text:
    NATIONAL UNDERGROUND CONSTRUCTION COMPANY, INC., Plaintiff-Appellant, v. E.A. COX COMPANY, Defendant-Appellee.
    First District (2nd Division)
    No. 1 — 90—1009
    Opinion filed June 25,1991.
    — Rehearing denied July 30,1991.

      R.S. Maione, of Chicago, for appellant.
    Thomas G. Moffitt, of McCracken & Walsh, of Chicago, for appellee.
   JUSTICE COCCIA

delivered the opinion of the court:

Plaintiff National Underground Construction Company, a subcontractor, appeals from a circuit court order entering summary judgment in favor of defendant E.A. Cox Company, a general contractor, in this suit based on a cause of action for breach of contract alleging that defendant owes plaintiff an additional fee for the “extra” work performed by plaintiff in making adjustments to catch basins in a sewer construction project. On appeal, plaintiff contends that the court erred in granting summary judgment and the cause should be remanded for further hearing regarding whether or not plaintiff is entitled to an additional fee for its “extra” work.

On November 21, 1986, plaintiff filed a complaint for declaratory judgment and other relief, alleging that it is a subcontractor for the construction of underground improvements. Defendant is a general contractor for construction. On January 13, 1984, defendant entered into a contract with the City of Chicago for a construction project. On February 23, 1984, defendant entered into a written contract with plaintiff as subcontractor to perform certain work. Plaintiff alleged in its complaint that defendant was to pay it $356,539.12 for “its work under the contract and for extra work,” and that the “parties agreed that [defendant] was to pay $70,218.68 for the performance of the extra work.”

The complaint alleges that plaintiff was actually paid “for all work performed by it except for the sum of $6,310.87, which [defendant] retained pending receipt of payment from the City of Chicago to [defendant], and the sum of $33,354.44 representing extra work, performed by [plaintiff] in accordance with the agreement by [defendant] to pay for the installation of frame and lid settings, hereinafter described, for the resurfacing on the 55th Street job.”

Plaintiff alleged further that the installation of the frame and lid settings for the 55th Street resurfacing job was “extra work, not in-eluded in the original cont[r]act of February 23, 1984,” and that $33,354.44 was due for that work.

The complaint requests a declaration of the rights of the parties: “that [defendant] agreed to pay [plaintiff] for the extra work performed by [plaintiff] for the sum of $33,354.44 consisting of the installation of the frame and lid settings for the 55th Street resurfacing job”; that the price was reasonable; and that defendant also owed plaintiff $6,310.87. Plaintiff also requested an accounting from defendant for the $33,354.44, if received from the city, and the placement of such funds into a trust.

Frank Rizzo, president of plaintiff, explained at an October 10, 1989, deposition that the project consisted of performing certain sewer work which involved building catch basins. A catch basin is a precast concrete structure set into the ground. On top of the concrete structure is a cast iron frame. Later, after road work has been done, the catch basin must be adjusted to the new grade of the street. Then the frame is set, and the lids are put into place. In that frame, a lid or grate must be placed. The concrete structure is placed in the ground at the beginning of the road job.

The relevant portion of the subcontract reads:

“Section 1. The Subcontractor [plaintiff] agrees to furnish all necessary materials and/or to furnish all labor, tools, equipment, and supplies necessary to perform all work in the construction of [the project] *** in accordance with the terms and provisions of the Contract between the Owner and the Contractor, dated January 13, 1984, including all the General and Special Conditions, Drawings and Specifications and other Documents forming or by reference made a part of the Contract between the Contractor [defendant] and the Owner, all of which shall be considered part of this Subcontract by reference thereto, and the Subcontractor agrees to be bound to the Contractor and the Owner by the terms and provisions thereof.
Section 2. It is agreed that the materials to be furnished and/or work to be done by the Subcontractor are as follows: SEWER WORK AS SPECIFIED BELOW AS PER PLANS AND SPECIFICATIONS OF THE CITY OF CHICAGO.
Item No. 10 — Catch Basins ***.
Item No. 18 — Trench Backfill ***.
Item No. 19 — Storm Sewers ***.
Item No. 24 — Filling Existing Catch Basinsf.]
* * *
Item No. 25 — Removal of Existing Inlets ***.”

The relevant specification for Item 10 in the contract between the city and defendant reads as follows:

“ITEM 10 CATCH BASINS, k FOOT DIAMETER
This item shall consist of constructing new City of Chicago
standard catch basins at locations shown on the Plans ***.
* * *
Basis of Payment. This item will be paid for the Contract unit price each for CATCH BASINS, 4 FOOT DIAMETER, which price shall include all excavation, backfill and the setting and adjusting of all frames and lids. New frames and lids for catch basins will be paid for separately under Item 35 *** and Item 36 ***.”

Specification for item 35 provides that “The installation of the frame will be paid for as part of the various construction items involved.” Specification for item 36 provides that “New lids will be counted in place for payment at the Contract unit price per pound for CITY OF CHICAGO STANDARD MANHOLE AND CATCH BASIN PERFORATED OR SOLID LIDS, which price shall include the furnishing and transportation of the lid to its place of use on the project.”

On December 4,1989, defendant moved for summary judgment.

In response to defendant’s motion for summary judgment, plaintiff submitted the January 11, 1990, affidavit of F.M. Aduana, the City of Chicago’s resident engineer overseeing the project. Aduana stated that defendant failed to provide grades as required under the contract with the city. As a result, “the catch basins were installed not according to the proposed grade, and adjustments had to be made.” Aduana states further that the city rejected defendant’s bill for the extra work because the error was defendant’s responsibility, not the city’s. Attached to Aduana’s affidavit are his notes detailing his extensive problems in attempting to get defendant to provide proper grading. “I repeatedly told [Cox] that if the elevations were not right, I will require them to correct them at no extra cost to the City.”

Plaintiff also submitted the January 6, 1990, affidavit of Gene Currie, construction superintendent for defendant on the jobsite, reciting facts about an oral contract. Defendant’s president, John LeFevour, asked plaintiff to install frames and lids, although plaintiff “was not awarded the contract for frame and lid item.” The affidavit states further:

“At that time, E.A. Cox was faced with [the] problem of improper grade elevations and there was controversy between the City of Chicago and E.A. Cox as to who was to blame for the improper elevation. ***
*** John LeFevour *** approached Frank Rizzo, president of [plaintiff], who was doing the catch basin work, and in my presence asked Frank Rizzo if he would make the adjustments and install the frames and lids on the catch basins because the curb and gutters gangs were being held up and it was necessary that the concrete be poured as soon as possible. Mr. LeFevour told Frank Rizzo to keep ‘time’ so [plaintiff] would be paid for its work.”

Plaintiff also submitted the January 5, 1990, affidavit of Rizzo, which states nearly identical facts regarding the oral agreement.

Both parties attached to their trial court briefs in the summary judgment proceeding a bill which defendant submitted to the city, on behalf of plaintiff, on August 7, 1984, requesting payment for the extra work. It states: “Enclosed is the extra bill for the re-adjustment of the new catch basins to changed grades that were given after catch basins were installed.” Attached to the letter were plaintiff’s bills for the extra work.

On February 9, 1990, the court granted defendant’s motion for summary judgment. On March 12, 1990, the court denied plaintiff’s motion for reconsideration. On April 9, 1990, plaintiff filed a notice of appeal.

Summary judgment is proper where no genuine issues of material fact exist, and in determining whether the moving party is entitled to summary judgment, the court must strictly construe all pleadings, depositions, admissions, and affidavits against the movant and liberally in favor of the opponent. (Vincent DiVito, Inc. v. Vollmar Clay Products Co. (1989), 179 Ill. App. 3d 325, 534 N.E.2d 575.) Construing a contract as a matter of law is suitable for summary judgment where other facts are not in dispute. Srivastava v. Russell’s Barbecue, Inc. (1988), 168 Ill. App. 3d 726, 523 N.E.2d 30; LaSalle National Bank v. Illinois Housing Development Authority (1986), 148 Ill. App. 3d 158, 498 N.E.2d 697.

In the present case, the interpretation of specification item No. 10, which forms a part of the contract between plaintiff and defendant, may be determined as a matter of law. Item No. 10 clearly states that the basis of payment “shall include all excavation, backfill and the setting and adjusting of all frames and lids” of the catch basins. The contract does not indicate that plaintiff would receive extra payment for adjustments it made.

Plaintiff also argues, apparently in the alternative, that Rizzo’s testimony implies that the grades given to him must be the correct grades, and that other affidavits and evidence before the court indicated the grades were not correct. Plaintiff maintains that its liability “was contingent upon the implied condition that [defendant] furnish the correct grades,” and the implied condition that if incorrect grades were given, plaintiff would not be liable for the costs it expended in “correcting [defendant's] mistakes. To do so would unjustly enrich [defendant], by enabling it to apply for relief with unclean hands.”

Plaintiff then argues what is possibly another alternative theory, i.e., that defendant “tricked” Rizzo into doing extra work by creating “a device or scheme to defraud,” where defendant’s president, John LeFevour, promised Rizzo that defendant would pay extra if plaintiff would perform the extra work of adjusting for defendant’s errors in placing the grade too low.

In regard to these additional alternative arguments, we note that a court’s first step in deciding a motion for summary judgment is to analyze the pleadings in order to define the contested issues. (Fryison v. McGee (1982), 106 Ill. App. 3d 537, 436 N.E.2d 12; Mastercraft Lamp Co. v. Mortek (1960), 28 Ill. App. 2d 273, 171 N.E.2d 427. See generally 4 R. Michael, Illinois Practice, Civil Procedure Before Trial §39.6, at 256 (1989).) Only after completing that initial step will the court go behind the pleadings to determine whether a factual issue exists.

The complaint here alleges:

“4. On or about February 23rd, 1984, National entered into a written contract with Cox, as a subcontractor, for the performance of certain work described therein, a copy of which is attached hereto as Exhibit A.
5. For its work under the contract and for extra work National was to be paid the sum of $356,539.12. The parties agreed that Cox was to pay $70,218.68 for the performance of the extra work.
6. National performed all work pursuant to the terms of the said contract and agreements for extra work, in accordance with the plans and specifications pertaining to the performance of all said construction work. All work performed by National was inspected and approved as being performed in compliance with the plans and specifications, and in accordance with the terms and agreements existing by and between the parties.
7. National was paid for all work performed by it except for *** the sum of $33,354.44 representing extra work, performed by National in accordance with the agreement by Cox to pay for the installation of frame and lid settings, hereinafter described, for the resurfacing on the 55th Street job.”

The complaint does make a reference to some “agreements for extra work.” Here, the complaint merely refers to the installation of the frames and lids, which we have already found is part of the written contract; and a confusing reference to an agreement to pay $70,218.68 for “extra work” and failure to pay $33,354.44 for “extra work.” The complaint would serve plaintiff better if it contained factual allegations indicating the existence of an oral contract, or oral modification of the written contract. It should contain sufficient factual allegations of the existence of a contract, including whether it was written or oral, facts regarding an offer, acceptance and consideration, along with allegations of plaintiffs performance of all contractual conditions required of it, the fact of defendant’s alleged breach, the existence of damages, and sufficiently definite terms, if the contract was oral, to make it enforceable. (See Wait v. First Midwest Bank/Danville (1986), 142 Ill. App. 3d 703, 491 N.E.2d 795.) Nevertheless, we find the allegations sufficient to raise the issue of whether “extra work” was done which did not fall within the contract terms, i.e., work which fell within the terms of a subsequent oral modification of the contract. Because we are remanding on other grounds, we suggest that plaintiff make use of the opportunity to replead these allegations to conform with the proof it has included in the record.

In looking beyond plaintiff’s complaint to define the issues raised in this suit, we conclude that the record reveals the existence of genuine issues of material fact which preclude summary judgment. We highlight facts in the record that support the conclusion.

First, the affidavit of Currie, the construction superintendent for defendant admits that due to improper grade levels, “adjustments had to be made.” LeFevour, president of defendant, “approached Frank Rizzo *** and in my presence asked Frank Rizzo if he would make the adjustments ***. Mr. LeFevour told Frank Rizzo to keep ‘time’ so [plaintiff] could be paid for its work.”

Second, in regard to whether defendant Cox promised to pay plaintiff extra for the additional work required due to the grading problems, Rizzo’s deposition and affidavit set out several conversations in which LeFevour and Currie instructed Rizzo to do the extra work, and “keep time and material and cost” records so plaintiff would get paid an additional sum.

Third, the existence of factual issues on these points is further supported by the letter which defendant sent to the city, seeking additional payment for the extra work caused by the improper grade levels and the unanticipated need for more adjustments to the catch basins.

Fourth, Aduana’s affidavit states that under defendant’s contract with the city, “Cox Company was required to provide the grades” but it “did not provide the grades.” As a result, “the catch basins were installed not according to the proposed grades and adjustments had to be made.” The city rejected Cox’s “bills for such adjustments *** as not being the City’s responsibility, but Cox’s responsibility.” Aduana’s notes details Cox’s error further.

Finally, in regard to whether defendant Cox set proper grades, defendant concedes in an answer to plaintiff’s interrogatory that: “Grades were to have been set by Cox. Because of the mistakes in the City’s plans, the City supplies all grades on the subject project.” Correction of the grades was then required and “was performed by the City of Chicago.”

Thus, although the complaint is inartfully drawn, the record contains strong evidence of material fact questions. We find that there are sufficient factual questions to withstand defendant’s motion for summary judgment.

Finally, although the complaint seeks the $6,310.87 which represents the contract amount of 10% to be retained by defendant until the city makes its final payment, plaintiff has not argued that issue before this court. Thus, the court need not address the question.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause is remanded for further proceedings consistent with the holdings contained herein.

Reversed and remanded.

SCARIANO, P.J., and HARTMAN, J., concur.


source: Caselaw Access Project

author: JUSTICE COCCIA

license: Public Domain

text:
    MARIA ROMERO et al., Plaintiffs-Appellants, v. STEPHEN F. SELCKE, Director of the Department of Professional Regulation, Defendant-Appellee.
    First District (2nd Division)
    No. 1 — 90—1097
    Opinion filed June 25,1991.

      William J. Larned, of Wilmette, for appellants.
    Roland W. Burris, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Jan E. Hughes, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE COCCIA

delivered the opinion of the court:

Plaintiffs Maria Romero, Benchaporn Samiprem and Majida K. Haque, foreign-educated applicants for Illinois nursing licenses, appeal from a trial court order granting summary judgment to defendant, Stephen F. Selcke, Director of the Illinois Department of Professional Regulation (the Department), and denying plaintiffs’ motion for summary judgment. Plaintiffs contend that the trial court erred in finding that defendant can require plaintiffs to pass a Council of Graduates of Foreign Nursing Schools (CGFNS) examination as a prerequisite for licensure.

Prior to 1984, Illinois administered the National Council Licensure Examination (NCLEX) to qualified persons. On January 1, 1984, Illinois adopted the requirement that foreign-educated applicants first pass the CGFNS examination prior to taking the National Council Licensure Examination. Ill. Rev. Stat. 1985, ch. 111, par. 3428.1.

The CGFNS tests both knowledge of English and knowledge of nursing. A brochure published by the Philadelphia-based Commission on Graduates of Foreign Nursing Schools is attached to the complaint as an exhibit. The brochure states that the “commission screens credentials and administers a qualifying examination for foreign nurses to take in their own countries before they apply for entry into the United States. It is a screening and testing process to determine if applicants are likely to pass an American state licensing exam. Given in English, the exam measures proficiency both in nursing and in the use of the English language.”

The brochure states further that in the years 1979 to 1981, 63% of persons who passed the CGFNS exam went on to pass the licensing exam given in the United States. Another 17% passed the State exam on reexamination. The brochure also recites that “more than half of the state licensing boards now require a CGFNS certificate before they will allow a foreign nurse graduate to take the state licensing exam.” It states further that the “nursing portion of the exam is prepared, under contract, by the National League for Nursing. Its content, about four hours in length, is designed to make it comparable to the National Council Licensing Examination for Registered Nurses (NCLEX RN). This is the test which is used in all states to qualify nurses for licensure.”

Apparently during 1984 and 1985, the Department waived the CGFNS requirement in certain cases. Plaintiffs’ attorney filed an affidavit stating that the Department had waived the CGFNS requirements since January 1, 1984, “on numerous occasions” for his clients, 19 of whom he listed in the affidavit.

On April 25, 1985, the Department issued a memorandum waiving the CGFNS examination for all applicants who had taken the National Council Licensure Examination prior to July 1985. The memorandum further announced that after July 1985, all applicants would need CGFNS certification before being allowed to take the National Council Licensure Examination.

Litigation attacking the validity of the requirement announced in the April 25, 1985, memorandum was filed in Simon v. Clayton, No. 86 — CH—3444 (Simon). On April 27, 1986, a preliminary injunction was entered in Simon which enjoined the Department from enforcing CGFNS against anyone during the pendency of the cause.

Plaintiffs, having completed a credential check by the Department of Professional Regulation, were permitted to take the National Council Licensure Examination, without having first taken the CGFNS. All of the plaintiffs passed the NCLEX examination. The Department thereafter granted plaintiffs the authority to work as registered nurses under certain conditions, without taking the CGFNS, pursuant to the Simon preliminary injunction.

Plaintiffs’ applications for licensure are still pending. A letter of authority dated June 24, 1986, and sent to a nurse who petitioned to intervene in the present suit reads as follows:

“Please accept this letter as full authority for [the holder] to practice nursing in accordance with the Illinois Nursing Act, subject to the conditions set forth below.
On April 25, 1986, the Department of Registration and Education was preliminarily enjoined by the Circuit Court of Cook County in Simon, et al. v. Clayton *** from requiring successful completion of the *** CGFNS[ ] examination. The above-named person has satisfied all requirements for the practice of nursing except completion of the CGFNS examination.
[The holder] therefore has authority to practice nursing unless and until the Department receives further order of court.”

On January 1, 1988, the new Illinois Nursing Act of 1987 (Act) became effective. (Ill. Rev. Stat. 1987, ch. 111, par. 3501 et seq.) Under the new Act, applicants could either qualify under CGFNS or, as an alternative, could pass an examination which tests competency in the English language. The Illinois Nursing Act of 1987 provides that the Department shall issue a license to qualified persons if that person has met certain requirements and:

“An applicant who received her or his nursing education in a country other than the United States or its territories shall be required to submit to the Department certification of successful completion of the Commission of Graduates of Foreign Nursing Schools (CGFNS) Examination. An applicant who is unable to provide appropriate documentation to satisfy CGFNS of her or his educational qualifications for the CGFNS examination shall be required to pass an examination to test competency in the English language which shall be prescribed by the Department, if determined by the Committee to be educationally prepared in nursing.” Ill. Rev. Stat. 1987, ch. 111, par. 3512 (eff. Jan. 1, 1988).

As a result of the passage of this Act, on June 7, 1988, the Simon v. Clayton case was dismissed based on mootness. The injunction which had been in effect from April 27, 1986, until June 7, 1988, was dissolved.

On May 27, 1988, the Department wrote to plaintiff Haque that it expected her to pass the screening requirements of the CGFNS by October 15, 1989. The other two plaintiffs received no similar notice.

On April 20, 1989, plaintiffs wrote to the Department requesting action on their pending applications for licensure without requiring them to take the CGFNS. On May 15, 1989, the Department replied that it had no authority to waive the statutory requirements.

On June 14, 1989, plaintiffs filed the present action. On September 28, 1989, the court denied defendant’s motion to dismiss. On October 12, 1989, the court entered an injunction which enjoined the Department from interfering with plaintiffs’ right to work as registered nurses in Illinois until further court order.

In February 1990, individuals in similar circumstances filed petitions to intervene. On February 22, 1990, the parties entered an agreed order which withdrew the petitions to intervene, but were permitted to receive the same protective relief under the October 12, 1989, injunction that plaintiffs received. The agreed order describes the “persons in similar circumstances as the named plaintiffs’ as persons “who have satisfied all the requirements for the practice of professional nursing except completion of the CGFNS examination” and provided that they would “be allowed to continue to practice nursing under letters of authorization previously issued by defendant, and will be included in the injunction issued by this court on October 12, 1989, said agreement to be confirmed by letter from the defendant as to each person who seeks to be so included.” The order further states that “the [October 12, 1989,] injunctive relief described above shall apply to the four named interveners and to all similarly situated persons as described above who request of the defendant to be included under the injunction.”

On February 2, 1990, defendant filed a motion for summary judgment. On February 5, 1990, plaintiffs filed a motion for summary judgment.

On March 30, 1990, the court granted defendant’s motion for summary judgment; denied plaintiffs’ motion for summary judgment; and found plaintiffs must take the CGFNS examination for their Illinois nursing licenses. The court ordered that the October 12, 1989, injunction remain in effect during the pendency of any appeal.

Plaintiffs contend that the court erred in finding they were subject to the CGFNS requirements. Summary judgment should be granted where the pleadings, depositions, affidavits and admissions on file show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c); Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867.

Plaintiffs challenge that in requiring them to take the CGFNS as a prerequisite for licensure, the Department has applied the law in a manner that deprives them of their due process rights.

We must start our inquiry by examining whether the statute’s regulation of plaintiffs’ right to pursue a profession violates the due process clauses of the United States and Illinois constitutions.

In determining the propriety of this statute, we apply a rational basis test. (Potts v. Illinois Department of Registration & Education (1989), 128 Ill. 2d 322, 538 N.E.2d 1140, citing Pozner v. Mauck (1978), 73 Ill. 2d 250, 383 N.E.2d 203; Rios v. Jones (1976), 63 Ill. 2d 488, 348 N.E.2d 825; Wineblad v. Department of Regis tration & Education (1987), 161 ILl. App. 3d 827, 515 N.E.2d 705.) Under that test, a statute will be upheld if it bears a rational relationship to a legitimate legislative purpose and is neither arbitrary nor discriminatory. Boynton v. Kusper (1986), 112 Ill. 2d 356, 494 N.E.2d 135.

Plaintiffs bear a heavy burden in establishing that the statute violates their due process rights. A statute is presumed to be valid, and the party challenging its validity bears a substantial burden in proving that it is irrational. Potts v. Illinois Department of Registration & Education (1989), 128 Ill. 2d 322, 538 N.E.2d 1140.

The State has a legitimate interest in regulating the licensure of nursing professionals. The purpose of licensures of professions is to prevent injury to the public by assuring that the occupation is practiced with honesty and by excluding from the profession those who are incompetent. (Alexander v. Director, Department of Agriculture (1983), 111 Ill. App. 3d 927, 444 N.E.2d 811; Ranquist v. Stackler (1977), 55 Ill. App. 3d 545, 370 N.E.2d 1198.) Examinations assure that such skills needed for competency are in fact held by the applicant. (Thompson v. Schmidt (7th Cir. 1979), 601 F.2d 305.) Section 4 of the Illinois Nursing Act provides that the purpose of licensure is “[f]or the protection of life and the promotion of health, and the prevention of illness and communicable diseases,” and to ensure that any nurse practicing in Illinois “is qualified to practice.” Ill. Rev. Stat. 1989, ch. 111, par. 3504.

The CGFNS examination tests proficiency in the English language and nursing knowledge. This bears a reasonable relationship to the legitimate interests of the State in securing the public health, safety and welfare as it relates to persons practicing nursing in this State.

Plaintiffs point out, however, that it is irrational to require them to pass the CGFNS, a test normally taken prior to taking the NCLEX, when they have already passed the NCLEX. The CGFNS is a screening process to determine whether the applicants are likely to pass the American State licensing exam (the NCLEX). Since plaintiffs have already passed the NCLEX, they argue that the unfairness in having them take what is normally a preliminary examination rises to the level of a constitutional violation of procedural due process.

The trial court gave considerable attention to this argument, but concluded that, while the requirement’s logic might seem “somewhat unfair,” any unfairness to plaintiffs did not rise to the level of not being rationally related to the ends that the requirement seeks to achieve. We agree.

In Rios v. Jones (1976), 63 Ill. 2d 488, 348 N.E.2d 825, the court upheld a statutory amendment requiring the successful passage of an examination by the plaintiffs, who were foreign-educated holders of Illinois permits to practice medicine. The court found no violation of the due process rights of plaintiffs. The court held that the State had a compelling interest in establishing standards of licensing practitioners and regulating the practice of their professions, and that the plaintiffs’ interest in continued employment must yield to the State’s legitimate exercise of power to protect the public health, safety and welfare. “We believe that it is reasonable to impose strict licensing requirements upon physicians who received their medical training in foreign countries.” Rios, 63 Ill. 2d at 497, 348 N.E.2d at 825.

In Wineblad v. Department of Registration & Education, the court upheld a statute requiring physician’s assistants who were already licensed to take an additional certifying examination as a condition of retaining their licenses. The exam tested core skills minimally required by all physician’s assistants. The fact that plaintiffs were already licensed and practicing physician’s assistants did not affect the court’s holding that the State could require plaintiffs to be tested on these minimally required core skills.

The court in Wineblad found no retroactive application of this requirement. It held that, while plaintiffs were not required to pass the test when they were first licensed, the “legislature’s requirement that all physician’s assistants [now] achieve national certification is reasonably related to the State’s licensing scheme and is a valid exercise of the State’s power to regulate health care professionals in order to protect the public health, safety and welfare.” (Wineblad, 161 Ill. App. 3d at 831, 515 N.E.2d at 708.) The court also noted that, in licensing professionals, the decision to apply additional requirements — even retroactively — satisfies due process if it is justified by a rational legislative purpose. Wineblad, 161 Ill. App. 3d at 832, 515 N.E.2d at 709, citing Brown v. McGarr (7th Cir. 1985), 774 F.2d 777.

In Brown v. McGarr, a lawyer challenged new United States District Court rules which required, for admission to a newly created trial bar, that a certain level of experience be attained prior to admission. Plaintiff complained that this new requirement should not apply to lawyers who had previously been admitted to practice before the court. The court in Brown found the experience requirement prior to admission to the trial bar did not violate due process because it was justified by a rational legislative purpose, that of maintaining a high standard of advocacy in the Federal courts. The experience requirement was reasonably related to the practice of law and attainable by reasonable study or application. Brown v. McGarr, 774 F.2d at 784.

The demands of due process are proportional to the weight of the interest being protected, and the court must balance that interest against the countervailing interests of society. If a balancing of these interests reveals that the State’s exercise of its power is reasonable, the legislation must be upheld. Potts v. Illinois Department of Registration & Education, 128 Ill. 2d at 332-33, citing Rios v. Jones, 63 Ill. 2d at 497, 538 N.E.2d at 1140.

In balancing plaintiffs’ interest in practicing nursing without taking the additional examination against the State’s interests in protecting the public from unqualified nursing practitioners, the trial court properly found that plaintiffs’ interests are not sufficient to render the Department’s application of the statute unconstitutional. Our supreme court’s reasoning in Potts is equally applicable here:

“The State has a substantial interest in promoting the general welfare by licensing physicians. (Rios v. Jones (1976), 63 Ill. 2d 488, 497.) The legislature is presumed to have investigated the question and ascertained what is best for the good of the profession and the good of the people among whom it is practiced. (People v. Love (1921), 298 Ill. 304, 312.) The question of whether the course chosen by the legislature to achieve a desired result is either wise or the best means available is not a proper subject of judicial inquiry. (Garcia v. Tully (1978), 72 Ill. 2d 1, 10.) It is for the legislature, not the courts, to balance the advantages and disadvantages of the requirements. Williamson v. Lee Optical of Oklahoma, Inc. (1955), 348 U.S. 483, 487, 99 L. Ed. 2d 563, 571, 75 S. Ct. 461, 464.” Potts v. Illinois Department of Registration & Education, 128 Ill. 2d at 333.

In the present case, we decline to sit in judgment on the question of whether a single test, or two tests, more adequately test either basic English proficiency or knowledge of nursing. It would be a difficult, if not an impossible, task for this court to take on the burden, on this record, of reviewing the extensive details required in examining generally the qualifications of foreign-educated applicants for Illinois nursing licenses; of the benefits of taking the CGFNS; of whether the NCLEX tests precisely the same things covered in the CGFNS; and of the risks which the public being cared for by these nursing applicants might encounter were they not adequately tested. The burden of analyzing the substantive information being tested in these two examinations must rest with a legislative body. Perhaps the Department could in fact institute a wiser or better means of guaranteeing that these plaintiffs are qualified to receive a license, which carries greater benefits than the letter of authorization they now hold. The scope of our due process inquiry, however, simply does not extend that far.

Under the holdings of Rios and Wineblad, and the constitutional principles of statutory construction discussed above, we hold that the trial court properly found that plaintiffs’ due process rights were not violated by requiring them to pass the CGFNS examination.

Plaintiffs also maintain that the Department retroactively applied the statute which became effective January 1, 1988, to require persons who applied under the statute which was in effect from January 1, 1984, to 1988 to undergo CGFNS certification.

The retroactivity argument is misplaced. The requirement the Department seeks to impose on plaintiffs was in effect as of January 1, 1984. Applicants such as plaintiffs were required to take the CGFNS under the old statute. They simply received a temporary reprieve or benefit while the Simon preliminary injunction was in effect. Once that injunction was dissolved, the temporary benefit ended. The CGFNS requirement was in effect under both statutes and no retroactive application is involved here. See United States Steel Credit Union v. Knight (1965), 32 Ill. 2d 138, 204 N.E.2d 4 (defining retroactive law as one that takes away or impairs vested rights, creates a new duty, or attaches a disability in respect of transaction already past).

Plaintiffs rely on Gonzalez-Bianco v. Clayton (1982), 110 Ill. App. 3d 197, 441 N.E.2d 1308, where the court held that the Department could not apply retroactive effect to a newly adopted administrative regulation which used new criteria, where the Department had set aside applications for temporary certificates of registration for residency in Illinois hospital programs until the adoption of the new criteria.

In that case, however, the denial of applications was an abrupt departure from the preexisting rule. Here, the CGFNS requirement is not new. Moreover, the defendant here did not set plaintiffs’ applications aside while waiting for a new law to take effect. In Gon zales-Blanco, the Department stipulated that the licenses would have been granted if the applications had not been set aside. In the present case, the Department had no power to enforce already existing statutory requirements because of the temporary injunction in Simon. Thus, the Department was forced to merely issue temporary letters of authority pending resolution of Simon. Unlike in Gonzalez-Bianco, here it was the Simon temporary order, not the Department’s voluntary acts, which temporarily delayed the Department’s enforcement of the statute. See Wineblad, 161 Ill. App. 3d at 831 (distinguishing Gonzalez-Bianco, 110 Ill. App. 3d 197, 441 N.E.2d 1308).

Plaintiffs also point out that two of the plaintiffs received no notice of the Department’s deadlines to pass the CGFNS. While that is not dispositive on appeal, the trial court is correct that the Department must make every effort to provide the opportunity to take the CGFNS and should include notification to all applicants affected by these proceedings of their rights and obligations. We agree with the trial court that everybody affected should have an opportunity to take the examination.

Because our decision here will affect many foreign-educated nurses who are presently practicing in Illinois under only a letter of authorization, we remand the case to the trial court for entry of an appropriate order concerning notification and deadlines for taking the exam. The trial court should continue to enforce the stay which prevents the Department from enforcing the requirement until the order stating notice and examination deadline requirements is negotiated and approved.

Finally, while we find no due process violation here, we sympathize with the plight of this particular group of nurses who have passed the NCLEX and have been practicing nursing in Illinois for several years. We believe that further remedy, if any, lies in a request by plaintiffs to the legislature for the passage of a bill which would “grandfather” in this group of foreign-educated nurses who practiced under a letter of authorization while the Simon litigation was pending.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed, and the cause is remanded with directions.

Judgment affirmed; cause remanded with directions.

SCARIANO, P.J., and DiVITO, J., concur.


author: JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEROME J. JENDRAS, Defendant-Appellant.
    First District (4th Division)
    No. 1 — 89—3142
    Opinion filed June 20,1991.

      Steven J. Rosenberg, RC., of Chicago, for appellant.
    John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, William P. Pistorius, and Steven M.. Klaczynski, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court;

Defendant, Jerome J. Jendras, appeals from his conviction of aggravated criminal sexual abuse, contending that he was not proved guilty beyond a reasonable doubt and that he did not receive a fair trial. Defendant was sentenced to two years of probation. He contends that the trial court erroneously admitted evidence of other incidents of sexual misconduct he had allegedly committed 9 to 15 years prior to the incident for which he was tried. He further contends that the prosecutor’s conduct and remarks throughout the trial were grossly improper and prejudicial.

For the reasons that follow, we affirm.

Background

Defendant, who taught classes at St. Lamberts, in Skokie, Illinois, was indicted for aggravated criminal sexual abuse in October 1989. The complaining witness, M.T., testified at trial that in October 1987 he was a seventh grader and defendant was his English teacher. M.T. was an average student and defendant was a “very strict” teacher. On occasion, M.T. had to stay after school for not completing his homework.

On one such occasion, M.T. and defendant talked about going swimming. On October 10, 1987, M.T. (with his mother’s permission) went over to defendant’s apartment in Chicago and the two of them went swimming in the pool at defendant’s apartment. They also used the sauna. Defendant gave him a swim suit, a pair of sweat pants and a pair of biking shorts. After leaving the pool, they went back to defendant’s apartment. According to M.T., they discussed body building and working out. M.T. saw a weight bench in the living room and did some bench presses while defendant spotted for him.

M.T. testified that while he was doing leg curls, defendant grabbed his thighs and started to massage them. M.T. said that defendant also massaged his buttocks.

Defendant then said it was time for a break and rubbed baby oil on M.T.’s body, except for the portion covered by the swim suit. M.T. asked why he did that but defendant did not answer. M.T. took a shower to wash off the oil and then had a snack with defendant. According to M.T., during another workout on the bench, defendant touched him on the buttocks and penis through his clothes. M.T. testified that he never told defendant to stop because he was afraid.

M.T. further testified that defendant took him into the bedroom and measured his chest, biceps, waist, neck, and thighs while M.T. was in his swim suit. Then he pulled down M.T.’s suit to measure his buttocks.

M.T. testified that the two of them then went to the living room and watched a video tape about a body building contest. M.T. said that defendant started massaging his legs and buttocks, finally pulling down M.T.’s swim trunks and rubbing his genitals. M.T. testified that the fondling continued for a few minutes and then M.T. said he had to go home. He did not tell his mother or brother when he got home because he was afraid they would make fun of him. His parents were divorced.

Following that incident, M.T. stayed after school 10 or 11 times because he did not do his homework. He testified that some of these times defendant would touch him while the door to the classroom was closed and the two were alone. Defendant would stop, however, when M.T. said that he had to go. On the last occasion that defendant touched him, they were in the comer of the room and someone tried to open the door, which was normally locked. Defendant went to open the door and spoke briefly to M.T.’s homeroom teacher, Ron Miller.

Later in the semester, defendant stopped teaching classes. M.T. did not say anything to the police when he found out that they were investigating defendant. When he initially met with police, he did not tell them anything because he was embarrassed and scared. Later, when an officer visited his home, M.T. revealed the sexual abuse.

The next two witnesses were brothers, E.N. and D.N. Their proposed testimony, concerning defendant’s other alleged acts of sexual misconduct, was the subject of defendant’s pretrial motion in limine. The trial court, sitting without a jury, denied the motion and allowed the testimony to be admitted.

E.N. testified that, some 16 years before the trial, he was an eighth grader at the school. His parents were going through a divorce. His mother agreed to let him spend the day with defendant one day in 1973. At defendant’s apartment, E.N. talked about the divorce and defendant gave him a book. Defendant invited him to swim and lent him a swim suit. They swam around for awhile and E.N. testified that he felt defendant’s hand touch him as E.N. swam by. When E.N. stopped and stood up, defendant pulled back his trunks and touched his penis. E.N. stopped him and said he did not want to swim anymore. Defendant then asked him to go to the sauna and he did.

In the sauna, according to E.N., defendant touched his knee and thigh and then his penis, on the outside of the swim trunks. When defendant put his hand inside EJSL’s trunks, E.N. pushed him away. They dressed, ate waffles, and the defendant took E.N. home.

On cross-examination, E.N. admitted that he did not tell police about the 1973 incident until 1988, in the course of the investigation leading to the pending charge. Defense counsel asked if E.N. was homosexual and if he had a “crush” on defendant. E.N. denied this and also denied that he had invited defendant to see some of the theatrical shows he was in. E.N also denied asking defendant to pay him $5,000 in exchange for not telling the police that defendant had abused him in 1973.

E.N. also testified that in a 1980 graduation party for his brother D.N., defendant and another man came to the party. Two or three weeks later, defendant and the other man took E.N. to a gay and lesbian parade. According to E.N., defendant tried to kiss him on the mouth. He denied that he had gone with defendant and the other man in 1980 because he wanted to establish a homosexual relationship with defendant. E.N. admitted talking to defendant several times in 1988 but said he had not talked to anyone about the incident before 1988 because he was embarrassed.

D.N., the younger brother of E.N., next testified that in 1980 he was 13 years old, an eighth grader. Defendant was his homeroom teacher. D.N. asked defendant to accompany him to a White Sox game because he looked up to him as a role model. Defendant picked him up and drove to the game. Then they went by defendant’s apartment and went swimming.

While in the pool, defendant took D.N. to the deep end to show him how to swim. When the water was about chin high, D.N. felt defendant’s arm rubbing his genital area. D.N. stated that he could not swim and was trying to protect his “manhood” so he became panicky. He got back to the shallow end and asked to go home. Defendant drove him home.

D.N. further testified that in January or February 1982, he saw defendant’s car at a school basketball game, took a bottle of mustard, and wrote “fag” on the windshield, in retaliation for the 1980 incident.

D.N. stated that his older brother never told him that he had been molested by defendant, nor did he warn him about it. D.N. said that he did not tell anyone what had happened in defendant’s apartment until eight years later, when he told E.N.

The State’s next witness, Ronald Miller, testified that he was an assistant principal and eighth-grade teacher. In January 1988, he went to defendant’s classroom between 4 and 4:15 to ask him a question. The door was locked and Miller tried to see into the window on the door. He said he observed defendant and M.T. in the corner of the room, facing each other with two desks put together. The lights were off in the room. He did not see any contact between the two. Defendant opened the door and answered Miller’s question.

Miller testified that M.T. appeared a “little sheepish.” He thought it a little unusual that defendant’s door was locked.

For the defense, eight character witnesses testified, along with defendant and a police detective, Kruszyansld. The detective testified that although he interviewed D.N. before trial he never made a report of the interview. He admitted that his police reports did not contain every detail of his interview of M.T. and did not give details about sexual contact between E.N. and defendant in the sauna at defendant’s apartment in 1973. Nor did the reports mention that defendant tried to Mss E.N. in 1980. KruszyansM further admitted that his reports did not mention that defendant had fondled M.T. He explained that the reports were just summaries of what witnesses told him, not verbatim reports.

Defendant testified that he was 47 years old and had lived in the same Chicago apartment for 16 years. He has two master’s degrees, in education and theology. After the accusations of sexual misconduct came to light, he was terminated by the Archdiocese as a teacher. At the time of trial he was earning a living by delivering packages for a private delivery service. Before his termination he had been a teacher for 19 years.

When he started teaching at St. Lamberts in 1973, discipline was lax and he introduced rules of conduct for his students. He posted his home phone number on the bulletin board. He required students to knock on the door before entering, and he kept it locked from the outside. This procedure stopped students from entering without permission and safeguarded charitable donations he kept in the room that were to be given to religious missions. He kept the room locked while the school was in church, and he gave his keys to a student representative to open the classroom and put the lights on for classes.

Defendant testified that during his 15 years at St. Lamberts he had taken students on approximately 100 field trips. He gave the children birthday and Christmas gifts and sometimes allowed students to use his apartment as a shelter when they suffered such severe problems as addiction to drugs or alcohol, or if a young girl was seeMng an abortion or a child was being battered by abusive adults. Defendant received many teaching awards over the years. He also was in the Army Reserve and had become a colonel at the time he was discharged because of the criminal charges.

In September 1987, M.T., one of his seventh-grade students, complained to defendant about his small physique. They discussed body-strengthening exercises. Defendant denied ever fondling M.T. He testified that on October 7, 1987, M.T. asked if he could come to defendant’s apartment so that defendant could teach him how to work out. On October 18, 1987, defendant showed M.T. the weights he had in the apartment. Then they went swimming, after which they returned to the apartment to work out. Defendant said he showed M.T. how to do leg curls and lifts. He denied touching M.T.’s genitals at any time. He did not show M.T. magazines or tapes of naked men, but he did show him workout magazines. He denied putting baby oil on M.T., pulling down his swim trunks, or measuring his naked buttocks.

Defendant said that in November, M.T. saw a picture of a wrestler in a magazine and asked defendant why the wrestler’s body was so shiny. Defendant told him that they used oil. The next day M.T. said he had put oil all over his body.

Defendant also testified that his building has 102 units and that the entrance to the pool is on the first floor, with large windows that provide a clear view into the pool by anyone walking outside.

Defendant testified that he first met E.N. when defendant started teaching in September 1973. E.N. was in the graduating class of 1974. The members of that class signed defendant’s autograph book. Defendant identified E.N.’s entry, which was dated May 6, 1974, shortly after the date on which E.N. claimed at trial was the date defendant had fondled him. The entry praised defendant as a “great teacher” and expressed appreciation for all the help defendant had given to him, going on at some length.

Defendant testified that E.N. had come to his apartment on May 4, 1974, at the suggestion of E.N.’s mother, who told defendant that E.N. was having problems over the divorce of his parents. E.N. asked defendant at the apartment whether “gays go to hell.” They did not go swimming, defendant did not give him a suit to wear, they did not use the sauna and defendant never fondled E.N. Defendant also denied that he told E.N. he looked good in the pants he was wearing at D.N.’s graduation party. He denied trying to kiss E.N. on the beach in 1982, although he said the two did meet in 1982 and E.N. became emotional and cried over problems with his parents.

Defendant further testified that beginning on June 18, 1988, E.N. telephoned him to ridicule him and say he was going to hell. He called again to set up a meeting. In August, when they met, defendant stated that E.N. demanded $5,000 or else he would go to the police and tell them the defendant did the same things to him as defendant was accused of doing to M.T. Defendant said he talked to the FBI after that and the calls stopped.

Defendant testified that he knew D.N. from the class of 1980 but he never went swimming with him or invited him to use the sauna. He denied going to a White Sox game with him and denied ever seeing “fag” written on his car in mustard.

On cross-examination over defense objections, the State asked a series of questions regarding the types of sex education lectures he gave in class; whether he ever showed movies about oral and anal sex; and whether he asked his students to raise their hands if they ever masturbated. Defendant admitted having responsibility for sex education but denied that he presented it in the manner suggested by the State’s questions. He also denied asking another student, B.B., how big his penis was, and, in fact, the trial court eventually struck the entire testimony of B.B., who testified in rebuttal on that and other points, such as defendant’s suspected homosexuality.

The State questioned defendant about his relationship with a certain man and whether they lived together. The State asked if he and the other man had attended a gay and lesbian parade.

The State also asked defendant if God forgave him his sins, after which the State asked another series of questions regarding the topics discussed in his theology. The State asked whether defendant discussed bestiality, homosexuals and masturbation. The prosecutor asked whether, when defendant taught, he wore “very tight pants and shirts.”

In rebuttal, the State called a 17-year-old female, G.K., a former student of defendant’s and neighbor of D.N.’s She testified over objection that defendant had a reputation among the students for being gay. That remark was stricken. The prosecutor stated that the issue of defendant’s homosexuality went “right to the root of his moral character.”

M.T’s mother testified that she noticed that after M.T.’s visit at defendant’s apartment, M.T. had a bathing suit, sweat pants, and biker shorts which she had never seen before.

The trial court found defendant guilty. During the sentencing phase, the court considered approximately 85 letters from defendant’s former students, military colleagues, family, and friends. These letters expressed the highest regard for defendant’s character and conduct. The trial court sentenced defendant to two years of probation, conditioned upon his getting psychological counselling.

Opinion

Defendant contends that he was denied a fair trial because of prosecutorial misconduct and the improper admission of “other crimes” evidence against him. He also asserts that he was not proved guilty beyond a reasonable doubt of the charge.

I

On the issue of reasonable doubt, the State argues that this court has retreated from the requirement that the victim’s testimony, in sexual abuse cases, be “clear and convincing” or “substantially corroborated” to prove defendant guilty beyond a reasonable doubt. (People v. Byrd (1990), 206 Ill. App. 3d 996, 1006, 556 N.E.2d 176, 182, appeal denied (1991), 137 Ill. 2d 667; People v. Casiano (1991), 212 Ill. App. 3d 680.) The standard of proof here, as in any case, requires the State to prove that the accused committed the offense beyond a reasonable doubt, whether the evidence is direct or circumstantial. We do not find it productive to engage in a semantic battle over the quality or quantity of evidence required to meet that standard. We are aware of the cases in which the sentiment is expressed that claims of sexual abuse are easy to make, hard to prove, and harder still for a defendant to defeat. (See, e.g., People v. Findlay (1988), 177 Ill. App. 3d 903, 532 N.E.2d 1035, appeal denied (1989), 125 Ill. 2d 569, 537 N.E.2d 814, quoting People v. Nunes (1964), 30 Ill. 2d 143, 146, 195 N.E.2d 706, 707, but of. People v. Meador (1991), 210 Ill. App. 3d 829, 568 N.E.2d 1386 (rejecting double standard).) We do not necessarily agree, however, that “more” or “better” evidence is required in sexual abuse cases than in any others, since it is doubtful that any one-on-one crime could be established without either the clear and convincing testimony of the victim or independent corroboration. If the complaining witness’ testimony is vague and unconvincing or uncorroborated, the defendant’s denial of any crime should be given the benefit of the doubt. We therefore decline to pronounce any change in or weakening of the standard of proof in sex abuse cases, which we find to be the same as in any other case.

It is true, however, that sexual abuse cases pose troubling questions for trial judges who must decide who is telling the truth. In the pending case, the trial judge expressly noted that she has seen examples of possibly fictitious accusations of sex abuse, both on the bench and in her practice as a defense lawyer, and “for that reason [she] lookfs] at cases of this type with an extremely skeptical eye.” She went on to find this defendant guilty beyond a reasonable doubt, however, even apart from the testimony of E.N. and D.N.

We believe that this court must view the testimony of M.T. and the trial court’s findings on credibility as binding on the issue of whether the State carried its burden of proving the charge beyond a reasonable doubt. As will be discussed below, we have reservations about the testimony of E.N. and D.N., but the testimony of M.T. and the trial court’s findings as to M.T.’s credibility are not, in our opinion, so improbable or unsatisfactory as to create a reasonable doubt of guilt. See People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

The trial judge commented that there were “many aspects of [defendant’s] teaching that [she] found particularly commendable” but that it was not her role to judge his teaching skills or determine how and what he should teach. She found as follows:

“Two things have really been proved in this case. The first thing is that the defendant is a respected teacher. He has contributed much to his school, his church, his community, his country, through his military service.
The other thing that’s been proved is that the defendant sexually abused [M.T.] I found the testimony of [M.T.] standing alone sufficient to support a finding of guilty, found it clear, convincing, utterly credible. He was not materially impeached in any way." (Emphasis added.)

The judge found “no hostility evident in his testimony” and nothing to indicate any reason why M.T. would be lying. Her additional comments indicate a commonsense realization that kids like attention but that it was doubtful that children aged 12 and 13 years would want their involvement in incidents of sexual conduct to be brought to the public and the press. The court also found “most damning” the testimony of Mr. Miller, “who corroborated the testimony of [M.T]” by providing substantiation of the incident in which defendant and M.T. were sitting alone in the locked classroom. The judge noted a conflict in defendant’s testimony about the circumstances in which the door was locked, in light of Miller’s testimony that it was not always closed and locked when Miller came to the door.

We do not find it unusual that M.T. was silent about the incident. He was 12 years old at the time and looked up to his teacher. Shame and confusion might have kept him from confiding to anyone, including the police officers who initially questioned him. Soon after, however, he did report the abuse when the officer came to his house. See, e.g., People v. Rassmussen (1986), 143 Ill. App. 3d 11, 492 N.E.2d 612 (affirming conviction of child abuse where victim failed to make a prompt complaint and initially failed to tell the police when they questioned him); People v. Escobedo (1986), 151 Ill. App. 3d 69, 83, 502 N.E.2d 1263, 1272, (Court should not “be unmindful that the shame, guilt, or embarrassment which a child suffers when victimized in the manner proved here excuses a delay in the minor’s disclosure of such incidents”).

We conclude that defendant’s conviction is supported by evidence of his guilt beyond a reasonable doubt.

II

The alleged trial errors are more problematical. The State normally is barred from presenting evidence tending to show that defendant has committed other crimes or bad acts, the reason being to prevent the fact finder from deciding the accused is guilty of the crime charged because of his or her “propensity” to commit such crimes. (See, e.g., People v. Rose (1990), 198 Ill. App. 3d 1, 555 N.E.2d 414.) Well-recognized exceptions to the general rule permit such evidence to show “intent, motive, identity, absence of mistake, knowledge, common design, scheme or plan, or modus operandi.” People v. Esterline (1987), 159 Ill. App. 3d 164, 168, 512 N.E.2d 358, 361, appeal denied (1987), 117 Ill. 2d 548, 517 N.E.2d 1090.

The exception the State relies on in the pending case is that of modus operandi. In order to submit evidence under this exception the State must show that “ ‘both crimes share peculiar and distinctive common features so as to earmark both crimes as the handiwork of the defendant.’ ” (Esterline, 159 ILl. App. 3d at 169-70, 512 N.E.2d at 362, quoting People v. Kimbrough (1985), 138 Ill. App. 3d 481, 486-87, 485 N.E.2d 1292.) Defendant argues that in this case, the testimony of E.N. and D.N. is not sufficiently similar to that of M.T.’s description of the acts of defendant to come within this exception to the general rule. Defendant claims that the only similarities between the three incidents of abuse are that they took place at defendant’s apartment. The State views the issue differently, noting that all three victims were males in the seventh or eighth grade who had defendant as their teacher and who went alone to his apartment, where they were provided swimming suits and invited to swim and use the sauna. Their parents were living apart and they were living with their mothers. In all three cases, the acts of touching and fondling were similar, and the defendant ceased when the boys said they had to leave.

We agree with the State that the three incidents were similar enough to constitute a pattern that fits within the modus operandi concept (see, e.g., People v. Taylor (1987), 153 Ill. App. 3d 710, 506 N.E.2d 321, appeal denied (1987), 116 Ill. 2d 573, 515 N.E.2d 123; People v. Williams (1989), 185 Ill. App. 3d 840, 541 N.E.2d 1175, appeal denied (1989), 127 Ill. 2d 639, 545 N.E.2d 129). We believe that since the State normally is allowed to present whatever evidence is relevant to the issues, this evidence is admissible under the modus operandi exception to the general bar against other crimes evidence. Nevertheless, the prejudicial impact of such testimony is so great that we must consider whether admission of this evidence was an abuse of discretion under the circumstances.

We are concerned about the remoteness in time of the brothers’ testimony. In our opinion, the testimony of E.N., in particular, is open to challenge based on the time that elapsed from the time the alleged sexual abuse occurred and the time E.N. came forward, at age 29. Moreover, the evidence indicated that he and defendant had maintained some contact over the years, on at least one or two occasions when E.N. was an adult. Based on this and other evidence, the defense attempted to demonstrate that E.N.’s motives in testifying were suspect. Then, too, E.N. apparently did not warn his younger brother, D.N., that defendant might attempt to molest him. Finally, E.N.’s entry in defendant’s autograph book, made a few days after defendant allegedly fondled E.N., casts some doubt on the story that came out 15 years later. E.N. praised defendant as a great teacher and thanked him for his help at some length, which does not appear consistent with sexual trauma.

On the other hand, it is not the role of this court to decide the credibility of witnesses. The trial judge did not find any evidence that E.N. was “a jilted lover,” despite the defense attempts to suggest that scenario. The judge also found that the autograph book did not affect E.N.’s credibility because he was 13 at the time and was writing something that would be viewed by his whole class and it was to a teacher that he cared about. The judge noted that when authority figures or role models sexually abuse children, the victims do not necessarily react with anger and hostility, at least until they grow older and realize what happened.

A trial court’s decision to admit other crimes evidence under modus operandi or any other exception to the general bar is a judgment call tied to the particular circumstances of the case. When the evidence is also remote in time from the occurrence that is being tried, the court may bar admission of the evidence if its relevance is substantially undermined thereby. (See, e.g., People v. Tennin (1987), 162 Ill. App. 3d 520, 524, 515 N.E.2d 1056, 1059; People v. Mikyska (1989), 179 Ill. App. 3d 795, 803, 534 N.E.2d 1348.) While the admission of such evidence may lead to reversible error in some cases, we believe that in general, the issue of remoteness should go to the weight of the evidence rather than its admissibility. See People v. McMillan (1980), 86 Ill. App. 3d 208, 407 N.E.2d 207 (10-year gap between incident of prior sexual misconduct and offense charged did not preclude admission of evidence).

Accordingly, we resolve this close question of the admissibility of the evidence in favor of the trial court’s discretion, particularly since this was a bench trial and the trial judge’s comments reflect her considered efforts to weigh the evidence even apart from the testimony of E.N. and D.N. In that regard, even if we were to find that the admission of the evidence was error, we would find it to be harmless error in light of M.T.’s clear and convincing evidence of defendant’s attack. Because M.T.’s testimony was not inherently incredible, nor materially impeached, the outcome of defendant’s trial would not have differed had the court refused to admit the testimony of the two brothers.

III

Defendant’s final contention is that he was denied a fair trial because of the prosecutors’ disparaging remarks that attacked defendant’s perceived lifestyle. The first incident defendant cites occurred in court, in the presence of the judge. The lead prosecutor for the State turned to defendant, gestured toward the courtroom door and said, “Homosexuals first.”

Such a comment is certainly inappropriate courtroom behavior and the State’s brief concedes that it was “ill-advised.” The tone of the remark reflects poorly on the speaker, an officer of the court. This prosecutor also asked defendant if he wore “very tight pants and shirts” while teaching and asked if “God [forgave him his] sins.” Apart from their offensive nature, the relevance of such questions is clearly lacking because defendant was not on trial for his sexual preference, his dress, or whether his lifestyle fit within his theological learnings. The trial judge demonstrated her awareness of what matters were irrelevant by her comments and by cutting off questions that were designed to create an issue of homosexuality relating to defendant’s character. When the prosecutor argued that homosexuality “goes right to the root of his moral character,” the trial judge said, succinctly, “Homosexuality is not against the law. Who cares?”

The record reveals the ineffectiveness of the prosecutor’s remarks and improper questions. The court expressly disregarded those “elements of the defendant’s lifestyle [that] were injected into the case.” As the judge found, “His lifestyle is totally irrelevant to this case. It has nothing to do with the facts here.”

We conclude that the prosecutor’s unseemly remarks did not sway the trial court and therefore did not affect the outcome of the trial.

We affirm defendant’s conviction and sentence of probation.

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.


author: JUSTICE McNULTY

text:
      In re APPLICATION OF THE COUNTY TREASURER AND ex officio COUNTY COLLECTOR OF COOK COUNTY FOR ORDER OF JUDGMENT AND SALE AGAINST REAL ESTATE RETURNED DELINQUENT FOR THE YEAR 1985 (R. Huffman, Petitioner-Appellant, v. Allison S. Davis, Jr., et al., Respondents-Appellees).
    First District (5th Division)
    No. 1 — 89—3445
    Opinion filed June 21,1991.

      Stanford D. Marks and Richard D. Glickman, both of Chicago, for appellant.
    Orlikoff & Flamm, of Chicago (Arnold M. Flamm and Matthew A. Flamm, of counsel), for appellees.
   JUSTICE McNULTY

delivered the opinion of the court:

This is an appeal from a final order of the circuit court of Cook County finding that petitioner, R. Huffman, was not entitled to the issuance of a tax deed because he failed to exercise due diligence in ascertaining the identity of those parties entitled to notice of his tax deed petition. The particular question presented is whether a land trust beneficiary whose name and address are reasonably ascertainable must be afforded notice by mail or by personal service of the pendency of tax deed proceedings.

The matter before the court involves a petition for tax deed filed by petitioner R. Huffman. The property in question involves a 25-foot vacant lot located at 1519 North Mohawk Avenue in Chicago that was sold on February 13, 1987, to Huffman for nonpayment of one installment of the 1985 general real estate taxes. The issuance of the order for deed has been contested by respondents Allison S. Davis, Jr. (Davis), William Moorehead (Moorehead) and M/D Ventures, an Illinois partnership (M/D).

The facts are substantially undisputed. M/D acquired title to the property by deed dated January 3, 1985. On that date, M/D executed a trust deed in favor of Chicago Title and Trust Company, trustee, to secure an indebtedness and an assignment of rents to Community Bank of Lawndale. These documents were signed by Moorehead and Davis, each of whom is identified as “partner.”

On November 30, 1987, record title to the property was conveyed to the American National Bank and Trust Company of Chicago, as trustee under a trust agreement dated June 30, 1987, known as trust No. 102917-06, by a deed of trust. This document bears the signatures of Davis and Moorehead as grantors, each described as “general partner, M/D Ventures.” The deed in trust does not contain transfer stamps and contains an indication of exemption. The trust agreement shows that Davis and Moorehead each own a 50% interest in the “earnings, avails and proceeds” of the real estate. The trust agreement is not filled in as to whom inquiries, notices and other matters should be referred.

Davis and Moorehead are the general partners of M/D. Both Davis and Moorehead are listed in the Chicago telephone directories. M/D has been registered under the “assumed name” statute with the county clerk of Cook County.

Petitioner filed his tax deed petition on October 25, 1988. The sheriff served notice on American National Bank, Chicago Title and Trust Company, Community Bank of Lawndale and Stanley Kusper, county clerk of Cook County. American National Bank also received certified mail notice from the clerk of the circuit court. No attempt was made to serve the respondents, and Davis does not recall receiving any notification from American National Bank. Publication as to unknown owners or parties interested was had in the Daily Herald on November 14, 15 and 16, 1988, but the published notice did not mention any of the respondents by name.

At the hearing on this matter, the petitioner testified that he reviewed the records at the office of the Cook County recorder of deeds, including an examination of the tract book. Based on this title search, he determined that the parties interested in the real estate were American National Bank as trustee, Chicago Title Trust as trustee under a trust deed, and Community Bank of Lawndale through an assignment of rents. He also examined documents listed in his title search with the exception of the initial deed to M/D. Although he examined the deed in trust to American National Bank in the microfilm library maintained by the recorder of deeds, he did not notice the names of Moorehead and Davis thereon. Nor did he recall noticing the tax-exempt stamp on the deed. Petitioner further testified that he had examined the trust deed and the assignment of rents in the recorder’s office, but again did not notice the names of Davis and Moorehead thereon. He did not examine any telephone books to see if Davis or Moorehead was listed therein, nor did he visit the Cook County clerk’s office to see if M/D was registered there under the assumed name statute.

Petitioner relies on two cases decided by this court, In re Application of the County Treasurer & Ex-Officio County Collector (1969), 113 Ill. App. 2d 50, 251 N.E.2d 757 (petition of Winnetka Investment Co.) and Lois, Inc. v. Halvorsen (1971), 5 Ill. App. 3d 149, 275 N.E.2d 172, to support his contention that land trust beneficiaries disclosed or undisclosed are not entitled to notice of the pendency of tax deed proceedings. For the reasons set forth below, these cases are not dispositive of the issue presented here.

County Treasurer (Winnetka Investment Co.) focused on the question of whether land trust beneficiaries are such “parties interested in real estate” as to require that they be notified of tax deed proceedings. The court concluded that under Hlinois law, the interest of a land trust beneficiary was personalty, not realty and, therefore, the owner of such an interest was not a person interested in the real estate within the meaning of provisions 263 and 266 of the Revenue Act of 1939 (Ill. Rev. Stat. 1987, ch. 120, pars. 744, 747) requiring personal notice of tax deed proceedings. However, in that case it was not apparent that the tax deed petitioner could have ascertained the identities of the land trust beneficiaries from public records. Under such circumstances constructive notice to the beneficiaries through service on the trustee and through publication is the best obtainable. Furthermore, since respondents assert protections under the due process clause of the fourteenth amendment to the United States Constitution, it will be necessary to address what notice land trust beneficiaries Moorehead and Davis were due under the facts of the instant case.

I

In Lois, Inc. v. Halvorsen (1971), 5 Ill. App. 3d 149, 275 N.E.2d 172, real estate was sold to Lois for delinquent taxes. The redemption period expired and a petition for tax deed was filed. The petition recited: (1) that the land trust trustee (a bank) was legal title holder and had been served with notice; (2) that the premises occupants had been served with notice; (3) that the person last assessed for real estate taxes, Charles Halvorsen (respondent’s father), was deceased and that notice had been sent to his last known address by certified mail; and (4) that respondent, William Halvorsen (the land trust beneficiary), had an interest in the real estate, but after diligent inquiry could not be located in Cook County and personally served, but had been served by certified mail with receipt card returned signed in respondent’s name by W. H. Sommers.

The following evidence was introduced at trial of tax deed petitioner’s “diligent inquiry” to locate and notify respondent land trust beneficiary of the tax deed proceedings. A witness testified that he was employed by Interstate Bond Company to check tax records, titles and to serve process in connection with Lois’ tax deed proceeding. He personally served notice on the trustee bank, informed the respondent by telephone conversation of the tax sale and made an appointment to serve notice at respondent’s law office, but respondent failed to keep the appointment. Respondent was then mailed a certified letter containing the notice and the return receipt card was signed by W. H. Sommers, who was in the same office and had the same telephone number as respondent.

Williams, a process server, testified that he was directed to serve notice of the tax proceeding on respondent. In that endeavor, he visited respondent’s home four times, but was told on each occasion by various family members that respondent was not at home. He further testified that a man he now knew as respondent was seated at a table in the home during one of his attempts to serve the notice.

Respondent testified that he was the land trust beneficiary and, as such, was entitled to personal service of notice that the tax deed proceedings were pending. Respondent further testified that he had no notice, had never had a conversation with any employee of Interstate Bond Company, was never told by his wife of her conversation with anyone about a tax sale, and that W. H. Sommers shared space with him in a law office, but they were not partners in the practice of law.

The court in Halvorsen followed County Treasurer (Winnetka Investment Co.) holding that respondent, as beneficiary of a land trust, was not entitled to personal notice in the tax deed proceeding. The Halvorsen court was also not presented with the constitutional due process claims of the instant case.

In Halvorsen, however, the tax deed petitioner not only served the trustee of the land trust and respondent’s deceased father at his last known address, but also from his records search deemed respondent to be an interested party in the real estate for notice purposes. Unlike Huffman in the instant case, the tax deed petitioner did not rely on the holding of County Collector (Winnetka Investment Co.) or on the language of section 263 of the Revenue Act of 1939 that “notice served upon the trustee shall be deemed to have been served upon any beneficiary” (Ill. Rev. Stat. 1987, ch. 120, par. 744). Rather, he embarked upon a diligent inquiry to locate respondent. To that end, he had an employee of a tax search firm contact respondent by telephone, and even hired a process server who attempted to serve respondent personally on four separate occasions. By his actions, petitioner in Halvorsen, when his search of the record indicated respondent’s potential interest in the real estate, did everything possible to serve him with notice personally as his witnesses’ testimony indicated. Therefore, even if personal service had been required, petitioner would have been excused from doing so because he had made diligent efforts in that regard.

In contrast, petitioner Huffman in the instant case made no attempt to personally or by certified mail serve notice on Davis, Moore-head or M/D Ventures although M/D Ventures acquired title to the subject property by deed dated January 3, 1985, and on that date executed a trust deed in favor of Chicago Title and Trust Company, trustee, and an assignment of rents to Community Bank of Lawndale. These documents were signed by Moorehead and Davis, each of whom was identified as “partner.”

On November 30, 1987, record title to the property was conveyed to American National Bank and Trust Company, as trustee under a trust agreement dated June 30, 1987, known as trust No. 102917-06, by a deed of trust. This document bore the signatures of Davis and Moorehead as grantors, each described as “general partner, M/D Ventures.” The deed in trust did not contain transfer stamps and contained an indication of exemption. In addition the trust deed to Chicago Title and Trust Company and the assignment of rents to Community Bank of Lawndale executed by M/D Ventures, signed by Davis and Moorehead as partners on January 3, 1985, were not released upon transfer of the subject property into the land trust on June 30,1987, or thereafter.

A tax buyer, in conjunction with the filing of a petition for a tax deed in the circuit court, must have the sheriff serve notice of the petition upon

“owners and parties interested in the real estate sold, if upon diligent inquiry they can be found in the county.” (111. Rev. Stat. 1987, ch. 120, par. 744.)

Such notice must contain the date upon which the petition for tax deed was filed and the date when the period of redemption will expire.

Although beneficiaries may have a right to redeem property from a tax sale proceeding, section 263 of the Revenue Act of 1939 (Ill. Rev. Stat. 1987, ch. 120, par. 744) provides in pertinent part:

“Where a party interested in the real estate is a trustee, notice served upon the trustee shall be deemed to have been served upon any beneficiary or note holder thereunder unless the holder of the note is disclosed of record.”

Respondents concede that the relevant language of section 263 could be construed to excuse any need to serve notice upon the trust beneficiaries, even if their identities and addresses are known to the tax deed petitioner or can be reasonably ascertained by him from the public records. Nonetheless, they maintain that such an interpretation would render the statute unconstitutional under the due process provisions of the fourteenth amendment of the United States Constitution, not on its face, but as applied in situations where the identity and address of the trust beneficiary are known to the tax deed petitioner or can be readily ascertained from public records.

Although this court concluded in County Collector (Winnetka Investment Co.) and Halvorsen that beneficiaries are not entitled to notice, these cases do not resolve the issue here for the reasons set forth below.

In the seminal case involving notice required under the due process clause, Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652, the United States Supreme Court found that published notice of judicial settlements constituted insufficient notice to beneficiaries of a common trust fund who could easily be reached by mail. The court stated that “[wjhere the names and post-office addresses of those affected by a proceeding are at hand, the reasons disappear for resort to means less likely than the mails to apprise them of its pendency.” (Mullane, 339 U.S. at 318, 94 L. Ed. at 875, 70 S. Ct. at 659.) Notice by publication was inadequate “not because in fact it fails to reach everyone, but because *** it is not reasonably calculated to reach those who could easily be informed by other means at hand.” (Mullane, 339 U.S. at 319, 94 L. Ed. at 876, 70 S. Ct. at 660.) Thus, the court concluded that publication alone was sufficient only for those beneficiaries whose identity or whereabouts could not with due diligence be ascertained.

More recently, in Mennonite Board of Missions v. Adams (1983), 462 U.S. 791, 77 L. Ed. 2d 180, 103 S. Ct. 2706, the Supreme Court found that due process mandates that a mortgagee receive notice reasonably calculated to apprise him of a pending tax sale, and when the mortgagee is identified in a mortgage that is publicly recorded, constructive notice by publication must be supplemented by notice mailed to the mortgagee’s last known available address, or by personal service. Consequently, the Supreme Court concluded:

“Notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party, *** if its name and address are reasonably ascertainable. Furthermore, *** knowledge of delinquency in the payment of taxes is not the equivalent to notice that a tax sale is pending.” Mennonite, 462 U.S. at 800, 77 L. Ed. 2d at 188, 103 S. Ct. at 801.

It is clear that in the instant case, the names and addresses of the beneficiaries were reasonably ascertainable. M/D remained the assessee after the transfer of its interest, and the interest of Davis and Moorehead was reflected in the deed of trust, trust deed and assignment of rents. In addition, the address of M/D was contained on the deed whereby title was acquired by M/D. Petitioner, nonetheless, testified that he did not notice the respondents’ names on any of the documents he reviewed, nor did he review the deed to M/D.

The fact that the names and addresses of the respondents were reasonably ascertainable indeed presents an issue as to the constitutionality of section 263 as applied to this case. We need not, however, reach this issue. A statute should be construed wherever possible in such a manner as to avoid rendering it unconstitutional. Harris v. Manor Healthcare Corp. (1986), 111 Ill. 2d 350, 489 N.E.2d 1374.

To avoid holding section 263 unconstitutional as applied to the instant case, the trial court first found that the possible interest of respondents in the real estate, as well as their names and addresses, were in the public record numerous times. Thus, rather than find section 263 unconstitutional, the petitioner’s request for a tax deed was denied solely on the basis that he failed to exercise due diligence in ascertaining the interest of the respondents. In addition to section 263 providing that notice to a trustee is deemed to be notice to a beneficiary, the section also requires the tax purchaser to make “diligent inquiry” to find and serve all owners and parties interested in the real estate. (Ill. Rev. Stat. 1987, eh. 120, par. 744.) Furthermore, section 266 provides that the court shall insist on strict compliance with the requirements contained in section 263. (Ill. Rev. Stat. 1987, ch. 120, par. 747.) Diligent inquiry is that kind of search or investigation which a diligent man, intent on ascertaining a fact, would usually and ordinarily make. (In re Application of County Treasurer (1975), 32 Ill. App. 3d 161, 336 N.E.2d 167 (Petitioner Ron Ohr v. Hoffman).) (“A tax purchaser is obliged to look at information contained in county tax and title records so that he may serve the notices required by the Revenue Act. ‘[HJaving the means before his eyes of ascertaining the truth, by merely looking, in regard to a fact about which it is his duty to know, if he fails to look he does not act in good faith.’ ”) 32 Ill. App. 3d at 164, quoting Keeney v. Glos (1913), 258 Ill. 555, 557, 101 N.E.943.

Petitioner Huffman made no effort whatever to learn the nature of that interest or serve respondents either personally or by certified mail. He justified this action on the serendipitous ground that respondents eventually turned out to be land trust beneficiaries rather than other interested parties such as mortgagees or note holders of record. Because petitioner served the land trust trustee, he contends that the statute not only excused him from serving notice on the beneficiaries, but also excused him from making any inquiry to ascertain the interest or whereabouts of the respondents. In rejecting that argument, the trial court aptly stated:

“[Njeither the case law nor statutory provisions relied upon by Petitioner limit his obligation to meet the requirements of diligent effort and inquiry and strict compliance set forth elsewhere in the Revenue Act. Petitioner apparently did not know, or take steps to ascertain, the status of Moorehead and Davis as beneficiaries, or their relationship to M/D and although their names and addresses were readily ascertainable, he did not attempt to contact them to determine their interests, or serve them to achieve compliance. Under these circumstances he cannot rely on decisional and statutory authority concerning beneficiaries, and the latter [sic] discovered status of Davis and Moorehead, [as beneficiaries], to lessen his responsibility to achieve the requisite statutory standard.”

Following Mennonite, courts in other jurisdictions have held that land trust beneficiaries whose names and addresses can readily be ascertained from public records have a constitutional right to personal or mailed notice of tax deed proceedings, even where the State statute is to the contrary. Lilly v. Duke (W. Va. 1988), 376 S.E.2d 122; Lohr v. Cobur Corp. (Mo. 1983), 654 S.W.2d 883; Wylie v. Patton (1986), Ill Idaho 61, 720 P.2d 649.

Requiring a tax deed petitioner to conduct a diligent inquiry to ascertain the identities and interests of land trust beneficiaries when their names and addresses are readily available from public records does not totally negate the language in section 263 that “notice served upon the trustee shall be deemed to have been served upon the beneficiary.” (Ill. Rev. Stat. 1987, ch. 120, par. 744.) Unlike the instant case, in most land trust situations the identities and addresses of land trust beneficiaries cannot be readily ascertained from public records. They are both unknown and unknowable. In such cases substitute service upon the land trustee is far more likely to reach the beneficiary than would newspaper publication directed to “Unknown Owners and Parties Interested in the Real Estate.”

Respondents Davis and Moorehead as beneficiaries of a land trust had a right to redeem from the tax sale by disclosing their interest of record. (Ill. Rev. Stat. 1987, ch. 120, par. 734.) It is logical also to conclude that they should be entitled to notice of the pending expiration of the period of redemption if their names and addresses were reasonably ascertainable from the public records as in the instant case. Article IX, section 8(b)(1), of the Illinois Constitution of 1970 states: “The right of redemption from all sales of real estate *** shall exist in favor of owners and persons interested in such real estate ***,” and (c) states: “Owners, occupants and parties interested shall be given reasonable notice of the sale and the date of expiration of the period of redemption as the General Assembly provides by law.” Ill. Const. 1970, art. IX, §§8(b)(l), (c).

A “diligent inquiry” by petitioner in the instant case should have determined the likelihood that respondents still had an interest in the real estate notwithstanding the delivery of the deed in trust to American National Bank. This was evidenced by the fact that the deed was exempt from transfer tax, an indicia that there was no sale of the real estate. Further, there was no change of address on the tax bills nor release of the existing mortgage and assignment of rents following the conveyance to the bank, another indication that respondents retained an interest in the subject real estate. Addresses of the respondents were obtainable either from the public documents themselves or from telephone directories and the assumed name certificate on file in the county clerk’s office. Therefore, we hold, as the trial court did, that notice to the beneficiaries under these circumstances was required.

II

Finally, petitioner argues that land trust beneficiaries are not persons “interested in the real estate,” and thus are not entitled to notice under the statute. He relies on the language of the trust agreement, section 1 of the Land Trust Beneficial Interest Disclosure Act definition of “land trust” (Ill. Rev. Stat. 1989, ch. 148, par. 71), and certain court decisions including those of this court in County Treasurer (Winnetka Investment Co.) and Halvorsen. However, as noted herein the two cases cited above antedated the decision of the United States Supreme Court in Mennonite and were not presented with the constitutional due process claims asserted in this case by respondent land trust beneficiaries whose identities and addresses were readily ascertainable from public documents.

Assuming arguendo that respondents’ interests are personal property not real property, the due process requirements of the United States Constitution are not limited to interests in real estate. (Logan v. Zimmerman Brush Co. (1982), 455 U.S. 422, 71 L. Ed. 2d 265, 102 S. Ct. 1148; Fuentes v. Shevin (1972), 407 U.S. 67, 32 L. Ed. 2d 556, 92 S. Ct. 1983; Perry v. Sindermann (1972), 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694.) Therefore, even if respondents’ interest as land trust beneficiaries was personal rather than real, under the circumstances of this case, due process required that they be notified personally or by certified mail of the pendency of the tax deed proceedings. The Illinois Supreme Court in Home Federal Savings & Loan Association v. Zarkin (1982), 89 Ill. 2d 232, 432 N.E.2d 841, recognized the characterization of a land trust beneficiary’s interest as personal rather than real property as “paradoxical.” (89 Ill. 2d at 238.) Further, in People v. Chicago Title & Trust Co. (1979), 75 Ill. 2d 479, 389 N.E.2d 540, our supreme court disregarded the fiction entirely in holding that the land trust beneficiary, rather than the trustee, is the owner of real estate for taxation purposes, language to the contrary in the trust agreement notwithstanding. One may infer from this holding that the rationale advanced in County Treasurer (Winnetka Investment Co.) and Halvorsen that land trust beneficiaries own no interest in real property subject to the notice provisions of the Revenue Act (Ill. Rev. Stat. 1989, ch. 120, par. 744) in tax deed proceedings is no longer viable under the circumstances of the instant case.

In conclusion, the two cases cited above, County Treasurer (Winnetka Investment Co.) and Halvorsen, relied on by petitioner, were decided before the 1973 amendment to section 253 of the Revenue Act of 1939 (Ill. Rev. Stat. 1989, ch. 120, par. 734), added by Public Act 78 — 787 (1973 Ill. Laws 2386), which reads in relevant part as follows:

“Real property sold under the provisions of this Act may be redeemed by owners and persons interested in real estate, other than undisclosed beneficiaries of Illinois land trusts ***.”

This court in In re Application of the County Treasurer (1973), 16 Ill. App. 3d 385, 306 N.E.2d 743 (Spackman v. Overton), concluded that this amendment recognized land trust beneficiaries are “persons interested in the real estate.”

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

Affirmed.

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