile Department of Corrections or at least the assessment center in Winnebago County here.
So obviously with that, there has to be more staff and the crisis team has to be placed around them for proximity control much more than a day school student would have to be.
When I say crisis team, we're talking about a particular amount of our staff that are trained in physical restraint and escalation and deescalation of the students and working with them when they're in crisis.
And that amount is much higher for those students in residential."
"By kind of the definition of ESY, the state kinds [sic]of frowns upon anything over about a third of your general population because then they start to look at that you're overusing and not really taking the kids that are regressing and you're just throwing them in there to maybe do whatever, misusing the ESY standard.He conceded, nevertheless, that students in the ESY program do not consist solely of pupils from the "residential" program. He stated that the needs of the "residential" students "evened out" based on the amount of time they were in school for ESY. He explained that ESY was not a full day or a full week session, so the ability of the students to cope "seemed pretty even." He also noted that all of the students received extra supervision. He stated that this resulted in the students from Dolan's "day school" program having a higher tuition rate during ESY.
So by definition of ESY, it's usually your-I don't want to say bottom, but your more needy bottom third that needs it, and those are usually the kids that have higher needs. So it's kind of an even kilter."
¶ 45 F. The Trial Court's Ruling
¶ 46 Following Parent's testimony, the parties rested. Subsequently, the parties submitted written closing arguments to the trial court. On August 16, 2012, the trial court entered judgment in favor of the District in the amount of $256,265 plus court costs. The Board thereafter filed a timely notice of appeal. We granted the Board's motion to stay the judgment pending this appeal.
The amount of damages awarded by the trial court differs from the total tuition amounts appearing on the Forms 50-66C prepared by the District. This is apparently the result of the fact that in the documents submitted to the trial court, the District calculated the cost of educating Valerie M. during the 2006-07 school year as $24,233, instead of the $30,233 appearing on the Forms 50-66C.
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¶ 47 II. ANALYSIS
¶ 48 On appeal, the Board first argues that under the plain language of the School Code, a residential facility must provide housing to students. See 105 ILCS 5/14-1.08 (West 2008). The Board asserts that although the District did not provide housing to the four students at issue, it billed the Board at a "residential" tuition rate which was thousands of dollars higher than the rate assessed students in Dolan's "day school" program. As a result, the Board contends that the trial court's damages award, which was based upon the "residential" tuition rate, cannot be sustained. The District responds that the Board waived consideration of this issue by not raising it at the evidentiary hearing. Absent waiver, the District argues that the Board's argument has no merit. ¶ 49 Issues not raised in the trial court may not be raised for the first time on appeal. Eagan v. Chicago Transit Authority, 158 Ill. 2d 527, 534 (1994). We agree with the District that this issue was not raised before the trial court. In its reply brief, the Board claims that this issue was raised in the written closing argument it filed with the trial court. The only reference the Board made related to housing costs in its 15-page written closing argument, however, is the following two sentences: "The rate that the [District] charged the Residential students was unsupported and speculative. Room and board was not computed in the cost because Maryville provided those items." The Board did not cite any provision of the School Code in relation to this language. More important, absent from the Board's written closing argument is any contention that the School Code requires a residential facility for special education students to provide housing as a basis for the assessment of damages. As such, we find that this issue has been forfeited on appeal. ¶ 50 Forfeiture notwithstanding, we reject the Board's argument on the merits. The statute cited by the Board defines the term "Special educational facilities and services" as used in Article 14 of the School Code. 105 ILCS 5/14-1.08 (West 2006). Section 14-1.08 provides:
" 'Special educational facilities and services' includes special schools, special classes, special housing, including residential facilities, special instruction, special reader service, braillists and typists for children with visual disabilities, sign language interpreters,According to the Board, under the plain language of this section, a residential facility must provide housing to students. The District, however, never purported to be a "residential facility" or to provide housing to the four students at issue. While the nomenclature used by the District to differentiate the categories of students seems to imply that those pupils designated as "residential" students are living at Dolan, the record establishes that the reason the students at issue were categorized as "residential" students was because they lived at Maryville, a residential facility. The District categorized another group of students as "day school" students because they lived at home and were transported to and from Dolan on a daily basis. Moreover, as we discuss more thoroughly below, it is clear from Parent's testimony that the different rate level was due to the intensity of services provided to each pool of students, and not because the District provided housing services. Therefore, we find unpersuasive the Board's reliance on section 14-1.08 of the School Code for reversal and we reject this argument. ¶ 51 Next, the Board argues that the District failed to meet its evidentiary burden of proving that the students at issue should be charged the higher "residential" tuition rate. In this regard, the Board's argument is twofold. First, the Board asserts that the District failed to produce all of the documentation it submitted to the ISBE to obtain reimbursement for its special education costs and, as a result, "a negative inference" should have been drawn against the District by the trial court. Second, the Board contends that the record does not support the disparity in the allocation of expenses between students in Dolan's "residential" program and students in Dolan's "day school" program. We address the Board's latter argument first. ¶ 52 The party seeking to recover has the burden both to establish that he sustained damages and to set forth a reasonable basis for the computation of those damages. Finance America Commercial Corp. v. Econo Coach, Inc., 118 Ill. App. 3d 385, 390 (1983). While absolute certainty with regard to damages is not required, the evidence must nevertheless establish a basis for the assessment of damages with a fair degree of probability. Prairie Eye Center, Ltd. v. Butler, 329 Ill. App. 3d 293, 302 (2002). Thus, damages may not be awarded based on speculation or conjecture. Schoeneweis v. Herrin, 110 Ill. App. 3d 800, 808 (1982). A trial court's award of damages will not be reversed on appeal unless it is against the manifest weight of the evidence. Royal's Reconditioning Corp. v. Royal, 293 Ill. App. 3d 1019, 1022 (1997). A trial court's damages award is against the manifest weight of the evidence when it ignored evidence or used an incorrect measure of damages. Royal's Reconditioning Corp., 293 Ill. App. 3d at 1022. ¶ 53 The Board argues that the record does not support the disparity in the allocation of expenses between students in Dolan's "residential" program and students in Dolan's "day school" program. The Board notes that Parent testified that he employed a "common sense" formula in setting the "residential" rate. Parent estimated that the "residential" rate is eight to ten percent higher than the "day school" rate. The Board calculates, however, that during the years in question, the "residential" rate was between 36% and 81% higher than the "day school" rate. In support of its argument, the Board relies upon the Forms 50-66A submitted by the District, which outline the categories of expenditures used to calculate tuition for the "residential" program, and argues that certain categories of these expenditures do not justify the higher "residential" rate. The District responds that it established a reasonable basis for calculating the costs to educate the students at issue. Based on the record before us, we conclude that the trial court's assessment of damages is not against the manifest weight of the evidence. ¶ 54 The District presented evidence for the difference in cost to educate students in Dolan's "residential" program and those in its "day school" program. Damon testified that students in Dolan's "residential" program live at Maryville whereas students in Dolan's "day school" program are bussed in on a daily basis between Dolan and each student's home district. According to Damon, "residential" students require "more services than day school students, a higher intensity of services." Thus, he related, tuition rates for "residential" students are higher during the regular school year. Damon testified that Parent, the principal at Dolan, allocates the overall program costs between "residential" and "day school" students. ¶ 55 Parent testified that he informed Damon as to the types of needs and services that each category of student needed based on his 22 years of experience at the District, data gained through a "point system" used to track student behavior, his familiarity with individual needs of the students, interviews with the student and the student's relatives, and the type of interaction the student has upon first attending Dolan. Parent explained that "residential" students traditionally have a higher need for supervision because they typically engage in aggressive behaviors towards themselves and others, which causes them to be five times more likely to be hospitalized or involved in juvenile corrections as compared to "day school" students. He stated that "residential" students who engage in self-harming behaviors must be escorted around the building 100% of the time and they require the services of personnel such as the dean of students, principal, school nurse, or social worker more frequently than other students. Parent conceded that some of the "day school" students need extra monitoring, but noted that it is not nearly for the duration or frequency that the students in the "residential" program need it. He also stated that he was speaking in general terms when describing why it costs more to educate a "residential" student and not necessarily about the four students in question. ¶ 56 The Board asserts that the testimony of Damon and Parent regarding the higher cost of educating students in Dolan's "residential" program is undermined by evidence regarding some of the individual expenditures that comprise the total cost of education as calculated on the Forms 50-66A. With respect to the cost of instruction, for instance, the Board asserts that for the 2005-06 and 2007-08 school years, the Forms 50-66A reflect that the "residential" students were charged almost $8,000 more per capita for instruction than "day school" students and for the 2006-07 school year, "residential" students were charged $7,000 more per capita than "day school" students. The Board contends that the District provided no support for the disparity in instruction costs between "residential" and "day school" students and that such a variance is unwarranted given that both categories of students attended the same classes. The Board's argument, however, ignores Parent's testimony that because "residential" students are more likely to engage in aggressive behavior, they require more staff supervision and contact than students in the "day school" program. Parent had 22 years of experience at Dolan, and the Board presented no evidence to the contrary. ¶ 57 The Board also challenges the allocation of costs related to the office of principal. The Board notes, for instance, that with respect to the 2005-06 school year, the 14 "residential" students were allocated $52,693 of the office-of-principal costs (resulting in a per-student cost of $3,764) whereas the 29 "day school" students were allocated $64,735 of these costs (resulting in a per-student cost of $2,232). For the 2006-07 school year, the District allocated $62,626 of the costs for the office of the principal to the 17 "residential" students (resulting in a per-student cost of $3,684) and $61,738 to the 28 "day school" students (resulting in a per-student cost of $2,205). For the 2007-08 school year, the 25 "residential" students were allocated $100,645 of the office-of-principal costs (resulting in a per-student cost of $4,026) while the 20 "day school" students were allocated $43,846 of these costs (resulting in a per-student cost of $2,192). The District, however, presented testimony that the "residential" students required more administrative work. For instance, Damon testified that Parent is personally involved in a lot of "administrative dealings" with the students in Dolan's "residential" program. He noted that they were often hospitalized and therefore had to leave Dolan and re-enroll on multiple occasions. Similarly, Nimmer testified that a student could be dropped from enrollment due to a change in educational placement or due to a hospitalization for psychiatric treatment. These breaks in enrollment, Dolan testified, created additional work for the administration. ¶ 58 The Board claims that there was no data or evidence to support the notion that Parent provided more administrative services to those students in Dolan's "residential" program. We disagree. Although none of the students appeared to have a break in enrollment during the 2005-06 school year, the evidence submitted by the District establishes that the students at issue had multiple breaks in enrollment during other years. Miller testified that each time a student enrolls in and departs from Dolan constitutes a separate enrollment period generating a separate Form 50-66C. Nimmer testified that during the 2006-07 school year, both Valerie M. and Alexandria V. had breaks in enrollment due to hospitalizations, as reflected in the Forms 50-66C admitted into evidence. Similarly, the Forms 50-66C Forms admitted into evidence show that both Valerie M. and Alexandria V. had breaks enrollment for the 2007-08 school year-Valerie M. has four Forms 50-66C and Alexandria V. has two Forms 50-66C. ¶ 59 The Board also points out that the court questioned Damon regarding a discrepancy between the costs related to the office of principal as listed on Form 50-66A for the 2006 ESY program and the cost listed in the budget. The Board asserts that Damon provided no explanation for this discrepancy. Although Damon initially stated that he was unable to explain the variance, he subsequently told the court that it was likely the result of another expense that "got picked up." The trial court, as the trier of fact, apparently believed Damon's explanation, as was within its province to do. See Kay v. Prolix Packaging, Inc., 2013 IL App (1st) 112455, ¶ 35 (noting that it is the responsibility of the trier of fact to resolve factual issues, to determine the credibility of the witnesses, to assign weight to the testimony, and to draw reasonable inferences from the evidence). ¶ 60 The Board next challenges the amount charged for services provided by the Cooperative and food costs. These costs were included in the "other" expenditures category on the Forms 50-66A. With regard to the cost of services provided by the Cooperative, the Board asserts that there was insufficient evidence to justify the higher cost allocation to "residential" students because all students accessed the services of a social worker, psychologist, or speech therapist provided by the Cooperative and the bill provided by the Cooperative for the services it rendered to Dolan was not attached to the Forms 50-66A. The Board also asserts that the record does not support a decision to allocate more food expenses to students in Dolan's "residential" program because Damon testified that he did not know whether the "residential" students ate more than students in the "day school" program. We find neither claim sufficient to overturn the decision of the trial court. ¶ 61 Although Parent conceded that students in Dolan's "day school" program used the services of the Cooperative, he added that the measure of use depended upon each student's IEP. Parent also testified that students in Dolan's "residential" program use such services more frequently than other students. Given this testimony, it was reasonable for the trial court to conclude that the disparity with respect to services provided by the Cooperative was warranted. With respect to the food expenses, the Board did not cite to any testimony it elicited at the evidentiary hearing that the District in fact charged students in Dolan's "residential" program more than it charged students in Dolan's "day school" program. To be sure, the Board asked Damon whether the "residential" students eat more. Damon simply responded that he did not know. In addition, he pointed out that the "other" expenditures category includes "multiple functions." As such, the trial court could have reasonably found based on this evidence that there was no disparity in costs charged for food expenses among the different pools of students and that any variance in the "other" expenditures category was attributable to other costs. ¶ 62 Lastly, the Board notes that for the 2007-08 school year, Dolan incurred an expenditure of $14,831 for "support services" as listed on Form 50-66A for that term. Of this amount, the District allocated $10,331 to the 25 "residential" students (resulting in a per-student charge of $413) and $4,500 to the 20 "day school" students (resulting in a per-student charge of $225). According to the Board, Damon did not explain this allocation. It was, of course, the District's burden to establish a reasonable basis for the computation of its damages. Finance America Commercial Corp., 118 Ill. App. 3d at 390. Further, as noted earlier, while absolute certainty with regard to damages is not required, the evidence must nevertheless establish a basis for the assessment of damages with a fair degree of probability. Prairie Eye Center, Ltd., 329 Ill. App. 3d at 302. We conclude that the District did present a basis for these charges. Notably, the District submitted into evidence Plaintiff's Group Exhibit 12, which contained Form 50-66A for the 2007-08 school year and the budget from which the expenditures appearing on that form were identified. Thus, the District established a basis for these expenditures. While the Board complains that Damon did not explain this allocation, the Board itself does not cite anywhere in the record where it asked Damon to provide an explanation for the allocation of the expenses. In other words, the only evidence presented to the trial court regarding these expenses was the Form 50-66A and accompanying budget submitted by the District. As such, we do not find the trial court's inclusion of these "support services" in its award of damages to be improper. In sum, given the role of the trial court as trier of fact (see Kay, 2013 IL App (1st) 112455, ¶ 35), and based on the evidence presented at the evidentiary hearing, we cannot say that the trial court's award of damages is against the manifest weight of the evidence. ¶ 63 In its final argument on appeal, the Board claims that the trial court should have drawn "a negative inference" against the District for its failure to produce to the Board certain documentation that the District submitted to the ISBE. According to the Board, as a result of the District's failure to produce documents within its control without reasonable excuse, the trial court should have drawn the negative inference that the information in the missing documents undermined the District's claim that the students in Dolan's "residential" program required a higher intensity level of services than students in Dolan's "day school" program. The District responds that the documents in question were only specifically requested by the Board "a mere seconds before the April 30, 2012 hearing." The District also maintains that the trial court determined that the allegedly missing documents were immaterial and that the Board's argument is premised on "entirely inapplicable law." ¶ 64 Initially, we reject the District's claim that the Board did not seek these documents until "mere seconds" before the April 30, 2012, evidentiary hearing. As the Board notes in its reply brief, the record establishes that the documents referenced by the Board arguably fell within the Board's notice to produce in the underlying cause of action as well as an agreed order entered by the trial court on July 8, 2008, which required the District to disclose "[a]ny and all documents related to registration, enrollment, disenrollment, withdrawal, or 'dropping' and the educational and residential placements, programs or services of [the four students at issue]." Accordingly, we will address the merits of this claim. ¶ 65 The Board cites People v. Houar, 365 Ill. App. 3d 682 (2006), for the proposition that "if a party fails to offer evidence that is within his power to produce, the trier of fact may infer that the evidence would be adverse to that party if four conditions are met." Houar is inapposite as that case held that a negative inference may be drawn from a party's assertion of his Fifth Amendment privilege against self-incrimination in a civil order-of-protection hearing. Houar, 365 Ill. App. 3d at 690. ¶ 66 The Board also cites Goldberg v. Capitol Freight Lines, Ltd., 382 Ill. 283, 291-92 (1943), wherein the supreme court stated that a party is entitled to any inference naturally arising from the non-production of evidence, including the inference that, had the missing evidence been produced, it would have been unfavorable to the non-producing party. We do not dispute the proposition set forth in Goldberg. However, we are not persuaded that reversal is required on this basis. The Board cites no authority that the trial court was obligated to draw a negative inference based on the District's failure to produce certain evidence. In fact, the four conditions cited by the Board for application of the "negative inference" is based on Illinois Pattern Jury Instructions, Civil, No. 5.01 (2011) (hereinafter, IPI Civil No. 5.01). That instruction provides that the jury "may infer" that the nonproduction of evidence is adverse to the party if four conditions are met. IPI Civil No. 5.01. Thus, to the extent the presumption exists, it is discretionary. See People v. Henderson, 329 Ill. App. 3d 810, 820 (2002) (holding that language in jury instruction stating that the jury "may infer" creates a permissive presumption). We note additionally that the Board cites no evidence that, in fact, the trial court failed to draw a "negative inference" based on the District's failure to produce the evidence at issue. In this regard, we note that in its written closing argument, the Board argued that the District was not entitled to any damages because it failed to produce certain documents. Thus, the trial court was keenly aware of the Board's claim. Nevertheless, the trial court awarded damages to the District, indicating the trial court's belief that despite the District's failure to produce the documents cited by the Board, it determined that the District satisfied its burden on damages. In light of the foregoing, we decline to reverse the award of damages on this basis.
transportation, maintenance, instructional material, therapy, professional consultant services, medical services only for diagnostic and evaluation purposes provided by a physician licensed to practice medicine in all its branches to determine a child's need for special education and related services, psychological services, school social worker services, special administrative services, salaries of all required special personnel, and other special educational services, including special equipment for use in the classroom, required by the child because of his disability if such services or special equipment are approved by the State Superintendent of Education and the child is eligible therefor under this Article and the regulations of the State Board of Education." 105 ILCS 5/14-1.08 (West 2006).
¶ 67 III. CONCLUSION
¶ 68 For the reasons set forth above, we affirm the judgment of the circuit court of Winnebago County. ¶ 69 Affirmed.