text:
    E S G WATTS, INC., Petitioner-Appellant, v. THE POLLUTION CONTROL BOARD et al., Respondents-Appellees.
    Third District
    No. 3—91—0384
    Opinion filed January 31, 1992.

      Immel, Zelle, Ogren, McClain & Costello, of Springfield (Kevin T. McClain, of counsel), for petitioner.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Jan E. Hughes, Assistant Attorney General, of Chicago, of counsel), for respondent Pollution Control Board.
   JUSTICE HAASE

delivered the opinion of the court:

The petitioner, ESG Watts, Inc., filed an application to construct an industrial waste storage and treatment facility under part B of the Resource Conservation and Recovery Act of 1976 (42 U.S.C. §6901 et seq. (1988)) (RCRA). The Illinois Environmental Protection Agency (IEPA) denied the permit, and Watts appealed the decision to the Illinois Pollution Control Board (Board). The Board affirmed the IEPA’s denial of the permit. Watts appeals from that decision.

On February 11, 1987, Watts, a subsidiary of Watts Trucking Services, Inc., filed applications for a part B RCRA permit and an NPDES permit with the IEPA to construct a facility in Rock Island, Illinois, for the storage and treatment of hazardous waste. The proposed facility would store and treat hazardous wastes that are water based or aqueous in nature such as wastes containing heavy metals, dichromate, cyanide, sulfide, oil, and solvent residues. The complex would be designed to treat and discharge 100,000 gallons of wastewa-ter per day.

Watts’ application for the RCRA permit indicated that the treated wastewater was to be discharged into the City of Rock Island’s storm sewer system, and from there it eventually would be discharged into the Mississippi River. On August 12, 1988, the IEPA issued a tentative draft RCRA permit. At that time, the IEPA informed Watts that it would issue a final decision on the permit after a public comment period.

In November 1988, Watts’ consulting engineer notified the IEPA that Watts had changed its planned method of disposal. The engineer indicated that the original method of disposal (discharging the waste-water into the city’s storm sewer) was not feasible since the storm sewer system was interconnected with the sanitary sewer system. Watts noted that it was therefore going to pursue plans for routing the discharge through a private pipeline into the Mississippi River. This method, however, required an easement from the City of Rock Island to extend the pipeline under a city street.

On December 19, 1988, the city expressed an intent to deny Watts’ request for an easement to discharge the treated wastewater. On September 6, 1989, the IEPA asked Watts whether it wished to pursue the permit, and, if so, to provide information regarding: (1) the status of its effort to obtain the easement; (2) the other options available for discharge; and (3) the date when it planned to make a final decision on its proposal. After obtaining two extensions of time to respond, Watts replied that it had been “dragging its feet,” but still wished to pursue the permit. Watts further stated that it hoped to be issued a permit that would allow it to “truck the water from the facility or use direct discharge, leaving both options open.”

On February 9, 1990, the IEPA wrote Watts requesting that it provide information on the final disposition of the wastewater generated by the treatment facility. In the letter, the IEPA also stated if Watts did not respond within 30 days with the requested information, the IEPA might deny the permit.

Watts submitted written responses on March 9 and March 30, 1990. Thereupon, Watts informed the IEPA that arrangements for discharge still had not been made. Watts also stated that it did not feel that the lack of the resolution of the discharge method should affect the approval process for the permit.

On March 29, 1990, Watts formally petitioned the city for an easement and that request was denied. On June 29, 1990, the IEPA denied the petitioner’s request for the part B RCRA permit. The denial letter stated the following:

“The permit is denied because the application has been deemed to be incomplete, on the grounds that the applicant has not demonstrated there is an acceptable means to dispose of the treatment plant wastewater. The disposition of the treated wastewater has significant potential to cause environmental damage if disposed of improperly and is an integral part of being able to provide a service as a hazardous waste treatment facility. The Agency does not feel that issuance of a permit without a feasible discharge point, is protective of the environment. Without a feasible discharge point, the facility operations could result in the indefinite storage of wastes at the site if the company was unable to resolve its problem.”

Thereafter, Watts filed an appeal with the Board. Following a hearing, the Board affirmed the IEPA’s denial of Watts’ permit request. Watts appeals from that decision.

Watts first argues on appeal that the IEPA failed to deny the permit within the statutory review period set forth in section 39(a) of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1989, ch. 111½, par. 1039(a)). It further contends that the effect of such inaction is that the permit is deemed issued.

In response, the respondents argue that the statutory time limitation is not applicable to RCRA permits and that even if it is, Watts waived the issue by failing to raise it previously.

We agree with the respondents that the time limitation set forth in section 39(a) of the Act does not apply to RCRA permits. A request for an RCRA permit is a more complicated procedure and is governed exclusively by section 39(d) of the Act (Ill. Rev. Stat. 1989, ch. 111½, par. 1039(d)). Section 39(d) does not place any time limits on the applications for such permits, except to the extent “filing requirements and procedures” are adopted by the Agency.

Moreover, we find that even assuming arguendo that the time limit was applicable, the issue was waived by Watts’ failure to clearly raise it before the Board rendering the decision from which the appeal was taken. (See Smith v. Department of Professional Regulation (1990), 202 Ill. App. 3d 279, 559 N.E.2d 884.) We further find that application of the waiver doctrine is especially appropriate here, since it was Watts that caused the delay by failing to submit a completed application.

Watts next argues that its incomplete application was not a proper basis on which the IEPA could deny the permit.

It is well settled that the petitioner has the burden of proving that the operation of the facility would not cause a violation of the Environmental Protection Act. (Environmental Protection Agency v. Pollution Control Board (1986), 115 Ill. 2d 65, 503 N.E.2d 343.) Board regulations state that an RCRA permit may be denied if the application is incomplete in that the applicant fails or refuses to correct deficiencies in the application. (35 Ill. Adm. Code §705.123 (1985).) On review, the appellate court will uphold the Board’s decision unless it is against the manifest weight of the evidence and a different conclusion than that reached by the Board is evident. Willowbrook Motel v. Pollution Control Board (1985), 135 Ill. App. 3d 343, 481 N.E.2d 1032.

Here, we find that Watts failed to meet its burden. Watts failed to establish that the grant of the permit would not violate the Act. The Board could reasonably conclude that the method of discharge of the treated wastewater was an integral part of the proposed operation of the facility. If Watts was unable to dispose of hazardous waste (treated wastewater) stored on its premises, it would be reasonable to assume that this would create some environmental risk. The Board is not required to speculate in order to determine whether Watts would be able to comply with the Act.

Watts attempts to intermingle its problems in obtaining an easement from the City of Rock Island with the IEPA’s denial of Watts’ permit. Watts cites County of Lake v. Pollution Control Board (1983), 120 Ill. App. 3d 89, 457 N.E.2d 1309, and Carlson v. Village of Worth (1975), 62 Ill. 2d 406, 343 N.E.2d 493, in support of its argument that the IEPA should not be allowed to deny a permit if the method of discharge was subject to a local zoning ordinance.

Here, the cases relied on by Watts do not apply. The proposed facility was not subject to a local zoning ordinance. Furthermore, we note, as the supreme court noted in Village of Carpentersville v. Pollution Control Board (1990), 135 Ill. 2d 463, 553 N.E.2d 362, that the Act has been amended so that it no longer preempts local zoning ordinances. Accordingly, Watts’ reliance on Carlson and County of Lake is misplaced.

Watts also argues that the IEPA erroneously failed to send it a formal letter of deficiency prior to denying the permit application.

We note that Board regulations provide that if the IEPA determines that an application is incomplete, it shall notify the applicant and list the information necessary to make the application complete. (35 Ill. Adm. Code §705.122(c) (1986).) In the instant case, the IEPA wrote to Watts on February 9, 1990, asking Watts to provide information relating to the final disposition of the wastewater. The IEPA further informed Watts that it had repeatedly asked Watts to resolve the issue and that the permit might be denied if the requested information was not provided. Under these circumstances, we find that the Board correctly found that although a formal deficiency letter would have been better, the text of the February 9 letter served to place Watts on notice that the Agency was requiring more information on the method of discharge and that it was essential to its final determination. Accordingly, we conclude that the IE PA substantially complied with the notice of deficiency requirement.

Based on the foregoing, we affirm the decision of the Pollution Control Board.

Affirmed.

GORMAN and SLATER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HAASE

license: Public Domain

text:
      In re MARRIAGE OF JULIE A. PERINO, Petitioner-Appellee, and SYLVANIO L. PERINO, Respondent-Appellant.
    Third District
    No. 3—91—0321
    Opinion filed February 4, 1992.

      Rolfe F. Ehrmann, of Ehrmann, Gehlbach & Beckman, of Dixon, for appellant.
    Lon M. Richey, of Nelson, Kilgus, Richey & Hauptman, of Morrison, for appellee.
   JUSTICE HAASE

delivered the opinion of the court:

The respondent, Sylvanio L. Ferino, appeals the distribution of property following his divorce from the petitioner, Julie A. Ferino. We affirm.

The record shows that Julie filed for divorce on March 22, 1990. A hearing was later held on the issues of child support and distribution of marital property. At the hearing, Julie testified that she married Sylvanio in 1980. Around that time, Sylvanio stopped attending college and began farming. They initially owned no land or farm machinery.

Julie further stated that while she was married, she worked as an Eagle’s check-out clerk. Her approximate wages were as follows: $17,500 in 1987; $15,000 in 1988; $18,000 in 1989; and $21,000 in 1990. The cash value of her pension was $2,137.62.

Julie said that during the course of their marriage, the parties had two children. One was age seven and the other was age eight. Julie was 33 years old at the time of the hearing.

Lastly, Julie testified that Sylvanio and his brother presently ran two farming operations, Ferino Brothers Farms and Rock River Farms. Sylvanio made most of the decisions for the businesses. Julie said he had excellent knowledge of agricultural finance and marketing.

Larry Meyers testified that as a credit manager for Whiteside FS, he made decisions about financing farm operations and collecting debts. During the past three years, his employer and another bank had financed Sylvanio’s businesses. He had relied on a financial statement included in the pretrial memorandum in extending credit to Sylvanio. That statement indicated that the net worth of Ferino Brothers Farms on a modified cost basis was $110,005, and the net worth on a market value basis was $232,414. He testified that market value was supposed to represent the price the farmer thought he would get if he sold the business.

Meyers stated that the values in the statement were slightly inflated. He said this was partly due to the low price of corn, which was between $2.35 and $2.40 a bushel. If the price rose to $2.60 a bushel, the listed value of the grain inventory would be accurate.

Meyers noted that the net worth of the operation had shown little increase in the past three years. He attributed this to the fact that the operation’s assets consisted mostly of machinery, which constantly depreciated. The machinery would be difficult to sell because it was large and specialized.

Meyers said Sylvanio and his brother were competent farmers who sometimes marketed their crops well. This year, however, they had lost $25,000 in the grain market and had not yet sold their com crop. They presently owed his employer $214,000.

Sylvanio testified that in 1990 his pay was $1,600 a month. In the last three years, his net personal income had averaged in the middle to high teens. He also sustained an $83,000 business loss in 1990.

Sylvanio said that through his businesses he had farmed about 3,500 acres in 1990. All of the land had been leased to his businesses. The assets of his businesses consisted mainly of grain and machinery. The machinery had to be replaced frequently because of the amount of acreage he farmed. Additionally, it rapidly depreciated in value.

Sylvanio stated that Rock River Farms had been created to take advantage of Federal agricultural programs. Ferino Brothers Farms was the more active operation. On December 14, 1990, Sylvanio had prepared a balance sheet for Ferino Brothers Farms, which he later delivered to the First of America Bank. He admitted that the balance sheet showed the approximate financial state of the business. The balance sheet indicated that the market value of the assets was $819,427, and the market value of the liabilities was $587,013.

Sylvanio testified, however, that $83,000 of the machinery listed as an asset was actually leased. The balance sheet also listed a $59,500 liability on the leased machinery. Sylvanio had an option to purchase the equipment at the end of the lease term. He said he was not likely to do so because of the large amount of acreage he farmed.

Sylvanio further stated that the listed value of $385,500 for crops and feed was incorrect. Given market conditions and the present state of the grain, it was actually worth $350,000.

The balance sheet also indicated that the business had loaned $15,000 to Sylvanio’s brother. Sylvanio did not know what the purpose of the loan was.

Sylvanio stated that if he attempted to liquidate all or part of his operation, there would be a tax impact which was not reflected on the balance sheet. He estimated that if he sold the operation, he and his brother would have to pay $137,500 in taxes. Taking that into account, he calculated the liquidated value of the business to be $35,914. Of that amount, he would be entitled to $17,957. Additionally, the operation was highly leveraged, so he would not be able to sell the assets without the approval of his creditors.

Sylvanio said that two financial institutions had recently rejected his request for an operating loan. He was unsure as to when he would eventually obtain the loan.

The trial court found that Sylvanio’s average net income was $17,000 a year. It therefore ordered him to pay $355 per month in child support. Julie was awarded the household goods, valued at $3,885; the Cougar automobile, valued at $5,500; and her pension plan, valued at $1,463. She also was ordered to assume $11,546 in debts.

Sylvanio received the assets of the farming businesses, valued at $783,927, as well as the liabilities, valued at $587,013. He also assumed a $500 bank debt. In order to equalize the distribution of marital property, Sylvanio was ordered to pay Julie $49,629.50. Of that sum, $9,629.50 was payable in 60 days. The rest was to be paid at an amortized rate over the next seven years. The interest on the unpaid amount was 9% per year.

On appeal, Sylvanio argues that the trial court erred in distributing the marital estate. He contends that the court’s decision unfairly imposed on him all the business risks. He further argues that the decision will force him to sell all or part of his businesses.

The trial court’s decision on the distribution of property will not be reversed unless the court clearly abused its discretion. (In re Marriage of Thornqvist (1979), 79 Ill. App. 3d 791, 399 N.E.2d 176.) We agree with Sylvanio that the court’s decision imposed most of the business risks on him. However, Sylvanio will also receive most of the benefits generated by the businesses. Since Sylvanio made most of the business decisions and it is often inadvisable to break up an ongoing business (see In re Marriage of Rapacz (1985), 135 Ill. App. 3d 1045, 482 N.E.2d 441), we find that the court properly ordered him to assume the business risks.

Moreover, after Sylvanio pays his debt to Julie, he will retain 75% of the market value of Ferino Brothers Farms. Since there will still be substantial equity in the business, we do not believe Sylvanio will be forced to liquidate it. Accordingly, we find no merit to his arguments.

Sylvanio further argues he can only meet the trial court’s order by selling assets. He contends that the trial court failed to consider the tax consequences of such a sale. He also argues that if the tax consequences of a complete liquidation are considered, the value of the business was only $35,914.

Section 503(dXll) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 503(d)(11)) states that in dividing marital property, the trial court shall consider the tax consequences upon the parties. However, the consequences that must be considered are those that immediately flow from the court’s decision. (In re Marriage of Emken (1981), 86 Ill. 2d 164, 427 N.E.2d 125.) Remote consequences or the result of voluntary actions should not be considered. In re Marriage of Hawkins (1987), 160 Ill. App. 3d 71, 513 N.E.2d 143; Emken, 86 Ill. 2d at 167, 427 N.E.2d at 127.

We note that the business had sufficient equity to make a $15,000 loan to Sylvanio’s brother. Consequently, we are not convinced that Sylvanio will have to sell any assets in order to meet the court’s order. Even if he has to, the taxes could be paid out of the large share of the business he was awarded. In regard to Sylvanio’s argument about the tax consequences of a complete liquidation, we have previously found that the trial court’s decision will not force Sylvanio to liquidate the entire business. Consequently, any such tax consequences are purely hypothetical and the result of voluntary action. They are therefore not a proper factor for consideration.

Sylvanio next argues that the court erred in incorporating the value of the machinery in the operation’s assets because its value was reflected in the child support order. He cites In re Marriage of Zells (1991), 143 Ill. 2d 251, 572 N.E.2d 944, in support of his argument.

In Zells, the court said that the value of professional goodwill is properly reflected in the maintenance and support awards. Accordingly, it found that it was not a divisible marital asset. In the instant case, by contrast, the machinery was business property acquired in the course of the marriage. Such property is subject to division as part of the marital estate. (Ill. Rev. Stat. 1989, ch. 40, pars. 503(a), (d).) Since we believe Zells should be limited to cases involving professional goodwill, we find that the court properly considered the value of the machinery in dividing the estate.

Sylvanio lastly argues that the court erred in considering the $83,000 in leased machinery to be an asset of his business. He contends that only the machinery he owned should have been considered an asset.

The record reflects that Sylvanio listed the machinery as an asset and a liability on the balance sheet he presented to the First of America Bank. Additionally, he testified that he had an option to purchase the equipment at the end of the lease term. Given that option and the presence of the equipment as a net asset on the balance sheet, we find that the court did not err in considering it to be marital property.

The judgment of the circuit court of Whiteside County is affirmed.

Affirmed.

BARRY, RJ., and SLATER, J., concur.


author: JUSTICE MURRAY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DONALD S. SALB, Defendant-Appellee (Jim Edgar, Secretary of State, Appellant).
    First District (5th Division)
    No. 1—90—3677
    Opinion filed December 13, 1991.
    Modified on denial of rehearing February 7, 1992.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and John A. Morrissey, Assistant Attorney General, of Chicago, of counsel), for appellant Jim Edgar.
    No brief filed for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

This is an appeal by Jim Edgar, the former Secretary of State. He appeals from an order of the circuit court entered on November 20, 1990, which directed the office of the Secretary of State to issue Salb a judicial driving permit (JDP) and denied a stay order pending appeal.

The case began as People v. Salb (Docket No. X7—472—946). Salb was arrested on December 7, 1989, for driving while under the influence (DUI), and he received a statutory 12-month suspension of his driving privileges effective January 22, 1990, for that reason. On April 27, 1990, Salb pled guilty to DUI and was ordered to serve 24 months’ supervision.

In addition to pleading guilty, Salb petitioned the court on April 27, 1990, for a judicial driving permit, and on October 26, 1990, the trial court issued its order granting the request and directing the Secretary of State to issue Salb a JDP. No party appealed that order.

On November 7, 1990, a supervisor in what is labeled the DUI Review Unit of the Secretary of State’s office sent a letter addressed to a supervisor in the circuit court clerk’s office of the fifth municipal district returning the order to issue the JDP to the clerk and suggesting that Salb was a second offender and not entitled to a judicial driving permit because his December 7, 1989, arrest was within five years of a previous implied consent supervision. The letter further indicated that the trial judge should “reassess the issuance of the JDP” and that the Secretary of State’s office should be notified if the court wished “to again officially order the issuance of the JDP” so that a stay order pending an appeal could be sought.

The circuit court clerk took no action, never notifying the court of the letter from the Secretary of State. It wasn’t until Salb petitioned the court for relief that the situation was made known to the court.

On November 20, 1990, the trial court held a hearing upon Salb’s petition to reassess the issuance of the JDP. At this hearing the assistant State’s Attorney agreed with Salb’s counsel that the JDP had been properly granted in accordance with the law. Nonetheless, the State requested a stay order since the Secretary of State had requested that this action be taken. The trial judge again ordered that the Secretary of State issue Salb a JDP and denied the stay since it appeared that the suspension would terminate on January 22, 1991, in any event.

An appeal was then taken by the Secretary of State through the present Attorney General. Notice of appeal was served on the defendant, through his trial lawyer, but not the State’s Attorney of Cook County, who represented the People in the trial court during the proceedings that resulted in the October 26, 1990, order granting the JDP, and the only briefs filed were by the Secretary of State through the present Attorney General. Further, the record reveals that the notice of appeal was not filed-stamped until December 21, 1990, and no motion for a stay was ever filed in this court.

Based upon the facts of this case, we must dismiss the appeal. It appears from the record, and the Attorney General agrees, that Salb’s 12-month suspension became effective on January 22, 1990, and thus the suspension would have expired on January 22, 1991. In light of this fact, we believe that any issue tendered by the Secretary of State’s appeal became moot on January 22, 1991, a month before the record was filed in this court.

Although this court could have chosen to consider this case under the public interest exception to the mootness doctrine (People v. Moffat (1989), 192 Ill. App. 3d 326, 548 N.E.2d 757), we are not required to do so. Since “first offender” status, which is at issue in this appeal, has been addressed in a number of other cases, we decline to review it here.

We have highlighted the facts of this case, however, to draw attention to what we feel are problems with the procedure set forth in section 6 — 206.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95½, par. 6—206.1) as interpreted by the Illinois Supreme Court in People v. Pine (1989), 129 Ill. 2d 88, 542 N.E.2d 711. In Pine the majority held that it did not violate the separation of powers doctrine to allow the Secretary of State to appeal orders of the circuit court which direct the Secretary of State to issue a JDP pursuant to section 6 — 206.1. In interpreting the statute in this manner, the supreme court gave the Secretary of State the authority to review a circuit court’s ruling that a JDP should issue, disregard the order to issue a JDP and return it to the court for “reassessment,” and then appeal any court “reassessment” that is adverse to its own.

Three justices dissented, believing that the legislature did not intend such a result when it amended the statute to allow for the issuance of JDPs. In his dissent, Justice Clark, joined by Justices Stamos and Calvo, opined that the majority’s interpretation of the statute was “illogical since it would require that circuit courts make two separate determinations on the same issue in JDP proceedings” and would cause both judicial and executive time and resources to be wasted. Pine, 129 Ill. 2d at 107.

Just as the dissenting justices in Pine predicted, the procedure currently being followed often requires a duplication of effort and gives rise to a number of appeals. For this reason, we agree with the court’s comments in People v. Kerr (1990), 196 Ill. App. 3d 207, 211, 552 N.E.2d 1329, that “[t]he number of appeals challenging the issuance of JDPs on the basis that the recipient was not a first offender within the meaning of section 11 — 500 suggests one or more problems with the procedures for making this determination.”

The Kerr court delineated certain pitfalls with the current procedure and changes that could be made that would “materially assist the circuit court in evaluating a petitioner’s eligibility for a JDP.” (196 Ill. App. 3d at 213.) In addition to the problems set forth in Kerr, we have observed that, as in the present case, the Secretary’s “return” of the order to the circuit court clerk can sometimes elude the notice of the circuit court. This causes unnecessary delay. Consequently, we join with the Kerr court in respectfully suggesting that the Secretary of State, the legislature or our supreme court take appropriate steps to insure that the matter of a citizen’s entitlement to a JDP be determined more accurately and expeditiously, without the necessity of repetitious practices which tax the court’s time and resources.

The appeal is dismissed for mootness.

Appeal dismissed.

McNULTY, P.J., and GORDON, J., concur.


author: JUSTICE STOUDER

text:
      In re PETITION TO FORM THE SOUTH PRAIRIE PARK DISTRICT (Robert Widman et al., Petitioners-Appellees, v. The Village of Seneca, Objector-Appellant).
    Third District
    No. 3—91—0322
    Opinion filed January 27, 1992.

      S. Michael Mason, of Marseilles, for appellant.
    Arthur C. Thorpe, of Klein, Thorpe & Jenkins, Ltd., of Chicago, and Myers, Daugherity, Berry & O’Conor, Ltd., of Ottawa (E. Kenneth Friker and Andrew J. O’Conor, of counsel), for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

This appeal arises as a result of certain objections to the formation of the South Prairie Park District in La Salle County. We find no error on the part of the circuit court and therefore affirm.

On March 28, 1989, a petition was filed by the appellees, Robert Widman et al., to form the South Prairie Park District. The petition requested a public hearing on the subject of the petition and that the issue be presented to the voters at the November 7, 1989, election. On July 20, 1989, the circuit court dismissed the petition for failure to conform with the notice requirements of section 28 — 2 of the Election Code (Ill. Rev. Stat. 1989, ch. 46, par. 28—2). This court subsequently reversed and remanded the cause for further proceedings. In re Petition To Form The South Prairie Park District (1990), 202 Ill. App. 3d 765, 559 N.E.2d 1076.

On November 26, 1990, the appellees filed a motion to reinstate the case and set the matter for a hearing, which was granted. Subsequently, appellant, the Village of Seneca, filed a motion to dismiss and objections to the petition to form a park district, wherein the village raised two objections. First, the village contended the petition was moot because it requested the issue be presented to the voters at the November 7, 1989, election, a date which had already passed. Second, the village asserted the proposed boundaries of the park district were unreasonable.

Following a hearing on December 27, 1990, the circuit court denied the village’s objections and ordered the question certified for placement on the ballot at the April 2, 1991, election. Following the election, the Village of Seneca filed a motion to find the question of public policy failed. The village contended that under the provisions of section 2 — 7 of the Park District Code (Ill. Rev. Stat. 1989, ch. 105, par. 2—7) the measure was defeated.

On April 9, 1991, the circuit court denied the village’s motion, found the question had been approved, and that the South Prairie Park District was thereby organized and established. The village appeals from the circuit court orders of December 27, 1990, and April 9, 1991.

On appeal, the village contends the trial court erred in restricting the evidence of reasonableness to the statutory criteria found in section 2 — 1 of the Park District Code (Ill. Rev. Stat. 1989, ch. 105, par. 2—1). Section 2 — 1 states: “Any territory having less than 500,000 population and so lying as to form one connected area (no portion of which shall be already included in an incorporated park district except in the cases provided for in Section 2 — 2.1) may be incorporated as a park district, hereinafter referred to as a ‘General Park District.’ ”

Section 2 — 4 provides in pertinent part: “If the circuit judge finds, upon such hearing, that the petition meets the requirements of this Act and the general election law, and that the boundaries as defined are reasonable boundaries for the formation of a park district or districts, he shall order the question submitted to referendum ***.” Ill. Rev. Stat. 1989, ch. 105, par. 2—4.

The statute allows any territory having a population of less than 500,000, encompassing one connected area, and which is not included in an incorporated park district (with exceptions) to be incorporated as a park district. Under section 2 — 4, the circuit court is charged with determining whether the proposed boundaries are reasonable. We find the trial court need not allow additional live testimony concerning the reasonableness issue. The reasonableness of the proposed park district boundaries can be readily determined from the plat and other documents filed with the petition. In the instant case, the circuit court made such a determination, and we find no error in that decision.

Next the village asserts the trial court erred in ordering certification of the proposition for the April 2, 1991, election when the petition requested November 7, 1989. The village relies on the following provision of the Election Code: “A petition, resolution or ordinance initiating a public question which specifies a particular election at which the question is to be submitted shall be so limited, and shall not be valid as to any other election, other than an emergency referendum ordered pursuant to Section 2A — 1.4.” (Ill. Rev. Stat. 1989, ch. 46, par. 28—2.) The issue presented is whether the provision is mandatory or directory in nature.

Generally, an election should be held at the time and in the place provided by law in order that it have validity. (Gann v. Harrisburg Community Unit School District (1966), 73 Ill. App. 2d 103, 218 N.E.2d 833.) In People ex rel. Meyer v. Kerner (1966), 35 Ill. 2d 33, 219 N.E.2d 617, the supreme court stated: “ ‘Whether a statute is mandatory or directory does not depend upon its form but upon the legislative intention to be ascertained from a consideration of the entire act, its nature, its object and the consequences which would result from construing it one way or the other.’ [Citations.] Where a statute provides that an election shall be rendered void by failure of those involved in the election process to perform certain duties, the courts are bound to enforce it as mandatory. [Citations.] But, where the statute does not expressly declare its provisions to be mandatory or compliance therewith to be essential to its validity, the failure to strictly comply, in the absence of fraud or a showing that the merits of the election were affected thereby, is not fatal.” Kerner, 35 Ill. 2d at 39, 219 N.E.2d at 620.

In the instant case, the proposition could not be presented to the voters on November 7, 1989, as a result of the objections raised and the subsequent appeals process. This court did not issue its mandate until October 5, 1990. The delay in setting a date for the election was not brought about in any way by the actions of the appellees. The election on the proposition was set at the earliest proper date following our remand. The village has made no claim of fraud, nor that the election was affected by this action. As a matter of policy, it would be troubling if objectors could easily render a petition invalid by means of lengthy, unrelated legal action.

In addition, the provision cited by the village concerns the validity of the petitions, not the election itself. Under section 28 — 2, when a petition specifies a particular election, that petition is not valid for any other election. This does not say or even imply that an otherwise valid election is rendered void by failure to strictly comply with this provision. At present, the proposition in the instant case has been voted on by the electorate and approved by a wide majority. We note that the village waited until after the election to raise this issue with this court.

We find Korte-Reinheimer v. City Council (1981), 94 Ill. App. 3d 219, 418 N.E.2d 783, readily distinguishable. In Korte-Reinheimer, no election had taken place at the time of appeal. The case involved numerous proposed and tentative election dates. In the context of that case, the court believed that circulating new petitions would not prejudice the petitioners. In the instant case, an otherwise valid election has been held and the measure approved. We are hesitant to render the decision of the electorate on this issue invalid, without a stronger expression of legislative intent. Under the circumstances, we find no error on this issue.

The village contends the proposition failed to carry under the provisions of section 2 — 7 of the Park District Code. Section 2 — 7 provides in pertinent part: “[W]here a referendum has been held to organize any territory as a park district under this Act at which a majority of the votes cast in the territory proposed to be organized was against the organization of such park district, then in any subsequent referendum to organize a park district, held within 2 years of the date of the previous referendum, which includes any of the territory included in such previous referendum, if a city, village or incorporated town is included in the territory proposed as a district, no such district shall be deemed to be organized unless a majority of the votes cast within the limits of each such city, village or incorporated town and also a majority of the votes cast outside the limits of each such city, village or incorporated town, shall be in favor of the establishment of such district.” Ill. Rev. Stat. 1989, ch. 105, par. 2—7.

The village asserts section 2 — 7 applies because two elections were held within two years of April 2, 1991, on proposed park districts which included portions of territory included in the South Prairie Park District. Those proposals were defeated. The proposed South Prairie Park District included part of the Village of Seneca. On April 2, 1991, only three votes were cast in the village and they were against the proposition. Therefore, the village argues, under the terms of section 2 — 7 the proposition failed because it failed to carry a majority in the Village of Seneca.

The circuit court rejected this argument, finding the instant petition to form the South Prairie Park District was filed prior to the two petitions initiating the previous elections.

The record shows a petition to form the Illinois River Valley Park District was filed on June 22, 1989, that a referendum was held on November 7, 1989, and the proposal defeated. On November 17, 1989, a petition was filed to form the Indian Trails Park District. A referendum on the measure was held March 20,1990, and defeated.

Generally, the first petition to be filed proposing the formation of a park district is entitled to priority. (In re Organization of Byron Park District (1978), 67 Ill. App. 3d 61, 385 N.E.2d 67.) In the present case, the instant petition was pending before the courts at the time the subsequent petitions were filed and the referenda held. We hold that the “previous referendum” referred to in section 2 — 7 means a valid referendum taking place prior to the filing of a petition. The cited referenda did not take place before the filing of the instant petition; therefore, the cited provisions of section 2 — 7 do not apply to this case.

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

Affirmed.

BARRY, P.J., and SLATER, J., concur.


text:
    MICHELE BERG, on Behalf of Daniel Berg, a Minor, Plaintiff-Appellant, v. JAMES GARRETT, Defendant-Appellee.
    Third District
    No. 3-91-0429
    Opinion filed January 8, 1992.
    Rehearing denied February 27, 1992.
    Jeffrey Sakol, Assistant State’s Attorney, and Sacks & Albrecht, both of Kankakee (Adrienne W. Albrecht, of counsel), for appellant.
    Robert W. Boyd, of Ackman, Marek, Boyd & Simutis, of Kankakee (Andrew C. Osen, of counsel), for appellee.
   JUSTICE HAASE

delivered the opinion of the court:

The State’s Attorney of Kankakee County brought a paternity action against the defendant, James Garrett. The State brought the action on behalf of the minor plaintiff, Daniel Berg. Due to the fact that there was no court reporter present at the trial, and due to the failure to have a properly certified bystander’s report prepared, it is somewhat difficult to ascertain exactly what happened in this case. Based on the common law record and on the briefs presented to the court, it appears that the facts were as follows.

At trial, on February 4, 1991, the State sought to introduce the results of a blood test to prove paternity. The State’s expert witness, however, was not present on the day of trial and the State could not account for his absence. In spite of the expert’s absence, the State proceeded to trial. Following the presentation of lay testimony, the State moved for a recess. The court granted the motion. When the court reconvened, the State still could not locate its expert. The State then moved for a continuance. The court denied the motion. The State rested. The court denied the defendant’s motion for a directed finding. Defendant presented evidence.

At the close of the evidence, the court took the matter under advisement. The next day, the court ruled the State had not satisfied its burden of proof and entered judgment in favor of the defendant by virtue of a docket entry. Subsequently, on May 6, the court entered a written decision. In making the findings in this decision, the court found the lack of scientific evidence dispositive and chastised the State for its mishandling of the matter. The plaintiff appeals. We reverse.

Michele M. Berg gave birth to the minor plaintiff on April 18, 1983. According to Berg, the child was conceived between July 14, 1982, and August 30, 1982. The defendant, James Garrett, admitted he had sexual relations with Berg, but asserts he is not the child’s father. According to Garrett, he had sexual relations with Berg one time on July 10,1982.

On October 2, 1989, Berg caused to be filed a petition to determine the existence of the father and child relationship. The petition alleged that Garrett was the minor’s natural father. Subsequent to filing the petition, Garrett and the minor child submitted to blood tests which were sent out of State for analysis. The test results indicated the possibility that Garrett was the child’s father. The State then filed a request to admit facts asking Garrett to either admit or deny paternity. Garrett objected. He claimed that the information sought was not reasonably within his knowledge or expertise. The court sustained the objection and set the matter for trial.

At trial, which commenced February 4, 1991, at 10 a.m., the State’s expert witness was not present. In response to the State’s request, the court delayed the proceedings from 10 a.m. to 10:30 a.m. At 10:30 a.m., the case was called for trial. The State answered ready and presented the testimony of the minor’s mother and other lay witnesses. The State then moved for a short recess. The State explained to the court the recess was necessary because its expert witness, who was travelling from North Carolina, had not yet arrived. The court granted the recess.

When the court reconvened, the State again moved for a recess or, in the alternative, a continuance. The State again explained that its expert witness was not present. The State offered the court no definite time when its witness would appear or explanation for the expert’s delay. The court denied the motion and asked the State if it had any more evidence to present. The State rested.

The defendant then moved for a directed finding. The court denied the motion. The defendant then testified briefly. Based upon the above evidence, the court ruled the State had not met its burden of proof and entered judgment on behalf of the defendant.

In entering its written decision, the court expressed its displeasure with the State’s presentation of the case. The court noted that the State was aware its expert was not present. The State was aware the expert was supposedly in transit from North Carolina yet, instead of asking for a continuance or moving for a nonsuit, the State chose to proceed. Only after the State presented the testimony of the plaintiff’s mother and other lay testimony did the State move to continue. Based upon the State’s inability to explain the expert’s absence or even provide the court with a definite time when the expert would appear, the court denied the State’s motion. At the close of the evidence, it was the State’s inability to produce expert testimony which the court found dispositive. Indeed, it is apparent that the court found, and not without some justification, the State’s mishandling of the case irksome:

“[I]n the instant case, the State chose to proceed with their evidence. They simply wanted the court to wait until their expert witness showed up, whenever that would be. Perhaps the minor child would have been better served if the State had moved for a continuance or requested a voluntary non-suit.”

The court went on to explain that it did not think that the duty of protecting the interests of the minor plaintiff should rest solely with the court. Instead, the State undertook to protect the interests of the child and, in the trial court’s opinion, failed to do so.

We are now presented with the question of whether the trial court’s denial of the State’s motion for a continuance was an abuse of discretion.

In Illinois, the trial court possesses broad discretion when determining whether to allow or deny a motion to continue. (Tamimie v. City of Galesburg (1977), 50 Ill. App. 3d 843, 365 N.E.2d 1177.) In the exercise of this discretion, it has long been the rule in this State that the court act judiciously with due regard for the objective of attaining justice. (People ex. rel. Schejbal v. Kanner (1964), 54 Ill. App. 2d 208, 203 N.E.2d 759.) On appeal, the question is not whether the reviewing court agrees with the trial court, but whether the trial court’s exercise of discretion, in view of all the circumstances, is manifestly erroneous. In re Marriage of Aud (1986), 142 Ill. App. 3d 320, 491 N.E.2d 894.

In an ordinary civil action, this court would not disturb the trial court’s ruling. The State’s decision to proceed without any inkling of when its expert would arrive is an error the seasoned attorney would not make. Nor do we think it would normally be incumbent on a trial court to delay an ongoing trial without a definite answer on when the expert would appear. As the trial court pointed out, the State was aware before the trial commenced that its expert had not yet arrived. Indeed, it appears the State had no idea whether the expert had even begun his journey from North Carolina to Illinois. Cognizant of this fact, the proper course of action would have been to ask for a continuance prior to trial or, in the alternative, move for a nonsuit. Instead, the State chose to proceed.

Now, we are faced with the question of whether the minor plaintiff should bear the brunt of the State’s error. After careful consideration of the equities involved and the overriding public policy articulated in the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1989, ch. 40, par. 2501 et seq.), we find the trial court erred in not granting a continuance of at least 24 hours.

The Illinois Parentage Act of 1984 provides that “Illinois recognizes the right of every child to the physical, mental, emotional and monetary support of his or her parents under this Act.” (Ill. Rev. Stat. 1989, ch. 40, par. 2501.1.) In reviewing the nature and purposes of the modern paternity act, it is clear that such legislation was intended to provide for the support, maintenance and education of illegitimate children so that they will not become wards of the State. (See Blackmon v. Brent (1968), 97 Ill. App. 2d 438, 240 N.E.2d 255.) In seeking to effectuate this strong public policy, a trial court should take every step reasonably necessary to assure that an adjudication on the merits is obtained.

In this case, although it is somewhat difficult to know exactly what the facts are, it appears that we have a classic case of an inexperienced and somewhat inept plaintiff’s counsel up against a seasoned trial lawyer for the defense before an experienced trial judge with a crowded docket. The trial judge was obviously somewhat upset with the State for the way it was handling this case, and the trial judge is not without justification in those feelings. However, from start to finish, the trial took approximately one hour of court time. From the time the case was called at 10 and then recessed until 10:30, and the State presented its evidence and another recess occurred and the defendant testified, the entire matter seems to have taken approximately one hour. Most of that was consumed by recesses so the actual trial time in this case for hearing witnesses does not appear to have been longer than about half an hour.

This being a bench trial and no jury being present to be discommoded, it is hard for this court to understand what possible reason the trial court had for not recessing this case for at least 24 hours to allow a reasonable opportunity for the State’s witness to be present. After all, this was a case which affects the right of a minor child to be supported for 18 years of his life. The result of the trial judge’s denial of a reasonable recess in this case is that a minor child may well become a ward of the State without support from one of his parents. The only benefit which could have possibly been achieved from the court’s action was a small measure of judicial efficiency.

While this court is well aware of the problem faced by trial judges in this State with inexperienced attorneys, the trial judge is not given the luxury of allowing his personal pique and frustration to substantially defeat the interests of a minor child.

This does not mean a court is without remedy to control actions brought under this Act. In the case at bar for example, it would have been perfectly proper for the court to use various sanctions available to it to assure the State produced its prodigal witness. However, refusing to grant a continuance for the production of possibly dispositive expert testimony, in light of the strong public policy of this State, was an abuse of discretion.

The judgment of the circuit court of Kankakee County is reversed, and this cause is remanded to the circuit court of Kankakee County with directions to convene a new trial in the cause.

Reversed and remanded for new trial.

McCUSKEY and SLATER, JJ., concur.


author: JUSTICE SLATER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARIETTA ANN GILBERT, Defendant-Appellant.
    Third District
    No. 3-90-0725
    Opinion filed January 30, 1992.

      Arden J. Lang, of State Appellate Defender’s Office, of Springfield, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

Defendant Marietta Gilbert was charged by indictment with attempted murder, armed violence and two counts of aggravated battery. Following a jury trial the defendant was found not guilty of attempted murder and guilty of armed violence and two counts of aggravated battery. Judgment was entered on the armed violence and aggravated battery charges and defendant was sentenced to a six-year term of imprisonment for the armed violence conviction. Defendant raises the following issues on appeal: (1) whether the verdicts of the jury were logically inconsistent; (2) whether the defendant was proved guilty beyond a reasonable doubt; (3) whether the defendant was denied due process by an alleged discovery violation by the State; (4) whether defendant’s counsel was ineffective; and (5) whether the trial court erred in entering judgment on the armed violence and aggravated battery charges where they arose from a single physical act. For the reasons stated below, we affirm.

The charges in this case arose out of the stabbing of Anthony Bell which occurred at Julia Rodgers’ apartment in the early morning hours of October 14, 1989. John Nichols testified that he went to Rodgers’ apartment sometime after 10 p.m. on October 13, 1989. When Nichols arrived, Rodgers, Vincent Edwards and Anthony Bell were present. Sometime later the defendant, who was singing and appeared to be cheerful, arrived at the apartment and talked with Rodgers and Edwards while they were preparing some food in the kitchen. The defendant and Bell then left Rodgers’ apartment. Approximately 30 minutes later, the defendant returned carrying a mirror and went into the kitchen. Bell also came back to the apartment. Nichols stated that the next thing he saw was the defendant walking quickly toward the front door with Bell following behind her. Bell grabbed the defendant’s arm and said that he wanted to talk to her. The defendant tried to jerk away and Bell put his arms around the defendant in a bear hug. The defendant got loose and stabbed Bell in the neck with a butcher knife. Nichols further testified that he did not hear Bell threaten the defendant nor did he see Bell strike the defendant. According to Nichols, after Bell was stabbed the defendant acted as if she were in shock. She told Bell she was sorry and acted “[a]s if she didn’t know she did it.” The defendant then tried to keep Bell still and stop the bleeding, saying, “Tony, please don’t die.”

Dr. Paul Norris testified that the knife wound suffered by Bell severed his jugular vein and almost completely cut through his left carotid artery. Due to blood loss to the brain, Bell suffered a massive stroke resulting in paralysis of the right side of his body. Norris stated that the wound was one inch long and two inches deep and, in his opinion, it was a puncture wound rather than a slash wound.

Julia Rodgers testified that she had been friends with both Bell and the defendant for a number of years. The defendant told Rodgers on October 13, 1989, that she was tired of Bell beating her up and “jumping” on her and, even though she loved Bell, she had come close to killing him. The defendant also told Rodgers that Bell had “jumped” on her that day, but Bell denied it when Rodgers asked him about it. Rodgers also stated that Bell was seeing a girl named Tamika.

Rodgers further testified that when the defendant came to her apartment in the early morning hours of October 14, 1989, she was happy and singing a song. Defendant later came into the kitchen and picked up a knife which Edwards shook out of her hand and kicked across the floor. Bell picked up the knife and put it on a kitchen counter. Someone then knocked on the door of the apartment and asked for the defendant. Defendant went outside, and a short time later Bell also left the apartment. Bell came back to Rodgers’ apartment 10 or 15 minutes later, followed shortly thereafter by defendant. Defendant was carrying a mirror and appeared to be using the mirror to aid in removing something from her eyes. According to Rodgers, defendant then began walking toward the front door of the apartment when Bell asked to talk to her. Rodgers lost sight of the defendant when she bent over to put the mirror down, but when she straightened up, defendant had a knife in her hand. Defendant made a stabbing gesture towards Bell and blood began to gush all over the floor. Rodgers further testified that she did not see Bell put defendant in a bear hug nor did she see them struggling. It was Rodgers’ opinion that the defendant was not afraid of anyone, including Bell.

Vincent Edwards, Julia Rodgers’ brother, testified that he was cooking in the kitchen of Rodgers’ apartment when the defendant came in singing a song. Edwards later saw the defendant with a knife in her hand. He shook the knife out of defendant’s hand and kicked it towards the living room, where it was picked up by Bell. Edwards did not see the defendant stab Bell. Edwards further testified that he had heard the defendant make remarks about Bell and other women, including the statement, “If I can’t have him no one would have him.”

Joanne Robertson, a Peoria police officer, testified in an evidence deposition that she went to Rodgers’ apartment and found the defendant lying on top of Bell saying, “Baby, I’m sorry, I’m so sorry. Baby, I love you. Tony, don’t die.” According to Robertson, after defendant was placed in a squad car and asked what she had been doing that night, she told Robertson that she had gone to visit Bell at Rodgers’ apartment and that she knew Bell was there.

Phyllis King, a friend of Anthony Bell’s, testified that Bell had been seeing Tamika Edwards before the date of the stabbing. According to King, about a month prior to the stabbing the defendant stated that “if she couldn’t have Tony, no one else could.”

Ivan Berryhill, defendant’s 12-year-old son, testified that he was awakened by the sound of doors slamming around midnight on the night of October 13, 1989. Berryhill saw Bell chasing the defendant through the apartment. Bell caught up with the defendant outside after she tripped. Bell threw sand in defendant’s face. Defendant then got up and ran towards Rodgers’ apartment with Bell chasing her.

Elizabeth Parker, a certified nurse and defendant’s sister-in-law, testified that when defendant was brought to the Peoria County jail she appeared to be in a state of shock. Defendant had sand in her eyebrows and hair and lacerations on her face and neck, as well as a black eye. Parker was incarcerated at the jail on a conviction for deceptive practices.

Willette Johnson testified that she went to the defendant’s apartment between 10 p.m. and 11 p.m. on October 13, 1989. Johnson saw Bell pushing and shoving the defendant and calling her names. The defendant told Bell to leave.

Defendant Marietta Gilbert testified that she had known Anthony Bell for about four years. Bell had physically abused her during the course of their relationship, including beating her, hitting her with sticks imbedded with nails, striking her in the mouth with a bottle, giving her black eyes and choking her until she was unconscious. Bell came to defendant’s apartment between 5 p.m. and 6 p.m. on October 13, 1989. Defendant told Bell not to take her cigarettes. Bell replied that everything defendant had belonged to Bell, including her life. Bell also told Gilbert that he hated her and that she should not go outside the apartment. Bell returned around 8 p.m. and told Gilbert that he would never let her be happy with another man and that he would find a way to destroy her.

Defendant next testified that she went to Rodgers’ apartment at 11:30 p.m. to ask Rodgers to accept delivery of a washing machine the next morning. Defendant stated that she was shocked to see Bell there, but she did not want to let him know she was afraid. Bell interrupted defendant while she was talking to Rodgers and threatened to “kick [her] ass.” Defendant denied singing and said the initial incident involving the knife described by Rodgers and Edwards had not occurred.

After Bell threatened defendant, she ran out of Rodgers’ apartment. Bell caught her before she could enter her own apartment and threw sand in her face. Defendant and Bell then entered defendant’s apartment; defendant grabbed a mirror and ran back to Rodgers’ apartment. Defendant removed the sand from her eyes and Bell returned to Rodgers’ apartment. Defendant began crying, stating that she wished Bell would leave her alone. Walter Doolittle arrived at Rodgers’ apartment, and defendant asked him to get her away from the apartment. Doolittle agreed, but defendant became frightened when Bell said something and she did not leave with Doolittle.

A short time later defendant walked towards the door. Bell threatened to hurt her if she left Rodgers’ apartment. Defendant went into the kitchen and picked up a knife. According to defendant, Bell twice more threatened to hurt the defendant when she left the apartment. Defendant walked to the door and Bell grabbed her left shoulder. Defendant turned and Bell hit her in the face with his fist. Bell then began to choke defendant and, as she tried to push him back, Bell said he was cut. Defendant tried to calm Bell and applied pressure to the wound in an attempt to stop the bleeding. Defendant stated that she did not intend to harm Bell and only wanted to get away from him. She believed Bell was going to kill her.

On cross-examination, defendant stated that the reason she did not call the police to protect herself from Bell was because he was a gang member. Defendant stated that the first time she called the police regarding Bell she was threatened by 15 or 16 gang members. Defendant denied telling Officer Robertson that she knew Bell was at Rodgers’ apartment and that she went there to see him. Defendant also stated that she did not care if Bell saw other women. According to defendant, at the time Bell was injured, Rodgers and Nichols were not in the kitchen but were upstairs and could not have witnessed the stabbing. Upon further cross-examination, defendant denied telling a detective that Bell had not struck her.

Detective John Mingus of the Peoria police department testified in rebuttal that the defendant told him Bell had not struck her while they were in Rodgers’ apartment. Mingus also stated that defendant did not mention anything about Bell choking her prior to the stabbing. Mingus did not notice any swelling or injury to defendant’s face.

Ethel Massey, the defendant’s mother, testified that she visited the defendant at the Peoria County jail on October 15, 1989. According to Massey, the defendant had black eyes and some marks around her neck.

The defendant first contends that the verdicts by the jury of not guilty of attempted murder and guilty of armed violence and aggravated battery are logically inconsistent. The defendant argues that since the jury was instructed concerning justifiable use of force, and the jury found the defendant not guilty of attempted murder, the jury must have concluded that the defendant’s use of force was justified. Therefore, according to the defendant, the same justification existed with respect to the armed violence and aggravated battery charges, requiring acquittal on those charges as well.

The flaw in defendant’s reasoning, however, is the assumption that the jury’s not guilty verdict on the attempted murder charge was based on the belief that the defendant’s use of force was justified. Obviously, the jury could have rejected defendant’s claim of self-defense while nevertheless finding that the State failed to prove that defendant had the specific intent to kill Bell. As the court in People v. Hancock (1980), 83 Ill. App. 3d 700, 704, 404 N.E.2d 914, 917, noted in rejecting a similar argument:

“The elements of the offenses of attempted] murder and aggravated battery are different. Conviction for the crime of attempted] murder requires a finding that the defendant specifically intended to kill the victim, while aggravated battery requires no specific intent. [Citation.] Thus, the jury could have properly found that the specific intent to murder was absent when they acquitted [the defendant] of attempted murder. The jury was not required to accept the theory of self-defense to reach such a verdict. In fact, their finding of guilt on the aggravated battery charges directly refutes [the defendant’s] speculation. The record discloses no inconsistency, legal or logical.”

In this case, the jury was instructed that to sustain the charges of aggravated battery and armed violence, the State was required to prove that the defendant’s use of force was not justified. The guilty verdicts on these charges conclusively demonstrate that the jury rejected the defendant’s claim of self-defense. The jury’s verdicts were not inconsistent.

Defendant next contends that she was not proved guilty beyond a reasonable doubt. Defendant argues that the evidence showed Bell was the aggressor and the stabbing was accidental. Defendant also maintains the testimony of Julia Rodgers and Vincent Edwards was less credible than that of John Nichols because there was evidence that Edwards and Bell belonged to the same gang. Finally, defendant contends that her reaction to Bell’s injury and her attempt to aid Bell demonstrated her lack of intent to stab Bell.

When presented with a challenge to the sufficiency of the evidence, the relevant question on review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) Whether the defendant’s act was justified under the law of self-defense is a determination for the trier of fact and depends upon the surrounding facts and circumstances. (People v. Miller (1991), 211 Ill. App. 3d 572, 570 N.E.2d 515; People v. Hudson (1987), 161 Ill. App. 3d 447, 514 N.E.2d 799.) The trier of fact is in the best position to determine the credibility of the witnesses and the weight to be given to their testimony. (People v. Locascio (1985), 106 Ill. 2d 529, 478 N.E.2d 1358.) The jury is not required to believe the defendant’s testimony (Locascio, 106 Ill. 2d 529, 478 N.E.2d 1358; People v. Purdle (1991), 212 Ill. App. 3d 594, 571 N.E.2d 178), and where the evidence is merely conflicting, a court of review will not substitute its judgment for that of the trier of fact (Hudson, 161 Ill. App. 3d 447, 514 N.E.2d 799).

In this case, while there was some evidence indicating that the stabbing was accidental or that the defendant was acting in self-defense, there was also considerable circumstantial evidence that the defendant may have acted out of anger or jealousy. Defendant’s statements that if she could not have Bell no one would, her early unsuccessful attempt to obtain a knife, and the nature of the wound to Bell’s neck suggest that the defendant’s act was deliberate. Defendant’s reaction after the stabbing may have been due to shock and regret at the consequences of her act. With regard to defendant’s opinion of the credibility of the witnesses, that determination is the province of the trier of fact. We note, however, that while the defendant argues that the testimony of John Nichols was more credible than that of Julia Rodgers or Vincent Edwards, even Nichols’ testimony was not entirely consistent with defendant’s account of the incident. Nichols testified that defendant was singing when she entered Rodgers’ apartment but defendant denied doing so. In addition, although defendant testified that Bell threatened her three times and punched her in the face prior to the stabbing, Nichols stated that he neither heard Bell threaten the defendant nor did he see Bell strike her. It is the jury’s function to resolve conflicts in the evidence. We find that there was sufficient evidence presented to support the jury’s verdict.

Defendant next contends that she was denied her right to due process by the State’s failure to disclose Bell’s prior criminal convictions. Defendant argues that the State was required to provide her with this exculpatory evidence by Supreme Court Rule 412 and by Federal law. (134 Ill. 2d R. 412; Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194.) Defendant maintains that Bell’s convictions were admissible to support her theory of self-defense by demonstrating Bell’s violent character. People v. Lynch (1984), 104 Ill. 2d 194, 470 N.E.2d 1018.

In Lynch, our supreme court held that when a theory of self-defense is raised, the victim’s aggressive and violent character is relevant to show who was the aggressor, and the defendant may establish such character by introducing the victim’s convictions for crimes of violence. (Lynch, 104 Ill. 2d 194, 470 N.E.2d 1018.) The record in this case reveals that Bell was convicted of criminal damage to property in 1984, aggravated battery in 1985 (for stabbing Felicia Tidwell in the back with a knife), and unlawful delivery of cannabis (two counts) and unlawful possession with intent to deliver cannabis in 1988. Thus, under Lynch, only the conviction for aggravated battery would have been admissible at defendant’s trial.

By failing to include this issue in her post-trial motion, defendant has waived any alleged error by the State’s failure to disclose Bell’s aggravated battery conviction. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124; People v. Kunze (1990), 193 Ill. App. 3d 708, 550 N.E.2d 284.) We also decline to address this issue under the plain error rule (134 Ill. 2d R. 615 (a)) for two reasons.

First, the record on appeal does not appear to contain all the discovery material provided by the State. For example, the State’s answer to defendant’s discovery motion repeatedly refers to “attached reports” which are not contained in the record. Also, the State’s response to defendant’s request for the record of prior criminal convictions of the State’s intended witnesses states that this information “will be forthcoming,” although such information is not located in the record. It is the appellant’s responsibility to present the reviewing court with a proper record in support of claimed errors, and any doubts arising from the incompleteness of the record will be resolved against the appellant. See People v. Turner (1982), 110 Ill. App. 3d 519, 442 N.E.2d 637; People v. Davis (1982), 106 Ill. App. 3d 260, 435 N.E.2d 838; see also People v. Velez (1990), 204 Ill. App. 3d 318, 562 N.E.2d 247.

Second, although not at all clear, the record suggests that the State may have disclosed Bell’s aggravated battery conviction, or at least that defendant may have been aware of it before trial. In response to the State’s discovery request, the defendant listed 13 witnesses whom she intended to call at trial. At some point a fourteenth name, handwritten at the bottom of the list, was added. The additional name was Felicia Tidwell, the victim of the aggravated battery committed by Bell in 1985. Tidwell’s inclusion on the defendant’s list of witnesses indicates that there may have been no discovery violation. In any event, this court will not decide issues on the basis of surmise or conjecture.

Defendant’s next contention is that her trial counsel was ineffective in failing to discover Bell’s conviction and in failing to present such evidence at trial. As indicated above, however, we are unable to determine with any certainty whether or not defendant’s counsel was aware of Bell’s aggravated battery conviction. If defense counsel did not know of Bell’s conviction because of the State’s failure to disclose it, we deem it unlikely that his failure to independently discover it would demonstrate ineffectiveness. (See United States v. Agurs (1976), 427 U.S. 97, 102 n.5, 49 L. Ed. 2d 342, 349 n.5, 96 S. Ct. 2392, 2397 n.5.) On the other hand, if counsel was aware of Bell’s conviction and did not present it due to a misunderstanding of the law, his performance may have been deficient. Under the circumstances, we believe the proper response to defendant’s argument was given by the court in Kunze (193 Ill. App. 3d at 725-26, 550 N.E.2d at 296):

“Where, as here, consideration of matters outside of the record is required in order to adjudicate the issues presented for review, the defendant’s contentions are more appropriately addressed in proceedings on a petition for post-conviction relief. (Ill. Rev. Stat. 1987, ch. 38, pars. 122—1 through 122 — 8.) We therefore decline to adjudicate in this direct appeal [defendant’s] contentions concerning the alleged incompetence of [her] trial counsel. An adjudication of a claim of ineffective assistance of counsel is better made in proceedings on a petition for post-conviction relief, when a complete record can be made and the attorney-client privilege no longer applies.”

The defendant’s final contention is that the trial court erred in entering judgment on the two counts of aggravated battery where they and the conviction for armed violence were based on the same physical act of stabbing Bell. The record indicates, however, that defense counsel agreed that judgment could properly be entered on the aggravated battery charges. A defendant may not complain on appeal of a sentencing error which she invited the court to make. (People v. Gutierrez (1987), 156 Ill. App. 3d 555, 509 N.E.2d 787.) In addition, a claim that multiple convictions were improper can be waived by failing to raise the issue in the trial court. (People v. Holder (1991), 213 Ill. App. 3d 109, 571 N.E.2d 528; People v. Schaefer (1989), 188 Ill. App. 3d 317, 543 N.E.2d 894.) We find this issue has been waived.

For the reasons stated above, we affirm the judgment of the circuit court.

Affirmed.

GORMAN and STOUDER, JJ., concur.


author: JUSTICE McCUSKEY

text:
    SHARON KAYE POURCHOT, Plaintiff-Appellant, v. COMMONWEALTH EDISON COMPANY, Defendant-Appellee.
    Third District
    No. 3-91-0392
    Opinion filed January 31, 1992.
    Law Offices of Naughton & Markese, of Joliet (Thomas P. Naughton, of counsel), for appellant.
    Sedgwick, Detert, Moran & Arnold, of Chicago (Carol J. Gerner, of counsel), for appellee.
   JUSTICE McCUSKEY

delivered the opinion of the court:

Plaintiff, Sharon Kaye Pourchot, appeals from a judgment in the amount of $1,178.24 entered in her favor and against defendant, Commonwealth Edison Co. Plaintiff argues the trial court abused its discretion in denying her motion for sanctions following defense counsel’s ex parte communications with plaintiff’s treating physician. Plaintiff also appeals the trial court’s refusal to tender instructions to the jury on measuring damages for her future pain and suffering. We agree with both of plaintiff’s contentions. We remand for a new trial and for the imposition of an appropriate sanction against defendant.

Plaintiff brought an action to recover damages for injuries allegedly sustained when she slipped and fell on a foreign substance on defendant’s premises. Less than a week before the case was scheduled for trial, plaintiff filed a motion for continuance. Plaintiff represented that Dr. Nadine Schmitz, plaintiff’s treating physician, had referred her to an orthopedic surgeon for surgery, and that plaintiff’s condition had not reached a state of medical improvement necessary to evaluate the case for trial or settlement purposes.

Defense counsel stated that a day prior to receiving plaintiff’s motion, defense counsel telephoned Dr. Schmitz’s physician assistant to confirm Dr. Schmitz’s availability as a defense witness at trial. Two days later, defense counsel again telephoned the physician assistant. Defense counsel advised the physician assistant that Dr. Schmitz may not need to appear at the scheduled trial because of Dr. Schmitz’s referral of plaintiff for surgery, as set forth in plaintiff’s pending motion for continuance. Defense counsel stated the physician assistant then volunteered that plaintiff had been referred not for surgery, but merely to accommodate plaintiff’s desire for a physician closer to home. In response to defense counsel’s inquiry, the physician assistant opined that Dr. Schmitz would sign an affidavit regarding the reason for the referral.

On the morning of the hearing on plaintiff’s motion for continuance, defense counsel personally delivered an affidavit to Dr. Schmitz’s office for her signature. Defense counsel met briefly with Dr. Schmitz to correct a typographical error on the affidavit. Defense counsel remained with Dr. Schmitz while she signed the affidavit. Dr. Schmitz then directed defense counsel to an office employee who would notarize the signature. The physician assistant also provided defense counsel with a written record of plaintiff’s condition from a visit with Dr. Schmitz a week earlier.

At the courthouse that afternoon, defense counsel sought out plaintiff’s counsel prior to the hearing and advised counsel of the contents of Dr. Schmitz’s affidavit. In surprise, the plaintiff withdrew her motion for continuance.

Plaintiff promptly moved for sanctions against the defendant and its counsel based on defense counsel’s ex parte communications with plaintiff’s treating physician. Three ex parte communications were ultimately identified: defense counsel (1) solicited an affidavit from plaintiff’s treating physician; (2) received a progress report prepared at plaintiff’s last office visit; and (3) subpoenaed medical records from plaintiff’s treating physician, without notice to plaintiff, six weeks prior to Dr. Schmitz’s discovery deposition. Four days after the deposition, defense counsel disclosed possession of these records to plaintiff.

In response to plaintiff’s motion for sanctions, defense counsel stated that at no time did she speak with Dr. Schmitz about the care and treatment of plaintiff. Defense counsel argued that she obtained the affidavit from Dr. Schmitz because she believed it was her obligation to disclose to the court the false allegation in plaintiff’s motion for continuance.

The court found that an ex parte communication with plaintiff’s treating physician occurred, but concluded that the contact was harmless, conducted in good faith, and neither “designed nor intended to *** intrude into the fiduciary relationship between doctor [and] patient.” The court denied plaintiff’s motion. Plaintiff then renewed her motion for continuance, on the ground that the ex parte communications disqualified Dr. Schmitz as a witness and that additional time was needed to obtain another medical expert. The court denied plaintiff’s motion, and the case proceeded to trial.

At the close of evidence, the court refused to tender plaintiff’s jury instruction which allowed for future pain and suffering. The jury rendered a verdict in favor of plaintiff, but awarded damages of $2,356.48 for her disability only. No damages were awarded for pain and suffering. In addition, the jury found plaintiff 50% responsible for her injuries. The trial court entered a judgment of $1,178.24 on the reduced verdict amount. Plaintiff’s motion for a new trial was denied.

As her first issue on appeal, plaintiff contends that the trial court abused its discretion in denying her motion for sanctions. We agree.

Ex parte communications and conferences between defense counsel and a plaintiff’s treating physician are prohibited as against public policy. (Yates v. El-Deiry (1987), 160 Ill. App. 3d 198, 202, 513 N.E.2d 519, 522; Petrillo v. Syntex Laboratories, Inc. (1986), 148 Ill. App. 3d 581, 499 N.E.2d 952.) A court’s failure to bar a treating physician’s testimony after ex parte communications constitutes reversible error. Yates, 160 Ill. App. 3d at 201, 513 N.E.2d at 521; Requena v. Franciscan Sisters Health Care Corp. (1991), 212 Ill. App. 3d 328, 331, 570 N.E.2d 1214, 1216.

This court in Yates rejected the argument a plaintiff must demonstrate that the ex parte communications resulted in improper conduct or actual prejudice. Justice Heiple stated in Yates that “[prejudice and improper conduct can be implied from the fact that the plaintiff’s treating physician has violated his ethical and fiduciary obligations owed to his patient by engaging in ex parte conferences concerning the patient with the patient’s legal adversary and without the patient’s consent.” (Yates, 160 Ill. App. 3d at 203, 513 N.E.2d at 523.) Thus, the physician-patient privilege is violated at the time of an ex parte communication between the plaintiff’s treating physician and defense counsel regardless of what information is actually revealed. (Mondelli v. Checker Taxi Co. (1990), 197 Ill. App. 3d 258, 265, 554 N.E.2d 266, 272.) Whether the contact was indeed harmless or conducted in good faith is irrelevant under our analysis.

We conclude that defense counsel’s conduct violated the public policy favoring the sanctity and confidentiality of the doctor-patient relationship. (Petrillo, 148 Ill. App. 3d at 587-88, 499 N.E.2d 952, 957.) Accordingly, we reverse the trial court’s order denying plaintiff’s motion for sanctions. The determination of what sanction is appropriate is left to the sound discretion of the trial court. As guidance on remand, we note with approval the sanction of prohibiting examination by defendant’s counsel of plaintiff’s treating physician with whom defendant’s counsel has improperly communicated. (Nastasi v. United Mine Workers of America Union Hospital (1991), 209 Ill. App. 3d 830, 840, 567 N.E.2d 1358, 1366.) Also, if the trial court believes the plaintiff’s treating physician’s testimony has been tainted by virtue of the improper ex parte communication, then the appropriate sanction is to bar that testimony. Requena v. Franciscan Sisters Health Care Corp. (1991), 212 Ill. App. 3d 328, 332, 570 N.E.2d 1214, 1216.

Plaintiff next contends the trial court abused its discretion in refusing to give a jury instruction on future pain and suffering. A jury instruction on future pain and suffering is warranted if the jury hears “some evidence” on that point from either an expert or lay person. Onion v. Chicago & Illinois Midland Ry. Co. (1989), 191 Ill. App. 3d 318, 320, 547 N.E.2d 721, 723; Young v. Hummel (1991), 216 Ill. App. 3d 303, 309, 576 N.E.2d 1072, 1075-76.

Dr. Schmitz testified that her diagnosis of impingement syndrome of the shoulder and de Quervain’s tenosynovitis of the right wrist would account for plaintiff’s complaints of pain and discomfort. While Dr. Schmitz declined to use the word “permanency” in conjunction with the condition of plaintiff’s shoulder, she did describe it as having “reached a state of chronicity.” Dr. Schmitz defined “chronicity” as meaning “chronic, ongoing.” She further explained that a state of chronicity in the shoulder meant “that it’s there, that it may come and go, or that it may be there, but at varying levels of intensity.”

Plaintiff testified that at the time of trial she was still experiencing pain in her shoulder and wrist, and numbness in her wrist. She testified that her range of motion continues to be limited, and she has difficulty lifting objects over 15 pounds without pain.

We conclude that plaintiff’s own testimony and the testimony of her expert presented “some evidence” sufficient to warrant giving to the jury a future pain and suffering instruction. Therefore, the trial court abused its discretion in refusing to tender such an instruction to the jury.

The order of the circuit court denying plaintiff’s motion for sanctions is reversed. We remand for a new trial and for the imposition of appropriate sanctions against defendant.

Reversed and remanded.

BARRY, P.J., and SLATER, J., concur.


author: JUSTICE GORMAN

text:
    RONALD J. ORLOFF et al., Plaintiffs-Appellants, v. BERNARD J. PETAK et al., Defendants (Ernestine Thomas et al., Defendants-Appellees).
    Third District
    No. 3—91—0379
    Opinion filed January 30, 1992.

      Block, Krockey, Cernugel & Cowgill, P.C., of Joliet (Robert S. Krockey, of counsel), for appellants.
    Davis, Varsek & Dystrup, P.C., of Joliet (Scott Hosier, of counsel), for appellee Commonwealth Mortgage Company of America.
    Fenech, Toussaint, Boomershine & Craig, P.C., of Oakbrook Terrace (Bruce W. Craig, of counsel), for appellee Ernestine Thomas.
   JUSTICE GORMAN

delivered the opinion of the court:

This action was brought by plaintiff Robert Orloff, who held a recorded junior mortgage on certain real estate and was omitted from foreclosure proceedings instituted by the first mortgagee on the subject property. The trial court ordered that plaintiff equitably redeem before foreclosing, set the redemption amount at $120,000, and limited the redemption period to 90 days. Plaintiff did not post such bond. He appeals. We affirm in part and reverse in part.

In February 1986, defendant Bernard Petak gave plaintiff Ronald Orloff a second mortgage on several parcels of real estate including the subject property. The subject property was held in an Illinois land trust. The mortgage was recorded; First National Bank of Joliet was trustee. The holder of the first mortgage was Commonwealth Mortgage Company of America (Commonwealth).

Commonwealth filed a complaint to foreclose its first mortgage and omitted plaintiff. On September 30, 1988, Commonwealth successfully bid in the entire amount due on the mortgage ($103,069.32) at the sheriff’s sale. On March 31, 1989, the statutory redemption period expired. On July 14, 1989, Commonwealth recorded its sheriff’s deed. On August 30, 1989, Commonwealth sold the property to Ernestine Thomas (Thomas) for $120,000, giving a warranty deed. Thomas was advised of plaintiff’s lien at the real estate closing. Plaintiff first learned of Commonwealth’s foreclosure at that time when a representative of the title company called plaintiff’s attorney to inquire about the plaintiff’s lien.

In September 1989, plaintiff filed his complaint against Thomas to foreclose; he later added a count for equitable redemption. The first count for foreclosure was dismissed. The parties tried the equitable redemption count in a bench trial. In April 1991, the trial court entered a judgment order that plaintiff was required to equitably redeem before foreclosing. The order provided that plaintiff had 90 days within which to redeem and set $120,000 as the redemption amount.

Plaintiff filed a notice of appeal. On July 1, 1991, 17 days before the expiration of the redemption period, plaintiff successfully sought to stay the running of the redemption period pending the appeal, but was required to post a $120,000 bond. Plaintiff did not post such bond, and the redemption period expired on July 17, 1991. Plaintiff now appeals, raising two issues for review.

First, plaintiff contends that the trial court erred in dismissing his count for foreclosure. We disagree with such contention. Plaintiff must equitably redeem before foreclosing his lien. Under Baldi v. Chicago Title & Trust Co. (1983), 113 Ill. App. 3d 29, 446 N.E.2d 1205, an omitted junior lienor must equitably redeem before he may foreclose his own lien. In Baldi, the plaintiff was a junior mortgagee who was omitted from a foreclosure action brought by the senior mortgagee. The purchaser at the sheriff’s sale was the senior mortgagee’s successor in interest, defendant Israelstam. The court held that plaintiff must redeem before foreclosing. Here, too, plaintiff must exercise his right of redemption before foreclosing. Even if plaintiff had been joined, he would have been required to redeem before foreclosing his junior lien. Plaintiff’s right to redeem is the right to satisfy the first mortgage by paying the debt it secures and thereby becoming equitably subrogated to the rights of the first mortgagee. If plaintiff redeems from the first mortgage, then he may foreclose his junior mortgage and the senior mortgage. However, title always remains in Thomas, the successor in interest to Commonwealth, the purchaser at the foreclosure sale. If plaintiff redeems and forecloses his liens, Thomas may then of course redeem from plaintiff’s foreclosure.

Second, plaintiff contends that the trial court erred in calculating the redemption amount. We agree. Defendant argues that Rodman v. Quick (1904), 211 Ill. 546, 71 N.E. 1087, states the rule of law applicable here. There the court held that when a junior mortgagee excluded from foreclosure proceedings exercises his equitable right of redemption, the amount to be paid includes the amount of the debt, interest thereon to the time of redemption, taxes paid to preserve title, and the cost of necessary repairs, minus rents and profits of the premises actually received or that could have been received by the exercise of reasonable care and diligence. (Rodman, 211 Ill. at 554.) We find Rodman v. Quick factually distinguishable in that the omitted junior mortgagee there waited nearly four years after the completion of the first foreclosure proceedings to redeem her interest, at which point the property had been conveyed by the first mortgagee (who was the successful bidder at its foreclosure sale) to multiple third parties. Here, plaintiff acted within a week of learning of Commonwealth’s defective foreclosure proceedings. To apply the reasoning in Rodman would be to penalize this plaintiff, who has acted with dispatch to protect his rights. Therefore, we do not find Rodman to enunciate the proper rule for calculating the redemption amount here.

Commonwealth’s mortgage determines what expenditures can be factored into the redemption amount. Under Commonwealth’s mortgage, Commonwealth may “do and pay for whatever is necessary to protect the value of the property and [its] rights in the property where there is a legal proceeding that may significantly affect [its] rights in the property or where [mortgagor] fails to perform the covenants *** contained in [the] security instrument.” Moreover, “any amounts disbursed by [Commonwealth] tmder this paragraph [ ] shall become additional debts of [mortgagor] secured by this security instrument *** these amounts shall be at interest from the date of disbursement at the Note rate and shall be payable, with interest upon notice from [Commonwealth] to [mortgagor] requesting payment.” The court here set the redemption amount at $120,000 without calculations showing how it arrived at that figure. On remand, the court should calculate the redemption amount to include the balance owed on Commonwealth’s mortgage at the time of foreclosure, taxes, insurance, and repair, etc. expenses disbursed by Commonwealth to protect the value of its property until the sheriff’s sale on September 30, 1988.

Defendant raises the issue of whether plaintiff is barred from raising the issue of the redemption amount since he did not post the bond on which the stay of the running of the redemption period was conditioned. We hold that plaintiff is not barred from raising the issue of the redemption amount. We further hold that the appeal tolled the running of the redemption period even though the bond was not posted. To hold otherwise would reward Commonwealth for the omission of a recorded junior lien holder. Plaintiff on these facts is entitled to be placed in the position he would have enjoyed had he been at the sheriff’s sale to bid.

For the foregoing reasons, we affirm that part of the order of the circuit court of Will County requiring redemption before foreclosure, reverse that part setting the redemption amount and time limit and remand for further proceedings.

Affirmed in part; reversed in part and remanded.

STOUDER and McCUSKEY, JJ., concur.