author: JUSTICE UNVERZAGT

text:
      In re CITY OF WOODSTOCK SPECIAL ASSESSMENT FOR THE CONSTRUCTION OF STORM SEWER, CURB AND GUTTER, SIDEWALK, GRAVEL BASE COURSE AND BITUMINOUS CONCRETE SURFACE ON CALHOUN STREET FROM MADISON STREET TO FAIR STREET AND KNOWN AS SPECIAL ASSESSMENT NUMBER 76—(The City of Woodstock, Petitioner-Appellant, v. Harold E. Wicks et al., Objectors-Appellees and Cross-Appellants; Rocco P. Dawson et al., Objectors-Appellants).
    Second District
    No. 82—533
    Opinion filed June 9, 1983.
    Rehearing denied July 11, 1983.

      Michael T. Caldwell, of Caldwell, Berner & Caldwell, of Woodstock, for appellant City of Woodstock.
    James A. Campion, of Holmstrom and Green, of Woodstock, for other appellants.
    Daniel A. Mengeling, of Johnson and Mengeling, of Woodstock, for appellees.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

This appeal arises from the levy of a special assessment for an improvement in the city of Woodstock (hereinafter city). Following a hearing on objections to the special assessment, the trial court reapportioned the percentage of public and private assessment for the improvement, reducing the amount that the property owners who had objected would pay. The city appeals that decision. The property owners who had objected (hereinafter objectors) cross-appealed. Other property owners who had not objected to the special assessment until after the objectors’ challenges had been heard and ruled on (hereinafter defaulters) also appealed.

In February 1982, the city enacted an ordinance providing for the construction of a storm sewer, curb and gutter, sidewalk, gravel base course, and bituminous concrete surface on a certain section of Calhoun Street. The improvements had been duly recommended by the board of local improvements. Thereafter, the city filed a petition in the circuit court of McHenry County seeking the levy of a special assessment for those improvements. A commissioner was appointed to make an assessment of the cost of the improvement. He found the total cost to be $523,512.69 and designated the amount for the public benefit as $366,433.72 and the private benefit as $157,078.97. He filed an assessment roll in accordance with those figures.

Objections were filed by owners of certain properties included in the assessment roll, including the 27 objectors now appealing and others. In March 1982, an order of partial confirmation was entered against lots whose owners had not appeared or objected, noting that proper notice had been published. The legal objections were tried before the court on May 4, 1982. The court entered an order on May 14, 1982, overruling all objections, reducing the percentage proportion of the total cost of the improvement to 15% as to the objecting properties and raising to 85% the public benefit, and denying the objectors’ request for a jury trial. The assessment roll was revised, objections to it and a jury trial on those objections were denied, and on June 10, 1982, the revised assessment roll was confirmed.

On July 8, 1982, other property owners included on the assessment roll, who had not previously objected, filed a motion to vacate the order of confirmation and for leave to file objections to the revised assessment roll. That motion was denied.

The city appealed the reduction of the percentage proportion as to the objectors, the objectors cross-appealed, and the defaulters appealed. The issues presented for review are as follows: (1) whether the improvement for which the special assessment was sought was a local improvement within the meaning of article VII, section 7 of the Illinois Constitution; (2) whether the objectors were entitled to a jury trial on certain objections they raised; (3) whether certain benefited property was erroneously omitted from the assessment roll; (4) whether the trial court has the authority to reduce the amount of private benefit to the objectors’ property; (5) whether there was a proper basis in the evidence for the amended apportionment ordered by the trial court; (6) whether it was error for the trial court to limit the amended distribution of private and public benefit to only those parcels for which objections had been filed; and (7) whether the defaulters should have been permitted to challenge the revised assessment roll, notwithstanding the order of default and partial confirmation entered against them.

Article VII, section 7 of the Illinois Constitution of 1970 gives municipalities that are not home rule units the powers to make local improvements by special assessments. In their cross-appeal, the objectors challenge the characterization of the proposed improvement as a “local improvement.” They contend that the improvement contemplated is not a local one in that its primary purpose is to benefit the public and it only incidentally benefits the private properties affected.

Local improvement was defined in City of Chicago v. Blair (1894), 149 Ill. 310, 314-15, as a public improvement that, by reason of its being confined to a locality, enhances the value of adjacent property, as distinguished from benefits diffused by it throughout the municipality. In Loeffler v. City of Chicago (1910), 246 Ill. 43, 52, the court noted that the test for whether an improvement is local is whether it specially benefits the property assessed; in addition, an improvement may be local even when of some general benefit to the public if the substantial benefits to be derived from it are local in their nature and the portion of the city where the improvement is made will be specially and peculiarly benefited in the enhancement of the property. The court also stated that the test of a local improvement is not its locality or intended use, but whether it will specially enhance the value of the property in its locality. (246 Ill. 43, 46.) In City of Edwardsville v. Jenkins (1941), 376 Ill. 327, 330, the court found that whether an improvement is local depends upon whether the benefits arising therefrom are special and local and specially benefit the property assessed, not upon the character of the improvement or the kind of service to be rendered.

The objectors rely on the rule of City of Waukegan v. DeWolf (1913), 258 Ill. 374, 381, where the court stated that if the purpose and effect of an improvement are to improve a locality, it is a local improvement even though there is incidental benefit to the public; but if the primary purpose and effect are to benefit the public, it is not a local improvement although it may incidentally benefit property in a particular locality. That rule was reiterated by this court in Village of Hinsdale v. Lowenstine (1974), 23 Ill. App. 3d 357.

The city responds that, under article 9 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, pars. 9 — 1—1 through 9 — 5—3), the “benefit” is to be interpreted in terms of the total cost of the improvement and is equal to the assessment. Section 9 — 2—45 provides that there be an estimate of what proportion of the total cost of an improvement will benefit the public and what proportion will benefit the property to be benefited and then an apportionment of the total cost between the municipality and that property so that each bears its relative equitable proportion. (Ill. Rev. Stat. 1981, ch. 24, par. 9 — 2— 45.) The amount benefiting the property is then apportioned among the several parcels in the proportion in which they will be severally benefited by the improvement, no parcel being assessed a greater amount than it will actually be benefited. The city’s argument equating benefit and assessment suggests that if there is any calculable private benefit, a special assessment may be levied. However, the objectors are correct in their argument that there must first be an improvement that falls within the constitutional definition of a local improvement before the levy of a special assessment is warranted.

It has been established that whether a given improvement is a local improvement within the meaning of the constitution is primarily a matter for determination by the corporate authorities. While whether such an improvement is local or general is a question of law, the question of whether the facts in a particular case bring an improvement within the definition of a local improvement is one of fact to be determined by the circumstances established by the evidence. However, the corporate authority’s determination that a given improvement is a local improvement within the meaning of the constitution is subject to review by the courts. (Johnson v. Village of Bellwood (1930), 338 Ill. 605, 608-09.) The objectors contend that the standard of establishing that a municipality was arbitrary and unreasonable, when challenging a special assessment, applies to the issue of whether an improvement is necessary but not to the issue of whether an improvement is local. However, in Illinois Central R.R. Co. v. City of Decatur (1894), 154 Ill. 173, 176, the court found that the power of a city council or board of trustees to declare what shall be local improvements is necessarily implied from the power to make the same in the mode and by the means prescribed in the statute and that a municipality may not declare such an improvement arbitrarily and unreasonably and without reference to benefit. Thus, since deciding when particular circumstances bring an improvement within the definition of a local improvement is a legislative function, as the city urges, that determination will not be overturned unless arbitrary or unreasonable.

Several cases dealing with street improvements have characterized such improvements as local. In Village of Marissa v. Jones (1927), 327 Ill. 180, 189, the paving of the village’s main road was deemed a local improvement. While a benefit to the public generally (particularly the part connecting the State hard road through the village), it would also be a particular advantage to the immediate locality and increase the value assessed. In Village of Glencoe v. Hurford (1925), 317 Ill. 203, 206, widening a street and taking off sharp angles at certain intersections was found to increase the value of the property specially assessed and therefore to be a local improvement. Those cases followed Illinois Central R.R. Co. v. City of Decatur (1894), 154 Ill. 173, 176, where paving a street with brick was considered a local improvement. In City of Peoria v. Peoria Ry. Co. (1916), 274 Ill. 48, 50-51, although the widening of a street would improve it for general travel, it would necessarily be a particular advantage to the immediate locality and was therefore a local improvement. In City of Chicago v. Lord (1917), 277 Ill. 397, 400, the widening of a street so narrow as to be inconvenient for street uses in connection with private property was a particular and immediate advantage to the locality.

In the instant case, despite the conceded benefit to the public, there was sufficient specific private benefit directed to the objectors’ property as distinguished from the municipality as a whole to be derived from the street improvements. There was evidence that the improvement was for a portion of Calhoun Street between Jefferson Street on the west and Country Club/Route 47 on the east. It crossed railroad tracks between Jefferson Street and Seminary Avenue and was to be widened to 28 feet there and conformed to the Illinois Commerce Commission regulations. East of Seminary, it was to be widened to 34 feet from a width of 20 feet, with a new storm sewer, curb, gutter, and sidewalk installed. The project would improve the condition of Calhoun Street and also improve access to the downtown area. In light of this evidence, it cannot be said that the private benefit was only incidental to the public benefit or that the characterization of the improvement as local was unreasonable or arbitrary.

The objectors had filed several objections to the original assessment roll. They contended that the proposed improvement was not a local improvement; that even if the proposed improvement was partially a local improvement, the commissioner’s apportionment between public and private benefit was inequitable; that the subject properties would not be benefited to the amount assessed thereon; and that the subject properties were assessed more than their proportionate share of the cost of the improvement. When the hearing commenced on May 4, 1982, it was correctly established by the court and counsel that there was to be a jury trial, preceded by an evidentiary hearing as to legal objections. At the hearing before the court, the city presented a prima facie case by introducing into evidence exhibits reflecting the earlier municipal proceedings and the assessment roll. The objectors then introduced testimony as to the nature, effect, purpose, extent, and cost of the improvement, as well as evidence that the commissioner’s division of public and private benefit was incorrect. On rebuttal, the city offered evidence of the local nature and necessity of the improvement and evidence as to how the commissioner arrived at the assessment roll.

Following the hearing, and after much discussion as to the province of the court versus that of the jury, the court ruled orally that the assessment rate be amended from approximately 70% public and 30% private to 85% public and 15% private, that there was no disproportionate assessment as to the assessment roll, and that all objections were disposed of and the request for a jury trial was denied. This was confirmed by written order. Later requests for a jury trial regarding the revised assessment roll were also denied.

In this cross-appeal, the objectors urge as error the denial of the request for a jury trial on the objections that their property would not be benefited to the amount assessed against it and that the property was assessed more than its proportionate share of the cost of the improvement. The city’s response is that if this court reverses the trial court’s amendment of the assessment roll, thus reinstating the original assessment roll, then the objectors would be entitled to a hearing before a jury; but it would be manifestly unfair to grant a jury trial on the roll as modified, which would allow two hearings on the same subject.

Section 9 — 2—57 of the Illinois Municipal Code, under which the objectors’ legal objections were heard, provides:

“[T]he court may set down all objections, except the objection that the property of the objector will not be benefited to the amount assessed against it, and that it is assessed more than its proportionate share of the cost of the improvement, for a hearing at a time to be fixed by the court. ***” (Ill. Rev. Stat. 1981, ch. 24, par. 9-2-57.)

Section 9 — 2—58 provides:

“If it is objected on the part of any property assessed for such an improvement, that it will not be benefited thereby to the amount assessed thereon, and that it is assessed more than its proportionate share of the cost of the improvement, and a jury is not waived by agreement of parties, the court shall impanel a jury to try that issue. ***” (Ill. Rev. Stat. 1981, ch. 24, par. 9 — 2—58.)

These two questions are so important that, unless the privilege is waived by the property owners, they are entitled to a jury trial; it is the plain intent of the law that legal objections shall be heard separately and apart from these issues. Doran v. City of Murphysboro (1907), 225 Ill. 514, 518-19.

Whether a plan for distribution of costs is equitable is a legal question to be decided by the trial court (In re Village of Palos Park (1980), 82 Ill. App. 3d 328, 331), as is the issue of whether an improvement is a local improvement. Thus, those two legal issues were within the scope of the hearing before the trial court in the present case. Our review of the hearing indicates that, while the evidence presented challenged the characterization of the improvements as local and the proportion of private benefit on the original assessment roll, the purpose of the hearing was not to prove that particular property was not benefited to the amount assessed or was assessed more than its proportionate share of the cost of the improvement. Since the nonlegal issues were not even presented, the trial court had no basis for deciding them. Since they were not waived, the objectors were clearly entitled to a hearing before a jury as to those issues. It was error for the trial court to deny them a jury trial.

In their cross-appeal, the objectors also posit that certain land west of the tracks, whose private benefit derived from the improvement was determined by the commissioner to be $31,400, should have been included in the assessment roll. On instructions from the city, the commissioner did not include the parcels in that section on the assessment roll. The city’s policy was that, once an area had a permanent municipal-type curb and gutter, no assessment would be made whether or not that curb and gutter had been made by special assessment. The objectors point out that the curb and gutter portion of the entire six-block improvement area was $33,267.92. They conclude that, therefore, the cost of replacing the curb and gutter west of the tracks was only a small part of the project cost, suggesting that at least the balance of the benefit should have been assessable against them. The city replies that, since no part'of the benefit west of the tracks was spread against any other property, the objectors did not meet their burden of showing that the city’s policy that a property pay for a curb and gutter only once was oppressive, arbitrary, or unreasonable. The city’s arguments are persuasive.

The railroad tracks were located between Jefferson Street (the west edge of the improvement) and Seminary Avenue. In that stretch, not only were curbs and gutters omitted, but no sidewalks were being constructed there and the roadway would be widened to 28 feet rather than to the 34 feet width east of Seminary Avenue. The objectors’ argument does not take into account the fact that, after the trial court reduced by one-half the percentage of private benefit accruing from the improvement, the amount of private benefit in excess of the cost of the curbs and gutters would have been substantially less and that the benefit from the sidewalk might also have been deducted. Thus there is no showing that the property west of the tracks is still benefited in excess of the curbs and gutters and sidewalks. Moreover, if the city agrees to bear the cost of whatever benefit might remain, for policy reasons, the assessment against the objectors will not be affected and therefore they will not be harmed. In Gordon v. Gordon (1955), 6 Ill. 2d 572, 574, the court stated that it is elementary that an appellant can assign as error only rulings that are prejudicial as to him, citing City of Mattoon v. Jennings (1929), 336 Ill. 93. In that case, the court held that an appellant may not urge the objection that other property owners have been omitted from an assessment roll. (336 Ill. 93, 99.) Thus, the objectors’ assertion of error fails.

The city initially posits that the ruling of the court in adjusting the proportions of public and private benefit was beyond and outside the law and arbitrary. The city believes that the objections were argued at the hearing before the court pursuant to sections 9 — 2—57 and 9 — 2—58 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, pars. 9 — 2—57, 9 — 2—58) and did not invoke the court’s summary powers under section 9 — 2—56 of the Code. The city suggests that section 9 — 2—56 simply contemplates a separate pretrial procedure and that the court’s powers thereunder may not be used at the end of a hearing convened for another purpose.

Section 9 — 2—56 gives the court “the power, on such application being made, to revise and correct the assessments levied, to change or modify the distribution of the total cost between the public and property benefited ***.” (Ill. Rev. Stat. 1981, ch. 24, par. 9 — 2—56.) Section 9 — 2—57 provides in pertinent part that the court may set down all objections, except those reserved for the jury, and upon hearing shall determine all questions relating to the distribution of costs of the improvement between the public and the property. Thus, as the objectors note, the court was clearly authorized to hear and decide the private/public benefit apportionment issue. That issue was one of the objections raised by the objectors and before the court. We disagree with the city’s contention that the order of statutory provisions controls the order of proceeding and determining issues arising from those provisions.

Moreover, where a court finds that the apportionment of costs of an improvement between the public and the property benefited is not equitable and just, it has a duty to change or modify the distribution accordingly. (City of Green Rock v. Van Opdorp (1966), 74 Ill. App. 2d 203, 205.) Thus, not only was the court acting within its proper authority, but it was exercising a duty.

The city next contends that, even if the trial court was acting under proper authority, there was no legal basis in the record to support its order. The city states that the commissioner and the objectors’ expert, who both offered testimony as to the spread of public and private benefit, used different appraisal approaches. According to the city, the evidence merely indicates a difference of opinion and falls short of establishing a ground for modifying the commissioner’s decision. The city also charges that the objectors introduced no evidence of the fair market value of the objectors’ property before the assessment and urges that this failure of proof is fatal to the objection regarding the spread of benefits.

The objectors respond that the standard to be applied is whether the trial court’s decision is against the manifest weight of the evidence. They note that the statute provides for review by the court and argue that this can occur only by hearing conflicting opinion testimony from qualified appraisers, supplemented by additional factual matter and challenged by cross-examination. The additional evidence relied on by the objectors includes testimony as to the purpose of the improvement in connecting Route 47 to the central business district (making Calhoun Street one of three arterial streets between the city’s two areas of major commercial development and redevelopment); the conformance of the approach to the tracks to Illinois Commerce Commission regulations (ostensibly for safety purposes); and transition of the area during the next 10 to 20 years from an older residential neighborhood to two-family, office, and other commercial uses. The objectors also suggest that the court was justified in discounting the opinion of the city appraiser, based on his experience and his method of comparison.

At the hearing, the commissioner testified that his determination of whether the amount assessed against the properties exceeded the benefits was based on a “match-pair” theory, which compares the sales of two parcels that are similar except as to the item being appraised. He compared fully improved lots with unimproved lots and therefore discounted any value of existing improvements in arriving at his opinion. He was aware that the- objectors’ property had a sidewalk, which he said did not add to the value of the property in its present condition, and a “V” gutter. He stated that he used 40 to 50 sales in his analysis. He later said that he used two comparables — the sale of improved and unimproved duplex lots, with a difference of $50 per frontage foot. When he totaled the increase in value, it was about $280,000 or 54% of the total project cost. About $250,000 of this was allocated to the property east of the tracks. This exceeded the amount that the city had advised him would be spread among private properties after the city picked up its share of the cost, including what would be paid under FAUS funds. After that adjustment, the private share came to about 30% of the cost of the improvement.

The objectors’ expert inspected and analyzed all 27 properties of the objectors and investigated the surrounding area to become familiar with environmental facts such as zoning and commercial development. He gathered sales data and estimated the value of individual lots in the improvement area and established a value estimate assuming all the improvements were completed. After arriving at a top value applicable to the project area with improvements in place, he compared sample lots and arrived at individual property values for each parcel. He calculated a total value before and after the improvement and found a $25,700 difference or 5%. He used 22 vacant lots for analysis, most of which had some or all of the improvements— curb, gutter, sidewalk and paved street. He also used improved residential property and multifamily parcels.

Under section 9 — 2—56 of the Illinois Municipal Code, the statutory standard for a trial court’s inquiry into the distribution of costs between the public and the private is whether it is just and equitable. Most of the cases that discuss the standards for reviewing benefit deal with assessments as to individual properties, but since that is the general basis of the composite private benefit, some of the principles are applicable. The basis of an assessment is the proportionate enhanced market value of the property. (In re Village of Palos Park (1980), 82 Ill. App. 3d 328, 332.) An assessment roll is prima facie evidence that the objectors’ properties are benefited to the extent shown. To overcome the prima facie case made by the introduction of that roll, the objectors must show the fair cash market value of the property before and after the improvement, and a conclusional statement of an expert is not sufficient. (In re Petition to Levy a Special Assessment for Construction of Sidewalks (1973), 10 Ill. App. 3d 243, 246.) A reviewing court will not disturb a finding on the question of benefits unless it is clearly and palpably against the manifest weight of the evidence. Where the assessments fixed by the trial court are within the range of the testimony as to private benefit, they need not match the figures given by either side. In re Petition to Levy a Special Assessment for Paving Improvement (1973), 15 Ill. App. 3d 357, 360.

Here, there was evidence that both appraisers determined what they considered to be the value of the property in the area assessed with and without the proposed improvement. That difference was the basis for their respective apportionments of private and public benefit. They offered explanations of their methods of analysis, which gave the trial court a means of evaluating their conclusions. This was not simply a case of opposing conclusional opinions. The court reasonably could have found that each was incorrect to some extent, based upon the factors they considered and their credibility. The trial court’s adjustment of the private proportion of benefit to 15%, a figure within the range of testimony, had a sound basis and was not against the manifest weight of the evidence.

Next we determine whether it was error for the trial court to limit its amended distribution of private and public benefit to only those parcels for which objections had been filed. An order of partial confirmation of the original assessment roll was entered by default on March 16, 1982, against those property owners included on the assessment roll who had not appeared or objected. After the court reduced the percentage of private benefits, certain of those property owners (the defaulters) attempted to object. On July 9, 1982, the court entered an order against them, denying their motion to vacate the judgment of confirmation and their motion for leave to file objections to the revised assessment roll. The defaulters contest that order.

The city argues that the defaulters’ appeal to this court is untimely under section 9 — 2—140 of the Illinois Municipal Code, which prohibits appeals after 30 days from the entry of the final judgment or order. (Ill. Rev. Stat. 1981, ch. 24, par. 9 — 2—140.) The city urges that the judgment as to the defaulters was final on March 16, 1982. However, although the March 16 order is relevant to the merits of the appeal, it is not the order from which the defaulters are appealing. Their appeal is timely as to the order of July 9, 1982.

The defaulters argue that the court erred in applying the amended 85% public benefit and 15% private benefit to only those parcels for which objections had been filed against the original assessment roll. They characterize this as a “dual standard” with respect to public versus private benefits and assert that a dual standard is contrary to the express provisions of the statutes relating to special assessments and also violates constitutional provisions for equal protection and due process. The city replies that all procedural requirements (e.g., filing of the assessment roll and proper notice) were observed prior to the entry of the order of partial confirmation and that there is no impropriety or illegal defect in entering judgment by default against unobjecting properties.

The defaulters charge error in the court’s failure to apply the reduced amount of private benefit to them. However, as they acknowledge, at the time the court entered its judgment ordering the assessment roll to be revised as to the objectors, the default judgment of partial confirmation was clearly in effect against the defaulters. In fact, the defaulters did not appear before the court at all until nearly a month after the revised assessment roll was confirmed. We find no impropriety in the entry of that default, nor has any reason been shown for the trial court to have ignored that judgment and applied the reduced private benefit to the defaulters.

The entry of the default judgment was authorized under section 9— 2 — 55, which provides that “[a]s to all lots, blocks, tracts, and parcels of land, to the assessment of which objections are not filed within the specified time, or such other time as may be ordered by the court, default may be entered, and the assessment may be confirmed by the court, notwithstanding the fact that objections may be pending and undisposed of as to other property.” (Ill. Rev. Stat. 1981, ch. 24, par. 9— 2 — 55.) The legislature did not expressly limit this section to apply only to particular objections but apparently intended that default judgments could be entered against any property that filed no objection, regardless of the nature of unresolved objections raised by other properties.

The authority of a court to enter a default in such circumstances has been upheld from an early date. In Dalamater v. City of Chicago (1895), 158 Ill. 575, 579-80, the court upheld the entry of a default judgment confirming an assessment upon failure of certain property owners to appear, noting that the judgment of confirmation as to each tract of land is a several judgment. In Markley v. City of Chicago (1897), 170 Ill. 358, 360, the court noted that a defaulted party is deemed to have confessed all that is well alleged against him in the pleadings. The court also stated that he may nevertheless on review urge that, admitting all that is well alleged, the judgment against him is unwarranted. Here, however, the defaulters do not suggest that the entry of the default judgment was unwarranted but rather challenge the refusal of the trial court to apply its subsequent judgment to them, notwithstanding the default judgment.

The defaulters argue first that the revised assessment roll was patently erroneous in that the assessment roll could be recast only in such a way that the new assessment against the individual parcels collectively would not exceed the total amount of local benefit. In their view, the trial court’s determination that the local benefit was 15% rather than 30% was a conclusion of fact that could not logically vary from parcel to parcel. They posit that the statute contemplated a uniform application of the private apportionment of the cost of improvements to all parcels, whether or not they objected. However, such an interpretation would emasculate the provision for default, which is specifically allowed even when objections are pending as to other property. When faced with a question of statutory interpretation, we are not free to disregard one part of a statute in favor of another; rather, we must read the act as a whole, according significance and effect, if possible, to every sentence, phrase, and word, without destroying the sense and effect of the law, so that no word, clause, or sentence is rendered meaningless or superfluous. (Davis v. Attic Club (1977), 56 Ill. App. 3d 58, 62.) Thus, the provision for default must be viable.

In addition, other sections of the statute also demonstrate that the legislature did not contemplate that judgments be equally applied to all parcels in all circumstances. Section 9 — 2—65 describes the effect of judgments of the court. They shall be final as to all the issues involved; a judgment shall have the effect of several judgments as to each tract or parcel of land assessed; no appeal from any such judgment shall invalidate or delay the judgments, except as to the property concerning which the appeal is taken; and the judgment shall be a lien on behalf of the municipality making an improvement. The courts have strictly applied the provision that a judgment on appeal applies only to the particular property for which the appeal was taken and has no effect on the other several judgments.

In Kelly v. City of Chicago (1893), 148 Ill. 90, 95, the court held that an earlier appeal affected only the property owners who had participated in the appeal, even though the appeal dealt with the same assessment roll then being challenged by property owners who had not joined the earlier appeal. In City of Chicago v. Partridge (1911), 248 Ill. 442, 446, the court determined that an earlier judgment in a former proceeding, holding that jurisdiction over a particular area did not exist for purposes of making a proposed improvement, did not operate under the doctrine of res judicata to bar an assessment against a property owner who had not then objected but whose property was in that area. The court noted that a judgment of confirmation against one tract is in nowise affected by the reversal of that judgment as to another tract, so a judgment sustaining objections as to one tract could not be interposed as an estoppel or bar to an assessment in another proceeding. 248 Ill. 442, 454.

A trilogy of cases applying that principle began with Vennum v. Village of Milford (1903), 202 Ill. 423, 426, where the ordinance on which an assessment was based was held invalid on the ground that no legal petition was presented to the board of local improvements. In Sumner v. Village of Milford (1905), 214 Ill. 388, the appellants argued that the Vennum reversal of the judgment as to the tract owned by Vennum operated to set aside the tax as to their property also. Although the facts alleged on appeal were the same as those stated in the Vennum case, the court held that the Vennum reversal had no effect as to any other piece of property. (214 Ill. 388, 390-91.) In Goldstein v. Village of Milford (1905), 214 Ill. 528, 532, the court also refused to apply Vennum to void the judgment of confirmation in a proceeding to enforce payment of the assessment, noting that under the statute a judgment of confirmation had the effect of several judgments and that an appeal from one judgment would not affect other judgments.

Applying these principles to the present issue, those who chose not to appeal may be compared to the defaulters. It is clear that, even where issues have been settled by the court, failure to participate in their adjudication is reason enough for being denied the benefit of favorable judgments. Thus, the defaulters’ argument that the statute itself precludes the action of the trial court in reducing only the objectors’ private benefit fails. The default was properly entered. As a result, the defaulters were not a proper target of the court’s order, and the statute and cases do not permit those who do not pursue their rights in a timely fashion to enjoy the results obtained by those who do.

The defaulters also raise a constitutional objection to the trial court’s order. They argue that, by reducing the private responsibility for the improvement only as to the objectors, the court created a new classification that was arbitrary and unreasonable in violation of State and Federal constitutional guarantees of equal protection and due process.

The principles of equal protection are well established. Illinois constitutionally mandates 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.) In Hoffmann v. Clark (1977), 69 Ill. 2d 402, 423, it was determined that the legislature has the power to classify real property in assessing taxes. When it does, there is a presumption favoring the validity of the classification, and the one assailing it has the burden of showing that the classification is arbitrary. The reasons justifying the classification need not appear on the face of the statute, and the classification must be upheld if any state of facts can reasonably be conceived that would sustain it. The equal protection question, therefore, is whether there exists a rational basis for the provision. 69 Ill. 2d 402, 425.

The authority to make local improvements by special assessment is granted by article VII, section 7 of the Illinois Constitution of 1970. The requirement of uniformity with respect to persons and property that applies to taxes is omitted for local improvements by special assessment or special taxation. (Murphy v. People ex rel. Weiennett (1887), 120 Ill. 234, 241.) However, so far as practicable all property affected should bear the burden of local improvements equally, but this principle of uniformity and equality applies only to the property benefited by local improvement and not to other property in the municipality. City of Chicago v. Smith (1923), 310 Ill. 244, 245-46.

The defaulters’ position is that the trial court’s “creation of a new classification” by applying a “dual standard” was arbitrary and unreasonable. However, since we have determined that the provision for default was intended to apply here and that the effect of the default judgment was that the court acted properly in applying its order to only those who objected, the crux of the equal protection issue is whether the provision permitting entry of default judgments violates equal protection since it may result in a class of property being assessed at different rates for the same local improvement.

The statute merely provides a process through which two different groups of property owners may result: those who object and those who do not. Due process is satisfied by the notice requirement (Citizens’ Savings Bank & Trust Co. v. City of Chicago (1905), 215 Ill. 174, 176), and all property owners have an equal opportunity to appear and challenge the assessment roll. There is no discrimination at that point. It is the nonobjectors who, by defaulting, place themselves in a group that will potentially be treated differently from those who object.

Moreover, this statutory potential for the objectors to receive an advantageous judgment not available to the defaulters does not violate equal protection. A somewhat analogous issue was addressed in Hundert v. Bieszczat (N.D. Ill. 1981), 526 F. Supp. 1051, which dealt with the Illinois tax refund system. Under the refund system, if a tax levied in a given year was eventually found to be excessive, all taxpayers who paid taxes under written protest automatically would receive appropriate refunds. The refunds would represent the same proportion of each taxpayer’s bill that the portion of the rate illegally levied bore to the total rate for the tax year involved. The issue was whether providing refunds to only those taxpayers who had filed objections, rather than to all taxpayers, violated the equal protection clause. In its analysis, the court first determined that the class consisting of Illinois taxpayers who do not file objections is not a “suspect class”; therefore, the Illinois law would violate the equal protection clause only if there were no rational basis for the distinction drawn. The court concluded that there were many reasons that would support the distinction, such as the undue burden that might result if the taxing authorities themselves had to determine precisely who was currently entitled to a refund.

In the instant case, not objecting to the assessment roll and consequently having an assessment confirmed by default is similar to paying a tax without protesting its validity and as a result being denied a refund of any overassessment. There could be many rational bases for the default provision, such as encouraging property owners to appear and raise any objections at the proper time so that problems may be expeditiously resolved. There could also be valid reasons for the conclusiveness of the judgment and the inability of the court later to change the rate based on objections as to other property; since the effect of a judgment is to give the municipality a lien on property for which the assessment roll has been confirmed, there may be reasons for the city to rely on that lien.

The defaulters have not met their burden of showing that there was no rational basis for the difference in rates that resulted from the default. Simply relying on the actual result — the levy of the special assessment at different rates based on the separate judgments against the defaulters and the objectors — is not enough in light of the statutory authority for default and the defaulters’ own responsibility for their plight. This is not an instance where the municipality levied an assessment that was inherently discriminatory as to certain property; the original assessment roll apportioned 30% of the cost of the improvement among the affected property, ostensibly according to the proportionate share of each tract. Rather, the so-called “dual standard” can be attributed solely to the defaulters’ failure to exercise their right to object.

Finally, the defaulters contend that, even if the trial court properly applied its order only to the objectors and the order of default and partial confirmation stands, it does not bar them from objecting to the revised assessment roll on the ground that it applies a patently erroneous dual standard of private versus public benefit. The defaulters rely on a statement in Johnson v. People ex rel. Kochersperger (1898), 177 Ill. 64, 67: “If a valid reason arose, after the default and judgment were entered, for setting them aside on account of a change in the conditions upon which they were entered, application should have been made to the county court.” The defaulters believe that what they characterize as a dual standard in determining public versus private benefit is such a change in conditions. However, we have already determined that the court’s judgment reducing the private benefit presented no basis for amending the judgment as to the defaulters. The defaulters cite Chicago & Western Indiana R.R. Co. v. City of Chicago (1907), 230 Ill. 9, where a property owner who was defaulted for failure to object was permitted to challenge a revised assessment roll. However, there the revised roll increased the amount assessed to the defaulter’s property, and the increase was made without authority of the court. Here, the revised assessment roll altered the figures in the original assessment roll only as to the objectors; the assessments against the defaulters remained unchanged from the original assessment roll. Although the defaulters’ property appeared on the revised assessment roll, the earlier default judgment, several in nature, controlled, and the revised assessment roll in no way affected them.

It is true that the defaulters had no way of knowing that the court ultimately would reduce the private benefit. However, neither did they attempt to become involved in the process until after a result was reached that was favorable to the objectors. (They did not move to set aside the default judgment within 30 days in accordance with section 2 — 1301(e) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1301(e)) or attempt to reopen the judgment under section 2— 1402 (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1402).) At that point, although presumably they had borne no share of the expense and effort of litigating the issues diligently raised by the original objectors, they wanted to be included in the outcome. To allow them to sit back and wait for the result of the hearing as to the objectors who did properly challenge the assessment roll and then take advantage of a favorable ruling is not permissible.

The judgment of the circuit court of McHenry County is affirmed except as to its order denying the objectors a jury trial on the benefit issue.

Affirmed in part; reversed in part and remanded.

HOPF and NASH, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE SEIDENFELD

license: Public Domain

text:
      In re MARRIAGE OF RUSSELL A. BRADY, Petitioner-Appellant, and CATHLEEN E. BRADY, a/k/a Cathleen E. Vacek, Respondent-Appellee.
    Second District
    No. 82—784
    Opinion filed June 10, 1983.
    William J. Scott, Jr., of Mirabella and Kincaid, of Wheaton, for appellant.
    John L. Stainthorp, of Chicago, for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Russell A. Brady appeals from an order which granted the petition of Cathleen E. Brady, now known as Cathleen E. Vacek, the custodial parent of Danna Brady, to remove the child from Illinois to Texas.

He contends that the order did not comply with the July 1, 1982, amendment to the Illinois Marriage and Dissolution of Marriage Act:

“The court may grant leave, before or after judgment, to any party having custody of any minor child or children to remove such child or children from Illinois whenever such approval is in the best interests of such child or children. The burden of proving that such removal is in the best interests of such child or children is on the party seeking the removal. When such removal is permitted, the court may require the party removing such child or children from Illinois to give reasonable security guaranteeing the return of such children.” (Emphasis added to reflect amended portion.) Ill. Rev. Stat. 1981, ch. 40, par. 609.

Case law prior to the amendment had interpreted the former provision as requiring that the parent seeking removal had the burden of proof but that a prima facie showing was made when the custodian stated a desire to move, a sensible reason for the move, and “some showing that the move is consistent with the best interests of the child.” In re Marriage of Feliciano (1981), 103 Ill. App. 3d 666, 672; In re Marriage of Burgham (1980), 86 Ill. App. 3d 341, 346.

The father argues, however, that the amendment indicates a legislative intent to reject the rationale of prior case law and to “clearly” place the burden of proof on the party seeking the removal; and that this requires a different result here. We do not agree.

The legislature is presumed to know the prior construction of a statute and when it uses previously construed terms in an amendment it is presumed that the legislature intended to adopt the prior construction. (Hupp v. Gray (1978), 73 Ill. 2d 78, 86; Marshall Field & Co. v. Village of South Barrington (1981), 92 Ill. App. 3d 360, 365; 1A Sutherland, Statutes & Statutory Construction sec. 22.35 (4th ed. 1972).) These general principles as well as the brief legislative history of the amendment suggest that the amendment was not intended to be a significant departure from the prior law. In the only substantive comment on the amendment (1981 Ill. Laws 2601) Representative Grossi referred to the fact that appellate courts had rendered divergent opinions as to whose burden it was to show that the removal was in the best interests of the child. Several opinions had stated that removal always should be allowed unless there is a specific showing that the move would be detrimental to the child. (See, e.g., Tandy v. Tandy (1976), 42 Ill. App. 3d 87, 90; In re Marriage of Siklossy (1980), 87 Ill. App. 3d 124, 128.) He continued “this bill is very simple. It simply says that the party seeking to remove the child from the State has the burden of proving that it is in the best interests of the child.” H.B. 415, 82d Gen. Assembly, 1st Sess., at 246 (May 14, 1981) (remarks of Rep. Grossi).

The proper statutory construction, even after the amendment, therefore appears to be that enunciated in In re Marriage of Burgham (1980), 86 Ill. App. 3d 341, 346, or in In re Marriage of Feliciano (1981), 103 Ill. App. 3d 666, 672. Under these cases the petitioning spouse has the burden of proof. However, a prima facie case is presented when the petitioner shows a sensible reason for the move and makes a showing that the move is consistent with the child’s best interests. Because a child usually receives little, if any, demonstrable benefit from moving, a direct benefit need not be shown. (In re Marriage of Burgham (1980), 86 Ill. App. 3d 341.) This would make the treatment of the burden of proof in removal cases consistent with that in civil cases generally, that the plaintiff has and retains the burden of proof, but the burden of going forward with the evidence shifts to the defendant once the plaintiff has introduced evidence that the existence of the contested fact is more probable than its nonexistence. See McCormick, Evidence sec. 339, at 794 (2d ed. 1972); Heiser v. Chastain (1972), 6 Ill. App. 3d 552, 558-59; Arrington v. Walter E. Heller International Corp. (1975), 30 Ill. App. 3d 631, 638-40.

In this case the mother admittedly was the proper custodian for Danna and the father was not seeking a change of custody. Given the fact that the proceedings occurred within two years of the entry of the original custody judgment and the importance of stability and continuity in a child’s custodial and environmental relationships (see In re Custody of Harne (1979), 77 Ill. 2d 414, 419), the finding of the trial court that the child should remain with her mother was not against the manifest weight of the evidence. The reason for the desired move was a legitimate one in that the mother’s new spouse had lost his job in Illinois through no fault of his own, and unsuccessfully sought employment here, and had ultimately found work in Texas. There was no indication that the reasons for the move were frivolous or that Vacek would have readily obtained suitable employment in Illinois or that either the mother or her present husband were not acting in good faith. The proposed move to Texas in this case would have improved the standard of living and general quality of life for Danna and therefore could be found to be in Danna’s best interest. It is also noted that the record shows that adequate arrangements have been made for housing, schooling and day care in Texas and that Danna appeared to be adjusting well in that environment. It is axiomatic that it is in the best interests of a child to have a healthy and close relationship with both parents, thus, that the visitation rights of the noncustodial parent should be carefully considered. (In re Marriage of Burgham (1980), 86 Ill. App. 3d 341, 346.) The trial court here, however, ordered liberal visitation for the father, and given the circumstances of the record and the prior conduct of the parties, there was no reason to expect that the visitation would not occur.

We therefore affirm the judgment of the circuit court of Du Page County.

Affirmed.

LINDBERG and VAN DEUSEN, JJ., concur.


author: JUSTICE NASH JUSTICE HOPF,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHRISTINE WEEKS, Defendant-Appellant.
    Second District
    No. 81—768
    Opinion filed June 22, 1983.

      HOPF, J., dissenting.
    G. Joseph Weller and Manuel S. Serritos, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Eugene L. Stockton, State’s Attorney, of Dixon (Phyllis J. Perko and Gene Armentrout, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE NASH

delivered the opinion of the court;

After trial by jury defendant, Christine Weeks, was found guilty of involuntary manslaughter (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 3(a)) and was sentenced to a term of three years’ imprisonment. She appeals, contending the evidence was insufficient to establish her guilt beyond a reasonable doubt and that the trial court arbitrarily denied a sentence of probation and abused its discretion in the sentence it did impose.

The information upon which defendant was tried charged that she committed involuntary manslaughter in that she

“acting in a reckless manner, performed an act likely to cause death or great bodily harm to some individual, in that said defendant did give live birth to a female child and then cover and wrap said female child in sheets and blankets and leave said female child on the floor of defendant’s apartment from 7:30 p.m. January 9, 1981, until 11:00 a.m. January 10, 1981, and then place said female child and said wrappings in garbage bags until 6:00 p.m. January 11, 1981, and then place said female child, wrappings and garbage bag outside at the curb on W. 2nd Street just east of Monroe Avenue, Dixon, Lee County, Illinois, thereby causing the death of Baby Girl Weeks, in violation of Section 9 — 3(a), Chapter 38, Illinois Revised Statutes.”

At trial, defendant testified she was 20 years old, single and lived alone in a one-room apartment which had no telephone or water supply; the bathroom was downstairs in the house. On Friday, January 9, 1981, her mother gave her a ride home from defendant’s employment and she arrived at her apartment shortly after 4 p.m. She had not been feeling well throughout the day and believed she might be coming down with the flu. Defendant was about seven months pregnant, but did not yet show it, and no one other than her former boyfriend was aware of the pregnancy. She fell asleep on her bed at about 5 p.m., but awoke two hours later in pain and feeling pressure. She pulled bedclothes to the floor and lay down; the pressure increased, her water broke, and the baby started to come. The room was dark and the only light was from a street light through the window. After the birth defendant lay on the floor in pain and felt weak; she was bleeding and it increased when she pulled out the afterbirth. Defendant testified she lay there for five to 10 minutes trying to figure if it had really happened. She heard the baby whimper, then crawled a few feet to a corner of the room and passed out. Defendant regained consciousness early the next morning and found the baby was dead. She testified she covered it at that time.

On cross-examination defendant testified she screamed during the birth but did not call out for help or attempt to get medical attention after the birth because she was too embarrassed; that she realized the baby needed help, but did not assist the child because of her pain and weakness. Defendant acknowledged she had told police officers that she had covered the child after its birth rather than on the following morning and also that she had later placed the body at the curb with the garbage to conceal the fact she had given birth.

Dale Chandler testified he was out on the evening of Sunday, January 13 looking for clothes and junk at the curb which he would repair and give to the needy. He found a garbage bag in which there was a box containing the body of an infant and its placenta and also a bloody blanket and clothing. Chandler called the police who located a paycheck stub in the bag which they traced to defendant.

Officers Harry Ulferts and Robert Short talked to defendant later that night at the police station. Ulferts testified she first denied giving birth, then admitted she had delivered the child. She stated it had moved a little bit after birth and she had later covered it with a blanket. Defendant said the baby had not cried after birth, but had whimpered. When asked how long that occurred defendant said she did not know and when requested to set a minimum and maximum period in which the baby whimpered, she responded she was not sure but fixed the period from 10 minutes to 30 minutes. Ulferts further testified defendant said she had remained on the floor after the birth until the next day and on the following evening placed the body and bloody clothes in a garbage bag on the curb. Defendant said she was too embarrassed to ask for help because it was an unwanted pregnancy and the child’s father had become her sister’s boyfriend.

Officer Short testified that defendant said she had covered the child completely after its birth and had then lain on the floor until the next day. She told him the baby had come too fast for her to call for help.

Dr. Grant Johnson, a pathologist, testified he conducted an autopsy but was unable to determine the cause of the child’s death. He stated that no medical or traumatic cause of death was found and that no medical findings led to a diagnosis of asphyxia. The doctor also testified that the most probable cause of death was lack of postpartum care, probably with an element of asphyxia. He stated an infant requires care immediately after birth, warmth, feeding to avoid dehydration and clearing of the respiratory passages of foreign material which might gain access during birth. Dr. Johnson determined the baby had been born alive and, although premature, was capable of surviving. On cross-examination Dr. Johnson testified there were no anatomical findings in his examination leading to a diagnosis of asphyxia as a possible or contributing cause of death and that his conclusion relating to asphyxia was based entirely upon information supplied to him by police officers.

Dr. Kathleen Gibbons, called by defendant, testified that it would be normal for a woman to suffer a perineal tear giving birth for the first time, as did defendant, and become very fatigued from loss of blood. Dr. Gibbons further testified that a new-born infant begins to breathe within a minute and normally gives out a very husky, loud cry. If, however, an infant is whimpering, but not crying, there could be a problem, such as asphyxia during the birth.

No medical evidence was presented as to how long the infant lived after birth. Defendant testified the child was dead when she saw it early the following morning.

The State was required to prove beyond a reasonable doubt each of the essential elements of the offense of involuntary manslaughter: (1) that defendant did an act; (2) which caused the death of another; (3) and the act, which was such that it was likely to cause death or great bodily harm; (4) was performed recklessly. (People v. York (1978), 57 Ill. App. 3d 243, 247, 373 N.E.2d 90, 93; Ill. Rev. Stat. 1981, ch. 38, par. 9 — 3(a).) Section 4 — 6 of the Criminal Code of 1961 defines recklessness as a conscious disregard of a substantial and unjustifiable risk, which disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. (Ill. Rev. Stat. 1981, ch. 38, par. 4 — 6.) Section 2 — 2 of the Criminal Code of 1961 provides that an “ ‘act’ includes a failure or omission to take action” (Ill. Rev. Stat. 1981, ch. 38, par. 2 — 2) and must be read in pari materia with section 4 — 1 of the Criminal Code of 1961, which provides:

“A material element of every offense is a voluntary act, which includes an omission to perform a duty which the law imposes on the offender and which he is physically capable of performing.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 38, par. 4-1.

Defendant contends the State failed to prove that she committed an act causing the death of the infant and, in light of the uncontradicted evidence she lost consciousness shortly after giving birth, failed to establish the requisite mental state of recklessness. The State does not argue that any overt act on the part of the defendant contributed to cause the death, but asserts that under the evidence the jury could properly find that by failing to assist the child defendant consciously disregarded a substantial risk to its life and thus acted recklessly.

Neither the State nor defendant discuss in their briefs the nature and extent of the "duty which the law imposes” under these circumstances. (See, e.g., Ill. Rev. Stat. 1981, ch. 38, par. 9 — 4 (concealing death of a bastard); Ill. Rev. Stat. 1981, ch. 23, par. 2354 (endangering life or health of a child); Ill. Rev. Stat. 1981, ch. 23, par. 2368 (cruelty to children).) However, assuming a legal duty existed, we conclude the State has failed to establish beyond a reasonable doubt that defendant was physically capable of performing it.

There were no first-hand witnesses to the unfortunate occurrence other than defendant and, as the State’s case is premised entirely upon circumstantial evidence, it must be sufficient to establish to a reasonable and moral certainty that defendant committed the offense charged. (People v. Einstein (1982), 106 Ill. App. 3d 526, 532, 435 N.E.2d 1257, 1262; In re Stokes (1982), 108 Ill. App. 3d 637, 641, 439 N.E.2d 514, 517, appeal denied (1982), 92 Ill. 2d 572; People v. Larson (1980), 82 Ill. App. 3d 129, 136-37, 402 N.E.2d 732, 738-39, appeal denied (1980), 81 Ill. 2d 596.) Moreover, such evidence must be inconsistent with any reasonable hypothesis of defendant’s innocence. (People v. Rogers (1982), 104 Ill. App. 3d 326, 328-30, 432 N.E.2d 975, 977; People v. Scribner (1982), 108 Ill. App. 3d 1138, 1142-43, 440 N.E.2d 160, 164, appeal denied (1982), 92 Ill. 2d 571; People v. Larson (1980), 82 Ill. App. 3d 129, 137, 402 N.E.2d 732, 739, appeal denied (1980), 81 Ill. 2d 596.) If in such circumstances the evidence presents a reasonable hypothesis of defendant’s innocence, it must be accepted. People v. Sumner (1982), 107 Ill. App. 3d 368, 372, 437 N.E.2d 786, 789, appeal denied (1982), 91 Ill. 2d 579; People v. Dennis (1976), 43 Ill. App. 3d 518, 521, 357 N.E.2d 563, 565, appeal denied (1977), 65 Ill. 2d 578.

The credibility of witnesses and weight to be given to their testimony are considerations for the jury; it may not, however, arbitrarily or capriciously reject the testimony of an unimpeached witness. Where testimony is neither contradicted by other witnesses or by circumstances, is not inherently improbable, and the witness has not been impeached, that testimony cannot be disregarded by the jury. (People ex rel. Brown v. Baker (1981), 88 Ill. 2d 81, 85, 430 N.E.2d 1126, 1127; People v. Ellis (1982), 107 Ill. App. 3d 603, 610, 437 N.E.2d 409, 415.) Defendant testified that after the birth she was in pain, losing blood and felt weak; she covered the child with a blanket and lost consciousness until the next morning at which time the child was dead. The hypothesis of innocence implicit in the evidence is that defendant was physically incapable of further assisting her child at that time. In our view, it is only through conjecture or speculation that it may be determined she recklessly failed to render required assistance to the child causing its death.

The State has not cited any case in which criminal liability under similar circumstances was premised upon an alleged failure to act. In People v. Breehon (1979), 72 Ill. App. 3d 178, 390 N.E.2d 626, offered by the State, defendant struck a child and held its face under water; the reviewing court determined the evidence was there sufficient to sustain defendant’s conviction for involuntary manslaughter. In People v. Ryan (1956), 9 Ill. 2d 467, 138 N.E.2d 516, defendant, a registered nurse familiar with childbirth, placed her new-born child in a tightly locked overnight case until it died. The conviction for involuntary manslaughter was also affirmed under those circumstances.

It is the duty of a reviewing court to set aside a conviction if the evidence is not sufficient to remove all reasonable doubt of defendant’s guilt and to create an abiding conviction she is guilty of the crime charged. (People v. Ibom (1962), 25 Ill. 2d 585, 593, 185 N.E.2d 690, 697; see People v. Martin (1963), 26 Ill. 2d 547, 188 N.E.2d 4.) We have carefully reviewed the evidence in this case and find it to be insufficient to sustain defendant’s conviction for involuntary manslaughter.

As the judgment of conviction must be reversed we need not consider defendant’s other argument.

Reversed.

SEIDENFELD, P.J., concurs.

JUSTICE HOPF,

dissenting:

I respectfully dissent. I would have affirmed the conviction.

The majority postulates its position on the point that the evidence presented was entirely circumstantial. I do not know whether we can quite go that far as to say the case was entirely circumstantial. There was certain direct evidence, e.g.: defendant’s admissions, testimony concerning the dead baby and the bloody blanket. Nonetheless, even if the case is considered circumstantial, I believe there was sufficient evidence to convict.

It is true that in a circumstantial case the evidence must be sufficient to establish to a reasonable and moral certainty that the defendant committed the offense charged (People v. Einstein (1982), 106 Ill. App. 3d 526, 532, 435 N.E.2d 1257, 1262), and that the evidence must be inconsistent with any reasonable hypothesis of the defendant’s innocence. People v. Rogers (1982), 104 Ill. App. 3d 326, 328, 432 N.E.2d 975, 977.

In a homicide prosecution where the accused is the sole person who can testify as to what happened, the trier of fact is not compelled to accept everything the accused states to be conclusive, but may consider surrounding circumstances and the probability of his story. People v. York (1978), 57 Ill. App. 3d 243, 248, 373 N.E.2d 90.

What constitutes recklessness or gross deviation from the standard of care which a reasonable person would exercise in the given situation has been described as a question of fact for the trier of fact. (People v. Schwartz (1978), 64 Ill. App. 3d 989, 993, 382 N.E.2d 59; People v. Rodgers (1971), 2 Ill. App. 3d 507, 511, 276 N.E.2d 504.) Also, whether the State proved beyond a reasonable doubt that the defendant acted recklessly, the defendant’s requisite mental state must be inferred from the surrounding circumstances. Recklessness is no different; and, unless we find the inference of mental state accepted by the jury to be inherently impossible or unreasonable, the findings of the trier of fact should not be disturbed on appeal. People v. York (1978), 57 Ill. App. 3d 243, 248, 373 N.E.2d 90; People v. Parker (1976), 35 Ill. App. 3d 870, 343 N.E.2d 52.

There is not a great disparity between what the defendant testified to in her defense and what was offered by the State by way of the officer’s testimony. The primary difference is the period of time that she heard the child whimpering before she passed out. Therefore, it is for the jury to interpret her actions. People v. Schwartz (1978), 64 Ill. App. 3d 989, 993, 382 N.E.2d 59.

The majority is of the opinion that there is a reasonable hypothesis that the defendant was physically incapable of assisting the child at that time and that it was only speculation that she recklessly failed to render assistance. In People v. Brechon (1979), 72 Ill. App. 3d 178, 181, 390 N.E.2d 626, it is stated:

“Although the defendant argues that there is a reasonable hypothesis of his innocence, the jury should not disregard the inferences from the evidence and are not required to search out explanations compatible with innocence or to elevate those explanations to the status of reasonable doubt.”

Here the defendant, through her testimony and by various admissions made to the police, admitted she gave birth to a premature baby and that she covered the baby with a blanket. One of the officers testified that she had told him that the baby whimpered for a period of 15 to 30 minutes. She testified that she did not call out for help because she was embarrassed, that the pregnancy was an unwanted pregnancy brought about by contact with a man who was now her sister’s boyfriend.

I believe there were sufficient facts to support the jury’s finding that defendant’s reckless conduct in not providing care for the baby was the act which brought about its death. I do not deem that this was so inherently impossible or unreasonable to warrant substituting our judgment for the jury’s. People v. Daily (1979), 79 Ill. App. 3d 928, 937, 398 N.E.2d 923, 929.

The majority also takes the position that the State had not proved beyond a reasonable doubt that the defendant was physically capable of further care for the infant. I do not agree, and I further note that the defendant had time to care for herself, e.g., that she removed the placenta. This would militate against her claim that she was physically unable to care for her infant or to call out for help for her child.

I simply believe that in all of these issues there was sufficient evidence to establish that the defendant’s criminal agency is what caused her daughter’s death, and that there was sufficient evidence to support the jury’s verdict.


author: JUSTICE TRAPP

text:
    DAN EVANS, Plaintiff-Appellant, v. GRABER, INC., et al. Defendants-Appellees.
    Fourth District
    No. 4—82—0673
    Opinion filed June 13, 1983.
    Rehearing denied July 8, 1983.
    Kathryn P. Taylor, of Law Offices of William W. Schooley, of Granite City, for appellant.
    Stephen L. Corn and Michael D. Gifford, both of Craig & Craig, of Mattoon, for appellees.
   JUSTICE TRAPP

delivered the opinion of the court:

On motion of defendant Graber Construction Company, the circuit court of Moultrie County dismissed plaintiff’s amended complaint on the ground that it had not been made a party defendant within the period of limitations provided by law. From this order, plaintiff has appealed.

The question presented is whether plaintiff’s failure to join Graber Construction Company as a defendant within the statutory time period was inadvertent under section 2 — 616(d)(2) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 616(d)(2)), formerly section 46(4)(b) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 46(4)(b)). We reverse and remand.

Toward the end of May 1979, plaintiff Dan Evans was repairing the roof of the First Church of Christ in Sullivan, Illinois. He sustained injuries when he fell from the roof. On March 23, 1981, he filed suit in Madison County against Graber, Inc., pleading common law negligence and a breach of the Structural Work Act (Ill. Rev. Stat. 1981, ch. 48, pars. 60 through 69). Sam Graber was served on April 10, 1981.

On May 11, 1981, defendant Graber, Inc., moved to transfer venue. The motion was accompanied by an affidavit of Sam Graber, president of Graber, Inc., which stated that the company was in the business of retail building supplies and denied that it had sufficient business contacts in Madison County to place venue thére.

Toward the end of May 1981, the statute of limitations ran on the action.

On May 29, 1981, plaintiff was given leave to submit interrogatories on the issue of venue, the court reserved ruling on the venue motion until the interrogatories were answered, and defendant was given leave to refrain from filing responsive pleadings to the complaint pending a ruling on the venue motion.

Defendant Graber, Inc., answered the interrogatories on June 26, 1981. Defendant did not state that it was the wrong defendant and did not name the proper defendant. Asked for the names of all persons having knowledge of facts pertaining to the accident, the defendant did not name Graber Construction Company. Asked whether the defendant was correctly named in the lawsuit and, if not, asked to name the correct defendant, defendant Graber, Inc., answered: “There is a corporation named Graber, Inc. Whether the above is correctly named as a defendant in this law suit is a matter for the Plaintiff’s determination.”

On November 24, 1981, the motion to transfer venue was allowed and the case was transferred to Moultrie County.

On December 23, 1981, defendant Graber, Inc., filed a motion to dismiss accompanied by an affidavit by Sam Graber indicating that it was not the proper defendant. The proper defendant was not named. On December 31, 1981, plaintiff moved to hold defendant’s motion in abeyance, stating that plaintiff did not have sufficient information upon which to reply to Graber’s affidavit, and filed a request for production of documents and interrogatories.

In January 1982, the plaintiff sought to depose Sam Graber. Defendant Graber, Inc., opposed production prior to a ruling on the motion to dismiss.

In February 1982, defendant Graber, Inc., answered interrogatories and again declined to name the proper defendant:

“8. Is the defendant correctly named in the style of the lawsuit? If not, then please inform us as to whatever misnomer or other discovery is involved including the status of each defendant as a corporation, joint venture, partnership or individual proprietorship.
ANSWER: There is a corporation named Graber, Inc.
9. Please state the contractual relationship between the defendant, Graber Construction Company, Graber, Inc., Dan Evans Construction Company and the First Church of Christ, Sullivan, Illinois, stating the dates of the contracts and the work to be performed in general terms. If there are any other companies in the contractual structure, please give the name of the contractor, its status as corporation, joint venture, partnership or individual proprietorship and the work to be performed in general terms.
ANSWER: Graber, Inc. does not have a contractual relationship with Graber Construction Company, Dan Evans Construction Company or the First Church of Christ, Sullivan, Illinois, as referred to in the Complaint here.”

Plaintiff took the deposition of Sam Graber on April 29, 1982. Graber stated that he was president of both Graber Construction Company, incorporated in 1978 and previously operated as a sole proprietorship, and of Graber, Inc., a separate corporation operating a home building center, “Graber Cash & Carry.” Both firms operate from his home. He manages the finances of Graber, Inc., and draws his pay entirely from that company, but spends his time primarily with the Graber Construction Company.

Graber Construction Company contracted to do the remodeling of the First Church of Christ after a fire caused extensive interior damage. Graber, in his capacity as president of Graber Construction Company, entered into an agreement with Evans to perform the roofing work on the church. Evans gave Graber a written copy of an invoice stating the cost of his bid and indicating that it included materials and labor. Graber stated that he did not have Evans’ invoice in his file; the record does not indicate whether the invoice was directed to Graber or to an entity on its face. Although plaintiff had not worked for Graber Construction Company or Sam Graber before, Graber knew that plaintiff had purchased materials for other roofing jobs from Graber, Inc.

Graber met plaintiff at the job site a day or so before work was to begin and went over the details of the job with him. Plaintiff was injured the day he began work on the roof. Plaintiff’s wife, a computer operator for Graber, Inc., told Sam Graber that plaintiff said it would be impossible for him to continue the roofing project. Graber stated that Graber Construction Company finished the job. He said that plaintiff subsequently gave him a bill for work performed the first day. Asked whether Graber Construction Company paid plaintiff, Graber answered in the affirmative and said that plaintiff was paid by check dated June 2, 1979. The record does not indicate whether the bill Evans gave Graber was directed to Graber or to an entity; nor does it reflect the account name on which the payment check was drawn.

On May 10, 1982, plaintiff moved to amend his complaint to add Graber Construction Company as an additional party defendant. The motion was allowed. On May 25, 1982, Graber Construction Company moved to dismiss counts III and IV of the complaint against it, asserting the running of the statute of limitations. The court heard arguments on defendants’ motions to dismiss on July 6, 1982. Defendant Graber Construction Company denied that plaintiff’s failure to add it as a party defendant within the statutory time period was inadvertent within the meaning of section 2 — 616(d)(2) of the Code of Civil Procedure.

The court took the matter under advisement and on July 28, 1982, dismissed the counts of the complaint against Graber, Inc., and dismissed, with prejudice, counts III and IV against defendant Graber Construction Company. On August 3, 1982, after reviewing a brief filed by plaintiff, the court reaffirmed its ruling, stating, “the plaintiff knew or should have known the identity of the corporation he was dealing with inasmuch as he contracted with Graber Construction, he billed Graber Construction and he was paid by Graber Construction after the accident.” On September 13, 1982, the court denied plaintiff’s motion to reconsider.

We find that the trial judge erred in dismissing counts III and IV of Evans’ complaint against Graber Construction Company. The dictionary defines “inadvertent” as “not turning the mind to a matter: heedless, negligent, inattentive.” (Webster’s Third New International Dictionary 1140 (1971).) “Inadvertent usually implies heedlessness; the term, however, is now rarely applied to persons or their minds, but is used in qualifying their acts, especially those which are mistakes, errors, or blunders, that are the result of heedlessness or inattention resulting from concentration on other things and that arise, therefore, neither from ignorance nor from intention; ***.” (Emphasis added.) (Webster’s Dictionary of Synonyms 139 (1942).) From the record it appears that Evans did not know that Graber Construction Company was a separate corporate entity from Graber, Inc., until the deposition of Sam Graber on April 29, 1982, after the statute of limitations had run. Evans moved promptly to add Graber Construction Company as a defendant on May 10, 1982. Discovery was delayed in this case when defendant Graber, Inc., litigated the venue issue. It was not until Graber, Inc., successfully transferred venue from Madison County, approximately six months after the statute of limitations had run, that the defendant filed a motion to dismiss on the basis that it was not the proper defendant.

Our analysis of the cases construing inadvertence under this provision leads us to conclude that the cases finding a plaintiff was not inadvertent are distinguishable. In Robinson v. Chicago National Bank (1961), 32 Ill. App. 2d 55, 176 N.E.2d 659; Fields v. 6125 Indiana Avenue Apartments, Inc. (1964), 47 Ill. App. 2d 55, 196 N.E.2d 485, and Paku v. M. V. Leasing Corp. (1971), 2 Ill. App. 3d 742, 277 N.E.2d 335, the named defendants identified the proper party defendant in answers to interrogatories filed before the statute of limitations ran. In Solone v. Reck (1965), 55 Ill. App. 2d 282, 204 N.E.2d 614, the named defendant identified the proper defendant in the answer filed before the statute of limitations ran. In Horan v. Brenner (1965), 57 Ill. App. 2d 83, 206 N.E.2d 488, the plaintiff, in his answers to interrogatories, listed the proper party defendant as a party having firsthand knowledge of facts and circumstances concerning the accident; he did not move to add the proper defendant until more than two years later. In Cox v. Shupe (1963), 41 Ill. App. 2d 413, 191 N.E.2d 250, the plaintiff’s earlier pleadings reflected knowledge of the proper defendants. In all of these cases it was clear on the basis of the pleadings and answers to interrogatories either that plaintiff knew the identity of the proper defendant or that the proper defendant was timely identified. That is not the case here.

From the record it appears that there was an oral agreement between Evans and Sam Graber. Evans gave Graber a written copy of an invoice stating the cost of his bid and, later, a bill for one day’s work. Evans was paid by check for that day’s work more than 21 months before this suit was filed. The record does not reflect the name on the account on which this check was drawn, nor does it show that Evans knew that he was dealing with Sam Graber in his capacity as president of Graber Construction Company.

The trial judge took judicial notice of a notice of filing of claim by Evans against “Grabers [sic] Construction Company,” filed with the Illinois Industrial Commission in November 1979. This is not plaintiff’s application. It does not show that Evans, rather than the Industrial Commission, ascertained the proper respondent. The record purports only to be a notice to the employer that a claim has been filed and a hearing scheduled.

The record does not establish that plaintiff knew that Graber Construction Company was a separate corporation from Graber, Inc., before Graber’s deposition was taken. Plaintiff denied having knowledge of the proper defendant prior to that time but did not submit affidavits. Section 2 — 619(c) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619(c)) does not require a denial by affidavit: “If, upon the hearing of the motion, the opposite party presents affidavits or other proof denying the facts alleged or establishing facts obviating the grounds of defect, the court may hear and determine the same and may grant or deny the motion.” (Emphasis added.) The record reflects that plaintiff sufficiently explained his confusion in naming the defendant: the similarity in names, both corporations using the name Graber as a stem; Sam Graber being president and major shareholder of each corporation; both corporations having the same business address, Sam Graber’s home; both corporations having the same corporate officers; the recent incorporation of Graber Construction Company; a degree of intermingling between the corporations; the short, informal relationship between Evans and Sam Graber; that Evans had previously purchased building materials from Graber, Inc.; and that defendant Graber, Inc., did not identify Graber Construction Company as a proper defendant.

Inadvertence by definition encompasses a degree of negligence. Given the facts in this case, we find that plaintiff’s failure to name Graber Construction Company as a defendant within the statutory time period falls within the definition of inadvertence. Corn v. Lorain Division, Koehring Co. (1981), 94 Ill. App. 3d 152, 418 N.E.2d 809; Greig v. Griffel (1977), 49 Ill. App. 3d 829, 364 N.E.2d 660; Anderson v. Rick’s Restaurant & Cocktail Lounge (1977), 45 Ill. App. 3d 992, 360 N.E.2d 465; Bates v. Wagon Wheel Country Club, Inc. (1971), 132 Ill. App. 2d 161, 266 N.E.2d 343; Cody v. Ladurini (1969), 109 Ill. App. 2d 116, 249 N.E.2d 315; Silver v. Lee Shell Equipment Corp. (1961), 31 Ill. App. 2d 266,175 N.E.2d 287.

Defendant argues that plaintiff’s failure to join Graber Construction Company was not inadvertent since plaintiff did not seek to add Graber Construction Company as a party promptly after defendant Graber, Inc., moved to transfer venue and filed an affidavit stating its line of business; or after defendant Graber, Inc., moved to dismiss stating that it was not the proper defendant. These arguments are without merit. The timeliness of a plaintiffs motion to add the proper defendant under section 2 — 616 of the Code of Civil Procedure is assessed in terms of when the plaintiff learned the identity of the proper defendant. Evans moved promptly to add Graber Construction Company as a defendant. Bates; Anderson; Com.

Reversed and remanded.

WEBBER, P.J., and MILLER, J., concur.