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July 19, 1996


Appeal from Circuit Court of Coles County. Nos. 91OV1235, 93OV555. Honorable Tracy W. Resch, Judge Presiding.

As Corrected August 29, 1996.

Honorable James A. Knecht, J., Honorable Robert J. Steigmann, J., Honorable Rita B. Garman, J., Concurring. Justice Knecht delivered the opinion of the court:

The opinion of the court was delivered by: Knecht

JUSTICE KNECHT delivered the opinion of the court:

Defendant Leon Mentzer appeals from the trial court's grant of a directed verdict in favor of plaintiff City of Mattoon (Mattoon). On appeal, defendant contends (1) the trial court failed to make the proper finding necessary for a directed verdict, (2) his sentence for indirect civil contempt was improper, and (3) the trial court erred by invoking quasi in rem jurisdiction. We affirm.

In 1990, defendant and his wife Mary purchased the property in question, 1701-l701 1/2 DeWitt Avenue, Mattoon, Illinois, from the estate of the Hansens, an elderly couple who had previously occupied the premises. The property passed directly from the Hansens' estate to a land trust, with the bank as legal titleholder and the Mentzers as beneficiaries. Since 1968, the building at that location had been used as a multiple-family dwelling in apparent violation of the single-family zoning restriction on the property. Prior to defendant's ownership, the property was tied up in probate for 14 months, during which time it was not used as a duplex.

In 1991, Mattoon filed a complaint against defendant Leon Mentzer for the alleged use of the premises in contravention of a zoning ordinance prohibiting multiple-family dwellings in that area. Mattoon Zoning Ordinance 88-4580 ยง VII(L)(2) (1988). Defendant settled with the city, signing a consent agreement in which he agreed to "abandon the alleged use of the premises *** as a two-family dwelling." In 1993, acting on a neighbor's complaint stating the premises was still being operated as a duplex, Mattoon filed this suit and a petition to show cause why defendant should not be held in civil contempt for violating the prior consent order.

Much evidence was produced at trial showing the property was being operated as a duplex at the time of the complaint. An exterior staircase led to the upstairs part of the building. Two mailboxes were located at the dwelling. The local mail carrier could not recall the names of the tenants at the two addresses because there had been "so many people in and out of that place." The residence had two electric meters installed. One neighbor testified he observed different people living in the two "apartments." While one of defendant's employees was living at the downstairs location, two other people lived upstairs. Defendant admitted at trial he continued to allow the property to be used as a two-family residence despite the previous order.

Evidence was also presented as to defendant's management or ownership of the duplex at the time in question. Defendant was observed going in and out of the "apartments" with cleaning materials. Mike Davis testified he lived at the downstairs location while working for defendant and rent was deducted from his paycheck. Defendant had keys to the location and would "show" the "apartments." Kathy Knifley, an employee of defendant's, collected rent checks on defendant's behalf from residents at the duplex. Knifley was paid by Jramb and Associates, a corporation owned and operated by defendant. As noted before, defendant and his wife were listed on the land trust agreement with the bank.

Defendant testified on his own behalf. Defendant claimed he has owned no interest in the disputed property since 1990. Defendant testified he had called the trust department of the bank in 1990 and requested the forms necessary to assign his interest. According to defendant, he assigned his interest at that time to his wife. Defendant also claimed Jramb and Associates had taken over all management responsibilities for rental properties. However, Janet Grove, a trust officer who handled defendant's land trust at the bank, did not recall defendant having called to request the forms to assign his beneficial interest to his wife. The bank was aware of no assignment of interest related to this property, and the failure to notify the bank of an assignment would have been a violation of a security agreement the Mentzers had with the bank. Under this agreement, the Mentzers had borrowed $20,000 and assigned their beneficial interest to the bank as collateral, much like a mortgage. When asked about the location of the assignment papers on cross-examination, defendant "imagined they're probably in the safety deposit box." When asked why he did not bring them to court, defendant "didn't think that there was any need for those [papers]." Defendant's wife did not testify on defendant's behalf.

Following the close of all evidence, the trial judge directed a verdict in favor of Mattoon. The court found defendant to be in "willful and contumacious violation" of the previous consent order and cited him for indirect civil contempt. Defendant's sentence of 90 days in jail was stayed, and the issuance of mittimus was stayed for two years on the condition defendant, his wife, or anyone in privity with defendant maintain the premises for single-family use only. In addition, defendant was fined $350 plus costs and attorney fees. This appeal ensued.

Defendant contends the trial court failed to make the proper finding necessary for a directed verdict. The trial court found "after considering all of the evidence in a light most favorable to the Defendant, that a fair and impartial jury could not find in favor of the Defendant." A motion for a directed verdict should be granted when, viewing all the evidence in the light most favorable to the party opposing the motion, the evidence "so overwhelmingly favors the movant that no contrary verdict based upon that evidence could ever stand." Walter v. Carriage House Hotels, Ltd., 164 Ill. 2d 80, 86, 646 N.E.2d 599, 602, 207 Ill. Dec. 33 (1995). Defendant asserts the standard enunciated by the trial court is not equivalent to the latter standard; as he has cited no authority or argument in support, this argument has been waived. 155 Ill. 2d R. 341(e)(7); People v. $1,124,905.00 United States Currency, 269 Ill. App. 3d 952, 956, 647 N.E.2d 1028, 1031, 207 Ill. Dec. 535 (1995), appeal all'd, No. 79106. Regardless of waiver, defendant has failed to demonstrate how he was prejudiced by application of the erroneous standard. Nika v. Danz, 199 Ill. App. 3d 296, 314, 556 N.E.2d 873, 886, 145 Ill. Dec. 255 (1990); In re Air Crash Disaster at Sioux City, Iowa, on July 19, 1989, 259 Ill. App. 3d 231, 241, 631 N.E.2d 1302, 1310, 197 Ill. Dec. 843 (1994).

In the interest of maintaining a uniform body of precedent (see Hux v. Raben, 38 Ill. 2d 223, 225, 230 N.E.2d 831, 832 (1967) (since appellate court is responsible for ensuring just results and maintaining "a sound and uniform body of precedent," these concerns "may sometimes override the considerations of waiver that stem from the adversary character of our system"), we note the trial court did, in fact, apply the wrong legal standard. Contrary to Mattoon's assertion that any difference between the two standards is an "insignificant semantic distinction," the Supreme Court of Illinois has expressed a preference for the latter standard stated, as opposed to the one used by the trial judge here. In Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 509-10, 229 N.E.2d 504, 513 (1967), the supreme court delineated the standard to be applied in Illinois when ruling on or reviewing motions for directed verdicts and judgments n.o.v. After surveying all the standards employed in other states, the Pedrick court narrowed the field to the standard now applied (no contrary verdict could ever stand) and the standard employed by the trial judge in this case (when all reasonable men would agree--or, in more modern terms, when a fair and impartial jury could not find for the nonmovant). The Pedrick court then expressed a preference for the former standard over the latter. As the court noted in Pedrick:

"There is at least a surface incongruity in a trial judge saying all reasonable men agree that the proof established [what the movant claims] when 12 jurors have just reached a contrary conclusion. And it seems even more incongruous for reviewing courts to so state when the trial judge and jury reached the opposite result, when the trial and reviewing courts disagree or the members of a reviewing ...

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