text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLABON EPPS, Defendant-Appellant.
    Fifth District
    No. 5—88—0724
    Opinion filed April 18, 1990.

      James J. Gomric, P.C., of Belleville, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle and Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s Office, and Larry Kuster, of counsel), for the People.
   JUSTICE HOWERTON

delivered the opinion of the court:

“She said, ‘Well, Mom, I am going,’ and I said, ‘Okay, you all be careful,’ and she walked on around the car to get in the car. By the time she got in there and slammed the door, out come Clabon with this gun in his hand and I said, ‘Connie, get away, Connie, quick as you can. Here come Clabon with a gun. Get going fast as you can!’ I said. And she was so nervous she couldn’t put that key in and then whenever he did come up there and go up to the car, he had taken his hand and pulled that little boy’s head and pumped them bullets into his head. He didn’t hold his hand and the little boy, when he shot him, and he said, ‘Oh,’ and he pumped another bullet and the third time he didn’t say nothing and I said, ‘Clabon, you don’t kill my daughter. Don’t kill my daughter.’ He aimed his body around like this so he could get Connie and he shot her twice.”

So testified the mother of Connie, the little boy’s grandmother.

A four-day trial ended when a jury convicted 64-year-old Clabon Epps of the first degree murder of seven-year-old Robert Mackin, and also of armed violence, attempted murder and aggravated battery on the seven-year-old’s mother, Connie Bennett.

Sentenced to concurrent terms of 20 years for murder and 10 years for armed violence, defendant appeals. We affirm, rejecting his four claims of error.

I

Defendant’s first claim consists of two parts. The factual basis of his claim is: (a) a bailiff and a juror talked during deliberations; and (b) this same juror, when answering the poll of the jury after verdict, paused, shook, and sobbed before answering, “yes,” it was her verdict. Defendant claims that these facts taken together show that the juror did not assent freely to the verdict, and therefore, the verdict was coerced.

To expand the factual basis of defendant’s claim, we note that the jury had been told throughout the case that the State was going to ask for death. The jury took the case and began their deliberations. During their deliberations, a juror asked the bailiff, “Is there any way I can get out of this? Do I have to help make a decision?”

The bailiff reported the conversation to the judge, but neither the State’s Attorney nor defense counsel was informed. The judge instructed the bailiff to tell the juror that the jury had to make whatever decision they were going to make in the case and that the juror was not going to be relieved of her service.

The bailiff carried out the instructions, telling the juror what the judge had said. The juror said “okay.”

Later, after verdict and while the jury was being polled, this same juror, when asked whether this was her verdict, became visibly shaken, began to cry, delayed answering by 30 seconds, then blurted out “yes” and continued to cry.

Defendant moved for a mistrial, arguing that this juror’s decision was not voluntary, but coerced.

The circuit court examined the circumstances and said that the crying was the outward manifestation of making a difficult decision, given that the 64-year-old defendant was on trial for shooting a seven-year-old and, if convicted, was facing death. The circuit court then jfound that the juror had said expressly that the verdict was hers and gave no indication, other than sobbing and delaying her answer, that it was not her verdict. The juror, therefore, was found to have voluntarily assented to the verdict, and the motion for mistrial was denied.

We examine each component of defendant’s single argument.

A

We must examine initially whether the St. Clair County circuit court should have granted a mistrial because a bailiff and a juror talked during deliberations.

No prejudice is presumed from a third person’s communication with the jury; it must appear from the record that prejudice resulted, or that there was an intent to influence the jury’s decision. (People v. Veal (1978), 58 Ill. App. 3d 938, 374 N.E.2d 963.) No jury verdict will be set aside because of a communication with a juror by court personnel or other third persons outside the presence of the accused unless it is apparent that prejudice resulted from the exchange. People v. Cart (1981), 102 Ill. App. 3d 173, 429 N.E.2d 553.

Review of the record shows no prejudice. The record displays no intent to influence the jury’s decision. The essence of this communication is that a juror wanted off a case and the judge refused the request.

B

We next examine the juror’s response to the polling of the jury and her conduct and determine whether the circuit court’s finding that the verdict was voluntary is unreasonable.

A trial judge has discretion to determine whether a juror’s assent to a verdict is voluntary, and that determination will not be set aside unless it clearly is unreasonable, because “the trial judge, in determining whether a juror has freely assented to the verdict, not only hears the juror’s response, but observes the juror’s demeanor and tone of voice during the course of the polling of the jury.” People v. Cabrera (1987), 116 Ill. 2d 474, 490, 508 N.E.2d 708, 714.

The juror said nothing during polling that demonstrated that the verdict was not hers. She unambiguously stated “yes” — it was her verdict. All she did was show emotion. Emotion shown is not necessarily involuntariness revealed.

This was a hard case.

To put the tragedy in full view, this 64-year-old defendant had just suffered the pain and humiliation of being beaten on his own front lawn by the seven-year-old victim’s father, a much younger man — a beating that was so prolonged, so terrible and so brutal, that passersby had halted and begged the younger man to stop the outrage.

As the young man let him up, defendant pulled a carpet knife from his jacket pocket, and threatened the father, and he, the young father, got in his truck and drove off.

Bloodied, defendant went inside his house, tried to wash the blood from his face, and then pulled a gun and shells from his bureau drawer.

Defendant went back outside, loaded gun in hand, and stepped toward the street. With mother and son in their car preparing to leave, grandmother, seeing defendant and recognizing death, yelled, warning her daughter, while defendant walked on, as the mother, herself then seeing and knowing it was death that stalked them, and so nervous she couldn’t put the key in the ignition, tried to fire up the car and drive herself and her son to safety, and defendant continued to come on, and then fired and killed the boy in full view of the boy’s mother and grandmother.

The State was asking for the death penalty and did not waive death until after the jury was polled.

In this context, the emotion shown by the juror is ambiguous. It is ambiguous because there are at least two inferences. The first inference is that although the tragedy moved the juror, she nevertheless would remain true to her oath and render a verdict of guilty of first degree murder. The second inference is that the juror was yielding to illicit coercion and rendering her verdict contrary to her belief and to her oath.

On the other hand, her verbal response, “yes,” is unambiguous.

The unambiguous response, when weighed against the ambiguity, so completely tilts the scales of justice so that we find it difficult to see any result other than the one announced by the circuit court.

Keenly aware that we were not witnesses to the polling, fully acquainted with the record, and giving the deference to the circuit court that the law commands, we affirm the discretionary finding that this verdict was voluntary.

II

Defendant’s second claim consists of four syllogistic steps: (1) the testimonies of the slain boy’s mother, grandmother and a neighbor were all so in conflict with the findings of a pathologist, as well as the findings of a forensic scientist, that they should be found to have been perjured; (2) therefore, those testimonies should be discarded; (3) therefore, this case lacks credible evidence as to the actual shooting and killing of the boy; and (4) therefore, the circuit court’s refusal to direct a verdict in defendant’s favor is erroneous.

The first step for us, of course, is to identify the conflict. The conflict: the mother, who also was the victim of the armed violence, testified defendant stuck the pistol to the boy’s head and fired — in contrast, the forensic scientist found the boy to have been shot from a distance, not point blank; the grandmother testified that defendant shot the boy in the head three times — in contrast, the autopsy showed that the boy had been shot only once; the neighbor testified that three, or four, or maybe five shots had been fired, likewise in conflict with the autopsy.

Our vantage point is one step further removed from the thunder-strike of reality than the vantage point of the jurors. Whereas they did not see or hear or smell or touch or taste the killing, the death, or the tragedy that forevermore will mark the mother’s, the grandmother’s, the father’s and the defendant’s lives, the jurors at least saw and heard the witnesses. Not us. We neither saw, nor heard, the shooting. We are called to make our ruling on the reported account of those we neither saw nor heard.

Not only that, but for every incident, no matter how benign, the descriptions of an event vary in accordance with the number of witnesses. The descriptions vary according to each witness’ perception, to each’s memory, and to each’s ability to narrate. As the shock and outrage of an incident escalates, so we expect the variance to become greater. And, as the event becomes more personal to the witnesses, we expect the event to take on added importance, become bigger, and perhaps, if it is quick-flashing tragedy, more malignant. This is our commonsense observation, and it leads us, juror and reviewing court alike, to accept differences between eyewitness accounts.

What defendant asks of us, a reviewing court, is to brand these three witnesses with the hot iron of perjury. To do that, we must be certain of the fact. And, how can we be, when our common observation in the affairs of life affords explanation of the variance? The boy was shot to death in full view of his mother, his grandmother, and a neighbor. Can we then be surprised that they testified to more than science observed? No. Science may prove less, or more, than spirit sees or hears. Who is surprised that it does? No one. Does it make liars of us? Not necessarily. And, only sometimes, does it make us mistaken.

The facts give us no basis to brand “perjurer” on the witnesses’ foreheads, no basis to sew scarlet “P’s” upon their breasts.

Since we have declined defendant’s invitation to brand the witnesses “perjurers,” the question becomes whether the evidence, viewed most strongly in favor of the State, allows a reasonable mind to conclude guilt beyond a reasonable doubt. People v. Withers (1981), 87 Ill. 2d 224, 429 N.E.2d 853; People v. Henderson (1981), 95 Ill. App. 3d 291, 419 N.E.2d 1262.

In this case, there was ample physical evidence and oral testimony upon which a jury could find the defendant guilty beyond a reasonable doubt of first degree murder. Therefore, the circuit court’s denial of defendant’s motion for directed verdict is affirmed.

Ill

Defendant’s third claim is that the circuit court erred in refusing to direct a verdict of not guilty of first degree murder, and argues that the beating defendant suffered was substantial provocation as a matter of law, thereby making it sufficient to acquit defendant of first degree murder.

When a defendant is on trial for first degree murder and evidence of a mitigating factor is introduced, the Criminal Code of 1961 provides “the burden of proof is on the defendant to prove [a] mitigating factor by a preponderance of the evidence before the defendant can be found guilty of second degree murder.” Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(c).

In this case, the mitigating factor is provocation. The statute provides:

“(a) A person commits the offense of second degree murder when he commits the offense of first degree murder as defined in paragraphs (1) or (2) of subsection (a) of Section 9 — 1 of this Code and either of the following mitigating factors are present: (1) At the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by the individual killed or another whom the offender endeavors to kill, but he negligently or accidentally causes the death of the individual killed.” Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(a)(1).

The statute further states that serious provocation is conduct sufficient to excite an intense passion in a reasonable person. Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(b).

In this case, only two people qualify as provocateur — one the boy, the individual killed, the other, the father of the boy.

What, then, was the serious provocation by the boy, which inflamed defendant to sudden and intense passion? The boy had broken branches from defendant’s tree, hardly serious provocation.

The provocation by the father? He had beaten defendant.

“(T)he sufficiency of the provocation to cause sudden and intense passion is a matter to be determined by the trier of fact.” (People v. Pruitt (1987), 154 Ill. App. 3d 22, 32, 506 N.E.2d 696, 702.) The jury, in this case, may have believed that the interval of time that elapsed from the beating to the killing was sufficient, under the circumstances, to have allowed boiling blood to have cooled, passion to have subsided. Furthermore, even if the jury had not believed that the passion should have quieted, they still could have found defendant guilty of first degree murder. When one in a sudden intense passion endeavors to kill the provocateur, but kills another, the killing is second degree murder only if the killing was negligently or accidentally caused. In this case, the jury may have rejected negligence, rejected accident, and instead found intent. See People v. Beasley (1977), 54 Ill. App. 3d 109, 369 N.E.2d 260.

Either way, it was their call, not ours, and we find that the verdict was not so unreasonable so as to require a verdict of not guilty of first degree murder to have been directed.

IV

Defendant lastly claims that the Illinois Pattern Jury Instruction 7.01A together with section 9 — 1 et seq. of the Criminal Code (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1 et seq.) deprive him of equal protection of laws. Defendant contends that the instruction is flawed constitutionally, because although the instruction allows defendant to be found guilty of first degree murder if he intended to kill the father, but killed the boy instead (a doctrine known as “transferred intent”), the statute that defines second degree murder does not allow the jury to acquit him of first degree murder and convict him of second degree murder by transferring to the boy the father’s provocation. Fleshed out, the argument is that, although the legal fiction of “transferred intent” makes the boy, legally, the object of defendant’s intent to kill the father, the law does not allow defendant to transfer the result of his provocation, i.e., make the boy legally the provocateur, when the father, in fact, was. Defendant offers no argument or authority in support of his contention, and we do not decide the issue, since it has not been fully briefed and argued. However, we believe we would be wary of accepting as good law any doctrine which would mitigate a killing on grounds that, “Joe made me angry, so I killed Bill.”

We hold, however, that defendant has not preserved this issue for appeal, as it is not in his post-trial motion. Accordingly, it is waived. People v. Volkmar (1989), 183 Ill. App. 3d 149, 538 N.E.2d 1255.

Affirmed.

CHAPMAN and RARICK, JJ., concur.


source: Caselaw Access Project

author: JUSTICE RARICK

license: Public Domain

text:
    MERRILL E. STRICKLIN, Plaintiff-Appellant, v. PAMELA ANN CHAPMAN, Defendant-Appellee.
    Fifth District
    No. 5—89—0033
    Opinion filed April 19, 1990.
    Douglas N. Dorris, of Harris & Lambert, of Marion, for appellant.
    Bruce E. Warren, of Mitchell, Brandon & Schmidt, of Carbondale, for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

Plaintiff, Merrill E. Stricklin, appeals from the judgment entered by the circuit court of Saline County, after a jury trial, in favor of defendant, Pamela Ann Chapman. We reverse.

On January 3, 1985, at approximately 9:30 a.m., a collision involving a pedestrian and an automobile occurred at a five-street intersection in downtown Eldorado, Illinois. The main part of this intersection consists of Fourth Street, a paved, two-lane, unlined street running generally north and south, and Locust Street, a paved, two-lane, unlined street running generally east and west. The fifth street is a one-way street leading off from the main intersection and is not relevant to the collision. Traffic is controlled by stop signs and a flashing red stoplight hung in the middle of the intersection addressing all four approaching lanes.

On the morning of January 3, immediately prior to the accident, plaintiff, a 66-year-old retired photographer and teacher, walked into Burnett’s Bank, located at the northwest corner of the intersection of Fourth and Locust Streets, to withdraw money from his savings account. After doing so, he proceeded south across Locust Street. Plaintiff then intended to turn east and cross Fourth Street in order to go to First State Bank, located at the southeast corner of the intersection, to deposit into his checking account the money just withdrawn. Plaintiff testified that as he approached the Fourth Street crosswalk, he looked in all directions for traffic. He saw quite a few cars parked and some cars stopped but saw no moving traffic. He began his crossing of the street, heading due east. About five or six steps into the street, approximately one-third of the way across, plaintiff heard a loud noise. The noise was the sound created when he collided with an automobile. Plaintiff believed he was struck by the front bumper of the car around the knee and thigh area of his left leg. Directly after the collision, plaintiff, while lying on the pavement, looked up over his left shoulder and saw the bumper of a car. He was lying parallel to Fourth Street, with his head pointed south, about three to four feet south of the crosswalk. Plaintiff also testified he never saw that portion of the car which hit him before being struck, but did know he did not see any portion of the car flash by in front of him before the impact occurred. He further stated he heard no horn or any squealing of brakes before the impact. Plaintiff also claimed that after the accident, the driver of the car came up to him and exclaimed, “Oh my God, I didn’t see you.” Some of the people at the scene of the accident then helped plaintiff get up from the pavement and carried him to First State Bank so he could deposit his money. While plaintiff was in the bank, the ambulance arrived. As a consequence, plaintiff was not interviewed by any police officer at the scene before being removed to the hospital. Plaintiff sustained a broken left leg, a large bruise on the outside of his left knee, and other minor cuts and scrapes in the accident. Additionally, an old back injury was aggravated.

Defendant, the driver of the car with which plaintiff collided, testified she was headed west on Locust Street the morning of the accident. She intended to turn left and head south onto Fourth Street. Three other cars pulled up to the intersection at about the same time she did. After two of the cars proceeded on their ways, defendant began her turn. As she was completing her turn, she collided with plaintiff. She testified she did not see plaintiff until just a split second before they collided. As soon as the collision occurred, she slammed on the brakes. She had no time to honk her horn between the time she saw plaintiff and when the collision occurred.

The only identified eyewitness testified at trial that at the time of the accident he was in his car stopped at the intersection in the southbound lane on Fourth Street. He nodded to defendant’s car to proceed with her turn. According to the eyewitness, defendant began her turn and plaintiff just walked right into the front fender of the car, went over the top of the hood and fell in the street. The eyewitness then got out of his car, ran up to help plaintiff and told defendant not to worry; it wasn’t her fault. He further testified he believed plaintiff was cutting across Fourth Street at a diagonal in a “fast trot” or “half dead run.”

Kenneth McGuire, a police officer for the City of Eldorado, was called to investigate the accident that morning. By the time he arrived at the scene, defendant’s car had already been moved from where it had stopped after the accident and plaintiff was on his way to the hospital. Officer McGuire found no debris or marks on the pavement or any marks or damage on the car attributable to the accident. In his report of the accident, the officer noted, based primarily on the statements of defendant and the eyewitness, that plaintiff ran into defendant’s car just to the rear of the right front tire in front of the door. McGuire was allowed to relate this opinion at the trial over plaintiff’s objection.

The jury ultimately returned a verdict in favor of defendant against plaintiff. Plaintiff then filed a post-trial motion seeking vacation of the judgment order entered upon the jury’s verdict. Plaintiff’s motion was denied. Plaintiff appeals both the judgment and the denial of his post-trial motion, alleging he was deprived of a fair trial by the trial court’s allowing Officer McGuire to testify to his opinion as to the point of impact between defendant’s car and plaintiff contrary to the previously granted motion in limine precluding reconstruction testimony, especially when he did not observe the accident, found no physical evidence of the point of impact and was not qualified as a reconstructive expert. We agree.

It is axiomatic that the decision of a trial court to grant or deny a new trial is an exercise of discretion which should not be disturbed on appeal unless a clear abuse of that discretion is shown in the context of the jury’s verdict not being supported by the evidence and the losing party being denied a fair trial. (E.g., Reidelberger v. Highland Body Shop, Inc. (1981), 83 Ill. 2d 545, 548-49, 416 N.E.2d 268, 270; Smith v. Perlmutter (1986), 145 Ill. App. 3d 783, 785-86, 496 N.E.2d 358, 359.) It is also axiomatic that error in the exclusion or admission of evidence does not require reversal unless one party has been prejudiced or the result of the trial has been materially affected. (E.g., Redmon v. Austin (1989), 188 Ill. App. 3d 220, 226-27, 543 N.E.2d 1351, 1355.) The key, then, is, in a case close enough on the facts so that a jury easily could decide either way, whether any substantial error which might have tipped the scales in favor of the successful party calls for reversal. (See Both v. Nelson (1964), 31 Ill. 2d 511, 514, 202 N.E.2d 494, 496. See also Owen v. Willett Truck Leasing Corp. (1965), 61 Ill. App. 2d 395, 400, 209 N.E.2d 868, 870.) Here, the contested testimony, the officer’s opinion as to point of impact, related directly to the central controversy of the case: namely, how the collision took place or who was at fault. This being so, we cannot say that the admission of such testimony had no effect on the outcome of the trial. Because its effect simply cannot be measured, in light of the evidence being close, in the interest of justice, we must remand this cause for retrial. Redmon, 188 Ill. App. 3d at 227, 543 N.E.2d at 1355.

Returning to the history of this case, prior to commencement of trial, plaintiff prayed for an order restricting inquiry or testimony into “conclusions by the [police] officers about whom was at fault” and into “opinions by the officer in the nature of reconstructing the occurrence.” The court granted plaintiff’s motion. During the course of the trial, plaintiff called Officer McGuire, the investigating officer, in his case in chief to testify primarily to the physical layout of the scene of the accident and to his observations after the accident, including the extent of plaintiff’s injuries. During this direct examination, it was revealed that when Officer McGuire arrived at the scene, plaintiff had already been moved from the pavement and carried inside the bank, and defendant’s auto had been moved from its resting place and was parked on a different street than where the collision occurred. Officer McGuire further testified he saw no debris or skid marks on the street which he attributed to the accident, nor did he see any physical evidence of a dent or scratch on the car itself which he attributed to the accident. He was not asked about his training in reconstructing accidents, about the number of accidents he had investigated, or about his formal schooling or on-the-job training concerning recreating accidents. It was revealed, however, that he had been •with the police department for only four months. On cross-examination defense counsel asked the officer: “Now, based on your report and your investigation, did you note the point of impact on [defendant’s] vehicle by [plaintiff]?” Plaintiff objected at a side-bar conference, arguing defense counsel’s question not only violated the in limine order but also constituted improper reconstructive testimony, especially when the officer had no foundation of physical facts upon which to base his opinion. The trial court overruled plaintiff’s objection, stating it did not view the testimony as being in the nature of reconstruction but rather something police officers routinely do. Defense counsel repeated virtually the same question, and the officer gave his opinion as to the point of impact on defendant’s car. We initially note, contrary to the trial court’s ruling, point of impact is indeed in the nature of reconstruction. “Reconstruction testimony, as it is generally understood, seeks to recreate the accident; who hit whom, where was the impact and how fast the parties were going ***.” (Emphasis added.) (Finfrock, v. Eaton Asphalt Co. (1976), 41 Ill. App. 3d 1020, 1023, 355 N.E.2d 214, 217.) See also Ralston v. Plogger (1985), 132 Ill. App. 3d 90, 98-99, 476 N.E.2d 1378, 1383-84; Gale v. Hoekstra (1978), 59 Ill. App. 3d 400, 410-11, 375 N.E.2d 456, 464; Dauksch v. Chamness (1973), 11 Ill. App. 3d 346, 352, 296 N.E.2d 592, 597.) When Officer McGuire was asked to give his opinion and conclusion concerning where plaintiff’s body impacted with defendant’s auto, he clearly was being asked to recreate the events of the accident beyond his own observations and, more importantly in this instance, beyond observations which he made of the physical evidence at the scene. We need not address the question whether Officer McGuire was even qualified to give reconstruction testimony (see, e.g., Ralston, 132 Ill. App. 3d at 98-99, 476 N.E.2d at 1383-84; Deaver v. Hickox (1967), 81 Ill. App. 2d 79, 87, 224 N.E.2d 468, 472, appeal after remand (1970), 121 Ill. App. 2d 465, 256 N.E.2d 866) or whether this was a case in which reconstruction testimony should have even been permitted (see Augenstein v. Pulley (1989), 191 Ill. App. 3d 664, 547 N.E.2d 1345; Dauksch, 11 Ill. App. 3d 346, 296 N.E.2d 592; Abramson v. Levinson (1969), 112 Ill. App. 2d 42, 250 N.E.2d 796 (for a discussion of admissibility of reconstruction testimony in general)). The officer’s testimony pertaining to the point of impact not only violated the court’s prior order in limine but also amounted to little more than speculation and conjecture. There simply was insufficient physical evidence present to provide the basic data needed to reconstruct the occurrence. See Abramson, 112 Ill. App. 2d at 47, 51, 250 N.E.2d at 799, 801. See also Presswood v. Morris (1979), 70 Ill. App. 3d 513, 516, 388 N.E.2d 844, 847.

With a case as factually close as this one, any added factor in favor of either party could tip the balance on the issue of liability. Certainly an opinion of a professional who had the opportunity to investigate the accident and observe the scene immediately after the accident occurred would be given due deference by a jury. And, that same opinion which necessarily, in this instance, had to coincide with the version of one party as opposed to the other most likely would sway the jury’s deliberation in favor of the party whose version was bolstered by the conclusion of the professional. We cannot say under these circumstances that Officer McGuire’s testimony was not a factor in the jury’s verdict. See Redmon, 188 Ill. App. 3d 220, 543 N.E.2d 1351.

For the aforementioned reasons, we reverse the judgment of the circuit court of Saline County in favor of defendant and remand the cause for a new trial on all issues.

Reversed and remanded.

WELCH and CHAPMAN, JJ., concur.


author: JUSTICE CHAPMAN

text:
    ELMER M. NOVAK, Petitioner and Counterrespondent, v. RONALD SMITH, Respondent and Counterpetitioner-Appellant (Dave Dobill, Franklin County Clerk, Respondent-Appellee; Edward A. Bundy et al., Respondents).—RONALD SMITH, Plaintiff and Counterdefendant-Appellant, v. ELMER NOVAK, Defendant and Counterplaintiff-Appellee (Edward A. Bundy et al., Plaintiffs).
    Fifth District
    No. 5—88—0692
    Opinion filed April 19, 1990.

      Edwina Warner, of Troutt, Alexander, Quindry, Popit & Warner, of Benton, for appellant.
    Eric L. Terlizzi, of Pfaff, Garner & Terlizzi, of Salem, for appellee Elmer Novak.
   JUSTICE CHAPMAN

delivered the opinion of the court:

The subject of this appeal concerns the ownership of the coal underlying the following described tract:

“The Southeast Quarter (SE xk) of the Southeast Quarter (SE xk) of Section 28, Township 7 South, Range 4 East of the Third Principal Meridian, in Franklin County, Illinois.”

In October of 1956, Elmer Novak received a certificate of purchase for the mineral estate underlying the property. In circuit court cause No. 979, Novak petitioned for an order directing the issuance of a tax deed to the mineral estate. On October 5, 1959, the circuit court entered an order directing the county clerk “to issue and deliver to said Petitioner a Tax Deed for the premises described in said petition.” On October 5, 1959, the county clerk executed a tax deed to Novak, conveying the oil and gas mineral estate underlying said premises. Since that time Elmer Novak has paid annual taxes on the mineral estate.

Ronald Smith acquired title to the property described by the legal description above, by virtue of two deeds: one dated 1978, the other 1982. Included in the abstract of the property purchased by Ronald Smith were copies of the following documents from cause No. 979: certificate of purchase, public notice, petition for order directing issuance of tax deed, notice of extension of redemption date, affidavit of county clerk and order directing issuance of tax deed. Smith testified that he had the abstract reviewed by an attorney prior to making his purchase of the acreage. He testified that his attorney prepared the deeds to the property, but Smith did not recall if they discussed whether the tax deed conveyed only oil and gas and excluded coal. Smith testified that he reviewed the abstract himself and was aware he was not purchasing the oil and gas underlying the estate.

In 1983, the Cave Coal Association approached Smith with an offer to purchase the coal underlying the property. The Cave Coal Association, however, informed Smith that there was a question as to the ownership of the coal by virtue of Novak’s tax deed. Ronald Smith, Edward and Margaret Bundy, Helen Ross and Marie Wides filed a two-count complaint in the circuit court, cause No. 84 — CH—84, to quiet title in the property and all minerals underlying the premises. Edward and Margaret Bundy, Helen Ross and Marie Wides entered into a settlement of their claim against Novak and as such their claim was not submitted to the trial court and is not a subject of this appeal. Elmer Novak filed a counterclaim seeking to quiet title to the coal underlying the property, and also seeking to reform his tax deed to read oil, gas and other mineral estate, wherever the words “oil and gas mineral estate” appear. Novak also filed a third-party complaint against Dave Dobill, the current county clerk, seeking reformation of the tax deed. Edward and Margaret Bundy, Helen Ross and Marie Wides were named as necessary third-party defendants.

A bench trial was conducted in cause No. 84 — CH—84, whereupon the court entered a judgment denying both parties’ complaints for quiet title. The court’s order included a finding that as now described, the tax deed’s reference to the oil and gas mineral estate does not include coal. The court ordered that cause No. 979 be reopened for the parties to present additional evidence on the issue of whether Novak’s tax deed should be reformed. In light of the court’s order reopening cause No. 979, an agreed order was thereupon entered by the circuit court consolidating cause No. 84 — CH—84 with cause No. 979.

Elmer Novak then filed a separate petition to reopen proceedings and to reform his tax deed. Ronald Smith filed a counterpetition asking the court to deny Novak’s request for a corrected tax deed or, in the alternative, to set aside Novak’s tax deed for lack of subject-matter jurisdiction. A hearing was conducted March 3, 1988, with both parties presenting evidence on the petitions. On July 7, 1988, the court entered a judgment denying Novak’s petition to reform his tax deed and denying Smith’s petition to set aside the deed. Both parties filed post-trial motions asking the court to reconsider its decision. The court entered a modification of judgment on October 13, 1988, granting the petition of Elmer Novak to reopen the proceedings in cause No. 979 and ordering the county clerk to issue a corrected tax deed in conformance with the trial court’s order in cause No. 979, entered October 5, 1959.

Ronald Smith brings this appeal, presenting two issues for our review: (1) whether the trial court erred in not finding that the tax deed should be set aside for lack of subject-matter jurisdiction; and (2) whether Elmer Novak is entitled to reformation of the tax deed.

In the instant case, Smith’s premise for arguing that the trial court lacked jurisdiction in issuing the tax deed to Novak is based on the fact that there is no record of any severance of the minerals in the chain of title prior to the issuance of the tax deed in 1959. The parties stipulate that the original court file in cause No. 979 is lost and the file was reconstructed to the best of their ability. The reconstructed portion of the file consists of copies of the following: tax sale certificate of purchase, certificate of publication, petition for order directing issuance of a tax deed, affidavit of county clerk, notice of extension of redemption date, and order directing the issuance of tax deed. The certificate of purchase and notice of extension of redemption date in the original tax sale proceeding show that the minerals were taxed in the name of Hall. Smith contends that the evidence shows there was never anyone named Hall in the chain of title to the property. Smith argues that the evidence is conclusive that the mineral estate was never severed from the fee, the minerals were, therefore, exempt from taxation, and the order entered for issuance of tax deed is void for lack of jurisdiction. Smith also contends that the failure to personally serve notice on the owner of the mineral estate is further proof that no severance of the mineral estate had in fact occurred.

The entire tax sale proceeding is one in rem rather than in personam. It is the jurisdiction over the land itself, acquired in the original application for judgment and order of sale that gives to the county court the power to act. (Urban v. Lois, Inc. (1963), 29 Ill. 2d 542, 546, 194 N.E.2d 294, 296.) Once a tax deed has been issued, an authoritative determination has been made as to the purchaser’s right to the property. (In re Application of County Collector (1988), 169 Ill. App. 3d 180, 184, 523 N.E.2d 617, 619.) However, in order for the trial court to invoke its special statutory jurisdiction granted it in the Revenue Act of 1939 (see La Salle National Bank v. Hoffman (1971), 1 Ill. App. 3d 470, 274 N.E.2d 640), the taxes on the subject property must be delinquent. (Ill. Rev. Stat. 1987, ch. 120, par. 751; Stein v. Olsen (1975), 26 Ill. App. 3d 858, 862, 326 N.E.2d 176, 178.) Where the allegedly delinquent taxes were paid, or where the property was exempt from taxation, the court lacks jurisdiction over the property, and a judgment and order of sale against that property is void. In re Application of County Collector v. Olsen (1977), 48 Ill. App. 3d 572, 584, 362 N.E.2d 1335, 1344.

While we note that the determination of whether a party has been given the notice required in a tax sale proceeding goes to whether the court should order the tax deed to issue and not to whether the court has jurisdiction in the proceedings (Smith v. D.R.G., Inc. (1976), 63 Ill. 2d 31, 35-36, 344 N.E.2d 468, 470), we will address the question of the alleged failure to serve personal notice on the owners of the mineral estate, since, as Smith contends, absence of personal notice may suggest an inference that no severance of the mineral estate had occurred.

In the case at bar, Novak testified that after he had purchased the taxes on the mineral estate he contacted his attorney, Mr. Merritt. He instructed Mr. Merritt “to take the necessary legal action to develop a tax deed *** doing whatever was necessary to then submit to the county clerk the information, so that I could get a tax deed.” Novak testified that from that point on he personally did not partake in the actual searches, publications or preparation of documents. The parties stipulate that Mr. Merritt is deceased and that his original files are not available, as they were destroyed some time ago. The parties further stipulate that Lemuel Hiller, the county clerk who issued the tax deed to Novak, is also deceased. Although the only party available to testify who was privy to the original tax sale proceeding is Novak, the reconstructed court file of the tax sale proceeding shows a notice of publication evidencing compliance with the statute. The court’s order directing issuance of a tax deed further evidences compliance:

“All notices required by law have been given; And in particular all notices provided by Sections 264 and 266 of the Revenue Act of 1939 as amended have been given in the manner and form within the time therein provided ***.”

A court should not direct the county clerk to issue a tax deed until it is satisfied that the requirements of the Revenue Act have been met. (Ill. Rev. Stat. 1987, ch. 120, pars. 744, 747; Smith v. D.R.G., Inc. (1976), 63 Ill. 2d 31, 36, 344 N.E.2d 468, 470.) Prior to issuance of a tax deed, the court makes a judicial determination whether the notice and other requirements have been met. When a finding of compliance has been entered, it will thereafter be presumed that satisfactory proof of this fact was presented to the court even though such evidence is not preserved in the record. (People v. O’Keefe (1960), 18 Ill. 2d 386, 393, 164 N.E.2d 5, 9.) We are satisfied that proper notice was given in the tax sale proceeding. We, therefore, do not consider the alleged failure to personally serve the owners of the mineral estate with notice to be significant in determining whether or not the mineral estate had in fact been severed.

We now turn to the argument that the court lacked jurisdiction over the property since there is no record of any severance of the mineral estate in the chain of title. Bob Fuson, an abstractor of land titles, testified that based on his examination of the abstract, no severance of the mineral estate had ever been executed, and he could not find that anyone with the name Hall had ever owned of record any interest in any of the minerals underlying the property. The name Hall did appear on the certificate of tax sale and the notice of extension of redemption date. The certificate of tax sale has written therein, “10 year sale No. 24,” evidencing that the mineral estate was separately assessed for at least 10 years up until the tax sale proceedings. Yet Ronald Smith suggests that the inability to locate a recorded conveyance of the mineral estate proves that it was not in fact severed and thus not legally subject to separate taxation. Smith fails to recognize that even though a deed is not recorded, if a deed is delivered to the grantee and remains in his possession and control, the legal effect of the transaction is to place the title in the grantee. (Ross v. Ross (1950), 406 Ill. 598, 601, 94 N.E.2d 885, 886-87.) The absence of a recorded deed must be ascribed to reasons other than lack of a severance of the mineral estate. Without further evidence of a jurisdictional defect, we are not prepared to second-guess the trial court which entered its order in 1959 finding that it had jurisdiction over the property and ordering the issuance of the tax deed. We affirm the trial court’s finding that the tax deed should not be set aside for lack of subject-matter jurisdiction.

The second issue on appeal concerns whether the trial court erred in finding that Elmer Novak is entitled to reformation of his tax deed. To reform an instrument upon the ground of mistake, the mistake must be one of fact, mutual and common to both parties, and in existence at the time of the execution of the instrument, showing that at such time the parties intended to say a certain thing and, by mistake, expressed another. (Schmitt v. Heinz (1955), 5 Ill. 2d 372, 379, 125 N.E.2d 457, 460.) Before a written instrument will be reformed, the party seeking reformation must prove by clear and convincing evidence that the instrument as it now stands does not properly reflect the true intention of the parties, and that there has been either a mutual mistake or mistake by one party and fraud by the other. (Parrish v. City of Carbondale (1978), 61 Ill. App. 3d 500, 505, 378 N.E.2d 243, 247.) The question whether plaintiff has presented sufficient evidence to meet his burden of proof and overcome the presumption that the instrument as written expresses the parties’ true intention is primarily a question of fact, and we will not disturb the trial court’s decision unless it is against the manifest weight of the evidence. Parrish, 61 Ill. App. 3d at 506, 378 N.E.2d at 247.

The trial court found, in its judgment entered March 12, 1987, in cause No. 84 — CH—84, that: (1) Ronald Smith was not a subsequent innocent purchaser without notice or knowledge as ought to put a prudent man on inquiry as to the title; (2) laches does not apply to Elmer Novak; and (3) a mutual mistake was made between the county clerk Lemuel Hiller and Elmer Novak when the tax deed was issued. The trial court ultimately determined that Novak was entitled to reformation of the tax deed to conform the description of the conveyance in the tax deed with the order for the issuance of the tax deed, which provided that Novak was to receive the premises described in his petition, the mineral estate.

Smith contends that the finding of the trial court in this case is erroneous because he is a bona fide purchaser for value and reformation of the deed is barred by laches. We disagree. It is true that equity will not reform a deed against subsequent bona fide purchasers for value, without notice of the mistake or of facts which should put them on inquiry. (Pulley v. Luttrell (1958), 13 Ill. 2d 355, 358, 148 N.E.2d 731, 733.) However, the evidence in the instant case disclosed that while the record of the original tax deed proceeding, cause No. 979, cannot be located, Smith’s abstract of the property did include copies of the certificate of purchase, publication notice, petition for order directing issuance of a tax deed, notice of extension of redemption date, affidavit of county clerk and order directing the issuance of a tax deed. All of these documents refer to the conveyance to Elmer Novak as the mineral estate of said described premises. Although Smith personally reviewed the abstract and had the abstract examined by an attorney prior to making his purchase of the premises, he did not obtain an opinion of title as to the conveyance to Novak. Furthermore, Smith’s failure to inquire as to Novak’s payments of the taxes on the mineral estate is without explanation. We find that the facts of this case are such as ought to have put a prudent man on inquiry as to the title to the coal. (See Schuline v. Pelzer (1971), 2 Ill. App. 3d 791, 276 N.E.2d 832.) Based on the record the trial court did not err in finding that Ronald Smith was not a bona fide purchaser for value, without notice.

Ronald Smith argues that notwithstanding the trial court’s finding that he is not a bona fide purchaser for value, without notice, reformation of the tax deed should be denied because of laches. Laches is such neglect or omission to assert a right, taken in conjunction with a lapse of time of more or less duration and other circumstances causing prejudice to an adverse party, as will operate to bar relief in equity. (Pyle v. Ferrell (1958), 12 Ill. 2d 547, 552, 147 N.E.2d 341, 344.) Courts of equity have considered the following factors to determine whether the doctrine of laches applies:

(1) conduct by the defendant giving rise to the situation of which complaint is made and for which complainant seeks a remedy;
(2) delay in asserting the complainant’s rights;
(3) lack of knowledge or notice on behalf of the defendant that the complainant would assert the right on which he bases his suit;
(4) injury or prejudice to the defendant in the event relief is accorded to the complainant or the suit is held not to be barred.

See Pyle v. Ferrell, 12 Ill. 2d 547, 147 N.E.2d 341; Beynon Building Corp. v. National Guardian Life Insurance Co. (1983), 118 Ill. App. 3d 754, 455 N.E.2d 246; Ballard v. Granby (1980), 90 Ill. App. 3d 13, 412 N.E.2d 1067.

Smith argues that Elmer Novak should have known of the alleged error in the tax deed in 1959 when the deed was executed. Smith notes with particular attention those cases which have held that because oil and mining property is of such a specially precarious nature and is exposed to utmost fluctuations in value, there is no class of property in which laches is more relentlessly enforced. (Pyle, 12 Ill. 2d at 553, 147 N.E.2d at 345; Twin-Lick Oil Co. v. Marbury (1875), 91 U.S. 587, 23 L. Ed. 2d 328.) While we recognize the holding of these cases, we also recognize that in our system of judicial sales it has long been the court’s policy to protect the purchaser whenever possible. (See Village of Dolton v. First National Bank (1958), 12 Ill. 2d 435, 440, 147 N.E.2d 62, 65.) Every document in the reconstructed file of cause No. 979 refers to the estate conveyed to Novak as the mineral estate. Although the phrase oil and gas mineral estate in the tax deed may arguably have put Novak on notice that the deed did not convey the coal rights, since 1959 Novak has annually received and has paid a tax bill on the mineral estate. It was not until 1984 that he was put on notice of an adverse claim to the coal, when he was contacted by the Cave Coal Association with regard to purchasing the coal. Based on the facts at bar, we see no reason to reverse the trial court’s holding that laches is not a bar to reformation of the tax deed.

Affirmed.

RARICK and GOLDENHERSH, JJ., concur.


author: JUSTICE GOLDENHERSH

text:
    JENNIFER McGOWEN, a Minor, by her Mother and Next Friend, Anita McGowen, Plaintiff-Appellee, v. WOODSMALL BENEFIT SERVICES, INC., Defendant-Appellant.
    Fifth District
    No. 5—88—0361
    Opinion filed April 23, 1990.

      Steven M. Aroestry, of Reed, Armstrong, Gorman, Coffey, Thomson & Gilbert, of Edwardsville, for appellant.
    Burkart Law Offices, of Hamel, for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, Woodsmall Benefit Services, Inc., filed this interlocutory appeal in response to findings of the circuit court of Madison County that defendant is subject to suit in Illinois. The main issue before this court is whether defendant can be sued in Illinois. This court affirms.

The facts are not disputed. Anita McGowen, the mother and next friend of plaintiff, Jennifer McGowen, a minor, filed this action. In plaintiff’s complaint, she alleged that defendant committed acts of deceptive business practices under the Illinois Consumer Fraud and Deceptive Practices Act (Ill. Rev. Stat. 1985, ch. 121V2, par. 261). Defendant, a Missouri corporation, is registered under the State of Illinois Department of Insurance Regulations as a third-party administrator. Defendant is not registered as an out-of-State corporation.

Plaintiff also alleged that defendant supplied health insurance coverage to Richard Reynolds which covered his then wife and plaintiff stepdaughter McGowen. The insureds are residents of the State of Illinois, and defendant has a home office in Kansas City, Missouri. The policy provided coverage for dental expenses. In September 1986, plaintiff began orthodontic treatment. Prior to the start of treatment, plaintiff received confirmation of coverage from defendant. After plaintiff began treatment, she mailed the bill for services to defendant. Defendant paid for part of the services but refused further payment.

On October 21, 1987, a summons was served on defendant at its Kansas City, Missouri, office. On November 13, 1987, defendant filed its special and limited appearance “for the sole purpose of contesting the jurisdiction of this court over defendant.” On December 11, 1987, defendant filed a special appearance to object to jurisdiction. The trial court denied defendant’s special appearance and found that it has jurisdiction over defendant. From this order, defendant appeals.

The issue before this court is whether an unregistered foreign corporation which provides health insurance coverage to residents of the State of Illinois is subject to suit in Illinois.

In the leading case of World-Wide Volkswagen Corp. v. Woodson (1980), 444 U.S. 286, 62 L. Ed. 2d 490, 100 S. Ct. 559, the United States Supreme Court addressed the issue whether New York corporate defendants were subject to the jurisdiction of the Oklahoma courts. The Court discussed in detail the due process clause of the fourteenth amendment regarding the limits of the State courts to obtain valid personal jurisdiction over a nonresident defendant. (U.S. Const., amend. XIV.) The Court reaffirmed the established rule that “a state court may exercise personal jurisdiction over a nonresident defendant only so long as there exist ‘minimum contacts’ between the defendant and the forum State.” (444 U.S. at 291, 62 L. Ed. 2d at 498, 100 S. Ct. at 564.) The reason for the rule is to protect the nonresident defendant from the burden of litigating in a distant or an inconvenient forum. The rule also ensures “that the States, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system.” (444 U.S. at 292, 62 L. Ed. 2d at 498, 100 S. Ct. at 564.) Those minimum contacts must be reasonable and not offend traditional notions of fair play and substantial justice. However, the court stated that the limits of the due process clause have been relaxed to meet the “transformation in the American economy.” (444 U.S. at 293, 62 L. Ed. 2d at 498, 100 S. Ct. at 565.) At that point, foreseeability is critical to the analysis to the extent “that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” 444 U.S. at 297, 62 L. Ed. 2d at 501, 100 S. Ct. at 567.

Following Volkswagen, the Illinois General Assembly enacted section 2 — 209 of the long-arm statute. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 209.) Section 2 — 209 provides in part:

“(a) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his or her personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts:
(1) The transaction of any business within this State;
* * *
(b) Service of process upon any person who is subject to the jurisdiction of the courts of this State, as provided in this Section, may be made by personally serving the summons upon the defendant outside this State, as provided in this Act, with the same force and effect as though summons had been personally served within this State.
* * *
(d) Only causes of action arising from acts enumerated herein may be asserted against a defendant in an action in which jurisdiction over him or her is based upon this Section.”

Recent opinions have analyzed section 2 — 209 in light of the transacting business criteria. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 209(a)(1).) In Gordon v. Tow (1986), 148 Ill. App. 3d 275, 498 N.E.2d 718, the court detailed the purposes and procedure for section 2 — 209. The court stated:

“While even a single transaction may suffice for jurisdiction, that transaction must: ‘(1) give rise to the cause of action and (2) be one by which the defendant purposefully avails [himself] of the privilege of conducting activities within the forum State and voluntarily invokes the benefits and protections of the State's laws.' Conroy v. Andeck Resources, Ltd. (1986), 137 Ill. App. 3d 375, 388-89, 484 N.E.2d 525, 536.” (148 Ill. App. 3d at 280, 498 N.E.2d at 721.)

In deciding whether the nonresident defendant’s acts amount to transacting business, the court held that the “ultimate test is the substance of the act rather than the quantity.” (148 Ill. App. 3d at 280, 498 N.E.2d at 721.) The “acts” to be considered are those of the nonresident defendant.

“The determination of whether defendant sufficiently transacted business in Illinois so as to avail himself of the benefits of Illinois law requires consideration of several factors: who initiated the transaction [citation]; where the contract was entered into [citation]; and where the performance of the contract was to take place [citation]. While none of these factors has been held to be controlling, each of them has been held to be significant. [Citation.]” 148 Ill. App. 3d at 280-81, 498 N.E.2d at 722.

In this case, defendant is not a foreign corporation doing business in Illinois and is not an insurance company. However, in order for defendant to adjust or settle claims from Illinois residents covered by its health insurance plan, it must register with the Department of Insurance in order to act as a third-party administrator. (Ill. Rev. Stat. 1987, ch. 73, pars. 1065.58 — 100 through 1065.58 — 113 (article XXXD/4 of the Illinois Insurance Code) (hereinafter referred to as the Third-Party Administrators Act).) Pursuant to the Third-Party Administrators Act, defendant must abide by the Illinois Insurance Code. Ill. Rev. Stat. 1987, ch. 73, par. 613 et seq.

By the act of registering with the Department of Insurance, defendant has initiated the transaction of business in Illinois and has acknowledged that it will be administering and processing health insurance claims made by Illinois residents. After registering, the eventual health insurance contract between plaintiff and defendant was made in Illinois through the employer of plaintiff’s stepfather. Plaintiff would not have had direct contact to make the contract with defendant because the health insurance plan was offered through the employer of plaintiff’s stepfather. Since defendant offered its services in Illinois to Illinois residents, it is unlikely the contract was entered into everywhere else but in Illinois.

We note, parenthetically, that the date of this contract was May 1, 1986, a few months before article XXXD/4 of the Illinois Insurance Code, the Third-Party Administrators Act, became effective on July 1, 1986. As the contract in question preceded this amendment to the statute, the amendment does not directly decide the question before us. We note, however, its provisions. Sections 511.100 through 511.113 of the Illinois Insurance Code, i.e., Third-Party Administrators Act (Ill. Rev. Stat. 1987, ch. 73, pars. 1065.58 — 100 through 1065.58 — 113), require the registration of third-party administrators, impose bond requirements upon them, clearly establish various standards to be met in the administrator’s operations and delineate the authority of the Director of Insurance to enforce those standards and other requirements of the amendment. In our view, the legislative intent evidenced by article XXXF/4 makes explicit the regulatory scheme and the Director’s power to enforce it that was implicit prior to the enactment of this article and is based upon the very same acts of defendant that plaintiff rightly claims subjected defendant to the jurisdiction of Illinois’ courts. We additionally note that similar requirements were in force and effect at the time of this contract concerning third-party administrators’ activities in regard to prescriptions: article XXXIV2, the Third-Party Prescription Program Act (Ill. Rev. Stat. 1987, ch. 73, pars. 1065.59 — 1 through 1065.59 — 10).

The last fact to be considered is where the performance of the contract was to take place. Although defendant did not receive the premiums, the premiums were nonetheless paid in Illinois by plaintiff’s stepfather. Plaintiff’s orthodontic treatment was performed in Illinois by an Illinois orthodontist. Furthermore, defendant made a partial payment on services rendered in Illinois. This court finds that defendant has sufficiently transacted business in this State so as to avail itself of the benefits of the laws of this State.

Defendant argues that since most of the contacts were by mail and telephone, these are insufficient contacts within the minimum contacts doctrine, citing World-Wide Volkswagen and Konicki v. Wirta (1988), 169 Ill. App. 3d 21, 523 N.E.2d 160. However, defendant overlooks the type of relationship between the parties. After defendant has registered and received the contract to administer and process health insurance claims from plaintiff, the relationship becomes one based on mail and telephone contacts.

Although in Konicki the contacts consisted largely of telephone calls and mailings, the parties there were negotiating a loan. The Konicki court found that the trial court lacked personal jurisdiction over the defendants since the facts did not reveal that “defendants voluntarily sought the benefits and protections of the laws” of Illinois. 169 Ill. App. 3d at 27, 523 N.E.2d at 164.

In this case defendant did voluntarily seek the benefits and protections of the laws of this State when it registered as a third-party administrator with the Department of Insurance. Although the relationship involved mail and telephone contacts, defendant cannot deny that it understood the ramifications of its actions when it applied for a license to administer and process health insurance claims from Illinois residents. This finding does not offend traditional notions of fair play and substantial justice because the findings recognize the transformation of the American economy and defendant could reasonably anticipate being haled into court here. Thus, this court finds that the trial court did not err when it found that it did have personal jurisdiction over defendant.

For the foregoing reasons, the order of the circuit court of Madison County is affirmed.

Affirmed.

WELCH and RARICK, JJ., concur.


author: JUSTICE HOWERTON

text:
    ELZA GROVE et al., Plaintiffs-Appellants, v. STANLEY WINTER et al., Defendants-Appellees.
    Fifth District
    No. 5—88—0069
    Opinion filed April 26, 1990.

      Thomas J. Logue, of Glenn & Logue, of Mattoon, for appellants.
    James F. Jarrett, of Schniederjon, Weber & Jarrett, of Effingham, for appellees.
   JUSTICE HOWERTON

delivered the opinion of the court:

Plaintiffs, Elza and Rosemarie Grove, own 60 acres of land in Shelby County, Illinois. Plaintiffs entered into a lease mining agreement with defendants, Stanley and Virgil Winter, giving defendants the right to mine and remove limestone from plaintiffs’ land for 30 years, in return for a royalty for the limestone mined. During the mining operation, defendants removed overburden from plaintiffs' land and used it for defendants’ benefit.

Plaintiffs filed suit against defendants for breach of contract seeking damages for conversion of overburden and for failure to pay royalties for the limestone mined. Both defendants and plaintiffs moved for summary judgment as to: (1) the right of defendants to remove, and their duty to restore, the overburden; and (2) the effect of certain language which defendants placed on the back of the royalty checks. The circuit court of Shelby County denied plaintiffs’ motion for summary judgment and granted summary judgment for defendants. Plaintiffs appeal. We affirm in part, reverse in part and remand.

I.

USE OF OVERBURDEN AND DUTY TO RESTORE PLAINTIFFS’ LAND

A.

USE OF OVERBURDEN

Paragraph one of the lease mining agreement states:

“The excavation, digging, removing and processing of said limestone rock by [defendants] shall be at their sole expense and said work shall be done in a workmanlike manner and insofar as possible the overburden or soil resting on top of said rock shall be replaced upon the area from which the same is removed after the operation is finished, all in accordance with State and Federal regulations.” (Emphasis added.)

Plaintiffs argue that when defendants removed the overburden from plaintiffs’ land and used it for defendants’ own benefit, defendants breached the express terms of the lease mining agreement. Plaintiffs conclude that defendants’ actions constitute a conversion.

Here, it is uncontroverted that defendants removed overburden from plaintiffs’ land and used it for defendants’ own benefit. The record establishes that defendant Stanley Winter gave away several tons of plaintiffs’ overburden and applied it to another person’s driveway. While Stanley and Virgil Winter stated in their affidavits that they intended to return the overburden to plaintiffs’ land at the end of the 30-year lease, Elza Grove’s counteraffidavit stated that Stanley had told Elza that Stanley never intended to return the removed overburden. Further, in its order, the circuit court stated “defendants in their mining operation have removed the overburden from plaintiffs[’] lands and intermingled it with other lands.”

In its order, the circuit court stated that “[n]o provision of that [mining] agreement specifically prohibits defendants from removing such overburden from the premises during mining operations under the lease term of 30 years.” Thus, the circuit court concluded that the absence of such a provision from the mining lease showed an intention of parties to permit the removal and use of the overburden by defendants. We find, however, that because the lease did not give defendants the right to remove and use the overburden from plaintiffs’ land, such absence is evidence of plaintiffs’ intention to exclude that right to defendants. See, e.g., Domeyer v. O’Connell (1936), 364 Ill. 467, 4 N.E.2d 830.

Further, we find as error the circuit court’s ruling that the lease mining agreement did not require defendants to replace the identical overburden removed, but instead, allowed for the substitution of other soil. The court said:

“Thus, if there is a conversion at the time defendants’ duty to replace it [overburden] arises, the initial inquiry necessarily will be whether it is commercially feasible to put the identical dirt back. If not, then plaintiffs may be entitled to a reclamation with soil of a type of equal or greater productivity than that removed ***.”

Plaintiffs assert that the circuit court’s ruling is erroneous and that plaintiffs did specifically contract for the replacement of the same overburden as was removed from their land by defendants. We agree.

The language contained in paragraph one of the mining agreement stating “and insofar as possible the overburden or soil resting on top of said rock shall be replaced upon the area from which the same is removed” does not seem to allow for the casual discard of that specific overburden in whatever manner defendants see fit, so long as they find some other suitable overburden to use for the reclamation of plaintiffs’ land in 30 years.

When construing a contract, the determinative factor is to ascertain the intention of the contracting parties, and where the terms of the contract are plain and unambiguous, the intent of the parties must be ascertained solely from the words employed in the contract. (Puckett v. Oelze (1985), 134 Ill. App. 3d 1020, 481 N.E.2d 867.) If the language of the contract makes the meaning of the contract clear and unambiguous, the court has no necessity to resort to rules of construction to assist it. (Fox v. Inter-State Assurance Co. (1980), 84 Ill. App. 3d 512, 405 N.E.2d 873.) In the case at bar, we think that the language of the lease mining agreement, as it pertains to what soil should be used to restore plaintiffs’ land, is clear and unambiguous. Therefore, we hold that the circuit court was incorrect in finding that defendants would not be required to put back the same overburden which they removed from plaintiffs’ land “insofar as possible” pursuant to the lease mining agreement.

There may be evidence adduced at trial that the removing of plaintiffs’ overburden and its use for defendants’ benefit is not enough, in this instance, to constitute conversion. The circuit court suggested as much when it stated, “[t]here is a controverted material issue of fact whether plaintiffs, after execution of the agreement, orally consented to defendants^] removal of the overburden from the plaintiffs’ lands and, if so, the extent of that consent.” Clearly, the totality of the circumstances is sufficient to allow a jury to infer that defendants may have converted the overburden of which they have already disposed. Therefore, whether defendants have wrongly converted plaintiffs’ overburden is a genuine issue of material fact and summary judgment for defendants was not proper.

B.

DATE TO RESTORE OVERBURDEN

As stated previously, the lease mining agreement provided that “the overburden *** shall be replaced upon the area from which the same is removed after the operation is finished, all in accordance with State and Federal regulations.” In its order, the circuit court stated that “as a matter of law, *** no reclamation is required by the agreement in issue or the statute until the effective cessation of defendants’ mining operation or the end of the lease, whichever first occurs.” Thus, the court held that no conversion by defendants could occur until that time. We find this ruling erroneous for two reasons.

First, we hold that plaintiffs can assert a breach of contract against defendants for defendants’ failure to comply with the Illinois Surface-Mined Land Conservation and Reclamation Act (Ill. Rev. Stat. 1985, ch. 96V2, par. 4501 et seq.). Second, we hold that there is a genuine issue of material fact as to the definition of the term “operation” as contained in the lease agreement.

At the time the mining agreement was entered into, the Illinois Surface-Mined Land Conservation and Reclamation Act (hereinafter the Act) provided in part:

“All grading provided for hereunder shall proceed in conjunction with surface mining and shall be carried to completion by the operator prior to the expiration of 11 months after June 30 of the fiscal year in which the mining occurred. All other reclamation *** shall be carried to completion by the operator prior to the expiration of S years after June 30 of the fiscal year in which the mining occurred ***.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 961/2, par. 4507(k).

Besides requiring that reclamation be completed within three years, the Act further requires defendants to file an annual application for a permit for their mining operation. Defendants’ application must include a precise description of the lands to be mined along with a specific reclamation plan. The Act gives the Department of Mines and Minerals the right to inspect the operation and requires the posting of a bond to assure completion of the reclamation plan. (Ill. Rev. Stat. 1985, ch. 961/2, par. 4501 et seq.) Defendants have always followed this procedure, and the Department of Mines and Minerals has always issued permits to defendants for this mining operation. Defendants assert that the State of Illinois has been fully cognizant of the fact that for the past 13 years, defendants have failed to reclaim any portion of plaintiffs’ land.

The circuit court stated in its order, and defendants argue on appeal, that because the State has not asserted a violation of any of its regulations during the past 13 years, plaintiffs cannot assert a breach of those regulations either. We disagree.

The language contained in paragraph one of the lease mining agreement expressly states that defendants’ conduct will conform to State and Federal law. Specifically, paragraph one incorporates the provisions of the Illinois Surface-Mined Land Conservation and Reclamation Act. Therefore, we hold that plaintiffs can assert a breach of contract against defendants for defendants’ failure to comply with the Act regardless of the activity or inactivity of the government.

Also, the circuit court relied on Berry v. Kelly (1949), 90 Cal. App. 2d 486, 203 P.2d 80, to support its holding that the lease mining agreement did not require restoration of plaintiffs’ land until either defendants stopped mining the land or the 30-year lease expired. Berry, however, is easily distinguishable.

In Berry, defendants possessed an oil and gas lease on plaintiffs’ land. The lease required defendants to fill all sump holes and other excavations and to clean up plaintiffs’ property “after the termination of the lease.” While the lease was still in effect, plaintiffs brought an action against defendants for damages due to defendants’ failure to fill in some holes. Because defendants’ duty to fill in and clean up plaintiffs’ land did not arise until after the termination of the lease, the District Court for the Fourth District of California entered judgment for defendants. Berry v. Kelly (1949), 90 Cal. App. 2d 486, 203 P.2d 80.

Here, the lease mining agreement did not contain a clause so clear as “after the termination of the lease.” Instead, the agreement required restoration of plaintiffs’ land “after the operation is finished.” Plaintiffs argue that “after the operation is finished” refers to and modifies the preceding clause “upon the area from which the same is removed.” Defendants argue, however, that “the operation” refers to the entire mining operation, which will not conclude for 30 years.

We find that the term “operation,” as it appears in the lease mining agreement, is ambiguous. Therefore, whether “operation” refers to the individual segments of land being mined or to the entire 30-year mining project is a genuine issue of material fact. Evidence of prior course of dealing and of usage of trade, not present in the record before us, appears necessary for such a determination. (See Wald v. Chicago Shippers Association (1988), 175 Ill. App. 3d 607, 529 N.E.2d 1138.) Thus, summary judgment as to defendants’ duty to restore plaintiffs’ land was improper.

For the above-mentioned reasons, we find that the circuit court erred in granting summary judgment for defendants as to defendants’ use of the overburden and duty to reclaim plaintiffs’ land. Because there are genuine issues of material fact as to these questions, we hold that the court properly denied plaintiffs’ summary judgment motion in that respect. Accordingly, we reverse the decision of the circuit court granting defendants’ motion for summary judgment, and affirm the decision of the circuit court denying plaintiffs’ motion for summary judgment on that issue.

II.

LANGUAGE OF ROYALTY CHECKS

Pursuant to the lease mining agreement, plaintiffs received monthly royalty checks from defendants. Plaintiffs assert that when they received and cashed the checks, they believed that they were getting the total amount that was due to them under the terms of the agreement. It was not until a surveyor surveyed plaintiffs’ land and determined the actual tonnage of limestone mined that plaintiffs became aware that there might be some disagreement as to the amount of limestone mined and royalties owed.

During much of the mining operation, the monthly royalty checks carried the following language:

“Endorsement of this check acknowledged as payment in full of royalties due to the date__”

Defendants assert that by accepting checks with this language, plaintiffs entered into an accord and satisfaction which bars plaintiffs’ claims for any additional compensation. Both plaintiffs and defendants moved for summary judgment as to whether the restrictive language created an accord and satisfaction. The circuit court denied plaintiffs’ motion for summary judgment, granted defendants’ motion for summary judgment, and held that the language amounted to an accord and satisfaction and a release of defendants as to all royalties paid to the date of the checks. We find these rulings erroneous.

An accord is an agreement or settlement of an existing dispute, controversy or demand which presupposes a disagreement as to the amount due. (Quaintance Associates, Inc. v. PLM, Inc. (1981), 95 Ill. App. 3d 818, 420 N.E.2d 567.) Satisfaction is the execution or carrying into effect of an accord. (Black’s Law Dictionary, 1509 (4th ed. 1975).) To constitute an accord and satisfaction, the following elements must be present: (1) a bona fide dispute; (2) an unliquidated sum; (3) consideration; (4) a shared and mutual intent to compromise the claim; and (5) execution. Sherman v. Rokacz (1989), 182 Ill. App. 3d 1037, 538 N.E.2d 898.

Here, because the sums in question were liquidated, the circuit court erred in denying plaintiffs’ motion for summary judgment.

The circuit court’s order stated that “[t]he parties agree there is no issue that the amounts in question are liquidated as opposed to unliquidated in character.” The record supports the court’s finding; the amount of each check in question was determined by multiplying the number of tons of limestone mined by 10 cents pursuant to the terms of the mining agreement. Defendants do not allege as error the circuit court’s finding that the amounts in question were liquidated. Therefore, the “law of the case” doctrine binds the circuit court to the finding announced in its order that the sums in question were liquidated. (See Lake Bluff Heating & Air Conditioning Supply, Inc. v. Harris Trust & Savings Bank (1983), 117 Ill. App. 3d 284, 452 N.E.2d 1361.) Because the sums were liquidated, no accord and satisfaction could occur.

Because no accord and satisfaction could occur, we find that the circuit court erred in denying summary judgment for plaintiffs as to the effect of the language on the back of the royalty checks. Necessarily, we further find that the circuit court erred in granting summary judgment for defendants on the same issue.

Therefore, the decision of the circuit court is affirmed in part, reversed in part and remanded.

Affirmed in part; reversed in part and remanded.

RARICK and CHAPMAN, JJ., concur.

       Overburden refers to all of the earth and other materials which lie above the limestone deposits and also refers to such earth and other materials which are disturbed from their natural state in the process of surface mining. Ill. Rev. Stat. 1985, ch. 96V2, par. 4503(b).


author: JUSTICE HARRISON

text:
      In re ESTATE OF HELENA JESSMAN, Deceased (Olney Trust Bank, Ex’r of the Estate of Katherine Jessman, a/k/a Katherine Gordon, Deceased, Petitioner-Appellant, v. Connie J. Hoelscher, Ex’r of the Estate of Helena Jessman, Deceased, et al., Respondents-Appellees).
    Fifth District
    No. 5—89—0012
    Opinion filed April 26, 1990.

      Croegaert, Clark & Hough, Ltd., of Olney, for appellant.
    William W. Austin and Kim L. Spaits, both of Parke, Siemer, Austin, Resch & Resch, of Effingham, for appellee Connie J. Hoelscher.
   JUSTICE HARRISON

delivered the opinion of the court:

Helena Jessman died on July 27, 1985, leaving a will dated March 27, 1981, which bequeathed all her property to respondent Connie J. Hoelscher, and named Sandra Coleman, Connie’s daughter, as contingent legatee and devisee. The will specifically disinherited decedent’s only heir, her sister, Katherine Jessman. Katherine, by the Olney Trust Bank, guardian of her estate and, following her death, executor of her estate, filed a petition to contest the will in the circuit court of Effingham County pursuant to section 8 — 1 of the Probate Act of 1975 (Ill. Rev. Stat. 1987, ch. lUP/s, par. 8 — 1).

Petitioner’s “Second Amended Petition to Contest Will,” the subject of this appeal, contains three counts. Count I alleges that the 1981 will of Helena Jessman, admitted to probate by order dated August 8, 1985, was procured through the undue influence of respondent Connie J. Hoelscher. Count II alleges that at the time of executing said will Helena lacked the testamentary capacity to execute a valid will. Count III alleges that numerous inter vivos transfers of property, money and real estate were procured through the undue influence of respondent.

Respondent filed a motion for summary judgment on the petition, and following hearings on August 17 and December 6, 1988, the court granted her motion as to all three counts. Petitioner now appeals the judgment. As to counts I and III, we reverse and remand. However, as petitioner has failed to allege any error arising from the circuit court’s grant of summary judgment as to count II, that portion of the circuit court’s judgment is affirmed.

At the time of her death, Helena Jessman was 90 years old, and Connie Hoelscher was approximately 62. Helena was a school teacher living in Michigan when she met Connie in 1949. Helena and her sister Katherine owned a farmhouse in Kinmundy, Illinois, where they spent their summer vacations together. Connie met Helena while Connie was visiting her mother-in-law, who lived next door to the Jessman sisters. Connie became friends with the sisters and from 1949 until approximately 1959, Connie visited them two or three times a week during Helena’s summer vacations and once visited Helena in Michigan.

Helena’s trips to Kinmundy became less frequent after 1960, and following her retirement in 1966, they stopped altogether. From 1966 to 1980, Connie and Helena’s contact with each other was limited to annual phone calls during the holidays. Helena asked Connie to visit her during this 14-year period, but no visits were made.

In 1980, Helena returned to Kinmundy and purchased a home across town from where Katherine was living. At this point, the sisters owned the majority of their assets jointly with full rights of survivorship. In October 1980, Helena executed a will naming Katherine as her sole heir, legatee and devisee.

In December 1980, Katherine called Connie to tell her that Helena had returned to Kinmundy. Thereafter, Katherine periodically called Connie to ask that she visit Helena or take Helena to her doctors’ appointments. In late February and early March 1981, Katherine called Connie several times and asked that Connie take Helena home with her, which Connie did on at least two occasions for overnight or short stays. Helena was unhappy living alone, and Katherine was unwilling or unable to move Helena in with her. After Katherine suggested placing Helena in a nursing home, the sisters had “a falling out” and Connie permanently moved Helena into her home. Soon afterward, Helena requested that Connie make an appointment with an attorney to draft a new will.

Connie contacted attorney Richard Brummer, who had handled a divorce for Connie in 1972. On March 12, 1981, Connie drove Helena to Brummer’s office and the three met for over an hour. During this meeting, a broad power of attorney was prepared and executed, conferring upon Connie the right to sign checks, execute deeds and transact other business for Helena’s benefit. Brummer also obtained the information necessary to draft a will for Helena. On March 13, 1981, a draft of the new will was mailed to Helena at Connie’s home address. Prior to the execution of the will on March 27, 1981, a second draft of the will was prepared, adding “Article Two,” which reads: “Although I have a sister, Catherine Jessman of Kinmundy, Illinois, it is not my desire to leave any of my estate to her.” Katherine’s name was incorrectly spelled with a “C” in the new will, but was correctly spelled in Helena’s 1980 will.

On March 27, 1981, Connie again drove Helena to Brummer’s office. Brummer reviewed with Helena the will and a separate document designating Connie as Helena’s guardian, and discussed their legal impact with her. Brummer then called in two employees of the firm to witness the execution of the will. It is unclear from the record whether Connie was present when the will was signed. Although Connie stated that she was present, Brummer and the two witnesses did not recall her being present.

Between March 1981 and March 1982, the joint ownership of assets between Helena and Katherine was severed, and Connie became a joint tenant with Helena in the ownership of Helena’s assets. Helena’s lock box and checking accounts were placed in both Connie’s and Helena’s names. In May or June 1981, Helena purchased a home in joint tenancy with Connie, although Connie contributed none of the $70,000 cost. After Connie, her husband and Helena moved into this new home, Connie and her husband sold their home and retained all of the profits. Helena made certain other gifts to Connie between March 27, 1981, and the time of her death, including an outright transfer of 500 shares of AT&T stock.

Following Helena’s move to Connie’s home in March 1981, Connie became Helena’s sole source of transportation. Additionally, Connie handled certain financial affairs for Helena, paid her bills and deposited checks for her, purchased Helena’s clothing and personal items, and otherwise attended to her care. Connie stated, however, that she did not encourage Helena to prepare a new will, nor did she request any gifts from Helena. Connie stated that she was merely carrying out Helena’s instructions in handling her business affairs.

According to the witnesses’ affidavits, at the time Helena executed her will, she “appeared alert and of sound mind and memory” and “did not appear nervous or under any type of *** compulsion from any source.” Brummer, who represented Helena in several transactions subsequent to the execution of the will, noted a general improvement in Helena’s appearance following their first meetings in March 1981. Brummer stated that although Helena had some memory problems, she was a “rather strong-willed individual” who had indicated a dislike for, and a dissatisfaction with, her sister. Indeed, Helena resented Brummer’s suggestion that she meet with Katherine. Although Katherine made repeated attempts to reconcile with Helena, visiting Connie’s home on several occasions, Helena refused to speak with her sister.

Petitioner asserts that the trial court erred in granting summary judgment for respondent on counts I and III, where genuine issues of material fact exist as to whether Helena’s 1981 will and her subsequent inter vivos transfers of property were procured through the undue influence of respondent. We agree. ■

The purpose of summary judgment is not to try an issue of fact, but to determine whether a triable issue of fact exists. (Sloan v. Jasper County Community Unit School District No. 1 (1988), 167 Ill. App. 3d 867, 870, 522 N.E.2d 334, 336.) Summary judgment should be granted with caution so that the right to trial on conflicting facts and inferences is not usurped. “Only when the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law should summary judgment be awarded.” 167 Ill. App. 3d at 870, 522 N.E.2d at 336.

Even if the facts are undisputed, if reasonable persons could draw different inferences from the facts, a triable issue exists. Only when undisputed facts admit of but a single inference does the issue become one of law. (Practical Offset, Inc. v. Davis (1980), 83 Ill. App. 3d 566, 570, 404 N.E.2d 516, 520.) Further, summary judgment is particularly inappropriate where the inferences sought to be drawn by the parties deal with questions of motive, intent or subjective feelings and reactions. (Montgomery Ward & Co. v. Wetzel (1981), 98 Ill. App. 3d 243, 247, 423 N.E.2d 1170, 1174; Schuster v. East St. Louis Jockey Club, Inc. (1976), 37 Ill. App. 3d 483, 487, 345 N.E.2d 168, 172.) Here, both parties sought to draw inferences regarding the intent and feelings of Helena from the facts surrounding the making of Helena’s 1981 will and subsequent inter vivos transfers of property.

With regard to petitioner’s count I, we note that undue influence arises when the dispository provisions of a will are more the will of the influencer than the testator. (In re Estate of Mooney (1983), 117 Ill. App. 3d 993, 997, 453 N.E.2d 1158, 1161.) The circumstances which raise a presumption that a will was executed as a result of undue influence on the testator are as follows: (1) a fiduciary relationship between testator and a person who receives a substantial benefit under the will (compared to other persons who have an equal claim to the testator’s bounty); (2) a testator in a dependent situation in which the substantial beneficiaries are in dominant roles; (3) a testator who reposed trust and confidence in such beneficiaries; and (4) a will prepared or procured and executed in circumstances wherein such beneficiaries were instrumental or participated. (117 Ill. App. 3d at 997, 453 N.E.2d at 1161.) Once these factors are proven, the petitioner has established a prima facie case of undue influence and the burden shifts to those who would defend the will to rebut the presumption. 117 Ill. App. 3d at 997, 453 N.E.2d at 1161.

We believe the evidence before the circuit court was sufficient to raise the presumption of undue influence in the execution of Helena’s 1981 will. It would appear from the record that Connie stood in a fiduciary relationship with Helena. Indeed, respondent admitted in oral argument that a fiduciary relationship existed. The dispositive provisions of the 1981 will exclusively benefit Connie and disinherit Katherine, who was Helena’s only living relative. Helena was dependent upon Connie, a dominant party who took Helena into her home at a time of need. Helena entrusted Connie to handle her financial affairs and most of the affairs of her day-to-day existence. Finally, the 1981 will was procured and executed under circumstances wherein Connie participated. Therefore, petitioner had established a prima facie case of undue influence in the procurement of the will that should have withstood a motion for summary judgment.

A similar presumption of undue influence applies to the inter vivos transfers of property between Helena and Connie which are the subject of petitioner’s count III. As a matter of law, a power of attorney gives rise to a general fiduciary relationship between the grantor of the power and the grantee. (Lemp v. Hauptmann (1988), 170 Ill. App. 3d 753, 757, 525 N.E.2d 203, 205.) Once the petitioner has shown a fiduciary relationship exists, the presumption is that a transaction between the parties which profits the fiduciary is fraudulent. The burden then shifts to the fiduciary to prove by clear and convincing evidence that the transaction was not the result of undue influence. In re Estate of Rothenberg (1988), 176 Ill. App. 3d 176, 178, 530 N.E.2d 1148, 1150; Lemp, 170 Ill. App. 3d at 757, 525 N.E.2d at 206.

The inter vivos transfers of property between Helena and Connie all occurred between the grant of the power of attorney on March 12, 1981, and the termination of that power upon Helena’s death. Therefore, the presumption is that the transactions are fraudulent because of the fiduciary relationship between Helena and Connie. Given this presumption, she similarly has not shown that no genuine issue of material fact exists warranting a grant of summary judgment regarding these transfers.

In determining the genuineness of a material fact issue, the court should ignore personal conclusions as to motive or credibility and should liberally construe the evidence in favor of the party opposing the motion for summary judgment. (Schuster, 37 Ill. App. 3d at 487, 345 N.E.2d at 172.) Here, in ordering summary judgment for respondent on counts I and III, the circuit court failed to follow this standard, making findings of fact based upon inferences as to motive and construing the evidence in favor of the respondent, despite the presence of legal presumptions to the contrary. We therefore reverse the circuit court’s grant of respondent’s motion for summary judgment on counts I and III and remand the cause for further proceedings consistent with this opinion.

Affirmed in part; reversed and remanded.

WELCH and GOLDENHERSH, JJ., concur.