author: JUSTICE MURRAY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FLAUDIO MONTEZ, Defendant-Appellant.
    First District (5th Division)
    No. 1 — 89—1078
    Opinion filed February 14, 1992.

      Rita A. Fry, Public Defender, of Chicago (Timothy J. Deeming, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Veronica X. Calderon, and Catherine A. Hufford, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MURRAY

delivered the opinion of the court:

After a jury trial, Montez, a 17-year-old gang member, was found guilty of murder for the senseless killing of Jose Vasquez, a 38-year-old man, as he sat in his car on the streets of Chicago on May 23, 1987. Montez was sentenced to a term of 40 years’ imprisonment, and he now appeals his conviction and sentence.

The facts of this case, which unfortunately only too closely resemble the facts in a number of other cases involving the killing of innocent persons on the streets of Chicago, will not be recited at this time. We shall address only one of the seven issues raised by Montez and believe this one issue, the alleged violation of the so-called Batson rule, requires that this court remand the case back to the trial court for what is known as a Batson hearing. See Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69,106 S. Ct. 1712.

In 1986 the United States Supreme Court held that it would violate an Afro-American defendant’s rights if the State exercised its peremptory challenges to exclude Afro-Americans from the jury. The Court also set forth the criteria for any defendant to establish a prima facie case of purposeful discrimination in the prosecutor’s selection of the jury. The first step of the prima facie showing was that the defendant had to show that he was a member of a cognizable racial group and that the prosecutor had exercised peremptory challenges to eliminate from the venire members of the defendant’s race. Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87,106 S. Ct. at 1723.

In 1991, however, the United States Supreme Court expanded the protections set forth in Batson when, in their decision in Powers v. Ohio (1991), 499 U.S. 400, 113 L. Ed. 2d 411, Ill. S. Ct. 1364, the Court stated that regardless of the race of the defendant, it is unlawful to exclude jurors because of their race. See also People v. Edwards (1991), 144 Ill. 2d 108, 579 N.E.2d 336.

In the present case trial commenced in March 1989. Thus the law was not yet settled on whether the Batson case applied to defendants who did not share the same race as the excluded jurors. Nor was it entirely clear what facts a defendant was required to establish to prove a prima facie case of discrimination.

During the process of jury selection in this case, the defense moved for a mistrial after the State exercised three of its peremptory challenges to exclude black venirepersons. The State’s response to the defendant’s motion was an assertion “for the record” that the reason for the exercise of peremptories was not race related. However, the State then went on to make the following comments:

“In addition, judge, we would point out that the defendant does not have a right to make a Batson claim of violation in this situation because he is not a member of the same minority group which these last three challenges were related to. The defendant’s minority group is Hispanic and the race of the three jurors in question appears to be black.”

The trial court then denied the motion for mistrial stating the following:

“Well, also I’d have to agree with the [S]tates [A]ttorney that observing the witnesses or excuse me, prospective jurors in question, I can see that as a trial tactic any number of reasons other than race would lead a trial lawyer to excuse them. And further, the record should reflect that Mr. Montez is not a member of the black race.”

Jury selection continued and the State went on to exclude two more black venirepersons. Each time the defense renewed its motion for mistrial, and each time the State argued vehemently that “the law is very clear” that a defendant does not have the right to make a Bat-son claim unless he is of the same race or minority as the excluded juror. The trial court then denied the motions without further comment.

At the close of the jury selection, and when pressed by the defense, the trial court did comment that it found the jury to be a representative cross-section of the population, but it made no specific findings as to whether or not it appeared that any of the five excluded jurors had been removed for reasons that stemmed from their race or whether the defense had set forth sufficient facts to make out a prima facie case of discrimination. In fact, none of the terminology often associated with a trial court’s ruling on a Batson claim was utilized. The court merely stated, “The record is clear. The motion is denied.”

We, however, do not find that the record is clear since it does not obviate the court’s rationale for denying the motions. Although the trial court gave some indication that it did not find a Batson violation based upon the State’s exercise of its peremptory challenges to exclude certain venirepersons, it is unclear whether the trial court arrived at that decision, in whole or in part, based upon a belief that defendant had no right to challenge the State’s removal of Afro-Americans from the venire. Furthermore, because it appears to this court that both the State and the trial judge assumed that defendant had no standing, we believe that Montez was not given a full opportunity to attempt to establish a prima facie case. Therefore, although both the public defender and the State make forceful arguments for their respective positions concerning the resolution of the Batson issue by this court, we believe that it is in the best interests of justice, and in accordance with Illinois law, that the cause be remanded back to the trial court for a Batson hearing so that the trial court may clarify its ruling. See People v. Holman (1989), 132 111. 2d 128, 547 N.E.2d 124 (remand for a prima facie determination would be proper where the defendant has not had a full opportunity to substantiate his claim and the record on review was developed under a different set of standards).

Due to our ruling above and because this court has found that, invariably, no matter what the trial court rules in a Batson hearing the matter is litigated on review, we decline to rule at this time on the other issues set forth in this appeal. Rather, we believe that it would be in the interest of judicial economy for this court to retain jurisdiction over the remaining issues on appeal until such time as the trial court rules on the Batson claim. In the event that the trial court finds a violation of Batson and orders a new trial, some of the issues raised in this appeal would become moot. If, however, the trial court finds no Batson error, we may consider that ruling along with all of the other alleged errors already raised in this appeal.

For the reasons stated above, we remand this case to the trial court with directions that an expedited hearing be held solely on the issue of whether the State violated Montez’s rights by exercising its peremptory challenges to exclude five black prospective jurors.

Remanded.

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


source: Caselaw Access Project

author: JUSTICE LaPORTA

license: Public Domain

text:
      In re APPLICATION OF THE COUNTY TREASURER AND ex officio COUNTY COLLECTOR OF COOK COUNTY FOR ORDER OF JUDGMENT AND SALE OF LANDS AND LOTS UPON WHICH ALL OR A PART OF THE GENERAL TAXES FOR FIVE OR MORE YEARS ARE DELINQUENT (The City of Chicago, Petitioner-Appellant).
    First District (6th Division)
    No. 1 — 91—0720
    Opinion filed February 10, 1992.

      Kelly R. Welsh, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, and Brian Trubitt, Assistant Corporation Counsel, of counsel), for appellant.
    Rodney C. Slutzky, of Chicago, for appellee.
   JUSTICE LaPORTA

delivered the opinion of the court:

This appeal stems from Cook County’s purchase of two parcels of property in the 1700 block of W. Warren Street, Chicago, for a no-cash bid on December 15, 1987, after the property was posted for sale for delinquent taxes up to and including 1985 taxes. On March 10, 1988, the county assigned its certificates of purchase to the City of Chicago.

On April 20, 1988, the property was sold once again for delinquent taxes, this time for the year 1986. Alice Dolezich bid on the property and was issued certificates of purchase. Both Dolezich and the City of Chicago (City) petitioned for tax deeds, filing objections to each other’s actions. The court ordered a consolidated hearing on the two cases because of their interdependence.

At the consolidated hearing the trial judge denied a motion by the City to recognize the tolling of the statutory one-year limit the City faced on obtaining a tax deed. The court found the City’s one-year time limit from the expiration of the redemption period for obtaining a tax deed had expired on February 28, 1990, and dismissed the City’s petition for a tax deed with prejudice. The City then recorded its certificates of purchase with the Cook County recorder of deeds and filed a motion asking the court to reconsider its order because the certificates had been recorded and its lien was placed of record within the three-year time limit afforded municipalities under the Revenue Act of 1939 (111. Rev. Stat. 1989, ch. 120, par. 1 et seq.). The motion was denied and the court ordered that the City’s subsequent attempt to redeem the property in Dolezich’s case be expunged from the record. The City appealed.

At the time of this appeal, Dolezich’s petition for tax deed was still pending and by court order of October 25 the one-year statute of limitations period was tolled until further order of the court.

The City raised three issues on appeal: (1) whether section 271 of the Revenue Act prevents a tax purchaser who has filed a timely application for tax deed from receiving a deed simply because judicial proceedings on the application, through no fault of the purchaser, took more than one year; (2) whether within the one-year period allowed under section 271 of the Revenue Act for obtaining and recording a tax deed one must file a motion to invoke that section’s tolling provisions for periods of time in which the court is unable or unwilling to act on the application for a tax deed; and (3) whether a municipality can preserve a lien on property under section 271 of the Revenue Act without obtaining a deed for that property.

On December 15, 1987, the County of Cook purchased two parcels of unimproved property in the City of Chicago for a no-cash bid at a tax sale of the property for unpaid taxes for 1976 through 1985 on one parcel and 1978 through 1985 on the other parcel. The two parcels were purchased individually and involved separate but identical and simultaneous court proceedings throughout. For the sake of simplicity, the City’s actions and the two court cases will be referred to in the singular. The county assigned the certificates of purchase for the parcels to the City of Chicago on March 10, 1988, and the City then filed to extend the June 15, 1988, redemption date to February 28, 1989. No redemption occurred by that date.

On October 3, 1988, the City filed petitions for tax deeds pursuant to section 266 of the Revenue Act (111. Rev. Stat. 1989, ch. 120, par. 747) and served the requisite statutory notice on all interested parties advising them of the February 28, 1989, redemption expiration date. On March 13, 1989, after the redemption period had expired, the City filed an application asking the court to direct the county clerk to issue tax deeds to the City for the two parcels. The applications were set for a prove up July 17,1989.

On July 17, the record owner, the Rev. Daniel Vinson and Out Reach Mission, requested that the prove up be continued and a continuation was granted to September 8, 1989. On that day, an attorney for Vinson filed an appearance.

The court heard evidence on September 8 and again on November 6 with regard to a purported extension of the redemption period. Dolezich contests the inclusion of these items in the statement of facts, stating that they are not in the record. A review of the record with regard to Vinson’s activities in the case establishes, however, that though the transcripts of the July 17, September 8 and November 6 hearings are not included, a summary of their outcomes appears in the record in documents from both Vinson and the City.

On December 5, 1989, three months before the one-year statutory time limit expired, the trial court granted the City’s motion for an order directing the county clerk to issue tax deeds on the parcels. The court directed the City to submit a full order and transcripts to the court. The record does not include transcripts for court hearings during this time period.

On January 3, 1990, Vinson, through additional counsel, moved the court for reconsideration. Vinson contended that the court’s December 5 order was entered without expunging the attempted redemption made by Vinson and therefore no tax deed could rightfully be issued. Vinson alleged also that the City’s applications for tax deeds were not in proper form.

On February 16, 12 days before the expiration of the one-year deadline, the City moved the court for leave to complete prove up on the two tax deeds. The City explained that it had responded “ready” to proceed to hearing on five court dates, July 17, 1989, September 8, October 10, November 6 and December 5, but that the case was continued the first four dates at the request of or to accommodate Vinson. The motion stated: “At these hearings, counsel for Petitioner and Respondents directed their arguments to the unauthorized extension of the period of redemption and Respondents’ redemption of the property from sale. Because of the focus on the issues raised, counsel for Petitioner did not complete its submission of proof of Petitioner’s compliance with the requirements of the Revenue Act.”

On March 12, 1990, two weeks after the expiration of the one-year limitations period, the court ordered that Vinson’s motion for reconsideration be set for a hearing on March 21. The City’s motion to pursue prove up was continued until further order of court.

On April 3, 1990, the court denied Vinson’s motion for reconsideration and granted the City’s motion to set aside and expunge Vinson’s redemption of the property. The court ordered that Vinson’s money from the attempted redemption be returned to him. The City’s motion to complete prove up was granted and scheduled for April 27,1990.

On April 26, 1990, Alice Dolezich’s attorney filed an appearance for Dolezich as an “objector” and the April 27 prove up date was continued to June 7. On May 7, 1990, the City filed a request that Vinson admit to certain facts in the case. Vinson refused, but the court ordered Vinson to respond to the request and set a prove up date for July 19, 1990. On July 6, 1990, the City filed a motion to quash Dolezich’s appearance as objector. The motion was denied without prejudice on July 9, 1990. On July 19, the court on its own motion continued the matter to September 6.

On August 1, 1990, the City filed a motion asking the court for an order recognizing the tolling of the one-year time limitation. Future hearings for the City’s case and Dolezich’s case were then combined.

Dolezich became involved with the properties on April 20, 1988, four months after the county purchased the land for delinquent 1976-1985 taxes, when she purchased the same two parcels for delinquent 1986 taxes. On January 26, 1990, Dolezich filed her petition for tax deeds and the redemption date was set to expire June 8, 1990. Two days prior, on June 6, the City deposited money with the county clerk in an attempt to make a valid redemption of the property from Dolezich.

Dolezich petitioned the court to expunge the City’s attempted redemption contending that the City had not protected its interest in the property within the prescribed time limit after it purchased the property at the 1987 scavenger sale. Dolezich argued that the City’s only legal interest in the property was based on its certificates of purchase from the 1987 scavenger sale and that the certificates were now “null and void” because of the running of the statutory time limit on February 28,1990, for issuance of deeds to the City.

The City filed a response to Dolezich’s petition to expunge and a motion to dismiss Dolezich’s petition for tax deeds based on its right to redeem from the 1986 tax sale. On August 6 the trial judge ordered the cases scheduled for joint hearings on various motions filed by the parties.

In its order entered on September 24, the court found: (1) the City should have moved for an order tolling the time of limitation in section 271 within one year of the expiration of the period of redemption; (2) the tolling of the time limitation was not automatic under the facts of this case and should have been accomplished by a court order entered on or before February 28, 1990; (3) the court denied the motion to recognize tolling of the time limit; (4) the court declared the City’s scavenger sale certificates and the sale on which it was based null and void without a right of reimbursement to the City; and (5) denied the City’s petition for deed with prejudice. The City filed its petition for reconsideration. Thereafter at a subsequent court hearing on October 25, the court entered an order in which it repeated its earlier finding that the City failed to meet the statutory time limits for deed and that the City’s interest in the properties expired on February 28, 1990. The October 25 order also found that on June 6, 1990, the date the City “purportedly redeemed Alice Dolezich’s 1986 Annual Tax purchases” the City had no redeemable interest and therefore was a stranger to the title and found for this reason that “the redemptions were wholly illegal and void and had no legal effect.” The judge ordered the purported redemptions expunged from the record and ordered the return of the deposited redemption funds of $2,128.26 and $1,591.59 returned to the City. The court denied the City’s motion to dismiss the Dolezich petition for tax deed. Both orders were made final and appealable by the addition of Rule 304(a) (134 Ill. 2d R. 304(a)) language.

Two weeks later, on November 8, the City recorded its certificates of purchase with the Cook County recorder of deeds. The recordation occurred less than three years after the original certificates of purchase were issued. The City then moved the court to reconsider the September 24 and October 25 orders contending that it had protected its lien right in the properties by recording the certificates within the three-year limit afforded to municipalities by section 271 of the Revenue Act. The trial court denied this motion and the City appealed.

The City conceded at oral arguments that it chose not to pursue what it believed to be the initial error of permitting the land to be sold to Dolezich when the City was holding newly acquired certificates of purchase. Instead, the City contends that the trial court erred when it blocked the City’s efforts to obtain tax deeds on the parcels.

Under the Revenue Act of 1939, still in effect today, a property owner who fails to pay taxes on land shall have his property sold at auction with the purchaser receiving a certificate of purchase. The delinquent taxpayer then has a time period to redeem the property by paying taxes, interest and penalties. If no one has redeemed the property, the purchaser may petition the court, pursuant to section 266 of the Revenue Act, for an order requiring the county clerk to execute to the purchaser a tax deed in fee simple. Section 266 stated, in pertinent part:

“If the time of redemption expires and the real estate has not been redeemed from the sale and all taxes and special assessments which became due and payable subsequent to the sale have been paid and all forfeitures and sales which occur subsequent to the sale have been redeemed and the notices required by law have been given and the petitioner has complied with all the provisions of law entitling him to a deed, the court shall so find and shall enter an order directing the county clerk on the production of the certificate of purchase of a certified copy of the order, to issue to the purchaser or his assignee a tax deed.” Ill. Rev. Stat. 1987, ch. 120, par. 747.

Section 271 of the Revenue Act sets out the time limits for issuance of a tax deed and the circumstances that toll the time limit. The overriding issue on appeal is the interpretation of section 271, which states, in pertinent part:

“Unless the holder of the certificate for real estate purchased at any tax sale under this Act takes out the deed in the time provided by law, and files the same for record within one year from and after the time for redemption expires, the certificate or deed, and the sale on which it is based, shall from and after the expiration of such one year, be absolutely null and void with no right to reimbursement. If the holder of such certificate is prevented from obtaining such deed by injunction or order of any court, or by the refusal or inability of any court to act upon the application for a tax deed, or by the refusal of the clerk to execute the same, the time he or she is so prevented shall be excluded from computation of such time. Certificates of purchase and deeds executed by the clerk shall recite the qualifications required by this Section.” Ill. Rev. Stat. 1989, ch. 120, par. 752.

This case requires us to interpret the language “refusal or inability to act.” Our research indicates this is a case of first impression.

The City argues that the trial court erred in not dismissing Dolezich’s petition for a deed after the City filed its objection to Dolezich’s application contending it had redeemed the property and therefore no tax deed could be issued to Dolezich. (Ill. Rev. Stat. 1989, ch. 120, par. 747.) The City contends the court erroneously found the City had no right to redeem the properties because it failed in its effort to obtain tax deeds on the parcels within one year.

The City contends that it had sufficient interest in the property to redeem from the 1986 tax sale and that it complied with the requirements of section 266 when it paid all the money required to redeem within the time allowed. The City asks this court to decide whether section 271 of the Revenue Act prevents a tax purchaser who has filed a timely application for tax deed from receiving a deed simply because judicial proceedings on the application, through no fault of the purchaser, took more than one year.

The City contends that dismissal of its motion was in error because section 271 permits tolling of the one-year time limit because of “the refusal or inability of any court to act upon the application for a tax deed.” The City argues that it was prevented from obtaining tax deeds on the property because of court hearings held to resolve competing interests in the property.

The City argues that Vinson’s eight-month-long efforts to redeem the property from July 1989 to April 1990, and Dolezich’s subsequent objection and her effort to obtain tax deeds on the property, prevented the court from acting on the City’s application before the end of the one-year period on February 28, 1990. The City relies in its argument on the language of the statute and its statutory history but admits that no previous cases have interpreted what procedural scenario would constitute the “refusal or inability of any court to act.”

The genesis of section 271 is found in the 1872 Revenue Act, which permitted a county clerk to issue a deed within one year of the expiration of the redemption period, excluding any time where the clerk refused or was prevented from executing the deed. (1871 Ill. Laws 1.) The Revenue Act of 1939 retained this same language. 1939 Ill. Laws 984.

In 1951, the Act was modified to require the court, instead of the clerk, to perform a summary review and determine whether the requirements for issuance of a tax deed were met. (1951 Ill.Laws 943.) The language in section 271 was altered in 1965 to include the present language stating that the “refusal or inability of any court to act” tolls the one-year time period. 1965 Ill. Laws 1982.

The City contends that this 1965 modification was a recognition by the General Assembly that delays can occur even in the most summary of judicial proceedings and that those delays should not be charged to the petitioner. The City argues that it met its statutory time obligation when it filed its timely petition for a deed with the court.

In its reply brief, the City acknowledges findings in the 1991 case, In re Application of Rosewell (1991), 209 Ill. App. 3d 187, 568 N.E.2d 89 (commonly referred to as Wolf), in which the court briefly considered the language of section 271, recognizing that “refusal or inability” previously had not been interpreted by the courts. In Wolf, the person seeking a tax deed, Wolf, filed an application approximately one month after the redemption period had expired asking the circuit court to order the county clerk to issue a tax deed. Wolf then was left with 11 more months to obtain the tax deed. She did not pursue her application for deed for another 10 months, and on September 10, four days before the September 14 time limit expired, she proved up her petition for deed. On September 14 the court granted her petitions and ordered the issuance of the deed. When the tax deed finally was issued on September 21, it came seven days past the expiration of the one-year time limit.

Faced with losing the tax deed she had just obtained, Wolf’s attorney filed an affidavit stating that he had been hired only one month before the expiration of the one-year time limit and that the trial judge was not sitting for 15 of those 30 days. The attorney contended that those 15 days, and the seven days it took the clerk to issue the deed, should toll the one-year time limit.

The appellate court noted that the attorney had worked on the case for only one month. “[A]lthough the statute speaks of the ‘refusal or inability’ of the court to act on an application for a tax deed, and the ‘refusal’ of the clerk to act on the court’s order to issue a deed, it does not appear that respondent has encountered such difficulty here, but was merely faced with the ordinary delays incident to the processing of cases in the circuit court. Moreover, respondent fails to address why she did not even attempt to obtain a court order until the middle of August 1984, 11 months after the expiration of the statutory redemption period. Accordingly, we affirm the trial court’s holding that respondent’s tax deed was invalid for failure to comply with the pertinent statutory requirements.” Wolf, 209 Ill. App. 3d at 190-91.

The City argues that the language in Wolf is dictum and that Wolf is distinguishable further on its facts because Wolf made no attempt to have her case heard until one month before the expiration of the one-year time limit and therefore did not diligently pursue her application for deed.

Dolezich argues that Wolf is controlling and supports the proposition that the court was “unwilling to consider Wolf’s innocence in construing the court’s and clerk’s inability or refusal to act.” Dolezich contends that the “inability to act” in the statute is “something more analogous to a court’s lack of jurisdiction.” Dolezich argues that it was the City’s burden to present the necessary proofs to the court to enable the court to act, or establish on the record that it was being prevented from going forward.

Dolezich argues further that the City is not the innocent victim it wishes to portray itself as because nothing in the record indicates any objection on the City’s part when its original hearing date was set at July 17, 1989, five months after the expiration of the redemption period. Dolezich argues that the record discloses no instances where the City objected to continuances, demanded a hearing or expressed concern about the running of the one-year limitation.

We do not find this case analogous to Wolf, where the petitioner sat idle until the last month before pursuing her application for tax deed. Here, the redemption period expired February 28, 1989. The City filed its petitions for tax deeds on October 2, 1988, well before the expiration of statutory time limits. On March 13, 1989, two weeks after the redemption period expired, the City filed applications for orders directing the county clerk to issue a tax deed. The petitions were set for hearing July 17, 1989, and months of the one-year period remained. The property owner Vinson objected to the issuance of the tax deed on July 17, 1989, and memoranda in support of and against Vinson’s challenge were filed. On December 5, 1989, three months before the one-year period expired, the trial court entered an order expunging Vinson’s attempted redemption.

On January 3, 1990, still within the one-year period, Vinson, through additional counsel, moved the court for reconsideration. On February 16, 1990, the City moved the court for leave to complete prove up on the two tax deeds. The City explained that it had responded ready on four court dates, July 17, 1989, September 8, October 10, November 6 and December 5, but that the case was continued the first four dates at the request of or to accommodate Vinson. On March 12, 1990, the court ordered that Vinson’s motion for reconsideration be set for a hearing March 21. On April 3 the court denied Vinson’s motion for reconsideration and set the City’s motion for completion of prove up for April 27. Dolezich filed an appearance as an objector on April 26 and thereafter the matter was continued from time to time by the court pending resolution of Dolezich’s objection. We note that all of these matters were pending before the same trial judge, who was fully aware of all of the disputes among the parties.

Section 271 specifies time periods that are not to be included in that one-year calculation: “If the holder of such certificate is prevented from obtaining such deed by injunction or order of any court, or by the refusal or inability of any court to act upon the application for a tax deed, or by the refusal of the clerk to execute the same, the time he or she is so prevented shall be excluded from computation of such time.” Ill. Rev. Stat. 1987, ch. 120, par. 752.

Dolezich’s interpretation of the statute would render the words “shall be excluded from computation” meaningless. Every word of a statute should be given meaning. {In re Marriage of Freeman (1985), 106 Ill. 2d 290, 297-98, 478 N.E.2d 326.) Dolezich argues that the City should have “demanded a hearing date earlier than July 17, 1989,” yet we note that this date was still 6½ months prior to the expiration of the one-year time limit.

While it is true that the record does not contain transcripts of all the court hearings involved, the City’s February 16, 1990, motion does request leave to complete prove up and explains that four court dates were continued at Vinson’s request or to accommodate Vinson. The statements in the motion were not challenged by Vinson or Dolezich and are unrefuted anywhere else in the record.

In his ruling, the judge stated: “The City of Chicago was not prevented from obtaining its tax deeds within one year from the expiration of the period of redemption by the refusal or inability of the court to act upon its applications for tax deeds.” But unanswered by Dolezich is how the court could have ordered issuance of a tax deed to the City when she and Vinson still were actively pursuing their respective challenges to the City’s application for deed and their claims for a finding of ownership in fee simple.

We believe section 271 of the Revenue Act did not prevent the City as a tax purchaser filing a timely application for tax deed from receiving a deed simply because judicial proceedings on the application, including an unsuccessful effort to redeem by Vinson, took more than one year. The City actively pursued its right to title to the property and should not be penalized because the court properly refused to issue a tax deed until the interests of Vinson and Dolezich were determined and extinguished by the court.

The City also contests the trial court’s ruling that the City’s time to obtain tax deeds expired because the City failed to file a motion within the one-year period to invoke the tolling provisions of section 271. In denying the City’s motion to reconsider, the trial judge ruled that the one-year time limit meant a calendar year unless the person seeking a tax deed filed a motion before the expiration of the year to explain why he qualified for one of the stated exceptions.

In his ruling, the trial judge stated: “The whole purpose of a tax buy, tax purchasing provisions of the Revenue Act is to give merchantable title to people, to enable people to put tax delinquent property back on the tax rolls so the County and the City can get increased revenue. If you are going to allow that to remain a cloud on title you are affecting the merchantability of those tax titles. *** You have to protect yourself *** or come in on a motion before the one-year statute is up to determine whether the exceptions do or do not apply.” The court order read, in pertinent part, “The City of Chicago had the ability and should have moved for an order tolling the time of limitation *** within one year.”

The City argues that the plain meaning of the statute “shall be excluded from the computation” makes no mention of any requirement to file a motion to toll the time period. The City contends that ordinary principles of statutory interpretation dictate a finding contrary to Dolezich’s interpretation and the court’s finding.

The City argues that the requirements imposed by the Revenue Act have not changed since 1872 except that the process was taken out of the hands of the clerk’s office and put into the hands of the court. The one-year time limit was included in the language of the Revenue Act of 1872 when the clerk was responsible for issuing tax deeds. The City argues that no “motion” could have been possible to toll the one-year period since the court was not a participant in the process under that early statutory construction.

The City contends that other statutory tolling provisions do not require a prior motion, i.e., minors, persons under legal disability and imprisoned persons are permitted to bring an action within two years after the disability is removed. Ill. Rev. Stat. 1989, ch. 110, par. 13— 211.

In addition, the City argues that no case authority exists for the trial judge’s ruling requiring such an affirmative action on the part of the tax deed petitioner. The City contends that the statute of limitations is an affirmative defense and therefore use of this defense cannot arise until after the limitations period is over. Cutsinger v. Cullinan (1979), 72 Ill. App. 3d 527, 531-32, 391 N.E.2d 177.

In support of its position, the City cites Davis v. American & Foreign Christian Union (1881), 100 Ill. 313, 318-19, where the supreme court ruled" that the circuit court wrongfully withheld a tax deed from a holder of a certificate of purchase after a deed was demanded timely from the master in chancery but wrongfully withheld. The court found the wrongful withholding of the deed sufficient to defeat the bar of the statute. Davis, 100 Ill. at 318-19.

Dolezich does not address the Davis case but contends that the holdings in three other cases support her view that pending litigation does not automatically toll a statute of limitations. (First National Bank v. Kusper (1983), 98 Ill. 2d 226, 233, 456 N.E.2d 7; In re Application of Rosewell (1989), 127 Ill. 2d 404, 537 N.E.2d 762; Gage v. Parker (1899), 178 Ill. 455, 53 N.E. 317.) These three cases, though informative, are factually distinguishable and do not address the question of whether the City has an affirmative duty to move that the statutory period be tolled.

We find the statute specifically provides for a one-year period, excluding certain times “computed” by the court. If Dolezich or Vinson had filed a motion alleging that the one-year time period had run, then the City could have argued in its defense that pending litigation tolled the statutory time period.

Though wisdom may dictate that the City make such a formal motion in the future to make a clear and strong record, we find nothing in the statute or in case law that compels the City to file a motion prior to the expiration of the one-year time period in order to inform the court that litigation still was pending before that very court — a fact of which the court was obviously aware.

In the alternative the City argues that even if this court finds it was not entitled to a tax deed, it was error for the court to expunge the City’s redemption of the 1986 taxes because the City protected its lien on the property by recording its certificates of purchase within three years of the date the certificates were issued, pursuant to section 271 of the Revenue Act. We need not decide this issue, since we have found the trial court improperly ruled on the tolling of the statute.

We conclude that the City diligently pursued its interest in the parcels. The City applied for tax deeds on the parcels two weeks after the expiration of the redemption period and obtained a July 17, 1990, prove up date. On that date and for the next eight months Vinson actively pursued his alleged redemption right to the parcels. We find that while competing interests in the parcel were unresolved and were being litigated, the court was unable legally to order tax deeds to issue and the statute was tolled. We find that the City was not required under the statute to make a formal motion to toll the limitations period and that its failure to make such a motion did not extinguish its rights under the certificate of purchase from the tax sale. Therefore, the trial court erred in holding that the City’s interest in the parcels expired and became null and void on February 28, 1990, one calendar year after the expiration of the redemption period and that the court further erred in declaring the tax sale out of which the City’s certificate of purchase arose to be null and void since the record is silent as to any challenge made as to the propriety of the sale itself.

We hold that the court erred in finding that the statutory time limits had not been tolled, in expunging the City’s redemption from the 1986 tax sale, in dismissing the City’s petition for tax deed with prejudice and in denying the City’s motion to dismiss Dolezich’s petition for tax deed for 1986 taxes. We reverse the trial court’s orders of September 24 and October 25 and remand this case to trial court for further proceedings consistent with this opinion.

Judgment reversed and remanded.

EGAN, P.J., and RAKOWSKI, J., concur.


author: JUSTICE BOWMAN

text:
      In re MARRIAGE OF KATHRYN PERLMUTTER, Petitioner-Appellee, and NORMAN PERLMUTTER, Respondent-Appellant.
    Second District
    No. 2 — 91—0254
    Opinion filed February 10, 1992.
    — Rehearing denied March 19,1992.

      Mary Ellen Dienes and Winston & Strawn, both of Chicago, and Roger A. White, of Roger A. White & Associates, Ltd., of Lake Bluff (Don H. Reuben, of counsel), for appellant.
    Sarane C. Siewerth, Arnold B. Stein, and Timothy M. Daw, all of Schiller, Du Canto & Fleck, Ltd., of Chicago, and Stephen H. Katz, of Schiller, Du Canto & Fleck, Ltd., of Lake Forest (Donald C. Schiller, of counsel), for appellee.
   JUSTICE BOWMAN

delivered the opinion of the court:

Respondent, Norman Perlmutter (Norman), appeals from several orders entered by the circuit court of Lake County relating to issues surrounding the dissolution of his marriage to petitioner, Kathryn Perlmutter (Kathryn). Norman alleges the following instances of error: (1) the trial court’s classification and valuation of marital and nonmarital property was improper; (2) the court’s distribution of marital property was improper; (3) the court’s child support award was excessive and therefore improper; and (4) the court, as evidenced by various acts and orders, was biased and prejudiced against Norman.

The parties were married on January 20, 1978, and had two children during their marriage. Kathryn filed her petition for dissolution of marriage on October 21, 1987. After a lengthy trial, the trial court rendered a written letter opinion on July 27, 1990, and entered a written judgment of dissolution in conformity with the letter opinion on September 12, 1990. The court in its September 12 order also granted leave to the parties to file petitions for attorney fees. On October 10, 1990, the trial court amended its September 12 order and otherwise denied the parties’ post-trial motions to reconsider. On October 12, 1991, Norman filed a notice of appeal from the orders of September 12 and October 10. This court, on October 30, 1990, dismissed Norman’s appeal for want of a final and appealable order. On February 28, 1991, pursuant to and in conformance with a written letter opinion, the trial court entered an additional money judgment against Norman for attorney fees and sanctions. Norman filed his notice of appeal on the same day. Kathryn also filed a notice of cross-appeal, but she has not pursued the matter.

The total value of the property involved in this case appears to be well over $20 million. The record on appeal fills eight boxes. Due to the nature of the case, and due also to the fact that Norman has provided us with an argumentative statement of facts (see 134 Ill. 2d R. 341(e)(6)), we will summarize those facts necessary to resolve the issues presented as those issues are addressed.

We first consider Norman’s contention that the trial court’s classification and valuation of certain marital and nonmarital property was improper. Section 503 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 503) sets forth the guidelines to be consulted in determining whether property is classified as marital or nonmarital. In this regard, section 503 provides in pertinent part as follows:

“§503. Disposition of property, (a) For purposes of this Act, ‘marital property’ means all property acquired by either spouse subsequent to the marriage, except the following, which is known as ‘non-marital property’:
(1) property acquired by gift, legacy or descent;
(2) property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy or descent;
(3) property acquired by a spouse after a judgment of legal separation;
(4) property excluded by valid agreement of the parties;
(5) any judgment or property obtained by judgment awarded to a spouse from the other spouse;
(6) property acquired before the marriage;
(7) the increase in value of property acquired by a method listed in paragraphs (1) through (6) of this subsection, irrespective of whether the increase results from a contribution of marital property, non-marital property, the personal effort of a spouse, or otherwise, subject to the right of reimbursement provided in subsection (c) of this Section; and
(8) income from property acquired by a method listed in paragraphs (1) through (7) of this subsection if the income is not attributable to the personal effort of a spouse.
(b) For purposes of distribution of property pursuant to this Section, all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage, including non-marital property transferred into some form of co-ownership between the spouses, is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, or community property. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (a) of this Section.” (111. Rev. Stat. 1989, ch. 40, pars. 503(a), (b).)

A trial court’s classification of property as marital or nonmarital will not be disturbed unless contrary to the manifest weight of the evidence. In re Marriage of Landfield (1991), 209 Ill. App. 3d 678, 689.

The trial court, in its July 27, 1990, letter opinion and September 12, 1990, judgment of dissolution, classified and distributed the parties’ property as follows:

The trial court, in order to achieve a 40% distribution of marital assets to Kathryn, then ordered Norman to pay to Kathryn the sum of $3,415,000, plus interest at the rate of 9% per annum. The court stated that Kathryn would be responsible for the mortgage on the Snowmass condominium. In its October 10, 1990, order, however, the trial court amended its September 12 judgment order to the effect that Norman would be responsible for the Snowmass mortgage and farther that the $3,415,000 due to Kathryn from Norman would be reduced accordingly to $2,415,000.

Specifically, Norman contends that the trial court erred in the classification and valuation of certain property when it (1) found that his interest in H.C. Partnership was marital property; (2) found that, even if Norman’s interest in H.C. Partnership was nonmarital, the individual assets of the partnership would qualify as marital property; (3) accepted Kathryn’s experts’ appraisal values for Heitman Financial, Ltd., and the New York Mayfair Regent Hotel; and (4) found that funds in various investment accounts were Kathryn’s nonmarital property.

Norman first contends that H.C. Partnership was formed prior to the parties’ marriage and, therefore, his interest in H.C. is nonmarital. Kathryn argues that the partnership was not formed until after the parties were married, in 1978, as evidenced by the fact that the partnership did not file a tax return for 1977, and the 1978 tax return failed to show any money in any partners’ capital accounts.

Testimony at trial indicated that, when Norman met Kathryn on September 1, 1977, he was the chief executive officer of Heitman, a real estate company. At that time, Norman was on the board of directors of Cordura Corporation, a New York stock exchange company that owned Heitman. Norman was also on the board of directors of Chris-Craft Industries. The day after Kathryn met Norman, Cordura publicly announced that it was selling Heitman to a group of investors, including Norman. Norman had originally purchased Heitman in 1966, but sold the company to Cordura in 1969.

In the fall of 1977, Norman led a group consisting primarily of Heitman management individuals to repurchase Heitman from Cordura. Negotiations began in June 1977, and Cordura in September 1977 made a public disclosure of the impending sale. The transaction closed in November 1977, with Cordura announcing the consummation of the sale and filing the required SEC reports. As the trial court found, H.C. Partnership was initially formed, in 1977, to acquire stock in Heitman Financial Services, Ltd., the corporation which purchased the Heitman Group from Cordura. Heitman’s acquisition was structured as a purchase of assets. Heitman Financial, Ltd., acquired Heitman’s assets from Cordura and continued the business. The purchase price was $10,250,000. $250,000 of the purchase price was paid in cash to Cordura by the new stockholder group. The new Heitman corporation paid Cordura the remaining $10 million with a Heitman corporate note. The $10 million corporate note was secured by a pledge of the acquired assets.

In support of his position that H.C. was a partnership in which he obtained an interest prior to the marriage, Norman introduced a stock certificate representing shares of stock issued by Heitman Financial Services, Ltd., in November 1977 to H.C. and a copy of a partially executed H.C. partnership agreement dated November 4, 1977. In May 1978, after the parties’ marriage but prior to any marital discord, the H.C. partners executed an amendment to the H.C. Partnership agreement that contained a recital stating that the original agreement had been executed on November 4, 1977. After the parties’ marriage, H.C. acquired other investments in addition to Heitman, such as the Mayfair Regent Hotel in Chicago, the Mayfair Regent Hotel in New York, real estate ventures known as Wilshire Normandie, La Salle Arcade, MAF Associates, and a condominium apartment in Snowmass Village, Colorado, known as Slope 103.

Regarding the classification of H.C. Partnership, the trial court, in its July 26,1990, letter opinion, stated as follows:

“H.C. Partnership is an investment partnership. It was initially formed to acquire stock in HFSL, the corporation which purchased the Heitman Group from Cordura prior to the marriage. A stock certificate representing shares of stock issued by HFSL in November, 197[7] to H.C. and a copy of a partially executed H.C. partnership agreement were produced by Mr. Perlmutter in support of his position that H.C. was a partnership in which he obtained an interest prior to the marriage. Nevertheless, the existence of H.C. as an operating entity was not established until sometime in 1978 after the marriage. Mr. Perlmutter has not met his burden of proving that he has a nonmarital interest in H.C. and its assets.”

We agree with Norman that his interest in H.C. Partnership is nonmarital property. In Illinois, the existence of a partnership relation is a question of intent to be gathered from all the facts and circumstances. (In re Marriage of Kamp (1990), 199 Ill. App. 3d 1080, 1083.) In Kamp, the evidence indicated that a partnership known as Kamp Brothers was in existence prior to 1981, when the parties in that case were married. The evidence also indicated, however, that the brothers’ agreement was oral and that they did not file tax returns for the partnership prior to 1981. Nevertheless, the court concluded that “the mere fact that the brothers had not entered into a formal written partnership agreement or filed Federal partnership tax returns prior to 1981 does not defeat a finding that a farming partnership existed prior to the parties’ marriage.” (Kamp, 199 Ill. App. 3d at 1083.) We believe the situation here to be analogous and likewise conclude that the alleged defects noted by Kathryn do not require a finding that H.C. Partnership did not exist prior to the parties’ marriage. Based on the facts and circumstances surrounding the formation of H.C., as related above, we conclude that the partnership was in existence prior to the parties’ marriage in 1978.

We also note that the trial court itself found that H.C. was “initially formed to acquire stock in HFSL, the corporation which purchased the Heitman Group from Cordura prior to the marriage.” (Emphasis added.) However, the trial court concluded by stating that, “Nevertheless, the existence of H.C. as an operating entity was not established until sometime in 1978 after the marriage.” The trial court’s statements in this regard are inconsistent and, we believe, irreconcilable. If, as the trial court found to be the case, H.C. acquired stock in HFSL, which in turn purchased Heitman prior to the marriage, H.C. clearly had to be established and in existence as some form of operating entity to do so. Neither Kathryn nor the trial court provides any relevant authority for the proposition that H.C. was not an “operating entity” prior to the parties’ marriage, and we find the court’s conclusion to that effect contrary to the manifest weight of the evidence.

Norman also contends that the trial court erred in concluding that his interest in individual partnership assets was marital property. In this regard, the trial court stated as follows:

“Even were the interest in H.C. found to be nonmarital, the individual assets would still qualify for treatment as marital assets. With regard to HFSL the evidence is convincing that significant personal effort during the marriage was contributed by Mr. Perlmutter resulting in a substantial appreciation of the asset. Given the fact that the asset had a zero equity at the time of acquisition having been acquired totally with borrowed funds, the only feasible method of reimbursement is to include the total value of the asset in the marital estate. It is also significant to note that the borrowed funds were paid back during the marriage. The funds used to pay off the loan consisted of income admittedly from a nonmarital asset but attributable to the personal efforts of Mr. Perlmutter.
With regard to the other assets held by H.C. Partnership, the classification of H.C. as either a marital nor [sic] nonmarital nonmarital [sic] is not controlling on the classification of the assets it holds. H.C. is a holding company. Each asset it holds must be analyzed separately. Having been acquired after marriage and not falling into any of the nonmarital exceptions, the following assets are marital property:
a) New York Mayfair Regent
b) Chicago Mayfair Regent for which no credible value was established and which is awarded to Mr. Perlmutter
c) Slope 103 valued at $13,000.00
d) The Mayfair deal account containing $543,000.00.”

First, we disagree with the trial court’s finding that Norman’s interest in Heitman qualifies as a marital asset. As stated earlier, the trial court initially found that H.C. Partnership was formed to acquire stock in HFSL, which in turn purchased the Heitman Group prior to the marriage. This finding seems to indicate that the trial court considered Heitman to be a nonmarital asset. The court goes on, then, to conclude that, due to Norman’s “significant personal effort,” the “only feasible method of reimbursement is to include the total value of the asset in the marital estate.” Such a conclusion, even if valid, also would indicate that Norman’s interest in Heitman is nonmarital. This is so since, if the asset was marital, there would be no need for the trial court to address the issue of reimbursement to the marital estate.

Section 503(c)(2) of the Act, which sets forth the guidelines for determining reimbursement, provides as follows:

“(c) Commingled marital and non-marital property shall be treated in the following manner, unless otherwise agreed by the spouses:
***
(2) When one estate of property makes a contribution to another estate of property, or when a spouse contributes personal effort to non-marital property, the contributing estate shall be reimbursed from the estate receiving the contribution notwithstanding any transmutation; provided, that no such reimbursement shall be made with respect to a contribution which is not retraceable by clear and convincing evidence, or was a gift, or, in the case of a contribution of personal effort of a spouse to non-marital property, unless the effort is significant and results in substantial appreciation of the non-marital property. Personal effort of a spouse shall be deemed a contribution by the marital estate. The court may provide for reimbursement out of the marital property to be divided or by imposing a lien against the non-marital property which received the contribution.” Ill. Rev. Stat. 1989, ch. 40, par. 503(c)(2).

The correct procedure to be applied under section 503(c)(2) is to determine whether either spouse, in this case Norman, contributed significant personal effort toward the nonmarital business asset which resulted in substantial appreciation of that business. (In re Marriage of Landfield (1991), 209 Ill. App. 3d 678, 695; In re Marriage of Kamp (1990), 199 Ill. App. 3d 1080, 1085.) The parties do not generally dispute either that Norman contributed significant personal effort toward Heitman or that that effort contributed to a substantial appreciation of the business. Thus, initially at least, it would seem that reimbursement to the marital estate is warranted. However, it is also true that, in valuing the right to reimbursement, if Norman’s Heitman salary is found to be reasonable compensation for his efforts, the nonmarital business need not reimburse the marital estate because Norman’s salary during the marriage is marital property, and, thus, the marital estate has already been compensated. (Landfield, 209 Ill. App. 3d at 695; Kamp, 199 Ill. App. 3d at 1085; In re Marriage of Morse (1986), 143 Ill. App. 3d 849, 855, citing Feldman & Fleck, Taming Transmutation: A Guide to Illinois’ New Rules on Property Classification & Division Upon Dissolution of Marriage, 72 Ill. B.J. 336, 344 (1984).) In addition, the fact that Norman could have received a higher salary, as implied by Kathryn, does not mean that he was not adequately compensated. Landfield, 209 Ill. App. 3d at 695.

Kathryn attempts to distinguish Morse and Kamp on the basis that in those cases the reviewing court remanded for additional evidence on the question of whether the husband’s compensation from a nonmarital business was adequate compensation to the marital estate. However, Kathryn notes that Norman commonly receives in excess of $1 million in compensation, and she has never seriously suggested that Norman is undercompensated. To the contrary, Kathryn’s valuation expert testified to the effect that Heitman executives, including Norman, were actually overcompensated. Based on these considerations, we conclude that Norman’s Heitman salary was in fact reasonable compensation for his efforts. As such, the marital estate has also already been compensated, and the trial court’s finding that the marital estate is entitled to reimbursement for the full value of Norman’s interest in Heitman, based on his personal efforts, was against the manifest weight of the evidence.

In concluding that Heitman qualified as a marital asset, the trial court also found that the funds used to pay off the Heitman loan “consisted of income admittedly from a nonmarital asset but attributable to the personal efforts of [Norman].” In this regard, the trial court was apparently attempting to follow section 503(a)(8) of the Act, which states “income from property acquired by a method listed in paragraphs (1) through (7) of this subsection if the income is not attributable to the personal effort of a spouse” is nonmarital property. (Ill. Rev. Stat. 1989, ch. 40, par. 503(a)(8).) However, the rule in this section has been said to be “consistent with prior decisional law which established that income in the form of earnings from employment received during marriage is marital property.” (Emphasis added.) Ill. Ann. Stat., ch. 40, par. 503(a)(8), Supplement to Historical & Practice Notes, at 63 (Smith-Hurd Supp. 1991), citing In re Marriage of Fleming (1980), 80 Ill. App. 3d 1006.

Roger Smith, the chief financial officer of Heitman, testified that, between December 31, 1978, and December 31, 1979, the Cordura note was reduced from $10 million to $336,875. In response to question from Kathryn’s counsel, Smith stated that the $10 million “was primarily paid out of the [Heitman] assets which were in existence at the date that Heitman Financial Services [was] acquired.” The evidence at trial allowed the trial court to conclude that the Cordura note was paid either “primarily,” or at least in part, from the sale of Heitman assets and investments and not solely from Norman’s income in the form of earnings from employment. Accordingly, the trial court’s failure to consider these other means of repayment, and its apparent conclusion that the loan was paid off entirely from Norman’s income, was contrary to the evidence.

Finally, even if some portion of the Cordura note was repaid with marital funds, “nonmarital property is not transmuted into marital property merely as the result of the use of marital funds to reduce the indebtedness.” (In re Marriage of Leisner (1991), 219 Ill. App. 3d 752, 763; see also In re Marriage of Crouch (1980), 88 Ill. App. 3d 426, 430.) To the extent that the marital estate should be reimbursed for contributions made to reduce the Cordura note stemming from Norman’s employment income, we leave that issue to be determined on remand.

To summarize, the trial court basically concluded that Heitman qualified as marital property for two reasons. First, it found that Norman’s significant personal efforts resulted in the substantial appreciation of the asset. Second, it found that the funds used to pay off the loan consisted entirely of income attributable to the personal efforts of Norman. We have found these conclusions to be against the manifest weight of the evidence, and, accordingly, we reverse the trial court’s finding that Heitman was marital property.

We agree, however, with the trial court’s finding that the other assets of H.C. Partnership, acquired after the parties’ marriage, constitute marital property. The cases cited by Norman in support of his argument that the trial court erred in analyzing assets of the partnership separately are inapposite. In both In re Marriage of Weiss (1984), 129 Ill. App. 3d 166, and In re Marriage of Wilson (1982), 110 Ill. App. 3d 809, the reviewing courts were addressing the proper method of valuing a partnership. Those cases were not concerned with the classification of a partnership or its assets as marital or nonmarital property.

Similarly, in In re Marriage of Landfield (1991), 209 Ill. App. 3d 678, In re Marriage of Kamp (1990), 199 Ill. App. 3d 1080, and In re Marriage of Wilder (1983), 122 Ill. App. 3d 338, cited by Norman, the courts were concerned with section 503(a)(7) of the Act, which provides that an increase in the value of nonmarital property remains nonmarital property, subject to reimbursement to the marital estate. (Ill. Rev. Stat. 1989, ch. 40, par. 503(a)(7).) Those cases did not address, and the question was not at issue, whether specific assets of a partnership, acquired after the marriage, would be classified as marital or nonmarital property.

Instead, we believe the case law relied upon by Kathryn to be more closely analogous to the specific issue at hand. In In re Marriage of Kennedy (1981), 94 Ill. App. 3d 537, the primary property-related issue concerned the disposition of the husband’s music store business. Title to the music stores was in several corporations in which the husband held most of the stock. In classifying the business, the court held that the stores the husband owned before the marriage, including the increase in value of those stores, were the husband’s nonmarital property. Kennedy, 94 Ill. App. 3d at 547.

After the parties were married, however, the business expanded, and the husband acquired additional stores. With regard to these stores, the court stated:

“The stores acquired after the marriage are new and distinguishable property; we do not regard them as mere ‘improvements’ to the old stores (or the corporations or ‘the business’). The new property is marital. It does not come under any exception to the rule that property acquired during the marriage is marital.” (94 Ill. App. 3d at 548.)

The court also added, “The stores are sufficiently separable so that there is no practical necessity to treat them as a unit.” 94 Ill. App. 3d at 548.

Similarly, we consider the assets acquired by H.C. after the parties’ marriage to be new and distinguishable property. All of the assets are sufficiently separable and distinct from one another, and their acquisition clearly constitutes more than an “increase in value” in H.C. Therefore, these remaining H.C. assets, having been acquired after the parties’ marriage, and not shown by Norman to be among the nonmarital exceptions listed in sections 503(a)(1) through (a)(6) of the Act, were properly classified by the trial court as marital property.

Norman also argues that the trial court erred in accepting Kathryn’s experts’ appraisal values for Heitman and the New York Mayfair Regent Hotel. With regard to Heitman, Kathryn presented the expert testimony of Gregory Vlasak, a senior vice-president and officer of Duff & Phelps Financial Consulting Company. Vlasak concluded that the total equity value of Heitman was $50 million to $55 million. In reaching this figure, Vlasak utilized two primary methods of valuation, a discounted cash flow approach and a comparable company approach. Norman did not present any expert testimony or evidence regarding the value of Heitman.

To verify the discounted cash flow analysis, Vlasak compared Heitman to 11 other companies that provide investment advisory services. When Vlasak compared Heitman’s compensation figures to those of the other publicly traded companies, he concluded that the overall figures for Heitman’s top executives were higher than those for executives in the comparable companies. In an attempt to reach what Vlasak considered to be a reasonable and competitive compensation level, he then added back to Heitman’s value $2 million to $3 million representing monies that in public companies would have been distributed to shareholders as dividends rather than to executives as bonuses.

Norman’s attack on Vlasak’s valuation is basically two-pronged. He contends that, with respect to the discounted cash flow analysis, Vlasak’s upward adjustment to net income after considering Heitman compensation levels was a legally impermissible technique. He also contends that various aspects of Vlasak’s comparable company analysis were improper. We conclude that the trial court was warranted in accepting Vlasak’s valuation testimony for three reasons.

First, as Kathryn notes, and as Norman concedes, Norman did not present any expert testimony or evidence of his own regarding Heitman’s value. Thus, there was no counterevidence of value before the trial court. Second, Vlasak’s opinion of Heitman’s value, based on actual Heitman compensation, that is, excluding the compensation add-back technique, would have been $17.4 million. Since Norman readily concedes in his brief that he would accept that valuation figure, he implicitly acknowledges and accepts the validity, except for the compensation add-back technique, of Vlasak’s analysis. Norman’s protestations in general, therefore, as to Vlasak’s discounted cash flow or comparable company methodology, appear to be without merit. Third, the one arguably relevant case Norman cites in support of his argument that the compensation add-back technique is “legally impermissible” is distinguishable from the facts of this case.

Norman cites Fehrs v. United States (Ct. Cl. 1980), 620 F.2d 255, for the proposition that the technique utilized by Vlasak is legally impermissible. In Fehrs, the court addressed what it saw as a problem involved in comparing one company with others for valuation purposes. The court’s concern stemmed from the fact:

“[T]he expert entirely avoided the use of the Rental’s own earnings as a basis for the application of the earnings multiplier in favor of a reconstructed earnings base derived wholly from the profitability levels of companies other than Rental. This, as the court sees it, is an approach that proceeds not by comparison but by substitution and, in the last analysis, represents the valuation of a non-existent company.” (Emphasis added.) (Fehrs, 620 F.2d at 265.)

In his brief, Norman only provides us with the last sentence in the above-quoted material. He therefore fails to note that, while the expert in Fehrs entirely avoided the company’s own earnings in favor of an earnings base derived wholly from the profitability levels of other companies, Vlasak did in fact consider Heitman’s overall revenues, and his conclusion was based on a partial upward adjustment to net income. Since Vlasak’s valuation was not derived solely from the compensation and profitability levels of the comparable companies, as was the case in Fehrs, we do not believe that that case compels a finding that the trial court erred in accepting Vlasak’s methodology.

Regarding Heitman’s valuation, the trial court stated as follows:

“Valuation of HFSL
I am persuaded that the discounted cash flow valuation methodology used by Gregory Vlasek [sic] is the appropriate method to value HFSL. He was criticized by Mr. Perlmutter for certain assumptions he made for determining the cash flow. I find, nevertheless, that he presented a convincing case for determining actual cash flow by making certain adjustments in the executive compensation structure. However, I also find, given Mr. Perlmutter’s minority position in the company notwithstanding his so called veto power, that a discount rate greater than 10-15% is appropriate. I would select a 35% discount rate and by applying that to Mr. Vlasek’s [sic] figures reach a value of approximately $4,420,000.00 for Mr. Perlmutter’s interest in HFSL.”

The valuation of property is a question of fact, and a trial court’s determination of value will not be reversed unless it is contrary to the manifest weight of the evidence. (In re Marriage of Wilder (1983), 122 Ill. App. 3d 338, 349.) After taking into consideration the valuation evidence presented by Kathryn’s expert, together with the fact that Norman did not present expert testimony or evidence to rebut Vlasak’s methodology, we conclude that the trial court did not err in placing the value of Norman’s interest in Heitman at $4,420,000.

Regarding the valuation of the New York Mayfair Regent Hotel, Norman contends that the value presented by Kathryn’s expert, Christopher Kuehnle, was “legally flawed” because he used the wrong methodology, having utilized a comparable sales approach rather than an income approach based on the hotel’s current business operations.

Kuehnle appraised the value of the New York hotel at $160 million. To reach this figure, he examined and analyzed sales of hotels having similar characteristics to the Mayfair Regent. Multiplying the number of rooms with this market data, Kuehnle arrived at a value of $160 million. As Kathryn correctly points out, this approach was approved in Reynolds v. Coleman (1988), 173 Ill. App. 3d 585, 596.

Norman’s expert, Jules Marling, testified that in his opinion the New York hotel should be valued at $105 million. It is very interesting to note, however, that Marling utilized both a sales comparison approach, using many of the same comparable hotels as Kathryn’s expert utilized in his analysis, and an income approach to arrive at this figure. It therefore seems odd, and even somewhat disingenuous, for Norman to argue now that the comparative sales methodology is “legally flawed.”

We also note that Heitman’s own valuation of the New York hotel, conducted in 1986 prior to the investment of $36 million in renovations, was $100 million. With this in mind, the trial court concluded as follows:

“Valuation of New York Mayfair Regent Mr. Perlmutter’s interest in the New York Mayfair Regent Hotel is found to be $6,350,000.00. I reject the methodology employed by Mr. Marling. It defies reason to think that after $3[6],000.00 [sic] in renovations an asset valued by management at $100,000,000 prior to the renovations would increase in value by less than $4,000,000.00. I accept Mr. Kuehnle’s theory that the hotel as one of a limited number of Deluxe New York hotels carries a trophy value. As with the HFSL I would apply a 35% discount rate to reach the value of Mr. Perlmutter’s minority interest.”

We agree with the trial court that it would be absurd to conclude that, if, as Heitman’s own valuation estimate indicates, the hotel was worth $100 million prior to the renovation project, it would only appreciate by some $5 million after an infusion of $36 million in improvements. As it is for the trier of fact to determine conflict in the testimony of experts (In re Marriage of Foley (1987), 163 Ill. App. 3d 1, 9), the resolution of conflict between Kuehnle’s testimony and that of Marling was within the purview of the trial court, and there was no error in placing the value of Norman’s interest in the New York hotel at $6,350,000.

Norman’s next contention is that the trial court erred when it found that the funds in various investment accounts were Kathryn’s nonmarital property. In addressing this issue in its letter opinion, the trial court stated as follows:

“Kathryn Perlmutter has the following items of nonmarital property which are awarded to her:
a) Her investment accounts which contain funds clearly traceable to the proceeds of stock in the Finley Company which she received as a gift from her father. Certain deposits of marital funds were commingled with the nonmarital funds in the investment accounts. These deposits were transmuted to Mrs. Perlmutter’s nonmarital property. Nevertheless $28,000.00 in deposits are clearly retraceable to the marital estate and reimbursement in that amount into the marital estate is warranted.”

Norman concedes that the money Kathryn received in 1981 was nonmarital at the time of receipt. He maintains, however, that marital funds were subsequently commingled with the nonmarital funds and that, since Kathryn was unable at trial to “trace” which funds were nonmarital, they were transmuted into marital property. Norman relies primarily on In re Marriage of Landfield (1991), 209 Ill. App. 3d 678, and In re Marriage of Davis (1991), 215 Ill. App. 3d 763, in support of this argument.

Kathryn argues, and we agree, that Norman confuses the respective burdens that are imposed on the parties when commingling occurs. Section 503(c)(1) of the Act, which governs the commingling of marital and nonmarital property, provides in part that, “[w]hen marital and non-marital property are commingled by contributing one estate of property into another resulting in a loss of identity of the contributed property, the classification of the contributed property is transmuted to the estate receiving the contribution,” subject to the reimbursement provisions of section 503(c)(2). (Ill. Rev. Stat. 1989, ch. 40, par. 503(c)(1).) Section 503(c)(2) provides, however, that no reimbursement is to be made if a contribution is not retraceable by clear and convincing evidence. Ill. Rev. Stat. 1989, ch. 40, par. 503(c)(2); In re Marriage of Guntren (1986), 141 Ill. App. 3d 1, 6.

Thus, according to the Act, if marital funds were contributed to and commingled with Kathryn’s nonmarital funds, resulting in a loss of identity of the marital funds, the classification of the marital funds was transmuted to Kathryn’s nonmarital estate, subject to the reimbursement provisions of section 503(c)(2). Thereafter, in order for the marital estate to be reimbursed for any contribution made to Kathryn’s nonmarital estate, it became Norman’s burden to trace, by clear and convincing evidence, the nature of those contributions. Ill. Rev. Stat. 1989, ch. 40, pars. 503(c)(1), (c)(2); Guntren, 141 Ill. App. 3d at 6.

Here, the trial court found that $28,000 in deposits were clearly traceable to the marital estate and ordered that the marital estate was therefore entitled to reimbursement in that amount. Although Norman alleges that other marital property was commingled with Kathryn’s nonmarital funds, he offers no clear and convincing evidence of such contributions. This fact distinguishes the present situation from the cases cited by Norman, where specific amounts of marital property were traceable and determined to have been contributed to and commingled with the nonmarital estate. See In re Marriage of Davis, 215 Ill. App. 3d at 768-69; see also In re Marriage of Landfield, 209 Ill. App. 3d at 694.

This is essentially the procedure the trial court followed when it determined that the funds in the investment accounts were Kathryn’s nonmarital property. While the court’s use of the word “traceable” as it related to the identity of the stock proceeds was unfortunate, and probably led to Norman’s confusion as to which party had the burden of tracing contributions, we believe that the ultimate conclusion reached by the trial court was correct.

Next, Norman argues that the trial court’s decisions regarding the division of marital property and the award of child support were improper. Specifically, Norman contends that the trial court erred when it (1) included his 1990 bonus as part of his income for child support purposes but then awarded to Kathryn the account into which the bonus had been deposited; (2) ordered him to reimburse Kathryn for her condominium rental incurred in Snowmass, Colorado, during Christmas 1988; (3) ordered him to reimburse the marital estate for certain improvements to Norman’s home in Highland Park; (4) failed to consider the tax consequences of its property distribution orders; and (5) ordered him to pay $12,000 per month, plus various other expenses, for child support of the parties’ two minor children. Norman maintains that, as a result of the trial court’s division of property, he will be rendered financially insolvent.

As stated above, we have already reversed some of the findings of the trial court with regard to its classification and distribution of assets. In light of that conclusion, “we do not believe that any purpose would be served by reviewing the propriety of the court’s overall division of property.” (In re Marriage of Leisner (1991), 219 Ill. App. 3d 752, 766.) In addition, since the division of marital property and the financial resources of the parents are among those factors to be considered in determining the amount of child support (Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(2)), courts have stated that it is also advisable to “remand to the trial court all interrelated property and support issues once it has been determined that the property division was improper.” (In re Marriage of Wilson (1982), 110 Ill. App. 3d 809, 815-16.) Therefore, as was the case in Leisner and Wilson, our reversal as to property classification and distribution necessarily will require the trial court to reexamine the overall division of property and the issue of child support in light of the adjusted financial resources of the parties. Leisner, 219 Ill. App. 3d at 766; Wilson, 110 Ill. App. 3d at 816.

Finally, Norman argues that he is entitled to a new trial on the ground that the trial court’s rulings and conduct demonstrated extreme bias and prejudice against him, thereby denying him his right to a fair trial. Specifically, Norman contends that the following instances demonstrate the trial judge’s bias and prejudice: (1) the court awarded judgment interest on $3,415,000 from September 12, 1990, although the September 12 judgment was not yet final and appealable due to the outstanding issues of attorney fees and sanctions; (2) the court’s October 10, 1990, order, requiring Norman to assume the $1 million mortgage on the Snowmass residence, had the effect of precluding Norman from obtaining supersedeas on that obligation; (3) that the court’s conduct created uncertainty as to the appealability of the September 12 order and caused him to appeal prematurely; (4) the court required him to post an appeal bond to secure the $3,415,000 (later $2,415,000) nonfinal judgment; (5) the court failed to observe the rules of evidence or procedure at the hearing for attorney fees and sanctions; (6) the court erred in awarding sanctions; (7) the court allowed Norman only 14 days to post an additional bond of $55,000; and (8) the court failed to control improper actions and conduct by Kathryn’s counsel at trial and instead praised Kathryn’s counsel while criticizing Norman’s counsel.

Kathryn responds, in part, to Norman’s allegations of trial court prejudice by arguing that Norman has waived this issue for review by failing to raise the question of prejudice in the trial court. In this regard, Kathryn contends that, since Norman filed neither a motion for a new trial nor a motion for a change of venue alleging the trial court bias or prejudice, he cannot now raise the issue for the first time on appeal. Kathryn cites McCormick v. McCormick (1988), 180 Ill. App. 3d 184, and Hollo v. Hollo (1985), 131 Ill. App. 3d 119, in support of this position. In his reply brief, Norman maintains that all of the acts and circumstances that demonstrate the trial court’s prejudice occurred after September 1990 and could not have been raised earlier and further that, pursuant to section 2 — 1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1203), post-trial motions are not required in bench trials. Norman does not address Kathryn’s argument regarding motions for change of venue.

First, we disagree with Norman’s contention that all of the alleged instances of trial court bias occurred subsequent to the court’s September 12, 1990, order and could not, therefore, have been raised earlier. As stated above, Norman also alleges that the trial court’s prejudice and bias was evidenced by its failure, during trial, to control supposedly improper actions by Kathryn’s counsel. Moreover, while we agree initially with Norman’s statement that post-trial motions are not mandated in bench trials (Ill. Rev. Stat. 1989, ch. 110, par. 2—1203), we also note that on September 19, 1990, Norman did in fact file a motion, pursuant to section 2—1203, asking the trial court to vacate its September 12 order due to confusion concerning the finality and appealability of that order, or to reconsider certain other findings. At no point in this motion, however, did Norman allege any instance of prejudice or bias.

We also agree with Kathryn’s position that, if Norman believed the trial court was prejudiced against him, he should have requested a change of venue on that basis. (See McCormick, 180 Ill. App. 3d at 191.) Section 2—1001 of the Code of Civil Procedure governs the procedural requirements for requesting a change of venue and provides, in part, as follows:

“(a) A change of venue in any civil action may be had in the following situations:
* * *
(2) Where any party or his or her attorney fears that he or she will not receive a fair trial in the court in which the action is pending, because the inhabitants of the county are or the judge is prejudiced against him or her, or his or her attorney, or the adverse party has an undue influence over the minds of the inhabitants. In any such situation the venue shall not be changed except upon application, as provided herein, or by consent of the parties.
***
(c) Every application for a change of venue by a party or his or her attorney shall be by petition, setting forth the cause of the application and praying a change of venue, which petition shall be verified by the affidavit of the applicant. A petition for change of venue shall not be granted unless it is presented before trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issue in the case, but if any ground for such change of venue occurs thereafter, a petition for change of venue may be presented based upon such ground.” Ill. Rev. Stat. 1989, ch. 110, par. 2—1001.

The right of a party to seek a change of venue on the ground of prejudice may be waived if not asserted at the appropriate time. (McCormick, 180 Ill. App. 3d at 192; Hollo, 131 Ill. App. 3d at 127-28.) Although the general rule is that a petition for change of venue is untimely if presented after the trial court has ruled on a substantive issue in the case, section 2 — 1001 does in fact allow for the situation where a ground for change of venue allegedly occurs after rulings have been made. (McCormick, 180 Ill. App. 3d at 192; Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1001(c).) In this case, it is not disputed that Norman never requested a change of venue on the basis of trial court bias or prejudice. Accordingly, based on McCormick and Hollo, we conclude that the issue of the trial court’s alleged prejudice and bias has been waived for review.

We also agree that, even if the issue of prejudice had not been waived, the trial judge’s conduct did not deprive Norman of a fair trial. As stated by the court in McCormick:

“It is well established that a trial judge is presumed to be impartial [citation] and relies only on proper evidence in reaching a determination on the merits. [Citation.] The burden of overcoming this presumption rests on the party making the charge of prejudice, who must present evidence of personal bias stemming from an extrajudicial source [citations] and evidence of prejudicial trial conduct [citation]. During a bench trial, a judge’s comments are generally regarded as making explicit that which is implicit in the adverse ruling [citation], and the judge’s subjective opinion as to what the evidence has demonstrated is insufficient to establish personal bias or to raise an inference of prejudice.” (McCormick, 180 Ill. App. 3d at 194.)

Moreover, this court has held that allegations that a judge has made erroneous rulings against a party are not allegations of personal prejudice. (Palmisano v. Connell (1989), 179 Ill. App. 3d 1089, 1096; see also McCormick, 180 Ill. App. 3d at 194.) Rather, a demonstration of actual prejudice is required. In re Marriage of Click (1988), 169 Ill. App. 3d 48, 53.

In his brief, Norman states that the trial court “appears to have intended to sanction Norman from the outset and the September 12 judgment interest award is simply an additional sanction” and that the trial court “appeared to be focused only upon the end result of sanctioning Norman without regard to legal procedure or Norman’s rights.” Norman cites no authority for the proposition that this suspected prejudice on the part of the trial judge can serve as the basis for a new trial. In fact, the only case Norman cites for the proposition that he did not receive a fair trial due to prejudice is People v. Eckert (1990), 194 Ill. App. 3d 667. In Eckert the court stated that the “trial judge’s remarks not only conveyed an impression to the jury that he felt defense counsel was not doing his job properly, but also that the defense was wasting the court’s time.” (Emphasis added.) (Eckert, 194 Ill. App. 3d at 674.) Eckert, concerning as it did a judge’s conduct in the presence of a jury, is clearly inapposite to the facts of this case, where a bench trial was conducted. Based on our review of the record, we cannot conclude on the basis of the trial court’s comments, conduct or rulings that Norman was deprived of a fair and impartial trial.

In addition, as was the case with the division of property and child support issues, our reversal as to property classification and distribution will also require the trial court to reexamine the issue of attorney fees in light of any adjusted financial resources of the parties. (In re Marriage of Thacker (1989), 185 Ill. App. 3d 465, 470.) We feel similarly disposed concerning the issue of judgment interest. This is so because the trial court’s award to Kathryn of $3,415,000, later reduced to $2,415,000, and judgment interest thereon, was made in order “to provide [Kathryn] with the balance of her share of marital property.” Since our reversal as to the classification of certain marital property necessarily affects the total amount of such property to be distributed, reexamination of these issues is also required.

For all of the foregoing reasons, we affirm in part and reverse in part the judgment of the circuit court of Lake County and remand for further proceedings not inconsistent with the views expressed in this opinion.

Affirmed in part; reversed in part and remanded.

DUNN and UNVERZAGT, JJ., concur.