author: JUSTICE ROMITI

text:
    THE PEOPLE ex rel. JAMES W. SCHACHT, Acting Director of Insurance as Rehabilitator for Main Insurance Company, Plaintiff-Appellee, v. MAIN INSURANCE COMPANY et al., Defendants-Appellants.
    First District (4th Division)
    No. 83—2303
    Opinion filed March 22, 1984.

      Howard E. Gilbert and Michael D. Richman, both of Herman, Tannebaum, Levine & Gilbert, of Chicago, for appellants.
    Jeremiah Marsh, Michael Schneiderman, Michael M. Conway, and Mary K. Butler, all of Hopkins & Sutter, of Chicago, for appellee.
   JUSTICE ROMITI

delivered the opinion of the court:

This is an appeal, pursuant to Supreme Court Rule 307(a)(5) (87 Ill. 2d R. 307(a)(5)), from an order of the trial court entered August 25, 1983, directing that Main Insurance Company (Main) be liquidated under the provisions of the Illinois Insurance Code (Ill. Rev. Stat. 1981, ch. 73, par. 613 et seq.). Appellants Main and Mainway Financial Corporation (an Illinois corporation owning 100% of Main’s stock) contend that the trial court erred in admitting certain documentary and testimonial evidence concerning Main’s consumer claims reserve. It is undisputed that this evidence, if properly admitted, established that Main was insolvent and thus subject to liquidation.

We affirm.

This is the second appeal of this cause. The trial court first ordered Main’s liquidation in June 1982, but that order was stayed pending Main’s appeal to this court. In that first appeal (People ex rel. Schacht v. Main Insurance Co. (1983), 114 Ill. App. 3d 334, 448 N.E.2d 950), we found that the trial court had erred in refusing to allow Main to have a sufficient amount of its assets to prepare a transcript of the proceedings for appeal. Because we could not review Main’s claims of error without a proper record, we remanded the cause to the trial court with instructions to permit Main to provide the necessary record for review. We also held that the trial court could, if it so desired, reconsider its order of liquidation in light of our determination that a case relied on by the plaintiff (Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322, cert, denied (1981), 454 U.S. 836, 70 L. Ed. 2d 117, 102 S. Ct. 140, in which the court announced a new rule permitting opinion testimony based on facts not in evidence), was not applicable to the initial trial of this cause. On remand the trial court granted Main’s motion for reconsideration but then again ordered Main’s liquidation based on a finding of insolvency.

As we have noted, Main’s contentions on appeal relate to the admission of evidence concerning Main’s consumer claims reserve (the amount of money estimated to be needed to pay off all pending policy claims). Accordingly, our summary of the facts will focus primarily on the evidence relating to that reserve.

Main is an Illinois corporation organized under the Illinois Insuranee Code (Ill. Rev. Stat. 1983, ch. 73, par. 613 et seq.) to insure property and casualty risks, with insurance policies issued in several States including Illinois, Wisconsin, Florida, Michigan, Georgia, and Alabama. In January 1977 the Director of the Department of Insurance filed a complaint in the circuit court of Cook County seeking the rehabilitation of Main, pursuant to section 188 of the Illinois Insurance Code (Ill. Rev. Stat. 1977, ch. 73, par. 800). Main consented to being placed in statutory rehabilitation and on January 19, 1977, Judge Donald J. O’Brien appointed the Director as the rehabilitator of Main. The order directed him to:

«*** jmmediately take possession of the property, business and offices of [Main] *** and take such action as the nature of the cause and the interests of the policyholders, creditors, stockholders or the public may require subject to further orders of this Court.”

In February 1978 William Allen, a certified public accountant, was hired as a special consultant to the Department. Allen testified that he had previously served for one year as Main’s comptroller and for two years as its treasurer and executive vice-president, finally leaving the company in 1972. He had been primarily responsible for preparing Main’s financial statements. It has also been his job to review the adequacy of Main’s claims reserve and to review procedures for establishing reserves on new claims. Allen was asked to take the position with the Department by Main’s president, William Reib.

It was Allen’s task to determine the financial condition of Main in rehabilitation. He found that the last audited statement for the company was as of December 31, 1974, and the last quarterly statement was dated December 31, 1976. Thus he first had to reconstruct Main’s financial records by working backwards to source documents, attempting to find the general ledgers of the company along with supporting registers and other documents. He then prepared work papers in the nature of a financial statement for Main as of July 31, 1978, using Main's figures except for errors found in the course of his reconstruction of the records.

In all subsequent financial statements Allen also carried forward Main’s figures until the accuracy of those figures was proved or disproved. He prepared subsequent statements for Main as of September 30, 1978, and September 30, 1979. After resolving several financial issues not at issue in this appeal, the remaining matter to be resolved was the adequacy of Main’s claims reserve. At Allen’s direction Tony Mesin and other personnel from the Department's Bureau of Liquidation inventoried all of Main’s claims files to determine what the proper reserve should be. After performing this review in October and November of 1979 Mesin calculated the necessary reserve to be $3.2 million. This figure, if accurate, would have established Main’s insolvency, as Main had set its own reserve at $1.4 million.

Allen met with Department personnel, telling them he believed Mesin’s figures were probably too high but Main’s were probably too low. It was then determined that there should be an independent audit of the claims files. Kevin Martin, a partner in the Chicago law firm of Wildman, Harrold, Allen, and Dixon, was chosen because he was acceptable to the Department and to Main’s president, William Reib.

Martin testified that prior to becoming an attorney he had worked for over two years as an insurance company claims adjuster, conducting investigations and negotiating claims. He had also spent two years as an insurance company supervisor. One of his duties in that position was to make estimates of reserves on individual cases. In his legal career Martin had handled thousands of personal injury cases. Since 1973 he and his firm had represented Main in most of its personal injury litigation. In 1975 he assumed primary responsibility for representing Main.

In December 1979, when Martin began his independent review of Main’s consumer claims files, he started with a representative group of 86 files selected by Allen. Fifty of the files involved claims reserves previously estimated to be over $3,000 and the other 36 had reserves estimated to be under $3,000. Martin was given about $325,000 with instructions to attempt to settle these claims in order to determine if the estimates were accurate. After settling a substantial portion of the claims he found that he was generally successful in settling the claims over $3,000 for amounts under the estimated reserves but that for those under $3,000 there was a substantial discrepancy: the previous estimates were too low. On balance he found that the reserves previously set were higher than his estimates and higher than what he actually paid out. However, upon a review of these results, and also based upon an independent clerical review, William Allen projected that Main’s total reserve was understated by $1 million. Because Main disputed this projection Martin was instructed to review all of Main’s claims files and to prepare his own claims reserves for them.

Martin testified that these files contained such matters as notices of loss, investigators’ reports, photographs, correspondence from attorneys, depositions, transcripts, evaluations of the case and evaluations of witnesses. In determining a reserve amount for each file he took into consideration the fact that nobody had received payment in four years, so that a discounted offer would probably be accepted. Thus in working with the original 86 cases he had discounted the amounts of any consent judgments by 10%. This had worked so well that he increased that discount to 25%. The average time Martin spent on each of the approximately 500 files he reviewed was one hour. He testified that his estimates were recorded by his secretary at his direction as he reviewed each file. These figures were placed by her in working papers admitted into evidence as plaintiff’s exhibit No. 3 with the express consent of Main’s attorney (but only as to Martin’s estimates, not the estimates of Main and Tony Mesin which were also recorded in that exhibit). Martin testified that his estimates as recorded in that exhibit corresponded to estimates attributed to him in another listing of file by file estimates which was admitted into evidence, over Main’s objections, as plaintiff’s exhibit No. 2. This latter document, which also listed the estimates of Mesin and Main, was prepared by a Main employee. Martin testified that the estimates attributed to him did constitute his opinion of what was the lowest reasonable reserve for Main on each file.

Kevin Martin completed his review, as reflected in exhibit No. 2, around Easter of 1980. According to William Allen exhibit No. 2 included all but about 40 of Main’s claims files. By June of 1980 those missing files had been located and half of them were reviewed by Martin. For the remaining files, except those that were settled by the Department, Allen relied on Main’s estimates. Martin had never total-led his file by files estimates. Utilizing Martin's estimates in exhibit No. 2 Allen prepared a clerical reconciliation of the figures and a work paper summarizing Martin’s figures. Those documents were admitted into evidence, over Main’s objections, as plaintiff’s exhibits Nos. 8 and 10. Allen then prepared an unaudited financial statement for Main as of June 30, 1980, in order to finally determine whether Main was solvent. The statement was admitted into evidence, over Main’s objections, as plaintiff’s exhibit No. 1. Included in that statement was a calculation of Main’s claims reserve, based primarily on Kevin Martin’s calculations. This final reserve figure was $1,837,539.36 and resulted in a determination, contained in exhibit No. 1, that Main was insolvent with a deficit surplus of $1,095,497. In his testimony Allen stated that exhibit No. 1 did reflect Main’s financial condition as of June 30, 1980. In oral argument before this court Main has indicated that it disputes only the claims reserve figure in that document. Also admitted into evidence over Main’s objection was plaintiff’s exhibit No. 9, a schedule Allen prepared to show the significant differences between Main’s September 30, 1979, financial statement and the June 30, 1980, statement. This latter financial statement (plaintiff’s exhibit No. 1) was also attached to the Department’s complaint for liquidation.

We first consider Main’s contention that the documents relating to Main’s claims reserve, which as we have noted were admitted over Main’s objections, were improperly admitted. The Department of Insurance contends that the documents were properly admitted as business records under Supreme Court Rule 236 (87 Ill. 2d R. 236), which provides:

“(a) Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of the act, transaction, occurrence, or event, if made in the regular course of any business, and if it was the regular course of the business, to make such a memorandum or record at the time of such an act, transaction, occurrence, or event or within a reasonable time thereafter. All other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but shall not affect its admissibility. The term ‘business,’ as used in this rule, includes business, profession, occupation, and calling of every kind.
(b) This rule does not apply to the introduction into evidence of medical records or police accident reports.”

The rule by its terms is liberal with respect to what may constitute a business (see In re Estate of Severson (1982), 107 Ill. App. 3d 634, 437 N.E.2d 430), and Main has not contended on appeal that these documents were not prepared in the normal course of the business of the Director of the Department of Insurance acting as rehabilitator. Under the pertinent provisions of the Illinois Insurance Code when Main voluntarily submitted to rehabilitation it became the duty of the Director, as rehabilitator, to conduct the business of the company. (Ill. Rev. Stat. 1981, ch. 73, par. 804(1).) It was pursuant to this authority that the evaluation of the claims reserve was made by Kevin Martin and that William Allen prepared the other contested documents.

What Main does contend is that these documents were not prepared at the time of the transaction at issue or within a reasonable time thereafter, as required by Rule 236. (87 Ill. 2d R. 236; A.J. Davinroy Plumbing & Heating v. Finis P. Ernest, Inc. (1980), 87 Ill. App. 3d 1047, 409 N.E.2d 372.) The one document to which Main specifically directs this objection on appeal is plaintiffs’ exhibit No. 2, which contained Kevin Martin’s claim reserve computations for each file. Main appears to object to the other documents on this ground only to the extent they also contained the same computations. Main contends that these entries were made by Martin well after the “event” occurred, apparently referring to the time at which the particular claims arose. It is true that Martin’s work, performed in early 1980, involved a review of files relating to claims arising years earlier, but Martin was computing current estimates of what those claims could be settled for. Martin testified that as he reviewed each file and computed a claim reserve figure that figure was recorded by his secretary at his direction. Therefore we find that the reserve figures reflected in the documents at issue were prepared contemporaneously with the transaction involved, Kevin Martin’s computation of the current amount each claim could be settled for.

Main also contends that the entries constituted opinions and as such were not admissible as business entries. The only support offered by Main for this proposition is a partial quotation from Cleary and Graham who, in commenting on Rule 236 state in part that “[e]n-tries, it has been said, must be factual in character and not consist of ‘opinions’ or ‘conclusions.’ ” (E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 803.10, at 441 (3d ed. 1979).) But a more complete quotation is more enlightening:

“Entries, it has been said, must be factual in character and not consist of ‘opinions’ or ‘conclusions.’ See Wright v. Upson, 303 Ill. 120, 135 N.E. 209 (1922), which seems to insist upon this requirement to an unwarranted extreme in the case of hospital records, discussed specifically in sec. 803.11 infra. This is contrary to the Federal Rule of Evidence 803(6), 65 F.R.D. 131, 155 (1975), and to the trend of authority generally. McCormick, Evidence sec. 307 (Cleary ed. 1972).”

To the extent that Wright has any continuing validity it must be noted that it concerned hospital records, which are specifically excluded by Rule 236. Main has cited no cases decided under Rule 236 or under the prior Federal statute on which Rule 236 was based (28 U.S.C.A. sec. 1732 (1966), amended 1975 to eliminate this codification, which is now covered by Fed. R. Evid. 803(6)), in which business records were excluded because they contained opinions. However we would note that courts in a number of cases relying on our rule or the Federal statute have admitted business records containing opinion, although the issue of their status as opinion was not specifically addressed. (DePinto v. Provident Security Life Insurance Co. (9th Cir. 1967), 374 F.2d 37, cert, denied (1967), 389 U.S. 822, 19 L. Ed. 2d 74, 88 S. Ct. 48, applying the old Federal statute to permit a report of an examination of the affairs of an insurance company made by an Arizona Insurance Department examiner; Bradley v. Booz, Allen & Hamilton, Inc. (1978), 67 Ill. App. 3d 156, 384 N.E.2d 746, finding admissible under Rule 236 the impressions of an interviewer concerning consumer survey interviews; Newark Electronics Corp. v. City of Chicago (1970), 130 Ill. App. 2d 1021, 264 N.E.2d 868, admitting under Rule 236 a compilation of computations of damages from a flood.) In our view the rule does not exclude business entries because they contain opinion; rather that fact constitutes one of the “other circumstances” which do not bar an entry but may affect the weight attached to it.

Main also contends the opinion testimony of Kevin Martin and William Allen concerning the accuracy of Martin’s claims reserve figures was improperly admitted because of a lack of a sufficient factual foundation. This contention is without merit, as we have already determined that the claims reserve figures themselves were properly admitted as business records. Furthermore, although Main notes that none of the underlying files were admitted into evidence, they were all available for Main’s use at trial. The trial court informed Main’s attorneys that they could utilize any file they wished in an effort to impeach Martin’s methodology or accuracy in arriving at his figures. The record establishes that counsel for Main did utilize a number of those files in such an attempt. Under these circumstances, where the underlying records, involving some 500 files, were so voluminous as to render their separate admission into evidence extremely cumbersome and time-consuming, and where the records were available at trial for use in cross-examination, we find no error in the admission of the opinion testimony at issue. See 612 North Michigan Avenue Building Corp. v. Factsystem, Inc. (1977), 54 Ill. App. 3d 749, 370 N.E.2d 236; Murray v. Kleen Leen, Inc. (1976), 41 Ill. App. 3d 436, 354 N.E.2d 415.

We would also note that Kevin Martin’s opinion was based on his firsthand observation of data in the claims files. As an expert on the evaluation of claims (a status which is apparently not disputed and which our summary of his experience amply supports), he would be permitted to express his opinion based on his observations even assuming the absence of a sufficient factual basis in the record itself. Skalon v. Manning, Maxwell & Moore, Inc. (1970), 127 Ill. App. 2d 145, 262 N.E.2d 146; E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 703.1 (3d ed. 1979).

Because we have concluded on the bases just discussed that the trial court did not err in admitting the challenged documentary and testimonial evidence, we need not reach the Department’s other arguments for admission of this evidence. We would only note that the trial court’s determination that Main was insolvent was also supported by documentary evidence introduced by Main. In an apparent effort to establish that the Department had produced widely varying estimates of Main’s financial condition, Main introduced defendants’ exhibits Nos. 5 and 6, financial statements for Main prepared by the Department as of September 30, 1979 and May 31, 1980. The claims valuation figures utilized in those documents, if substituted for the figure contained in exhibit No. 1, which the Department relied on, would still establish that Main was insolvent.

Main contends that the use of this evidence must be restricted to the impeaching purpose for which Main apparently intended it. But the cases relied on for this proposition by Main all involve instances where that limited purpose was explicitly stated at trial. (Mitchell v. Henderson (1978), 65 Ill. App. 3d 363, 382 N.E.2d 650; Munyon v. Wilson (1944), 322 Ill. App. 680, 54 N.E.2d 609.) Main did not attempt to limit the trial court’s consideration of this evidence; it sought no ruling from the court on such a limitation and made no representation to the court of any limited purpose. Under these circumstances Main waived any objection to the use of these documents as general evidence. (Eizerman v. Behn (1956), 9 Ill. App. 2d 263, 132 N.E.2d 788.) Because no such restriction was placed on the use of the evidence, it became general evidence and Main, as the party offering it, cannot now contend that the documents were not evidence of the facts stated in them. (Dill v. Widman (1952), 413 Ill. 448, 109 N.E.2d 765; Wilkinson v. Mullen (1975), 27 Ill. App. 3d 804, 327 N.E.2d 433.) Thus it is apparent that even without consideration of the evidence objected to by Main, but considering instead the evidence preferred by Main in conjunction with that portion of the financial statement of June 30, 1980, conceded by Main to be valid, the trial court was justified in declaring Main to be insolvent.

The judgment of the trial court is affirmed.

Affirmed.

LINN, P.J., and JOHNSON, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE RIZZI

license: Public Domain

text:
    DONALD TUTTLE, Plaintiff-Appellant, v. FRUEHAUF DIVISION OF FRUEHAUF CORPORATION, Defendant-Appellee.
    First District (3rd Division)
    No. 82—933
    Opinion filed March 21, 1984.

      William J. Harte, Ltd., and Schey, Goffen & Associates, P.C., both of Chicago (William J. Harte and Robert Schey, of counsel), for appellant.
    James A. Fletcher, Bruce D. Becker, and Clay A. Tillack, all of Isham, Lincoln & Beal, of Chicago, for appellee.
   PRESIDING JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff, Donald Tuttle, sought damages for personal injuries which occurred on July 11, 1974, when he lost control of the tractor-trailer truck that he was driving, and the vehicle went off the road and collided with a fixed object. Judgment was entered on a jury verdict in favor of defendant, Fruehauf Division of Fruehauf Corporation, the company that had repaired the trailer approximately two months before the accident. Plaintiff appeals the judgment in favor of defendant and the denial of his post-trial motion on the grounds that (1) he was entitled to a new trial on the basis of newly discovered evidence which met the exaggerated and false testimony of one of defendant’s expert witnesses, (2) the court erred in allowing testimony by one of defendant’s witnesses that was beyond the scope of the witness’ expertise, (3) the court abused its discretion in preventing him from referring to admissions in defendant’s third-party complaint, (4) the court erred in refusing his tendered Illinois Pattern Jury Instruction regarding a party’s failure to produce physical evidence in its control, and (5) the court erred in not granting his motions for a mistrial and in not giving cautionary instructions when defendant attempted to have a police report admitted into evidence and attempted to elicit testimony regarding an unrelated injury to plaintiff. We affirm.

The evidence at trial revealed that in May 1974, approximately two months before plaintiff’s accident, defendant installed riser blocks on the trailer plaintiff was operating at the time of the accident. Two mechanics employed by defendant in 1974 testified that they did not remember doing the installation on this particular trailer, but that they installed riser blocks in accordance with the instructions of their foreman, John Jarosz. Their instructions were to tighten the u-bolts with an air wrench, then hit the u-bolts with a hammer and listen for a bell-like sound which indicates that the bolts are tight enough. Neither mechanic had seen any written specifications or instructions for installing riser blocks.

Plaintiff testified that in May 1974, he looked at the repair work on the trailer and saw a riser block that did not have a weld on its end and looked like it was made out of spring leaves, a type he had never seen before. On July 11, 1974, after driving the trailer with the newly installed riser blocks approximately 10,000 miles, plaintiff was in fourteenth gear, going 40 to 45 miles per hour, heading downgrade into a bend on a two-lane road in Ohio with which he was familiar. He heard a noise, then felt a drag and a sudden pull to the right. The truck left the highway, went down in a ditch and hit a utility pole.

Plaintiff’s expert witness, Lester Kolom, an industrial engineer, testified that it is desirable that components such as riser blocks be made in one piece to avoid the separation and shift of the four pieces of a leaf spring. In addition, Kolom stated that most riser block manufacturers provide specifications for installing riser blocks with u-bolts, including a narrow range for tightening the u-bolts that hold the riser blocks. According to Kolom, if the u-bolt is too loose, it loosens more and drops off. Kolom testified that torque specifications can be met with an air wrench, but an air wrench has to be used carefully so that it will not apply too much torque with resultant failure. Kolom believed that a torque wrench should be used whenever u-bolts are installed on an assembly trailer to insured the u-bolts are tightened to the proper torque, and that without a torque wrench, even an experienced mechanic cannot really tell whether the bolt is properly tightened. Further, based on his reconstruction of the accident, Kolom concluded that the accident was caused by the failure of the riser block or u-bolt under the rear axle of the trailer on the right-hand side. Kolom also testified that a crack in the leaf of the spring in the right front wheel of the tractor would have little effect on the operation of the tractor-trailer unless the vehicle was driven over an extreme drop-off or pothole.

John Jarosz, who in 1974 supervised defendant’s shop where the trailer had been repaired, testified that riser blocks were installed according to his instructions. He told the mechanics to tighten the u-bolts with an air wrench up to its limit and then check them by tapping the u-bolts with a hammer. Torque wrenches were sometimes used to check the tightness. In May 1974, u-bolts were to be tightened to 340-350 foot-pounds, according to documents supplied by defendant, including a torque chart which was posted in the shop. The air wrenches at the shop were set for 350 to 365.

Officer Cecil Gibson, who investigated plaintiff’s accident for the Seneca County, Ohio, sheriff’s department, testified that he found no skid marks on the pavement and no evidence of the vehicle sliding off the road. The impressions left in the earth revealed that the wheels of the truck traveled in a fairly straight line from the time the truck left the roadway. Herbert Witt, a damage appraiser, testified that he inspected the tractor-trailer involved in the accident and found some old damage, including a broken leaf on the right spring on the tractor, and some recent damage. Witt testified that a truck with a broken leaf on the spring on the right-hand side of the front axle would pull to the right. He also testified that if riser blocks or u-bolts failed on the right rear of the trailer, rubber marks would be found on the sub-frame and none were found here. According to Witt, good mechanical practice does not require that a torque wrench be used to tighten u-bolts; pinging the metal is as accurate as using a torque wrench. If a u-bolt were not tightened according to specifications, it might come off or it might not. If it were too tight, it might strip a thread. Further, if a u-bolt with specifications of 340 to 360 torque were tightened to 320, there would be no problem. The torque could be 50 to 100 foot-pounds off and still be safe.

Finally, Milton Tennerstedt, a mechanical engineer, testified in response to a hypothetical question that, based on a series of calculations he had made, the riser blocks would not slide. Tennerstedt testified in detail regarding his calculations. He determined that 140 foot-pounds on each nut of each u-bolt represents the point where they are just in balance and will not loosen and fall off. According to Tennerstedt, the point where the nut will come loose under certain vibration conditions is very low, 10, 20, or 50 foot-pounds. Further, Tennerstedt testified that with torque specifications of 340 to 360, 360 represents the value above which one begins to run some small risk of breaking the fastener, and 340 does not represent the minimum, for even under worst-case conditions, 140 foot-pounds is sufficient.

The jury returned a verdict in favor of defendant. At a hearing on his post-trial motion, plaintiff presented the testimony of design engineer Lee Rose, who stated that 140 foot-pounds and 10, 20, or 50 foot-pounds are totally inadequate torque levels under real-world driving conditions where vibration levels are extremely high. The court found that Rose’s testimony merely established a difference of opinion between experts and did not establish that Tennerstedt’s testimony was false. The court struck Rose’s testimony and denied plaintiff’s post-trial motion.

Plaintiff first contends that he was denied a fair trial as a result of Tennerstedt’s testimony. Plaintiff maintains that he was surprised by Tennerstedt’s testimony and that the testimony was exaggerated and false as demonstrated by new evidence which plaintiff discovered after trial and presented to the court during the hearing on plaintiff’s post-trial motion. Thus, plaintiff argues that the court should have granted him a new trial. We disagree.

The basic requirements for a new trial on the basis of newly discovered evidence are that the newly discovered evidence be (1) of such conclusive character that it will probably change the result if a new trial is granted, (2) discovered since the trial, (3) such that it could not have been discovered before trial with the exercise of due diligence, (4) material to the issue and (5) not merely cumulative to the evidence at trial. (Raster v. Wildermuth (1969), 108 Ill. App. 2d 288, 291-92, 247 N.E.2d 431, 433.) The party seeking the new trial has the burden of showing that these requirements have been met. (See Runowicz v. Rock Island Bank & Trust Co. (1967), 90 Ill. App. 2d 222, 227, 232 N.E.2d 459, 462.) The giving of false testimony in and of itself is not a sufficient basis for granting a new trial (Kaster v. Wildermuth (1969), 108 Ill. App. 2d 288, 293, 247 N.E.2d 431, 434), nor is the fact that the party was surprised at trial by testimony regarding a material fact which could not be foreseen (see Darrough v. White Motor Co. (1979), 74 Ill. App. 3d 560, 562, 393 N.E.2d 122, 124).

In this case, Tennerstedt testified that riser blocks such as those on the trailer here would not slide under the worst-case circumstances described in a hypothetical question. Tennerstedt also testified that the torque specifications of 340 to 360 do not represent minimum-maximum levels. According to Tennerstedt, 140 foot-pounds of torque is sufficient, and under certain vibration conditions, nuts would only come loose with very low torques of 10, 20 or 50 foot-pounds. Plaintiff neither expressed surprise at Tennerstedt’s testimony, nor requested a continuance or delay in order to obtain additional evidence. During the hearing on his post-trial motion, plaintiff presented the testimony of design engineer Rose, who stated that 340 to 360 foot-pounds is a specification range outside of which there are no allowable limits, and that Tennerstedt’s figures of 140, 10, 20 or 50 foot-pounds are totally inadequate torque levels under real-world driving conditions where vibration levels are extremely high.

We agree with the court’s determination that Rose’s testimony merely established a difference of opinion between experts. We find nothing which suggests that Tennerstedt’s testimony was false, and we believe that plaintiff failed to establish that it was false. As for Rose’s testimony, we believe that plaintiff failed to establish that it could not have been discovered before trial with the exercise of due diligence. Prior to trial, plaintiff deposed Tennerstedt and examined his working papers. If Tennerstedt’s testimony was such a surprise to plaintiff and was so different from what plaintiff had already learned from him, plaintiff should have requested a continuance in order to obtain rebuttal evidence. However, plaintiff did not express surprise or request a continuance. Rather, he cross-examined Tennerstedt with reference to an article which Tennerstedt had given him. Under the circumstances, we believe plaintiff failed to establish that Tennerstedt’s testimony was such that, although duly diligent, plaintiff could not have discovered evidence with which to rebut it, specifically, Rose's testimony, until after the trial. In addition, considering the conclusions of Witt, which were similar to those of Tennerstedt, and the contradictory trial testimony of plaintiff’s expert, Kolom, it is not clear that Rose’s testimony was so conclusive that it would probably change the result upon retrial. Thus, we conclude that plaintiff was not denied a fair trial and that the court did not abuse its discretion in denying plaintiff's motion for a new trial.

Next, plaintiff argues that the court erred in allowing Witt to give opinion testimony which was beyond the scope of his expertise. Witt, a professional damage appraiser with experience driving and repairing trucks, testified that if a tractor had a broken leaf on a spring on the right-hand side of the front axle, it would pull to the right. Plaintiff maintains that with this testimony Witt effectively gave his opinion as to the cause of plaintiff’s accident, something which only an accident reconstruction specialist is qualified to give. We disagree.

Whether a witness is competent to give an expert opinion is a question of fact for the trial court, and the court’s determination will be disturbed only upon a clear showing of an abuse of discretion. (See Penrod v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1979), 68 Ill. App. 3d 75, 79, 385 N.E.2d 376, 380.) A witness may be qualified as an expert on the basis of knowledge obtained from study or experience or a combination of both. (See Nowakowski v. Hoppe Tire Co. (1976), 39 Ill. App. 3d 155, 163, 349 N.E.2d 578, 585-86.) The test is whether the witness exhibits sufficient knowledge of the subject matter to entitle his opinion to go to the jury. (Murphy v. Hook (1974), 21 Ill. App. 3d 1006, 1011, 316 N.E.2d 146, 151.) Here, Witt neither gave his opinion of the cause of the accident nor attempted to recreate the events of the accident. Thus, it was not necessary that he qualify as an accident reconstruction expert. (See Finfrock v. Eaton Asphalt Co. (1976), 41 Ill. App. 3d 1020, 1022-23, 355 N.E.2d 214, 217.) Witt simply testified, on the basis of his considerable experience driving trucks with broken spring leaves on their front axles, about the effect of a broken spring leaf on a truck’s operation. We believe that the court properly concluded that Witt’s experience gave him knowledge not shared by the average juror, which was sufficient to permit this testimony. We also believe that defendant’s suggestion in closing argument that the broken spring leaf caused the accident constituted a permissible inference from Witt’s testimony and from some of the other evidence in the case.

Plaintiff next contends that the court erred in preventing him from referring to admissions in defendant’s third-party complaint. In its third-party complaint against Temme Standard Corporation and other third-party defendants, defendant alleged, inter alia, that Temme carelessly and negligently supplied defendant with defective parts, including riser blocks and springs which defendant used in repairing the trailer plaintiff was operating. Defendant also alleged that if injury or damage was suffered by plaintiff as a result of any defect in the riser blocks or springs, it was because Temme failed to supply safe and suitable riser blocks or springs. As third-party plaintiff, defendant prayed that if judgment be entered against it and in favor of plaintiff, judgment be entered in that amount against Temme and the other third-party defendants.

Plaintiff recognizes that Illinois law authorizes alternative pleading (see Ill. Rev. Stat. 1981, ch. 110, par. 2 — 613(b)), and therefore does not allow alternative, unverified pleadings to be used as admissions against the pleader. (See Schusler v. Fletcher (1966), 74 Ill. App. 2d 249, 256, 219 N.E.2d 588, 592.) However, plaintiff argues that since the allegations in defendant’s third-party complaint were not phrased hypothetically or in the alternative, they should have been viewed as admissions to which plaintiff could refer. We disagree.

Essentially, defendant’s third-party complaint is an action for indemnification. In the complaint, defendant specifically requests relief contingent upon the outcome of plaintiff's action against defendant. We believe that “[a] party wishing to make alternative or contingent claims should not be placed in the perilous situation of either foregoing one claim or having one claim used against another as an admission.” (Slocum v. Ford Motor Co. (1981), Ill Mich. App. 127, 134, 314 N.W.2d 546, 549; see Continental Insurance Co. v. Sherman (5th Cir. 1971), 439 F.2d 1294, 1298-99.) Moreover, we do not believe there is some magic in labeling inconsistent pleadings “alternative” or “hypothetical” which invokes the principle underlying the alternative pleading rule. (See Slate Printing Co. v. Metro Envelope Co. (N.D. Ill. 1982), 532 F. Supp. 431, 436.) Thus, we believe that regardless of the phrasing of the factual allegations in defendant’s third-party complaint, the complaint is an alternative, unverified pleading, and the allegations in the complaint are not admissions which may be used against defendant in the original action. Furthermore, contrary to plaintiff’s assertion, the allegation in defendant’s third-party complaint which has the most significance with regard to the original action is stated hypothetically. As third-party plaintiff, defendant alleged that “[i]f the riser blocks or springs were defective, as alleged by the plaintiff, then it was because said riser blocks or springs were defective when sold by Temme to Fruehauf.” As phrased, the allegation plainly does not admit anything. (See Koenig v. 399 Corp. (1968), 97 Ill. App. 2d 345, 349-50, 240 N.E.2d 164, 165-66.) We therefore conclude that the court properly prevented plaintiff from referring to defendant’s third-party complaint and to the allegations contained therein.

Next, plaintiff argues that the court erred in refusing his tendered jury instruction (Illinois Pattern Jury Instruction (IPI), Civil, No. 5.01 (2d ed. 1971)), which allows the jury to draw an adverse inference from a party’s failure, without reasonable excuse, to produce evidence in that party’s control and not equally available to the other party. Plaintiff maintains that the instruction was warranted by defendant’s failure to provide plaintiff with certain photographs taken by Witt which included Witt’s notation of a measurement, and defendant’s failure to produce the air wrenches which were used in the installation and assembly of the riser block/u-bolt on the trailer plaintiff was operating. Plaintiff contends that he was prejudiced by the failure to give IPI Civil No. 5.01 because this was a close case on the question of liability, and that he was entitled to have the jury instructed that they could infer that the photos, notation and air wrenches, if produced, would have been adverse to defendant. We disagree.

Whether or not to give IPI Civil No. 5.01 is a decision within the sound discretion of the court and is subject to reversal only when a clear abuse of discretion appears of record. (See Hicks v. Hendricks (1975), 33 Ill. App. 486, 493, 342 N.E.2d 144, 149.) The instruction is only warranted when some foundation evidence is presented on each of the four following elements: (1) the evidence was under the control of the party and could have been produced with the exercise of due diligence, (2) the evidence was not equally available to the adverse party, (3) a reasonably prudent person under the same or similar circumstances would have produced the evidence if he believed it would have been favorable to him and (4) there was no reasonable excuse for the failure to produce the evidence. (See Wetherell v. Matson (1977), 52 Ill. App. 3d 314, 318, 367 N.E.2d 472, 475.) In addition, the instruction is not warranted when the evidence which has not been produced is merely cumulative of the facts already established. See Hicks v. Hendricks (1975), 33 Ill. App. 3d 486, 493, 342 N.E.2d 144, 150.

The record here does not reveal an abuse of discretion in the refusal of IPI Civil No. 5.01. While the photos and the air wrenches were most likely under the control of defendant, we do not believe there was sufficient showing that they were not equally available to plaintiff. In addition, considering the testimony regarding the photos and the wrenches, it is not clear that a reasonably prudent person would have produced the photos or the air wrenches if he believed they would have been favorable to him. Further, we believe that the additional demonstrative evidence of Witt’s measurement and photos, as well as the air wrenches themselves, would only have been cumulative, adding nothing to the facts already established through testimony. (See Pope v. St. John’s Hospital (1970), 128 Ill. App. 2d 325, 329, 262 N.E.2d 369, 372.) Moreover, even if IPI Civil No. 5.01 should have been given, the failure to give the instruction alone would not constitute reversible error in this case. See Hicks v. Hendricks (1975), 33 111. App. 3d 486, 492-93, 342 N.E.2d 144, 149.

Finally, plaintiff complains of the court’s response to what plaintiff maintains were errors at trial. Specifically, plaintiff argues that after defendant attempted to have a police report admitted into evidence and after defendant attempted to elicit testimony from plaintiff’s physician regarding an unrelated injury, the court should have granted plaintiff’s motions for a mistrial or given the cautionary instructions which plaintiff requested. We believe that plaintiffs argument lacks merit.

The decision whether or not to grant a mistrial rests within the sound discretion of the court based on the particular circumstances of the case, and the court’s ruling will not be disturbed on review absent a clear abuse of discretion. (Benuska v. Dahl (1980), 87 Ill. App. 3d 911, 913, 410 N.E.2d 249, 251.) A mistrial should be declared only when there is an occurrence of such character and magnitude as to deprive a party of a fair trial, and the moving party demonstrates actual prejudice as a result. (See Benuska v. Dahl (1980), 87 Ill. App. 3d 911, 913, 410 N.E.2d 249, 251.) Although the mere attempt to introduce a police report may be considered reversible error (Jacobs v. Holley (1972), 3 Ill. App. 3d 762, 763, 279 N.E.2d 186, 187), under the circumstances here, we do not believe that defendant’s attempt was an occurrence of sufficient magnitude to require the declaration of a mistrial. Here, when the police report was offered, Officer Gibson had already testified at length during cross-examination by plaintiff regarding the contents of the report, and he had even read from the report. Nevertheless, plaintiff maintains that he was prejudiced because it appeared to the jury that by not allowing the police report into evidence he was trying to hide something from the jury. However, when defendant attempted to have the report admitted, the jury only heard plaintiff’s counsel ask to be heard When proceedings resumed in the presence of the jury, defense counsel questioned the witness about the diagram which was part of the police report, and the diagram was admitted into evidence. Under the circumstances, we do not believe that the jury would have concluded that plaintiff was trying to hide something in the police report. Thus, we conclude that the court did not abuse its discretion in denying plaintiff’s motion for a mistrial.

As to the court’s refusal to give a cautionary instruction regarding the police report, the decision whether or not to give a cautionary instruction is within the sound discretion of the court, and the court’s decision will not be disturbed on review unless the record reveals a clear abuse of discretion. (See Donk Brothers Coal & Coke Co. v. Thil (1907), 228 Ill. 233, 244, 81 N.E. 857, 861.) The record here reveals no abuse of discretion in the refusal to give a cautionary instruction. Under the circumstances, the court may well have concluded that plaintiff was unaffected by the attempt to have the police report admitted and a cautionary instruction was therefore unnecessary. The court might also have determined that a cautionary instruction would merely confuse the jurors especially since they had already heard much of the information contained in the police report when Gibson testified. Thus, we conclude that the court did not abuse its discretion in refusing to give a cautionary instruction regarding defendant’s attempt to have the police report admitted into evidence.

As to plaintiff’s contentions regarding the questioning of plaintiff’s doctor, since the questioning related solely to the issue of damages, an issue the jury did not reach because it found for defendant on the issue of liability, we believe that the error, if any, was harmless. See Guenther v. Hawthorn Mellody, Inc. (1975), 27 Ill. App. 3d 214, 219, 326 N.E.2d 533, 537.

We conclude that the errors alleged by plaintiff, whether considered individually or cumulatively, do not support the granting of a new trial. Accordingly, the judgment of the trial court is affirmed.

Affirmed.

McNAMARA and WHITE, JJ., concur.


author: JUSTICE STAMOS

text:
    CONCORD INDUSTRIES, INC., Plaintiff-Appellant, v. HARVEL INDUSTRIES CORPORATION, Defendant-Appellee.
    First District (2nd Division)
    No. 83—128
    Opinion filed March 20, 1984.

      Deutsch, Levy & Engel, Chartered, of Chicago (David C. Kemerer, of counsel), for appellant.
    Kwiatt & Silverman, Ltd., of Chicago (Scott E. Tuckman, of counsel), for appellee.
   JUSTICE STAMOS

delivered the opinion of the court:

This suit arises from the sale by plaintiff Concord Industries, Inc. (Concord) of a plastic drinking straw manufacturing business to defendant Harvel Industries Corporation (Harvel) pursuant to a written agreement. Concord appeals from a pretrial ruling of the circuit court denying its motion for leave to file certain amended pleadings. Jurisdiction is premised on Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)).

The written agreement from which this action arises was executed on December 14, 1979, and provided for the sale of Concord’s plastic drinking straw, stirrer and sipper manufacturing business to Harvel for $700,000. The contract required Harvel to supply all of Concord’s requirements for the products manufactured by the business, such products to be sold to Concord at Harvel’s most favored customer rate. Concord agreed to lease factory space to Harvel for five months at an agreed monthly rate in order to allow Harvel to prepare its own facilities for the purchased machinery. Utility expenses were to be allocated on a pro rata basis. Concord also agreed not to compete with Harvel in the plastic straw, stirrer and sipper business for a period of three years.

In the period following the sale, during which Harvel leased plant space from Concord, Harvel requested janitorial and secretarial services, insurance and other goods and services from Concord. Concord provided these goods and services, although they were not called for under the contract. Concord has not been compensated for this activity.

After the sale was completed, Harvel failed to meet Concord’s requirements for the manufactured products and Concord filed suit seeking recovery on several grounds. Count I of Concord’s amended complaint was brought on an account stated theory Counts II and IV were brought in breach of contract and count III sought recovery based upon unjust enrichment. Counts V and VI, alleging tortious breach of the duty of good faith, sought compensatory and punitive damages respectively for Harvel’s failure to supply Concord’s requirements as required under the contract. Counts VII and VIII sought compensatory and punitive damages for tortious interference with contractual relations arising from Concord’s inability to meet its obligations to its reserved customers as a result of Harvel’s failure to supply Concord’s requirements.

Harvel moved to strike and dismiss counts III, V, VI, VII and VIII of the amended complaint and the trial court dismissed these counts after a hearing on August 30,1982.

On September 29, 1982, Concord filed a motion to vacate the order of August 30, to the extent necessary to grant Concord leave to file its proposed amended count III, seeking recovery in quantum meruit for the value of the goods and services provided to Harvel during the period of Harvel’s lease of the factory space; its proposed amended count V, alleging fraud in inducing Concord to sell its manufacturing operation; and its proposed amended count VI, seeking damages under the Uniform Commercial Code for Harvel’s failure to supply Concord’s requirements.

After a hearing on Concord’s motion to vacate, the trial court held that proposed amended Count III was barred as a matter of law due to the existence of an express contract between the parties, and that proposed amended count V was barred due to the existence of a remedy in breach of contract. The trial court granted leave to file a second amended complaint incorporating proposed amended count VI only. Concord appeals from the denial of leave to file its proposed amended counts III and V.

Concord first contends that the trial court erred in holding that its proposed quantum meruit count was barred as a matter of law due to the existence of an express contract between the parties.

“Quantum meruit” is an expression defining the nature and extent of the liability imposed by a contract implied by law. This liability is predicated on the reasonable value of services performed. (Edens View Realty & Investment, Inc. v. Heritage Enterprises, Inc. (1980), 87 Ill. App. 3d 480, 486, 408 N.E.2d 1069.) Generally, no quasi-contractual claims can arise when an express contract exists between the parties concerning the same subject matter upon which the quasi-contractual claim rests. Industrial Lift Truck Service Corp. v. Mitsubishi International Corp. (1982), 104 Ill. App. 3d 357, 360, 432 N.E.2d 999.

In the instant case, Concord seeks recovery in quantum meruit for the value of the goods and services provided to Harvel during Harvel’s lease of Concord’s plant. Harvel argues that, under Industrial Lift Truck, Concord’s claim is barred by the existence of the express contract between the parties. Concord contends, however, that it provided the goods and services to Harvel independent of the written agreement and that therefore quantum meruit recovery is not barred by the existence of that agreement. The trial court found Industrial Lift Truck to be dispositive. We find the facts in Industrial Lift Truck to be distinguishable from those of the instant case.

In Industrial Lift Truck, the plaintiff had a comprehensive dealership contract to retail the defendant’s trucks in the United States. The terms of the contract permitted the defendant to unilaterally terminate the relationship at any time, and precluded amendment of the contract without the defendant’s express consent. The plaintiff, on its own initiative, began modifying the trucks so as to increase their marketability in the United States. The defendant subsequently terminated the relationship, and the plaintiff sought recovery in quantum meruit for the value of its modifications. The plaintiff’s claim was dismissed by the trial court with prejudice.

On appeal, the court found that compensation for the plaintiff’s modifications was governed by the contract, even in the absence of express language to that effect. The court found that the plaintiff had undertaken the modifications at its own risk for the purposes of increasing its profits, but had not sought to amend the contract to provide compensation for these modifications. Therefore, the court reasoned, the plaintiff could not claim that the defendant had been unjustly enriched by the modifications.

The modifications made by the plaintiff in Industrial Lift Truck, though not expressly covered by the contract, were voluntarily undertaken by the plaintiff with knowledge of the defendant’s right to terminate the contract at any time under terms defining the entire relationship of the parties regarding the general subject matter of the contract and precluding amendment of the contract terms without the defendant’s express consent. This is not the situation in the instant case, where Concord provided the goods and services to Harvel at Harvel’s request with the expectation that Concord would be fully compensated and with little possibility that Concord’s position under the contract would be enhanced. It is therefore clear that quantum meruit recovery is not barred by the terms of the parties’ written agreement in the instant case.

It appears that the trial court based its decision additionally upon its interpretation of Concord’s proposed amended count III as alleging the existence of an express oral contract for the provision of the goods and services in question. The trial court held that, because count III alleged elements of an express oral contract, recovery in quantum meruit should be barred. We find this holding to be error.

It is clear that in Illinois a plaintiff can alternatively plead inconsistent bases of recovery where there is uncertainty as to which allegation is true. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 613(b); see Business Development Services, Inc. v. Field Container Corp. (1981), 96 Ill. App. 3d 834, 843-44, 422 N.E.2d 86.) Therefore, it is permissible for Concord to alternatively seek recovery under an express contract and in quantum meruit. (See Neville v. Davinroy (1976), 41 Ill. App. 3d 706, 710, 355 N.E.2d 86.) At this stage of the proceedings, it is impossible to make a factual determination as to the existence of an express oral contract which would preclude Concord from recovering in quantum meruit. Concord’s proposed quantum meruit count properly alleges the elements required for recovery (see O’Neil & Santa Claus, Ltd. v. Xtra Value Imports, Inc. (1977), 51 Ill. App. 3d 11, 15, 365 N.E.2d 316), and the trial court could not have determined from the pleadings alone that an express oral contract existed which would bar the recovery sought by Concord in its quantum meruit count. We therefore find that the trial court erred in denying Concord leave to file its proposed amended count III.

Concord next contends that the trial court erred in denying it leave to file its proposed amended count V seeking recovery in fraud in the inducement. The proposed pleadings alleged that, in order to induce Concord to enter into the written contract, Harvel agreed to supply Concord with its requirements for certain products manufactured by the plant, with the intent not to perform. The trial court denied leave to file this count, stating that it was barred due to the existence of a remedy in breach of contract.

It is the general rule in Illinois that a promise of future conduct made without intention to perform is not a misrepresentation. (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 334, 371 N.E.2d 634.) However, “there is a recognized exception where the false promise or representation of future conduct is alleged to be the scheme employed to accomplish the fraud.” (69 Ill. 2d 320, 334.) Where a party makes a promise of performance, not intending to keep the promise but intending for another party to rely on it, and where that other party relies upon it to his detriment, the false promise will be considered an intended scheme to defraud the victim and will be actionable. Vance Pearson, Inc. v. Alexander (1980), 86 Ill. App. 3d 1105, 1112, 408 N.E.2d 782; see Polelle, An Illinois Choice: Fossil Law or an Action for Promissory Fraud? 32 DePaul L. Rev. 565 (1983).

Concord desires leave to file an amended complaint seeking recovery for fraud in the inducement. It is clear that the pleading of such a cause of action is permissible in fllinois. The existence of a remedy in breach of contract does not bar a party from seeking recovery for fraud in the inducement. (See Vance Pearson, Inc. v. Alexander (1980), 86 Ill. App. 3d 1105, 408 N.E.2d 782.) We therefore find that the trial court also erred in denying Concord leave to file its proposed fraud in the inducement count.

The decision of the circuit court is reversed and the cause is remanded.

Reversed and remanded.

HARTMAN, P.J., and DOWNING, J., concur.


author: JUSTICE DOWNING

text:
    EDGAR H. COOPER et al., Plaintiffs-Appellants, v. UNITED DEVELOPMENT COMPANY et al., Defendants-Appellees (River Oaks West Development Company et al., Defendants).
    First District (2nd Division)
    No. 83—727
    Opinion filed March 20, 1984.

      Donald A. Shapiro and Ardwin E. Boyer, both of LeVine, Wittenberg, Eisner, Newman and Silverman, of Chicago, for appellants.
    Fred E. Schulz and Ann W. Regan, both of Wildman, Harrold, Allen & Dixon, of Chicago, for appellees.
   JUSTICE DOWNING

delivered the opinion of the court:

In this action for breach of an implied warranty of habitability, plaintiffs, a class consisting of original unit owners of The Park of River Oaks, appeal from the trial court’s entry of two orders that: (1) dismissed their complaint with prejudice since it was barred by the applicable statute of limitations; (2) allegedly denied them leave to amend said complaint; (3) dismissed, for jurisdictional reasons, their motion to quash an allegedly void order; and (4) denied, for lack of diligence and a meritorious claim, their section 72 petition for relief from judgment. (Ill. Rev. Stat. 1979, ch. 110, par. 72.) A summary of the pertinent procedural matters follows.

On January 26, 1982, plaintiffs instituted a class action seeking to recover damages for an alleged breach of an implied warranty of habitability. The named defendants were: United Development Company (United), the agent-developer for the condominium project; Inland-Robbins Construction, Inc. (Inland), the general contractor; Westinghouse Electric Company (Westinghouse), the subcontractor; and River Oaks West Development Company (River Oaks), the beneficial owner of the property. On March 30, 1982, United and Inland filed a motion to dismiss which was premised on plaintiffs’ failure to state a cause of action, as well as their failure to file suit within the limitation period provided for in section 15 of the Limitations Act (111. Rev. Stat. 1979, ch. 83, par. 16). An agreed order was entered on May 14, 1982, setting July 8, 1982, as the hearing date for defendants’ motion to dismiss.

Following presentation of plaintiffs’ motion on July 8, 1982, for a continuance, the trial court entered an order reciting that defendants’ motion would be “taken under advisement until Wednesday, July 14, 1982 ***. Ruling on said motion to be given after said date.” Thereupon, plaintiffs were given until 9 a.m. on July 14, 1982, to submit law in opposition to the motion to dismiss. A memorandum was filed by plaintiffs on July 14, 1982, in response to defendants’ motion; however, the actual time of filing was not recorded on this document.

On July 20, 1982, pursuant to United and Inland’s motion to dismiss, as well as an analogous motion previously filed by Westinghouse, the trial court entered an order dismissing plaintiffs’ complaint with prejudice for the reason that it was “barred on its face by the applicable statute of limitations.” It was further ordered that the cause remain pending “against any and all remaining defendants,” i.e., River Oaks. In the record filed with this court is the aforesaid signed order which contains the name of the attorney for United. The attorney for the plaintiffs was not present when the order was entered. Counsel for defendants, after becoming aware on or before July 27, 1982, that such a dispositive order had been entered, did not advise plaintiffs’ counsel of this critical fact until August 31, 1982. The record also contains a three-page, hand-written memo signed by the trial court explaining its reason for the order. This memo does not contain any date of filing and was never furnished to counsel for plaintiffs.

At a progress call held on July 27, 1982, before the Honorable Alan Morrill, an order was entered dismissing the instant cause for want of prosecution. Plaintiffs thereafter filed a motion to vacate Judge Morrill’s order; however, this motion was withdrawn after plaintiffs’ counsel became aware on August 31, 1982, of the entry of the July 20 dismissal order. Copies of this order of dismissal were received by plaintiffs’ counsel on September 7, 1982.

On December 9, 1982, plaintiffs filed their petition for section 72 relief along with a motion to quash the July 20 order as void. These motions claimed, essentially, that the trial court entered the dismissal order as to United and Inland without having provided plaintiffs with proper notice. However, an order was subsequently entered on February 16, 1983, which dismissed, for lack of jurisdiction, plaintiffs' motion to quash; this order also denied, for lack of diligence and a meritorious claim, their section 72 petition for relief from judgment. It is the propriety of this order which plaintiffs now contest on appeal. Westinghouse has not been joined as an appellee in this matter.

I

Initially, plaintiffs argue that the trial court erroneously dismissed, for want of jurisdiction, their motion to quash the dismissal order entered on July 20, 1982. Specifically, the trial court ruled that it could not entertain this motion since it was filed more than 30 days after the entry of the dismissal order. Plaintiffs now contend that such order was void and, therefore, subject to challenge at any time. We disagree.

Without question, a void judgment may be attacked and vacated at any time. (Fox v. Department of Revenue (1966), 34 Ill. 2d 358, 361, 215 N.E.2d 271; Federal Sign & Signal Corp. v. Czubak (1978), 57 Ill. App. 3d 176, 178, 372 N.E.2d 965.) Such a judgment or order is characterized as void where the court lacks jurisdiction of the parties or subject matter, or lacks the inherent power to enter the contested order. (Horzely v. Horzely (1979), 71 Ill. App. 3d 542, 545, 390 N.E.2d 28.) However, an alleged failure to notify a defendant of the entry of a default judgment will not render such judgment void. (American Consulting Association, Inc. v. Spencer (1981), 100 Ill. App. 3d 917, 920, 427 N.E.2d 579, cert, denied (1982), 458 U.S. 1112, 73 L. Ed. 2d 1375, 102 S. Ct. 3495.) Likewise, an “alleged failure to notify plaintiff that [a] dismissal order had been entered did not make the order void.” Watts v. Medusa Portland Cement Co. (1971), 132 Ill. App. 2d 227, 230, 268 N.E.2d 721, appeal denied (1971), 47 Ill. 2d 592.

The two cases relied upon by plaintiffs in support of their argument for retention of jurisdiction to review the order are, in fact, in-apposite. In re Franklin (1976), 42 Ill. App. 3d 129, 355 N.E.2d 570, was concerned solely with an order of probation and commitment which was held void since the trial court, having failed to adjudicate a minor as a ward of the court, did not have jurisdiction to enter the dispositional order. Lowy v. Filosa (1974), 18 Ill. App. 3d 123, 309 N.E.2d 356, dealt with section 72 petitions for relief from void consent decrees, rather than post-judgment motions to quash an allegedly void dismissal order.

Since, in accordance with Illinois decisional law, the instant dismissal order cannot be characterized as void, the trial court was without jurisdiction to review it after the expiration of 30 days. (Board of Managers v. Beringer (1981), 94 Ill. App. 3d 442, 446, 418 N.E.2d 1099; Lurie Co. v. Teichner (1978), 63 Ill. App. 3d 950, 951-52, 380 N.E.2d 959.) Thereafter, plaintiffs’ sole source of relief from the order of dismissal was to proceed under section 72 of the Illinois Civil Practice Act. Halleck v. Trumfio (1980), 85 Ill. App. 3d 1051, 1053, 407 N.E.2d 867; Lurie Co. v. Teichner (1978), 63 Ill. App. 3d 950, 951-52.

It is averred that plaintiffs received no documentation of the July 20 dismissal order until September 7, 1982. Nonetheless, the fact remains that their motion to quash this order was not filed until Decernber 9, 1982, well after the 30-day review period had expired. Consequently, the trial court correctly ruled that it lacked jurisdiction to consider the post-trial motion to quash tendered by plaintiffs.

II

The next issue for resolution focuses on the propriety of the lower court’s denial of plaintiffs’ petition for section 72 relief. This denial was predicated on the court’s conclusion that the requisite elements of due diligence and a meritorious claim were not satisfied.

Section 72 of the Illinois Civil Practice Act, now known as section 2 — 1401 of the Illinois Code of Civil Procedure, provides a comprehensive statutory procedure for obtaining relief from final orders, judgments and decrees after the expiration of 30 days from the entry thereof. (Davis v. Chicago Transit Authority (1980), 82 Ill. App. 3d 987, 989, 403 N.E.2d 615.) The purpose of a section 72 petition is to bring to the court’s attention “matters of fact not appearing in the record, which, if known to the court at the time the judgment was rendered, would have prevented its rendition.” Peoples Gas Light & Coke Co. v. Rubin (1980), 89 Ill. App. 3d 244, 246, 411 N.E.2d 886.

To warrant relief under section 72, a petitioner must demonstrate: (1) a meritorious defense or claim; (2) due diligence in presenting this defense or claim in the original action; (3) the trial court’s misapprehension of the facts or a valid defense, through no fault or negligence of petitioner, at the time judgment was entered; and (4) due diligence in filing the petition for section 72 relief. (American Consulting Association, Inc. v. Spencer (1981), 100 Ill. App. 3d 917, 921; Canton v. Chorbajian (1980), 88 Ill. App. 3d 1015, 1021, 410 N.E.2d 1166, appeal denied (1981), 82 Ill. 2d 583.) “In addition, the petitioner must set forth specific factual allegations supporting each of the above elements [citation], and must prove his right to the relief sought by a preponderance of the evidence.” Stallworth v. Thomas (1980), 83 Ill. App. 3d 747, 751, 404 N.E.2d 554.

Plaintiffs’ section 72 petition alleged that notice of the order of dismissal was not received until over a month after its entry. “Fundamental fairness requires that notice of *** a dismissal be given a party of record.” (Carlstedt v. Kaufmann (1970), 119 Ill. App. 2d 322, 327, 256 N.E.2d 146.) The initial question to examine is whether plaintiffs, under the circumstances presented to the trial court, were entitled to use a section 72 proceeding. The answer is “yes.”

The gist of plaintiffs’ complaint is that notice of the court’s order was not received until more than 30 days after its entry. Plaintiffs claim they had no notice of the filing of the trial court’s unstamped memorandum or the entry of the July 20 order. There is nothing in the record to dispute those allegations. Under such circumstances, a trial court should desire and hasten to entertain a section 72 petition to investigate the allegations. Trial courts have been urged to document the reasons for their actions in the record. The trial court’s memorandum in this case clearly and correctly sets forth the court’s reasons. However, in doing so, a procedure should be followed so that the record is clear that all parties know of, and have the equal opportunity to simultaneously receive a copy of, the court’s memorandum. Final disposition orders should only be entered after due notice has been served upon all parties. Had this procedure been followed in the instant case, plaintiffs could not have rightfully complained about lack of proper notice. Trial courts must carefully ascertain that all counsel of record receive notice of the court’s disposition, memoranda or orders so that the due process rights of all parties are not violated.

The record indicates the July 20 order was drafted by an attorney for United. We attempted to determine at oral argument before this court exactly when United’s trial attorney obtained knowledge of the court’s memorandum and the entry of the July 20 order, and why copies of such documents were not immediately forwarded to counsel for plaintiffs. Unfortunately, the trial attorney was not available in court and United’s appellate counsel could not provide this information. Yet, these are facts the trial court should have been interested in and could have ascertained before disposing of the section 72 petition.

Once opposing counsel became aware on or before July 27, 1982, that such a dispositive order had been entered, they were clothed with the professional responsibility to not only promptly inform their opponents of the order and its content, but also to promptly send plaintiffs’ counsel a copy of the order and to provide an affidavit or other support confirming that such copy was, in fact, sent. See Sanchez v. Phillips (1977), 46 Ill. App. 3d 430, 433, 361 N.E.2d 36, appeal denied (1977), 66 Ill. 2d 628.

However, in light of plaintiffs’ procrastinative conduct in this matter, we are left with no other choice than to affirm the denial of plaintiffs’ section 72 petition.

It “is well established that a litigant has to follow the progress of his case [citation], and inadvertent failure to do so is not a ground for relief [citation].” (Stallworht v. Thomas (1980), 83 Ill. App. 3d 747, 751.) Section 72 does not afford a remedy to relieve a litigant of the consequences of his lawyer’s negligence. (American Consulting Association, Inc. v. Spencer (1981), 100 Ill. App. 3d 917, 922.) The following periods of delay in filing section 72 petitions have been regarded by Illinois courts as constituting such a lack of due diligence as to justify denial of the requested post-judgment relief: Westphall v. Trailers, Campers, Campgrounds, Inc. (1979), 76 Ill. App. 3d 205, 392 N.E.2d 741, appeal denied (1979), 79 Ill. 2d 624 (delay of approximately two months); Department of Public Works & Buildings v. O’Hare International Bank (1976), 44 Ill. App. 3d 934, 358 N.E.2d 1308 (delay of slightly more than three months).

Regarding the instant matter, plaintiffs’ petition was not filed in the law division of the circuit court of Cook County until December 9, 1982, well over three months after they admittedly became aware of the entry of the dismissal order. In fact, plaintiffs concede that they were not precluded from filing their petition at an earlier date, and that they could have discovered the existence of the July 20 order sooner had they inquired of either the trial court or defendants.

In essence, the totality of facts evidence in the case at bar attest to a lack of due diligence on the part of plaintiffs in filing their petition for section 72 relief. Plaintiffs argue that a meritorious claim was stated by focusing the court’s attention on the fact of its “glaring oversight” in considering Mowatt v. City of Chicago (1920), 292 Ill. 578, 127 N.E. 176, to be dispositive of the motion to dismiss their complaint. In Mowatt, the supreme court held that where an action is brought upon a mere implied understanding, the five-year statute of limitation applied. (Mowatt v. City of Chicago (1920), 292 Ill. 578, 582.) This argument lacks merit since the essence of a section 72 petition “is addressed to errors of fact, not law.” In re Charles S. (1980), 83 Ill. App. 3d 515, 517, 404 N.E.2d 435, appeal denied (1980), 81 Ill. 2d 594.

The disposition of a section 72 petition rests within the sound discretion of the trial court. (Tatosian v. Graudins (1980), 86 Ill. App. 3d 661, 664, 408 N.E.2d 231.) Since plaintiffs did not prove their right to the relief sought by a preponderance of the evidence, we find no abuse of discretion here which would otherwise necessitate reversal of the trial court’s decision not to vacate its order of dismissal.

Ill

Plaintiffs’ next claim or error concerns the trial court’s dismissal of their complaint with prejudice on the grounds that it was barred on its face by the applicable statute of limitations. Specifically, plaintiffs assert that an action for breach of an implied warranty of habitability is governed by the 10-year period of limitations for actions on written contracts. (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 206.) Defendants, on the other hand, maintain that such a suit is governed by the five-year period of limitations for actions on oral contracts or for property damage. Ill. Rev. Stat. 1981, ch. 110, par. 13 — 205.

In Altevogt v. Brinkoetter (1981), 85 Ill. 2d 44, 421 N.E .2d 182, our supreme court was confronted with the identical issue. Although it was acknowledged that this question has not received a uniform answer in the courts of other States, the Altevogt court held that “[i]t need not be resolved here, however, for the plaintiffs agree in their brief that the case should be governed by the five-year period.” (85 Ill. 2d 44, 49.) Therefore, we shall resolve this interesting question of law which, heretofore, has not received an expository answer in Illinois.

The implied warranty of habitability is a judicial innovation which evolved, as a matter of public policy, to protect purchasers of new houses upon discovery of latent defects in their homes. (Redarowicz v. Ohlendorf (1982), 92 Ill. 2d 171, 183, 441 N.E.2d 324.) This implied warranty existing between builder-vendors and purchasers has been extended so as to also exist between developer-vendors and condominium purchasers. Herlihy v. Dunbar Builders Corp. (1980), 92 Ill. App. 3d 310, 315, 415 N.E.2d 1224; Tassan v. United Development Co. (1980), 88 Ill. App. 3d 581, 587, 410 N.E.2d 902, appeal denied (1981), 82 Ill. 2d 588.

Our supreme court has consistently held that the warranty of habitability does not arise as a result of the execution of a deed; rather, it exists independently as an undertaking collateral to the covenant to convey. (Petersen v. Hubschman Construction Co. (1979), 76 Ill. 2d 31, 41, 389 N.E.2d 1154; Redarowicz v. Ohlendorf (1982), 92 Ill. 2d 171, 183.) As long ago as 1892, it was judicially determined that an action on an implied undertaking, arising by virtue of a written agreement, constitutes an action on an unwritten contract and, consequently, must be brought within the five-year limitation period. (Knight v. St. Louis, Iron Mountain & Southern Ry. Co. (1892), 141 Ill. 110, 115, 30 N.E. 543.) As a result, Illinois courts have applied the 10-year limitation period “only when a cause of action is upon a contract in writing or upon other evidences of indebtedness in writing.” (Emphasis added.) Bates v. Bates Machine Co. (1907), 230 Ill. 619, 622, 82 N.E. 911; see also Ames v. Crown Life Insurance Co. (1980), 85 Ill. App. 3d 203, 207, 406 N.E .2d 222.

In the recent Illinois decision of Briarcliffe West Townhouse Oumers Association v. Wiseman Construction Co. (1983), 118 Ill. App. 3d 163, 172, 454 N.E.2d 363, it was held that a townhouse owner’s association had standing to bring an action against a developer because the suit was filed within “[t]he five-year statute of limitations applicable to an implied warranty of habitability.” (Emphasis added.) Thus, contrary to plaintiffs’ claim here, a review of Illinois decisional law did not mandate application by the lower court of the 10-year limitation period governing actions on written contracts.

In filing their class action for breach of an implied warranty of habitability, plaintiffs sought judgment in a sum sufficient to compensate them for the damages they allegedly sustained. They did not seek enforcement of any specific provisions of their written contracts for sale; rather, their suit was premised upon an alleged breach of defendants’ implied undertaking collateral to the covenant to convey. It is our opinion, therefore, that the trial court properly dismissed plaintiffs’ complaint on the grounds that it was barred by the five-year limitation period governing actions on implied contracts. We find direct support for our conclusion in the recent decision of Lato v. Concord Homes, Inc. (Mo. App. 1983), 659 S.W.2d 593. In Lato, the Missouri Court of Appeals held that a breach of implied warranty of habitability claim was governed by the five-year limitation period applicable to actions based upon breach of incidental or implied terms of a contract, as opposed to the 10-year limitation period applicable to actions based upon written contracts. 659 S.W.2d 593, 594.

IV

The final issue for consideration concerns the propriety of an alleged denial of plaintiffs’ requests on July 8, 1982, and December 9, 1982, for leave to file their first amended complaint.

A

Regarding the averred denial of the July 8 request, the only evidence in the record of the trial court’s reasons in support thereof is an undated memorandum written by the court in connection with the motion filed by Westinghouse to dismiss plaintiffs’ complaint. The last sentence of section I of this memorandum recites that: “[T]he court will not entertain a motion to amend w/o a tender of the amended complaint.”

We regard this particular ruling to be correct. A trial court’s refusal to grant leave to amend cannot constitute an abuse of discretion where no amendment is presented with the motion, and where no specific indication is given to the court as to the contents of the proposed amendatory document. Botti v. Avenue Bank & Trust Co. (1982), 103 Ill. App. 3d 1052, 1055, 432 N.E.2d 295, appeal denied (1982), 91 Ill. 2d 558.

B

Pertaining to the alleged denial of the December 9 request, the transcript of record for the hearing held on that date does not indicate a disallowance of leave to amend; rather, the only reference to this proposed amendatory pleading is a comment made by the trial court that: “The first amended complaint, of course, is something that would have to be decided even beyond that point [February 15, 1983].” There is no further indication of any activity, much less consideration, of the amended complaint until August 19, 1983 — the date on which it was filed with the clerk of the circuit court of Cook County. This occurred over five months after plaintiffs filed the notice of appeal.

It is uncontroverted that every appellant has the duty of presenting to a reviewing court the entire record of trial proceedings so that an informed review of the issues can be made. (Marshall E. Winokur, Ltd. v. Shane (1980), 89 Ill. App. 3d 551, 552, 411 N.E.2d 1142; In re Estate of McGaughey (1978), 60 Ill. App. 3d 150, 155, 376 N.E.2d 259.) Since error is never presumed by a court of review (Flynn v. Vancil (1968), 41 Ill. 2d 236, 241, 242 N.E.2d 237), any doubt arising from the incompleteness of the record must be resolved against the appellant (In re Marriage of Macaluso (1982), 110 Ill. App. 3d 838, 846, 443 N.E.2d 1).

Regarding the case at bar, plaintiffs have failed to provide this court with a single reference to the record evincing both the averred denial of leave to amend, as well as the facts upon which it was premised. We are therefore required to assume that such facts were sufficient to support the alleged disallowance. In re Estate of Rice (1982), 108 Ill. App. 3d 751, 762, 439 N.E.2d 1264; In re Estate of McGaughey (1978), 60 Ill. App. 3d 150, 155.

For the reasons set out herein, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

HARTMAN, P.J., and PERLIN, J., concur.

      The Park of River Oaks is a residential condominium development located in Calumet City, Illinois.

      Now codified as section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-1401).

      Now known as section 13 — 205 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 13-205).

      Although this order was also stamped July 21, 1982, the parties all indicate July 20, 1982, as the actual date of entry. Thus, since a circuit court half-sheet has not been incorporated into the instant record, we will hereinafter regard the dismissal order as having been entered on July 20,1982.

      Formerly known as section 16 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 17).

      Formerly known as section 15 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 16).

      Mo. Rev. Stat. sec. 516.120 (1978).

      Mo. Rev. Stat. sec. 516.110 (1978).


author: PRESIDING JUSTICE MEJDA

text:
      In re ESTATE OF CLARENCE SHEDRICK, Deceased (Katie Bailey, Ex’r of the Estate of Clarence Shedrick, Petitioner-Appellant, v. Ernest M. Isby, Respondent-Appellee).
    First District (5th Division)
    No. 82—3067
    Opinion filed March 16, 1984.

      Roberta Boarman, of Harth, Stroger, Boarman, Williams & Blue, of Chicago, for appellant.
    Johnson & Armel, of Chicago, for appellee.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

Katie Bailey, executor of the estate of Clarence Shedrick, appeals from an order declaring valid a quit-claim deed from Shedrick to Ernest M. Isby. She raises the following issues: (1) whether the deed was properly delivered and accepted; (2) whether the grantee’s redelivery of the executed, unrecorded duplicate original deed to the executor affected the passing of title; (3) whether the court erred in finding that no fiduciary relationship existed between Shedrick and Isby and that there was no evidence of overreaching. For the reasons which follow, we affirm the judgment of the trial court.

The evidence in this case was heard by the trial court sitting without a jury. Following is a brief summary of the facts pertinent to our disposition.

Ernest Isby was the nephew, by marriage, of Clarence Shedrick. Isby lived with his aunt and Shedrick at various times during his childhood and, at the time of Shedrick’s death, had resided in his home for almost two years. At Shedrick’s request Isby managed his business affairs — collecting rents, depositing checks and paying bills— from April 1981 until Shedrick’s death. Some of the checks payable to Shedrick were deposited in Shedrick’s account, some were deposited by Isby in his own account. Isby routinely endorsed checks payable to Shedrick by signing Shedrick’s name and also signed Shedrick’s name on checks written on his behalf. Isby wrote checks on both his own and Shedrick’s accounts in payment of Shedrick’s bills.

Shedrick and Isby first discussed Isby’s purchase of the property owned by Shedrick located at 2420 West Warren Boulevard, Chicago, in September 1980 and established a purchase price in January 1981.

On August 10, 1981, Isby was informed of Shedrick’s imminent death. The next day he conferred with Shedrick’s attorney regarding the purchase of the property and learned that title to the property could be transferred by quit-claim deed. On August 12 Isby purchased two quit-claim deed forms and filled in the names of the parties, address of the property to be conveyed, sales price and consideration paid. That day Shedrick and Isby executed duplicate original deeds before a notary public who then completed the certificate of acknowledgment. Isby gave Shedrick a check for $500, which check Isby later deposited in Shedrick’s account. Isby testified that he and Shedrick agreed that Isby would pay the remainder of the purchase price in monthly installments of $405 each. Shedrick died two days later on August 14,1981.

On September 22, 1981, Isby gave one of the duplicate original deeds to the executor’s brother to give to the executor and retained possession of the other. The executor testified that her brother told her that Isby stated that he would like “first choice” if she ever wanted to sell the property. Isby testified that he gave the deed to the executor so that she could have it examined by Shedrick’s attorney and thus determine its validity.

In the succeeding months Isby continued to manage the subject property as he had before Shedrick’s death, with the permission of the executor, but made no attempt to collect rent on his own behalf. In October, Isby mailed a check for payment of real estate taxes on the property but stopped payment on the check when the executor stated that she was taking control of the property. Isby paid no bills related to the property nor did he tender payment of any of the remainder of the purchase price called for in the deed. Isby recorded the duplicate original deed in January 1982 but made no other claim of ownership from the time of execution of the deeds until the filing of the instant suit.

On December 3, 1981, the executor filed an inventory of Shedrick’s assets valuing the subject property at $15,000. Thereafter, in March 1982, Isby filed a claim against the estate alleging ownership of the property by virtue of the quit-claim deed. Isby testified at trial that he considered the deed executed August 12, 1981, valid as to Shedrick and himself, but thought that it was not considered valid by governmental authorities until it was recorded.

On Isby’s motion for a directed finding the trial court, by order entered December 9, 1982, held that the August 12, 1981, quit-claim deed was a valid deed of conveyance. The court found that although there was a close relationship between Shedrick and Isby, there was no breach of a fiduciary relationship or evidence of overreaching. The court ordered that (1) Isby is entitled to immediate possession of the property; (2) Isby is entitled to all rentals since August 12, 1981, offset by expenses and by the monthly installment payment to the estate; and (3) Isby shall pay the balance of the purchase price to the estate in monthly installments of $405 each. The executor appeals.

Opinion

The first issue raised is whether the deed was properly delivered and accepted. Before addressing this issue we must, however, consider whether the existence of a completed certificate of acknowledgment obviates the requirements of delivery and acceptance. See Newton v. Village of Glen Ellyn (1940), 374 Ill. 50, 27 N.E.2d 821.

A certificate of acknowledgment is evidence of the proper execution of an instrument by the persons named therein (Shadden v. Zimmerlee (1948), 401 Ill. 118, 81 N.E.2d 477; Curtis v. Curtis (1947), 398 Ill. 442, 75 N.E .2d 881; People ex rel. Cohen v. Barrett (1953), 349 Ill. App. 236, 110 N.E.2d 452) and permits the offering of a deed into evidence without further showing as to its genuineness (Zilvitis v. Szczudlo (1951), 409 Ill. 252, 99 N.E.2d 124). Although courts will presume that deeds duly acknowledged and recorded have been delivered and accepted, this presumption is rebuttable, not conclusive. (Stanforth v. Bailey (1931), 344 Ill. 38, 175 N.E. 784; Talty v. Schoenholz (1926), 323 Ill. 232, 154 N.E. 139.) Thus, the existence of an acknowledgment does not obviate the requirements that a deed be delivered and accepted to render it operative to pass title. It is proper, therefore, to consider the parties’ contentions in this regard.

The executor contends that Isby failed to accept the conveyance of the subject property during Shedrick’s lifetime and argues that there was, therefore, no valid conveyance. Isby asserts that his acceptance and possession of the duplicate executed deeds satisfies the requirement of acceptance.

“To render a deed operative to pass title there must be not only a delivery of the deed by the grantor but also an acceptance thereof by the grantee. The acceptance of the conveyance by the grantee is as essential to the passing of the title as the delivery by the grantor, and where the acceptance is not proved and the facts do not justify the presumption of law that the grantee has accepted, the title does not pass.” (Newton v. Village of Glen Ellyn (1940), 374 Ill. 50, 53, 27 N.E.2d 821; Gallagher v. Girote (1961), 23 Ill. 2d 170, 174, 177 N.E.2d 103; Tatty v. Schoenholz.) “Generally, where a deed imposes an obligation upon or creates any liability against a grantee an acceptance cannot rest upon a mere presumption but must be of an affirmative character.” (Seibert v. Seibert (1942), 379 Ill. 470, 478, 41 N.E.2d 544.) The mere fact of possession of a deed by a grantee is not necessarily an acceptance thereof. (Seibert.) The acceptance of a deed must take place before the death of the grantor. Redmond v. Gillis (1931), 346 Ill. 223, 231, 178 N.E. 504.

In the instant case Isby testified that he discussed the purchase of the property with Shedrick and agreed upon a purchase price months in advance of the execution of the deeds herein. The evidence shows that Isby obtained the quit-claim deed forms and inserted the necessary information. He and Shedrick each signed the deeds before a notary public who completed the acknowledgement therein and certified that the signers “personally known to me to be the same persons whose names are subscribed to the foregoing instrument appeared before me this day in person, and acknowledged that they signed, sealed and delivered the said instrument as a free and voluntary act, for the uses and purposes therein set forth ***.” These facts strongly indicate Isby’s acceptance of the conveyance. Furthermore, it is significant, we believe, that Isby himself signed and acknowledged the deed as grantee although his signature was not necessary to pass title. His signing cannot be construed as other than his acceptance of the conveyance. Once the conveyance is accepted and title has passed, subsequent acts by the grantee will not negate such acceptance. Thus, Isby’s failure to assert ownership of the property and his statement that he would like to purchase the property do not demonstrate nonacceptance of the conveyance but, rather, merely show his confusion regarding the legal effect of the deed.

Implicit in the trial court’s judgment in the instant case was a finding that Isby had accepted the conveyance. This court will not disturb the findings of a trial court and substitute its own opinion unless the holding is manifestly against the weight of the evidence. (Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 154, 407 N.E.2d 43; City of Evanston v. Ridgeview House, Inc. (1976), 64 Ill. 2d 40, 57-58, 349 N.E.2d 399.) The evidence presented herein supports the finding of the trial court and such finding, therefore, will not be disturbed.

The next issue raised is whether the grantee’s redelivery of the executed, unrecorded duplicate original deed to the executor affected the passing of title. The executor contends that Isby’s delivery to her of one of the executed duplicate original deeds vested equitable title in the grantor and is, therefore, an effective defense against Is-by’s claim to title. The general rule is that after title has been conveyed “delivery back by the grantee, to the grantor, of an unrecorded deed could not affect the legal title to the land, but such a delivery with the intention that the deed be destroyed for the purpose of re-vesting title in the grantor passes an equitable title.” (Crossman v. Keister (1906), 223 Ill. 69, 81, 79 N.E.2d 58.) In the instant case there was conflicting evidence as to the purpose for which Isby gave one of the unrecorded original deeds to the executor, but it is undisputed that he retained possession of the duplicate original deed, which deed he later recorded. The trial court implicitly found that the evidence does not show the requisite intention by Isby to divest himself of title. We are unable to say that the finding was against the manifest weight of the evidence. (See Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 226 N.E.2d 624.) Therefore, we conclude that the executor’s contention is without merit.

The third issue raised is whether the court erred in finding that no fiduciary relationship existed between Shedrick and Isby and that there was no evidence of overreaching or undue influence. The executor in substance contends that the court’s findings in this regard were contrary to the manifest weight of the evidence.

The executor first argues that the trial court erred in its finding that although a “close relationship” existed between Shedrick and Isby, there was no fiduciary relationship. Our supreme court has stated that a fiduciary relationship “involves the idea of trust and confidence and may be found to exist in any legal relationship where special confidence is imposed on one side and domination and influence is on the other.” (Dyblie v. Dyblie (1945), 389 Ill. 326, 333, 59 N.E.2d 657.) Proof of a fiduciary relationship must be “clear, convincing, and so strong, unequivocal, and unmistakable as to lead to but one conclusion.” Kolze v. Fordtran (1952), 412 Ill. 461, 468, 107 N.E.2d 686; Dyblie.

In the instant case the evidence showed that Isby endorsed and deposited Shedrick’s pension checks, collected the rents from Shedrick’s property and paid Shedrick’s bills. There was also testimony that Isby commingled Shedrick’s and his own funds in the performance of such ministerial tasks. While it could be inferred from the evidence that Shedrick imposed confidence in Isby, the evidence indicated no domination or influence of Shedrick on Isby’s part. The evidence supports the trial court’s finding that no fiduciary relationship was established and such finding, therefore, will not be disturbed. See Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 154, 407 N.E.2d 43.

The executor next contends that the facts and circumstances of the instant case show that Isby exercised undue influence in procuring Shedrick’s signature on the deed in question. The party attempting to set aside a deed normally has the burden of proof in showing that such deed was procured by fraud or undue influence. (Klass v. Hallas (1959), 16 Ill. 2d 161, 165, 157 N.E.2d 261.) The nature and extent of the undue influence to be proved must be “such influence *** as to dominate and control the will of the *** grantor and cause him to make a disposition of his property which he otherwise would not have made.” (Lord v. Reed (1912), 254 Ill. 350, 357, 98 N.E. 553; Kolze v. Fordtran (1952), 412 Ill. 461, 470, 107 N.E.2d 686.) However, where the existence of a fiduciary or confidential relationship is proved by the grantor, and where the grantee is the dominating party in the relationship, any transaction between them by which the grantee profits is presumed fraudulent. (Brown v. Commercial National Bank (1969), 42 Ill. 2d 365, 369, 247 N.E.2d 894, cert, denied (1969), 396 U.S. 961, 24 L. Ed. 2d 425, 90 S. Ct. 436.) In such a case the burden shifts to the grantee to show that the transaction was voluntary on the part of the grantor and was without undue or improper influence on his own part. (McFail v. Braden (1960), 19 Ill. 2d 108, 117, 166 N.E.2d 46.) As there was no fiduciary relationship in the instant case, the burden was on the executor to establish undue influence on Isby’s part.

The record herein shows that months before the execution of the deed Shedrick and Isby had agreed to Isby’s purchase of the property. The deed stated a consideration of $15,080 and there is no contention that this was an unfair price. Indeed, the inventory of Shedrick’s assets filed in the instant case valued the property at $15,000. After careful examination of the entire record in this cause we conclude that the executor failed to meet her burden of proof. The evidence of Isby’s conduct failed to prove that he overcame Shedrick’s will and, therefore, we are unable to say that the trial court erred in finding that there was no overreaching on Isby’s part.

For the foregoing reasons the judgment is affirmed.

Affirmed.

LORENZ and SULLIVAN, JJ., concur.