text:
    VERN L. KRAMER, Plaintiff-Appellant, v. WEEDHOPPER OF UTAH, INC., et al., Defendants (Lawrence Engineering and Supply, Inc., Third-party Plaintiff-Appellant; California Screw Products Corporation, Third-party Defendant-Appellee; Cal Space Corporation, Third-party Defendant).
    First District (2nd Division)
    Nos. 1 — 90—0009, 1 — 90—0239 cons.
    Opinion filed September 28, 1990.

      Gessler, Flynn, Fleischmann, Hughes & Socol, Ltd., of Chicago (Mark Dym and Patricia Felch, of counsel), for appellant Lawrence Engineering & Supply, Inc.
    Arnstein & Lehr, of Chicago (Patrick Geary and Richard Hellerman, of counsel), for appellee.

      This part of the appeal was dismissed on June 6,1990.

   JUSTICE HARTMAN

delivered the opinion of the court:

Third-party plaintiff-appellant, Lawrence Engineering and Supply, Inc. (Lawrence), appeals from a summary judgment entered in favor of third-party defendant-appellee, California Screw Products Corp. (CSPC). Lawrence contends that the circuit court erred in (1) entering summary judgment without first ruling on the choice of law issue regarding whether CSPC was a successor to the liabilities of its predecessor; (2) concluding that CSPC was not a corporate successor under Illinois law; and (3) granting summary judgment when genuine issues of material fact existed as to the corporate transfers made by CSPC.

This controversy arises from the 1980 crash of an ultralight aircraft flown by Vern Kramer (Kramer). The cause of the crash was a defective AN4-33 bolt allegedly supplied to the plane’s manufacturer, Weedhopper of Utah, Inc., by Lawrence. Kramer filed suit against Weedhopper and later added Lawrence as a defendant. Additional facts are set forth in our earlier opinion. 141 Ill. App. 3d 217, 490 N.E.2d 104.

On March 13, 1987, Lawrence filed a third-party complaint for contribution against an entity it identified as “California Screw, Inc.” (California), and Cal Space Corporation (Cal Space), alleging that the two companies were in the business of designing, manufacturing and selling aircraft-quality nuts and bolts. The complaint stated that in August 1985, Cal Space purchased the business assets and liabilities of California and California or Cal Space, or both, were liable for defects in products they manufactured and sold prior to November 1979. Lawrence asserted that either Cal Space or California had sold the AN4-33 bolt to Lawrence, which in turn sold it to Weedhopper, which subsequently incorporated it into the kit Kramer purchased and ultimately assembled. The AN4-33 bolt allegedly was “unreasonably dangerous” and “defective.”

CSPC denied the allegations and, following discovery, moved for summary judgment, pursuant to section 2 — 1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005), maintaining that CSPC did not sell AN4-33 bolts at the time Kramer purchased the kit in 1979 and that CSPC’s predecessor, A.D. Machine Tooling (A.D.), was not in the aircraft fastener business at that time.

The affidavit and discovery deposition of Gunther Mendel were submitted into evidence, from which the following evidence was adduced. In 1961, Mendel started the Associated Machine Tool Rebuilders partnership with Andre Fernand. In 1966, they incorporated as A.D., with Mendel as the president and Fernand as the secretary-treasurer. The two men were the only shareholders and probably the only directors. Mendel served as president until 1984. The company was in the business of rebuilding and repairing machinery until 1984, when it changed its corporate name to the present CSPC.

Meanwhile, in 1981, Mendel was also an officer, a director, and a shareholder of Cal Space, another California corporation separate from A.D. Prior to 1981, Cal Space was doing business under the name California Screw Products Corporation, previously identified above as California. California was incorporated in 1965, and Mendel acted as an officer, a director, and a shareholder of that corporation, too. Mendel and Fernand served as charter shareholders, with Fernand the president and Mendel the secretary-treasurer. When Alexander Goden joined the firm in 1966, he became the president, Mendel became the vice-president and Fernand became the secretary-treasurer. During its entire corporate life, California only had three shareholders.

Mendel drew separate checks from both A.D. and California. The latter had been located 20 blocks from A.D. The two firms maintained separate identities. In 1965, California made aircraft-quality fasteners, including the type of bolt allegedly involved in this lawsuit. In 1981, California changed its name to Cal Space, which continued to operate out of the same physical location as California had. In the later manufacturing stages of California, the company had manufactured only “lower grade” aircraft-quality fasteners. Cal Space was not engaged in the same business, however. California previously had sold its fastener products to individual distributors. Cal Space now sold higher grade aircraft-quality fasteners directly to aircraft manufacturers, such as Boeing and McDonald Douglas. The products were not made on the same machinery, and different equipment had to be purchased. The name change was intended to reflect the higher grade of the company’s product and was done for “image reasons.”

In 1984, A.D. purchased Cal Space’s old low tech fastener equipment, comprising 30% of Cal Space’s total equipment, for $592,756. A short time later, A.D. changed its name to CSPC and abandoned its machinery rebuilding business in order to focus exclusively on the fastener business. The only documentation of the sale from Cal Space to A.D. is a three-page bill detailing the transaction. Cal Space subsequently sold its remaining equipment to Deutsch Fasteners Corporation in October 1985, and the company dissolved in November 1986. Three of its former employees joined CSPC after the Deutsch sale; however, all the manufacturing personnel were kept by Deutsch. In the contract between Cal Space and Deutsch, Deutsch did not agree to assume any liabilities incurred by Cal Space.

Mendel stated that Lawrence was a customer of California in 1979 before it became Cal Space and that Lawrence purchased fasteners from California, including the AN4-33 bolt.

Following hearings on the motion, the circuit court granted the motion for summary judgment on December 13, 1989, finding no successor liability as a matter of law. Both Kramer and Lawrence filed timely notices of appeal; however, only Lawrence remains as an appellant, as this court previously granted CSPC’s motion to dismiss Kramer’s appeal on June 6, 1990.

I

Lawrence initially contends that the circuit court erred by not deciding whether California or Illinois law, governing successor corporation liability, applied to the case at bar. The court ruled that it did not have to make the determination because CSPC was not a successor corporation under either State’s law.

Conflicts rules are applied only when a difference in law will make a difference in the outcome. (Hartford v. Burns International Security Services, Inc. (1988), 172 Ill. App. 3d 184, 187, 526 N.E.2d 463; International Administrators, Inc. v. Life Insurance Co. of North America (7th Cir. 1985), 753 F.2d 1373, 1376 n.4; see also In re Air Crash Disaster Near Chicago, Illinois (7th Cir. 1981), 644 F.2d 594, 605 n.2.) Since the circuit court held that CSPC was not a successor under either State’s law, the law of each State must be examined in order to determine whether the court erred in not deciding to specifically apply California or Illinois law to the case sub judice.

A

In Illinois, a corporation which purchases the assets of another corporation generally is not liable for the debts and liabilities of the transferor in the absence of an agreement providing otherwise. (Green v. Firestone Tire & Rubber Co. (1984), 122 Ill. App. 3d 204, 206, 460 N.E.2d 895 (Green); Freeman v. White Way Sign & Maintenance Co. (1980), 82 Ill. App. 3d 884, 892, 403 N.E.2d 495 (Freeman); Hernandez v. Johnson Press Corp. (1979), 70 Ill. App. 3d 664, 388 N.E.2d 778 (Hernandez).) Exceptions to the rule include “ ‘(1) where there is an express or implied agreement of assumption; (2) where the transaction amounts to a consolidation or merger of the purchaser or seller corporation; (3) where the purchaser is merely a continuation of the seller; or (4) where the transaction is for the fraudulent purpose of escaping liability for the seller’s obligations.’ ” Green, 122 Ill. App. 3d at 209, quoting Hernandez, 70 Ill. App. 3d at 667.

The first exception is not satisfied here because the only documentation of Cal Space’s equipment sale to A.D. is a three-page invoice listing which machines were included in the sale. No express liability provisions appear on the bill, and there is no evidence of any express or implied liability assumption by A.D. anywhere in the record.

The salé was not a consolidation or merger under the second exception because Cal Space and A.D. each continued its separate existence following the sale. See Freeman, 82 Ill. App. 3d at 893.

A de facto merger may be sufficient to allow the seller’s liabilities to be imposed on the buyer (Hernandez, 70 Ill. App. 3d at 667), and may occur when the following criteria are present:

“ ‘(1) There is a continuation of the enterprise of the seller corporation, so that there is a continuity of management, personnel, physical location, assets, and general business operations.
(2) There is a continuity of shareholders which results from the purchasing corporation paying for the acquired assets with shares of its own stock, this stock ultimately coming to be held by the shareholders of the seller corporation so that they become a constituent part of the purchasing corporation.
(3) The seller corporation ceases its ordinary business operations, liquidates, and dissolves as soon as legally and practically possible.
(4) The purchasing corporation assumes those liabilities and obligations of the seller ordinarily necessary for the uninterrupted continuation of normal business operations of the seller corporation.’ ” Freeman, 82 Ill. App. 3d at 893, quoting Hernandez, 70 Ill. App. 3d at 667.

None of the requirements of a defacto merger are present in the case at bar. The two companies never shared physical locations, and different manufacturing employees were involved. Although CSPC purchased 30% of Cal Space’s equipment, this sale of assets undisputedly was for cash and not for stock as is required by Illinois law. Furthermore, Cal Space did not cease operations until November 1986, two years after the sale of assets. (See Gonzalez v. Rock Wool Engineering & Equipment Co. (1983), 117 Ill. App. 3d 435, 439, 453 N.E.2d 792 (Gonzalez).) There is no evidence in the record that CSPC assumed the liabilities of Cal Space. As the court in Gonzalez noted, “it is to be expected that the purchasing corporation will continue the operations of the predecessor, but this does not by itself render the purchaser liable for the obligations of the predecessor.” Gonzalez, 117 Ill. App. 3d at 439.

Finally, the transfer cannot be considered a fraudulent attempt to escape liability since there is no record evidence that it was conducted for fraudulent reasons. Only a portion of the corporation’s equipment was sold. Cal Space continued its operations for several years after that transaction and was amenable to suit from 1984 until it dissolved in 1986. Cal Space has not been shown to have had knowledge of Kramer’s accident or the resulting lawsuit before 1986, which might have demonstrated a fraudulent motive in making the earlier corporate changes. Moreover, adequate consideration was given before any knowledge of the suit appears to have arisen, further evincing a nonfraudulent motive. See Freeman, 82 Ill. App. 3d at 893.

Under Illinois law, the circuit court correctly found that no successor corporation liability was assumed from the 1984 sale of assets from Cal Space to CSPC.

B

Under California law, a purchasing corporation does not assume the selling corporation’s liabilities unless one of the four exceptions noted above exists or when the purchaser buys and continues the seller’s “product line.” Ray v. Alad Corp. (1977), 19 Cal. 3d 22, 560 P.2d 3,136 Cal. Rptr. 574 (Ray).

In Ray, the plaintiff sought recovery in strict liability for injuries suffered when he fell from a defective ladder in 1969. The manufacturer of the ladder (Alad I) had sold all its assets on July 1, 1968, and the buyer formed a new corporation (Alad II). As part of its sale, Alad I dissolved its corporate existence and cooperated with Alad II’s organization of a new corporation with the same name, owning the assets purchased from Alad I. Factory personnel remained the same, and Alad II employed Alad I’s former general manager and principal stockholder as a paid consultant for about six months following the sale, resulting in what a California justice later termed as an “almost complete overlap of the corporate entities.” (Becker v. IRM Corp. (1985), 38 Cal. 3d 454, 484, 698 P.2d 116, 136, 213 Cal. Rptr. 213, 233 (Lucas, J., dissenting).) The court allowed recovery against the successor under circumstances where the successor acquired the manufacturing business and continued the output of its product line. (Ray, 19 Cal. 3d at 34, 560 P.2d at 11, 136 Cal. Rptr. at 581.) In creating this “product line” exception, the court recognized three primary guidelines for justifying the transfer of liability from seller to buyer, including (1) the lack of an adequate plaintiff’s remedy against the seller; (2) the purchaser’s access to knowledge of product risks; and (3) the transfer of good will associated with the seller’s product line. (Ray, 19 Cal. 3d at 25, 560 P.2d at 5, 136 Cal. Rptr. at 576.) All three steps of the Ray analysis must be satisfied before the “product line” theory and successor liability will be imposed. Lundell v. Sidney Machine Tool Co. (1987), 190 Cal. App. 3d 1546, 1556, 236 Cal. Rptr. 70, 77.

None of the above factors, however, are identified in the case sub judice. Five years had elapsed between the time Cal Space (then California) allegedly manufactured the defective aircraft bolt and its sale of assets to A.D. By the time A.D. purchased the equipment, Cal Space was no longer in the AN4-33 bolt business, having started direct sales of higher tech bolts directly to manufacturers after 1981. These changes attenuate the responsibility A.D., and its successor, CSPC, might have borne for destroying Lawrence’s remedies against the original manufacturer, California, and its successor Cal Space. (See Lundell v. Sidney Machine Tool Co., 190 Cal. App. 3d at 1552, 236 Cal. Rptr. at 74.) Moreover, A.D. only purchased some of Cal Space’s resources and did not acquire any of its personnel until two years later when Deutsch let them go. Finally, there is no evidence that Cal Space sold its good will and inventory as part of the sale, or agreed to dissolve its corporate existence and to assist and cooperate in the recreation of a new corporation. (See Ray, 19 Cal. 3d at 34, 560 P.2d at 11, 136 Cal Rptr. at 581.) As previously noted, Cal Space, at the time of the sale, no longer produced the bolt in question; therefore, CSPC could not continue a “product line.” Since CSPC did not receive the substantial benefit its predecessor enjoyed, this court cannot impose upon it the burden of liability for injuries from bolts its predecessor allegedly manufactured. The “product line” exception, therefore, is inapplicable to the case at bar. CSPC is not liable under California’s rules of successor corporate liability.

Since the outcome under either California or Illinois law is the same, the circuit court did not err in declining to formally choose which law to follow.

Assuming, arguendo, that the outcome would have been different under California law, Illinois law is the proper law to be applied in such a case. Successor corporate liability is determined under the choice of law provisions for products liability — traditional tort law (Barron v. Kane & Roach, Inc. (1979), 79 Ill. App. 3d 44, 47, 398 N.E.2d 244), and Illinois courts utilize the Restatement (Second) of Conflicts’ most significant relationship test for choice of law questions concerning torts, as set forth in Ingersoll v. Klein (1970), 46 Ill. 2d 42, 47, 262 N.E.2d 593.

In applying the test to the case at bar, Illinois has the most significant relationship in that the possible tort liability derives from applications of Illinois products liability law; the injury occurred in Illinois; and the relationship of all the parties is centered in Illinois. In view of the foregoing, the circuit court correctly turned to and applied Illinois law.

II

Lawrence’s final contention is that the circuit court improperly granted CSPC summary judgment, arguing that several factual questions existed which preclude the grant of a summary judgment. The principles governing summary judgment procedure are well established and need not be repeated here. Ill. Rev. Stat. 1987, ch. 110, pars. 2— 1005(b), (c); Jackson Jordan, Inc. v. Leydig, Voit & Meyer (1990), 199 Ill. App. 3d 728, 735, 557 N.E.2d 525; Kellerman v. Mar-Rue Realty & Builders, Inc. (1985), 132 Ill. App. 3d 300, 305, 476 N.E.2d 1259; Montes v. Hawkins (1984), 126 Ill. App. 3d 419, 423-24, 466 N.E.2d 1271.

At bar, the affidavits and depositions filed show that no questions of fact existed as to whether CSPC was a corporate successor to Cal Space’s liabilities. CSPC denied making the AN4-33 bolt in question, and the record evidence supports this denial. CSPC also denied that it was in existence at the time the bolt was made, an assertion supported by the record as well. Although Lawrence insists that a genuine issue of fact existed as to whether CSPC assumed the liability of Cal Space, it filed no counteraffidavits or counterevidentiary material which supports these contentions. The circuit court, therefore, correctly determined that there was no genuine issue of material fact. (See Shoemaker v. Rush-Presbyterian-St. Luke’s Medical Center (1989), 187 Ill. App. 3d 1040, 1043-44, 543 N.E.2d 1014.) Moreover, because CSPC could not have been found liable to Lawrence based on the theory that CSPC should assume its predecessor’s liability, the circuit court’s grant of summary judgment was proper. See Nguyen v. Johnson Machine & Press Corp. (1982), 104 Ill. App. 3d 1141, 1151, 433 N.E.2d 1104.

For the foregoing reasons, the order of the circuit court granting CSPC summary judgment must be affirmed.

Affirmed.

BILANDIC and SCARIANO, JJ., concur.

      he third-party complaint identifies this entity as “California Screw, Inc.” Mendel testified that the name was the same as CSPC; however, it was an entirely different and independent company.

      “Lower grade” in this context signifies that the material used in such manufacture is a lower grade alloy.

      There is no claim or evidence indicating that A.D. purchased the name “California Screw Products Company,” predecessor to Cal Space. Nor did A.D. succeed to any of the business carried on by the entity which previously used this same name.

      Lawrenee asks this court to adopt the “product line” exception to Illinois case law, if it decides Illinois law must be applied. Such an invitation has been repeatedly rejected by our courts. (Green, 122 Ill. App. 3d at 212; Gonzalez, 117 Ill. App. 3d at 440; Freeman, 82 Ill. App. 3d at 894; Barron v. Kane & Roach, Inc., 79 Ill. App. 3d at 49; Domine v. Fulton Iron Works (1979), 76 Ill. App. 3d 253, 257, 395 N.E.2d 19; Hernandez, 70 Ill. App. 3d at 669.) Moreover, as subsection B reveals, CSPC is not liable even under the Ray doctrine.


source: Caselaw Access Project

author: JUSTICE DUNN

license: Public Domain

text:
    JOHN P. TOEPPER et al., Plaintiffs-Appellants, v. BROOKWOOD COUNTRY CLUB ROAD ASSOCIATION et al., Defendants-Appellees.
    Second District
    No. 2 — 89—1198
    Opinion filed October 5, 1990.
    Rehearing denied November 15, 1990.

      William J. Wylie, of William J. Wylie & Associates, of Wheaton (Stephen A. Rehfeldt, of counsel), for appellants.
    Howard C. Emrnerman, of Rudnick & Wolfe, of Chicago, and Melbourne A. Noel, Thomas W. Fawell, and Barbara J. Stuetzer, all of Katten, Muchin & Zavis, of Oakbrook Terrace, for appellee Chase Manhattan Bank.
    Elizabeth Zott and Marjorie Press Lindblom, both of Kirkland & Ellis, of Chicago, for appellee NEI Corporation.
    Gerard B. Gallagher, of Gallagher & Joslyn, of Oakbrook Terrace, for appellee Lawrence G. Malanfant.
    John Huck, of McBride, Baker & Coles, and Katten, Muchin & Zavis, both of Chicago, and Rooks, Pitts & Poust, of Wheaton (John J. Mangan, of counsel), for other appellees.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiffs, John Toepper et al., appeal from a judgment order entered by the circuit court of Du Page County granting various defendants’ motions for judgment on the pleadings with regard to count I and count II of plaintiffs’ class action complaint for injunctive and declaratory relief. Plaintiffs raise the following contentions on appeal: (1) that the trial court, in granting the motions, erroneously interpreted the declaration of covenants, conditions, restrictions and easements for Dominion Country Club Homeowners’ Association (Declaration) regarding the use of Dominion Drive; (2) that the court erroneously determined that certain defendants were assignees of the original developer, NEI Corporation, and were therefore entitled to exercise the rights granted the developer in the Declaration; and (3) the trial court erred by failing to apply a provision of the Illinois Condominium Property Act concerning duration of certain developers’ rights (Ill. Rev. Stat. 1989, ch. 30, par. 318.2(b)). We reverse and remand.

In their class action complaint, which was filed on November 4, 1985, plaintiffs alleged as follows. The Dominion Country Club Homeowners’ Association (Dominion Association) was established pursuant to the Declaration, which was recorded on December 30, 1974. The complaint was filed on behalf of the condominium owners who were members of the Dominion Association, a class comprised of more than 135 members. A copy of the Declaration was attached as an exhibit to the complaint. The Declaration gave certain rights and obligations to the developer and defined the term “developer” as NEI Corporation of Illinois “and its successors and assigns.” These rights included the right to develop portions of the planned development area and to add other real estate to the planned development area, which would subject any such real estate to the Declaration. The developer had the right to name the directors of the Dominion Association Board until the year 2026 unless 3,499 units were sold in the planned development area or the developer elected to terminate its sole control of the board.

Each condominium owner received an easement for ingress and egress over roadways in the Dominion Association area. Under section 3.03 of the Declaration, this easement was “for pedestrian and vehicular traffic for the benefit of all owners and not for the use or benefit of the public generally.” The developer, its agents, employees, guests, and invitees also had the right to use such roadways until the developer’s rights were terminated. Section 7.06 of the Declaration stated that its provisions could only be amended by an instrument executed by at least 75% of the unit owners.

Plaintiffs’ complaint further alleged that on April 5, 1977, NEI executed a document purporting to assign all its right, title, and interest as developer under the Declaration to American National Bank & Trust Company of Chicago as trustee under trust agreement number 39296. A copy of this document was attached as an exhibit to the complaint.

According to the complaint, defendants, Federal Deposit Insurance Company (FDIC), Chase Manhattan Bank, and Lawrence Malanfant, executed a document titled “Developer Agreement” on September 30, 1979. Plaintiffs attached a copy of this agreement to the complaint. The recitals in this agreement stated that Chase held a mortgage from NEI and had foreclosed upon the mortgage. Although it is not completely clear from the complaint, the property in question was apparently the planned development area mentioned in the Declaration. Title to the land, according to the recitals, was owned by a land trust known as American National Bank, trust number 39296. By virtue of an order entered in the foreclosure proceeding, Chase, through a duly appointed agent, had the sole power of direction over the land trust.

The recitals further stated that Malanfant was the sole beneficiary of a land trust holding title to land adjacent to the Chase parcel. The FDIC held a mortgage on land which was apparently adjacent to the Chase parcel and was also a party to foreclosure proceedings concerning this land. According to the recitals, Chase and Malanfant had received written assignments from NEI of NEI’s rights as developer under the Declaration. Chase, Malanfant, and the FDIC wished to share equally the developer’s rights under the Declaration so that each could successfully develop its parcels.

The agreement stated that Chase, Malanfant, and the FDIC assign and cross-assign to one another any and all rights they may possess to act as developer under the Declaration. Each would have the power to name one director to the Dominion Association, and the fourth director would be chosen by unanimous consent of all three. The agreement also provided that they would generally instruct their director to vote in accordance with the desire of a majority of the parties. The parties also generally agreed that any actions based upon their rights as developers would be taken upon the affirmative desire of a majority of the parties. The parties further agreed to cause a certain agreement attached as an exhibit to the developer agreement to be executed.

In the attached agreement, the Dominion Association granted the FDIC, the aforementioned American National Bank land trust, and the La Salle National Bank land trust holding title to the Malanfant parcel, a perpetual easement for use of Dominion Drive. In return, the FDIC and La Salle were to pay $500 annually, while American was to pay $200 annually. The Dominion Association also agreed to lease a certain parking lot to the La Salle Bank land trust. This agreement was executed on October 1, 1979.

Plaintiffs’ complaint also contained the following allegations. The agreement granting the aforementioned easements to use Dominion Drive was executed by defendants Robert Isarion and Richard Reiff, who were purporting to act as directors of the Dominion Association. Isarion and Reiff were appointed as directors of the Association by the FDIC, but the FDIC had no right to appoint individuals to Association directorships. Isarion and Reiff, therefore, did not have the authority to act as directors.

In conjunction with the developer agreement, NEI executed a document titled “Consent and Assignment,” a copy of which was attached to the complaint. In this document, NEI consented to the developer agreement and, in order to confirm the rights of the parties to that agreement, assigned all of its right, title, and interest, if any, as developer under the Declaration to Chase, Malanfant, and the FDIC.

The complaint further alleged that defendants Jack Cerone and Sam Syracuse claimed that, under the developer agreement, they had the authority to act as Dominion Association directors. Cerone and Syracuse stated in a September 1985 letter to the Wood Dale city council that they were the only two directors of the Dominion Association, inferring that they had the authority to execute a document entitled “Agreement Respecting Private Roadway.” Under this agreement, American National Bank, as trustee under trust number 64551, would acquire all rights accruing to the developer under the Declaration, including the right to use Dominion Drive. According to the recitals of the agreement, this land trust was about to acquire title to the parcel which the FDIC obtained title to in the foreclosure proceeding and to which title subsequently passed to Capitol Bank & Trust of Chicago under trust number 553. The beneficiary of trust number 64551 was a joint venture between Marquette Properties, Inc., and the National Housing Partnership. Under the terms of the agreement, trust number 64551 was to widen Dominion Drive and install a gate preventing access to that road from Addison Road except by authorized card holders. Plaintiffs alleged, however, that Cerone and Syracuse did not have the authority to enter into this agreement on behalf of the Dominion Association because they were not directors.

The complaint further alleged that the joint venture applied to the Wood Dale Zoning Board of Appeals for a planned unit development (PUD) and the “Agreement Respecting Private Roadway” was submitted in conjunction with the application in order to satisfy a Wood Dale zoning ordinance requiring adequate access roads. In count I, plaintiffs sought injunctive relief to prevent Wood Dale from approving the proposed PUD, to prevent any party from utilizing any easement pursuant to the 1979 developer agreement, to prohibit the Dominion Association from granting any easements to parties who were not Association members without approval of the owners, and to prohibit Cerone and Syracuse from purporting to act as directors of the Dominion Association.

In count II of the complaint, plaintiffs sought a declaratory judgment stating, inter alia, that Isarion, Reiff, Cerone, and Syracuse never had the authority to act as Dominion Association directors, that the easements purportedly granted by the Association on October 1, 1979, are null and void, that the parties to the developer agreement did not receive the rights reserved to the developer under the Declaration, and that the rights of NEI as developer under the Declaration were personal rights which were not assignable absent the assignment of all the assets and liabilities of NEI to a successor developer. Counts III and IV, which are not at issue here, alleged breaches of fiduciary duty by Reiff, Isarion, Cerone, and Syracuse.

The trial court dismissed counts I and II in a 1986 order. Plaintiffs then appealed to this court, which reversed and remanded on the basis that certain necessary parties had not been made parties to the litigation. (Toepper v. City of Wood Dale (1987), 160 Ill. App. 3d 1163 (unpublished order under Supreme Court Rule 23).) Upon rehearing, this court modified its order by affirming the dismissal of defendant, City of Wood Dale, as a party defendant but reversing as to the other defendants.

Shortly after the case was remanded, the necessary parties were added, and the case was reassigned to a new trial judge. Defendants subsequently renewed their motions for judgment on the pleadings on counts I and II, and the motions were granted by the trial court in April 1989. Plaintiffs now appeal.

A motion for judgment on the pleadings pursuant to section 2 — 615(e) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615(e)) should only be granted if the trial court can determine the relative rights of the parties solely from the pleadings. (Teeple v. Hunziker (1983), 118 Ill. App. 3d 492, 497.) In ruling upon such a motion, the trial court must examine all pleadings, taking as true all well-pleaded facts set forth in the pleadings of the party opposing the motion and any reasonable inferences to be drawn from those pleadings to determine whether there are material issues of fact or whether the controversy may be resolved as a matter of law. (Triangle Sign Co. v. Weber, Cohn & Riley (1986), 149 Ill. App. 3d 839, 843.) If such an examination discloses the existence of issues of material fact, the motion for judgment on the pleadings must be denied. Triangle Sign Co., 149 Ill. App. 3d at 843.

Relying on this court’s decision in Fairways of Country Lakes Townhouse Association v. Shenandoah Development Corp. (1983), 113 Ill. App. 3d 932, plaintiffs argue that the developer’s rights under the Declaration were personal rights of NEI which could not be passed on to another entity unless that entity acquired all of NEI’s assets and liabilities. The Fairways case, however, is distinguishable from the instant case.

Fairways involved adjoining areas of land, the Fairway parcel and the Greens parcel, both of which were originally owned by the Richards Group. The two declarations for the Fairway parcel defined the term “developer” as the Richards Group of Illinois, Inc., “and its successors and assigns.” The Fairway declarations gave the developer the right to annex additional property to the premises or common area from the proposed development area, which included the Greens parcel. Fairways, 113 Ill. App. 3d at 934.

The Richards Group transferred title to the Greens parcel to another entity which transferred it to defendants. Defendants then recorded a supplemental declaration purporting to annex the Greens parcel to the Fairway Declarations. The trial court ruled that the developer’s right to annex land to the Fairway Declarations ran with the land to defendants and defendants were developers within the meaning of those declarations. 113 Ill. App. 3d at 935.

In reversing the trial court in Fairways, this court first concluded that the developer rights under the Fairway Declarations were personal rights which did not run with the land. (113 Ill. App. 3d at 935.) This court then stated as follows:

“Defendants alternately contend that they, as ‘successors and assign[s]’ of the Richards Group, are the ‘developers’ as defined in the Fairway Declarations thus capable of exercising the annexation rights provided therein. We do not agree. Generally, the purchase of one corporation’s property by another does not subject the purchasing corporation to the liabilities of the seller nor does it entitle it to exercise the seller’s rights unrelated to the property. [Citations.] Such rights only accrue where there has been a consolidation or merger of the corporation or the purchasing corporation is merely a continuation of the seller. [Citation.] Such is not the case here. The record reflects that the defendants merely purchased title to the Greens property from Naper Venture, who purchased it from the Richards Group. *** Accordingly, the finding of the trial court that the defendants were developers within the meaning of the Fairway Declarations was error.” 113 Ill. App. 3d at 936-37.

The term “successor” with regard to a corporation means another corporation which, through amalgamation, consolidation, or duly authorized legal succession, has acquired the rights and assumed the burdens of the initial corporation. (Southern Patrician Associates v. International Fidelity Insurance Co. (1989), 191 Ga. App. 106, 108, 381 S.E.2d 98, 99; Hanna v. Florence Iron Co. (1918), 222 N.Y. 290, 293-94, 118 N.E. 629, 631-32.) An assignment is a transfer of an identifiable property, right, or claim from the assignor to the assignee. (In re Estate of Martinek (1986), 140 Ill. App. 3d 621, 628.) It is apparent from a review of the Fairways decision that defendants did not argue that they had received an assignment of the Richards Group’s developer’s rights. In the portion of the opinion concerning whether defendants were “developers” as defined in the Fairway Declarations, this court did not consider whether the developer’s rights had been assigned to defendants. Instead, this court pointed out that defendants had not merged or consolidated with the prior titleholders, nor were defendants a continuation of any of the previous titleholders. (Fairways, 113 Ill. App. 3d at 937.) This analysis clearly indicates that the court was only considering whether defendants were successors of the original developer, and it was not faced with the argument that they were assignees.

In the case at bar, certain defendants argue that they received the developer’s rights by assignment. No argument is raised that these defendants are successors of NEI. Accordingly, the Fairways case is inapposite. While, as we have seen, this court held in Fairways that the developer’s rights were personal rights which did not run with the land (113 Ill. App. 3d at 936), this does not mean such rights cannot be assigned. Courts of other States have enforced assignments of developer’s rights. See, e.g., Shields v. Welshire Development Co. (1958), 37 Del. Ch. 439, 446, 144 A.2d 759, 763 (assignment of developer’s right to approve plans for buildings, fences, walk, and other structures); East Sevier County Utility District v. Wachovia Bank & Trust Co. (Tenn. 1983), 655 S.W.2d 924, 926 (assignment of developer’s right to collect water and sewer line tap-on fees); Chimney Hill Owners' Association, Inc. v. Antignani (1978), 136 Vt. 446, 452-55, 392 A.2d 423, 427-28 (assignment of developer’s right to collect assessments).

In the Shields case, the court concluded that the developer’s plan-approval rights were assignable even though the deed restrictions establishing this right did not indicate whether the developer’s rights thereunder could be assigned. (Shields, 37 Del. Ch. at 445-46, 144 A.2d at 762-63.) By contrast, in the case at bar, section 1.01 of the Declaration defines the term “developer” as “NEI Corporation *** and its successors and assigns.” The rules governing construction of contracts are applicable to such a declaration. (See Streams Club, Ltd. v. Thompson (1989), 180 Ill. App. 3d 830, 838.) The interpretation and construction of such a declaration is therefore generally determined by the court as a matter of law. (Streams Club, 180 Ill. App. 3d at 838.) In light of the language of section 1.01 of the Declaration, we conclude the developer rights under that document were assignable.

We also disagree with plaintiffs’ contention that under section 7.06 of the Declaration, the easements plaintiffs complained of permitting the grantees access to Dominion Drive could only have been granted with the approval of three-quarters of the Dominion Association members. Section 7.06 states that the Declaration may only be amended by an instrument executed by at least 75% of the Association members. Section 3.03 states that all members shall have an easement for ingress and egress across Dominion Drive, and “[t]his easement shall be for pedestrian and vehicular traffic for the benefii of all Owners and not for the use or benefit of the public generally.”

The easement given in section 3.03 of the Declaration is not an exclusive easement. This point is further illustrated by the fact that the preamble of the Declaration states that the developer “may, from time to time, subject portions of the Planned Development Area to additional and separate covenants, restrictions, conditions, easements, charges, and liens for the benefit of all or part of the Planned Development Area and each owner of a dwelling unit thereon.” Since the Association members’ easement for ingress and egress on Dominion Drive is not exclusive, granting a similar easement to a nonmember does not constitute an amendment to the Declaration which would require the consent of three-quarters of the members.

Although we have rejected some of plaintiffs’ contentions, we believe the complaint sets forth sufficient facts to establish the invalidity of the easements purportedly granted by the Dominion Association on October 1, 1979, assuming, as we must, the truth of those facts. According to the complaint, defendant Isarion, in his purported capacity as president of the Dominion Association, executed a document in which the Association agreed to grant perpetual easements for the use of Dominion Drive to the FDIC, American National Bank land trust number 39296 and the La Salle National Bank land trust holding title to the Malanfant parcel. The Association also agreed to lease a certain parking lot to the La Salle National Bank land trust.

Plaintiffs alleged in the complaint that Isarion and the other Association director at that time, Reiff, were appointed by the FDIC. Plaintiffs further alleged that the FDIC claimed the authority to exercise the developer’s rights under the Declaration by virtue of the September 1979 developer agreement executed by the FDIC, Chase, and Malanfant. In that document, the three parties expressed a desire to share the developer’s rights and purported to assign and cross-assign those rights to one another. Under the terms of the agreement, the FDIC received the right to appoint one Dominion Association director and veto power over the appointment of another.

Defendants suggest several reasons why, in their opinion, the purported assignments of developer rights in the developer agreement were valid. First of all, defendants point out, the original developer, NEI, executed a document consenting to the developer agreement and purporting to assign any of its developer’s rights to the parties to that agreement. The problem with this argument is that plaintiffs allege in the complaint and NEI admits in its answer that NEI assigned its developer rights under the Declaration to American National land trust number 39296 in April 1977. A copy of this written assignment was attached to the complaint.

An assignment is a transfer of some identifiable property, right, or claim from the assignor to the assignee. (In re Estate of Martinek (1986), 140 Ill. App. 3d 621, 628.) An assignment operates to transfer to the assignee all of the assignor’s right, title, and interest in whatever is assigned. (Martinek, 140 Ill. App. 3d at 629; Bishop v. Village of Brookfield (1981), 99 Ill. App. 3d 483, 490; Litwin v. Timbercrest Estates, Inc. (1976), 37 Ill. App. 3d 956, 958.) Thus, if NEI assigned its developer rights in 1977, as plaintiff alleges and NEI admits, it would have had no such rights to assign in 1979, rendering the “Consent and Assignment” that it executed in connection with the developer agreement meaningless.

Defendants also argue that according to the recitals of the developer agreement: (1) Chase and Malanfant had received written assignments of NEI’s developer rights; and (2) an agent of Chase held the power of direction for American National trust number 39296. Defendants argue that the developer agreement was valid because Chase, Malanfant, or both had the developer rights at the time of the declaration.

Plaintiffs and defendants dispute whether plaintiffs are bound by the factual recitals in the developer agreement, an exhibit to their complaint. (Compare McCormick v. McCormick (1983), 118 Ill. App. 3d 455, 460-61, and Laster v. Chicago Housing Authority (1982), 104 Ill. App. 3d 540, 543.) It is not necessary to resolve this dispute because, even if Chase and/or Malanfant did possess developer rights before entering into the developer agreement, the FDIC could not have validly obtained developer rights by virtue of that agreement.

The three parties to the developer agreement purported to assign and cross-assign the developer’s rights to one another. As we have seen, however, the effect of an assignment is that the assignor transfers all of its right, title and interest in the thing assigned to the assignee. (Martinek, 140 Ill. App. 3d at 629; Bishop, 99 Ill. App. 3d at 490; Litwin, 37 Ill. App. 3d at 958.) Since none of the parties to the developer agreement relinquished any developer rights to the others, the agreement cannot be characterized as an assignment even though the word is repeatedly used in the agreement. The issue of whether an assignment has taken place is dependent upon the intent of the parties. (See Martinek, 140 Ill. App. 3d at 629.) Since the intention of the parties to the developer agreement was to share and jointly exercise the developer rights, and no party intended to relinquish such rights, no assignment took place.

Defendants argue that plaintiffs have waived any argument that the complaint sets forth facts showing the purported assignments of developer rights in the developer agreement was invalid because no such argument was raised in the trial court. We disagree. In oral arguments on the original motions for judgment on the pleadings and motion to reconsider entry of judgment on the pleadings in 1986, plaintiffs’ attorney questioned the validity of the purported assignments. In their response to the renewed motions for judgment on the pleadings in 1989, plaintiffs incorporated all arguments previously made in response to the original motions. Plaintiffs therefore preserved this issue for review.

Section 1.01 of the Declaration defined developer as NEI Corporation “and its successors and assigns.” Thus, the powers given to the developer under the Declaration could only be exercised by NEI or its successors and assigns. Even if Chase and/or Malanfant received valid assignments of developer rights, they could not agree to share those rights with an outside entity such as the FDIC. This includes the developer's right to name directors to the Dominion Association board.

Therefore, according to the facts alleged in the complaint, and considering the exhibits attached to the complaint, the FDIC did not possess the developer rights under the Declaration and had no authority to appoint directors to the Dominion Association. If, as the complaint alleges, Isarion and Reiff were appointed directors of the Association by the FDIC, they had no authority to act in said capacity. The agreement to convey easements executed by Isarion on behalf of the Association would be invalid. This is true even though, as defendants point out, numerous other parties including NEI and American National Bank land trust number 39296 consented to the easements in question. The easements in question were granted by the Dominion Association, not by NEI or trust number 39296. Therefore, if the person executing the agreement on behalf of the Association lacked the authority to do so, the easements were invalid. Plaintiffs pleaded sufficient facts to establish an entitlement to injunctive relief to prevent defendants from claiming any rights under those purported easements and to a declaratory judgment that these easements were invalid.

Plaintiffs also sought a declaratory judgment that Cerone and Syracuse never had the authority to act as Dominion Association directors and injunctive relief to prohibit them from purporting to act in that capacity. Plaintiffs alleged in the complaint that Cerone and Syracuse never had the authority to act as directors. While this may be a conclusional allegation, as defendants maintain, it finds support elsewhere in the complaint. As we have indicated, plaintiffs pleaded sufficient facts to establish that the parties to the developer agreement set. forth therein a system for choosing directors that contravened the Declaration. It is a reasonable inference that Cerone and Syracuse were appointed directors pursuant to this procedure. Therefore, plaintiffs’ complaint contains sufficient support for this claim.

Plaintiffs have also argued that under section 18.2(b) of the Condominium Property Act (Act) (Ill. Rev. Stat. 1989, ch. 30, par. 318.2(b)) a developer may not reserve to itself the right to choose directors for a board of managers for a period of more than three years after the recording of the declaration. As defendants point out, however, section 2.1(a) of the Act (Ill. Rev. Stat. 1989, ch. 30, par. 302.1(a)) makes it clear that section 18.2 does not apply with respect to events occurring prior to July 1, 1984, and would not apply to invalidate vested rights from a declaration recorded in 1974, including the developer’s rights under that document. Nevertheless, for the reasons we have stated, the trial court erred by granting defendants judgment on the pleadings on counts I and II.

Accordingly, the judgment of the circuit court of Du Page County is reversed, and the cause is remanded.

Reversed and remanded.

REINHARD and GEIGER, JJ., concur.


author: PRESIDING JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DON HARRIS, Defendant-Appellant.
    Second District
    No. 2 — 88—1257
    Opinion filed October 15, 1990.

      G. Joseph Weller and Manuel S. Serritos, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, Don Harris, was convicted of residential burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19 — 3) and felony theft (Ill. Rev. Stat. 1987, ch. 38, par. 16 — 1) and sentenced to four years’ imprisonment. Defendant appeals, contending he was prejudiced when the prosecutor elicited a confession of a nontestifying codefendant. Based on our review of the facts of this cause, we believe the actual issue is whether the defendant was prejudiced when a witness made a reference to the confession of the nontestifying codefendant. The State argues that the defendant waived the alleged error and that the plain error rule does not apply in this situation.

The evidence adduced at trial revealed that the apartment of Robert Kievert was burglarized on December 23, 1987. Twenty-three wrapped Christmas gifts, including an opal ring, were missing. The police found no signs of a forced entry.

Stacey Harris, who was not related to defendant, testified that she was staying in the apartment opposite the Kievert apartment. On December 23, 1987, between 5 and 6 p.m., she heard a knock in the corridor outside her door. She peered through the peephole in her door and saw two men removing gift-wrapped packages from Kievert’s apartment. One man was tall, black, wearing a green hat, gray jacket and sweat pants. The other was short, black and wearing a brown leather coat. The shorter man wiped the door knob, and the two men left. After calling the. police, Ms. Harris worked with the police to compose a plastic sketch of their faces, one of which was introduced into evidence. She also identified defendant as the shorter man in court. She estimated she saw defendant’s profile for 30 seconds and his full face for three to five seconds in the dim light of the corridor.

Detective Donald Janus of the Woodridge police department testified that he worked with Ms. Harris to compile a description of the two men. Six days later, Janus had a discussion with a man known as “Tall Paul” Coleman. Two days later, Janus interviewed defendant in the Woodridge police department. Janus read defendant his Miranda rights, and defendant signed a waiver of the rights. Janus did not record the interview; no one else was present for the full interview, and no written transcript was made of the interview for defendant to sign.

Detective Janus then gave-the following testimony:

“Q. After the Defendant signed the waiver and agreed to talk to you, can you tell the ladies and gentlemen of the jury what you asked of him or said to him at that point?
A. I told him that Paul Coleman had confessed to me, that I had recovered the opal diamond ring that was taken and that I had an eyeball witness putting him and Coleman leaving that apartment.
Q. Did the Defendant say anything at that point?
A. Yes, sir.
Q. What did he say?
A. He denied it.
Q. When you say denied it, did he say anything in particular?
A. He said he didn’t do it.
Q. What did you say to him after that?
A. I told him that we would not be here on this afternoon, the first day of the new year, if we did not believe and have sufficient evidence to charge him with residential burglary.
Q. Did he say anything in response to that statement?
A. Yes, sir, he did.
Q. What did he say?
A. Can I back up?
Q. Well, did you say anything else [to] him at that point?
A. Yes, I did.
Q. What did you say to him?
A. I asked him if it was his idea it was [sic] to enter the apartment.
Q. Did he say anything in response to that question?
A. Yes, sir, he did.
Q. What did the Defendant Don Harris say?
A. He said he didn’t really remember whose idea it was, his or Coleman’s.
Q. What else did he say at that point or did you say to him?
A. He related to me that he entered the apartment, removed the Christmas gifts, and then he and Paul left the apartment, going out the west door to the next, to a vacant building next-door.”

Janus then testified that they discussed which building next door defendant entered. In court, Janus acknowledged a diagram, which he said defendant drew, which showed Kievert’s building, the adjacent buddings and the location to which the two men removed the packages.

On cross-examination, defense counsel inquired regarding what Janus said to initiate the interview. Janus again testified that “I told [defendant] what Paul Coleman had told me” and that Janus told him there was enough evidence to charge defendant with residential burglary. Janus also admitted that the opal ring, which had been later identified by Kievert, was recovered not from defendant but from Coleman’s girlfriend.

On redirect examination, Janus stated defendant said he and Coleman entered the apartment with a key and removed the gift-wrapped packages to a vacant apartment. They opened some of the packages but left some behind. Janus said defendant related to him that Coleman later told defendant that someone else had stolen the packages left behind. After Janus had determined the location of the vacant building from defendant’s diagram, Janus visited the apartment and found only the remains of some unidentified wrapping paper.

Kenneth Davenport testified as defendant’s witness. Between 4 and 4:15 p.m. he left his apartment to go to his job. Outside his apartment, he passed two men whom he had never seen before. His description of the two men was similar to that of the two men Ms. Harris had given. Davenport said hello and took a good look at their faces for a minute in clear light because he was suspicious of strangers after his own apartment had been burglarized. Davenport, who was acquainted with defendant but not Coleman, stated that the shorter man with the leather jacket was not defendant.

The defense also recalled Detective Janus to the stand, who admitted that the descriptions of the two suspects given by Ms. Harris and Davenport were virtually identical in terms of dress, hat, height, color, age and sex. However, during cross-examination, Janus reproduced the facial composite for the shorter man as described by Davenport, which used a different chin, nose, hairstyle, lips and hair than the facial composite as described by Ms. Harris.

A police investigator testified that the apartment corridor was dimly lit by a small bulb covered with a yellow globe on the ceiling directly in front of Kievert’s apartment.

During closing arguments, as part of the prosecutor’s narrative describing the sequence of events used in obtaining defendant’s confession, the prosecutor mentioned that Coleman had confessed to the crime. In his rebuttal argument, the prosecutor again reminded the jury that Janus, as he related the facts of the interview with defendant, had told the jury that Coleman had confessed and told defendant that Coleman confessed. No limiting instruction concerning Coleman’s statement was offered by defendant to be given to the jury. The jury found defendant guilty of both charges, and defendant appeals.

Defendant contends that the prosecutor violated several rules in eliciting the fact that Coleman had confessed, including fundamental fairness, the hearsay rule and the right to confront an adverse witness. (People v. Duncan (1988), 124 Ill. 2d 400, 406.) However, because defendant did not object to the testimony and did not file a post-trial motion concerning the testimony, defendant has asked us to consider the issue under the plain error rule.

A party waives an issue for appellate review if he fails to object at trial and fails to raise the issue in a post-trial motion. (People v. Reid (1990), 136 Ill. 2d 27, 38; People v. Enoch (1988), 122 Ill. 2d 176, 186.) However, this court may notice errors under the plain error rule pursuant to Supreme Court Rule 615(a) (107 Ill. 2d R. 615(a)). The plain error rule permits a reviewing court to consider in two circumstances a trial error not properly preserved for review. In the first instance, where the evidence in a criminal case is closely balanced, a reviewing court may consider a claimed error not properly preserved so as to preclude argument of the possibility that an innocent man may have been wrongly convicted. The plain error rule may also be invoked where the error is so fundamental and of such magnitude that the accused was denied a fair trial. (People v. Herrett (1990), 137 Ill. 2d 195, 210; People v. Walton (1990), 199 Ill. App. 3d 341, 346-47.) Because there was substantial evidence in defendant’s favor, and the error alleged was a great one, we will review the matter to preclude the argument that an innocent man may have been wrongly convicted.

It has long been the rule that out-of-court admissions and confessions by a nontestifying codefendant are inadmissible evidence. Such inculpatory statements violate a defendant’s right to confront an adverse witness and violate fundamental fairness by introducing highly prejudicial hearsay. (People v. Duncan (1988), 124 Ill. 2d 400, 406; People v. Harris (1990), 198 Ill. App. 3d 1002, 1008.) Not even a limiting instruction can extricate the harm to a defendant caused by such statements. (Bruton v. United States (1968), 391 U.S. 123, 124-25, 20 L. Ed. 2d 476, 478-79, 88 S. Ct. 1620, 1621-22.) However, in a joint trial of codefendants, a confession by one defendant may be used against him if all references to the other defendant are redacted, including even the anonymous references to him. (Richardson v. Marsh (1987), 481 U.S. 200, 211, 95 L. Ed. 2d 176, 188, 107 S. Ct. 1702, 1709.) A defendant who is tried separately is entitled to have his guilt or innocence determined based solely upon the evidence against him without being prejudiced according to what has happened to another. People v. Sullivan (1978), 72 Ill. 2d 36, 42.

There are a number of distinctions between the cause before the court and the cases where a defendant has been prejudiced by such testimony. First, the text of Coleman’s confession was never before the court. Janus never explicitly stated that Coleman implicated defendant. Second, the State did not argue that because Coleman confessed, defendant was guilty. The State did not use Coleman’s confession as evidence against defendant. Thus, this case differs from the outrageous conduct in Sullivan where the prosecutor argued that because two accomplices pleaded guilty, the defendant must also have been guilty. (72 Ill. 2d at 40-41.) Third, the statement was ot hearsay because it was not offered for the truth of the matters stated therein. People v. Rogers (1980), 81 Ill. 2d 571, 577.

Defendant was convicted based on his own devastating confession, not the unrevealed confession of Coleman. The jury could reasonably believe defendant confessed because Janus, using the map defendant had drawn, was able to locate the vacant apartment where defendant and Coleman had unwrapped the packages. Defendant’s alleged statement that he used a key meshed with the evidence that there were no signs of forced entry into the apartment. Thus, the jury could believe that defendant’s confession, together with the eyewitness identification of Ms. Harris and her contemporaneous composite of the face of the suspect, which was introduced into evidence, was more persuasive than Davenport’s earlier sighting of a different man. The jury was also well apprised of the barriers to Ms. Harris’ view and could judge her credibility. (People v. Richardson (1988), 123 Ill. 2d 322, 353.) Janus’ mentioning that Coleman confessed was only a part of his recounting of the interrogation of defendant and was used to bolster Janus’ credibility of his memory and to lay the context in which defendant made his confession. Thus, although it might have been possible to avoid the reference to Coleman’s confession altogether, it was not reversible error for Janus to mention under what circumstances defendant had confessed. People v. Bainter (1981), 102 Ill. App. 3d 1029, 1034.

Defendant farther contends that the error was compounded because no cautionary instruction was given to the jury. However, a defendant, having permitted an error to be elicited by the prosecution without objection, as well as eliciting the same error during cross-examination, cannot claim the error was compounded when he fails to offer a limiting instruction to be given to the jury. A defendant cannot be placed in a better position for an appeal, i.e., be closer to reversible error for failure to limit the prejudicial effect of an error, through his own inaction in failing to correct the error by offering a limiting instruction. Thus we must treat this cause as if the limiting instruction had been given. Moreover, had defendant raised the failure to give a limiting instruction as a separate error, the issue would have been waived for review. (People v. Richardson, 123 Ill. 2d at 345.) Even when analyzing the cause as if a limiting instruction had been refused, the reference to Coleman’s confession did not prejudice defendant as the text of the confession, which was never revealed, did not implicate defendant. Coleman’s statement was in fact cleansed of all references to the defendant. Cf. People v. Collins (1989), 184 Ill. App. 3d 321, 329.

Finally, we note that defendant’s rights under the confrontation clause of the sixth amendment (U.S. Const., amend. YI) were not violated. The finder of fact cannot rely on a codefendant’s uncross-examined confession, not shown to be independently reliable, as evidence against an accused, but such an error may be harmless. (Lee v. Illinois (1986), 476 U.S. 530, 547, 90 L. Ed. 2d 514, 530, 106 S. Ct. 2056, 2065.) The confession of a nontestifying codefendant may be inadmissible even when a defendant’s own confession is introduced. (Cruz v. New York (1987), 481 U.S. 186, 193-94, 95 L. Ed. 2d 162, 172, 107 S. Ct. 1714, 1719.) In Cruz, the codefendant’s confession was devastating because it was recorded on videotape while the precise content and even the existence of the defendant’s own confession were open to question. (481 U.S. at 192, 95 L. Ed. 2d at 171, 107 S. Ct. at 1718.) In the cause before the court, nothing is known of Coleman’s confession because only a reference was made to it in passing. The mere reference to the confession could not have devastated defendant’s defense. Since the text of the purported confession was not used as evidence against defendant, no violation of the sixth amendment arose.

For the above reasons, the judgment of the trial court of Du Page County is affirmed.

Affirmed.

GEIGER and REINHARD, JJ., concur.


text:
    NATIONAL ADVERTISING COMPANY, Plaintiff-Appellant, v. THE VILLAGE OF DOWNERS GROVE et al., Defendants-Appellees (Opus Corporation, Defendant; La Salle National Bank, Intervenor-Defendant).
    Second District
    No. 2 — 89—1292
    Opinion filed October 10, 1990.
    Rehearing denied November 16,1990.

      Nadelhoffer, Nagle, Kuhn, Mitchell, Moss & Saloga, of Naperville, and Sanford M. Stein and Jean Marie R. Pechette, both of Gordon & Glickson, of Chicago (Sarah K. Nadelhoffer, of counsel), for appellant.
    Kubiesa & Power, Ltd., of Westmont (Barbara J. Gosselar, of counsel), for appellee Village of Downers Grove.
   JUSTICE DUNN

delivered the opinion of the court:

National Advertising Co. (National) brought suit against the Village of Downers Grove (Village), challenging the constitutionality of its outdoor sign ordinance. It also sought reversal of the Village’s zoning board of appeals decision denying it a variance from the ordinance’s size restrictions. The trial court granted summary judgment to Downers Grove, and National now appeals.

National is engaged in the business of outdoor advertising. It makes its signs available for commercial and noncommercial messages. In 1983, National leased property near a highway in Downers Grove’s B-3 zoning district and applied for a permit to display a double-faced outdoor advertising sign measuring 14 by 48 feet on a sign structure 67 feet high. Under Downers Grove’s sign ordinance, an advertising sign is defined as any sign that directs attention to a business, product, or activity available or conducted at a location other than on the zoning lot upon which the sign is located. This type of sign is also commonly known as an off-site or off-premise sign. Advertising or off-site signs are allowed in Downers Grove in one district — B-3—and signs in the B-3 district may not exceed 20 feet in height and 200 square feet in area.

Because National’s proposed sign exceeded the size and height permitted in the B-3 district, it was denied a sign permit. National applied to the zoning board of appeals for a variance on the size limitation, which was also denied. It then filed this four-count complaint. In count I, National challenged the decision of the zoning board of appeals. In count II, National claimed that the zoning ordinance was impermissibly more restrictive than the provisions of the Highway Advertising Control Act of 1971 (Ill. Rev. Stat. 1987, ch. 121, par. 501 et seq.). This argument was raised and rejected by interlocutory appeal in National Advertising Co. v. Village of Downers Grove (1988), 166 Ill. App. 3d 58, resulting in the dismissal of count II.

National had also asserted in count II that it sought to display advertising signs on leased space of three properties in the M-l district. These facts were incorporated by reference into counts III and IV. Signs in the M-l district and the other business and manufacturing districts are permitted so long as they pertain to the business on the premises. And, there is also one exception. Noncommercial copy of any nature may be displayed in these districts as well as in the B-3 district. The size of the signs in districts other than B-3 is determined by the frontage area of the property, i.e., signs in the M-l district may not exceed one square foot per foot of lot frontage. The signs permitted in these other districts are also commonly referred to as on-site or on-premise signs.

In count III National first claimed that the zoning ordinance in effect in 1983 violated the first amendment to the United States Constitution as a content-based regulation. In 1983, the sign ordinance did not state that all noncommercial copy was permissible. It allowed only noncommercial copy related to political messages. In 1987, the Village amended the ordinance to allow all noncommercial copy. National asserted in count III that the Village improperly amended the ordinance; it also claimed that the amended ordinance violated the first amendment.

In count IV National asserted a violation of due process under the fourteenth amendment and a taking under the fifth amendment, claiming that Downers Grove had no rational basis for limiting its signs to 20 feet in height and 200 square feet in area.

In January 1985 the parties entered an interim settlement agreement that permitted National to display its sign in the B-3 district and to display signs in the M-l district on the properties it had mentioned in count II. The agreement stated that National would be permitted to maintain such signs in the event that the sign ordinance was found invalid; but, if valid, National would be required to remove the signs within 30 days.

The trial court found the sign ordinance valid and granted summary judgment to Downers Grove. National now raises the following issues on appeal: (1) whether the trial court erred in ruling that the 1987 amended ordinance applied to this case; (2) whether the trial court erred in granting Downers Grove summary judgment on National’s first amendment claim and whether the amended ordinance violates the first amendment; (3) whether the ordinance violates due process; (4) whether National has suffered a taking under the fifth amendment; and (5) whether the court erred in affirming the decision of the Downers Grove zoning board of appeals. For the reasons stated below, we affirm.

National first contends the court erred in applying Downers Grove’s 1987 amended ordinance to this case. In a twist of logic, National argues that the 1983 ordinance must apply rather than the 1987 amended ordinance that corrects the asserted unconstitutional regulation. National contends the ordinance in effect in 1983 was an impermissible, content-based regulation because it allowed only one type of noncommercial message, political. The amendment did away with the content-based exception for political speech by adding an exception for all noncommercial copy.

A legislative body has a continuing right to amend an ordinance even while litigation involving the ordinance is pending, and the court must decide the case in accordance with the law in effect at the time of decision. (Gust v. Village of Skokie (1984), 125 Ill. App. 3d 102, 105-06; Sagittarius, Inc. v. Village of Arlington Heights (1980), 90 Ill. App. 3d 401, 404.) At the time the trial court decided the case by summary judgment in 1989, the 1987 amendment was in effect. Thus, the trial court properly applied the amendment to this action. National’s arguments to the contrary are without merit.

National erroneously compares this case to Phillips Petroleum Co. v. City of Park Ridge (1958), 16 Ill. App. 2d 555, ‘arguing that Downers Grove wrongfully denied its applications for permits, thus preventing it from acquiring a vested right before the ordinance was amended. In Phillips, the plaintiff applied for a building permit in conformance with the applicable zoning, ordinance. The city, however, passed a resolution to temporarily stop building permits from being issued and then amended the zoning ordinance to disallow plaintiff’s intended use of the property. (Phillips, 16 Ill. App. 2d at 557-59.) The court determined that the city lacked the power to pass a resolution that kept building permits from being issued, and, but for the improper ordinance, plaintiff would have acquired a vested right under the zoning ordinance. (Phillips, 16 Ill. App. 2d at 564-66.) These facts are dissimilar to this case. Here, National’s permit application did not conform to the zoning ordinance; it failed to comply with the zoning ordinance’s size requirements. Furthermore, Downers Grove did not act outside its authority by enacting a temporary resolution that stopped National’s permit from otherwise being issued. Downers Grove did not act in midstream to stop National from acquiring a vested right.

National also contends that it had a vested right under the 1983 ordinance. Where a law has been amended, a prior law will be recognized where to do otherwise would affect a vested right. (Gust, 125 Ill. App. 3d at 106; Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373.) National contends it obtained a vested right to erect its signs in 1983 when its permit applications were denied because the ordinance at that time violated the first amendment. This, too, is illogical. In the first place, National has not lost a right it would have had but for the amended ordinance. The amended ordinance did not take away a property right; it added one, allowing noncommercial messages on any signs permitted under the ordinance. Secondly, National’s permit was not denied because of this alleged unconstitutional provision. National’s permit was denied because it proposed to erect a sign that exceeded the size allowed under the ordinance.

National contends the amended ordinance violates the first amendment on its face and, at the very least, issues of material fact require reversal of summary judgment. These arguments are not persuasive. A careful reading of the Supreme Court decision in Metromedia, Inc. v. City of San Diego (1981), 453 U.S. 490, 69 L. Ed. 2d 800, 101 S. Ct. 2882, establishes that the ordinance does not violate the first amendment, and the court did not err in granting summary judgment to Downers Grove.

In Metromedia, a widely fragmented court struck down a San Diego ordinance that allowed on-site commercial advertising but prohibited, with limited exceptions, all off-site advertising and all noncommercial advertising. Metromedia, 453 U.S. at 494, 69 L. Ed. 2d at 806,101 S. Ct. at 2885-86.

Justice White, joined by Justices Stewart, Marshall and Powell, ruled that a municipality could bar off-site commercial signs while allowing on-site commercial signs; however, an ordinance that allowed on-site commercial signs, but prohibited on-site noncommercial signs, violated the first amendment because it provided greater protection to commercial speech. (Metromedia, 453 U.S. at 513, 69 L. Ed. 2d at 818, 101 S. Ct. at 2895 (opinion of White, J., joined by Stewart, Marshall and Powell, JJ.).) Justices Brennan and Blackmun concurred with the judgment, but on a completely different basis. They found the city failed to offer sufficient proof that the ordinance served substantial governmental interests that could not be served by means less intrusive on activity protected by the first amendment. (453 U.S. at 528, 69 L. Ed. 2d at 827, 101 S. Ct. at 2903 (Brennan, J., concurring, joined by Blackmun, J.).) Justice Stevens, in a partial dissent, joined the plurality opinion in holding that San Diego could bar off-site commercial advertising while allowing on-site commercial advertising but disagreed with the plurality’s opinion that the San Diego ordinance violated the first amendment by disallowing noncommercial speech where on-site commercial signs were allowed. (453 U.S. at 541, 69 L. Ed. 2d at 836, 101 S. Ct. at 2909-10 (Stevens, J., dissenting in part).) Chief Justice Burger and Justice (now Chief Justice) Rehnquist dissented in separate opinions, arguing that the ordinance did not violate the first amendment as a content-based regulation. 453 U.S. at 555, 69 L. Ed. 2d at 845, 101 S. Ct. at 2917 (Burger, C.J., dissenting; 453 U. S. at 569, 69 L. Ed. 2d at 854, 101 S. Ct. at 2924 (Rehnquist, J., dissenting).

Despite the fragmented decision, it is clear from the opinion of the plurality, which was joined by Justice Stevens, along with the opinions of Justice (now Chief Justice) Rehnquist and Chief Justice Burger, that a municipality may bar off-site advertising while permitting on-site advertising. Other jurisdictions have reached this same conclusion. (See Scadron v. City of Des Plaines (N.D. Ill. 1990), 734 F. Supp. 1437, 1447; Georgia Outdoor Advertising, Inc. v. City of Waynesville (4th Cir. 1987), 833 F.2d 43, 45-46; Major Media of the Southeast, Inc. v. City of Raleigh (4th Cir. 1986), 792 F.2d 1269, 1273, cert. denied (1987), 479 U.S. 1102, 94 L. Ed. 2d 185, 107 S. Ct. 1334; Wheeler v. Commissioner of Highways (6th Cir. 1987), 822 F.2d 586, 594, cert. denied (1988), 484 U.S. 1007, 98 L. Ed. 2d 653, 108 S. Ct. 702.) Under the plurality opinion, a billboard restriction violates the first amendment where it bars noncommercial advertising on a sign that is permissible if the content is commercial. “Insofar as the city tolerates billboards at all, it' cannot choose to limit their content to commercial messages ***.” (Metromedia, 453 U.S. at 513, 69 L. Ed. 2d at 818, 101 S. Ct. at 2895.) Downers Grove’s ordinance falls completely in line with the plurality’s opinion by permitting noncommercial copy on any signs otherwise permitted.

National argues that the ordinance fails the test set out by the plurality in Metromedia, or that it at least raises issues of fact that should not have been decided by summary judgment. We are not persuaded. Metromedia was decided by summary judgment, and Metro-media demonstrates that this ordinance passes the plurality’s test as a matter of law. (See Georgia Outdoor Advertising, Inc. v. Waynesville, 833 F.2d at 45-46; Major Media of the Southeast, Inc. v. City of Raleigh, 792 F.2d at 1272.) Furthermore, the ordinance in this case not only passes the test set out by the plurality in Metromedia, it also passes as a content-neutral time, place and manner restriction. See Rzadkowolski v. Village of Lake Orion (6th Cir. 1988), 845 F.2d 653, 654-55; Wheeler v. Commissioner of Highways, 822 F.2d at 590-96.

The plurality in Metromedia applied two tests to the San Diego ordinance, one for its regulation of commercial speech and one for its regulation of noncommercial speech. It first applied the standard for commercial speech, stating that á restriction of commercial speech is permissible if (1) it seeks to implement a substantial governmental interest; (2) directly advances that interest; and (3) reaches no further than necessary to accomplish the given objective. 453 U.S. at 507, 69 L. Ed. 2d at 815, 101 S. Ct. 2892; Central Hudson Gas & Electric Corp. v. Public Service Comm’n (1980), 447 U.S. 557, 563-66, 65 L. Ed. 2d 341, 348-51,100 S. Ct. 2343, 2350-51.

The Metromedia plurality, joined by Justice Stevens, found that traffic safety and esthetics are substantial goals of a municipality. (453 U.S. at 507-08, 69 L. Ed. 2d at 815, 101 S. Ct. at 2892-93; see also Members of City Council v. Taxpayers for Vincent (1984), 466 U.S. 789, 807, 80 L. Ed. 2d 772, 788, 104 S. Ct. 2118, 2130.) These same goals are espoused by Downers Grove. Its stated purpose is to protect the public health, safety and welfare by reducing signs that may cause traffic safety problems and encouraging a sense of esthetic appreciation for the visual environment. National argues that Downers Grove’s asserted interests in traffic safety and esthetics are a facade for the improper ulterior motive of suppressing speech. This attack is without merit. National offers no evidence that this motive exists, and there is no reason to believe that a village that allows on-site advertising and off-site advertising in one district has set out to suppress speech.

The plurality also found that an ordinance barring billboards was no broader than necessary. The plurality stated:

“If the city has a sufficient basis for believing that billboards are traffic hazards and are unattractive, then obviously the most direct and perhaps the only effective approach to solving the problems they create is to prohibit them.” 453 U.S. at 508, 69 L. Ed. 2d at 815, 101 S. Ct. at 2893.

Finally, the plurality believed that a ban of off-site commercial billboards directly advanced the governmental interests of traffic safety and esthetics. (453 U.S. at 509-11, 69 L. Ed. 2d at 815-17, 101 S. Ct. at 2893-94.) The plurality stated that it hesitated to disagree with the accumulated, commonsense judgments of local lawmakers and the many reviewing courts that billboards are real and substantial hazards to safety. (453 U.S. at 509, 69 L. Ed. 2d at 816, 101 S. Ct. at 2893.) Like-wise in this case, though National has submitted affidavits from experts attesting that the billboards do not operate as safety hazards, it is not the province of this court to say on this controversial subject whether the Village could not reasonably find otherwise.

As for the esthetic goal, the plurality stated that it is not speculative to recognize that billboards, wherever located and constructed, can be perceived as an esthetic harm. (453 U.S. at 510, 69 L. Ed. 2d at 816, 101 S. Ct. at 2893-94.) The plurality also rejected the argument that the ordinance was ineffective because the city allowed on-site billboards. (453 U.S. at 511, 69 L. Ed. 2d at 817, 101 S. Ct. at 2894.) It stated that whether on-site advertising is permitted, the prohibition of off-site advertising is directly related to the stated objectives of traffic safety and esthetics. The city may believe that off-site advertising, with its periodically changing content, presents a more acute problem than does on-site advertising. 453 U.S. at 511, 69 L. Ed. 2d at 817, 101 S. Ct. at 2894.

Thus, under the plurality opinion joined by Justice Stevens in Metromedia, it is clear the ordinance does not violate the first amendment with regard to its regulation of commercial speech. In regard to noncommercial speech, the Metromedia plurality held the city to a stricter standard, ruling that it could not ban noncommercial speech where commercial speech was allowed. Downers Grove’s ordinance does not violate this rule since it expressly allows noncommercial speech on all signs otherwise permitted.

The ordinance also passes constitutional muster as a proper time, place and manner restriction. The Metromedia plurality declined to analyze the San Diego ordinance as a content-neutral time, place and manner restriction, finding that the ordinance distinguished in several ways between permissible and impermissible signs on the basis of content. (453 U.S. at 516, 69 L. Ed. 2d at 820, 101 S. Ct. at 2896-97.) The San Diego ordinance provided 12 exceptions to its prohibition of noncommercial signs, allowing, for example, signs of religious symbols, signs carrying news items, and temporary political signs. (453 U.S. at 494-96, 69 L. Ed. 2d at 806-07, 101 S. Ct. at 2885-86.) Unlike the San Diego ordinance, the Downers Grove ordinance does not regulate content by providing content-based exceptions to its ban on noncommercial speech. It permits noncommercial messages of all types on any signs otherwise permitted.

National contends, however, that, since the content of the sign determines whether it is permissible, i.e., a sign in an on-site district must advertise the business on the premises or a noncommercial message, the ordinance is not a neutral time, place and manner restriction. This is not persuasive. The distinction between on-site and off-site advertising is not aimed toward the suppression of an idea or viewpoint. (See Taxpayers for Vincent, 466 U.S. at 804, 80 L. Ed. 2d at 786-87, 104 S. Ct. at 2128.) As stated by the Sixth Circuit Court of Appeals in Wheeler v. Commissioner of Highways (822 F.2d at 591):

“[T]he on-premises/off-premises distinction does not constitute an impermissible regulation of content just because the determination of whether a sign is permitted at a given location is a function of the sign’s message.”

See also Scadron v. City of Des Plaines, 734 F. Supp. at 1447-48.

The test for determining whether a viewpoint-neutral regulation is sufficiently justified as a time, place and manner restriction consists of essentially the same factors addressed under the plurality’s test for commercial speech. A time, place and manner restriction must (1) further an important or substantial governmental interest, (2) be unrelated to the suppression of free expression, and (3) be no greater than necessary to the furtherance of that interest. (United States v. O’Brien (1968), 391 U.S. 367, 377, 20 L. Ed. 2d 672, 680, 88 S. Ct. 1673, 1679.) The ordinance clearly passes this test as we have already stated. It furthers a substantial governmental interest, is no greater than necessary, and is unrelated to the suppression of speech.

The final consideration under a time, place and manner restriction is whether the remaining alternative modes of communication are adequate. (Taxpayers for Vincent, 466 U.S. at 812, 80 L. Ed. 2d at 791-92, 104 S. Ct. at 2132-33.) Though Downers Grove has not banned all off-site advertising, National contends the size restrictions for off-site advertising in effect prohibit billboard advertising because the industry does not make signs this small. And, National argues that other means of communication are not as cost effective. While these factors may be true, it is not sufficient reason to strike this ordinance. By implication the Metromedia plurality opinion, though it did not address the regulation under a time, place, and manner restriction, supports this conclusion. In ruling that off-site advertising may be completely banned, the plurality demonstrates, that it is not concerned with denying this mode of communication to advertisers. Also, restricting this mode of communication because of its detrimental effect on traffic safety and esthetics is supported by Kovacs v. Cooper (1949), 336 U.S. 77, 88-89, 93 L. Ed. 513, 523, 69 S. Ct. 448, 454, where the Court found that the fact that more people may be more easily reached by sound trucks is not enough to call forth constitutional protection for what those charged with public welfare reasonably think is a nuisance when easy means of publicity are open.

National offers three other unpersuasive reasons for finding that the ordinance violates the first amendment.

National contends the ordinance unconstitutionally creates more severe restrictions for off-site noncommercial signs than on-site noncommercial signs. The size restriction for on-site signs in the B-2 and B-3 district is limited to two square feet per foot of lot frontage on adjacent streets, alleys or other public ways. National asserts that some on-site signs are larger than the ones it proposes to display. Thus, it argues that the ordinance violates the first amendment by allowing on-site advertisers to post larger noncommercial signs than off-site advertisers. As already discussed, Metromedia held that a municipality could permit on-site advertising, while banning off-site advertising completely. If this is permissible, then it is equally permissible for a municipality to restrict to a greater degree the size of off-site signs it allows. Any disparity between the size of noncommercial off-site and on-site signs is a result of a proper time, place and manner restriction.

National next argues that the ordinance impermissibly favors commercial over noncommercial speech. It contends that on-site occupants will have a greater incentive to post commercial rather than noncommercial signs. Whether this may be true, there is no violation of the first amendment. Private decisions of the property owners, not the will of the municipality, will govern this outcome. See Major Media of the Southeast, Inc., 792 F.2d at 1273.

National finally argues that, because the ordinance fails to define commercial and noncommercial copy, officials will be vested with too much discretion in determining whether a sign is permissible in a given district. According to National, the line between commercial and noncommercial is too difficult to draw with accuracy without objective criteria in the ordinance to guide the officials. This argument was rejected by the Fourth Circuit Court of Appeals in Major Media of the Southeast, Inc. The court stated:

“Although the ordinance provides no definition of ‘commercial’ or ‘non-commercial’ speech, sufficient guidance is given *** by the various decisions of the Court relating to billboards and commercial speech. We agree with the district court that ‘no codification of these terms is necessary, since the Supreme Court has already defined them.’ See Central Hudson Gas & Elec. v. Public Service Comm’n., 447 U.S. 557, 561, 100 S. Ct. 2343, 2348, 65 L. Ed. 2d 341 (1980). In Central Hudson Gas, the court stated that commercial speech was ‘expression related solely to the economic interests of the speaker and its audience.’ Although an occasional marginal case might arise raising the question of whether on the particular facts the definition of commercial speech would be correct, such an infrequent possibility should not in itself justify a generalized charge that the ordinance itself is vague ***.” (Major Media of the Southeast, Inc., 792 F.2d at 1272-73.)

We are persuaded by this analysis. The basic definition provided in Central Hudson Gas provides sufficient guidance to officials.

National next contends the ordinance is an unreasonable exercise of Downers Grove’s police power. There is little need for extensive analysis on this point. As stated in a footnote to the plurality’s opinion in Metromedia, the due process clause does not afford a greater degree of protection to appellant’s business than does the first amendment.

“Since we hold that the First Amendment interests in commercial speech are not sufficient to prevent the city from prohibiting offsite commercial advertisements, no different result should be reached under the Due Process Clause.” 453 U.S. at 521 n.25, 69 L. Ed. 2d at 823 n.25,101 S. Ct. at 2899 n.25.

See also Village of Skokie v. Walton on Dempster, Inc. (1983), 119 Ill. App. 3d 299, 302-04 (reviewing the difference between sign ordinance and other zoning and holding that sign ordinance was reasonable where it was based upon esthetic interest of community and applied uniformly to all citizens).

Next, National contends the ordinance results in a taking of its property in violation of the fifth amendment. This argument also fails.

A land-use regulation does not constitute a taking if it substantially advances legitimate State interests and does not deny an owner economically viable use of his land. (Nollan v. California Coastal Comm’n (1987), 483 U.S. 825, 834, 97 L. Ed. 2d 677, 687, 107 S. Ct. 3141, 3146.) A broad range of governmental purposes and regulations satisfies these requirements. See Agins v. City of Tiburon (1980), 447 U.S. 255, 65 L. Ed. 2d 106, 100 S. Ct. 2138 (scenic zoning); Penn Central Transportation Co. v. New York City (1978), 438 U.S. 104, 57 L. Ed. 2d 631, 98 S. Ct. 2646 (landmark preservation); Village of Euclid v. Ambler Realty Co. (1926), 272 U.S. 365, 71 L. Ed. 303, 47 S. Ct. 114 (residential zoning).

In the taking analysis, the type of taking often plays a critical role. A taking is more readily found when the interference with property can be characterized as a physical invasion by government rather than an interference that arises from some public program adjusting the benefits and burdens of economic life to promote the common good. (Penn Central Transportation, 438 U.S. at 124, 57 L. Ed. 2d at 648, 98 S. Ct. at 2659.) Another relevant factor is the extent to which the regulation has interfered with distinct investment-backed expectations. Penn Central Transportation, 438 U.S. at 124, 57 L. Ed. 2d at 648, 98 S. Ct. at 2659.

Considering the above factors, it is clear National has not suffered a taking as a result of the Downers Grove ordinance. Downers Grove has not physically invaded National’s property rights. Rather, it has enacted a program that applies to everyone to promote the common good of traffic safety and esthetics, a program that, as already stated, substantially advances legitimate interests of the Village. Furthermore, there is no evidence that the owner of the property has been denied an economically viable use of his land. National is not the owner of the property; it is the lessee. Downers Grove has not interfered with National’s legitimate investment-backed expectations. At all times, National had notice that its proposed signs violated the Village’s ordinance. “Purchasers who acquire property with the expectation of using it for a purpose not permissible under current zoning restrictions should not expect loss resulting from denial of the proposed use to be a persuasive argument in securing the change.” Lapkus Builders, Inc. v. City of Chicago (1964), 30 Ill. 2d 304, 310.

In its final argument, National contends the Downers Grove zoning board of appeals decision denying its petition for a variance is against the manifest weight of the evidence. The zoning ordinance provides that variances are to be granted where the literal enforcement of the ordinance would do manifest injustice or be contrary to the spirit and purpose of the ordinance. The facts do not demonstrate that the board of appeals acted against the manifest weight of the evidence. The evidence shows that National proposed to erect signs with a square footage three times the size allowed under the ordinance. Thus, enforcing the ordinance in this case was not contrary to the purpose of the regulation; it was in furtherance of it. Furthermore, as already stated, National was fully aware at the time that it leased the property that its signs violated the ordinance. There has been no manifest injustice.

Lastly, we address the motion filed by Downers Grove that was ordered taken with the case. Downers Grove filed a motion to strike a portion of National’s reply brief in which National asserted at page 19 that a case cited by Downers Grove, John Donnelly & Sons v. Mollar (D. Me. 1978), 453 F. Supp. 1272, at 35, 50, and 51, was overturned on the very proposition upon which Downers Grove relied by John Donnelly & Sons v. Campbell (1st Cir. 1980), 639 F.2d 6. These cases predate Metromedia. Therefore, they are of little value to the resolution of this case. Nonetheless, Downers Grove accurately points out that National’s reference to the first circuit case is inaccurate and misleading. It is clear that the proposition for which Downers Grove cited the lower court case was not overturned by the first circuit. Moreover, National’s quotation from the concurring opinion in Campbell is misleading. National fails to inform this court that the quotation is not from the majority opinion and that this quote does not form the basis for the majority’s opinion. Accordingly, the aforementioned portion of National’s reply brief is stricken.

The judgment of the circuit court is affirmed.

Affirmed.

GEIGER and WOODWARD, JJ., concur.