author: PRESIDING JUSTICE LUND

text:
    AMANDA LINDSEY, Plaintiff-Appellant, v. SPECIAL ADMINISTRATOR OF THE ESTATE OF GEORGE F. PHILLIPS, Deceased, Defendant-Appellee.—In re ESTATE OF GEORGE F. PHILLIPS, Deceased (Amanda Lindsey, Petitioner-Appellant, v. Charles Burton, Special Administrator, Respondent-Appellee).
    Fourth District
    Nos. 4—91—0133, 4—91—0237 cons.
    Opinion filed September 30, 1991.
    Rehearing denied October 28, 1991.

      Florence L. Bain, of Kanoski & Associates, of Springfield, for appellant.
    Rammelkamp, Bradney, Dahman, Kuster, Keaton, Fritsche & Lindsay, P.C., of Jacksonville (Barbara Fritsche, of counsel), for appellee.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

Plaintiff Amanda J. Lindsey appeals from the order of the circuit court of Schuyler County denying her motion to compel Charles Burton, special administrator for the estate of George E Phillips, to complete all acts required for the issuance of letters of administration in the underlying Schuyler County case No. 90 — P—15 (No. 4 — 91—0237) and from the order denying her motion for substitution of the special administrator therein. Plaintiff also appeals from the circuit court’s order striking the original complaint and quashing summons in her negligence action against the special administrator of the estate of George F. Phillips in Schuyler County case No. 90 — L—6 (No. 4 — 91— 0133). The law and probate cases have been consolidated for appeal.

Plaintiff’s complaint was filed (No. 90 — L—6) on April 11, 1990, alleging that on April 14, 1988, George F. Phillips was negligent in the operation of his automobile, thus causing an accident in which the plaintiff was injured. The complaint set forth that Phillips had died testate on October 14, 1988, and, since probate administration had not commenced, listed the defendant as “special administrator” of the estate of George F. Phillips, deceased. On the same date the complaint was filed, plaintiff also filed a petition with the probate division, asking for the appointment of a special administrator “for the purpose of defending a personal injury action.”

On June 25, 1990, after notice of hearing to the executors named in decedent’s will and to Charles A. Burton, the circuit court appointed Charles A. Burton administrator “for the purpose of accepting service of process and defending a personal injury action brought by and on behalf of Amanda Lindsey.” The written order did not refer to a bond, oath, or letters. However, the clerk’s docket entry stated: “Advised Atty[.] Bain this date upon receipt of Bond and Oath Letters would issue.” Thus began the confusion between a special administrator appointed under the authority of section 2 — 1008(b) of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1008(b)), and an executor or administrator appointed under either section 6 — 2 or 9 — 4 of the Probate Act of 1975 (Act) (Ill. Rev. Stat. 1989, ch. IMP-k, pars. 6 — 2, 9 — 4). There are no provisions in section 2 — 1008(b) of the Code which require an oath of office or the issuance of letters of administration. No power is vested in a special administrator to administer the assets of a decedent’s estate. The purpose of the appointment is limited. (Hannah v. Gilbert (1990), 207 Ill. App. 3d 87, 90, 565 N.E.2d 295, 297-98.) Section 2 — 1008(b) of the Code provides:

“If the death of a party to a personal action is suggested of record and no petition for letters of office for his or her estate has been filed, the court, upon motion and after such notice to the party’s heirs or legatees as the court directs, and without opening of an estate, may appoint a special administrator for the deceased party for the purpose of prosecuting or defending the action. If a legal representative is appointed for the estate before judgment is entered, and his or her appointment is suggested of record in the action, the court shall order that the representative be substituted for the special administrator.” Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1008(b).

Burton did not file a bond or sign an oath of office. He was served with summons (as special administrator) on July 6, 1990. On August 3, 1990, he specially appeared, objecting to jurisdiction over him as a special administrator, and moved to quash summons. He also requested that the action be barred pursuant to section 13 — 209(b) of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 209(b)). Burton contended that the negligence complaint filed on April 11, 1990, was a nullity because the special administrator was not appointed until June 20, 1990. He also contended that because the complaint was a nullity, the subsequent appointment of a special administrator was a nullity. If both of his arguments are correct, then it would appear plaintiffs would never be able to bring actions after the tortfeasor’s death if estates had not been opened. Are we to decide which comes first, the chicken or the egg?

On October 5, 1990, prior to a ruling on Burton’s motion, Amanda J. Lindsey filed a “MOTION FOR LEAVE OF COURT TO FILE FIRST AMENDED COMPLAINT.” The amended complaint attached to the motion named Burton as defendant and alleged that he was appointed as special administrator on June 25, 1990. The motion for leave was never noticed for hearing and was never ruled upon. Subsequently, the trial court, adopting the nullity argument and refusing to adopt a relation-back theory, struck the original complaint and quashed summons which had been served on Burton. This order was entered on November 29, 1990, in case No. 90 — L—6.

On January 25, 1991, Lindsey’s attorney filed a motion to compel in case No. 90 — P—15, asking that Burton be required to complete acts required for the issuance of letters of administration. Burton responded by a special appearance setting forth the court’s ruling in case No. 90 — L—6 and suggesting that the dismissal of the civil case resulted in Lindsey being without authority in the probate case. It was suggested that Lindsey was now barred by the expiration of the statute of limitations. On March 4, 1991, the court denied the motion to compel. On March 14, 1991, Lindsey filed a motion for substitution of special administrator. This was denied by a March 25, 1991, order which also provided for a Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) finding.

There appears to have been a misunderstanding of the various statutory provisions involving limitations. Section 13 — 202 of the Code effective in 1988 provided for a two-year period of limitation in personal injury actions, the two-year period beginning on the date of the occurrence of the injury. (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 202.) At the time of the accident and at the time of Phillips’ death, section 13 — 209 of the Code provided:

“If a person against whom an action may be brought dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, and is not otherwise barred, an action may be commenced against his or her executors or administrators after the expiration of the time limited for the commencement of the action, and within 6 months after the issuing of letters of office.” Ill. Rev. Stat. 1987, ch. 110, par. 13 — 209.

The pleadings established that Phillips died before the expiration of the statute of limitations provided for in section 13 — 202 of the Code. Personal injury actions survive death of the party defendant, and the action was not otherwise barred by an estate claim period, as no estate proceedings were commenced. Thus, without considering section 18 — 12 of the Act (Ill. Rev. Stat. 1987, ch. 110%, par. 18 — 12), it would appear that plaintiff’s action could commence beyond the two-year period of limitation provided for by section 13 — 202 of the Code and within six months after the issuing of letters of administration for Phillips’ estate. However, section 18 — 12 of the Act in 1988 provided, in part, as follows:

“[A]ll claims barrable under this Section are, in any event, barred unless letters of office are issued upon the estate of the decedent within 3 years after decedent’s death.” (Ill. Rev. Stat. 1987, ch. 110%, par. 18-12.)

Assuming there is not an appointment of an executor with accompanying letters in the Phillips estate, regardless of the six-month provision set forth in section 13 — 209 of the Code, the Lindsey claim would be barred three years after Phillips’ death, which would be October 14,1991.

Defendants argue that the limitations period has now run because Burton’s appointment started the six months referred to in section 13 — 209 of the Code. (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 209.) While in light of our decision in this opinion we need not rule on this contention, we elect to comment. The “executors or administrators” referred to in section 13 — 209 of the Code do not include special administrators provided for under section 2 — 1008 of the Code. The six-month period set forth in section 13 — 209 of the Code is consistent with the corresponding claim period incorporated in the Act (Ill. Rev. Stat. 1987, ch. llOVs, par. 18 — 12). Executors and administrators appointed under the Act are given powers to collect assets, manage assets, pay claims, and make distributions. None of these powers are, or should be, allotted to the special administrator appointed under section 2 — 1008 of the Code. Because the appointment of the special administrator does not allow for the beginning of the six-month claim period, it should not affect the limitation extension provided by section 13 — 209 of the Code.

We first address plaintiff’s contentions as they apply to the probate proceedings. Lindsey’s argument shown by the trial court record indicates she was expecting that something more than a special administrator would be appointed in case No. 90 — P—15. However, her motion for appointment sought only the special administrator. The docket entry relating to receipt of “Bond and Oath Letters would issue” apparently confused counsel. However, a clerk’s notation is not an order (see In re Estate of Caldwell (1975), 33 Ill. App. 3d 175, 337 N.E.2d 245), and the written order made no provision for a bond and oath. No administration of the estate was ordered or implied. The appointment was made under the authority of section 2 — 1008(b) of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1008(b)). Once the order was entered, Burton could be made a party. The court’s order refusing to compel was correct. We also find no legitimate reason was given for the requested substitution of special administrator.

The record in case No. 90 — P—15 at this time indicates that Charles A. Burton is administrator of the estate of George E Phillips, deceased, for purposes of accepting service of process and defending a personal injury action brought by and on behalf of Amanda Lindsey.

We now address the November 29, 1990, order in the law case, No. 90 — L—6, which ordered the original complaint stricken and quashed the summons served on Burton. The trial court, in that order, specifically found “that the Plaintiff brought the instant action against a nonentity, and their arguments in regard to ‘relation back’ are without merit.” Plaintiff’s relation-back argument was based upon the theory that with Burton’s qualifying and the filing of the amended complaint, section 2 — 616 of the Code allowed for the continuance of the amended proceedings as amended. The Stringer v. Estate of Jasaitis (1986), 146 Ill. App. 3d 270, 496 N.E.2d 1196, decision held that where a negligence action was brought against the decedent’s estate (before the appointment of an executor), the amended complaint naming the then-appointed administrator related back, and the action was not a nullity.

We again note that the motion to file an amended complaint has never been presented to the trial court. The failure to obtain an order allowing the filing of the amended complaint appears to be the only factual difference from the facts in the Stringer case. In the present case, the plaintiff’s first-amended complaint was complete in itself, not incorporating any part of the original complaint. We find that the trial court should have allowed the filing of the amended complaint before considering the motion to strike and suppress. By following the Stringer ruling, we determine the motion to strike and suppress should have been denied.

In cases such as the one before us, the better practice would be to first proceed with the appointment of the special administrator. This appointment would then be followed with the filing of a complaint listing the special administrator as a party defendant. It appears in cases where the special administrator is to be plaintiff, such a procedure would be mandatory.

For the reasons set forth herein, we reverse the trial court’s order striking the complaint and suppressing summons, directing it to order the filing of the first-amended complaint and directing defendant to answer or otherwise plead.

Case No. 4 — 91—0237 (90 — P—15) is affirmed.

Case No. 4 — 91—0133 (90 — L—6) is reversed and remanded with instructions.

STEIGMANN and KNECHT, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE RAKOWSKI

license: Public Domain

text:
    WILLIAM BLACK et al., Plaintiffs-Appellees, v. ALBERT IOVINO, Defendant-Appellant.
    First District (6th Division)
    No. 1—89—2855
    Opinion filed February 15, 1991.
    Rehearing denied October 22, 1991.

      Patrick S. Moore, of Chicago, for appellant.
    Lehrer, Flaherty & Canavan, P.C., of Wheaton (Maureen Flaherty, of counsel), for appellees.
   PRESIDING JUSTICE RAKOWSKI

delivered the opinion of the court:

Following a bench trial, the trial court found that defendant had committed common law fraud and violations of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1983, ch. ±2V-k, par. 262) (Consumer Fraud Act). Plaintiffs were awarded actual and punitive damages, costs and attorney fees.

The issues raised by defendant on appeal are: (1) whether the trial court erred in admitting documents and testimony regarding loans for the purchase of other vehicles; (2) whether the trial court erred in admitting the testimony of plaintiffs’ purported expert witness; (3) whether the trial court erred in finding that defendant was liable for common law and statutory fraud; (4) whether the trial court erred in assessing compensatory damages in the amount of $3,000; and (5) whether the punitive damage award of $20,000 was improper. Plaintiffs have filed a cross-appeal raising the issue of whether the trial court abused its discretion in arbitrarily reducing the amount of attorney fees.

On February 20, 1983, the plaintiff William Black saw an advertisement in the Chicago Tribune for the sale of a 1980 Cadillac Sedan deVille placed by the defendant Albert Iovino. William and Charlene Black observed the car that day, and they agreed to purchase the vehicle for $9,350. The sale was completed on March 1, 1983. On September 13, 1983, plaintiffs filed a complaint against defendant alleging that he knowingly misrepresented the prior ownership of the vehicle as well as its “salvage vehicle” status, and that this conduct consisted of fraud. Approximately four years later, plaintiffs amended their complaint to include a second count alleging that the transaction at issue was a violation of the Consumer Fraud Act.

At the trial, which commenced on July 12, 1989, William Black testified that when he first spoke with defendant by telephone, defendant stated that the vehicle had only been driven for 20,000 miles and that it was very clean. Plaintiffs went to defendant’s house and saw the vehicle under artificial light. William Black noted that both the exterior and interior of the vehicle were very clean, and he asked defendant if the car had come from a dealer. According to Willia.m Black’s testimony, defendant replied that he acquired the car from his father-in-law’s estate rather than from a dealer. When Black asked defendant about a missing owner’s manual and why there were no grease stickers on the door, defendant stated that the owner’s manual was probably with the estate papers. Defendant had no explanation for the absence of grease stickers on the door, but he stated that the car had been serviced regularly.

The next day William Black telephoned defendant and informed him that he could obtain the money for the purchase of the vehicle and close on the transaction the following day. Defendant then stated that he would get the title to the vehicle, but, he telephoned Black a short time later and told him that the title had never been transferred to him. Black also testified that defendant refused any assistance that Black offered to expedite the transfer of the title to defendant. Black then telephoned the bank that was allegedly in possession of the vehicle title, to verify its existence. According to Black’s testimony, he was informed by one of the bank employees that the vehicle at issue had been purchased by defendant from an automobile dealership. Black then telephoned defendant and told him about his conversation with the bank employee. Defendant denied that the car had been purchased from a dealership. Black testified that, at that point, he still accepted defendant’s statement that the vehicle was from his father-in-law’s estate. Black stated that he again telephoned defendant that evening and questioned him about the origin of the vehicle. In response to Black’s inquiry, defendant stated that the mileage reading of 20,000 on the odometer was accurate, that the car was from his father-in-law’s estate and that his father-in-law had owned the car for several years. Defendant also stated that, to his knowledge, his father-in-law had never had an accident with the vehicle which required repair, and the vehicle had never been “cleaned up” by a dealership. Black testified that he believed defendant’s statements and relied on them to proceed with the transaction.

On March 1, 1983, Black met defendant at the bank. Black gave defendant a check for the agreed sale price, and defendant gave Black the certificate of title. Black inspected the title and noted that it contained the initials “SV,” but testified that he thought the initials stood for Sedan deVille. Black sent the requisite documents to the Secretary of State to obtain title to the vehicle. Shortly thereafter, he received a correspondence from the Secretary of State’s office informing him that the car was a salvage vehicle, which was indicated as SV on the title. Black then obtained a certified copy of the chain of title to the vehicle which indicated that the original owner of the vehicle was an automobile dealer by the name of LeRoy Lewis. The car had been stolen from Lewis, and when it was found, it was declared a total loss and titled to the insurance company, which sold the vehicle to Nicole Motors. Defendant received title to the vehicle from Nicole Motors on February 24, 1983.

When Black discovered that the car he had purchased was a salvage vehicle, he made a second inspection of it and found the following alterations: (1) the vinyl top and interior had been dyed tan; (2) the trim, which should have been painted, consisted of plastic strips; (3) the left front fender had been repainted; (4) the interior head liner had several wrinkles; (5) the rear seat was not bolted down; and (6) the trunk lock had been repaired. Black also testified to several other cosmetic alterations in the interior of the vehicle.

Defendant testified as an adverse witness that he purchased the vehicle at issue from Nicole Motors in November 1982. He also stated that the car was in the same condition when it was sold to Black as when he had purchased it. Defendant could not recall how many miles the car had been driven during the time he owned it but estimated that it was approximately 2,000 miles. He did not apply for a certificate of title and could not recall if one was issued in his name before he sold the vehicle to Black. Defendant testified that he told Black that he had obtained the vehicle in question from a dealer and denied telling him that it was from his father-in-law’s estate. Defendant also denied any knowledge that the car had been totally rebuilt. Defendant was then shown documents containing the title history of the vehicle. One of these documents contained the signature of defendant with the letters SV next to the signature. Defendant initially stated that the signature looked like his signature, but then claimed that he had never seen the document and did not sign it.

Carl Wascher testified that he was a loan officer for the Villa Park Trust and Savings Bank. As a loan officer, his responsibilities included approving and executing consumer, automobile and home improvement loans as well as some commercial loans. During the past several years he primarily dealt with automobile loans. In this capacity, he became familiar with automobile values and what the bank would approve as a loan. He also stated that the bank valued automobiles by means of a used car evaluation book known as the “Red-book.” The court accepted Wascher’s qualifications to testify as an expert. Wascher then testified that he used the Redbook as a reference to determine the value of the vehicle at issue and verified with the publisher that the amount listed was the correct figure at the time the vehicle was purchased. He testified that a 1980 Cadillac Sedan deVille in January 1983 was worth $9,900. Wascher further testified that a salvage vehicle was one which was damaged to such an extent that the amount of damage exceeded the value of the vehicle. Its value was then greatly reduced because a bank would not put a lien on the vehicle as it could not be used as collateral. This factor also made resale of the vehicle difficult. Wascher further testified that he considered the mileage as well as the condition of the vehicle in determining its value. He stated that the vehicle at issue had very little or no value because of the SV designation. He also added that even if a bank were to put a lien on a vehicle with an SV designation, its value would still be diminished.

Charlene Black testified that she was with her husband when they first saw the car at defendant’s home. When she asked defendant why he was selling the car, he replied that it had belonged to his father-in-law but that his father-in-law had died.

Defense counsel had subpoenaed plaintiff’s brother, Robert Black, as his first witness, but when Robert Black failed to appear counsel for both parties agreed to the admission of Robert Black’s deposition testimony into evidence. At the time of his deposition, Robert Black had been the owner of an “Auto body rebuilding” shop in Geneva, Illinois, for six years. He had been in the auto rebuilding business for 41 years and had owned his own business for 17 years. As part of his business, he prepared repair estimates and appraised vehicles. He had also had business transactions with numerous major insurance companies, such as State Farm and Allstate. Robert Black stated that he had inspected the vehicle at issue approximately V-lz to 2 years earlier. As part of his inspection of the vehicle, he placed it on a rack to inspect the underside. He found that the step plates had been removed and that the top of the rocker panel had been cut in order to push out a dent on either side of the vehicle. He also testified to the various cosmetic changes in the interior of the vehicle which were described in William Black’s testimony. Robert Black stated that he had cautioned his brother against purchasing a vehicle with an SV designation on the title six months before the vehicle at issue was purchased. He then stated that an SV designation on a title reduced the value of the vehicle by about $2,000. Robert Black contacted Richard's Buick in St. Charles and was informed that the vehicle at issue was worth $6,000 at that time.

Klemens Brszkiewicz testified for the defense that he was an independent insurance adjuster/appraiser. He was initially involved in the automotive repair trade and then became an insurance appraiser, which he has been for about 24 years. Brszkiewicz stated that he received on-the-job training and attended trade schools and technical institutes. He testified that he was self-employed and was the owner and operator of Suburban Appraisal. Brszkiewicz was familiar with the SV designation and its effect on the value of automobiles. He stated that he determined the value of a vehicle by reference to the “National Automotive Dealers Appraisers” and the Redbook. Brszkiewicz further stated that he did not see the vehicle title when he was determining its value. He testified that a salvage vehicle could only be sold to a licensed rebuilder to be put in serviceable condition. The vehicle would then be inspected by the Secretary of State. The purpose of the SV designation was to prevent the rebuilding of vehicles with stolen parts. Brszkiewicz also stated that the value of the vehicle would be affected if it was not properly repaired, but that, in his opinion, the SV designation had no affect on its value in the insurance industry. If a salvage vehicle was rebuilt, its value could not be determined until it was inspected. Brszkiewicz stated that a title with a SV designation was a lienable title but added that he had never worked as a loan officer for a bank.

Following closing argument, the case was taken under advisement. Judgment was subsequently entered against defendant, and plaintiffs were awarded $3,000 in actual damages and $20,000 in punitive damages. Plaintiffs’ counsel petitioned the court for attorney fees and costs, and defense counsel filed a response. The trial court reduced the hourly rate requested by plaintiffs’ counsel but approved the hours sought. The amounts awarded were $17,785 in attorney fees and $1,244.81 in costs. Defendant subsequently appealed and plaintiffs cross-appealed the trial court’s reduction in the amount of attorney fees.

In their brief, plaintiffs preface their reply to defendant’s arguments by claiming that a number of issues raised by defendant should be stricken because there is no citation to authority. Because we conclude that several of the 14 issues listed are repetitious, we have combined some of them and reduced the number to five issues. There are now cases cited for each of the issues, and none of the issues are stricken.

Defendant has also prefaced his argument in his reply brief with a motion to strike the plaintiffs’ statement of facts, arguing that it contains inaccurate or false statements. Both parties’ statements of fact contain excerpts from trial testimony which were contradictory. On review, this court disregards inappropriate statements contained in either brief. Therefore, striking plaintiffs’ statement of facts is unwarranted. James v. Yasunaga (1987), 157 Ill. App. 3d 450, 452, 510 N.E.2d 531.

Defendant first contends that the trial court erred in admitting evidence of loans for the purchase of other vehicles because the evidence was prejudicial, irrelevant and in violation of a pretrial discovery order. The documents to which defendant refers were four loans which he obtained to purchase used cars from Nicole Motors between December 1981 and March 1983. At the trial, these documents, which were identified as plaintiffs’ exhibits 10 through 13, showed that defendant purchased and sold four used vehicles within a 15-month period, and that two of the vehicles were salvage vehicles. Contrary to defendant’s contention, the documents were relevant to plaintiffs’ allegations that defendant knowingly misrepresented the prior owner(s) of the subject vehicle as well as its salvage vehicle status, both of which constituted fraud. The documents were also relevant to show that defendant was more actively involved in the purchase and sale of vehicles than a private party involved in an isolated transaction. This is evidence which could bring defendant’s conduct under the regulation of the Consumer Fraud Act.

Defendant further argues that the admission of the documents was error because plaintiffs failed to reveal the source of the documents, and they were apparently obtained in violation of a prior discovery order of the court. Prior to the trial, plaintiffs had subpoenaed Mid America Federal Savings & Loan, Nicole Motors and the Secretary of State for documents regarding any transactions with defendant. The motion to quash plaintiffs’ subpoena for records from Mid America Federal Savings Bank was granted without prejudice to plaintiffs’ filing a more limited request. The motion to quash the subpoena for records from Nicole Motors was denied, and the subpoena was amended so that Nicole Motors was only required to produce documents regarding the sale of vehicles to defendant during the period between February 20, 1982, and February 20, 1983. A third motion by defendant to quash a subpoena for records from the Secretary of State was also denied, and the subpoena was amended to only require the production of material related to defendant individually and in conjunction with Nicole Motors. Although plaintiffs claimed that the documents were obtained from the Secretary of State, defendant argued at the trial and now on appeal that the documents were obtained from Mid America Federal Savings & Loan in violation of the court’s pretrial discovery order. Because the source of the documents was a factual question for the trial court to determine, and defendant asserted his allegation without any supporting evidence, the trial court’s finding that the admission of the documents did not violate a prior court order was proper. Gerill Corp. v. Jack L. Hargrove Builders, Inc. (1989), 128 Ill. 2d 179, 197, 538 N.E.2d 530.

Defendant argues that the documents were improperly admitted as substantive evidence because they were purportedly offered for impeachment, and a timely objection to the admission of the documents was made by defense counsel at the trial. However, it was the trial court which determined that the documents were admissible as substantive evidence of “knowledge and fraud.” Furthermore, although defense counsel did object to the admission of the documents at the trial, the arguments he advanced, both at the trial and in his brief, were based on relevancy and the pretrial discovery order. We have previously addressed both arguments and have found that neither one supports defendant’s position that admission of the documents was improper. We also find that defendant’s remaining arguments relative to this issue have no merit.

For the above reasons, we conclude that the admission of the documents and testimony regarding loans for the purchase of other vehicles by defendant was proper.

Defendant next contends that the admission of the testimony of plaintiffs’ purported expert was error because plaintiffs’ counsel failed to establish adequate credentials for the witness to testify as an expert on the value of the subject vehicle. Whether a witness qualifies as an expert is within the sound discretion of the trial court. Hardware State Bank v. Cotner (1973), 55 Ill. 2d 240, 250, 302 N.E.2d 257; First National Bank v. Village of Mount Prospect (1990), 197 Ill. App. 3d 855, 863, 557 N.E.2d 1257.

In this case, plaintiffs offered the testimony of Carl Wascher, who testified that he had a bachelor of science degree in business administration and a similar degree in systems management. He was employed as a loan officer at the Villa Park Trust and Savings Bank. He testified that he was responsible for the approval of various consumer, home improvement, commercial and automobile loans, and that for the past three years he primarily arranged automobile loans. Wascher also stated that the Redbook was used by the bank as an authority in determining the value of an automobile, and that other factors such as the mileage and general condition of the vehicle were also factors which were considered. The trial court accepted Wascher’s qualifications to testify as an expert in the valuation of used cars. Wascher then testified that the subject vehicle was worth $9,900 in 1983, without the SV designation, but that with the designation, the vehicle had almost no value.

Defendant claims that Wascher had no education, training or specialized knowledge regarding the valuation of automobiles beyond that of the average person. Although defendant relies on Buechin v. Ogden Chrysler-Plymouth, Inc. (1987), 159 Ill. App. 3d 237, 511 N.E.2d 1330, in support of his argument, the trial court in that case found that the witness did not qualify as an expert, as opposed to this case, where the witness was found to be qualified.

Defendant also argues that the testimony of Wascher was contradictory and unbelievable. Wascher testified that a vehicle with an SV designation was reduced in value because a bank would not issue a loan if the designation was on the title. However, even if we were to agree that the record does not support why a three-year-old Sedan deVille in excellent condition is without value, the result in this case would not change. Robert Black had previously testified that he had extensive experience in the automobile rebuilding business over a period of 41 years. He stated that a salvage vehicle designation reduced the value of the vehicle by approximately $2,000. To verify the value of the vehicle, Robert Black contacted a dealership. The used car manager informed Black that with the SV designation, the vehicle was worth $ 6,000. The fact that the trial judge awarded plaintiffs compensatory damages of $3,000 rather than the total amount that they had paid for the vehicle, as suggested by Wascher, indicates that he considered other competent evidence along with Robert Black’s testimony in determining plaintiffs' damages.

Defendant next contends that the trial court erred in finding that he was liable for common law and statutory fraud. The elements of a cause of action for common law fraud are: (1) a false statement of a material fact; (2) known or believed to be false by the party making it; (3) an intent to induce the other party to act; (4) action by the other party in reliance on the truth of the statement; and (5) damage to the other party as a result of the reliance. Reliance by the other party must also be justified. (Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 286, 402 N.E.2d 599.) The concealment of a fact amounts to a misrepresentation only if it was done with the intent to deceive under circumstances where there was opportunity and a duty to speak and the other party would have acted differently if the fact had not been concealed. (Huls v. Clifton, Gunderson & Co. (1989), 179 Ill. App. 3d 904, 909, 535 N.E.2d 72; Lindsey v. Edgar (1984), 129 Ill. App. 3d 718, 723, 473 N.E.2d 92.) Whether a party has adequately proved the elements of fraud is a question of fact, and a reviewing court will not disturb a trial court’s finding of fraud unless it is against the manifest weight of the evidence. Crowder v. Bob Oberling Enterprises, Inc. (1986), 148 Ill. App. 3d 313, 315, 499 N.E.2d 115; Parsons v. Winter (1986), 142 Ill. App. 3d 354, 359, 491 N.E.2d 1236.

In count I of their amended complaint, plaintiffs alleged that defendant knowingly misrepresented the prior ownership of the vehicle, failed to disclose its salvage vehicle status, and that these misrepresentations and omissions were part of a plan or scheme to induce plaintiffs to rely on them in purchasing the car. Plaintiffs further alleged that they reasonably relied on defendant’s statements and that they were material to plaintiffs’ decision to purchase the vehicle. Finally, plaintiffs alleged that they were damaged in their ability to sell the vehicle as a result of defendant’s misrepresentations and omissions.

William Black testified at the trial that prior to the purchase of the vehicle, defendant told plaintiffs that the vehicle had belonged to defendant’s father-in-law, who had recently died, he had owned the vehicle for several years, the vehicle had never been in an accident while it was in the father-in-law’s or defendant’s possession and it had not come from a dealership. Black also testified that after he purchased the vehicle, he received a document informing him that the vehicle was a salvage vehicle. Although defendant denied any knowledge of the salvage vehicle status, the evidence established that defendant had signed a document which indicated that the vehicle was a salvage vehicle. The evidence also established that defendant had purchased the vehicle from the dealership after it had been rebuilt. In addition, evidence was presented regarding the reduction in value of the vehicle due to its salvage vehicle status.

Defendant cites Parsons (142 Ill. App. 3d 354) in support of his argument that plaintiffs failed to establish clear and convincing evidence of a knowing misstatement or omission of material fact on the part of defendant. Defendant claims that assuming that he made the misrepresentation that the vehicle came from his father-in-law’s estate, and he did not disclose that it came from a dealer, this misstatement and omission was not actionable. Defendant reasons that the statement regarding the source of the vehicle was only an expression of opinion as to the value of the property which could not be the basis for a claim of fraud. However, defendant’s statements that the vehicle was from his father-in-law’s estate and not from a dealership was clearly a misstatement of fact rather than an opinion of the vehicle’s value, unlike the statement of a real estate broker regarding the market value of property in Duhl v. Nash Realty, Inc. (1981), 102 Ill. App. 3d 483, 429 N.E.2d 1267, which is cited by defendant.

Defendant also claims that the statements regarding the source of the vehicle were not material because whether the vehicle was from his father-in-law’s estate or the dealership did not affect its value. Defendant is partially correct in stating that it was the SV designation on the title that affected the value of the vehicle. However, what also affected the value was the fact that the vehicle had been stolen, damaged beyond repair and subsequently rebuilt. There was evidence from the deposition testimony of Robert Black as to the structural and cosmetic defects, and the fact that the rebuilt product was not of the same quality as a vehicle of that year which had not gone through this process. The fact that William Black stated that he asked defendant several times whether the vehicle had come from his father-in-law’s estate and if it had been in an accident is evidence that he might have taken other action if he had known of the true origin of the vehicle.

Defendant also claims that his failure to disclose the SV designation on the title was not a material omission because he was not aware that it was on the title or what it meant. The court in Crowder (148 Ill. App. 3d at 317) held that failure to disclose the salvage designation of a vehicle was an omission of a material fact. Although defendant claims that this case is distinguishable from Crowder, because he had no knowledge of the SV designation, the trial court did not find that this representation by defendant was credible. The evidence which supported the trial court’s finding that defendant did have knowledge of the SV status of the vehicle consisted of the document in the title history which contained defendant’s signature and the enlarged letters SV as well as the documents pertaining to defendant’s purchase and sale of another salvage vehicle. Based on this evidence as well as the trial court’s observation of defendant’s demeanor as he testified, we conclude that the trial court’s finding that he had knowledge of the SV designation on the vehicle title was proper.

Defendant next argues that plaintiffs failed to prove that they justifiably relied on the material misstatements and omissions. In support of this argument, defendant states that the plaintiffs’ reliance on the misstatements and omissions was not reasonable because they had ample opportunity to discover the true facts about the vehicle’s status by checking public records, requesting more information about defendant’s father-in-law’s estate and conducting a closer inspection of the vehicle before purchasing it. While this may have been true, the trial court found that the source of the subject vehicle had been misrepresented. We conclude that where plaintiffs believed that the vehicle had been owned by defendant’s father-in-law for several years, they were not alerted to inquire further. See Marino v. United Bank of Illinois, N.A. (1985), 137 Ill. App. 3d 523, 527, 484 N.E.2d 935.

Defendant also argues that the sale of the vehicle to plaintiffs was an isolated sale by a private party and therefore not subject to the provisions of the Consumer Fraud Act. As we concluded above, the fact that defendant purchased and sold four used cars within a 15-month period, two of them being salvage vehicles, supports the conclusion that his commercial activities were more than an isolated transaction by a private party. (See People ex rel. Scott v. Larance (1982), 105 Ill. App. 3d 171, 174, 434 N.E.2d 5.) Therefore these activities were subject to the provisions of the Consumer Fraud Act.

Accordingly, we conclude that the trial court properly found that defendant was liable for both common law and statutory fraud.

Defendant next contends that the compensatory damage award of $3,000 was improper because plaintiffs failed to offer any admissible evidence regarding the reduced value of the vehicle as a result of the salvage vehicle designation. There was no dispute as to the value of the subject vehicle if it were not a salvage vehicle. At the time plaintiffs purchased it, it was valued at approximately $9,000. Although defendant argues that its value was not reduced because the vehicle was rebuilt, Robert Black stated that the SV designation did reduce the value of a vehicle, and that the vehicle purchased by the plaintiffs was worth $3,000 less than what they had paid for it. Robert Black testified to this amount after conferring with a dealership. Furthermore, Robert Black as well as both parties’ experts testified that the mileage and condition of the vehicle after it was rebuilt also affected its value. He cited numerous structural and cosmetic defects in the Cadillac after it was rebuilt. Although plaintiffs could have discovered these defects, they were not alerted to the need to have the vehicle so thoroughly inspected when they were led to believe that it had come from the father-in-law’s estate as opposed to a dealer and were not informed that it was a salvage vehicle. In making a determination of damages, “[ajbsolute certainty is not required, and all that the law requires is that there be an adequate basis in the record for the court’s determination.” (First National Bank & Trust Co. v. J.P. Schermerhorn & Co. (1989), 192 Ill. App. 3d 1057, 1062, 549 N.E.2d 862.) In this case, we conclude that there was sufficient evidence in the record to support the trial judge’s determination regarding the compensatory damage award.

Next, defendant argues that the imposition of punitive damages was improper and even if proper an award of $20,000 is excessive.

The initial question is whether the facts and circumstances of this case justify the imposition of punitive damages; this is a question of law. (Hammond v. North American Asbestos Corp. (1983), 97 Ill. 2d 195, 211, 454 N.E.2d 210.) In determining entitlement, each case must be considered in its own context. (Kleidon v. Rizza Chevrolet, Inc. (1988), 173 Ill. App. 3d 116, 121, 527 N.E.2d 374.) Defendant does not, nor can he, dispute that punitive damages may properly be awarded in an action for fraud. (See Warren v. LeMay (1986), 142 Ill. App. 3d 550, 579, 491 N.E.2d 464.) Rather, he argues that his conduct was not gross or malicious fraud and that there was no pattern of bad faith. The facts here show that the trial judge properly found that defendant’s conduct was fraudulent and violative of both the common law and the Consumer Fraud Act. Once such a finding is made, the question of whether to impose punitive damages rests within the sound discretion of the trial court and will not be disturbed absent an af)use of that discretion. Warren, 142 Ill. App. 3d at 580.

Defendant has not cited any cases which prohibit the imposition of punitive damages to a factual scenario such as this. Further, defendant’s argument which attempts to minimize the enormity of the wrong is more properly considered in the context of whether the punitive award is excessive. For these reasons, we do not agree that the trial judge’s decision to impose punitive damages was an abuse of discretion.

While we disagree that the imposition of punitive damages was an abuse of discretion, we agree that the award of $20,000 was clearly excessive. Punitive damages are intended to punish and deter. (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 187-88, 384 N.E.2d 353.) Because they are penal in nature, they are not favored, and courts must be cautious to see that they are not improperly or unwisely awarded. (Deal v. Byford (1989), 127 Ill. 2d 192, 203, 537 N.E.2d 267.) While not exhaustive, relevant circumstances in reviewing an award of punitive damages include the nature and the enormity of the wrong, the financial status of the defendant and the potential liability of the defendant. (Jines v. Seiber (1990), 193 Ill. App. 3d 390, 394, 549 N.E.2d 964.) Each case must be carefully examined in light of the specific facts involved, and the ultimate determination should be governed by the circumstances of each individual case. Deal, 127 Ill. 2d at 204.

We first consider the nature and enormity of the wrong. While defendant’s statements were false and intentional, they all were in relation to the history of the subject vehicle. Defendant claims that the facts here are a variation of “this car was owned by a little old lady who only drove it on Sundays.” While we do not agree with this analogy, we do see some similarities. In a fraud action, all statements which would give rise to a punitive damage award must of necessity be false and intentionally made. Some, however, “are clearly more reprehensible than others. The egregiousness of the act should be reflected in the amount of the award.” (Hazelwood v. Illinois Central Gulf R.R. (1983), 114 Ill. App. 3d 703, 712, 450 N.E.2d 1199.) The court further noted:

“Recognizing that punitive damages are in the nature of a criminal sanction, we are simply saying that the punishment should fit the crime. An award which is disproportionate to the wrong serves none of the purposes of punitive damages and is excessive.” (Hazelwood, 114 Ill. App. 3d at 713.)

While we in no way condone defendant’s conduct, the award of $20,000 in this case was clearly disproportionate to both the nature and the enormity of the wrong.

Even more important to our decision is the second factor, the financial status of the defendant. Because punishment and deterrence are the only justifications for punitive damages, it follows that the defendant’s financial situation is relevant. An amount sufficient to punish or to deter one individual may be trivial to another. As a result, if one’s financial status is not considered, the very reason for the imposition of punitive damages could be subverted. “Simply stated, the amount of the award should send a message loud enough to be heard but not so loud as to deafen the listener. A deafening award is excessive.” Hazelwood, 114 Ill. App. 3d at 713.

In this case, the record does not contain any relevant evidence with respect to defendant’s financial status. Plaintiff argues that a defendant is only permitted to introduce evidence of his financial status by way of rebuttal. We agree. It is plaintiff’s decision to interject evidence of defendant’s financial condition. If he does, the defendant may counter it. However, if plaintiff fails to introduce such evidence, the defendant is prohibited from doing so. See Wilson v. Colston (1983), 120 Ill. App. 3d 150, 152, 457 N.E.2d 1042.

This rule has its origin in Mullin v. Spangenberg (1884), 112 Ill. 140. There, the court stated:

“Where a plaintiff entitled to vindictive damages offers no evidence of the defendant’s wealth with a view of enhancing them, he in effect says, T ask no damages against the defendant except as a mere individual, without any regard to his property or estate, whether it be much or little,’ — and in that kind of a case the jury have no right to give any more damages than they would if it had affirmatively appeared the defendant was without pecuniary resources. [Emphasis added.] But where the testimony is offered by the plaintiff, he does it for the purpose of enhancing the damages. By offering it he in effect says, ‘I ask in the way of damages something more than I would be entitled to recover from the defendant as a mere individual, without regard to his pecuniary circumstances.’ In doing this, the plaintiff tenders a new issue of fact, which opens up the question to both sides.” Mullin, 112 Ill. at 145-46.

In other words, a plaintiff cannot have it both ways. While he may choose to not introduce any evidence of defendant’s financial status, his doing so will limit his recovery of punitive damages to an amount sufficient to punish or deter a man who is without pecuniary resources. It should further be noted that while punitive awards were affirmed in Wilson and Mullin, neither defendant in those cases challenged the amount of the award.

The judgment in this case included $3,000 in compensatory damages, $17,785 in attorney fees and $1,244.81 in costs. This is not an unsubstantial amount of money. Because the record is devoid of any evidence of defendant’s financial status, any punitive damage award would be limited to a situation where the defendant is without pecuniary resources.

In light of the foregoing, we conclude that the amount of punitive damages awarded to the plaintiffs should be reduced to $1,000.

CROSS-APPEAL

Plaintiffs contend that the trial court abused its discretion in arbitrarily reducing the amount of fees awarded to plaintiffs’ attorneys because the reduction in fees was contrary to the evidence submitted in support of the petition. Along with their petition for fees and costs, plaintiffs submitted affidavits supporting their petition as well as documents of the hours worked, the work performed, the expertise of the attorneys and their hourly rate for in-court and out-of-court time. Plaintiffs’ petition requested fees based on an hourly rate of $150 for in-court time and $125 for out-of-court time. The trial court granted fees and costs but reduced the hourly fee awarded to $125 for in-court time and $85 for out-of-court time.

While it is necessary for a party seeking attorney fees to provide evidence regarding the number of hours expended and the hourly rate, the trial judge is not bound by the petitioning attorney’s opinion of what constituted a reasonable fee and may use his own knowledge and experience to make a determination. (In re Estate of Healy (1985), 137 Ill. App. 3d 406, 411, 484 N.E.2d 890.) A reasonable fee in any given case is determined by the weight of the evidence. (Healy, 137 Ill. App. 3d at 411.) Factors considered in determining the amount of fees are the skill and standing of the attorney, the nature of the case, the novelty and difficulty of the question at issue, the amount and importance of the subject matter, the degree of responsibility, the usual and customary charges and the benefits to the client. (In re Marriage of Armstrong (1982), 107 Ill. App. 3d 217, 219, 437 N.E.2d 761.) In view of these factors, we cannot say that the trial judge abused his discretion in reducing the hourly rate of the attorney fees award.

Accordingly, the judgment of the circuit court awarding plaintiffs compensatory damages and attorney fees is affirmed. On plaintiffs’ cross-appeal, the judgment reducing the amount of the attorney fees award is also affirmed. However, the judgment for $20,000 in punitive damages is vacated, and the cause is remanded with instructions that the court enter a punitive damage award in the amount of $1,000.

Affirmed in part, vacated and remanded in part.

McNAMARA and EGAN, JJ., concur.


author: JUSTICE O’CONNOR

text:
      In re APPLICATION OF THE COUNTY COLLECTOR FOR JUDGMENT AND SALE AGAINST LANDS AND LOTS RETURNED DELINQUENT FOR NONPAYMENT OF GENERAL TAXES AND/OR ASSESSMENTS FOR THE YEAR 1985 AND PRIOR YEARS (Keyway Investments, Inc., Petitioner-Appellant; Minority Enterprise Real Estate Investment Trust, Objector-Appellee).
    First District (1st Division)
    No. 1—90—1016
    Opinion filed August 26, 1991.
    Rehearing denied October 22, 1991.

      Steven R. Dobrofsky, of Chicago, for appellant.
    Robert L. Tucker & Associates, of Chicago (Robert L. Tucker, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

After purchasing delinquent 1985 real estate taxes for four condominium units, commonly known as two garages, Keyway Investments, Inc. (Keyway), petitioned the trial court for a tax deed. The trial court ruled that Keyway did not meet its burden of diligent inquiry and denied the petition. Keyway appeals.

On January 15, 1987, Keyway’s assignor purchased delinquent real estate taxes for four condominium units. On May 8, 1989, Key-way petitioned the court for a tax deed, even though the redemption period would not expire until September 22, 1989. The four condominium units are two, two-car brick garages. The garages are common elements of a registered and recorded condominium. The garages are detached from the condominium’s residential units and located behind the residential units at 5115-17 South University in Chicago, Illinois. The delinquent tax bills were all addressed to Thelma Bowles at 5117 South University Avenue in Chicago, Illinois.

Based upon the record, the following is a brief summary of filed documents or records relating to the condominium: On May 8, 1969, the residential declaration of condominium, which was dated July 19, 1966, was recorded with the Cook County recorder of deeds. The declaration of condominium indicated that the legal title holder was the Exchange National Bank of Chicago as trustee under trust number 19676. On July 28, 1972, the Exchange National Bank of Chicago, by trustee’s deed, conveyed all of its rights, title and interest in the condominium property to the Minority Enterprise Realty Investment Trust (MERIT). The conveyance was recorded with the Cook County recorder of deeds and indicated that MERIT’S address was 6856 South Martin Luther King Drive in Chicago, Illinois.

On May 11, 1989, Keyway caused the clerk of the circuit court to send, via certified mail, notice that the garage units were sold for delinquent taxes, that the redemption period would expire on September 22, 1989, and that the matter was set for hearing on September 29, 1989. The notice was mailed to Thelma Bowles at 5117 S. University in Chicago, “The Exchange National Bank of Chicago as Trustee number 19676,” the “La Salle National Bank as Successor Trustee to Exchange National Bank of Chicago number 19676,” Federal Savings & Loan Insurance Corp., United States Attorney General Justice Department, United States District Attorney Northern District of Illinois, MERIT trust at 6856 S. Dr. Martin L. King Dr., and 5115-17 University Condo Association at 5115 S. University in Chicago. All notices were delivered, except, MERIT’S.

Furthermore, personal service was attained on the following parties: the United States District Attorney for the Northern District of Illinois, the Federal Savings & Loan Insurance Corp., the La Salle National Bank, the Exchange National Bank, Thelma Bowles, the clerk of the circuit court and the 5115 S. University Condo Association. The sheriff’s office attempted to serve MERIT at 6856 S. Martin Luther King Dr. but was unable to do so, stating that MERIT was out of business.

In response to receiving the delinquent tax notice, the La Salle National Bank, as successor trustee of trust number 19676, in a May 23, 1989, correspondence stated that a land trust number 19676 did not exist.

Additionally, on June 14, 15 and 16, 1989, Keyway published a delinquent tax notice in the Chicago Daily Law Bulletin.

On September 29, 1989, Keyway petitioned the trial court for an order that would direct the county clerk to issue a tax deed.

On October 24, 1989, the trial court conducted an evidentiary hearing in connection with Keyway’s petition. At the hearing, Benitta Berke testified on behalf of Keyway. Berke testified to the following: She conducted a search to ascertain the “interested parties” with respect to the garages. She ordered a printout from Chicago Title & Trust and the printout did not show any conveyances because all of the conveyances were before 1974. She went to the Cook County recorder’s tract books and did a tract search. She visited the garages. She could not see inside the garages.

In particular, Berke testified: MERIT had an interest in the property. It had a “trust deed.” The “trust deed” was recorded in August 1972. She ascertained MERIT’S address from the “trust deed.” The sheriff attempted to serve MERIT but he indicated that it was out of business. Berke attempted to locate MERIT’S address from the “directory.”

At the close of Berke’s testimony, the court found that the period of redemption had run, that the property was not redeemed, that the required notices were given and that Keyway complied with the Revenue Act. Thereafter, the court took the matter under advisement pending its review of the transcript.

Subsequently, on November 22, 1989, the court recalled the case on its own motion because it reviewed the case file and wanted an explanation with respect to La Salle National Bank’s May 23, 1989, correspondence, where the bank stated that a land trust number 19676 did not exist. Keyway called Berke again. Berke testified: Her search indicated that La Salle National Bank would not have a trust by that number because the trust was originally from Exchange National Bank in 1966 and, subsequently, the Exchange National Bank conveyed the property in July 1972 to MERIT. La Salle National Bank never received a trust because the res was not in the trust. At the time of the tax deed proceeding, Exchange National Bank never owned the property. The conveyance did not include any specific units because it conveyed the entire property.

Additionally, Berke testified that subsequent to the court inquiring about the La Salle National Bank correspondence, she made further inquiries to determine the whereabouts of MERIT. She went to “Haines directory,” looked up 6856 South King Drive and called that address or anyone at that address to determine whether MERIT was in fact there or had been at any time. She spoke with Rita Thorne at 6856 South King Drive. In the course of the telephone call, Berke determined that 6856 South King Drive was a dentist’s office and that no one knew of MERIT, but that MERIT had been in the building about 20 years ago.

Additionally, Berke testified: She had another address for MERIT which came from the section 241a notice. She cross-indexed that address to a telephone number and reached Gray Real Estate. She spoke to William Gray, who told her that it was his real estate company, that he had been at that building for over 40 years, that he had never heard of MERIT and that he had nothing to do with it. Berke also checked the telephone book and did not find a “Merit,” or similar listings. She checked with the Secretary of State and the Attorney General. The condominium association was personally served and to the best of her knowledge that person was an occupant of the building.

After concluding Berke’s testimony, the court asked that additional notices be provided before the court entered an order for the deed.

Subsequently, on January 12, 1990, MERIT, represented by counsel, appeared in court after receiving notice of the proceedings on or about December 8, 1989. On behalf of MERIT, Dr. Cornelius Knowles testified to the following: He is the trustee and treasurer of MERIT. MERIT acquired title by trustee deed from the Exchange National Bank. The MERIT trust is located at 701 West 111th and has been since the late 1970s. Previously, the MERIT trust was located at 526 North Michigan Avenue. Additionally, the following colloquy was exchanged between MERIT’S counsel and Dr. Knowles:

“Q. *** [D]o you know *** whether or not notice was given to the Office of the Recorder of Deeds with respect to where tax bills and the forms filled out as to where tax bills were to go with respect to the property?
ATTORNEY FOR KEYWAY: Objection. Violates best evidence rule.
THE COURT: Let me take the objection under advisement. Let me see what his answer is?
Q. Do you know?
A. Yes. I filed notice with — the Recorder of Deeds at the — I believe the Collector of taxes my address as the recipient of the tax bills.
THE COURT: Objection overruled. *** He’s describing personally what he did.
ATTORNEY FOR KEYWAY: What’s the relevance, your Honor? The best evidence, your honor, is the document. What he says and does is not evidence whether the collector has knowledge of his whereabouts.
* * *
THE COURT: I can draw my own conclusions. That’s an issue of weight. He is testifying as to what he did.”

On cross-examination, Dr. Knowles testified that MERIT trust does not have a phone number listed at 701 West 111th Street; that in the summer of 1988 the name “MERIT trust” appeared on the tax bill and it went to his office; that before the tax bills went to his office, they went to William Gray Realty on 67th and Cottage Grove and that William Gray Realty could be located at 6551 South Cottage Grove.

Thereafter, Berke was called to testify again. She testified: She telephoned Mr. Gray on Cottage Grove to speak with “something called the William Gray Real Estate.” She never spoke with anyone on the premises at 5115-17 University Avenue.

After hearing opposing counsel’s arguments, the court denied Keyway’s petition for the tax deed and read its order into the record. The court order stated:

“At the initial prove-up of this matter, Petitioner’s witness, Benitta Berke, testified that she performed a search to locate interested parties and that the property was owned by Exchange National Bank as trustee under trust 19676. She further testified that MERIT had a trust deed to the premises and that she attempted service at 6856 South King Drive based on the documents addressed for MERIT.
She further testified as to a different address for MERIT as shown on the 241(a) notice. That Address was 6551 South Cottage Grove. But service was not attempted there.
At a subsequent prove-up called on the Court’s motion, Ms. Berke testified that she made a mistake when she testified that MERIT’S interest was pursuant to a trust deed. In fact, MERIT was the owner of the property pursuant to this document, not the Exchange Trust as previously testified to.
She further testified to phone contacts with the dentist’s office at 6856 South King and a real estate company at 6551 South Cottage Grove that proved unsuccessful, as did attempts to locate MERIT through the offices of the Attorney General, Secretary of State.
Pursuant to the provisions of the Revenue Act, the Petitioner has the burden to establish in these proceedings diligent inquiry and effort to locate and serve owners, occupants, and parties interested during the notice serving period. In that regard, the 241a notice in this matter contained an alternative address of 6551 South Cottage Grove, but the sheriff’s and clerk’s notices were not directed to this location. Occupants of the spaces, of the parking spaces involved, have been neither identified nor served. Although there was no management company, the testimony does not reflect attempts to contact by mail, phone, or otherwise, or serve unit owners who are the most likely occupants or who could provide information as to who occupants of the spaces might be.
A significant title search error concerning title to the premises raises some concern as to the adequacy of the process involved to determine and locate persons entitled to notification. Building owners or occupants were not contacted concerning the whereabouts of MERIT, and in this matter the owner of the premises was not personally served nor were the occupants.
For the foregoing reasons, the Court concludes the Petitioner has not met its burden of diligent inquiry and effort as to owners and occupants and the petitioned is denied.”

Keyway appeals.

Initially, Keyway argues that the trial court erred in reversing its previous finding that Keyway complied with the requirements under the Revenue Act of 1939 (Ill. Rev. Stat. 1987, ch. 120, par. 482 et seq.). Keyway’s argument is meritless. In fact, at the first prove-up hearing, the trial court took the matter under advisement pending its review of the transcript. The trial court’s review of the transcript was a condition precedent to a finding that Keyway complied with the Revenue Act. Contrary to Keyway’s apparent assertion, the trial court did not make a final determination that Keyway complied with the Revenue Act.

Keyway also argues that the trial court erred in determining that it did not meet its burden of diligent inquiry and effort, contending that MERIT did not introduce evidence that the garage spaces were occupied or that a person knew the whereabouts of MERIT. As authority, Keyway cites Wilkey v. Illinois Racing Board (1978), 65 Ill. App. 3d 534, 381 N.E.2d 1380, for the proposition that a party’s failure to introduce evidence which would conclusively settle a doubtful issue gives rise to a presumption that the evidence, if produced, would be adverse to that party. Keyway’s reliance upon Wilkey is misplaced because Keyway, as the petitioner for a tax deed, has the burden to persuade the court that it complied with the Revenue Act and provided the appropriate notice.

Section 263 of the Revenue Act requires, inter alia, a tax purchaser or assignee to cause a sheriff to personally serve notice to the owners, occupants and parties interested in the premises that the property has been sold for delinquent taxes and that the redemption period will expire on the given date. (Ill. Rev. Stat. 1987, ch. 120, par. 744.) Additionally, section 263 provides that if any owner or party interested upon diligent inquiry and effort cannot be found and served with notice, a notice should be published three times in a newspaper within the municipality. (Ill. Rev. Stat. 1987, ch. 120, par. 744.) In short, the statute requires a tax buyer to make “diligent inquiry and effort” to find and personally serve the owner before publishing the notice. (Ill. Rev. Stat. 1987, ch. 120, par. 744; In re Application of the County Collector for Judgment & Order of Sale Against Lands & Lots Returned Delinquent for Nonpayment of General Taxes for the Year 1985 & Prior Years (1991), 211 Ill. App. 3d 988, 992, 570 N.E.2d 769; In re Application of Cook County Collector (1981), 100 Ill. App. 3d 178, 179-80, 426 N.E.2d 947.) The tax buyer must strictly comply with the notice requirements.

Additionally, Keyway argues that its search to serve MERIT was diligent, contending that a diligent inquiry does not require perfection, and cites, as authority, Village of Dolton v. First National Bank (1957), 12 Ill. 2d 435, 147 N.E.2d 62. While it is true that a diligent inquiry does not require perfection, it is “that kind of search or investigation which a diligent [person], intent on ascertaining a fact, would usually and ordinarily make.” (In re Application of County Treasurer (1975), 32 Ill. App. 3d 161, 165, 336 N.E.2d 167.) The trial court determined that Keyway’s inquiry did not meet its burden of diligence and effort. Because, generally, diligence is a question of fact (In re Application of the County Collector for Judgment & Order of Sale Against Lands & Lots Returned Delinquent for Nonpayment of General Taxes for the Year 1985 & Prior Years (1991), 211 Ill. App. 3d 988, 996, 570 N.E.2d 769), the trial court’s determination will only be reversed if it is against the manifest weight of the evidence. We find that the trial court’s determination is amply supported by the record as the trial court specified. While Keyway emphasizes all of the various tactics taken to locate MERIT, it ignored or overlooked several important known facts.

In particular, Keyway’s lack of diligence with respect to noticing an alternative address for MERIT in the section 241a notice (Ill. Rev. Stat. 1987, ch. 120, par. 722a). Section 241a of the Revenue Act (Ill. Rev. Stat. 1987, ch. 120, par. 722a) provides, in pertinent part, that “[a] purchaser or assignee *** shall deliver to the county clerk *** a notice to be given to the party in whose name the taxes are last assessed as shown by the most recent tax collector’s warrant books.” Clearly by Berke’s own admission, the section 241a notice contained the 6551 South Cottage Grove address for MERIT and apparently it was a matter of public record that MERIT was the last assessee, but the sheriff’s and clerk’s notices were not directed to this location. A mere telephone call to the Cottage Grove address with the assurance that the individual had no “interest” in the property does not comply with section 263 of the Revenue Act. Furthermore, as required by section 263 of the Revenue Act, occupants of the garage spaces were neither identified nor served. Berke’s testimony does not reflect attempts to contact by mail, phone, or otherwise, or serve unit owners who are the most likely occupants or who could provide information as to garages’ occupants or where MERIT might be located. Moreover, Berke’s admitted error in her title search indicates inadequate diligence and effort to determine and locate persons entitled to notification.

Keyway then argues that the trial court erred in denying Keyway an order to grant a tax deed, contending that MERIT did not have standing to appear and object to the tax deed proceedings because the trust was not capable of holding title to the property. The trial court did not make a determination or hear any evidence with respect to MERIT’S legal status or ability to hold title. This issue is irrelevant to the nature of the proceedings. The issue in the trial court is the same as on appeal, i.e., whether Keyway complied with the notice procedures in the Revenue Act, rather than whether the conveyance to MERIT complied with the applicable law. It is evident to this court that MERIT has standing in these tax deed proceedings.

Further, Keyway argues that the trial court committed prejudicial error when it allowed Dr. Knowles to testify that he submitted a change of address to the collector of taxes, contending that it violates the best evidence rule, under which inferior evidence may be barred. The trial court did not commit prejudicial error for three reasons. First, the trial court correctly noted that Dr. Knowles testified about his own actions. Second, Keyway was not prejudiced by Dr. Knowles’ testimony because the court’s determination with respect to Keyway’s lack of diligence was also based upon Keyway’s failure to serve 6551 South Cottage Grove and Keyway’s failure to identify and serve the garages’ and residential units’ owners or occupants. Third, in a bench proceeding, the trial court is presumed to have considered only competent evidence and the admission of incompetent evidence is harmless. Magnone v. Chicago & North Western Transportation Co. (1984), 126 Ill. App. 3d 170, 178, 466 N.E.2d 1261.

Keyway finally argues that the trial court “exceeded [its] special statutory jurisdiction” when it required Keyway to provide additional notice. We disagree. The trial court had jurisdiction to assure that Keyway complied with the Revenue Act. Specifically, section 266 of the Revenue Act provides that the court shall insist on strict compliance with the requirements contained in section 263, e.g., the notice provisions. (Ill. Rev. Stat. 1987, ch. 120, par. 747.) We do not find that the trial court exceeded its authority because under these circumstances the court was concerned with the title search’s adequacy. Thus, the court ordered Keyway to provide notice again to assure that any interested parties’ due process rights were protected. “The State must act reasonably before depriving a person of a property interest ***.” (Rosewell v. Chicago Title & Trust Co. (1984), 99 Ill. 2d 407, 412, 459 N.E.2d 966.) “ ‘An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ ” (Rosewell, 99 Ill. 2d at 411, quoting Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 314-15, 94 L. Ed. 2d 865, 873, 70 S. Ct. 652, 657.) Without the additional notice, the trial court determined that because of the title search errors, the interested parties were not afforded an opportunity to object. The trial court did not exceed its jurisdiction.

For the reasons stated above, the order denying Keyway's petition for a tax deed is affirmed.

Affirmed.

CAMPBELL and BUCKLEY, JJ., concur.


author: JUSTICE McMORROW

text:
    DAVID HAID, Plaintiff-Appellant, v. WILLIAM F. TINGLE et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—90—0964
    Opinion filed June 20, 1991.
    Rehearing denied October 24, 1991.

      Barsy, Joseph & Lichtenstein and Joseph & Myers, both of Chicago (Burton Joseph, Jack Joseph, and Michael P. Myers, of counsel), for appellant.
    Richard J. Belmonte, of Chicago, for appellees.
   JUSTICE McMORROW

delivered the opinion of the court:

Plaintiff appeals from the trial court’s order of a remittitur of a portion of the jury verdict for plaintiff in a contract action for payment of architectural fees and expenses.

In February 1983, defendants engaged plaintiff, an architect, to design a medical office building to house their ophthalmology practice. Plaintiff drafted a written agreement in letter form, which defendants signed in May 1983. Pursuant to paragraph 14 of the agreement, plaintiff’s fee was to be 10% of the total cost of construction. Paragraph 15 provided that, in the event of termination of the agreement by either party, plaintiff’s fee would be based upon the time expended on the project, calculated at hourly rates of $75 for plaintiff’s services and $45 for the services of his staff. On August 29, 1983, following the receipt of several bids, defendants gave plaintiff written notice of their decision to terminate the agreement. In a letter dated August 30, 1983, plaintiff sent defendants a “final statement for Architectural services and reimbursable expenses.” The amount of the statement was $25,572.70. Below the typed portion of the statement itemizing the charges, plaintiff handwrote the following:

“Arch, services based upon 80% of fee as calculated on 10% fee of lowest bid rec’d. This amount (80%) is conventional for the allocation of fees thru bidding — see A.I.A. [American Institute of Architects] form attached.”

The AIA standard form agreement to which plaintiff referred contained a table of recommended percentages of compensation payable to an architect for each separate phase of the project, from the schematic design phase through the completion of construction. The percentage recommended for work through the bidding phase was 80%.

Defendants did not make payment on this statement. On September 29, 1983, plaintiff sent a second statement for fees and expenses, which was calculated on hourly rates of $75 for 177 hours of work by plaintiff and $45 for 838 hours of his staff’s time, plus expenses. The total amount of the second billing statement was $53,818.70.

Plaintiff filed suit against defendants on October 12, 1983, for nonpayment of fees and expenses. Attached to the complaint were a copy of the written agreement, defendants’ letter terminating the agreement, weekly time sheets of work performed by plaintiff and his staff, a copy of the lowest bid received for construction of the building, and the August 30 billing statement of $25,572.70. Defendants filed an answer, in which they asserted as affirmative defenses that (1) plaintiff had failed to provide them with a budget estimate of the project costs or obtain their approval before proceeding with the project, both of which were conditions precedent to their performance of the agreement; (2) plaintiff procured the agreement by fraud, in that he falsely and knowingly misrepresented the actual, final cost of the building; and (3) there was a mutual mistake of fact as to the actual, final cost of the building.

During jury deliberations, the jury sent a note to the trial judge asking whether, if they found in plaintiff’s favor, they were limited to awarding either $25,572.70 or $53,818.70. A response was prepared, but the jurors completed their deliberations before it was delivered to them. The jury awarded plaintiff $53,818.70. Defendants filed a post-trial motion alternatively requesting judgment notwithstanding the verdict (judgment n.o.v.), a new trial or a remittitur reducing the amount of the judgment to $25,572.70. Plaintiff filed a response in opposition to defendants’ motion and a motion to amend the judgment to add prejudgment interest.

Following a hearing on the post-trial motions, the court determined that the jury verdict was excessive and that a remittitur of the excess was appropriate. The court then denied defendants’ motion for judgment n.o.v. or a new trial “except to the extent of such remittitur,” and denied plaintiff’s motion for prejudgment interest. The written order prepared by plaintiff’s counsel further recited that it was “a final order disposing of all controversies between all the parties [and] is entered without prejudice to the right of either party to appeal.” On April 3, 1990, plaintiff filed a notice of appeal from the entry of the remittitur and the denial of his motion for prejudgment interest.

Opinion

We consider first defendants’ contention that this court lacks jurisdiction to hear this appeal. Defendants argue that Illinois law is clear that a plaintiff who consents to a remittitur waives his right to appeal from the sufficiency of the judgment. Defendants maintain that plaintiff acquiesced to the order of remittitur and is therefore barred from appealing it.

A plaintiff has the right to a trial by jury on all issues, including damages. (Augustine v. Kaufman (1949), 338 Ill. App. 591, 88 N.E.2d 888; Rasmussen v. National Tea Co. (1940), 304 Ill. App. 353, 26 N.E.2d 523.) The assessment of damages is primarily a function of the jury (Johanek v. Ringsby Truck Lines, Inc. (1987), 157 Ill. App. 3d 140, 509 N.E.2d 1295; McElroy v. Patton (1970), 130 Ill. App. 2d 872, 265 N.E.2d 397), and the trial court ordinarily will not substitute its judgment for that of the jury (Jensen v. Richardson (1968), 93 Ill. App. 2d 237, 235 N.E.2d 397; Roewe v. Lombardo (1966), 76 Ill. App. 2d 164, 221 N.E.2d 521).

However, if, after considering all the evidence, the trial judge concludes that the jury verdict is excessive, the judge may not allow the verdict to stand but must act to correct the injustice; and the failure to do so is, itself, error. Johanek, 157 Ill. App. 3d 140; Hedrich v. Borden Co. (1968), 100 Ill. App. 2d 237, 241 N.E.2d 546; 15 Ill. L. & Prac. Damages §199 (1968); see also Bucher v. Krause (7th Cir. 1952), 200 F.2d 576, 586, paraphrasing the United States Supreme Court in Arkansas Valley Land & Cattle Co. v. Mann (1889), 130 U.S. 69, 32 L. Ed. 854, 9 S. Ct. 458 (it is hornbook law that it is as much the duty of the court, if it should clearly appear that the jury committed a gross error, or acted from improper motives, or have given excessive damages in relation to the person or the injury, to interfere to prevent a wrong as in any other case).

One of the means by which a court can correct an excessive verdict is to order a remittitur. A remittitur is an agreement by the plaintiff to relinquish, or remit, to the defendant that portion of the jury’s verdict which constitutes excessive damages (Anderson v. Greyhound Lines, Inc. (1975), 34 Ill. App. 3d 643, 339 N.E.2d 465; 15 Ill. L. & Prac. Damages §199 (1968)) and to accept the sum which has been judicially determined to be properly recoverable damages (Bart v. Union Oil Co. (1989), 185 Ill. App. 3d 64, 540 N.E.2d 770). The only alternative to a remittitur in a case where the verdict exceeds the damages properly proven (Bart v. Union Oil, 185 Ill. App. 3d 64, 540 N.E.2d 770; Briante v. Link (1989), 184 Ill. App. 3d 812, 540 N.E.2d 844), and/or where the verdict can be accounted on the sole basis that the jury acted from some improper motive (Andres v. Green (1955), 7 Ill. App. 2d 375, 129 N.E.2d 430), such as passion or prejudice (McElroy v. Patton (1970), 130 Ill. App. 2d 872, 265 N.E.2d 397), is for the trial judge to order a new trial (see e.g., Albin v. Kinney (1880), 96 Ill. 214; Bart v. Union Oil, 185 Ill. App. 3d 64, 540 N.E.2d 770; McElroy v. Patton, 130 Ill. App. 2d 872, 265 N.E.2d 397; Barango v. Hedstrom Coal Co. (1956), 12 Ill. App. 2d 118, 138 N.E.2d 829; Andres, 7 Ill. App. 2d 375, 129 N.E.2d 430; Knowles Foundry & Machine Co. v. National Plate Glass Co. (1939), 301 Ill. App. 128, 21 N.E.2d 913).

A remittitur is not an agreement between or among the parties (Banks v. Chicago Grain Trimmers Association (1968), 390 U.S. 459, 20 L. Ed. 2d 30, 88 S. Ct. 1140; J.I. Case Co. v. McCartin-McAuliffe Plumbing & Heating, Inc. (1987), 118 Ill. 2d 447, 516 N.E.2d 260 (requiring the consent of both parties would render remittiturs indistinguishable from voluntary settlements); McElroy, 130 Ill. App. 2d 872, 265 N.E.2d 397). Neither is a remittitur ordinarily to be interpreted as a concession by the plaintiff that the damages were excessive. Jensen v. Richardson (1968), 93 Ill. App. 2d 237, 235 N.E.2d 397; Andres v. Green, 7 Ill. App. 2d 375, 129 N.E.2d 430.

Although a trial court may refuse to enter judgment on a verdict unless a portion of the verdict is remitted, the court does not have the authority to reduce the damages by entry of a remittitur if the plaintiff objects or does not consent. Plaintiff’s consent is essential. (E.g., Foster v. Springfield Clinic (1980), 88 Ill. App. 3d 459, 410 N.E.2d 604.) The trial court must afford the plaintiff the choice of agreeing or refusing to the entry of a remittitur, with the proviso that the plaintiff’s refusal to agree to the entry of a remittitur will result in the ordering of a new trial. These principles are firmly established in this State and have been enunciated in a multitude of decisions spanning well over 100 years. E.g., McCausland v. Wonderly (1870), 56 Ill. 410; North Chicago Street R.R. Co. v. Wrixon (1894), 150 Ill. 532; Knight v. Seney (1919), 290 Ill. 11, 124 N.E. 813; National Malleable Castings Co. v. Iroquois Steel & Iron Co. (1929), 333 Ill. 588, 165 N.E. 199; McElroy v. Patton (1970), 130 Ill. App. 2d 872, 265 N.E.2d 397; Bart v. Union Oil, 185 Ill. App. 3d 64, 540 N.E.2d 770; Cash v. Beltmann North American Co. (7th Cir. 1990), 900 E2d 109.

The ordering of remittitur in lieu of wholly setting aside an excessive jury verdict, affirmance of which would be erroneous, has consistently been acknowledged to be promotive of the ends of justice and the termination of litigation. (E.g., McElroy, 130 Ill. App. 2d 872, 265 N.E.2d 397.) Thus, it is essential to the proper conduct of a jury trial that the trial court possess the power to refuse to enter judgment on an unjust jury verdict, unless the plaintiff consents to remit the excess. Libby, McNeil & Libby v. Scherman (1892), 50 Ill. App. 123, aff'd (1893), 146 Ill. 540, 34 N.E. 801.

Prior to 1955, the Illinois rule had been that a remittitur was final and binding and that the party consenting to a remittitur could not have appellate review of whether the original verdict was, in fact, excessive, even if his opponent brought an appeal. E.g., Knowles Foundry & Machine Co. v. National Plate Glass Co. (1939), 301 Ill. App. 128, 21 N.E.2d 825.

In Knowles, the trial court concluded that the damages as computed by the jury were excessive and advised the plaintiff that the defendant’s motion for a new trial would be granted unless the plaintiff remitted the excess. The plaintiff filed a “Consent to Remittitur” in which he waived objection to the reduction of damages but also purported to reserve his right, in the event of an appeal by the defendant, to assign the reduction of damages as cross error. The defendant thereafter appealed and the plaintiff cross-appealed, seeking reversal of the judgment entered and reinstatement of the original verdict. It was the plaintiff’s position that he was entitled to a review of the court’s order of a remittitur because his consent thereto was expressly qualified.

The Knowles court noted that the trial court had determined that defendant was entitled to a new trial and that the court had given the plaintiff the opportunity of obviating the necessity for a new trial by consenting to a remittitur of the excess damages. In dismissing the plaintiff’s appeal, the court stated that by agreeing to the remittitur, the plaintiff could not contest the judgment entered on the reduced verdict. The court reasoned that the plaintiff obtained a judgment which he would not have received had he not assented to the action of the court. That the plaintiff assented reluctantly, or under protest, did not, in the court’s judgment, alter the fact that he assented and thereby became bound by his consent as reflected in the action of the court.

In 1955, section 68.1 (Ill. Rev. Stat. 1955, ch. 110, par. 68.1) was added to the Civil Practice Act. Subsection 7 provided:

“Effect of remittitur.
* * *
A party who consents to a remittitur as a condition to the denial of a new trial is not thereby precluded from asserting, on appeal by the opposite party, that the amount of the verdict was proper. No cross appeal is required.” (Ill. Rev. Stat. 1955, ch. 110, par. 68.1(7).)

The significance of the addition of this provision was discussed in the Joint Committee Comments as follows:

“This subsection makes a very important change in appellate review of cases in which a remittitur has been entered by a party obtaining a verdict, a portion of which verdict the party has remitted in order to avoid the allowance of a new trial. This subsection, which is entirely new, provides that without any cross appeal the party consenting to the remittitur is not precluded by his remittitur from asserting, on appeal by the opposite party, that the amount of the verdict was proper. This contemplates that on an appeal by his opponent from the judgment, as reduced by a remittitur, the party who has remitted may obtain a restoration of the original judgment if in the opinion of the reviewing court the trial court was in error in allowing a new trial unless the remittitur was entered, or in threatening to allow a new trial, with the result in either case that the party remitted part of his verdict.
* * *
New subsection (7) now permits the entry of a remittitur, subject to its being opened up and the original assessment of damages being approved by the reviewing court, if the party against whom the reduced judgment is entered appeals.” Ill. Ann. Stat., ch. 110, par. 68.1(7), Joint Committee Comments, at 34-35 (Smith-Hurd 1968).

Subsection (b)(2)(ii) of Supreme Court Rule 366 (50 Ill. 2d R. 366(b)(2)(ii)) replaced former section 68.1 of the Civil Practice Act. The rule provides in pertinent part:

“Consenting to a remittitur as a condition to the denial of a new trial does not preclude the consenting party from asserting on appeal that the amount of the verdict was proper. No cross appeal is required.” 50 Ill. 2d R. 366(b)(2)(ii).

In Anderson v. Greyhound Lines, Inc. (1975), 34 Ill. App. 3d 643, 339 N.E.2d 465, the plaintiff brought an appeal seeking reversal of the judgment reduced by her remittitur and restoration of the original jury verdict. The plaintiff premised her entitlement to appeal on the omission from Rule 366 of the language “on appeal by the opposite party,” which was contained in former section 68.1(7). It was the plaintiff’s position that the omission indicated a change in legislative purpose, i.e., to allow parties who have remitted a portion of a jury verdict to appeal from the reduced judgment irrespective of whether “the opposite party” institutes an appeal. The Anderson court disagreed, noting that the Committee Comments following Rule 366 state that the above-quoted subsection was taken from former section 68.1(7) “without change of substance.” Quoting also from the passage of the Joint Committee Comments set out above, the court stated that the change in Rule 366 of the language of former section 68.1(7) of the Civil Practice Act did not change the meaning or purpose of the provision. The court held that Rule 366 still binds the plaintiff to the entry of a remittitur except where the opposing party brings an appeal contesting the judgment. Thus, because the plaintiff in Anderson consented to a remittitur rather than risk a new trial, and because the defendant did not appeal, the Anderson court ruled that it lacked the authority to review the propriety of the jury verdict.

In the instant case, plaintiff advances several arguments in response to defendants’ contention that this appeal should be dismissed because an order of remittitur is not appealable. Plaintiff asserts that although the action taken by the trial court is referred to as a remittitur, it was not a “true remittitur” but, rather, an erroneous amendment of the judgment; that even assuming a remittitur was entered, it was entered improperly because he did not consent to a remittitur; that the order entered specifically reserved the right of either party to appeal; that defendants did, in fact, appeal; and that Illinois law no longer bars appeals from judgments reduced by remittiturs.

A review of the transcript of the hearing on post-trial motions reveals that following arguments by counsel, the trial court found that the August 30, 1983, bill, which was captioned “final statement for Architectural services and reimbursable expenses,” and which included plaintiff’s handwritten notation that the amount was computed in accord with American Institute of Architects recommendations, was not, as plaintiff argued, merely an offer of settlement. Rather, the court stated, plaintiff had “in fact, set out that this was a fair and reasonable amount” for his services. The court also noted that the jury verdict of $53,818.70 for services rendered by plaintiff through the bidding phase of the project was more than twice as much as plaintiff would have received under the contract had the building been constructed. The court characterized the verdict as a penalty to defendants for terminating the contract, and a “windfall” to plaintiff. The trial judge then stated:

“[T]he Court is ordering a remittitur to the amount of the bill that was submitted on August the 30th, 1983 [$25,572.70].”

The court further stated:

“And of course, the remittitur need not be accepted by plaintiff here, but instead he may *** elect to take a [new] trial and he can *** take time to consider that.”

Counsel for plaintiff then requested a ruling “on plaintiff’s motion for statutory interest *** on the remitted amount.” The motion for prejudgment interest was denied. That same day, plaintiff’s attorney drafted an order reflecting the trial judge’s rulings denying plaintiff’s motion for prejudgment interest, ordering a remittitur reducing the judgment to $25,572.70 plus costs, and denying defendants’ motions for judgment n.o.v. or a new trial, “except to the extent of such remittitur.” Plaintiff thereafter filed a notice of appeal in which he sought review and reversal of the court’s order of remittitur and reinstatement of the jury’s verdict.

The record makes clear that the trial judge ruled that, based upon the evidence presented, the jury’s award of more than $53,000 was not a properly recoverable amount of damages and, therefore, ordered that plaintiff either remit the amount determined by the court to be excessive or submit the matter for retrial. Thus, contrary to plaintiff’s assertion that this case does not involve a “true remittitur,” we believe that the record before us presents a classic example of the long-standing practice of ordering remittiturs to correct jury verdicts judicially determined to be excessive.

We turn then to plaintiff’s contention that assuming that the order in this case was an order of remittitur, under Supreme Court Rule 366(b)(2)(ii) a plaintiff is no longer barred from appealing a judgment reduced by a remittitur. Plaintiff acknowledges the existence of the decision in Anderson v. Greyhound Lines, Inc. (1975), 34 Ill. App. 3d 643, 339 N.E.2d 465, holding that a party who consents to a remittitur is bound thereby and is precluded from appealing the entry of the remittitur unless the opposing party appeals from the judgment. Plaintiff, however, urges us not to follow Anderson, arguing alternatively that it is inapplicable to the facts of this case or, if applicable, is wrongly decided. However, plaintiff cites no authority which contradicts the holding in Anderson and we have found none. To the contrary, as observed in Anderson, it is stated in the Committee Comments following Rule 366 that the provision was taken from former section 68.1(7) of the Civil Practice Act “without change of substance.” As noted earlier, section 68.1(7) itself liberalized the law which, as discussed in Knowles Foundry & Machine Co. v. National Plate Glass Co. (1939), 301 Ill. App. 128, 21 N.E.2d 825, had previously precluded a remitting party from obtaining review of the reduced judgment even if the opposing party brought an appeal. Now, section 68.1(7) and its successor, Rule 366 (b)(2)(H), permit a party to raise the issue of the remittitur, without filing a formal cross-appeal, but only if the opposing party brings an appeal from the judgment.

In this case, it was plaintiff who initiated the appeal from the order of remittitur. Defendants thereafter filed a cross-appeal, but the only issue independently raised by them is whether plaintiff’s appeal should be dismissed. The remainder of the arguments in their brief are merely responses to the arguments made by plaintiff in support of his appeal from the order of remittitur. Defendants’ cross-appeal does not constitute the bringing of an appeal by the opposing party from the judgment as contemplated by section 68.1(7) or Rule 366.

Plaintiff additionally argues, however, that the holding in Anderson does not apply because he did not consent to reduction of the verdict by remittitur, and because the order in this case expressly provided that it was “without prejudice to the right of either party to appeal.” As the transcript reveals, the court explicitly advised plaintiff that he was not obliged to remit that portion of the damages found by the court to be excessive, but could, instead, elect to have the case retried. While it is true that the record contains no express, affirmative response by plaintiff agreeing to the entry of a remittitur, neither do we find any expression of refusal by plaintiff to accept the remittitur.

As the authorities we have cited emphasize, a plaintiff’s consent to a remittitur is essential. However, it is equally well settled that the consequence of a plaintiff’s refusal to permit the court to correct an unjust jury verdict by agreeing to a remittitur is the ordering of a new trial. If a plaintiff refuses or fails to consent to entry of a remittitur and also opposes the ordering of a new trial, he may file a petition for leave to appeal from the order granting a new trial under Supreme Court Rule 306 within 30 days after entry of the order. But, these are the only options available to a plaintiff in a case where the trial court refuses to enter judgment on a jury verdict based on the court’s determination that the verdict is excessive.

Further, the right to appeal is governed by statute and may be exercised only within the limits prescribed by statute. (Village of Niles v. Szczesny (1958), 13 Ill. 2d 45, 147 N.E.2d 371; People ex rel. Department of Human Rights v. Arlington Park Race Track Corp. (1984), 122 Ill. App. 3d 517, 461 N.E.2d 505; see Rasmussen v. National Tea Co. (1940), 304 Ill. App. 353, 56 N.E.2d 523 (appellate court lacks power to reinstate a jury verdict reduced by a remittitur to which plaintiff did not consent).) Where a court does not have authority to review a matter or grant the particular relief requested, such authority cannot be conferred by agreement or stipulation of the parties (Arlington Park Race Track, 122 Ill. App. 3d 517; In re Marriage of Peterson (1980), 85 Ill. App. 3d 520, 406 N.E.2d 934). Thus, the language in the order providing that it is without prejudice to the right of either party to appeal cannot create a right not otherwise granted to a plaintiff to appeal from an order of remittitur.

Because the record does not conclusively show that plaintiff consented to the remittitur, we resolve the issue pursuant to the authority granted us under Supreme Court Rule 366(a)(5) (107 Ill. 2d R. 366(a)(5)). We will affirm the judgment of the trial court awarding plaintiff damages in the reduced sum of $25,572.70 on the condition that within 30 days from the date of filing of this opinion, plaintiff files a consent to the remittitur with the clerk of this court. Upon the filing of such remittitur, the judgment is affirmed. In the event such consent is not filed within 30 days, the judgment is reversed and the case is remanded for a new trial on the issue of damages.

Reversed and remanded.

JIGANTI, P.J., and LINN, J., concur.