author: PRESIDING JUSTICE MEJDA

text:
    JOAN LUNDELL, Plaintiff-Appellee, v. ONOFRIO CITRANO, Defendant-Appellant.
    First District (5th Division)
    No. 83—2223
    Opinion filed December 7, 1984.

      Robert Guilfoyle, of Law Office of Tim J. Harrington, of Chicago, for appellant.
    Ambrose & Cushing, P.C., of Chicago (F. John Cushing III, of counsel), for appellee.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

Defendant, Onofrio Citrano, appeals from a judgment entered on a jury verdict awarding plaintiff $27,000 for personal injuries sustained in an automobile accident. On appeal, defendant raises three issues: (1) whether the plaintiff’s attorney violated an in limine order in his examination of Dr. Szwud, an expert witness; (2) whether the plaintiff violated an in limine order in her testimony regarding treatment of her lower back; and (3) whether the trial court erred in denying defendant’s motion to strike part or all of the testimony contained in an evidence deposition which was read to the jury. For the reasons which follow, we affirm.

On February 23, 1978, around 3 p.m., the plaintiff was stopped in her automobile at a traffic light. While she waited at the light, she was struck from behind by a second car. A third car, driven by defendant, collided with the second car as it skidded on wet pavement while attempting to stop behind the second car. Upon impact, plaintiff’s head was snapped backwards and forwards, causing her jaw to snap shut. The front of defendant’s car was badly damaged, and plaintiff testified at trial that there was damage to her car’s bumper. She was impeached on this point by defendant’s counsel with her deposition statement that her car had not been damaged.

Following the accident, plaintiff was taken to the emergency room at Lutheran General Hospital. The emergency room doctors examined plaintiff and took X rays of her neck. At that time, she complained of pain in her head and stiffness in her arms, neck, and chest. Plaintiff testified that after she arrived home around 6 p.m., she bit into some toast and part of her front tooth fell off. The tooth was subsequently replaced by her dentist, Dr. Henneman.

On March 1, the plaintiff sought treatment from her family doctor, Dr. Lehman. She continued treatment with Dr. Lehman through December 1980. Initially she complained of tremendous head pain. A few months later she complained of aches in her leg, soreness in her neck, and pain in her back and legs when she walked. After examining plaintiff, Dr. Lehman ordered X rays and prescribed medication and physical therapy. Plaintiff testified that in June of 1980 she had increased back pain, and by December 1980, Dr. Lehman recommended that she see Dr. Szwud, an osteopathic physician.

Plaintiff first consulted Dr. Szwud on January 15, 1981. Between that date and July 1982, she received treatment from Dr. Szwud once a week and then once or twice a month. Plaintiff told Dr. Szwud what her problems were, what had happened, and that she sought relief from those problems. Dr. Szwud administered treatments to plaintiff and prescribed a back brace and a heel lift.

Dr. Szwud testified that on her first visit, plaintiff related a history to him including a neck injury from a car accident three years previous. Her complaints at that time centered in her right arm, in which she experienced pain and numbness. Although plaintiff did not complain of any lower-back pain during her first visit to Dr. Szwud, on her second visit one week later she indicated she had some lower-back spasms. Dr. Szwud diagnosed somatic disfunction of the lumbo-sacral spine, or the lower back. He stated that in his opinion her lower-back problems were caused by the car accident, and that plaintiff had not indicated any other traumas since the accident which could have caused the lower-back pain.

A particularly painful headache prompted the plaintiff to call Dr. Sargent, a chiropractor, for treatment. In Dr. Sargent’s evidence deposition, which was read to the jury at trial, he recounted that when he first saw plaintiff on September 22, 1982, she complained of headaches, stiffness in her neck, pain in her neck and upper shoulder area, and tingling sensations extending into both arms and fingers. She additionally complained of deep constant ache and pain with a feeling of weakness in her lower back. Various tests were performed, resulting in a finding of pain and tenderness and spasm in the upper back and tenderness and moderate muscle contraction in the lower back. His diagnosis was that there had been an injury of some nature where plaintiff’s head or spine had been thrown backwards and forwards, creating injury to muscles and ligaments. Dr. Sargent testified that it was probable that plaintiff’s condition was caused by the car accident.

Prior to trial, defendant presented a motion in limine to exclude testimony regarding plaintiff’s lower-back problems, which defendant alleged were unrelated to the injuries suffered in the accident. The motion in limine in pertinent part was to bar the plaintiff or her counsel “from making any remarks or presenting any testimony of any diagnosis or any medical opinion of any alleged injury, other than by competent medical testimony during the voir dire examination or during the trial of this cause.” The court orally granted the motion.

During the trial but before Dr. Sargent’s deposition was read to the jury, defendant moved to strike part or all of the doctor’s testimony. The basis of the objection was that Dr. Sargent lacked a history of the plaintiff’s lower-back problems and, therefore, any opinion rendered by him as to their cause was speculative and lacking in foundation. The trial court denied the motion to strike. The court concluded that defendant had waived objection to the doctor’s deposition testimony by failing to object at the time of the deposition. At the conclusion of the trial, the jury found for the plaintiff and awarded her $27,000. Judgment was entered thereon. Defendant’s post-trial motion to vacate and set aside the verdict and judgment and to enter a new trial on all issues, or alternatively, for a new trial solely on the issue of damages, was denied.

OPINION

The first issue defendant raises on appeal is whether the plaintiff’s attorney violated the in limine order in his examination of Dr. Szwud. Defendant maintains that plaintiff’s attorney’s repeated attempts to elicit testimony regarding plaintiff’s lower-back problems from Dr. Szwud were in violation of the motion in limine because Dr. Szwud was not competent to testify concerning the cause of plaintiff’s lower-back pain. Dr. Szwud’s incompetency, defendant contends, was due to the fact that he lacked a history of the plaintiff’s lower-back trauma. Plaintiff argues that the in limine order was not violated because Dr. Szwud was competent to testify that there was a connection between the accident and plaintiff’s lower-back pain. Plaintiff bases this argument on the fact that Dr. Szwud treated plaintiff and formulated his opinion from his personal observations.

A motion in limine is a pretrial motion in which the movant seeks an order preventing the presentation of inadmissible evidence at trial. (Department of Public Works & Buildings v. Roehrig (1976), 45 Ill. App. 3d 189, 194, 359 N.E.2d 752; see also Annot., 63 A.L.R.3d 311 (1975).) The in limine order has been characterized as a potent weapon because it enables a party prior to trial to limit or to prohibit interrogation by the other party. (Reidelberger v. Highland Body Shop, Inc. (1981), 83 Ill. 2d 545, 550, 416 N.E.2d 268.) Because it places these restrictions on the nonmoving party’s presentation of its case, it is imperative that the in limine order be clear and that all parties accurately understand its parameters. 83 Ill. 2d 545, 416 N.E.2d 268.

We find the in limine order granting the defendant’s motion lacking the requisite clarity. We initially note that an agreed report of the hearing on the motion was the only evidence in the record that the motion was considered and ruled upon by the trial court. This report, however, merely disclosed that the plaintiff did not object when the defendant presented the motion prior to tile trial court’s oral granting of the motion, but did not otherwise explain the motion as presented. The written motion merely sought to exclude the plaintiff, or her counsel, from presenting any remarks or any testimony of any diagnosis or medical opinion “other than by competent medical testimony.” Since only competent medical testimony should have been admitted, the order excluding “other than competent medical testimony” simply belabored the obvious. Thus, defendant’s motion as granted requested nothing more than the application of ordinary evidentiary rules. Accordingly, we find that the testimony was not in violation of the motion in limine.

Oral in limine motions and orders provide fertile ground for confusion and misunderstanding during the trial. (See Reidelberger v. Highland Body Shop, Inc. (1981), 83 Ill. 2d 545, 416 N.E.2d 268.) For this reason, in addition to a written motion a written proposed order should be prepared by the moving party prior to the trial court’s ruling on the motion. The proposed order must clearly and specifically outline the evidence to be excluded. The trial court’s subsequent disposition of the motion and its limitations on the presentation of evidence would then be part of the record of the cause.

An in limine order protects the moving party from any prejudicial impact that might result simply from asking questions and making objections before the jury. (83 Ill. 2d 545, 549, 416 N.E.2d 268.) A pretrial motion should be utilized to preclude questions designed to introduce evidence such as privileged matters (Burdick v. York Oil Co. (Tex. Civ. App. 1963), 364 S.W.2d 766), use of alcohol, regardless of whether any proof of this exists (Cook v. Philadelphia Transportation Co. (1964), 414 Pa. 154, 199 A.2d 446), and post-accident repairs (Roosth & Genecov Production Co. v. White (1953), 152 Tex. 619, 262 S.W.2d 99). (See generally 20 Am. Jur. Trials Motion in Limine Practice secs. 10 through 50 (1973).) Questions pertaining to matters such as these readily create prejudice in the minds of the jurors even with corrective instructions. Here, the questions pertaining to plaintiff’s lower-back pain did not of themselves create prejudice. Defendant had the opportunity, of which he took advantage, to object to the questions when they were posed and to obtain a ruling thereon from the trial court. Defendant had no right to utilize the in limine procedure to hamper plaintiff’s presentation of relevant admissible evidence. See Lockett v. Bi-State Transit Authority (1983), 94 Ill. 2d 66, 445 N.E.2d 310.

Defendant’s second contention is that the plaintiff violated the in limine order in her testimony regarding treatment of her lower back. Defendant alleges that plaintiff violated the in limine order by interjecting testimony as to her lower-back pain and Dr. Szwud’s treatment of it when she was not competent to do so. Plaintiff states that at no time did she attempt to render a diagnosis or medical opinion pertaining to her back injury or the cause of it. Because plaintiff was testifying as to events affecting her or observed by her, she was competent to testify regarding her physical condition. See Robinson v. Wieboldt Stores, Inc. (1982), 104 Ill. App. 3d 1021, 433 N.E.2d 1005. The same principles apply here as with defendant’s first issue. The motion in limine in the instant case does not satisfy the clarity and accurate understanding requirements set forth in Reidelberger and, therefore, cannot be the basis for reversal.

The third issue raised by the defendant is whether the trial court erred in denying defendant’s motion to strike part or all of the testimony contained in the evidence deposition of Dr. Sargent which was read to the jury. Defendant argues that the trial court erred in ruling on the motion to strike that defendant had waived any objection to Dr. Sargent’s competency by failing to object at the deposition. Dr. Sargent, defendant asserts, lacked a history of the plaintiff’s lower-back problems and, therefore, any opinion rendered by him as to the cause of these problems was speculative and lacking in foundation. Although no objection was made at the deposition, defendant maintains that there has been no waiver of this objection to the competency of Dr. Sargent’s testimony. Defendant contends that he was not in a position to object to Dr. Sargent’s conclusion that the lower-back problems were connected to the accident until trial. This is so because the plaintiff might have testified that she experienced lower-back pains immediately after the accident, thereby providing a foundation for Dr. Sargent’s testimony. Additionally, defendant argues that even if the objection had been made at the deposition, Dr. Sargent’s lack of a history as to the plaintiff’s back pain could not have been corrected. Plaintiff contends that defendant waived his objection to the competency of the witness by failing to object at the time of the deposition.

Supreme Court Rule 211(c)(1) provides:

“Grounds of objection to the competency of the deponent or admissibility of testimony which might have been corrected if presented during the taking of the deposition are waived by failure to make them at that time; otherwise objections to the competency of the deponent or admissibility of testimony may be made when the testimony is offered in evidence.” (Emphasis added.) 87 Ill. 2d R. 211(c)(1).

The key phrase in this case is “which might have been corrected if presented during the taking of the deposition.” Timely objections to the competency of a witness at the time of the deposition are necessary to give the opposing party an opportunity to remedy the defect. Hammer v. Plontke (1968), 98 Ill. App. 2d 235, 237, 240 N.E.2d 429.

Defendant relies on Prince v. Hutchinson (1977), 49 Ill. App. 3d 990, 365 N.E.2d 549, in support of his argument. In Prince, objection at trial to a hypothetical question was held not to have been waived by a failure to object at the deposition. The court reasoned that the defendant could not have known at the time of the deposition whether the evidence necessary to admission of the hypothetical question would be in evidence when the deposition was offered at trial. Further, even if an objection had been made, counsel for defendant could not have corrected any gaps in the proof admitted at trial during the deposition. Prior to the supreme court decision in Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322, cert. denied (1981), 454 U.S. 836, 70 L. Ed. 2d 117, 102 S. Ct. 140, and at the time Prince was decided, hypothetical questions asked of expert witnesses could only include facts in evidence before the jury. (People v. Yonder (1969), 44 Ill. 2d 376, 385, 256 N.E.2d 321, cert. denied (1970), 397 U.S. 975, 25 L. Ed. 2d 270, 90 S. Ct. 1094.) Undisputed facts were required to be included in framing a hypothetical question. (Prince v. Hutchinson (1977), 49 Ill. App. 3d 990, 994, 365 N.E.2d 549.) Because at the time Prince was decided the propriety of a hypothetical question depended on the evidence that had or had not been admitted at trial, it was difficult for a party to raise correctable objections to a hypothetical question at an earlier deposition. These special rules attach to the posing of hypothetical questions but are inapplicable in the instant situation.

In these circumstances, objections to deposition testimony of an expert witness which assumes facts without evidentiary support must be made at the time the deposition is taken. (Moore v. Jewel Tea Co. (1969), 116 Ill. App. 2d 109, 130-31, 253 N.E.2d 636.) The lack of a foundation for Dr. Sargent’s testimony was evident at the time of the deposition and should have been pointed out to afford the plaintiff a chance to remedy the defect. (See Goldberg v. Capitol Freight Lines, Ltd. (1943), 382 Ill. 283, 47 N.E.2d 67.) A party should not be allowed to remain silent at the deposition and then object at trial. (Moore v. Jewel Tea Co. (1969), 116 Ill. App. 2d 109, 131, 253 N.E.2d 636.) The trial court did not err in ruling that defendant had waived his objection to Dr. Sargent’s competency as a witness by failing to object at the deposition or in denying defendant’s motion to strike Dr. Sargent’s evidence deposition.

For the foregoing reasons, we affirm the judgment of the trial court.

Affirmed.

SULLIVAN and PINCHAM, JJ., concur.


source: Caselaw Access Project

author: JUSTICE RIZZI

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD JOHNSON, Defendant-Appellant.
    First District (3rd Division)
    No. 82—2533
    Opinion filed December 12, 1984.
    James J. Doherty, Public Defender, of Chicago (Thomas J. Herres and Ronald P. Alwin, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Garritt E. Howard, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Following a bench trial the defendant, Edward Johnson, was convicted of burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1(a)), and sentenced to a term of eight years. He appeals contending that his conviction for burglary should be reversed because burglary is not a lesser included offense of residential burglary, the offense with which he was charged.

On March 23, 1982, the defendant was arrested and charged with residential burglary. At trial, police officer Melvin Powell testified that on that date he responded to a call of a burglary in progress at 300 North Lotus Street in Chicago. As he exited his squad car, he saw the defendant in front of the building pushing a shopping cart which contained a radio, stereo recorder, some handsaws, miscellaneous tools, speakers and numerous records. He asked the defendant who owned the property, and defendant replied that he did. He then asked defendant where he got it, and defendant pointed to the building. The officer then had a conversation with someone else, and thereafter placed defendant under arrest. A search of defendant revealed a screwdriver and some other tools on his person.

The officer then went to the rear of the building, where he noticed that a service door on the first floor had been pried open and the scratches appeared to have been freshly made. He also observed that most of the windows and doors in the three-story building were boarded or broken; however, he noted that the first-floor apartment windows and doors had burglar bars in the rear and that there was some furniture in the apartment. He learned that the owner of the apartment was Freddy Taylor, who came to the station and identified the property in the cart as his. At the station, the defendant admitted that he took the property because he thought the building was abandoned and did not think anybody wanted the items.

Freddy Taylor testified that he had lived in the building for over three years, and that several people lived on the floor above him. On the date of the incident, he left his apartment at 8 a.m. and the doors and windows were all secure. When he went to the station pursuant to a call, he identified the property as his own. When he got to his apartment, it had been ransacked and the service door in the kitchen had been torn out. He testified that the building was going to be remodeled and the doors on the back of the building were boarded up. He further testified that a neighbor across the street watched his apartment, and that he had not given the defendant permission to enter it.

The trial court found the defendant guilty of burglary, stating there was no proof beyond a reasonable doubt that defendant had a basis for knowledge that he was entering the dwelling place of another.

Defendant contends that his conviction of burglary should be reversed because he was charged with residential burglary, and burglary is not a lesser included offense of the separate and distinct offense of residential burglary. He maintains that the two offenses were meant to be mutually exclusive because the words of the statute exclude the smaller class of offenses called “residential burglary” from the greater class of offenses called “burglaries,” and points out that before the enactment of the residential burglary statute, that particular offense was included within the burglary statute.

Residential burglary requires a knowing and unauthorized entry into a dwelling of another with the intent to commit a felony or theft therein, and it is a Class 1 felony. (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 3.) Burglary consists of the knowing and unauthorized entry or remaining within a building with intent to commit therein a felony or theft, and it is a Class 2 felony. (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1.) The crime of burglary is complete upon the breaking and entering with intent to steal. (People v. Figgers (1962), 23 Ill. 2d 516, 179 N.E.2d 626.) For a crime to be a lesser offense and included within another, the greater offense must include every element of the lesser offense plus one or more other elements (People v. Jones (1979), 75 Ill. App. 3d 214, 229, 393 N.E.2d 1132), so that one cannot commit the offense charged without committing the lesser offense. People v. Stroner (1983), 96 Ill. 2d 204, 209, 449 N.E.2d 1326.

Considering the definitions of the offenses, one cannot commit the offense of residential burglary without committing the offense of burglary. It is therefore apparent that burglary is a lesser included offense of residential burglary. Further, the statutory provision that burglary shall not include “the offense of residential burglary” (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1(a)), does not preclude burglary from being a lesser included offense of the greater crime of residential burglary. Rather, such language seems to indicate no more than an admonition that when a dwelling unit is involved, the appropriate charge is residential burglary.

The record shows the trial court specifically noted that the two offenses differ in that residential burglary requires more specific intent with regard to the nature of the premises intruded upon than does the offense of burglary, which extends to any “building, housetrailer, watercraft, aircraft, motor vehicle as defined in The Illinois Vehicle Code, railroad car, or any part thereof, ***.” We conclude that the evidence warranted the finding by the trial court that defendant was guilty of burglary.

For the reasons given, we affirm the judgment of the circuit court of Cook County, and as part of that judgment we grant the State’s request that defendant be assessed $50 as costs for this appeal.

. Affirmed.

McNAMARA and McGILLICUDDY, JJ, concur.


author: PRESIDING JUSTICE HARTMAN

text:
    RUTH ASPEGREN, Plaintiff-Appellant, v. HOWMEDICA, INC., Defendant-Appellee (Evanston Hospital et al., Defendants).
    First District (2nd Division)
    No. 83—2882
    Opinion filed November 27, 1984.
    Rehearing denied January 8, 1984.
    Dominic R. Fichera, of Park Ridge (Carl P. Clavelli, of counsel), for appellant.
    Peterson, Ross, Schloerb & Seidel, of Chicago (Richard Lee Blatt, Thomas A. Reed, and M.C. Meinert, of counsel), for appellee.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiff appeals from an order of the circuit court of Cook County granting summary judgment against her and in favor of defendant, Howmedica, Inc. The issue on appeal is whether the circuit court properly found that plaintiff’s product liability action against defendant was barred by the applicable statute of limitations.

On September 4, 1979, plaintiff filed a complaint alleging that a vitallium prosthesis which had been surgically implanted in her hip in 1972 was designed and manufactured by defendant in an unreasonably dangerous manner. As a result, the prosthesis became fractured, requiring plaintiff to undergo replacement surgery on September 13, 1977. Defendant filed a motion for summary judgment asserting that plaintiff’s action was barred by the applicable two-year limitations period. (Ill. Rev. Stat. 1979, ch. 83, par. 15, now Ill. Rev. Stat. 1983, ch. 110, par. 13 — 202.) In support of its motion, defendant attached the affidavit of plaintiff’s physician, Dr. Harley Sigmond, stating that he showed the plaintiff X rays of the fractured prosthesis on July 12, 1977, and explained that it would have to be replaced. In a hearing on the motion defendant argued that the statute of limitations began to run on July 12, 1977, when plaintiff became aware of her injury. Plaintiff, however, argued that the statutory period did not begin to run until September 13, 1977, when the fractured prosthesis was removed and she was able to begin an investigation into whether the fracture was wrongfully caused. Although defendant’s motion for summary judgment was initially denied, the circuit court subsequently granted it pursuant to defendant’s request for reconsideration.

Plaintiff contends that the circuit court improperly held, as a matter of law, that her cause of action against defendant accrued on the date she first became aware that the prosthesis was fractured, rather than on the date the prosthesis was removed.

A cause of action accrues when a party knows or reasonably should know both that an injury has occurred and that it was wrongfully caused; at that time, the statute of limitations begins to run and the party is obligated to inquire further to determine whether an actionable wrong was committed. (Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 169-71, 421 N.E.2d 864.) Although an injured person is not held to a standard of knowing the inherently unknowable, he may not slumber on his rights once it appears that the injury was wrongfully caused. (Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 171, 421 N.E.2d 864.) If the time at which an injured party knows or reasonably should have known both of the injury and that it was wrongfully caused is a disputed question, it is to be resolved by the trier of fact. (Lipsey v. Michael Reese Hospital (1970), 46 Ill. 2d 32, 262 N.E.2d 450.) If only one conclusion can be drawn from the undisputed facts, however, the question of the timeliness of plaintiff’s complaint becomes one for the court. (Berry v. G.D. Searle & Co. (1974), 56 Ill. 2d 548, 309 N.E.2d 550.) Summary judgment is appropriate only where the pleadings, depositions and affidavits, when construed most strongly against the movant and most liberally in favor of the opponent, show that judgment should be granted as a matter of law. Patel v. Burke (1981), 102 Ill. App. 3d 554, 556, 430 N.E.2d 162.

In the case at bar, although plaintiff first learned of her injury on July 12, 1977, when her doctor showed her X rays of the fractured hip implant and informed her that it had to be replaced, a factfinder may determine that it was not possible for her to know at that time whether the injury had been wrongfully caused. Should it be found that plaintiff was aware of the injury but ought not to be held to have known of its cause, the statute of limitations would not have begun to run at that time. (Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 421 N.E.2d 864; Ikenn v. Northwestern Memorial Hospital (1979), 73 Ill. App. 3d 694, 697-98, 392 N.E.2d 440.) Thus, the cause of action would not have accrued until the implant was surgically removed on September 13, 1977, the date of plaintiff’s first opportunity to examine the fractured implant and determine the cause of its failure. Accordingly, we hold that whether the two-year limitations period began to run on July 12, 1977, or on September 13, 1977, is a genuine, material and triable issue of fact which should not have been decided by summary judgment. Summary judgment is a salutary procedure in the administration of justice but must be cautiously granted so that a respondent’s right to trial is not usurped in the presence of material fact questions, and where reasonable persons may fairly draw differing inferences from those facts which are not in dispute, the circuit court must deny the motion and direct that the resolution of those questions be made at trial. Diomar v. Landmark Associates (1980), 81 Ill. App. 3d 1135, 1138-39, 401 N.E.2d 1287.

For the foregoing reasons, the judgment of the circuit court is reversed and the cause remanded for trial.

Reversed and remanded.

STAMOS and PERLIN, JJ., concur.


author: JUSTICE STAMOS

text:
    O-KAY SHOES, INC., Plaintiff-Appellee, v. EDWARD J. ROSEWELL, Treasurer of Cook County, Defendant-Appellant.
    First District (2nd Division)
    Nos. 83—3097, 84—0017 cons.
    Opinion filed December 18, 1984.

      Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey and James McVane, Assistant State’s Attorneys, of counsel), for appellant.
    Beermann, Swerdlove, Woloshin, Barezky and Berkson, of Chicago (Alvin R. Becker, Alvin W. Block, and Steven R Garmisa, of counsel), for appel-lees.
   JUSTICE STAMOS

delivered the opinion of the court:

Plaintiff commenced this action against the treasurer of Cook County seeking individual and class relief to recover the income earned by the treasurer on condemnation judgment awards from the date of deposit by the condemning authority to the date of distribution to the condemnees. The trial court entered judgment in favor of the individual plaintiff, determined that the suit met the prerequisites for maintenance as a class action and conducted an accounting to determine class recovery. Defendant appeals.

On March 4, 1982, plaintiff, O-Kay Shoes, Inc., filed a class action complaint for injunctive and other relief in the circuit court of Cook County against defendant, the treasurer of Cook County. Plaintiff had been a commercial tenant of a parcel of real estate which became part of the subject of a condemnation proceeding initiated by the city of Chicago. A judgment of condemnation of all interests in the subject property, including plaintiff’s interest, was entered in the condemnation proceeding on December 3, 1981. As a result, plaintiff was to receive monetary compensation for its interest in the condemned property and the owner of the property, Central National Bank of Chicago, was to receive an additional, larger amount as compensation.

On January 29, 1982, an order was entered upon motion of Central National Bank to withdraw the proceeds. That order directed defendant to pay $15,000 to plaintiff and $160,421.74, less 1981 real estate taxes, to Central National Bank and provided that this payment constituted “a full acquittance to the Treasurer of Cook County, Illinois in and for said sums so paid over.” On December 31, 1981, the city of Chicago had deposited the condemnation judgment amount with defendant, who invested it so as to earn income. The income earned by defendant on the amount of plaintiff’s condemnation award was $145.83. On February 4, 1982, defendant paid the sum of $15,000 to plaintiff, but did not pay plaintiff any of the income earned on that amount while it was held by defendant.

Plaintiffs class action complaint is based upon its contention that the failure of defendant to pay plaintiff, and others similarly situated, all income earned from the investment of condemnation awards constitutes an unlawful deprivation of private property without due process of law in violation of the Federal and Illinois constitutions.

In two separate orders entered by the trial court on February 3, 1983, plaintiff’s motions for class determination, class definition, summary judgment, and the striking of defendant’s amended affirmative defense were each granted. Subsequently, following the completion of accounting procedures on certain of defendant’s records, the trial court entered an order incorporating the findings of the February 3, 1983, orders and finding in favor of the plaintiff class and against defendant.

Defendant first contends that the doctrine of res judicata barred plaintiff from maintaining its cause of action because “the plaintiff, the defendant, and the underlying subject matter of the cause of action” had been incorporated into the December 3, 1981, condemnation judgment. This contention is not supported by the record, however, because defendant in the instant case was not a party to the condemnation action and because the instant case, seeking the recovery of income from the county treasurer, is not the same cause of action as the condemnation action. Because the case at bar is not between the same parties and does not involve the same cause of action as the prior condemnation action, the doctrine of res judicata cannot apply to bar plaintiff from maintaining the instant suit. See City of Elmhurst v. Kegerreis (1945), 392 Ill. 195, 203, 64 N.E.2d 450.

Defendant argues that the provisions of the condemnation judgment ordering the treasurer to pay the condemnation awards and providing that such payment “shall constitute a full acquittance to the Treasurer of Cook County, Illinois in and for said sums so paid over” estops plaintiff from claiming interest on the condemnation award in the instant action. However, because this language was not determinative of a material issue in the condemnation action, it does not bar the maintenance of the instant action. (See Hunter v. Troup (1924), 315 Ill. 293, 297-98, 146 N.E. 321.) We therefore find that the trial court did not err when it found the doctrine of res judicata inapplicable to the instant action.

Defendant next contends that the trial court erred in allowing plaintiff’s action to be maintained as a class action. In order for an action to be maintained as a class action, the court must find that:

“(1) The class is so numerous that joinder of all members is impracticable.
(2) There are questions of fact or law common to the class, which common questions predominate over any questions affecting only individual members.
(3) The representative parties will fairly and adequately protect the interest of the class.
(4) The class action is an appropriate method for the fair and efficient adjudication of the controversy.” (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 801.)

A trial court has broad discretion in determining whether an action may be maintained as a class action, and its determination should be given great respect by a reviewing court. McCabe v. Burgess (1979), 75 Ill. 2d 457, 464, 389 N.E.2d 565.

Defendant argues that the second criterion for maintenance of a class action has not been met because plaintiff has not demonstrated that there exist common questions of law or fact which predominate over questions affecting only individual class members. In ruling on the issue of class certification, the trial court in the instant case had before it the pleadings of both parties and certain discovery material, which disclosed that defendant, in his capacity as county treasurer, received the proceeds of plaintiff’s condemnation award, on which he earned $145.83 interest which was not paid to plaintiff; that from February 1, 1980, to August 31, 1982, defendant received 710 condemnation awards, from which he earned income of $1,005,557.55; and that during this period only one condemnee was paid the earnings from his condemnation award. It is therefore clear that the record contains sufficient facts to support the trial court’s finding that there existed common questions which predominated over questions affecting only individual class members.

Defendant argues that plaintiff failed to prove that the claims of other class members were not barred by res judicata as plaintiff’s claim allegedly was. In Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 371 N.E.2d 634, our supreme court stated:

“No doubt there will be situations where there may be questions peculiar to certain members of the class. However, once there is a determination that there exists a question of fact or law common to the class and that this predominates the question affecting only individual members, the statute is satisfied.” (69 Ill. 2d 320, 340-41.)

Furthermore:

“In a class action it is appropriate to litigate the questions of law or fact common to all members of the class and after the determination of the common questions to determine in an an-ciliary proceeding or proceedings the questions that may be peculiar to individual class members.” McCabe v. Burgess (1979), 75 Ill. 2d 457, 466, 389 N.E.2d 565, citing Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 340-42.

Because the trial court in the instant case correctly determined that questions common to all class members existed, we find that the trial court did not err in allowing this action to proceed as a class action.

Defendant next contends that the trial court erred in finding that the retention by defendant of income earned from the investment of condemnation award deposits is unlawful. Defendant argues that the trial court incorrectly relied upon our supreme court’s decision in Morton Grove Park District v. American National Bank & Trust Co. (1980), 78 Ill. 2d 353, 399 N.E.2d 1295.

In Morton Grove, the plaintiff condemnee appealed the amount of its condemnation award and sought to recover income earned on the condemnation award by the county treasurer during the pendency of its appeal. The supreme court, in finding that the plaintiff was entitled to the income earned by the treasurer, determined that funds held by the county treasurer “are private funds belonging to the condemnees” (78 Ill. 2d 353, 360), and that “[t]he use of the award money by the county treasurer, to earn interest which is not paid to the owner but to the county, is clearly a taking of private property for public use.” 78 Ill. 2d 353, 362.

However, defendant contends that the decision of this court in Locasio v. Rosewell (1977), 50 Ill. App. 3d 704, 365 N.E.2d 949, is applicable here. In Locasio, we held that condemnation awards deposited with the county treasurer are “county moneys” under sections 1 and 6.1 of “An Act concerning county treasurers ***” (Ill. Rev. Stat. 1979, ch. 36, pars. 17 and 22.1), and that the interest earned on such funds is to be deposited into the county corporate fund, rather than paid to the condemnee.

However, the Morton Grove decision interpreted the term “county moneys” in section 1 as referring to money other than that which constitutes private property, and consequently found that condemnation awards are not “county moneys” under the statute. (Morton Grove Park District v. American National Bank & Trust Co. (1980), 78 Ill. 2d 353, 364.) We therefore find that, given this interpretation of the statute, the Locasio decision can no longer be construed as permitting the retention by the county treasurer of income earned on condemnation awards deposited with him. See In re Air Crash Disaster Near Chicago (7th Cir. 1981), 644 F.2d 633, 641 n.12.

Defendant argues that Morton Grove is distinguishable from the case at bar on its facts because Morton Grove dealt with interest earned by the county treasurer during the pendency of an appeal by the condemnee, while in the instant case plaintiff has not appealed the sufficiency of its condemnation award. We find that the language in Morton Grove is not limited to instances in which the condemnee appeals the sufficiency of the condemnation award. The court in Morton Grove, in defining the ownership of condemnation award moneys deposited with the county treasurer, did not limit its findings to those cases in which the condemnee has appealed the amount of the award. The court based its decision upon its interpretation of the general statutory provisions concerning the earnings on money deposited with the county treasurer. (Ill. Rev. Stat. 1979, ch. 36, pars. 17, 22.1.) It concluded that such money “belonged to the condemnees and at no time did the county have a legitimate claim to it or any interest in it.” Morton Grove Park District v. American National Bank & Trust Co. (1980), 78 Ill. 2d 353, 365.

We hold, therefore, that the trial court correctly determined that the decision of our supreme court in Morton Grove required the payment to plaintiff of the income earned by defendant on its condemnation award.

The decision of the circuit court is affirmed.

Affirmed.

HARTMAN, P.J., and BERLIN, J., concur.


author: JUSTICE O’CONNOR

text:
    601 WEST 81st STREET CORPORATION et al., Plaintiffs-Appellees and Cross-Appellants, v. THE CITY OF CHICAGO et al., Defendants-Appellants and Cross-Appellees. THE CITY OF CHICAGO, Petitioner-Appellant, v. CHICAGO CITY BANK & TRUST COMPANY, Trustee, Defendant-Appellee.
    First District (2nd Division)
    Nos. 83—0853, 84—0666 cons.
    Opinion filed December 11, 1984.

      James D. Montgomery, Corporation Counsel, of Chicago (Lynn K. Mitchell, Jerome A. Siegan, Maureen Kelly Ivory, and Robert L. Janega, Assistant Corporation Counsel, of counsel), for appellants.
    Bilandic, Neistein, Richman, Hauslinger & Young, Ltd., of Chicago (George E. Sang, of counsel), for appellees 601 West 81st Street Corporation and Miles Management Corporation.
    Burke & Ryan, of Chicago (Thomas Burke, William Ryan, and Barry Springer, of counsel), for appellee Chicago City Bank & Trust Company.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This is a consolidated appeal of a suit against the city of Chicago for rent (No. 83 — 0853) and a condemnation suit by the city as to a portion of the same property (No. 84 — 0666).

In the suit for rent, judgment was entered in favor of plaintiff-lessor 601 West 81st Street Corporation (601 West) and against defendant-lessee city of Chicago (the city) for $223,234.74 consisting of (a) $233,352.00 for rent for 56 months, (b) interest at 5% for vexatious and unreasonable delay, amounting to $27,092.94, and (c) less a setoff for nonpayment of real estate taxes by the lessor for the years 1972 through 1977 in the amount of $37,210.20. The city appeals, seeking reversal of the judgment; 601 West cross-appeals from the setoff of $37,210.20.

In the condemnation suit, the city appeals from the judgment entered against it in favor of Chicago City Bank & Trust Company (City Bank) in the amount of $125,000 for damages to the remainder. It does not appeal from the judgment of $625,000 for the taking.

The record shows that Miles Management Corporation (Miles) was the beneficiary of Chicago City Bank & Trust Company land trust No. 7449. The real estate in that land trust was approximately 13 acres located in the 600 block of West 83rd Street in Chicago. On December 15, 1971, Miles leased 9.64 acres of that property (600-608 West 83rd Street) to the city for five years for use as an automobile pound at a rental of $4,167 per month. On or about January 5, 1979, Miles directed City Bank to convey title to 601 West, a subsidiary corporation. Conveyance of title was made subject to the lease, and 601 West so accepted the title. The city paid the monthly rental through July of 1978. It has paid no rental since then, but still continues to use the property as a car pound. It refused to pay on the ground that the lessor had failed to pay certain real estate taxes on the property due the county of Cook as required by the lease which provided in part: “Lessor [Miles] shall pay real estate taxes and any possible leasehold taxes.”

Miles failed to pay the real estate taxes on the property for the years 1972 through 1977. Ultimately, after a scavenger tax sale in October 1979, 601 West redeemed the property for the amount bid at the scavenger sale. The 1978 taxes were paid by 601 West in 1981. No tax payments have been made since then because 601 West was unable to pay the taxes for 1979, 1980 and 1981. Its annual gross revenue from all its real estate was approximately $15,000. 601 West has made demands on the city for the rent for the remainder of 1978 and for the subsequent years up to the filing of its suit March 19,1982.

The city’s annual budgets have an account for the rental of two car pounds. The 1982 appropriation was sufficient to include rent for the 83rd Street auto pound; the 1981 appropriation was not, although funds could be spent without an appropriation with proper approval.

On March 19, 1982, 601 West and Miles filed suit against the city for rent and other relief.

On April 7, 1982, the city filed a condemnation suit to acquire the same 9.64 acres it had leased from 601 West. The suit named as defendants Chicago City Bank & Trust Company, as trustee under trust No. 7449, Ivan Himmel, Miles Management Corporation, 601 West 81st Street Corporation and unknown owners. On September 8, 1982, the city reduced its taking to 7.8262 acres.

On March 11, 1983, after a hearing in the suit for rent, the trial court found that (a) 601 West was entitled to 56 months’ rental at $4,167 per month; (b) the city’s failure to pay rent in a timely fashion was vexatious and unreasonable, for which 601 West was entitled to 5% interest in the amount of $27,092.94; (c) the real estate taxes for the years 1972 through 1977 were not paid by Miles except by redemption by 601 West after a scavenger tax sale in October 1979; and (d) the city is entitled to an equitable setoff in an amount equal to the sum total of tax dollars from the property that would have inured to the city between 1972 and 1977. That amount was found to be $37,210.20. Judgment was entered against the city for $223,234.74.

On May 27, 1983, defendants in the condemnation proceeding filed a petition to compel the city to make rental payments. The petition alleged that the city had used the premises as an auto pound under the 1971 lease, but had not tendered rent since July 1978. It further alleged that defendants on March 11, 1983, had obtained a judgment for that back rent in the cause which is the appeal in No. 83 — 0853, but that the city has continued to occupy the property without paying rent. Defendants asked for the lease rental payments of $4,267 per month. In response to this petition, the parties executed an agreement entitled “stipulation” in which the city agreed to pay defendants $36,000 as back rent from March 11, 1983, to December 11, 1983.

On September 26, 1983, the city further amended its petition to condemn to increase its taking to 8.9768 acres. On the same day, 601 West filed a cross-petition alleging damages to the remainder of its property. By agreement the court ordered:

“1. Leave is granted to amend the taking in accordance with petition.
2. The cross-petition of the defendant is allowed.
3. The valuation date in this matter shall be September 26, 1983.
4. The trial is set for October 27, at 10 a.m.”

On October 3, 1983, the city moved to vacate that part of the order which set the valuation date of September 26, 1983. After a hearing that motion was denied.

Jury trial in the condemnation suit commenced on November 29, 1983. On December 2, 1983, the jury returned a verdict for $625,000 for acquisition of the fee title to the property condemned and for $125,000 for damages to the land not taken. On the same day judgment was entered on the jury’s verdict and the city was directed to deposit within 120 days with the treasurer of Cook County the sum of $750,000 plus statutory interest. In addition, the order retained jurisdiction for the purpose of awarding a writ or writs of assistance to put the city in possession and also provided:

“It is further ordered that the terms and conditions of this judgment order shall apply to the stipulation of the parties previously made a part of the record herein and attached hereto and made a part hereof as Exhibit A.”

The stipulation stated:

“IT IS HEREBY STIPULATED by mutual agreement of the parties that there is due and owing to the defendants in this cause, the lessors of the subject property, the amount of $36,000 representing delinquent rent heretofore not paid by the City of Chicago. The court finds, by agreement of the parties, that this amount was withheld without cause and was tantamount to a taking of the subject property.
IT IS ALSO AGREED by the parties hereto that this rent covers all delinquencies from March 11, 1983 to December 11, 1983. It does not, however, cause any cessation of rents due to the lessor after December 11, 1983, unless and until the City of Chicago is in title.”

On December 27, 1983, the city moved for a new trial, contending for the first time that the city’s cross-petition for damage to the remainder was legally insufficient. The motion was denied. On February 9, 1984, the city’s motion for a new trial was denied. On April 30, 1984, the city paid City Bank $36,000 in satisfaction of the stipulation.

In the suit for rent the city appeals, contending that (a) it had a valid reason for not paying rent and (b) the trial court improperly awarded prejudgment interest. 601 West cross-appeals from the setoff of the $37,210.20 for taxes.

In the condemnation suit, the city appeals contending that because the city’s cross-petition was illegally insufficient the circuit court lacked jurisdiction and the verdict for $125,000 for damages to the remainder is void.

The Suit For Rent

The city argues that it was justified in not paying rent from July of 1978 because the lessor (originally Miles and later 601 West) failed to pay the real estate taxes. This, the city argues, constituted a breach of a material term of the lease and thus it was relieved of its obligation to pay rent. We disagree.

It is well settled that, in the absence of an agreement on the part of a lessee, it is the duty of the owner of land to pay all taxes and special assessments; in order for the lessor to shift the obligation to pay taxes from itself to the lessee, the lease must express this shift in clear, concise terms. Metropolitan Airport Authority v. Farliza Corp. (1977), 50 Ill. App. 3d 994, 366 N.E.2d 112.

In McArdle v. Courson (1980), 82 Ill. App. 3d 123, 402 N.E.2d 292, appeal denied (1980), 81 Ill. 2d 593, the court succinctly observed:

“We are unaware of any authority in this State for permitting a commercial tenant to both remain in possession and refuse to pay rent when a landlord breaches a covenant of the lease, unless the terms of the lease so provide.” McArdle v. Courson (1980), 82 Ill. App. 3d 123, 126.

The lease provides, “Lessor shall pay real estate taxes and any possible leasehold taxes.” There is no provision in the lease specifically providing sanctions for a breach of the failure to pay the real estate taxes.

The lease also states the Lessee’s (the city’s) obligations: “Assessments for water tax levied against said premises for all or part of the term of the lease shall be paid by the Lessee, also driveway permit fees.” These latter provisions merely clarify the position of the parties as to the allocation of the payment of various taxes. They do not make the payment of real estate taxes by the lessor a condition precedent to the payment of rent by the city. The lessor’s obligation to pay the taxes is independent of the lessee’s duty to pay rent.

The obligation to pay rent is a continuing one. The court so stated in Lipkin v. Burnstine (1958), 18 Ill. App. 2d 509, 518, 152 N.E.2d 745:

“The lessor’s right to receive rent continues so long as the lessee elects to remain in possession, even though the lessee may ultimately establish a right to rescind the lease, vacate the premises or obtain other relief. Goldblatt v. Sixty-Third & Halsted Realty Co., 338 Ill. App. 543, 550.”

Thus, the failure of the lessor to pay the real estate taxes did not deprive the city of its use and enjoyment of the premises. The latter continued to operate its auto pound in the same manner as it did under the lease and during the time it paid rent. It did nothing with regard to the lessor’s failure to pay the real estate taxes. Eventually, in 1982, it filed suit to condemn the property.

The city’s position is not supported by Sixty-Third & Halsted Realty Co. v. Chicago City Bank & Trust Co. (1939), 299 Ill. App. 297, 20 N.E.2d 162, appeal denied (1939), 301 Ill. App. xxxv. In that case, the plaintiff-lessees sought to pay delinquent taxes from accumulated rents paid to the court clerk and also sought to enjoin the appointment of a tax receiver through the county collector’s office. The delinquent taxes were originally to be paid by a previous lessee. (In the case at bar, the real estate taxes were the obligation of the lessor.) The defendant-lessors did nothing to relieve the tax liability on the property. After the tenants started paying rent to the clerk of the court the lessors gave notice of default and forfeiture. Thus, the delinquent taxes caused the lessees’ use and enjoyment of the property to be disturbed because the county collector wanted a receiver appointed and the lessors had given notice of forfeiture. The appellate court suggested the remedy for a lessee in this situation would be to pay the taxes and make deductions from rent paid to the landlord. Because the lessees had made rent payments to the court clerk, the court held it was not equitable to allow the landlord to have a forfeiture by reason of refusal to pay rent. The case at bar is readily distinguishable. The city, in the case at bar, had a continuing duty to pay the rent. It did nothing to relieve the tax liability.

The trial court correctly entered judgment for 601 West for 56 months’ rent in the amount of $233,352.

The city contends that the trial court erred in awarding prejudgment interest. We agree.

Prejudgment interest is recoverable only on the basis of contract or statute. (First Arlington National Bank v. Stathis (1983), 115 Ill. App. 3d 403, 450 N.E.2d 833, appeal denied (1983), 96 Ill. 2d 539.) The lease here did not provide for interest. Section 2 of the Interest Act (Ill. Rev. Stat. 1983, ch. 17, par. 6402) provides in pertinent part:

“Sec. 2. Creditors shall be allowed to receive at the rate of five (5) per centum per annum *** on money withheld by an unreasonable and vexatious delay of payment.”

Under the statute, “ ‘It has been consistently held that in order to collect interest on a theory of unreasonable and vexatious delay, the evidence must show that the debtor had thrown obstacles in the way of collection or by some circumvention or management of his own had induced the creditor to delay taking proceedings to collect the debt longer than he would have otherwise done.’ ” Bise’s Supermarket, Inc. v. Valley Forge Insurance Co. (1977), 48 Ill. App. 3d 822, 827, 363 N.E.2d 186, quoting from Kespohl v. Northern Trust Co. (1970), 131 Ill. App. 2d 188, 191, 266 N.E.2d 371. See also Pietka v. Chelco Corp. (1982), 107 Ill. App. 3d 544, 558, 437 N.E.2d 872, where the court added “or such claimant must establish conduct on the part of his opponent which is tantamount to fraud.”

Although the city stopped paying rent in July of 1978, allegedly because of the lessor’s failure to pay real estate taxes from 1972 through 1977, it did nothing to prevent 601 West from filing suit to collect the rent. Nevertheless, 601 West delayed S1^ years (August 1978 until March 1982) before suing for back rent. Under these circumstances we find that the city’s failure to pay rent was not “vexatious and unreasonable” under the statute. That part of the judgment awarding interest in the amount of $27,092.94 is reversed.

In its cross-appeal 601 West contends that the trial court erroneously allowed the city a setoff of $37,210.20 against the judgment.

This amount is the portion of the real estate taxes for the years 1972 through 1977 which would have inured to the benefit of the city. We find that this setoff was in error.

At the time in 1979 when 601 West redeemed the property, the applicable statute, familiarly known as the Scavenger Act, provided (Ill. Rev. Stat. 1979, ch. 120, par. 716a):

“Redemptions may be made from sales pursuant to this Section in the same manner and upon the same terms and conditions as redemptions from sales made pursuant to the County Collector’s annual application for judgment and order of sale except that in lieu of penalty the person redeeming shall pay interest at the rate of 1% per month on the amount for which the premises were sold for each of the first 6 months or fraction thereof from the date of sale and thereafter at the rate of 6% per annum where the sales were pursuant to judgments entered before August 1, 1965. Where the sales were pursuant to judgments entered on or after August 1, 1965 the person redeeming shall pay interest as follows ***.”

That paragraph also provided:

“Upon confirmation, a sale pursuant to this Section shall extinguish the lien of the general taxes, special taxes and special assessments for which judgment has been entered and shall extinguish all forfeitures therefor, and a redemption shall not revive the lien or the forfeiture.”

Because 601 West redeemed the property in accord with the statute as it then existed, the lien of delinquent taxes was extinguished. Having been extinguished, the lien could not be revived by the trial court by the device of granting a setoff. The equitable powers of a court may not be exercised to direct a remedy in contradiction to the plain requirements of a statute. (Aylward v. Dragus (1980), 82 Ill. App. 3d 283, 402 N.E.2d 700.) Equity follows the law. (Stuewe v. Lauletta (1981), 93 Ill. App. 3d 1029, 418 N.E.2d 138.) Nothing in the terms of the lease authorized the court so to exercise its equitable powers. That part of the judgment granting a setoff in the amount of $37,210.20 is reversed.

Parenthetically, it should be noted that the statute provides that for sales taking place after January 1, 1980, the amount required to be paid for redemption “shall also include an amount equal to all delinquent taxes on such property which taxes were delinquent at the time of sale” (Ill. Rev. Stat. 1981, ch. 120, par. 716a). As mentioned, the sale here took place before that date. By the explicit terms of the statute as it existed at the time of redemption, the redemption did not revive the lien or forfeiture.

The Condemnation Suit

City Bank has moved to dismiss the appeal in the condemnation suit on the ground that the stipulated $36,000 was part of the condemnation judgment and that, since the city has paid that amount “in partial payment and satisfaction of judgment order in Case No. 82L6849, City of Chicago v. Chicago City Bank and Trust Co.,” that payment acts as a waiver of any error in the condemnation proceedings and of the city’s right to appeal from that order under County of Cook v. Malysa (1968), 39 Ill. 2d 376, 235 N.E.2d 598. We disagree.

The stipulation and order are set out above.

At the beginning of the trial, the court read to the jury the stipulation, “It is hereby stipulated by mutual agreement of the parties that there is due and owing to the defendant in this cause, lessor of the subject property, in the amount of $36,000 representing delinquent rent heretofore not paid to the City of Chicago.” The court then stated, “The court finds by agreement of the parties that the amount was without just cause and was tenement [tantamount] to the taking of subject property. It was also agreed by the parties here, too, that the rent covers March 11, 1983 to December 11, 1983. It does not have [bar], however, compensation of rent due to lessor after December 11, 1983 unless and until the City of Chicago is entitled, and that is executed by both of the parties. *** I will make it part of the record. ***”

It is apparent from the record that the stipulation was not actually part of the condemnation case as such, but was an independent, collateral matter joined in that case solely because of the separate petition filed to compel the payment of rent. It was referred to separately in the judgment order quoted above.

Further, none of the instructions given the jury mentioned the amount of $36,000. The verdict form given to and returned by the jury covered only the just compensation for the property taken and the damages to the remainder. No provision was made for the stipulated $36,000. The jury made no finding as to it; its verdict covered only two items: $625,000 for just compensation for the property taken and damages to the remainder of $125,000.

For these reasons, we find that the payment by the city of the $36,000 did not constitute a voluntary payment or acceptance of a condemnation award under County of Cook v. Malysa (1968), 39 Ill. 2d 376, 235 N.E.2d 598. The city, therefore, has not waived its right of appeal. The motion of City Bank to dismiss is denied.

Turning to the city’s appeal, its sole contention is that the jury’s verdict of $125,000 for damages to the remainder was void because the trial court did not have jurisdiction of that matter for the reason that the cross-petition filed was legally insufficient. We find that the city has waived its right to object to the claimed insufficiency of the cross-petition.

Circuit courts have original jurisdiction of all justiciable matters except where the Supreme Court has original and exclusive jurisdiction (Ill. Const. 1970, art. VI, sec. 9). The circuit court of the county in which the property is located has jurisdiction of eminent domain proceedings (Ill. Rev. Stat. 1981, ch. 47, par. 2).

The city filed its petition to condemn in the circuit court of Cook County. Because it described only the property sought and did not allege that it was only part of a larger tract, the owner, in order to recover damages to the remainder, was required to file a cross-petition for such damages. Central Illinois Public Service Co. v. Rider (1957), 12 Ill. 2d 326, 146 N.E.2d 48.

Chicago City Bank filed the following cross-petition on September 26,1983:

“Now comes defendant, 601 West 81st Street Corporation, and alleges the real property as described in the petition to condemn herein, of which it is the owner or interested party, is part and parcel of a larger tract of land.
That as a result of the taking of the real property described in the petition to condemn, the remainder of the tract will be damaged and defendant respectfully requests that said damages be assessed in these proceedings.”

That cross-petition was filed pursuant to the agreed order quoted above, which in part recited, “The cross-petition of the defendant is aUowed.” The city made no motion to strike the cross-petition. The jury was told at the outset of the trial that they were to consider the question of damages to the remainder. Evidence was introduced by both parties on that question without objection. The jury was instructed on the question; the city made no objection to the instructions nor to the verdict form given the jury. The matter was argued to the jury.

It was only after judgment that the city attempted to raise the question of the legal sufficiency of the cross-petition, relying on Central Illinois Public Service Co. v. Rider (1957), 12 Ill. 2d 326, 146 N.E.2d 48, which held that the jurisdictional requirements as to a cross-petition are that it must describe with reasonable certainty the land which the owner feels will be damaged, aver that he is the owner and recite that that part will sustain damage by reason of the acts contemplated by the condemning party. In that case, however, a motion to strike the cross-petition was made and denied. In the case at bar, no such motion was made. On the contrary, the filing of the cross-petition was allowed in an agreed order.

Although lack of subject matter jurisdiction of a class of cases cannot be waived, the method, by which jurisdiction of a particular case is acquired may be waived. (Wilson Brothers v. Haege (1931), 347 Ill. 140, 179 N.E. 459.) In Taylor Coal Co. v. Industrial Com. (1922), 301 Ill. 381, 384, 134 N.E. 169, the court said:

“*** The general rule as applied to courts is, that jurisdiction of the subject matter, — which means jurisdiction of the class of cases to which the particular case belongs and not jurisdiction of a case within such a class, — cannot be waived. The method by which jurisdiction of a particular case within the general class of cases is obtained, and any defects or irregularities in respect thereto, may be waived, and are waived unless seasonable objection is made in accordance with the established practice. (O’Brien v. People, 216 Ill. 354; Franklin Union v. People, 220 id. 355.) Where a court has jurisdiction of the subject matter and may take jurisdiction of a particular case if certain conditions exist, and no objection is raised to the exercise of jurisdiction, as in case of a limitation barring a writ of error, an adequate remedy at law and the like, a party will be deemed to have waived the jurisdictional question. Burnap v. Wight, 14 Ill. 303; Stout v. Cook, 41 id. 447; Crawford v. Schmitz, 139 id. 564; Hauger v. Gage, 168 id. 365; Law v. Ware, 238 id. 360; Peterson v. Manhattan Life Ins. Co. 244 id. 329; People v. Evans, 262 id. 235.”

Because (a) the circuit court had subject-matter jurisdiction, (b) the city agreed to the filing of the cross-petition, (c) the city failed to move to strike it, (d) the city participated in the trial on the question of damages and (e) failed to object to the instructions or verdict form as to damages to the remainder* the city has waived its right to contest the legal sufficiency of the cross-petition. The judgment for $125,000 for damages to the remainder is affirmed.

In the rent suit (No. 83 — 0853), that part of the judgment awarding $233,352 rent for 56 months is affirmed, that part awarding $27,092.94 interest is reversed; also reversed is that part granting a setoff for taxes in the amount of $37,210.20.

In the condemnation suit (No. 84 — 0666), the motion to dismiss the appeal is denied; the judgment for $125,000 is affirmed.

Motion to dismiss denied; affirmed in part and reversed in part.

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

       Justice Downing participated in the above opinion before the expiration of his term in office.


author: PRESIDING JUSTICE GREEN

text:
    JAMES C. WRIGHT, Plaintiff-Appellee, v. AUTOHAUS FORTENSE, INC., Defendant-Appellant.
    Fourth District
    No. 4—84—0242
    Opinion filed December 17, 1984.

      Gregory L. Barnes, of Thomas M. Wheeler, Ltd., of Decatur, for appellant.
    D. Douglas McCarthy, of Baird, Latendresse, McCarthy & Rowden, of Decatur, for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

Plaintiff, James C. Wright, brought this action against defendant, Autohaus Fortense, Inc. (Autohaus), to recover for damage to his automobile and its contents, which were alleged to be the subject of a bailment with defendant as bailee. On February 27, 1984, following a bench trial in the circuit court of Macon County, the court entered a judgment for the plaintiff in the amount of $1,537.32. On appeal, defendant maintains: (1) plaintiff failed to prove a bailment of his automobile and its contents; and (2) the trial court’s ruling that plaintiff established a prima facie case of negligence was against the manifest weight of the evidence.

At trial, plaintiff testified that he left his disabled automobile unattended in a parking lot overnight. He stated that he called Auto-haus at noon the next day to arrange for repairs. He further stated that an employee of Autohaus, Doug Johnson, made arrangements to have the vehicle towed, and, at Johnson’s request, plaintiff took the keys to the towing company. Plaintiff stated that at the time he called Autohaus there was no damage to the exterior body of the vehicle, the trunk or targa top, and the radio and sound equipment were in the vehicle.

The automobile was towed to Autohaus later that evening, and the keys were left with an Autohaus employee. The tow truck driver testified that he did not examine the car for damage to the body, and, although he did not see a radio, when he turned the key he heard music.

Autohaus’ service manager, Doug Johnson, testified that the day after plaintiff had contacted him Autohaus employees found the disabled automobile on its lot, pushed the automobile to a parking space, locked the doors, and placed the keys inside the service department. Johnson testified that he made an estimate for repairs to that vehicle several days later, and the estimate did not include repairs to the exterior body or to replace the radio. An Autohaus mechanic testified that he started repairing the automobile the day after the estimate was made and noticed the top had been broken.

Plaintiff testified that repairs were completed approximately two weeks after he originally called Autohaus. He stated that, when he arrived at Autohaus to claim his automobile there was damage to the body, his radio and auto equalizer were missing from the interior, and numerous items were missing from the trunk. He further testified that he noticed the interior of the vehicle was wet. At plaintiff’s request, defendant made the repairs and replaced the radio but indicated the payment for these expenses would be plaintiff’s responsibility.

Among the necessary elements to prove a bailment are (1) an agreement by the bailor to transfer or deliver and the bailee to accept exclusive possession of goods for a specified purpose; (2) the actual delivery or transfer of exclusive possession of the property of the bailor to the bailee; and (3) acceptance of exclusive possession by the bailee. (Kirby v. Chicago City Bank & Trust Co. (1980), 82 Ill. App. 3d 1113, 1116, 403 N.E .2d 720, 723.) In addition, where a bailment for the mutual benefit of the parties is alleged, the plaintiff is required to allege the existence of consideration. Miles v. International Hotel Co. (1919), 289 Ill. 320, 124 N.E. 599.

Here, the evidence established the existence of a bailment. There was evidence that the vehicle was delivered to defendant in good, undamaged condition. Moreover, although the owner may have retained a set of keys to the vehicle, that fact does not prevent a finding of exclusive possession of the vehicle with the bailee. There was no evidence that the owner used his keys until after the damage was discovered. We conclude that plaintiff proved a bailment of his automobile and its contents with the exception of the items located in the trunk.

In a bailment case, in order to establish a prima facie case and raise a presumption of defendant’s negligence, a plaintiff must prove (1) an agreement, express or implied, (2) delivery of the property in good condition, and (3) its nonreturn or redelivery in a damaged condition. (Clark v. Fields (1967), 37 Ill. 2d 583, 229 N.E .2d 676; Watson v. Byerly Aviation, Inc. (1972), 7 Ill. App. 3d 662, 288 N.E.2d 233.) Here, the evidence showed an agreement and the redelivery of plaintiff’s property in a damaged condition. In addition, there was some evidence to show delivery of the property in good condition. Thus, plaintiff has raised the presumption of defendant’s negligence and established a prima facie case.

The rule in Illinois is that “a rebuttable presumption may create a prima facie case as to [a] particular issue *** and thus has the practical effect of requiring the party against whom it operates to come forward with evidence to meet the presumption.” (Diedrich v. Walters (1976), 65 Ill. 2d 95, 100, 357 N.E.2d 1128, 1130.) However, “once evidence is introduced contrary to the presumption, the bubble bursts and the presumption vanishes.” (Franciscan Sisters Health Care Corp. v. Dean (1983), 95 Ill. 2d 452, 462, 448 N.E.2d 872, 877.) There, the court stated that the amount of evidence required to rebut the presumption is not determined by any fixed rule, but it must be “sufficient to support a finding of the nonexistence of the presumed fact.” Graham, Presumptions in Civil Cases in Illinois: Do They Exist? 1977 S. Ill. U.L.J. 1, 24.

Here, Autohaus presented evidence that its parking lot was well lit and was regularly patrolled by officers of the Macon County sheriff’s department. In addition, each automobile was locked, and the keys were stored in the building. Finally, the owner of Autohaus testified that he stored his own automobiles outside overnight under similar circumstances. Based upon this evidence, we conclude that the “bubble” has burst, and defendant overcame the presumption of negligence. Once the presumption ceases to operate, the issue is determined on the basis of the evidence adduced at trial as if no presumption ever existed. Diedrich v. Walters (1976), 65 Ill. 2d 95, 357 N.E.2d 1128.

The question then becomes whether plaintiff presented sufficient proof that Autohaus failed to exercise that degree of care required in bailments for the mutual benefit of the parties. In cases culminating in Sampson v. Birkeland (1965), 63 Ill. App. 2d 178, 182, 211 N.E.2d 139, 141, the rule was stated to require “that degree of care which a reasonable and prudent person would exercise under the same or similar circumstances with respect to his own property.” More recently, courts have stated the rule to be that a bailee is obligated to exercise “reasonable care under the circumstances.” (Watson v. Byerly Aviation, Inc. (1972), 7 Ill. App. 3d 662, 670, 288 N.E.2d 233, 239.) The Watson rule is no different than the Sampson rule, because under either rule, the question is whether the bailee’s conduct was reasonable under the circumstances. The Sampson rule would not excuse a bailee from failing to exercise care because the bailee would have been equally careless with his own property.

Here, the trial court concluded that plaintiff proved defendant did not exercise such care, because defendant could have placed plaintiff’s automobile inside of its building, which could hold up to 20 automobiles, overnight. Such a determination was not contrary to the manifest weight of the evidence. The owner of Autohaus testified that he had complaints of theft or vandalism from his lot on four occasions prior to the instant action. Notwithstanding defendant’s testimony that he kept his own automobiles outside under similar circumstances, we deem the proof of defendant’s negligence to have been sufficient.

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

Affirmed.

MILLS and TRAPP, JJ., concur.


author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY STRONG et al., Defendants-Appellants.
    First District (1st Division)
    Nos. 82—1181, 82—1182 cons.
    Opinion filed December 17, 1984.
    Chester Slaughter, of Chicago, for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Mark L. LeFevour, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

After a jury trial, defendants, Anthony Strong and Lorenzo Strong, were convicted on an accountability theory of murder, two counts of attempted murder, armed robbery and home invasion. Each defendant was sentenced to 30 years for murder, 15 years each for two counts of attempted murder, 20 years for armed robbery and 20 years for home invasion, all sentences to run concurrently.

At trial, following the close of the State’s case, defendants made a motion for a directed verdict on the home-invasion charge only, arguing that the State had failed to prove the element that the defendants had entered the residence without authority. The court granted the motion. The following day, the State presented a motion to the court to reconsider its decision, contending that the authority issue should be decided by the jury. The court allowed the motion, rescinded its previous order, and submitted the home-invasion charge to the jury.

On appeal, defendants raise the following issues: (1) whether the court erred both in sustaining and then in reconsidering defendant’s motion for a directed verdict on the home-invasion charge; and (2) whether improper remarks made by the prosecutor during the course of the trial and in closing argument were so prejudicial as to deny defendants their due process right to a fair trial.

The testimony given by defendants, Anthony and Lorenzo Strong, at trial was substantially the same. On the afternoon of March 11, 1981, Lorenzo Strong was asked by a friend to assist Gregory Macon in moving his belongings from a residence located at 8343 South Woods in Chicago. The residence was owned by Jesse and Barbara McGee. Macon, the McGee’s son-in-law, had been staying there with his wife and four children for approximately three months. During that afternoon, Lorenzo Strong assisted Macon in packing boxes for approximately two hours and then returned to his home.

Later that evening, Lorenzo Strong returned to the McGee residence, along with his brother, Anthony Strong, and Gregory Macon, to again assist Macon in moving. When they arrived at the McGee home, Macon told them to wait in the car while he went in the front door of the home and opened the back entranceway. After a few minutes defendants went to the back entranceway and entered the house. Macon’s room was in the back part of the home and they proceeded there. The defendants began relaying boxes containing Macon’s belongings to the car in the front of the home. When they finished, Lorenzo Strong entered the house and stated it was time to go. He heard Gregory Macon talking loudly to someone. Lorenzo and Anthony Strong then left the McGee residence and drove back to Anthony Strong’s house, where they remained for the night.

Joseph Kneeland, the son of Jesse and Barbara McGee, testified that on March 11, 1981, he arrived home from high school at about 3:15 p.m. He observed Gregory Macon and Lorenzo Strong packing boxes of Macon’s belongings and moving things out of Macon’s room. Later that night, Kneeland was awakened in his bedroom by Anthony Strong, who was pointing a gun at him. Anthony Strong directed him to place a cover over his head and to move into the hallway. He heard his mother telling someone to “take the money” and heard his father telling someone that “the money was downstairs in his beige shoes.” Anthony Strong told him to remove the cover from his head and his father told him to go into the basement and get the shoes. When he removed the cover from his head, he saw Lorenzo Strong wrestling with his father. He proceeded down the stairs with his father following behind him. Gregory Macon was standing at the top of the stairs, pointing a gun at them. Kneeland heard a shot and saw his father fall. A second shot wounded him in the shoulder. He remained on the floor for 30 to 40 minutes. When he returned upstairs, he looked out the front window and saw that his mother’s automobile was missing. He entered his bedroom and saw his mother on the bed with a telephone cord around her neck.

Barbara McGee testified that her pregnant daughter, Virginia, and her son-in-law, Gregory Macon, and their four children had been residing in her home for approximately three months because the heat in their residence had been cut off. Neither her daughter nor Gregory Macon, however, had a key to the home. On March 11, 1981, after she and her husband had retired for the evening, Gregory Macon came to the back door of her house and she let him in. Macon had taken his wife to the hospital earlier in the day and they discussed her condition. McGee returned to bed. A short time later she heard a noise and saw Macon and Anthony Strong enter her bedroom. Anthony Strong was holding a gun. Macon said they were looking for money and he tied her hands behind her back. Anthony Strong began going through her dressers. Macon then carried her to her son Joseph’s bedroom and raped her. He tied a telephone cord around her neck and left the room. McGee lost consciousness.

I

We first address defendants’ contention that the court erred in reconsidering its order granting defendants’ motion for a directed verdict on the count of home invasion. The order was entered on the grounds that the State had failed to prove a required element of home invasion, that the defendants entered the residence without authority. (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 11(a).) In People v. Hudson (1983), 113 Ill. App. 3d 1041, 448 N.E.2d 178, this court held that interpretation of the language “without authority” in the home-invasion statute should be consistent with the meaning given the same language in the burglary statute. The Hudson court relied on the interpretation for the language “without authority” in the burglary statute found in People v. Fisher (1980), 83 Ill. App. 3d 619, 404 N.E.2d 859. In Fisher, defendants contended that they were not proved guilty beyond a reasonable doubt of burglary because they had been given permission to enter the victim’s apartment. In sustaining the convictions, the court held that the defendants were given limited authority to enter for the purpose of a social visit, and that authority was exceeded when the defendants pulled weapons on the victims, bound and gagged them and took their property. The court found that the criminal actions the defendants engaged in served to vitiate the consent given for their entry so that their entry was unauthorized.

Similarly, in the case at bar, Gregory Macon had been living with the McGees for a three-month period prior to March 11, 1981, and had the McGees’ permission to be in their home during the evening hours on that date. We find, however, the authority Macon had that allowed him to remain in the house and to bring the defendants, Anthony and Lorenzo Strong, into the house ended when the defendants began their series of criminal activities which included murder, attempted murder and armed robbery. See People v. Hudson (1983), 113 Ill. App. 3d 1041, 448 N.E.2d 178.

Following its granting of defendant’s motion for a directed verdict on home invasion, the court here reviewed authority submitted by counsel on interpretation of the language “without authority” in the home-invasion statute. The following day the court rescinded its order of a directed verdict and reinstated the home-invasion charge. Although as the State argues, and we confirm, the court erred in directing the verdict of acquittal on the home-invasion charge (People v. Hudson (1983), 113 Ill. App. 3d 1041; People v. Fisher (1980), 83 Ill. App. 3d 619), it is well settled that the legal effect of the directed verdict was to bar, under double-jeopardy principles, the vacation or reversal of that verdict. (U.S. Const., amends. V and XIV; Ill. Const. 1970, art. I, sec. 10; People v. Hutchinson (1975), 26 Ill. App. 3d 368, 325 N.E.2d 115; People v. Gallas (1966), 77 Ill. App. 2d 132, 221 N.E.2d 782.) Unquestionably, the allowance of defendants’ motion for directed verdict on the home-invasion charge at the close of the State’s case constituted a final adjudication on the merits of that charge. (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 4(k).) A trial court, therefore, may not withdraw an order directing a verdict and permit the jury to make a finding on the charge. In re L.R. (1982), 106 Ill. App. 3d 244, 435 N.E.2d 908; People v. Hutchinson (1975), 26 Ill. App. 3d 368, 325 N.E.2d 115.

We, therefore, find that defendant’s double-jeopardy rights were violated by the court’s reinstating the home-invasion charge and submitting it to the jury. Accordingly, the convictions and sentences of each defendant for home invasion are hereby vacated. We further hold that since the remaining convictions of each defendant for murder, attempted murder and armed robbery had substantially different elements of proof for the jury to consider, they remain unaffected by reversal of the home-invasion convictions.

II

Defendants also argue that the State’s use of leading questions coupled with prejudicial remarks made by the prosecutor during closing argument deprived them of a fair trial. Specifically, defendants contend that language that the defendants were “casing the house” was elicited by the prosecutor from one witness, was used by the prosecutor in the questioning of a second witness, and was again repeated in the prosecutor’s closing argument. Defendants assert that this language was used to convince the jury that the entire crime was preplanned by the defendants. The State maintains that no prejudice arose from use of the “casing the house” language, as defendants’ objections to use of the phrase were promptly sustained and the court struck the evidence from the record and instructed the jury to disregard it.

Generally, a conviction will not be reversed on review because of prosecutorial remarks or arguments unless such remarks constitute a material factor in his conviction or result in substantial prejudice to the accused. (People v. Jones (1982), 108 Ill. App. 3d 880, 439 N.E.2d 1011.) For improper comments by the prosecutor to be sufficient to merit reversal, they must be of a substantial magnitude when viewed in light of the entire record and argument. People v. Martinez (1977), 45 Ill. App. 3d 939, 360 N.E.2d 495; People v. Odum (1972), 3 Ill. App. 3d 538, 279 N.E.2d 12.

After carefully reviewing the record, we conclude that the use of the phrase “casing the house” by the prosecutor, both in the questioning of witnesses and in closing argument, did not constitute a material factor in defendants’ conviction in light of the competent evidence presented to the jury in this case. The defendants were convicted on an accountability theory, and it was not necessary for the State to prove that the crimes were preplanned. The State only needed to prove that the defendants intended to facilitate the commission of Gregory Macon’s criminal acts by aiding and abetting the commission of those crimes. The State provided sufficient evidence to meet this standard of proof. The victims testified that both defendants were in the house during the sequence of crimes, that the defendants were armed and that defendant Anthony Strong demanded money from the victims. We further find that defendants were not substantially prejudiced by the “casing the house” remarks, since objections to use of this language were sustained. (People v. Panczko (1980), 86 Ill. App. 3d 409, 407 N.E.2d 988.) In our judgment the verdict in this case would not have been otherwise had the improper remarks not been made. People v. Dukett (1974), 56 Ill. 2d 432, 308 N.E.2d 590, cert. denied (1974), 419 U.S. 965, 42 L. Ed. 2d 180, 95 S. Ct 226; People v. Trolia (1982), 107 Ill. App. 3d 487, 437 N.E.2d 804.

For the aforementioned reasons, it is ordered that the judgment appealed from is vacated for each defendant as regards the offense of home invasion. The judgment is affirmed as regards defendants’ convictions for murder, attempted murder and armed robbery.

Affirmed in part; vacated in part.

BUCKLEY, P.J., and GOLDBERG, J., concur.

      This opinion was adopted by the court prior to the retirement of Justice Goldberg. We also note that a companion case to this case, No. 82—3089, People v. Carl Sanders, is filed this same date.