author: PRESIDING JUSTICE UNVERZAGT JUSTICE REINHARD,

text:
    MARY THOMPSON, Plaintiff-Appellant, v. ABBOTT LABORATORIES, Defendant-Appellee.
    Second District
    No. 2—89—0108
    Opinion filed January 16,1990.

      REINHARD, J., specially concurring.

      Harold A. Katz and Irving M. Friedman, both of Katz, Friedman, Schur & Eagle, of Chicago (David E. Rapoport, of counsel), for appellant.
    Michael J. Cummins, of Waukegan, and Jeri A. Lindahl, of Pope, Ballard, Shepard & Fowle, Ltd., of Chicago (James A. Burstein, of counsel), for appellee.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, Mary Thompson, brought a complaint against defendant, Abbott Laboratories, in the circuit court of Lake County, claiming that she had been discharged for filing and pursuing a claim for worker’s compensation benefits. Defendant maintained that plaintiff’s discharge was due to excessive absenteeism. The jury returned a verdict in defendant’s favor. The trial court entered judgment on the verdict and, subsequently, denied plaintiff’s post-trial motion.

On appeal, plaintiff raises six issues: (1) that the trial court erred in refusing to tender plaintiff’s “mixed motives” instructions to the jury; (2) that the trial court erred in refusing plaintiff’s instruction on the failure of a party to call a witness; (3) that the trial court erred in allowing the jury to hear evidence of the charges filed by plaintiff with the Equal Employment Opportunity Commission; (4) that the trial court erred in refusing to allow the jury to see the attendance records of two of plaintiff’s co-workers for the years following plaintiff’s termination; (5) that the allowable compensatory damages in the instant case should have included pain and suffering, emotional distress, and loss of reputation; and (6) that the trial court erred in denying plaintiff a new trial.

The testimony at trial revealed that plaintiff, Mary Thompson, was hired by defendant, Abbott Laboratories, on March 25, 1969. She was continuously employed by defendant from that date until her termination on December 3, 1984. In December 1979, plaintiff was injured at work lifting I-V solution containers, hurting her right arm and shoulder. In September 1981, plaintiff filed a claim for worker’s compensation benefits with the Illinois Industrial Commission after defendant denied plaintiff payment of certain medical bills and lost time. Plaintiff’s claim was submitted to an arbitrator of the Industrial Commission in October 1982, resulting in an award of $9,100.

Chuck Santora, senior claims analyst in defendant’s risk management department, supervised worker’s compensation claims. In the fall of 1981, Santora was assigned plaintiff’s worker’s compensation case. According to Santora, defendant felt the arbitrator’s decision was fair but that more of an offset should have been awarded to defendant because of compensation already paid by defendant to plaintiff. Therefore, defendant appealed the arbitrator’s decision. In June 1983, a decision was made to offer plaintiff a settlement for $8,500, or $600 less than the arbitrator’s award. Santora did not know whether the offer was ever conveyed to plaintiff.

On the date of plaintiff’s discharge, December 3, 1984, defendant’s appeal of the arbitrator’s award was still pending. Santora stated that on January 25, 1985, he dismissed the appeal in an attempt to minimize defendant’s costs. Although Santora learned after plaintiff’s discharge that she had been fired, he was uncertain whether he knew this fact at the time of the dismissal of defendant’s appeal. Santora denied any relationship between plaintiff’s termination and the subsequent dismissal of defendant’s appeal.

In July 1983, plaintiff was working in defendant’s quality assurance department, department 817, as a quality control technician, having originally been assigned to quality assurance in 1973. Tim Tomkovich became the supervisor of department 817 in July 1983. In adhering to the attendance policy of the department, Tomkovich reviewed the attendance records of all employees under his supervision. Tomkovich testified that if an employee had a past record of continued absenteeism and this absenteeism continued after he became supervisor, he decided to talk with that employee.

In 1982, plaintiff had had 15 absences, constituting 11 incidences. In 1983, she had been absent 23 days from five incidences. From December 12, 1983, through January 20, 1984, plaintiff had had eight absences resulting from four incidences. On February 6, 1984, Tomkovich counselled plaintiff regarding her excessive absenteeism and placed her on a four-month review period, or probation. Tomkovich testified that he did not know of plaintiff’s worker’s compensation claim at the time she was placed on probation and that he did not learn of the claim until after plaintiff was terminated.

On April 6, 1984, during her review period, plaintiff was absent again. Tomkovich stated that he discussed this absence with plaintiff and gave her a final warning that any further absence would result in termination. Tomkovich also informed plaintiff that her review period might be extended. During this discussion with plaintiff, plaintiff advised Tomkovich that her arm hurt from working on the “SGL packing line,” a glass bottle line, and that she was unable to perform the requirements of the job. Later, Tomkovich informed plaintiff that she would be taken off the SGL packing line and placed at the stopper inspection station so she would not have to handle the weight of the bottles on the line, thereby relieving some of the strain on her arm.

From June 8 through July 13, 1984, plaintiff was absent. As of July 19, 1984, when Tomkovich again met with plaintiff, plaintiff had accumulated 29 absences for the year. Tomkovich informed plaintiff that her probation was being extended through November 16, 1984, and that any further absences could result in termination.

During this probation period plaintiff was absent from November 8 through November 16, 1984. Tomkovich met with his manager, Dave Chapman, informing Chapman that Tomkovich’s counselling sessions with plaintiff had not resulted in any improvement in her attendance. Tomkovich testified that based upon the lack of improvement in plaintiff’s attendance record, he and Chapman decided to recommend plaintiff’s termination. Tomkovich and Chapman then met with Arnold Radtke, an employee relations representative, to recommend plaintiff’s termination.

Arnold Radtke related that on November 20, 1984, Tomkovich and Chapman came to see him. Tomkovich and Chapman wanted to discharge plaintiff, and their documentation in support of the discharge included plaintiff’s attendance records for 1983 and 1984. Prior to this meeting, plaintiff had met with Radtke on September 7, 1984, requesting copies of her attendance records. Plaintiff told Radtke that she was being treated unfairly, that she was currently on probation, and that her August pay adjustment had been withheld. Plaintiff maintained that her absences were due to a 1979 work-related injury. In this meeting, plaintiff did not relate to Radtke, either verbally or in writing, that Tomkovich had threatened to fire her because she had filed a worker’s compensation claim. Plaintiff told Radtke that her mistreatment by management began when she exercised her policy 222 rights in 1976. Policy 222 was an open-door policy whereby an employee could go to anyone in management to resolve a problem regardless of the type of problem. In 1976, plaintiff had contacted the defendant’s chairman of the board regarding a dispute she had with management over a pay increase. As a result, plaintiff obtained the increase.

On October 23, 1984, plaintiff contacted Radtke again, requesting more attendance records.

Radtke described the procedure for firing an employee, explaining that documentation to support an employee’s termination would be brought to an employee relations representative who would review it and prepare a work sheet. The documentation and the requests for termination would then be reviewed by higher level managers. Radtke stated that an employee relations representative’s role in a discharge was to check the technical aspects of the discharge and to ensure fairness. In plaintiff’s situation, Radtke reviewed records of absenteeism by others in plaintiff’s department before reaching any decision regarding plaintiff’s termination. Radtke wanted to make certain that others with worse attendance records than plaintiff had also received warnings or had action taken against them and that there was no disparate treatment based on age, sex, or racial factors.

During trial it was brought up that two of plaintiff’s co-workers also had had excessive absences during 1983. Cremolia Diggs was absent 53 days in 1983. Betty Burns missed a total of 73 days in 1983 and 1984, although 38 days in 1983 and 19 days in 1984 were due to a broken leg. Both women were placed on probation by Tomkovich in 1984. For the remainder of 1984, Burns missed six days of work. Diggs missed four days in 1984 following her probation period. Neither woman was absent during her review period.

Radtke also testified that he reviewed plaintiff’s case with Pete Kinyon, manager of employee relations, Bill Kruger, director of defendant’s Lake County personnel, Marv Johnson, manager of corporate employee relations, and Tom Trimble, one of defendant’s corporate attorneys. All agreed that plaintiff should be terminated. Plaintiff’s termination was effective on December 3, 1984. On that date, plaintiff asked to see those individuals in upper management who were involved in the decision to terminate her. As some were not present at that time, an appointment was set up for plaintiff. Radtke stated that plaintiff never returned for that appointment.

Plaintiff, Mary Thompson, testified that the attendance records kept by defendant were accurate. Plaintiff stated that she was under medical care for two years following her 1979 work-related injury to her right arm and shoulder. It was plaintiff’s testimony that she was still under medical treatment for her right shoulder in 1983. Plaintiff related that she was not supposed to work in extremely cold areas because it aggravated her medical problems. According to plaintiff, shortly after Tomkovich’s assignment to her department in July 1983, Tomkovich had placed her in charge of the stopper inspection machine, which was in a very cold room. Plaintiff recounted that she had made efforts to get transferred out of this job by talking to Tomkovich, Eugene Patterson, plaintiff’s group leader in her department, Marv Johnson, and Irena Patrick Kavaliunas in employee relations. Kavaliunas, senior employee relations representative, told plaintiff that she was not authorized to transfer plaintiff and that plaintiff would need the permission of her department manager (Tomkovich).

Plaintiff stated that in February 1984 she went to see Kavaliunas regarding a pay raise and a security job offer that had been placed “on the board.” According to plaintiff, Kavaliunas told plaintiff that, due to plaintiff’s absenteeism, no other department would accept plaintiff. Plaintiff testified that during her conversation with Kavaliunas, Kavaliunas asked plaintiff if she had accepted the defendant’s settlement offer on her worker’s compensation claim. It was plaintiff’s testimony that when plaintiff responded that she had not, Kavaliunas advised plaintiff to accept the offer because “no one refuses the company” when it offers a settlement. Otherwise, plaintiff was going to find herself “out on 14th Street.” Fourteenth Street runs outside the gate of defendant’s plant.

Later, during her testimony, Kavaliunas positively denied ever making such a threat to plaintiff. Also, Kavaliunas did not recall plaintiff ever complaining about anyone else threatening her. Further, in plaintiff’s discovery responses, plaintiff never mentioned that Kavaliunas threatened her, although she did mention the alleged threats of Tomkovich in February and July 1984.

Plaintiff testified that she was first placed on probation in February 1984. Tomkovich called her into the quality assurance department’s office and started talking about plaintiff’s absences. According to plaintiff, Tomkovich then inquired about whether plaintiff had been to the Industrial Commission, stating that no one files a claim against defendant and that if plaintiff had, she would be “out on 14th Street.” During cross-examination, plaintiff stated that she did not remember Tomkovich threatening her regarding defendant’s settlement offer at their February 1984 meeting. Rather, she recalled that he talked about “more absentees and things.” Tomkovich placed plaintiff on probation at that February meeting.

There were no witnesses to plaintiff’s conversations with Tomkovich or with Kavaliunas.

Plaintiff testified that she filed a complaint on October 27, 1984, with the Equal Employment Opportunity Commission (EEOC) after she failed to receive a pay raise in August 1984. Tomkovich had told plaintiff she had not received a raise because of her absenteeism. In her complaint with the EEOC, plaintiff alleged that she was discriminated against because of her race. No mention was made in that charge of threats by Kavaliunas or Tomkovich. The EEOC found no racial discrimination.

After plaintiff’s termination, she filed another charge with the EEOC on December 27, 1984, alleging that although poor attendance had been given by defendant as the reason for her discharge, she believed she had been discharged in retaliation for having filed her previous EEOC charge. In her second charge, plaintiff admitted that her attendance had been poor but stated that all her absences were documented by medical excuses. This charge and the former charge were dismissed by the EEOC.

During defendant’s case, Eugene Patterson, group leader for plaintiff in the quality assurance department, was asked if plaintiff had ever told him, after February 1984, that Kavaliunas or Tomkovich had threatened her job because she was pursuing a worker’s compensation claim. Patterson answered in the negative.

Bill Kruger, director of defendant’s Lake County personnel, was asked about defendant’s policy towards employees who file worker’s compensation claims. Kruger replied that the defendant’s policy was to assist employees in filing their claims and to accept this duty as defendant’s obligation and an employee’s right.

Chuck Santora, senior claims analyst in defendant’s risk management department, testified that he handled anywhere from 65 to 80 worker’s compensation claims per year. Santora stated that he had been handling plaintiff's case since September 1981 and that plaintiff had been represented by an attorney in her claim. According to Santora, no one had ever told him that plaintiff had been threatened for filing or pursuing her worker’s compensation claim.

At the conclusion of all the evidence, the court held the jury instruction conference. During the conference, the court refused plaintiff’s instructions on “mixed motives” and plaintiff’s instruction on the inferences that can be drawn from the failure of a party to call a witness under its control. The court also refused to admit the attendance records of plaintiff’s co-workers, Cremolia Diggs and Betty Burns, for the years following plaintiff’s discharge. Additionally, the court refused to include emotional distress, pain and suffering, and loss of reputation as elements of plaintiff’s possible compensatory damages. Over plaintiff’s objection, plaintiff’s prior EEOC charges were admitted for impeachment purposes.

Plaintiff’s case was submitted to the jury, which returned a verdict in defendant’s favor. Plaintiff filed a post-trial motion, requesting a new trial or judgment notwithstanding the verdict. The motion was denied, and plaintiff appeals.

Plaintiff first contends that the trial court committed reversible error in refusing to tender plaintiff’s “mixed motives” instructions to the jury. Plaintiff’s mixed-motives instructions instructed the jury that there could be more than one factor or cause for plaintiff’s discharge and that, if one of the factors was pursuit of her worker’s compensation claim, plaintiff was entitled to recover.

Although a few jurisdictions have adopted the mixed-motive theory in determining the outcome of worker’s compensation cases, Illinois has thus far not addressed the issue. Moreover, we need not address it here, as the evidence clearly showed that plaintiff’s filing of her worker’s compensation claim was not a factor or motive in her termination.

Plaintiff filed her worker’s compensation claim in September 1981. Plaintiff was fired by defendant in December 1984; the reason given was excessive absenteeism. The evidence showed that when plaintiff’s supervisor, Tim Tomkovich, took over plaintiff’s department in July 1983, he reviewed the attendance records of the employees in his department, determining that he would counsel those who had excessive absenteeism. In 1982 plaintiff had had 15 absences, and in 1983 she had had 23 absences. Prior to Tomkovich’s meeting with plaintiff in February 1984, plaintiff was absent eight times between December 12, 1983, and January 20, 1984.

In a written report of his February 4, 1984, meeting with plaintiff, Tomkovich stated that he discussed plaintiff’s attendance problems with her, telling her that he was placing her on a four-month probation and that more attendance problems would warrant further disciplinary action. During this probationary period, plaintiff was absent again on April 6, 1984. Tomkovich met with plaintiff and discussed her absence, informing plaintiff that if she was absent during the remainder of her review period, she would be terminated. Tomkovich also informed her that her review period might be extended.

From June 8 through July 13, 1984, plaintiff was absent. Tomkovich met again with plaintiff on July 19, 1984. As of that date, plaintiff had accumulated 29 absences for the year. Tomkovich informed plaintiff that her probation was being extended through November 16, 1984, and that any further absences could result in termination. During this probationary period, plaintiff was again absent from November 8 through November 16. Tomkovich then began taking steps to arrange for plaintiff’s termination.

During trial plaintiff attempted to show that two other employees, Cremolia Diggs and Betty Burns, also under Tomkovich’s supervision, had had worse attendance records than plaintiff, yet were not fired. The testimony showed that Diggs was absent 53 days in 1983 and that Burns was absent a total of 73 days in 1983 and 1984. Thirty-eight days of Burns’ absence in 1983 and 19 days in 1984 were due to her having broken a leg. Both Diggs and Burns were placed on probation by Tomkovich in 1984. Following her period of probation, Diggs was absent only four days for the remainder of 1984. Burns missed only six days. Thus, the attendance records of both Diggs and Burns improved substantially as a result of being placed on probation.

Despite Tomkovich’s warnings to plaintiff and the extension of her probationary period, it was unlikely that her absenteeism would substantially improve. The major portion of Burns’ absences in 1983 and 1984 resulted from a broken leg, a mishap that was unlikely to happen frequently. Conversely, plaintiff’s absences had been due to unremitting problems with her right arm and shoulder, which had been injured in her 1979 work-related accident. These problems had made it difficult for plaintiff to work on the “SGL packing line” because lifting of I-V bottles was involved. In an attempt to solve this problem, Tomkovich placed plaintiff at the stopper inspection station. However, this station was in a room which plaintiff complained was cold, and cold temperatures also adversely affected her shoulder and arm.

Plaintiff’s condition was chronic and not likely to improve. Several of her absences involved hospitalizations for tingling and numbness to her right arm and shoulder and for pain radiating down her right side and to her right leg. Plaintiff’s testimony showed that even a year after leaving defendant, she still suffered from these same maladies, finding it difficult to even screw off the top of a catsup bottle with her right hand. In 1987, plaintiff continued to suffer from pain to the right shoulder and arm, finding it painful to write.

Although plaintiff maintained at trial that her termination was due to her filing of her 1981 worker’s compensation claim rather than to her excessive absences, Tomkovich testified that he had no knowledge of plaintiff’s claim until after her termination. It was plaintiff’s testimony that both Tomkovich and Irena Patrick Kavaliunas, an employee relations representative whom plaintiff had contacted regarding pay raises and another position within defendant’s company, had told her that if she did not accept defendant’s settlement offer of her worker’s compensation claim, she would be “out on 14th Street,” i.e., out of a job. However, in plaintiff’s discovery responses she made no mention of Kavaliunas’ alleged threat, although plaintiff did state that Tomkovich had threatened her in February and July 1984. Plaintiff admitted that no witnesses were present at the times the alleged threats were made by Tomkovich and Kavaliunas.

Further, testimony by other individuals within the defendant company made it doubtful that any such threats occurred. Arnold Radtke, an employee relations representative, related that on September 7, 1984, plaintiff had requested copies of her attendance records from him, telling him that she was being treated unfairly because of her absenteeism. Plaintiff never mentioned to Radtke any threats by Tomkovich or Kavaliunas or that she was being treated unfairly because of her worker’s compensation claim. According to Chuck Santera, senior claims analyst in defendant’s risk management department and the individual who had been handling plaintiff’s worker’s compensation claim since 1981, plaintiff had been represented by an attorney in her claim and, yet, no one had ever told him that plaintiff had been threatened for filing or pursuing her worker’s compensation claim.

Also, defendant had a policy, “Policy 222,” wherein an employee could approach any individual in management, even the chairman of the board, to resolve a problem that the employee had with defendant. Plaintiff was cognizant of this policy, having exercised her policy 222 rights in 1976 by seeking out the chairman of the board when she failed to receive a pay increase. As a result of exercising her policy 222 rights, plaintiff had received the increase. Thus, if plaintiff felt she was being mistreated by individuals in defendant’s company because of her refusal to accept the defendant’s settlement offer, she could have utilized her policy 222 rights to complain to someone in upper management. However, plaintiff never took this action even though she was aware that it was available to her.

The credibility of the witnesses and the weight to be given their testimony are matters for the jury’s consideration. (Pagel v. Yates (1984), 128 Ill. App. 3d 897, 901.) Here, the evidence supported the jury’s apparent determination that plaintiff’s testimony was less credible than the other witnesses who testified.

Plaintiff’s testimony that defendant discharged her for failing to settle her worker’s compensation claim was also controverted by the charge plaintiff filed with the EEOC on October 27, 1984, prior to her discharge, and the charge she filed on December 27, 1984, subsequent to her discharge. Copies of these charges were admitted into evidence. In her October 27 charge, plaintiff maintained that she had failed to receive a pay raise in August 1984 because of her race. Tomkovich had explained to plaintiff that her failure to receive a raise was due to her absenteeism. In her December 27 charge, plaintiff admitted that her poor attendance had been given as a reason for her discharge but alleged that she believed her termination was in retaliation for having filed the former EEOC charge. Neither charge contained any allegation related to the filing of her worker’s compensation claim and her failure to accept defendant’s settlement offer. Thus, plaintiff’s testimony at trial was materially inconsistent with the allegations in her EEOC complaints and was substantially discredited or impeached by the introduction of these charges. See Keller v. State Farm Insurance Co. (1989), 180 Ill. App. 3d 539, 551.

Further, we find it incredulous that a company would fire an employee for failing to accept a settlement offer that was only $600 less than the arbitrator’s award, i.e., $8,500 as opposed to $9,100. If the award had been for a much larger amount, i.e., $500,000, and if defendant was trying to get plaintiff to accept a substantially smaller sum as a settlement, i.e., $100,000, then perhaps an argument could be made that defendant had fired plaintiff in retaliation for her failure to accept defendant’s settlement. However, to even hint at such a possibility here where defendant offered a mere reduction of $600 in plaintiff’s compensation award is unreasonable. Additionally, the evidence showed that defendant dealt with many compensation cases, 65 to 80 claims per year. Yet, no evidence was presented to show that defendant reacted negatively towards the filing of these claims.

Plaintiff attempts to make much of exhibit 18 which she introduced into evidence. Exhibit 18 consisted of two sheets of handwritten notes. The identity of the author was never shown by plaintiff although plaintiff maintained a member of management wrote it. Nevertheless, the notes pertained mainly to plaintiff’s inability to pass her “certification test” and management’s speculation as to why. Although the document referred to plaintiff’s worker’s compensation case, the references pertained only to the facts that an award was made, that defendant “countered,” that plaintiff refused, and that the case was to be settled. As defendant points out, this document did not support plaintiff’s position that plaintiff’s worker’s compensation claim was one of the motives for her termination.

Giving or denying a jury instruction is discretionary with the trial court, and a new trial will be granted for refusal to give a tendered instruction only where serious prejudice to a party’s right to a fair trial has been shown. (Yedor v. Centre Properties, Inc. (1988), 173 Ill. App. 3d 132, 146.) The standard for determining the adequacy for jury instructions is whether, taken as a whole and in series, the instructions fairly, fully, and comprehensively apprised the jury of the applicable legal principles. (Lurz v. Panek (1988), 172 Ill. App. 3d 915, 925.) Jury instructions should not overemphasize any particular matter and should be sufficiently clear so as not to confuse or mislead the jury. Malek v. Lederle Laboratories (1984), 125 Ill. App. 3d 870, 872.

Plaintiff’s complaint against defendant was for retaliatory discharge, alleging that she had been discharged for pursuing her rights under the terms of the Workers’ Compensation Act. (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.) Here, the jury was properly instructed in the elements plaintiff was required to prove to prevail in her claim of retaliatory discharge. Plaintiff’s “mixed motives” or “mixed factors” instructions were non-IPI instructions, were not impartial, and overemphasized that plaintiff need only show that more than one factor was involved in defendant’s decision to terminate plaintiff. Plaintiff’s mixed-motives instructions attempted to change the appropriate legal standard in Illinois for retaliatory discharge cases. As the evidence clearly showed that plaintiff’s worker’s compensation claim was in no way related to her discharge, it would have been both inappropriate under Illinois law and misleading to give plaintiff’s instructions.

Further, we note that the trial court did tender defendant’s instruction No. 13 to the jury, which also was a non-IPI instruction and which instructed the jury to find that “the true reason and motive” for plaintiff’s discharge was her pursuit of the right to obtain worker’s compensation benefits, thereby implying, as plaintiff desired, that more than one reason could have resulted in plaintiff’s discharge.

We conclude that plaintiff was not denied a fair trial by the trial court’s refusal of her mixed-motives instructions.

In her second contention, plaintiff argues that the trial court erred in refusing to instruct the jury on the inferences the jury could draw from the defendant’s failure to call certain witnesses. Plaintiff maintains that defendant deliberately failed to call anyone to testify regarding upper management’s review, discussions, and authorization of plaintiff’s termination and that because these individuals were under the control of the defendant and not equally available to plaintiff, the jury could have inferred from their failure to testify that their testimony would have been unfavorable to defendant. Thus, plaintiff asserts, the trial court should have tendered to the jury plaintiff’s instruction No. 7, which directly dealt with this failure.

Plaintiff’s instruction No. 7, which is Illinois Pattern Jury Instructions, Civil, No. 5.01 (2d ed. 1971) (IPI Civil 2d No. 5.01), stated:

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

The giving of IPI Civil 2d No. 5.01 is within the sound discretion of the trial court, and a court of review should reverse only when a clear abuse of discretion appears of record. (Hollembaek v. Dominick’s Finer Foods, Inc. (1985), 137 Ill. App. 3d 773, 776.) Before giving the instruction, the trial court must first determine whether, in all likelihood, the party would have produced the witness under the facts and circumstances of the case unless the testimony would be unfavorable. (Tonarelli v. Gibbons (1984), 121 Ill. App. 3d 1042, 1047.) The instruction is not warranted when the testimony of the unproduced witness would be merely cumulative of the facts already estab- I lished. Chuhak v. Chicago Transit Authority (1987), 152 Ill. App. 3d I 480,489. I

'Plaintiff points out that although the initial recommendation to ter- I mínate plaintiff came from Tim Tomkovich and Dave Chapman, others I were involved: Arnold Radtke, employee relations representative; Pete I Kinyon, manager of employee relations; Bill Kruger, director of I defendant’s Lake County personnel; Marv Johnson, manager of corpo- I rate employee relations; and Tom Trimble, one of defendant’s corpo- I rate attorneys. Both Tomkovich and Radtke, as adverse witnesses, tes- I tilled regarding the decision to terminate plaintiff. Tomkovich related I his reasons leading up to his recommendation for plaintiff’s termina- I tion, his discussion of these reasons with his manager, Dave Chapman, I and their mutual decision to meet with Arnold Radtke to recommend I plaintiff’s termination. I

Radtke testified that he met with Tomkovich and Chapman and I that he (Radtke) then reviewed the documentation presented to him in I support of Tomkovich’s and Chapman’s recommendation to fire plain- I tiff. Radtke described the procedure involved in firing an employee I and explained how he reviewed plaintiff’s attendance records as well I as those of others in plaintiff’s department before reaching any deci- I sion regarding plaintiff’s termination. Radtke stated that he then met I with Kinyon, Kruger, Johnson, and Trimble regarding plaintiff’s termi- I nation and that all agreed that plaintiff should be terminated. That he I had these meetings and termination was the outcome reached therein I was noted in a memo Radtke placed in plaintiff’s file. ■

Bill Kruger, director of defendant’s Lake County personnel, testi- I fying on defendant’s behalf, explained defendant’s policy towards em- I ployees who file worker’s compensation claims. Although Kruger was I available for plaintiff to examine, plaintiff elected not to cross-examine I him. I

We agree with defendant that the testimony of Chapman, Kinyon, I Johnson, and Trimble would have been cumulative. We also agree with ■ the trial court’s statement, in refusing plaintiff’s instruction No. 7, I that defendant’s decision not to call these witnesses was a matter of I trial strategy. Despite plaintiff’s claim that these individuals were not available to her because they were defendant’s employees, the names, home addresses and telephones of all these individuals, as well as those of Tomkovich, Radtke and Kruger, were provided to plaintiff by defendant 20 months prior to trial. Since plaintiff called Tomkovich and Radtke as adverse witnesses under Supreme Court Rule 237 (107 Ill. 2d R. 237), she could have called the other employees involved in plaintiff’s termination as well. (See Myre v. Kroger Co. (1988), 176 Ill. App. 3d 160, 167.) They were equally available and accessible to plaintiff.

Plaintiff, however, relies on a recent Illinois Supreme Court case, Schaffner v. Chicago & North Western Transportation Co. (1989), 129 Ill. 2d 1, to argue that an employee of a defendant, whose identity was disclosed to the plaintiff before trial, is not equally available to plaintiff just because he could be compelled to attend trial under Supreme Court Rule 237.

We note first that Schaffner made no determination whether an employee becomes equally available when called under Supreme Court Rule 237. Moreover, Schaffner is distinguishable from the instant case.

Shortly after plaintiff’s accident in Schaffner, North Western sent its employee, McClellan, to inspect the railroad crossing involved in the accident. McClellan was accompanied by a photographer, who took North Western’s photographs of the accident scene. At trial plaintiff presented evidence that the crossing was rough and uneven and that there were substantial deviations between the tops of the rails and the crossing surface where plaintiff’s bicycle wheel had become disengaged. North Western presented evidence that the rails and crossing surface were substantially flush and that the crossing was not rough.

In argument, codefendant, Schwinn Bicycle Company, commented adversely on McClellan’s absence at trial. However, Schwinn did not tender the missing-witness instruction (IPI Civil 2d No. 5.01), nor was an instruction on that subject given. The supreme court concluded that the trial judge did not abuse his discretion in allowing Schwinn to comment adversely on North Western’s failure to call its employee McClellan. The supreme court determined that McClellan, as North Western’s employee, was within the railroad’s control and that it could be assumed that North Western would have presented McClellan if it had believed that his testimony would be favorable. 129 Ill. 2d at 23-24.

Under the circumstances presented in Schaffner, we believe the supreme court was correct in its conclusion. Plaintiff and North Western had presented conflicting evidence regarding the condition of the railroad crossing. McClellan personally observed the crossing shortly after the accident, and the photographer accompanying him had taken photographs of the condition of the crossing. North Western’s photographs were subsequently barred from evidence at trial. After their exclusion, the trial judge stated that he would permit Schwinn’s counsel, in cross-examining McClellan, to refer to the taking of the excluded photographs, which were taken from an east-west perspective, perpendicular to the tracks. The photographs introduced into evidence by the plaintiff and Schwinn were taken in a north-south direction to show the gaps running between the rails and surrounding timbers. Given the conflicting testimony presented by the parties regarding the condition of the railroad crossing and McClellan’s personal inspection of the crossing shortly after the accident, the supreme court was justified in finding that North Western’s failure to call McClellan as a witness was due to its belief that McClellan’s testimony would have been unfavorable.

In the instant case, defendant’s failure to produce all the witnesses involved in plaintiff’s termination could not lead to a similar conclusion. A thorough explanation of the process and individuals involved in plaintiff’s termination was brought out by plaintiff through examination of defendant’s employees, Tomkovich and Radtke, as adverse witnesses. It was likely that the testimony of the other individuals involved in the termination decision would have been merely cumulative of Tomkovich’s and Radtke’s testimony. Moreover, had plaintiff believed these individuals had evidence unfavorable to defendant’s case, plaintiff’s counsel could have deposed them to discover if that belief was justified. The record shows, however, that although plaintiff had notice of all these witnesses, plaintiff deposed only one of them, Arnold Radtke.

We conclude that the giving of IPI Civil 2d No. 5.01 would have had the effect of implying to the jury that the defendant was hiding evidence from the plaintiff and that, therefore, the trial court did I not abuse its discretion in refusing it. Nevertheless, even if IPI Civil 2d No. 5.01 should have been given, the failure to give the instruction would not alone constitute reversible error in this case. See Hicks v. Hendricks (1975), 33 Ill. App. 3d 486, 492-93.

Plaintiff’s third contention is that the trial court erred in allowing I the jury to hear evidence of the charges filed by plaintiff with the! Equal Employment Opportunity Commission (EEOC). Defendant I maintains that the admission of the EEOC complaints was proper for| impeachment purposes.

Plaintiff failed to receive a pay raise in August 1984. Tomkovichl told plaintiff that this was due to her excessive absenteeism. On Octo-| ber 27, 1984, plaintiff filed a complaint with the EEOC stating that it was not defendant’s policy to withhold an employee’s wage increase just because that employee was on probation. Plaintiff claimed that she had been discriminated against because of her race since another employee, a Caucasian, who also had an attendance problem and had been placed on probation for a week in July, had received her wage increase. The EEOC found no racial discrimination.

Following her termination, plaintiff filed another charge with the EEOC on December 27, 1984, alleging that she had been discharged in retaliation for having filed her previous EEOC charge. In her charge of December 27, plaintiff admitted that her attendance had been poor but stated that her absences were documented by medical excuses. Despite these charges with the EEOC, which made no mention of plaintiff’s 1981 worker’s compensation claim, it was plaintiff’s position at trial that her discharge had been in retaliation for her filing of her 1981 worker’s compensation claim against defendant and her refusal to accept defendant’s settlement offer.

To be used for impeachment, a prior statement of a witness must be materially inconsistent with her trial testimony. (Keller v. State Farm Insurance Co. (1989), 180 Ill. App. 3d 539, 551.) The test to be applied is whether the statement has a reasonable tendency to discredit the witness’ direct testimony on a material matter. (180 Ill. App. 3d at 551.) Whether to allow the admission of evidence for impeachment purposes is within the trial court’s discretion, and a court of review will not disturb the decision of the trial court absent an abuse of discretion. 180 Ill. App. 3d at 551.

Here, both of plaintiff’s EEOC complaints, which were materially inconsistent with plaintiff’s trial testimony, were signed by plaintiff, thereby verifying that plaintiff authorized or confirmed the truth of the allegations contained therein. (Cf. Ryan v. Mobile Oil Corp. (1987), 157 Ill. App. 3d 1069, 1080-81.) We, therefore, conclude that the trial court’s admission of these prior inconsistent statements for impeachment purposes was a proper exercise of the court’s discretion.

Next, plaintiff contends that the trial court erred in refusing to allow the jury to see the attendance records of plaintiff’s co-workers, Cremolia Diggs and Betty Burns, for the years following plaintiff’s termination. Plaintiff maintains that although Diggs and Burns continued to have worse attendance records than plaintiff, even in years following the discharge, defendant did not take any action against them and that, therefore, the jury should have been allowed to review or consider Diggs’ and Burns’ records for 1985, 1986,1987 and 1988.

We agree, however, with defendant that the attendance records of Diggs and Burns during the years 1985 through 1988 were irrelevant to the issues in the instant case. At trial, plaintiffs attendance was compared with that of Diggs and Burns for 1983 and 1984, the years directly preceding her termination. All three women had been warned and put on probation by Tomkovich in 1984 for their absenteeism. In 1983, plaintiff was absent 23 days; in 1984 she missed 36 days, 32 of which occurred while plaintiff was on attendance review, or probation. In contrast, although Cremolia Diggs was absent 51 days during 1983, she missed only eight days during 1984. Although Betty Burns was absent 48 days in 1983 and 25 days in 1984, 38 of the 1983 absences and 19 of the 1984 absences occurred after Burns broke her leg. Moreover, the testimony showed that both Diggs’ and Burns’ attendance had substantially improved after having been placed on probation.

Moreover, as defendant points out, although Tomkovich had the discretion to implement his own standards for obtaining good attendance, no evidence was presented that either Diggs or Burns remained under Tomkovich’s supervision after plaintiff’s discharge. Furthermore, no evidence was presented regarding what the attendance policy was towards these employees for the years following plaintiff’s discharge. We conclude that the trial court did not err in keeping Diggs’ and Burns’ attendance records for 1985, 1986, 1987 and 1988 from the jury, as they were irrelevant to the issue of whether plaintiff had suffered disparate treatment.

In her fifth contention, plaintiff argues that the allowable compensatory damages in the instant case should have included pain and suffering, emotional distress, and loss of reputation. However, it is not necessary to review this issue since we have determined that plaintiff did not prove her liability case.

Finally, plaintiff contends that the trial court failed to correct the prejudicial errors which occurred at trial when it denied her motion for a new trial. A motion for a new trial is addressed to the sound discretion of the trial court, and its decision will not be disturbed unless there is a clear abuse of discretion that affirmatively appears on the record. Netzel v. United Parcel Service, Inc. (1989), 181 Ill. App. 3d 808, 812.

Here, there is nothing which affirmatively appears on the record to suggest that the trial court abused its discretion in denying plaintiff’s motion for a new trial. It was plaintiff’s burden to prove that her pursuit of worker’s compensation benefits was the motivating factor or, as she contends, a motivating factor in her discharge. Yet, as we have concluded earlier in this disposition, the giving of any of plaintiff’s mixed-motives instructions would have been inappropriate and misleading. As a result, the trial court did not abuse its discretion in refusing to give plaintiff’s mixed-motives instructions to the jury.

Likewise, as we have also previously discussed in this disposition, the court did not abuse its discretion in refusing to instruct the jury on the failure of a party to call a witness, to admit the EEOC charges into evidence, or to exclude the attendance records of plaintiff’s co-workers for the years following plaintiff’s discharge. None of these decisions by the trial court amounted to error.

In determining the propriety of a new trial, a reviewing court must consider not only the jury’s verdict but also the fact that the trial judge, who saw and heard the witnesses and arguments of counsel, denied the moving party’s post-trial motion. (Cadral Corp. v. Solomon, Cordwell, Buenz & Associates, Inc. (1986), 147 Ill. App. 3d 466, 483.) Based on the testimony of the witnesses and the arguments of counsel which appear in the record before us and on our review of plaintiff’s contentions of error, the trial court’s denial of plaintiff’s post-trial motion was proper.

Based on the reasons set forth, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

INGLIS, J., concurs.

JUSTICE REINHARD,

specially concurring:

While I agree with the result reached in the majority opinion, I specially concur in order to set forth my own views regarding the issue of whether the trial court erred in refusing plaintiff’s tendered “mixed motive” instruction.

Plaintiff contends that the trial court erred in not instructing the jury that if it found that her filing a worker’s compensation claim was a substantial or motivating factor in her discharge, then it should find for plaintiff on her retaliatory discharge claim. Defendant responds, inter alia, that a mixed-motive instruction, as urged by plaintiff, is inappropriate under existing Illinois law.

The parties do not cite, nor does my research indicate, any Illinois case addressing this precise issue. A plaintiff who claims retaliatory discharge based on her exercise of her rights under the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.) must prove that her discharge was causally related to her filing a claim under the Act. (Motsch v. Pine Roofing Co. (1988), 178 Ill. App. 3d 169, 173, 533 N.E.2d 1; Slover v. Brown (1986), 140 Ill. App. 3d 618, 620-21, 488 N.E.2d 1103.) The causality element, however, requires more than a discharge in connection with a filing of a worker’s compensation claim. (Motsch, 178 Ill. App. 3d at 174, 533 N.E.2d at 4-5.) Causality is not established where the basis for the discharge is valid and nonpretextual. Motsch, 178 Ill. App. 3d at 174, 533 N.E.2d at 5; Slover, 140 Ill. App. 3d at 621, 488 N.E.2d at 1105.

The two pertinent instructions given in this case on the plaintiff’s burden of proof are as follows:

“[Defendant’s Instruction No. 10] In order to prevail on a claim for retaliatory discharge, Plaintiff must prove each of the following elements by a preponderance of the evidence:
1. That she was discharged in retaliation for the pursuit of her rights to obtain worker’s compensation benefits; and
2. That she suffered damage as a consequence of the discharge.
If you find that the Plaintiff has proven each of these elements by a preponderance of the evidence, then your verdict should be for the Plaintiff. If, on the other hand, you find that any of the above elements have not been proved by Plaintiff by a preponderance of the evidence, then your verdict should be for the Defendant.
* * *
[Defendant’s Instruction No. 13] When I say that Plaintiff must prove that she was discharged in retaliation for the pursuit of her right to obtain worker’s compensation benefits, I mean that Plaintiff must prove that the motive, or actual reason, for her discharge was her pursuit of her rights to obtain worker’s compensation. Thus, if you find that the true reason or motive for the Plaintiff’s discharge was her pursuit of her right to obtain worker’s compensation benefits, then you must find that this element of the claim has been satisfied. On the other hand, if you find that the discharge was not motivated by the Plaintiff’s pursuit of her right to obtain worker’s compensation benefits, then you must find that this element has not been satisfied, even if the discharge was unfair, unwise, or otherwise improper.
The fact that an at-will employee has filed a claim for worker’s compensation does not mean that she may not thereafter be discharged, only that she may not be discharged for pursuit of her right to obtain worker’s compensation benefits. It is for you to determine from the evidence whether or not the employer’s true reason for discharging the Plaintiff was the pursuit of her right to obtain worker’s compensation benefits.”

These instructions, requiring the jury to determine the true reason for the discharge, either plaintiff’s absenteeism or her filing of a worker’s compensation claim, are consistent with Illinois law requiring her to establish causality. Such an approach allows the jury, as the trier of fact, to decide what the true reason was for plaintiff’s discharge. (See Netzel v. United Parcel Service, Inc. (1989), 181 Ill. App. 3d 808, 812, 537 N.E.2d 1348.) If the jury accepts defendant’s reason as the true reason for the discharge, as it apparently did here, it must necessarily reject plaintiff’s alleged reason. An instruction requiring the jury to choose which reason is the true reason for the discharge, as was given in this case, is consistent with plaintiff’s burden of proving causality.

Giving a mixed-motive instruction, as urged by plaintiff, would effectively expand the tort by allowing a plaintiff to prove retaliatory discharge even though an employer terminated the plaintiff for a legitimate reason. In Illinois, the tort of retaliatory discharge, an exception to the common-law doctrine that an employer may discharge an employee at will for any reason or no reason, has been narrowly interpreted, and its expansion has not been encouraged. (Barr v. KelsoBurnett Co. (1985), 106 Ill. 2d 520, 525, 478 N.E.2d 1354; Veit v. Village of Round Lake (1988), 167 Ill. App. 3d 350, 353, 521 N.E.2d 145.) Such an expansion as would result by instructing on mixed motive would have a devastating impact on the at-will doctrine. Rather, I believe the current law requiring the plaintiff to establish causality strikes the appropriate balance between an employee’s right not to be fired in contravention of a clearly mandated public policy and an employer’s right to discharge an employee at will for any reason or no reason.

While plaintiff cites numerous cases in support of her contention, I am unpersuaded as those cases either do not address the tort of retaliatory discharge as recognized in Illinois or are from foreign jurisdictions whose policies regarding retaliatory discharge may very well be quite different from ours. Further, it would be inappropriate to apply the standards under the Civil Rights Act of 1964, as utilized in several cases cited by plaintiff, to a retaliatory discharge case brought under Illinois law. (Netzel v. United Parcel Service, Inc. (1989), 181 Ill. App. 3d 808, 812, 537 N.E.2d 1348.) For these reasons, I agree with the trial court’s refusal to give plaintiff’s proffered instructions on mixed motive.


source: Caselaw Access Project

author: JUSTICE DUNN

license: Public Domain

text:
      In re APPLICATION OF THE DU PAGE COUNTY COLLECTOR FOR JUDGMENT FOR DELINQUENT TAXES FOR THE YEAR 1979 (The People ex rel. John Lotus Novak, Du Page County Collector, Applicant-Appellee, v. Bernard M. Susman, Objector-Appellant).—In re APPLICATION OF THE DU PAGE COUNTY COLLECTOR FOR JUDGMENT TAXES FOR THE YEAR 1983 (The People ex rel. John Lotus Novak, Du Page County Collector, Applicant-Appellee, v. Jewel Companies, Inc., Objector-Appellant).
    Second District
    No. 2—89—0412
    Opinion filed January 16, 1990.
    Ralph C. Putnam, Jr., of Alschuler, Putnam, McWethy, Funkey & Lewis, P.C., of Aurora, for appellants.
    James E. Ryan, State’s Attorney, of Wheaton (Barbara A. Preiner and Robert G. Rybica, Assistant State’s Attorneys, of counsel), for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Appellants (objectors), Bernard Susman and Jewel Companies, Inc., appeal from a circuit court decision denying their objections to Du Page County property taxes. The circuit court’s decision was entered after a hearing on remand from two appeals decided by this court.

In In re Application of Novak (1986), 142 Ill. App. 3d 1004, we ruled that Susman’s objections to 1979 property taxes should have been sustained because the tax levies failed to state sufficiently the purposes of the levies in accordance with section 156 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 637). We also held, however, that section 236 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 717) may allow the county to amend the levies to comply with section 156. We remanded for a hearing, directing the trial court to determine whether amendment under section 236 was appropriate and, if so, to permit amendment and find for the collector. Novak, 142 Ill. App. 3d at 1008-09.

In the Jewel Companies case, we held in an unpublished order under Supreme Court Rule 23 (People ex rel. Du Page County Collector v. Jewel Cos. (1987), 156 Ill. App. 3d 1172) that all but one of Jewel Companies’ objections to 1983 property taxes should have been sustained for failure to comply with section 156, and, as in the Susman case, we remanded for a determination as to whether the county board could properly amend the levies to comply with the statute.

At a hearing in which the cases were consolidated, the circuit court ruled that section 236 allowed the county board to amend the levies to comply with section 156. The county submitted copies of amended tax levy ordinances adopted in 1988 which set out a list of purposes for each levy previously found insufficient. For example, the 1979 $5.2 million general-fund levy found insufficient in the Susman case, as amended, stated purposes under 33 categories containing 109 items with an amount designated for each item. Based on the amendments, the lower court overruled the objections.

Objectors have organized their appeal into four points raising three issues; however, we perceive only one issue: whether section 236 of the Revenue Act of 1939 permits Du Page county to amend levies that this court previously found insufficient for lacking sufficient itemization of purposes.

Section 236 states in relevant part:

“In all judicial proceedings of any kind for the levying and collection of taxes, no error or informality of any officer or officers in making any tax levy or in certifying or filing the same not affecting the substantial justice of the levy itself, shall vitiate or in any manner avoid the levy or affect the tax and where such an error or informality in a levy, its certification, filing or publication can be corrected by amendment, or a levy can be sufficiently itemized, the purpose defined and made certain by amendment, made prior to the entry of any order of court affecting said levy or the collection of taxes thereon, such amendment or amendments, certification, filing or publication may be made by the proper officer or officers or corporate or other governing authorities of the taxing bodies affected and the ordinance, resolution, publication or certificate, respectively, as amended, certified, filed or published, shall, upon proof of such amendment or amendments, certification, filing or publication being made to the court, have the same force and effect as though originally adopted, published, filed and certified in the amended form: Provided the aggregate amount or rate of the original levy shall not be thereby increased.” Ill. Rev. Stat. 1979, ch. 120, par. 717.

Objectors contend section 236 does not apply to levies determined invalid due to the county board’s failure to sufficiently itemize its purposes. This failure, they argue, affects the substantial justice of the levy. They contend section 236 applies only to cases where the failure adequately to state the purpose of a levy results from a clerical error. Thus, in this case, objectors argue, the county could only amend the levies if it presented proof that it had originally sufficiently provided for separate purposes but failed, due to clerical error, to record this action in the levy.

In support of their contention, objectors cite cases holding that the failure to state each purpose separately renders the tax invalid, (Chicago, Burlington & Quincy R.R. Co. v. People ex rel. Sonnet (1904), 213 Ill. 458, 466-72; People ex rel. Smith v. Wabash Ry. Co. (1941), 377 Ill. 68, 70; People ex rel. Prindable v. New York Central R.R. Co. (1947), 397 Ill. 247, 248-51.) Objectors contend this rule establishes that a failure to state separately each purpose affects the substantial justice of the levy. We find these cases merely beg the question. They stand for the same general rule that required this court to rule the levies invalid in the first place. They say nothing of the issue at hand, whether the failure sufficiently to itemize or state separate purposes may be cured by amendment under section 236.

No case has specifically addressed the issue presented here. The lead case on amendments under section 236 is People ex rel. Schlaeger v. Buena Vista Building Corp. (1947), 396 Ill. 164. Objectors rely on the following language from that case:

“Conversely, amendments cannot be allowed where they add matter which is essential as a basis for the levy of the tax. (People ex rel. Schnipper v. Missouri Pacific Railroad Co. 332 Ill. 53; People ex rel. Brockamp v. Chicago and Illinois Midland Railway Co. 260 Ill. 624.) Again, the ameliorative provisions of section 236 cannot be invoked to render proceedings valid which are void ab inito. (Chicago and Northwestern Railway Co. v. People ex rel. McGough, 193 Ill. 594; People ex rel. Woody v. Smith, 149 Ill. 549.) In short, its application is limited to those cases where there has been an attempt to comply with the law but the attempt is ineffective by reason of some informality or clerical error. (People ex rel. Franklin v. Wabash Railroad Co., 387 Ill. 450.) In Chicago and Northwestern Railway Co. v. People, 193 Ill. 594, this court pointedly said: ‘That section, [now section 236] however, is not to be construed as curing every defect in attempts to tax because the party taxed will pay no more for the support of the government in proportion to his property than other people who voluntarily pay the same tax. The substantial justice of a tax is affected if it is one which the authorities attempting to impose it have no power or right to impose. Provisions of the statute designed for the protection of the taxpayer are mandatory, and a disregard of them will render the tax illegal.’ ” 396 Ill. at 171-72.

Objectors contend the county board’s failure to state each purpose separately falls under the type of essential matter not allowed to be cured by amendment. We believe this interpretation is strained and ignores the specific provision in section 236 that allows amendments to itemize or define a levy’s purpose. The applicable language states: “[W]here such an error or informality [not affecting the substantial justice] in a levy, its certification, filing or publication can be corrected by amendment, or a levy can be sufficiently itemized, the purpose defined and made certain by amendment,” it shall be given the same force and effect as the original. (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 120, par. 717.) The statute expressly provides that an error of insufficient itemization or failure to define the purpose is an error that may be corrected by amendment.

We are not persuaded that that this provision applies only where the error results from a clerical mistake. The statute singles out the error of insufficient itemization specifically, as opposed to other errors not affecting the substantial justice. The language directly preceding the itemization provision, stated above, clearly would allow amendments of any clerical mistakes, even those pertaining to itemization and statement of purposes. Thus, it follows that the legislature included the itemization provision specifically to allow amendments for improper itemization even though the failure was not a mere clerical mistake. To interpret this language otherwise, as objectors urge, would render the itemization and purpose provision superfluous. Statutes should be construed so that no word or phrase is rendered superfluous or meaningless. People v. Parvin (1988), 125 Ill. 2d 519, 525; Niven v. Siqueira (1985), 109 Ill. 2d 357, 365.

Allowing the county to itemize more specifically the purposes of its levies does not affect the substantial justice of the tax, as was the case in Schlaeger. In Schlaeger, the court found the original levy was illegal where it included improper liabilities in its amount of appropriations, and the manifest purpose of the amendment was to change the amounts appropriated. (Schlaeger, 396 Ill. at 172.) The court stated that “[t]he substantial justice of a tax is affected if it is one which the authorities attempting to impose it have no power or right to impose.” Schlaeger, 396 Ill. at 172.

In this case, allowing the amendments does not give the county board an opportunity to impose a tax which it had no power to impose. Objectors make no argument that the county lacked the power or right to impose the tax levies but only that it failed properly to itemize the purposes of the tax in accordance with section 156. The object of section 156 is to provide taxpayers information and an opportunity to object to unjust and illegal levies. (Novak, 142 Ill. App. 3d at 1006; People ex rel. McWard v. Wabash R.R. Co. (1946), 395 Ill. 243, 247.) The county’s error in the original levies defeated the purpose of the statute: the taxpayers were denied the proper information to review the levies. Allowing the board to amend the levies does not defeat the statute’s purpose. The amendments cure the defect of the original levy, thus providing taxpayers the opportunity to know the tax purposes and object to those purposes.

Finally, in its reply brief, objectors cite two cases that disallowed amendments to cure insufficient itemization: People ex rel. Klauser v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. (1913), 261 Ill. 70; and Cincinnati, Indianapolis & Western Ry. Co. v. People ex rel. Myers (1903), 206 Ill. 565. Neither case applies here. Both cases were decided under section 191, the predecessor to section 235 (Ill. Rev. Stat. 1979, ch. 120, par. 716), before section 236 was enacted. Section 191, like section 235 today, does not contain the language permitting amendments for itemization and statement of purposes. It was not until 1937 when the legislature added section 191(a) (Ill. Rev. Stat. 1937, ch. 120, par. 179(a)), now section 236, that a statute specifically provided for levies to be amended to itemize or define their purposes sufficiently.

The circuit court’s decision overruling appellant’s objections is affirmed.

Affirmed.

GEIGER and WOODWARD, JJ., concur.


text:
    THE VILLAGE OF DEERFIELD, Plaintiff-Appellee, v. STEVEN GREENBERG, Defendant-Appellant.
    Second District
    No. 2—89—0349
    Opinion filed January 16, 1990.

      Robert L. Snook, Jr., of Law Offices of Robert L. Snook, of Waukegan, for appellant.
    Harold H. Winer, of Chicago, and Paul P. Diambri, of Law Office of Paul P. Diambri, Ltd., of Highwood, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

The defendant, Steven Greenberg, was charged with a violation of the minor curfew ordinance of the Village of Deerfield (Deerfield, Ill., Municipal Code art. 8, §§15-61, 15-62 (1963)). After the defendant was found guilty at a stipulated bench trial, the trial court imposed a fine of $50 and placed the defendant on court supervision for a period of 30 days. The defendant now appeals, claiming that the minor curfew ordinance is invalid because its enactment was beyond the powers of the Village of Deerfield and because it unconstitutionally restricts the defendant’s freedom of movement. We affirm the defendant’s conviction.

On August 25, 1988, a complaint was issued against the defendant by a member of the Village of Deerfield department of police. The complaint charged that at 1:25 a.m. on August 25, 1988, the defendant was present on Waukegan Road in Deerfield without supervision in violation of section 15 — 62 of the Deerfield curfew ordinance applicable to persons under the age of 18 (Deerfield, Ill., Municipal Code art. 8, §15 — 62 (1963)). The complaint reveals that the defendant was born on March 18, 1971, indicating that he was 17 years old on the date in question.

The Deerfield ordinance under which the defendant was charged reads as follows:

“(a) It is unlawful for a person less than 18 years of age to be present at or upon any public assembly, building, place, street or highway at the following times unless accompanied and supervised by a parent, legal guardian or other responsible companion at least 21 years of age approved by a parent or legal guardian or unless engaged in a business or occupation which the laws of this State authorize a person less than 18 years of age to perform:
(1) Between 12:01 a.m. and 6:00 a.m. Saturday;
(2) Between 12:01 a.m. and 6:00 a.m. Sunday, and
(3) Between 11:00 p.m. on Sunday to Thursday, inclusive, and 6:00 a.m. on the following day.
(b) It is unlawful for a parent, legal guardian or other person to knowingly permit a person in his custody or control to violate subparagraph (a) of this Section.
(c) A person convicted of a violation of any provision of this Section shall be guilty of a petty offense and shall be fined not less than $10 nor more than $100.” Deerfield, Ill., Municipal Code art. 8, §15-62 (1963).

The defendant filed a motion with the trial court seeking dismissal of the complaint because, he claimed, the Deerfield ordinance was invalid. The defendant’s motion was grounded in four assertions: that the ordinance impermissibly conflicted with certain provisions of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95x/2, par. 1 — 100 et seq.); that it was contrary to public policy as manifested by the Illinois General Assembly; that it violated article VII, section 6(i), of the Illinois Constitution (Ill. Const. 1970, art. VII, §6(i)); and that the ordinance was contrary to the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV). The trial court found no merit to any of the grounds put forth by the defendant, and accordingly, it denied the motion to dismiss. Subsequently, the defendant stipulated to the allegations in the Village’s complaint and was found guilty at his bench trial. The trial court fined the defendant a total of $50 and placed him on court supervision for a period of 30 days.

The defendant now appeals his conviction. He claims on appeal that it was beyond the powers of the Village of Deerfield to enact a curfew applicable to those under age 18 because the Illinois legislature has adopted a curfew law applicable to those under age 17 (Ill. Rev. Stat. 1987, ch. 23, par. 2371). The defendant claims that the age limit set by the State curfew law precludes Illinois municipalities from enacting ordinances applicable to any different age group. He also claims that the ordinance in question is invalid because it interferes with the defendant’s rights as protected by the United States and Illinois Constitutions.

Though the legislature has adopted a statewide curfew, it has also clearly expressed its intent to allow municipalities to adopt their own curfew ordinances. Section 11 — 1—5 of the Illinois Municipal Code of 1961 (Ill. Rev. Stat. 1987, ch. 24, par. 11 — 1—5) states that “each municipality may by ordinance declare a curfew throughout all or any part of the municipality and establish the conditions and restrictions thereof.” Moreover, the Illinois statute which establishes the State’s curfew for minors also specifically authorizes municipalities to “exercise legislative or regulatory authority over this subject matter by ordinance or resolution incorporating the substance of this Act or increasing the requirements thereof or otherwise not in conflict with this Act.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 23, par. 2372.) Incredibly, even though the defendant argues that the Deerfield ordinance is in conflict with the State’s expressed public policy, nowhere in the defendant’s brief can there be found any reference to these highly relevant statutory provisions. The absence of any mention of these provisions is particularly inexplicable here because, as the defendant must know, the trial court denied the defendant’s motion to dismiss the charge on the basis of this statutory language.

On appeal, the defendant cites only broad propositions of law in support of his contention that the ordinance impermissibly conflicts with the legislature’s expressed intention. For example, the defendant cites Village of Mundelein v. Hartnett (1983), 117 Ill. App. 3d 1011, 1015, 454 N.E.2d 29, 32, which states that “a municipality derives its powers from the legislature, and may only exercise those powers which are expressly granted or those necessarily implied in or incident to express powers.” Though true, this principle is inapplicable here because of the State’s explicit statutory authorization of municipal curfew ordinances. The defendant also correctly notes the Illinois Supreme Court’s statement that “[municipal ordinances must be in harmony with the laws of the State, and in case of a conflict the ordinance must give way” (Dean Milk Co. v. City of Chicago (1944), 385 Ill. 565, 574, 53 N.E.2d 612, 616). While this statement is also true, it is relevant only if the defendant can demonstrate the existence of a conflict between the ordinance and the State curfew law. Such broadly worded axioms simply do not support the claim that the legislature has expressed its disapproval of curfew ordinances such as the one in question.

Here, the defendant concedes that the Deerfield curfew ordinance and the State curfew law are identical except that the former applies to those under age 18 while the latter applies only to those under age 17. The defendant makes note of the fact that the original version of the State curfew law applied to 17-year-olds (Ill. Rev. Stat. 1963, ch. 23, par. 2371) but was later amended so that it applied only to those under age 17 (Ill. Rev. Stat. 1985, ch. 23, par. 2371 (as amended by Pub. Act 79 — 159, eff. July 9, 1975)). Thus, the defendant claims, the fact that the Deerfield ordinance still applies to 17-year-olds is the “conflict” with the State law which renders the ordinance invalid. The Deerfield ordinance is more restrictive than the State curfew law in this respect, but, as we noted above, the defendant does not explain how this represents a “conflict” when the legislature has specifically authorized more restrictive curfews at the local level. We agree with the trial court that Deerfield’s curfew ordinance does not conflict with the State curfew ordinance, and we find the defendant’s argument on this issue to be wholly lacking in merit.

The defendant also contends that the Deerfield curfew ordinance is an unconstitutional abridgement of his rights as guaranteed by the Illinois and United States Constitutions. Among the constitutional freedoms the defendant claims the ordinance violates are “movement, travel, speech, association, assembly, freedom of religion and other freedoms guaranteed by the first amendment.” It is difficult to see how the curfew ordinance in question infringes on such a disparate variety of rights, and the defendant does not suggest how the ordinance affects these rights. Nevertheless, we will assume, arguendo, that some constitutionally protected freedoms are implicated by the Deerfield ordinance and that the ordinance would be invalid if applied to adults. (See generally Note, Assessing the Scope of Minors’ Fundamental Rights: Juvenile Curfews and the Constitution, 97 Har. L. Rev. 1163-81 (1984).) The defendant correctly cites Bellotti v. Baird (1979), 443 U.S. 622, 633, 61 L. Ed. 2d 797, 807, 99 S. Ct. 3035, 3043, to show that a “child, merely on account of his minority, is not beyond the protection of the Constitution.” But, as the Supreme Court noted in Bellotti, recognition that children are possessed of constitutional rights “is but the beginning of the analysis.” (443 U.S. at 633, 61 L. Ed. 2d at 807, 99 S. Ct. at 3043.) While children are within the protections afforded by the Constitution, we must determine whether the specific provisions of the Deerfield curfew ordinance the defendant challenged impermissibly infringe on those constitutional protections.

This State’s supreme court has already had occasion to review a constitutional challenge to a juvenile curfew ordinance. In People v. Chambers (1976), 66 Ill. 2d 36, 360 N.E.2d 55, the defendants were charged with a violation of the State curfew law which, at that time, applied to persons under the age of 18 (Ill. Rev. Stat. 1973, ch. 23, par. 2371). In this and all other respects, the State curfew law at issue in Chambers is identical to the Deerfield curfew ordinance at issue here. The supreme court held that, although it restricted the travel and movement of minors, the Illinois curfew law properly furthered the State’s valid interest in protecting its children. The attack on the statute’s constitutionality was rejected. (66 Ill. 2d at 44, 360 N.E.2d at 59.) Thus, because it upheld a statute identical to the one at issue here, People v. Chambers would seem to stand as a clear barrier to the defendant’s claim that the Deerfield ordinance is unconstitutional.

The defendant does not suggest that the supreme court’s decision in Chambers ought to be reversed and a new rule adopted in its place. (See 107 Ill. 2d Canon 7, R. 7 — 102 (noting propriety of advancing a defense unwarranted under existing law if it can be supported by a good-faith argument for changing existing law).) Such an argument would, of course, be futile here. It is fundamental that the appellate court is without authority to overrule or modify the decisions of the State supreme court. (People v. Denson (1985), 139 Ill. App. 3d 914, 926, 487 N.E.2d 777, 785.) Instead, the defendant argues that the United States Supreme Court’s decision in Bellotti v. Baird compels us to reach a different result from that reached in Chambers. At issue in Bellotti was a Massachusetts statute requiring any minor seeking an abortion to first obtain the written consent of both parents. (Bellotti, 443 U.S. at 625, 61 L. Ed. 2d at 802, 99 S. Ct. at 3038-39.) Reflecting on the application of constitutional protections to minors, the court stated:

“The Court long has recognized that the status of minors under the law is unique in many respects. *** We have recognized three reasons justifying the conclusion that the constitutional rights of children cannot be equated with those of adults: the peculiar vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the parental role in child rearing.” 443 U.S. at 633-34, 61 L. Ed. 2d at 807, 99 S. Ct. at 3043.

As we noted above, we undertake this analysis assuming, arguendo, that the Deerfield curfew ordinance would be unconstitutional if applied to adults. The thrust of the defendant’s ambiguous argument appears to be that, in order for the curfew ordinance to be constitutionally permissible as applied to minors, one of the three reasons outlined in Bellotti must be present in order to justify the ordinance. The defendant asserts that none of the three justifications applies to the Deerfield ordinance and, therefore, that it is unconstitutional.

The application of the standards set out in Bellotti is troublesome outside of the particular setting of abortion rights. But even if the Bellotti criteria are applied, the Deerfield curfew ordinance is justified by two of the three factors laid out in that case. It is clear that the Illinois Supreme Court in People v. Chambers considered both of these factors when upholding the State curfew law identical to the Deerfield ordinance at issue here. First, the State curfew ordinance was justified as a protection imposed in light of the particular vulnerability of children. The court stated:

“The statute proceeds upon the basic assumption that when a child is at home during the late night and early morning hours, it is protected from physical as well as moral dangers. Although there are instances, unfortunately, in which this assumption is untrue, we are satisfied that the State is justified in acting upon it.
In legislating for the welfare of its children, the State is not required, in our opinion, to proceed upon the assumption that minor children have an absolutely unlimited right not only to choose their own associates, but also to decide when and where they will associate with them. Recognition of such a right would require wholesale revision of the large body of law that relates to guardian and ward, parent and child, and minors generally. Compulsary [sic] school attendance would be prohibited. A child is carefully safeguarded against errors of choice and judgment in most of the ordinary affairs of life, and we see no constitutional impairment in the limited restriction upon the child’s judgment that is involved in this statute.” Chambers, 66 Ill. 2d at 42, 360 N.E.2d at 57-58.

Second, the supreme court also addressed the manner in which the State curfew statute furthered the parental role in child rearing:

“By providing a sanction against the parent who knowingly permits a child to violate the statute, the cooperation of the parent is commanded. That sanction may also operate indirectly to enlist cooperation from the child, who may be willing to risk getting into trouble himself, but unwilling to involve his parents in a violation of the law. Parental control is thereby strengthened.” Chambers, 66 Ill. 2d at 42-43, 360 N.E.2d at 58.

Hence, two of the three factors the United States Supreme Court suggested in Bellotti v. Baird were, in fact, addressed by the Illinois Supreme Court in upholding the State curfew law at issue in People v. Chambers. Therefore, we believe that the Chambers decision remains good law and is not contradicted by Bellotti. Nor is it relevant, as the defendant seems to suggest, that the State has subsequently changed the curfew ordinance interpreted in Chambers. This State’s supreme court determined that the statute, as it existed at that time, was constitutional; this constitutional determination cannot be altered by the legislature’s subsequent statutory actions. (See Rock v. Thompson (1981), 85 Ill. 2d 410, 426 N.E.2d 891.) Because the curfew ordinance at issue here is identical to that in Chambers, we conclude that the result in that case compels us to reject the defendant’s constitutional challenge to the Deerfield curfew ordinance.

The defendant refers us to two Federal decisions reaching a contrary result. (Johnson v. City of Opelousas (5th Cir. 1981), 658 F.2d 1065; McCollester v. City of Keene (D.N.H. 1984), 586 F. Supp. 1381.) While Federal court decisions may be persuasive authority, the State appellate court is bound by the decision of the State supreme court in the absence of contrary authority by the United States Supreme Court. (Brazinski v. Transport Service Co. (1987), 159 Ill. App. 3d 1061, 1066, 513 N.E.2d 76, 80.) Similarly, the defendant’s reliance on the dissenting opinion in the United States Supreme Court’s denial of certiorari in Bykofsky v. Borough of Middletown (M.D. Penn. 1975), 401 F. Supp. 1242, aff’d (3d Cir. 1976), 535 F.2d 1245, cert. denied (1976), 429 U.S. 964, 50 L. Ed. 2d 333, 97 S. Ct. 394 (Marshall, J., dissenting) is also insufficient to counter the direct precedent set in People v. Chambers. Therefore, we conclude that there are no constitutional grounds upon which to set aside the defendant’s conviction.

The judgment of the trial court is affirmed.

Affirmed.

McLaren and WOODWARD, JJ., concur.


text:
    MARGARETTEN & COMPANY, INC., Plaintiff-Appellee, v. RICHARD MARTINEZ et al., Defendants-Appellants (Kailish Prasad et al., Third-Party Purchasers-Appellees.
    Second District
    No. 2—89—0426
    Opinion filed January 16,1990.

      W. Randal Baudin, of Madsen, Baudin, Stolfi & Sugden, of Crystal Lake, for appellants.
    Bashaw & Associates, of Hinsdale (Steven B. Bashaw, of counsel), for appellees Kailish Prasad and Paul .lavaras.
   JUSTICE DUNN

delivered the opinion of the court:

Defendants, Richard and Joyce Martinez, appeal from the denial of their motions to vacate an order approving the sale of their home pursuant to a foreclosure decree and for an injunction to stay their evictions from the home. Defendants argue that the motions should have been granted because the trial court set the wrong deadline in the foreclosure decree for them to redeem their property, and they could have done so by the proper deadline. We affirm.

Plaintiff, Margaretten & Company, Inc., filed a foreclosure complaint against defendants on June 13, 1988. The sheriff’s return of service states that Joyce Martinez was personally served at the subject residence at 605 Christine Drive in McHenry on the afternoon of June 24, 1988. The return states that Richard Martinez was served by substituted service at the same time and place and that copies of the summons and complaint were mailed to him at that address four days later.

Richard Martinez filed a pro se general appearance on July 22, 1988. Since defendants failed to file an answer or otherwise plead, the trial court found they were in default and entered a judgment of foreclosure on September 16, 1988. The judgment order provided that the redemption period for the property would expire on January 25, 1989, and that the property would be sold after that date if it was not redeemed by defendants. The court also stated in the order that there was no just reason to delay enforcement or appeal from the order.

On February 15, 1989, a sheriff’s sale of the subject property was conducted. Two third parties, Kailish Prasad and Paul Javaras, submitted the highest bid and purchased the property. That same day, the trial court issued an order confirming the sale and granting possession to the purchasers after 30 days. This order also states there is no reason to delay enforcement or appeal from the order. On April 3, defendants presented a motion asking the trial court to vacate the February 15 order and another motion seeking an injunction to prohibit their eviction until further order of the court. Defendants also requested in the motion to vacate that the court issue an order requiring the clerk of the circuit court to accept payment of the funds necessary to redeem the property and restoring defendants to the subject premises.

Defendants alleged in the motions that Richard Martinez was never properly served because he was not residing with his wife at the time of the attempted substituted service, the sheriff’s return does not reflect that a copy of the summons for Richard was left with Joyce, the deputy did not explain the contents of the summons and complaint to Joyce, and no copies of the summons and complaint were subsequently mailed to Richard or Joyce. These allegations were supported by the attached affidavits of both defendants.

The motions further allege that since Richard was never properly served, the seven-month redemption period should have been calculated from the date he submitted to the jurisdiction of the court, July 22, 1988, rather than the date of service, June 24, 1988. This would mean that the proper date for expiration of the redemption period was February 22, 1989, rather than January 25, 1989, the date set by the trial court in the foreclosure decree.

Richard’s affidavit states that he appeared in court on February 15, 1989, and advised the trial judge that he had sufficient funds to redeem the property. The trial judge advised Richard that the redemption period had expired.

After hearing argument, the trial court denied the motions without affording defendants the opportunity to present evidence. Defendants filed a timely notice of appeal from the denial of the motions.

Although plaintiff has not filed a brief with this court, the third-party purchasers, Javaras and Prasad, have done so. Since the purchasers do not appear to contest defendants’ claim that service upon Richard was improper under section 2 — 203 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 203), and since the facts in Richard’s affidavit support such a conclusion, we shall assume defendants’ claim is correct. Proceeding under this assumption, defendants’ argument that the trial court should have set February 22, 1989, rather than January 25, 1989, is clearly correct. Section 15 — 1603(b) of the Code states in relevant part as follows:

“In the foreclosure of a mortgage of real estate which is residential real estate at the time the foreclosure is commenced, the redemption period shall end on the later of (i) the date seven months from the date the mortgagor or, if more than one, all the mortgagors (A) have been served with summons or by publication or (B) have otherwise submitted to the jurisdiction of the court, or (ii) the date three months from the date of entry of a judgment of foreclosure.” (Ill. Rev. Stat. 1987, ch. 110, par. 15 — 1603(b).)

The date all the mortgagors had either been served with summons or submitted to the court’s jurisdiction was July 22, 1988, the day Richard filed his appearance. The date seven months from this date was February 22, 1989. The date three months from entry of the judgment of foreclosure was December 16, 1988. February 22, 1989, the later date, was the date the trial judge should have set for expiration of the redemption period.

This does not necessarily mean, however, that defendants were entitled to the relief requested in their motions. Defendants requested in their motion to vacate that they be allowed to redeem the property even though the redemption period had expired. There are cases in which it has been held that a court of equity may permit redemption after expiration of the statutory time period if fraud, mistake, or some other infirmity on the part of a public official or the purchaser prevented redemption within that period. (See, e.g., American Savings Association v. Conrath (1984), 123 Ill. App. 3d 140, 147; Mutual Life Insurance Co. v. Chambers (1980), 88 Ill. App. 3d 952, 957.) These cases, however, predate the adoption of the Illinois Mortgage Foreclosure Law (Ill. Rev. Stat. 1987, ch. 110, par. 15 — 1101 et seq.), which is now a part of the Code and is applicable to this case since the foreclosure complaint was filed after July 1, 1987 (Ill. Rev. Stat. 1987, ch. 110, par. 15-1106).

Section 15 — 1605 of the Code states as follows:

“No equitable right of redemption shall exist or be enforceable under or with respect to a mortgage after a judicial sale of the mortgaged real estate pursuant to Section 15 — 1507 or afentry of a judgment of foreclosure pursuant to Sections 15-1402 or 15-1403.” (Ill. Rev. Stat. 1987, ch. 110, par. 15-1605.)

Since a judgment of foreclosure had been entered and a judicial sale had been held as of the time defendants presented their motions, section 15 — 1605 prohibited the trial judge from using his equitable powers to extend the redemption period.

Defendants’ motion to vacate the February 15, 1989, order approving the sale of their property did not specify under which statutory provision they were proceeding. A final judgment entered by a court of competent jurisdiction may only be attacked on direct appeal or in one of the traditional collateral proceedings which are now defined by statute. (Malone v. Cosentino (1983), 99 Ill. 2d 29, 32-33.) A judgment order is final if it terminates the litigation on the entire controversy or some definite part thereof so that, if affirmed, the trial court need only proceed with execution. (O’Hara v. State Farm Mutual Automobile Insurance Co. (1985), 137 Ill. App. 3d 131, 133.) The order approving the sheriff’s sale terminated the foreclosure litigation by conclusively establishing the purchasers’ rights to the property and by giving final approval to the proposed distribution of the sale proceeds. Furthermore, at least one Illinois court has indicated that such orders are final. (See Bank of Ravenswood v. Maiorella (1982), 104 Ill. App. 3d 1072, 1074.) We conclude that the February 15 order approving the sheriff’s sale was a final judgment order.

Defendants filed their motion to vacate this order on April 3, 1989, 47 days after it was entered. The only statutory provision authorizing collateral attacks upon final orders or judgments in civil cases more than 30 days after their entry is section 2 — 1401 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401). Accordingly, we will construe defendants’ motion to vacate as a petition pursuant to section 2 — 1401.

In order to be entitled to relief under this provision, a petitioner must set forth specific factual allegations establishing each of the following elements: (1) existence of a meritorious defense or claim; (2) due diligence in presenting this defense or claim to the trial court in the original action; and (3) due diligence in filing the section 2 — 1401 petition. (Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 220-21.) If the petitioner sets forth sufficient facts to support the granting of relief, an evidentiary hearing must be held. Smith, 114 Ill. 2d at 221.

The trial court denied the motion to vacate without giving defendants an opportunity to present evidence. This was proper, however, in light of defendants’ failure to set forth any facts establishing due diligence on their part in presenting their claim to the trial court in the original action. Since section 2 — 1401 is not generally employed to relieve a party from the consequences of his or her own mistake or negligence, a party is not entitled to relief under this provision absent a showing that through no fault of his or her own, the factual error or existence of a valid defense was not made known to the trial court. (Smith, 114 Ill. 2d at 222.) Defendants complain that the trial court erred in the September 16, 1988, foreclosure decree by setting a redemption deadline of January 25, 1989, and by subsequently approving a sale of the property held on February 15, 1989, prior to the expiration of the proper redemption period. Defendants offer no excuse in their motion or affidavits for their failure to raise these alleged errors for more than six months after entry of the foreclosure decree and for 47 days after entry of the order approving the sheriff’s sale. The trial court properly denied the motion without an evidentiary hearing since defendants alleged no facts in their motion to establish they were diligent in raising the above matters in the trial court.

Defendants did allege in the motion to vacate that the foreclosure decree and the order approving sale were void because of the aforementioned infirmities. Since a void judgment may be attacked at any time in either a direct or collateral proceeding (Potenz Corp. v. Petrozzini (1988), 170 Ill. App. 3d 617, 618), defendants’ failure to allege facts establishing due diligence would not prevent them from receiving relief. In the instant case, as in Potenz Corp., while the judgment may have been erroneous, it was not void.

In Potenz Corp., defendants sought to vacate a judgment entered in yen rather than a dollar amount. This court concluded the judgment was erroneous but not void, noting that the trial court had jurisdiction when it entered judgment, it did not usurp any authority in doing so, and did nothing inconsistent with due process. (170 Ill. App. 3d at 620.) In the case at bar, the trial court had jurisdiction when it entered the orders; Richard had submitted to the court’s jurisdiction by filing an appearance, and Diane was properly served. The trial court also did not usurp any authority in so doing. The court not only had the authority to set a deadline for redemption in the foreclosure decree, it was required to do so under section 15 — 1506(e) of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 15 — 1506(e)). The court also had the authority to order the sale of the property (Ill. Rev. Stat. 1987, ch. 110, par. 15 — 1507) and to enter an order confirming or approving the sale (Ill. Rev. Stat. 1987, ch. 110, par. 15 — 1508). Finally, the trial court did nothing inconsistent with due process.

As we stated in Potenz Corp., the mere fact that a judgment is erroneous does not render it void (170 Ill. App. 3d at 620). Accordingly, the orders in question were not void. Defendants’ failure to set forth facts in their motion establishing due diligence thereby precluded them from obtaining relief under section 2 — 1401.

Furthermore, section 2 — 1401(e) of the Code states as follows:

“Unless lack of jurisdiction affirmatively appears from the record proper, the vacation or modification of an order or judgment pursuant to the provisions of this Section does not affect the right, title or interest in or to any real or personal property of any person, not a party to the original action, acquired for value after the entry of the order or judgment but before the filing of the petition, nor affect any right of any person not a party to the original action under any certificate of sale issued before the filing of the petition, pursuant to a sale based on the order or judgment.” (Ill. Rev. Stat. 1987, ch. 110, par. 2— 1401(e).)

As we have previously stated, the record establishes that the trial court had jurisdiction when it entered the foreclosure decree and the order approving sale. The instant case is thus distinguishable from State Bank v. Thill (1986), 113 Ill. 2d 294, in which the record failed to establish that one of the foreclosure defendants was ever properly served. (Thill, 113 Ill. 2d at 316.) Our supreme court stated in Thill that while it is important to assure that a bona fide purchase of real estate may rely upon the facial validity of judicial proceedings forming a link in his or her chain of title, a purchaser is not entitled to rely on a judicial proceeding if the record evinces a lack of jurisdiction. 113 Ill. 2d at 317.

Here, as in Thill, the record indicates one of the foreclosure defendants was not properly served with process. The record clearly establishes in this case, however, that the court acquired jurisdiction over that defendant when he filed an appearance, unlike Thill. Since Prasad and Javaras received title to the Martinez property after the challenged orders were entered but before defendants filed their section 2 — 1401 petition and since they acquired the property for value, any modification or vacation of the orders could not have affected their title under section 2 — 1401(e). The trial court could have properly denied the motions on this basis as well, because the relief sought by defendants was their restoration to the premises and this relief was barred under section 2 — 1401(e).

Defendants’ motion for injunctive relief was also properly denied by the trial court. One of the requisites for injunctive relief is establishing a likelihood of success on the merits. (Shodeen v. Chicago Title & Trust Co. (1987), 162 Ill. App. 3d 667, 672.) As we have seen, defendants had no possibility of success on their section 2 — 1401 petition.

Because of our disposition of this matter, we need not resolve the contention of Javaras and Prasad that defendants were barred from redeeming the property because they failed to send the mortgagee’s attorney a notice of intent to redeem at least 15 days prior to the intended redemption date (see Ill. Rev. Stat. 1987, ch. 110, par. 15— 1603(e)). Although the trial court denied defendants’ motions on this basis, we may affirm the trial court’s order on any ground apparent from the record. Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387.

Accordingly, the judgment of the circuit court of McHenry County is affirmed.

Affirmed.

INGLIS and McLAREN, 33., concur.