author: JUSTICE WOODWARD PRESIDING JUSTICE McCULLOUGH,

text:
    HERITAGE HOUSE, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Sharon Bell, Appellee).
    Fourth District (Industrial Commission Division)
    No. 4—90—0484WC
    Opinion filed August 14, 1991.
    Rehearing denied October 22, 1991.

      McCULLOUGH, PI., and McNAMARA, J., dissenting.
    Karen L. Kendall, of Heyl, Royster, Voelker & Allen, of Peoria, and Gary L. Borah, of Heyl, Royster, Voelker & Allen, of Springfield, for appellant.
    William A. Pryor, of Springfield, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Respondent, Heritage House, appeals from the judgment of the circuit court, which confirmed the Industrial Commission’s (Commission’s) award of workers’ compensation benefits to claimant, Sharon Bell.

The arbitrator heard this cause on February 17, 1987. In her decision filed August 12, 1987, the arbitrator concluded that claimant’s lower back injury, sustained on October 16, 1985, was causally related to her fall at respondent’s restaurant on April 26, 1985. The arbitrator further found that claimant was permanently and totally disabled. Upon review, the Commission adopted the arbitrator’s findings and conclusions in their entirety.

In the appeal at bar, respondent raises two issues, namely, that the Commission’s decisions as to causal connection and permanency of claimant’s condition were against the manifest weight of the evidence.

Regarding the issue of causal connection, the following facts are pertinent. On April 26, 1985, claimant was working as a waitress for respondent. While carrying a stack of glasses, claimant slipped on a wet tile floor and fell sideways onto her head. Subsequently, claimant suffered severe headaches and received a variety of prescription drugs to alleviate the pain. Eventually, claimant was diagnosed as having fracture of the zygomatic bone, which was surgically repaired.

Following her injury, claimant experienced a loss of consciousness with accompanying incontinence on at least three occasions. The final of these episodes occurred on October 16, 1985. Claimant went to bed at approximately 8 p.m. to read. At approximately 10:30 p.m., her husband, Roy, went into their bedroom and found claimant “half in and half out of bed.” The upper part of her body was on the bed, while at least one of her feet was upon the floor. Claimant was in a half-conscious state and took about 10 minutes to return to full consciousness. She complained of sharp pains in her lower back. Following this incident, on October 17, 1985, claimant consulted with Dr. James Couch, professor of neurology at Southern Illinois School of Medicine, who prescribed Dilantin for control of the alleged spells, which were substantially controlled by the medication. Dr. Couch examined claimant and determined that she had suffered an acute herniated disc. He ordered claimant’s admission to Memorial Medical Center on October 31, 1987, and then referred claimant to Dr. Donald Pearson, a neurosurgeon who examined her and subsequently removed a herniated disc at S5-L1.

Respondent argues that the evidence fails to support the Commission’s decision that claimant’s lower back problems are causally related to the above-described fall at respondent’s restaurant. We disagree. It is axiomatic that the Commission’s decision will not be disturbed on review unless it is against the manifest weight of the evidence. (County of Cook v. Industrial Comm’n (1977), 68 Ill. 2d 24.) It is the Commission’s function to resolve disputed questions of fact, including those of causal connection, to draw permissible inferences and to decide which of the conflicting medical views is to be accepted. Material Service Corp. v. Industrial Comm’n (1983), 97 Ill. 2d 382.

Specifically, respondent argues that Dr. Couch’s testimony was insufficient to establish a causal connection between claimant’s fall and her subsequent back injury. The arbitrator’s decision stated in relevant part:

“There is no dispute that the fractured facial bone resulted from that accident. The dispute concerns whether the injury to the head caused the subsequent periods of altered consciousness which in turn caused injury to the low back. Dr. Couch’s testimony indicates that the periods of altered consciousness could indeed be related to this injury. His testimony was that it is rare for a person to suffer a herniated disc during a seizure. Fractured vertebra are more common than ruptured vertebra during seizures. He did not, however, exclude the possibility that this could occur.”

The evidence deposition of Dr. Couch contains the following testimony:

“Q. [I]s her complaint consistent with her history?
A. If I can answer this way. Assuming there was a fall, this could be consistent with a fall-lumbar injury, herniated disk occurring at that point becoming symptomatic over the next 12 hours.
Q. Can you state whether or not it is possible, indeed sometimes more than possible, that patients can receive herniated disks as a result of a seizure?
A. It is possible, it is surprisingly uncommon. Given the intense activity that may go along with a seizure it is probably more common that patients will develop a collapsed fracture of a vertebra. Now, I can’t really give a reason why collapse is more common than herniation, but it is very uncommon that patients will develop a herniated disk specifically as a result of a seizure.”

Under the totality of the circumstances, the Commission could have found a causal connection between her fall at work and the subsequent back injury. The work-related accident is undisputed. Claimant’s testimony that she suffered loss of consciousness on prior occasions is not disputed. The evidence demonstrates claimant experienced a loss of consciousness on October 16, 1985, on which date her husband found her in a semi-conscious state, half in and half out of bed. Claimant had no back problems prior to this incident and immediately experienced back pains which, on the following day, Dr. Couch ascribed to an acutely herniated disc. Dr. Couch’s testimony regarding the possibility of a seizure leading to a lumbar injury, when taken with these facts, supports the Commission’s determination as to causal connection.

Respondent next argues that there was no evidence of a fall or other trauma to precipitate a disc herniation. This argument is incorrect. As noted above, claimant was found in a dazed condition with her body in an awkward position. Upon reviving, she immediately felt a pain in her lower back. The following day, this pain was diagnosed by Dr. Couch as being caused by an acute disc herniation. Under these facts, the Commission made the permissible inference that claimant had suffered a seizure which, in turn, resulted in her back injury.

Further, respondent argues that the subject injury could have been caused by headaches rather than seizures and that the evidence suggests the headaches are not causally related to her back injury. We note that the wording of this argument underscores its lack of persuasiveness. From the evidence adduced at the arbitration hearing, the Commission properly found that claimant suffered seizures and headaches from her fall. Also, there was sufficient evidence in support of the Commission’s determination that a seizure rather than a headache was causally connected to claimant’s back injury.

Finally, respondent argues that claimant failed to prove she is permanently totally disabled. Specifically, respondent contends that there is no medical evidence to support such an award. An employee does not have to be reduced to total physical incapacity to be permanently and totally disabled. (Goldblatt Brothers, Inc. v. Industrial Comm’n (1979), 78 Ill. 2d 62, 67.) Total and permanent disability exists when the only jobs an employee can perform are “ ‘so limited in quantity, dependability, or quality that there is no reasonably stable market for them.’ ” (Goldblatt Brothers, 78 Ill. 2d at 67, quoting C.R. Wikel, Inc. v. Industrial Comm’n (1977), 69 Ill. 2d 273, 278.) Further, continuing pain due to an injury and the inability to obtain employment justify a finding of permanent and total disability. (Goldblatt Brothers, 78 Ill. 2d at 67-68.) A reviewing court will not disturb the Commission’s factual evaluation unless the Commission’s conclusion is against the manifest weight of the evidence. As noted above, the Commission adopted the arbitrator’s findings, which provided:

“It is clear from the medical evidence that Petitioner is not able to perform those jobs for which she has training and experience, specifically nursing and restaurant work. Dr. Stauffer indicated in his testimony that Petitioner may be among the 20 percent of low back surgery patients who ultimately require a fusion. She did get some relief from the body cast he put her in and the subsequent use of various corsets and braces. At the present time, Petitioner has not had a fusion and is not able to obtain employment within her physical limitation.”

At the review hearing before the Commission, claimant gave the following testimony. Since the arbitration, she had undergone a spinal fusion surgery in September 1987. She experienced pain in her back and left and right legs since the fusion surgery. Claimant had not been able to return to work since the arbitration hearing. She still could not lift any object over 10 pounds because of pain in her back and her legs. Nor could she turn or twist her body in situations such as trying to look out the rear window of a car while driving or riding. Her inability to turn or twist had not improved since her fusion surgery. Claimant’s previous jobs as a licensed practical nurse (LPN) and waitress required her to lift items over 10 pounds and to turn or twist her body in the regular course of her employment. Further, she could not carry out her regular household duties. She was not able to run the vacuum cleaner, make the beds, get clothes out of the dryer, put things in the oven, or even wipe off a table. Claimant also had a problem standing or sitting for any extended period of time. Moreover, claimant sought work as an LPN at St. John’s Hospital in Springfield. She was not hired. Further, no treating physician had released her to return to work.

The testimony of Dr. Pearson, who last examined claimant in May 1986, is not dispositive as to the permanency and extent of claimant’s back injury. Dr. Couch had no opinion as to claimant’s back problem. Dr. Stauffer stated that “it is difficult to get people back to work as nurses unless they are fully fit and have no limitations.” He opined that, due to claimant’s complaints of back pain, she might not be able to perform an LPN’s work duties. As to waitressing, Dr. Stauffer was too unfamiliar with the job’s demands to make an informed judgment as to whether she could perform that job.

Clearly, the Commission based its decision as to the permanency and extent of her back injury in large part upon claimant’s testimony. It was entitled to do so. (See Skokie Valley Asphalt Co. v. Industrial Comm’n (1970), 45 Ill. 2d 333, 335.) Under the evidence adduced, the Commission could find that claimant was incapacitated to the point that she was totally unable to secure permanent employment. The respondent could have rebutted said conclusion by demonstrating that work within claimant’s limited capacity was reasonably available. (See Inland Robbins Construction Co. v. Industrial Comm’n (1980), 78 Ill. 2d 271, 276.) Respondent failed to do so.

Accordingly, we affirm the circuit court’s judgment.

Affirmed.

LEWIS and STOUDER, JJ., concur.

PRESIDING JUSTICE McCULLOUGH,

dissenting:

I disagree with the majority, which finds causal connection between claimant’s fall at work and the subsequent back injury.

As the majority states, the arbitrator, referring to causal connection, work-related injury, and subsequent herniated disc, found Dr. Couch’s testimony “did not, however, exclude the possibility this could occur.” Dr. Couch’s statement, “[I]t is possible, it is surprisingly uncommon,” along with his further statement, “I think it is a possibility, but I don’t think a very good one,” does not show causal connection. Dr. Couch, a treating physician, was fully informed of the claimant’s medical history, the work-related accident, and the history of headaches and seizures. To allow recovery in this case will eliminate any requirement that causal connection be proved to a reasonable degree of medical certainty in cases requiring expert testimony. This is such a case.

Possibility of causal connection is not the standard required. The arbitrator, Commission, and majority decision rely upon Dr. Couch’s testimony to find causal connection. Dr. Couch, however, found only a “possibility.” The Commission’s decision is against the manifest weight of the evidence.

The decision of the Commission awarding permanent disability is also against the manifest weight of the evidence. The claimant has not shown by a preponderance of the evidence she is permanently totally disabled as a result of the April 26 work-related accident. She is not obviously unemployable.

McNAMARA, J., joins in dissent.


source: Caselaw Access Project

author: PRESIDING JUSTICE LUND

license: Public Domain

text:
    CENTRAL STATES THRESHERMEN’S REUNION, INC., Plaintiff-Appellee, v. THE DEPARTMENT OF REVENUE et al., Defendants-Appellants.
    Fourth District
    No. 4—91—0153
    Opinion filed September 12, 1991.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Robert G. Toews, Assistant Attorney General, of Chicago, of counsel), for appellants.

      Strong, Blakeman & Schrock, Ltd., of Pontiac (Kenneth L. Strong, of counsel), for appellee.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

Defendants Roger D. Sweet and the Illinois Department of Revenue (Department) appeal from the order of the circuit court of Livingston County granting plaintiff Central States Threshermen’s Reunion, Inc., a property-tax exemption. We reverse.

On June 18, 1986, plaintiff filed an application requesting a property-tax exemption for its 40 acres of property in Livingston County. Plaintiff’s application described the activities which take place on its property as follows: “[Plaintiff] holds a five day reunion each year over Labor Day weekendf,] showing old time threshing methods, [m]achines and antique tractors and engines. We have a daily parade on the grounds and demonstrations at Saw Mill, Shingle Mill, Grist Mill, [e]tc.” Plaintiff’s purpose for being, as stated in its bylaws, is “to preserve and exhibit, for educational and historical purposes, old style power and steam machinery, automobiles and hobby engines.”

Specific events and exhibits held at the annual reunion were described in an attachment to the application. The events included a display of antique cars and a parade through town, a “Thresher’s Olympics,” with engineers and their machines competing against each other; contests including bundle pitching, shocking oats, and horseshoe pitching; an antique tractor pull; a horse show; a daily parade of antique threshing machines and tractors; and a daily flea market. The exhibits include a vintage sawmill operation; a wood-shingle mill; a gristmill grinding wheat for flour; a cider press; a blacksmith shop; an oat-threshing operation using antique equipment; displays of threshing machines, small model engines, stationary engines and pumps; and a women’s hobby and craft show.

Plaintiff derives income from the property from “admission charged [to the] public, Flea Market fees, Concessions, camping, and other activities during the Reunion.” Attached to the application was a letter from Carl Ogle, plaintiff’s president, which explained that the last cash crop grown on the property was wheat which was harvested in the summer of 1985. Since that time, all efforts on the entire 40 acres have been devoted to developing the property for the annual show. Ogle further stated that oats were then growing on the property, which would be used for a threshing demonstration during the show. Plaintiff’s application also contained proof of its status as a tax-exempt organization under section 501(c)(3) of the Internal Revenue Code of 1939 (Code) (26 U.S.C. §501(c)(3) (1988)).

The Livingston County Board of Review recommended that the exemption be granted pursuant to section 19.10 of the Revenue Act of 1939 (Revenue Act) (see Ill. Rev. Stat. 1989, ch. 120, par. 500.10). The application was then submitted to the Department. On October 28, 1987, defendant Roger Sweet, who was then Director of the Department, sent a letter to the plaintiff denying its request for an exemption.

The cause proceeded to an administrative hearing, where plaintiff’s president and treasurer testified. Victor Opperman, plaintiff’s treasurer, testified that he has been associated with the plaintiff for approximately 30 years. He stated that the organization originated in 1949 as a reunion of old-time threshermen who displayed and demonstrated their steam-operated machinery. As time went on, the organization’s purpose broadened to include the goal of educating people about the methods and machinery used in threshing. Opperman stated that steam-powered threshing machines faded from use between 1910 and 1920, and newer generations were generally uneducated in the ways of the threshermen. The organization was incorporated in 1950 as a not-for-profit organization. The reunion has always had a flea market, at least for the sale of parts and tools related to the equipment, and a horse show has been part of the reunion for many years. However, Opperman testified that plaintiff was, in fact, a society for agricultural purposes and that the activities of the organization were always, for the most part, agriculturally oriented.

Opperman explained that plaintiff has had surplus funds from its reunion every year since 1980. These funds were obtained from membership fees, admission fees, the sale of certain goods, and from fees charged to campers, concessionaires, and flea-market vendors. The surplus funds were used to purchase the property for which the exemption was requested and to fund $86,000 in improvements made to the property. An additional $25,000, which was donated by a local trust, has also been used to finance improvements. Opperman stated that the property has been developed for the exclusive use of the plaintiff and its annual reunion and could no longer be used for agriculture or any other commercial purpose. The plaintiff has plans to improve the land further and may eventually add a museum to the site.

Carl Ogle, plaintiff’s president, described the buildings that were currently on the property. The site contains a 98-foot by 60-foot storage building, a toilet and shower facility, a 20,000-gallon water tank, a shed for the sawmill, a portable ticket gate at the front entrance, and a number of fire hydrants and light poles. Ogle also expressed plaintiff’s plans for further improving the property. Plaintiff does not charge admission for organized groups of senior citizens or field trips of school children who come to visit the reunion.

The administrative law judge (ALJ) found that plaintiff was neither a charitable organization nor a society organized for agricultural purposes. He further concluded that the parcel in question was not currently being used for agricultural or charitable purposes. The Department accepted the ALJ’s recommendation and denied plaintiff’s application for an exemption.

Plaintiff filed a complaint for administrative review. Following a hearing, the circuit court issued an order reversing the decision of the Department. The court found that plaintiff’s activities “from its inception until the present were agriculturally oriented.” Although the court recognized that plaintiff’s activities were focused on the historical and educational perspective of Illinois agriculture, it concluded plaintiff qualified for the exemption because the Illinois Constitution, statutes, and case law do not exclude historical enterprises. Defendants now appeal, contending the circuit court improperly reversed the Department’s decision.

When, as in this case, the facts upon which a decision of tax-exempt status rests are undisputed, whether property is exempt is a question of law. (Cook County Masonic Temple Association v. Department of Revenue (1982), 104 Ill. App. 3d 658, 660, 432 N.E.2d 1240, 1242.) While the Department’s determination is entitled to some deference, courts of review are not bound to give the same measure of deference to an administrative agency’s construction of a statute as is given to its findings of fact. (Nestle Co. v. Johnson (1979), 68 Ill. App. 3d 17, 20, 385 N.E.2d 793, 795.) A decision based upon an erroneous, arbitrary, or unreasonable construction of a statute cannot be allowed to stand. Harrisburg-Raleigh Airport Authority v. Department of Revenue (1989), 126 Ill. 2d 326, 331, 533 N.E.2d 1072, 1074.

Article IX, section 6, of the Illinois Constitution of 1970 provides:

“The General Assembly by law may exempt from taxation only the property of the State, units of local government and school districts and property used exclusively for agricultural and horticultural societies, and for school, religious, cemetery and charitable purposes. The General Assembly by law may grant homestead exemptions or rent credits.” (Ill. Const. 1970, art. IX, §6.)

To implement the above provision, the legislature has enacted section 19.10 of the Revenue Act, which provides tax-exempt status for “[a]ll property which may be used exclusively by societies for agricultural, horticultural, mechanical or philosophical purposes, and not for pecuniary profit.” (Ill. Rev. Stat. 1989, ch. 120, par. 500.10.) As applied to the instant case, section 19.10 sets forth three requirements for exemption: (1) the property in question must be owned by an agricultural society; (2) the property must be used exclusively for agricultural purposes; and (3) the property must not be used for pecuniary profit. We need only address the first two requirements of section 19.10.

Provisions granting tax exemptions are to be strictly construed in favor of taxation (see Harrisburg-Raleigh, 126 Ill. 2d at 331, 533 N.E.2d at 1074), and must come not only within the terms of the statute but also the authority given by the constitution. The burden of proving and establishing a right to exemption is upon the party seeking the exemption. (Harrisburg-Raleigh, 126 Ill. 2d at 331, 533 N.E.2d at 1074.) All facts are to be construed and all debatable questions resolved in favor of taxation. Every presumption is against the intention of the State to exempt property from taxation. It is therefore incumbent upon the plaintiff to show clearly that the organization and the use of its property come within the provisions of the statute and the constitution. Rogers Park Post No. 108 v. Brenza (1956), 8 Ill. 2d 286, 290-91, 134 N.E.2d 292, 295.

Plaintiff has cited no authority which suggests that an organization devoted exclusively to staging an historical display of farming equipment and methods qualifies as an “agricultural society.” Further, the few cases which have addressed the rationale for such an exemption indicate that the purposes of the constitution and statute would not be served by granting the plaintiff an exemption. In In re Application of County Treasurer (1977), 52 Ill. App. 3d 718, 720-21, 367 N.E.2d 1021, 1023, the Second District Appellate Court explained that the statutory exemption for agricultural societies was designed to promote the agricultural industry and thus aid the economic development of the State:

“Furthermore, the categories contained in article IX, section 6 of the Illinois Constitution of 1970 are all categories that the State has a legitimate interest in protecting and promoting through the granting of tax-exempt status. This is particularly true in the case of agriculture, which has played a preeminent role in the development of this State and which continues to play a vital role in the economic well-being of the State of Illinois. In this light, it is quite understandable why the people of the State of Illinois would empower their State legislature through the State constitution to grant tax-exempt status to societies that promote and perpetuate this vital Illinois industry. Section 19.10 of the Revenue Act of 1939 is consistent with the goal of promoting and perpetuating Illinois agriculture by granting tax-exempt status to the properties of agricultural societies so long as the property is not used for pecuniary profit.”

Similarly, in Assessors of West Springfield v. Eastern States Exposition (1950), 326 Mass. 167, 170, 93 N.E.2d 462, 464, the Massachusetts Supreme Court addressed the legislative purpose underlying the Massachusetts exemption for property held by agricultural societies, and stated, “Whatever aids agriculture helps to advance the health and prosperity of the Commonwealth. The Legislature for a century has held steadfast to the view that one important means of assistance is the exemption of all property of incorporated agricultural societies.”

Finally, under section 501(c)(5) of the Code (26 U.S.C. §501(c)(5) (1988)) and the applicable Treasury regulation, in order for the taxpayer to qualify for exemption as an agricultural organization, it must have as its purpose the betterment of agricultural working conditions, the improvement of the grade of agricultural products, or the development of a higher degree of efficiency in the occupation of farming or ranching. (Campbell v. Big Spring Cowboy Reunion (5th Cir. 1954), 210 F.2d 143, 145.) We note that plaintiff was granted a tax exemption by the Internal Revenue Service, but not as an agricultural organization. Plaintiff enjoys tax-exempt status under section 501(c)(3) of the Code, which exempts entities organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, as well as entities organized to foster national or international sports competition or to prevent cruelty to children or animals. 26 U.S.C. § 501(c)(3) (1988).

The foregoing authorities suggest that an agricultural society entitled to tax-exempt status is an organization which promotes the development and improvement of agriculture. The Department correctly concluded that an organization created for the sole purpose of displaying and demonstrating farming equipment from a bygone era does not qualify as an agricultural society under section 19.10. While the annual threshermen’s reunion is certainly of great historical and educational value, it does no more to promote Illinois agriculture than an antique automobile show would to promote the modern car industry. The Department also properly found that plaintiff’s land is used for an historical exhibition rather than an agricultural purpose and thus does not satisfy the second requirement of section 19.10. For these reasons, we reverse the order of the circuit court.

Reversed.

STEIGMANN and KNECHT, JJ., concur.


text:
    GARY WELLS et al., Plaintiffs-Appellees, v. ROBERT L. MINOR, Defendant and Third-Party Plaintiff-Appellant (Jerry Suttles, d/b/a Suttles and Pratt Concrete Contractors, Third-Party Defendant-Appellee).
    Fourth District
    No. 4—90—0679
    Opinion filed September 12, 1991.
    Rehearing denied October 17, 1991.

      Rammelkamp, Bradney, Dahman, Kuster, Keaton & Fritsche, P.C., of Jacksonville (Larry D. Kuster and Maria M. Gonzalez, of counsel), for appellant.
    Herring & Bell Law Offices, of Winchester (Lois A. Bell and Richard E. Mann, of counsel), for appellees Gary Wells and Debra Wells.
    Bellatti, Fay, Bellatti & Beard, of Jacksonville (Daniel J. Beard and Timothy E. Ruppel, of counsel), for appellee Jerry Suttles.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

On May 4, 1990, a jury sitting in the circuit court of Scott County found for plaintiffs Gary and Debra Wells and against defendant Robert Minor (Minor) in a breach-of-contract action involving the building of a house. Third-party defendant Jerry Suttles (Suttles) had earlier prevailed against Minor in a summary-judgment proceeding. On September 4, 1990, the court entered judgment for the plaintiffs in the amount of $39,580. Minor now appeals.

On April 13, 1989, plaintiffs filed a complaint for breach of contract in the circuit court of Scott County. The complaint was eventually amended and alleged that (1) on September 13, 1988, they and Minor entered into a contract to build a house; (2) plaintiffs have performed their obligation by making the required monthly partial payments; (3) Minor breached the contract in that construction was not performed in a workmanlike manner and was unsatisfactory; and (4) Minor abandoned the project without completing the house. The complaint pursued four grounds of recovery: count I sought the cost of repairs of the defects; count II sought the diminution in value of the house; count III sought the costs of completion of the house; and count IV sought loss of use of the house.

On September 15, 1989, Minor filed an answer and a counterclaim against plaintiffs. In the counterclaim, he alleged he did not finish the project because plaintiffs breached by failing to make the required contract payment, and that he has always been ready, willing, and able to complete the project. Minor sought damages of $32,416.14, which is the difference between the contract price and what plaintiffs had already paid.

On December 22, 1989, the court gave Minor permission to file a third-party complaint against Sutiles, which he did. On April 20, 1990, Sutiles filed a motion for summary judgment, asserting that Minor waived any claim against him. The circuit court agreed and entered judgment for Suttles on May 1,1990.

The jury trial commenced on May 2, 1990. The first witness was plaintiff Gary Wells. He stated that in September 1988 he entered into a contract with Minor for construction of a tri-level house with a basement under the ground-level portion. The contract required that the work be performed in a workmanlike manner and be completed within 90 days. The contract also provided that bills were to be supplied by the first day of the month, and that he was to make payment to Minor by the 10th day of each month.

The first bill he received was around November 2, 1988, in the amount of $7,136.50. This was for the foundation and basement floors. He paid it. The next bill he received was around December 5, 1988, in the amount of $24,978.36. This he also paid.

He first became concerned that there was a problem when the two-by-four framing was put up. He noted it just did not look right, and the walls looked crooked and bowed. He received the third bill around December 20, 1988, which was for $21,877.27. On December 30, 1988, he had a meeting with Minor at the building. They went through the house, and he told Minor his various concerns. Minor explained to him the foundation was out of square, and they tried to correct that when they built the frame on top of it.

Wells explained that the various problems with the house were as follows: (1) the floor in the garage was cracked into three pieces; (2) there was a water leak in the kitchen; (3) there was a water leak around the patio door; (4) the kitchen wall was out of plumb seven-eighths of an inch; (5) the wall between the kitchen and dining room was three inches off center; (6) the living room doorway was not square; (7) the wall between the stairs bowed out, as did the living room wall and several others; (8) various other walls are out of plumb and out of square; (9) the drywall was bulging on several walls; (10) the dirt beneath the patio had settled out; (11) the dirt under the sidewalk had settled out and the sidewalk was cracked; (12) two of the gabled ends of the house had bows in them; and (13) he was concerned that the siding should have lapped the other way. Minor refused to make the corrections and stopped work on the house. Wells did not pay the third bill.

Wells admitted he found the work generally acceptable as it proceeded. When he became concerned, he talked to Minor about the problems and asked to have them fixed. However, Minor stated he was not going to fix them and walked out. Wells obtained estimates on completion and repair of the house from three contractors, with Truman Short having the highest.

Dale Coffman was foreman of Minor’s crew on plaintiffs’ house. He explained that the house had an eight-foot basement and a four-foot basement. After these were poured, he measured them. The eight-foot basement was square. The four-foot basement was IV2 inches out of square. A wall in the four-foot basement was out of plumb. Also, on one wall, the comer was one inch higher than the rest of it. He stated the fact that the foundation was out of square is not a problem if the main part of the house is kept square as it is being built.

Truman Short has worked as a residential home builder for 41 years. He is familiar with the cost of material and labor in Scott County. He examined plaintiffs’ house to come up with an estimate to complete and repair the structure. His estimate was $29,929. He explained what items needed to be done to complete the house and what items needed repair. His examination revealed the foundation was out of square, and he stated he would not build on that foundation without a full renegotiation with the owner. If the foundation walls were out of plumb or had one side higher than the other he, as a builder, would have required them to be repoured. He can think of no way to repair the foundation without removing or replacing it. He also found that various aspects of the job were not performed in a workmanlike fashion.

Short admitted that concrete work can be difficult and sometimes can crack through no fault of anyone. He acknowledged it had been seven years since he had been a general contractor on a house. He also admitted that many times walls are slightly out of plumb, and this does not mean the work is unworkmanlike. However, he noted that in this case, they are more than slightly out of plumb.

John Rutherford is in the real estate business and has done appraisals for 15 years. The majority of his appraisals in recent years have been in Scott County. It was his opinion that if the house was completed and the defects fixed, it would have a fair market value of $62,500. If it was finished without fixing the defects, his opinion is that the value would be $42,000. It was his opinion the fair rental value of this house, if completed, would be between $400 and $450 per month.

Minor testified he is a builder, developer, and realtor, and that he has been involved in construction for more than 30 years. In September 1988 he signed a contract with Wells to build a tri-level home for $64,531. Construction began on September 27, 1988.

Suttles, the subcontractor, poured the foundation walls. The result was that one wall in the four-foot basement was out of plumb and out of square. Two other walls were out of plumb and one was out of level. Minor discovered this problem within a day or two of Suttles’ work. Minor explained that he has built 13 homes using the same design, and that in every home the walls were not exactly plumb. It is acceptable to continue building on the walls, as long as they are not so out of plumb as to cause a life-threatening situation. It was his opinion that the condition of these walls are not life threatening, and that the house would be structurally sound if built on them. He explained the walls would be straightened out by using furring strips when finishing the house, which is common practice.

After the problems were discovered, he met Gary Wells at the house and explained the problems. At one meeting, they discussed the lack of plumbness and, at another, they discussed the fact that the house was out of square. He told Wells they could either get the foundation repoured or work around it. He told Wells it would take time to get Suttles back to repour. Wells stated that he wanted to be in the house by Christmas. Minor told him they would have a hard time making the walls plumb, and that the rooms could only be made square by using thicker walls, which would reduce the amount of room space. Wells opted to proceed with the house.

Around the first of November 1988, Minor sent a bill to the plaintiffs for $7,136.50. This was for the footings, foundation, and basement floor. They paid on time, and he then paid Suttles. Minor stated that, at times, if the homeowner is unhappy with the work, he has held back a portion of the subcontractor’s pay as a settlement. If plaintiffs had complained about the foundation, he would not have paid Sutiles until the matter was resolved. On November 28, 1988, a second bill was sent to plaintiffs. This was paid on December 8, 1988. He gave them his third bill around December 20,1988.

Minor’s discussions with plaintiffs concerning the alleged defects culminated in a December 30, 1988, meeting. Minor had sent the bill on December 28, 1988, in response to a discussion he had with Robbie Barton, the drywall subcontractor. He had become concerned the plaintiffs were not going to pay his bill.

At the meeting on December 30, 1988, plaintiffs began by pointing out the defects of which they did not approve. Minor told them the problems could be repaired and explained how. He stated that if they paid his third bill, he would repair them at no cost. Plaintiffs told him their attorney had instructed them not to pay until all the repairs were done. He explained to them that payment was necessary to enable him to pay his suppliers. They did not seem concerned. Minor then left the job and did not go back. Minor never heard from the Wellses, nor did they pay the third bill. It was Minor’s opinion that all the repairs necessary could be reasonably made. He estimated it would take 10 days to complete the house and two days to make the repairs. He believed Short’s estimate was unreasonable, because it was too high and also included new items, such as storm doors, which were not listed in the original contract.

Henry Flitz works for Farmers Home Administration and has been making real estate appraisals during that time. He appraised the property at $89,747, which included the value of the land upon which the house is located. He allowed $2,000 for that, which leaves the house appraised at $87,747.

Thomas Chumley testified by evidence deposition that he has been involved in the construction business for 30 years. He examined the house and discussed the various necessary repairs. Generally, he felt that construction of the house was done in a workmanlike manner.

Robbie Barton, a drywall contractor, testified that he had some problems with the drywall because one room was not square. However, he explained that this is not uncommon. About a week before Christmas, he spoke with Gary Wells. Wells said he was going to make Minor sweat to get his money. Wells was mad at Minor over some allowances for cabinets. Barton told Minor of this conversation. He denied ever saying that this was the “crookedest” house he had worked on.

The jury found for plaintiffs, returning verdicts of zero dollars for cost of repair; $20,000 for diminution in value; $17,330 for cost of completion; and $4,500 for loss of use. At the post-trial motion hearing, the court lowered the cost-of-completion damages to $15,080, with all other damages staying the same. This appeal followed.

Minor raises three primary issues on appeal. He first maintains the jury was misinstructed as to the relevant measure of damages, due to the tendering of plaintiffs’ instructions and the denial of his own. He next maintains the jury’s verdicts were against the manifest weight of the evidence. He also maintains the court erred by granting Suttles his motion for summary judgment.

I. Jury Instructions: Preserving Claims Of Error

Initially, plaintiffs maintain the jury instruction arguments are waived. They observe it is well established that failure to object at trial to an asserted jury instruction waives the question. (People v. Huckstead (1982), 91 Ill. 2d 536, 543, 440 N.E.2d 1248, 1251; Malavolti v. Meridian Trucking Co. (1979), 69 Ill. App. 3d 336, 342, 387 N.E.2d 426, 430.) Further, the objection must be specific so as to inform the court of its basis. Malavolti, 69 Ill. App. 3d at 342, 387 N.E.2d at 430.

Admittedly, the record does not indicate a specific objection to the instructions, nor does it show most of the jury instruction conference. However, immediately prior to the instructions conference, the parties argued Minor’s motion for directed verdict. In that motion, Minor vigorously argued the issue concerning the proper measure of damages which he now pursues. We believe under the facts of this case, since it may be unrealistic to expect counsel to reargue issues the court had just denied, that application of the waiver doctrine is inappropriate. We note this entire question could have been avoided by a simple objection by counsel to the instructions without the need to re-argue the merits and, believing this is the better practice, we encourage counsel to do so in the future.

II. Instructions On Damages

On the merits, it is Minor’s contention that the jury was misinstructed as to the proper elements of plaintiffs’ damages. The jury was instructed that: (1) on count I, the appropriate measure was “the amount of money required to repair and correct the work which the defendant has performed”; (2) on count II, the appropriate measure was the diminished value of the house if it is completed with the present defects; (3) on count III, the appropriate measure was the amount of money which plaintiffs must expend to complete the house; and (4) on count IV, the appropriate measure was the reasonable rental value of a comparable house for the period of time during which plaintiffs were denied use of the new house.

Minor presents two basic arguments of error. The first is that the expression of the relationship between the costs of repair and diminution of value is improper. The second is that all the damages are subject to the contract price, and only those amounts which require plaintiffs to pay more than the contract price should be awarded.

A. Assessing Damages For Defects: The Cost of Repairs is the Proper Measure Unless it Exceeds Diminution-in-Value Figures Under Recognized Exceptions

It is Minor’s position, in regard to the cost-of-repair/diminution-in-value question, that the proper procedure in calculating damages is to look first to the cost of repair. Only in certain circumstances can the diminution in value be used. He maintains the jury was not so instructed, and this was error. He is correct.

In Park v. Sohn (1982), 89 Ill. 2d 453, 433 N.E.2d 651, the court addressed this very question. It stated:

“Here the plaintiffs brought an action seeking damages for defects found after the conveyance of the property. The recovery of damages is an appropriate remedy. The measure of damages should be the cost of correcting the defective conditions. If, however, [1] the defects could be corrected only at a cost unreasonably disproportionate to the benefit to the purchaser, or if [2] correcting them would entail unreasonable destruction of the builder’s work, the amount by which the defects have reduced the value of the property should be the measure of damages. See Mason v. Griffith (1917), 281 Ill. 246, 256; Witty v. C. Casey Homes, Inc. (1981), 102 Ill. App. 3d 619, 624-26; Hanavan v. Dye (1972) 4 Ill. App. 3d 576, 580.” (Park, 89 Ill. 2d at 464-65, 433 N.E.2d at 657.)

Thus, it is clear by this language that the appropriate recovery is first the cost of repairs, and that diminution in value is appropriate only in those two limited circumstances, i.e., only if exceeded by the cost of repairs. See also Village of Pawnee v. Azzarelli Construction Co. (1989), 183 Ill. App. 3d 998, 1022, 539 N.E.2d 895, 910; Brewer v. Custom Builders Corp. (1976), 42 Ill. App. 3d 668, 674, 356 N.E.2d 565, 570.

In the present case, the jury was instructed, in essence, that these were alternative means of calculating damages. In fact, plaintiffs’ counsel at argument explained that they were alternative means, and suggested that the jury select the diminution-in-value method of measuring damages because it was easier to calculate. At no time was the jury advised or instructed that it must first consider costs of repair, and that it could go to diminution of value only if it found (1) the cost of correcting the defects was unreasonably disproportionate to the benefit of the purchaser, or (2) if correcting the defects would entail an unreasonable destruction of the builder’s work. Thus, it is clear that the jury was misinstructed in this regard.

B. Calculating the Award of Damages: The Components of Damages in Relation to the Original Contract Price

This brings us to Minor’s second disagreement with the instructions the jury received. He maintains the jury should have been advised that plaintiffs are only entitled to damages for the cost of completion and for the cost of repair/diminution in value which cause them to pay money in excess of the contract price. Again, he is correct.

(1) Relating the Cost-of-Completion Component to the Original Contract Price

In Ross v. Danter Associates, Inc. (1968), 102 Ill. App. 2d 354, 370, 242 N.E.2d 330, 338, the court, in a case where the contractor failed to complete a facility, stated that the proper measure of damages was the difference between the contract price the contractor agreed to and the fair market cost of completing the project. (See also Herbert W. Jaeger & Associates v. Slovak American Charitable Association (1987), 156 Ill. App. 3d 106, 112, 507 N.E.2d 863, 867; Fisher v. Fidelity & Deposit Co. (1984), 125 Ill. App. 3d 632, 641-42, 466 N.E.2d 332, 339-40; Yonan v. Oak Park Federal Savings & Loan Association (1975), 27 Ill. App. 3d 967, 976, 326 N.E.2d 773, 780-81; Bertram v. Bergquist (1910), 153 Ill. App. 43, 45.) The Ross court stated:

“The following example may serve to illustrate the application of the rule. Suppose a contractor has agreed to build a building for an owner for $400,000. Suppose further the contractor has partially constructed the building and has received $200,000 and at this point refuses or is unable to continue the contract and is hence in breach of contract. Suppose, also, that at this point the reasonable cost of completing the building would be $300,000. In determining the damages sustained by the owner, the cost of performance would be, first, the amount paid to the contractor, $200,000, plus the cost of completion, $300,000, or a total of $500,000. The difference between this amount, $500,000, and the contract price $400,000, or $100,000, would be the damages sustained by the owner.” (Ross, 102 Ill. App. 2d at 370, 242 N.E.2d at 338.)

This is, of course, predicated on the well-accepted general rule that damages for breach of contract should place the party in the position he would have been had the contract been performed. See Laff v. John O. Butler Co. (1978), 64 Ill. App. 3d 603, 619-20, 381 N.E.2d 423, 435; Kalal v. Goldblatt Brothers, Inc. (1977), 53 Ill. App. 3d 109, 112, 368 N.E.2d 671, 673; Restatement (Second) of Contracts §347 (1981).

In the case at bar, the jury instructions regarding the cost of completion of the house do not include this limitation based upon the contract price. They simply state that plaintiffs are entitled to the costs of completion, which the instructions suggest are $15,080. This is obviously incorrect.

A review of the specifics in this case makes the error clearer. The contract price was $64,500 (for the sake of the discussion, all numbers have been rounded off). At the time of the breach, plaintiffs had paid $32,000. The $15,000 necessary to complete the house will clearly not put plaintiffs’ expenditures — for completion of the house alone — above the contract price. Thus, by the result in this case, plaintiffs are placed in a better position than they would have been in if no breach had occurred, since they will have a completed house at a cost to them of only $32,000, rather than the $64,500 contract price. A logical corollary to the general rule is the principle that the compensation awarded for breach of contract should not provide plaintiffs a windfall recovery. (Kalal, 53 Ill. App. 3d at 112, 368 N.E.2d at 674.) Here, that is clearly the result.

(2) Relating the Damages For Defects Component to the Original Contract Price

The next question is whether this contract price limitation applies also to the cost-of-repair/diminution-in-value damages. No court has directly answered this question. However, that is most likely due to the fact that in the normal case the cost-of-repair/diminution-in-value damages are always above and beyond the contract price. The reason they are not in the present case is because plaintiffs are getting the benefit of work from Minor for which they will not have to pay.

In answering the question, it is necessary to remember the general rule of damages, which is to place the party in the position he would have been in if the contract had been performed. Here, plaintiffs contracted to have this house completed in a workmanlike manner for $64,500. The damages for defects, i.e., the cost-of-repair/diminution-in-value damages, are necessary due to the fact that the house was not built in a workmanlike manner, and to either allow the corrections to be made (cost of repairs) or to compensate plaintiffs if they cannot be (diminution in value). Since these damages are necessary to place plaintiffs in the position they would have been in had the contract not been breached by the defective work, these damages must also be limited to the amount in excess of the contract price.

Thus, we find Minor’s arguments, i.e., that the instructions submitted were defective since they did not state that the cost-of-repair/ diminution-in-value damages and the cost-of-completion damages are limited to those in excess of the contract price, are meritorious.

III. Challenge To Verdicts As Against Manifest Weight Of The Evidence

Minor next argues the jury’s verdicts were against the manifest weight of the evidence. He observes, correctly, that it is the duty of this court to review the evidence and to reverse the verdicts of juries whenever we find such verdicts are clearly against the manifest weight of the evidence. See Fiore v. City of Highland Park (1968), 93 Ill. App. 2d 24, 37, 235 N.E.2d 23, 30.

Minor insists the amount of damages set for the cost of completion and loss of use is not supported by the evidence. The jury set the cost-of-completion damages at $17,300, which the court lowered to $15,080. This is well within the limits of the evidence, since Short’s estimate of completion and repair was $29,000. Similarly, the jury set the loss-of-use damages at $4,500. The evidence establishes the plaintiffs lost use of the house for 16 months and that, according to expert testimony, the rental value is $450 per month. Thus, again, the jury’s verdict is within the parameters of the evidence. Accordingly, since we cannot conclude these verdicts are clearly against the manifest weight of the evidence, we will not disturb them.

Minor also contends the jury verdict finding against his counterclaim is against the manifest weight of the evidence. He simply asserts it is clear that the plaintiffs did not pay the third payment. He observes it is well settled that failure to make installment payments on a contract constitutes a breach of contract. (See F.E. Holmes & Son Construction Co. v. Gualdoni Electric Service, Inc. (1982), 105 Ill. App. 3d 1135, 435 N.E.2d 724.) Accordingly, he believes he should have prevailed.

It is also established, however, that the issue as to which party breached the contract is a question for the trier of fact, and its finding will not be disturbed unless it is against the manifest weight of the evidence. (Gualdoni Electric, 105 Ill. App. 3d at 1140, 435 N.E.2d at 727.) In the present case the contract provided that bills were due by the first of each month and that plaintiffs did not have to pay until the 10th of that month. Therefore, even though Minor submitted the bill early, payment was not due until January 10. The jury could have reasonably concluded that Minor walked off the job prior to that time and that Minor therefore breached the contract.

IV. Propriety Of Summary Judgment On Third-Party Complaint: Waiver By Acceptance Of Work And Payment Therefor Without Reservation

Minor next argues the court erred by granting Suttles’ motion for summary judgment and entering judgment for Suttles on Minor’s third-party complaint. In that complaint, Minor alleged that he retained Suttles to pour the concrete foundation and that any recovery plaintiffs would be entitled to would be due, in part, to the defective work of Suttles. Accordingly, Minor sought indemnification or contribution from Suttles for any recovery.

It was Suttles’ position in his motion that Minor had accepted the work and waived any allegation concerning defective work because Minor paid him (Suttles) in full without complaint, even though Minor knew the walls were not plumb and were out of square. After a hearing, the court entered an order concluding that by paying Suttles and proceeding with construction on the foundation Minor had, in fact, waived any recovery. Accordingly, it entered judgment for Suttles.

It is well established that summary judgment should be granted only when the pleadings, depositions, and admissions, together with any affidavits, show there is no genuine issue as to a material fact and that the movant is entitled to judgment as a matter of law. (Clifford-Jacobs Forging Co. v. Capital Engineering & Manufacturing Co. (1982), 107 Ill. App. 3d 29, 33, 437 N.E.2d 22, 25.) The reviewing court will reverse the order granting summary judgment if it determines that a genuine issue of a material fact does exist. Casteel v. Smith (1982), 109 Ill. App. 3d 1094, 1099, 441 N.E.2d 860, 863.

In the present case, Suttles relied on a portion of Minor’s deposition and upon his own affidavit. In his affidavit, Suttles averred that he completed his work on October 22, 1988; submitted his bill on November 2, 1988; and was paid in full on November 12, 1988. In his deposition, Minor acknowledged that (1) he discovered the foundation problems within two or three days of its being poured; (2) it is common for walls to be slightly out of plumb and square; (3) he spoke with plaintiffs about the problem, discussed tearing the foundation out and having it repoured, but they decided to build on top the foundation; and (4) he accepted Suttles’ work and paid for it without decreasing the amount for poor workmanship. In his affidavit, Minor stated that the sole reason he paid Suttles was that Suttles’ work had been accepted by the plaintiffs and they had paid him.

Waiver is either an express or implied voluntary and intentional relinquishment of a known and existing right. (Wald v. Chicago Shippers Association (1988), 175 Ill. App. 3d 607, 621, 529 N.E.2d 1138, 1147; Whalen v. K mart Corp. (1988), 166 Ill. App. 3d 339, 343, 519 N.E.2d 991, 994.) An implied waiver of a legal right may arise when conduct of the person against whom waiver is asserted is inconsistent with an intent to enforce that right. (Wald, 175 Ill. App. 3d at 621, 529 N.E.2d at 1147; Whalen, 166 Ill. App. 3d at 343, 519 N.E.2d at 994.) A party to a contract may not lull another into false assurance that strict compliance with a contract duty will not be required and then sue for noncompliance. (Whalen, 166 Ill. App. 3d at 343, 519 N.E.2d at 994.) The analysis properly focuses on the intent of the nonbreaching party and, if he has intentionally relinquished a known right, either expressly or by conduct inconsistent with an intent to enforce that right, he has waived it and may not thereafter seek judicial enforcement. (Whalen, 166 Ill. App. 3d at 343, 519 N.E.2d at 994.) Where there is no dispute as to the material facts and only one reasonable inference can be drawn from them, the question of waiver is a matter of law. Wald, 175 Ill. App. 3d at 621, 529 N.E.2d at 1147-48.

We conclude that the trial court was correct in concluding that Minor, by his payment to Suttles, waived any complaint he had. The summary-judgment evidence established that Minor knew of the defects within several days of the walls being poured. He met with plaintiffs and discussed having the walls torn down and repoured. However, they decided to build on them as they were. Minor then paid Suttles’ bill without complaint. Minor never held money back, had Suttles come to the site, or notified Suttles that this payment was not releasing him from responsibility for these defects. Thus, the evidence establishes that Minor knew of the alleged breach, decided not to take action, continued construction, and paid the bill. This supports the court’s decision.

V. Summary

Accordingly, we conclude that the court properly granted Suttles’ motion for summary judgment, and that the jury’s verdicts are not against the manifest weight of the evidence.

We also conclude, as discussed, that the jury instructions were deficient. However, having concluded the jury was misinstructed regarding the relationship between cost-of-repair and diminution-in-value damages does not necessitate, in this case, reversal and remandment. As noted, the exceptions to the cost-of-repair damages are if “the defects could be corrected only at a cost unreasonably disproportionate to the benefit to the purchaser, or if correcting them would entail unreasonable destruction of the builder’s work.” (Park, 89 Ill. 2d at 464, 433 N.E.2d at 657.) Here, the testimony of various witnesses clearly established that the foundation is not plumb or square. Short testified this defect could only be corrected by removing the foundation and pouring a new one. While Minor’s witnesses testified they could correct several defects, it is clear they cannot correct the foundation problem without doing as Short suggests. Accordingly, we conclude the evidence established that an exception to the general rule should apply, and the proper measure of damages in this regard is the diminution-in-value measure. Since this was the amount awarded, we need not remand, even though the jury was misinformed as to how to reach this conclusion.

This leaves us with the question of what redress is needed due to the instruction’s failure to limit the recovery for cost of completion and diminution in value by the contract price. As explained earlier, the proper calculation would be the damages for breach (the amount plaintiffs paid Minor, plus the cost of completion), plus the damages for defects (here, the diminution in value). Plaintiffs are then entitled to only that amount of this total which is above the contract price. They are also entitled to the loss-of-use damages. In this case, the calculations show:

Cost of completion $15,080 Amount plaintiffs paid 32,114.86 Diminution of value 20,000 $67,194.86 Minus contract price -64,531 Amount above contract price $ 2,663.86 Plus loss of use + 4,500 Amount of damages $ 7,163.86

Thus, plaintiffs are properly entitled to damages of $7,163.86. Accordingly, we vacate the judgment of $39,580 entered in favor of plaintiffs against Minor, and remand with directions that the trial court enter a judgment in plaintiffs’ favor of $7,163.86.

Affirmed in part; vacated in part and remanded with directions.

SPITZ and McCULLOUGH, JJ., concur.


author: PRESIDING JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MATTHEW TAYLOR, Defendant-Appellant.
    Third District
    No. 3—90—0287
    Opinion filed September 6, 1991.
    Stephen Omolecki, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Jay Paul Hoffman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

Following a bench trial, the defendant, Matthew Taylor, was convicted of involuntary manslaughter (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 3). He was subsequently sentenced to a two-year term of imprisonment. He appeals, and we reverse.

The record shows that codefendants Leon DeRouin and Kevin DeLorenzo dropped several pieces of concrete from the Stuenkel Road overpass, one of which struck a vehicle and killed Charles Layfield. The defendant was convicted of the crime under an accountability theory.

DeLorenzo testified that on November 24, 1988, he picked up both DeRouin and the defendant. He stated that they had no destination in mind and no specific activities planned. They drove around awhile and then stopped to get something to eat. Thereafter, they went to the Stuenkel Road overpass, where the defendant got out of the car to go to the bathroom. The defendant then returned to the car and sat in the back seat. As the defendant sat there, DeLorenzo and DeRouin collected some rocks and proceeded to drop them off the overpass.

DeLorenzo also testified that he did not recall the defendant saying anything when he and DeRouin returned to the car. In addition, he stated that on a few occasions in the past when he and DeLorenzo had thrown rocks off overpasses the defendant was with them but he never participated.

DeRouin testified that he was with the defendant and DeLorenzo on November 24, 1988. They were just driving around with no destination in mind. He stated that prior to going to the Stuenkel Road overpass they went to the Harlem Road overpass, where he and DeLorenzo dropped rocks onto the highway. The defendant stayed in the car. When they left the Harlem overpass, he asked DeLorenzo where they were going, to which DeLorenzo replied, “We’ll see when you get there.”

DeRouin stated that they then proceeded to the Stuenkel Road overpass. Once there, the defendant got out of the car to go to the bathroom. When he returned to the car, he sat in the back seat while DeRouin and DeLorenzo dropped rocks off the overpass.

In addition, DeRouin testified that upon returning to the car the defendant asked them if they had hit anything. DeRouin noted that the next day, while driving past a viaduct, the defendant said, “This is stupid, one of these days we’re going to end up hurting someone.” Finally, DeRouin stated that while he, DeLorenzo, and another friend had thrown rocks from bridges on a few occasions, the defendant had thrown something only once.

Other evidence showed that the three of them got together about two to three times a week. On these occasions, they engaged in various activities, such as bowling, playing pool, or just driving around. The evidence also showed that the car in which the defendant sat was a Camaro with tinted windows.

On appeal, the defendant argues that he was not proven guilty beyond a reasonable doubt of involuntary manslaughter based on an accountability theory. Specifically, he contends that the State failed to show that he had any plan to commit the offense or that he intended to promote or facilitate the commission of the offense.

To convict a person of an offense on a theory of accountability, the State must prove beyond a reasonable doubt that: (1) the defendant solicited, aided, abetted, agreed or attempted to aid another person in the planning or commission of the offense; (2) this participation took place either before or during the commission of the offense; and (3) the defendant had the concurrent, specific intent to promote or facilitate the commission of the offense. (People v. Schlig (1983), 120 Ill. App. 3d 561, 458 N.E.2d 544.) Furthermore, criminal responsibility may not be imposed simply through guilt by association, nor by the defendant’s mere presence at the scene, nor even by the defendant’s knowledge that the offense is being committed. People v. Walker (1976), 44 Ill. App. 3d 494, 358 N.E.2d 672.

Here, we find that the State failed to prove beyond a reasonable doubt that the defendant intended to promote or facilitate the commission of the offense. The evidence only established that he was present at the scene and that he associated with the perpetrators. No evidence was presented showing that he in any way aided or participated in the commission of the offense.

The State argues, however, that the defendant’s guilt was established by showing he was engaged in a common criminal design. It notes that pursuant to the underlying intent of the accountability statute, if the circumstances disclose there is a common design to do an unlawful act to which all assent, the act of one is the act of all. People v. Duncan (1985), 133 Ill. App. 3d 489, 478 N.E.2d 1125.

At this point, we would note that all of the common design cases cited by the State involved situations where the defendant himself either actively participated in the offense or was involved in the planning process. Or they showed that the defendant was engaged with others in some sort of illegal activity prior to the group committing the offense for which he was found guilty.

Here, for the State to show that the defendant was part of a group bent on illegal acts, it had to establish that he knew about the criminal scheme. The State argues that evidence of a common scheme was introduced through the testimony of DeRouin. We disagree and find that the State failed to provide sufficient evidence to show that the defendant was engaged in a common criminal scheme.

Although DeRouin testified that they had gone to the Harlem Road overpass prior to going to Stuenkel Road, his testimony was insufficient to establish the defendant’s guilt since it was contradicted by the testimony of DeLorenzo. (People v. Newell (1984), 103 Ill. 2d 465, 469 N.E.2d 1375 (The uncorroborated testimony of one accomplice is insufficient to prove guilt if contradicted by the testimony of another accomplice).) As such, DeRouin’s uncorroborated testimony failed to show that the defendant was engaged in a criminal scheme.

In the case at hand, there appears to have been no common design to commit a criminal offense. Both codefendants testified that when they got together that evening they had no plans. They were just driving around talking and had no destination in mind. No evidence was presented showing that the defendant knew where they were going or that he knew his friends might drop rocks off an overpass.

In addition, no evidence was presented showing that this group only got together to engage in illegal activities. In fact, the evidence showed that they often got together to go bowling, go out to eat, shoot pool, or to just drive around and talk.

Therefore, considering all the evidence, we find that it was insufficient to establish beyond a reasonable doubt the defendant’s accountability for the crime committed by his codefendants.

The judgment of the circuit court of Will County is reversed.

Reversed.

GORMAN and SLATER, JJ., concur.


author: JUSTICE SLATER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES CLARENCE ERNST, Defendant.
    Third District
    No. 3—90—0505
    Opinion filed August 28, 1991.
    Rehearing denied October 10, 1991.

      Joseph M. Gibson, of Peoria, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (Jay Paul Hoffman, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

Defendant James Ernst was convicted of unlawful delivery of a controlled substance (Ill. Rev. Stat. 1989, ch. bQVz, par. 1401(a)(2)) and armed violence (Ill. Rev. Stat. 1989, ch. 38, par. 33A— 2). Defendant raises the following issues on appeal: (1) that the trial court erred in denying defendant’s request for a jury of six persons; (2) that the defendant was not proved guilty beyond a reasonable doubt; (3) that the court erred in refusing to instruct the jury regarding unlawful delivery of a look-alike substance; (4) that the court erred in instructing the jury on accountability; (5) that certain comments by the prosecutor denied the defendant a fair trial; and (6) that the defendant’s sentence was excessive. We affirm.

We first address the defendant’s contention that the trial court erred in denying his oral motion, made just prior to the selection of the jury, that defendant be allowed to proceed with a jury comprised of 6, rather than 12, jurors. The State objected, and although the court found that defendant was knowingly and voluntarily waiving his right to a 12-member jury, it denied the defendant’s motion.

The defendant relies primarily on People ex rel. Daley v. Joyce (1988), 126 Ill. 2d 209, 533 N.E.2d 873, which held that certain amendments to section 115 — 1 of the Code of Criminal Procedure of 1963 (the Code) (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 1) were unconstitutional. These amendments provided that under certain circumstances a defendant could not waive trial by jury unless the State agreed to such a waiver. The court’s holding was based upon its interpretation of article I, section 13, of the Illinois Constitution. (Ill. Const. 1970, art. I, §13 (“The right of trial by jury as heretofore enjoyed shall remain inviolate”).) The court found that the phrase “as heretofore enjoyed” referred to the common law right to a jury trial as enjoyed at the time of the adoption of the 1970 Constitution. After reviewing the case law involving a defendant’s right to waive a jury, the court stated:

“The dimension of our constitutionally protected right to a trial by jury under the 1870 constitution [when the phrase ‘as heretofore enjoyed’ was first inserted] is clear *** and clearly encompassed the right of an accused to waive trial by jury. That right, as it was understood and enjoyed by the people of this State *** was adopted and incorporated in our 1970 constitution. Short of a constitutional amendment to that effect, the legislature cannot now deprive an accused in Illinois of any part of that constitutionally protected right.” Joyce, 126 Ill. 2d at 222, 533 N.E.2d at 879.

The defendant maintains that Joyce stands for the proposition that “the mode of trial is completely within the discretion of the [defendant, and that the State has no right, nor can one be created for it, to dictate the mode of trial.” The State, underscoring the obvious, responds that Joyce did not address the issue of whether a defendant has the right to decide the number of jurors. The State also points out that section 115 — 4(b) of the Code provides that a jury “shall consist of 12 members” (Ill. Rev. Stat. 1989, ch. 38, par. 115— 4(b)) and that the use of the term “shall” indicates that this requirement is mandatory. However, as the committee comments to that section clearly indicate:

“Since the defendant may waive his constitutional right to a jury trial he may waive any part of such a right and agree to a trial by a jury of less than twelve members [citation]. There is no intent to lessen or abrogate that right in subsection (b).” Ill. Ann. Stat., ch. 38, par. 115 — 4(b), Committee Comments, at 21 (Smith-Hurd 1990).

Moreover, although cited by neither the defendant nor the State, our research has revealed a number of cases in which it has been held that a defendant may waive his right to a jury of 12 and proceed with a lesser number of jurors. (See People v. Pierce (1938), 369 Ill. 172, 15 N.E.2d 845 (11 jurors); People v. Scudieri (1936), 363 Ill. 84, 1 N.E.2d 225 (same); People v. Bragg (1988), 176 Ill. App. 3d 1080, 531 N.E.2d 821 (six jurors); People v. Burries (1986), 144 Ill. App. 3d 138, 494 N.E.2d 750 (11); People v. Quinn (1977), 46 Ill. App. 3d 579, 360 N.E.2d 1221 (six); see also People v. Mayden (1979), 71 Ill. App. 3d 442, 389 N.E.2d 901 (11).) None of these cases, however, is dispositive of the question of whether the defendant has the right, over the State’s objection, to insist on a partial jury waiver.

Although the argument that a defendant's absolute right to waive a trial by jury necessarily includes an absolute right to a partial jury waiver has some superficial attraction, it does not withstand closer analysis. The right to a jury trial guaranteed by the Illinois Constitution is not the right to a jury comprised of 6 or 11 or 3 or 30. It is the right to a trial by jury “as heretofore enjoyed” (Ill. Const. 1970, art. I, §13), which has, since as far back as the tenth century (Ill. Ann. Stat., ch. 38, par. 115 — 4, Committee Comments, at 21 (Smith-Hurd 1990)), been commonly understood to mean a jury of 12 (see People v. Kolep (1963), 29 Ill. 2d 116, 193 N.E.2d 753). While the defendant’s ability to waive this right may not be abridged (Joyce, 126 Ill. 2d 209, 533 N.E.2d 873), it does not give rise to the power to dictate the number of jurors. Neither the right to a particular form of trial nor the concomitant power to waive that right creates a right to a wholly different form of trial. We hold, therefore, that the trial court did not err in denying defendant’s motion for a six-member jury.

In addition, even if we were to find that the trial court erred in denying defendant’s motion, we would not reverse the defendant’s convictions. Defendant has not explained how he was prejudiced by having a jury of 12, rather than the 6 he requested, act as the trier of fact. A conviction will not be reversed where it does not appear that justice has been denied or that a finding of guilt resulted from an error. (People v. Richardson (1988), 123 Ill. 2d 322, 528 N.E.2d 612.) We conclude that any prejudice suffered by the defendant is purely speculative.

The defendant next contends that he was not proved guilty beyond a reasonable doubt. Bill Merrill, a Fulton County deputy sheriff assigned to the Multi-County Narcotics Enforcement Group (MEG), testified that he and a confidential source, J.C., went to the parking lot of a laundromat in Peoria County on November 28, 1989, to purchase an ounce of cocaine. The defendant got out of his truck and entered Merrill’s car. Defendant produced a plastic bag containing a white powdery substance, and Merrill told the defendant that he wanted to test it. The defendant told Merrill that his companion in the truck had a smaller quantity which he could test, but Merrill told defendant that he would test the larger bag. Defendant and J.C. then exited the car while Merrill tested the powder, which gave a “partial positive” reaction for the presence of cocaine. Merrill then got out of his car and spoke briefly with defendant before other police officers arrived and arrested the defendant and his companion, Michael Linwood. Merrill also testified that six days earlier the defendant had sold him an ounce of what was purported to be cocaine but which turned out not to contain any drugs.

Daniel Brotz, a police officer assigned to MEG, testified that he interviewed the defendant after his arrest. According to Brotz, the defendant told him that his companion, Linwood, had instructed the defendant to deliver a bag of cocaine to Merrill.

Jerry Wolland, also assigned to MEG, testified that he searched the defendant’s truck and found a loaded pistol underneath the seat on the passenger side. Officer John Bennett also participated in the search, and he found a small bag of suspected cocaine in the bed of the truck. Robert Thompson, a friend of the defendant, testified that the defendant came to his house on November 28 and Thompson gave the defendant a gun.

Charles Schofield, director of MEG, testified that after his arrest the defendant told him that he didn’t feel that he was in any trouble because there wasn’t any cocaine involved in the deal. Defendant also told Schofield that the sale was Linwood’s idea. Defendant admitted that he obtained the gun found in the truck but claimed that he gave it to Linwood and had no control over it.

J.C., the confidential informant, testified that Chuck Barnes, who had previously sold him some cocaine, referred J.C. to the defendant as someone who could supply larger amounts of cocaine. J.C. stated that he called the defendant many times regarding purchasing an ounce of cocaine and that all of his dealings were with the defendant and not with Linwood. J.C. and Merrill purchased an ounce of white powder from the defendant and Linwood on November 22 for $1,700, which J.C. later learned did not contain cocaine.

Denise Vaughn, a chemist, testified that the bag of powder delivered by the defendant on November 28 contained 28.1 grams of a substance containing cocaine. The substance contained approximately 3% cocaine. The smaller bag found in the defendant’s truck contained 0.2 grams of a substance containing cocaine but it was not tested for purity due to the small amount involved.

The defendant testified that he was present when Chuck Barnes sold cocaine to J.C. and that Barnes introduced the defendant to J.C. at that time. Defendant stated that J.C. called him on his beeper and they discussed the price of an ounce of cocaine, but defendant maintained that it was Linwood who set the price and who claimed that he could supply larger amounts of cocaine. According to defendant, he and Linwood mixed together a bag of Bisquick, aspirin, Tylenol, and baking soda which defendant delivered to J.C. and Merrill on November 22. Defendant stated that he received only $25 of the $1,700 which was paid for the ersatz cocaine.

Defendant further testified that J.C. contacted him repeatedly on November 28 seeking more cocaine. Defendant picked up Linwood, who had a bag of white powder which defendant said he presumed was more phony cocaine. They then went to defendant’s house to add more Bisquick because the package looked small. Defendant claimed that he did not think there was any cocaine in the bag. Defendant and Linwood then drove to Wayne Thompson’s house, which was directly across from the laundromat. Defendant got a gun from Thompson, returned to his truck and gave the gun to Linwood. After Merrill and J.C. arrived, defendant delivered the package and was subsequently arrested. Defendant stated that the small bag of cocaine found in the bed of the truck did not belong to him. Defendant testified that Linwood told him that he had a smaller bag which the buyers could test if they wanted, but defendant did not know what was in the smaller bag. As related earlier, the jury found the defendant guilty of unlawful delivery of a controlled substance and armed violence.

Defendant’s reasonable doubt argument is twofold. First, he claims that there was insufficient evidence that he knowingly delivered cocaine. Defendant points out that the first delivery of purported cocaine did not contain any drugs and that he testified that he believed that the second delivery similarly involved only harmless substances. He also contends that the small amount of cocaine contained in the second mixture and his statement after his arrest that he wasn’t in trouble because no cocaine was involved in the deal are additional evidence that he had no knowledge of the presence of cocaine. Defendant also maintains that his statement to Officer Brotz that Linwood had told him to deliver the cocaine was simply a misstatement.

Knowledge in cases such as this is rarely susceptible of direct proof, and it may be proved by evidence of acts, statements, or conduct of the defendant from which an inference of knowledge may be fairly drawn. (People v. Chicon (1977), 55 Ill. App. 3d 100, 370 N.E.2d 605.) Although defendant denied knowing about the cocaine and argues that his reference to cocaine was a misstatement, it is the function of the jury to determine the credibility of the witnesses, and they are not required to accept the defendant’s exculpatory testimony. (People v. Morrison (1988), 178 Ill. App. 3d 76, 532 N.E.2d 1077; People v. Freeman (1988), 167 Ill. App. 3d 740, 521 N.E.2d 1191; Chicon, 55 Ill. App. 3d 100, 370 N.E.2d 605.) In addition to defendant’s reference to cocaine, Officer Merrill testified that he asked the defendant to leave Merrill’s car while he tested the substance the defendant had delivered to him. Since defendant left the car and remained nearby, the jury could have reasonably drawn the inference that the defendant was confident that the substance that he delivered would test positive for the presence of cocaine. After viewing the evidence in the light most favorable to the prosecution (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267), we believe that there was sufficient evidence for the jury to find that the defendant was aware that he was delivering cocaine.

Second, defendant contends that he was not “armed” with a pistol because he had given it to Linwood and defendant was not near it when he delivered the cocaine. Defendant’s argument, however, misapprehends the basis of his armed violence conviction. As stated in the indictment, the predicate felony for the armed violence charge was not the delivery of the cocaine, but was instead the possession of cocaine while armed with a weapon. The evidence clearly showed that defendant procured the gun and gave it to Linwood while they waited in defendant’s truck for Merrill and J.C. to arrive. Linwood was then in possession of both the large and small bags of cocaine. Based on the evidence, the jury could properly find the defendant guilty of armed violence on a theory of accountability. A person is legally accountable for the acts of another if he elicits, aids, abets, agrees, or attempts to aid another in the planning or commission of an offense, before or during the commission of the offense, with the concurrent specific intent to promote or facilitate the commission of that offense. (People v. Harris (1990), 198 Ill. App. 3d 1002, 536 N.E.2d 709.) The evidence was more than sufficient to support a finding that the defendant aided Linwood in committing armed violence by providing him with a loaded pistol while knowing that he was in possession of cocaine.

Defendant next contends that the trial court erred in refusing to give a proposed jury instruction regarding the “lesser included offense” of unlawful delivery of a look-alike substance. Although a defendant is entitled to appropriate jury instructions which present his theory of the case when such theories are supported by the evidence, instructions which inject unnecessary issues into a case are properly refused. (People v. Hoyt (1989), 180 Ill. App. 3d 863, 536 N.E.2d 472.) A look-alike substance is by definition a substance “other than a controlled substance.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 56V2, par. 1102(y).) Both the package delivered to Merrill by the defendant and the smaller package found in the defendant’s truck contained cocaine. Therefore, to instruct the jury that they could find the defendant guilty of delivery of a look-alike substance would have been contrary to the evidence and confusing to the jury. We find no error.

Defendant next maintains that the trial court erred by instructing the jury regarding accountability. We have already found that the jury could properly find the defendant guilty of armed violence on the basis of accountability. With respect to the unlawful delivery charge, although the evidence suggests that defendant acted as a principal, there was also evidence that he and Linwood planned and executed the delivery together. Evidence which shows that the defendant acted as a principal and also assisted another in committing an offense authorizes giving instructions based on both principal and accountability theories. (People v. Faysom (1985), 131 Ill. App. 3d 517, 475 N.E.2d 945.) Moreover, any possible error in giving an unsupported accountability instruction is harmless where the evidence is sufficient to prove defendant’s guilt as a principal. Morrison, 178 Ill. App. 3d 76, 532 N.E.2d 1077.

Defendant next argues that references by the prosecutor in closing arguments to Chuck Barnes, the person who introduced the defendant and J.C., as a drug dealer denied the defendant a fair trial. The defendant did not object to these comments and thereby failed to preserve them for review. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124; People v. Olinger (1986), 112 Ill. 2d 324, 493 N.E.2d 579.) Defendant also contends that J.C. should not have been allowed to testify that Barnes had sold him drugs. Although the defendant objected, no grounds for the objection were specified. Following a discussion off the record, the trial court allowed the testimony, stating:

“Just to make clear, although there’s been no formal objection at this time, there should be additional foundation on this as to time, place, that type of thing.”

Based on the court’s comment, it appears that defendant withdrew his objection, and therefore any alleged error has been waived.

In any event, we discern no significant prejudice to defendant from either J.C.’s testimony or the prosecutor’s comments. The defendant himself testified under direct examination that he was introduced to J.C. by Barnes when Barnes sold J.C. some cocaine. The prosecution was entitled to argue that Barnes was a drug dealer on the basis of this evidence alone. (Collins, 106 Ill. 2d 237, 478 N.E.2d 267 (prosecution is entitled to argue any logical inference that can be drawn from the evidence).) We find no error.

Finally, defendant maintains that the sentences imposed are excessive and should be reduced. Defendant was sentenced to 12 years’ imprisonment for unlawful delivery of a controlled substance and received a concurrent 10-year term for armed violence. Defendant contends that the trial court ignored several mitigating factors, including the fact that his conduct was induced or facilitated by Linwood (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.1(a)(5)) and that imprisonment would entail excessive hardship to his wife and two children (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.l(a)(ll)).

The trial court is charged with the task of fashioning a sentence which strikes the appropriate balance between the protection of society and rehabilitation of the defendant (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541), and that determination will not be disturbed absent an abuse of discretion (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882). The court is not obligated to recite and assign value to each factor presented at a sentencing hearing. (People v. Plantinga (1985), 132 Ill. App. 3d 512, 477 N.E.2d 1299; People v. Baker (1983), 114 Ill. App. 3d 803, 448 N.E.2d 631.) It is presumed that the court considered any mitigating evidence absent some indication, other than the sentence itself, to the contrary. (People v. Sawyer (1985), 139 Ill. App. 3d 383, 487 N.E.2d 662, aff'd (1986), 115 Ill. 2d 184, 503 N.E.2d 331.) It is clear from the court’s comments that it weighed and considered both the mitigating and aggravating factors, and we will not substitute our judgment for that of the trial court. Cox, 82 Ill. 2d at 280, 412 N.E.2d at 547.

The defendant also contends that the court erred in considering the presence of a weapon as an aggravating factor in imposing sentence for unlawful delivery of a controlled substance. A sentencing court may, of course, consider as a factor in aggravation that the defendant’s conduct caused or threatened serious harm (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.2(a)(1)), and the trial court was clearly concerned with the potentially dangerous situation created when defendant obtained a gun shortly before the drug deal was to occur. Defendant argues, however, that sentencing the defendant for armed violence and then using the presence of a weapon as an aggravating factor in the separate conviction for unlawful delivery “amounts to penalizing the [defendant] twice for the same offense.” We disagree.

We must again emphasize that the defendant was convicted of two separate offenses. The armed violence conviction was based on the possession of cocaine while armed with a gun. The court expressly did not consider the presence of a weapon as an aggravating factor for that offense because it recognized that “the legislature took that into account by making that a Class X felony.” The court did, however, find that the defendant’s conduct in procuring a firearm created an “explosive situation” threatening serious harm and the court found that to be an aggravating factor in the delivery of the cocaine. The defendant has not, as he suggests, been punished twice for the same offense, but was instead sentenced for separate acts. (See People v. Green (1990), 199 Ill. App. 3d 927, 557 N.E.2d 939.) We find no error, nor do we find any abuse of discretion by the trial court.

For the reasons stated above, we affirm the judgment and sentence of the the circuit court.

Affirmed.

BARRY and HAASE, JJ., concur.


author: JUSTICE BARRY

text:
    MARY A. ELMORE, n/k/a Mary A. Leeper, Plaintiff-Appellant, v. THOMAS E. ELMORE, Defendant-Appellee (Donald Austin et al., Defendants).
    Third District
    No. 3—90—0612
    Opinion filed August 28, 1991.
    Modified on denial of rehearing October 10, 1991.

      Hafele, Thiemann & Carter, of Peoria (James L. Hafele, of counsel), for appellant.
    Frank M. Piel, of Peoria, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

Plaintiff Mary A. Elmore (now Leeper) appeals from the dismissal of three counts of her amended complaint against her former husband, Thomas Elmore, in a post-judgment proceeding to challenge an order for modification of property distribution.

Following the parties’ dissolution of marriage, an agreed judgment was entered in the circuit court of Peoria County in January of 1984 providing, inter alia, that Mary would have title and possession of the marital home and custody of the couple’s three children, and that when the youngest child reached age 18, the home would be sold, with Thomas to receive $35,000 of the proceeds and Mary to receive the balance. (In July of 1983, the home had been appraised at $120,000.) The parties divided their debts and other assets with Mary receiving $24,000 for her shares of stock in Thomas’ business. Thomas also agreed to pay Mary an additional $7,200 in monthly installments of $300 and to pay 32% of his net income as child support.

In November of 1984 both parties came back into the circuit court when Thomas filed a petition for modification, Mary filed her entry of appearance and waiver, and both parties assented to a “Stipulated Judgment of Modification.” The modification recited that, “as admitted by both parties, there has been a substantial change of circumstances upon which to base this modification.”

The modified judgment provided that Thomas was to have full control of the marital residence and that Mary was to quitclaim her interest to Thomas. Mary’s marital equity in the residence was to be reduced by $18,265.04 and Thomas’ equity was to be increased by that amount to $53,265.04, $18,265.04 being the amount of Mary’s debts which Thomas assumed. It was further provided that when the youngest child reached the age of 18, the premises would be sold “within a reasonable amount of time at a reasonable purchase price” and the parties’ marital equity would be satisfied in accordance with the modification of judgment.

In February of 1985 Mary filed a motion to vacate the stipulated judgment of modification on the grounds that it was unconscionable, inequitable, unfair and fraudulently induced. The motion was dismissed as were an amended motion and a second amended motion. The latter dismissal was with prejudice, and Mary appealed the trial court’s ruling.

In an unpublished decision (In re Marriage of Elmore (3d Dist. 1986), No. 3—85—0486 (unpublished order under Supreme Court Rule 23)), this court affirmed the dismissal on the ground that her motion to vacate was insufficient as a matter of law for want of a supporting affidavit or a statement that her attorney who signed the motion had personal knowledge of the assertions in the motion. See Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1401(b) (requiring a sworn statement by a party with personal knowledge of facts not of record contained in a petition for relief from a judgment filed more than 30 days after entry of the order from which relief is sought).

Shortly after the parties’ youngest child reached the age of 18, in August of 1989, Mary filed a petition challenging the validity of the stipulated judgment of modification and seeking to enforce the original judgment, or in the event the modification is valid, then to enforce her right to possession of the marital home upon payment to Thomas of $53,265.04. Thomas denied that Mary has a right to possession and stated that he had sold the premises for $86,000 to his sister and her husband and that he is holding $32,734.96 as Mary’s equity in the home.

Mary then sought to interplead the purchasers, Virginia and Donald Austin, but Mary’s petitions against the Austins and Thomas were dismissed by the trial court. She then filed an amended complaint with the following counts: (I) quiet title; (II) fraudulent conveyance; (III) enforce judgment; and (IV) show cause, declaratory relief, and enforce judgment. The trial court ultimately dismissed all counts involving the Austins and counts I, II, and III as to Thomas. Mary’s motion for leave to file a second amended complaint was denied, and this appeal followed.

The determinative issue on appeal is whether the judgment of modification was void for lack of subject matter jurisdiction. Mary contends that the trial court lacked jurisdiction to modify a property disposition more than 30 days after entry of the original judgment without satisfying the requirements of section 510(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 510(b)), which provides in pertinent part:

“The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this State.”

Mary argues that, since there is no claim that the original judgment was procured by fraud or coercion or that any facts exist to entitle the parties to post-judgment relief under section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401), then the modification was void for want of jurisdiction. She cites several cases such as Hartman v. Hartman (1980), 89 Ill. App. 3d 969, 412 N.E.2d 711, where the father had a stipulated reduction in child support and addition of alimony entered without notice to the mother more than two years after the original property distribution decree. The reviewing court ruled that, even though the parties had agreed on the modification, the trial court lacked jurisdiction because subject matter jurisdiction cannot be conferred on a court by consent of the parties.

In later cases, decided after Hartman, courts have applied the doctrine of revestment to allow modification of property distribution judgments. The doctrine has been defined by the Illinois Supreme Court as follows:

“[Ljitigants may revest a court which has general jurisdiction over the matter with both personal and subject matter jurisdiction over the particular cause after the 30-day period following final judgment during which post-judgment motions must ordinarily be filed. ***

In order for the rule to apply, the parties must actively participate without objection in proceedings which are inconsistent with the merits of the prior judgment.” People v. Kaeding (1983), 98 Ill. 2d 237, 240-41, 456 N.E.2d 11, 14.

This court held the doctrine of revestment applicable and allowed the modification of a judgment incorporating a marital settlement in In re Marriage of Wharrie (1989), 182 Ill. App. 3d 434, 538 N.E.2d 183, even though the proceeding to modify was commenced more than 30 days after the original judgment was entered. (Accord In re Marriage of Demond (1986), 142 Ill. App. 3d 134, 491 N.E.2d 183.) The trial court in the case at bar correctly ruled that jurisdiction had revested by agreement of both parties. The judgment of modification is binding on both Mary and Thomas.

In conjunction with the stipulated modification of judgment, Mary deeded her interest in the marital home to Thomas. Mary has not challenged the validity of her deed in this proceeding. Thus, title to the property is not an issue in this cause. Accordingly, we hold that the Austins, who purchased the property from Thomas, were properly dismissed.

Mary also contends that she was entitled to have the property sold at a public sale or otherwise to be able to purchase it from Thomas for $53,265.04, the amount of his interest in the proceeds of sale. However, the documents signed by Mary (i.e., the stipulated modification of judgment and the quit claim deed) contain no such reservation of rights. Title was conveyed to Thomas subject only to Mary’s right to her portion of the proceeds.

Furthermore, although Mary has from time to time alleged conclusions as to fraud and coercion on the part of Thomas that induced her to sign the agreed modification, she has never filed sworn pleadings alleging facts constituting a valid cause of action for fraud. What the record does reveal are five attempts at pleading fraud, all of which were insufficient. It would seem that, less than a year after receiving substantial cash payments under the property settlement, Mary was in necessitous circumstances because of her debts. In return for assuming those debts, Thomas received possession and title to the marital home and an increase in his future share of the proceeds from the eventual sale of that home.

The unanswered question in this case is whether Thomas’ sale to his sister was at a reasonable time and for a reasonable price as required in the stipulated judgment of modification. Those issues remain to be determined. Count IV of Mary’s complaint is still pending in the trial court. The dismissal of counts I, II, and III is affirmed.

Affirmed.

STOUDER, P.J., and SLATER, J., concur.