author: JUSTICE GEIGER

text:
    ERDAY’S CLOTHIERS, INC., Plaintiff-Appellant, v. GUS SPENTZOS, Indiv. and d/b/a Geneva Family Restaurant, et al., Defendants-Appellees.
    Second District
    No. 2—91—0738
    Opinion filed May 6, 1992.

      Wendell W. Clancy and Maureen A. Hill, both of Clancy & Krippner, of St. Charles, for appellant.
    Ralph E. Lowe, of Lowe & Steinmetz, Ltd., of Aurora, for appellees.
   JUSTICE GEIGER

delivered the opinion the court:

The plaintiff, Erday’s Clothiers, filed suit seeking relief from the defendant, Gus Spentzos, individually and doing business as the Geneva Family Restaurant. The plaintiff sought no relief from the other named defendants, who were defaulted. We therefore hereafter refer to Gus Spentzos as the defendant. According to the complaint, the defendant was violating the plaintiff’s easement for ingress and egress across certain property by placing a restaurant garbage dumpster and parking cars on the easement. The trial court ruled against the plaintiff, holding that (1) the plaintiff’s suit was barred by laches; and (2) the defendant’s use of the easement was reasonable and therefore the plaintiff had no right to relief. The trial court also dismissed defendant’s counterclaim. The defendant has not appealed that ruling, and we will therefore not address the counterclaim.

On appeal, the plaintiff argues (1) that the trial court erred in holding that the defendant had the right to place the dumpster on the property; and (2) that the trial court erred in holding that the plaintiff’s suit was barred by laches.

This suit involves two commercial buildings in Geneva. Both front on State Street; indeed, they are neighbors. The plaintiff’s building is L-shaped; one part goes north-south along Third Street; the other part goes east-west from Third Street all the way to an alley. The defendant’s building, the Geneva Family Restaurant, is built on property contiguous and immediately west of the north-south leg of the plaintiff’s building. The restaurant is rectangular. The defendant is the beneficial owner of the property on which the restaurant stands.

The restaurant building does not extend all the way back to the east-west section of the plaintiff’s building. Rather, there is a strip of land about 15 feet wide between the buildings. The trial court held, and the parties now agree, that by grant the plaintiff has an easement for purposes of ingress and egress along the northerly 10.24 feet of this area. Part of the western wall of the north-south leg of the plaintiff’s building contains a doorway leading to a steel staircase that leads to a second level of the property. The trial court found (and the parties do not dispute) that to go from the alley on the far west to this doorway, one would have to cross over the area subject to the plaintiff’s easement.

The defendant, Gus Spentzos, holds the beneficial interest in the property that contains the restaurant and easement. The parcel is officially known as 305 West State Street. Spentzos purchased the restaurant business from Bernard Cryer in 1985 and the beneficial interest in the property itself in 1987. Cryer had operated the property as a restaurant since 1948, when he rented the building.

Both the plaintiff’s property and the defendant’s property originally belonged to Minnie Johnson. In 1956, Cryer and a partner purchased 305 West State Street. Under the contract to purchase, the buyers agreed to permit “an easement over the property to be purchased by them hereunder for entrance and exit to the building” that the plaintiff purchased in 1965. By a 1965 co-executors’ grant of easement, the executors of the estate of Minnie Johnson granted the plaintiff an easement for purposes of ingress and egress across the 10.24-foot-wide area at issue here.

On June 29, 1990, the plaintiff filed its “Complaint for Declaratory Judgment” against the defendant. Also named as defendants were De Kalb Bank & Trust, which actually owned 305 West State Street as land trastee, and Carol and William Gates, who, the complaint alleged, held fee simple title to the property. The complaint sought no relief from the bank or the Gateses, and these defendants were defaulted early in the litigation.

The complaint alleged the following facts. The plaintiff had an easement for ingress and egress across the property (as described above). The purpose of the easement was to allow the plaintiff access to the public alley to the west. The defendant had violated the easement by (1) permitting his employees to park their vehicles on the easement; and (2) placing a dumpster or dumpsters physically on the easement. These actions interfered materially with the plaintiff’s use of the easement. The plaintiff had asked Spentzos many times to remove the dumpster and to clear the easement of automobiles, but the defendant had consistently refused to do so.

The complaint prayed for (1) a declaration of the rights of all the parties to the action; (2) an order that the defendant be required to remove the dumpster from the easement and that the defendant be enjoined from parking vehicles on the easement; and (3) other proper equitable relief.

At trial, the plaintiff called Victor Erday, Jr., president of Erday’s Clothiers. Erday explained that the company held title to the building, which was partly a one-story structure and partly a two-story structure. Since about 1984, his son, Victor Erday III, had assumed the day-to-day operation of the business.

Erday testified that when Bernard Cryer ran the restaurant, the restaurant and its garbage containers did not extend onto the easement. On several occasions Cryer came to Erday, explaining that he wanted to extend the restaurant back to the easement line and to put a garbage container on the easement. After there was a fire at the restaurant in 1974, Cryer built his restaurant extension. Cryer then asked Erday to allow Cryer to put a dumpster on the easement. Reluctantly, Erday orally agreed that Cryer could do so. The dumpster Cryer installed was on wheels.

Erday testified that on several occasions deliveries to his store would be made across the easement through the doorway and up the steel steps to a second-floor room. When these deliveries were made, Erday would ask Cryer to “move the dumpster because we got a truck coming tomorrow.” Cryer would then comply by moving the dumpster to the side of the easement so that the trucks could “get in as close as possible.” Erday never asked Cryer to move the dumpster permanently.

According to Erday, the dumpster currently on the easement differed from Cryer’s. The defendant’s dumpster was “bigger and had no wheels.” Erday did not recaU when the new dumpster appeared. Erday spoke with the defendant and the defendant’s wife a few times about the dumpster, asking them to keep the property clean. Erday never asked the defendant to remove the dumpster from the easement. Erday testified that he “believe[d] he asked the defendant to move the dumpster if there was to be a ‘box delivery.’ ”

Erday explained that the door and steel stairway had been added to the plaintiff’s building as part of a remodeling project in 1973. At first, the plaintiff took some box deliveries, but not material deliveries, through the door and up the steel stairs. However, about two or three years before the lawsuit, the plaintiff stopped using the entrance for deliveries. The reason was that delivery people kept complaining about grease and dirt in the easement area. Erday admitted that this area had been greasy and slippery even before the defendant put in his new dumpster. According to Erday, this grease came from the restaurant’s exhaust fans. The current method of taking deliveries through a door at the far west end of the Erday property was less convenient for delivery people than using the steel stairs.

Erday admitted that if the plaintiff ever did take deliveries through the doorway, “it didn’t amount to anything *** not basically deliveries for the store.” The store now gets all of its deliveries at the rear of the building on Lot 9, which is bordered by an alley east of the property.

The stairway and steel door have served primarily as a fire escape. The apartments accessible by the steel door may also be reached from Third Street on the east.

On cross-examination, the defendant’s attorney asked Erday if the presence of the dumpster interfered with access to and egress from the plaintiff’s building. Erday replied, “[i]t doesn’t personally bother me,” but that there could be a problem if a fire engine needed to come in. This, however, was not Erday’s primary concern; his primary concern was with odors from the dumpster. When again asked if “the presence of the dumpster interferes with access and egress to your building,” Erday replied, “[n]ot really, outside of entryway for [a] fire truck or anything of that nature.”

Erday stated that he would frequently ask Bernard Cryer to stop parking cars on the easement. His requests had limited success. Er-day admitted that since the lawsuit began, the dumpster lid had been closed much more regularly than before and there were “less [sic] parking problems in there.”

Although Erday testified that the defendant’s dumpster was the only one on the easement, he admitted that a photograph taken recently by his son, Victor Erday III, depicted two dumpsters on the premises.

Bernard Cryer, testifying out of order for the defendant, stated that the restaurant fire occurred in 1974. After the fire, Cryer extended the restaurant 17 feet back (that is, to the north). In 1974 Cryer placed a dumpster against the south wall of the east-west leg of the plaintiff’s property. He did not recall at trial whether he and Er-day had discussed the subject of the dumpster when they talked about Cryer’s plan to expand the restaurant. However, he recalled that the two had “[no] problem with it.” None of the Erdays ever objected to Cryer’s having the dumpster on the easement. As far as Cryer could recall, the only time that the plaintiff’s representatives asked Cryer to wheel his dumpster out of the way to accommodate deliveries to the plaintiff’s store was at “Christmastime [when] they got Christmas boxes.” Cryer could not recall any deliveries being made through the steel door while he was occupying 305 West State Street. He did not recall the doorway leading to the steel stairway (or stairway itself) being used for deliveries.

Cryer testified that when he conveyed his beneficial interest in the property to the defendant, he told the defendant about the plaintiff’s easement.

Victor Erday III testified for the plaintiff. He stated that the dumpster now on the easement was much larger than the one used by Cryer; also, unlike Cryer’s dumpster, the defendant’s dumpster was not movable. Erday III testified that the last time deliveries were made to the second floor of the plaintiff’s building (that is, across the easement and up the steel stairs) was in 1989. In apparent contrast to his father’s testimony, Erday III stated that this mode of delivery was discontinued because the defendant’s dumpster was in the way. He admitted that when the plaintiff was using the steel staircase to handle deliveries, such deliveries took place about twice a year.

Erday III testified that in 1988 or 1989 he started to notice new and strong odors coming through the walls of plaintiff’s building from the dumpster. The odors were stronger than anything before and actually caused some customers to leave the plaintiff’s store. He also testified that, up until the time he contacted the plaintiff’s attorney, employees of the defendant would regularly park their cars on the easement. Erday III took photographs, which were admitted into evidence, depicting these parked cars.

Erday III admitted that he had never personally met the defendant and had never asked the defendant to move the dumpster or the parked cars from the easement. However, in the summer of 1989, he instructed the plaintiff’s attorney to tell the defendant about the various problems with the defendant’s use of the easement. During the four to six months before the trial, the defendant and his employees had stopped parking any cars on the easement. Also, since the filing of the lawsuit, the defendant now kept the lid on the dumpster closed at all times.

The plaintiff called the defendant, Gus Spentzos, as an adverse witness. Spentzos denied that Cryer made him aware of the easement when he bought 305 West State Street in 1987. However, Cryer did tell the defendant that the latter could extend the restaurant another five feet. The defendant was represented by counsel when he bought the property. Also, when the defendant bought the building immediately to the west of the restaurant, his lawyer told him about the 10-foot-wide easement.

The defendant admitted that the photographs introduced into evidence proved that he and some family members occasionally parked their cars on the easement. He denied that his employees parked their cars on the easement. When the plaintiff’s attorney visited him three times in 1989, the attorney told the defendant to move the dumpster and to stop restaurant employees from parking on the easement. According to Spentzos, this was the first time that anyone had complained to him about the dumpster.

Pamela Hoehn, office manager of Westowns Disposal, testified that in 1984 that company began furnishing the restaurant with garbage disposal services, including a “four-yard” wheeled dumpster. On January 1, 1987, the company replaced this dumpster with a larger “six-yard” container without wheels.

The defendant testified he bought the restaurant business in 1985 and the building itself in 1987. He admitted that his attorney told him about the easement at the time the defendant purchased the property. The attorney also told the defendant that the latter could extend the restaurant an additional five feet, after which there was a 10-foot easement “for everybody.”

Spentzos testified that in all the time he had owned and operated the restaurant, no one except the plaintiff’s lawyer had objected to the presence of a restaurant dumpster on the easement. No one had asked him to move the dumpster so that the plaintiff could accept a delivery. The defendant admitted that a new dumpster replaced the old one at some point, but said that he was not notified and did not pay attention “because to me the dumpsters look all the same.” He admitted that if Westowns offered him a smaller dumpster, he would refuse, because a dumpster the size of the present one was necessary to handle all of the restaurant’s garbage. The defendant stated that a dumpster is necessary to operate a restaurant. Had he known there would be a problem with keeping a dumpster, he would not have bought the restaurant.

At the close of the testimony, the defendant conceded that the existence of the plaintiff’s easement was not in dispute.

The trial judge found that the plaintiff possessed, by grant, a very general easement for ingress and egress. The court, however, denied the plaintiff relief, both on the ground of laches (as the defendant had argued in his trial brief) and on the basis that the defendant’s use of the dumpster was a reasonable use of the easement by the servient tenant. The trial judge also concluded that because the plaintiff’s own witness conceded that no cars had been parked on the easement for four to six months, that aspect of the controversy was moot.

In explaining his decision orally, the trial judge took note that there had been a dumpster on the easement since 1974, that odors of some magnitude must have been emitted therefrom since that time, and that the plaintiff was therefore guilty of laches in enforcing a right that it “never had in the first place because the presence of a dumpster on one’s own property is a reasonable exercise attendant [to the] ownership of property.”

In its written judgment order, the court reiterated these findings. The court added the factual finding that the steel staircase leading to the second floor of the plaintiff’s building was used in the past to accept deliveries of gift boxes but had not been used for any purpose for several years. The doorway had not been used for deliveries and was apparently installed as an emergency exit.

The plaintiff appeals, arguing (1) that the trial court erred in applying laches to the plaintiff’s complaint; and (2) that the trial court erred in finding that the defendant’s placement of the nonwheeled dumpster on the easement was a reasonable use of the easement by the servient estate.

We first address the plaintiff’s argument that the trial court erred in applying the doctrine of laches. Laches is an equitable doctrine which bars an action if, because of the plaintiff’s unreasonable delay in bringing suit, the defendant is misled or prejudiced or takes a course of action that he or she should not have otherwise taken. (Streams Condominium No. 3 Association v. Bosgraf (1991), 219 Ill. App. 3d 1010, 1016.) Mere delay in bringing suit is not enough to establish laches', the defendant must show prejudice or hardship from the delay, i.e., the delay induced him to change his position adversely. (Schons v. Monarch Insurance Co. (1991), 214 Ill. App. 3d 601, 609.) A trial court’s application of the doctrine of laches will not be reversed unless the trial court abused its discretion. Flower v. Valentine (1985), 135 Ill. App. 3d 1034,1042.

The trial court reasoned that since there had been a dumpster on the easement since 1974 with the plaintiff’s oral permission, and since the plaintiff waited until 1990 to file suit, the plaintiff was guilty of laches. However, the court did not find that the defendant detrimentally relied on the plaintiff’s inaction.

It is true that the plaintiff did not complain about the large dumpster on the easement for 15 years. However, the defendant cannot avail himself of the defense of laches. We base this conclusion on the fact that the defendant did not show that he was prejudiced or injured by the plaintiff’s failure to assert a complaint. (See Schons, 214 Ill. App. 3d at 609.) It is our view that the removal of the large dumpster and its replacement with a smaller movable dumpster or dumpsters will not constitute a serious injury to the defendant. See Flower v. Valentine (1985), 135 Ill. App. 3d 1034, 1042.

Having found that the doctrine of laches does not prevent the plaintiff’s cause of action, we now address the plaintiff’s next argument, that the presence of the dumpster on the easement constitutes unreasonable interference with the plaintiff’s easement.

As the owner of the dominant estate, the plaintiff was entitled to the necessary use of the easement, i.e., such use as is reasonably necessary for the full enjoyment of the premises. (Flower, 135 Ill. App. 3d at 1039.) Strictly speaking, the defendant, as owner of the servient estate, had no right to obstruct any portion of the generally described easement. (Schaefer v. Burnstine (1958), 13 Ill. 2d 464, 468.) However, our courts have recognized that the owner of the servient estate is entitled to the reasonable use of his property. (Ogilby v. Donaldson’s Floors, Inc. (1958), 13 Ill. 2d 305, 310; Professional Executive Center v. La Salle National Bank (1991), 211 Ill. App. 3d 368, 379.) As the court stated in Ogilby.

“The defendants ***, as owners of the servient estate, may use their property for any purpose not inconsistent with such reasonable enjoyment [by the easement owner]. No hard-and-fast rule can be stated as to when the use made by the owner of the servient estate is a reasonable use as distinguished from an unreasonable use. It is a question of fact to be determined from the facts and conditions prevailing.” Ogilby, 13 Ill. 2d at 310.

The parties disagree over the standard of review applicable to this case. The plaintiff claims that the facts in this case are undisputed and that the trial court’s ruling is reviewable de novo. The defendant argues that there were factual discrepancies in the testimony and that because the question of reasonable use is one of fact, the trial court’s finding of reasonable use should not be overturned unless it is against the manifest weight of the evidence. We believe that there are discrepancies in the testimony and that the question of reasonable use is one of fact (as the above-cited cases state). Therefore, we will apply the manifest weight of the evidence standard for review.

We agree with the trial court that the defendants, as owners of the servient estate, may use their property for any purpose not inconsistent with the reasonable enjoyment of the easement owner. (See Ogilby, 13 Ill. 2d at 310.) However, the trial court erred in solely using the current use of the easement by the dominant owner to determine what “inconsistent” use is. The court noted that currently the plaintiffs are making minimal use of the easements for delivery. The court reasoned that since the only current use of the easement area by the plaintiff was as an emergency exit, the defendant’s use was not inconsistent with the plaintiff’s use.

By the trial court’s reasoning, a dominant easement owner could lose substantial rights of ingress and egress by mere nonuse. However, this is inconsistent with the long-standing rule that an easement cannot be lost by mere nonuse. (Pacemaker Food Stores, Inc. v. Seventh Mont Corp. (1983), 117 Ill. App. 3d 636, 645; Beloit Foundry Co. v. Ryan (1963), 28 Ill. 2d 379, 390.) To constitute abandonment, the dominant owner must not only abandon the easement but also have the intent to abandon the easement. (See Flower, 135 Ill. App. 3d at 1039.) While the court should look to the dominant estate’s use of and the “conditions prevailing” (Ogilby, 13 Ill. 2d at 310) to determine whether the servient estate’s use of the property is inconsistent with the reasonable enjoyment of the easement owner, nonuse cannot be used to vitiate the clear intent and permanence that is necessarily inherent in easements for ingress and egress. The rights of the owner of the easement are paramount (Schnuck Markets, Inc. v. Soffer (1991), 213 Ill. App. 3d 957, 974), and the law is jealous of the claim of an easement. Delgado v. Wilson (1989), 178 Ill. App. 3d 634, 640.

Examples of reasonable use by a servient estate are the temporary or occasional blockage of the easement area (see Ogilby, 13 Ill. 2d at 310-11), or obstructions that predate the creation of an easement. (See Flower, 135 Ill. App. 3d at 1040.) But, the permanent placement of obstructions in an area that significantly lessens the ingress and egress rights of the dominant owner is not reasonable and is therefore an inconsistent use with the right of reasonable enjoyment. See Schaefer v. Burnstine (1958), 13 Ill. 2d 464, 468-69 (emphasizing that permanent obstruction by gates and posts was not reasonable use).

The plaintiff used the easement area for deliveries up until 1989. There was also testimony that it was no longer being used for deliveries because the dumpster prevents delivery truck access. Furthermore, as an easement that runs with the land, the ingress and egress could be considerably important in the resale value of the plaintiff’s property to a business that would need such access. For the above reasons, we find the defendant’s use of a large, immobile dumpster to be unreasonable interference. See Flower, 135 Ill. App. 3d at 1040.

The plaintiff also argues that the parking of vehicles on the easement and the odors emanating from the dumpster additionally constitute unreasonable interferences with the plaintiff’s easement.

Noting that the plaintiff’s own witness testified that the defendant had recently stopped parking cars on the easement, the trial court held the parking complaint to be a moot issue. A moot issue is one which existed but which, because of the happening of certain events, has ceased to exist. (People v. Meece (1987), 162 Ill. App. 3d 658, 660.) However, an exception to the mootness doctrine exists where the issue is likely to recur and because of the short duration of the action involved, it would ordinarily be terminated before the question could be resolved by a court. See Meece, 162 Ill. App. 3d at 660.

This exception applies in this case where the complained parking problem was stopped as of the initiation of the lawsuit, but would be likely to recur if the respective rights of the parties were not determined by the court. Therefore, we find that the plaintiff is entitled to injunctive relief to prevent the defendant from blocking the easement with parked vehicles.

In addressing the odors that apparently drove the customers from the plaintiff’s store, the complaint did not sound in nuisance, and the plaintiff has made no effort to connect up any odor problem with its rights under the easement. We therefore affirm the court on this issue and deny any relief from this effluvia! problem.

The judgment of the circuit court of Kane County is reversed, and the cause is remanded with instructions to enjoin the defendant from parking on the easement or placing any dumpster or other obstruction which significantly impedes the ingress and egress rights of the plaintiff.

Reversed and remanded with directions.

UNVERZAGT and BOWMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    JACQUELINE GRISCHOW, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Community Nursing Service, Appellant).
    Second District (Industrial Commission Division)
    No. 2—91—0845WC
    Opinion filed April 24, 1992.
    Rehearing denied June 11, 1992.

      James W. Stevenson, of Wiedner & McAuliffe, Ltd., of Chicago, for appellant.
    Ralph A. Gabric, of Pfeffer, Becker, Gabric & Cerveny, of Wheaton, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The appellee, Jacqueline Grischow (claimant), filed an application for adjustment of claim pursuant to the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.). Following hearings in 1987 and 1988, the arbitrator awarded certain medical expenses, found the claimant was totally and permanently disabled, and awarded $156.67 per week for life as provided in section 8(f) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.8(f)). The Industrial Commission (Commission) held a hearing in November of 1989, where additional evidence was presented. Thereafter, the Commission modified the arbitrator’s decision, finding the claimant was temporarily totally disabled for a period of 2261/2 weeks and permanently disabled to the extent of 40% of a person as a whole under section 8(d)(2) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.8(d)(2)). The circuit court reversed, finding the Commission’s decision was against the manifest weight of the evidence. The court reinstated the arbitrator’s decision. The appellant, Community Nursing Service (employer), appeals. We reverse.

The claimant was employed by the employer as a homemaker’s aid. The claimant visited homebound clients of the employer. She would prepare meals, wash the clients and assist them in and out of bed. On June 15, 1982, the claimant was washing a client when the client pushed the claimant with her arm. The claimant was pushed backward with her heel catching on a commode. The claimant fell into a folded wheelchair, landing on her buttocks and hitting her back and head against the wheelchair.

The claimant continued to work for an hour or two and then went home. The claimant testified she hurt from her shoulders to her knees. That afternoon she noticed numbness in her left leg and pain in her right leg. The claimant testified she had never experienced this type of numbness or pain prior to that date.

The next day the claimant went to work; however, she was in pain from her shoulders to her knees. She left work feeling nauseous. The following day the claimant worked approximately four hours. She felt “sicker and sicker” as the day progressed. She went home around noon and has not returned to employment since that date. The claimant later informed her office that she believed her condition made it unsafe for her to return to work.

On June 26, 1982, the claimant was examined by her family physician, Dr. Barry Lewis. She was experiencing pain in her right leg, numbness in her left leg, headaches and dizziness. Lewis prescribed diathermy treatments and ultrasound on the lower back. He advised her to stay off her feet.

On July 22, 1982, the claimant was examined at the employer’s direction by Dr. Ken Sanders. According to Dr. Sanders’ report the claimant suffered an injury to her trapezius muscle in May of 1981. Thereafter, according to Sanders, claimant experienced pain in her low back and right leg. Sanders’ report indicates the claimant saw a physician for her right leg complaint on December 29, 1981. Sanders reported the claimant’s complaints were the same after the June 15, 1982, incident as she suffered before; however, the claimant’s complaints were markedly increased since that date.

At the November 1987 arbitration hearing, the claimant denied having low back and right leg pain prior to June 15, 1982. She explained she was seen by her physician, Dr. James Mígala, in 1981 for problems with her right shoulder and arm. Dr. Migala’s records, dated June 23, 1981, reflect an injury to the right upper back, neck and shoulder.

The claimant’s condition grew steadily worse in November and December of 1982. A CT scan was done in November of 1982. The claimant continued to experience pain in her right leg and numbness in the left leg. Occasionally her legs would give out and she would fall. On January 3, 1983, the claimant became violently ill to the extent she could not walk, was incontinent and felt as if her legs were going to “blow up.”

At the employer’s direction, the claimant was examined by Dr. Marshall Matz in January and June of 1983. Matz’s January 26, 1983, report indicates the claimant complained of pain in her lower back, and pain and numbness in her legs. Matz observed the claimant appeared to be in no distress, had no limp and walked with a normal gait. She was able to walk on her heels and toes and squat with her buttocks to her heels. She was able to bend forward and touch her toes with her fingertips.

The claimant was also seen by Dr. “Scarf [sic]” in January of 1983. He hospitalized the claimant from January 31, 1983, to February 2, 1983. A myelogram was performed; however, other contemplated procedures were cancelled.

She was examined by Dr. James Mígala on March 28, 1983. Mi-gala had treated the claimant for various ailments since the mid 1970’s; however, this was the first time he had seen her since the incident the previous June. His diagnosis was that the claimant was suffering from a lumbar sprain. His report noted the November CT scan showed no abnormalities. The claimant testified Mígala told her to stay off her feet and not lift anything. He prescribed Indocin, which she testified caused her hair to fall out. Mígala subsequently sent her to see a neurosurgeon, Dr. Robert Strzyz.

The claimant’s condition continued to worsen during the summer of 1983. On September 12, 1983, a laminectomy was performed at the L5-S1 disc level. The claimant testified that while in the hospital recovering from the surgery her legs “stopped working.” This condition required her to use a walker for a couple of months thereafter. Migala’s records for September 18, 1983, indicate the claimant was doing well after the laminectomy and was discharged with continuing bilateral leg pain. There is no mention of any difficulty walking.

Migala’s report dated October 11, 1983, states the claimant was doing much better; however, she was experiencing numbness in the right heel and toe. She had no leg pain, and he hoped she would return to full activity within a month. His notes of November 11, 1983, indicate she was doing reasonably well, although she experienced pain in her right leg and numbness in the area of the top of her left foot toward the end of the day. Migala’s notes of December 23, 1983, state the claimant was still experiencing “symptoms intermittently in both legs.” His examination revealed a full rangeibf motion in her spine.

The claimant was seen by Mígala in his office on four occasions in 1984 (February, April, June and August). His records reflect continued complaints of numbness in the left leg and pain in the right leg.

The claimant was seen by a rehabilitation nurse in February of 1984. The nurse’s report indicates the claimant complained of chronic leg and back pain and that her legs would give out. The report states, “She indicates she feels her problems with her back really started approximately 14 months before the time of the reported injury.” The nurse opined the claimant was slightly neurotic, dwelt on her discomfort and might be exaggerating her symptoms.

Mígala examined the claimant in February and July of 1985. Mi-gala found the claimant continued to complain of pain in her legs and had limited flexion of the lumbar spine. Mígala felt the claimant should seek vocational training and that she could not return to her job with the employer. Migala’s notes of October 16, 1985, indicate the claimant’s condition had worsened since the summer of 1985. She had complaints of pain in her legs and spasms in her back. Mígala decided to contact the Mayo Clinic in Rochester, Minnesota, in order to have the claimant’s conditions further evaluated.

The claimant was examined by a team of doctors at the Mayo Clinic in January and again in March of 1986. In a letter to Mígala, Dr. Bahram Mokri states their examination revealed the range of motion of the lumbar and cervical spine was normal. They saw no need for further surgery at that time and recommended weight reduction and physical therapy. A second letter from Dr. Mokri indicates Dr. Donald Campbell’s examination found degenerative joint disease of the L5-S1 facets, decreased disc space, but no evidence of active radiculopathy. The doctors recommended a nonsteroidal anti-inflammatory medication, physical therapy and weight loss. They recommended the claimant use a TENS unit. Mokri recommended she avoid heavy lifting, and he doubted she could return to work involving the lifting of patients. He opined she was 10% permanently partially disabled.

On August 1, 1986, the claimant was involved in an auto collision when a car rear-ended the Chevy Suburban the claimant was driving. The collision occurred as the claimant was pulling into her driveway. She later testified both vehicles were traveling at low speeds at the time of the collision. The bumper of the Suburban had a gouge in it as a result. The claimant testified before the arbitrator that she had increased pain in her lower back for about two weeks after the incident. She maintained her condition, vis-a-vis her back and legs, returned to its previous state soon after the collision.

Mígala examined the claimant on August 8, 1986. She complained of neck, shoulder and upper back discomfort. The claimant noted bleeding and swelling near the scar on her lower back and lower back pain which was somewhat worse. Mígala believed the claimant suffered a cervical, dorsal and lumbar sprain. By phone, the claimant told Mígala on September 2, 1986, that she had swelling and low back pain. Migala’s notes of December 12, 1986, and January 19, 1987, note swelling of the left leg.

The claimant was examined by Dr. Daniel Ludwig on March 16, 1987. Via evidence deposition Ludwig testified the majority of his practice was in disability evaluation. His examination of the claimant revealed marked limitation of the lumbar spine and muscle spasms when bending. He also found some irritation of the lumbosacral area of the spine and indications of sciatic nerve root irritation. His diagnosis was herniated disc syndrome of the lumbar spine in post-operative state, narrowing of the fifth lumbar disc space, and arthritis. Ludwig opined the injury could have arisen from the June 15, 1982, incident. He did not think the claimant could be gainfully employed, and it was his opinion her condition was permanent. Ludwig agreed that if the claimant had a normal range of motion prior to the August 1, 1986, auto collision, there could be a causal relation between her condition and the collision of that date.

Hearings were held before the arbitrator on November 25, 1987, and April 21, 1988. At the November 25, 1987, hearing the claimant testified she was told by Mígala not to lift, bend, stretch or pull. She was not to sit or stand for more than an hour and a half to two hours at a time. At the April 21, 1988, hearing, the appellant offered Migala’s written restrictions received by the insurance carrier in February of 1984. The restrictions state that in an eight-hour day, the claimant could stand and walk one to four hours, sit one to three hours and drive one to three hours. The claimant was not to bend or climb. She could occasionally squat and perform overhead work.

On June 7, 1988, the arbitrator entered an award for medical expenses and found the injuries sustained by the claimant rendered her permanently and totally disabled. Under section 8(f), the claimant was awarded $156.67 per week for life. The arbitrator stated his decision was based on the restrictions imposed by Dr. Mígala and the findings of Dr. Ludwig.

A hearing on review was held before the Commission on November 30, 1989, at which further evidence was taken. The claimant testified her left leg went numb when she sat for a period of time and experienced pain down the thighs in both legs. She also stated she fell down at least once a month and that she had numbness in her left leg and pain in the right leg when she stood for more than a hour.

The parties stipulated that additional medical records of Dr. Mi-gala had been forwarded to the arbitrator prior to the arbitrator’s decisión. In a letter to claimant’s attorney dated February 11, 1988, Mi-gala stated the claimant had definite limitations. He stated she could stand no more than one hour, sit no more than an hour and a half, and bend only occasionally. In addition, she should not lift more than five pounds, should not squat or climb ladders, and climb stairs infrequently. In another letter, Mígala opined that the majority of her problems resulting from the August 1986 auto collision involved the cervical spine and not the lower back.

At the November 30, 1989, hearing, a rehabilitation specialist, James Percic, testified concerning his efforts to assist the claimant in obtaining vocational retraining and employment. He first met with the claimant on April 4, 1989, and had knowledge of the restrictions placed on the claimant by Mígala. He testified Mígala gave a full release for training purposes only.

Percic arranged for the claimant to take two courses at the College of Du Page during the summer of 1989 to prepare her for jobs in the clerical field. The claimant did not attend. Mígala told Percic it was too far for the claimant to drive and too strenuous. Percic subsequently prepared a rehabilitation plan for the fall of 1989. The claimant phoned Percic on September 21, 1989, and accused him of harassment. She threatened legal action. Percic opined the claimant was a candidate for jobs for which a stable labor market existed. On cross-examination, Percic admitted that because of the restrictions placed on the claimant, Du Page Rehabilitation Services refused to provide services to the claimant.

Admitted into evidence were the work restrictions imposed by Mi-gala dated April 3, 1989. (The day before the claimant was seen by Percic.) He stated she could not work an eight-hour day. She could sit continuously for an hour and a half, four hours intermittently. She could walk one hour continuously, four hours intermittently. She could stand continuously for 20 minutes, three hours intermittently. He opined she could drive only short distances and had reached her maximum improvement. In an open letter dated September 1, 1989, Mi-gala opined the claimant was unemployable because of her physical condition.

A report and work restriction evaluation by Dr. William Hejna were admitted into evidence. Hejna examined the claimant on July 26, 1989. He found she was not able to bend forward completely, but was able to walk on her heels and toes without difficulty. A lumbar MRI was performed on August 4, 1989, which revealed no abnormalities. From his examination and the test results, Hejna concluded, “I am unable to corroborate the degree of subjective complaint which this patient has with objective findings.” He opined she should be able to perform full-time sedentary work, with limited walking, standing, bending, squatting and lifting.

In addition, the employer was allowed to present, as an offer of proof, the claimant’s answers to interrogatories given in the legal action arising out of the auto collision. In the interrogatories, when asked to describe her injuries, the claimant responded, “Pain to neck, back and shoulders, difficulty breathing; loss of strength and use of arms; swelling and discoloration of tissue over surgical incision; severe back spasms; driving anxiety.” When asked if she had recovered from the injuries received in the collision, the claimant replied, “No. Still suffering from nerve radiculitis which causes continued pain.”

The Commission modified the decision of the arbitrator, finding the petitioner was temporarily totally disabled for a period of 2261/7 weeks and was permanently disabled to the extent of 40% of a person as a whole under section 8(d)2 of the Act. The Commission stated it considered the entire record in reaching its decision. The Commission affirmed on all other issues.

The Commission made five specific findings. First, it found the claimant was injured when she was pushed by a bedridden client and fell into a wheelchair striking her lower back and legs. Second, the Commission noted the claimant was involved in an auto accident on August 1, 1986, and cited the claimant’s answers to the interrogatories. Third, the Commission found the claimant was seen by Dr. Mi-gala for complaints of pain “to her lower back, cervical and right leg on June 23, 1981.” In addition, the Commission found the claimant was seen by Dr. Sanders on May 15, 1981, and that she complained of pains to her “low back, cervical and right leg.” Fourth, the Commission found Migala’s work restriction evaluation of April 1989 did not state the claimant was unemployable. Fifth, the Commission stated it was relying on the evaluation of Dr. Hejna. The Commission noted Hejna opined the claimant could perform full-time sedentary work, could lift up to 10 pounds occasionally, work above her shoulders, operate foot controls and drive a vehicle.

The circuit court reversed, finding the Commission’s decision was contrary to the manifest weight of the evidence. The court found the Commission properly considered the interrogatories. The court also found the record supported the decision of the arbitrator and that therefore judgment should be entered for the claimant pursuant to the findings of the arbitrator. The employer, Community Nursing Service, brings the instant appeal.

On appeal, the employer argues the circuit court erred in finding the Commission’s decision was against the manifest weight of the evidence. The employer contends the evidence supports the Commission’s decision modifying the claimant’s award and finding the claimant was not totally and permanently disabled.

For purposes of section 8(f) of the Act, a person is totally disabled when he cannot perform any services except those for which no reasonably stable labor market exists. (E.R. Moore Co. v. Industrial Comm’n (1978), 71 Ill. 2d 353, 376 N.E.2d 206.) Because of the Industrial Commission’s expertise in the area of workers’ compensation, its finding on the question of the nature and extent of permanent disability should be given substantial deference. (English v. Industrial Comm’n (1986), 151 Ill. App. 3d 682, 502 N.E.2d 1247.) It is not the province of a court to substitute its judgment for that of the Industrial Commission merely because it might have made a different finding. (Caterpillar Tractor Co. v. Industrial Comm’n (1983), 98 Ill. 2d 400, 456 N.E.2d 1366.) The Commission is the judge of the credibility of the witnesses and the weight to be given their testimony. (Chicago Rotoprint v. Industrial Comm’n (1987), 157 Ill. App. 3d 996, 509 N.E.2d 1330.) It is for the Commission to resolve disputes in the evidence and draw reasonable inferences and conclusions from that evidence, and the Commission’s decision will not be set aside on review unless it is contrary to the manifest weight of the evidence. Presson v. Industrial Comm’n (1990), 200 Ill. App. 3d 876, 558 N.E.2d 127.

In the instant case, the evidence regarding the extent of claimant’s disability was conflicting. She was seen by numerous doctors over a period of seven years. Their evaluations of the claimant’s condition varied widely. In addition, there was a 51/2-year interval between the injury on June 15, 1982, and the first hearing before the arbitrator in November of 1987. In the interval the claimant was injured in an auto collision. The Commission received extensive additional evidence, including live testimony from the claimant.

In regard to the extent of the claimant’s disability, Dr. Ludwig opined the claimant could not be gainfully employed and that her condition was permanent. Ludwig’s examination, on which the arbitrator relied, did not take place until March 16, 1987, five years after the initial injury and following the claimant’s auto collision.

Mígala stated in a September 1989 letter that in his opinion the claimant was unemployable. However, Migala’s records reveal his assessment of the claimant’s condition changed markedly during the course of treatment from 1983 to 1989. In the fall of 1983, following her laminectomy, he expected her to return to full activity within a short time. According to his records, her condition did not worsen appreciably until the fall of 1985. He did not see her from December 1985 until after her accident in August of 1986.

The doctors at the Mayo Clinic, who examined the claimant early in 1986, opined the claimant was 10% permanently partially disabled as a result of the condition of her lower back. Dr. Hejna concluded after examining the claimant in July of 1989 and having a lumbar MRI test performed that he could not corroborate her subjective complaints with his objective findings.

Migala’s work restrictions of April 1989 stated the claimant could not work a full eight-hour day. He said she could sit continuously for an hour and a half, four hours intermittently. She could walk one hour continuously, four hours intermittently. She could stand continuously for 20 minutes, three hours intermittently. He opined she could drive only short distances. Hejna opined in the summer of 1989 the claimant could perform full-time sedentary work, with limited walking, standing, bending, squatting and lifting.

In sum, the evidence was conflicting, and it was the province of the Commission to resolve disputes in the evidence and draw reasonable inferences and conclusions therefrom. The Commission found Dr. Hejna’s opinions and findings more credible. The Commission was free to rely on Dr. Hejna’s conclusions. Viewing the record as a whole, it cannot be said the Commission’s decision modifying the claimant’s award was against the manifest weight of the evidence.

The claimant argues there was no evidence to support the Commission’s decision to award temporary total disability benefits only through the day of the auto collision, August 1, 1986.

The determination of the length of an employee’s temporary total disability is a question of fact to be resolved by the Commission. (Presson v. Industrial Comm’n (1990), 200 Ill. App. 3d 876, 558 N.E.2d 127.) An intervening cause can break the chain of causation between a work-related injury and subsequent disability. Tee-Pak, Inc. v. Industrial Comm’n (1986), 141 Ill. App. 3d 520, 490 N.E.2d 170.

In the instant case, the evidence showed the claimant suffered some injury to her lower back in the collision. This fact was demonstrated by the discoloration of her surgical scar and complaints of increased pain following the collision. She had not consulted Mígala concerning her lower back for seven months prior to August 1, 1986. The Commission was free to draw reasonable inferences from the evidence. Again, in view of the record, we cannot say the Commission’s determination on this issue was against the manifest weight of the evidence.

The claimant also argues the specific factual findings of the Commission were incorrect and that therefore the circuit court correctly found the Commission’s decision was against the manifest weight of the evidence. We note some of the factual statements may be incorrect; for example, the finding that the claimant was seen by Dr. Sanders on May 15, 1981. The record shows the claimant was not seen by Sanders until July of 1982. However, we find the factual inaccuracies in the Commission’s written opinion were not controlling facts and that the record when viewed as a whole supports the Commission’s decision. A judgment may be sustained upon any ground warranted by the record regardless of whether the particular reasons given therefor in the written opinion are correct. Material Service Corp. v. Industrial Comm’n (1985), 133 Ill. App. 3d 907, 478 N.E.2d 1095.

For the foregoing reasons, the judgment of the circuit court of Du Page County is reversed, and the award of the Commission is reinstated.

Reversed.

McCULLOUGH, P.J., and WOODWARD, LEWIS, and RAKOWSKI, JJ., concur.


author: JUSTICE WOODWARD

text:
    KRISTIN HARDING, Plaintiff-Appellant, v. THE CITY OF HIGHLAND PARK, Defendant-Appellee.
    Second District
    No. 2—91—0650
    Opinion filed May 4, 1992.

      Steven P. Schneck, of Hartunian, Futterman & Howard, Chartered, of Chicago (Aram A. Hartunian, of counsel), for appellant.
    DeSanto & Bonamarte, P.C., of Highland Park (Michael F. Bonamarte III, of counsel), for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

On June 8, 1987, plaintiff, Kristin Harding, brought suit against defendant, the City of Highland Park (City), for damages alleged to have been caused by plaintiff’s fall into a water meter pit owned and maintained by defendant. The jury found for the plaintiff and awarded her damages in the amount of $76,310.70. The trial court entered judgment notwithstanding the verdict for the defendant, based on its conclusions that proof of actual or constructive notice of the dangerous condition was required by statute, separate from proof that the dangerous condition was directly caused by the City in the first place. In a supplemental order, the trial court granted defendant’s motion for a new trial and entered a remittitur of $40,000.

On appeal, plaintiff raises the following issues: (1) whether the statute requires proof that defendant had notice of a dangerous condition, separate from proof that the City negligently caused the dangerous condition in the first place; (2) whether the jury’s verdict was against the manifest weight of the evidence; (3) whether a remittitur of $40,000 was justified in this case; and (4) whether the testimony of the plaintiff’s doctor concerning disability should have been excluded from the evidence. Because of our rulings on the first three issues, we need not address plaintiff’s fourth contention.

Initially, we note our confusion regarding the trial court’s orders in the appeal at bar. In our view, the court’s entering a judgment notwithstanding the verdict should have concluded the case. The need for the granting of a new trial and entering a remittitur of $40,000 seems unnecessary in light of the judgment n.o.v. Having so stated, we will describe the relevant facts without further comment.

Also, we will note that plaintiff’s complaint filed June 8, 1987, averred inter alia that defendant had actual or constructive notice of the dangerous condition which caused plaintiff’s injury. At trial immediately prior to closing arguments, the court below granted plaintiff leave to file an amended complaint which averred that defendant’s agents failed to secure properly the water meter pit lid after checking the water meter and, thereby, created the subject unsafe condition.

At the trial held in August 1990, John Shelton, a public works foreman for defendant, testified as an adverse witness in plaintiff’s case. He stated that defendant maintained a water meter in the parkway in front of the Harding residence at 1244 Taylor Avenue, Highland Park. The water meter is situated in a pit which was five to six feet deep. Atop the pit is a circular cover made of cast iron. It measures 16 inches in diameter and is approximately five-sixteenths to three-quarters of an inch thick. The cover weighs four to five pounds. The removal of same requires a person to fit a screwdriver into the space between the lid and frame and then pry upwards and, finally, to pull the cover back. Defendant’s water meter covers are intended to be walked on by pedestrians. The plaintiff could fall into the meter pit only if the cover is removed and then put back without being correctly reseated in the groove. The improper placement of the cover cannot be caused merely by weather or by someone walking across the water meter. Defendant’s water department reads about 200 water meters per day. To prevent hazard to foot traffic, it is very important to replace a water meter cover carefully and to clean it of dirt.

Mr. Shelton further stated that water bills are based either on actual readings or estimates. The bill for the winter quarter is usually estimated, based on the arithmetic average of the three prior bills. However, a meter will actually be read (and reread) during winter if a resident complains about the amount. Rereadings and special readings are common.

Plaintiff testified that her injury occurred on January 22, 1987. At about 12 p.m., she was driven to her home, 1244 Taylor Avenue, by a friend from work. Plaintiff then borrowed her brother’s truck and visited her grandmother in Highwood. Upon returning, she parked the truck on the street in front of her home. She got out of the truck and walked towards the front of the house. There was a covering of snow on the ground. The sun was shining, and the temperature was below freezing.

Plaintiff stepped on the water meter cover in the parkway. It gave way, and plaintiff’s right leg fell into the pit’s opening up to her groin. Her right knee and pelvic area came into contact with the pit’s rim. Her left leg was twisted behind her. In a great deal of pain, plaintiff was unable to extricate herself from this position and called for help. Family members eventually came to her aid, but they decided to call paramedics to remove her from the meter pit. Paramedics lifted her from the opening and took her to the Highland Park Hospital.

Thereafter, plaintiff received medical treatment but was unable to continue with her normal activities. Plaintiff no longer went bowling, jogging, walking or dancing, activities in which she had regularly engaged. Plaintiff could not walk up or down stairs, so she had to sleep on the first floor and be carried on stairways. For some months following the accident, plaintiff experienced constant pain in her right knee and right pelvis.

Plaintiff was primarily treated by Dr. Norman Cohen, a board-certified orthopedic surgeon. He first examined her on January 28, 1987. This initial examination revealed substantial pain with flexion of the right hip. Dr. Cohen noted bruises on the front of the right knee, as well as limitation of right knee flexion to 25 degrees. He diagnosed “[mjultiple severe contusions or contusions of soft tissue injuries.” Dr. Cohen immobilized plaintiff’s right knee and prescribed crutches. Under Dr. Cohen’s care, plaintiff received heat therapy and performed exercises that included leg bends and leg lifts. These measures did not relieve her pain or allow her to resume normal activity. Due to plaintiff’s minimal improvement with conservative treatment, Dr. Cohen performed a right knee arthrogram which revealed a popliteal cyst, i.e., a collection of joint fluid behind the knee. Otherwise, the arthrogram was interpreted as normal. Dr. Cohen opined that the popliteal cyst resulted from the trauma plaintiff sustained in January 1987.

Plaintiff underwent arthroscopic surgery on July 21, 1987. Dr. Cohen’s diagnosis of her condition was medial shelf plica syndrome and fiber arthrosis of the knee joint. In his opinion, these conditions were related to plaintiff’s fall into the meter pit. He further opined that her symptoms were probably permanent.

Dr. Cohen examined plaintiff the day after this surgical procedure. He did not examine plaintiff again until April 23, 1990, at which time plaintiff complained of pain in her right knee that was exacerbated by weather changes and climbing or descending stairs. Plaintiff also described a sensation of weakness in her right knee. As to objective findings, Dr. Cohen observed some softening, degeneration and inflammation of the right kneecap’s surface. Because plaintiff remained symptomatic since her fall into the meter pit, Dr. Cohen believed her condition was related to the subject injury. He also opined that plaintiff’s knee condition was “[m]ore probably than not” permanent.

Following her arthroscopic surgery in July 1987, plaintiff’s condition improved to the point she could walk short distances without pain. She followed an exercise regimen prescribed by Dr. Cohen of a 15-minute workout three or four times a week. Nevertheless, she was not able to resume physical activities, such as aerobics or long-distance walking, which she previously had enjoyed. Standing for long periods of time caused pain in her right knee. Also, weather changes caused her right knee to tighten, resulting in a throbbing pain. This happened on at least a weekly basis.

Harriett Harding, plaintiff’s mother, testified that sometime in November 1986 she telephoned defendant to complain about her high water bill. She got the number from the telephone book. The first person who answered Mrs. Harding’s call was identified as the defendant, and the call was then transferred to the water department. The next voice was identified as the water department. The water department employee promised to send someone out to read the Hardings’ meter. Three or four days later, Mrs. Harding called defendant’s water department again and was told that the water meter had been checked and that it was functioning properly. The water department employee suggested that there might be a leak in her house. Sometime after Christmas 1986, perhaps early in January 1987, Mrs. Harding saw a white vehicle with defendant’s logo on it parked in front of her house. Two men dressed in winter coats were standing around the opening of the water meter lid, which had been removed. The men were looking into the pit. She saw them as she walked past the dining room window.

Mrs. Harding received a water bill dated January 6, 1987. Said bill indicated it was based on a regular reading rather than an “estimated” one. The balance due on said bill was $20.34, which was substantially lower than the previous two bills of approximately $43 and $67.

Plaintiff’s brothers, Jeff and Joe Harding, and Mark Tazioli, Jeff’s friend, all of whom were at the subject residence when the accident occurred, came to the plaintiff’s aid after her fall into the water meter. Each saw that plaintiff’s right leg was fully down into the pit, and her left leg was twisted behind her.

Gary Grove, testifying as an adverse witness, stated that he had worked for defendant primarily as a water meter reader for approximately 13 years. He read approximately 200 meters a day and was responsible for reading the water meter at the subject residence. Based upon his records, Mr. Grove thought the last time he had checked the subject meter prior to plaintiff’s accident was September 1986. It was his practice to make sure the pit’s cover was secure after making a reading.

At the close of plaintiff’s case in chief, defendant made a motion for a directed verdict, arguing that defendant had to have actual or constructive notice of the subject dangerous condition for liability to attach. In denying this motion, the court below stated:

“I am going to deny the motion for directed verdict because I think this — and I could well be wrong about it, but I don’t think so. 3 — 102 of Chapter 85 I don’t think is intended to govern this situation where indeed notice, actual or constructive, is simply not an issue. If the inference drawn from the circumstantial evidence is that the employees of Highland Park did something directly negligent — and I understand the City’s position on that, that I am absolutely dead wrong — then I have to follow 3 — 102. But it doesn’t make any sense to talk about actual and constructive notice when you are talking about performing a negligent act.
There is no concept of law that ever says that when you are guilty of direct negligence, that you have to have actual or constructive notice of the negligence before you can be held liable. I don’t think that that is what this tort immunity law is intended to say. So that is why I am denying the directed verdict because one of the inferences that could be drawn from the circumstantial evidence in this case is that it is the employees of Highland Park that did it.”

Defense witness Dr. Michael Gonzalez, board certified in physical medicine and rehabilitation, examined plaintiff on June 8, 1989, at defendant’s request. He performed a variety of tests designed to analyze the condition of plaintiff’s right knee, which he determined was normal in all important aspects. Dr. Gonzales opined that plaintiff did not sustain any permanent injury or disability as a result of her January 22, 1987, accident. He also opined that plaintiff had no permanent abnormality of her knee which should cause pain. On cross-examination, he admitted that plaintiff did experience pain during one of the maneuvers he performed upon her. Dr. Gonzalez further conceded that he had never performed arthroscopic surgery.

Jorene Ugasti, an employee of defendant, testified that early in 1987, she was being trained in water billing. She filled in for the regular billing clerk who was vacationing. She prepared the winter water billing for section one of Highland Park, which included the Harding residence. She erroneously caused the bills to be printed based on “regular” readings rather than on “estimated” ones. The original card on which the subject water meter’s reading was recorded had been lost. Ms. Ugasti stated that all the originals of defendant’s meter reading cards had been misplaced. The photocopy of the subject card indicated no special reading of the Harding water meter late in 1986 or early in 1987.

Gary Grove also testified for the defendant. He was familiar with the subject residence in his job as a meter reader for defendant. Mr. Grove stated that he had not read the subject water meter between September 1986 and March 1987.

As noted above, the jury returned a verdict of $76,310.70. Of that total, $40,000 was for plaintiff’s disability, $30,000 for past and future pain and suffering and $6,310.70 for medical costs.

Defendant’s post-trial motion moved the court inter alia to enter a judgment notwithstanding the verdict or, in the alternative, grant a new trial.

In its memorandum order entered on March 27, 1991, the trial court granted defendant’s post-trial motion for judgment notwithstanding the verdict based upon its conclusion that defendant had no actual or constructive notice of the subject dangerous condition. Citing Bellino v. Village of Lake in the Hills (1988), 166 Ill. App. 3d 702, and Palermo v. City of Chicago Heights (1971), 2 Ill. App. 3d 1004, the trial court held that defendant’s motion for directed verdict at the close of plaintiff’s cause should have been granted. It also held that plaintiff’s motion to file an amended complaint should have been denied at trial.

In a supplemental order entered May 17, 1991, the trial court ruled inter alia: (1) that the jury’s verdict was against the manifest weight of the evidence; and (2) that the jury’s verdict assessing damages against defendant in the amount of $76,310.10 was against the manifest weight of the evidence. Then, the trial court granted defendant’s motion for a remittitur in the amount of $40,000. Further, it conditionally entered defendant’s motion for a new trial. Plaintiff filed this timely appeal.

We first address plaintiff’s argument that the trial court erred in granting defendant’s motion for judgment notwithstanding the verdict based upon its finding that the Local Governmental and Governmental Employees Tort Immunity Act (Act) (Ill. Rev. Stat. 1985, ch. 85, par. 1 — 101 et seq.) required proof that defendant had actual or constructive notice of a dangerous condition subsequent to the time defendant’s employees read the meter.

The Act, which governs a municipal corporation’s liability, reads in pertinent part:

“Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in sufficient time prior to an injury to have taken measures to remedy or protect against such condition.” (Ill. Rev. Stat. 1985, ch. 85, par. 3 — 102(a).)

Based on its interpretation of the Act, the trial court concluded that plaintiff’s failure to allege and prove that defendant had actual or constructive notice of the condition which caused her injury was fatally defective to plaintiff’s case.

Plaintiff argues that the notice issue is irrelevant because notice is not at issue where the municipality has performed the negligent act. Plaintiff cites Dziewatkowski v. City of Chicago (1969), 109 Ill. App. 2d 405, in support of her contention. In Dziewatkowski, plaintiff was injured after falling on a mud-coated sidewalk which was adjacent to a site where city workers had dug a parkway to install a new lighting system. Plaintiff argued that the mud on the sidewalk had resulted from the city’s excavation of the parkway. The Dziewatkowslci court stated:

“[T]he evidence that the City had caused the work to be done on the parkway was unchallenged. Therefore, the defendant City had notice of the condition in which the work was left, and a municipal corporation which causes work to be done which could be dangerous to the public is bound to take notice of the condition in which it is left, whether safe or dangerous. Cited in support is City of Chicago v. Johnson, 53 Ill 91 (1869), where the court affirmed a judgment for a plaintiff when he fell into a ditch. There the court said no notice was necessary to the City authorities ‘as they caused the ditch to be made.’ ” 109 Ill. App. 2d at 415.

The Dziewatkowski court concluded:

“We find that the City, having caused the work to be done on the parkway prior to the occurrence, had notice of the parkway’s condition and its proximity to the sidewalk.” 109 Ill. App. 2d at 416.

Defendant maintains that for the City to be liable, plaintiff had to prove actual or constructive notice of the water meter’s lid being ajar. For support, it primarily relies on Bellino v. Village of Lake in the Hills (1988), 166 Ill. App. 3d 702, and Palermo v. City of Chicago Heights (1971), 2 Ill. App. 3d 1004.

In Bellino, this court affirmed the trial court’s dismissal of plaintiff’s complaint pursuant to sections 3 — 102 and 3 — 105 of the Act. Plaintiff alleged that the City had negligently plowed and mounded snow at an intersection in such a way as to obstruct his view of cross traffic, creating an unreasonably dangerous condition. The Bellino court found the case before it analogous to Riccitelli v. Sternfeld (1953), 1 Ill. 2d 133, wherein plaintiff fell on ice which resulted from defendant’s snow-clearing efforts. Citing Riccitelli, the Bellino court noted that liability for damage must be based on the distinction whether the snow causing the injury resulted from a natural or an unnatural or artificial cause.

In conclusion, the Bellino court stated:

“In the present case, the village’s motion to dismiss is based on the ground that the Act provides tort immunity for injuries resulting from the ‘effects of the weather.’ *** In our opinion, the trial court properly found that section 3 — 105 preempts municipal liability where an alleged injury arises from the ‘effects of weather.’ ” 166 Ill. App. 3d at 709.

In Palermo v. City of Chicago Heights (1971), 2 Ill. App. 3d 1004, plaintiff, after visiting a friend, walked across a parkway where she stepped on a water meter pit cover. The cover tilted and flipped over, causing plaintiff’s right leg to go into the hole up to her buttocks. Plaintiff’s friend testified that she observed that the cover was not fully within its placement four weeks prior to the incident. The friend’s husband had complained to defendant’s water department six weeks prior to the accident; he had told the friend that “someone” came out to fix the cover. The friend did not notice what had been done to repair the cover, but two weeks before the subject accident she noted that the cover was still in disrepair. Defendant’s city commissioner of waterworks denied that his department had ever been contacted about the faulty cover. Defendant denied it had actual nor constructive notice. Due to the inadequacy of plaintiff’s case, the Palermo court found that defendant had neither actual nor constructive notice of the dangerous condition.

Plaintiff argues that neither case stands for the proposition that if a municipality, through its negligent actions causes a dangerous condition, the Act protects it from liability. We agree. Bellino does not squarely address the issue of whether the relevant statutes require actual or constructive notice to a municipality when it was alleged to have negligently caused a dangerous condition. Nor does Palermo address this issue. Rather, it deals with the question of whether the City received actual or constructive notice of the dangerous condition.

Although Dziewatkowski, upon which plaintiff relies so heavily, is factually distinct from the instant case, it does deal with a municipality’s negligent creation of a dangerous condition. As such, it provides support for our conclusion that section 3 — 102 of the Act does not preclude a municipality’s liability in cases where it has negligently caused the dangerous condition.

Several Federal jurisdictions have determined that when the municipality is responsible for the dangerous condition it does not enjoy immunity from liability. See, e.g., Bieber v. City of Newcastle (D. Wyo. 1965), 242 F. Supp. 457, 458 (“where the defects or causes of injuries are not traceable to a positive act of the municipality or of those for whose conduct it is liable, but are due to its failure to inspect and ascertain the existence of defects not caused by its active negligence, then it must have notice, actual or constructive, of the defects, and must have had a reasonable time and opportunity to remove the defects”) (emphasis added); McDermot v. City of New York (2d Cir. 1961), 287 F.2d 49, 50 (“[a] municipality is not liable for a dangerous condition in its streets not arising from its own activities unless it had actual or constructive notice of the danger)” (emphasis added).

Based upon DziewatkowsM and the above-cited Federal cases, we find that when an affirmative act of a municipality’s agents or employees causes a dangerous condition, no actual or constructive notice of said condition is required.

Further, we find that there was evidence that the dangerous condition of the meter pit in question was created by defendant’s employees and that these facts provided actual or constructive notice to the defendant; hence, the protection from municipal liability provided by section 3 — 102(a) did not apply. Consequently, we hold that the trial court erred in granting defendant’s motion for judgment notwithstanding the verdict.

Next, plaintiff argues that the trial court improperly set aside the verdict and granted a new trial on the issues of liability and damages. On a motion for a new trial, a court will weigh the evidence before it, and, if the verdict is contrary to the manifest weight of the evidence, the court shall set aside the verdict. (West v. City of Hoopeston (1986), 146 Ill. App. 3d 538.) A verdict is not against the manifest weight of the evidence when it hinges upon inferences which may have been drawn from the evidence. (146 Ill. App. 3d at 543.) A verdict is against the manifest weight of the evidence where the opposite conclusion is clearly evident or where the findings of the jury are unreasonable, arbitrary and not based upon any of the evidence. Villa v. Crown Cork & Seal Co. (1990), 202 Ill. App. 3d 1082, 1089.

Harriet Harding testified that she contacted defendant’s water department regarding her water bill in November 1986; she was told by the water department employee that someone from the department had checked the subject water meter in the days following the initial call. Mrs. Harding also testified that after Christmas 1986 or early in 1987, she saw two men standing over the subject water meter pit; the cover of the pit had been removed. Near them was a vehicle with defendant’s logo upon it. Moreover, the water bill for the Harding residence dated January 6, 1987, was marked “regular,” meaning that it was the result of an actual reading by a water department employee. On January 22, 1987, plaintiff fell into the subject pit because the lid was ajar. If placed properly upon the rim, the cover would have supported the plaintiff’s weight.

Based upon this circumstantial evidence, the jury was entitled to find that employees of the defendant had taken the cover off the water meter pit and improperly replaced it, causing a dangerous condition, which brought about plaintiff’s injury. Defendant’s arguments merely demonstrate that the evidence on pertinent issues is conflicting, not that a conclusion opposite the jury’s is clearly evident or that the verdict was arbitrary and unreasonable. Accordingly, we hold that the court below erred in granting defendant’s motion for a new trial.

Finally, plaintiff contends that the trial court erred in granting a remittitur of $40,000. The jury had awarded $40,000 for disability, $30,000 for past and future pain and suffering and $6,310.70 in medical costs. (Chambers v. Rush-Presbyterian-St. Luke’s Medical Center (1987), 155 Ill. App. 3d 458.) A court of review will not disturb a jury’s award of damages unless it is obviously the result of passion or prejudice. (Chambers, 155 Ill. App. 3d at 468.) Further, an award will not be considered excessive unless it falls outside the necessary limits of fair and reasonable compensation or it shocks the judicial conscience. Shaheed v. Chicago Transit Authority (1985), 137 Ill. App. 3d 352.

Plaintiff testified that following the accident she experienced substantial pain in her right leg. For a significant period of time she had to use crutches. At the time of trial, plaintiff was still unable to engage in the physical activities which had been very important to her prior to the subject injury. Dr. Cohen opined that, given the duration of her right knee problems, plaintiff’s condition of ill-being could well be permanent.

This evidence supported the jury’s verdict, which was not the result of passion or prejudice, nor does it shock the judicial conscience. Accordingly, we hold that the trial court erred in granting a remittitur of $40,000.

Defendant raises a number of issues that would properly be the subject of a cross-appeal. Nevertheless, the record before us contains no notice of cross-appeal. Accordingly, we find these issues are waived pursuant to Supreme Court Rule 303(a)(3) (134 Ill. 2d R. 303(aX3)), and, therefore, we will not address them. Benet Realty Corp. v. Lisle Savings & Loan Association (1988), 175 Ill. App. 3d 227.

For the reasons stated above, we reverse the circuit court’s judgment and remand this cause of action with direction that the trial court reinstate the jury’s verdict.

Reversed and remanded with directions.

INGLIS, P.J., and BOWMAN, J., concur.


author: JUSTICE DOYLE

text:
    PROS CORPORATE MANAGEMENT SERVICES, INC., Plaintiff, v. ASHLEY S. ROSE, LTD., Defendant-Appellant (Louis A. Allen, Plaintiff-Appellee).
    Second District
    No. 2—91—0839
    Opinion filed May 5, 1992.

      Ashley S. Rose, of Ashley S. Rose, Ltd., of Wheaton, appellant pro se.
    David H. Keay and Brent E. Ohlmann, both of Law Office of David H. Keay, of Wheaton, for appellee.
   JUSTICE DOYLE

delivered the opinion of the court:

The plaintiff, Pros Corporate Management Services, Inc. (Pros), filed a complaint in the circuit court of Du Page County naming as defendant Ashley S. Rose, Ltd., and seeking money allegedly due -under a written lease, as well as attorney fees pursuant to the lease. The plaintiff filed an amended complaint adding Louis A. Allen as a plaintiff. Following a bench trial, the court entered a finding against Pros, entered judgment in favor of Louis Allen in the amount of $13,042.22 and continued the matter for a hearing on attorney fees. The court subsequently awarded Louis Allen $11,202.50 in attorney fees, and the defendant appealed.

The following issues are raised by the defendant on appeal: (1) whether the trial court lacked jurisdiction to conduct a trial; (2) whether the trial court erred in allowing Louis Allen to become a plaintiff; (3) whether the trial court erred in refusing to enforce the defendant’s Rule 237(b) (134 Ill. 2d R. 237(b)) notice to produce; (4) whether the trial court erred in conducting a bench trial absent Louis Allen; and (5) whether the trial court erred in denying the defendant’s motion for summary judgment and its post-trial motion, both of which were based on Pros’ alleged waiver of its right to enforce the lease as to rent payments.

The following facts are relevant to our disposition of the issues. On August 1, 1988, Pros filed its complaint against the defendant alleging that the defendant owed $12,541.91 pursuant to a written lease between the defendant and Louis Allen & Associates, Inc. (Allen & Associates). According to the complaint, Pros was the agent of Allen & Associates. The complaint also sought attorney fees under the lease if Pros prevailed.

On February 22, 1989, the defendant filed a motion to dismiss pursuant to section 2 — 619(a)(2) of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(2)), based upon Pros’ alleged lack of standing. On July 21, 1989, the defendant moved to amend the statutory basis of its motion to dismiss from section 2— 619(a)(2) to section 2 — 619(a)(9) of the Code. On August 21, 1989, the court entered an order granting the defendant’s motion to dismiss based on Pros’ lack of standing. That order further provided that “[i]f counsel for plaintiff can produce an assignment, counsel may file motion to vacate dismissal within thirty (30) days of the date hereof.” The order, as originally drafted by the defendant’s attorney and submitted to the court, granted Pros leave to file an amended complaint rather than leave to file a motion to vacate the dismissal.

On September 20, 1989, Pros filed an amended complaint which named as plaintiffs both Pros and Louis A. Allen “individually as successor to LOUIS A. ALLEN ASSOCIATES, INC.” Attached to the complaint as an exhibit is a copy of a warranty deed conveying the subject property from Allen & Associates to Louis Allen and Ruth Allen. The amended complaint sought the same relief as the original complaint. On October 25, 1989, Pros filed a motion for leave to file its amended complaint nunc pro tunc based on the court’s unilateral modification of the August 21, 1989, order dismissing the original complaint.

On November 29, 1989, Pros filed a motion to vacate the August 21, 1989, order of dismissal pursuant to section 2 — 1401 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401). On December 13, 1989, the court entered an order granting Pros’ motion for leave to file its amended complaint nunc pro tunc to August 21, 1989. On January 3, 1990, the defendant filed a motion to vacate the December 13, 1989, order, which the court denied on January 10, 1990.

On March 26, 1990, the defendant filed a document entitled “NOTICE TO PRODUCE AT TRIAL.” That document states, in pertinent part, that the plaintiff is “notified in accordance with Supreme Court Rule 237(b) to produce at the trial or arbitration hearing” both Louis A. Allen and Ruth G. Allen. The notice further requires production of the Allens at the “Arbitration Center” on April 3, 1990, or “any date which that hearing” might be continued. On March 30, 1990, Pros and Louis Allen filed a motion to quash the defendant’s Rule 237(b) notice to produce.

On March 26, 1990, the defendant also filed another motion to dismiss the amended complaint pursuant to section 2 — 619(aX9) of the Code. On April 2, 1990, the court denied the defendant’s motion to dismiss and also denied the plaintiffs’ motion to quash the defendant’s Rule 237(b) notice to produce “as far as the arbitration proceedings [were] concerned.”

On April 3, 1990, the court entered an order stating that the matter was heard at an arbitration hearing on April 3, 1990, and that an award was entered. Also on April 3, 1990, there was an arbitration award entered in favor of the plaintiff in the amount of $13,012.42. The arbitration award reserved the issue of attorney fees for a hearing before the supervising judge. On April 12, 1990, the defendant filed its rejection of the arbitration award.

While the record does not contain a copy of the notice, our records show that the defendant filed a notice of appeal on April 12, 1990 (No. 2 — 90—0395). On May 15, 1990, the trial court ordered “[t]he matter [to be] set for trial July 12, 1990.” On June 5, 1990, this court entered an order dismissing the appeal (No. 2 — 90—0395). The record indicates that that order was filed in the circuit court on June 12, 1990.

Our records, of which we may take judicial notice, indicate that on June 22, 1990, the defendant filed in this court an “affidavit of intent to file a petition for leave to appeal to the supreme court” and a motion to recall our mandate. On July 3, 1990, the defendant filed an “expedited motion to stay proceedings pending appeal to the supreme court.” On July 10, 1990, this court denied the defendant’s motion to stay the trial court proceedings.

On July 2, 1990, the defendant filed a motion to continue the trial. Alternatively, the motion asked the trial court to put the case on inactive status for the reason that the court lacked jurisdiction to set the matter for trial because of the case’s pendency in the appellate court. The defendant also filed on July 2, 1990, its motions for summary judgment and to dismiss. On that same date, the trial court entered an order denying the defendant’s motions to dismiss and to continue the trial date. On July 12, 1990, the trial court denied the defendant’s motion for summary judgment and proceeded to conduct a bench trial.

As a preliminary matter, the trial court stated for the record that counsel had handed it an order of this court stating that a motion by the defendant to stay proceedings in the trial court had been denied. The trial court also ruled, prior to trial commencing, that the previously filed notice to produce pursuant to Rule 237(b) applied only to the arbitration hearing and that the defendant was obligated to renew the Rule 237(b) notice if it wanted to require the presence of Louis Allen and Ruth Allen at trial.

Drew Matthews, who was employed by Pros from October 1983 to May 1988 as vice-president and project manager, testified at trial that he was familiar with the management of the commercial properties managed by Pros. Matthews managed the property of which the defendant was a tenant. Matthews also identified a written lease between the defendant and Allen & Associates commencing April 1, 1984, and ending March 31,1987.

According to Matthews, the defendant vacated the premises when the lease terminated in March 1987. At that time, the defendant owed $13,042.22 in rent. Pros mailed a rental statement to the defendant dated March 31, 1987, stating a total amount due of $13,042.22. Pros received no payments from the defendant after the mailing of the March 31, 1987, statement. Randall A. Pros, who was president of Pros during the term of the lease, testified that the defendant was billed for rent on a monthly basis.

Following the plaintiff’s case, the defendant moved for a directed finding on the basis that neither Pros nor Louis Allen had standing. The court granted the motion as to Pros and denied it as to Louis Allen.

Ashley Rose testified on behalf of the defendant that the defendant vacated the premises at the end of March 1987. According to Mr. Rose, about eight months to a year after the defendant moved out, he received a statement from Pros, dated March 31, 1987. The defendant was delinquent some months with rent payments and on one occasion made a lump sum payment of four payments which was accepted by the landlord.

There was never a demand letter served on the defendant during the time it occupied the premises. No suit was ever filed to collect rent. The defendant paid rent in March 1987, which was accepted. The only demand letter ever received after the defendant vacated the premises was one sent a “considerably long time” after the defendant left. He also received a telephone call from an attorney “months” after he left, stating there was a claim, but not alleging the amount claimed. The defendant never received any itemized statement concerning his security deposit, as required by the lease, nor was any security deposit returned to him. On cross-examination, Rose denied receiving a letter from Drew Matthews dated December 31, 1985, that stated the defendant’s account was delinquent in the amount of $5,102.70. He had no recollection of ever making any demand for the return of the security deposit.

Randall Pros also testified as an adverse witness. He had no knowledge of whether a five-day notice had ever been served on the defendant. He also had no knowledge of whether any lawsuits were filed against the defendant for past-due rent.

The court entered judgment in favor of Louis Allen in the amount of $13,042.22. The court entered a finding in favor of the defendant and against Pros. Finally, the court continued the attorney fees issue for hearing on July 13,1990.

On July 17, 1990, this court, on its own motion, vacated its orders of June 5, 1990, which had dismissed the appeal (No. 2 — 90—0395), and of July 10, 1990, which had denied the defendant’s motion for a stay of the trial court proceedings. Also on July 17, this court granted the defendant’s motion to recall the mandate issued June 5, 1990, and to stay all further proceedings in the trial court.

On our own motion, in an order dated July 3, 1990, which is apparently misdated, we vacated our July 17 order. In this subsequent order, we granted the defendant’s motion to recall the mandate issued on June 5 and also its motion to stay the trial court proceedings. This court also ordered that our June 5 order dismissing the appeal (No. 2 — 90—0395) remain in effect.

On August 10, 1990, the defendant filed a new notice of appeal (No. 2 — 90—0885) seeking reversal of the July 12, 1990, judgment and a declaration that all orders entered by the trial court after June 5, 1990, were void. This court, on September 18, 1990, on its own motion, dismissed the appeal (2 — 90—0885) based on the defendant’s failure to comply with our order of August 31,1990.

On November 2, 1990, the trial court ordered the case continued for status because this court had not yet issued its mandate in No. 2— 90 — 0395. On January 7, 1991, we entered a final order dismissing the appeal based on the untimely filing of the notice of appeal (No. 2— 90 — 0395). On that same date, on our own motion, we terminated the stay previously entered and reissued our mandate which had been recalled on July 25,1990 (order incorrectly dated July 3,1990).

On February 1, 1991, the trial court granted the plaintiff, Louis Allen, leave to file an updated petition for attorney fees. On March 4, 1991, the trial court entered a “supplemental judgment” in favor of Louis Allen for attorney fees in the amount of $11,202.50 plus $295.30 in costs.

On April 1, 1991, the defendant filed a post-trial motion challenging the denial of its motion for summary judgment, the denial of its motion to dismiss, the finding that Louis Allen had standing, the July 12, 1990, judgment of the court, and the March 4, 1991, award of attorney fees. On July 17, 1991, the trial court denied the defendant’s post-trial motion in its entirety. On July 25, 1991, the defendant filed its notice of appeal.

The first issue we address is whether the trial court lacked jurisdiction to conduct a trial on July 12, 1990. In this regard, the defendant contends that from April 12, 1990, when it filed its notice of appeal, until the supreme court denied its petition for leave to appeal on October 29, 1990, there was no interval during which the trial court had jurisdiction to proceed to trial.

When a notice of appeal is perfected, the trial court loses jurisdiction as to the judgment or part thereof from which the appeal is taken. (Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 433; American National Bank & Trust Co. v. Bus (1991), 212 Ill. App. 3d 133, 136.) The mandate of a court of review, however, revests the circuit court with jurisdiction. (P S L Realty Co. v. Granite Investment Co. (1981), 86 Ill. 2d 291, 304-05.) Upon the appellate court’s granting an appellee’s motion to dismiss an appeal, jurisdiction vests in the circuit court instanter. (Rickard v. Pozdal (1975), 31 Ill. App. 3d 542, 546; see also People ex rel. Waite v. Bristow (1945), 391 Ill. 101, 112 (voluntary dismissal of appeal by appellant divests appellate court of jurisdiction).) Supreme Court Rule 369(b) provides that “[w]hen the reviewing court dismisses the appeal or affirms the judgment and the mandate is filed in the circuit court, enforcement of the judgment may be had and other proceedings may be conducted as if no appeal had been taken.” 134 Ill. 2d R. 369(b).

In this case, we entered an order on June 5, 1990, dismissing the appeal as untimely filed. That order was filed in the circuit court on June 12, 1990. Thus, pursuant to Rule 369(b), the circuit court was re-vested with jurisdiction on June 12, 1990. Our order recalling the mandate and staying the trial court proceedings was not entered until July 17, 1990. Accordingly, the trial court had the authority to conduct the bench trial on July 12, 1990, as that was during a period when the trial court had jurisdiction of the matter.

While the defendant notes in its brief that it filed an affidavit of intent to file a petition for leave to appeal on June 22, 1990, it fails to present any argument that the trial court lacked jurisdiction because of its filing of the affidavit of intent. We need not consider points not argued or arguments unsupported by reasoning or citation of authority. (134 Ill. 2d R. 341(e)(7).) Moreover, Rule 368(b) provides that a mandate is stayed automatically “if, before it may issue,” a party files an affidavit of intent to seek review in the supreme court or in fact files a petition for such review. (134 Ill. 2d R. 368(b).) The defendant here did not file its affidavit until June 22, 1990, after this court’s mandate issued. Consequently, the mandate was not automatically stayed pursuant to Rule 368(b).

We next address the issue of whether the trial court erred in allowing Louis Allen to become a plaintiff. The defendant argues that there was no assignment to Louis Allen of the right to receive and collect rents and, therefore, Louis Allen lacked standing to seek enforcement of the rent provision of the lease. Our supreme court has held that a conveyance of property by warranty deed, wherein the grantor reserves nothing, conveys a lease for the property as well as the right to receive unaccrued rentals. (Lipschultz v. Robertson (1950), 407 Ill. 470, 474; see Bellows v. Ziv (1962), 38 Ill. App. 2d 342, 350.) Moreover, section 9 — 215 of the Code provides in pertinent part that “[t]he grantees of any leased lands, tenements, rents or other hereditaments, or of the reversion thereof, *** shall have the same remedies by action or otherwise, for the non-performance of any agreement in the lease, or for the recovery of any rent, *** as their grantor or lessor might have had if such reversion had remained in such lessor or grantor.” Ill. Rev. Stat. 1983, ch. 110, par. 9 — 215.

In the present case, the original lessor, Allen & Associates, entered into the written lease on April 1, 1984. Allen & Associates conveyed, by warranty deed on July 1, 1984, its interest in the premises to Louis Allen. The deed states that the conveyance is subject to, among other things, “existing leases and tenancies.” When Allen & Associates conveyed the property by warranty deed, reserving nothing to itself, it conveyed the right to recover unaccrued rentals to Louis Allen. The fact that the conveyance was subject to existing leases is consistent with the conveyance of the right to recover rents. Without any indication to the contrary, we cannot conclude that the language of the deed, subjecting it to the existing leases and tenancies, evidences any intent on the part of Allen & Associates, as grantor, to reserve its rights under the lease. Accordingly, the trial court was correct in ruling that Louis Allen, as grantee, had standing to seek recovery under the lease of rents unaccrued at the time of the conveyance.

Next, we address the issue of whether the trial court abused its discretion in refusing to enforce the defendant’s Rule 237(b) notice to produce Louis Allen. The defendant contends the court abused its discretion in its refusal to enforce the Rule 237(b) notice because Louis Allen’s presence was necessary for a proper determination of the issues and because there was no plaintiff properly before the court at the time of judgment.

Supreme Court Rule 237(b) provides, in pertinent part, that “[t]he appearance at the trial of a party *** may be required by serving the party with a notice designating the person who is required to appear.” (134 Ill. 2d R. 237(b).) Compelling the appearance of a party at trial pursuant to Rule 237(b) is a matter of the court’s discretion and not a mandatory requirement. (Pacemaker Food Stores, Inc. v. Seventh Mont Corp. (1983), 117 Ill. App. 3d 636, 648; Oakview New Lenox School District No. 122 v. Ford Motor Co. (1978), 61 Ill. App. 3d 194, 199.) A court’s power to order a party to appear should only be exercised for good cause and not to subject a party to harassment, oppression or hardship. Pacemaker Food Stores, Inc., 117 Ill. App. 3d at 648.

In the instant case, the defendant filed a “NOTICE TO PRODUCE AT TRIAL.” That notice states in pertinent part that the plaintiff is “notified in accordance with Supreme Court Rule 237(b) to produce at the trial or arbitration hearing” Louis Allen. (Emphasis added.) The notice further requires production of Louis Allen at the “Arbitration Center” on April 3, 1990, or “any date which that hearing” might be continued. (Emphasis added.)

• 6 It appears that the only reasonable interpretation of the notice is that it was intended to require Louis Allen’s appearance at the arbitration hearing only. This is evidenced by the fact that the notice identifies the arbitration center as the location for Allen to appear and stated that he was to appear on the date of the arbitration hearing. Furthermore, he was required to appear on any continued date of that hearing. Additionally, when the Rule 237(b) notice was filed, there was no trial scheduled. It is illogical to conclude that the notice to produce was intended to encompass the trial when the trial had not yet been scheduled. Under these circumstances, we cannot say that the Rule 237(b) notice in this case required Louis Allen’s presence at the July 12,1990, trial.

The defendant raises the alternative contention that the court erred in conducting the trial absent the presence of Allen. We are unaware of any requirement, however, and the defendant refers us to none, that a party be present at trial absent a proper subpoena or Rule 237(b) notice compelling the party’s presence. We are careful to note, however, that we are not addressing the question of a party’s presence at an arbitration hearing. (See Balaban v. Gottfried (1991), 220 Ill. App. 3d 535.) Because the defendant did not subpoena Louis Allen or file a Rule 237(b) notice effective for the July 12, 1990, trial date, Louis Allen’s absence at the trial did not deny the defendant a fair trial.

The last issue raised by the defendant is whether the trial court erred in failing to find that Louis Allen, through his agent Pros, waived his right to enforce the rent provision of the lease. The defendant argues that Allen waived his right to enforce the rent provisions by accepting rent payments subsequent to the defendant’s breach of the rent covenant in the lease.

Our research reveals no authority suggesting that Allen waived his right to collect past-due rents by accepting rental payments for less than the full amount of past-due rent. The cases principally relied on by the defendant, Steven W. Barrick & Associates v. Witz (1986), 147 Ill. App. 3d 615, and Okey, Inc. v. American National Bank & Trust Co. (1981), 96 Ill. App. 3d 987, are distinguishable. In Witz, the court held that a landlord’s acceptance of rent accruing after a breach of a lease constitutes a waiver of the right to forfeit on the basis of that breach. (Witz, 147 Ill. App. 3d at 619-20.) Likewise, in Okey, Inc., the court held that acceptance of rent is a waiver of a lessor’s right to declare a forfeiture under a lease. (Okey, Inc., 96 Ill. App. 3d at 993.) Neither of these cases supports the defendant’s contention of waiver in this case. Under the circumstances, the defendant remained obligated to pay the past-due rent under the lease notwithstanding Allen’s acceptance of rent payments for less than the full amount due.

For the foregoing reasons, we affirm the judgment of the circuit court of Du Page County.

Affirmed.

INGLIS, P.J., and GEIGER, J., concur.