author: JUSTICE STEIGMANN PRESIDING JUSTICE LUND,

text:
    JAY PRESS, Petitioner-Appellant, v. CODE ENFORCEMENT BOARD OF APPEALS OF THE CITY OF CHAMPAIGN et al., Respondents-Appellees.
    Fourth District
    No. 4—90—0703
    Opinion filed April 23, 1991.
    LUND, P.J., dissenting.
    Glenn A. Stanko and Todd J. Black, both of Reno, O’Byrne & Kepley, P.C., of Champaign, for appellant.
    Frederick C. Stavins, City Attorney, and Rochelle A. Funderburg, Assistant City Attorney, of Champaign, for appellees.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Petitioner, Jay Press, appeals the judgment of the circuit court of Champaign County insofar as it affirmed a decision of the Champaign Code Enforcement Board of Appeals (Board) upholding citations of nine code violations for the building at 404 E. Healey in Champaign, Illinois. These violations were based on the provisions of chapter 20 of the 1985 National Fire Protection Association Life Safety Code (Code) (National Fire Protection Association, Life Safety Code §§20 — 1.1 through 20 — 3.4, at 101-128 through 101-129 (1985) (hereinafter Life Safety Code)), as adopted by city ordinance (Champaign, Illinois, Council Bill No. 86 — 87 (May 6, 1986)).

At issue in this appeal is whether the building in question falls within the term “rooming house” as used in section 20 — 1.1.1 of the Code, which reads as follows:

“This chapter applies only to lodging or rooming houses providing sleeping accommodations for 16 or fewer persons. Lodging or rooming houses include buildings in which separate sleeping rooms are rented, providing sleeping accommodations for a total of 16 or fewer persons on either a transient or permanent basis, with or without meals but without separate cooking facilities for individual occupants ***.” (Emphasis added.) Life Safety Code §20 — 1.1.1, at 101-128.

While the courts accord deference to the interpretation placed on a statute by an agency charged with its administration, such interpretation is not binding and will be rejected if clearly erroneous. (City of Decatur v. American Federation of State, County, & Municipal Employees, Local 268 (1988), 122 Ill. 2d 353, 361, 522 N.E.2d 1219, 1222.) Despite allegations of numbered rooms and individual locks on the doors, the lease in the present case, signed by 12 persons, clearly states that the house was rented to all signatories in its entirety, not by individuals renting separate sleeping rooms; the lease provides no restrictions or limitations as to where the occupants may go within this building. We hold that because the Code explicitly mandates rooms be rented out separately, the Board’s interpretation of this classification was overly broad and erroneous.

The City also argues that the building must be a rooming house because it fits no other property classification in the Code. The question here, however, is not whether other Code classifications apply, but whether chapter 20 applies. Furthermore, if this property does not fall within the classifications of the Code, the City may address this matter by legislative means. We find unpersuasive this process-of-elimination approach to statutory construction.

For the reasons stated, we reverse.

Reversed.

GREEN, J., concurs.

PRESIDING JUSTICE LUND,

dissenting:

I strongly dissent! The villain in this case is the greedy landlord who seeks to avoid the expense of compliance with the Life Safety Code. The trial court saw the defendant’s ruse. The majority have, like ostriches, stuck their heads in the sand. With apology to Gertrude Stein, I suggest a rooming house is a rooming house is a rooming house.

As stated at oral argument, the subject house was rented to 12 University of Illinois students for their housing. Each tenant had a key to enter the house, and each had a separate key for his individual room. In an obvious attempt to avoid the Life Safety Code, each of the 12 students was required to sign a lease for the entire premises! While it is argued that each would have an undivided interest in access to the whole house, such is pure poppycock. Supposedly, they received their room keys from prior tenants. However, in any case, the room keys certainly establish that they have privacy of their own rooms. Oddly enough, it was agreed at oral argument that the landlord maintained a key to the house and had access at will to the house. Is this consistent with the renters having possession of the house?

The majority opinion could result in two identical houses, each occupied by 12 students, each student with his or her own room, each with equal kitchen and bath facilities, being treated differently for purposes of fire safety code provisions, because one house is rented by the room and the other requires the execution of the house lease.

It is of further interest that each of the lessees pays a pro rata share of the house rent directly to the landlord each month. Calling a skunk a pussycat does not make it a lap cat! The Life Safety Code is for protection of the health and safety of rooming-house occupants. If a violation of that code is allowed and results in injury or death to occupants of the subject property, a dark cloud will long hang over this court.


source: Caselaw Access Project

author: JUSTICE DUNN

license: Public Domain

text:
    THE LAKE COUNTY FOREST PRESERVE DISTRICT, Plaintiff-Appellant, v. FIRST NATIONAL BANK OF WAUKEGAN, as Trustee, et al., Defendants-Appellees.
    Second District
    No. 2—90—0678
    Opinion filed May 8, 1991 .
    Rehearing denied June 11, 1991.

      Kurt D. Lloyd and William A. Cogley, both of Donald T. Morrison & Associates, P.C., of Waukegan (Joseph T. Morrison, of counsel), for appellant.
    Robert Emmett Nolan, of Nolan, O’Malley & Dunne, of Chicago, and Conzelman, Snarski & Stepanich, of Waukegan, for appellee Joseph Drobnick.
    Conzelman, Snarski & Stepanich, and Peter E LoMonaco, of Rawles, McKeown & LoMonaco, both of Waukegan (Thomas P. Stepanich, of counsel), for other appellees.
    Donald M. Lonchar, Jr., of Brydges, Riseborough, Morris, Franke & Miller, of Waukegan (Thomas A. Morris, Jr., of counsel), for Community Unit School District 60.
   JUSTICE DUNN

delivered the opinion of the court:

This appeal involves an action in eminent domain. The plaintiff, Lake County Forest Preserve District (District), appeals from a trial court order dismissing its petition to condemn certain real estate belonging to the defendant landowners.

The District raises three issues on appeal: (1) whether the trial court erred in granting the City of Waukegan (City) and Community Unit School District No. 60 leave to intervene; (2) whether the trial court erred in permitting the City of Waukegan to file its motion to reconsider or, in the alternative, to dismiss after the court-imposed deadline for filing motions; and (3) whether the trial court erred in granting the defendant’s motion to dismiss. We reverse and remand.

Over a period of approximately 15 years, the Lake County Forest Preserve District has been acquiring land for an urban forest preserve known as Greenbelt Forest Preserve. The District has acquired over 500 acres for this purpose and has developed the land with trails, a lake and picnic facilities. This case involves the efforts of the District to acquire two additional parcels for the Greenbelt Forest Preserve known as GE-344 and GE-345.

In 1984, the District filed eminent domain actions to acquire parcels known as GE-343, GE-344, and GE-345. In 1986, at the request of the owners of that property and the City of Waukegan, the District elected to abandon these proceedings. The District adopted a resolution, dated January 24, 1986, stating in relevant part:

“WHEREAS, these several defendants have stipulated and agreed to waive all costs and fees and to pay the sum of $8,000 to the Forest Preserve District as and for the District’s costs and fees in connection with such condemnation actions upon stipulation and agreement that the Petitions to Condemn be dismissed on the motion of the defendants, and
WHEREAS, it is no longer necessary and desirable to acquire such properties for public purposes.”

After this resolution, the defendants paid the $8,000 in costs and fees, and the court entered an order of dismissal on February 13, 1986.

On August 21, 1987, the District adopted a resolution to acquire parcels GE-344 and GE-345. The owners of these parcels -were sent letters in which the District offered to purchase the subject properties. The owners never responded to these letters, and on January 15, 1988, a petition to condemn was filed on both parcels.

On August 26, 1988, defendant Joseph Drobnick filed a motion to dismiss and traverse the condemnation complaints. In that motion, defendant claimed that, because these parcels had been included in the previous eminent domain proceeding filed by the District which had been voluntarily dismissed upon the payment of $8,000 in costs and fees by the defendants, the District was barred from refiling the action. Defendant claimed the agreement constituted a bilateral contract and that the filing of the current condemnation suit was a direct attempt by the District to abrogate this contract.

On November 21, 1988, the City of Waukegan filed a petition for leave to intervene. In its petition, the City alleged ownership of certain easements on the subject property. The trial court granted the City leave to intervene over the objection of the District. On November 22, 1988, the City filed a motion for dismissal, alleging that the agreement in the prior condemnation proceeding, between the District and the defendant, barred the District from refiling its petitions concerning these parcels.

All pending motions proceeded to hearing on December 13, 1988. The trial court heard argument on the defendant’s motion to traverse and dismiss. On May 17, 1989, the court issued an order denying the motion to dismiss, stating that the dismissal of a pending action in eminent domain means only that if a second action is filed, the second filing date will be the date of valuation. The court stated further that the actions of the District, including the withdrawal of its suit without prejudice, cannot be held to be a binding contract. The court added that at no time did the District state that it would never find it necessary or desirable to acquire the property in question. The matter was set for trial on January 16,1990.

Subsequently, the City requested leave to file a motion to reconsider or, in the alternative, to dismiss. The trial court granted leave. Argument was heard on the City’s motion on December 13, 1989. The City argued that the District was barred from refiling the present condemnation proceeding because it failed to pay the costs incurred by the defendants in the prior proceeding. The City cited Commissioners of Lincoln Park v. Schmidt (1944), 386 Ill. 550, as authority for the proposition that where a public body fails to pay these costs, it cannot refile an action seeking to condemn the property in issue. On the same occasion, the Community Unit School District No. 60, Lake County, Illinois, was granted leave to intervene and join in the motion to dismiss. The landowners orally joined in the motion as well.

On May 25, 1990, the trial court entered an order reconsidering its previous order of May 17, 1989, and granting the defendant’s motion to traverse and dismiss, originally filed on August 26, 1988. The court based its order on the Schmidt case cited by the City. The court stated that, because the District had failed to pay the costs incurred by the defendant in the previous condemnation proceeding, it was barred from refiling the present petition. The District timely appeals.

The first issue raised by the District on appeal is whether the trial court erred in allowing the City of Waukegan and Community Unit School District No. 60 to intervene as defendants in the action. The District asserts that both the City and the School District lack the interest in the subject property necessary for standing in this condemnation action. We agree with the District that the school district did not have a sufficient interest in the subject property to give it standing to intervene in this action. However, the trial court was correct in finding that the City of Waukegan had a sufficient interest in the subject property to grant it standing to intervene under the statute.

The eminent domain statute contains its own provision regarding when intervention shall be permitted. That provision states:

“Any person not made a party may become such by filing an intervening petition, setting forth that the petitioner is the owner or has an interest in property, and which will be taken or damaged by the proposed work; and the rights of such petitioner shall thereupon be fully considered and determined.” Ill. Rev. Stat. 1987, ch. 110, par. 7-124.

In its petition for leave to intervene, the City of Waukegan alleged ownership of an easement for water and sewer running through the subject properties and ownership in a water line running through one of the parcels. Easements are considered substantial property interests, and, as such, the City had standing to intervene in the condemnation action. Department of Public Works & Buildings v. Schmauss (1972), 6 Ill. App. 3d 470, 473.

However, the school district merely alleged the subject property was located within its district boundaries and that the Thomas Jefferson Junior High School, located adjacent to the subject property, would be greatly and directly affected by the condemnation of that property. The school district alleged the removal of that property from the Lake County tax rolls would deny the district future real estate tax revenue therefrom, causing serious harm and damage to the district’s financial position. We do not find these interests sufficient to give it standing. We do not believe these interests to be of the kind contemplated by the statute.

In order to challenge a taking, one must have a property interest affected, and one not alleging a property interest affected has no standing to challenge a taking. (City of Crystal Lake v. La Salle National Bank (1984), 121 Ill. App. 3d 346, 355; Midwest Television, Inc. v. Champaign-Urbana Communications, Inc. (1976), 37 Ill. App. 3d 926, 934-35.) The trial court erred in granting the school district leave to intervene; therefore, the school district cannot be considered a party to this action.

However, a nonparty has standing to appeal if he or she has a direct and substantial interest in the subject matter which would be prejudiced by the judgment or benefitted by its reversal. (Highland Park Women’s Club v. Department of Revenue (1990), 206 Ill. App. 3d 447, 462-63.) Our supreme court has held that individual property taxpayers do not have standing to file lawsuits in the circuit court to force the return of exempt parcels to the tax rolls because their interest in the taxation of any parcel of exempt property is extremely remote. (Schlenz v. Castle (1986), 115 Ill. 2d 135, 144.) We find the school district’s position in the present case to be analogous. The school district’s interest in receiving tax revenue from the subject property is too remote to provide standing to appeal. Therefore, the school district’s appeal in the present case is dismissed.

The second issue raised on appeal is whether the trial court erred in permitting the City of Waukegan to file a motion to reconsider or, in the alternative, to dismiss after the court’s own deadline for filing such motions had passed. We find the trial court properly acted within its discretion in permitting the City to file its motion to reconsider after the court-imposed deadline.

Our supreme court has held that a trial court may impose a deadline for filing challenges to condemnation petitions. (Chicago Land Clearance Comm’n v. Rosenau (1957), 10 Ill. 2d 501.) The supreme court found that setting such a deadline is an acceptable exercise of the court’s discretion because it promotes the interests of judicial control and judicial efficiency. This court has found that it is important for a trial court to be able to control its calendar and to minimize the retrying of issues. (Lake County Forest Preserve District v. First National Bank (1987), 154 Ill. App. 3d 45, 50.) In that case, involving the same parties as the present case, we held that the day-to-day decisions about such matters, when not imposed by statute or rule, are within the province of each trial judge.

In the present case the trial court imposed a September 14, 1988, deadline for filing any further motions to dismiss or traverse. The City of Waukegan was granted leave to intervene in the matter on November 21, 1988, well past the filing deadline. On December 13, 1988, the court held an evidentiary hearing on all previously filed motions to traverse and dismiss. These motions consisted of a two-count motion filed by defendant Drobnick and a motion to dismiss filed by the City of Waukegan. After this hearing, the court entered an order denying the various motions to dismiss and traverse on May 17, 1989. The matter was set for trial on January 16,1990.

On December 1, 1989, the City sought leave to file its motion to reconsider or in the alternative to dismiss. This motion raised an issue that had not been raised in the previous motions to dismiss. The trial court permitted the City to file the motion. Now, on appeal, the District claims the trial court should not have permitted the City to file this motion because it was past the court-imposed deadline of September 14, 1988. We find the trial court properly acted within its discretion in permitting the City to file this motion.

The City of Waukegan did not intervene in this action until after the deadline had passed. Given this circumstance, the court was certainly acting within its discretion in permitting additional motions to dismiss to be filed. The decision of the trial court to impose a deadline for the filing of motions to dismiss and traverse was made for the sake of judicial economy. It was not imposed by statute or rule, but imposed in the judge’s own discretion. As such, the judge retains the discretion to alter or remove the deadline.

The last issue on appeal is whether the trial court erred in granting the City’s motion to dismiss. In its motion, the City cited the supreme court’s opinion in Commissioners of Lincoln Park v. Schmidt (1944), 386 Ill. 550, for the proposition that the District may not refile a condemnation petition against the subject property because it failed to pay the costs, fees and expenses incurred by the defendant in the prior proceeding. The City states:

“Said opinion specifically holds that where a public body fails to pay the costs, expenses and attorney’s fees incurred by the condemnee, the public body cannot refile a new action seeking to condemn the property.”

Based on this motion, the court issued an order reconsidering its prior denial of the defendant’s motion to dismiss. The court stated that, based on the Schmidt case, the District was barred from refiling its condemnation petition concerning the subject property because it had never paid the defendant’s costs. We disagree with the trial court’s ruling.

In its motion to reconsider or, in the alternative, to dismiss, the City misstated the holding in Schmidt. The holding in that case concerned whether the statutory right to receive attorney fees and costs upon dismissal or nonpayment of judgment abated upon the death of the owner of the property or whether it survived in favor of his or her executors. In explaining why attorney fees and costs are awarded upon dismissal in the first place, the court stated that, unlike a defendant in an ordinary lawsuit, the owner of land taken in eminent domain has not brought the trouble upon himself. (Schmidt, 386 Ill. at 563.) The court reasoned that, because a condemnor can dismiss a petition at will or refuse to pay a judgment even after it is affirmed, then immediately file another suit in an attempt to get the same land more cheaply, again dismiss, and, conceivably, on ad infinitum, the award of fees and costs is necessary to prevent the abuses which could result. Schmidt, 386 Ill. at 563.

The City quoted the following language from Schmidt:

“The right to dismiss or abandon provided under section 10 [now section 7 — 123] is conditioned upon payment of certain costs. This condition must be fulfilled.” (Schmidt, 386 Ill. at 565.)

The City argues that this language is unconditional and that because the District did not pay the fees and costs incurred by the defendant in the prior condemnation proceeding, it is barred from refiling its petition against the subject property.

However, both the City and the trial court failed to address the fact that the award of these costs and fees is not automatic. The holding in Schmidt requires that fees be paid only if such fees were requested by the defendants as required by statute. Unlike the defendants in the present case, the defendants in Schmidt filed a formal written application for attorney fees and costs in accordance with the statute. Section 7 — 123, providing for the award of these costs, states in pertinent part:

“If in such case the plaintiff dismisses the complaint *** or fails to make payment of full compensation within the time named in such order, or if the final judgment is that the plaintiff cannot acquire the property by condemnation, the court shall, upon the application of the defendants or any of them, enter such order in such action for the payment by the plaintiff of all costs, expenses and reasonable attorney fees ***.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 110, par. 7—123(a).

In the present case, the District and the defendants reached an agreement in the prior condemnation proceeding in which the District would dismiss the action upon the payment of its costs by the defendants. The defendants never requested the payment of their fees, as necessary to the award of fees under the statute. As such, the right to receive those fees was waived.

The defendants entered into an agreement with the District. They were represented by counsel. They should have been aware of their rights under the circumstances. They bargained away their right to receive the costs and fees incurred in order to convince the District to dismiss the suit. Now, they cannot claim that this lack of payment bars the District from refiling the present action. The statute is clear. The payment of these fees will be awarded “upon application of the defendants.” Not only did the defendants in this case fail to apply to recover their costs and fees, they affirmatively waived this right by striking the agreement with the District.

On appeal, defendants claim the act of refiling this proceeding less than two years from the date of the agreement constitutes bad faith on the part of the District. This argument is simply without merit.

The motion to dismiss filed August 26, 1988, alleged that the agreement reached between the District and the defendants constituted a binding contract. In support of this contention, the defendants cite City of Crystal Lake v. La Salle National Bank (1984), 121 Ill. App. 3d 346. Defendants further alleged the actions of the District in refiling the condemnation petitions were in direct abrogation of this contract. After a careful examination of the holding in Crystal Lake, the trial judge found no contract to exist between the District and the defendants. He denied the motion to dismiss.

We agree with the trial court’s analysis. In Crystal Lake, this court recognized that a settlement may be reached in a condemnation action, which will have the authority of not merely a private contract but of a court judgment, when incorporated into a decree of condemnation. (Crystal Lake, 121 Ill. App. 3d. at 356.) However, in the case at bar, there was no decree of condemnation. The District simply adopted a resolution dismissing the action in return for $8,000 in costs to be paid by the defendants. Nowhere did this resolution state the District would not find it necessary or desirable in the future to reinstitute the action, nor did the resolution contain a promise not to do so if it did become necessary and desirable to acquire the property. The defendants have failed to establish that there was any contract actually entered into between the parties.

Nor is there evidence of bad faith on the part of the District. The District waited almost two years before reinstituting the present action. This action involves only two of the three parcels at issue in the previous case. In addition, there was testimony at the evidentiary hearing that the drainage problems in that area, present at the time of the previous proceeding, had been exacerbated by the development of a new commercial shopping center immediately across the street from the subject property. The testimony indicated that the proposed lakes shown in the District’s plan, which would be located on parcels at issue, would help improve the flooding conditions in that area. The defendants have shown no evidence of bad faith on the part of the District.

Accordingly, the judgment of the circuit court of Lake County is reversed and this cause remanded for further proceedings.

Reversed and remanded.

REINHARD, P.J., and NICKELS, J., concur.


author: JUSTICE CAMPBELL

text:
    THE HOME INDEMNITY COMPANY, Indiv. and as Subrogee of Crawford and Russell, Inc., Plaintiff-Appellant, v. GENERAL ACCIDENT INSURANCE COMPANY OF AMERICA, Defendant-Appellee (Shand Morahan and Company, Inc., Indiv. and as Agent of General Accident Insurance Company of America, Defendant).
    First District (1st Division)
    No. 1—89—1948
    Opinion filed February 19, 1991.
    Rehearing denied June 7, 1991.

      Brinton, Bollinger & Ruberry, of Chicago (John D. Kuhn and Debra Criche Hell, of counsel), for appellant.
    Tribler & Orpett, P.C., of Chicago (Willis R. Tribler and D.J. Sartorio, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff Home Indemnity Company (Home) appeals an order of the circuit court of Cook County granting defendant General Accident Insurance Company of America’s (General) motion to dismiss plaintiff’s claim seeking partial reimbursement of defense costs plaintiff incurred in defending claims against subrogor Crawford & Russell. For the following reasons, we affirm.

In 1986, five personal injury suits were filed against Crawford & Russell, an architectural and engineering firm, in connection with an explosion at a plant, alleging that the explosion was caused in part by Crawford & Russell’s designs. Crawford & Russell was an additional named insured on a policy issued by Home to the John Brown Group, Inc., covering comprehensive general liability, contractual liability, personal injury liability and employee benefits liability. In addition, Crawford & Russell had purchased an architects and engineers professional liability policy from General. The General policy had a $1 million deductible.

After receiving notice of the personal injury claims, Crawford & Russell filed suit against Home, alleging that Home had a duty to defend them. In 1988, the trial court found that Home had a duty to defend Crawford & Russell, although the record is unclear as to whether that duty extended to all of the underlying claims. The record does not indicate whether General was notified of these early proceedings.

On February 17, 1988, Home filed a complaint against General and Shand Moraban & Company (Shand), an agent of General, seeking a declaratory judgment that both the Home and General policies were primary policies covering the personal injury claims, and seeking damages under section 155 of the Illinois Insurance Code (Ill. Rev. Stat. 1987, ch. 73, par. 767). On May 9, 1989, the trial court granted Shand’s motion to dismiss the claims against Shand and General’s motion to dismiss the statutory claims against General. The trial court also requested supplemental briefs on the issue of whether General had a duty to defend Crawford & Russell in the personal injury claims.

On June 20, 1989, after hearing argument on the issue, the trial court granted General’s motion to dismiss the remainder of Home’s complaint against General, ruling that Home was the primary insurer and General was an excess insurer that did not have a duty to pay a pro rata share of the defense costs. This appeal followed.

Plaintiff contends on appeal that the trial court erred in dismissing its claim, which sought to have General contribute to the cost of defending Crawford & Russell in the underlying suits. Home argues that General should have been found to be a “concurrent primary insurer.” In reviewing a dismissal, this court may uphold the decision on any basis found in the record. E.g., In re Marriage of Wilson (1990), 193 Ill. App. 3d 473, 549 N.E.2d 1348.

The initial issue on appeal is whether the trial court erred in finding the Home policy to be primary insurance and the General policy to be excess, because the doctrine of equitable contribution does not apply to primary/excess insurer issues. (United States Fidelity & Guaranty Co. v. Continental Casualty Co. (1990), 198 Ill. App. 3d 950, 955, 556 N.E.2d 671, 675.) Contribution among co-insurers may arise where the policies cover a risk on the same basis and there is an identity between the policies as to parties and insurable interests and risks. (See Zurich Insurance Co. v. Raymark Industries, Inc. (1986), 145 Ill. App. 3d 175, 494 N.E.2d 634, aff'd (1987), 118 Ill. 2d 23, 514 N.E.2d 150; Royal Globe Insurance Co. v. Aetna Insurance Co. (1980), 82 Ill. App. 3d 1003, 403 N.E.2d 680.) In contrast, by their very nature, primary and excess policies do not cover the same risks; the protections under the excess policy do not begin until those of the primary policy end. (See Pekin Insurance Co. v. Cincinnati Insurance Co. (1987), 157 Ill. App. 3d 404, 510 N.E.2d 524.) Thus, a primary insurer has the primary duty to defend and pay defense costs. See Occi dental Fire & Casualty Co. v. Underwriters at Lloyd’s, London (1974), 19 Ill. App. 3d 265, 271, 311 N.E.2d 330, 334-35; Fireman’s Fund Indemnity Co. v. Freeport Insurance Co. (1961), 30 Ill. App. 2d 69, 76, 173 N.E.2d 543, 546.

The question then becomes one of determining whether the policies are primary or excess. Home urges this court to determine the respective liabilities of the insurers based on a construction of the entirety of each policy. General argues that this determination is controlled largely by what are commonly referred to as the “other insurance” clauses in each policy. “Other insurance” clauses, which are designed to reduce multiple recoveries, generally fall into three categories: “pro rata” clauses, “excess” clauses and “escape” clauses. Putnam v. New Amsterdam Casualty Co. (1970), 48 Ill. 2d 71, 76, 269 N.E.2d 97, 99.

In Putnam, the Illinois Supreme Court discussed several theories other jurisdictions applied to decide cases where there are “excess” or “escape” clauses in each of two policies which may cover a loss. The supreme court resolved the case on the basis of the actual language of the two “other insurance” clauses of the respective policies, rejecting the theory that where there are two “other insurance” clauses the two policies should automatically be pro rated. Two identical “other insurance” clauses will be disregarded, with a resulting apportionment of costs; however, a policy with an “excess” clause does not activate the “pro rata” clause of another policy. Putnam, 48 Ill. 2d at 77-82, 269 N.E.2d at 100-02.

This court applied the same approach in two later cases, determining that where one policy has a “pro rata” clause and another policy contains an “excess” clause, the former policy is primary and the latter policy is excess. (Deerfield Management Co. v. Ohio Farmers Insurance Co. (1988), 174 Ill. App. 3d 837, 529 N.E.2d 243; Honeywell, Inc. v. American Motorists Insurance Co. (1982), 109 Ill. App. 3d 955, 441 N.E.2d 348.) Thus, despite Home’s repeated assertions to the contrary, our courts have determined whether a policy provides primary or excess coverage by reference to the “other insurance” clauses of the policies.

In this case, the record shows that the “other insurance” clauses in the policies are quite similar to the clauses at issue in Deer-field Management. (See Deerfield Management, 174 Ill. App. 3d at 843-44, 529 N.E.2d at 248.) Under Deerfield Management, Home’s policy contains a “pro rata” clause, whereas General’s policy contains an “excess” clause. Consequently, the trial court did not abuse its discretion in deciding that the Home policy was primary insurance and the General policy was excess insurance, based on the record in this case. Nor did the trial court abuse its discretion in holding that General, as the excess carrier, did not have to pay defense costs; the Deerfield Management court affirmed a similar judgment.

Home argues that the “other insurance” clauses do not excuse General from a pro rata share of defense costs, citing the proposition that the duty to defend is broader than the duty to pay for a loss. (See, e.g., Murphy v. Urso (1981), 88 Ill. 2d 444, 451, 430 N.E.2d 1079, 1082.) Home further asserts in its reply brief that “loss should not fall irrevocably upon that insurer which first recognizes its obligations, while one neglectful of its duty is allowed to escape.” New Amsterdam Casualty Co. v. Certain Underwriters at Lloyd’s, London (1966), 34 Ill. 2d 424, 431, 216 N.E.2d 665, 669.

The record in this case does indicate that the General policy contains a broad “duty to defend” clause that is similar to the corresponding clause in the Home policy. Home’s argument, however, fails to recognize that excess coverage may arise not only by drafting a policy which, on its face, provides excess coverage, but also may arise by “coincidence,” where, as here, the interpretation of two “other insurance” clauses renders one policy excess. (See Marick, Excess Insurance: An Overview of General Principles and Current Issues, 24 Tort & Ins. L.J. 715, 717-18 (1989) (and citations therein).) Indeed, it is in “coincidence” cases such as the present appeal that one insurer is more likely to seek partial reimbursement from another, for the terms of a facially excess policy may preclude such a claim. See 24 Tort & Ins. L.J. at 729 & n.59.

For example, in New Amsterdam Casualty Co., the supreme court held that the New Amsterdam policy was excess by coincidence with the Lloyd’s policy. Nevertheless, New Amsterdam had defended the insured because Lloyd’s, which should have had the primary duty to defend, refused to defend the insured. The effect of that refusal was that there was no “valid and collectible other insurance” with which the New Amsterdam policy could coincide. The supreme court allowed New Amsterdam, as the excess carrier, to recoup defense costs from Lloyd’s, rejecting the argument that the “other insurance” clauses applied only to the duty to pay losses and not to the duty to defend and pay defense costs. (See New Amsterdam Casualty Co., 34 Ill. 2d at 431, 216 N.E.2d at 669.) Consequently, New Amsterdam Casualty Co. does not aid Home’s case.

We note at this point that Home brought suit against General both individually and as a subrogee of Crawford & Russell. Home, however, cited no authority to support a subrogation theory, thus waiving any such argument. (134 Ill. 2d R. 341(e)(7).) We further note, in passing that prior cases in which one insurer sought reimbursement from another on a subrogation theory were pursued by the excess insurer, rather than the primary insurer. New Amsterdam Casualty Co., 34 Ill. 2d 424, 216 N.E.2d 665; Aetna Casualty & Surety Co. v. Coronet Insurance Co. (1976), 44 Ill. App. 3d 744, 358 N.E.2d 914; Fireman’s Fund Indemnity Co., 30 Ill. App. 2d 69,173 N.E.2d 543.

One case cited by General took the approach advocated by Home, looking to the entirety of the policies to determine who should bear the costs of indemnification and defense. (Illinois Emcasco Insurance Co. v. Continental Casualty Co. (1985), 139 Ill. App. 3d 130, 487 N.E.2d 110.) That case is distinguishable insofar as it involved the “unique and special coverage” of an umbrella policy. (Illinois Emcasco Insurance Co., 139 Ill. App. 3d at 133, 487 N.E.2d at 112.) Nonetheless, even if the trial court had taken the Emcasco approach, the record would support the court’s decision. After- all, an examination of the entire General policy must necessarily include an examination of General’s “other insurance” clause. Home has failed to point to any portion of the General policy aside from the “other insurance” clause which indicates that the General policy should be construed as primary insurance where Home’s policy applies. Thus, given the record in this case, Home has failed to show that the trial court abused its discretion.

The Illinois cases upon which Home relies are inapposite. Zurich Insurance Co. (145 Ill. App. 3d 175, 494 N.E.2d 634) allowed in dictum that there may be apportionment between insurers, but the insurers referred to in that discussion were all primary insurers. (See Zurich Insurance Co., 145 Ill. App. 3d at 199, 494 N.E.2d at 650.) Moreover, the trial court had reserved its ruling on that issue and we therefore professed no opinion about it. (Zurich Insurance Co., 145 Ill. App. 3d at 200, 494 N.E.2d at 650-51.) Our refusal to order pro rata apportionment of defense costs was upheld on appeal to our supreme court. Zurich Insurance Co., 118 Ill. 2d at 57, 514 N.E.2d at 165.

Home’s reliance on Audit Bureau of Corrections v. ISLIC (Cir. Ct. Cook County, March 1987), No. 84 — L—50052, is misplaced for at least three reasons. First, it is axiomatic that an unpublished decision of a trial court in another case does not bind this court in any way. Second, Home has failed to point to anything in the transcript regarding the language of the policies at issue in that case, making a comparison to the policies in this case all but impossible. Finally, the record reflects that the trial judge in Audit Bureau of Corrections, who also presided over the present case, specifically stated on the last page of the transcript of the proceedings that he did not rule on the consequences of having two primary policies.

For all of the aforementioned reasons, Home has failed to demonstrate that the trial court erred in granting General’s motion to dismiss. Consequently, we affirm the judgment of the circuit court of Cook County.

Affirmed.

BUCKLEY and O’CONNOR, JJ., concur.


author: JUSTICE COCCIA

text:
    THE VILLAGE OF WHEELING, Plaintiff-Appellant, v. EXCHANGE NATIONAL BANK OF CHICAGO, as Trustee, et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—88—3824
    Opinion filed March 22, 1991.
    Rehearing denied June 4, 1991.

      Burke & Ryan, of Chicago (Thomas T. Burke, William E. Ryan, and Barry A. Springer, of counsel), for appellant.
    Fisher & DiMonte and Thomas L. Ruth, Jr., both of Chicago, and Shannon & Johnson, P.C., and Mark A. LaMantia, both of Portland, Oregon (Ward P. Fisher and Karen Fisher DiMonte, of counsel), for appellees.
    Keck, Mahin & Cate, of Chicago (Kai A. Nebel, James H. Ryan, and Edward R. Gower, of counsel), for amicus curiae Illinois Tax Increment Association.
   JUSTICE COCCIA

delivered the opinion of the court:

This is an appeal by the Village of Wheeling from the trial court’s dismissal of its complaint filed under, and pursuant to, its eminent domain powers. The trial court ruled in favor of the defendant property owners following a hearing on their motion to dismiss. No issues were raised on the pleadings and no cross appeals were filed. The sole issue raised on appeal is whether the trial court erred in dismissing Wheeling’s complaint. We reverse and remand for trial, holding that the trial court erred in dismissing Wheeling’s complaint.

The Real Property Tax Increment Allocation Redevelopment Act (TIA) (Ill. Rev. Stat. 1977, ch. 24, par. 11 — 74.4—1 et seq.) provides for a planning and financing mechanism whereby municipalities of the State of Illinois can promote and assist in the economic development of redevelopment areas. The Village of Wheeling adopted such a plan by ordinance on February 25, 1985. The ordinance identified the Crossroads Redevelopment Project Area as the designated area for proposed' redevelopment. Various other ordinances were adopted by Wheeling, including ordinance No. 2314, authorizing the Village of Wheeling to acquire property through condemnation or otherwise in the Tax Increment Redevelopment Project Area. Ordinance No. 2314 authorized the acquisition of the real property being condemned in this suit, with the board of trustees of Wheeling specifically finding that the acquisition of these properties was necessary in order to implement the Wheeling Tax Increment Plan. Defendants are property owners of certain parcels located within the subject area. The Village of Wheeling filed the instant complaint to condemn the subject property pursuant to its eminent domain powers under the TIA.

The owners and tenants of three of the parcels in question, who are the appellees in this proceeding, filed traverses and motions to dismiss plaintiff’s complaint. The trial court, in undertaking to resolve the issues raised by the defendants’ traverses and motions to dismiss, elected to hold an evidentiary hearing thereon and, in doing so, decided to resolve all legal issues initially and separately, and then to proceed to resolve the factual issues.

On December 8, 1987, the trial court ruled in favor of the Village of Wheeling on all legal issues, finding:

“2. The Tax Increment Allocation Redevelopment Act, [citation] (hereinafter the Act) does not violate the due process or equal protection clauses of the U.S. Constitution;
3. Plaintiff adopted a Redevelopment Plan and Redevelopment Project prior to designating a redevelopment project area. The redevelopment project adopted by plaintiff satisfied the requirements of the Act for the reasons stated by the Court.”

No appeal was taken from the December 8, 1987, trial court order.

The evidentiary hearing on the traverses and motions to dismiss occurred on March 24 and 25, 1988. The primary focus of the hearing was whether the area qualified as blighted or conservation, or both, under the TIA, and whether the condemnation of the appellees’ property was necessary. The burden of going forward with the evidence to establish its prima facie case was that of the Village of Wheeling.

The plaintiff initially introduced into evidence ordinances Nos. 2157, 2158, 2159 and 2314. Those ordinances found:

“(a) The Wheeling Board of Trustees, being aware of the conditions of the project area, and having reviewed studies and information concerning the condition of the project area, found the Wheeling Redevelopment Project Area qualified for redevelopment as a blighted area or conservation area or both, as defined in the Tax Increment Act; and
(b) The condemnation of the property listed in Ordinance 2314 was necessary, required and needed to achieve the objectives of the Wheeling Tax Increment Plan and Project.”

In addition to the foregoing, the evidence showed that the Wheeling Tax Increment Redevelopment Plan (exhibit D to ordinance No. 2157) contained the opinions of Teska and Associates that support the findings made by the Wheeling Board of Trustees. The Teska firm was of the opinion that the area was “clearly eligible” for redevelopment pursuant to the Tax Increment Act. Both the Wheeling Board of Trustees and the Teska firm found that the area qualified as a “blighted area” or “conservation area” under the Act. Either finding would permit the adoption of a tax increment redevelopment plan and condemnation of appellees’ property, such being necessary to achieve the objectives of the plan. In addition, included in the redevelopment plan (which plan was incorporated into ordinance No. 2157) were specific findings that the Crossroads Redevelopment Project Area satisfied the statutory criteria for both a blighted area and a conservation area.

As noted by the trial court in its decision, the TIA defines “blighted” and “conservation” areas as follows:

“11 — 74.4—3. Definitions
* * *
(a) ‘Blighted area’ means any improved or vacant area within the boundaries of a redevelopment project area located within the territorial limits of the municipality where, if improved, industrial; commercial and residential buildings or improvements, because of a combination of 5 or more of the following factors: age; dilapidation; obsolescence; deterioration; illegal use of individual structures; presence of structures below minimum code standards; excessive vacancies; overcrowding of structures and community facilities; lack of ventilation, light or sanitary facilities; inadequate utilities; excessive land coverage; deleterious land use or layout; depreciation of physical maintenance; lack of community planning, is detrimental to the public safety, health, morals or welfare, or if vacant, the sound growth of the taxing districts is impaired by, (1) a combination of 2 or more of the following factors: obsolete platting of the vacant land; diversity of ownership of such land; tax and special assessment delinquencies on such land; flooding on all or part of such vacant land; deterioration of structures or site improvements in neighboring areas adjacent to the vacant land, or (2) the area immediately prior to becoming vacant qualified as a blighted improved area, or (3) the area consists of an unused quarry or unused quarries, or (4) the area consists of unused railyards, rail tracks, or railroad rights-of-way, or (5) the area, prior to the area’s designation, is subject to chronic flooding which adversely impacts on real property which is included in or in proximity to any improvement on real property which has been in existence for at least 5 years and which substantially contributes to such flooding, or (6) the area consists of an unused disposal site, containing earth, stone, building debris or similar material, which were removed from construction, demolition, excavation or dredge sites, or (7) the area is not less than 50 nor more than 100 acres and 75% of which is vacant, notwithstanding the fact that such area has been used for commercial agricultural purposes within 5 years prior to the designation of the redevelopment project area, and which area meets at least one of the factors itemized in provision (1) of this subsection (a), and the area has been designated as a town or village center by ordinance or comprehensive plan adopted prior to January 1, 1982, and the area has not been developed for that designated purpose.
(b) ‘Conservation area’ means any improved area within the boundaries of a redevelopment project area located within the territorial limits of the municipality in which 50% or more of the structures in the area have an age of 35 years or more. Such an area is not yet a blighted area but because of a combination of 3 or more of the following factors: dilapidation; obsolescence; deterioration; illegal use of individual structures; presence of structures below minimum code standards; abandonment; excessive vacancies; overcrowding of structures and community facilities; lack of ventilation, light or sanitary facilities; inadequate utilities; excessive land coverage; deleterious land use or layout; depreciation of physical maintenance; lack of community planning, is detrimental to the public safety, health, morals or welfare and such an area may become a blighted area.” Ill. Rev. Stat. 1987, ch. 24, par. 11—74.4—3.

In addition to the aforementioned findings made by the Wheeling Board of Trustees in ordinance No. 2157, the introduction into evidence of the several ordinances, as well as the opinion of Robert B. Teska Associates, Inc., Wheeling called as an expert witness Nicholas Trkla. He was found qualified as an expert by the trial court at the evidentiary hearing. Trkla was hired for purposes of this litigation. Trkla testified that 10 of the 14 statutory factors were present to satisfy the criteria for qualifying the area as blighted.

We note that the defendants did not call a single witness. They offered no evidence to contradict the findings made by the Village of Wheeling, or the testimony of the expert witness, Trkla, other than to stand on their cross-examination of Trkla.

On December 1, 1988, the trial court entered its memorandum, decision and judgment, finding that the Village of Wheeling failed to prove whether the subject area was either a blighted area or a conservation area, or a combination of both, and granted defendants’ motion to dismiss. This appeal followed. We also note that briefs were filed by the Village of Wheeling, the plaintiff in the original action, as well as an amicus curiae brief filed by the Illinois Tax Increment Association. The Association is comprised of various municipalities, law firms and consulting firms involved in promoting the economic development of redevelopment project areas pursuant to the Tax Increment Allocation Redevelopment Act noted above. In addition, briefs were also filed by defendant owners, Dunkin’ Donuts of Illinois, Inc., and Erwin F. and Ivy E Dreiske. The Dreiskes are owners of a fourth parcel, who, by court order of May 15, 1988, adopted the three traverses and will be bound by this court’s decision.

ANALYSIS

I

The law is well settled in Illinois, and the Illinois Supreme Court has consistently held, that when valid village ordinances for a taking of property for a public purpose are presented to the trial court, such documents establish a prima facie case authorizing the acquisition of the property in question by eminent domain proceedings. (City of De Kalb v. Anderson (1976), 43 Ill. App. 3d 915, 357 N.E.2d 837; City of Chicago v. Walker (1971), 50 Ill. 2d 69, 277 N.E.2d 129.) In Anderson, as in the case at bar, the City of De Kalb introduced its resolution (here, ordinance) approving the redevelopment plan and the ordinances passed by the city (here, village) to condemn specific parcels of property, including the defendants’ property. As was noted in Anderson, it was the duty of the defendants “to proceed with evidence that there was an abuse of discretion by the City of De Kalb or the City lacked the authority to condemn.” (Anderson, 43 Ill. App. 3d at 917, 357 N.E.2d at 839.) The defendants in Anderson failed to introduce any evidence, but merely filed an affidavit stating their opinions and beliefs relating to the condemnation. In the instant case, the defendants likewise failed to present any additional substantive evidence of their own to overcome Wheeling’s prima facie case.

Defendant Dunkin’ Donuts contends that because Wheeling elected to call an expert witness and introduce additional evidence (in addition to producing its ordinances), it allowed the defendants, through cross-examination, to establish that the village acted improperly or otherwise abused its discretion. In this manner, contends Dunkin’ Donuts, the defendants met and overcame the presumption that the ordinances established a prima facie case, and need not offer any additional evidence. We do not agree that the evidence obtained through defendants’ cross-examination of Nicholas Trkla (plaintiff’s expert witness) effectively diluted or overcame either plaintiff’s prima facie case or the legitimacy of plaintiff’s right to eminent domain under the facts in this case. We therefore find the defendants’ arguments in this regard unpersuasive.

Defendants also contend that the real reason for the taking is that private developers and their supporters want sole control over the property without court interference. This begs the question. The taking of property for a valid public purpose and then reselling a portion of that property for development for private purposes does not render the taking/condemnation invalid. (City of Chicago v. Walker (1971), 50 Ill. 2d 69, 277 N.E.2d 129.) Nowhere in defendants’ briefs or in the transcript of the hearing below is there any indication that the taking was not for a public purpose. Furthermore, it is not for the courts to question the motives which prompt a valid taking, unless there has been a clear abuse of the power of the municipality. (City of Chicago v. R. Zwick Co. (1963), 27 Ill. 2d 128, 188 N.E.2d 489.) No such abuse has been shown here. Nor can the courts deny the right to condemn on the grounds that the taking is not necessary. That is a legislative determination. City of Chicago v. Vaccarro (1951), 408 Ill. 587, 97 N.E.2d 766.

Defendants further contend that since their buildings do not fall in the “below code” standards required for blighted areas, their property should not be included in the taking. There is no merit in this contention either. The test for the taking is based on the condition of the area as a whole. It does not matter that there are some buildings in the area which do not come under the headings of “blighted” or “conservation” areas. The fact that defendants’ buildings may be unoffending, taken individually, is no defense to the condemnation proceedings. The whole area is to be considered — not the individual structures on a building-by-building basis. City of Chicago v. Barnes (1964), 30 Ill. 2d 255, 195 N.E.2d 629.

It is our view that the Village of Wheeling, having submitted its relevant ordinances into evidence, together with the expert testimony it introduced, has made out a prima facie case. In so holding, we agree with the judgment of the court below. However, we disagree with that portion of the decision in the trial court finding that defendants’ evidence was sufficient to rebut Wheeling’s prima facie case. Since the defendants failed to support their motions with contrary evidence, the motions should have been denied.

II

We have carefully reviewed the entire record and note that all briefs go into great detail concerning the factors considered in classifying an area as either blight or conservation areas. Pursuant to the statutory definitions above noted, 5 of the 14 statutory factors must be present to sustain a legislative finding of blight, whereas for an area to qualify as a conservation area, 50% of the structures must be 35 or more years old and the area must have at least three of the statutory factors present. Village of Wheeling Ordinance No. 2157, effective April 29, 1987, states that the taking can occur if the area in question is either a blighted or conservation area.

In his testimony, Nicholas Trkla testified that there were at least 10 statutory factors present to classify the area as a blighted area. He further testified that there were seven strong factors, to wit: age, obsolescence, deterioration, structures below minimum code, deleterious land use, depreciation of physical maintenance, and lack of community planning. In addition, three of the statutory factors of dilapidation, excessive vacancies, and excessive land coverage were present to a moderate degree. Even if we assume, as defendants contend, that some of the factors testified to by Trkla were not exactly as stated in the findings of the report of Teska & Associates, still, only 5 of the 14 statutory factors need be present. Furthermore, the Drieskes’ brief admits that seven of the required factors necessary to support a finding of “blight” were present, which, of course, is two more than the minimum of five required by the statute. It is our opinion that there were sufficient factors present for the subject property to qualify as a blighted area. And, again, when using the statutory factors, we look at the area as a whole, and not at the individual structures.

In further support of their position, defendants refer to a compliance manual prepared on January 13, 1989, by an unknown person at the Illinois Department of Revenue. We agree with the plaintiffs herein in that since this manual was prepared after the trial court’s decision in this case, and, of necessity, unavailable in evaluating the evidence and in rendering its decision, it cannot now be used on appeal in support of defendants’ contentions. Burys v. First Bank (1989), 187 Ill. App. 3d 384, 543 N.E.2d 253.

We further hold that once the statutory requirements have been met for the area to be classified as blighted area, it does not matter whether or not the area could also be qualified as a conservation area. The statute only provides that it can be “either” a blighted “or” conservation area, “or a combination” of both. The fact that plaintiff went further than necessary or required after establishing its prima facie case, and offered additional evidence concerning the classification of the area as a conservation area, should not and cannot be held against it. Defendants contend that Nicholas Trkla could not classify the area as a conservation area, and therefore the area does not qualify. We disagree. By definition, a conservation area is not yet blighted, but may become blighted. (Ill. Rev. Stat. 1977, ch. 24, par. 11—74.4—3(b).) As we have stated, since it is already classified as blighted, we need not concern ourselves with whether or not the area could also qualify as a conservation area. By definition, the area only needs to be “either” a blighted “or” a conservation area. Both requirements are not necessary to qualify under the TIA.

Ill

Finally, we turn to whether or not the trial court applied the proper standard to Wheeling’s ordinances. We believe it did not.

It is well settled that unless there is a clear abuse of discretion by the municipality, this court cannot interfere. (Chicago & Alton R.R. Co. v. City of Pontiac (1897), 169 Ill. 155, 48 N.E. 485; Tomasek v. City of Des Plaines (1976), 64 Ill. 2d 172, 354 N.E.2d 899.) The general rule as stated in City of Chicago v. Vaccarro (1951), 408 Ill. 587, 597, 97 N.E.2d 766, 771-72, is “that where the legislature has delegated to a corporation the authority to exercise the power of eminent domain, the corporation has also the authority to decide on the necessity for exercising the right, and its decision will be conclusive in the absence of a clear abuse of the power granted.” Absent a showing of an abuse of discretion, of which there is no indication here, the defendants must show that the ordinance is arbitrary, unreasonable or capricious. Again, the burden of going forward with the evidence was on the defendants, and they simply failed to satisfy their burden. Thillens, Inc. v. Hodge (1954), 2 Ill. 2d 45, 116 N.E. 886.

As noted by the Illinois Supreme Court in Tomasek, “the one attacking an ordinance bears the burden of demonstrating its invalidity. The challenging party must establish by clear and convincing evidence that the ordinance, as applied, is arbitrary and unreasonable and bears no substantial relation to the public health, safety or welfare.” People v. Tomasek, 64 Ill. 2d at 179-80, 354 N.E.2d at 903.

To suggest, as defendants contend, that they (the defendants) had no burden to go forward with the evidence to overcome the presumption created by the finding that plaintiff had established its prima facie case, particularly when taken together with defendant’s admission contained in its brief that 7 of the required 14 statutory factors were established in support of a finding of blight, is absurd. Furthermore, a review of the record reflects that all but 2 of the 14 statutory requirements were present in some degree. Even taking the strongest seven factors as testified to by Trkla, defendants fail to accept the fact that the statute only requires five, and no matter how one counts, 7 or 10 is still more than the required 5. After our review of the record, and as directed by Tómasele, we are required to conclude that the trial court erred in granting defendants’ motion to dismiss the plaintiff’s complaint. The defendants failed to overcome the presumption of the validity of the ordinance through clear and convincing evidence, or that the ordinance as applied was arbitrary, unreasonable or capricious. The trial court should not have interfered with the legislative action of the Village of Wheeling. Colville v. City of Rochelle (1970), 130 Ill. App. 2d 541, 268 N.E.2d 222.

For the reasons stated above, the ruling of the trial court is reversed and remanded to the trial court for further proceedings consistent with this opinion.

Reversed and remanded.

LORENZ, P.J., and MURRAY, J., concur.


author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HENRY DAWSON, Defendant-Appellant.
    First District (4th Division)
    No. 1—88—1865
    Opinion filed April 18, 1991.
    Rehearing denied June 3, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Evelyn G. Baniewicz and Ronald P. Alwin, Assistant Public Defenders, of counsel), for appellant.
    John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Walter P. Hehner, and Candace A. Williams, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

After a bench trial, defendant, Henry Dawson, was found guilty of two counts of unlawful use of a firearm by a felon. (Ill. Rev. Stat. 1987, ch. 38, par. 24—1.1.) Defendant was sentenced to two concurrent three-year terms of imprisonment.

On appeal, defendant raises the following issues: (1) whether the trial court erred in denying his motion to quash arrest and suppress certain inculpatory evidence that was obtained after a warrantless entry into his apartment; (2) whether the trial court erred in failing to suppress evidence that was obtained as a result of searching a cloth bag located on his windowsill; (3) whether the trial court erred in failing to suppress evidence that was obtained as a result of a “pat down” search of his jacket; and (4) whether the trial court erred in denying his motion to suppress evidence where, he claims, the State failed to show attenuation between his statements and his arrest and search of his residence.

Defendant seeks reversal of the denial of his motion to quash arrest and suppress evidence; an order suppressing the evidence seized at his apartment; an order suppressing oral statements he made at the police station following his arrest; and vacation of his conviction and remand for further proceedings.

We affirm.

Defendant’s motion to quash arrest and suppress evidence was heard simultaneously with his bench trial. The evidence at trial established that on June 18, 1987, Chicago police officer Walter Tinner and his partner, Robert McClain, were assigned to investigate an aggravated criminal sexual assault case. Officers Tinner and McClain were members of the Area 4 incident team. Four other officers were also assigned to this case. The members of the Area 4 team were responsible for processing reports in the “follow-up” investigation of potential offenders.

At the time of their assignment, the officers were given the address, physical description, and nickname of the alleged offender in the aggravated criminal sexual assault case they were investigating. The officers then proceeded to 258 North Hamlin Avenue in Chicago to question the suspect, who went by the name of “Bru.” According to Officer Tinner, the officers arrived at the third-floor apartment on Hamlin at approximately 7:30 p.m.

Defendant’s niece, Tracey Mitchell, answered the door. The officers announced the purpose of their presence and inquired whether someone named “Bru” lived at that particular apartment. Tracey acknowledged that “Bru” did, in fact, live at the apartment and allowed the officers to enter the apartment. The officers were without a warrant when they entered the apartment.

Upon entering the apartment, Officer Tinner testified that he observed a man fitting the physical description of the suspected offender nicknamed “Bru.” According to Officer Tinner, “Bru” was standing in the bedroom doorway, approximately 8 to 10 feet away from him. “Bru” was later identified as the defendant. Officer Tinner noticed that defendant held a small blue cloth drawstring bag in his hands. When defendant saw the officers, he made an “abrupt” move toward a windowsill in his bedroom. Defendant then placed the bag on the windowsill. Officer McClain retrieved the bag from the windowsill. A loaded revolver and residue from cocaine were discovered in the bag.

Defendant was then placed under arrest for investigation into the charge of aggravated criminal sexual assault and an additional charge of unlawful use of a weapon. Defendant was told that he would be transported to the 11th district police station for processing. Prior to leaving the apartment, defendant asked the officers whether he could get his jacket from the hall closet. Officer Tinner accompanied defendant to the closet. As defendant reached for his jacket, another officer conducted a “pat down” search of the jacket. A fully loaded .38 caliber Smith & Wesson gun was discovered in the jacket pocket.

At the police station, defendant admitted that the guns belonged to him. He stated that he was in possession of the guns because he had been a victim of a robbery and felt that he needed the guns for his own protection.

At trial, it was stipulated that defendant had a prior armed robbery conviction and that the two weapons retrieved at the apartment belonged to defendant. After Officer Tinner testified, the State rested its case. Defendant’s subsequent motion for a directed verdict was denied.

Defendant then called Tracey Mitchell to the stand. Tracey testified that she lived at the apartment on Hamlin with defendant and her cousin. At approximately 5 p.m. on the evening of June 18, 1987, Tracey heard a knock at her door. When she opened the door she observed six detectives. Tracey did not, however, open the burglar gate. According to Tracey, one of the officers told her they had a warrant. Tracey testified that her uncle was standing directly behind her when she opened the door. After the officers announced the purpose of their presence, Tracey unlocked the burglar gate and allowed the officers to enter the apartment.

According to Tracey, defendant was arrested after his identity was established. The officers then began to search the apartment. Tracey admitted that her uncle had a gun which was kept in a bag in the closet, but denied that he had a bag in his hands when the officers entered the apartment. Tracey also denied that her uncle requested a jacket from the hall closet prior to leaving the apartment. Tracey testified that at the time the officers arrived at the apartment, she was in the process of cleaning the apartment and putting away some clothes that had been washed earlier that day.

Defendant’s daughter, Carol Dawson, was the next witness defendant called to testify. Carol was called as a corroborative witness. She testified that on June 18, 1987, she arrived at her father’s house, after his arrest, at approximately 7 p.m. She observed Tracey hanging up some clothes that were on the floor of the front closet. Carol also noticed a plastic bag filled with what appeared to be wet clothes on her father’s bed, along with some other clothes lying on the bed.

Defendant then testified in his own behalf. According to defendant, at approximately 5:30 p.m., he heard a knock at his front door. By the the time he arrived at the door, his niece had opened the door and was talking to several police officers. Defendant further testified that after the officers entered his apartment they began to question him. When defendant asked whether the officers had a search warrant, defendant stated that “[t]hey just evaded the issue.”

Defendant was subsequently handcuffed. Two handguns were later retrieved from defendant’s closet. Defendant testified that the recovered guns belonged to his father and had been in his possession for more than one year.

After hearing all of the evidence, defendant’s motion to quash arrest and suppress evidence was denied. Defendant was found guilty of two counts of unlawful use of a weapon by a felon. Subsequently, defendant’s motion for a new trial was denied and he was sentenced to a term of three years for each count. It is from this decision that defendant now appeals.

Defendant first contends that the trial court erred in denying his motion to quash arrest and suppress evidence where the State failed to prove a valid consent to enter defendant’s apartment. In Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371, the United States Supreme Court held that “the Fourth Amendment to the United States Constitution *** prohibits the police from making a warrantless and non-consensual entry into a suspect’s home in order to make a routine felony arrest.” (Payton, 445 U.S. at 576, 63 L. Ed. 2d at 644, 100 S. Ct. at 1374-75.) However, where the consent is voluntarily given, a defendant’s fourth amendment rights are not violated. (People v. Bean (1981), 84 Ill. 2d 64, 69.) Whether consent is voluntary depends upon the totality of the circumstances. (See Bumper v. North Carolina (1968), 391 U.S. 543, 548, 20 L. Ed. 2d 797, 802, 88 S. Ct. 1788, 1792.) “Whether consent has been voluntarily given is a question of fact to be determined by the trial court, and that determination will be accepted by the reviewing court unless clearly unreasonable.” (People v. Daugherty (1987), 161 Ill. App. 3d 394, 399.) We do not find the trial court’s determination that the consent was voluntarily given to be unreasonable or manifestly erroneous.

This court notes, at the outset, that the version of the events as recounted by Tracey and defendant is vastly dissimilar from Officer Tinner’s testimony. The trial court evidently believed Officer Tinner’s version of the events as defendant was found guilty and his motion to quash arrest and suppress evidence was denied.

Officer Tinner, a 24-year veteran with the Chicago police force, testified on direct examination that after Tracey opened the door, the officers “inquired if [they] could come in. She let us in the front door.” Officer Tinner did not testify that he or any of the other officers had used subterfuge or any deceptive tactics to gain entry into defendant’s apartment. Further, there was no testimony that the officers used coercive tactics, such as drawing their revolvers, in order to enter the apartment.

On cross-examination, Officer Tinner testified that he asked Tracey whether “Bru” lived at the apartment with her. “[The] [y]oung lady said she was a niece of Bru. At that point in time she opened the burglar gates.” Officer Tinner never testified that he or any of the other officers told Tracey that they had a warrant.

Tracey, on the other hand, testified that “when [the officers] came to the door [they] did not ask for a direct person. [They] just said [they] had a warrant.” Tracey then testified that she opened the door after the officers stated that they had a warrant. Tracey also testified that defendant was standing directly behind her while she conversed with the officers at the door.

Defendant, however, did not corroborate Tracey’s testimony, as he testified that he never heard the officers state that they had a warrant. It is conceivable that defendant would have heard the officers make such a statement due to his proximity to Tracey when the conversation at the door took place. In fact, defendant testified that the officers were evasive when he asked whether they had a warrant.

Due to the conflicting testimonies of Tracey, defendant, and Officer Tinner, and the circumstances of this case, we are not persuaded that the trial court erred in finding Officer Tinner’s testimony to be more credible than Tracey’s or defendant’s testimony. A court of review will not substitute its judgment for that of the trial court where the evidence is conflicting. (People v. Woods (1980), 81 Ill. 2d 537, 542.) Moreover, as the State argues, a court of review will not disturb a trial court’s ruling on a motion to quash arrest unless that finding is manifestly erroneous. (People v. Cabrera (1987), 116 Ill. 2d 474, 485-86.) We do not find the trial court’s finding to be manifestly erroneous.

Next, defendant argues that the trial court erred in denying his motion to suppress evidence where the officers searched the cloth bag in which one of the guns was recovered. Defendant argues that the police retrieved the bag from the windowsill outside of his window, which was not within defendant’s immediate control. When a valid arrest has been made, the arresting officer may search the area within the arrestee’s immediate control. (Chimel v. California (1969), 395 U.S. 752, 763, 23 L. Ed. 2d 685, 694, 89 S. Ct. 2034, 2040.) Immediate control has been defined to mean “the area from within which [the arrestee] might gain possession of a weapon or destructible evidence.” Chimel, 395 U.S. at 763, 23 L. Ed. 2d at 694, 89 S. Ct. at 2040.

In the instant case, the bag containing the gun was already in defendant’s hands when the officers entered the apartment. It was obviously within defendant’s “immediate control.” It was only after defendant saw the officers coming toward him that he attempted to dispose of the gun by placing it on the windowsill. Defendant’s argument with respect to this issue simply fails.

Moreover, a violation of the fourth amendment may not be found if the seized incriminating evidence was in plain view in a place where the officer had a right to be; its incriminating character is immediately apparent; and there is probable cause to believe that the item is connected to the crime charged. Coolidge v. New Hampshire (1971), 403 U.S. 443, 465-66, 29 L. Ed. 2d 564, 582-83, 91 S. Ct. 2022, 2037-38.

In the instant case, as we previously held, the officers had a right to be in defendant’s apartment. The bag was in plain view in defendant’s hand when the officers entered the apartment. The incriminating character was immediately apparent as defendant, evidencing his intent to dispose of the bag, made an “abrupt” move toward the windowsill, the logical conclusion being that the bag contained some sort of contraband. The officers had probable cause to believe the bag was connected to the crime, as the crime was committed with a gun.

Furthermore, the bag containing the gun, as shown to this court by the defense, was of the type in which a gun could not be readily concealed or completely undetectable. It is not inconceivable, due to the weight and size of the gun, that the officers may have suspected that the bag contained a gun or other contraband.

This evidence, coupled with the fact that defendant attempted to dispose of the bag, is sufficient to show that the officers had probable cause to seize the bag. We, therefore, find that the trial court did not err in denying defendant’s motion to suppress this evidence.

The third issue defendant raises is whether the trial court erred in denying his motion to suppress evidence where Officer Tinner’s testimony was incredible with respect to the recovery of the second gun from defendant’s jacket. Defendant maintains that he did not request his jacket prior to being taken down to the police station. He claims that he had no need of his jacket as the temperature was 89 degrees at 6 p.m. that evening. However, the trial court found Officer Tinner’s testimony more credible than defendant’s testimony. Where the evidence is conflicting, a court of review will not substitute its judgment for that of the trial court. People v. Woods (1980), 81 Ill. 2d 537, 542.

Moreover, Officer Tinner testified that he and the other officers were also wearing jackets. Further, according to Officer Tinner, it was the practice of this particular section of the Chicago police force not to take a prisoner to the police station in “shirt sleeves.” We, therefore, do not find Officer Tinner’s testimony incredible. The trial court did not err in denying defendant’s motion to suppress evidence based upon Officer Tinner’s testimony.

Finally, defendant argues that the State failed to show attenuation between defendant’s statements at the police station and his illegal arrest and the warrantless search of his apartment. “In the case of a confession following an illegal arrest, the confession must be ‘sufficiently an act of free will to purge the primary taint of the unlawful invasion.’ *** The burden of demonstrating attenuation between illegality and subsequent confession sufficient to render the confession admissible rests upon the prosecution.” People v. White (1987), 117 Ill. 2d 194, 222, quoting Wong Sun v. United States (1963), 371 U.S. 471, 486, 9 L. Ed. 2d 441, 454, 83 S. Ct. 407, 416-17.

The State argues that defendant has waived this issue as he failed to raise this contention in either his motion to suppress or his post-trial motion. (See People v. Enoch (1988), 122 Ill. 2d 176.) While we agree with the State that defendant, arguably, has waived this issue, we find that there is no need for the State to prove attenuation. We previously found that the entry into defendant’s apartment, his arrest, and the seizure of the guns found in defendant’s possession were all legal.

Accordingly, the decision of the circuit court is affirmed. As part of our decision, we grant the State’s request that defendant be assessed $75 as costs and fees for this appeal, pursuant to People v. Agnew (1985), 105 Ill. 2d 275, and People v. Nicholls (1978), 71 Ill. 2d 166.

Affirmed.

LINN and McMORROW, JJ., concur.