author: JUSTICE LEWIS

text:
    GORDON G. GASS et al., Plaintiffs-Appellants and Cross-Appellees, v. METRO-EAST SANITARY DISTRICT et al., Defendants-Appellees and Cross-Appellants.
    Fifth District
    Nos. 5—88—0241, 5—88—0278 cons.
    Opinion filed August 3, 1989.
    Rehearing denied September 8, 1989.

      Harry J. Sterling and John Long, both of Sterling, Stanley & Kelley, P.C., of Fairview Heights, for appellants.
    Amiel Cueto and Christopher Cueto, both of Cueto, Daley, Williams, Moore & Cueto, Ltd., of Belleville, for appellees.
   JUSTICE LEWIS

delivered the opinion of the court:

The plaintiffs, Gordon G. Gass and Mary Jane Gass, initially sought in a four-count complaint filed on April 10, 1984, compensatory damages for negligence, punitive damages, injunctive relief, and a writ of mandamus against the defendants, Metro-East Sanitary District and Walter Greathouse, who was chairman of the Metro-East Sanitary District. In an amended three-count complaint filed on April 18, 1984, the plaintiffs sought compensatory damages, punitive damages, and equitable relief. The plaintiffs alleged that “from and after January 1, 1981, to the present” the defendants had been charged, pursuant to sections 4 — 15 and 1 — 1 et seq. of chapter 42 (Ill. Rev. Stat. 1981, ch. 42, pars. 4 — 15, 501 — 1 et seq.), with the responsibility of maintaining the Cahokia Canal, located in Madison and St. Clair Counties. They alleged further that the defendants had been guilty of failure to inspect the canal, failure to maintain it, failure to prevent accumulation of silt and debris in it, and failure to take adequate steps to prevent erosion on its banks. As a result, they alleged, flooding of plaintiffs’ farmlands had occurred, having destroyed crops planted there in 1981, 1982, and 1983.

Thereafter, on May 23, 1984, the defendants moved to dismiss the complaint on a number of grounds. They contended, inter alia, that the defendant sanitary district owed no legal duty to the plaintiffs, and that, even if such a cause of action existed, it was barred by what was described as “the statute of limitations” without further elaboration. They argued also that punitive damages cannot be recovered against a municipal corporation. The trial com!; allowed the defendants’ motion as to the prayer for punitive damages but denied it in all other respects.

Thereafter, on January 9, 1987, the plaintiffs moved to amend their amended complaint by interlineation so as to allege damages arising out of the destruction of their crops in 1984 as well. On February 10, 1987, the defendants moved to dismiss the plaintiffs’ complaint because proper notice of injury had not been provided to them pursuant to sections 8 — 102 and 8 — 103 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1981, ch. 85, pars. 8 — 102, 8 — 103) (hereafter referred to as the Tort Immunity Act) or section 1 — 5 of the Metro-East Sanitary District Act of 1974 (Ill. Rev. Stat. 1981, ch. 42, par. 501 — 5). Section 8 — 102, which was repealed effective November 25, 1986, provided that “any person who is about to commence any civil action for damages” against a local public entity must provide notice to that entity within one year from the date of injury or the date the cause of action accrued; section 8 — 103 provides that if this notice is not given, the person who was injured is forever barred from bringing suit. (Ill. Rev. Stat. 1981, ch. 85, pars. 8 — 102, 8 — 103.) Section 1 — 5 of the Metro-East Sanitary District Act of 1974 provides in pertinent part:

“No claim for compensation shall be made or suit for damages filed against such district on account of any damage to property, unless notice in writing is filed with the board within 6 months after the occurrence of the damage or injury giving the name and residence address of the owner of the property damaged, its location and the probable extent of the damage sustained.” (Ill. Rev. Stat. 1981, ch. 42, par. 501-5.)

It is undisputed that the plaintiffs gave no notice to defendants in advance of filing suit on April 10, 1984. In the alternative the defendants asserted that the plaintiffs should be prohibited from claiming any damages that had allegedly occurred “two years prior” to filing. The defendants maintained that their duty to provide flood protection was a general duty owed to the public at large and that, in the absence of an allegation of facts demonstrating a special duty owed by a municipal corporation to a plaintiff, which duty is different from the duty owed to the public at large, a plaintiff’s complaint is substantially insufficient and should be dismissed.

On June 5, 1987, the trial court denied defendants’ motion to dismiss, ruling that the original complaint constituted sufficient notice to the defendant, but limited any recovery for damages to only those damages that had occurred six months prior to the filing of the complaint. The trial court allowed the plaintiffs’ motion to amend their complaint to allege injuries to their property that had occurred after the filing of the complaint but stated that “the six month rule applies as stated above.”

On September 18, 1987, the plaintiffs again moved to amend their amended complaint by interlineation, this time so as to allege injuries arising out of the destruction of their crops in 1984, 1985, 1986, and 1987. On October 9, 1987, the trial court denied the plaintiffs’ motion for leave to amend, stating that they must file a separate lawsuit and that the “six month notice requirement applies, that is[,] any new allegations of negligence can relate back only six months from date of filing.” The court expressly denied leave to amend “to allege damages incurred during period of time: April 10,1984 through April 9, 1987.”

Thereafter the plaintiffs moved on October 20, 1987, that the court reconsider its order of October 9, 1987, or in the alternative to make a finding that there is no just reason to delay an appeal pursuant to Supreme Court Rule 304 (107 Ill. 2d R. 304). On October 27, 1987, the defendants moved for summary judgment. On April 22, 1988, the trial court denied the motions of both parties. In its order the court stated that the basis for its orders of June 5 and October 9, 1987, was “the Court’s interpretation of the plaintiffs’ failure to abide by the six month statutory notice provision found at Ill. Rev. Stat. ch. 42, §501— 5, commonly known as the Metro East Sanitary District Act of 1974.” The court agreed with the plaintiffs that it would be wasteful of the resources of both the parties and the court to require the plaintiffs to put on their entire case in order to appeal the order limiting their recovery to injury allegedly sustained from October 10, 1983, to April 10, 1984. The court questioned whether an appeal under Supreme Court Rule 304 or 308 was more appropriate since

“[t]he answer to this question depends, in good part, on the view taken of the claim for relief presented by the plaintiffs.
The defendants have argued that a separate cause of action arises for the plaintiffs on each occasion of flooding of their land and crops, which separate cause of action is subject to the notice requirement and statute of limitations applicable to causes of action against the Metro-East Sanitary District. If this view is taken of the plaintiffs’ claim for relief, then the Court’s refusal to allow the plaintiffs to seek damages for injury to their land and crops which allegedly occurred at a time other than the six months immediately preceding April 10, 1984, amounts to a final disposition of several other causes of action possessed by the plaintiffs: that is, those causes of action arising from floods which occurred before October 10, 1983, or after April 10,1984.
This view is one which the Court has already taken in its rulings of June 5, 1987, and October 9, 1987, and, to be consistent, the Court will adhere to that view. The Court, therefore, finds, pursuant to Illinois Supreme Court Rule 304(a), that there is no just reason for delaying enforcement of — or appeal from — its orders of June 5, 1987, and October 9, 1987, which denied the plaintiffs’ motions for leave to amend their Amended Complaint and which thereby finally disposed of the plaintiffs’ causes of action arising from flooding of their land which occurred before October 10, 1983, or after April 10, 1984.
The Court notes, however, that — if the plaintiffs’ view of its claim for relief (that they are asserting a claim based upon a single, continuing injury) were taken — the Court’s orders of June 5, 1987, and October 9, 1987, would not dispose of entire claims for relief but, instead, would merely rule on questions presented by a single claim for relief not yet entirely disposed of. Under that view of the plaintiffs’ claim for relief, it would be more appropriate to allow the plaintiffs to appeal immediately from the orders of June 5, 1987, and October 9, 1987, pursuant to Illinois Supreme Court Rule 308.”

To insure the plaintiffs’ ability to appeal under one of the two supreme court rules, the trial court made the findings required by Rule 308. The court set forth the questions of law as to which there is a substantial ground for difference of opinion as follows:

“1. Have the plaintiffs alleged that they have suffered, and are suffering, an ongoing injury at the hands of the defendants?
2. Should the plaintiffs be barred from seeking damages for that part of the injury to their land which occurred more than six months before their filing of their initial complaint in this case on April 10,1984?
3. Should the plaintiffs be barred from updating their amended complaint by further amending it to seek damages for that part of the injury to their land which has occurred during the pendency of this suit?
4. Should the amendment by interlineation which the plaintiffs sought to make, by their motion filed on September 16 [sic], 1987, be held to relate back to the date of their filing their original complaint in this case: that is, back to April 10, 1984?
5. Did the plaintiffs’ failure to serve a notice (other than by filing their complaint against the defendant Metro-East Sanitary District in this case) pursuant to either section 8 — 102 of the Tort Immunity Act or section 501 — 5 of the Metro-East Sanitary District Act of 1974, require the dismissal of the plaintiffs’ case or a restriction of the period of time for which the plaintiffs could seek damages for the flooding of their land and crops?
6. Did the two-year statute of limitations set forth in section 8 — 101 of the Tort Immunity Act apply to the plaintiffs’ cause of action and bar the plaintiffs from seeking damages from the Metro-East Sanitary District for floods that occurred more than two-years [sic] before the filing of the plaintiffs’ original complaint?”

As to these issues the court designated the plaintiffs the appellants and the defendants the appellees.

In denying the defendants’ motion for summary judgment, the court found the following issues to be questions of law as to which there is substantial ground for difference of opinion:

“1. Whether the Metro East Sanitary District, a municipal corporation, owed the plaintiffs a legal duty of care.
2. Whether there’s any genuine issue as to any material fact regarding the defendants’ alleged breach of the standard of care.
3. Whether there is any genuine issue as to any material fact regarding the proximate causal connection between the alleged breach of the standard of care and the claimed damages.
4. Whether there is any genuine issue as to any material fact regarding whether the plaintiff suffered any legal damages.”

With regard to these four issues the court designated the defendants the cross-appellants and the plaintiffs the cross-appellees.

We allowed the interlocutory appeal of the parties pursuant to Rule 308. Thereafter the plaintiffs filed a notice of appeal. The two appeals have been consolidated.

We turn first to the issue presented by the plaintiffs pertaining to the statute of limitations. The plaintiffs contend that because the injury about which they complain is “ongoing,” no statute of limitations — neither the six-month notice period under section 1 — 5 of the Metro-East Sanitary District Act of 1974 nor the two-year statute of limitations under section 8 — 101 of the Local Government and Governmental Employees Tort Immunity Act — has yet begun to run. The plaintiffs maintain in their brief that they could therefore “now, for the first time, file a complaint seeking damages for all the injury which they have suffered from the defendants’ actions since January 1, 1981.” They claim that the defendants’ wrongful actions, in failing to correct the silted-in condition of the Cahokia Canal and thereafter to keep it in reasonable repair, have continued since January 1, 1981, thereby damaging every crop the plaintiffs have planted in the succeeding years. At oral argument counsel for plaintiffs stated that the flooding complained of “wasn’t continuous in the sense that the water came on the land and stayed there all year round” but, rather, was “continuous in the sense that every crop year this man’s crop was destroyed.” Thus, involved here are successive instances of flooding of the plaintiffs’ land. The defendants take the position that the plaintiffs have claimed crop losses for successive years due to intermittent and recurrent overflows of their land and that each successive overflow is its own suit and would require its own notice and limitation period.

Where a tort involves repeated injury, the limitation period begins to run from the date of the last injury or when the tortious acts cease. (Anderson v. Sutter (1983), 119 Ill. App. 3d 1070, 458 N.E.2d 39; Starcevich v. City of Farmington (1982), 110 Ill. App. 3d 1074, 443 N.E.2d 737.) In Illinois, whether separate causes of action accrue at each successive injury by an unnatural overflow requires a further analysis of the cause of the overflow. (Firestone v. Fritz (1983), 119 Ill. App. 3d 685, 456 N.E.2d 904.) When a structure is placed on dominant land which unreasonably increases the flow onto the servient land, a cause of action may accrue upon the completion of the structure if it is a permanent structure which is necessarily injurious by reason of its construction. (Firestone, 119 Ill. App. 3d 685, 456 N.E.2d 904; see Suehr v. Sanitary District (1909), 242 Ill. 496, 90 N.E. 197.) If, however, the structure is not necessarily injurious but may be used in a way which may or may not result in injury, the cause of action does not accrue until the use of the structure causes injury. (See Jones v. Sanitary District (1911), 252 Ill. 591, 97 N.E. 210; Firestone, 119 Ill. App. 3d 685, 456 N.E .2d 904.) Where the continuance and operation of a permanent structure are necessarily injurious, then' damages for all the injury sustained must be recovered in one suit (Vette v. Sanitary District (1913), 260 Ill. 432, 103 N.E. 241); that is, where injury occurs as the result of the construction or the proper operation of a permanent structure, then the injury is considered permanent and the limitations period runs from the date that the construction was completed (Kurtz v. County of Logan (1987), 158 Ill. App. 3d 715, 511 N.E .2d 252; see Vette, 260 Ill. 432, 103 N.E. 241; Anderson, 119 Ill. App. 3d 1070, 458 N.E.2d 39) or from the time when the plaintiffs knew or should have known of their injury and its cause (Kurtz, 158 Ill. App. 3d 715, 511 N.E.2d 252; see Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 430 N.E.2d 976). On the other hand, where the continuance and operation of a permanent structure are not necessarily injurious, but may or may not be so, then only the injury sustained prior to the commencement of the suit may be compensated in that suit (Jones, 252 Ill. 591, 97 N.E. 210); that is, where the injury was not the necessary, immediate, and direct result of the construction undertaken, but resulted from recurrent and intermittent overflows of land caused either by negligent use or operation of the structure or by natural phenomena, then the limitations period runs from the last overflow and only the damages caused by that overflow are compensable in that suit (see Jones, 252 Ill. 591, 97 N.E. 210; Kurtz, 158 Ill. App. 3d 715, 511 N.E.2d 252; Anderson, 119 Ill. App. 3d 1070, 458 N.E.2d 39).

In Starcevick v. City of Farmington (1982), 110 Ill. App. 3d 1074, 443 N.E.2d 737, the plaintiff alleged receipt of injury upon two separate occasions during unusually heavy rainstorms, in 1974 and again in 1980, as a result of the defendants’ negligence with respect to a culvert system. The plaintiff had filed suit for damages arising out of these two injuries on February 17, 1981. The court on review found the rule applicable to the situation before it to be that separate causes of action accrue and start new periods of limitations at each successive injury by overflow. The court concluded that, assuming the plaintiff’s allegations could be proved, he was the victim of “repeated” (110 Ill. App. 3d at 1079, 443 N.E.2d at 740) injury. It determined that a two-year statute of limitations applied and held that, for purposes of the plaintiff’s injury in 1980, the statute had begun to run on June 2, 1980, • the date on which his driveway was washed away during one of the two rainstorms. As a result, contrary to the determination of the trial court, his suit for the injury of 1980 was not time barred. Although thé plaintiff had contended that the defendant city was estopped from asserting the defense of the statute of limitations because of its partial payment for the injury of 1974, the court made no express determination concerning the injury of 1974.

In Anderson v. Sutter (1983), 119 Ill. App. 3d 1070, 1075, 458 N.E.2d 39, 43, the plaintiffs sought damages from the defendant, the Village of Third Lake, allegedly caused by flooding of their property as a result of the “ ‘improper construction’ ” of a dam. Like the plaintiffs herein, the plaintiffs there contended, with regard to the defendant’s statute of limitations defense, that their injury was continuous, that the tortious act had not yet ceased, and that, therefore, the time period had not yet begun to run. However, they had failed to allege in their complaint the date on which their lands were first flooded or the dates of any subsequent flooding. Nor had they alleged whether their lands had been continuously flooded since construction of the dam or whether the flooding was intermittent. Nor was it clear whether they contended that the construction of the dam or the operation of the dam’s radial gate was the cause of their injury. Citing Vette, Jones, and Starcevich, the court pronounced this information necessary to determine whether the period for giving notice under section 8 — 102 of the Tort Immunity Act (Ill. Rev. Stat. 1981, ch. 85, par. 8 — 102) had lapsed. The court held that the complaint contained insufficient information to ascertain the date of the injury and concluded that it was impossible to determine whether the notice of injury claimed to have been given by the plaintiffs had been given within the statutory period for notice pursuant to section 8 — 102. Because this information was lacking in the complaint, the trial court could not as a matter of law determine from the pleadings that the notice period had run. Upon remand, the court indicated, the necessary information could be provided.

The plaintiffs rely in part upon the recent case of Urban v. Village of Inverness (1988), 176 Ill. App. 3d 1, 9, 530 N.E.2d 976, 981, in which the plaintiffs sought injunctive relief and damages to a structure on their property caused by three incidents of flooding, in “1972,” “1978,” and “1979.” The plaintiffs there maintained that the repeated flooding caused repeated injuries and that, therefore, the two-year statute of limitations of the Tort Immunity Act did not begin to run until the last day of the injury which occurred in 1979. The defendants argued that the statute of limitations had begun to run in 1972 when plaintiffs acquired knowledge of the flooding and damages and the existence of the cause of action. Plaintiffs had brought suit on April 18, 1980, alleging that the intermittent flooding was due to the defendants’ negligence in maintaining crushed drain tile, which clogged the drain, and in dumping and grading dirt and landfill. The court determined that the plaintiffs were victims of “repeated injury” (176 Ill. App. 3d at 9, 530 N.E.2d at 981) and that the trial court had improperly restricted the rule that, where a tort involves repeated injury, the statute of limitations begins to run from the date of the last injury or when the tortious acts cease, concluding:

“The last alleged flood damage was in 1979 and plaintiffs brought this action in 1980, within the two-year statute of limitations period. Plaintiffs’ cause of action was not barred by the statute of limitations and the trial court erred in granting summary judgment for defendants on the ground that the action was barred.” (176 Ill. App. 3d at 9, 530 N.E.2d at 981.)

The court did not, however, address expressly the episodes of flooding of either 1978 or 1972 with regard to the running of the statute of limitations.

The plaintiffs rely heavily on Leckrone v. City of Salem (1987), 152 Ill. App. 3d 126, 503 N.E.2d 1093, in support of their argument that their injury is “ongoing” and that no statute of limitations has yet begun to run. Plaintiffs in Leckrone argued that the complaint showed that the activity complained of was “ongoing” and that, accordingly, the two-year limitations period was not a bar. Some of the plaintiffs in Leckrone had sought damages arising out of the defendant’s operation of a landfill and a sewage plant that allegedly permitted seepage to pollute a creek running through their land and serving as a water supply for their dairy operation and that such pollution was continuous. The plaintiffs here rely on the court’s statement in Leckrone that, “[i]f the activity is in fact ongoing, the limitations period begins to run from the date of the last injury or the date when the tortious acts cease.” (152 Ill. App. 3d at 137-38, 503 N.E.2d at 1101.) However, “seepage” from the operation of a landfill and sewage disposal plant is readily distinguishable from the allegations advanced here pertaining to the annual instances of flooding of the plaintiffs’ croplands. Thus, we think that the plaintiffs’ reliance on Leckrone is misplaced.

In the instant case, the plaintiffs’ allegations make clear that the injuries complained of are the result of the defendants’ improper operation of the Cahokia Canal and not the result of its construction or proper operation. In other words, the plaintiffs’ allegations and contentions concerning the defendants’ failure to inspect and to maintain the Canal, their failure to prevent the accumulation of silt and debris in it, and their failure to take adequate steps to prevent erosion along its banks reveal that the injuries alleged are not the necessary, immediate, and direct result of the construction of the canal but are, instead, the result of recurrent and intermittent overflows of their land, caused by negligent use or operation of the canal. Hence, the limitations period runs from the time of the last overflow, as opposed to the time of the completion of construction of the canal, for example, and only the damages caused by that overflow are compensable in any one suit. The statute of limitation runs anew for damages caused in each instance of flooding. See Kurtz v. County of Logan (1987), 158 Ill. App. 3d 715, 511 N.E.2d 252.

With respect to the giving of notice of injury required by section 1 — 5 of the Metro-East Sanitary District Act of 1974, as opposed to section 8 — 102 of the Tort Immunity Act, the plaintiffs state in their brief that the time within which notice should be served on the defendant Metro-East Sanitary District is the “shorter six-month period prescribed by section 1 — 5 of the MESD (Ill. Rev. Stat. 1985, ch. 42, par. 501 — 5), rather than the longer one-year period formerly prescribed by section 8 — 102 of the Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 8 — 102 [repealed as of November 25, 1986]).” The defendants, likewise, take the position that the notice provision of section 1 — 5 of the Metro-East Sanitary District Act of 1974 governs the plaintiffs’ cause of action.

With regard to the content of the notice required to be served on the defendant sanitary district, the plaintiffs state in their brief that “the content of the notice to be served on the defendant Metro-East Sanitary District is set forth by section 1 — 5 of the MESD Act (Ill. Rev. Stat. 1985, ch. 42, par. 501 — 5), rather than by section 8 — 102 of the Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 8 — 102 [repealed as of November 25, 1986]).” Since, as has already been indicated, the defendants assert that the notice provision of section 1 — 5 “completely governs” the plaintiffs’ claim, there is no dispute between the parties as to what notice is required to have been provided to the defendants within six months after the occurrence of the damage or injury: namely, the name and residence address of the owner of the property damaged, its location, and the probable extent of the damage sustained. The parties dispute, however, whether the plaintiffs’ filing of their complaint within the six-month period required by the Metro-East Sanitary District Act of 1974 satisfied the notice requirement of section 1 — 5.

Relying particularly upon Dunbar v. Reiser (1976), 64 Ill. 2d 230, 356 N.E.2d 89, and Rio v. Edward Hospital (1984), 104 Ill. 2d 354, 472 N.E.2d 421, the plaintiffs maintain that the filing of their complaint within the six-month period specified by section 1 — 5 satisfied the notice requirement therein. In Dunbar the supreme court of Illinois held that the filing of a complaint within the notice period prescribed by section 8 — 102 of the Tort Immunity Act satisfies the statutory notice requirement. Section 8 — 102 provided that such notice give, as stated by the court in Rio (104 Ill. 2d at 361-62, 472 N.E.2d at 423), “ ‘in substance the following information: the name of the person to whom the cause of action has accrued, the name and residence of the person injured, the date and about the hour of the accident, the place or location where the accident occurred, the general nature of the accident, the name and address of the attending physician, if any, and the name and address of the treating hospital or hospitals, if any.’ ” In Rio (104 Ill. 2d at 367, 472 N.E.2d at 426), the court concluded that the complaint there provided the defendants with substantially all the information required by section 8 — 102 of the Tort Immunity Act, stating:

“The obvious purpose of requiring the inclusion of a claimant’s address in the notice is to provide the defendant with a means of contacting the claimant. The complaint here provided the name and address of plaintiff’s attorney, who could be contacted with regard to the case. We deem this to be sufficient compliance with the Act. We also disagree with defendants’ contention that the complaint did not sufficiently describe the general nature of plaintiff’s injury. On the contrary, the complaint more than adequately described the gist of plaintiff’s injury and its alleged cause.”

As we have said, section 1 — 5 of the Metro-East Sanitary District Act of 1974 requires that the written notice give the name and residence address of the owner of the property damaged, its location, and the probable extent of the damage sustained. Here, as in Rio, the complaint included the names of the plaintiffs and the name and address of the plaintiffs’ attorney. In their complaint the plaintiffs state that they either own or farm under lease all of the farms indicated on the diagram attached to and made a part of their complaint. They state further in their complaint that as a result of the flooding of the lands owned or farmed by them, their crops planted in 1981, 1982, and 1983 have been destroyed and that they have sustained damages in excess of $400,000. We deem this to be sufficient compliance with respect to the content of the notice required by section 1 — 5.

The defendants argue in their brief that under the authority of Lane v. Chicago Housing Authority (1986), 147 Ill. App. 3d 876, 498 N.E.2d 604, “it is not the date of filing which determines whether a complaint is filed within the notice period, but the date that the defendant is served with the complaint. In the present case, suit was filed on April 10, 1984[,] and served on the defendant on April 24, 1984.” (Emphasis in original.) In Lane the plaintiff allegedly sustained an injury when he fell on the defendant’s property on April 11, 1984. He filed his complaint in circuit court on April 8, 1985. The sheriff’s return of service showed that the summons and complaint were served on the defendant on April 12, 1985. The plaintiff in Lane had given the defendant no notice of the alleged injury during the one-year statutory period specified in section 8 — 102 of the Tort Immunity Act, and the court there held that, when the defendant has received no notice during the one-year statutory notice limitation period, the mere filing of a complaint not served upon a defendant within that period does not satisfy the notice requirement of section 8 — 102 of the Tort Immunity Act. The court in Lane noted particularly that in both Dunbar and Rio service of process had been effected within the applicable statutory notice period. In the instant case, however, the date of service of the summons and complaint cannot be known from the record provided to this court on review. Thus, we adopt the date used by the trial court. We conclude that the filing of the complaint by the plaintiffs within the six-month notice period specified by section 1 — 5 satisfied the notice requirement set forth therein.

In summary, we have determined that the statute of limitations here runs anew for damages caused in each instance of flooding from the time it occurs. In light of that conclusion, together with the parties’ agreement that section 1 — 5 of the Metro-East Sanitary District Act of 1974 applies here and our conclusion that the filing of the complaint by the plaintiffs within the six-month notice period of that section satisfied the notice requirement set forth therein, we hold that the trial court properly barred the plaintiffs from seeking damages for that part of the alleged injury to their land occurring more than six months prior to the filing of their complaint in this cause on April 10, 1984.

The plaintiffs contend further that the trial court should have allowed their pleading to seek damages for the additional injury to their crops which has occurred during the pendency of this lawsuit on the ground that the amendment would relate back to the date on which the original complaint was filed and, thus, would not be barred by a lapse of time under any statute prescribing a period of limitations. Section 2 — 616(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 616(b)) provides:

“The cause of action, cross claim or defense set up in any amended pleading shall not be barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if the time prescribed or limited had not expired when the original pleading was filed, and if it shall appear from the original and amended pleadings that the cause of action asserted, or the defense or cross claim interposed in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery or defense asserted, if the condition precedent has in fact been performed, and for the purpose of preserving the cause of action, cross claim or defense set up in the amended pleading, and for that purpose only, an amendment to any pleading shall be held to relate back to the date of the filing of the original pleading so amended.”

Under this statute an amended pleading will not be deemed to relate back to the original pleading so as to avoid the impact of the statute of limitations rule unless the original and amended pleadings indicate that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading. (Bailey v. Petroff (1988), 170 Ill. App. 3d 791, 525 N.E.2d 278.) In their brief the plaintiffs argue that

“[flour years have passed since the filing of the original complaint, and, since that time, the same negligence on the part of the defendants has caused flooding of the plaintiffs’ land, and damage to their crops, in the years 1984, 1985, 1986, and 1987. Because the injury which the plaintiffs have suffered, and are suffering, is a continuing one, and the same negligent acts or omissions of the defendants have caused its continuation, the continuation of that injury should be viewed as growing out of the same transaction or occurrence set up in the plaintiffs’ original complaint.”

In view of our determination that only the damages caused by a particular overflow are compensable in any one suit and that the statute of limitations runs anew for damages caused by each instance of flooding from the time it occurs, the plaintiffs’ argument is not well taken. The plaintiffs’ original and amended pleadings do not indicate that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading and, therefore, cannot be deemed to relate back to the original pleading. Thus, the trial court did not err in refusing to permit the plaintiffs to amend their complaint to allege injuries to their property from overflows occurring after the filing of their complaint. To seek compensation for such injuries the plaintiffs would have to file a complaint for each cause of action so alleged within the appropriate limitations period.

The plaintiffs present for review the issue of whether either the Tort Immunity Act or the Metro-East Sanitary District Act of 1974 applies to causes of action for injunctive or other equitable relief. However, no action pertaining to the plaintiffs’ count for equitable relief appears to have been taken by the trial court, and no question pertaining to this issue was identified by the trial court. Hence, we decline to consider it.

Concerning the defendants’ cross-appeal, they contend that the trial court ought to have granted their motion for summary judgment for several reasons, the first being that the defendants had no legal duty of care to maintain the Cahokia Canal “in a condition,” as the plaintiffs urge, “sufficient to provide an outlet for the waters of such floods or freshets as men of ordinary prudence could have foreseen.” A motion for summary judgment will be granted only if the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c); Abernathy v. Dynell Springs Co. (1989), 179 Ill. App. 3d 138, 534 N.E.2d 486.) The defendants take the position that when the defendant is, as it is, a municipal corporation, “and the plaintiff complains of an injury arising from that municipal corporation’s supposed failure to perform its public function properly, the plaintiff must set forth facts in his complaint adequate to show that the municipal corporation owed him a special duty which was different from the general duty which it owed to the public at large.” However, the cases cited by the defendants for this proposition have no application to the facts of this case but address, for example, the failure of the municipality to provide the plaintiff with adequate police protection or the failure of the municipality to enforce a certain provision of its housing code. The plaintiffs rely principally upon Atherton v. East Side Levee & Sanitary District (1918), 211 Ill. App. 55, 60-61, in which the court discussed the duty owed by the defendant sanitary district to the plaintiff landowner, seeking damages for the overflowing of her land when the defendant’s levee and diversion canal interfered with the natural flow of the waters of Cahokia Creek and Indian Creek:

“The contention that [the defendant] had the authority under the law to construct the levee and canal and thus change the course of Cahokia Creek is correct as a principle of law. It is as equally well established that while [the defendant] had this right it must have exercised that authority in such a manner as not to obstruct or retard the natural flow of the water, and not to throw or hold it back upon adjacent land to the damage of the same. ‘It is settled by all the authorities that it is the right of each proprietor of land upon a natural watercourse to insist that the water shall continue to run as it has been accustomed to do, and to insist that no one shall obstruct or change its course injuriously to him without being liable in damages.’ (Ohio & M. Ry. Co. v. Thillman, 143 Ill. 127.) The law imposes upon any one interfering with the flow of the water in a stream to restore the stream to its former state or to so restore it as not to impair its usefulness. The same obligation rests upon a municipal corporation in this respect as rests upon an individual.”

Noting that the evidence in the case tended to show that in times of overflow, prior to the building of the levee, a portion of the water from Cahokia Creek would run off in a certain direction, the court observed further:

“It was as much [the defendant’s] duty to provide for this overflow water as the channel water of Cahokia Creek. The courts make no distinction, regarding [the defendant’s] duty in this respect, between surface water, channel water and overflow or flood waters. ***
*** It is true that in constructing its levee and canal [defendant] was required to provide an outlet for only the waters of such floods or freshets as men of ordinary prudence could have foreseen.” 211 Ill. App. at 62-63.

We find still instructive the remarks of the supreme court in Bradbury v. Vandalia Levee & Drainage District (1908), 236 Ill. 36, 41-42, 86 N.E. 163, 164, in answer to the question whether the defendant was liable for damages to the plaintiffs’ lands as a consequence of the defendant’s building a levee below them, thereby obstructing the natural flow of the Kaskaskia River in times of floods and freshets so that water backed up on the plaintiffs’ lands:

“If an individual owner of the land where the levee was constructed had done the same acts as the defendant he would be liable for the consequent damage. He would have no right to build a levee which would prevent the escape of the flood waters and thereby flood the lands of the plaintiffs. In Stout v. McAdams, 2 Scam. 67, the court said: ‘There can be no doubt that every flowing back or throwing water upon the land of another is such an act as entitles the individual injured to his action.’ That case arose from the obstruction of a natural water-course by a dam, and the principle has been applied by this court alike to obstructions to the natural flow of surface waters and natural water-courses. *** [I]n Gormley v. Sanford [52 Ill. 158] it was held that there was no difference in principle whether the water comes from the clouds above or has fallen upon remote hills and comes thence in a running stream. The court said (p. 162): '*** The right of the owner of the superior heritage to drainage is based simply on the principle that nature has ordained such drainage, and it is but plain and natural justice that the individual ownership arising from social laws should be held in accordance with pre-existing laws and arrangements of nature. As water must flow and some rule in regard to it must be established where land is held under the artificial titles created by human law, there can clearly be no other rule at once so equitable and so easy of application as that which enforces natural laws.’ ”

In view of the foregoing, we consider that the defendants’ contention that the sanitary district as a municipal corporation owed no duty of care to the plaintiffs under the circumstances alleged to be without merit.

The defendants contend additionally that there is no genuine issue as to any material fact concerning their alleged breach of the standard of care. They argue that without the testimony of an expert, describing the standard of care and rendering an opinion about the defendants’ breach thereof, the plaintiffs cannot establish an issue of fact concerning the defendants’ alleged negligence. They state that the testimony on discovery deposition of the experts disclosed in this case shows that none has indicated either what the standard of care ought to be or that the defendants are in breach of it. In essence, defendants maintain that the testimony of an expert is necessary for the plaintiffs to establish a prima facie case. However, the cases defendants cite for this proposition do not support it. Expert evidence is admissible when the witnesses offered as experts have peculiar knowledge or experience not common to the world, which renders their opinions founded on such knowledge or experience an aid to the court or jury in determining the question at issue; expert testimony is proper when the subject matter of the inquiry is of such a nature that only persons of skill or experience in it are capable of forming a correct judgment as to any fact connected therewith. (Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co. (1971), 49 Ill. 2d 118, 273 N.E.2d 363.) We are unwilling to hold, as the defendants would have us do, that the instant case is one of such complexity that, as a matter of law, the plaintiffs cannot establish a prima facie case in the absence of expert testimony.

Similarly, the defendants maintain that there is no genuine issue as to any material fact concerning the “proximate causal connection” between the alleged breach of the standard of care and the damages claimed. They assert that “this type of factual causation can only be proved by competent expert testimony.” As before, we decline to hold that the instant case is one of such complexity that in the absence of expert testimony the plaintiffs cannot, as a matter of law, establish the requisite causal connection between the defendants’ conduct and the damages they allege.

Finally, the defendants take the position that there is no genuine issue as to any material fact as to whether the plaintiffs suffered any legal damages. They argue that the only damages recoverable by the plaintiffs are those that occurred between October 10, 1983, and April 10, 1984. They state that the plaintiff, Gordon Gass, testified in his discovery deposition that these damages occurred as the result of the loss of a soybean crop planted in May of 1983 and flooded on July 5, 1983. “Ultimately,” defendants state, “the crop was supposed to be harvested in September, 1983.” Defendants argue, “No matter what date the court determines this 1983 ‘damage’ accrued, either the time of planting (May, 1983), the time of the alleged flood (July 5, 1983), or the time of harvest (September, 1983), none of these dates occurs within the relevant period established by the court.” However, the plaintiff testified at his discovery deposition that the harvest would have occurred in “September and October” of 1983. Therefore, the defendants’ assertions with regard to damages are belied by the record. Under the defendants’ own analysis a genuine issue exists as to a material fact pertaining to the plaintiffs’ alleged damages, and the trial court properly denied the defendants’ motion for summary judgment.

During the pendency of this appeal, the plaintiffs moved to dismiss the cross-appeal of the defendants and to strike portions of the defendants’ brief. This motion was taken with the case and is hereby denied.

Affirmed.

HARRISON and RARICK, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HOWERTON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. JAMES P. McDONALD, Respondent-Appellant.
    Fifth District
    No. 5—88—0066
    Opinion filed August 8, 1989.

      Richard Koritz, of Ford & Koritz, of Sesser, for appellant.
    Terry M. Green, State’s Attorney, of Benton (Kenneth R. Boyle, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HOWERTON

delivered the opinion of the court:

A Franklin County jury found respondent to be sexually dangerous on the State’s petition under section 4 of the Sexually Dangerous Persons Act (Ill. Rev. Stat. 1987, ch. 38, par. 105 — 4). The court entered judgment on the verdict and appointed Michael Lane, Director of the Illinois Department of Corrections, respondent’s guardian.

Respondent appeals and raises four issues. This court, however, need address only two: (1) whether respondent was proved to be sexually dangerous beyond a reasonable doubt; and (2) whether the report of Michael Althoff, Ph.D., a registered psychologist, should have been read to the jury. '■

The State concedes that it was error to introduce Dr. Althoff’s report into evidence; he is a psychologist, not a psychiatrist, and the law requires examination and report from a psychiatrist, not a psychologist. (Ill. Rev. Stat. 1987, ch. 38, pars. 105 — 4, 105 — 4.01.) We, therefore, vacate the judgment of the circuit court of Franklin County and remand for a new trial.

Since we remand for a new trial without deciding whether respondent was proved to be sexually dangerous, we need to immediately address the exposure of respondent to double jeopardy.

This court holds that this case is civil, not criminal, and therefore,

This court holds that this case is civil, not criminal, and therefore, remanding this case for retrial without weighing the evidence to determine whether defendant was proved guilty beyond a reasonable doubt does not violate the provision against double jeopardy contained in the Illinois Constitution or the United States Constitution. Ill. Const. 1970, art. I, §10; U.S. Const., amend. V.

Our supreme court in People v. Taylor (1979), 76 Ill. 2d 289, 309, 391 N.E.2d 366, 375, held that an appellate court risks subjecting a defendant to double jeopardy when it reverses a criminal conviction and remands for new trial without deciding defendant’s contention that the evidence at the first trial was insufficient to convict.

Double jeopardy does not apply to civil cases, however. The case at bar is civil, not criminal, and has been so designated by the legislature. (Ill. Rev. Stat. 1987, ch. 38, par. 105 — 3.01.) Treatment, not punishment, is the aim of the statute, making reasonable the legislative determination that the proceedings are civil. People v. Allen (1985), 107 Ill. 2d 91, 100-01, 481 N.E.2d 690, 695, affd (1986), 478 U.S. 364, 92 L. Ed. 2d 296, 106 S. Ct. 2988.

Proof beyond a reasonable doubt is the quantum of proof required to establish that respondent is sexually dangerous. (Ill. Rev. Stat. 1987, ch. 38, par. 105 — 3.01.) The threshold question, therefore, is whether the quantum of proof causes this case to be considered criminal, rather than civil, so that it falls within the holding of Taylor.

The legislature wisely chose proof beyond a reasonable doubt to establish one sexually dangerous because of the unique risks to liberty posed by the statute itself. Upon a finding that a person is sexually dangerous, the Director of Corrections is appointed guardian. The person is committed to custody until recovery and released only as provided by law. People v. Pembrock (1976), 62 Ill. 2d 317, 319-21, 342 N.E.2d 28, 29.

Civil cases ordinarily call for proof by a preponderance of the evidence or proof by clear and convincing evidence; civil cases ordinarily do not call for proof beyond a reasonable doubt. Nevertheless, requiring proof beyond a reasonable doubt does not transform this civil case into a criminal case, nor confer on respondent the rights of a criminal defendant. Although the standard of proof beyond a reasonable doubt must be used in sexually dangerous persons proceedings, this court does not believe that other elements of the criminal process, such as admonitions regarding a right to a jury trial, and to a right to appeal, for example, are constitutionally required. (People v. Pembrock (1974), 23 Ill. App. 3d 991, 995, 320 N.E.2d 470, 473, affd (1976), 62 Ill. 2d 317, 342 N.E.2d 28.) Proceedings under the sexually dangerous provision of the Code of Criminal Procedure of 1963 are not “criminal” within the meaning of the fifth amendment to the United States Constitution, nor does the due process clause of the fourteenth amendment to the United States Constitution independently require application of the privilege against self-incrimination. (Allen v. Illinois (1986), 478 U.S. 364, 375, 92 L. Ed. 2d 296, 308, 106 S. Ct. 2988, 2995.) The right to be secure from unreasonable search and seizure, privilege against self-incrimination, and double jeopardy are all concepts that grew out of the American colonial experience with tyrannical application of the criminal law and all are concepts uniquely associated with criminal law. Whereas, each of these concepts has been enshrined in both the Illinois and United States Constitutions, proof beyond a reasonable doubt has not. Although proof beyond a reasonable doubt is traditionally associated with criminal law, there is neither a constitutional impediment to nor a logical reason that forbids its application to a civil case. Therefore, Taylor does not apply.

Turning now to the issue of whether the legislative mandate that respondent be examined by two psychiatrists (Ill. Rev. Stat. 1987, ch. 38, pars. 105 — 4, 105 — 4.01) was violated, this court finds that it was and that respondent is entitled to a new trial.

The circuit court appointed Thomas T. Flynn, M.D., a psychiatrist, and Michael E. Althoff, Ph.D., a psychologist, to examine defendant. At trial, defense counsel, who does not represent respondent on appeal, stipulated that Dr. Althoff was qualified to conduct an examination of respondent. The stipulation to the contrary notwithstanding, the statute plainly requires examination by two qualified psychiatrists. That plain legislative requirement is reflective of policy and cannot be waived. (People v. Bruckman (1965), 33 Ill. 2d 150, 154, 210 N.E.2d 537, 540.) As two qualified psychiatrists were not appointed to examine respondent, the judgment of the circuit court of Franklin County must be reversed and remanded for further proceedings.

Finally, we are presented with the problem of justifying remand in view of the record in this case.

Dr. Flynn, a psychiatrist, concluded that respondent’s problem was chemical dependence on mood-altering drugs, and his sexual problems were secondary to that dependency, but could find no antisocial disorder. Dr. Flynn’s report is admissible, but does not support a finding that respondent is sexually dangerous.

On the other hand, Dr. Althoff, a psychologist, concluded that respondent has propensities toward commission of sex offenses, has anti-social personality features, and an adjustment disorder with mixed emotional features; Dr. Althoff’s report supports finding respondent sexually dangerous, but is not admissible.

The record, therefore, presents a case wherein it appears that the only admissible evidence does not support a finding that defendant is sexually dangerous. How then can this court avoid outright reversal, and remand instead?

We first note that examination of case law reveals no clear picture of when a reversal is to be entered on appeal to the exclusion of remand for retrial when evidence that is relevant, but barred for policy reasons improperly has been relied upon to support a finding in a circuit court. We approach this question by noting that the testimony of Dr. Althoff is relevant, but is barred by policy announced by the legislature, namely, that only psychiatrists, not psychologists, are to examine putative sexually dangerous persons and report to the court. We next note that under Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322, a psychiatrist could rely upon the report of a psychologist in arriving at an opinion as to whether a person is sexually dangerous, so long as the psychiatrist testified that psychologist reports are reasonably relied upon by psychiatrists in arriving at such opinions. In that instance, Wilson v. Clark, operating in tandem with the statute; would allow the psychiatrist to give an opinion based solely on the psychologist’s report, except for the legislative mandate that the psychiatrist examine the person. We further note that psychology is a field closely related to psychiatry, the prime difference being the power to prescribe controlled substances. Under this analysis, the facts strongly suggest that the State will be able to present appropriate psychiatric testimony. “[A] case should not be reversed for failure of proof without remanding unless the record indicates that the available essential evidence has been fully presented and that no recovery could be had in any event.” Reed Schmidt & Associates, Inc. v. Carafiol Furniture Co. (Mo. App. 1971), 469 S.W.2d 876, 879. See Jones v. Petrolane-Cirgas, Inc. (1986), 146 Ill. App. 3d 153, 496 N.E.2d 509.

The judgment is reversed and the case remanded for further proceedings.

Reversed and remanded.

WELCH, RJ., and RARICK, J., concur.


author: PRESIDING JUSTICE WELCH

text:
    WILLIAM J. BORGSMILLER et al., Indiv. and Derivatively as Shareholders of the City National Bank of Murphysboro, Plaintiffs-Appellants, v. RAYMOND C. BURROUGHS et al., Defendants-Appellees.
    Fifth District
    No. 5—88—0229
    Opinion filed August 9, 1989.

      Kathleen Moran, of Callahan & Moran, P.C., of Trenton, and Charles Hines, of Carbondale, for appellants.
    John C. Feirich, of Feirich, Schoen, Mager, Green & Associates, of Carbondale, and James V. O’Brien and Raymond W. Gruender, both of Lewis & Rice, of St. Louis, Missouri, for appellees.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

Plaintiffs, William J. Borgsmiller and Harold W. Koehn, individually and derivatively as shareholders of the City National Bank of Murphysboro, appeal the dismissal of their third amended complaint against defendants, Raymond C. Burroughs, Ben W. Daniel, Norman R. Ellis, City Bancorp, Inc. (hereinafter Bancorp), and City National Bank of Murphysboro (hereinafter Bank). The third amended complaint, which was filed in the circuit court of Jackson County on May 14, 1986, alleges that defendant Burroughs, who was president and director of Bank, and defendants Daniel and Ellis, who were directors of Bank, violated their fiduciary duties to said Bank in several respects.

Count I of plaintiffs’ complaint alleges that defendants violated their fiduciary duties by incorporating a bank holding company, Ban-corp, transferring their shares in Bank to Bancorp, and then making a tender offer to purchase a controlling percentage of stock in Bank. Plaintiffs allege that this violated defendants’ fiduciary duties to Bank in the following respects: (1) defendants did not reveal their intention to attempt a take-over of Bank to Bank’s board of directors, thereby violating their duty to conduct the business of Bank at all times for the best interest of all shareholders equally; (2) defendants did not give shareholders of Bank an opportunity to transfer their shares of Bank stock to Bancorp on the same basis as had defendants, thereby violating their duty to represent all shareholders equally; (3) defendants did not reveal their intention to attempt a take-over of Bank to Bank’s board of directors so as to allow Bank to solicit a better tender offer or sale with a disinterested third party; (4) the tender offer letter is false and misleading in certain respects, thereby violating defendants’ fiduciary duties to Bank’s shareholders to protect their interests.

Count II of plaintiffs’ complaint alleges that the formation of, and transfer of defendants’ Bank stock to, Bancorp creates an inherent and actual conflict of interest for defendants, who are directors of both Bancorp and Bank, thereby breaching defendants’ fiduciary duties to Bank. The conflict of interest arises, allege plaintiffs, because Bancorp has the power to acquire, and in fact has acquired, assets of other banks which are in competition with Bank, thereby dividing defendants’ loyalties between these competing banks and creating the possibility that defendants might direct business away from Bank and toward a competing bank controlled by Bancorp.

Count III alleges that defendants have misappropriated corporate assets of Bank by using its staff, facilities, employees and premises for their personal benefit and gain, and the benefit and gain of Ban-corp, without paying consideration therefore. Count III alleges that defendants have thereby violated their fiduciary duties to Bank and have acted contrary to the statutes of the State of Illinois.

The complaint further alleges that all demands and requests by plaintiffs for defendants to eliminate their breaches of fiduciary duties have been to no avail, and that any further demand by plaintiffs that Bank institute a lawsuit against defendants would be to no avail as defendants or Bancorp own or control a majority of Bank’s stock. The complaint alleges that as a result of defendants’ breaches of 'their fiduciary duties, the common stock of Bank has decreased in market value as the only purchaser of the stock is Bancorp at a depressed price. The complaint prays that the agreement between Bancorp and defendants Burroughs, Daniel and Ellis whereby the individual defendants transferred their Bank stock to Bancorp be declared null and void, that the tender offer be declared null and void and Bancorp be ordered to divest itself of any interest it has in Bank stock pursuant to the tender offer, that in the alternative, all shareholders of Bank stock be given the opportunity to transfer their Bank stock to Bancorp on the same terms as had defendants, that in the alternative, Bancorp be ordered to pay a fair and reasonable price for Bank stock, that defendants be enjoined from entering into any contract with Bank, that damages be awarded Bank and that plaintiffs Borgsmiller and Koehn recover their reasonable attorney fees and costs.

On June 16, 1986, defendants filed a motion to dismiss the third amended complaint and a supporting memorandum. The motion was granted on April 4, 1988, and plaintiffs’ third amended complaint was dismissed.- Plaintiffs elected to stand on the third amended complaint and filed a notice of appeal on April 26,1988.

Upon review of dismissal of a complaint for failure to state a cause of action, the allegations thereof must be taken as true, and appeal from the dismissal preserves for review only the question of law as to the complaint’s legal sufficiency. (Teter v. Clemens (1985), 131 Ill. App. 3d 434, 436, 475 N.E.2d 1063, 1065, modified (1986), 112 Ill. 2d 252, 492 N.E.2d 1340.) To state a cause of action, a complaint must be legally sufficient, i.e., it must set forth a legally recognized claim as its avenue of recovery, and it must be factually sufficient, i.e., it must plead facts which bring the claim within the legally recognized cause of action alleged. Teter, 131 Ill. App. 3d at 438-39, 475 N.E.2d at 1067.

Count I of plaintiffs’ complaint seeks to state a cause of action for breach of fiduciary duty as a result of defendants’ attempt to purchase, through their bank holding company, a controlling amount of stock in Bank. In their brief, plaintiffs argue that the Bank’s, directors, including defendants, had a duty to oppose any take-over attempt which was not in the best interest of Bank. Because defendant directors were orchestrating the take-over attempt, they were not in a position to impartially evaluate or oppose it. Further, they argue that the tender offer letter was misleading in that it did not inform the shareholders that defendant directors had transferred their Bank stock to Bancorp. The letter states:

“On or about March 12, 1982, Bancorp entered into an agreement with certain Shareholders of the Bank (the Agreement) wherein shareholders owning approximately twelve percent (12%) of the outstanding shares of the Bank have agreed to transfer their shares to Bancorp. Raymond C. Burroughs is President and a director of Bancorp and Ben W. Daniel and Norman R. Ellis are also officers and directors of Bancorp.”

Plaintiffs also argue that the letter was fraudulent in that it does not reveal that neither the $20 par value nor the $281.78 book value of their stock, for which they were offered $300, is the fair market value of the stock. Plaintiffs argue that, by failing to reveal the tender offer to the Bank’s board of directors prior to the time the tender offer was made to all shareholders, the defendants prevented the Bank’s board from opposing the tender offer or clarifying the misleading information in the tender offer letter.

It is undisputed that the individuals who control corporations owe a fiduciary duty to their corporation and its shareholders. (Graham v. Mimms (1982), 111 Ill. App. 3d 751, 760-61, 444 N.E.2d 549, 556.) However, plaintiffs present no Illinois cases, nor are we otherwise aware of any, which hold that a corporate director may not make a tender offer for stock of the corporation of which he is a director. Instead, Illinois courts have repeatedly held that, absent abuse of inside information or usurpation of corporate opportunity, a corporate director is permitted to purchase stock of the corporation with which he is affiliated as freely and on the same terms as if he were a stranger to the corporation. (Melish v. Vogel (1975), 35 Ill. App. 3d 125, 135, 343 N.E.2d 17, 25; Voss v. Lakefront Realty Corp. (1977), 48 Ill. App. 3d 56, 66, 365 N.E.2d 347, 355.) Plaintiffs do not allege that defendants abused inside information or usurped a corporate opportunity in their tender offer. No fiduciary duty constrains a corporate director from purchasing his corporation’s stock either directly or through a holding company.

We are also unaware of any Illinois case which requires that a director give prior notice to the corporation of which he is a director that he is undertaking to purchase a controlling amount of its stock. Instead, the defendant directors were free to make a tender offer to purchase Bank stock just as any stranger to the Bank would have been. Voss, 48 Ill. App. 3d at 66, 365 N.E.2d at 355.

Plaintiffs also argue that the tender offer letter was false and misleading in several respects, thereby breaching defendants’ fiduciary duties to shareholders of Bank. The tender offer letter is from Bancorp and is signed by Raymond C. Burroughs as president of City Bancorp, Inc. Defendants were free to purchase shares of Bank’s stock in the same manner as would have been a stranger to the Bank. (Voss, 48 Ill. App. 3d at 66, 365 N.E.2d at 355.) Plaintiffs do not allege that defendants failed to disclose some secret inside information known to them by virtue of their position as Bank directors but not known to the Bank’s shareholders.

Nor do we find anything misleading or fraudulent about the tender offer letter. The letter clearly states that defendants Burroughs, Daniel and Ellis are officers and directors of Bancorp. It sets forth the par value and book value of Bank stock, but does not indicate that either of these values represents the fair market value of the stock. Again, plaintiffs have not alleged that defendants failed to disclose some inside, material information to Bank’s stockholders. We find no breach of fiduciary duty.

We find count I of plaintiffs’ complaint to be legally insufficient in that it fails to set forth a legally recognized claim as its avenue of recovery. Count I of plaintiffs’ complaint was properly dismissed.

Count II of plaintiff’s complaint seeks to state a cause of action for breach of fiduciary duty by virtue of an inherent conflict of interest in defendants’ positions as directors of both the Bank and the bank holding company. Plaintiffs argue that it might be in the best interest of Bancorp to direct business away from the Bank to a different bank held by Bancorp, but this would not be in the best interest of the Bank.

While dual memberships on boards of directors of competing or potentially competing businesses may create a conflict of interest thereby breaching fiduciary duty (Kerrigan v. Unity Savings Association (1974), 58 Ill. 2d 20, 30-31, 317 N.E.2d 39, 44), we do not think that the Bank and the bank holding company are competing or potentially competing businesses. Bancorp and the Bank are not competing for business. The interests of Bancorp and the Bank do not conflict. Instead, we think the interests of the two corporations coincide. Plaintiffs’ complaint does not allege that defendants have actually diverted business away from the Bank in order to benefit themselves, but only that defendants might divert business away from the Bank to some other bank owned by Bancorp. This is not sufficient to state a cause of action for breach of fiduciary duty. Count II is factually insufficient in that it fails to plead facts which bring the claim within the legally recognized cause of action alleged. Count II was properly dismissed.

Count III seeks to state a cause of action for misappropriation of corporate assets. The complaint alleges that defendants used the “staff, facilities, employees and premises of the City National Bank of Murphysboro for their personal benefit and gain and for the personal benefit and gain of defendant, City Bancorp, Inc., without paying any consideration therefore in violation of their fiduciary duty.” The complaint sets forth no other facts to show how defendants misappropriated corporate assets.

It is well settled that a corporation’s fiduciary is not permitted to use corporate assets for his own personal gain (Graham v. Mimms (1982), 111 Ill. App. 3d 751, 761-62, 444 N.E.2d 549, 556) and misappropriation of corporate assets is a legally recognized cause of action. While count III of plaintiffs’ complaint does not set forth specific facts regarding the manner in which defendants used the bank’s staff, facilities, employees and premises for their own purposes, we think it does present sufficient facts to withstand a motion to dismiss. A pleader is not required to set out his evidence, but need only plead the ultimate facts to be proved. (People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill. 2d 300, 308, 430 N.E.2d 1005, 1009.) Plaintiff has done so with respect to count III.

Defendants argue that count III was properly dismissed because plaintiffs have failed to properly plead a stockholder’s derivative action therein. Specifically, defendants argue that plaintiffs have failed to state with particularity the efforts made by them to obtain the desired actions from the Bank’s board of directors, or their reason for not making such an effort.

Defendants are correct that a cause of action for misappropriation of corporate assets belongs to the corporation rather than to individual stockholders and must be brought in a derivative action. Misappropriation of corporate assets is clearly an injury incurred by the corporation rather than individual shareholders. Thus, the shareholders can only sue upon a derivative basis and not as individuals. Poliquin v. Sapp (1979), 72 Ill. App. 3d 477, 480, 390 N.E.2d 974, 977.

Defendants are also correct that generally, before a shareholder may bring a derivative suit on a corporate right, he must demand that the corporations directors bring suit. (Valiquet v. First Federal Savings & Loan Association (1979), 87 Ill. App. 3d 195, 199, 408 N.E.2d 921, 925.) However, such demand is not required where the directors sought to be sued are in control of the corporation. (Conway v. Conners (1981), 101 Ill. App. 3d 121, 126, 427 N.E.2d 1015, 1019.) In alleging that demand is excused because it would be unavailing, plaintiffs must plead facts, not conclusions. Valiquet, 87 Ill. App. 3d at 200, 408 N.E.2d at 925.

Plaintiffs’ complaint alleges as follows,

“15. That all demands and requests made by Plaintiff, William J. Borgsmiller, as a shareholder and member of the Board of Directors of The City National Bank of Murphysboro for Defendants, Raymond C. Burroughs, Ben W. Daniel and Norman R. Ellis to cease using the City National Bank of Murphysboro for their own personal use has been to no avail in that all motions made by William J. Borgsmiller as a member of the Board of Directors of The City National Bank of Murphysboro have been rejected.
16. That any further demand by Plaintiffs that the City National Bank of Murphysboro institute a lawsuit against its President and other Board Members would have been useless since City Bancorp, Inc. and defendants own or control a majority of the stock.”

We think these allegations are sufficient to satisfy the requirements of a derivative action. The trial court erred in dismissing count III of plaintiffs’ complaint.

In summary, we affirm the trial court’s dismissal of counts I and II of plaintiffs’ complaint. We reverse the trial court’s dismissal of count III of plaintiffs’ complaint and remand this cause for further action thereon.

For the foregoing reasons, the judgment of the circuit court of Jackson County is affirmed in part, reversed in part, and remanded for further proceedings not inconsistent with this opinion.

Affirmed in part; reversed in part and remanded.

HARRISON and CHAPMAN, JJ., concur.


author: PRESIDING JUSTICE WELCH JUSTICE WELCH

text:
    WILLOW HILL GRAIN, INC., Plaintiff-Appellee, v. PROPERTY TAX APPEAL BOARD et al., Defendants-Appellants.
    Fifth District
    No. 5—88—0275
    Opinion filed August 9, 1989.
    Supplemental opinion filed on rehearing January 12, 1989.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Rosalyn B. Kaplan, Assistant Attorney General, of Chicago, of counsel), for appellate Property Tax Appeal Board.
    James Tomaw, State’s Attorney, of Newton (Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellant Board of Review of Jasper County, Illinois.
    Frank J. Weber and Thomas R. Wiseman, both of Cox, Phillips, Weber, Tedford & Heap, P.C., of Robinson, for appellee.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

On July 20, 1987, appellee, Willow Hill Grain, Inc., brought an action pursuant to the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 101 et seq.) in the circuit court of Jasper County, asking it to review the decision of the Property Tax Appeal Board of the State of Illinois (hereinafter Appeal Board), which found the fair market value of appellee’s grain elevator and fertilizer business to be $1,903,335. By order dated April 21, 1988, the circuit court of Jasper County reversed the decision of the Appeal Board and remanded the cause with directions that the Appeal Board find the fair market value of appellee’s property to be $1,320,000. Both the Appeal Board and the Board of Review of Jasper County appeal the judgment of the circuit court.

Before proceeding to the merits of this case, we point out that the Appeal Board has no standing to prosecute this appeal. (Wallman v. Zoning Board of Appeals (1989), 181 Ill. App. 3d 680, 681, 537 N.E.2d 422, 423.) We therefore dismiss the Appeal Board as a party to this action. The Board of Review does, however, have standing to prosecute this appeal. (Will County Board of Review v. Property Tax Appeal Board of Department of Revenue (1971), 48 Ill. 2d 513, 517, 272 N.E.2d 32, 35.) We will therefore consider the merits of the appeal.

On November 15, 1985, appellee appealed the assessment of its real property by the Board of Review to the Appeal Board, claiming that its property had been overvalued and that it had received unequal treatment in the assessment process. In May 1985, appellee had had its property appraised by Ernest E. Zimmer of Specialty Appraisal Service, Inc. Zimmer appraised appellee’s property as of January 1, 1985, at $1,165,010. The Board of Review also commissioned an appraisal of appellee’s property by Martin D. Miller, an appraiser and property tax consultant. Miller found the fair market value of appellee’s property as of January 1, 1985, to be $1,903,335. This was the value used by the Board of Review in assessing appellee’s property for tax purposes.

On March 26, 1987, a hearing de novo was held before the Appeal Board. The evidence adduced will be set forth herein only as necessary to decide the issue before us. Ernest E. Zimmer testified on behalf of appellee that he used the replacement cost approach to valuation rather than the market comparison approach in determining the fair market value of appellee’s property. He used this approach because grain facilities are not standard and it is difficult to compare the sale price of one to the sale price of another. The Board of Review’s appraiser, Martin D. Miller, also used the replacement cost approach in determining the fair market value. The results of the two appraisers differed because Zimmer used the replacement cost value provided by the Department of Revenue in his calculations while Miller used the replacement cost value provided by a private service known as Marshall & Swift. According to Zimmer, the Marshall & Swift values are usually higher than actual cost. The two appraisers also used different methods to calculate depreciation.

Although Zimmer used the replacement cost method to determine fair market value, he also testified to comparable sales within the previous three years in the same area as appellee’s grain facility. He testified that the rated capacity of appellee’s grain elevator is 2,200,000 bushels. The Gibson County Farm Bureau in Princeton, Indiana, purchased two somewhat smaller facilities for $.65 per bushel capacity, including the land and rolling stock. Although the two facilities were smaller than appellee’s, they were excellent facilities. Zimmer did not know the value of the rolling stock that was included in the sale. He testified that the larger the facility, the lower the price per bushel capacity.

Jerry Kennedy testified that he is the president of Kennedy Grain Elevator, Inc., in Newton, Jasper County. He testified that Ernest Zimmer had provided three separate appraisals for Kennedy Grain Elevator, Inc., over a period of eight years. On January 1, 1985, Kennedy Grain Elevator, Inc., owned three grain elevators in Jasper county and one grain elevator just two miles across the Jasper County line. Zimmer appraised these properties for insurance purposes and to support financial statements provided to banks and lending institutions. Zimmer’s appraisals were also used in negotiating the sales of the grain elevators. The elevators were sold February 8, 1985, for less than the value Zimmer had appraised them at. The Kennedy grain elevators were very similar to appellee’s grain elevator. Appellee’s facility is larger than Kennedy’s, which had a capacity of 960,000 bushels.

Paul Johnson testified that he has been the manager of appellee’s grain facility since 1961. In 1985, the Mont Eagle Mill at St. Marie, which is only five miles from appellee’s facility, was sold for $450,000. Only a portion of the sales price was for the grain elevator facility; rolling stock and rolling fertilizer equipment were also included in the sales price. Johnson calculated that only $200,000 to $215,000 of the selling price was for the grain facility. The St. Marie facility had a capacity of 600,000 bushels. Based upon a selling price of $210,000, the St. Marie facility sold for $.35 per bushel capacity. The sale occurred on April 2, 1986. The St. Marie facility is smaller than appellee’s and is not on a railroad.

Appellant’s appraiser, Martin D. Miller, testified that, in valuing appellee’s property, he used the replacement cost approach and checked it against the market comparison approach. His total valuation of appellee’s grain facility, including non-appealed parcels, was $1,919,435. At a rated capacity of 2,200,000, this converts to a price of $.87 per bushel capacity.

To determine a value using the market comparison approach, Miller used six sales of grain facilities. The two facilities closest to appellee’s are in Harvard and Paxton, Illinois. These facilities are also the closest in size to appellee’s. The Harvard facility sold for $1,200,000, but was mortgaged at $1,390,000. The Paxton facility sold for $2,460,000, but was mortgaged for $8,250,000. The local assessor told Miller that based upon the mortgage value, the Paxton facility had a fair market value of $.99 per bushel capacity and the Harvard facility had a fair market value of $.93 per bushel capacity. Based upon the “green sheet,” which purports to set forth the purchase price of the real estate only, the Paxton facility had a fair market value of $.60 per bushel capacity and the Harvard facility had a fair market value of $.80 per bushel capacity. Miller testified that Harvard is at least 250 miles from Jasper County, while Paxton is approximately 100 miles from Jasper County. Miller did not inspect these facilities to determine if they were comparable to appellee’s; he did drive by them. The sales of the Harvard and Paxton facilities occurred in 1984 and 1986. Miller admitted that the actual sale price of the real estate was what was listed on the green sheet, not the amount of the mortgage.

The other facilities used by Miller in the market comparison approach had sales prices ranging from $.53 per bushel capacity to $1.19 per bushel capacity. They are as follows:

Location Rated Capacity Declared Sales Price
Total Per Bushel Capacity
$.95 $400,000 Rollo, IL 420,000 bu.
$1.17 $1,050,000 Waterloo, IA 900,000 bu.
$.53 (foreclosure) $530,000 Waterman, IL 1,000,000 bu.
$1.19 $1,580,000 Florence, IL 1,327,000 bu.

The Appeal Board issued its decision on June 19, 1987. It found that appellee had failed to demonstrate that the Board of Review’s assessment reflects a value in excess of fair market value. After comparing the different manners in which the two appraisers applied the replacement cost method and reported on their calculations, the Appeal Board found appraiser Miller’s testimony to be more credible and due more weight. The Appeal Board further stated:

“The board of review’s appraiser, in his appraisal report, endeavored to check his cost figures with that of actual sales transacted in the marketplace of properties of like use. The [appellee’s] appraiser, on the other hand, commented that he did not attempt to utilize the market data approach in his appraisal report, relying solely on the cost approach to value.”

The Appeal Board found Paul Johnson’s testimony as to the sale of a local grain elevator to be irrelevant because the value he attributed to the real property was speculative and not documented by a sales agreement. The Appeal Board also found Zimmer’s testimony as to the sale of a grain elevator in Indiana to be irrelevant because not documented by a sales agreement. Finally, the Appeal Board stated:

“The Courts of this State discourage reliance on the cost approach when evidence of market data is submitted in the record. The Courts require significant weight to be given to such market data. In this appeal, the board of review’s appraiser checked his cost calculations against the market and found them to be supported.”

The Appeal Board found the fair market value of appellee’s property as of January 1,1985, to be $1,903,335.

Upon review, the circuit court reversed the Appeal Board, finding that it had erroneously based its decision as to fair market value on the replacement cost method of valuation as opposed to the market approach. Based upon Chrysler Corp. v. Illinois Property Tax Appeal Board (1979), 69 Ill. App. 3d 207, 387 N.E.2d 351, the court found the Appeal Board’s valuation to be incorrect as a matter of law and against the manifest weight of the evidence. The court further found that the sales testified to by appraiser Miller were too distant and unsupported to form a basis for a market comparison approach to valuation. However, the court found sufficient other evidence in the record of comparable sales to establish a fair market value of appellee’s property at $1,320,000 or $.60 per bushel capacity. The court remanded this cause to the Appeal Board with directions that it find the fair market value of appellee’s property to be $1,320,000.

The Board of Review appeals. We affirm.

While the Appeal Board should not be reversed where it has simply made an error in judgment in valuing the property, it is properly reversed where it has used an improper method of valuation. (Chrysler Corp. v. Illinois Property Tax Appeal Board (1979), 69 Ill. App. 3d 207, 210-11, 387 N.E.2d 351, 354.) The trial court found that the Appeal Board had used an improper method of valuation in accepting its appraiser’s value based on the replacement cost approach rather than the market approach to valuation. We agree.

There are three methods used to evaluate property: (1) the comparison or market approach, which focuses on sales of comparable property; (2) the income approach, which is used when the property is most valuable as rental property; and (3) the reproduction or replacement cost method, which focuses on what it would cost to recreate real property with the same value. (Chrysler Corp., 69 Ill. App. 3d at 211, 387 N.E.2d at 355.) The market or comparison approach to valuing property is preferred, and heavy reliance upon the replacement cost method of valuation has been frowned upon. (Chrysler Corp., 69 Ill. App. 3d at 211, 387 N.E.2d at 355.) The replacement cost method should be used only when there is no actual or potential market for the property in question, and even then it should be only one factor in the valuation process and not the sole, conclusive method of valuation. (Chrysler Corp., 69 Ill. App. 3d at 212, 387 N.E.2d at 355.) Where there is evidence of comparable sales, the market approach should be used. Chrysler Corp., 69 Ill. App. 3d at 212, 387 N.E.2d at 355.

In the instant case, the Appeal Board accepted the valuation of appraiser Miller. Miller admitted, as did appraiser Zimmer, that his valuation of the property was based on the replacement cost method of valuation. We agree with the trial court that reliance on the replacement cost method of valuation in the instant case was error where the record is replete with evidence of sales of other facilities similar in various respects to appellee’s. The record clearly shows that there was an actual or potential market for facilities such as appellee’s. Although both appraisers utilized the replacement cost method of valuing appellee’s property, both appraisers also testified to what they considered to be comparable sales. The Appeal Board erred as a matter of law in accepting a value which was based on the replacement cost method of valuation.

Appellant argues, however, that appraiser Miller did not rely exclusively on the replacement cost method of valuation, but verified his result by cross-checking it against the market comparison approach. Miller did testify to sales of other grain facilities. This does not, however, change the fact that his valuation of appellee’s property was based on the replacement cost approach. Furthermore, the trial court found that the value placed upon appellee’s property by appraiser Miller and the Appeal Board was against the manifest weight of the evidence. Again, we agree.

Both appraisers testified to sales of other grain facilities. Miller presented evidence of sales of six grain facilities which ranged in price form $.53 to $1.19 per bushel capacity. The two facilities most comparable to appellee’s sold for $.60 and $.80 per bushel capacity. They were 100 and 250 miles away from appellee’s facility, respectively. These values are less than the value of $.87 per bushel capacity placed upon appellee’s facility by appraiser Miller. The other grain facilities which were included in Miller’s written appraisal were substantial distances from appellee’s facility and Miller presented no evidence as to how they compared with appellee’s facility, the circumstances surrounding their sales or the economic conditions of the communities in which they were located. Appellant presented no evidence of comparable sales at a price near $.87 per bushel capacity to support his valuation of appellee’s facility.

On the other hand, appraiser Zimmer testified to sales of other grain facilities in close proximity to appellee’s. Two grain facilities in Princeton, Indiana, approximately 50 miles from appellee’s facility, each sold for $.65 per bushel capacity. Jerry Kennedy testified that his grain facility, also located in Jasper County, sold in 1985 for $.47 per bushel capacity. Paul Johnson testified to the sale of a grain facility in Jasper County for between $.35 and $.58 per bushel capacity. The Appeal Board found that the absence of a written sales agreement rendered the testimony of Zimmer and Johnson as to comparable sales irrelevant. We disagree. While this might affect the weight to be given their testimony, it does not render it irrelevant.

We agree with the trial court that a value of $.87 per bushel capacity is against the manifest weight of the evidence. From the evidence before it, the trial court found the fair market value of appellee’s property based upon the market comparison approach to be $.60 per bushel capacity, or $1,320,000. We think this valuation is supported by the evidence. We therefore affirm the judgment of the circuit court of Jasper County reversing the decision of the Appeal Board and remanding this cause with directions to find the value of appellee’s property to be $1,320,000.

For the foregoing reasons, the judgment of the circuit court of Jasper County is affirmed.

Affirmed.

LEWIS and CHAPMAN, JJ., concur.

SUPPLEMENTAL OPINION ON REHEARING

JUSTICE WELCH

delivered the opinion of the court:

This cause comes on for rehearing from our opinion filed in this cause on August 9, 1989, and reported at 187 Ill. App. 3d 9, 542 N.E.2d 1287. In that opinion, we held that the Property Tax Appeal Board of the State of Illinois had no standing to prosecute an appeal from the judgment of the circuit court of Jasper County reversing its decision as to the fair market value of the property of Willow Hill Grain, Inc.

The Property Tax Appeal Board (hereinafter PTAB) filed in the supreme court a motion for supervisory order directing us to grant the PTAB leave to seek rehearing. That motion was granted by the supreme court by order dated November 6, 1989, directing us to recall our mandate in this cause and permit the PTAB to file a petition for rehearing. The PTAB filed its petition for rehearing on November 30, 1989, asking us to reconsider our opinion to the extent that it addressed the PTAB’s standing to appeal from the judgment of the circuit court.

A brief review of the prior proceedings herein is necessary. On May 19, 1988, the State’s Attorney of Jasper County filed a notice of appeal from the judgment of the circuit court of Jasper County reversing the PTAB’s valuation of property of Willow Hill Grain, Inc. The notice of appeal listed both the Jasper County Board of Review and the PTAB as party appellants. On review, we found that both the Board of Review and the PTAB had appealed from the judgment of the circuit court, but, relying on Wallman v. Zoning Board of Appeals (1989), 181 Ill. App. 3d 680, 537 N.E.2d 422, held that the PTAB had no standing to appeal and dismissed it as a party appellant. However, because we found that the Board of Review did have standing to appeal, we proceeded to consider the merits of the appeal, ultimately affirming the judgment of the circuit court of Jasper County.

On rehearing, the PTAB argues that it never intended nor desired to appeal from the judgment of the circuit court of Jasper County, that in fact, the State’s Attorney of Jasper County had no authority to file a notice of appeal on its behalf, and that it did not discover that the State’s Attorney had done so until our opinion herein was filed and a copy received. The PTAB now argues that our decision that PTAB had no standing to prosecute the appeal was incorrect and unnecessary because the PTAB was not properly a party to the appeal. We agree that the PTAB was not properly a party to the appeal and that our finding that it had no standing to appeal was unnecessary.

The PTAB is an agency of the State of Illinois. (Ill. Rev. Stat. 1987, ch. 120, par. 592.1.) As such, its sole legal representative in the courts is the Attorney General of the State of Illinois. (Environmental Protection Agency v. Pollution Control Board (1977), 69 Ill. 2d 394, 398, 372 N.E.2d 50, 51.) Furthermore, the PTAB at no time authorized the State’s Attorney of Jasper County to file an appeal on its behalf. The PTAB had, in fact, made a decision not to seek appellate review in the instant case. The State’s Attorney of Jasper County was, therefore, without authority to file an appeal on behalf of the PTAB, or to represent the PTAB before the appellate court.

Because the PTAB had no opportunity to be heard in the instant case on the question of its standing to appeal from a judgment of a circuit court reversing its decision, and because our finding that the PTAB had no standing to so appeal was unnecessary to our holding in this case, we vacate that portion of our opinion holding that the PTAB had no standing to appeal from the judgment of the circuit court of Jasper County.

For the foregoing reason our opinion filed on August 9, 1989, in case No. 5 — 88—0275, is vacated in part.

No. 5 — 88—0275, Vacated in part.

LEWIS, P.J., and CHAPMAN, J., concur.