author: PRESIDING JUSTICE LEWIS

text:
      In re MARRIAGE OF WILLIAM E. GILES, Petitioner-Appellant, and LENA M. GILES, Respondent-Appellee.
    Fifth District
    No. 5—88—0657
    Opinion filed April 26, 1990.

      Thomas W. Lacy, of Taylorville, for appellant.
    Robert Broverman, of Broverman & Podeschi, P.C., of Taylorville, for appellee.
   PRESIDING JUSTICE LEWIS

delivered the opinion of the court:

William Giles, petitioner herein, appeals from an order of the circuit court granting the motion of his former wife, Lena Giles, the respondent, to dismiss his petition to terminate maintenance payable to her. At issue is whether the conditions governing the termination of maintenance set forth in the parties’ marital settlement agreement approved by the trial court supersede the statutory provision concerning termination of maintenance set forth in section 510 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 510) (hereafter referred to as the Act).

On January 16, 1985, the trial court entered a judgment of dissolution of the marriage of the parties in which it expressly approved the property settlement and support agreement into which the parties had entered the day before. The property settlement and support agreement provides that during his lifetime the petitioner shall pay the respondent the sum of 50% of his net income each month, which monthly sum shall be not less than $500 nor more than $1,000. The agreement provides further that “[s]aid monthly support and maintenance shall continue to be paid by First Party [petitioner] until the death or remarriage of Second Party [respondent].” On June 27, 1988, the petitioner filed his petition to terminate spousal maintenance, alleging that on March 11, 1988, the respondent had commenced cohabitation with a certain man on a resident, continuing, conjugal basis that had continued until the date of the filing of the petition. Petitioner alleged further that section 510(b) of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 510(b)) provides that cohabitation on a resident, continuing, conjugal basis constitutes grounds for termination of spousal maintenance and sought termination of his obligation to pay spousal maintenance.

Section 510(b) provides:

“Unless otherwise agreed by the parties in a written agreement set forth in the judgment or otherwise approved by the court, the obligation to pay future maintenance is terminated upon the death of either party, or the remarriage of the party receiving maintenance, or if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.”

We note that, effective July 1, 1988, subparagraph (b) of section 510 was redesignated as subparagraph (c). (Ill. Ann. Stat., ch. 40, par. 510, Historical Note, at 175 (Smith-Hurd Supp. 1989).) In her motion to dismiss the petition, the respondent alleged that the parties’ property settlement and support agreement set forth the exclusive conditions for the termination of maintenance. Respondent alleged that the provisions of section 510(b) can be superseded where the parties have not included a provision in the written agreement that maintenance shall cease if the wife cohabits with another person on a resident, continuing, conjugal basis and that in this case the parties “otherwise agreed” to the exclusive reasons for termination of maintenance.

A hearing was held on the respondent’s motion to dismiss at which the petitioner called two witnesses, namely, the respondent and Thomas E. Doyle, the attorney who had represented petitioner during the proceedings pertaining to the dissolution of the marriage. Respondent testified that at the time the marital settlement argument was entered into she did not discuss with her attorney anything about cohabitation with another person. Thomas Doyle testified with regard to the drafting of the marital settlement agreement that he and the respondent’s attorney had worked on it “together” and that the subject of cohabitation was not ever discussed.

The property settlement and support agreement provides as follows in paragraph one:

“THAT each of the parties is fully and completely informed of the financial and personal status of the other, and that each of them has had the advise [sic] of counsel, First Party having had the advise [sic] of counsel of his attorneys, TAYLOR, DOYLE, AND FRALEY, Attorneys at Law, Taylorville, Illinois, and the Second Party has had the advise [sic] and counsel of her attorney, JOHN V. FREEMAN, Attorney at Law, Shelbyville, Illinois, and that each of said parties has given full and mature thought toward the making of this agreement and of all their respective obligations, rights and duties contained herein, and that each of said parties understand [sic] that the agreement and obligations assumed by the other are assumed with the express understanding and agreement that they are in full and complete satisfaction of all the obligations which each of the said parties now has or might hereafter [sic] toward the other.”

The agreement is signed by both of the parties.

In an entry on the record sheet the trial court found that, contrary to the assertions of the petitioner, the case of In re Marriage of Tucker (1986), 148 Ill. App. 3d 1097, 500 N.E.2d 578, applies to the instant one and granted the respondent’s motion to dismiss. This appeal followed. Without setting forth a statement of the issue presented for review, petitioner contends on appeal that a party cannot waive the statutory right to termination of spousal maintenance pursuant to section 510(b) of the Act for the reason of cohabitation without specific mention of the right waived and a clear showing of the intent to waive that right. Petitioner argues that, in the absence of discussion of cohabitation as a basis for termination of maintenance, he could not have intended to waive that right and that the trial court’s ruling that the property settlement and support agreement contained the exclusive basis for termination of spousal maintenance should accordingly be reversed.

In Tucker a written separation agreement between the parties, which provided in part for the former wife’s maintenance and support, was ordered to be incorporated by reference into the judgment for dissolution of the parties’ marriage. Thereafter the former husband filed a petition to terminate maintenance for the reason that the former wife was cohabiting with another person on a resident, continuing, conjugal basis in violation of section 510(b) of the Act. The separation agreement in Tucker provided that maintenance payments were to continue “ ‘until the first to happen’ ” (emphasis in original) (Tucker, 148 Ill. App. 3d at 1098, 500 N.E.2d at 579) of three listed events: the death of the former wife, her remarriage, or payment by the former husband of the 121st monthly installment. The court in Tucker determined that the agreement set forth exclusive conditions for the termination of maintenance that took precedence over the provisions of the Act pertaining to termination of maintenance. The court observed that the parties had entered into an agreement providing for the termination of maintenance payments only upon the former wife’s death or remarriage or at the end of 10 years and that the court had approved the agreement and had ordered it incorporated into the judgment for dissolution. The Tucker court concluded that the provisions of the agreement showed clearly that the parties did not intend to have the provisions of section 510(b) pertaining to termination of maintenance apply and that cohabitation was not a condition for termination of maintenance under the settlement agreement.

Recently, following Tucker, the court in In re Marriage of Arvin (1989), 184 Ill. App. 3d 644, 540 N.E.2d 919, determined that the omission from a marital settlement agreement of conjugal habitation as a condition for termination indicated that the parties did not intend to have this statutory condition apply. In Arvin the judgment for dissolution of the parties’ marriage incorporated the terms of the marital settlement agreement, which provided for the payment of maintenance “ ‘terminable upon the wife’s remarriage or upon the wife’s death’ ” (Arvin, 184 Ill. App. 3d at 646, 540 N.E.2d at 921).-The court in Arvin concluded that, under the terms of the agreement, conjugal cohabitation was not a basis for the termination of maintenance.

Here, as in Arvin, the terms of the marital settlement agreement provide for the termination of maintenance upon the death or remarriage of the recipient. In neither Arvin nor Tucker was there an express waiver of conjugal cohabitation as a condition for the termination of maintenance. Citing In re Marriage of Popovich (1986), 149 Ill. App. 3d 643, 500 N.E.2d 1109, petitioner states that waiver is a voluntary relinquishment of a known right, which will not be inferred in the absence of a clear, unequivocal, and decisive act and that maintenance is a valuable right, waiver of which will not be presumed without an express and explicit waiver. In Popovich, which is distinguishable from the instant case, the judgment of dissolution contained neither a reservation of maintenance nor an express waiver of it. In a post-judgment proceeding the trial court had awarded maintenance to the former wife; on appeal the former husband had urged that, because there was no reservation of the question of maintenance in the judgment order, it should be presumed that the former wife had waived her right to maintenance. The court upon review concluded that the record as a whole demonstrated no waiver of maintenance. In the instant case there is, of course, no claim that the valuable right of maintenance has been waived. On the contrary, the parties have expressly provided in clear and unequivocal language for maintenance and for its termination upon the occurrence of either of two conditions, the death or the remarriage of the respondent. Even if Popovich were deemed to have application here, we think that the execution of this agreement, voluntarily signed by both parties, who were each represented by counsel, constitutes a clear, unequivocal, and decisive act from which it may be inferred that petitioner waived conjugal cohabitation as a condition for the termination of maintenance, having otherwise agreed that maintenance would be terminable only upon the respondent’s death or remarriage. As the trial court stated at the hearing on respondent’s motion to dismiss,

“The parties were both represented by counsel and the attorneys knew what the law was and the attorneys chose to word it differently from what the statute said. By doing so I think there is an intent that is what was intended by the parties and what was intended by the attorneys.”

In the instant case, as in Arvin and Tucker, under the terms of the marital settlement agreement approved by the court, conjugal cohabitation is not a basis or condition for the termination of maintenance.

We note that after the trial court entered its order granting the respondent’s motion to dismiss the petition for the termination of spousal maintenance, the petitioner filed both a petition to modify the marital settlement agreement because of a substantial change in circumstances and a petition to vacate or invalidate this agreement by virtue of his recent confinement in a psychiatric ward prior to signing it. The record indicates that the trial court made no rulings concerning either of these two petitions, and no relief is sought with regard to them. Hence, we make no determination with respect to the matters raised therein.

Affirmed.

RARICK and CHAPMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE CHAPMAN

license: Public Domain

text:
    OSCAR E. DENNY et al., Plaintiffs-Appellants, v. PAUL M. HAAS, St. Clair County Treasurer and Trustee of Indemnity Fund, Defendant-Appellee.
    Fifth District
    No. 5—88—0703
    Opinion filed April 27, 1990.
    Thomas A. Cipolla, of Sestric & Cipolla, of St. Louis, Missouri, for appellants.
    John Baricevic, State’s Attorney, of Belleville (Jeffrey R. Glass, Assistant State’s Attorney, of counsel), for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Plaintiffs Oscar and Margaret Denny filed a complaint against Paul M. Haas, the St. Clair County treasurer, pursuant to section 247a of the Revenue Act of 1939 (Revenue Act) (Ill. Rev. Stat. 1985, ch. 120, par. 728a) seeking indemnity for the loss of real property by reason of the issuance of a tax deed. Plaintiffs alleged in their third amended complaint that they were the owners of the residence in question and that Oscar Denny had not lived there since he and Margaret were divorced in 1982. The complaint further alleged that Oscar Denny was not properly served with notice of the petition for tax deed and that Margaret Denny, although served, did not understand the significance of the proceedings. Plaintiffs also alleged that the affidavit in support of the application for tax deed incorrectly stated that both Oscar and Margaret Denny resided on the premises and were properly served with notice. On November 13, 1985, a tax deed was issued, and Margaret Denny was thereafter served with a writ of assistance on March 4, 1986. Plaintiffs’ complaint asserts that they are now barred from bringing an action for recovery of the property and that the losses they sustained were not due to their own fault or negligence. Defendant Haas filed what was styled as a “motion to dismiss for failure to state a cause of action,” which stated:

“1. Plaintiff brings this action pursuant to the Revenue Code.
2. The Revenue Code provides indemnity for failure or negligence of St. Clair County.
3. St. Clair County served notice personally on Margaret Denny and Oscar Denny through Margaret Denny.
4. If service is deficient that defense should have been raised at the time of the application for a tax deed.
5. Tom Bauer was subpoenaed to that hearing and prepared to testify how the service was made.
6. Failure by the plaintiff to raise proper defense in a separate proceeding is not grounds for a claim pursuant to Chapter 120, Paragraph 728(a) of the Revenue Code.”

The trial court dismissed the complaint, and plaintiffs now appeal, contending that the motion to dismiss was improper and that the trial court erred in granting it. Defendant argues that the court properly construed his motion as a motion for involuntary dismissal under section 2 — 619 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619). Moreover, defendant claims that plaintiffs are not entitled to relief under section 247a of the Revenue Act because they failed to pursue all available remedies in the underlying tax deed proceeding. Specifically, defendant maintains that plaintiffs filed a timely petition for relief from judgment under section 2 — 1401 of the Code which was later dismissed with prejudice by stipulation of the parties. As related below, however, we are unable to decide this issue because: (1) the record of the underlying tax deed judgment is not properly before this court; and (2) it is not clear whether defendant’s motion even raised the issue of plaintiffs’ dismissal of their section 2 — 1401 petition. For the reasons stated below, we reverse and remand.

In the court below, the defendant failed to designate whether his motion to dismiss was brought under section 2 — 615 or section 2— 619 of the Code. “Meticulous practice dictates that a lawyer specifically designate whether his motion to dismiss is pursuant to section 2 — 615 or section 2 — 619.” (Eddings v. Dundee Township Highway Commissioner (1985), 135 Ill. App. 3d 190, 199, 478 N.E.2d 888, 894.) Moreover, this is not a case where the defendant’s neglect in designating the proper code section resulted in a mere technical violation of the rules. Indeed, the procedure employed in this case has resulted in an appeal in which we are unable to address the merits of the substantive issue raised due to the incomplete state of the record presented.

While defendant’s motion is captioned as a motion to dismiss for failure to state a cause of action, suggesting that it was brought pursuant to section 2 — 615 of the Code, the defendant has apparently recognized that such a motion would not prevail, and argues that the trial' court must have construed his motion as one for involuntary dismissal under section 2 — 619. Defendant contends that his motion was brought pursuant to section 2 — 619(a)(9), which provides for dismissal when plaintiffs’ claim is barred by an affirmative matter defeating the claim. Such a motion, however, must be supported by affidavit when the grounds for dismissal do not appear on the face of the pleading attacked. Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a); Premier Electrical Construction Co. v. La Salle National Bank (1983), 115 Ill. App. 3d 638, 643, 450 N.E.2d 1360, 1363.

While it is certainly not clear from the motion, defendant maintains that the affirmative matter asserted in the motion is the plaintiffs’ failure to pursue their remedy under section 2 — 1401. While this ground for dismissal does not appear on the face of plaintiffs’ complaint, defendant contends that no affidavit was necessary because the trial court could take judicial notice of its own court file in the underlying tax deed proceeding. While we agree that the court could do so, there is nothing in the record on appeal which shows that defendant asked the court to do so, nor is there anything to suggest that the court in fact took such judicial notice. The trial court’s order merely states that the motion to dismiss is granted, without any explanation of the basis for dismissal. Moreover, while defendant devotes the majority of his appellate brief to the argument against allowing indemnity under section 247a of the Revenue Act when plaintiffs have dismissed their section 2 — 1401 petition to set aside the tax deed, we are unable to address that issue because the record before us does not include the underlying tax deed proceedings. Although defendant has included a copy of the court file in the tax deed proceedings in an appendix to his brief, such attachments to briefs which are not otherwise of record are not properly before a reviewing court and cannot be used to supplement the record. Etten v. Lane (1985), 138 Ill. App. 3d 439, 442, 485 N.E.2d 1177, 1179.

While the substantive issue in this case yet awaits resolution, we hope this case illustrates the problems created by a lack of precision in preparing motions to dismiss. The need for precision, of course, does not end at the trial court; therefore, we wish to clarify the bases of our decision. We do not reverse this case solely because of the defendant’s failure to designate whether his motion to dismiss was brought pursuant to section 2 — 615 or section 2 — 619, although we caution against assuming we will not do so in the future. Although the confusion engendered by the failure to identify the motion favors reversal, we find that the defendant’s failure to support his motion with the affidavit required under section 2 — 619 mandates reversal under the facts of this case. If an affidavit relating the facts of plaintiffs’ purported dismissal of their section 2 — 1401 petition had been filed, and if the trial court had been asked to take judicial notice of the underlying tax deed proceedings, then not only would plaintiff have had the opportunity to file counter-affidavits (see Premier, 115 Ill. App. 3d at 643, 450 N.E.2d at 1363), but this court would have been presented with a proper record from which we could have decided the substantive issue presented by this case. Indeed, as it stands now, it is not clear that defendant’s motion to dismiss even raised the issue of the effect of plaintiff’s aborted section 2 — 1401 petition. In this respect we echo the statement of the court in Eddings:

“It is not the reviewing court’s responsibility to unravel the record to suit the whims of the litigants depending upon which forum they address and what argument at the time best fits their contention. *** [Wjhere prejudice results from such an improper motion practice, we will reverse without addressing the merits of the motion as argued on appeal. Prejudice to the plaintiffs is evident, and although no objection was raised below by plaintiffs, this court may ignore the waiver rule.” Eddings, 135 Ill. App. 3d at 200, 478 N.E.2d at 895.

Accordingly, we reverse the order of the circuit court dismissing plaintiffs’ complaint and remand for further proceedings. We express no opinion on whether the cause can be decided prior to trial on a properly brought motion.

Reversed and remanded.

RARIGK and GOLDENHERSH, JJ., concur.


author: JUSTICE GOLDENHERSH

text:
    BANKERS TRUST COMPANY, as Trustee, Plaintiff-Appellant, v. ST. CLAIR COUNTY ZONING BOARD OF APPEALS et al., Defendants-Appellees.
    Fifth District
    No. 5—88—0087
    Opinion filed April 30, 1990.

      Daniel J. Hayes, of Belleville, for appellant.
    John Baricevic, State’s Attorney, of Belleville, for appellees.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, Bankers Trust Company, trustee under trust No. 22— 2257, appeals from an order of the circuit court of St. Clair County affirming defendant St. Clair County Board’s (Board’s) denial of its special use permit for a planned unit development, a mobile home park. Plaintiff raises the issue of whether the decision of the circuit court was against the manifest weight of the evidence. This court affirms.

On February 23, 1987, plaintiff filed a petition for a zoning amendment and a petition for a special permit before the St. Clair County Zoning Board of Appeals (Zoning Board) requesting a rezoning of property from agricultural to MH1 (mobile homes) and for a planned unit development (mobile home park). The Zoning Board recommended the zoning changes. However, the Board denied this request. Subsequently, plaintiff filed this action in the circuit court requesting that the Board’s action be declared null and void.

On January 14, 1988, the circuit court entered an order denying plaintiff’s request. The court stated:

“After considering the testimony and exhibits as they apply to the law in this case, the Court finds that the opinions of both the plaintiff and the St. Clair County Board are reasonable and justifiable, and therefore it cannot be said that plaintiff has proved his case by clea^ and convincing evidence as required. Under such circumstances, the legislative determination of the county board is conclusive. This Court finds no need in this case to impinge upon the county’s power to determine zoning classifications.”

From that order, plaintiff appeals. Since plaintiff appeals only from the Board’s denial of the zoning amendment, this court will refer only to defendant St. Clair County Board and its decision.

The issue before this court is whether the order of the circuit court was against the manifest weight of the evidence. It is well established that a “zoning ordinance is presumed valid, and a party attacking such an ordinance has the burden of overcoming this presumption with clear and convincing evidence that the ordinance, as applied to the property in question, is arbitrary and unreasonable, and has no substantial relation to the public health, safety, morals or welfare.” (Matloob v. Village of Cahokia (1980), 84 Ill. App. 3d 319, 321, 405 N.E.2d 396, 398.) In Matloob, the court reiterated the factors to be considered in such a determination. These factors are:

(1) the existing uses and zoning of nearby property;
(2) the reduction in property value resulting from the zoning restriction complained of;
(3) the extent to which the lessened value of the site promotes the general health, safety and welfare of the public;
(4) the relative gain to the public as opposed to the hardship to the owner;
(5) the suitability of the property for its zoned purpose; and
(6) the length of time the property has remained vacant, as zoned, in the context of other land development in the area. See 84 Ill. App. 3d at 322, 405 N.E.2d at 398-99.

To address the issue, this court will summarize each party’s position for each factor. Regarding factor one, both parties agree that the areas surrounding the property are residential, agricultural and commercial, and have a mobile home park nearby.

For the second factor, plaintiff’s expert stated that the highest and best use for the property is residential development including a mobile home park. Plaintiff’s expert also stated that as the property exists, the maximum value is $2,000 per acre but, if rezoned as proposed, the property would be worth at least $5,000 per acre. Two of plaintiff’s experts also stated that there was a high demand for mobile home-zoned property.

The Board argues the testimony did not reveal that plaintiff will lose money from the property as zoned. The return that a party would receive from a different zoning classification does not establish hardship or injustice in the existing zoning classification. (Doty v. City of Rockford (1979), 73 Ill. App. 3d 255, 260, 391 N.E.2d 586, 590.) Furthermore, proof of a very large difference in value is in itself insufficient to overcome the presumption of validity in zoning ordinances. Du Page Trust Co. v. County of Du Page (1975), 31 Ill. App. 3d 993, 999, 335 N.E.2d 61, 65.

The third factor requires evaluation of whether the lessened value of the site or rather the proposed use of the site promotes the general health, safety and welfare of the public. Plaintiff argues that the court in First National Bank v. Village of Skokie (1967), 85 Ill. App. 2d 326, 229 N.E.2d 378, held that “while the school situation might be a factor to be considered ***, it cannot be conclusive.” (85 Ill. App. 2d at 339, 229 N.E.2d at 385.) The court added “that additional burdens on responsible governmental bodies may not properly justify otherwise unreasonable, arbitrary, and discriminatory restrictions on the use of private property.” (85 Ill. App. 2d at 339, 229 N.E.2d at 385.) Quoting La Salle National Bank v. Village of Skokie (1962), 26 Ill. 2d 143, 146, 186 N.E.2d 46, 48, the court stated: “Because of urban concentration, coupled with the population explosion, practically every school district is beset with the problem of keeping facilities abreast of enrollment, regardless of whether it is developed as a single-family or multiple-dwelling community.” (85 Ill. App. 2d at 339-40, 229 N.E.2d at 385.) The Board’s experts stated that the local school could not physically accommodate the increase in students as a result of the zoning change.

Regarding the traffic consideration, plaintiff points out that the highway (Route 158) is under State jurisdiction and as such there is a sufficient tax base to make the necessary improvements and traffic control to handle the additional traffic. Plaintiff cites LaSalle Na tional Bank v. Village of Skokie (1962), 26 Ill. 2d 143, 186 N.E.2d 46, in which the court stated:

“While we have recognized traffic as a factor, it is not in itself entitled to too much weight since it is a problem in all but the most sheltered neighborhoods and is constantly getting worse.” (26 Ill. 2d at 146, 186 N.E.2d at 48.)

Regarding the increased demand on the local police department, plaintiff argues that the argument for banning people from the county is not a reasonable restriction.

The Board points out that the proposed park will affect traffic density and the police department’s capability to adequately handle the increased number of calls. The Board argues that such considerations are valid factors for it to consider in its desire to control the population density. (See La Salle National Bank v. City of Evanston (1974), 57 Ill. 2d 415, 430, 312 N.E.2d 625, 633.) Defendant also points out that the court in Matloob reiterated LaSalle and added: “While this factor [the increased burden on city services] alone may not be conclusive, it tends to show that the zoning ordinance is not arbitrary and unreasonable.” Matloob, 84 Ill. App. 3d at 323, 405 N.E.2d at 400.

The fourth factor requires a comparison of the relative gain to the public as opposed to the hardship to the owner. Plaintiff’s expert stated that the value of the property per acre as agricultural ($2,000) is far less than as a mobile home park ($5,000). Regarding the relative gain to the public, plaintiff argues that the public would not realize any gain by leaving the area as farmland. Plaintiff argued that the mobile home park as proposed with restrictions would not have a detrimental effect upon the surrounding residential properties. The proposed mobile home park would require that the mobile homes be secured to a concrete pad and have a “skirt” around the bottom of the unit. The covenants in the proposed leases prohibit clutter and obligate each tenant to keep the area around the unit neat. Each unit in the park must have a gabled roof. No flat roofs are permitted. Each unit will be spaced farther apart to allow for better landscaping. The mobile home park will also have sidewalks, a swim pool, a recreation center, park and lake.

Plaintiff’s expert stated further that mobile home parks do not affect the value of the surrounding properties. He relied on a study made in the San Jose, California, area and also relied on his personal experience because he, as a trustee, had owned lots ne.ar a mobile home park. When the lots were sold, no discount was given to those lots closer to the mobile home park.

The Board contends that the weight of the evidence does not support plaintiff’s claim that the surrounding properties will not be affected. The Board states that the use by plaintiff’s expert of the California study is spatially remote and not factually comparable.

The Board’s expert stated that studies reveal those properties closest to a mobile home park are most affected. He had studied 130 homes in three other neighborhoods in the county, examining the price paid for those homes over the past 10 years. He concluded that the value of the residential properties closest to the mobile home parks increased at a slower rate than those residential properties farther away from the park.

The fifth factor concerns the suitability of the property for its zoned purpose. Plaintiff argues that the property is suitable for a mobile home park which has ample areas for a park, lake, pavilion, clubhouse and green areas at the borders. Plaintiff’s expert witness, an engineer, stated that the property could be adequately drained. The Board argues that the property is good as agricultural land.

The sixth factor, the length of time the property has remained vacant as zoned, is not relevant because the property has been used for agricultural purposes.

In Matloob, the court also stated that there are intangible factors which must be reviewed. These factors include “the care with which the legislative body planned its land-use development and the community need for the use proposed by the property owner.” (84 Ill. App. 3d at 322, 405 N.E.2d at 399.) The court pointed out, however, that the “primary importance is to be given to whether the land in question is zoned in conformity with surrounding existing uses.” 84 Ill. App. 3d at 322, 405 N.E.2d at 399.

Plaintiff presented testimony that the zoning committee’s approach has been hit-and-miss because it only grants 25 requests for individual mobile homes per year but not for a mobile home park. Plaintiff points out that the General Assembly has recognized the need for the development of mobile home parks with the passage of the Mobile Home and Mobile Home Park Act (Ill. Rev. Stat. 1985, ch. HV-k, pars. 711 through 737).

Although the Board did not respond to the argument, the record reveals that defendant has acknowledged the need for development of mobile home parks. Testimony revealed that defendant did grant zoning changes not only for individual mobile home sites but also mobile home parks.

In Matloob, the court adequately addressed this court’s duty when reviewing such cases. The court stated:

“The courts are strictly limited in their review of zoning cases, since they must carefully avoid impinging upon the municipality’s power to determine zoning classifications. [Citations.] Thus, the plaintiff must establish that the zoning ordinance is arbitrary and unreasonable, not merely that the property could be zoned under a different classification or that the court would classify it differently. [Citation.] Similarly, it is not enough for plaintiff to show hardship, or that the desired use would not substantially impair public health, safety or welfare.” Matloob, 84 Ill. App. 3d at 322, 405 N.E.2d at 399.

In this case, the Board has presented reasonable arguments in denying the zoning change as well as in exercising its authority to control location to best promote the welfare of the general public in the county.

Plaintiff has also presented reasonable arguments supporting its project and urging reversal of the zoning decision. Both have presented adéquate evidence to justify these positions. In light of the record and each party’s arguments, this court agrees with the trial court that the arguments on both sides are reasonable, and as such, “[i]n the event that the evidence accommodates a legitimate difference of opinion, the legislative judgment must prevail.” Du Page Trust Co. v. County of Du Page (1975), 31 Ill. App. 3d 993, 999, 335 N.E.2d 61, 65.

For the foregoing reasons, the judgment of the circuit court of St. Clair County is affirmed.

Affirmed.

WELCH and RARICK, JJ., concur.


author: JUSTICE RARICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WELDON WADE LEWIS III, Defendant-Appellant.
    Fifth District
    No. 5—88—0635
    Opinion filed May 2, 1990.
    Daniel M. Kirwan and Janet L. Gandy, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Kathleen Ailing, State’s Attorney, of Mt. Vernon (Kenneth R. Boyle, Stephen E. Norris, and Matthew E. Franklin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

Defendant, Weldon Wade Lewis III, was charged in the circuit court of Jefferson County with having murdered his wife, Diane Lewis. Following a bench trial on December 31, 1986, defendant was found guilty but mentally ill. At his sentencing hearing a victim impact statement written by the victim’s sister, Judy Chamblis, and also signed by her parents, Charles and Hazel Prince, was filed pursuant to section 6 of the Bill of Rights for Victims and Witnesses of Violent Crime Act (Act) (Ill. Rev. Stat. 1987, ch. 38, par. 1406). The court sentenced defendant to 25 years’ imprisonment. No direct appeal was taken from the conviction. Defendant filed a pro se post-conviction petition on April 19, 1988, and a hearing was held on July 13, 1988. The court denied his petition, and defendant appeals from that denial.

Defendant makes two major contentions. First, the section of the Act allowing family members to submit victim impact statements violates both the Constitution of the United States and the Illinois Constitution, specifically, the principles of due process of law and equal protection (U.S. Const., amends. V, XIV; Ill. Const. 1970, art. I, §2), as well as the eighth amendment of the United States Constitution, and section 11 of article I of the Illinois Constitution. Second, aside from the constitutional issues, the victim impact statement was improperly admitted at the sentencing hearing because it contained irrelevant and prejudicial material.

Defendant relied primarily on the United States Supreme Court decision in Booth v. Maryland (1987), 482 U.S. 496, 96 L. Ed. 2d 440, 107 S. Ct. 2529, to support his constitutional claim. In Booth, the court held that admission of a victim impact statement in the sentencing phase of a capital trial violates the eighth amendment. Defendant contends our supreme court has never addressed the issue of whether the holding in Booth extends to noncapital cases as well. On the contrary, the supreme court of Illinois in two recent decisions has held victim impact statements do not violate a defendant’s constitutional rights in noncapital cases. (People v. Felella (1989), 131 Ill. 2d 525, 546 N.E.2d 492; People v. Turner (1989), 128 Ill. 2d 540, 539 N.E.2d 1196.) Both cases involved a victim impact statement submitted by family members of a murder victim. The court in Turner specifically held that allowing a victim impact statement at a noncapital sentencing did not violate the defendant’s constitutional rights. (128 Ill. 2d at 578, 539 N.E.2d at 1213.) That holding was reaffirmed shortly thereafter in Felella. (Felella, 131 Ill. 2d at 535-36, 546 N.E.2d at 496.) Likewise, in Booth, the Supreme Court stated “[f]acts about the victim and family also may be relevant in a non-capital criminal trial.” (Booth, 482 U.S. at 507 n.10, 96 L. Ed. 2d at 451 n.10, 107 S. Ct. at 2535 n.10.) In light of these cases, we hold that the introduction of the victim impact statement did not violate defendant’s constitutional rights.

Next, defendant contends the trial court improperly admitted the victim impact statement since it contained irrelevant and highly prejudicial material. We first note that unless a claim is of a constitutional proportion, a defendant cannot raise the issue in a post-conviction proceeding. (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 1; People v. Hines (1979), 71 Ill. App. 3d 553, 555, 390 N.E.2d 37, 38; People v. McCollum (1979), 71 Ill. App. 3d 531, 532, 390 N.E.2d 16, 17.) Defendant claims because his trial counsel and post-conviction hearing counsel failed to object to the victim impact statement, he was afforded ineffective assistance of counsel, raising this issue to a constitutional level. However, considering that a victim impact statement is permitted by statute and its constitutionality has been repeatedly upheld, counsel’s failure to object to its use in a noncapital case does not constitute ineffective assistance. See People v. Van Ostran (1988), 168 Ill. App. 3d 517, 522 N.E.2d 851. See also Felella, 131 Ill. 2d 525, 546 N.E.2d 492; Turner, 128 Ill. 2d 540, 539 N.E.2d 1196.

Nonetheless, defendant contends the material contained in the victim impact statement was irrelevant since it focused on the relatives of the victim. The Act defines “victim” as “the spouse, parent, child or sibling of a person killed as a result of a violent crime perpetrated against the person killed.” (Ill. Rev. Stat. 1987, ch. 38, par. 1403(a)(3).) Under this section, members of a victim’s family are victims in their own right. Certainly any impact on them is a relevant and proper factor which may be considered by a court in imposing sentence. (See Van Ostran, 168 Ill. App. 3d at 523, 522 N.E.2d at 854-55.) The legislature, in enacting such language, recognized that the harm flowing from the defendant’s criminal act affects not only the victim but also the victim’s immediate family. Clearly the legislature intended that the impact of a murder on a victim’s family could be considered, and our supreme court, as noted earlier, has upheld the validity of such considerations.

Obviously, in any murder case, the impact on the family will have emotional and psychological aspects, and these will be evident in an impact statement. When faced with emotionally charged evidence, a trial court is capable of determining the appropriateness and reliability of evidence received at a sentencing hearing and of giving that evidence its proper weight. (See People v. Fountain (1989), 179 Ill. App. 3d 986, 1000, 534 N.E.2d 1303, 1312.) We note too that the rigid rules of evidence need not be followed in sentencing hearings. (See People v. Jones (1982), 94 Ill. 2d 275, 284-86, 447 N.E.2d 161, 165-66. See also People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344.) In this instance, the record clearly indicates the trial court considered other factors in sentencing defendant, including several factors in mitigation, and there is no indication that it placed undue weight on the victim impact statement.

For the foregoing reasons, the judgment of the circuit court of Jefferson County is affirmed.

Affirmed.

CHAPMAN and HOWERTON, JJ., concur.


author: JUSTICE HOWERTON JUSTICE RARICK,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. BENNIE McCLERREN, d/b/a B.M. Motors, Defendant-Appellee.
    Fifth District
    No. 5—88—0330
    Opinion filed May 3, 1990.
    RARICK, J., dissenting.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Karen S. Rosenwinkel, Assistant Attorney General, of Chicago, of counsel), for appellant.
    No brief filed for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

Plaintiff, the People of the State of Illinois, sued defendant, a used-car dealer, for rolling back the mileage on the odometers of used cars. The complaint alleged violations of the Consumer Fraud and Deceptive Business Practices Act, the Uniform Deceptive Trade Practices Act, and the Motor Vehicle Information and Cost Savings Act of 1972. Ill. Rev. Stat. 1983, ch. 121V2, par. 261 et seq.; Ill. Rev. Stat. 1983, ch. 121V2, par. 311 et seq.; 15 U.S.C. §1988 (1988); 49 C.F.R. §580 (1986).

During discovery, plaintiff filed a request for admission of facts (107 Ill. 2d R. 216) asking defendant to admit or deny whether certain odometer readings on cars were lower when he sold them than when he originally purchased them. The request also asked defendant to admit or deny that he and/or his agents or employees had complete control over these cars at all relevant times and that defendant failed to provide his customers with proper transfer titles.

Defendant received a 14-day extension of time to file his response. However, he did not file his response until 10 days after his extension had expired.

Plaintiff filed a motion for summary determination of major issues pertaining to all facts set forth in the request for admission. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1005(d).) The circuit judge entered an order finding that “pursuant to Supreme Court Rule 216C [sic] *** Request for Admissions filed by the state *** is deemed admitted, in total.” 107 Ill. 2d R. 216(c).

At trial, plaintiff failed to introduce the admitted facts into evidence. Thus, when plaintiff’s counsel referred to the facts deemed admitted during closing argument, the court ruled that those facts were not before it. Defendant presented no evidence at trial.

The court entered judgment for defendant and plaintiff appeals. We affirm.

Plaintiff argues that the circuit court erred in requiring plaintiff to introduce the admitted facts into evidence where the court had previously deemed the truth of those matters admitted. We do not agree.

Plaintiff’s difficulty may lie in the usage made of the word “admitted.” We believe that when the word “admitted” is used in the sense that facts are admitted or deemed admitted under Supreme Court Rule 216, it means that the facts are agreed to be true, or are taken as true. But, when the word “admitted” is included in the commonly used phrase, “admitted into evidence,” the word means introduced into evidence.

Courts are to decide a case only on the evidence in that particular case. (People v. Yarbrough (1982), 93 Ill. 2d 421, 444 N.E.2d 493.) Neither testimony nor physical objects are evidence unless they are produced, introduced, and received in a trial. Here, the facts admitted by the defendant’s failure to respond to the request for admission were not produced, not introduced, and not received in the trial of the case.

If plaintiff’s position were accepted, then a party who obtained an admission would be bound by its evidentiary effect. We believe instead that the party should retain the option of either making use of or not making use of the admission as seems advantageous.

Further, the law is clear that if a party wishes to rely on a requested but not answered admission, that party must at some point during the trial introduce his opponent’s failure to answer before such failure can have any effect. People ex rel. Reynolds v. Aldridge (1982), 107 Ill. App. 3d 679, 437 N.E.2d 1268.

Therefore, the circuit court was correct in its determination that the facts deemed admitted during discovery were not before it.

Affirmed.

CHAPMAN, J., concurs.

JUSTICE RARICK,

dissenting:

Because of the confusion with respect to the trial court’s order and the ambiguity of the record in general, coupled with defendant’s failure to even file a brief on appeal to protect the judgment entered in his favor, I must dissent.

It has long been accepted that this court may, in its discretion, determine a case on the merits or reverse without further consideration or discussion when a party who prevails in the trial court does not appear or file a brief in accordance with Supreme Court Rule 341 (113 Ill. 2d R. 341). (See, e.g., People v. Rincon (1975), 26 Ill. App. 3d 842, 843, 326 N.E.2d 142, 142; People ex rel. Pullman Bank & Trust Co. v. Fitzgerald (1973), 14 Ill. App. 3d 247, 248, 302 N.E.2d 429, 430. See also Ottwell v. Ottwell (1988), 167 Ill. App. 3d 901, 903, 522 N.E.2d 328, 329; Hall v. Baum Corp. (1973), 12 Ill. App. 3d 755, 756, 299 N.E.2d 156, 157.) We are not obligated to act as an advocate or search the record to affirm the judgment of the trial court. (See First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495. See also Standard Management Realty Co. v. Johnson (1987), 157 Ill. App. 3d 919, 923, 510 N.E.2d 986, 989.) This is especially true when the claimed errors in question are not of the type easily decided without the aid of an answering brief. (See North Shore Marine, Inc. v. Engel (1980), 81 Ill. App. 3d 530, 537, 401 N.E.2d 269, 275. See also First Capitol, 63 Ill. 2d at 133, 345 N.E.2d at 495.) I believe this is such a case.

Here, the State submitted a request for admission of facts to which defendant failed to file timely a response, even with an extension. The State then filed a request for summary determination of major issues. The trial court responded with an order labeled “Partial Summary Judgment” but couched in the words of Rule 216(c). The order as labeled appears to grant the State’s request, thereby precluding the necessity of introducing formally the admitted facts. (See Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1005(d).) Although I believe the label more accurately should have mirrored the title of the State’s request (see Equal Employment Opportunity Comm’n v. Sears, Roebuck & Co. (7th Cir. 1988), 839 E2d 302, 353 n.53), my concern lies in the language used in the body of the order itself. The order as written creates enough ambiguity on the record to prevent me from ruling summarily that the trial court did not err in refusing to recognize the admitted facts, particularly since we are dealing with a bench trial setting. Further ambiguity arises from references found toward the end of the hearing to a discussion wherein the State much earlier in the proceedings apparently asked the court to look at the facts deemed admitted, a discussion which seems not to have been recorded or transcribed. Given the state of the record before us, I simply cannot affirm the judgment without defendant having even filed an answering brief. For these reasons, I must dissent.

       In response to a question from the court, plaintiff’s counsel indicated during his closing argument that he thought he had asked the court to take notice of the request for admissions but “there was a very confusing exchange” and “it’s just very unclear.” Plaintiff does not argue on appeal that the court was asked to take notice of the facts deemed admitted and the record does not include a transcript of the trial proceedings.

       Had the circuit court granted the requested summary determination of issues under section 2 — 1005(d) rather than issuing an order deeming the facts admitted pursuant to Supreme Court Rule 216(c), the admitted facts would have been established and properly before the court and we would necessarily reverse. Under section 2 — 1005(d), “[i]f the court determines that there is no genuine issue of material fact as to one or more of the major issues in the case *** [u]pon the trial of the case, the facts so specified shall be deemed established, and the trial shall be conducted accordingly.” (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1005(d).) The plaintiff does not argue, however, that the court’s order, which was captioned as a “Partial Summary Judgment,” was in fact a summary determination of major issues.


author: JUSTICE McCULLOUGH

text:
      In re T.L.D., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. T.L.D., a Minor, Respondent-Appellant).
    Fourth District
    No. 4—89—0738
    Opinion filed May 9, 1990.
    Daniel D. Yuhas and Arden J. Lang, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Respondent minor T.L.D. was adjudicated delinquent for committing retail theft from Oseo Drug and T.J. Maxx stores in Decatur and was sentenced to the Department of Corrections (Department). Respondent contends the State failed to prove an essential element of retail theft from Oseo. We affirm.

Only those facts necessary for resolution of the issue presented will be recited.

On June 6, 1989, a delinquency petition was filed, alleging respondent, 15 years old, committed retail theft from the two retail establishments in Decatur. At the adjudicatory hearing on August 11, 1989, a security officer for T.J. Maxx testified he observed two minors as they exited T.J. Maxx on June 10 and followed them to a car in the parking lot where respondent was sitting. The security officer observed the minors take clothing without paying for it at T.J. Maxx. While the officer was talking to the minors at the car, he observed seven pairs of sunglasses on the floor of the passenger side of the car beneath where respondent was sitting. The officer testified respondent told him she bought the glasses at Oseo for $5. The glasses were returned by the officer to Oseo. A photograph taken by the officer of the glasses was admitted into evidence.

A minor, nine years old, who was in the company of respondent on June 10, testified when she, respondent, and two other minors were in Oseo, everyone took some pairs of sunglasses from a display rack in the store, put them in their book bags and left the store without paying for the glasses. The minor identified the sunglasses in the photograph taken by the security officer for T.J. Maxx as the glasses taken from Oseo on June 10.

Larry Moorehead, a police officer for the City of Decatur, testified he interviewed respondent on June 10 regarding the incident. Moorehead stated respondent told him she took sunglasses from Oseo earlier that day and put them in a bag carried by one of the minors accompanying her on that day. On August 11, respondent testified that she did not ask anyone to steal merchandise from T.J. Maxx. Respondent was found delinquent and sentenced to the Department.

Respondent argues because no testimony from an Oseo representative was presented, the State failed to prove the sunglasses were “displayed, held, stored, or offered for sale” by Oseo, an essential element for a retail theft conviction. We disagree. Section 16A — 3 of the Criminal Code of 1961 sets forth the offense of retail theft. (Ill. Rev. Stat. 1987, ch. 38, par. 16A — 3.) An element of the offense is that the merchandise taken is “displayed, held, stored or offered for sale.” (Ill. Rev. Stat. 1987, ch. 38, par. 16A — 3(a).) Here, the State established the sunglasses had Oseo price tags on them; that respondent was in the store; and respondent took some sunglasses and removed them from the store without paying for them. The State also established the merchandise was later returned to an Oseo employee. The State’s evidence was sufficient to establish the aforementioned element of retail theft and was unrebutted. We find no error.

For the foregoing reasons, the respondent’s adjudication of delinquency and commitment to the Department are affirmed.

Affirmed.

KNECHT, P.J., and GREEN, J., concur.


author: JUSTICE LUND JUSTICE STEIGMANN,

text:
    DONALD L. MILLER, Plaintiff and Cross-Defendant-Appellant, v. JOHN B. WINES, Defendant and Cross-Defendant (Fireman’s Fund Mortgage Corporation, Defendant and Cross-Plaintiff-Appellee).
    Fourth District
    No. 4—89—0456
    Opinion filed May 9, 1990.

      STEIGMANN, J., dissenting.

      Mark S. Goodwin and Robert C. Hofmann, both of Dougherty, Hofmann & Goodwin, of Danville, for appellant.
    Sebat, Swanson, Banks, Garman & Townsley, of Danville (Ralph J. Swanson, of counsel), for appellee.
   JUSTICE LUND

delivered the opinion of the court:

Donald L. Miller (Miller) brought an action in the circuit court of Vermilion County, seeking to quiet title to five acres of real estate. Defendants were John B. Wines (Wines) and Manufacturers Hanover Mortgage Corporation (Manufacturers). Manufacturers subsequently answered and filed a cross-complaint and eventually Manufacturers’ name was corrected to Fireman’s Fund Mortgage Corporation (Fireman’s). Wines was defaulted for failing to appear. On February 28, 1989, judgment was entered in favor of Miller and against Wines, and summary judgment was entered in favor of Fireman’s against Miller. Miller appeals from the ruling which held against him in his action against Fireman’s.

FACTS

On July 1, 1974, Miller and his then wife entered into a contract with Wines wherein the five acres, which included a residence, were being conveyed to the Millers. The contract provided for installment payments, with deed to be conveyed upon final payment. Wines had the right to mortgage the property to the extent of the unpaid balance of the contract. Upon the Millers’ divorce, Miller became sole owner of the contract.

Under the terms of the contract, Miller had possession of the real estate. The purchase price was $28,000 and, by November 13, 1984, the unpaid balance had been reduced to $4,450.80. On November 13, 1984, Wines executed a mortgage to Manufacturers which listed as security the same property which was the subject matter of the Wines-Miller contract. The mortgage purported to secure a loan to Wines from Manufacturers in the amount of $35,000. On November 13, 1984, Miller signed what is entitled “Subordination of Real Estate Contract,” which provided:

“WHEREAS John B. Wines, a bachelor[,] by his mortgage dated, November 13, 1984, and recorded in the recorder’s office of [Vjermilion County, Illinois, as Document No. 84 — 7725, did convey unto Manufacturers Hanover Mortgage Corporation certain premises in Vermilion County, Illinois, described as[:] Five (5) acres square out of the Southwest corner of the Southeast Quarter (SEW) of the Southwest Quarter (SEW) of section eight (8), Township twenty (20) North, Range eleven (11), West of the Second Principal Meridian, in Vermilion County, Illinois. It is understood that if John B. Wines shall fail to miss payments on said note or shall otherwise be in default, that the holder of said note shall notify the undersigned, Donald L. Miller and he shall have 30 days thereafter to cure said default on behalf of John B. Wines to secure his note for thirty five thousand and no/100 (35,000.00) [***] Dollars with interest payable as therein provided; and
WHEREAS, the undersigned have some right, interest and claim in and to said premises by reason of: Real Estate Contract dated July 1, 1974, between John B. Wines, Seller and Donald L. Miller and Elsa M. Miller, Buyers, in the amount of Twenty Eight Thousand and no/100 ($28,000.00) Dollars[,] but are willing to subject and subordinate his right, interest and claim to the lien of the above mentioned mortgage.
NOW THEREFORE, the undersigned in consideration of the premises and of the sum of ONE DOLLAR ($1.00) paid to the undersigned, receipt of which is hereby acknowledged, do hereby covenant and agree with said Manufacturers Hanover Mortgage Corporation for the use and benefit of the legal holder of the notes described in an[d] secured by said mortgage that the right, interest and claim of the undersigned is and shall be and remain at all times subject and subordinate to the lien of the mortgage to said Manufacturers Hanover Mortgage Corporation.
[A]s aforesaid for all advances made or to be made under the provisions of said mortgage or on the notes secured thereby and for all other purposes specified therein; hereby releasing and waiving all rights under and by virtue of the homestead exemption laws of the State of Illinois.
WITNESS the hand and seal of said Donald L. Miller this 13 day of November, A.D. 1984.”

This document was signed by Miller and his signature acknowledged by a notary public.

Wines defaulted on the $35,000 indebtedness, and Miller was faced with losing his equity in the property. Miller contends Wines came to him with the subordination instrument and he was told by Wines he must sign it so that Wines could exercise his right to mortgage during the term of the contract. Miller testified he did not read the instrument, was not paid the $1 consideration, and did not know the subordination agreement involved more than the unpaid balance on the contract. This testimony is unrebutted.

I

Both parties to this appeal agree that subordination agreements are generally used in transactions like the one in the present case. However, Miller contends that transactions using documents like the one used in the present case should only create a lien on the unpaid balance of the contract. He bases his argument on the theory that since equitable conversion took place upon the execution of the real estate contract, Manufacturers could not obtain a security interest in the Millers’ interest unless Miller had executed a mortgage or some instrument similar thereto. Tied with this argument is the contention Miller was owed some specific explanation of the effect of any instrument he executed if it were to be of effect.

Miller correctly states equitable conversion takes place when the owner of land enters into a valid and enforceable contract for its sale. The seller continues to hold the legal title, but in trust for the buyer; and the buyer becomes the equitable owner and holds the purchase money in trust for the seller. (Shay v. Penrose (1962), 25 Ill. 2d 447, 449, 185 N.E.2d 218, 219-20.) Shay also states the rule that equitable conversion is the treating of land as personalty and personalty as land under certain circumstances.

Miller, while correct in his contention that real estate contracts sometimes result in equitable conversions, erroneously concluded equitable conversion triggers a requirement that the purchaser in a contract can only encumber his equity by an instrument similar to the mortgage Wines executed in favor of Manufacturers. The general rule is that an interest in any property may be assigned. (First National Bank v. Taylor (1946), 329 Ill. App. 49, 56, 67 N.E.2d 306, 310; Merrick v. Daehler (1972), 5 Ill. App. 3d 269, 272, 282 N.E.2d 163, 165; 3 Ill. L. & Prac. Assignments §11 (1953).) Subject to statutory requirements which may be applicable to the particular assignment, no particular form or language is necessary to effect an assignment as long as the intention to transfer is clearly expressed. Heritage Bank v. Recreational Retail Builders, Inc. (1981), 97 Ill. App. 3d 748, 423 N.E.2d 573; 3 Ill. L. & Prac. Assignments §31 (1953).

The subordination instrument clearly subjects all of Miller’s interest in the subject real estate to the Wines’ mortgage. The instrument indicates that the Miller interest was being made subject to the lien of the $35,000 debt. It gives Miller the right to prevent foreclosure by paying the debt. The Miller interest could be assigned, and a deed or mortgage would not be necessary. We find a subordination similar to an assignment and find that the language in the subordination instrument in the present case clearly expresses the intention of the parties. The Miller interest could be subordinated to the mortgage held by Fireman’s without the necessity of deed or mortgage. While we have not found a specific case upholding the validity of a subordination agreement, and the parties have cited no such cases, the case of Hinsdale Federal Savings & Loan Association v. Gary-Wheaton Bank (1981), 100 Ill. App. 3d 746, 749, 427 N.E.2d 963, 966, so implies.

Miller couples his argument that a mortgage should be a requirement to convey his interest, with his statement that Wines told him he had to sign the subordination and that he (Miller) had not read the instrument. The failure-to-read issue was adequately addressed in State Bank v. Sorenson (1988) 167 Ill. App. 3d 674, 681, 521 N.E.2d 587, 592, as follows:

“Failure to read a document before signing it is normally no excuse for a party who signs it. (Prueter v. Bork (1981), 105 Ill. App. 3d 1003, 1006.) A party who has had an opportunity to read a contract before signing, but signs before reading, cannot later plead lack of understanding or that the contract misled him. (In re Marriage of Kloster (1984), 127 Ill. App. 3d 583, 585.) In the absence of a fiduciary duty, a bank does not have an obligation to explain the legal effect of a document to the person whose signature is sought on that document. (See Paskas v. Mini Federal Savings & Loan Association (1982), 109 Ill. App. 3d 24, 31 (bank did not have a duty to explain the legal effect of its rules regarding passbooks since knowledge of the law is equally available to all parties).) In Pernod v. American National Bank & Trust Co. (1956), 8 Ill. 2d 16, 21, our supreme court rejected an argument that an elderly lady in poor health was incapable of understanding a trust agreement several pages long and couched in precise and formal legal terms. The court stated that ‘[i]f such a contention had merit very few modern legal instruments could withstand attacks of the kind made in this case.’ 8 Ill. 2d at 21.”

There is no indication in the record of a fiduciary relationship owing Miller by either Wines or Manufacturers. The subordination language clearly sets forth what was being conveyed. The failure to read, if that is what happened, is unfortunate, but is no excuse.

II

We next consider Miller’s argument of lack of consideration because of the failure to pay $1. The subordination stated: “in consideration of the premises and of the sum of ONE DOLLAR ($1.00) paid to the undersigned, receipt of which is hereby acknowledged.” Miller argues “of the premises” has no meaning, while Fireman’s argues it means the overall benefits, including the $35,000 loaned to Wines.

“Premises” is used in two places in the subordination instrument. “[CJertain premises in Vermilion County Illinois,” precedes the five-acre description. Then, “premises” is used in the consideration clause. Black’s Law Dictionary defines “premises” as follows:

“Premises. That which is put before; that which precedes; the foregoing statements. Thus, in logic, the two introductory propositions of the syllogism are called the ‘premises,’ and from them the conclusion is deduced. So, in pleading, the expression ‘in consideration of the premises’ means in consideration of the matters hereinbefore stated.
In conveyancing. That part of a deed which precedes the habendum, in which are set forth the names of the parties with their titles and additions, and in which are recited such deeds, agreements, or matters of fact as are necessary to explain the reasons upon which the present transaction is founded; and it is here, also, the consideration on which it is made is set down and the certainty of the thing granted.” (Emphasis in original.) (Black’s Law Dictionary 1062-63 (5th ed. 1979).)

Fireman’s was not giving an interest in the real estate to either Wines or Miller. It was taking an interest. We should not give the same meaning to the word simply because it is used two times on the same page. Words in agreements are to have meaning, and to say the second use of “premises” should be read as the first use of the word would result in the second use being meaningless. We conclude that “in consideration of the premises” means in consideration of all the benefits of the loan secured by the mortgage referred to in the subordination and executed by Wines.

Miller was not receiving the loan money and he was giving his equity as security for that loan. The benefit from the subordination was to Manufacturers and the consideration for the execution of the mortgage and subordination was the loan to Wines, not to Miller. The $1, according to undisputed testimony, was not paid. It is necessary to conclude that Miller did not directly receive consideration for the execution of the subordination. When consideration for a promise or agreement affecting an interest in property is insufficient or wholly lacking, the promise or agreement is unenforceable. Rock Island Bank & Trust Co. v. Stauduhar (1978), 59 Ill. App. 3d 892, 899, 375 N.E.2d 1383, 1388.

However, there is an established principle of contract law that a benefit to a third person may constitute sufficient consideration for a promise or an agreement. (Affiliated Realty & Mortgage Co. v. Jursich (1974), 17 Ill. App. 3d 146, 150, 308 N.E.2d 118, 122; 12 Ill. L. & Prac. Contracts §78 (1983); 17 C.J.S. Contracts §89 (1963).) New money went to Wines because of the subordination by Miller. A third party was thus benefited by Miller’s execution of the subordination and this served as consideration for Miller’s execution of the subordination. The finding of this consideration requires that the trial court’s decision on this issue be affirmed.

The harshness of the results of the trial court’s ruling and our decision is recognized. However, any other result would invite chaos into the field of contract law. As stated in Sorenson, a party normally must be charged with determining the contents of instruments being executed.

Affirmed.

SPITZ, J., concurs.

JUSTICE STEIGMANN,

dissenting:

While I have no disagreement with the majority’s assessment of the present law applicable to this case and the result it compels, I respectfully dissent because I conclude the law must be changed. While I am normally very reluctant to advocate judicial modification of the law, this case is the exception for two reasons: (1) as shown by the absence of any statutory citations in the majority opinion, the law in this area is all judge-made to begin with, thus modification would not be infringing upon any legislative prerogatives, and (2) the result which the present law compels is truly unconscionable.

A short version of the events in this case is the following. In June 1974, Miller entered into an installment contract for deed with Wines, wherein Wines conveyed five acres, including a residence, to Miller. The purchase price was $28,000. The contract provided for installment payments, with the deed to be conveyed by Wines to Miller upon final payment. Wines retained the right to mortgage the property to the extent of the unpaid balance of the contract. Under the terms of the contract, Miller took possession of the real estate and resided thereon.

By November 13, 1984, Miller had paid over $23,500 to Wines on this contract, leaving an unpaid balance of approximately $4,500. On November 13, 1984, Wines executed a mortgage with the Fireman’s Fund Mortgage Corporation in order to secure a loan to Wines in the amount of $35,000. The mortgage Wines executed to the mortgage company listed as security the real estate which was the subject matter of Wines’ contract with Miller.

On November 13, 1984, Miller signed a document entitled, “Subordination of Real Estate Contract,” through which Miller purportedly subordinated his $24,500 interest in this real estate to the mortgage company.

In exchange Miller got — nothing!

When questioned at oral argument, counsel for the mortgage company was unable to suggest how Miller benefitted in the slightest from executing the subordination agreement. Instead, the mortgage company claims that under the law, any such benefit to Miller need not be shown as long as somebody benefitted, namely, Wines.

In its brief to this court, the mortgage company argues (one hopes “tongue-in-cheek”) that the subordination agreement “is clear and unambiguous.” By reviewing the early pages of the majority opinion, the reader can judge for herself whether the subordination agreement is “clear and unambiguous.” It seems to me that the agreement is an example of legalese at its worst, clearly (and probably intentionally) beyond the ken of all but the most intelligent and financially sophisticated laymen.

This record shows that Wines wanted to borrow $35,000 and that the mortgage company was happy to lend Wines that money, as long as it had the collateral of a 100% interest as first mortgagor in the real estate upon which Miller was living. That interest protected the mortgage company in the event that Wines defaulted on the loan. Wines in fact did so. It is clear from this record that Miller derived no benefits of any kind from signing the subordination agreement.

This is not a case in which some relative or close friend is, in effect, cosigning a note to secure a loan. There is no hint in this record that Miller and Wines had anything other than an arm’s-length business relationship. Instead, this is a case in which the mortgage company knew that Miller was going to be asked by Wines to sign the subordination agreement, and it knew that Miller would derive no benefit therefrom, while signing away what is likely to be the major financial asset of his life.

Miller testified that he signed the agreement because Wines told him he had to in order to permit Wines to mortgage the equity that Wines had left on the property. Whatever the evidence may be concerning Miller’s motivation for signing the subordination agreement, there is no conflict that Miller got nothing for his doing so.

At all times, there was one party to this three-way transaction that knew precisely what was taking place: the mortgage company. Yet the mortgage company would have this court become its accomplice in stripping Miller of his land and home based upon the legal charade the mortgage company engineered. I simply do not think this court can be any part of it.

This case demonstrates that the time has come to require a mortgage company to insure that a subordinated land owner such as Miller has knowingly and voluntarily waived the extent of his interest in the land in question before a court in litigation of this kind will give effect to any such subordination agreement. It is not necessary at this point to speculate as to what steps a mortgage company should take in order to demonstrate the knowing and voluntary nature of any such waiver. I am confident that legal counsel employed by such companies, given the incentive of making their mortgages stick, will figure it out.

The imposition of an affirmative duty in a civil law context, upon a person who is an expert in the law and who has the resources to execute that duty to insure a knowing and intelligent waiver by a third party who may be unsophisticated, is not unprecedented. This court recently had occasion to impose such a duty upon executors of estates who seek to apply the doctrine of estoppel to bar a legatee from contesting provisions of a will under which that legatee inherits a home which had been her long-term residence. (See In re Estate of Nichols (1989), 188 Ill. App. 3d 724, 544 N.E.2d 430.) Before that doctrine of estoppel, normally applicable to probate cases, could be applied to such a person, this court stated the following:

“By this holding, we are placing an affirmative duty upon executors of estates to take whatever steps they deem necessary in order to demonstrate that an occupant of a residence that passes to that occupant under a will, such as plaintiff in this case, has knowingly and intelligently elected to receive the benefits given to her under that will.” (Emphasis added.) Nichols, 188 Ill. App. 3d at 727, 544 N.E.2d at 432.

The majority in this case concludes its opinion by stating the following:

“The harshness of the results of the trial court’s ruling and our decision is recognized. However, any other result would invite chaos into the field of contract law.” 197 Ill. App. 3d at 454.

If this case is an example of what passes for law and justice in the “field of contract law,” then it deserves the chaos the rule I am proposing might cause. Surely at some point the courts must tell the business community that unconscionable injustices will not be tolerated further merely because the courts have gotten into the habit of doing so.

The rule now proposed would not be prospective only. I would apply it to this case and reverse and remand to the trial court to give the mortgage company an opportunity to demonstrate a knowing and voluntary waiver of Miller’s rights when he signed the subordination agreement. I am aware that such changes in the law are normally made prospective only. However, this is not the normal case. Further, I would regard any argument that the mortgage company might make in this case that holding them to this new standard would be unjust to be little more than a bad joke.