author: JUSTICE BUCKLEY

text:
    CHARLES WALLER, Plaintiff-Appellant, v. ALKA BAGGA, Defendant-Appellee.
    First District (1st Division)
    No. 1—90—1639
    Opinion filed September 16, 1991.

      James T.J. Keating, EC., of Chicago (Elizabeth S. Davis and James T.J. Keating, of counsel), for appellant.

      Williams & Montgomery, Ltd., of Chicago (James K. Horstman, Barry L. Kroll, Jeffrey H. Lipe, and Lloyd E. Williams, Jr., of counsel), for appellee.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Plaintiff Charles Waller commenced this personal injury action against defendant Alka Bagga for defendant’s alleged negligence in operating her motor vehicle. After a jury verdict in plaintiff’s favor in the amount of $5,000, plaintiff unsuccessfully moved for a new trial predicated upon the court bailiff’s prejudicial, unauthorized communications to jurors prior to and during trial. The sole issue on appeal is whether the court abused its discretion in denying plaintiff a new trial. For the reasons that follow, we affirm.

The evidence adduced at trial reflects that on the morning of June 11, 1983, plaintiff was the offensive coordinator of the Chicago Blitz, a United States Football League team. Plaintiff was driving to work when his vehicle was struck by defendant’s vehicle at an intersection in the City of Des Plaines.

During trial, defendant contested both liability and damages. In particular, defendant attempted to show that she did not, as plaintiff alleged, negligently run a red light; rather, defendant claimed that she proceeded through the intersection under a yellow light and struck plaintiff’s vehicle only after that vehicle advanced into the intersection under a red light. Additionally, defendant attempted to show that the collision resulted in no injuries to plaintiff’s lower back as alleged, but that plaintiff’s injuries were merely preexisting.

At the close of the evidence, the jury returned a verdict for plaintiff in the amount of $6,250, which it reduced by 20% for plaintiff’s contributory negligence. This award reflected damages for aggravation of a preexisting condition and future medical expenses. No damages were awarded for permanent disability resulting from the accident or for pain and suffering. No award for plaintiff’s lost wages was made because plaintiff dropped this claim prior to deliberations. Subsequently, the jury was polled and each juror assented to the verdict.

The day after the jury returned its verdict, one of the jurors, Dorie Alexander, placed an unsolicited telephone call to plaintiff’s counsel. According to Alexander’s affidavit, which plaintiff submitted in support of his motion for a new trial, Alexander claimed that the bailiff twice told her, prior to any witness’ testimony, that “this case should never have come to court.” This statement was made while the bailiff was escorting the jury to the elevator. On another occasion, the bailiff remarked in the jury room during a recess that “this case shouldn’t even be here.” Alexander’s affidavit also indicated that before plaintiff testified, the bailiff stated to the jury that plaintiff “had been head coach at San Diego for only one year because he had a losing season. [The] Bailiff implied that [plaintiff] was a ‘bad coach.’ ” The affidavit continued by stating that during deliberations, another juror, William Wright, “told the jury that [plaintiff] was divorced.” After verdict, the affidavit states, the bailiff told Alexander that “[plaintiff] left his wife for a younger woman, the younger woman who sat in the courtroom during trial.”

In addition to Alexander’s affidavit, plaintiff submitted the affidavit of juror William Wright. Wright stated in his affidavit:

“3. That during the trial of this case and before jury deliberations began, [the bailiff] said to me that he was wondering whether the plaintiff, Mr. Waller, was divorced and whether Mr. Waller’s new wife was the young woman sitting in the back of the courtroom that day. I told [the bailiff] that the young woman he was referring to was my wife.
4. That during deliberations, I joked that [the bailiff] was wondering whether the plaintiff, Mr. Waller was divorced.”

At the hearing on plaintiff’s motion, the record reflects that, although the court did not strike the affidavits, it considered them “palpably unworthy of consideration.” The court supplied no further analysis and no evidentiary hearing was held to determine the veracity of the affidavits. Defendant supplied no counteraffidavits, and the bailiff did not testify.

The first issue we address is whether a juror’s affidavit may ever be properly employed to impeach a verdict. In People v. Holmes (1978), 69 Ill. 2d 507, 372 N.E.2d 656, the court held that in certain situations, and contrary to the trial court’s decision in that case, jurors’ testimony can be used to impeach their verdict. Testimony at Holmes’ trial involved identification of the defendant’s shoes with footprints left in the snow at the scene of the crime. Several members of the jury made an independent visit to a Florsheim shoe store to inspect the logo’s design on the heels of that shoe type. The results of this investigation were discussed during deliberations of the jury. In analyzing whether the subsequent testimony or affidavits from the jurors could be used to impeach their verdict, the court distinguished between testimony concerning the subjective mental processes of the jurors and testimony about improper external influences upon the jurors:

“In the first category are those instances in which it is attempted to prove by a juror’s testimony or affidavit the motive, method or process by which the jury reached its verdict. These, almost without exception, have been held inadmissible. *** [Citations.] The second category involves those situations in which the testimony or affidavit of a juror is offered as proof of conditions or events brought to the attention of the jury without any attempt to show its effect on the jurors’ deliberations or mental processes. In most jurisdictions such proof is admissible.” (Holmes, 69 Ill. 2d at 511-12, 372 N.E.2d at 658.)

After making this distinction, the Holmes court went on to conclude that a juror should be permitted to testify whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Holmes, 69 Ill. 2d at 516, 372 N.E.2d at 660.

In this case, the jurors’ affidavits comport with the limitations set forth in Holmes. The affidavits allege that extraneous, prejudicial communications took place; however, the affidavits are silent as to the effect these comments had upon the individual juror’s subjective mental processes. In accordance with Holmes, we believe that plaintiff’s affidavits were properly advanced for the purpose of impeaching the jury’s verdict.

We next consider the matter of prejudice. Returning to Holmes, the court stated on this matter:

“We turn now to the question whether under the circumstances shown the judgment must be reversed and the cause remanded. Presumably there are many types of ‘extraneous prejudicial information’ or ‘outside influence^],’ and we need not and do not discuss whether and in what types of situations a defendant might be required to show ‘such a probability that prejudice will result that it is [to be] deemed inherently lacking in due process.’ [Citation.] Here, the ‘extraneous information’ improperly brought to this jury’s attention was in the nature of evidence with which the defendant had not been confronted at trial and which he had no opportunity to refute. *** We do not interpret Rivers to mean, nor do we now hold, that every instance in which extraneous or unauthorized information reaches the jury results in error so prejudicial as to require reversal. Here the extraneous information improperly brought to the jury’s attention was in the nature of evidence crucial to the question of defendant’s identification with which he had neither been confronted at trial nor had the opportunity to refute. Under these circumstances we hold that the investigation by the members of the jury resulted in error so prejudicial that the judgment must be reversed and the cause remanded.” Holmes, 69 Ill. 2d at 516-19, 372 N.E.2d at 660-62.

Cases in the civil context subsequent to Holmes have interpreted Holmes as “accepting] a standard that there must be a probability of prejudice” (Frede v. Downs (1981), 101 Ill. App. 3d 812, 814, 428 N.E.2d 1035, 1036), which may be satisfied when “the unauthorized evidence directly relates to issues in the case and may have improperly influenced the verdict.” Heaver v. Ward (1979), 68 Ill. App. 3d 236, 241, 386 N.E.2d 134, 139.

In Heaver, a juror produced during deliberations a “Rules of the Road” book which was not admitted into evidence but which the jury consulted in reaching its verdict. The court reversed and remanded for a new trial. Similarly, in Frede, which involved a boating accident, the verdict was set aside where a juror produced during deliberations a book which contained rules applicable to a skipper’s duty when approaching another boat, a matter critical to the issue of liability. In both cases, and consistent with Holmes, the court did not delve into the actual effect the extraneous matter had on the jury, but found it sufficient that the matter related to a critical issue in the case and may have improperly influenced the jury. See also Brown v. Johnson (1981), 92 Ill. App. 3d 1095, 416 N.E.2d 799 (numerous jurors’ unauthorized visit to accident scene required reversal where visit related to key issue in case and may have improperly influenced verdict).

In this case, although the comments were clearly improper, we do not believe they require reversal under the Holmes line of cases. The theme underlying these cases is that the extraneous matter bore relevancy to a critical issue in the case and was considered by the jury during its deliberations. Neither of these factors are present in this case.

Regarding whether the comments impact on a critical issue, plaintiff suggests only that the bailiff’s comments impacted on his credibility as a witness. Plaintiff asserts that by telling the jury that he was a bad coach and divorced, the bailiff may have compelled the jury to disbelieve plaintiff’s testimony. While we agree that credibility may be a critical issue in a given case, we believe the statements cannot be reasonably viewed as affecting that issue. The jury had ample opportunity to observe plaintiffs demeanor and draw its own conclusion as to plaintiff’s credibility. It stretches reality to believe that a modern-day jury would believe a bailiff’s ephemeral and insubstantial comments over its own observations, especially in light of the judge’s instruction, among others, that it is the sole judge of a witness’ credibility. Similarly, as for the bailiff’s comment that “this case shouldn’t even be here,” no critical issue is implicated as the comment implicates both parties’ cases equally if it does so at all.

Regarding whether the comments tainted the deliberative process, there is no clear evidence that the bailiff’s comments ever reached all of the jurors or, if they did, formed a material part of the jury’s deliberations. In Holmes and its progeny, the extraneous matter clearly entered the deliberative process. Here, the affidavits of Wright and Alexander conflict as to what occurred in the jury room regarding plaintiff’s supposed divorce, and there is no evidence that the other statements (“this case shouldn’t even be here” and “bad coach”) were discussed during deliberations. This lack of infiltration distinguishes this case from Holmes, and we therefore do not accept it as analogous to the situation before us.

We would not reach a different conclusion in this case even if we were to apply the rules developed regarding unauthorized communications with a jury by the court, court personnel or third parties. The rule adopted in these cases has been stated by our supreme court as follows:

“In our State the rule has judicially evolved that a jury verdict will not be set aside where it is apparent that no injury or prejudice resulted from a communication to the jury either by the court or by third persons outside the presence of the defendant.” (People v. Rettig (1972), 50 Ill. 2d 317, 319, 278 N.E.2d 781, 782, cert. denied (1972), 409 U.S. 895, 34 L. Ed. 2d 152, 93 S. Ct. 186.)

Other opinions within this line of cases have stated the rule thusly:

“Many courts, perhaps the majority, take the view that unless communications from the officer to the jury have a manifest tendency to influence the jury improperly against the unsuccessful party, or were such that prejudice resulted to such party, they furnish no ground for a new trial.” Workman v. Goldford (1967), 86 Ill. App. 2d 403, 407, 230 N.E.2d 574, 576-77.

Our research reveals only one case where an Illinois court has reversed a jury’s decision solely on the basis that a third person’s comments to the jury were so prejudicial to one party that reversal was required. In People v. Kawoleski (1924), 313 Ill. 257, 145 N.E.2d 203, the court reversed a conviction based on a deputy sheriff’s comment that “it should not take more than two or three minutes to convict that bird.” In finding that the comment must have been manifestly intended to influence the jury against defendant, the court noted that the comment was made during a court recess, 8 to 10 feet from the jury, and in a loud tone of voice audible to the jury. Kawoleski, 313 Ill. at 258, 145 N.E. at 203; see also People v. Tilley (1950), 406 Ill. 398, 94 N.E.2d 328 (cumulative effect of errors, including prejudicial comments of juror’s sister-in-law in front of jury, required reversal); People v. Patterson (1980), 90 Ill. App. 3d 775, 413 N.E.2d 1371 (prosecutor’s referral to defendant charged with rape as “Chester the molester” in presence of juror, although prejudicial, was cured where juror indicated he was not prejudiced and had not told other jurors).

In this case, the bailiff’s comments clearly do not fall within the same class as the one made in Kawoleski. Again, the comment that “this case shouldn’t be here” is neutral, and the “bad coach” and “divorcee” comment do not reflect a manifest tendency to sway the jury against plaintiff.

In summary, we affirm the circuit court’s denial of a new trial. We reiterate that the bailiff’s conduct in this case was totally inappropriate. Every litigant deserves his day in court unencumbered by outside influences. After careful review, we conclude that the court did not abuse its discretion in concluding that the bailiff’s comments did not so encumber the proceedings as to deny plaintiff his day in court.

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

Affirmed.

MANNING, P.J., and CAMPBELL, J., concur.


source: Caselaw Access Project

author: JUSTICE WOODWARD

license: Public Domain

text:
    COMMONWEALTH EDISON COMPANY, Plaintiff-Appellant, v. THE PROPERTY TAX APPEAL BOARD et al., Defendants-Appellees.
    Second District
    Nos. 2—90—0715 through 2—90—0720 cons.
    Opinion filed September 17, 1991.
    Rehearing denied November 1, 1991.

      Robert A. Creamer and John S. Vishneski III, both of Keck, Mahin & Cate, of Chicago (Minard E. Hulse, Jr., of counsel), for appellant.
    Neil F. Hartigan, Attorney General, of Springfield, and Michael J. Waller, State’s Attorney, of Waukegan (Charles B. Hughes and Deborah L. Ahlstrand, Assistant Attorneys General, of Chicago, and Helen S. Rozenberg and Steven Burgeman, Assistant State’s Attorneys, of counsel), for appellee Property Tax Appeal Board, Lake County Board of Review.
    William T. Barker and Jacqueline S. Classman, both of Sonnenschein, Carlin, Nath & Rosenthal, and George W. Foster, both of Chicago (Frederic S. Lane, of counsel), for other appellees.
   JUSTICE WOODWARD

delivered the opinion of the court:

Plaintiff, Commonwealth Edison Company, appeals from a judgment of the circuit court of Lake County which, on administrative review, confirmed a decision of the Property Tax Appeal Board (PTAB). Said decision found that plaintiff’s power generating machinery and equipment (machinery) located in its Zion power plant was properly assessed as real property for the 1978 tax year. Plaintiff raises one general issue, namely, whether said machinery is to be assessed as personal property or as real estate for the 1978 tax year. This general argument is broken down into three specific arguments: (1) the Zion assessor’s 1978 classification of Edison Power generating equipment constitutes an unconstitutional tax on personal property; (2) the 1978 classification of plaintiff’s power generator equipment as real estate violates the pertinent uniformity provision of the Elinois Constitution; and (3) the exclusion of plaintiff’s evidence classifying power generating equipment as personal property was error.

Plaintiff appealed the subject property’s 1978 real estate tax assessment to the Lake County board of review which found that the disputed machinery was properly assessed as real property. Plaintiff argued that it was entitled to a personal property deduction of $417,555,717 from its 1978 Zion real estate assessment, rather than the $9,813,106 personal property deduction it was allowed. Plaintiff then appealed this decision to the PTAB for review, naming the board of review as a party defendant. Thereupon, defendants Zion-Benton Township Public School District No. 126, Zion Public School District No. 6, Zion Park District, the City of Zion, Zion Township and Zion-Benton Public Library District (collectively Zion) were granted leave to intervene as parties of record before the PTAB. After extensive proceedings, the PTAB found for defendants. Specifically, it held that evidence showed that (1) the subject machinery was sufficiently affixed to the real property to be considered part of same; (2) the subject machinery was applied to the use and purpose to which the real estate is devoted; and (3) plaintiff intended to make the subject machinery a permanent accession to the property. On administrative review, the circuit court affirmed the PTAB’s decision, and this appeal followed.

We initially note that essentially the same principles, as well as the same attorneys, have been before this court in Commonwealth Edison Co. v. Property Tax Appeal Board (1983), 115 Ill. App. 3d 371, which was appealed to our supreme court in Commonwealth Edison Co. v. Property Tax Appeal Board (1984), 102 Ill. 2d 443. The issues in that cause, dealing with the 1975 and 1976 real estate assessments of the very same power plant, are not relevant here. However, it is demonstrative what plaintiff did not argue in said appeal. Despite the fact that as of January 1, 1979, the ad valorem personal property tax was terminated by the Elinois Constitution of 1970, plaintiff did not argue that the subject power generating machine should be assessed as personal property, even though said machinery had been assessed as real property since the power plant’s opening in 1973. Now plaintiff comes before us, arguing that the 1978 assessment, issued a mere two years after the subject assessments of the prior appeal, as well as being the final assessment before personal property taxes were abolished, erred in classifying said machinery as real property, rather than personal property.

First, plaintiff argues that the PTAB erred in finding that the subject machine was properly determined to be real property.

The machinery in dispute consists of piping systems, pumps, turbine generators, a nuclear reactor vessel, control rods and the fuel handling system. The evidence clearly indicates that same was installed in the Zion power plant with the intention that it would remain there permanently. To remove same, while a possibility, would require extensive alteration of the premises, including removal of reinforced concrete walls. The evidence further demonstrated that, since the Zion plant opened, the subject machinery has been assessed as real property.

Illinois’ system of taxing personal and real property is based upon the Revenue Act of 1939 (Act) as amended. (Ill. Rev. Stat. 1977, ch. 120, par. 481 et seq.; Commonwealth Edison Co. v. Property Tax Appeal Board (1983), 115 Ill. App. 3d 371.) The Act defines “real property” in pertinent part thusly:

“Real Property — Real Estate — Land—Tract—Lot—Not only the land itself, whether laid out in town or city lots, or otherwise, with all things contained therein, but also all buildings, structures and improvements, and other permanent fixtures, of whatsoever kind, thereon.” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 120, par. 482(13).)

The definition’s language pertinent to this case was derived from section 292 of the Revenue Act of 1872, as amended. Ill. Rev. Stat. 1929, ch. 120, par. 292.

Of relevance is the following excerpt from the Illinois Constitution, which states:

“On or before January 1, 1979, the General Assembly by law shall abolish all ad valorem personal property taxes and concurrently therewith and thereafter shall replace all revenue lost by units of local government and school districts as a result of the abolition of ad valorem personal property taxes subsequent to January 1, 1979.” Ill. Const. 1970, art. IX, §5(c).

As mandated by the Constitution of 1970 (Ill. Const. 1970, art. IX, §5(c)), the General Assembly enacted the Illinois Replacement Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 499.1) to replace the revenues lost by the abolition of the personal property tax. Section 18.1 of that act includes the following provision:

“No property lawfully assessed and taxed as personal property under this Act prior to January 1, 1979, shall be classified as real property subject to assessment and taxation under this Act after January 1, 1979. No property lawfully assessed and taxed as real property under this Act prior to January 1, 1979, shall be classified as personal property subject to assessment and taxation after January 1,1979.” Ill. Rev. Stat. 1979, ch. 120, par. 499.1.

With this background, we now review the relevant case law. In essence, plaintiff argues that the “continuous connected physical properties” doctrine as espoused in Shelbyville Water Co. v. People ex rel. Craddick (1892), 140 Ill. 545, controlled the Illinois assessment process in 1978. Said doctrine, arising out of the Revenue Act of 1872 (Ill. Rev. Stat. 1929, ch. 120, par. 25), defines as personal property all elements physically connected to the manufacturing process. Plaintiff maintains that the disputed machinery is used in the process which generates the product (electricity) created within the power plant; therefore, under Shelbyville, it constitutes personal property. Accordingly, Commonwealth Edison argues that personal property in the amount of $417.5 million should be deducted from the subject property’s 1978 assessment.

In contrast, defendants contend that the subject machinery must be classified as real property. Defendant first cites Joyner v. Mitchell (1932), 267 Ill. App. 427, wherein the court considered whether certain items of machinery were subject to foreclosure under a real estate mortgage. The machinery consisted of three lathes ranging in weight from 400 to 6,000 pounds, a milling machine weighing approximately 5,000 pounds and a drill press weighing 2,500 pounds. In concluding that these items were permanent fixtures and therefore a part of the realty, the Joyner court stated:

“If machinery is intended for permanent use in carrying on the business for which the building was erected or is used, as a permanent accession to the realty, it becomes a part of the realty on being installed thereon, and if such was the intention, it is immaterial that the machines may be removed and used elsewhere, and that they may be removed without injury to the building. This rule has special application to heavy machinery intended for the building and not intended to be moved from place to place, though resting in position by its own weight, and to machinery which is a constituent part of a factory or shop and indispensable thereto, though not actually fastened.” Joyner, 267 Ill. App. at 429-30.

The Joyner holding was adopted in the taxation case of Ayrshire Coal Co. v. Property Tax Appeal Board (1974), 19 Ill. App. 3d 41, in which the court reviewed a circuit court decision rejecting the PTAB’s classification of certain heavy machinery and equipment as real estate. The equipment in question included a 250-ton hopper, various conveyor belts and sizing and cleaning equipment used in coal preparation.

The Ayrshire court examined the way in which the machinery was attached to the realty. The court held that equipment welded to supporting piers or foundations, or held down by nuts and bolts, is annexed to the realty. The subject machinery could be dismantled and, in fact, would be moved when the coal ran out. The Ayrshire court concluded, however, that because the machinery was specifically adapted to the use of the realty, a presumption arose that the improvements were intended to be permanent fixtures, regardless of their method of attachment. The court then stated:

“Many authorities take the position that any and all machinery essential to the proper functioning of a plant, mill, or similar manufacturing is a fixture, or is at least so presumed to be, irrespective of the manner in which it is annexed to the realty and even though it is not attached thereto at all. This view is sometimes referred to as the ‘integrated industrial plant’ doctrine and represents the modern trend of decisions. [Citations.]
84 C.J.S. Taxation, sec. 73, states, ‘Machinery used in a mining or manufacturing or other business establishment constituting a part of the plant and indispensable to its operation as such is commonly taxed with, and as a part of, the realty, and is not subject to taxation as personal property,’ and ‘It has been declared that in matters relating to taxation, rules more nearly conforming to those used in determining what constitutes fixtures as between grantor and grantee, vendor and vendee, or mortgagor and mortgagee should apply rather than the rule used in what constitutes removable fixtures as between landlord and tenant.’
Where property is adapted to the use to which the realty is devoted the use thereof in such manner furnishes such strong evidence of intent to make it a part of the freehold as not to be overcome by bookkeeping practices.” (Emphasis added.) Ayrshire, 19 Ill. App. 3d at 45-46.

In Cherry Bowl, Inc. v. Illinois Property Tax Appeal Board (1981), 100 Ill. App. 3d 326, this court considered whether the PTAB had properly classified pinsetters and bowling lanes as permanent fixtures and, thus, real estate. After reviewing the holding in Ayrshire, the court affirmed the PTAB’s classification as not contrary to the manifest weight of the evidence. (Cherry Bowl, Inc., 100 Ill. App. 3d at 331.) The Cherry Bowl court held:

“We particularly note that the pinsetters and lanes were installed by plaintiff in its building which was constructed primarily for that purpose. These lanes and machinery were said to have a useful life of 20 to 50 years, and plaintiff intended to use them while it owned and operated the bowling establishment. Under these circumstances the property in question must be considered as permanent fixtures and improvements to the land and as real property for purposes of taxation.” Cherry Bowl, Inc., 100 Ill. App. 3d at 331.

The Cherry Bowl court then found it inappropriate to consider whether they would have been deemed removable trade fixtures (and therefore personalty) had they been installed by a tenant rather than by the owner. The court stated:

“Plaintiff also contends that the rules applied in landlord and tenant cases as to the nature of fixtures should be applied in taxation cases. As the Ayrshire Coal Co. court noted, however, in matters relating to taxation the standards used to determine what are considered to be fixtures as between grantor and grantee, vendor and vendee, or mortgagor and mortgagee should apply, rather than the standards applied in landlord-tenant situations. The major difference between these doctrines is that annexations by a tenant are presumed to be for his benefit and not to enrich the freehold [citation], while annexations made by an owner, as in the present case, are presumed to be made with the intent to permanently improve the premises.” Cherry Bowl, Inc., 100 Ill. App. 3d at 330.

The court also cited language from its prior decision in B. Kreisman & Co. v. First Arlington National Bank (1980), 91 Ill. App. 3d 847, namely, that “ ‘it is the intent to permanently improve the real estate, not simply the intent to use the equipment in the business carried on in it ***’ which is relevant in determining whether an item of personal property has become a fixture.” Cherry Bowl, Inc., 100 Ill. App. 3d at 330, quoting B. Kreisman & Co., 91 Ill. App. 3d at 852-53.

In In re Application of Beeler (1982), 106 Ill. App. 3d 667, the court reviewed a circuit court decision concerning the proper classification of portable grain dryers. Although the Beeler court ultimately upheld the classification of these portable facilities as personalty, it recognized both the intention test and the integrated industrial plant doctrine as to the proper classification of property under the Revenue Act:

“Though these cases [Ayrshire, Cherry Bowl] did not explicitly state what the proper test would be to determine whether property is real estate under section 1(13), two different approaches were mentioned and formed the basis of the courts’ reasoning: the intention test and the integrated industrial plant doctrine.
Under the intention test, three criteria are applied to evaluate whether property is personalty or realty, or more properly, whether an item has become a fixture. First, the property must be annexed to the realty or to something appurtenant thereto; second, the property must be applied to the use or purpose to which that part of the realty, with which it is connected, is appropriated; and finally, the party making the annexation must intend to make a permanent accession to the freehold. [Citations.]
* * *
The second approach, useful in determining whether an item of property is realty or personalty, has been described as the ‘integrated industrial doctrine.’ Under this test, all machinery of a factory or plant necessary for its operation as a complete going concern, is considered to be part of the freehold.” Beeler, 106 Ill. App. 3d at 669-70, 671.

The Beeler court described the integrated industrial plant doctrine thusly:

“The integrated industrial doctrine, though seemingly different from the above intention test, is just an extension of the second and third elements of the intention test requiring use in connection with the use to which the land is put, and an intent to permanently improve the real estate. Under the industrial doctrine, however, physical annexation is subordinated to the interrelationship between the disputed piece of property and the use of the real estate. The higher the degree of a relationship between the contested property and the uses of the realty, the more assuredly it can be said that the property is a part of the realty.” Beeler, 106 Ill. App. 3d at 672.

In the appeal at bar, the PTAB, citing the Act as well as the above-cited decisions, ruled that the subject machinery at the Zion facility was real property and not subject to ad valorem taxation for the 1978 tax year. The PTAB specifically found:

“The evidence and testimony in the record clearly indicates [sic] that: first, the machinery and equipment are sufficiently affixed to the real estate; second, the machinery and equipment are applied to the use and purpose to which the real estate is devoted; to wit; the generating and transmitting of electricity; and finally, Edison intended to make the machinery and equipment a permanent accession to the property.”

Plaintiff argues that Ayrshire was wrongly decided, taking, as it did, no account of Shelbyville’s “continuous, connected physical properties” doctrine. Plaintiff maintains that Ayrshire must be viewed as an attempt to overrule Shelbyville.

It is obvious that there is no longer any support for Shelbyville. Each of the above-cited cases ignores the case. At least one court has implied section 25 of the 1872 Revenue Act, upon which Shelbyville is based, is no longer the law of the land. (See National Boulevard Bank v. Citizens Utilities Co. (1982), 107 Ill. App. 3d 992.) While plaintiff argues that section 25 of the 1872 Act was never repealed, it does not direct this court’s attention to said section’s place in the present Act. Indeed, a detailed perusal of the Act does not reveal the language of the old section 25. Moreover, there is nothing in the Act “which specifies or requires that ‘machinery and equipment’ be considered to be personalty.” Central Illinois Light Co. v. Johnson (1981), 84 Ill. 2d 275, 279.

We find the court below properly determined that, even though section 25 had been repealed, it continued to serve as model and standard for many of the State’s assessors. Despite serving this function, section 25 did not have the force of law, and, thus, Shelbyville no longer controlled the 1978 assessment determinations as to the type of machinery involved herein.

Further, plaintiff’s argument that Ayrshire and its progeny are contrary to our supreme court’s decision in Central Illinois Light Co. v. Johnson (1981), 84 Ill. 2d 275, is not on point. Cilco deals with the transfer of machinery and equipment from the personal property rolls to the real property rolls in 1979. As such, it is clearly distinguishable from the instant case, where the subject machinery was, at all times, assessed as real property. Moreover, Cilco does not stand for repudiation of the “integrated industrial plant” doctrine, as plaintiff argues. Rather it serves to prohibit the reclassification of property after January 1,1979.

Next, plaintiff contends that the Property Record Card Statutes (Ill. Rev. Stat. 1977, ch. 120, pars. 484b, 485), support its position. We agree with defendants’ contention that said statutes do not alter the relevant definition of real property and have no actual bearing on the issue before us.

Next, plaintiff argues that the Zion assessor’s classification of the subject machinery constitutes an unconstitutional tax on personal property in violation of article IX, section 5(c), of the Illinois Constitution (Ill. Const. 1970, art. IX, §5(c)), which requires the General Assembly to abolish all ad valorem personal property taxes on or before January 1, 1979. Having found that the subject machinery was properly determined to be real estate, we find this argument meritless. Moreover, plaintiff’s contention that, when the Constitution of 1970 was adopted by the electorate, the right not to be taxed on personal property became vested is simply not true. The Constitution of 1970 prohibits the levy, extension or collection of ad valorem personal property taxes for the calendar year of 1979 and thereafter. (Client Follow-Up Co. v. Hynes (1979), 75 Ill. 2d 208.) Section 5(c) of article IX does not retroactively prohibit the collection of personal property taxes for 1978; and 1978 personal property taxes payable in 1979 are collectable. (75 Ill. 2d at 228.) We find that it did not constitute an unconstitutional tax upon plaintiff.

Next, plaintiff argues that the 1978 classification of the subject machinery as real property violated the Illinois Constitution’s uniformity provision, which reads:

“Except as otherwise provided in this Section, taxes upon real property shall be levied uniformly by valuation ascertained as the General Assembly shall provide by law.” (Ill. Const. 1970, art. IX, §4(a).)

Specifically, plaintiff contends that the subject classification placed an unconstitutional, nonuniform tax on its property since similar property it owns elsewhere was classified as personal property.

Below, the PTAB held that plaintiff’s uniformity argument was meritless, stating that “[t]he ‘inequality’ which [plaintiff] alludes to involves the variations in the exercise of judgment between the various local assessing officials who must necessarily act independently of one another, even though they all seek to apply the same standards.” Moreover, the circuit court found that the uniformity provision does not require that the Zion taxing bodies be forced to accept plaintiff’s arrangements with other assessors.

In Schreiber v. County of Cook (1944), 388 Ill. 297, our supreme court wrote:

“Absolute equality is impracticable in taxation and is not required by the equal protection clause of the constitution. Inequalities that result occasionally and incidentally in the application of a system that is not arbitrary in its classification, and not applied in a hostile and discriminatory manner, are not sufficient to defeat the tax. [Citations.] Mere inequities in the administration of the law violate no constitutional rights. [Citation.] A statute is not discriminatory when the same means and methods are employed alike to the persons or property composing the class so that the law operates on all similarly situated.” Schreiber, 388 Ill. at 303.

Plaintiff cites Moniot v. Property Tax Appeal Board (1973), 11 Ill. App. 3d 309. In Moniot, the court found a “deliberate and intentional policy of excluding intangible property of living persons from taxation and that same deliberate and intentional policy required taxation of such intangible personal property belonging to estates.” (Moniot, 11 Ill. App. 3d at 314.) As the law required identical assessment regardless of ownership, this deliberate policy constituted fraud which violated the uniformity provision. The instant case involves no such example of a fraudulent assessment; consequently, Moniot is not applicable here. Where, as here, an assessment is properly based upon the Revenue Act and the relevant case law, it does not violate the uniformity provision.

Finally, plaintiff argues that the PTAB erred in excluding its evidence of statewide practices of classifying process machinery as personal property. Plaintiff contends that the PTAB’s reliance on Cherry Bowl, Inc. v. Illinois Property Tax Appeal Board (1981), 100 Ill. App. 3d 326, for this proposition was misplaced. We do not agree. In ruling upon the subject evidence, the PTAB stated:

“The testimony of employees of utility companies located throughout the State of Illinois with respect to the personal property assessments of property owned by other companies in other counties is irrelevant and inadmissible in this proceeding. The testimony of the representatives of Edison with respect to the assessment of Edison’s property not located in Lake County is also irrelevant and immaterial. Finally, the testimony of various officials and other officials involved in the assessment process and the promulgation of forms and other tools for the assessment of property is also ruled irrelevant and inadmissible. Insofar as Edison has sought to introduce physical records of the laws of the State of Illinois as well as from and other documents kept in the usual course of business of agencies of this State, the Board also rules these inadmissible as physical evidence ***. In support of its rulings as to the admissibility of assessment practices in counties other than Lake, the Board relies on the Cherry Bowl case cited by Zion.”

In Cherry Bowl, the taxpayer sought to introduce a witness’ testimony of telephone conversations with various assessors. The PTAB had excluded the evidence, finding it both irrelevant and hearsay. This court upheld that exclusionary ruling, explaining that the practices of other assessors bore no relevance to the propriety of the 1978 tax assessment at issue.

Finding that the objections were properly sustained, the Cherry Bowl court stated:

“The interpretation given to the scope of section 1(13) of the Revenue Act [citation] by a few of the many assessors applying it to bowling establishments throughout the State was not relevant to whether the Rockford township assessor had correctly done so in the present case. Nor would evidence of the varied approaches taken by them assist the PTAB in its resolution of the question before it. The offered testimony and documents were clearly hearsay, in any event, and on objection the PTAB properly declined to consider them.” Cherry Bowl, 100 Ill. App. 3d at 331.

Similarly, other power plant assessments would be of little relevance here. The PTAB did not require such evidence to determine the propriety of the subject assessment. Moreover, as in Cherry Bowl, the offered testimony and documentation was clearly inadmissible hearsay. The PTAB properly denied the admission of this disputed evidence.

For reasons cited above, we find that the subject machinery was properly assessed as real property for 1978.

Having so found, we further hold that the PTAB’s decision that the subject machinery was real property was not against the manifest weight of the evidence. As stated above, there is no question the power generating equipment was intended to remain permanently within the Zion station’s structure. As such, it was properly found to be permanently affixed to the property and, as a result, eligible to be assessed as real property.

Plaintiff next argues that Zion assessor’s 1979 through 1983 classification of the subject equipment as real property was error. We find this contention meritless as it essentially reargues the issue decided above.

We note that the PTAB did not hold an evidentiary hearing with respect to the 1979 through 1983 tax years separate from that held with respect to the 1978 tax year. With regard to the 1979 through 1983 tax years, the PTAB concluded:

“After considering the evidence and reviewing the record, the Property Tax Appeal Board finds that it has jurisdiction over the parties and the subject matter of this appeal. The Board rules that the machinery and equipment are real property and thus subject to ad valorem taxation in the 1979 [through 1983] assessment year[s]. The evidence and testimony in the record from the hearing of the 1978 appeal clearly indicates [sic] that: first, the machinery and equipment are sufficiently affixed to the real estate; second, the machinery and equipment are applied to the use and purpose to which the real estate is devoted; to wit: the generating and transmitting of electricity; and finally, Edison intended to make the machinery and equipment a permanent accession to the property. Therefore, the Property Tax Appeal Board finds that the assessment as established by the board of review is correct.”

The trial court held a hearing to review the decision for the 1978 tax year and, with the consent of the parties, ruled on the 1979 through 1983 tax years based on its decision for the 1978 tax year. As noted above, the court below concluded that the PTAB’s decision in the 1978 case classifying the permanently affixed machinery and equipment as real property was consistent with the manifest weight of the evidence and applicable statutory and case law.

As mandated by the Constitution of 1970 (Ill. Const. 1970, art. IX, §5(c)), the General Assembly enacted the Illinois Replacement Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 499.1) to replace the revenues lost by the abolition of the personal property tax. Section 18.1 of that act included the following provisions:

“No property lawfully assessed and taxed as personal property under this Act prior to January 1, 1979, shall be classified as real property subject to assessment and taxation under this Act after January 1, 1979. No property lawfully assessed and taxed as real property under this Act prior to January 1, 1979, shall be classified as personal property subject to assessment and taxation under this Act after January 1, 1979.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. 120, par. 499.1.

In Central Illinois Light Co. v. Johnson (1981), 84 Ill. 2d 275, our supreme court quoted the following passage of legislative proceedings wherein Senator Adeline Geo-Karis asked the question whether section 18.1 would restrict county assessors as to the classification of property as real or personal. Senator Terry Bruce stated in response:

“ ‘Yes, it has, Senator Geo-Karis ***. [Cjoncem was expressed by many in the House and an amendment was added which clarifies *** that property that was legally classified in prior years cannot be reclassified, and frankly that works both ways. Some assessors would give utilities a break if it were assessed as real property as opposed to personal property, some would give the break if it were personal rather than real. And now some utility companies seeing that they would not have to pay any taxes if they could get it reclassified quickly to personal property and not as real property, wouldn’t pay. The decision was made that the best thing is to freeze everybody with the deals that they’ve made with their local assessor. If they went to them and said, look, let’s assess this as personal property so I can get a lower rate, that’s fine, they’re stuck with that and now they’re off the rolls. If they went through in the other way and said, let’s classify it as real estate and they enjoyed that advantage for several years at a lower rate than the personal property tax rate, I don’t think it would be fair now to allow them to change that. So the bill just says, if it were legally classified prior to the enactment of this bill, it cannot be reclassified.’ ” (84 Ill. 2d at 282.)

The Central Illinois Light Co. court concluded that the legislature intended through section 18.1 to freeze classification of properties that had resulted from legally sufficient deals between assessors and property owners. Moreover, the Central Illinois Light Co. court reaffirmed our supreme court’s long-standing position that taxation of property is a legislative and not a judicial function and that the courts will not review property assessments unless said assessments are fraudulent or constructively fraudulent. 84 Ill. 2d at 282-83.

As we held in the previous issue, the 1978 assessment was legally grounded. Under Central Illinois Light Co., we find that this proper assessment was frozen for the 1979 assessment year and for the subject assessment years which followed.

We have considered all other arguments raised by plaintiff and consider them meritless.

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

Affirmed.

NICKELS and BOWMAN, JJ, concur.


author: JUSTICE McLAREN

text:
    WENDY HALLE, Indiv. and as Mother and Next Friend of Kristin Halle, Plaintiff-Appellant, v. JOSEPH S. ROBERTSON, Defendant-Appellee (Farmers Insurance Group of Companies, Garnishee-Defendant).
    Second District
    No. 2—91—0001
    Opinion filed October 4, 1991.

      Paul R. Wilson, Jr., of Wilson & Lanto, P.C., of Rantoul, for appellant.
    D. Kendall Griffith, Bruce L. Carmen, and Stephen R. Swofford, all of Hinshaw & Culbertson, and Michael E Henrick, both of Chicago, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff appeals from an order granting defendant’s petition to vacate a default judgment pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401). Plaintiff contends that the trial court abused its discretion in granting the requested relief. We disagree and affirm.

On March 15, 1990, Wendy Halle, individually and as mother and next friend of Kristin Halle (plaintiff), filed a complaint against Joseph S. Robertson (defendant). In her complaint, plaintiff alleged that on July 4, 1988, defendant negligently operated his motorcycle and collided with plaintiff’s automobile on the Amstutz Expressway in Waukegan, Illinois. Plaintiff sought recovery for personal injuries to herself and her daughter, Kristin, who was a passenger at the time. In addition, plaintiff sought to recover property and punitive damages.

On April 12, 1990, the Lake County sheriff allegedly served defendant by substitute service. Defendant’s mother received the summons. Defendant then tendered the complaint to his liability insurer, Illinois Farmers Insurance Company (Farmers). Farmers is a group of insurance companies. Mid Century Insurance Carrier, located in Rolling Meadows, is a member of this group and is the carrier of Mr. Robertson’s policy.

During a phone conversation on June 28, 1990, defendant’s counsel told plaintiff’s counsel that an appearance would be made as soon as proper service of process could be verified.

On July 19, 1990, during the special progress call, plaintiff obtained an order of default against defendant on the ground that defendant failed to appear or plead within the proper time. The trial court set the case for a jury trial prove up of damages on August 3, 1990. Plaintiff’s counsel admits that he was aware defendant’s counsel might file a special and limited appearance to contest service. Plaintiff’s counsel also admits that on the date the default was obtained he saw defendant’s counsel in the courtroom. Counsel further admits knowledge of defense counsel’s possible involvement with the case, but denies having knowledge of defense counsel’s intentions with respect to the case on the day of the special progress call. The court was not informed of defense counsel’s involvement in the case.

At the jury trial prove up on August 3, 1990, again in the absence of defense counsel, plaintiff obtained a verdict for $148,240. This award included damages for personal injuries sustained by both Wendy and Kristin Halle, damages to property owned by Wendy Halle, and punitive damages for defendant’s wilful and wanton conduct. Plaintiff sent a “notice of default” to defendant 31 full days after the jury verdict.

On August 15, 1990, the circuit clerk issued a garnishment citation against Farmers. The citation stated that Farmers was indebted to plaintiff in the full amount of plaintiff’s judgment. Plaintiff delivered the garnishment to the Kane County sheriff 21 full days after it was issued. The next day, the garnishment was served on the Farmers Insurance Group in Aurora, Illinois. On October 16, 1990, a conditional judgment by default was taken against Farmers because Farmers failed to answer the garnishment.

On October 26, 1990, Robertson filed a petition for relief from the default judgment, and on November 5, Farmers moved to vacate the conditional judgment and garnishment. The court granted Robertson’s petition and vacated the default judgment, finding that (1) defendant had a “meritorious defense to the claim for punitive damages and a meritorious defense to the amount of [compensatory damages],” (2) defendant acted with due diligence in filing the section 2 — 1401 petition for relief, and (3) principles of equity justified a decision vacating the default judgment as to the liability for actual damages. Farmers’ petition to vacate the conditional judgment was also granted.

The trial court made several important findings with respect to the events described above. First, in connection with the proceedings surrounding the default hearing, the court found that it was not advised that there had been any discussions between the parties’ counsels. The court also found that it was not told defense counsel was in court on the date the default was entered and that it was not apprised of defense counsel’s involvement in the case.

Next, in connection with the jury trial prove up, the court found that there was an incorrect recitation of evidence regarding the posted speed limit, that there was a request for damages for which plaintiff had already received compensation, and that inadmissible evidence of a contingent fee arrangement was presented to the jury.

Finally, the court found that plaintiff failed to notify defendant of the entry of the default judgment in a timely manner, that plaintiff failed to place the garnishment summons for service in a timely manner, and that plaintiff failed to conform to section 2 — 604.1 (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 604.1) with respect to the proper procedures for pleading punitive damages in actions based on negligence.

A section 2 — 1401 petition is initially addressed to the sound discretion of the trial court. Its decision on the matter should be reversed only in the case of an abuse of discretion. (Bonanza International, Inc. v. Mar-Fil, Inc. (1984), 128 Ill. App. 3d 714, 718.) The court below exercised its discretion and ruled that the vacation of the default judgment was justified when considered in light of the actions of plaintiff’s counsel along with the due diligence of the defendant. Based on case law and principles of equity, we agree.

The general rule is that a section 2 — 1401 petition for relief must affirmatively set forth specific factual allegations supporting each of the following elements: (1) the existence of a meritorious defense or claim; (2) due diligence in presenting this defense or claim to the circuit court in the original action; and (3) due diligence in filing the section 2 — 1401 petition. Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 221.

Plaintiff argues that defendant failed to meet these requirements in its section 2 — 1401 petition. First, plaintiff argues that defendant failed to plead a meritorious defense. A meritorious defense is one which, if believed by the trier of fact, would defeat plaintiff’s claim. Cunningham v. Miller’s General Insurance Co. (1989), 188 Ill. App. 3d 689.

Defendant’s petition for section 2 — 1401 relief sets out several meritorious defenses. For example, it denies negligence on the part of defendant, by disputing the speed limit alleged by plaintiff and disputing the alleged speed of defendant. The petition also denies wilful and wanton conduct on the part of defendant and alleges that damages awarded were well beyond those properly proved.

These defenses were buttressed by affidavits that provided factual support. The defenses are not mere conclusions that defendant is not liable, but, rather, they are allegations of relevant facts that could support a judgment in defendant’s favor. (People v. Smith (1989), 188 Ill. App. 3d 387, 393.) If these defenses were believed by the trier of fact, they would serve to defeat the plaintiff’s claim in its entirety. Therefore, the court acted within its discretion when it held that defendant had a meritorious defense to the claim for punitive damages and a meritorious defense to the amount of damages overall.

Plaintiff next argues that defendant failed to exercise due diligence in defending its cause in the trial court. According to our supreme court, due diligence requires a reasonable excuse for failing to act within the appropriate time. A party relying on section 2 — 1401 must show that he failed to appear because of an excusable mistake and not because of his own fault or negligence. In determining the reasonableness of the excuse offered by the petitioner, all of the circumstances attendant upon entry of the judgment must be considered, including the conduct of the litigants and their attorneys. Airoom, 114 Ill. 2d at 222.

The court below found that defendant failed to show an exercise of due diligence in presenting the meritorious claims at the time of trial. However, as the court notes, even in the absence of due diligence in responding to the complaint, equity, justice and good conscience can require that a default judgment be vacated. Bonanza International, 128 Ill. App. 3d at 719.

One of the guiding principles in the administration of section 2 — 1401 relief is that “the petition invokes the equitable powers of the circuit court, which should prevent enforcement of a default judgment when it would be unfair, unjust, or unconscionable.” Airoom, 114 Ill. 2d at 225.

It is not up to the court in a section 2 — 1401 petition to determine the ultimate outcome of the proceeding. (Cunningham v. Miller’s General Insurance Co. (1989), 188 Ill. App. 3d 689, 693.) Instead, a section 2 — 1401 petition should be used to prevent the enforcement of an unfair or unjust judgment. Airoom, 114 Ill. 2d at 225; Elfman v. Evanston Bus Co. (1963), 27 Ill. 2d 609, 613; Gluth Brothers Construction, Inc. v. Union National Bank (1989), 192 Ill. App. 3d 649, 653.

In Airoom (114 Ill. 2d 209), the supreme court upheld a lower court’s order denying a petition to vacate a default judgment. The court weighed the equities and explained that there were no attendant circumstances of unfairness, i.e., execution of the default judgment was not inequitably delayed, the judgment was in line with the special damages, and the defendant disregarded normal court procedures on the gamble that better results could be obtained through negotiation.

In Elfman (27 Ill. 2d 609), the supreme court held that the trial court abused its discretion and reversed the trial court’s denial of a section 2— 1401 petition to vacate. The Elfman court also weighed the equities, but came to the conclusion that justice dictated a granting of the petition. The court explained that execution on the judgment was deliberately delayed for more than 30 days and evidence of damages that exceeded the specials was introduced at trial to the extent that an unfair advantage was worked upon the defendant and the court. The court then remanded the cause in order to give defendant an opportunity to appear and defend on the issue of damages.

Here, as previously stated, the court was not advised that there had been any discussions between the parties’ counsel, nor was it told that defense counsel was in court on the date the default was entered, nor was it apprised of defense counsel’s involvement in the case. In addition, there was an incorrect recitation of evidence regarding the posted speed limit; there was a request for damages for which plaintiff had already received compensation; inadmissible evidence of a contingent fee arrangement was presented to the jury; plaintiff failed to notify defendant of the entry of the default judgment in a timely manner; plaintiff failed to place the garnishment summons for service in a timely manner; and plaintiff failed to conform to section 2 — 604.1 (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 604.1) with respect to the proper procedures for pleading punitive damages in actions based on negligence. These are clearly sufficient grounds to support the court’s decision that principles of equity dictated a granting of the section 2 — 1401 petition for relief from default judgment.

In the present case, the court held that the actions of plaintiff justify a vacation of the punitive and compensatory damage award as well os the default judgment for the entire underlying liability. This court has previously granted such relief. Bonanza, 128 Ill. App. 3d 714.

The third element of the Airoom test requires due diligence in filing the section 2 — 1401 petition. Since the trial court found that the defense filed the section 2 — 1401 petition with due diligence, and since plaintiff does not raise the issue on appeal, we will not address it here.

Finally, plaintiff argues that the court improperly entered orders on matters which were not before it when it struck the punitive damage claim from the complaint. We find the court’s actions in this respect to be proper. According to section 2 — 604.1 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 604.1), a complaint should not be filed containing a prayer for punitive damages without prior leave of court.

The judgment of the circuit court of Lake County is affirmed.

Affirmed.

DUNN and UNVERZAGT, JJ., concur.


author: PRESIDING JUSTICE SCARIANO

text:
    DAVE SCHULTHEIS, Plaintiff-Appellant, v. McWILLIAMS ELECTRIC COMPANY, INC., Defendant-Appellee and Counterdefendant (Waste Management of North America, Inc., et al., Defendants; Waste Management, Inc., Counterplaintiff and Third-Party Plaintiff; Farnsworth McKoane Construction Company et al., Counterdefendants; Tempus Construction Services, Inc., Third-Party Defendant and Counterplaintiff).
    First District (2nd Division)
    No. 1—89—2752
    Opinion filed September 17, 1991.

      Burton A. Padove, of Law Offices of Richard E Hallen, of Chicago, for appellant.
    Keevers & Hittle, of Chicago (Kathleen A. Smith, of counsel), for appellee.
   PRESIDING JUSTICE SCARIANO

delivered the opinion of the court:

Plaintiff Dave Schultheis appeals from the circuit court’s dismissal with prejudice of his complaint against defendant McWilliams Electric Company (McWilliams). He claims that the court erred in finding that he had intended to release defendant from liability for the acts with which he charged defendant, and that even if he had intended to release defendant, the release should have been voided as having been based upon a mutual mistake as to the extent of defendant’s liability.

Plaintiff’s complaint charged defendant and four other parties with violating the Premises Liability Act (Ill. Rev. Stat. 1985, ch. 80, par. 301 et seq.), thereby causing him to be injured when he fell after tripping on scrap electrical conduit material at a construction site on May 27,1986.

Defendant moved pursuant to section 2 — 619(aX6) of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(6)) to dismiss plaintiff’s claim against it, and in support of its motion it submitted the affidavit of Jennifer St. Mary, an insurance company claims adjuster, who deposed that:

“On July 20, 1987, pursuant to negotiations with *** Schulteis [sic], I forwarded a check, representing full settlement of his claim against MC WILLIAMS ***, in the amount of $2,931.42, along with a Release. *** The check *** was cashed by Mr. Schulteis [sic] in July, 1987. *** The Release *** was never returned to my attention. It is unknown whether Mr. Schulteis [sic] ever executed [it]. *** Once Mr. Schulteis [sic] received the check, he did not contact me further with regards to his claim against MCWILLIAMS***.”

Defendant also supported its motion with a copy of the letter which St. Mary had stated she had sent to plaintiff. The letter stated:

“I have received *** a copy of your chiropractor bill totalling $820.00 along with your wage information showing your lost wages for the month of October [1986]. I have enclosed a check for $2,931.42 which should fully settle the claim against Me Williams ***. I have also enclosed a release for that same amount but I need you to fill this out and return to me as soon as possible. Thank you for your co-operation in handling this claim and if you have any questions after reviewing it please feel free to contact [me].”

Finally, defendant provided the court with a copy of the check sent to and cashed by plaintiff.

In opposing the motion, plaintiff filed an affidavit in which he averred, in pertinent part, that:

“4. As a result of the fall, I incurred medical bills, lost time and disability from a herniated disc which was diagnosed *** on September 30,1988;
5. I received partial compensation from McWilliams Electric for some lost time and a medical bill in July, 1987;
6. I did not intend to abandon or release any claim against McWilliams by acceptance of partial compensation in 1987;
7. I never signed a release for McWilliams or their insurance company;
8. No lawsuit or workmen’s comp [sic] action was pending on my behalf in 1987, nor did any attorney negotiate with the [insurance] adjuster on my behalf prior to July, 1987;
9. Neither I nor the *** adjuster knew in 1987 that I sustained a herniated disc as a result of the subject fall.”

Plaintiff also submitted a transcript of his deposition in which he testified that he was employed as a carpenter at the construction site where the accident occurred on May 27, 1986. He was diagnosed after the accident as having a lower back sprain and was advised by his doctor not to work for three or four weeks. One day after his doctor allowed him to return to work, toward the “end of June, the beginning of July” 1986, he reinjured his back while performing “light duty.” He then missed “two or three weeks” of work. After returning to work at “Mull duty” in late July 1986, he continued to have back pain.

Plaintiff began seeing a chiropractor in October 1986 to deal with that pain. At around the same time, he “restrained” his back while lifting sheets of drywall; this incident, however, did not affect the extent of his pain. Nevertheless, he took the advice of his chiropractor and did not work for much of October 1986. After he returned to work at the end of the month, the pain in his back “crept back up,” accompanied by “numbness in the *** right leg.” Later, however, he answered “No” to the question, “Between October of 1986 and November 12th of ’87, did you have any back pain?”

On November 15, 1986, plaintiff fractured his neck in an auto accident, and was, as a result, unable to work until November 1987. After returning to work, he again began to experience back pain. After undergoing an “MRI and cat scan” in “May or June of [19]88,” plaintiff was diagnosed as having a herniated disc. He was advised to “quit work” and to undergo physical therapy. Although he did not quit his employment, he was laid off on September 17, 1988, the same day on which he reinjured his back while lifting drywall. At the time of his deposition on February 17, 1989, plaintiff was seeking employment requiring “light to medium, medium light duty” as allowed by his physician.

Following the May 27, 1986, accident, plaintiff spoke with several representatives of defendant’s insurer, including St. Mary, regarding his request for compensation for medical expenses and for “time being off work.” He admitted that the July 17, 1987, letter referred to by St. Mary in her affidavit was sent to him along with the check; he denied, however, that any document purporting to be a release accompanied them. He thought the check “was to pay what I had, the $820 for the doctor and for the most, I was off from work because it came down to when I sat down, what it would have been.” He had not, however, negotiated with St. Mary for a check for the amount he received.

After receiving the check, plaintiff had no further conversations with St. Mary, because “it was my assumption that that was to pay my chiropractic bills, the way it read and my wages that were lost in the month of October.” He interpreted the letter’s statement that the amount sent “should fully settle the claim against McWilliams” to mean “the term that they owed me for the month. I thought they were paying the chiropractic bill.” It was not his understanding, in cashing the check, “that the — any claim [he] may have had against McWilliams *** was taken care of.” He also claimed that the check did not cover losses incurred prior to October 1986.

Plaintiff’s first point is that the evidence upon which the court dismissed his case, at best, shows that he agreed to partial reimbursement for his claim, and not that he released defendant from all remaining liability; accordingly, he urges, the court erred in dismissing the claim. Defendant responds that plaintiff’s cashing of the check with knowledge of the contents of the letter containing the check constituted acceptance of the condition stated therein that defendant be released from any further liability.

Section 2 — 619(aX6) of the Civil Practice Law allows a “[defendant [to] *** file a motion for dismissal of the action *** upon the *** ground[ ][,] *** supported by affidavit: *** That the claim set forth in the plaintiff’s pleading has been released ***.” Plaintiff relies upon Thornberry v. Board of Education (1972), 8 Ill. App. 3d 351, in support of his argument that he did not release defendant from liability for the acts alleged in his complaint. In Thornberry, a case in which the plaintiff sought to enforce the settlement of his personal injury claim against the defendant (8 Ill. App. 3d at 353), the court held:

“[I]n a complaint to enforce the compromise and settlement of a personal injury claim, facts must be alleged which show liability to the claimant, agreement to pay an amount, acceptance of the agreement in settlement of the claim and that the agreement was concluded by disposition of the cause through *** the claimant’s execution of or willingness to execute releases.” 8 Ill. App. 3d at 354.

Plaintiff maintains that defendant “cannot prove that there was an agreement to settle the entire claim nor can it establish that the Plaintiff signed a Release.” We hold, however, that the record made before the trial court reasonably led it to conclude that plaintiff’s endorsement and cashing of the check with knowledge of the contents of the accompanying letter demonstrated an intent to release defendant from the claim.

The trial court relied upon Michigan Leather Co. v. Foyer (1902), 104 Ill. App. 268, in finding that plaintiff had released defendant from liability. In Michigan Leather:

“There was a dispute between [the] parties as to the state of their account. *** [T]he Leather Company made up a detailed statement of the account as it understood it, named the balance thus found due, and sent [Foyer] its check for the same, accompanied by the statement that the check was in full settlement of the account. Upon the receipt of this letter and check it became the right of Foyer *** either to send back the check and sue upon his statement of the account, or'to receive such check in full settlement.” (104 Ill. App. at 269.)

Accordingly, the court held that “[t]he acceptance of the check involved the acceptance of the condition upon which it was offered.” (104 Ill. App. at 269.) And in Quaintance Associates, Inc. v. PLM, Inc. (1981), 95 Ill. App. 3d 818, 822, the court held, “The acceptance of the check given in full satisfaction of a disputed claim is an accord and satisfaction if the creditor took the check with notice of the condition upon which the check was tendered.”

Plaintiff does not dispute the applicability of this rule to the question of whether a party has released a claim, but argues that in light of Clancy v. Pacenti (1957), 15 Ill. App. 2d 171, cases like Michigan Leather and Quaintance Associates, which dealt with commercial transactions, should be “inapplicable.” Clancy, however, dealt with whether a release was void as having been “based on a mutual mistake of fact with respect to the nature and extent of the injuries.” (15 Ill. App. 2d at 172.) There was no issue in that case as to whether a release had been executed; the court simply held that “the peculiar character of personal injuries,” the ease with which a mistake can be made and the serious consequences which could result from such mistakes, as well as “[t]he sharp economic inequality of the bargaining parties which generally exists in this class of cases,” require that “courts *** take a broad view in affording relief for a release executed on a mistaken understanding of the nature and extent of personal injuries.” 15 Ill. App. 2d at 176-77.

Thus, the Clancy court’s separation of personal injury cases from other kinds of disputes was not made with reference to the question of whether a party had released another party from a claim, but rather to that of the instances in which such releases should be voided. Consequently, Clancy is applicable only to plaintiff’s second argument, that the release should be voided as having been based upon mutual mistake.

In Gutierrez v. Schultz (1982), 109 Ill. App. 3d 372, the plaintiff, after filing a claim against the defendant allegedly responsible for his injuries, cashed a $6,000 check from the defendant’s insurance company “which contained on its face *** [that it was] ‘In payment of any and all claims including bodily injury arising from accident of 12-12-78 in Sterling, Illinois.’ ” (109 Ill. App. 3d at 374.) In addition, the record showed:

“[T]he insurance agent had represented that the company would take care of everything, including lost wages. It also indicates [through evidence that the insurance adjuster ‘told the plaintiff *** that if he needed money, [the insurance company] would advance it to him[,] *** [that] [n]o agreement for a $6,000 settlement was arrived at[,] *** that he had informed the adjuster previously [before receiving the check] that he was not satisfied with their offer *** [and] that some two or three weeks after he got the draft check, he received a release form *** to sign[,] *** [which he] threw *** in the garbage’ (109 Ill. App. 3d at 374)] that plaintiff understood the check to be partial payment of his claim, and not final and complete payment.” 109 Ill. App. 3d at 378.

The court held that “a genuine issue of fact was raised as to whether the check document was a release.” (109 Ill. App. 3d at 378.) In the instant case, plaintiff admitted knowing about the letter’s language that the check was intended to “fully settle the claim against [defendant].” Moreover, despite allegedly having a claim for costs incurred prior to October 1986, plaintiff never contacted the insurance company about his need to be compensated for those costs. Accordingly, the trial court was reasonably entitled to find that plaintiff cashed the check with the knowledge that it had been sent to him in the belief that no claim would be lodged against defendant for injuries resulting from his May 27, 1986 fall.

Next, plaintiff argues that even if the court correctly determined that he intended, at the time he cashed the insurance company’s check, to release defendant from any further liability, the release should be void as leading to the unconscionable result of compensation of only “$820.00 for chiropractic care and one month’s lost wages for a back sprain which, once all the facts were known, was in actuality a herniated disc.” He points out that he “had apparently made a recovery as he had been without back pain for 9 months at the time of settlement, after having seen medical practitioners over 20 times during a 6 month period.” He avers that he and defendant were wrong in believing he had recovered, and that, therefore, because his injury was not revealed by ordinary X rays, but rather through more sophisticated tests, and because he had acted with reasonable diligence in attempting to discover the extent of his injuries, a mutual mistake occurred which should have voided the release. Defendant responds that plaintiff failed to fulfill his burden of proving, by clear and convincing evidence, that a mutual mistake occurred, and that the trial court’s determination thereof was not against the manifest weight of the evidence. Plaintiff, argues defendant, was aware that there might be future consequences from his injury, and further, that he failed to provide any evidence linking .the May 27, 1986, accident with the herniated disc, or any evidence that he could not reasonably have discovered the herniated disc at an earlier date, particularly important factors when subsequent injuries to plaintiff are considered.

“Releases may be set aside in equity where there appears to be mutual mistake with respect to the nature and extent of the injury sustained. [Citation.] *** [A] party who contends that the release was secured by *** mistake must prove his case by clear and convincing evidence. *** The modem trend is to set aside releases of personal injury claims in situations where the facts, when finally known, present an unconscionable result because of the equitable principle of doing justice under the circumstances of each case.” (Scherer v. Ravenswood Hospital Medical Center (1979), 70 Ill. App. 3d 939, 942.)

A trial court’s determination of mutual mistake will not be disturbed unless it is against the manifest weight of the evidence. Reede v. Treat (1965), 62 Ill. App. 2d 120, 131.

Plaintiff relies upon the facts in Scherer (70 Ill. App. 3d 939), Meyer v. Murray (1979), 70 Ill. App. 3d 106, Reede (62 Ill. App. 2d 120), and Clancy (15 Ill. App. 2d 171) to support his argument. In Scherer, the court identified the factors to be considered in determining whether a mutual mistake of fact occurred:

“(i) that the parties believed plaintiff had recovered at the time of the release; (ii) the condition was one which ordinary X rays and customary examination did not reveal; and (iii) the evidence justified the conclusion that the plaintiff acted with reasonable diligence in ascertaining the extent of injury.” (Scherer, 70 Ill. App. 2d at 945.)

In the cases plaintiff relies upon in which mutual mistake was found, there was evidence that the condition upon which the attempt to void the release was based was caused by the original incident. (See Scherer, 70 Ill. App. 3d at 941; Meyer, 70 Ill. App. 3d at 110; Reede, 62 Ill. App. 2d at 124; Clancy, 15 Ill. App. 2d at 173-74.) In fact, both Reede (62 Ill. App. 2d at 133), and Clancy (15 Ill. App. 2d at 178) specifically discussed the requirement that there be proof of a causal connection. In the instant case, the “evidence” that plaintiff’s herniated disc, “diagnosed *** on September 30, 1988,” was even a “consequence” of his May 27, 1986, slip and fall, much less an “unexpected consequence” (DeMarie v. Boston & Ohio Chicago Terminal R.R. Co. (1979), 79 Ill. App. 3d 50, 54-55), consists solely of plaintiff’s statement in his affidavit that “[a]s a result of the fall, I incurred medical bills, lost time and disability from a herniated disc.” In the meantime, plaintiff had reinjured his back after returning to work, had “restrained” his back in October 1986 and had broken his neck on November 15, 1986, and had reinjured his back on September 17, 1988. In view of plaintiff’s failure to provide the court with evidence that his original accident had resulted in the injury of which he was complaining, we cannot say the trial court erred in finding he had failed to show the existence of a mutual mistake of fact, and in dismissing his cause. Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

HARTMAN and DiVITO, JJ., concur.