author: JUSTICE REINHARD

text:
    HELEN E. KINSEY, Plaintiff-Appellee, v. WILLIAM E. SCOTT, Defendant-Appellant.
    Second District
    No. 83—527
    Opinion filed May 22, 1984.

      Kenneth J. Click, of Ray & Click, Ltd., of Libertyville, for appellant.
    Ronald E. Griesheimer, of Griesheimer & Thompson, of Waukegan, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

The defendant, William E. Scott, appeals from a judgment in a bench trial awarding the plaintiff, Helen E. Kinsey, $11,800 in damages based upon defendant’s fraudulent misrepresentations in the sale of an apartment building to plaintiff. On appeal, the defendant raises four contentions of error: (1) that the evidence was insufficient to prove fraudulent misrepresentation; (2) that the five-year statute of limitations (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 205) barred the plaintiffs cause of action; (3) that the trial court erred by failing to strike the testimony of the plaintiffs real estate appraiser; and (4) that the court below erred in determining the amount of damages by failing to consider and deduct from the award of damages the rent the plaintiff received from a basement apartment.

The plaintiff filed a two-count complaint alleging that the parties entered into a written contract in 1973 for the purchase of a five-unit apartment building owned and built by defendant; that the building was originally constructed as a four-unit apartment building and subsequently modified by defendant to add a fifth unit without a building permit; that defendant represented that he owned a validly constructed five-unit apartment building and had no notice of any dwelling code violations, and suggested the actual rentals of all five units to induce plaintiff to enter the agreement; that plaintiff relied on these representations in signing the contract; and that plaintiff learned in 1981 that the fifth unit was constructed in violation of city ordinances. It appears that count I is based upon breach of contract for misrepresentations, and count II is based upon fraudulent misrepresentation and deceit.

At a bench trial the following evidence was adduced. On July 24, 1973, the plaintiff entered into an installment real estate contract with the defendant and his wife whereby the plaintiff agreed to purchase over a 20-year period an apartment building located at 924 Linden Street in Waukegan, Illinois. Originally, the property was a vacant lot, which the defendant purchased in 1968 with the intent to construct an apartment building on it. At the time he purchased the vacant lot, the defendant was aware that the property was zoned residential and would have to be rezoned in order to allow him to construct an apartment building on it. Therefore, he retained an attorney who prepared a formal application for rezoning in which it was represented to the city of Waukegan (city) that the defendant intended to construct a four-unit apartment building. After he canvassed his neighbors to receive approval of the immediate neighborhood to build a four-unit apartment building, the defendant took part with his attorney in formal hearings before the city concerning his application for rezoning to allow him to build a four-unit apartment building. The city rezoned the property and issued the defendant a building permit for the construction of four units. Defendant’s contractor then built the four-unit structure, into which the defendant moved in September 1968.

Approximately two months after occupying the building, the defendant himself, with the help of a nephew, began to make capital improvements in the basement without first having obtained a building permit. He continued making improvements in the basement, without obtaining any building permit, until November 1970, by which time he had created a fifth apartment in the basement. He rented the basement apartment for the first time the same month.

Before renting the apartment, however, the defendant testified that he contacted his neighbor, Abe Cohen, a building inspector for the city of Waukegan, about whether he needed a building permit. Cohen advised the defendant that he should have had a building permit, that it was too late to get one at that time, and that there was not much sense in getting one. However, Cohen did not actually tell the defendant that he “had a violation.” Defendant said Cohen also informed him that, in order to permit someone to live in the basement apartment, the defendant would have to construct a second escape door going up through one of the other apartments from the basement. Cohen did not inform the defendant that he needed a building permit to construct the exit door. The defendant constructed this exit without applying for or obtaining a building permit.

In March 1973, the defendant listed the property for sale with Best Realty. He gave the representative of the real estate company specific information to use in the listing agreement, which indicated that the apartment building contained five rental units and specified the monthly rent charged for each apartment. The plaintiff contacted Best Realty the following month, and the representative showed her the listing agreement. In April, the plaintiff visited the building in question and inspected all five apartments with the real estate salesperson, who informed the plaintiff that the income from the property was very good. The plaintiff also inspected the building a second time the following month.

On May 15, 1973, the plaintiff met with the defendant and his wife and the real estate agent. The defendant showed the plaintiff the income from all the apartments and also discussed the attendant expenses. According to the plaintiff, the defendant informed her that the building was very nice, that he built it himself, that she would not have any problems with it, and that she would have a good income. The plaintiff related that she asked the defendant whether there was anything wrong with the building, and he responded in the negative. She thought she asked the defendant whether the building complied with the city’s building codes. The plaintiff admitted that she never made an inquiry of the city regarding the zoning or condition of the apartment building. She signed the offer to purchase the same day. An agreement for deed was executed by the parties on July 24,1973.

The defendant admitted telling the plaintiff in May 1973 that the building was a good, fairly-new structure. However, he denied that the plaintiff asked him questions regarding the zoning of the building or whether the edifice conformed to the city’s building codes. He represented to the plaintiff that she would be able to rely upon the income from four units while she lived in the fifth apartment. He realized that the plaintiff would be able to afford the building only if the apartments produced sufficient rental income and that the sale might not have been consummated had she been aware she would lose rent from an apartment. In addition, the defendant did not tell the plaintiff that the work in the basement apartment was accomplished without a building permit or that the basement apartment was constructed without the city’s approval. Also, he did not inform the plaintiff that Mr. Cohen had indicated that maybe he should have obtained a building permit. According to the defendant, prior to selling the building, neither the city of Waukegan nor any person notified him of any building or zoning code violations.

The plaintiff rented the basement apartment from the time she purchased the building until August 28, 1981, when the city of Waukegan “red tagged” the particular apartment, claiming it was an uninhabitable residence. The zoning administrator of Waukegan, Kernel Parique, testified that this basement apartment was prohibited by the housing and health code because the code did not allow a basement apartment for the type of basement in this apartment, only storage space or a utility room. Mr. Parique stated that it was impossible or improbable to convert this basement apartment into a habitable place in conformity with the city’s codes. Additional testimony was presented that the building codes and zoning ordinances of the city of Waukegan are public records which are available to the general public; and that upon request, the city’s staff will assist members of the public in interpreting or reviewing the codes and ordinances. He testified that Abe Cohen, who was now deceased, was a building department manager in charge of issuance of building permits.

From the time the city sent her the notice that she could not rent the basement apartment, the plaintiff has not rented it. This lawsuit was filed on August 9, 1982. At the time of trial, the basement apartment was still empty. Sometime after August 1981, the plaintiff listed and has attempted unsuccessfully to sell the building as a four-unit structure.

John O’Brien, a real estate appraiser, testified for plaintiff as an expert witness. O’Brien appraised the apartment building in issue in 1982. Although he did not appraise the building in 1973, he stated that, based on his knowledge of the property, he did not feel that its condition had changed materially since 1973. He described the procedures he would use to establish the value of the building as of 1973. Mr. O’Brien used a conservative gross rent multiplier for 1973, which he based on his experience as an appraiser. Using the formula, he rendered an opinion that the value of the building in 1973 as a four-unit structure was $56,000 and as a five-unit structure was $68,000. The trial court found for plaintiff, on her fraudulent misrepresentation theory and awarded damages in the amount of $11,880.

As the parties have addressed only the fraudulent misrepresentation theory upon which the court below rendered judgment for plaintiff, we confine our analysis to the issue as presented to us.

Defendant first contends that plaintiff failed to prove a fraudulent misrepresentation by defendant. In this regard, defendant maintains there was no misrepresentation. He contends that his statement that the building was a five-unit apartment building was accurate, and that he never directly misrepresented the basement apartment was in compliance with the building code nor can such misrepresentation be implied. Also, defendant contends that even if there was a misrepresentation, there was no reliance on the misrepresentation since plaintiff inspected the building and could have checked with the city authorities to determine if there were any code violations. Defendant further contends that plaintiff failed to prove an intent to deceive. Finally, defendant argues that if there was an implied misrepresentation as to the lawfulness of the basement apartment, it was one of law, not of fact, which plaintiff cannot justifiably rely on, particularly where plaintiff had an equal opportunity to inform herself of the building ordinances.

The parties agree that the elements of a cause of action for fraudulent misrepresentation are: (1) false statement of material fact (2) known or believed to be false by the party making it; (3) intent to induce the other party to act; (4) action by the other party in reliance on the truth of the statement; and (5) damage to the other party resulting from such reliance. (Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 286, 402 N.E.2d 599; Mother Earth, Ltd. v. Strawberry Camel, Ltd. (1979), 72 Ill. App. 3d 37, 48, 390 N.E.2d 393.) Furthermore, the reliance by the other party must be justified, i.e., he must have had a right to rely. (Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 286, 402 N.E.2d 599.) Whether plaintiff has proved these elements is a question of fact for the trier of fact (Gordon v. Dolin (1982), 105 Ill. App. 3d 319, 324, 434 N.E.2d 341), whose decision will not be disregarded unless against the manifest weight of the evidence. (Chicago Title & Trust Co. v. First Arlington National Bank (1983), 118 Ill. App. 3d 401, 410, 454 N.E.2d 723.) Generally, fraud will not be presumed and must be proved by clear and convincing evidence. Hofmann v. Hofmann (1983), 94 Ill. 2d 205, 222, 446 N.E.2d 499; Gordon v. Dolin (1982), 105 Ill. App. 3d 319, 324, 434 N.E.2d 341.

Plaintiff’s complaint generally alleged that defendant represented to her that he owned a validly constructed five-unit apartment building and that he had no notice from any governmental authority of any dwelling code violations. Further, she alleged that by these representations the defendant misled and fraudulently deceived her into entering into the agreement to purchase the apartment building. Plaintiff’s evidence established that defendant represented that he was selling a five-unit apartment building. Plaintiff also testified that she asked defendant whether the building complied with the city’s building code and whether there was anything wrong with the building. A negative response can be inferred from the record. Although defendant denied plaintiff asked him the question regarding whether the building conformed to the city’s building code, the trial court apparently credited plaintiff’s testimony. On appeal, the reviewing court must take questions of testimonial credibility as resolved in favor of the prevailing party, and must draw from the evidence all reasonable inferences in support of the judgment. (Chicago Title & Trust Co. v. First Arlington National Bank (1983), 118 Ill. App. 3d 401, 410, 454 N.E.2d 723.) Clearly, the defendant’s statements that he was selling a five-unit apartment building and that it complied with the city’s building code were statements of material fact in this transaction establishing the first element upon which a charge of fraud is based.

Defendant contends, however, that there were no misrepresentations because the building did in fact contain five units and there was no direct misrepresentation by him regarding the basement apartment being in compliance with the building code. We disagree. As the trial court concluded, defendant represented the building was a five-unit building, which plaintiff relied on, when in fact it was not lawfully a five-unit building. This was a misrepresentation. Defendant’s statement under the circumstances also certainly implied that the five apartment units contained in the building were authorized under the city’s building code. In addition, as plaintiff testified, defendant represented that the building conformed to the building code. This is a misrepresentation, since it did not conform. The fact that plaintiff did not inquire specifically whether the basement apartment itself was in compliance with the building code is not required under the facts here.

We next consider whether the defendant made the misrepresentations knowing or believing them to be false with the intent to induce plaintiff to act. The intent to deceive may be proved by means of circumstantial evidence (Mother Earth, Ltd. v. Strawberry Camel, Ltd. (1979), 72 Ill. App. 3d 37, 50-51, 390 N.E.2d 393), and whatever circumstances, when proven, convince the mind that the fraud charged has been perpetrated, is all that is required. (Chicago Title & Trust Co. v. First Arlington National Bank (1983), 118 Ill. App. 3d 401, 410, 454 N.E.2d 723.) In the case at bar, the trial court specifically found defendant knew the building was in violation of the building code and failed to disclose this to the plaintiff. The trial court’s findings of fact in this regard will not be disregarded unless they are against the manifest weight of the evidence. 118 Ill. App. 3d 401, 410, 454 N.E.2d 723.

Here, defendant admitted he constructed the basement apartment without obtaining a building permit and originally had to obtain a building permit for construction of the four-unit apartment building. He also testified that prior to entering into the agreement to sell to plaintiff in 1973, he learned from a neighbor, whom he knew to be a building inspector for the city, that he should have had a building permit prior to construction of the basement apartment. None of this information was conveyed to the plaintiff. Having represented to plaintiff that he was selling a five-unit apartment building, his concealment of the actual facts surrounding the construction of the basement apartment shows an intention to deceive, and under the circumstances creates a duty to speak. (See Central States Joint Board v. Continental Assurance Co. (1983), 117 Ill. App. 3d 600, 604, 453 N.E.2d 932; Allensworth v. Ben Franklin Savings & Loan Association (1979), 71 Ill. App. 3d 1041, 1044, 389 N.E.2d 684.) There is ample evidence to support the trial court’s findings of false statements made with an intent to deceive on the part of defendant in this transaction.

Next, defendant maintains that plaintiff failed to prove that she was justified in relying on any misrepresentations. He contends that plaintiff inspected the building prior to signing the offer to purchase and had the opportunity to check with the city officials and examine the ordinances to find out whether the building was in compliance with the building code. The question is whether, under all the circumstances, plaintiff had a right to rely on the false representations. This question is to be answered while viewing the representations in light of all the facts of which plaintiff had actual knowledge as well as those of which she might have availed herself by the exercise of ordinary prudence. Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 286-87, 402 N.E.2d 599.

Here, plaintiff was not shown to be experienced in real estate transactions or with the city housing and building codes. There was no reason for her to suspect upon inspection of the building that the basement apartment was not validly constructed. Defendant represented he was selling a five-unit apartment building and concealed the fact that the basement apartment was constructed without a building permit from the city. In short, there is nothing in the record to indicate that plaintiff herself might have discovered by the exercise of ordinary prudence that the basement apartment was not constructed according to the housing and building code. Even the real estate agent, a person more experienced in these matters was unaware that the basement apartment was not in conformance with the code requirements.

Nor do we believe that plaintiff was required under the circumstances here to make an investigation on her own to determine if a building permit had been issued for the construction of the basement apartment or whether that apartment was in violation of the city code. As stated in Chicago Title & Trust Co. v. First Arlington National Bank (1983), 118 Ill. App. 3d 401, 409-10, 454 N.E.2d 723, quoting from Prosser, Torts sec. 108, at 718 (4th ed. 1971), “[i]t is only where, under the circumstances, the facts should be apparent to one of [plaintiff’s] knowledge and intelligence from a cursory glance, or he has discovered something which should serve as a warning that he is being deceived, that he is required to make an investigation of his own.” There is no basis in this record for plaintiff to suspect she was being deceived to require any further investigation by her. Defendant not only represented he was selling a five-unit apartment building, but also further stated the fact that he had been renting out four of the units and living in one unit, and plaintiff would receive sufficient income from rental of the four units, while she occupied the fifth unit, to meet her expenses. We find there is sufficient evidence to show justifiable reliance by plaintiff on the statements of the defendant.

Defendant also contends that a misstatement representing a question of law cannot form the basis for an action of fraud. Generally, it has been stated that one is not entitled to rely upon a misrepresentation of law as both parties are presumed to be equally capable of knowing and interpreting the law. (Hamming v. Murphy (1980), 83 Ill. App. 3d 1130, 1135, 404 N.E.2d 1026.) However, here the misrepresentation most relevant was one of fact. The defendant represented the building as a five-unit apartment building when he knew that he had received a building permit to construct only a four-unit apartment building. Thus, defendant did not make a misstatement representing a question of law but rather was vouching for the proper construction of all five units in his position as builder and owner. Plaintiff also testified that she asked defendant whether the building complied with the “city’s building codes.” Although defendant denied being asked this question, we can infer from the record that he responded negatively and this answer was a factual one. We do not find as factually apposite the cases cited to us by defendant of Yuden v. Binkowski (1971), 1 Ill. App. 3d 730, 274 N.E.2d 671 (abstract of opinion), and Scott v. Wilson (1957), 15 Ill. App. 2d 456, 146 N.E.2d 397 (abstract of opinion). In any event, the primary misrepresentation was that the building was a five-unit apartment building and, under the actual facts as known to defendant as discussed above, this was factually untrue and made with the intent to deceive.

Defendant has not argued in his appellate brief that plaintiff’s proofs failed to satisfy the remaining two elements of the cause of action for fraudulent misrepresentation, i.e., damage resulting from such reliance and action by plaintiff in reliance on the truth of the statement. Thus we may forego analysis except to state that a review of the record satisfies us that these elements have likewise been proved.

Defendant next contends that as the misrepresentations were made in May 1973, and the action filed in August 1982, the cause of action was barred by the applicable five-year statute of limitations. Our supreme court has held that section 15 of the Limitations Act (Ill. Rev. Stat. 1981 ch. 83, par. 16) now recodified as section 13— 205 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 205), which provides, inter alia, that “all civil actions not otherwise provided for, shall be commenced within 5 years next after the cause of action accrued,” is applicable to actions for fraud and tortious misrepresentation. (Chicago Park District v. Kenroy, Inc. (1980), 78 Ill. 2d 555, 560, 402 N.E.2d 181.) Although this action was not commenced within five years of the May 15, 1973, misrepresentations, the “discovery rule” relating to the statute of limitations has been held to apply to fraud and tortious misrepresentation. (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 414-17, 430 N.E.2d 976.) The effect of the discovery rule is to postpone the starting of the period of limitations until the injured party knows or should have known of his injury. (88 Ill. 2d 407, 414-16, 430 N.E.2d 976.) We believe the evidence establishes that plaintiff never knew nor should she have known of her injury until informed by the city on August 28, 1981, that the basement apartment was prohibited by the housing code. As suit was filed on August 9, 1982, the plaintiff acted within the appropriate time limit as extended by the discovery rule. Defendant has mistakenly argued that section 13 — 215 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 215) dealing with fraudulent concealment of a cause of action is the applicable provision which controls the postponing of the limitations period here. The discovery rule, as judicially created, is separate from the statutory provision of section 13 — 215, which covers fraudulent concealment of a cause of action. See Chicago Park District v. Kenroy, Inc. (1978), 58 Ill. App. 3d 879, 374 N.E.2d 670, aff’d in part, rev’d in part (1980), 78 Ill. 2d 555, 402 N.E.2d 181.

The third issue which the defendant raises on appeal is whether the trial court erred in failing to strike the testimony of the plaintiff’s real estate appraiser. The defendant asserts that, in light of the fact that the witness only appraised the building in 1982, his testimony at trial regarding the value of the building as it existed in 1973 was based on conjecture or a guess.

An expert witness may not base his opinion upon conjecture, speculation, or a guess. (Nelson v. Speed Fastener, Inc. (1981), 101 Ill. App. 3d 539, 543, 428 N.E.2d 495; Sommers v. American Economy Insurance Co. (1972), 8 Ill. App. 3d 450, 452, 289 N.E.2d 712.) In the case at bar, John O’Brien appraised the apartment building in 1982. Although he did not appraise the building in 1973, he stated that, based on his knowledge of the property, he did not feel that its condition had changed materially since 1973. He described in detail the procedures he would use to establish the value of the building in 1973. Using a conservative gross rent multiplier, which he based on his long experience as an appraiser, he rendered an opinion that the value of the building in 1973 as a four-unit structure was $56,000 and as a five-unit complex was $68,000. Here, the expert’s testimony was not based on mere conjecture, speculation, or guesswork. Rather, it was grounded on facts within his personal knowledge or facts which had been placed in evidence. He merely applied a gross rent multiplier to the relevant facts to establish the respective values of the apartment building in 1973. Therefore, the trial court did not err when it refused to strike O’Brien’s opinion testimony.

The defendant’s last contention is that the trial court erred in determining the amount of damages. In particular, he maintains that the trial court, after ascertaining the difference in the fair market value of the property as a four-unit building and as a five-unit structure in 1973, should have deducted from that amount ($11,880) the total rent income the plaintiff received from the basement apartment from July 1973 to August 1981.

In Illinois, a purchaser of property who has been defrauded is entitled to damages which will give her the benefit of her bargain. Accordingly, the proper measure of damages in cases of fraudulent misrepresentation or concealment is the value the property would have had at the time of the sale if the defects did not exist, minus the value the property actually had at the time of the sale due to the defects. (N.C.Antle & Brothers v. Sexton (1891), 137 Ill. 410, 416, 27 N.E. 691; Posner v. Davis (1979), 76 Ill. App. 3d 638, 644-45, 395 N.E.2d 133.) This assessment of damages should focus on the loss to plaintiff. (Martin v. Allstate Insurance Co. (1981), 92 Ill. App. 3d 829, 835, 416 N.E.2d 347.) In the present case, the plaintiff bargained for a five-unit apartment building so that she could derive rental income from four of those apartments, including the basement unit. The trial court determined, based on the opinion testimony of the plaintiffs expert, that the difference in value between the building as a five-unit structure and as a four-unit structure in 1973 was $11,880. Clearly, the plaintiff was entitled to that amount of damages. In addition, the rental income which the plaintiff received from the basement apartment from 1973 to 1981 also belongs to her as owner of the building. Fairfield Savings & Loan Association v. Kroll (1969), 106 Ill. App. 2d 296, 246 N.E.2d 327, cited by defendant, is clearly inapposite to the facts here and need not be discussed.

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

Affirmed.

UNVERZAGT and NASH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SULLIVAN

license: Public Domain

text:
    RAYMOND SCHULTZ et al., Plaintiffs-Appellants, v. REPUBLIC INSURANCE COMPANY, Defendant-Appellee.
    First District (5th Division)
    No. 83—2757
    Opinion filed May 18, 1984.
    Rabens, Formusa & Glassman, Ltd., of Chicago (George C. Rabens, of counsel), for appellants.
    Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (Norman A. Miller, Richard A. Buchanan, William H. Gillford, Jr., and George D. Gardner, of counsel), for appellee.
   JUSTICE SULLIVAN

delivered the opinion of the court:

Plaintiffs appeal from a judgment entered on a jury verdict for defendant in an action for amounts allegedly due under a homeowner’s insurance policy for fire damage to their residence. They contend that the trial court erred in refusing to give (a) a tendered non-IPI instruction concerning the presumption of innocence, and (b) two special interrogatories regarding their involvement in the arson which occasioned the loss.

A residence owned by plaintiff was damaged by a fire which it is agreed was intentionally set. The property was covered by a homeowner’s insurance policy issued by defendant, which insured against loss or damage by fire and, when plaintiffs’ claim for coverage thereunder was denied, they brought the instant action seeking recovery. The above facts being undisputed, the sole issues at trial (no transcript or abstract of which was included in the record) concerned the amount of damages and defendant’s affirmative defense that plaintiffs either set the fire or caused it to be set. The jury returned a verdict for defendant and answered affirmatively a special interrogatory which stated: “Did Raymond Schultz either set the fire or cause it to be set?” Plaintiffs’ post-trial motion was denied, and this appeal followed.

Opinion

Before reaching the merits of plaintiffs’ contentions, we must first consider defendant’s assertion that the issues presented in this appeal were waived by plaintiffs’ failure to include a transcript of the instruction conference in the record, as well as by their failure to set forth with particularity in their post-trial motion the grounds relied upon in asserting that the trial court erred in refusing to give the instruction and interrogatories in question. In support thereof, it relies on Supreme Court Rules 323(a) and 366(b)(2)(iii), which provide that the report of proceedings must include all evidence pertinent to the issues on appeal (87 Ill. 2d R. 323(a)), and that “[a] party may not urge as error on review of the ruling on his post-trial motion any point, ground, or relief not specified in the motion” (87 Ill. 2d R. 366(b)(2)(iii). Defendant also maintains that the post-trial motion did not comply with section 2 — 1202(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1202(b)), which provides in relevant part that “[t]he post-trial motion must contain the points relied upon, particularly specifying the grounds in support thereof ***.”

These questions were addressed recently by the supreme court in Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 415 N.E.2d 337, which appears to be dispositive thereon. The court there held that the plaintiff had failed to preserve for review the question whether the trial court erred in giving certain instructions and refusing others because his post-trial motion merely set forth the instruction numbers, without reference to the grounds for his objection, noting that “[sjince neither of these allegations of error specifies the ground upon which it is based, they are clearly inadequate under both [section 2 — 1202(b) and Rule 366(b)(2)(iii)].” (83 Ill. 2d 344, 349, 415 N.E.2d 337, 339.) The court went on to discuss the rationale of requiring such specificity:

“First, it allows the decision maker who is most familiar with the events of the trial, the trial judge, to review his decisions without the pressure of an ongoing trial and to grant a new trial if, on reconsideration, he concludes that his earlier decision was incorrect. [Citations.] Second, by requiring the statement of the specific grounds urged as support for the, claim of error, the rule allows a reviewing court to ascertain from the record whether the trial court has been afforded an adequate opportunity to reassess the allegedly erroneous rulings. Third, by requiring the litigants to state the specific grounds in support of their contentions, it prevents them from stating mere general objections and subsequently raising on appeal arguments which the trial judge was never given an opportunity to consider. [Citations.] The rule *** has the salutary effect of promoting both the accuracy of decision making and the elimination of unnecessary appeals.” (83 Ill. 2d 344, 349-50, 415 N.E.2d 337, 339.)

Here, as in Brown, plaintiffs’ post-trial motion asserts merely that the trial court erred in refusing one of its tendered instructions and two special interrogatories and, while they are set forth verbatim, there is no indication as to the grounds for the allegation of error. Thus, the trial court was not granted the opportunity required by Brown to reconsider its earlier rulings, and the issue must be deemed waived. While the result seems harsh, it should be noted that very little is required in complying with this rule, just “a simple, succinct statement of the factual or legal basis for movant’s belief that the trial court action was erroneous” (83 Ill. 2d 344,350, 415 N.E.2d 337, 340), and enforcement thereof is not a mere matter of formality, but a tool designed to further the important goal of achieving judicial economy, a tool which is rendered useless if not employed in appropriate circumstances.

Moreover, we are unable to ascertain from the record before us whether the specific contentions argued on appeal were ever presented to the trial court, an important point since such arguments may not be raised for the first time on appeal. (Raabe v. Maushak (1977), 55 Ill. App. 3d 169, 371 N.E.2d 96.) In this regard, we note the Brown court’s further statements concerning the failure to present a reviewing court with the contents of the instruction conference:

“The courts of this State have also developed a rule limiting the scope of appeals from decisions regarding jury instructions. To raise an issue on appeal concerning the giving of or the failure to give an instruction, the appellant must provide the reviewing court with the content of the instruction conference establishing that the appellant there raised the argument that he advances on appeal or else he is barred from raising it in the reviewing court. [Citations.] This rule *** prevents] a litigant from raising issues on appeal which he did not present to the trial court.” (Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 350, 415 N.E.2d 337, 339-40.)

The record before us is devoid of any material from which we could ascertain the content of the instruction conference. In the absence thereof, or of any specific grounds set forth in the post-trial motion, we cannot determine whether the arguments raised on appeal were ever presented to the trial court for its consideration. Under these circumstances, we are constrained to agree with defendant that the issues raised are waived, since we believe that the holding in Brown, concerning jury instructions, is equally applicable to the giving of or failure to give special interrogatories. See Gasbarra v. St. James Hospital (1979), 85 Ill. App. 3d 32, 37, 406 N.E.2d 544, 549 (“Special interrogatories must be tendered, objected to, ruled upon, and submitted to the jury in the same manner as instructions [citation], and it is well settled that to preserve an objection to an instruction or special interrogatory upon review, the grounds for the objection must have been specifically raised in the trial court”).

We further note that affirmance of the judgment would be required even in the absence of waiver, since we see little merit in the arguments raised on appeal. Plaintiffs first assert that the trial court erred in refusing to give the following instruction:

“It is presumed that all men are honest and where fraud is charged it must be proved by clear and convincing testimony and cannot be established upon mere suspicion. False filing in proof of loss in order to void the insurance must be willful and with intent to deceive and defraud the insurer.”

It is their position that “eveiy person accused of a criminal offense, whether it be in a civil or criminal proceeding, is entitled to a presumption of innocence.” Therefore, they posit, since arson was the principal issue in this case, the above instruction was mandated.

The function of instructions is to convey to the jury the correct principles of law applicable to the evidence submitted to them (LeMaster v. Chicago Rock Island & Pacific R.R. Co. (1976), 35 Ill. App. 3d 1001, 343 N.E.2d 65); therefore, although the parties are entitled to have the jury instructed as to their theory of the case, the instruction tendered must accurately state applicable law (Geving v. Fitzpatrick (1978), 56 Ill. App. 3d 206, 371 N.E.2d 1228; Kinka v. Harley-Davidson Motor Co. (1976), 36 Ill. App. 3d 752, 344 N.E.2d 655). Here, the tendered instruction sets forth an erroneous standard of proof with regard to arson. It is the rule in Illinois that where arson is raised as a defense in an action to recover under a fire insurance policy, it need only be proved by a preponderance of the evidence (Sundquist v. Hardware Mutual Fire Insurance Co. (1939), 371 Ill. 360, 21 N.E.2d 297), not by clear and convincing evidence, as the above instruction would indicate. Furthermore, it is our view that the “presumption of innocence” of the arson is adequately conveyed to the jury by the instruction that the defendant insurance company has the burden of proving its affirmative defense. We note also that the refused instruction in question is based on cases involving false swearing or material misstatements in a proof of loss (see, e.g., Weininger v. Metropolitan Fire Insurance Co. (1935), 359 Ill. 584, 195 N.E. 420; Jay-Bee Realty Corp. v. Agricultural Insurance Co. (1943), 320 Ill. App. 310, 50 N.E.2d 973); in fact, it appears that the instruction was adopted verbatim from the language therein, a practice which we note is not recommended (see Spiezio v. Commonwealth Edison Co. (1968), 91 Ill. App. 2d 392, 235 N.E.2d 323). In any event, the instruction is totally irrelevant to the defense of arson and, so far as we can ascertain from the limited record before us, was not relevant to any other issue, since it does not appear that defendant asserted fraud as an affirmative defense in its answer.

With regard to plaintiffs’ second contention concerning the special interrogatories, we initially note that the general rule is that “[f]or a special interrogatory to be proper, an answer responsive thereto must be inconsistent with some general verdict that might be returned. [Citation.] Its function is to require the jury’s determination as to one or more specific issues of ultimate fact and operates as a check upon the deliberations of the jury.” (Gasbarra v. St. James Hospital (1979), 85 Ill. App. 3d 32, 38, 406 N.E.2d 544, 550.) Therefore, any special interrogatories tendered must be considered in the light of the general verdicts which the jury could have entered.

In the instant case, three special interrogatories were tendered by plaintiffs, only the second of which was given:

“Interrogatory No. 1: did either Raymond Schultz or Bernice Schultz either set the fire or cause it to be set?”
“Interrogatory No. 2: Did Raymond Schultz either set the fire or cause it to be set?”
“Interrogatory No. 3: Did Bernice Schultz either set the fire or cause it to be set?”

Plaintiffs assert that these interrogatories were necessary in order to make an individual determination as to each of the plaintiffs with regard to the affirmative defense of arson, since the wrongdoing of one insured cannot bar an innocent co-insured’s recovery of his proportionate share of the insurance proceeds. We have no quarrel with this general proposition (see Economy Fire & Casualty Co. v. Warren (1979), 71 Ill. App. 3d 625, 390 N.E.2d 361); however, an individual determination should have been done through general verdict forms allowing the jury to find for or against the plaintiffs individually, not through special interrogatories. In the instant case, the jury was not given the option of considering the individual plaintiff’s right of recovery, since only two general verdict forms were submitted to them: “We, the Jury, find for the Plaintiffs and against the Defendant,” and “We, the Jury, find for the Defendant and against the Plaintiffs.” Plaintiffs did not object to these forms, nor did they submit alternative forms for the trial court’s consideration. Thus, the above are the only general verdicts which the jury could have returned, and in light thereof we do not believe that interrogatories regarding the individual plaintiffs could have controlled the general verdict, unless the jury answered negatively as to both plaintiffs; that is, unless the jury responded “no” to interrogatory No. 1, or responded “no” to both interrogatory No. 2 and No. 3, constituting a finding that neither Bernice nor Raymond set the fire or caused it to be set. It is our view that it would have been appropriate to submit to the jury either interrogatory No-. 1, or Nos. 2 and 3 together, since a negative answer would have controlled and mandated a finding for plaintiffs. However, we see no harm in the trial court’s failure to do so in view of the jury’s finding that Raymond did set the fire or cause it to be set. Under those circumstances, the only general verdict form of the two submitted which it could have returned was a finding for defendant, regardless of its opinion on Bernice’s involvement in the arson.

For the foregoing reasons, the judgment is affirmed.

Affirmed.

LORENZ and WILSON, JJ., concur.

      This opinion was adopted as the opinion of the court prior to the death of Mr. Justice Wilson.


text:
    ORA MAE WATSON, Plaintiff-Appellant, v. THE CITY OF CHICAGO, Defendant-Appellee.
    First District (5th Division)
    Nos. 83—2456, 83—2698 cons.
    Opinion filed May 25, 1984.

      Floyd D. Perkins and Leonard B. Miller, both of Chicago, for appellant.
    James D. Montgomery, Acting Corporation Counsel, of Chicago (Jerome A. Siegan and Cheryl L. Smalling, Assistant Corporation Counsel, of counsel), for appellee.
   JUSTICE SULLIVAN

delivered the opinion of the court:

This is an appeal pursuant to Supreme Court Rule 306 (87 Ill. 2d R. 306) from an order of the trial court granting defendant a new-trial in a negligence action on the sole ground that plaintiff’s counsel used an improper per diem formula in arguing the amount of damages to be awarded for future pain and suffering. The only issue before us is whether the trial court abused its discretion in ordering a new trial.

Plaintiff brought the instant action seeking recovery for personal injuries allegedly sustained when she fell on a sidewalk owned and maintained by defendant. After a trial on the issues of liability and damages (no transcript of which appears in the record), the jury found for plaintiff and awarded her $79,816 in damages. In its post-trial motion, defendant sought in pertinent part a new trial on six specified grounds: that plaintiff’s counsel improperly used a mathematical formula in arguing that plaintiff should be awarded $1,000 per year for 49 years of future pain and suffering; that plaintiff’s counsel should not have been allowed to use a diagram of the scene during closing argument; that plaintiff failed to prove that it owned the sidewalk in question; that plaintiff’s counsel improperly argued loss of income as an element of damages; that plaintiff’s counsel asked leading, immaterial, and irrelevant questions of an expert witness; and that plaintiff failed to prove that the alleged defect in the sidewalk was the cause in fact of her injury.

After hearing arguments on the motion, the trial court addressed each point in detail, noting that the arguments concerning use of the diagram and of leading questions were without merit; that there was testimony which, if believed, would support the jury’s findings with regard to loss of income and the cause in fact of the injury; and that there was no merit to the argument that plaintiff failed to prove defendant’s ownership of the sidewalk. It therefore denied the motion as to the above points; however, it found that counsel’s remarks concerning damages for future pain and suffering “amounted to” a per diem argument, and ordered a new trial on the issues of liability and damages. Thereafter, we granted plaintiff’s petition for leave to appeal.

Opinion

Before reaching the ultimate question of whether the trial court abused its discretion in ordering a new trial, we must first examine the basis for its ruling; that is, the propriety of the argument in question. Defendant’s post-trial motion was predicated upon the following remarks:

“PLAINTIFF’S COUNSEL: I say to you, ladies and gentlemen, that if you calculated for her pain and suffering — here is a woman who takes Tylenol every day, three times a day. She has roughly 49 years of pain. If you calculate a total of $49,000 for 49 years, you think about that.
If you were to be told that you are going to get $1,000 to take Tylenol once a year and to take — .
DEFENSE COUNSEL: Objection, your Honor. That argument is in the nature of per diem, and highly inappropriate.
COURT: The Court will indicate counsel is making argument. The jury will make the findings, and counsel may continue, with argument.
PLAINTIFF’S COUNSEL: I believe that a fair figure for her would be $49,000.”

The trial court found that this argument amounted to the type of mathematical formula found improper by the supreme court in Caley v. Manicke (1962), 24 Ill. 2d 390, 182 N.E.2d 206, where plaintiff’s counsel asked the jury to award $1 per hour for pain and suffering during the first two years after the accident, for a total of $11,680; $10 per day for the remaining time prior to trial, for a total of $5,100; and $1 per day for future pain and suffering which, based on a life expectancy of 24.52 years, totaled $8,760. (Caley v. Manicke (1961), 29 Ill. App. 2d 323, 333-34, 173 N.E.2d 209, 214.) In reversing the judgment for plaintiff and remanding for a new trial, the supreme court noted that, while suggestion of a total monetary award for pain and suffering is proper, reducing the argument to a mathematical formula is misleading (24 Ill. 2d 390, 394, 182 N.E.2d 206, 209) because such formulae produced “an illusion of certainty” where none existed, and therefore might tend to discourage “reasonable and practical consideration” (24 Ill. 2d 390, 393, 182 N.E.2d 206, 208).

The trial court acknowledged that the argument in question here was “less than” the remarks found improper in Caley. We would go farther, and state that Caley is distinguishable from the instant case. Plaintiff’s counsel here did not use any kind of mathematical formula; i.e., he did not suggest that plaintiff’s future pain and suffering had a value of $1,000 per year, and request that the jury multiply that number by plaintiff’s life expectancy. Instead, he asked the jury to think about awarding plaintiff $49,000 for 49 years of pain and suffering. Counsel may properly suggest a lump sum figure for pain and suffering (Caley), and may make reference to life expectancy in conjunction therewith (Thompson v. Lietz (1981), 95 Ill. App. 3d 384, 420 N.E.2d 232). It does appear that counsel was about to follow this request with a per diem argument; however, he promptly abandoned that line of argument when defense counsel objected thereto, and no per diem or similar mathematical argument was ever made.

Defendant apparently concedes that there was no express per diem argument, since it argues merely that “plaintiff’s attorney explicitly told the jury that plaintiff should be awarded $49,000 in damages for pain and suffering for her 49-year life expectancy. The mathematical formula he proposed was glaringly transparent. A child could readily decipher a formula of $49,000 for 49 years to be an award of $1,000 per year.” In effect, then, defendant would have us hold that it is improper to suggest a total award for pain and suffering which is easily divisible by the plaintiff’s life expectancy, lest the jury perceive therein some mathematical relationship between the amount requested and life expectancy. We are not aware of any cases which interpret Caley as prohibiting any relationship between life expectancy and the amount of damages requested, nor do we believe that such a broad interpretation is possible or logical. A plaintiff’s life expectancy is an important element to be considered in determining an award for future pain and suffering (see Parnham v. Carl W. Linder Co. (1962), 36 Ill. App. 2d 224, 183 N.E.2d 744; Illinois Pattern Jury Instruction (IPI), Civil, No. 34.04 (2d ed. 1971)), and it is therefore not unreasonable to expect that there will be some relationship between life expectancy and the figure suggested by counsel in arguing that element of damages. We do not see how a defendant is prejudiced, or how an “illusion of certainty” is created by a request for an amount which, when divided by life expectancy, produces a multiple of 100 or 1,000. Under that rationale, a plaintiff with a life expectancy of 10 years would be hard-pressed to argue an acceptable figure; indeed, if we accepted the reasoning advanced here, plaintiff in the instant case presumably could have requested $49,001, since dividing by 49 would not result in any “transparent mathematical formula.” For these reasons, it is our view that the argument in question was not an improper per diem argument.

Moreover, even if we accept arguendo the trial court’s view that these remarks constituted a per diem argument, we do not believe that they were so prejudicial as to require a new trial. The courts of this State have been reluctant to extend Caley beyond the precise facts presented therein, and have ruled that such remarks, while improper, do not necessarily require overturning of the jury’s verdict. In American National Bank & Trust Co. v. Peoples Gas Light & Coke Co. (1963), 42 Ill. App. 2d 163, 185, 191 N.E.2d 628, 639, we held that a per diem argument suggesting $10 per day as fair compensation for pain and suffering, while improper, did not require reversal because it was a very limited part of the plaintiff’s entire argument, and did not “remotely resemble the meticulous, comprehensive ‘per diem’ argument used in Caley.” Later, in Warp v. Whitmore (1970), 123 Ill. App. 2d 157, 260 N.E.2d 45, we found no grounds for reversal where counsel’s request for $100 per year for the number of years of the plaintiff’s life expectancy where the figure was presented as a suggestion, defendant did not object to the argument, and counsel did not challenge the defense to suggest a better method for calculating damages. See also Turner v. Chicago Transit Authority (1984), 122 Ill. App. 3d 419; Fintak v. Catholic Bishop (1977), 51 Ill. App. 3d 191, 366 N.E.2d 480; Johnson v. Chicago Transit Authority (1973), 11 Ill. App. 3d 16, 295 N.E.2d 573; Fortner v. McDermott (1971), 1 Ill. App. 3d 358, 272 N.E.2d 503.

Here, too, the argument in question was but a small portion of the total argument, and counsel placed no undue emphasis thereon; the argument did not approach the comprehensiveness of the argument in Caley, and defendant was not challenged to suggest an alternative method for calculating damages. In addition, contrary to defendant’s contention, counsel did not assert that this was the only correct approach for computing damages; rather, this passage, and indeed the entire tenor of his argument, was that the figures presented for the jury’s consideration reflected his view, as his client’s advocate, of what would be fair and reasonable compensation for her injuries. It appears that the trial court gave inadequate consideration to this factor in the mistaken belief that it was immaterial that the remarks were only suggestive, for it stated:

“In fact, the jury was told that, if they calculated the pain and suffering on that basis, it would be a $49,000 total for pain and suffering. The Court considers the jury was told to think about that. That might be considered to be in the nature of suggestion, but this is a delicate kind of an argument to make, whether or not it amounts to a formula that the jury — that counsel indicates to the jury to use.”

Finally, any prejudice to defendant was further mitigated when the trial court admonished the jury, immediately after the remarks were made, that they were only argument, and the jury was to make the findings of fact.

It is our view that these factors alone serve to distinguish the instant case from Catey, and that the argument, even if improper, was not so prejudicial as to require overturning of the jury’s verdict. We further note that there is considerable doubt whether defendant adequately preserved this question for review, another factor which courts have considered in determining that reversal was not required. Defendant did not object to the remarks now complained of, “$49,000 for 49 years,” but to that portion of the argument which might have been the beginning of a per diem argument, comments which were never completed because of the objection. Moreover, even if we assume, as defendant asserts, that the objection was directed at the preceding remarks, it does not appear that the trial court ruled thereon. Later, during hearings on the post-trial motion, the trial court characterized its actions as “error in not sustaining the objection and having overruled the objection”; however, the record must speak for itself, and shows that no ruling was made. As our courts have repeatedly noted, “[t]he rule generally adopted is that such assignments of error [based on alleged prejudicial conduct of opposing counsel] will not be considered on appeal unless objection to the alleged prejudicial argument has been made in the trial court, a ruling of the court obtained and the record showing the objection and the ruling preserved” (Belfield v. Coop (1956), 8 Ill. 2d 293, 312, 134 N.E.2d 249, 259), unless the remarks were so prejudicial that “the parties litigant cannot receive a fair trial and the judicial process stand without deterioration” (8 Ill. 2d 293, 313, 134 N.E.2d 249, 259). (See also Franks v. North Shore Farms, Inc. (1969), 115 Ill. App. 2d 57, 75, 253 N.E.2d 45, 54.) Thus, even where an objection has been made, the error, if any, is not preserved for review if the trial court fails to rule thereon (Rasmussen v.Clark (1952), 346 Ill. App. 181, 104 N.E.2d 325); the burden is on the moving party to protect its record by obtaining either a ruling or a refusal to rule (Karris v. Woodstock, Inc. (1974), 19 Ill. App. 3d 1, 312 N.E.2d 426). Under these circumstances, we believe that the instant case falls directly within the exceptions to Catey established by American National Bank & Trust Co. v. Peoples Gas Light & Coke Co. (1963), 42 Ill. App. 2d 163, 191 N.E.2d 628, and Warp v. Whitmore (1970), 123 Ill. App. 2d 157, 260 N.E.2d 45, assuming that the argument in question was even a per diem argument.

We turn, then, to the question of whether the trial court abused its discretion in ordering a new trial. In general, such decisions will not be reversed unless the record demonstrates a clear abuse has occurred (Principato v. Rudd (1981), 102 Ill. App. 3d 362, 430 N.E.2d 63); however, where the evidence supports the verdict, and it does not appear that the moving party was denied a fair trial, it is an abuse of discretion for the trial court to overturn the jury’s verdict (Looft v. Missouri Pacific R.R. Co. (1982), 104 Ill. App. 3d 152, 432 N.E.2d 1152). In the instant case, we are precluded from independently assessing the sufficiency of the evidence, since no transcript was provided. However, we note that defendant did not contend in its post-trial motion that the verdict, either with regard to liability or to damages, was contrary to the manifest weight of the evidence, nor did the trial court so find. Moreover, even if we were to conclude that the alternative points raised by defendant concerning loss of income, ownership of the sidewalk, and the cause of the injury were a challenge to the sufficiency of the evidence thereon, we note that the trial court specifically rejected each of those contentions. Its ruling, then, was totally unrelated to the sufficiency of the evidence and, to the extent that it was required to consider that point, it expressly found that the evidence supported the verdict. Thus, its sole reason for ordering a new trial was the allegedly improper per diem argument, and, since we have determined that this argument did not deprive defendant of a fair trial, we find that plaintiff has met her burden of showing that the trial court abused its discretion in granting the motion for a new trial. See Leahy v. Illinois Power Co. (1981), 103 Ill. App. 3d 487, 431 N.E.2d 390.

For the foregoing reasons, we reverse the trial court’s order granting defendant a new trial and remand the cause with directions that judgment be entered on the jury’s verdict.

Reversed and remanded with directions.

MEJDA, P.J., and LORENZ, J., concur.

      The trial court gave no reason for finding this argument without merit, but it appears to have so ruled because defendant admitted in its answer that it owned, controlled, maintained and operated the sidewalk in question.


author: JUSTICE CAMPBELL

text:
    THE CHICAGO BAR ASSOCIATION et al., Plaintiffs-Appellees, v. THE COUNTY OF COOK et al., Defendants-Appellants (Michael E. Lavelle et al., Defendants).
    First District (1st Division)
    No. 84—890
    Opinion filed May 17, 1984.

      Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey, Henry A. Hauser, and Susan Condon, Assistant State’s Attorneys, of counsel), for appellants.
    Kevin M. Forde, Chester R. Davis, Arnold Flamm, Michael Padden, Sharon Finegan Patterson, James C. Spangler, and John F. McCarthy, all of Chicago, for appellees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiffs, the Chicago Bar Association and four individual real estate taxpayers in Cook County brought the instant declaratory judgment action challenging the authority of the Cook County Board of Commissioners to enact an ordinance altering the Cook County Board of Appeals. The ordinance, enacted on June 6, 1983, added a third commissioner to the Cook County Board of Appeals, staggered the terms of the present two commissioners, changed the manner of election of the present commissioners from an at-large election to an election from the city of Chicago and from suburban Cook County respectively and provided for the board to elect from its members a chairman whose powers may be determined by law or by board rule. The circuit court held that the ordinance is invalid and unconstitutional and enjoined any election pursuant thereto. Defendants, the county of Cook and Stanley T. Kusper, county clerk, appeal, contending that the subject ordinance is authorized by the county’s home rule powers under article VII, sections 4(c) and 6, of the Illinois Constitution (Ill. Const. 1970, art. VII, secs. 4(c), 6), and does not otherwise violate article IX, the revenue article, of the Illinois Constitution (Ill. Const. 1970, art. IX, sec. 4). This court has agreed to consider an expedited appeal of this matter.

Article IX of the Illinois Constitution provides for the State’s collection of revenue by taxation. Section 4(a) of that article states that “taxes upon real property shall be levied uniformly by valuation ascertained as the General Assembly shall provide by law.” (Ill. Const. 1970, art. IX, sec. 4(a).) Section 4(b) further provides that “[sjubject to such limitations as the General Assembly may hereafter prescribe by law, counties with a population of more than 200,000 may classify or to continue to classify real property for purposes of taxation.” Ill. Const. 1970, art. IX, sec. 4(b).

Consistent with this grant of authority, the legislature has enacted the Revenue Act of 1939 (Ill. Rev. Stat. 1983, ch. 120, par. 482 et seq.). Under the real estate taxation plan established by the Revenue Act, a taxpayer in Cook County who is dissatisfied with the assessment of his property can seek review of the assessment through a written objection to the assessor. (Ill. Rev. Stat. 1983, ch. 120, par. 578.) After the assessor responds to the taxpayer’s complaint, an aggrieved taxpayer may appeal the assessment to the board of appeals. Ill. Rev. Stat. 1983, ch. 120, par. 593 et seq.

The Cook County Board of Appeals is established by section 11 of the Revenue Act of 1939 (Ill. Rev. Stat. 1983, ch. 120, par. 492). That section provides that the board of appeals shall consist of two commissioners elected for a term of four years. In the case of a vacancy, the chief judge of the circuit court or judge he so designates, shall appoint someone to fill the vacancy until the next county election. The board of appeals may alter an assessment upon complaint of a taxpayer (Ill. Rev. Stat. 1983, ch. 120, par. 597), but “no order for a correction of any assessment shall be made unless both commissioners *** concur therein ***” (Ill. Rev. Stat. 1983, ch. 120, par. 599). Any order of the board must be made in an open session and entered of record, including a brief written statement of the reason for any change of an assessment. An aggrieved taxpayer may further appeal an assessment of his property to the circuit court. (Ill. Rev. Stat. 1983, ch. 120, pars. 675, 716.) The circuit court will consider altering an assessment only in those cases where the taxpayer can demonstrate that a constructive fraud has occurred. La Salle National Bank v. County of Cook (1974), 57 Ill. 2d 318, 312 N.E.2d 252.

Once an assessment is made, taxes are collected by the county treasurer, who acts as ex officio collector for the various local taxing units. (City of Joliet v. Bosworth (1976), 64 Ill. 2d 516, 531, 356 N.E.2d 543, 551.) The taxes collected by the treasurer are then distributed to the various taxing bodies levying taxes on property situated in Cook County. Plaintiffs have represented that there are 570 separate bodies levying taxes on Cook County real estate. Of these taxing bodies, 43 are municipalities which are themselves home rule units.

On June 6, 1983, the Cook County Board of Commissioners adopted Ordinance No. 115923 to make various changes in the structure of the Cook County Board of Appeals. The ordinance states:

“Pursuant to the authority granted to the County of Cook as a Home Rule Unit by the 1970 Constitution of the State of Illinois, the provisions of this ordinance shall supersede Sections 11, 116 and 118 of the. ‘Revenue Act of 1939’, filed May 17, 1939, as amended (Ill. Rev. Stat. 1981, Ch. 120, Pars. 492, 597 and 599).”

The ordinance is similar to the superseded sections of the Revenue Act of 1939 with the following alterations. The ordinance provides for the addition of a third member to the board to be elected at-large by the voters of the entire county in the November 1984 election. In November 1986 the positions of the two present commissioners shall be open for election. At that time one commissioner shall be elected by the county voters within the city of Chicago and one shall be elected by the county voters outside the city of Chicago. The three members of the board shall elect from their number a chairman whose duties and powers will be determined by law or by board rule. In the case of any vacancies, the ordinance provides that the County Board of Commissioners shall appoint a suitable person to fill the vacancy for the remainder of the term. Decisions of the board of appeals to correct any assessment shall be made if two of the three commissioners concur therein.

The ordinance specifies that it was enacted pursuant to the authority granted to the county of Cook as a home rule unit by the 1970 Constitution of the State of Illinois. Article VII, section 6(a) of the Constitution provides that a county which has a chief executive officer elected by the county voters is a home rule unit. As a home rule unit, Cook County is given the authority to “exercise any power and perform any function pertaining to its government and affairs.” (Ill. Const. 1970, art. VII, sec. 6(a).) This authority is limited by the provisions of section 6 which includes the following limitation, “A home rule unit shall have the power subject to approval by referendum to adopt, alter or repeal a form of government provided by law.” (Ill. Const. 1970, art. VII, sec. 6(f).) Section 6(f) also places further restrictions on Cook County’s power to change the method of election of its board of commissioners.

Plaintiffs filed the present action on June 6, 1983, charging that the ordinance is unconstitutional. Defendants filed a motion to dismiss the complaint which was denied. The court, after considering memoranda and oral arguments by the parties, held that Ordinance No. 115923 is invalid and unenforceable. The court permanently enjoined defendants from proceeding with any election authorized by the ordinance.

The first question to be considered is whether the County of Cook has authority to establish by ordinance a third commissioner on the board of appeals under section 6(a) because the assessment of real estate pertains to its government and affairs. Defendants assert that the commissioners of the board of appeals are county officials and that historically the assessment process has been performed at the county level. Board commissioners are county residents, elected by voters in the county, and paid out of the county treasury. Plaintiffs contend that the assessment, collection and distribution of real property taxes pertains to and affects the government and affairs of not only the county, but also a multitude of taxing bodies that levy taxes on real estate situated in Cook County. Plaintiffs have cited the following statistics, with which defendants agree. Of the total 1982 real estate taxes collected in the city of Chicago, 91.85% went to taxing bodies other than Cook County. Of the 1982 real estate taxes collected throughout Cook County, 90.87% went to government units and local taxing bodies other than the county.

Plaintiffs contend that the ordinance in question is unconstitutional for the same reasons as the Cook County ordinance held unconstitutional in Bridgman v. Korzen (1972), 54 Ill. 2d 74, 295 N.E.2d 9. The ordinance in Bridgman sought to alter the-real estate tax collection plan required by the Revenue Act from a twice-a-year collection plan to a four-times-a-year collection plan. The court stated that “[a]l-though obviously there are powers and functions of county government which pertain to its government and affairs within the contemplation of article 6 ***, the collection of property taxes is not one of them.” (54 Ill. 2d 74, 78, 295 N.E.2d 9, 11.) The court reasoned that in the collection and distribution of taxes the county acts both for itself and for the other taxing bodies which levy taxes on real property located within the county. The collection function does not pertain to the county’s government and affairs to any greater extent than it pertains to the government and affairs of the other taxing bodies for whose benefit the county acts. The court concluded that the ordinance was not within the county’s home rule authority.

Defendants attempt to distinguish Bridgman by the fact that the ordinance in the case at bar pertains to the assessment rather than the collection of real property taxes. Further, defendants argue that Bridgman, as well as other decisions under section 6 (County of Cook v. John Sexton Contractors Co. (1979), 75 Ill. 2d 494, 389 N.E.2d 553; Allen v. County of Cook (1976), 65 Ill. 2d 281, 357 N.E.2d 458; Ampersand, Inc. v. Finley (1975), 61 Ill. 2d 537, 338 N.E.2d 15), employs a “balancing” analysis when reviewing a challenge to ah ordinance based upon competing or concurrent governmental interests. Plaintiffs contend that none of the cases cited by defendants supports their position that a dominant interest test should be used to determine whether a matter “pertains to” a home rule unit’s government and affairs and that, even were such a test employed, the county does not have a dominant interest in the assessment of property taxes.

We recognize the mandate contained in section 6(m) of article VII of the Illinois Constitution that “[p]owers and functions of home rule units shall be construed liberally.” (Ill. Const. 1970, art. VII, sec. 6(m).) Courts of our State have not hesitated, however, to strike down home rule ordinances where it is determined that the ordinances do not pertain to the government and affairs of a local unit. (Ampersand, Inc. v. Finley (1975), 61 Ill. 2d 537, 338 N.E.2d 15; Cummings v. Daley (1974), 58 Ill. 2d 1, 317 N.E.2d 22; Paper Supply Co. v. City of Chicago (1974), 57 Ill. 2d 553, 317 N.E.2d 3; Bridgman v. Korzen (1972), 54 Ill. 2d 74, 295 N.E.2d 9.) After reviewing the pertinent constitutional provisions and decisions of the supreme court, we conclude that Cook County does not have authority under its home rule powers to enact the subject ordinance.

Defendants’ attempt to distinguish the present ordinance from the ordinance found invalid in Bridgman must fail. If collection of property taxes does not pertain to the government and affairs of the county, surely the assessment of those taxes which requires a greater use of discretion, also does not pertain to the county’s affairs. The assessment of a tax is an important phase in any taxing scheme leading from the imposition of a tax rate to the collection and distribution of the tax monies. The distinction between the collection and the assessment functions is not sufficient to avoid application of Bridgman to the case at bar.

Contrary to defendants’ argument, the establishment of procedures for the assessment of real estate tax has historically been a matter for the legislature. In People ex rel. Green v. Board of Commissioners (1898), 176 Ill. 576, 52 N.E. 334, the supreme court held that the Illinois Constitution of 1870 gave to the legislature the task of establishing an assessment review system. The Revenue Act of 1939 maintains the General Assembly’s authority over the assessment of property. (Ill. Rev. Stat. 1983, ch. 120, par. 482 et seq.) The method of assessment and review established by the Revenue Act for Cook County has been upheld as constitutional in La Salle National Bank v. County of Cook (1974), 57 Ill. 2d 318, 312 N.E.2d 252. The fact that the board of appeals commissioners are elected at the county level is a feature of the State statutes and cannot be used to demonstrate a source of power for the county to supersede these same statutes.

Further, we find that defendants have not shown any support for their argument that the county’s interests predominate over the interests of the other 569 taxing bodies dependent on the tax monies assessed and collected from property in Cook County. As in Bridgman, “the county acts both for itself and the other taxing bodies authorized to levy taxes on property within the county, and the function thus performed does not pertain to its government and affairs to any greater extent than to the government and affairs of the other taxing bodies for whose benefit it acts.” Bridgman v. Korzen (1972), 54 Ill. 2d 74, 78, 295 N.E.2d 9, 11.

Defendants next contend that the ordinance is authorized by article VII, section 4(c) of the 1970 Constitution. Section 4(c) provides in part: “Each county shall elect a sheriff, county clerk and treasurer and may elect or appoint a coroner, recorder, assessor, auditor and such other officers as provided by law or by county ordinance.” (Ill. Const. 1970, art. VII, sec. 4(c).) Defendants contend that the ordinance in question is an attempt to provide for an additional county officer on the board of appeals under Section 4(c).

Section 4(c) applies to both home rule and non-home-rule counties. The committee proposal of the local government committee to the Constitutional Convention stated that section 4(c) would “permit the selection of other county officials by ordinance *** comparable to the existing statutory power of municipalities to create additional officers without specific legislative authorization. (See Ill. Rev. Stat., ch. 24, secs. 3 — 4—19, 3 — 7—1 (1969).)” (7 Record of Proceedings, Sixth Illinois Constitutional Convention 1706-07 (hereinafter cited as Proceedings).) Defendants seek to establish the constitutionality of the ordinance regardless of whether its home rule authority supports it by arguing that in creating the office of the third commissioner the county has not acted to modify the rules governing the assessment procedures but has merely provided for an additional county office. We find this argument to be misleading. In addition to creating a third commissioner, the ordinance permits a change of an assessment to occur upon the vote of two of the three commissioners rather than upon their unanimous vote. This dilution in voting strength of the present two commissioners as well as other changes made by the ordinance constitute material alterations in the assessment process established by the legislature. In light of these changes the constitutionality of the ordinance cannot rest solely on the county’s authority under 4(c) but must also be buttressed by its home rule powers. Having determined that the ordinance is not supported by the county’s home rule powers, the county’s authority to create new offices does not save the ordinance.

Lastly, defendants contend that the subject ordinance does not conflict with the provisions of the Revenue Article (Ill. Const. 1970, art. IX). Although we need not reach this issue, we note that the provisions of article IX clearly give the General Assembly the authority to enact a uniform system of property tax assessment. Section 4(a) states that “taxes upon real property shall be levied uniformly by valuation ascertained as the General Assembly shall provide by law.” (Ill. Const. 1970, art. IX, sec. 4(a).) This provision shows an express desire on the part of the framers of the constitution for a uniform system of tax assessment. See 3 Proceedings 1892, 2029.

The language of section 4(a), like its predecessor section 1 of article IX of the 1870 Constitution, specifically refers to the General Assembly as the body that is to determine how the valuation of property shall be ascertained. In interpreting this provision in the 1870 Constitution, People ex rel. Green v. Board of Commissioners (1898), 176 Ill. 576, 586-87, 52 N.E. 334, 338, recognized that section 1 of article IX “commits the whole matter of determining how property shall be assessed for taxes to the discretion of the General Assembly.” Green further stated that:

“The power to direct in what manner the assessments for taxes shall be made, and to designate the officers who shall make such assessments, is conferred on the legislature by the constitution, and the exercise of this power is not restricted in any way.” (176 Ill. 576, 589, 52 N.E. 334, 339.)

Article IX, section 4(a) of the 1970 Constitution is substantially similar to article IX, section 1 of the 1870 Constitution. It has been held that re-enactment of a constitutional provision after it has been construed represents approval of the prior interpretation. (Williams v. Crickman (1980), 81 Ill. 2d 105, 405 N.E.2d 799.) Additionally, in La Salle National Bank v. County of Cook (1974), 57 Ill. 2d 318, 329, 312 N.E.2d 252, 258, the supreme court observed that “[ujnder section 4(a) of article IX of the 1970 Constitution it is the General Assembly which has the authority to determine how and by whom the valuation of the property shall be ascertained.” (Emphasis added.) The ordinance at issue clearly runs afoul of the exclusive legislative authority suggested by La Salle.

After oral arguments were had in this case, defendants cited In re Objection of Cook to Referendum Petition (1984), 122 Ill. App. 3d 1068. In re Cook involved consideration of whether a county could change by countywide referendum the manner of selection of the office of supervisor of assessments from an appointed office to an elected office. The court found that section 4(c), which states in part, “Any office may be created or eliminated and the terms of office and manner of selection changed by county-wide referendum” (Ill. Const. 1970, art. VII, sec. 4(c)), is a limitation on legislative power in the revenue area and expressly allows county voters to change the manner of selection of county officers. We are not persuaded that In re Cook affects the determination of this case since the ordinance at issue attempts to change by vote of the Cook County Board far more than the manner of selection of the two existing board of appeals commissioners.

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

Judgment affirmed.

BUCKLEY, P.J., and O’CONNOR, J., concur.

      Additional defendants, the Chicago Board of Election Commissioners, have not taken a position on the constitutionality of the ordinance.