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29 June 2000

JUSTICE KUEHN delivered the opinion of the court:

Defendant, Todd Bowers, doing business as Bowers Towing and Repair (Bowers),appeals from the trial court's April 8, 1999, order entering judgment on Bowers'counterclaim for towing and storage fees in the amount of $1,050. We reverse and remand.

On October 24, 1996, Clarence and Daphane Jackson (the Jacksons) purchased a 1987Kenworth T800 semi-tractor for approximately $10,000. The loan was held by CitizensBank & Trust Company out of Paducah, Kentucky. The record is silent as to the person orentity from whom the Jacksons purchased the truck. Although lacking in evidence, therecord contains hints that the Jacksons may have purchased the truck from DaphaneJackson's brother, Jimmie Powers. For some unknown reason, transfer of the title wasdelayed. The record contains reference to correspondence between Citizens Bank & TrustCompany and the Illinois Secretary of State's office in December 1996 at which time thebank sent additional documentation. On August 11, 1997, title was finally issued in theJacksons' name, and it listed Citizens Bank & Trust Company as the lienholder and the entityto whom the original title was sent.

The record indicates that the truck did not get utilized until the summer of 1996. During that time, the Jacksons improved the truck by adding a sleeper compartment. In June1996, the Jacksons hired Daphane's brother, Jimmie Powers, as their driver. Jimmie Powersmaintained an Illinois commercial driver's license. Clarence Jackson was apparently inschool and working towards obtaining his own commercial driver's license. Unbeknownstto the Jacksons, Jimmie Powers was wanted on an outstanding federal warrant.⁽¹⁾

The Jacksons answered a newspaper advertisement seeking drivers who owned theirown tractors. The company that so advertised was Argosy Transportation, Inc. (Argosy),with offices in St. Louis, Missouri. The Jacksons did not enter into a written lease withArgosy but agreed to haul one of its trailers. The first trip for Argosy the Jacksons agreedto make was on June 13, 1997. We surmise that the trip originated in St. Louis because allArgosy references are to St. Louis, but no evidence was adduced regarding this fact. Sometime around 4 a.m., Jimmie Powers pulled the Jacksons' tractor with Argosy's trailerinto a weigh station on northbound Interstate 55 near Litchfield, Montgomery County,Illinois. As part of the routine checks that are run by the Illinois State Police at the weighstation, law enforcement officials determined the existence of the federal warrant bearingJimmie Powers' name. Somehow, Jimmie Powers was able to leave the area on foot beforehe was taken into custody. Jimmie Powers has not been seen since. He left the tractor andtrailer sitting at the weigh station.

From the Illinois State Police tow-in report, we learn many facts. The Illinois StatePolice (ISP) sought to have the tractor and trailer towed because of a "K 9 Alert." Otherpossible reasons for towing not checked on the report included accident, abandonment,recovery, seizure as evidence, and seizure for forfeiture. The vehicle was listed in fair and"running" condition. The report indicates that the tractor was locked and that the keys werenot in it. Somehow, the ISP determined that Jimmie Powers was the tractor's owner, byregistration. We do not know if they obtained this information directly from access toSecretary of State records or from license plate registration information provided by JimmiePowers upon entry to the weigh station. In a box on the report inquiring of the reportingofficer as to the subject vehicle's eligibility for release, the ISP officer checked "No." Thebalance of that section calls for an explanation of the hold status, which the officer left blank.

The ISP contacted Todd Bowers of Bowers Towing and Repair to tow the tractor andtrailer away. Bowers towed both to his storage facility in Godfrey, Madison County, Illinois.

On June 15, 1997, Argosy sought, and was allowed, to remove its trailer fromBowers' facility. The record's only reference to a law enforcement "hold" applicable to thetrailer is included on the receipt, stating, "Trailor [sic] was not on hold." How Bowerslearned that the trailer was not being held by the ISP is not known. The only written reportrelative to the "hold" placed on June 13, 1997, is the above-discussed ISP tow-in report. Bowers' receipt relative to the Jacksons' tractor stated that the "[t]railer was released," fromwhich it could be inferred that the trailer had in fact been released by the ISP. Upon release,Argosy was charged a $75 towing fee and three days of inside storage at $15 per day, for atotal bill of $120.

At some point, the Jacksons learned that their truck was being stored by Bowers. They contacted Bowers in an effort to recover their vehicle, only to be told that the ISPmaintained a hold on it and that Bowers could not release it to them. Bowers provided theJacksons with no written verification of the hold. The Jacksons then contacted and met withan ISP officer in Litchfield to no avail. They also traveled with their attorney to meet with"police" in East St. Louis. This trip was also fruitless.

By late August 1997, the Jacksons still had no vehicle, and their attorney wrote aletter to the ISP with a copy to Bowers. The letter confirmed previous conversations withthe ISP in which they advised the Jacksons and their attorney that the ISP maintained a holdon their vehicle. Enclosed with the letter was a copy of the truck's title indicating theJacksons' ownership since October 1996, eight months prior to the ISP hold. The letterdemanded the release of the truck within seven days and explained that otherwise theJacksons would have no choice but to file suit seeking the vehicle's return.

The seven days passed and nothing transpired. At some point, the Federal Bureau ofInvestigations (FBI) got involved, and the Jacksons were advised that the FBI maintained ahold on the truck. The Jacksons and their attorney were never provided with writtenverification that the FBI had a hold on the truck. In fact, they were never provided withwritten verification that the State maintained a hold on the truck. In any event, the Jacksonswere advised by the ISP that the ISP was no longer involved in the situation and that the holdnow had to be released by the FBI.

The record does not reflect that the Jacksons and/or their attorney took any furtherformal or informal action to recover the tractor. In approximately July 1998, everyoneconsented to the tractor's release. The Jacksons, by their attorney, asked Bowers what theyowed for towing and storage fees. The Jacksons were verbally informed by Bowers that toobtain their truck, they would need to pay almost $13,000 in towing and storage fees. Perhaps to confirm the amount in writing, on August 10, 1998, Bowers wrote to theJacksons' attorney, indicating that the total bill as of that date was $1,284, substantially lessthan the amount quoted by phone. Bowers also stated that if arrangements were not madewithin the following 14 days, he would apply for title to the truck. As anyone would expectgiven the two quoted figures, the Jacksons brought $1,284 to Bowers, hoping to achieve therelease of their truck. Once Bowers figured out his typographical error, he refused to releasethe vehicle without payment of the larger amount, $12,840.

The Jacksons filed a suit for replevin against Bowers on August 22, 1998. Very littlediscovery took place, and the case was set for a bench trial. The trial was held on December17, 1998.

On that date, the trial court allowed very limited, informal testimony from the parties. In addition to the facts outlined earlier in this opinion, Bowers through his attorney indicatedthat he stored the Jacksons' tractor both inside and outside and that he occasionally startedthe engine. He carried insurance to cover any losses suffered during the time that the vehiclewas in his care. His fee for towing the tractor was $150, and his daily storage fee was $30. He acknowledged that he had never stored a vehicle for as long as the time involved in thiscase. He was never paid by the ISP or anyone but the vehicle's owner. Oftentimes, afterseveral months of storage, the vehicle owner came in and just signed the title to the vehicleover to Bowers. He has towed extensively for State and local law enforcement personnelsince 1976. He believes that his storage fee of $30 per day is reasonable for the industry,stating that storage prices run generally from $25 to $75 per day. He was not asked toexplain why his fees for towing and storing Argosy's trailer were exactly one-half of thosecharged the Jacksons and were less than the amounts that he testified were the industryaverage. The Jacksons through their attorney indicated that they did not really dispute thatthe $30-per-day charge was customary in the field, but they disputed its application in theJacksons' situation. All the income-earning potential of the tractor was obviously lost duringthe period of this hold.

The trial court entered an interim order concluding that the Jacksons should pay$1,050 to Bowers pending the case's outcome and that Bowers was to release their truckupon receipt of the payment. This took place. The parties were directed to file writtenarguments. In Bowers' argument, Bowers contended that he was owed a total of $16,710for storage and towing, or $15,660 more than the $1,050 previously paid.

On April 8, 1999, the trial court concluded that the $1,050 amount stood as thejudgment of the court. Bowers appeals.

Generally speaking, the standard of review we apply when a party challenges a trialcourt's bench-trial ruling is whether the trial court's judgment is contrary to the manifestweight of the evidence. See First Baptist Church of Lombard v. Toll Highway Authority, 301Ill. App. 3d 533, 542, 703 N.E.2d 978, 984 (1998). Where, as in this case, the trial court'sruling focuses on statutory construction, we review the matter de novo. See Davis v. ToshibaMachine Co., America, 186 Ill. 2d 181, 183, 710 N.E.2d 399, 400 (1999).

To begin our analysis of the trial court's judgment and applicable law, we note thatthe Illinois Vehicle Code (625 ILCS 5/1-100 et seq. (West 1996)) is replete with referencesto the owner's responsibility for towing and storage charges incurred. Several specificreferences are contained in this opinion. The fairness of the application of this rather harshrule to the Jacksons' situation is noted. However, we were not presented with aconstitutional challenge, and in any event, we believe that this case between owner and towoperator is not the correct forum for such a challenge. So long as the rules by which police-ordered tows are followed, the owners remain liable for towing and storage fees. If the Stateof Illinois was a party, as in the case cited by the Jacksons, People v. Searle, 86 Ill. 2d 385,427 N.E.2d 65 (1981), perhaps the Jacksons would be entitled to some relief relative to thefees assessed. Searle was a misdemeanor criminal case in which the alleged criminal'smotorcycle was seized by a police agency and stored. Searle, 86 Ill. 2d at 386, 427 N.E.2dat 66. Because the crime with which Mr. Searle was charged bore its own penalties, thesupreme court would not allow the police agency involved to charge him for the storage ofhis motorcycle, as the storage fees were not a penalty for the crime involved. Searle, 86 Ill.2d at 389, 427 N.E.2d at 67-68. Therefore, while interesting, Searle is inapposite.

Keeping in mind the owner's general responsibility for towing and storage fees, weturn to the trial court's April 8, 1999, order.

The trial court initially concluded that section 4-203(g) of the Illinois Vehicle Code(the Code) (625 ILCS 5/4-203(g) (West 1996)) does not apply to this situation. Thatsubsection allows for the immediate towing of hazardous, dilapidated motor vehicles. Weagree with the trial court's assessment that this particular subsection does not apply to thefacts of this case. By definition, a hazardous, dilapidated motor vehicle is "any motorvehicle with a substantial number of essential parts *** either damaged, removed[,] oraltered or otherwise so treated that the vehicle is incapable of being driven under its ownmotor power or[] which[,] by its general state of deterioration, poses a threat to the public'shealth, safety[,] and welfare." 65 ILCS 5/11-40-3.1 (West 1996). A hazardous, dilapidatedmotor vehicle does not include motor vehicles temporarily "incapable of being driven under[their] own motor power" due to the necessity of ordinary service or repair. 65 ILCS 5/11-40-3.1 (West 1996). As the Jacksons' tractor was simply left unattended by their employeeat the weigh station, and since the ISP determined that the vehicle was found to be in a "fairand running condition," we conclude that the tractor was not a hazardous, dilapidated motorvehicle.

The trial court further questioned the application of section 4-203(a) of the Code (625ILCS 5/4-203(a) (West 1996)), which allows law enforcement agencies to engage a towingservice to remove an abandoned or unattended vehicle left on an interstate highway. As thistractor was not left on an interstate highway, where it could constitute a public safety dangerbut was left at a weigh station, the trial court questioned whether or not this subsectionprovided the authority to tow the vehicle. We find that by the clear application of thestatutory language, this subsection was not intended to apply to weigh stations, even thoughattendant to an interstate highway.

The trial court concluded that the general nature of section 4-203 of the Codeauthorizes law enforcement agencies to order the towing of vehicles that in some way impedethe operation of a highway system. We agree with this general interpretation and specificallynote that section 4-203(f) of the Code (625 ILCS 5/4-203(f) (West 1996)) seems to apply tothis factual setting. Section 4-203(f) provides, "Any law enforcement agency in the case ofpublicly owned real property may cause any motor vehicle abandoned or left unattendedupon such property without permission to be removed by a towing service without liabilityfor the costs of removal, transportation[,] or storage or damage caused by such removal,transportation[,] or storage." 625 ILCS 5/4-203(f) (West 1996).

The subsection dealing with hazardous, dilapidated motor vehicles is the lastsubsection of section 4-203 of the Code. Following that subsection are two paragraphs thatwe conclude have general applicability to the entire statute, although the layout of the statuteis somewhat confusing. The first such paragraph states, "When a vehicle removal fromeither public or private property is authorized by a law enforcement agency, the owner of thevehicle shall be responsible for all towing and storage charges." 625 ILCS 5/4-203-11(g)(West 1996). The second paragraph deals with the towing company's lien for services andindicates that in no case shall the lien be greater than the rate or rates established inaccordance with a statute contained within the vehicle-relocator section of the Code. See625 ILCS 5/4-203 (West 1996).

Vehicle relocators are towing services that remove trespassing vehicles from privateland. See 625 ILCS 5/18a-100(1) (West 1996). Section 18a-200(6) of the Code (625 ILCS5/18a-200(6) (West 1996)) refers to the setting of reasonable rates for vehicle-relocatorservices and indicates that the Illinois Commerce Commission (see 625 ILCS 5/18a-100(2)(West 1996)) shall set reasonable rates for police-ordered towing from private property andfor the resulting storage. With respect to storage fees, the statute specifically states that theIllinois Commerce Commission shall "set reasonable rates for the storage, for periods inexcess of 24 hours, of the vehicles in connection with the towing or removal; however, norelocator shall impose charges for storage for the first 24 hours after towing or removal." 625 ILCS 5/18a-200(6) (West 1996).

The Illinois Commerce Commission has set the maximum towing fee for relocatorservices in Chicago-area counties at $105 (see Illinois Commerce Commission Order, RTV-A-16, at 5 (November 26, 1996)) and the maximum storage fee after the expiration of thefirst 24 hours at $15 per day (see Illinois Commerce Commission Order, RTV-A-12, at 2(December 7, 1988)).

While the rates set by the Illinois Commerce Commission only make reference toChicago-area counties, we conclude that application of the rates to police-tow situationsremains warranted given the plain language of section 4-203 of the Code. The languagerelated to liens for towing services simply indicates that the rates allowed shall in no wayexceed the amounts set by the Illinois Commerce Commission. See 625 ILCS 5/4-203 (West1996). Application of the Illinois Commerce Commission's rates by the Illinois CommerceCommission in certain geographical areas is not relevant given the police-tow statutes'blanket adoption of those rates.

Ultimately, the trial court determined that Bowers should be allowed to recoversomething for towing and storing the Jacksons' tractor. After concluding that the ISP hadat least some authority to tow the Jacksons' unattended tractor, the trial court read the word"reasonable" into the statute and concluded that $1,050 out of a $16,710 bill was areasonable fee. While the statute itself does not include the word "reasonable," the towing-services lien must be in compliance with the rates established by the Illinois CommerceCommission, and the Illinois Commerce Commission requires "reasonable" rates. See 625ILCS 5/4-203 (West 1996); 625 ILCS 5/18a-200(6) (West 1996). We agree with the trialcourt's assessment of the need for "reasonable" rates.

We conclude that, at a minimum, Bowers should be reimbursed for towing thevehicle. Because the Jacksons did not cross-appeal the amount of the judgment entered,Bowers can recover no less than the $1,050 amount. However, the trial court'sdetermination of a reasonable rate presumably was somewhat arbitrarily determined, in thatthere is no explanation in the court's order of the basis for the award. There does not appearto be any dispute that Bowers maintained a lien against the Jacksons' tractor in the amountof the towing and storage fees accrued. In fact, at one point, Bowers even threatened toapply for title to the Jacksons' property in satisfaction of the amount. In such a situation, thepolice-tow statutes dictate that the maximum amounts that can be assessed against an ownerare the rates established by the Illinois Commerce Commission for vehicle-relocatorservices.⁽²⁾ Because we do not believe that the trial court considered the rates established bythe Illinois Commerce Commission in determining what the Jacksons owed Bowers, we mustremand this case for reconsideration of the amount to which Bowers is entitled.

In its order, the trial court was also concerned with whether or not Bowers had therequisite authority to hold the Jacksons' tractor. Section 4-204 of the Code (625 ILCS 5/4-204 (West 1996)) indicates that any hold order must be in writing, or confirmed in writing,and that the towing service must be provided with a copy. In other words, if there is nowritten documentation authorizing the hold, the towing service has no authority to hold thevehicle. The trial court found documentary evidence in this case to be lacking, as there wasonly a box checked on the ISP tow-in report, indicating that the tractor was not eligible tobe released. While not much of a piece of documentary evidence, the report could sufficeas a writing authorizing Bowers' hold, even though the explanation portion of the "hold"section was left blank. However, we do not know whether or not Bowers ever had a copyof this report. From the record, it seems that he was merely verbally directed to hold thetractor. If so, unless subsequent written documentation was forwarded to Bowers, Bowerslacked authority to hold the Jacksons' tractor. Furthermore, once the FBI became involvedin continuing the hold, we seriously question whether Bowers could continue to hold thevehicle, absent a separate written documentation. Section 4-204 of the Code explicitly statesthat "any hold" must be in writing. 625 ILCS 5/4-204 (West 1996). Did Bowers havewritten documentation from the FBI? The record is silent. We agree with the trial court'sassessment that the towing company is in a much better position to ascertain and obtain therequisite documentary proof necessary to continue holding a vehicle, for which it expects tobe handsomely reimbursed. Accordingly, when this matter is remanded, this issue must beaddressed by the trial court in determining the amount to which Bowers would be entitledfor towing and storage fees.

Bowers also contends that the trial court's comments in its order revealed a hiddenprejudice and that the judge should have recused himself from the case before hearing and/ordeciding the case. As this case is being remanded, Bowers asks us to remand the casedirectly back to the chief judge of the Madison County Circuit Court for reassignment.

Typically, requests for assignment to a different judge are made during the pendencyof the case in the trial court. Accordingly, the Jacksons argue that Bowers waives any suchargument on appeal. Because the perceived prejudice Bowers believes the trial judgeharbored against him did not surface until the date when judgment was entered, we agreewith Bowers that this situation is unique. We agree that the matter can be addressed onappeal.

We have carefully reviewed the record, including the transcript of the proceedingsleading up to the judgment. The only comment in the five-page order to which Bowersobjects is as follows: "Surely the citizens, the sovereign power in this nation, are entitled tosomething more than to be viewed simply as targets for the predations of government and itsprivate enterprise henchmen." The statement standing alone does sound somewhat harsh,but it cannot be viewed in isolation. The comment came towards the end of the order inwhich the judge is simply explaining that Bowers, who had ongoing and repetitive ties tovarious law enforcement entities, was in a better position to insure that he had the statutorilyrequired paperwork necessary to hold the Jacksons' tractor. After all, if he did not havedocumentary evidence of a law enforcement hold on the tractor, he had absolutely noauthority to prevent the Jacksons from collecting their property upon payment of the towingand short-term storage fees. See 625 ILCS 5/4-204 (West 1996).

Accordingly, viewing the record in its entirety, other than the complained-of sentence,there is nothing to indicate that the judge was prejudiced against Bowers. Furthermore, thecomment cannot be read in isolation, and when read in its proper context, it is not, withoutmore, indicative of prejudice.

For the foregoing reasons, the judgment of the circuit court of Madison County ishereby reversed, and the cause is remanded for further proceedings consistent with thisopinion.

Reversed and remanded with directions.

GOLDENHERSH, P.J., and HOPKINS, J., concur.

1. ¹The nature of the crime with which Jimmie Powers was charged is not known. In apleading, counsel for defendant alludes to charges for illegal drug trafficking, but there isabsolutely no evidence in the record detailing the type of charges involved.

2. ²We find it interesting that the rates Bowers charged Argosy for towing and storing itstrailer were consistent with the rates established by the Illinois Commerce Commission.