author: PRESIDING JUSTICE KNECHT

text:
    PAUL RITTENHOUSE, JR., Plaintiff-Appellee, v. TABOR GRAIN COMPANY, Defendant and Third-Party Plaintiff-Appellant and Cross-Defendant-Appellant (Long Point Grain and Supply Company, Inc., Third-Party Defendant-Appellee and Cross-Plaintiff-Appellee; CE-Natco et al., Third-Party Defendants-Appellees).
    Fourth District
    No. 4 — 86—0486
    Opinion filed September 20, 1990.

      William R. Brandt and Peter W. Brandt, both of Livingston, Barger, Brandt & Schroeder, of Bloomington, for appellant.
    Herbolsheimer, Lannon, Henson, Duncan & Reagan, P.C., of La Salle (R.J. Lannon, Jr., and Robert M. Hansen, of counsel), for appellee Greenlee Construction Co.
    John A. Taylor, of Johnson & Taylor, and Randolph Spires, of Satter, Ewing & Beyer, both of Pontiac, for appellee Paul Rittenhouse, Jr.
    Wildman, Harrold, Allen & Dixon, of Chicago (James P. Dorr, Dale G. Wills, and Timothy W. Heath, of counsel), for appellee CE-Natco.
    Thompson, Strong, Blakeman & Schrock, Ltd., of Pontiac, and Dunn, Goebel, Ulbrich, Morel & Hundman, of Bloomington (Kenneth L. Strong, C. Thomas Blakeman, and John L. Morel, of counsel), for appellee Long Point Grain & Supply Company, Inc.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

This property damage action arose from the collapse of a bin at a grain storage facility in Long Point, Illinois. At trial, the circuit court erroneously directed verdicts thereby tainting the subsequent jury verdicts in the action. We affirm in part, reverse in part, and remand for further proceedings.

Following the collapse of a grain bin onto his property, Paul Rittenhouse, Jr. (Rittenhouse), filed a damage action against Tabor Grain Company (Tabor) and Long Point Grain and Supply Company, Inc. (Long Point), the respective operator and owner of the storage facility, under the recovery theories of negligence, res ipsa loquitur, and wilful and wanton misconduct. In response, though Rittenhouse would later dismiss the action against it, Long Point filed a cross-complaint against Tabor under the recovery theories of breach of lease, negligence, and wilful and wanton misconduct. Long Point also filed a counterclaim against Tabor for contribution and indemnification. In turn, Tabor filed a counterclaim against Long Point under the recovery theories of breach of lease warranties, negligence, and wilful and wanton misconduct. Tabor also filed a separate claim against Long Point for contribution and indemnification. Tabor last filed third-party complaints against Jones Construction Company (Jones), Greenlee Construction Company (Greenlee Construction), and CE-Natco (Natco), the respective contractors and manufacturer of the grain bin and its foundation, for contribution and indemnification. The circuit court ultimately disposed of the third-party complaints under the construction statute of repose (111. Rev. Stat. 1983, ch. 110, par. 13— 214(b)).

During the presentation of evidence at trial, the circuit court directed the following verdicts: (1) a verdict for Rittenhouse against Tabor on negligence and on compensatory damages; (2) a verdict for Tabor against Rittenhouse on res ipsa loquitur; and (3) a verdict for Long Point against Tabor on indemnification and on negligence. The circuit court allowed the jury to consider the remaining issues in the action. At the end of the presentation of evidence at trial, the jury returned the following verdicts: (1) a verdict for Rittenhouse against Tabor on compensatory damages in the sum of $62,186 and on punitive damages in the sum of $65,500; (2) a verdict for Long Point against Tabor on compensatory damages in the sum of $175,000, on rent in the sum of $14,240, and on punitive damages in the sum of $100,000; and (3) a verdict for Long Point against Tabor on the contribution counterclaim of the latter.

The following evidence was presented at trial.

Dean Ruff (Dean), the president of Long Point, testified his company purchased two used grain bins from Jones in 1966. At the time of purchase, the two grain bins stood erected on a site in Salina, Kansas. Long Point had the grain bins disassembled for transport to its storage facility. In preparation for the reerection of the two grain bins, Long Point first had Greenlee Construction construct foundations for the bins at its storage facility. The two grain bins were reerected with the first bin ready for use in the fall of 1966 and the second bin ready for use in the spring of 1967.

The bins were constructed with steel plates bolted in the form of rings. The dimensions of each ring were 8 feet in height and 80 feet in diameter. As erected, the grain bins rose nine rings, or 72 feet, in the air.

In November 1971, the second grain bin collapsed. Following the collapse of the second grain bin, Long Point had structural reinforcements added to the first grain bin. Long Point also instituted a practice of limiting grain storage in the bin to only the level of the seventh ring.

In September 1987, Long Point leased its grain storage facility to Tabor. During the lease negotiations, Dean testified representatives of Tabor, John Christ and Dixon Stephens, agreed to continue the practice of limiting grain storage in the bin to only the level of the seventh ring. He also testified Tabor did not request any additional reinforcement or repair of the grain bin. After its lease of the grain storage facility to Tabor, Dean testified he reiterated the importance of the grain storage limitation practice to Mark Jahraus, the manager of the facility for Tabor.

Dean next testified to the lease agreement with Tabor. The lease agreement included a schedule of assets for the grain storage facility. The schedule of assets listed the grain storage capacity of the facility. Although the amount of rent was to be based on the grain storage capacity of the facility, Long Point did not correct the schedule of assets to account for the grain storage limitation practice. Rather, Long Point entered into the lease with only an oral modification of the grain storage limitation practice as Tabor did not seem willing to amend the agreement.

Dean last testified to his inspection of the grain bin. In the inspection prior to the lease agreement, he did not find any settlement or structural safety problems with the grain bin. Dean last inspected the grain bin at the time of the collapse. He observed the bolts had sheared from the steel plates in the second ring of the grain bin. Dean only then learned Tabor had stored grain in excess of the seventh-ring limitation level.

Jerry Ruff (Jerry), the manager of the grain storage facility for Long Point, corroborated the testimony of Dean. He also testified to the structural safety inspection of the grain bin. Following the collapse of the second grain bin, Long Point contacted National Tank Company (National), the bin manufacturer, to conduct a safety inspection of the first grain bin. National found the bin structurally safe for the storage of grain without any limitation in storage practices. Long Point still had reservations as to the structural safety of the first grain bin following that inspection. As an added safety measure, Long Point thereafter instituted a practice of limiting grain storage in the bin to only the level of the seventh ring. The seventh-ring limitation level was not based on any formal structural engineering calculation.

Otis Ruff (Otis), a Long Point maintenance employee, then corroborated the testimony of Dean and Jerry. Otis testified the representatives of Tabor had been informed of the grain storage limitation practice during the lease negotiations. Otis also testified he personally informed Jahraus of the grain storage limitation practice at the time of the transition in management.

Mark Jahraus, the manager of the facility for Tabor, testified to its grain storage practices. Tabor had exclusive control over operation and possession of the grain storage facility. Tabor instructed Jahraus to continue the existing facility practice of limiting the storage of grain in the bin to between the seventh and eighth rings. Long Point also instructed Jahraus to continue its grain storage limitation practice.

In early October 1982, Jahraus conducted the harvest season inspection of the grain bin. He did not find any structural safety problems with the grain bin. Jahraus then allowed storage of the current grain harvest in the bin. He later authorized the transfer of 6,400 bushels of grain from the bin to other storage. This transfer left 334.000 bushels of grain still stored in the bin. At that point, the facility had a remaining storage capacity of approximately 40,000 to 45.000 bushels spread over five grain bins. Jahraus did not authorize any further transfer of grain from the bin to maintain quality control in the facility.

Theodore John Simpson, a Tabor maintenance employee, testified to grain storage practices at the facility. He testified Jahraus had instructed the Tabor employees to limit the storage of grain in the bin to only the level of the seventh ring.

John Krischel, a second Tabor maintenance employee, also testified to the grain storage practices at the facility. He testified Jahraus had not included any reference point for measurement in instructing him to limit the storage of grain in the bin. Krischel last testified Jahraus had acknowledged the grain then stored exceeded the limitation level for the bin.

Darrell Greenlee, the owner of Greenlee Construction, testified to the construction of the foundations for the grain bins. He testified Long Point hired him to construct the foundations for the grain bins at its storage facility in 1966. Long Point had previously arranged for Jones to develop the original set of construction blueprints for the foundations. As instructed, he then followed these blueprints in constructing the foundations. Greenlee did not recall any other participation on the part of Long Point in the construction of the foundations.

George Cline, a Federal warehouse examiner, testified to his inspection of the grain storage facility. He testified the government had licensed the grain storage facility at a total capacity of 345,000 bushels. Cline also testified the grain storage capacity was not related to any specific safety considerations for the facility.

Dean Wurth, an expert witness in structural engineering for Tabor, testified to his examination of the foundation of the grain bin. He determined the foundation was not level. He also found 36 cracks in the foundation of the grain bin. These cracks added 2.1 inches to the circumference of the foundation with a concomitant increase in the stress to the grain bin.

At trial, Wurth stated his belief, without any proof in substantiation, that the cracks started to form in the foundation at first storage of grain in the bin. Wurth also stated his belief as to the factors contributing to the collapse of the grain bin: (1) the pressure of the stored grain; (2) the cracks in the foundation; and (3) the changes in temperature. Specifically, the combination of these factors caused the vertical-seam bolts to shear from the steel plates of the grain bin. In conclusion, Wurth testified the collapse of the bin would not have been prevented had Tabor strictly adhered to the practice of limiting the storage of grain in the bin to only the level of the seventh ring.

Dennis Roby, a second expert witness in structural engineering for Tabor, testified to his examination of the grain bin and its foundation. The examination revealed: (1) the foundation had settled unevenly with excessive cracks and (2) the bolts had been stressed approximately 14% over their maximum service load. Roby next stated his belief as to the factors contributing to the collapse of the grain bin: (1) the bolts had been initially stressed to their maximum service load in design; (2) the original bolts had been reused in reerecting the grain bin at the storage facility; and (3) the foundation had settled unevenly with excessive cracks. Roby last testified the collapse of the bin would not have been prevented had Tabor strictly adhered to the practice of limiting the storage of grain in the bin to only the level of the seventh ring.

Dixon Stephens, the supervisor of the country elevators for Tabor, testified to the lease negotiations with Long Point. In part, Tabor based its entry into the lease agreement on the grain storage capacity of the facility. Tabor also based its rent on the grain storage capacity of the facility. As to the capacity of the facility, representatives of Long Point, Jerry and Otis, informed Stephens of its grain storage limitation practice. Stephens concluded this practice did not expressly preclude grain storage at the maximum capacity of the bin.

Joseph K. Adelman, an expert witness in mechanical engineering for Long Point, testified to his investigation into the collapse of the grain bin. He refuted the opinions of the expert witnesses for Tabor. Adelman first testified the stress on the bin was proportionally related to the level of the stored grain. He next stated his belief as to the factors contributing to the collapse of the grain bin: (1) the pressure of the stored grain and (2) the improper design of the bin. Adelman last testified the bin was not structurally safe for the storage of grain at any point approaching maximum capacity.

Clifford Grimwood, a Tabor employee, testified to the initial discovery of the structural failure in the grain bin. Early in the afternoon of January 13, 1983, he observed a bushel or so of grain had apparently leaked from a four-bolt shear in the second ring of the bin onto the foundation and ground. Grimwood also observed the bolts in the first ring of the grain bin were still intact.

We first consider whether the circuit court erred in directing verdicts on negligence and res ipsa loquitur at trial, and conclude it did.

It is not a simple matter to determine when the evidence in an action is sufficient to justify removing a specific issue from the consideration of the jury. To aid the circuit court in this determination, the Illinois Supreme Court set forth a uniform standard on directed verdicts in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504. “[A verdict] ought to be directed *** only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (Pedrick, 37 Ill. 2d at 510, 229 N.E.2d at 513-14.) Thus, the circuit court may properly direct a verdict only when the evidence on an issue presents no factual question for the consideration of the jury.

Negligence, as a theory of recovery, consists of four separate elements: (1) duty, (2) breach, (3) damage, and (4) causation. (Filipetto v. Village of Wilmette (1985), 135 Ill. App. 3d 781, 784, 482 N.E.2d 358, 360.) The burden of proving each element rests with the plaintiff. Absent such proof, the plaintiff is not entitled to any recovery on negligence in the action.

We do not view the evidence on the duty, breach, and damage elements of the negligence theory of recovery as being controverted in this action. First, the owners of the adjacent parcels of real estate owe each other a duty of care as to safety in the maintenance and use of their respective properties. Second, Tabor stored grain in the bin beyond the capacity stated in the lease. Third, the property of Rittenhouse was indisputably damaged in the collapse of the grain bin. We therefore presume Rittenhouse met his burden of proving each of these three elements.

In contrast, we view the evidence on the causation element of the negligence theory of recovery as being controverted in this action. Specifically, the expert witnesses of the litigants did not concur in their opinions as to either the value of the grain storage limitation practice as a safety measure or the factors contributing to the collapse of the grain bin. As to the former opinion evidence, Wurth and Roby, the expert witnesses for Tabor, testified the collapse of the bin would not have been prevented had Tabor strictly adhered to the practice of limiting the storage of grain in the bin to only the level of the seventh ring. In addition, Adelman, the expert witness for Long Point, ultimately conceded the bin was not structurally safe for the storage of grain at any point approaching maximum capacity. As to the latter opinion evidence, the expert witnesses variously attributed the bin collapse to improprieties in its assembly, design, foundation, and operation. Thus, we cannot find Rittenhouse established, as a matter of law, that Tabor’s overfilling of the bin was a substantial factor in its collapse. See W. Keeton, Prosser & Keeton on the Law of Torts §41, at 264-69 (5th ed. 1984); Restatement (Second) of Torts §431, at 428, comment a, at 429 (1965).

Under the doctrine of res ipsa loquitur, when applicable, the jury is allowed to infer the injury of the plaintiff was caused by the negligence of the defendant. (See Walker v. Rumer (1978), 72 Ill. 2d 495, 381 N.E.2d 689.) As with any inference, the burden of proof, in terms of both persuasion and production, shifts between the plaintiff and the defendant at trial. Initially, the plaintiff must prove only two elements: (1) his injury would not have occurred absent negligence and (2) his injury was caused by some instrumentality then in the control of the defendant. (Dyback v. Weber (1986), 114 Ill. 2d 232, 238-41, 500 N.E.2d 8, 10-12.) In turn, the defendant may rebut these elements by showing a third party intervened to cause the injury of the plaintiff. Senase v. Johns (1981), 96 Ill. App. 3d 164, 169, 420 N.E.2d 1104, 1108.

Our review of the record indicates both Rittenhouse and Tabor met their respective burdens of proof under the doctrine of res ipsa loquitur. Rittenhouse showed Tabor had exclusive control over operation and control of the grain storage facility. Rittenhouse also showed the bin collapse could be attributed to improprieties in its operation. In rebuttal, however, Tabor showed the bin collapse could be attributed to improprieties in its assembly, design, and foundation. Given the controverted nature of the evidence, we find a question of fact arises whether Tabor successfully rebutted the inference that its negligence caused the injury to Rittenhouse.

We view the evidence as being controverted under both the negligence and the res ipsa loquitur theories of recovery. “Where a substantial factual dispute is presented by the evidence and where an assessment of the credibility of witnesses and an election between conflicting evidence may be decisive, it is erroneous to direct a verdict.” (Cokinis v. Maywood-Proviso State Bank (1980), 81 Ill. App. 3d 1057, 1063, 401 N.E.2d 1077, 1083.) We therefore find the circuit court erred in directing verdicts on negligence and res ipsa loquitur at trial.

A jury will be influenced by any appearance of favoritism toward a litigant on the part of the circuit court. (See Abrams v. City of Mattoon (1986), 148 Ill. App. 3d 657, 663, 499 N.E.2d 147, 151.) In directing the verdicts on negligence and res ipsa loquitur, given the controverted nature of the evidence, the circuit court impermissibly appeared to favor Rittenhouse and Long Point over Tabor at trial. Such an appearance of favoritism on the part of the circuit court, though unintentional, irrevocably tainted the subsequent consideration of the jury on all remaining tort recovery issues in the action. (See McMillen v. Carlinville Area Hospital (1983), 114 Ill. App. 3d 732, 733, 450 N.E.2d 5, 7.) We therefore remand this action to the circuit court for a new trial on the issue of recovery under the tort theories of negligence, res ipsa loquitur, and wilful and wanton misconduct.

Tabor also contends the circuit court erred in denying its motion in limine to bar any reference to the grain storage limitation practice of Long Point at trial. We disagree.

Tabor based its motion on the parol evidence rule. (Davis v. Buehholz (1981), 101 Ill. App. 3d 388, 391, 428 N.E.2d 198, 200.) In support of its motion in limine, Tabor specifically argued the Ruff brothers should be precluded from testifying about their grain storage limitation practice because that testimony would have the effect of altering the express meaning of the underlying lease agreement, which did not include any similar limitation within its terms. The circuit court denied the motion and ruled the testimony admissible for the limited purpose of showing Tabor had notice of the dangerous condition of the grain bins at the storage facility.

We do not believe Tabor properly preserved this contention for appellate review. Following the denial of its motion in limine, Tabor never renewed its parol evidence objection to the testimony of the Ruff brothers on their grain storage limitation practice at trial. Instead, as a strategic matter, Tabor elected to attack that storage practice on its economic and scientific bases throughout the course of the trial. Under these circumstances, we conclude Tabor has waived consideration of this contention on appeal. See Department of Public Works & Buildings v. Roehrig (1976), 45 Ill. App. 3d 189, 195, 359 N.E.2d 752, 759.

Waiver aside, we do not believe Tabor could prevail on its motion in limine as a matter of law. First, the parol evidence rule applies to only the parties to the written agreement. (Northern Assurance Co. v. Chicago Mutual Building & Loan Association (1902), 198 Ill. 474, 64 N.E. 979.) Since Rittenhouse is not a party to the underlying lease agreement, he remains free to elicit testimony on the grain storage limitation practice of the Ruff brothers at trial. (See General Casualty Co. v. Elam (1972), 8 Ill. App. 3d 215, 222-25, 289 N.E.2d 699, 704-06.) Second, parol evidence may be admissible to show the concerns of the parties prior to and contemporaneous with the signing of the written agreement. (URS Corp. v. Ash (1981), 101 Ill. App. 3d 229, 234-35, 427 N.E.2d 1295, 1299-1300; see also Sunstream Jet Express, Inc. v. International Air Service Co. (7th Cir. 1984), 734 F.2d 1258.) As a result, Long Point may also seek to use that testimony to show notice of an unsafe condition on the part of Tabor. Accordingly, the circuit court did not err in denying the motion.

Tabor next contends the circuit court erred in denying its motion in limine to bar any reference to the earlier collapse of the sister grain bin at trial. We again disagree.

In Illinois, a party may introduce evidence of a prior accident to show notice of the existence of a dangerous condition. (Henderson v. Illinois Central Gulf R.R. Co. (1983), 114 Ill. App. 3d 754, 757, 449 N.E .2d 942, 944.) The admissibility of such evidence is not dependent on any factual similarity between the accidents. Henderson, 114 Ill. App. 3d at 758, 449 N.E.2d at 945; see also First National Bank v. Illinois Central Gulf R.R. Co. (1978), 62 Ill. App. 3d 36, 378 N.E .2d 1329.

Applying these principles here, the circuit court did not err in denying the motion in limine of Tabor. The evidence of the earlier collapse of the sister grain bin is relevant to explain the grain storage practices of both Long Point and Tabor. Following the collapse of the sister bin, Long Point had structural reinforcements added to the remaining bin. Long Point also had that bin inspected by its manufacturer. Although the bin passed inspection, as an added safety measure, Long Point thereafter limited the storage of grain in the bin to the level of the seventh ring. In contrast, Tabor apparently chose to rely on this safety inspection in discontinuing the grain storage limitation practice during its operation of the facility. As this evidence may be variously construed to support both Long Point and Tabor, the jury, as the trier of fact, should determine its proper probative value.

Tabor additionally contends the circuit court erred in allowing Dean Ruff to testify concerning the property losses of Long Point. We disagree.

At trial, Long Point called Dean to testify concerning the value of its property losses as a result of the bin collapse. Tabor argued Dean should not be allowed to testify as Long Point had not disclosed him as an expert -witness pursuant to Supreme Court Rule 220. (107 Ill. 2d R. 220.) Long Point countered that Dean was a layperson witness as opposed to an expert witness. We agree, as did the circuit court, that Dean is not an expert witness subject to the disclosure requirements of Supreme Court Rule 220.

Supreme Court Rule 220 governs the disclosure of expert witnesses. It is “intended to facilitate trial preparation *** by eliminating the last-minute disclosure of [any critical expert opinion] on the courthouse steps or during the course of trial.” (107 Ill. 2d R. 220, Committee Comments at 354.) Although Supreme Court Rule 220 took effect after this action had originally commenced, it was a procedural change and should apply in full force on remand.

In Illinois, the valuation of property is a question of fact. (Central Illinois Light Co. v. Porter (1968), 96 Ill. App. 2d 338, 342, 239 N.E.2d 298, 301.) As a result, any person with special knowledge of the subject property is thereby qualified to testify as a valuation witness. (Porter, 96 Ill. App. 2d at 342, 239 N.E.2d at 301.) In this action, Dean has acquired such knowledge through his employment as president of Long Point. (See Department of Public Works & Buildings v. Atkins (1966), 68 Ill. App. 2d 98, 103, 215 N.E.2d 452, 455.) Under these circumstances, Dean was qualified to testify as a valuation witness for Long Point in the action. See Diminskis v. Chicago Transit Authority (1987), 155 Ill. App. 3d 585, 589-91, 508 N.E.2d 215, 219-20, aff’d (1988), 124 Ill. 2d 226, 529 N.E.2d 525.

Tabor further contends the circuit court applied an improper measure of damages for property loss recovery at trial. We agree in part.

At trial, Rittenhouse and Long Point sought to introduce replacement-cost evidence in building their respective damage cases. Tabor objected in both instances. The circuit court overruled the objections, and the evidence went before the jury for the calculation of compensatory damages.

An award of damages aims at compensating the injured party for damage to his property. (Roark v. Musgrave (1976), 41 Ill. App. 3d 1008, 1011, 355 N.E.2d 91, 94.) The goal is to restore the party to the equivalent of his rightful preinjury position. Restatement (Second) of Torts §901, comment a, at 452 (1979).

We view the damaged property in dispute, namely a storage building on the farm of Rittenhouse together with the grain bin and related drying equipment at the storage facility of Long Point, as income-producing fixtures attached to realty. (See National Boulevard Bank v. Citizens Utilities Co. (1982), 107 Ill. App. 3d 992, 1001, 438 N.E.2d 471, 478.) Where a fixture is totally destroyed, or so damaged as to render repair impracticable, the proper measure of recovery is generally the diminution in the fair market value of the realty. (Arras v. Columbia Quarry Co. (1977), 52 Ill. App. 3d 560, 564-65, 367 N.E.2d 580, 583-84; Myers v. Arnold (1980), 83 Ill. App. 3d 1, 7-8, 403 N.E.2d 316, 321; see also Williams-Bowman Rubber Co. v. Industrial Maintenance, Welding & Machining Co. (N.D. Ill. 1987), 677 E Supp. 539.) That rule may be supplanted with replacement-cost evidence only when the damaged fixture “has a distinct value without reference to the real estate upon which it stands.” Kremeyer v. Shumate (1959), 20 Ill. App. 2d 542, 546,156 N.E.2d 271, 273-74.

Applying these principles, we conclude the circuit court should allow Rittenhouse to introduce replacement-cost evidence at the proceedings on remand. Rittenhouse established his storage building, a relatively new structure, had been maintained in near-perfect condition for use as a display model until its destruction. Taken together, these facts are sufficient to support departure from the ordinary rule of recovery. (See Jensen v. Chicago & Western Indiana R.R. Co. (1981), 94 Ill. App. 3d 915, 936, 419 N.E.2d 578, 595.) In contrast, Long Point showed its old equipment had already seen hard use by the time the grain bin collapsed at the storage facility. Long Point is thus not entitled to use replacement costs to profit from its commercial injuries. See Johnson v. Pagel Clikeman Co. (1951), 343 111. App. 346, 99 N.E.2d 148.

Tabor last contends the circuit court erred in dismissing two of its third-party complaints against Ñateo and Greenlee Construction under the construction statute of repose. Ill. Rev. Stat. 1983, ch. 110, par. 13 — 214(b).

Actions against business entities for an act or an omission in construction are governed by section 13 — 214 of the Code of Civil Procedure. That section provides in pertinent part:

“(b) No action based upon tort, contract or otherwise may be brought against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property after 12 years have elapsed from the time of such act or omission. However, any person who discovers such act or omission prior to expiration of 12 years from the time of such act or omission shall in no event have less than 2 years to bring an action as provided in sub-section (a) of this Section.” Ill. Rev. Stat. 1983, ch. 110, par. 13 — 214(b).

A statute of repose is not a statute of limitation. The former affects substantive rights; the latter affects procedural rights. Specifically, a statute of repose “extinguishes the right of action itself before it [accrues].” (Emphasis in original.) (Thornton v. Mono Manufacturing Co. (1981), 99 Ill. App. 3d 722, 726, 425 N.E.2d 522, 525.) In contrast, a statute of limitation “governs the time within which lawsuits may be commenced after [the right] of action [accrues].” (Emphasis in original.) Thornton, 99 Ill. App. 3d at 726, 425 N.E.2d at 525.

This action involves the prospective application of the construction statute of repose. (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 214(b); Hartford Fire Insurance Co. v. Architectural Management, Inc. (1987), 158 Ill. App. 3d 515, 511 N.E.2d 706; LaSalle National Bank v. Edward M. Cohon & Associates, Ltd. (1988), 177 Ill. App. 3d 464, 532 N.E.2d 314; see also Hayes v. Mercy Hospital & Medical Center (1990), 136 Ill. 2d 450.) Under this statute, a litigant must discover his cause of action within a 12-year period following the completion of construction. He then has an additional two-year period in which to file suit. Thus, the statute of repose limits the “discovery rule” (see Champaign County Nursing Home v. Petry Roofing, Inc. (1983), 117 Ill. App. 3d 76, 452 N.E.2d 847) in actions against business entities for an act or an omission in construction. Reichelt v. Urban Investment & Development Co. (N.D. Ill. 1984), 577 F. Supp. 971, 974.

Tabor had no inchoate third-party causes of action prior to either the initial enactment or the instant reenactment of the construction statute of repose. Rather, Tabor discovered its third-party causes of action only at the time of the collapse of the grain bin on January 13, 1983. (See Erdie v. Central Illinois Public Service Co. (1988), 175 Ill. App. 3d 1050, 1053-54, 530 N.E.2d 514, 517.) This was approximately three years after the initial enactment of the construction statute of repose (Ill. Rev. Stat., 1980 Supp., ch. 83, par. 22.3) on November 29, 1979, and approximately six months after the effective date of its instant reenactment (Ill. Rev. Stat. 1983, ch. 110, par. 13— 214(b)) on July 13, 1982. Blackwood v. Rusk (1986), 148 Ill. App. 3d 868, 500 N.E.2d 69.

The grain bins were reerected at the storage facility in 1966. It is undisputed this is the last involvement on the part of Greenlee Construction and Natco with the grain bin. Tabor did not file its third-party complaints until March 1985. This was approximately 20 years after the reerection of the grain bin, approximately three years after the instant reenactment of the construction statute of repose, and approximately two years after the collapse of the grain bin. Accordingly, Tabor was time barred from filing third-party complaints against Greenlee Construction and Natco under the construction statute of repose. Ill. Rev. Stat. 1983, ch. 110, par. 13 — 214(b).

The circuit court erred in directing verdicts on negligence and res ipsa loquitur at trial. That error tainted the subsequent jury verdicts on tort recovery in the action. Accordingly, the directed verdict in favor of Rittenhouse and against Tabor on a negligence theory is reversed. The directed verdict in favor of Tabor and against Rittenhouse on a theory of res ipsa loquitur is reversed. The directed verdict in favor of Long Point and against Tabor on theories of negligence and indemnification is reversed. In short, all directed verdicts are reversed. Further, the jury verdicts in favor of Rittenhouse and against Tabor for compensatory damages on the negligence theory and punitive damages on the wilful and wanton theory are reversed. The jury verdicts in favor of Long Point and against Tabor for compensatory damages on a negligence theory and for punitive damages on a wilful and wanton theory and on the contribution counterclaim of Tabor are reversed. In sum, all jury verdicts are reversed save for the jury verdict in favor of Long Point and against Tabor for rent, and that verdict is affirmed. The trial court’s dismissals of the third-party complaints against Nataco and Greenlee Construction are affirmed. We therefore remand this cause for a new trial on the issue of recovery under the tort theories of negligence, res ipsa loquitur, and wilful and wanton misconduct.

Affirmed in part, reversed in part, and remanded for further proceedings.

SPITZ and GREEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SPITZ

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDDIE O’NEAL, Defendant-Appellant.
    Fourth District
    No. 4 — 90—0010
    Opinion filed October 4, 1990.
    Daniel D. Yuhas and Arden J. Lang, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and J.A.C. Knuppel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SPITZ

delivered the opinion of the court:

Following a jury trial conducted in the circuit court of Macon County, the defendant Eddie O’Neal was found guilty of armed violence (Ill. Rev. Stat. 1989, ch. 38, par. 33A — 2). Defendant was sentenced to serve an eight-year term of imprisonment.

In this appeal, the only issue raised is whether the trial court’s denial of defendant’s motion to suppress evidence was against the manifest weight of the evidence. At the hearing on the motion to suppress, after a stipulation was entered that the police acted without a warrant, evidence was adduced that on June 20, 1989, at approximately 11:37 p.m., three City of Decatur police officers, Kevin Hollingsead, Robert Whitten, and Larry Butler, were in the 100 block of Longview Place. The men were off duty and working as security officers for the Decatur Housing Authority. They were dressed in Decatur police uniforms.

While on patrol, they observed a 1979 Chevrolet van parked illegally in a fire lane, facing Marietta Street. Three people were in the van, one of whom was in the back seat. Initially, the officers only observed the two people who were sitting in the two captain’s chairs in the front of the van. The officers observed other people standing outside the van, but those people moved away as the officers approached.

When the police pulled up, they placed their car in front of the van. Two officers approached the passenger side of the van, and the other officer approached the driver’s side of the van. Hollingsead observed the defendant, who was seated in the driver’s seat, bend down for two seconds toward the passenger’s seat and then right himself. Butler thought he saw the defendant putting something between the two seats. Butler could not see the defendant’s head after he ducked. Butler did not know if the defendant had anything in his hand or if he put anything to his face. As the officers approached the van, Whitten saw the defendant duck for a few seconds as though he were hiding something.

The passenger in the front seat was asked to step out and Butler conducted a pat-down search of this individual. Whitten conducted a pat-down search of the defendant, who also exited the vehicle. Without having received consent to search the vehicle, Hollingsead immediately entered the van and checked between the seats in the area where he had seen the defendant bend. Whitten heard Hollingsead cry out the word “gun.” Hollingsead recovered a pistol which was inside a vinyl clutch purse. Hollingsead stated he found the clutch purse between the captain’s chairs previously occupied by the passenger and defendant. The purse was found closer to the driver’s seat than the passenger’s seat. Hollingsead could not recall there being a console between the two chairs. Prior to Hollingsead’s discovery of the weapon, Whitten did not see it and, therefore, did not know where it had been found. Butler remembered Hollingsead’s looking in the van and hollering, “the gun.” Hollingsead picked up the weapon, and the officers took the subjects into custody.

According to Butler, the officers exited their vehicle in order to request the van be moved from the fire lane, but after observing the movement in the van, they told the occupants to get out of the van. The defendant was outside of the van before the search commenced. Butler did not know if the defendant was standing next to the door of the van at that time.

The defendant behaved cooperatively after Hollingsead directed the occupants to step out of the van. Whitten stated the officers searched the persons and the immediate area for their own personal safety. Whitten recalled the defendant was standing inches from the driver’s side door and next to Whitten during the search. Whitten testified he found no weapons or drugs during the pat-down search of defendant. Nor did he search inside the van. Whitten did look into the van and observed there was no van console between the two front seats. Hollingsead testified the defendant’s movement made him suspicious and drew his attention to the area between the front seats of the van. So, he had checked it for his own safety. Hollingsead recalled the defendant was 5 to 10 feet from the van on the driver’s side when Hollingsead searched the van. After the pistol was found, the defendant was placed under arrest.

Over objection, Hollingsead was allowed to testify he was aware from his experience as a police officer that the area in which the van had been parked was a high-crime area and that, since May, this area had been a drug trafficking area. Over objection, Hollingsead also testified he had been detailed to the area several times in reference to shots being fired and there had been arrests of subjects with weapons in that vicinity.

Hollingsead further testified that, normally, for parking violations, violators receive parking tickets, whether or not the vehicle is occupied. Generally, when a vehicle is empty, the officer places a red ticket from the Housing Authority onto the car. Hollingsead did not issue a parking ticket in this case.

Police officer Kent Pope was dispatched to the area to pick up defendant. After the defendant was placed in the back of the squad car, the defendant began moaning. Pope could not understand the defendant for a while until the defendant eventually said he needed to spit. Pope told defendant to open his mouth and noticed pinkish objects floating in the defendant’s saliva. The defendant said, “I have to vomit.” After defendant vomited on the roadway, Pope observed in the defendant’s vomit six to seven plastic bags, each containing a white powdery substance.

Pope identified the uniform citation and complaint which he had issued charging the defendant with illegal parking. Although Pope never saw the defendant in the van, the citation was based on information Pope received from the other officers.

In People v. Lawrence (1988), 174 Ill. App. 3d 818, 821-22, 529 N.E.2d 63, 65-66, this court noted that warrantless searches of motor vehicles are the exception to the requirement that a search warrant must first be obtained. In the case at bar, unlike the circumstances in Lawrence, the officers did not observe contraband in the van prior to the search. Instead, it was the movement by an occupant of the van which alerted the officers to the possibility of contraband being in the van. In addition, the officers were reasonably apprehensive for their own safety because the van was illegally parked in a neighborhood described as a high-crime area with a recent increase of drug trafficking. The officers were also aware of several reports of gunshots being fired and a number of arrests for weapons violations in the area.

In People v. Watkins (1974), 23 Ill. App. 3d 1054, 320 N.E.2d 59, an automobile was stopped for improper use of lights. After it was determined that the driver of the automobile did not have a driver’s license, one of the arresting officers observed the movement of the passenger in the stopped automobile and, as a result, became reasonably apprehensive about his safety and the safety of his partner. The reviewing court upheld the trial court’s determination that the subsequent search of the stopped vehicle was proper. A similar result is appropriate in the case at bar.

Defendant attempts to convince this court that the search was improper because defendant was not stopped for a penal offense, but for improper parking, which defendant describes as an administrative or civil violation. (Compare Ill. Rev. Stat. 1989, ch. 38, pars. 102 — 15, 107-14, 108-1.01 with Ill. Rev. Stat. 1989, ch. 95V2, pars. 11-208.3, 11 — 1303(a)(2)(a).) However, as noted in Watkins, the United States Supreme Court in Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, allowed for a limited search of an individual whose unusual conduct observed by an officer leads the officer to reasonably believe that criminal activity may be occurring and that the person the officer is confronting may be armed and dangerous. In Watkins, the court noted it would be illogical to allow the search of the individual while not allowing the officer to inspect the part of the vehicle wherein the movement was observed.

Therefore, it is not the parking violation which justifies the search of the vehicle in the case at bar. Instead, it is the observations of the officers concerning the movement of the driver of the van which led the officers to reasonably suspect that criminal activity was afoot and that the persons in the van were armed and dangerous. Under these circumstances, the search was proper, and the denial of the motion to suppress by the trial court was not against the manifest weight of the evidence.

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

Affirmed.

STEIGMANN and McCULLOUGH, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE B. STEWART, Defendant-Appellant.
    Fourth District
    No. 4 — 90—0188
    Opinion filed October 4, 1990.

      Daniel D. Yuhas and Jane Raley, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and Gwendolyn W. Klingler, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SPITZ

delivered the opinion of the court:

After pleading guilty to the offense of unlawful possession of less than 15 grams of a substance containing heroin (111. Rev. Stat. 1989, ch. 56V2, par. 1401(c)), defendant Willie B. Stewart was sentenced by the circuit court of Macon County to a term of 18 months’ probation conditioned on his successful completion of a drug-treatment program. Because defendant failed to successfully complete the drug-treatment program, a petition to revoke his probation was filed.

The cause was called for a status hearing on January 29, 1990. Defendant was present at that hearing, in person and by counsel, and was admonished that if he failed to appear at the hearing on the petition to revoke probation, set for February 2, 1990, a hearing would be conducted in defendant’s absence. Nevertheless, defendant failed to appear at the probation revocation hearing.

At the hearing, defense counsel advised the court that counsel had seen and talked to defendant that morning, in the courthouse, he had indicated to defendant “where we were today and what I thought was going to happen,” and he was unaware of the reason for defendant’s absence. In addition, Ed Root, an officer of the Decatur police department, testified he observed defendant in the courtroom at 8:25 a.m. and had a conversation with him. In defendant’s absence, the hearing was conducted and defendant’s probation was revoked.

A sentencing hearing was then scheduled for February 15, 1990. Notice of the date, time, and place of the sentencing hearing was sent by the Macon County circuit clerk’s office to defendant’s last known address. However, the notice was returned unclaimed. On February 15, 1990, a sentencing hearing was conducted. Again defendant did not appear. As a result of the sentencing hearing, defendant was sentenced to a term of imprisonment of two years.

In this appeal, defendant contends the revocation of his probation should be reversed because he was not provided notice by certified mail of the probation revocation proceeding as is required by section 115 — 4.1 of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 4.1.) We disagree.

Defendant recognizes that section 115 — 4.1 applies only when a noncapital felony is involved, and not in cases involving misdemeanors. (People v. Smith (1989), 189 Ill. App. 3d 80, 544 N.E.2d 1162; People v. Johnston (1987), 160 Ill. App. 3d 536, 513 N.E.2d 528, appeal denied (1987), 117 Ill. 2d 549, 517 N.E.2d 1091.) The instant offense is a felony. (Ill. Rev. Stat. 1989, ch. 561/2, par. 1401(c).) Defendant further acknowledges that several recent cases have held section 115 — 4.1 inapplicable to the probation revocation proceeding which were the subjects of those appeals (People v. Liming (1989), 183 Ill. App. 3d 960, 539 N.E.2d 871; People v. Klovstad (1988), 168 Ill. App. 3d 444, 522 N.E.2d 803; People v. Hall (1985), 134 Ill. App. 3d 836, 480 N.E.2d 1387), but contends the reason the section did not apply in those cases was that the underlying offenses were misdemeanors. Contrary to defendant’s assertions, however, the reviewing court in Klovstad did not rely on whether the underlying offense was or was not a misdemeanor and, instead, relied on the following rationale:

“We first address the propriety of the court proceeding in defendant’s absence. In People v. Hall (1985), 134 Ill. App. 3d 836, 843, we held that probation revocation proceedings may take place in absentia if the defendant has been advised of the hearing date and admonished that the hearing will take place in his absence should he fail to appear. Underlying our decision in Hall was our conclusion that the defendant’s voluntary absence constituted a waiver of his right to be present. (134 Ill. App. 3d at 842.) Thus, based on our decision in Hall, the hearing in absentia in the instant action was appropriate. The record indicates that defendant was clearly admonished of both the hearing date and the court’s intention to proceed in his absence should he fail to appear.” (Emphasis in original.) Klovstad, 168 Ill. App. 3d at 448, 522 N.E.2d at 806.

A similar result in this case is supported by the language of the statute. Section 115 — 4.1(a) states, in relevant part:

“The court may set the case for a trial which may be conducted under this Section despite the failure of the defendant to appear at the hearing at which the trial date is set. When such trial date is set the clerk shall send to the defendant, by certified mail at his last known address indicated on his bond slip, notice of the new date which has been set for trial. Such notification shall be required when the defendant was not personally present in open court at the time when the case was set for trial.” (111. Rev. Stat. 1989, ch. 38, par. 115 — 4.1(a).)

Therefore, this court need not decide whether section 115 — 4.1 applies to the case at bar because, even assuming it does apply, compliance has been had with the statutory provision.

Defendant was personally present, in open court, when the probation revocation hearing was set. Therefore, the certified mail notice is not required. No error has occurred.

Accordingly, the orders of the circuit court of Macon County, revoking defendant’s probation and sentencing defendant to two years’ imprisonment, are affirmed.

Affirmed.

KNECHT, P.J., and McCULLOUGH, J., concur.


author: JUSTICE STOUDER

text:
    GARY DUNBAR, d/b/a Dunbar Towing, Plaintiff-Appellee, v. NATIONAL UNION FIRE INSURANCE COMPANY, Defendant-Appellant and Cross-Plaintiff and Third-Party Plaintiff (Protow America, Inc., et al., Defendants; AFCO Credit Corporation, Cross-Defendant; W.T. Fish, d/b/a W.T. Fish Insurance Agency, Third-Party Defendant).
    Fourth District
    No. 4 — 90—0042
    Opinion filed October 4, 1990.

      George B. Gillespie and Lee Humphrey, both of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Springfield, for appellant.
    Thomas P. Young, of Muscarello, Crisanti & Young, P.C., of Elgin, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The plaintiff, Gary Dunbar, d/b/a Dunbar Towing, filed a declaratory judgment action against the defendants, National Union Fire Insurance Company, Protow America, Inc., and AFCO Credit Corporation, seeking a declaration that National Union was obligated to defend the plaintiff in a personal injury suit. The trial court found for the plaintiff. National Union appeals. We reverse.

The facts in this case are not in dispute. On June 27, 1984, the plaintiff applied for a garage owner’s liability insurance policy from National Union. On that day a policy was issued to the plaintiff effective June 27, 1984, through June 27, 1985. The policy showed the plaintiff’s mailing address to be 4140 N. 8th Street, Springfield, Illinois.

Thereafter, the plaintiff and AFCO entered into an agreement whereby AFCO would finance the premium for the plaintiff’s insurance policy with National Union. This agreement contained a power of attorney authorizing AFCO to act on behalf of the plaintiff. The total premium due under this agreement was $10,122. The plaintiff paid AFCO $3,072 as a down payment. The remaining amount was to be paid to AFCO in seven additional monthly payments in the amount of $1,057.27, with the first payment due July 22, 1984.

Thereafter on October 22, 1984, the plaintiff failed to make his October 22, 1984, payment to AFCO as required by the premium finance agreement. On November 1, 1984, AFCO mailed the plaintiff by regular mail, postage prepaid, a notice of intent to cancel if the overdue premium payment was not received in 10 days. The notice was addressed to 4140 N. 8th Street, Springfield, Illinois. The plaintiff admits receiving this notice of intent to cancel from AFCO and also admits failing to pay this payment within 10 days. On November 8, 1984, AFCO mailed by regular mail, postage prepaid, a second notice of intent to cancel indicating that cancellation would be effective November 15, 1984, if payment was not received by that date. The plaintiff denies receiving this notice.

On November 20, 1984, AFCO mailed a notice of cancellation by regular mail, postage prepaid, to the plaintiff and National Union indicating cancellation would be effective November 27, 1984. The plaintiff denies receiving this notice. However, AFCO employee Joyce Oetjens testified that it was properly mailed to the plaintiff’s last known address.

The plaintiff also failed to make his November 22, 1984, premium payment. On November 26, 1984, National Union received the notice of cancellation from AFCO. AFCO stated that it was cancelling the policy on behalf of the insured by the power of attorney given to it by the plaintiff. National Union did nothing at that time.

On December 15, 1984, the plaintiff’s truck was involved in a personal injury accident, giving rise to the instant declaratory judgment action. On December 19, 1984, AFCO received the plaintiff’s October 22, 1984, payment. In response, AFCO sent a notice to the plaintiff acknowledging receipt of his late payment but stating that the policy was still cancelled.

On January 16, 1985, the plaintiff wrote to National Union inquiring about the status of his insurance. On January 23, 1985, National Union informed the plaintiff that his insurance had been cancelled effective November 27, 1984. On June 21, 1985, National Union issued a $6,021 check to AFCO for the unearned premium. This check was forwarded to the plaintiff. National Union admits that it never informed any third-party lienholders about the cancelled insurance policy.

The trial court found for the plaintiff, stating that the defendants had failed to properly terminate the insurance policy since they failed to notify the lienholders. The court therefore held that National Union was required to defend and indemnify the plaintiff in the personal injury suit.

On appeal, National Union argues that the trial court erred in finding that the insurance policy was not properly terminated. Specifically, it contends that AFCO complied with the requirements set forth in section 512 of the Insurance Code (the Code) (111. Rev. Stat. 1989, ch. 73, par. 1065.68).

Section 512 provides in pertinent part:

“When a premium finance agreement contains a power of attorney enabling the premium finance company to cancel any insurance contract or contracts listed in the agreement, the insurance contract or contracts shall not be cancelled by the premium finance company unless such cancellation is effectuated in accordance with this Section.
(1) Not less than 10 days written notice shall be mailed to the insured of the intent of the premium finance company to cancel the insurance contract unless the default is cured within such 10 day period.
(2) After expiration of such 10 day period, the premium finance company may thereafter request in the name of the insured, cancellation of such insurance contract or contracts by mailing to the insurer a request for cancellation, and the insurance contract shall be cancelled as if such request for cancellation had been submitted by the insured himself, but without requiring the return of the insurance contract or contracts. The premium finance company shall also mail a copy of said request for cancellation to the insured at his last known address.” Ill. Rev. Stat. 1989, ch. 73, par. 1065.68.

A review of the statutory notice requirement contained in the above section shows that AFCO complied with the statute. The evidence showed that the agreement contained a power of attorney enabling AFCO to cancel the plaintiff’s insurance policy with National Union. On November 1, 1984, AFCO sent the plaintiff a written notice of its intent to cancel. On November 8, 1984, AFCO sent a second notice to the plaintiff stating that unless it received the October payment it would cancel his policy. On November 20, 1984, AFCO mailed its notice of cancellation to the plaintiff and National Union stating that the cancellation would be effective November 27, 1984. As can be seen, the cancellation date was well past the statutory notice requirement of 10 days.

The plaintiff argues, however, that since he never received the cancellation notice, the cancellation by AFCO was ineffective. We disagree. The statute only required that AFCO mail a copy of the cancellation request to the insured at his last known address. The evidence showed that AFCO complied with this requirement.

The plaintiff also contends that the cancellation was ineffective since National Union failed to comply with section 521(3) of the Code (111. Rev. Stat. 1989, ch. 73, par. 1065.68(3)), which requires insurance companies to notify third parties when a policy is being cancelled. We find this argument meritless.

Although section 521(3) does require notice to third parties, this requirement is irrelevant to any duty owed to the insured plaintiff. (See generally Tunprasert v. Prince (1975), 33 Ill. App. 3d 710, 342 N.E.2d 244.) Thus, National Union’s failure to give timely notice of the cancellation to any third parties had no effect on the proper notice of cancellation given to the plaintiff by AFCO.

As a final point, the plaintiff argues that the cancellation was ineffective since section 521(2) of the Code requires a premium finance company to send a “request” for cancellation and not a “notice” of cancellation. AFCO admits that it sent a notice of cancellation form instead of a request for cancellation form.

We find this argument meritless. Whether the document sent was a request or a notice to cancel is just a question of semantics since the legal effect was the same. A request for cancellation of insurance by a premium finance company is treated as if the request had come from the insured himself. (Ill. Rev. Stat. 1989, ch. 73, par. 1065.68(2).) Cancellation of an insurance policy by an insured or his agent must be performed in accordance with the terms of the policy. Kanter v. Trueheart (1968), 100 Ill. App. 2d 316, 241 N.E.2d 521.

Here, the policy provided that the insured could cancel the policy by giving the insurer advance notice of the date the cancellation was to take effect. As already established, the plaintiff, through AFCO, gave National Union advance notice that the insurance policy was to be can-celled. Therefore, whether the notice of cancellation was in the form of a request or a notice is irrelevant since the effect was the same because the policy was cancelled in accordance with the terms of the contract.

In conclusion, we hold that the trial court erred in finding that the insurance policy had not been cancelled prior to the December 15, 1984, accident. We find that the policy was properly cancelled effective November 27, 1984, and as such the defendant was not required to indemnify or defend the plaintiff for the cause of action arising on December 15,1984.

Accordingly, the judgment of the circuit court of Sangamon County is reversed.

Reversed.

HEIPLE, P.J., and SCOTT, J., concur.


author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. KENNETH SEIDLER, Defendant-Appellee.
    Fourth District
    No. 4 — 89—0943
    Opinion filed September 28, 1990.
    Rehearing denied November 8,1990.

      Donald M. Cadagin, State’s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and Denise M. Ambrose, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel D. Yuhas and David Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

On May 12, 1989, defendant Kenneth Seidler filed a petition for post-conviction relief in the circuit court of Sangamon County. On November 17, 1989, the circuit court granted the petition and ordered a new trial. The State now appeals. We reverse.

On June 7, 1984, defendant was found guilty of committing the offense of rape. He subsequently received a 40-year prison sentence. On direct appeal, this court in a Rule 23 order affirmed the conviction. (People v. Seidler (1985), 131 Ill. App. 3d 1173, 493 N.E.2d 1226 (unpublished order under Supreme Court Rule 23).) In that appeal, defendant argued his identification by the victim should have been suppressed since it was tainted by police conduct and that he was not proved guilty beyond a reasonable doubt. The order also indicates that the victim had undergone hypnosis prior to making the in-court identification of defendant. It is this hypnosis which is the central issue of the current post-conviction petition.

At the time of trial, the use of hypnotically enhanced testimony was permitted. (See People v. Smrekar (1979), 68 Ill. App. 3d 379, 385 N.E.2d 848.) However, our supreme court recently held that, as a matter of evidentiary law, a witness’ hypnotically enhanced testimony is inadmissible. (People v. Zayas (1989), 131 Ill. 2d 284, 295, 546 N.E.2d 513, 518.) At the time the Zayas opinion was filed, defendant’s post-conviction petition was pending. In it, he alleged he was entitled to a new trial because he received ineffective assistance of counsel by counsel’s not objecting to the hypnotically enhanced testimony, he was denied a fair trial by that evidence’s admission, and the use of this testimony violated his right to confrontation. The court, without explanation as to its reasons, granted the petition. The State now appeals.

The Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1989, ch. 38, pars. 122 — 1 through 122 — 8) provides a remedy to criminal defendants who claim that substantial violations of constitutional rights occurred in their trials. (People v. Silagy (1987), 116 Ill. 2d 357, 365, 507 N.E.2d 830, 833, cert, denied (1987), 484 U.S. 873, 98 L. Ed. 2d 163, 108 S. Ct. 212.) Such a proceeding is not an appeal per se, but is a collateral attack upon a final judgment. (People v. James (1986), 111 Ill. 2d 283, 290, 489 N.E.2d 1350, 1353.) The scope of review is limited to issues which have not been, and could not have been, previously adjudicated. People v. Owens (1989), 129 Ill. 2d 303, 308, 544 N.E.2d 276, 277.

The State initially contends that the counsel involved in the original trial was not ineffective because the status of the law at the time allowed for admission of hypnotically enhanced testimony. (See Smrekar, 68 Ill. App. 3d 379, 385 N.E.2d 848.) In his brief before this court, defendant agrees. Accordingly, it is not necessary for us to consider this question.

The State next contends defendant’s right of confrontation was not violated. The confrontation clause of the sixth amendment gives the accused the right to be confronted with the witnesses against him. This has long been read as securing an adequate opportunity to cross-examine witnesses. (United States v. Owens (1988), 484 U.S. 554, 557, 98 L. Ed. 2d 951, 956, 108 S. Ct. 838, 841.) The State argues this right was complied with since the victim testified in his presence in court and was subject to cross-examination. Defendant responds by observing that previously hypnotized witnesses gain complete confidence in their “restored” memory and are very difficult to cross-examine. (See Zayas, 131 Ill. 2d at 291, 546 N.E.2d at 516.) Accordingly, he maintains that his right to confront the victim has been abridged.

Initially, we conclude that defendant was precluded from asserting this claim. It is well settled that, in evaluating post-conviction petitions, affirmance on the direct appeal is res judicata as to all issues that were raised, or could have been raised, in that appeal. (People v. Roberts (1979), 75 Ill. 2d 1, 10, 387 N.E.2d 331, 335; People v. Peeples (1989), 184 Ill. App. 3d 206, 208, 539 N.E.2d 1376, 1377.) Defendant’s argument that use of this testimony violates his confrontation rights could easily have been made during the original trial and on direct appeal. While Smrekar had resolved the question of the evidence’s admissibility, that case only involved an analysis under evidence principles. The confrontation question was never presented there. Thus, it could have been presented in this case originally. Failure to do so results in application of the doctrine of res judicata and prevents defendant from pursuing this argument in his post-conviction petition.

Defendant, however, observes there is a limited exception to strict application of res judicata when fundamental fairness dictates otherwise, as where the right relied upon has been recognized for the first time after direct appeal. (Peeples, 184 Ill. App. 3d at 208, 539 N.E.2d at 1377; People v. Cowherd (1983), 114 Ill. App. 3d 894, 898, 449 N.E.2d 589, 591-92.) Defendant suggests that the recent overruling of Smrekar by Zayas creates just such an exception. However, Zayas involved an analysis of the reliability of the evidence for admission under general evidentiary principles and did not involve the confrontation clause. Thus, it is clear that no new right involving the confrontation clause has been recognized and, therefore, there is no exception to strict application of res judicata.

Assuming arguendo that res judicata does not apply, defendant’s position must fail. In Delaware v. Fensterer (1985), 474 U.S. 15, 88 L. Ed. 2d 15, 106 S. Ct. 292, the Court addressed a situation in which an expert witness testified as to his opinion but, on cross-examination, he could not remember the basis for it. The Court found no confrontation problem with this. It explained:

“The Confrontation Clause includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion. To the contrary, the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness’ testimony.” Fensterer, 474 U.S. at 21-22, 88 L. Ed. 2d at 21, 106 S. Ct. at 295.

In Owens, the Court was faced with a situation where the victim of a beating identified, to the police at the hospital, the defendant as the perpetrator. At trial, he testified to making that identification. However, due to a memory loss, he was unable on cross-examination to explain the basis for that identification. The Court, relying a great deal on Fensterer, found no confrontation clause problem. The Court observed that the confrontation clause guarantees only an opportunity for effective cross-examination and does not guarantee cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. (Owens, 484 U.S. at 559, 98 L. Ed. 2d at 957, 108 S. Ct. at 842; see also Fensterer, 474 U.S. at 20, 88 L. Ed. 2d at 19, 106 S. Ct. at 294.) The Court then explained:

“As Fensterer demonstrates, that opportunity [for effective cross-examination] is not denied when a witness testifies as to his current belief but is unable to recollect the reason for that belief. It is sufficient that the defendant has the opportunity to bring out such matters as the witness’s bias, his lack of care and attentiveness, his poor eyesight, and even (what is often a prime objective of cross-examination, see 3A J. Wigmore, Evidence §995, pp. 931-32 (J. Chadbourn rev. 1970)) the very fact that he has a bad memory. If the ability to inquire into these matters suffices to establish the constitutionally requisite opportunity for cross-examination when a witness testifies as to his current belief, the basis for which he cannot recall, we see no reason why it should not suffice when the witness’s past belief is introduced and he is unable to recollect the reason for that past belief.” Owens, 484 U.S. at 559, 98 L. Ed. 2d at 958, 108 S. Ct. at 842.

This analysis resolves the question now before us. Defendant is concerned about the extra confidence in the victim’s identification of him, which she gained from the hypnosis. However, he was still able to cross-examine her and bring out, among other things, that prior to her hypnosis she was unsure and, in fact, initially, did not identify anyone. We fail to see the difference between the situations where a witness gives an opinion but cannot remember how he came to it, or a witness who gives an out-of-court statement but cannot remember why, and a witness who may be more confident of her testimony but who cannot explain how she remembered the details which make her sure of her identification. If the former situations involved no confrontation problem (which they do not), then surely the latter situation, which is ours, does not. Accordingly, we conclude that no violation of the defendant’s right to confrontation occurred.

Defendant finally asserts, as an alternative ground, that his due process rights were violated. He observes that due process protects the defendant against conviction, except upon proof beyond a reasonable doubt of every fact necessary to constitute the offense. (Jackson v. Virginia (1979), 443 U.S. 307, 309, 61 L. Ed. 2d 560, 567, 99 S. Ct. 2781, 2783.) He argues that hypnotically enhanced testimony is inherently unreliable and that the use of it in his case undermines his conviction.

This argument has been resolved by the Zayas opinion. There, the court concluded that the reliability of this type of testimony is, in fact, suspect and should not be admitted into evidence. (Zayas, 131 Ill. 2d at 295, 546 N.E.2d at 518.) However, in commenting on the impact of this holding, the supreme court explained:

“We understand that other criminal cases in Illinois have involved the use of hypnosis. This ruling, however, will not affect those cases that have been finally determined on direct appeal.” (Zayas, 131 Ill. 2d at 298, 546 N.E.2d at 519.)

Defendant has exhausted his direct appeals and, as noted, a post-conviction petition is a collateral attack on a final judgment. (James, 111 Ill. 2d at 290, 489 N.E.2d at 1353.) Thus, it is clear that the Zayas holding itself could not be argued as grounds for reversal in a post-conviction petition.

Defendant, however, does not argue directly that Zayas requires the questioned testimony be disregarded, thus raising a reasonable doubt of his conviction. Rather, he argues much of the analysis in Zayas should lead to the conclusion that the evidence is unreliable and, therefore, a reasonable doubt is raised. He apparently wishes us to reach the same conclusion as the Zayas court without relying on that opinion. He hopes to do indirectly what he cannot do directly. The Zayas court specifically held that its opinion is not to have any affect upon collateral matters such as this. To do as defendant suggests would be contrary to this directive. Accordingly, it cannot be done, and we find no due process problem with defendant’s conviction.

We observe further that to the extent this argument is not predicated on Zayas, it is also precluded by res judicata. As pointed out earlier, affirmance on direct appeal is res judicata as to all issues which could have been raised in that appeal, unless a new right has been recognized for the first time after direct appeal. The only change in this area of law has been the Zayas case. Thus, if defendant’s argument is not based on Zayas, it could have been made on direct appeal and is now barred. However, if it is based on Zayas, it is barred by that opinion. In either case, this argument cannot be pursued.

Reversed.

SPITZ and GREEN, JJ., concur.


author: JUSTICE GEIGER

text:
    THE ILLINOIS STATE TOLL HIGHWAY AUTHORITY, Plaintiff-Appellant, v. GARY-WHEATON BANK, as Trustee, et al., Defendants-Appellees.
    Second District
    No. 2 — 89—1157
    Opinion filed September 28, 1990.

      Neil E Hartigan, Attorney General, of Springfield, and David F. Rolewick, of Rolewick & Kenny, P.C., of Wheaton (Malcolm E. Erickson, Special Assistant Attorney General, of Oak Brook, of counsel), for appellant.
    Leo N. Cinquino and Celeste P. Cinquino, both of Righeimer, Martin & Cinquino, P.C., of Chicago, for appellees.
   JUSTICE GEIGER

delivered the opinion of the court:

The plaintiff, the Illinois State Toll Highway Authority, appeals from a judgment in an eminent domain case entered for the defendants, Gary-Wheaton Bank, as trustee under trust agreement dated January 6, 1984; Jeffrey Walker; George Yager; and unknown owners. The plaintiff raises two issues in this appeal; however, we cannot reach the plaintiffs proposed issues since we lack jurisdiction to hear its appeal.

On May 17, 1989, after a trial, the jury found just compensation for the property taken to be $7.58 per square foot. They found the damage to the remainder to be $72,000, and further found the damages to the property within a temporary easement strip to be $1,800. All the jury members signed the verdict form. On the bottom of form, the trial judge made the following notation:

“5/17/89 - 2:03 PM
Judgment entered on the verdict.
Isl S. K. Lewis”

After discharging the jury, the trial court and the parties’ attorneys made the following statements:

“THE COURT: Anything else today, gentlemen? May I enter judgment on the verdict?
MR. CINQUINO [the defendants’ attorney]: Yes, Judge. We have to multiply the seven fifty-eight times the 4458.
MR. GUTZKE [the plaintiff’s attorney]: 4449,1 believe.
MR. CINQUINO: 4449.
THE COURT: I think I would prefer not to write that on the verdict form. Maybe you can make an ancillary order that reflects that calculation.
MR. GUTZKE: We can put that on the final order.
MR. CINQUINO: Okay. Certainly.
THE COURT: Okay. Then proceedings are concluded.
MR. CINQUINO: Yes, your Honor.
MR. GUTZKE: Yes, Judge.”

On May 30, 1989, the trial court entered the defendants’ prepared “FINAL JUDGMENT ORDER” (emphasis in original), which contained the calculations to conform to the jury’s verdict.

On June 23, 1989, the plaintiff filed a motion for a new trial. The defendants filed a response and a motion to strike the plaintiff’s motion for a new trial arguing that the trial court did not have jurisdiction to hear the plaintiff’s motion since more than 30 days had elapsed between the trial court’s judgment and the filing of the plaintiff’s post-trial motion. See Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1202.

On August 30, 1989, the trial court granted the defendants’ motion to strike the plaintiff’s motion for a new trial. On September 28, 1989, the plaintiff filed a motion to reconsider the trial court’s August 30 order striking the plaintiff’s motion for a new trial which the trial court denied. This appeal followed.

The plaintiff argues that we need not consider the preliminary question of whether this court has jurisdiction to entertain this appeal. It relies on the fact that, during the pendency of the appeal, the defendants unsuccessfully sought to dismiss it for lack of jurisdiction. We observe that we have a duty to determine whether we have jurisdiction, even if that issue was not raised by a party. (See Deer-field Management Co. v. Ohio Farmers Insurance Co. (1988), 174 Ill. App. 3d 837, 839.) That duty is not affected by our previous denial of the defendants’ motion to dismiss, and we will therefore consider whether we have jurisdiction to entertain this appeal.

Supreme Court Rule 272 provides:

“If at the time of announcing final judgment the judge requires the submission of a form of written judgment to be signed by him, the clerk shall make a notation to that effect and the judgment becomes final only when the signed judgment is filed. If no such signed written judgment is to be filed, the judge or clerk shall forthwith make a notation of judgment and enter the judgment of record promptly, and the judgment is entered at the time it is entered of record.” 107 Ill. 2d R. 272.

Supreme Court Rule 272 is intended to resolve questions regarding the timeliness of an appeal where there is an oral announcement of judgment from the bench. (West v. West (1979), 76 Ill. 2d 226, 233.) The function of Rule 272 is to fix the time when a judgment is entered for the purpose of determining the time allowed for filing an appeal. Stoermer v. Edgar (1984), 104 Ill. 2d 287, 293.

In Swisher v. Duffy (1987), 117 Ill. 2d 376, a plaintiff filed an action which he subsequently moved to dismiss voluntarily. (117 Ill. 2d at 377.) On October 1, 1982, the trial court granted the plaintiff’s motion, and the court clerk noted it in the docket entry, but the trial court did not sign a written order for voluntary dismissal until October 21, 1982. (117 Ill. 2d at 377-78.) The plaintiff refiled his action on October 21, 1983. The trial court granted the defendants’ motion to dismiss the action on the ground that it was not refiled within one year of the date that the trial court granted the voluntary dismissal. (117 Ill. 2d at 377.) The supreme court held that although section 2— 1009 of the Code of Civil Procedure requires “by order filed in the cause” to dismiss voluntarily an action (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1009), the statute did not affect the operation of Supreme Court Rule 272. (117 Ill. 2d at 381.) Since there had been no notation that the trial court required a written judgment, the court’s oral October 1 decision controlled the time for further filing. 117 Ill. 2d at 381.

In Davis v. Carboneale Elementary School District No. 95 (1988), 170 Ill. App. 3d 687, the trial court orally granted the defendant’s motion to dismiss the plaintiff’s complaint on May 15, 1987. (170 Ill. App. 3d at 688.) The circuit court had a local rule which required the prevailing party to prepare and present the written order. The defendant drafted a proposed order, to which the plaintiff objected. The judge allowed the plaintiff to submit his own draft order. The defendant objected to the plaintiff’s proposed order and prepared a second draft order. Again, the plaintiff objected to the defendant’s proposed order. By June 10, 1987, the judge rejected all of the drafts and prepared and entered his own order. The plaintiff filed his notice of appeal more than 30 days after the May 15 hearing and ruling, but within 30 days of the June 10 order entry date. 170 Ill. App. 3d at 689.

The Davis court found that it did not have jurisdiction to hear the appeal even though the trial court allowed both parties to submit draft orders and even though the circuit court local rule required the prevailing party to prepare and present the final order. The court held that since the trial court did not make a notation, on May 15 when it made its oral ruling, that it required a written order, the order became final on May 15, not on June 10 when the trial court entered its own order. The court found the June 10 order to be superfluous and without legal effect to extend time for appeal. 170 I. App. 3d at 689.

We find the Swisher and Davis decisions controlling. On May 17, there was no notation by the trial judge that he required a written order. Rather, on that date, the judge signed the verdict form to reflect judgment on the jury’s verdict. Furthermore, the May 30 “ancillary order” was needed solely to reflect the verdict calculations. Since the plaintiff did not file this appeal within 30 days of the May 17 final order, as required by Supreme Court Rule 303 (107 Ill. 2d R. 303), we dismiss the appeal for lack of jurisdiction.

Furthermore, we find that this court additionally lacks jurisdiction because the plaintiff failed to timely file his notice of appeal. Supreme Court Rule 303(a)(1) provides in pertinent part:

“Except as provided in paragraph (b) ***, the notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed * * * within 30 days after the entry of the order disposing of the last pending post-trial motion.” 107 Ill. 2d R. 303(a)(1).

A motion qualifies as a post-trial motion under Supreme Court Rule 303(a)(1) and tolls the time for filing a notice of timely appeal if it requests one or more of the types of relief authorized in section 2 — 1202 of the Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1202; see also Hanna v. American National Bank & Trust Co. (1988), 176 Ill. App. 3d 938, 942.) Among the types of relief specified in section 2 — 1202 are reserved motions for directed verdict, motions for judgment notwithstanding the verdict, or motions for a new trial. Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1202.

A trial court has no jurisdiction to hear successive post-trial motions, even where each is filed within 30 days after denial of the previous motion. (B-G Associates, Inc. v. Giron (1990), 194 Ill. App. 3d 52, 57; see also Deckard v. Joiner (1970), 44 Ill. 2d 412, 418.) Where multiple post-trial motions are filed within 30 days of the court’s final judgment, but where the second post-trial motion is filed only after the first post-trial motion was denied, the trial court still does not have jurisdiction to hear the second post-trial motion. Giron, 194 Ill. App. 3d at 57; see also Sears v. Sears (1981), 85 Ill. 2d 253, 259.

Assuming arguendo that the plaintiff’s motion for a new trial, filed June 23, was timely, we would still lack jurisdiction to hear the plaintiff’s appeal. The plaintiff’s September 28, 1989, motion to reconsider the trial court’s August 30, 1989, order striking the plaintiff’s motion for a new trial is the plaintiff’s second post-trial motion. Therefore, the filing of the notice of appeal by the plaintiff on November 6, 1989, was not timely, and this court lacks jurisdiction to proceed.

Appeal dismissed.

UNVERZAGT, P.J., and INGLIS, J., concur.