author: JUSTICE HARRISON PRESIDING JUSTICE WELCH,

text:
    STEVEN C. REDMON et al., Plaintiffs-Appellants, v. CYRUS AUSTIN, Defendant-Appellee.
    Fifth District
    No. 5 — 87—0506
    Opinion filed September 11, 1989.

      Roy C. Dripps, of Talbert & Mallon, P.C., of Alton, for appellants.
    Robert G. Raleigh, of Hoagland, Fitzgerald, Smith & Pranaitis, of Alton, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Plaintiffs, Steven C. Redmon and John W. Beckman, filed an action in the circuit court of Madison County to recover damages for injuries they sustained when an automobile in which they were riding as passengers collided with an automobile driven by defendant, Cyrus Austin. Following a jury trial, a verdict was returned in favor of defendant and against each of the plaintiffs. The circuit court entered judgment on that verdict. A post-trial motion subsequently filed by plaintiffs was denied, and plaintiffs now appeal. We reverse and remand for a new trial.

The accident which gave rise to this litigation occurred in the early morning hours of April 14, 1984. The location was Highway 111 and 67 in Godfrey, Illinois, close to the entrance to the Godfrey Speedway and not far from a tavern known as Doris’ 111. Plaintiffs were riding in an automobile, a 1968 Ford Mustang, driven by Rodney Walls. Redmon sat in the front seat, Beckman in the back.

The car in which plaintiffs were riding proceeded north along the highway. After crossing some railroad tracks in the area, it met and collided with an automobile driven by defendant. Defendant had just left Doris’ 111 and, along with his girlfriend, Penny Shoptaw, was proceeding south down the highway. In the collision, the left front of defendant’s car hit the left side of the car in which plaintiffs were riding in the area behind the driver’s door. The force of the impact was so great that the rear of plaintiffs’ car was sheared off.

Help arrived on the scene promptly. It came in the form of the Godfrey Fire Protection District and the Illinois State Police. They found, miraculously, that no one had been killed in the collision. Plaintiffs were taken by ambulance to the hospital, where they were examined and later released. Both automobiles had to be towed away.

All of this is not in dispute. What is disputed, and what proved to be the primary controversy at trial, is how exactly the collision took place. Plaintiffs’ theory was that defendant had not felt well at work that day, had gone out drinking that evening, and had become intoxicated. Because of his intoxication, he was unable to navigate around a curve in the road and crossed the centerline, striking the automobile in which plaintiffs were riding. Defendant, for his part, denied that he was in any way responsible for the collision. He argued that what had actually happened was that the driver of the car in which plaintiffs were riding lost control of the vehicle as it passed over the nearby railroad tracks. He claimed that the car became airborne as it drove over an incline in the road where the tracks crossed the roadway. As it landed it moved down the roadway sideways out of control. Defendant claims that he flashed his headlights and attempted to move to the shoulder of the road, but was unable to get out of the path of the oncoming vehicle.

The evidence in this case was sharply divided. Plaintiffs both testified that their car never left its lane and never went sideways down the road. Both related that defendant’s automobile did not follow the roadway along the curve but instead cut over in a straight line, where it crashed. They both said that after the collision defendant appeared to be intoxicated. To support their claim, plaintiffs called as witnesses Rod Walls, the driver of their car, and Stacey Lynn Castillo, an off-duty barmaid from Doris’ 111 who happened to be in the area when the accident took place. Castillo, whose younger brother was a friend of plaintiffs and Walls, testified by deposition that when she arrived on the scene, defendant’s automobile was sitting partially across the centerline. Plaintiffs also called defendant as an adverse witness.

Defendant testified not only as an adverse witness during plaintiffs’ case, but also as a witness on his own behalf. During his testimony he denied plaintiffs’ version of what occurred. He claimed that he did not exceed the speed limit, that be did not cross the centerline, and that he was not drunk. Although he did not deny consuming alcohol that evening, he explained that he behaved as he did after the accident because he was upset, he felt dizzy, and his knee hurt. Defendant did not call his passenger, Penny Shoptaw, as a witness. His attorney claimed that he did not do so because defendant and Shoptaw were no longer seeing one another, she was not under his control, and he had been unable to contact her regarding the trial. Most of the evidence presented on behalf of defendant consisted of the testimony of Thomas L. Acker, a lieutenant with the Godfrey Fire Protection District who was present on the scene the night of the accident, and Nick Bowman, the Illinois State trooper who had been called to investigate the accident. The particulars of this testimony will be addressed, where necessary, in the discussion which follows. At this juncture, we note simply, as we have done before, that the jury ultimately returned a verdict in favor of defendant. Judgment was entered on that verdict by the circuit court, and plaintiffs’ post-trial motion was denied. They now appeal.

On this appeal, plaintiffs argue that the circuit court’s judgment should be reversed and the cause remanded for a new trial because of a number of errors committed by the circuit court with respect to the admission of evidence. We agree. At trial, Lieutenant Acker of the Godfrey Fire Protection District was allowed to testify, over objection, that he had been told by someone he “believed to be one of the occupants” of the automobile in which plaintiffs were riding that “the driver had lost control of the vehicle coming across the railroad tracks.” Plaintiffs argue that this testimony constituted mere hearsay and should not have been permitted. We agree.

As a general rule, an out-of-court assertion offered to prove the truth of the matter asserted constitutes hearsay and is not admissible. (Tarshes v. Lake Shore Harley Davidson (1988), 171 Ill. App. 3d 143, 153, 524 N.E.2d 1136, 1142.) This is just such a statement. Defendant nevertheless argues that admission of the statement was proper because it fell within an exception to the hearsay rule. Specifically, he claims that the statement constituted an admission or declaration against interest. The problem with this theory is that Acker admitted on cross-examination that he did not, in fact, know who had given him the statement. At trial, the following exchange took place between Acker and counsel for plaintiffs:

“PLAINTIFFS’ COUNSEL: Sir, you don’t know for a fact that they were actually had been [sic] occupying that car, do you?
ACKER: No, sir, not for a fact.
PLAINTIFFS’ COUNSEL: And you can’t tell the jury as you’re sitting here today who you talked to at that time?
ACKER: That’s very true.”

Since the identity of the declarant or declarants is unknown, there is simply no basis for characterizing the statement in question as an admission by a party opponent or a declaration against interest.

Defendant also argues that the statement was properly admitted because its purpose was not to prove the facts stated but simply to show state of mind. (See Hackett v. Ashley (1979), 71 Ill. App. 3d 179, 186, 389 N.E.2d 246, 251.) This claim is completely without merit. The case upon which defendant relies for support deals with a declaration by a party, the defendant, as to his intent to enter into a contract. While state of mind may be relevant where there is an issue as to whether a contract was formed (71 Ill. App. 3d at 186, 389 at 251), we fail to see, and defendant has not explained, how the state of mind of the declarant or declarants here, whose identity is admittedly unknown, could possibly have any bearing on defendant’s liability to the passengers of the other automobile involved in the accident.

We likewise do not believe that admission of the statement can be justified under the spontaneous declaration exception to the hearsay rule. For this exception to apply there must be (1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) absence of time to fabricate; and (3) the statement must relate to the circumstances of the occurrence. (Tarshes v. Lake Shore Harley Davidson (1988), 171 Ill. App. 3d 143, 153, 524 N.E.2d 1136, 1142.) In this case, there is simply no factual basis for determining that this exception is applicable. There was, of course, an occurrence which could have produced a spontaneous and unreflecting statement by someone who experienced it or witnessed it, and the statement here did relate to the circumstances of the accident. The problem again, however, is that we do not know who made the declaration. All we know is that they were on the scene when Acker arrived. We cannot be sure that they actually witnessed it themselves. Moreover, the statement was not made until sometime after the accident took place. Thus, the opportunity for fabrication was present.

Plaintiffs next argue that the circuit court erred in allowing Acker to testify, over objection, as to the cause of gouge marks found in the pavement at the accident scene. At trial Acker identified various photographs of the accident scene which he took after his arrival there on the night in question. One of those photographs showed gouge marks in the asphalt in the southbound lane, the lane in which defendant had been driving. Acker did more than identify the marks as gouge marks, however. He was also allowed to explain to the jury that such marks result when, during a vehicular crash, the vehicle is forced downward and sharp and rounded points underneath it dig into the highway. The purpose of this testimony was to buttress defendant’s theory as to point of impact. Although the circuit court would not allow Acker to refer specifically to “point of impact” as such, the clear import of his testimony was that, contrary to plaintiffs’ claim, the two vehicles had collided in defendant’s lane and that defendant had not crossed over the centerline to strike the automobile in which plaintiffs were riding.

To the extent that Acker’s testimony went beyond a discussion of the factual observations he made at the scene and extended to a discussion of what caused the gouge marks and, by implication, where the vehicles collided, it was in the nature of reconstruction testimony, and Acker was being presented as a reconstruction expert. (See Ralston v. Plogger (1985), 132 Ill. App. 3d 90, 98-99, 476 N.E.2d 1378, 1384.) Without reaching the questions of whether Acker was qualified to give reconstruction testimony or whether this was a case in which reconstruction testimony should even be permitted, we agree with plaintiffs that Acker should not have been permitted to give testimony as a reconstruction expert under the circumstances present here.

Supreme Court Rule 220(b)(1) requires disclosure of an expert witness either at the first pretrial conference or within 90 days after the substance of the expert’s opinion first becomes known to the party who intends to call such a witness, whichever is later. (107 Ill. 2d R. 220(b)(1).) In addition, the rule provides that the court “shall enter an order scheduling the dates upon which all expert witnesses, including rebuttal experts, shall be disclosed.” (107 Ill. 2d R. 220(b)(1).) In this case the circuit court did order “all parties *** to disclose any expert they intend to call in this matter on or before the 12th January [sic], 1987.” The record before us indicates that defendant did not comply with this court order and did not even reveal Acker’s existence until after the trial commenced. Supreme Court Rule 220(b)(1) expressly provides that “[fjailure to make the disclosure required by this rule or to comply with the discovery contemplated herein will result in disqualification of the expert as a witness.” (107 Ill. 2d R. 220(b)(1).) In view of this unequivocal language, we believe that the circuit court erred when it overruled plaintiffs’ objection to Acker’s reconstruction testimony. See Renfro v. Allied Industrial Equipment Corp. (1987), 155 Ill. App. 3d 140,163, 507 N.E.2d 1213, 1232.

It is axiomatic that error in the exclusion or admission of evidence does not require reversal where there has been no prejudice or where the result of the trial has not been materially affected. (Young v. City of Centreville (1988), 169 Ill. App. 3d 166, 176, 523 N.E.2d 621, 628.) In this case, however, we believe that reversal is required. Both the hearsay statement related by Acker and his improper reconstruction testimony related directly to the central controversy in this case, namely, how the accident took place. Because, as we have previously indicated, the other, evidence in the case was so close, one cannot seriously contend that the improperly admitted evidence did not materially affect the outcome of the trial. Accordingly, the circuit court’s judgment must be reversed and the cause remanded so that a new trial may be held.

In view of this disposition, we need not address plaintiffs’ additional contention that the circuit court’s judgment was contrary to the manifest weight of the evidence. Because a new trial must be held, however, there are two additional matters we shall address in order to give guidance to the trial court and the parties on remand. At trial plaintiffs tendered the following instruction which was refused by the circuit court:

“If a party to this case has failed to offer evidence or to produce a witness within his power to produce, you may infer that the evidence or testimony of the witness would be adverse to that party if you believe each of the following elements:
1. The evidence or witness was under the control of the party and could have been produced by the exercise of reasonable diligence.
2. The evidence or witness was not equally available to an adverse party.
3. A reasonably prudent person under the same or similar circumstances would have offered the evidence or produced the witness if he believed the evidence, or the testimony, would be favorable to him.
4. No reasonable excuse for the failure has been shown.”

This instruction is Illinois Pattern Jury Instructions, Civil, No. 5.01 (2d ed. 1971) (hereinafter IPI Civil 2d No. 5.01). Plaintiffs claim that the circuit court erred in refusing to submit this instruction to the jury because of defendant’s failure to call Penny Shoptaw as a witness or to explain his failure to call her. As we noted at the outset of this order, Penny Shoptaw was defendant’s girlfriend and was a passenger in his vehicle at the time of the accident in question. Given this relationship, plaintiffs contended that if Shoptaw’s version of the accident had correlated with defendant’s, defendant would have called her for trial. Although defendant’s attorney explained to the court the steps which he had taken, unsuccessfully, to locate Shoptaw, he did not adduce any testimony to substantiate those efforts. For this reason, plaintiffs argue that the circuit court was not justified in refusing the instruction. We cannot accept this analysis.

Whether IPI Civil 2d No. 5.01 should be given is within the sound discretion of the trial court, and a reviewing court will reverse only where a clear abuse of discretion appears of record. (Tonarelli v. Gibbons (1984), 121 Ill. App. 3d 1042, 1046-47, 460 N.E.2d 464, 468.) We note, however, that the instruction can be given only when the party seeking to use the instruction has offered evidence that the absent or missing witness was under the other party’s control and not as available to it as to the other party. (J.L. Simmons Co. v. Firestone Tire & Rubber Co. (1984), 126 Ill. App. 3d 859, 868, 467 N.E.2d 327, 334.) In this case, plaintiffs, who tendered the instruction, offered no evidence that Penny Shoptaw was under defendant’s control. All we know from the record is that Shoptaw had once been defendant’s girlfriend, but that was long before the trial commenced, and the relationship had apparently ended. Defendant’s attorney represented to the court that Shoptaw was not related to defendant by blood or marriage, and he did not know where she was. This was so even though defendant’s attorney and his process server had attempted to track her down. Area police were contacted, as was a neighbor and a relative, all to no avail. Defendant’s attorney advised the court that defendant and Shoptaw “haven’t seen each other since this accident. *** They haven’t seen each other for three and a half years.”

The trial court indicated that he wanted defendant’s attorney and his process server to take the stand and testify under oath regarding these matters. This was never done. It was not required to be done either in order to justify refusal of the instruction. Since plaintiffs offered no evidence suggesting that Shoptaw was under defendant’s control at the time of trial, defendant was under no obligation to adduce any evidence of his own on the subject.

One final matter we must, take up concerns a remark made by defendant’s attorney during his opening argument. During that argument defendant’s counsel indicated to the jury that the testimony would show that the car in which plaintiffs were riding at the time of the accident had two bald tires. Plaintiffs’ attorney objected to this reference on the grounds that it violated one of the court’s pretrial orders. The objection was overruled, and plaintiffs’ attorney then was permitted by the court to make a brief record with respect to his objection. When this was done, defendant’s attorney resumed his opening statement by saying, “Enough of the legal mumbo jumbo. Now, let’s get back to the point.” This remark was improper and inexcusable. It denigrated basic trial procedures which are essential to the orderly conduct of litigation under our adversarial system of justice. Counsel are admonished that if such remarks are repeated in the presence of the jury on retrial, reversible error may result. See Brown v. G & M Distributors, Inc. (1984), 122 Ill. App. 3d 435, 440, 461 N.E.2d 95, 99.

For the foregoing reasons, the judgment of the circuit court of Madison County is reversed, and this cause is remanded for a new trial.

Reversed and remanded.

GOLDENHERSH, J., concurs.

PRESIDING JUSTICE WELCH,

dissenting:

For the reasons which follow, I dissent. I do not agree that Lieutenant Acker’s testimony that he had been told by one or two young men whom he believed to be occupants of the automobile in which plaintiffs were riding that “the driver had lost control of the vehicle coming across the railroad tracks” constituted inadmissible hearsay. Instead, I believe that the out-of-court statement was admissible under the exception to the hearsay rule for admissions of a party-opponent. Lieutenant Acker’s testimony sufficiently established that the statement was made by one or both plaintiffs, or that it was made in the presence of, and acquiesced in by, both plaintiffs.

Generally, any statement made by a party or on his behalf which is inconsistent with his position in litigation may be introduced into evidence against him. (In re Application of County Treasurer & ex officio County Collector (1988), 166 Ill. App. 3d 373, 379, 519 N.E.2d 1010, 1014.) Admissions may also be implied from conduct, as where a party remains silent where there is an opportunity to speak and the circumstances properly and naturally call for the party to speak. (Casey v. Burns (1955), 7 Ill. App. 2d 316, 325, 129 N.E.2d 440, 445.) Thus a party’s silence may be admissible as evidence of admission by that party of the truth of what another has said. Friedland v. Allis Chalmers Co. of Canada (1987), 159 Ill. App. 3d 1, 7, 511 N.E.2d 1199, 1204.

In the instant case, Lieutenant Acker testified that when he arrived on the scene of the accident, defendant and his passenger were being tended by the ambulance attendants. Acker approached the Mustang in which plaintiffs had been passengers. There were three young men at the Mustang.

At this point in Acker’s testimony, plaintiffs’ counsel objected and defendant made an offer of proof. Acker testified in offer of proof that the three young men were standing around the Mustang. One of the young men stated that he had been in the back seat of the Mustang when the accident occurred. One or possibly two of the three men stated that the driver of the Mustang lost control of the car as it came across the railroad tracks. Acker testified that all three men indicated by their actions and words that they had been in the Mustang when the accident occurred. All three men were present during the conversation and all heard it. Acker testified that at the time of trial he could not identify any of the three young men and he did not know for sure “who told [him] what out there.” The trial court allowed Acker to testify to his conversation with the three young men over plaintiffs’ objection.

Acker testified before the jury that shortly after he arrived at the accident scene he had a conversation with the occupants of the Mustang. One of the men stated he had been in the back seat of the Mustang. One of the men stated that the driver of the Mustang had lost control of the vehicle as it came across the railroad tracks. On cross-examination, Acker stated that he did not know for a fact that the three men had been occupants of the Mustang.

I think this evidence is sufficient to show that the statement that the driver of the Mustang lost control of the vehicle as it came across the railroad tracks was made either by, or in the presence of, plaintiffs and that neither plaintiff objected to the statement when it was made. The statement was properly admitted over plaintiffs’ objection as an admission against interest of a party-opponent.

I also do not agree with the majority that Lieutenant Acker’s testimony pertaining to the gouge marks in the pavement constituted expert reconstruction testimony. Lieutenant Acker testified regarding photographs he had taken at the accident scene on the night of the accident. One photograph, defendant’s exhibit No. 11, showed the position of defendant’s vehicle on the shoulder of the southbound lane following the accident. Lieutenant Acker identified a black substance on the roadway, as shown in the photograph, as engine-type fluid which begins in defendant’s southbound lane and ends at the engine area of defendant’s vehicle on the southbound shoulder. Lieutenant Acker also pointed out on the photograph an area of scrape marks and gouge marks in the asphalt of the roadway in defendant’s southbound lane. Defendant’s counsel asked Lieutenant Acker what causes gouge marks, and plaintiffs’ counsel objected, arguing that defendant was improperly asking for expert testimony. Plaintiffs’ objection was overruled.

Defendant’s counsel asked, “[W]hat causes gouge marks like that in the highway? What does that indicate to you when you see marks in the highway?” Lieutenant Acker responded, “These are caused by the vehicle being forced downward at the point of impact.” Plaintiffs’ counsel objected and moved to strike. The trial court struck “the last portion of his answer” but allowed “the first part” to stand. Plaintiffs’ counsel responded, “I don’t object to the first part, Judge.”

Lieutenant Acker went on to explain that gouge marks are made during a vehicular collision when the vehicle is forced downward and sharp and rounded points of the underside of the vehicle dig into the highway. Lieutenant Acker also identified tire skid marks in the photograph which begin in defendant’s southbound lane and end at defendant’s vehicle on the southbound shoulder.

I do not believe that this testimony amounts to expert reconstruction testimony. The cause of gouge marks, like the cause of skid marks, is not a subject outside the common knowledge of an average juror. It is not, therefore, properly the subject of expert testimony. (Hernandez v. Power Construction Co. (1978), 73 Ill. 2d 90, 98-99, 382 N.E.2d 1201, 1205.) Lieutenant Acker did not reconstruct the accident in any respect. His reference to point of impact was stricken. He did not testify as to what caused the gouge marks in this particular case. Instead, he simply explained what he meant by the term “gouge marks.”

Finally, although the majority found it unnecessary to address the question of whether the verdict was against the manifest weight of the evidence, I think, after reviewing the record, that the jury’s verdict in favor of defendant was not against the manifest weight of the evidence. As the majority points out, plaintiffs and defendant had very different versions of how the accident occurred and who was at fault. However, all of the physical evidence presented at trial indicated that defendant’s vehicle did not cross the center line of traffic and that, in fact, defendant’s vehicle was in its own lane of traffic at the time of impact. There was no physical evidence presented to show that defendant’s vehicle had crossed into plaintiffs’ lane of traffic. In any event, all of the evidence was presented to the jury, which returned a verdict in favor of defendant.

A verdict is against the manifest weight of the evidence only when an opposite conclusion is clearly apparent or when the finding of the jury appears arbitrary and unsubstantiated by the evidence. (Holmes v. Sahara Coal Co. (1985), 131 Ill. App. 3d 666, 674, 475 N.E.2d 1383, 1389.) A reviewing court should not overturn a jury’s verdict unless, considering all the evidence in the light most favorable to the party who prevailed at trial, the jury’s conclusion is palpably . erroneous and wholly unwarranted. Holmes, 131 Ill. App. 3d at 674, 475 N.E.2d at 1389.

After carefully reviewing the record in this case, I do not think that an opposite verdict is clearly apparent. In fact, the jury’s verdict in favor of defendant appears to be well supported by the evidence. It is not against the manifest weight of the evidence.

For the foregoing reasons, I dissent from the majority opinion reversing the jury’s verdict and remanding this cause for a new trial.


source: Caselaw Access Project

author: JUSTICE LEWIS

license: Public Domain

text:
    RESIDENTIAL REAL ESTATE COMPANY, Plaintiff-Appellant, v. THE ILLINOIS PROPERTY TAX APPEAL BOARD et al., Defendants-Appellees.
    Fifth District
    No. 5 — 88—0266
    Opinion filed September 12, 1989.

      Paul H. Lauber, of Farrell & Long, P.C., of Godfrey, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and William H. London, Assistant Attorney General, of Chicago, of counsel), for appellee Property Tax Appeal Board.
    Dick Allen, State’s Attorney, of Godfrey (Lewis E. Mallott, Assistant State’s Attorney, of counsel), for appellee Madison County Board of Review.
   JUSTICE LEWIS

delivered the opinion of the court:

The plaintiff, Residential Real Estate Co., a corporation, appeals from the judgment of the circuit court affirming a decision of the Property Tax Appeal Board of the State of Illinois (hereafter referred to as PTAB). The cause of action was brought in the circuit court on December 3, 1986, pursuant to the Administrative Review Law (Ill. Rev. Stat. 1985, ch. 110, par. 3 — 101 et seq.). The plaintiff presents two issues for review: (1) whether the amended decision of the PTAB should be reversed because the PTAB failed to apply the burden of proof established by the statute creating the PTAB and (2) whether the amended decision of the PTAB is against the manifest weight of the evidence “where the Board relied on a non-existent, unsupported presumption, and where said reliance caused it to misjudge the probative impact of all of appellant’s evidence.”

On the basis of overevaluation the plaintiff appealed to the PTAB of the State of Illinois concerning the assessment of three parcels for the year 1983. The first parcel, parcel No. 14-2-15-11-12-203-31, consisting of about 3.5 acres and improvements, had been assessed a value of $91,160 by the assessor and $71,160 by the Madison County Board of Review; the plaintiff claimed the proper assessment for that parcel was $22,285. The second parcel, parcel No. 14-2-15-11-16-403-026, consisting of about 2.1 acres and improvements, had been assessed a value of $34,070 by both the assessor and the Madison County Board of Review; the plaintiff claimed the proper assessment for that parcel was $8,329. The third parcel, parcel No. 14-2-15-12-13-301-002, consisting of about 1.3 acres of vacant land, had been assessed a value of $11,110 by both the assessor and the Madison County Board of Review; the plaintiff claimed the proper assessment for that parcel was $2,716. The assessment for this parcel was apparently reduced to $1,200 by the assessor after the appeal was filed with the PTAB. The assessment claimed by the plaintiff to be proper for the three parcels totals $33,330.

On March 18, 1986, a hearing was conducted before the PTAB concerning the assessment decision of the Madison County Board of Review. At that hearing only one witness testified, namely, Robert Little, the president of Residential Real Estate Company. He said that he had become president in March of 1983 when a stock redemption agreement had been effected with the previous owners. Prior to that time two brothers, Richard and Norman Stolze, had owned 50% of the company, and three other persons, Evelyn Little, Erma Keller, and Leola Hartman, had owned 50% of it in equal shares. Erma Keller and Evelyn Little are sisters, and Leola Hartman is a “sister-in-law.” He described the three women as “cousins or cousins-in-law” of the Stolzes. He stated, “They were all fourth generation and they funneled down from two brothers who were third generations, and there was a resulting fifty/fifty (50/50) split in the stock.” This arrangement had been in effect since about 1955. On March 5, 1983, Residential Real Estate Company redeemed all of the shares of Richard and Norman Stolze, leaving the three women as owners of the remaining stock. Residential Real Estate Company paid $50,000 to the Stolze brothers for the stock that was redeemed. The stock redemption agreements between Residential Real Estate Company and each of the two Stolze brothers are included in the record as exhibits.

Residential Real Estate Company was formed “probably in 1961” and owns the real estate parcels in question. Since the formation of Residential Real Estate Company, Illinois Lumber Company, Inc. (hereafter referred to as Illinois Lumber), has leased this property and continues to do so. In May of 1984 Illinois Lumber filed a Chapter 11 petition in bankruptcy and was in Chapter 11 reorganization from May through December of 1984. He said that the lease payments had “started out at about [$28,000] per year” for the purpose of operating a lumberyard, but that in 1983 Illinois Lumber was unable to pay the entire amount because of its lack of funds. He testified that in 1983 Illinois Lumber lost $597,675. In 1984 the amount to be paid for the lease was “[d]own to about [$15,000]” because, he said, “[t]hey still relied on Illinois Lumber’s ability to pay and what we felt the property was worth to rent for the sized business we were doing after and during the reorganization.” In 1984, he said, Illinois Lumber lost $439,791. Financial statements of Illinois Lumber for the years ending 1983 and 1984 are included in the record as exhibits.

The plaintiff sought reduction of the “assessment,” by which he appears to have meant “market value” ($33,330 multiplied by three equals $99,990), to a total of $100,000 for all three parcels taken together, explaining as follows:

“Well, the first reason is for the purchase price of the building and property. It was set up in the stock redemption, which was a hundred thousand, and at that time Illinois Lumber Company was losing money and they felt that was a fair and equitable assignment of the price to the building and the property.”

Asked, “And, when you say ‘they felt,’ who was that?” the witness answered, “Well, it was between ourselves, as buyers, and Richard and Norman Stolze, as then operating Illinois Lumber Company.” Asked how the selling price had been reached, the witness responded, “We felt that was a fair market price for Illinois Lumber Company’s building and property. We paid a total price for all of the assets of Illinois Lumber Company and Residential Real Estate, and of that total purchase price, a hundred thousand was a fair and equitable price for Residential Real Estate’s building and property.” The total purchase price for both the business and the real estate was $500,000; the stock redemption in the amount of $50,000, he indicated, reflected one-half of the value ascribed to the real property. He said, “We estimated a fair market price to both the assets of Illinois Lumber Company and the assets of Residential Real Estate.” The witness stated that “throughout our Chapter 11 reorganization we have attempted to reorganize and get relief in order to continue to operate a business at those premises, and we’re asking the same of the Appeals Board in that in order for us to continue in business and further our reorganization we need relief on our taxes.”

The hearing officer asked the witness whether he believed that the property “could possibly have been leased to someone else besides people in the family,” to which the witness responded, “My opinion at the time was that it could be leased for exactly what it is, and that is a lumberyard and a mill working company.” Asked by the hearing officer, “But, it was never put out on the market to see if that property could be used to [sic] anybody else for a higher value?” the witness answered, “No.” Asked by the hearing officer, “At the time that you were preparing the information for this hearing a couple of years ago, did you have anybody come in and appraise the property to see what they felt the property was worth?” the witness answered, “No.” Asked further by the hearing officer, “Never had anybody come in and physically inspect the property and compare it to other lumber companies?” the witness responded, “No.” Asked, “Did you go out and check and see what other similar properties in the area were leasing for?” he answered, “We did not.” The property had not been offered for sale.

In his opening statement counsel for the plaintiff described the plaintiff as a “title-holding company” and stated that “the only assets of Residential Real Estate is [sic] the real estate in question. It has no other assets, so it’s a company that holds the real estate, it’s a stock ownership of real estate value.” On plaintiff’s assessment complaint form of Madison County Board of Review, Robert Little, as president of Residential Real Estate Company stated in part, under “Reason for Complaint,” that “Illinois Lumber Co., Inc.[,] is the sister corporation of Residential Real Estate, Inc.”

A member of the Madison County Board of Review, Kerry Miller, appeared on its behalf. In accord with the Board of Review Notes on Appeal (Form PTAB — 6), presented to the PTAB by the Madison County Board of Review, he stated that he had examined commercial land sales in the area to see, first, if the land values applied to the property were, in fact, reasonable. The highest and best use of the property is, he said, its current use as a warehouse and for light manufacturing. An analysis of three commercial land sales in the area in 1984 showed prices ranging from $2.39 to $3.57 per square foot; the assessed valuations of two of these sales ranged from $.41 to $.49 per square foot. Two of the plaintiff’s three parcels are commercially zoned; the third parcel, which is vacant, is residentially zoned. The two commercially zoned parcels, consisting of 3.5 and 2.1 acres, contain 243,936 feet; the use of a figure of $.40 per square foot yields an assessment of the land in these two parcels of $94,570. The assessed value of these two parcels in 1984 was $33,780. With respect to the third parcel, zoned for residential use, the Madison County Board of Review indicated that if this parcel were put on the market, its use would then be limited to residential use, and its value would, therefore, be decreased. The assessor had erroneously reduced the assessment on this parcel from $11,110 to $1,200 in order to put it in line with other residential lots without realizing its location; the Madison County Board of Review maintained that the original assessment of $11,110 was more nearly in accord with the market. With the use of the assessment of $11,110 for that parcel, the total land assessment should be $108,680 ($97,570 and $11,110). The assessment for the land contained in the three parcels had, in fact, totaled $34,980 ($21,640, $12,140, and $1,200).

With regard to the improvements on the two commercially zoned parcels, the Madison County Board of Review calculated the replacement cost (new) of the buildings together with their depreciation. The improvements on the larger of these two parcels consist of a store/warehouse, three metal polebarns, and two structures with three sides open. These improvements date variously from 1965 to 1972. The reconstruction cost would be $259,507; their current value is considered to be $148,560, which, divided by three, yields an assessed value of $49,520. The current value of $148,560 appears to re-fleet a reduction for depreciation of 42.75%. The improvements on the smaller of the two parcels consist of a warehouse and a shop area/warehouse, both of which date from 1910. Their reconstruction cost would be $951,902; their current value is considered to be $65,790, which, divided by three, yields an assessed value of $21,930. The current value of $65,790 reflects a reduction for depreciation of about 93.1%. The parties indicate in their briefs that the evidence produced by the Madison County Board of Review pertaining to the buildings on the property was taken from the Illinois Real Property Appraisal Manual. The total assessment for both land and improvements for the larger of the two parcels was $71,160 ($21,640 and $49,520). The total assessment for both land and improvements for the smaller of the two parcels was $34,070 ($12,140 and $21,930). Those two figures, together with the assessment of $1,200 for the third parcel, amounted to a total assessment for the three-parcel complex of $106,430, which, when multiplied by three, indicated a market value of $319,290.

In an amended decision dated November 7, 1986, the PTAB noted the plaintiff’s contention that the purchase of 50% of the stock for $50,000 represented a fair market value of $100,000 for the entire property and found the decision of the Madison County Board of Review to be correct. It found the correct assessed valuation of the three parcels to be as follows: parcel No. 14-2-15-11-12-203-031, $73,680 (land $22,410 and improvements $51,270); parcel No. 14-2-15-11-16-403-026, $35,280 (land $12,570 and improvements $22,710); parcel No. 14-2-15-12-13-301-002, $1,240 (land $1,240 and improvements $-0-). The PTAB found further

“that the [plaintiff] failed to prove that the fair market value of the subject property was not accurately reflected in its assessed valuation. The only evidence presented by the [plaintiff] was a purchase of 50 percent of the outstanding shares of Residential Real Estate and the financial statements of Illinois Lumber Company. The [plaintiff] failed to establish a fair market value based on the financial data. Illinois Lumber Company is a sister corporation to Residential Real Estate. The sale of the stock was between two shareholders and Residential Real Estate. It is noted that all of the shareholders are related through marriage. This Board finds that the purchase of the stock of Residential Real Estate may not have been an arm’s length transaction. The [plaintiff] presented no evidence to establish whether or not this was truly at arm’s length. The transaction was between related shareholders. This calls into question the arm’s length nature of the sale. The best evidence of value was the cost approach submitted by the board of review. Therefore, this Board finds based on the cost approach submitted by the board of review, that the 1984 assessment is appropriate and no reduction is warranted.”

The PTAB noted that Robert Little had requested relief from the PTAB “in order to further reorganization.”

Upon review the circuit court in its order entered April 12, 1988, found that the plaintiff is a family-owned corporation, the only asset of which is the real estate in question, which is leased by a sister corporation of the plaintiff, Illinois Lumber. The court noted the plaintiff’s contention that the property was worth only $100,000, based upon the sale in 1983, which it described as “between related shareholders. The family relationship was that the buyers and the sellers were first cousins.” The court found that the conclusion of the PTAB was not contrary to the manifest weight of the evidence, noting plaintiff’s admission that it had no appraisal of the property, plaintiff’s lack of evidence as to the value of comparable properties, and plaintiff’s failure ever to offer the property for sale or lease to the public on the open market. Finding upon the basis of the entire record that the plaintiff had failed to sustain its burden of proof, the circuit court affirmed the amended decision of the Property Tax Appeal Board, and this appeal followed.

Because of the nature of the issues presented for review, we consider them together. Concerning the first issue the plaintiff contends that the PTAB applied an erroneous standard in judging the evidence. Plaintiff draws this conclusion from the statement of the PTAB in its amended decision that the plaintiff “failed to prove that the fair market value of the subject property was not accurately reflected in its assessed valuation.” (Emphasis added.) Plaintiff argues that this language shows that the PTAB believed that the findings of the Madison County Board of Review were entitled to a prima facie presumption of correctness and that the plaintiff had a burden to overcome. With respect to the second issue raised for review, the plaintiff contends that the PTAB misunderstood and “totally rejected without consideration” (emphasis in original) the plaintiff’s evidence concerning the stock redemption, “even to the extent of misstating it in its decision.” The plaintiff claims that the terms of the detailed agreement between it and the Stolze brothers make clear that the parties had divergent business interests and that the PTAB apparently ignored the two agreements although they were in evidence. Plaintiff avers that it was error for the PTAB to conclude that the parties were “related” in such a way that their transaction should be questioned; there is no evidence, plaintiff says, to support the finding of the PTAB that the arm’s-length nature of the stock sale should be called into question. This finding, according to the plaintiff, led the PTAB to reject unjustifiably much of plaintiff’s evidence. “By saying that the arm’s length nature of the sale was ‘called into question,’ ” plaintiff argues, “the Board in essence relied on a non-existent legal presumption.” Plaintiff claims that the PTAB gave no consideration to its evidence of income derived from the property, saying that the PTAB “incorrectly assumed that [plaintiff] was asking for relief from its property taxes because of an inability to pay taxes." (Emphasis in original.) The plaintiff seems to argue that the evidence of the declining income generated by the property indicated its market value and was not considered by the PTAB for that purpose. Plaintiff maintains that the PTAB violated the principles concerning valuation of real property set forth in Chrysler Corp. v. Illinois Property Tax Appeal Board (1979), 69 Ill. App. 3d 207, 387 N.E.2d 351, inasmuch as there was before the PTAB evidence of fair market value of the property, namely, the stock redemption agreements between it and the Stolze brothers. For these reasons, plaintiff urges, the decision of the PTAB is against the manifest weight of the evidence, PTAB having “completely failed to give consideration to the evidence presented by Plaintiff in light of the appropriate legal principles.”

The parties state correctly that the PTAB is not to afford prima facie weight to the findings and conclusions of fact made by the board of review (Mead v. Board of Review (1986), 143 Ill. App. 3d 1088, 494 N.E.2d 171; Western Rlinois Power Cooperative, Inc. v. Property Tax Appeal Board (1975), 29 Ill. App. 3d 16, 331 N.E.2d 286). The decision of the PTAB must be based upon equity and the weight of evidence. (Ill. Rev. Stat. 1985, ch. 120, par. 592.4; Commonwealth Edison Co. v. Property Tax Appeal Board (1984), 102 Ill. 2d 443, 468 N.E.2d 948; Mead, 143 Ill. App. 3d 1088, 494 N.E.2d 171.) A taxpayer seeking review in the PTAB from a decision of the board of review does not have the burden of overcoming any presumption that the assessed valuation was correct. (Mead, 143 Ill. App. 3d 1088, 494 N.E.2d 171.) Upon judicial review of an administrative decision, the trial court and the appellate court are limited to determining whether findings and orders of the administrative body are contrary to the manifest weight of the evidence and whether the administrative body acted arbitrarily in clear abuse of its discretion, and it is not the function of either of those courts to reweigh the evidence or to assess the credibility of the witnesses. (Mead, 143 Ill. App. 3d 1088, 494 N.E.2d 171.) The findings and conclusions of the administrative agency on questions of fact are held to be prima facie true and correct. (Ill. Rev. Stat. 1985, ch. 110, par. 3 — 110; Commonwealth Edison, 102 Ill. 2d 443, 468 N.E.2d 948; Mead, 143 Ill. App. 3d 1088, 494 N.E.2d 171.) On judicial review of an administrative decision, the appellant has the burden of proving the issues raised in the complaint. (Mead, 143 Ill. App. 3d 1088, 494 N.E.2d 171.) It is not the function of either the appellate court or the trial court to substitute its judgment for that of the PTAB but, rather, to insure that an objective, rational decision was reached after a fair hearing at which competent evidence was introduced. (Mead, 143 Ill. App. 3d 1088, 494 N.E.2d 171.) A determination by an administrative agency is not to be disturbed upon review unless manifestly against the weight of the evidence (Mead, 143 Ill. App. 3d 1088, 494 N.E.2d 171), and, in order to reverse an administrative order, it is required that an opposite conclusion be clearly evident. La Grange Bank No.1713 v. DuPage County Board of Review (1979), 79 Ill. App. 3d 474, 398 N.E.2d 992; People ex rel. Thompson v. Property Tax Appeal Board (1974), 22 Ill. App. 3d 316, 317 N.E.2d 121, cert. denied (1975), 422 U.S. 1002, 45 L. Ed. 2d 666, 95 S. Ct. 2623.

Fair cash value is synonymous with fair market value and is defined as the price a willing buyer would pay a willing seller for the subject property, there being no collusion and neither party being under any compulsion. (Ellsworth Grain Co. v. Illinois Property Tax Appeal Board (1988), 172 Ill. App. 3d 552, 526 N.E.2d 885.) A contemporaneous sale between parties dealing at arm’s length is not only relevant to the question of fair cash market value but would be practically conclusive on the issue of whether an assessment was at full value. (People ex rel. Korzen v. Belt Ry. Co. (1967), 37 Ill. 2d 158, 226 N.E.2d 265.) However, the sale price of property does not necessarily establish its value without further information on the relationship of the buyer and seller and other circumstances (Ellsworth Grain, 172 Ill. App. 3d 552, 526 N.E.2d 885). We find instructive the comments made by the court pertaining to arm’s-length transactions in Creme Manufacturing Co. v. United States (5th Cir. 1974), 492 F.2d 515, 520:

“If the taxable transaction is at arm’s length, the price charged and paid is taken to be an accurate representation of the true worth; that is, the fair market price. But if the transaction is not at arm’s length, some other manifestation that the price is nonetheless an accurate portrayal of the article’s worth is required. The price must be more than ‘fair’; it is not enough that the price compensate the manufacturing company for costs — and even provide a profit. The price must be a ‘market’ price; it must be the price which independent buyers in arm’s length transactions would be willing to pay.”

In Creme, we note, the court concluded that “[m]ere transfer of stock among the family members [parents and children] did not transform the intercompany sales into arm’s length transactions.” 492 F.2d at 521.

There are three basic methods of valuation of real property: (1) the market or comparison approach, which compares the prices actually paid, asked, or offered for similar properties; (2) the income approach, which considers the capitalization of net operating income and is used as a method of valuation when the property is most valuable as rental property; and (3) the cost approach, which considers the value of the land plus the depreciated reproduction cost of any improvements and focuses on what it would cost to recreate real property with the same value. (See Lake County Board of Review v. Property Tax Appeal Board (1988), 172 Ill. App. 3d 851, 527 N.E.2d 84; Ellsworth Grain, 172 Ill. App. 3d 552, 526 N.E.2d 885; Chrysler, 69 Ill. App. 3d 207, 387 N.E.2d 351.) None of these methods, however, provides conclusive evidence of value but are only factors to be considered. (Ellsworth Grain, 172 Ill. App. 3d 552, 526 N.E.2d 885.) Our supreme court has recognized that many factors may prevent a property owner from realizing an income from property that accurately reflects its true earning capacity; however, it is the capacity for earning income, rather than the income actually derived from the property, that reflects “fair cash value” for purposes of taxation. (Springfield Marine Bank v. Property Tax Appeal Board (1970), 44 Ill. 2d 428, 256 N.E.2d 334.) In Consolidation Coal Co. v. Property Tax Appeal Board (1975), 29 Ill. App. 3d 465, 470, 331 N.E.2d 122, 127, the court stated with regard to the use of the three methods of valuation:

“Market values generally are the standard to be used in valuing property for tax purposes. It is true that there are instances where no market value can be determined, or where a market value is not truly reflective of an item’s worth. In such situations, valuation methods such as ‘reproduction cost less depreciation’ and ‘capitalization of income’ are helpful. They are not, however, solely determinative of valuation.”

In Chrysler the court stated that, in general, reproduction cost should be emphasized only in the context of some special purpose property, which is property of such a nature and applied to such a special use that it cannot have a market value. The court in Chrysler held that there was sufficient credible evidence of comparable sales there for the sales to have been given sufficient weight as evidence of market value and concluded that the Property Tax Appeal Board’s assignment of a value based solely on a reproduction cost method was incorrect as a matter of law. Following Chrysler, in Willow Hill Grain, Inc. v. Property Tax Appeal Board (1989), 187 Ill. App. 3d 9, we recently determined that reliance on the replacement cost method of valuation was error where the record was replete with evidence of sales of other facilities similar in various respects to the subject property.

In the instant case the principal evidence offered by the plaintiff concerning the market value of the property was that pertaining to the stock redemption of one-half of the stock for $50,000, representing, according to the plaintiff, one-half of the value of the real property. Plaintiff’s president testified that the purchase price of $50,000 for one-half of the real property was “felt” to be “fair” and was “estimated” as a “fair market price” by the cousins and “cousins-in-law” in effecting the stock redemption. He testified that the property had not been offered for sale or lease to anyone outside the family and had not been appraised or inspected for purposes of comparison with similar property. The property is owned by the plaintiff as a family-owned corporation whose function is to hold title to the property, which, since plaintiff’s inception, plaintiff has leased only to its “sister corporation,” Illinois Lumber, which is, likewise, owned by members of the same family that owns the plaintiff. We have examined the entire record on review. The finding of the PTAB that the purchase of the stock may not have been an arm’s-length transaction is entirely in accord with the evidence. Although the plaintiff maintains that the financial data concerning the financial condition of Illinois Lumber was submitted as “further support of the diminished value of the property,” it could well have been deemed unpersuasive by the PTAB in that regard, particularly because of the failure of plaintiff to offer the property to anyone outside the family for sale or lease. The plaintiff elected not to put on other, objective evidence to show that the price of $50,000 was an accurate reflection of the market value of one-half of the property, and the PTAB, as trier of fact, could well have found the evidence that was presented by the plaintiff insufficient to show the market value of the property.

Unlike the cases of Chrysler and Willow, where there was sufficient evidence of comparable sales, in the instant case the only evidence of a sale was what has been described above and could properly have been deemed insufficient by the PTAB. Although the plaintiff adduced evidence of the declining income derived from the lease of the property to its sister corporation, Illinois Lumber, this was evidence of the income actually derived from the property rather than evidence of its capacity for earning income, which, as stated in Springfield Marine, reflects fair cash value for purposes of taxation. This evidence is particularly unpersuasive in view of the evidence that the property had never been offered for lease to the general public and that the annual rent had been reduced in accord with the declining fortunes of the lessee family business. Inasmuch as the PTAB could well have concluded that there was, in effect, no reliable evidence under either the market approach or the income approach to valuing the real property, the PTAB properly concluded that the best evidence of the property’s value was the cost approach submitted by the Board of Review, and it was not against the manifest weight of the evidence for the PTAB to find, based on the cost approach so submitted, that the 1984 assessment was appropriate and that no reduction was warranted. *

• 11 Given the insufficiency of the evidence adduced by the plaintiff, we conclude that there is no merit to the plaintiff’s contention 1 that the PTAB applied an erroneous standard in judging the evidence and improperly accorded a prima facie presumption of correctness to the findings of the Madison County Board of Review to be overcome by the plaintiff.

Affirmed.

WELCH, P.J., and CHAPMAN, J., concur.


author: PRESIDING JUSTICE WELCH

text:
    FRANCES E. KEMNER et al., Plaintiffs-Appellees, v. NORFOLK AND WESTERN RAILWAY CORPORATION, Defendant-Appellant (Monsanto Company, Defendant; G.A.T.X. Corporation, Defendant-Appellee and Separate Appellant; Dresser Industries, Inc., Defendant-Appellee and Separate Appellee; General American Transportation Corporation, Defendant-Appellee; Willamette Western Corporation, Third-Party Defendant).
    Fifth District
    No. 5 — 88—0010
    Opinion filed September 15, 1989.

      Stephen M. Schoenbeck, of Schoenbeck, Schoenbeck & Luther, of St. Louis, Missouri, for appellant Norfolk and Western Railway Corporation.
    Ted L. Perryman and Lisa L. Fadler, both of Roberts, Perryman & Bomkamp, P.C., of St. Louis, Missouri, for appellee Dresser Industries, Inc.
    Michael J. Pitzer and T. Michael Ward, both of Brown, James & Rabbitt, P.C., of St. Louis, Missouri, for appellee General American Transportation Corporation.
    Michael J. Pitzer and T. Michael Ward, both of Brown, James & Rabbitt, P.C., of St. Louis, Missouri, for G.A.T.X. Corporation.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

This appeal is from an order dismissing defendant Norfolk and Western Railway Company’s (the Railway’s) counterclaim for indemnity against codefendants Dresser Industries, Inc. (Dresser), and General American Transportation Corporation (GATX), entered in the circuit court of St. Clair County in December of 1983.

The incident resulting in this appeal occurred on the night of January 10, 1979, in Sturgeon, Missouri. At approximately 11:15 p.m. on that evening, a tank car being transported by the Railway derailed and was punctured as it came down upon its own wheel mechanisms. The tank car contained a liquid chemical manufactured by codefendant Monsanto Company (Monsanto). The liquid chemical, described as 19,000 gallons orthochlorophenol crude, leaked from the tank car, covering the surface, in varying degrees, along 2,700 feet of the Railway’s right of way.

Plaintiffs in the underlying suit were residents of Sturgeon, Missouri, who claimed personal injuries resulting from their exposure to the chemicals which leaked from the tank car. Suit was filed against defendants Railway, Dresser, GATX, and Monsanto in the circuit court of St. Clair County. In a consolidated action, plaintiffs alleged that the derailment and consequent spill were caused by a defective yoke, manufactured by Dresser, which was used by GATX in manufacturing the tank car. Railway’s liability was alleged to have resulted from Railway’s possession and exclusive control of the tank car at the time of its derailment, and from the Railway’s violation the Federal Safety Appliance Act (45 U.S.C.A. §§1 through 7 (West Supp. 1989)). Monsanto’s liability was based on several alleged negligent acts, including its failure to inspect the car for defects, its failure to remove the spilled chemicals from the area of the derailment, and its failure to warn the residents living near the area of the derailment of the possible danger resulting from exposure to the chemical.

On July 17, 1981, Railway filed its answer to plaintiffs’ complaint, and counterclaims against defendants Dresser, GATX, and Monsanto. On February 10, 1983, Railway filed amended counterclaims against the same defendants seeking indemnity and contribution based on strict liability and negligence.

On December 12, 1983, the day on which jury selection was to begin, plaintiffs announced that they had reached a settlement agreement with Dresser in the sum of $2,900,000. The objections of defendants GATX, Railway, and Monsanto notwithstanding, the trial court dismissed the claims for indemnity of these objecting defendants. The trial court found the settlement between plaintiffs and Dresser to have been entered into in good faith and concluded that such good-faith settlement precluded actions of codefendants for contribution, as dictated by section 2(d) of the Illinois Contribution Among Joint Tortfeasors Act (Contribution Act) (Ill. Rev. Stat. 1987, ch. 70, par. 302(d)).

The following day, December 13, 1983, plaintiffs informed the trial court that they had entered into a settlement with GATX for $2,100,000. Again, Monsanto and Railway objected to the settlement, and, again, the trial court found that the settlement was in good faith and therefore precluded any claims from a joint tortfeasor seeking contribution. The trial then proceeded against Monsanto and Railway. So that it might perfect an interlocutory appeal of the trial court’s dismissal of its counterclaims against Dresser and GATX, Railway requested that the court declare the orders of dismissal final. Railway’s request was honored, the orders dismissing Railway’s counterclaims against Dresser and GATX became final, and Railway filed its timely notice of appeal on February 29,1984.

On May 8, 1984, we entered an order staying the proceedings on this appeal pending the entry of judgment in the trial court. During December of 1984 while the lengthy trial was in process, Railway entered into a settlement with plaintiffs in the amount of $3,800,000. On October 22, 1987, the trial court entered judgment on the jury verdict in favor of the plaintiffs and against the remaining defendant, Monsanto, in the amount of $1 actual damages for each plaintiff, and $16,250,000 in punitive damages. On January 8, 1988, we vacated the order staying appellate proceedings with respect to the instant appeal, among others. In this appeal, we are asked to determine whether the good-faith settlements of defendants GATX and Dresser preclude Railway’s action for indemnity against these defendants. Railway seeks indemnity against Dresser and GATX based on two theories: implied indemnity under strict liability, and indemnity based on vicarious liability.

In two cases filed May 20, 1988, the supreme court considered the viability of indemnity actions in light of the Contribution Act. (Frazer v. A.F. Munsterman, Inc. (1988), 123 Ill. 2d 245, 527 N.E.2d 1248; Thatcher v. Commonwealth Edison Co. (1988), 123 Ill. 2d 275, 527 N.E.2d 1261.) In Frazer, the supreme court ruled that a claim for indemnity could not be maintained where the party seeking indemnity was found negligent in an underlying action based on a defective product. (Frazer, 123 Ill. 2d at 261, 527 N.E.2d at 1258.) In Frazer, the plaintiff suffered serious injuries when a rental trailer separated from the hitch on the back of a pickup truck and veered into oncoming traffic where it struck plaintiff’s automobile. The hitch to which the trailer had been attached was a portable hitch mechanism which was affixed to the rear bumper of the pickup. Plaintiff filed suit sounding in negligence and strict products liability against the operator of the trailer rental agency and the manufacturers of the portable hitch and trailer. The rental agency operator brought a third-party claim against the manufacturers for contribution and implied indemnity. (Frazer, 123 Ill. 2d at 252, 527 N.E.2d at 1249-50.) The manufacturers each settled with the plaintiff, and the rental agency operator was found liable for negligence following a jury trial. (Frazer, 123 Ill. 2d at 252-54, 527 N.E.2d at 1250-51.) The trial court dismissed the rental agency operator’s third-party action against the manufacturers, finding that an action for indemnity was barred by the Contribution Act. The supreme court affirmed, finding that because the rental agency operator had been found liable for negligence the operator could not seek indemnity. The supreme court stated that its decision should not be taken as meaning that the Contribution Act abolished all actions for implied indemnity.

In Frazer, the rental agency operator was found culpable by a jury, but the question of what might constitute “culpability” for the purpose of determining whether a party may validly claim indemnity when no judgment has been entered was not addressed by the Frazer court. However, the Thatcher case, filed the same day as Frazer, sheds some light on the question of what constitutes “culpability” for purposes of determining whether a party’s indemnity actions should be considered on the merits. Relying on Frazer, the Thatcher court held that a defendant who settled with the plaintiff in an underlying action could not maintain a third-party claim based on implied indemnity. Thatcher, 123 Ill. 2d 275, 527 N.E.2d 1261.

The plaintiff in Thatcher brought an action against defendants Commonwealth Edison Company and Dow Chemical Company to recover for personal injuries sustained at a plant operated by Commonwealth Edison Company while working with a high-pressure water hose designed and manufactured by Dow Chemical Company. (123 Ill. 2d at 276-77, 527 N.E.2d at 1261-62.) Commonwealth Edison Company filed a third-party action against Dow Chemical seeking contribution and indemnity under a strict products liability theory. The trial court dismissed the contribution claim pursuant to section 2(c) of the Contribution Act and dismissed the indemnity claim pursuant to the holding of Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 1352.

The supreme court on appeal affirmed the trial court’s dismissal of the indemnity action, but for reasons other than those relied on by the trial court. Noting that the trial court and appellate court “spoke too broadly” when each declared that implied indemnity had been abolished by the Contribution Act, the supreme court focused on the propriety of Commonwealth Edison’s indemnity action, assuming that such an action remained valid in the appropriate case. The supreme court in Thatcher considered the indemnity-seeking party’s substantial settlement, in the amount of $80,000, an indication of culpability sufficient to preclude the settling party from bringing an indemnity action. Thatcher, 123 Ill. 2d at 279, 527 N.E.2d at 1263.

In the case now before us, Railway voices two separate theories of indemnity in support of its contention that its indemnity action should not have been dismissed by the trial court. First, Railway claims indemnity under the “upstream” strict products liability theory, alleging that those upstream from it (Dresser, by whom the allegedly defective yoke was manufactured, and GATX, by whom the tank car was manufactured incorporating Dresser’s yoke) are strictly liable for injuries caused by the derailment and should therefore indemnify Railway from any liability imposed upon them. Second, Railway contends that it is entitled to indemnity based on vicarious liability.

We find Thatcher and its progeny discussed above controlling of Railway’s indemnity action based on strict “upstream” liability. Because Railway paid the plaintiffs $3,800,000 in settlement of their claims, and because plaintiffs’ pleadings alleged specific acts of negligence on behalf of Railway, we find that Thatcher dictates that an indemnity action based on strict product liability cannot be maintained by such a defendant. Therefore, we must affirm the circuit court’s dismissal of Railway’s indemnity action based on strict product liability of an upstream codefendant.

Turning to Railway’s second contention, in order to succeed on a vicarious liability theory, Railway must plead both a pretort relationship and a qualitative distinction between its conduct and that of the parties by whom Railway seeks to be indemnified. (AMF, Inc. v. Victor J. Andrew High School (1988), 172 Ill. App. 3d 337, 526 N.E.2d 584.) In AMF, the court observed that the classic pretort relationships which give rise to a duty to indemnify are between lessor and lessee, employer and employee, and master and servant. (172 Ill. App. 3d at 341, 526 N.E.2d at 587.) In Commonwealth Edison Co. v. Hoge-Warren-Zimmerman Co. (1989), 179 Ill. App. 3d 120, 534 N.E.2d 427, the court enunciated a test to be applied in determining whether a pretort relationship sufficient to sustain an indemnity action exists. The test requires that a party seeking indemnity based on vicarious liability plead a situation “in which a promise to indemnify can be implied from the relationship.” (Hoge-Warren-Zimmerman, 179 Ill. App. 3d at 126, 534 N.E.2d at 531, citing Frazer v. A.F. Munsterman, Inc. (1988), 123 Ill. 2d 245, 255, 527 N.E.2d 1248.) In considering whether Railway has pleaded a situation in which a promise to indemnify can be implied from the relationship between Railway and either Dresser or GATX, we are unable to find that Railway has satisfied this test. In its amended counterclaim, Railway does not specifically speak of vicarious liability and does not plead a pretort relationship necessary to plead indemnity based on a theory of vicarious liability.

We find nothing in the pleadings describing a relationship from which it may be inferred that either Dresser or GATX promised to in-Railway for liability arising in the underlying incident. While it is possible that an upstream manufacturer or distributor might indemnify downstream defendants from liability for damages resulting solely from the strict liability of the upstream defendant, this still would not automatically absolve the downstream defendants from being held liable for damages resulting from their own negligence. In addition to Railway’s failure to plead a pretort relationship, neither has Railway pleaded nor argued a qualitative distinction between its conduct and that of the parties by whom Railway seeks to be indemnified, as requires by AMF. (AMF, 172 Ill. App. 3d 337, 526 N.E.2d 584.) Thus, Railway’s counterclaim for indemnity based on vicarious liability was properly dismissed.

Based upon our disposition of the issues raised by Railway, we need not separately address the issues raised by separate appellant GATX.

For the reasons stated, the judgment of the circuit court of St. Clair County dismissing defendant Railway’s counterclaim seeking indemnity is hereby affirmed.

Affirmed.

HARRISON and RARICK, JJ., concur.


author: JUSTICE CHAPMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALEX NOLAN, Defendant-Appellant.
    Fifth District
    No. 5 — 86—0616
    Opinion filed September 20, 1989.

      Daniel M. Kirwan and Julia M. Gentile, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Dennis Middendorff, State’s Attorney, of Carlyle (Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys AppelProsecutor’s Office, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court:

After a jury trial, defendant was convicted of theft by deception in violation of section 16 — 1(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 16 — 1(a)(2)), a Class 4 felony (Ill. Rev. Stat. 1985, ch. 38, par. 16 — 1(b)(2)). The defendant was sentenced to three years in prison, and he now appeals, arguing: (1) that he was not proved guilty beyond a reasonable doubt because the State failed to offer any evidence of a prior theft conviction at trial; (2) that his conviction for misdemeanor theft was improperly enhanced to felony theft; and (3) that the defendant was denied a fair trial because the trial court erroneously admitted evidence of a subsequent act. In addition, the defendant also contends that his sentence was improper because the trial court failed to comply with the Alcoholism and Substance Abuse Act (Ill. Rev. Stat. 1985, ch. 111½, par. 6301 et seq.), and the court improperly considered an invalid prior conviction as an aggravating factor.

The defendant was charged with theft by information filed on June 10, 1986, in Clinton County. Prior to trial the defendant moved to exclude evidence of a 1982 Kankakee County attempted theft conviction because there had been no showing that the defendant had waived counsel prior to entering a plea of guilty. The court granted the defendant’s motion.

At the defendant’s trial, Trida Butler, a cashier at the National Food Store in Centraba, Illinois, testified that about 4:30 p.m. on June 9, 1986, the defendant purchased four boxes of corn muffin mix at her checkout lane. As Butler scanned and bagged the purchase, the defendant spoke very rapidly and told Butler that he had just won $600. The defendant handed Butler $1.01 in correct change for his purchase. The defendant then produced some $5 bills from his pocket and told Butler that he wanted “$50 worth — five tens” for gambling purposes. Butler counted out five $10 bills from her register drawer. Butler then began to count the defendant’s money when the defendant grabbed the five $10 bills from Butler’s hand and said, “Let me count your money while you count mine.” Butler grabbed the five $10 bills back, placed them on top of her register and continued to count defendant’s money. Butler found that the defendant had given her nine $5 bills and four $1 bills totalling $49, and informed the defendant that he was $1 short of $50. The defendant insisted that he had given Butler $50 and asked her to recount the money. Butler again counted only $49. The defendant asked that Butler recount his money while he counted her money. Defendant then grabbed the five $10 bills and placed that money, together with the defendant’s money that Butler held, in one pile, which the defendant told Butler now totalled $100. Butler counted the money, which totalled $100. The defendant then stated that he wanted five $20 bills. Butler placed all the money in her register drawer, pulled out five $20 bills, and handed the money to the defendant. The defendant then left the store. Butler immediately realized she was $50 short, and instructed the bagger, Gerad Peters, to go outside and find the defendant. Butler then checked the register drawer, which was $50 short.

Gerad Peters testified that he had been bagging groceries for Butler when the defendant came through Butler’s check-out line. Peters corroborated the testimony of Butler as to the exchange of money between the defendant and Butler. As the defendant left the store, Peters observed a reading of 58 cents on Butler’s register. Peters observed that Butler appeared upset and confused. Peters assumed the defendant had failed to pay Butler 58 cents. Peters went outside and approached the defendant in front of the store. He asked the defendant to return inside the store to pay 58 cents. The defendant replied that he was in a hurry because his wife was waiting in the car, and asked if he could give Peters the 58 cents. Peters agreed, and after handing Peters the 58 cents, the defendant walked away. When Peters returned inside the store, he learned that Butler was short $50 rather than 58 cents. Peters, the store manager, and a police officer went outside but were not able to find the defendant.

Outside the presence of the jury, the defendant moved to bar the testimony of the next -witness, Kimberly Michael, on the grounds that she would testify to conduct which occurred subsequent to the incident at the National Store which did not constitute a criminal offense. The State proposed that Michael’s testimony established an attempted theft by the defendant and, therefore, would be admissible to show intent. The court denied the defendant’s motion, but noted that it would give a limiting instruction to the jury that Michael’s testimony was admitted only to show motive, intent, design, absence of mistake, or modus operandi.

Kimberly Michael, a cashier at the Kroger Food Store, located about one block from the National Store, testified that on June 9, 1986, about 4:30 p.m., the defendant purchased a plant. The defendant gave Michael a $20 bill, and Michael handed him a $10 bill and eight $1 bills in change. During the exchange, the defendant spoke rapidly about poker games and asked Michael for different change than she had given him. Michael replied that she did not have any other bills. Michael’s register drawer was open and the defendant observed a $100 bill inside. The defendant told Michael that he needed larger bills and, since she did not have any smaller bills, he would give her twenties and tens for the $100 bill. An assistant manager then telephoned Michael and informed her that the National Food Store had just advised Kroger that the defendant was a “quick-change artist.” The defendant held a handful of bills and repeated his request for the $100 bill. Michael told the defendant he would have to go to the store’s office for change. The defendant accompanied her to the office, but then left the store without waiting for change.

The defendant testified that on June 9 he went to the National Food Store and purchased combread mix. The cashier was very friendly and, when the defendant pulled out money to pay for his purchase, asked where he had obtained so much money. The defendant explained that he had won it in a poker game, but that he preferred larger bills, since they would be easier to hide from his wife. Following the exchange of money between the defendant and the cashier, the defendant stated that he did not realize that he had money belonging to the store. A young man followed him and asked him for 58 cents, which the defendant handed to him. The defendant then went

to the Kroger Store, made a purchase, left the store and entered his car. The defendant then observed a man waving to him from about a block away. The man was from the National Food Store and told the defendant that their cashier had given the defendant too much money. The defendant explained that he had already returned 58 cents, but the man explained that the missing sum was $50. The defendant stated that he counted his money, concluded that he had $50 too much, and handed the man $50 in $5 bills. The man thanked the defendant and walked away. The police then arrived. The defendant further testified that he had been married five times and that he had last seen his wife in 1979. The defendant denied asking the cashier at Kroger for the $100 bill.

The jury found the defendant guilty. At sentencing on September 2, 1986, the State submitted a certified copy of the 1982 Kankakee County attempted theft conviction in aggravation. The State also offered, for enhancement purposes, a certified copy of a 1967 court record from Pemiscot County, Missouri, showing that a person named Alex Nolin had pleaded guilty to a charge of confidence game. The presentence investigation report indicated that the defendant frequently used heroin and cocaine, spending between $80 and $150 daily on narcotics.

Pattie Huber, a probation officer, testified at the sentencing hearing that the 1967 conviction represented a prior conviction of the defendant. Huber stated that in attempting to compile the defendant’s criminal history, she submitted the defendant’s name and birth date to the Federal Bureau of Investigation, but had not submitted the defendant’s fingerprints. Huber confirmed that the defendant regularly used cocaine and heroin. Over objection, the court found that the defendant’s Missouri conviction served to enhance the instant offense to a Class 4 felony and sentenced the defendant to three years in prison.

We first consider the defendant’s argument that the trial court erred in admitting evidence of a subsequent act. The subsequent act at issue is the conduct of the defendant at the Kroger Store which occurred after he left the National Store. The defendant claims that his conduct at the Kroger Store was consistent with innocent activity and did not constitute evidence of a subsequent crime. The State argues that the defendant’s conduct at the Kroger Store constituted an attempted theft and was therefore admissible. We agree with the State.

It is well settled that evidence of other crimes is admissible if it is relevant for any purpose other than to establish the defendant’s propensity to commit crimes. (People v. Bartall (1983), 98 Ill. 2d 294, 456 N.E.2d 59; People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489.) Evidence of other crimes cannot be admitted, however, until it is shown that a crime took place and that the defendant committed it. (People v. Wachal (1987), 156 Ill. App. 3d 331, 509 N.E.2d 648; People v. Hanei (1980), 81 Ill. App. 3d 690, 403 N.E.2d 16, cert. denied (1981), 450 U.S. 927, 67 L. Ed. 2d 357, 101 S. Ct. 1382.) While mere suspicion is insufficient (People v. Miller (1977), 55 Ill. App. 3d 421, 370 N.E.2d 1155), the State need not prove beyond a reasonable doubt that the defendant committed the subsequent crime because he is not on trial for that offense (People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200; People v. Kimbrough (1985), 138 Ill. App. 3d 481, 485 N.E.2d 1292; People v. Fuller (1983), 117 Ill. App. 3d 1026, 454 N.E.2d 334; see also People v. Osborn (1977), 53 Ill. App. 3d 312, 368 N.E.2d 608 (evidence of subsequent attempted rape was admissible as proof of modus operandi despite fact that charge of attempted rape was dismissed after a finding of no probable cause at preliminary hearing), cert. denied (1978), 439 U.S. 837, 58 L. Ed. 2d 134, 99 S. Ct. 122).

In People v. Lehman (1955), 5 Ill. 2d 337, 125 N.E.2d 506, the defendant was charged with armed robbery of a telephone company employee who made collections from public pay phones. The victim testified that his route book, which showed the collections to be made for the next 56 days, was also taken in the robbery. The victim also testified, over objection, that about a month and a half after the robbery, he observed a car following him while he was making collections on his route. He contacted the police, who testified that they watched the defendant following the victim for about an hour and a half. After stopping the defendant, a search revealed a gun and some other items similar to ones used in the robbery. The defendant was convicted and on appeal argued that testimony that he had been following the victim’s truck was prejudicial because it implied that he was preparing to commit a robbery. The supreme court agreed that the testimony gave rise to that inference, but held that it was admissible in view of the peculiar and distinctive features common to the robbery and to the defendant’s conduct on the day of his arrest.

Similarly, in the instant case, the defendant’s conduct at the Kroger Store was admissible to show modus operandi, intent, and absence of mistake. The testimony of the cashier at the Kroger Store indicated that, after receiving change from his purchase, the defendant spoke rapidly about a poker game and asked the cashier for different change than she had given him. The defendant then asked to exchange a handful of bills for a $100 bill in the cash drawer. After the defendant was told that he would have to go to the office to get change, he left the store. While the defendant’s conduct may not have been sufficient to prove him guilty beyond a reasonable doubt of attempted theft, it was admissible for the limited purpose of showing intent, modus operandi and absence of mistake. The defendant’s intent to commit a theft at the Kroger Store could be inferred from his conduct (People v. Davis (1979), 70 Ill. App. 3d 454, 388 N.E.2d 887), and his actions constituted a substantial step towards the commission of the offense. We hold, therefore, that the trial court did not err in admitting evidence of the defendant’s subsequent conduct at the Kroger Store.

We next consider the defendant’s claim that he was not proved guilty beyond a reasonable doubt of felony theft because the State failed to present evidence of a prior theft conviction. In People v. Hicks (1987), 119 Ill. 2d 29, 518 N.E.2d 148, the Illinois Supreme Court held that a prior theft conviction is an element of the offense of felony theft which must be alleged and proved to the trier of fact during the evidentiary phase of the trial. It is undisputed that no such evidence was presented in the instant case. The State contends, however, that the defendant waived this issue by failing to include it in his post-trial motion. One exception to the waiver rule, however, is with regard to the failure to prove a material allegation of an indictment. (People v. Walker (1955), 7 Ill. 2d 158, 130 N.E.2d 182.) We find, therefore, that the issue is not waived.

The State also argues that the defendant should be estopped from asserting any error in the State’s failure of proof because the defendant invited the error. The State contends that by seeking to exclude mention of his prior convictions through his motion in limine, which was granted by the trial court, the defendant is responsible for the very error of which he now complains.

This court accepted a similar argument in People v. Hall (1986), 145 Ill. App. 3d 873, 495 N.E.2d 1379. The defendant in Hall, charged with the same offense as the defendant in the instant case, was granted a motion in limine to exclude any evidence of his prior convictions at trial. On appeal, the defendant argued that his conviction should be reversed because the State had failed to prove his prior theft conviction. This court held that the defendant was estopped from raising such an issue because he had agreed to and invited the error.

We find that the instant case is distinguishable from Hall. In Hall the defendant sought to exclude any evidence of prior crimes or prior criminal activity because it would prejudice him in the eyes of the jury. It was error for the trial court to grant the motion because proof of a prior theft was a necessary element of felony theft. In the instant case the defendant sought to exclude evidence of his 1982 theft conviction in Kankakee County, claiming it was invalid because he did not knowingly waive his right to counsel. Since the record of the Kankakee conviction supported the defendant’s claim, the trial court did not err in excluding evidence of that conviction. It would be incongruous to blame the defendant for seeking to exclude evidence which should in fact have been excluded. While it is true that the last sentence of the defendant’s written motion in limine also sought to exclude “any other alleged prior misconduct,” it is apparent from the record that the court’s order granting the defendant’s motion encompassed only the 1982 Kankakee conviction. Furthermore, it is also apparent from the record that neither the attorneys nor the judge were aware that evidence of a prior theft needed to be presented to the jury. (We note that the theft statute has since been amended to provide that a prior theft conviction is not an element of the offense of felony theft and may not be disclosed to the jury (Pub. Act 85 — 691, eff. Jan. 1, 1988, amending Ill. Rev. Stat. 1985, ch. 38, par. 16 — 1(b)).) Under the circumstances, we believe that it would be disingenuous to find that the defendant invited the error. We find, therefore, based on Hicks, that the defendant was not proved guilty beyond a reasonable doubt of felony theft. We further find that the evidence was sufficient to support the defendant’s conviction for misdemeanor theft. Accordingly, we exercise our authority under Supreme Court Rule 615(b)(3) (107 Ill. 2d R. 615(b)(3)) and reduce the defendant’s conviction to misdemeanor theft and remand for resentencing.

The defendant also contends that his misdemeanor theft was improperly enhanced to felony theft through use of a Missouri conviction which bears a name similar, but not identical, to the defendant’s name. In view of the above disposition we need not address this issue, although we note parenthetically that it appears that the State failed to meet its burden of establishing the prior conviction beyond a reasonable doubt. See People v. Connell (1972), 6 Ill. App. 3d 791, 286 N.E.2d 565.

Finally, we consider the defendant’s contentions of error concerning his sentencing hearing so that they will not reoccur upon remand. We agree with the defendant that the trial court should have advised him of possible sentencing alternatives under the Alcoholism and Substance Abuse Act (Ill. Rev. Stat. 1985, ch. 111½, par. 6301 et seq. (repealed and substantially reenacted as the Alcoholism and Other Drug Dependency Act (Ill. Rev. Stat. 1987, ch. 111½, par. 6351 — 1 et seq.))). The Act places an obligation on the trial judge to advise every defendant whom the judge knows or has reason to believe is an addict of the possibility of treatment as an alternative to sentencing. (People v. Richardson (1984), 104 Ill. 2d 8, 470 N.E.2d 1024.) The presentence investigation report noted the defendant’s prior conviction for possession of marijuana and also contained the defendant’s statement that he was a frequent user of heroin and cocaine, spending between $80 and $150 per day on narcotics. This information should have been sufficient to alert the trial court to the possibility that the defendant was an addict, and the defendant should therefore have been informed of the possibility of treatment under the Act.

We also agree with the defendant that it was improper to allow the State to introduce evidence of the defendant’s 1982 Kankakee County conviction as a factor in aggravation. The trial judge had previously granted the defendant’s motion in limine to prevent the State from presenting evidence of the Kankakee conviction at trial because the record did not show that the defendant had waived counsel in that case. The same defect which prevented use of the Kankakee conviction at trial foreclosed its use as a factor in aggravation at the sentencing hearing because a prior conviction obtained in the absence of an effective waiver of counsel may not be used in determining a defendant’s sentence. United States v. Tucker (1972), 404 U.S. 443, 30 L. Ed. 2d 592, 92 S. Ct. 589; People v. Carter (1979), 72 Ill. App. 3d 871, 391 N.E.2d 427.

Based on the above, we modify the defendant’s conviction, vacate his sentence and remand this cause to the circuit court for resentencing.

Conviction modified; sentence vacated; remanded for resentencing.

RARICK and GOLDENHERSH, JJ., concur.


author: JUSTICE RARICK

text:
    HERBERT L. MAHRENHOLZ et al., Plaintiffs-Appellants, v. COUNTY BOARD OF SCHOOL TRUSTEES OF LAWRENCE COUNTY et al., Defendants-Appellees.
    Fifth District
    No. 5-87-0223
    Opinion filed September 20, 1989.

      Roscoe D. Cunningham, Ltd., of Lawrenceville, for appellants.
    William Strange, State’s Attorney, of Lawrenceville, for appellee County Board of School Trustees of Lawrence County.
    John F. Borden, of Gosnell, Benecki, Borden & Enloe, Ltd., of Lawrenceville, for appellee Board of Education, Community Unit School District #20.
   JUSTICE RARICK

delivered the opinion of the court:

This appeal arises from an action to quiet title to a lVa-acre tract of land located in Lawrence County, Illinois. Plaintiffs, Herbert and Betty Mahrenholz, filed their first complaint against defendants, County Board of School Trustees of Lawrence County and the Board of Education, Community Unit School District No. 20, in April of 1974. They since have been before us twice prior to this appeal. (See Mahrenholz v. County Board of School Trustees (1981), 93 Ill. App. 3d 366, 417 N.E.2d 138 (Mahrenholz I), and Mahrenholz v. County Board of School Trustees (1984), 125 Ill. App. 3d 619, 466 N.E.2d 322 (Mahrenholz II).) The controversy stems from the original conveyance of the land by W.E. and Jennie Hutton in 1941 to the Trustees of Schools of District Number One of the town of Allison (defendants’ predecessor in interest) by warranty deed “to be used for school purpose only; otherwise to revert to Grantor.” The school district subsequently built a school on the site, commonly known as Hutton School. The Huttons then conveyed the adjoining farmland and their reversionary interest in the school site to the Jacqmains, who in turn conveyed their interest to plaintiffs in 1959. The D/2-acre school site sits in the middle of plaintiffs’ farmland.

In May of 1973, defendants discontinued holding regular classes at Hutton School. The building, from that time on, has been used to warehouse and store miscellaneous school equipment and supplies, primarily unused desks. Plaintiffs filed suit in 1974 to quiet title to the school property in themselves on the basis of the interests acquired from the Jacqmains and from Harry E. Hutton, who was then believed to be the son and sole heir of W.E. and Jennie Hutton. (It was later determined Harry was in fact the stepson of Jennie Hutton, who survived her husband in joint tenancy.) The trial court dismissed plaintiffs’ third amended complaint for failure to state a cause of action ruling that the 1941 warranty deed conveying the H/a-acre tract to defendants created a fee simple subject to a condition subsequent followed by the right of entry for condition broken rather than a determinable fee followed by a possibility of reverter. We ruled, however, in Mahrenholz I that the Huttons created a fee simple determinable followed by a possibility of reverter. While plaintiffs acquired no interest in the tract from the Jacqmains, we held they could have acquired an interest in the property from Harry Hutton (Harry’s true status being unknown at this time). The litigation proceeded onward, resulting in a summary judgment for defendants on the basis the property was still being used for school purposes and had not reverted. We reversed this decision in Mahrenholz II, finding that there were genuine issues of fact as to whether the property actually was being used for a school purpose and whether plaintiffs were in possession of the premises. Twelve years after the first complaint was filed, the case finally came on for trial. After several days of testimony, a view of the property, and extensive briefing of the parties, the trial court ruled plaintiffs failed to prove that they were in possession of the premises and that the site was no longer being used for school purposes, resulting in the instant appeal. Both parties raise numerous points on appeal, but we believe the determinative issue is whether the property is being used for school purposes.

As we noted in Mahrenholz II, “school purpose” is indeed an ambiguous term, and in the context of a deed, undefined by case law. (125 Ill. App. 3d at 626-27, 466 N.E.2d at 327.) It does not, however, require the actual holding of classes. (125 Ill. App. 3d at 628, 466 N.E.2d at 328. See also Wauconda Community Unit School District No. 118 v. La Salle National Bank (1986), 143 Ill. App. 3d 52, 57-58, 492 N.E.2d 995, 999.) The question then becomes whether storage of school property constitutes a legitimate “school purpose.” We believe that, in general, the answer is yes. School populations are not static. They change from year to year, and in some instances, from month to month. In order to accommodate such changes, storage facilities are necessary, not only to house surplus equipment and supplies when attendance is low to meet the needs when attendance is higher but also to replace worn out and damaged items. Clearly, having such equipment and supplies on hand furthers the ultimate goal of educating students. This does not mean necessarily that all storage is for a school purpose. While defendants claim their storage falls within the ambit of “school purpose,” plaintiffs contend defendants are using the building for nothing more than a “dumping ground,” a refuge for obsolete materials, while allowing the building to deteriorate. If plaintiffs’ claims were true, we would be compelled to agree defendants’ use of the building would not constitute “school purpose.” The evidence at trial, however, was lengthy and conflicting. Plaintiffs presented considerable evidence as to the deteriorating condition of the building and the lack of value and use of much of the items “stored” inside. But, defendants also presented evidence of having spent substantial amounts of money to maintain the structure, particularly the roof, along with several examples of recent usage of some of the equipment. For instance, defendants claim they have “cannibalized” certain stored equipment to repair “in use” items and plan to install a scoreboard formerly housed at Hutton in a nearby smaller gymnasium. We, sitting as a court of review, will not substitute our judgment for that of the trial court when faced with conflicts in the evidence and issues of the credibility of witnesses. (See, e.g., Amoco Realty Co. v. Montalbano (1985), 133 Ill. App. 3d 327, 333-34, 478 N.E.2d 860, 865.) This is particularly true in this instance when the trial judge, at plaintiffs’ request, conducted a personal inspection and examination of the school and its contents. We agree with plaintiffs that defendants could have found more convenient storage facilities which were less expensive to maintain. It is not for us, however, to determine whether defendants’ use of the premises is in the best economic interest of the district and its taxpayers. We simply cannot say that the trial court’s determination that defendants’ use of Hutton School in this instance constitutes a legitimate “school purpose” is against the manifest weight of the evidence. This being so, we must hold the property has not been abandoned for school purposes so as to invoke the reverter clause of the 1941 deed. (See McCullough v. Swifton Consolidated School District (1941), 202 Ark. 1074, 155 S.W.2d 353; Harris v. Consolidated School District No. 8C (Mo. 1959), 328 S.W.2d 646 (en banc); Ballantyne v. Nedrose Public School District No. 4 (N.D. 1970), 177 N.W.2d 551. Cf. Withers v. Pulaski County Board of Education (Ky. 1967), 415 S.W.2d 604; Putney v. School District No. 4 (1934), 215 Wis. 539, 255 N.W. 76.) Because we are in agreement with the trial court’s disposition of this issue which, in turn, disposes of plaintiffs’ claim, we need not address the other issues raised by the parties.

For the aforementioned reasons, we affirm the judgment of the circuit court of Lawrence County in favor of defendants.

Affirmed.

GOLDENHERSH and HOWERTON, JJ., concur.