author: PRESIDING JUSTICE EGAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. GREGORY OHLINGER, Defendant-Appellee.
    First District (6th Division)
    No. 1-86-0420
    Opinion filed June 23, 1989.
    Rehearing denied July 21, 1989.
    Richard M. Daley, State’s Attorney, of Chicago (Thomas V. Gainer, Jr., Paula Carstensen, and Douglas Simpson, Assistant State’s Attorneys, of counsel), for the People.
    Robert A. Fisher, of Chicago, for appellee.
   PRESIDING JUSTICE EGAN

delivered the opinion of the court:

The State appeals from an order suppressing evidence. At the hearing on the motion to suppress, the defendant, a police officer and a drug enforcement agent testified. Most of the evidence is undisputed.

On March 12, 1985, at approximately 9:25 p.m., the defendant and his wife, Debra, arrived at O’Hare International Airport in Chicago on a flight from Miami, Florida. After they left the plane they walked toward the parking area. He was carrying a brown carry-on bag. They went down an escalator, and at the bottom they were approached by Officer Kinsella of the Chicago police department and Agents Tucci and Furey of the Drug Enforcement Administration. Kinsella identified himself and told the defendant that he was conducting a narcotics investigation. The defendant agreed to answer some of Kinsella’s questions. Kinsella asked the defendant and his wife for identification and their airline tickets; and both gave him their licenses and tickets. Kinsella saw that the name on the defendant’s license and airline ticket was the same. The officer asked where they were coming from, and the defendant told him that he came from Miami.

The defendant testified that at that point the officer asked if he could search the defendant’s bag. He refused and said he was in a hurry and had a 2V2-hour drive home to Freeport, Illinois. The officer said, “This will just take a minute, just come this way.” He led the defendant by the arm to a small room that was a short distance away. The defendant testified he went with Kinsella because “[he] had no choice.” He was taken into a room, and his wife was right behind him in the room. The defendant asked, “What’s this all about?” Kinsella said “This will just take a minute” and opened the defendant’s bag. The officer took out a brown paper bag wrapped in tape containing a white powder. After the officer found that paper bag, he searched the defendant and found another brown paper bag inside his boot. That bag also contained a white powder alleged to be cocaine. The officers then took him to another building. He was searched again, and in his pants pocket they found a glass vial, also allegedly containing cocaine. The officer never told him that he was free to go or free not to speak with him. Kinsella never gave him back his license or airplane ticket. On cross-examination he denied that he ever consented to the search of his bag.

Officer Kinsella testified that he and the other officers were monitoring the deplaning passengers from United Airlines Flight 315, a non-stop flight from Miami to Chicago, because Miami is a source city for the importation of cocaine into the United States and the distribution of cocaine throughout the United States. He noticed that the defendant began looking around at other people in the area as he started walking toward the baggage area. He also noticed that the defendant looked back over his shoulder toward Kinsella and the other officers. He was carrying no other luggage than the small brown carry-on bag.

They lost the defendant for a time but saw him again later walking very rapidly and looking around. Kinsella held up his star and identified himself as a police officer and asked if he could speak with the defendant, who said, “Yes.” At the request of the officer, the defendant gave him his Illinois driver’s license and a copy of an Eastern Airline ticket in his name indicating a round trip air fare in excess of $500 and a one-day stay in Florida. When the defendant asked what “this was all about,” Kinsella told him that they were conducting a narcotics investigation at the airport. As he gave the defendant his driver’s license and ticket, he observed that the defendant’s hands were shaking and that his stomach was trembling. He asked if the defendant had any other luggage, and the defendant said that the bag was all he had. At that point Kinsella asked if the defendant would consent to a search and advised him “that he had a right not to consent to the search.” The defendant told him that they could search the bag but asked if it could be done somewhere else. Kinsella pointed to an area enclosed by elevators on two sides and a wall on the other side and asked if the defendant would like to go there. The defendant said, “Yes.”

The defendant picked up the carry-on bag and walked over with Kinsella beside him and Agent Tucci on the other side of or behind him. The defendant’s wife and the other officer were several feet away. The defendant put the bag down on the ground, knelt down in front of it and opened it. Kinsella saw the defendant place his left hand on top of a paper bag which was inside the carry-on bag and begin moving clothes around covering up his left hand and the paper bag. The defendant said, “See, I don’t have anything in the bag.” At that point Kinsella reached in the bag. He had seen the brown paper bag and a portion of a plastic bag with white powder in it. He retrieved that from the bag. He then told the defendant he was under arrest. He conducted a search of the defendant and recovered an additional amount of suspected cocaine from his boot. Later, they recovered a small glass vial containing an additional quantity of narcotics from the defendant’s pants pocket.

Agent Tucci’s testimony was substantially the same as Kinsella’s. Tucci said that when Kinsella asked if he had any other luggage, the defendant was exceptionally nervous and agitated. He was “hyperventilating” and “perspiring.” Kinsella asked if the defendant would consent to a search and told him he did not have to consent. There was a pause; and the defendant, who “seemed more relaxed” and “more calm,” turned to Kinsella and said, “Yes. You can search, but can we go someplace else to do it?”

After the conclusion of the evidence and arguments, the trial judge made certain remarks before ruling which disclosed an erroneous conception of the applicable law and an erroneous interpretation of the effect of the contradiction between the testimony of the defendant and the officers. The following are his pertinent remarks:

“I’m asked to determine, first of all, whether there was probable cause in the initial stop of the petitioner herein. At first glance it would appear that there was no probable cause to stop him, and as a matter of fact I hold that there was no probable cause to stop him. Notwithstanding that fact, once he was stopped it appeared that he voluntarily, if you want to concede that fact, engaged in some conversation with the police officers. He handed over his ticket and his driver’s license, all of which matched. His name was on them. That, under ordinary circumstances, under the cases, would have been sufficient to cause him to be released. He was not free to go. The police still had authority over him as I alluded to earlier. It then becomes a question of whether he consented to a search or not.
* * *
Under the circumstances here, where the police have stopped him without probable cause but where he felt compelled to submit to their requests for his driver’s license and ticket or tickets, where even if I believe that those items were returned to him, in fact, and that is disputed by the petitioner, and whether I believe the testimony of the petitioner or the testimony of the police officers, he was still impelled to accompany them into the vestibule. It appears that if there was a consent it was involuntary, and if there was no consent as the defendant or petitioner testifies, then, in fact it was an illegal intrusion. And so either way under the totality of the circumstances that appear before me this afternoon, I hold that the motion to suppress will be sustained.
* * *
I’m holding that under either viewpoint, if it could be looked upon as a consent, it was a consent arrived at by coercion, and at the same time I’m saying that under the law if — that it also appears that no consent in actuality or refusal of consent was obtained. Here’s what I’m confronted with, very honestly. I’m confronted with two reasonable stories. I do not find the defendant petitioner herein unbelievable, and I do find the police officers unbelievable. That’s a switch in these kinds of cases. Usually it’s very obvious. But I’m saying that under either theory, whether the police officer is testifying truthfully or whether the defendant is testifying truthfully, that under either theory, regarding the totality of the circumstances here, it’s an illegal intrusion. If there was in fact a consent it was involuntarily obtained or it was involuntarily given I should more properly say. If there was no consent then there was an intrusion. There was no basis to hold him. There was no reason to bring him into that vestibule alone and apart.
* * *
You know, the petitioner’s testimony in this was very straightforward, very credible. I’m not saying that I disbelieve him and I’m not saying, as I am wont to do from time to time, that I disbelieve the officers. I’m saying that under the circumstances presented here in either case the motion must lie.”

We construe the trial judge’s remarks to mean that, accepting the testimony of the police officers as true, the initial stop was improper because the police did not have probable cause to make the stop and the defendant may have consented to the search but his consent was not voluntary; or, alternatively, accepting the defendant’s version, there never was any consent, voluntary or otherwise.

In our view, the judge misconstrued the law when he held that probable cause was the applicable standard to determine the propriety of the initial stop. The defendant concedes that the correct test is whether the police officers had “reasonable grounds” to stop, not “probable cause.” (See Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) But, the defendant argues, although the judge may have misspoken, his holding was correct because the evidence establishes that the consensual questioning became an “investigatory stop, a seizure.”

Since we have determined that this case must be remanded for a new hearing, it is unnecessary to discuss at length the many cases that have been cited. Suffice it to say that a fact finder could conclude that the initial stop and questioning met the standards of Terry and United States v. Mendenhall (1980), 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870. (See also United States v. Sokolow (1989), 490 U.S__, 104 L. Ed. 2d 1, 109 S. Ct. 1581; People v. Hicks (1989), 183 Ill. App. 3d 636.) If he believed the officers, a fact finder could also conclude that there was no seizure when the defendant went voluntarily with the police officers from the area of the initial stop to the area where the search took place. On the other hand, if he believed the defendant, the fact finder could conclude that a seizure had taken place. It was on this point that the judge erred when he said it made no difference whom he believed.

If the officers’ testimony is believed, the facts are similar to those in People v. Brett (1984), 122 Ill. App. 3d 191, 460 N.E.2d 876, in which the appellate court reversed an order of suppression based on the trial court’s holding that the police exercised control over a defendant after they had returned his identification and airline ticket. In this case the police officers testified that they had returned the driver’s license and airline ticket to the defendant; and he testified that they had not. We disagree with the observation of the trial judge that Brett is factually inapposite.

In sum, the officers testified that it was the defendant who had asked to have the search conducted elsewhere and that he had consented to the search after he had been told he could withhold consent. The defendant testified that he refused consent, that the officer kept his license and ticket and that he was taken by the arm by Kinsella and escorted by four officers into the area where his bag was searched. We judge that the issues cannot properly be resolved without a determination of the credibility of the witnesses. For that reason we remand this case for a new hearing because left undetermined is the pivotal question whether the defendant did in fact consent to a search.

Judgment reversed and remanded.

McNAMARA and LaPORTA, JJ., concur.


source: Caselaw Access Project

author: JUSTICE QUINLAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARLON PENDELTON, Defendant-Appellant.
    First District (6th Division)
    No. 1-86-2184
    Opinion filed June 23, 1989

      Randolph N. Stone, Public Defender, of Chicago (Thomas J. Brosnan and Alison Edwards, Assistant Public Defenders, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Marie Quinlivan Czech, and Daniel J. Lynch, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE QUINLAN

delivered the opinion of the court:

The defendant, Marlon Pendelton, was tried by a jury in the circuit court of Cook County on the charge of unlawful use of a weapon by a felon. The jury found the defendant guilty of that charge and the defendant was sentenced to three years’ incarceration. Defendant appeals his conviction. We affirm.

The relevant testimony at defendant’s trial was as follows. As its first witness, the prosecution presented Officer Richard Johnson, who testified that at approximately 12:30 a.m. on February 28, 1985, he and his partner, Officer William Brantley, responded to a call of a man with a gun on 75th and Exchange in Chicago, Illinois. When they arrived, Officer Johnson said he saw a group of people looking across 75th Street at the defendant, who was standing on the opposite corner. When Johnson approached the defendant, the defendant started running and Johnson ran after him. During the chase, which lasted less than a minute, Johnson, who was about 10 to 15 feet behind the defendant, saw the defendant pull an object out from his pocket, and heard what sounded like a gunshot. At that point, Johnson pulled out his gun, and ordered the defendant to stop, but the defendant continued to run. Defendant then dropped the object on the ground and Johnson heard a clicking noise as the object hit the ground. Johnson chased the defendant another 10 feet or so and apprehended him. When Johnson reached the defendant, he arrested him and then returned to retrieve the object that the defendant had dropped. The object that Officer Johnson recovered was a .22 caliber revolver which contained five live cartridges and one spent cartridge.

Johnson also testified that while he was chasing the defendant, Officer Brantley had driven the squad car down the street to cut off the defendant; but by the time Brantley arrived, Johnson had already apprehended the defendant and recovered the gun. Johnson identified the gun in court and noted that there was a slight break on the barrel and a break in the plastic on the edge of the handle as he had observed when he recovered it.

On cross-examination, Johnson admitted that there was a discrepancy between his testimony and the arrest report that was prepared and signed by Officer Brantley on his behalf. Contrary to Johnson’s direct testimony, the arrest report stated, “Note: The weapon was recovered from the subject after a custodial search to wit a .22 cal. revolver ***.” Johnson testified that this statement was incorrect and had been added after he reviewed the report. On redirect examination, Johnson testified that he had personally prepared the incident report for the case and that the incident report stated that the gun was thrown to the ground by the defendant. The State then presented a stipulation that the defendant had a prior felony conviction for armed robbery in 1977.

The defendant presented his own testimony, the testimony of his girlfriend Antoinette Ferguson, and the testimony of Ferguson’s girlfriend Sade Armstrong. All of the defense witnesses testified that Ferguson’s ex-boyfriend, George, approached defendant, argued with him, and then pulled a gun on the defendant and threatened to kill him. Defendant ran into a restaurant to pall the police, they said, and George followed. Defendant then ran out of the restaurant with George in pursuit. Armstrong stated that when the police arrived, they threw defendant to the ground, searched him and asked him where the gun was. She said that she tried to tell the police officers that the defendant did not have the gun, but they refused to listen. Armstrong further testified that she heard a voice behind her point out the gun to the police, and, she said, she believed that the voice she heard belonged to George, since he was the only person standing behind her.

Cross-examination of the defense witnesses revealed that Ferguson, defendant’s girlfriend, had been convicted of forgery in 1982 and robbery in 1986. In addition, Armstrong, Ferguson’s friend, never came forward as a witness until the time of trial, approximately IV2 years later. The State called Officer Johnson in rebuttal, and he stated that he had not seen anyone chasing defendant, that no one, including the defendant, had said anything about defendant being chased, and that no one had pointed out the gun on the ground to him. In addition, the State presented the evidence of defendant’s prior conviction again, this time for the purpose of rebutting or impeaching the defendant’s credibility.

The jury found the defendant guilty, and the jurors were then dismissed. Later that same day, defense counsel informed the court that on the inside latch on the lock of the door to the men’s room, used by the male jurors, the word “guilty” was written in red ink, and in capital letters on the side of the latch. The court then swore in the court clerk who had found the lettering, as well as the deputy who had also seen the latch. The court found that the word had been there at least four days and that the letters were about one-quarter of an inch high. The defendant moved to vacate the verdict, but the court denied the motion and sentenced the defendant to a three-year term of imprisonment.

Subsequently, the defendant moved for a new trial based on this graffiti which was on the latch and presented four photographs of the latch. The judge then questioned defense counsel, who saw the word when the photos were taken, and the cleaning lady who cleaned the word off the latch. The judge ascertained that the latch was about 40 inches above the floor and 21k inches from the door frame. When locked, the latch was in a horizontal position, and the graffiti faced down to the ground, and when unlocked, the latch was in a vertical position, and the graffiti faced to the side. The latch was brass in color and was V-k inches long and three-quarters of an inch wide. Thereafter, the court denied defendant’s motion.

Defendant raises four issues on appeal: (1) whether the trial court erred when it denied defendant’s motion for a new trial based on the fact that the word “guilty” was written on the latch of the lock of the men’s room used by the male jurors; (2) whether the trial court erred when it allowed the State to present evidence of Officer Johnson’s prior consistent statement; (3) whether the trial court erred when it allowed the State to present evidence of defendant’s prior conviction to the jury twice; and (4) whether the remarks in the State’s closing argument were proper.

The first issue raised by the defendant is whether the trial court erred when it denied his motion for a new trial based on the fact that the word “guilty” was written on the inside latch to the door of the men’s room used by the male jurors. A fair trial requires the participation of impartial jurors. (People v. Jones (1985), 105 Ill. 2d 342, 353, 475 N.E.2d 832, 837.) In most cases involving claims of deprivation of due process, there must be actual evidence of prejudice to the accused. However, in cases where the circumstances create “ ‘such a probability that prejudice will result *** [the trial] is deemed inherently lacking in due process.’ ” Jones, 105 Ill. 2d at 352, 475 N.E.2d at 836, quoting Estes v. Texas (1965), 381 U.S. 532, 542-43, 14 L. Ed. 2d 543, 550, 85 S. Ct. 1628, 1633.

In People v. Jones, our supreme court found that the trial court in that case erred when it refused to grant a mistrial. The supreme court held that prejudice was presumed where the facts established that black racist material was found in the jury room during the capital trial of an accused black man and that the racist material was admittedly read by three members of an all-white jury. (Jones, 105 Ill. 2d at 352, 475 N.E2d at 836.) In addition, the Jones court expressed concern that a copy of this material had been disseminated by a nonjuror who should not have been in the jury room, and moreover, that no one had brought the matter to the court’s attention. (Jones, 105 Ill. 2d at 352, 745 N.E.2d at 837.) In United States v. Williams, however, the Seventh Circuit found that a mistrial was not required where the facts there established that five jury members received harassing telephone calls at their homes from the same caller, who identified himself as a representative of concerned citizens and specifically referred to the defendant’s trial. (United States v. Williams (7th Cir. 1984), 737 F.2d 594.) In four of the calls in the Williams case, the defendant’s name was used, in one call the word “hoodlums” was used, and in another call, the juror was urged to find the defendant “guilty.” (United States v. Williams (7th Cir. 1984), 737 F.2d 594.) The Williams court noted that “at most one juror heard a comment urging a guilty verdict, something properly heard from the prosecutor at trial.” Williams, 737 F.2d at 612.

Defendant here contends that he did not receive a fair trial because the jurors were prejudiced by the word “guilty” printed on the latch of the lock inside the male jurors’ rest room. The defendant claims that prejudice must be presumed here, just as it was in Jones, because there were eight male jurors in this case who might have been exposed to the graffiti. This graffiti, he asserts, urged them to find the defendant guilty throughout the course of the trial, and, he notes, the information was even more offensive, and more prejudicial, because the graffiti here was not in merely a public rest area, but was in the rest area within the courtroom. The State, however, urges that prejudice may not be presumed from these circumstances, and, because prejudice cannot be presumed, the defendant had the burden to prove the existence of actual prejudice. Here, the defendant did not meet this burden, the State contends, because no evidence was presented to indicate if any of the jurors actually saw the graffiti, or that any of the jurors were in any way prejudiced by the graffiti. Moreover, even if certain of the jurors had seen the graffiti, the State claims, they would merely have been exposed to the same argument that the State made at trial, i.e., that the defendant was guilty, as the court in Williams had found. See Williams, 737 F.2d 594.

We agree with the State and find that the defendant here was not denied a fair trial. The circumstances did not create such a probability that prejudice would result so as to cause the trial to be inherently lacking in due process. The graffiti consisted on one word, “guilty,” and there was no reference to this particular defendant. Furthermore, the physical nature of where and how it was written was such that it was not easily noticeable, in any event. In fact, it appears that a person would have had to stand directly in front of the latch, looking down in order to see it. The word “guilty,” moreover, as noted by the court in Williams, suggested no more than what the State argued at trial. (See Williams, 737 F.2d 594.) Also, this case is radically different in nature from the Jones case, where inflammatory material was found in the jury room and that material had admittedly been read by three members of an all-white jury in the capital trial of a black man. (See Williams, 737 F.2d 594; Jones, 105 Ill. 2d 342, 475 N.E.2d 832.) Accordingly, we find that prejudice may not be presumed here, and that the burden fell upon defendant to present evidence of actual prejudice, and that he failed to present any such evidence. Thus, the trial court correctly denied defendant’s motion for a new trial on the basis of this contention.

Defendant next claims that the trial court erred when it allowed the State to bolster Officer Johnson’s testimony through evidence of his prior consistent statement. As a general rule, a witness may not be rehabilitated by the admission of former statements consistent with his trial testimony. (People v. Harris (1988), 123 Ill. 2d 113, 139, 526 N.E.2d 335, 346.) It is well established, however, that where a witness has been impeached by proof that he made prior inconsistent statements, all of the witness’ prior statements may be presented to qualify or explain the inconsistency and to rehabilitate the witness. Harris, 123 Ill. 2d at 139, 526 N.E.2d at 346.

Defendant simply contends that the evidence of Officer Johnson’s prior consistent statements should have been inadmissible under the general rule that prior consistent statements are inadmissible if the statements are used to bolster a witness’ testimony. The State, however, asserts that the evidence here was admissible, because the defense presented evidence of a prior inconsistent statement in the form of the arrest report, signed by Officer Brantley on Officer Johnson’s behalf. The State argues that the trial court properly allowed the State to rebut the prior inconsistent statement with evidence of a prior consistent statement in the form of the incident report prepared by Johnson himself.

We agree with the State that the impeaching evidence of the arrest report, which stated that the gun was found in a custodial search of the defendant, was properly rebutted by the prior consistent statement in the incident report that Johnson himself had prepared, which stated that the gun had been thrown to the ground. Since this evidence was not used to bolster Johnson’s testimony, but was used rather to rebut an alleged prior inconsistent statement, the evidence was properly admitted by the trial court.

Defendant next contends that he was denied his right to a fair trial because he was prejudiced when the trial court allowed the State to present evidence of his prior conviction to the jury twice. In a case where the charge against a defendant is the felony offense of unlawful use of a weapon by a felon, evidence of a defendant’s alleged prior felony conviction must be presented by the State in its case in chief because the prior conviction is proof of an element of the offense itself. (People v. Palmer (1984), 104 Ill. 2d 340, 472 N.E2d 795.) Additionally, evidence of a prior conviction may also be used to impeach a defendant’s credibility when he testifies, and it is within the discretion of the trial court whether to allow this evidence to be used in a particular case. (People v. Montgomery (1971), 47 Ill. 2d 510, 515, 268 N.E.2d 695, 698.) In People v. Montgomery, our supreme court set forth the test to be applied by the trial judge in determining whether evidence of a defendant’s prior convictions may be used to impeach a defendant’s testimony. The test provides that evidence of the convictions should be excluded if the judge determines that the probative value of the evidence is outweighed by the danger of unfair prejudice to the defendant. Montgomery, 47 Ill. 2d at 517, 268 N.E.2d at 699-700; People v. McKibbins (1983), 96 Ill. 2d 176, 188-89, 449 N.E.2d 821, 826.

The defendant argues that the trial judge did not properly apply the balancing test and that the trial judge, therefore, abused his discretion when he allowed the State to use the evidence of defendant’s prior conviction here, especially since the parties had already stipulated to that fact. The State claims that the trial judge applied the proper balancing test and that the evidence of the conviction was properly allowed in both instances, i.e., in the State’s case in chief and in rebuttal. The State asserts that the evidence was proper in the first instance because it was necessary to prove an element of the offense, and, in the second instance, it was proper to impeach defendant’s testimony.

We find that the trial court did not abuse its discretion here. The evidence of defendant’s prior conviction was properly and necessarily admitted here in the first instance to prove an element of the offense. In the second instance, it was within the trial judge’s discretion to allow the use of the evidence to impeach defendant’s testimony if, as noted, the probative value outweighed the prejudicial effect. It appears from the record here that the trial judge properly considered the prejudicial effect of the evidence, and, only then, allowed the evidence. We cannot say that the court abused its discretion under these circumstances. Moreover, even if it was erroneous for the trial judge to have allowed the conviction to be admitted a second time, any error was harmless. The jury had, as noted, properly heard the evidence already once before, and the mere fact that the jury heard it twice, but for two different purposes, did not amount to reversible error under the facts presented. Moreover, the evidence of defendant’s guilt was substantial here.

In his final contention, the defendant claims that the State improperly attacked defense counsel and misstated the evidence in the closing arguments. To preserve an issue for review, a defendant must object at trial and the issue must be set forth in defendant’s motion for a new trial. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) A general reference, in a post-trial motion, to a prosecutor’s “prejudicial, inflammatory and erroneous statements in closing arguments” is not normally specific enough to preserve the issue on review. People v. David (1986), 141 Ill. App. 3d 243, 261, 489 N.E.2d 1124,1135.

Furthermore, it is well settled that the prosecutors are given wide latitude in closing arguments, and the scope of permissible argument is within the sound discretion of the trial judge. (People v. Uzelac (1988), 179 Ill. App. 3d 395, 534 NE.2d 1250.) Remarks in closing argument which are based on the evidence or reasonable inferences therefrom are permissible. People v. Terry (1984), 99 Ill. 2d 508, 460 N.E.2d 746.

The defendant contends here that the prosecutor, in closing argument, misstated the evidence when he told the jury that Officer Brantley did not see the entire action and that, thus, Brantley’s report contained erroneous information. He also claims that the prosecutor improperly insinuated that defense counsel was misleading the jury. The State, however, argues that the defendant waived any error when he failed to specify the nature of the errors in closing, and that even if there were not a waiver here, the remarks of the prosecutor were proper.

We find that under the David decision, defendant’s claim here was not preserved for review by the general statement in his motion for a new trial that the prosecutor “made prejudicial inflammatory and erroneou[s] statements in closing argument designed to arouse the prejudice and passions of the jury.” (See David, 141 Ill. App. 3d 243, 498 N.E.2d 1124.) However, even if there were no waiver here, we find that the prosecutor’s statements were properly based on the evidence and the reasonable inferences therefrom, and, thus, the trial judge did not abuse his discretion in allowing these arguments.

Judgment affirmed.

McNAMARA and LaPORTA, JJ., concur.


author: PRESIDING JUSTICE MANNING

text:
    RICHARD KLAWITTER, Plaintiff-Appellant, v. LAUREN CRAWFORD, Defendant-Appellee.
    First District (1st Division)
    No. 1-86-3490
    Opinion filed June 26, 1989.

      Carrie E. Hewitt, of Chicago, for appellant.
    Mandel, Lipton & Stevenson, Ltd., of Chicago (Theodora M. Rand and Richard A. Lifshitz, of counsel), for appellee.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

On May 21, 1986, plaintiff, Richard Klawitter, petitioned the circuit court of Cook County pursuant to the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1985, ch. 40, pars. 2501 through 2526), and the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40, par. 601 et seq.), to establish paternity and visitation rights with Benna Crawford, a minor child, alleging that he was Benna’s father. Lauren Crawford, Benna’s mother, filed a motion to dismiss the petition based on the fact that the plaintiff had not filed suit within the two-year limitations period provided in the Illinois Parentage Act of 1984. Ill. Rev. Stat. 1985, ch. 40, par. 2508(a)(2).

Plaintiff appeals from the dismissal: (1) contending the trial court erred in applying the statute of limitations retroactively and (2) challenging the statute of limitations on constitutional grounds. We affirm the decision of the trial court.

We first address plaintiff’s contention that the two-year statute of limitations provision incorporated in the Illinois Parentage Act of 1984 violates the equal protection clause of the United States Constitution and article I, section 2, of the Illinois Constitution of 1970.

A brief discussion of the Illinois Parentage Act in its historical context is appropriate at this juncture. Under the Paternity Act of 1958 (Ill. Rev. Stat. 1983, ch. 40, par. 1351 et seq.), putative fathers were not allowed to bring an action to establish paternity at any time. No statute expressly governed actions by putative fathers seeking to establish their paternity. However, Illinois courts did recognize such a right of action by putative fathers, and accordingly, allowed them to seek relief under the Illinois Marriage and Dissolution of Marriage Act (In re Custody of Myer (1981), 100 Ill. App. 3d 27, 426 N.E.2d 333), and under the declaratory judgment act (Pritz v. Chesnul (1982), 106 Ill. App. 3d 969, 436 N.E.2d 631). Actions brought pursuant to these statutes were not limited by a statute of limitations. The Parentage Act, enacted September 12, 1984, became effective July 1, 1985, and provides, inter alia, that a man alleging to be the father of a child, in order to establish a father/child relationship, must bring an action within two years after the child’s birth. Ill. Rev. Stat. 1985, ch. 40, pars. 2507(a), 2508(a)(2), 2514.

Upon review of the legislative history of the Illinois Parentage Act of 1984, it appears that the Paternity Act of 1958 was repealed in response to the United States Supreme Court’s denunciation of a similar statute in Tennessee in which the statute was held to be unconstitutional because it denied equal protection to illegitimate children seeking support (Pickett v. Brown (1983), 462 U.S. 1, 76 L. Ed. 2d 372, 103 S. Ct. 2199), and our supreme court’s decision in Jude v. Morrissey (1983), 117 Ill. App. 3d 782, 454 N.E.2d 24, which held that the two-year statute of limitations under the Illinois Paternity Act of 1958, which precluded the bringing of an action to establish paternity by anyone later than two years of the birth of the child, was similarly unconstitutional discrimination against illegitimate children.

Plaintiff recognizes that the Illinois Parentage Act of 1984 extends the rights of an illegitimate child to establish the parent-child relationship until two years after the child reaches the age of majority and expressly allows a putative father to bring an action to establish paternity. However, plaintiff argues that the Act is still defective because the two-year statute of limitations applicable to an action brought on behalf of any person other than the child (Ill. Rev. Stat. 1985, ch. 40, par. 2508(a)(2)) violates equal protection guarantees. Specifically, plaintiff contends that the statute of limitations bars putative fathers from maintaining an action on their own behalf to establish a relationship with the child while fathers of children born during marriage are not similarly restricted in custody, visitation or support actions.

Courts are to assume that the legislature intends to enact constitutional statutes. (Dornfeld v. Julian (1984), 104 Ill. 2d 261, 472 N.E.2d 431.) Further, all doubts are to be resolved in favor of upholding the validity of the law challenged. (People v. Bales (1985), 108 Ill. 2d 182, 188, 483 N.E.2d 517.) In analyzing the nature of the statutory classification allegedly causing discrimination, courts apply different levels of scrutiny. (See Clark v. Jeter (1988), 486 U.S. 456, 100 L. Ed. 2d 465, 108 S. Ct. 1910.) Here, the classification is not based on any of the suspect categories of race, religion, or national origin, nor does it infringe upon fundamental rights requiring strict scrutiny. (See Clark, 486 U.S. at 461, 100 L. Ed. 2d at 471, 108 S. Ct. at 1914. See also Loving v. Virginia (1967), 388 U.S. 1, 18 L. Ed. 2d 1010, 87 S. Ct. 1817; Harper v. Virginia State Board of Elections (1966), 383 U.S. 663, 672, 16 L. Ed. 2d 169, 176, 86 S. Ct. 1079, 1084.) Neither is the classification based upon sex or illegitimacy, which are given an intermediate scrutiny. See, e.g., Mississippi University for Women v. Hogan (1982), 458 U.S. 718, 723-24, 73 L. Ed. 2d 1090, 1097-98, 102 S. Ct. 3331, 3335-36; Craig v. Boren (1976), 429 U.S. 190, 197, 50 L. Ed. 2d 397, 407, 97 S. Ct. 451, 457.

Instead, the statutory classification which the plaintiff alleges is discriminatory is based upon persons other than the illegitimate child for whose benefit a paternity action is instituted. Therefore, in reviewing the statutory classification of presumed or alleged fathers, this court need only accord minimal scrutiny and determine if the classification bears some fair relationship to a legitimate governmental purpose (Lehr v. Robertson (1983), 463 U.S. 248, 265, 77 L. Ed. 2d 614, 629, 103 S. Ct. 2985, 2995) and is rationally related to a legitimate State interest (Vaden v. Village of Maywood (7th Cir. 1987), 809 F.2d 361).

The Illinois Parentage Act provides that the child or someone bringing the action on behalf of the child can bring the action until two years after the child reaches the age of majority. (Ill. Rev. Stat. 1985, ch. 40, par. 2508(a)(1).) To alleviate past defects in parentage cases and to protect the special interests of the child to have an adequate opportunity to obtain support, the legislature extended the statute of limitations beyond the age of majority. Therefore, the main objective of the Illinois Parentage Act of 1984 concerns the rights of the child involved in remedying past denials of equal protection rights existing under the old Paternity Act.

The legislature recognized different interests of a parent and child in determining parentage. (See, e.g., Mills v. Habluetzel (1982), 456 U.S. 91, 71 L. Ed. 2d 770, 102 S. Ct. 1549.) Under section 8(a)(2) of the Parentage Act, an action brought on behalf of any person other than the child shall be barred if brought later than two years after the birth of the child. In enacting this provision, the legislature determined that a two-year statute of limitations was a reasonable amount of time for any interested party, other than the child, to institute a suit to determine parentage.

The two-year statute of limitations applies to any person bringing the action on behalf of himself or herself. It applies to any civil action in which parentage is at issue. Both presumed and alleged fathers must bring a paternity action within the statutory period. The plaintiff asserts that under Illinois law, married or divorced fathers have greater rights than putative fathers. To address this contention we must look to the obvious purposes of the statute in light of the subject it addresses and its apparent objective. Chastek v. Anderson (1981), 83 Ill. 2d 502, 416 N.E.2d 247.

The Illinois Parentage Act of 1984 declared it public policy for Illinois to recognize the right of every child to the physical, mental, emotional, and monetary support of his or her parents. (Ill. Rev. Stat. 1985, ch. 40, par. 2501.1.) In achieving this objective, the Act provides “[that] [a]n action to determine the existence of the father and child relationship *** may be brought by the child; the mother; a pregnant woman; any person or public agency who has custody of, or is providing or has provided financial support to, the child; or a man presumed or alleging himself to be the father of the child or expected child.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 40, par. 2507(a).

A man is presumed to be the father if he and the child’s natural mother are or have been married to each other, or after the child’s birth, they marry each other. (Ill. Rev. Stat. 1985, ch. 40, pars. 2505(a)(1), (a)(2).) Contrary to plaintiff’s assertions, therefore, the provisions of the Illinois Parentage Act of 1984 do not distinguish between putative fathers and married fathers in determining the existence of the father-and-child relationship. The statutes which the plaintiff refers to are completely different and address issues and objectives, such as custody and support, which are not relevant to the initial issue of establishing parentage.

We also note that prior to passage of the Illinois Parentage Act of 1984, courts held that their main concern was to provide for the best interest of the child and his or her welfare in the same way the courts protect and adjudicate a dispute between the parents of a legitimate child. (People ex rel. Elmore v. Elmore (1977), 46 Ill. App. 3d 504, 506, 361 N.E.2d 615, 617.) This rationale formed the basis for the repeal of the Paternity Act of 1958 and the enactment of the Illinois Parentage Act of 1984, which greatly expands the opportunities for an illegitimate child to seek the support of his or her parents. Therefore, it is our conclusion that although the Parentage Act does address establishing the parent-child relationship, its focus and main purpose center on the interests of the illegitimate child and does not propose to extend any further than it does, any rights for alleged fathers, presumed fathers, or natural mothers. We recognize that the statute of limitations provisions in the Illinois Parentage Act provide different time periods in which different parties must institute actions to determine paternity. The statute of limitations which the plaintiff challenges as violative of his equal protection rights does not apply to illegitimate children’s paternity suits or those persons asserting claims on their behalf. Section 8(a)(2) only applies to an action brought on behalf of any person other than the child. Therefore, we conclude that the statutory classification in section 8 of the Illinois Parentage Act of 1984 is rationally related to a legitimate governmental purpose and does not violate equal protection. (See In re Paternity of King (Ind. 1987), 514 N.E.2d 325.) In addition, we defer to the wisdom of the legislature in so enacting this provision and take into consideration the general purposes underlying statutes of limitations. Hence, we conclude that the two-year statute of limitations which applies to the plaintiff serves its intended purpose, which is to avoid fraudulent or stale claims and provide repose for defendants. Gates Rubber Co. v. USM Corp. (7th Cir. 1975), 508 F.2d 603, 611.

Next, the plaintiff argues he should have been given a reasonable amount of time after the effective date of the Illinois Parentage Act of 1984 to bring his action because the new statute of limitations retroactively terminated his preexisting cause of action.

The plaintiff contends that but for the enactment of the Parentage Act of 1984, he would have been able to proceed with his cause of action under counts II and III of the petition under the declaratory judgment act, the Probate Act (Ill. Rev. Stat. 1985, ch. IIOV2, par. 1 — 1 et seq.), or the Illinois Marriage and Dissolution of Marriage Act. As noted above, the Illinois courts had recognized the rights of putative fathers to establish paternity, custody and visitation with their minor child under these statutes. However, at the time plaintiff filed his complaint, the Parentage Act was in effect as the applicable law and provided that “[i]n any civil action not brought under this Act, the provisions of this Act shall apply if parentage is at issue.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 40, par. 2509(a).

Section 8 of the Parentage Act expressly states that “[a]n action brought on behalf of any person other than the child shall be barred if brought later than 2 years after the birth of the child.” (Ill. Rev. Stat. 1985, ch. 40, par. 2508(a)(2).) This provision applies to persons like the plaintiff, who brought this action on his own behalf against the mother of the child later than two years after Henna’s birth. At the time of the commencement of this action Henna was SUz years old. Therefore, as the plaintiff asserts, the new statute of limitations acted to retroactively terminate his preexisting cause of action.

A retroactive law or retrospective law is one that takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability in respect of transactions or considerations already past. (United States Steel Credit Union v. Knight (1965), 32 Ill. 2d 138, 204 N.E.2d 4.) As a general rule, retroactive legislation is not favored unless the legislative intent of retroactive operation is expressly indicated by language or by necessary or unavoidable implication. United States Steel Credit Union v. Knight (1965), 32 Ill. 2d 138,141-42, 204 N.E.2d 4.

The defendant argues that the legislature intended that the two-year statute of limitations was meant to apply retroactively, that this intention is expressed in clear language and that the courts are bound by law to follow the intent of the legislature. It appears that the trial court did not address the issue of retroactivity. Instead, the trial court based its analysis on the savings provision of the Illinois Parentage Act. (Ill. Rev. Stat. 1985, ch. 40, par. 2525.) The judge concluded that the savings provision of the Act actually expanded the rights of the plaintiff. While we do not completely agree with the court’s analysis, we do agree that the savings provision reinforces our conclusion that the legislature intended to: (1) allow persons to bring actions to establish paternity not previously allowed to do so under the old Paternity Act and (2) extend the statutory limitations period for causes of action brought by or on behalf of the child. Section 25 states “this Act shall not be construed to bar an action which would have been barred *** as long as the limitations periods set forth in section 8 [paragraph 2508] of this Act are complied with.” (Ill. Rev. Stat. 1985, ch. 40, par. 2525.) In other words, the Illinois Parentage Act established that putative fathers like the plaintiff were no longer barred — as they were under the Paternity Act of 1958 — from bringing suit to determine the parent-child relationship as long as they met the statutory requirements and statute of limitations in section 8. We believe that the language in the savings provision (section 25) is clear that the provisions of section 8 must be met. Section 8(a)(2) clearly provides that the statutory period is two years.

Therefore, we find that where the legislature states “[a]n action brought on behalf of any person other than the child shall be barred if brought later than 2 years after the birth of the child” (Ill. Rev. Stat. 1985, ch. 40, par. 2508(a)(2)), such clear language, without more, expresses an intention to apply the shortened statute of limitations retroactively and such intention is binding upon the court. Orlicki v. McCarthy (1954), 4 Ill. 2d 342, 122 N.E.2d 513.

Having concluded that the legislature intended the Illinois Parentage Act of 1984 to apply retroactively, the next question becomes whether our analysis should end here. The defendant argues that there should be no need to inquire as to whether the plaintiff filed his action within a reasonable period of time since the legislature expressed its intent to apply the statute of limitations retroactively as to actions of the type brought in this case.

However, we agree with the plaintiff’s contention that an amendment or statute which shortens the period in which suit may be filed will not be retroactively applied so as to instantaneously terminate a cause of action, existing prior to the effective date of the statute, unless the party has a reasonable amount of time after the effective date in which to file his action. (Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223, 447 N.E.2d 408.) If a reasonable amount of time after the effective date does not exist, the courts in Illinois will accord a reasonable period of time. Mega v. Holy Cross Hospital (1986), 111 Ill. 2d 416, 420, 490 N.E.2d 665.

The question then becomes whether the plaintiff filed his action within a reasonable amount of time after the effective date of the Illinois Parentage Act of 1984. Even though the circuit court did not consider the issue of reasonableness, we have reviewed the record in order to address this argument. Benna Crawford was bom on November 14, 1982. The Illinois Parentage Act was enacted September 12, 1984, and became effective July 1, 1985. Plaintiff filed his petition to establish paternity and visitation on May 21, 1986. This was 42 months after Benna was born, 20 months after the Parentage Act was passed and almost 11 months after it became effective. Courts look to the facts of each case for a determination of what constitutes a reasonable time. (Sakellariadis v. Spanos (1987), 163 Ill. App. 3d 1084, 1089, 517 N.E.2d 324.) Even though the trial judge did not give a clear indication of whether or not IV-h months was a reasonable amount of time, we have made this determination based upon the facts and the record below. In the instant case, plaintiff had knowledge of his cause óf action from the birth of the child. In the past, he had exercised visitation privileges with her. He was free to initiate an action to establish paternity for 2>xk years under other statutory provisions. He did not allege any facts or disabilities preventing him from filing such an action prior to the passage of the new law. Therefore, we find that the plaintiff did not file the petition within a reasonable amount of time.

Ordinarily we would conclude our analysis here. However, upon an examination of the relevant cases on this issue, we did find two cases recently before our court which are strikingly similar to the instant case. (Majidi v. Palmer (1988), 175 Ill. App. 3d 679, 530 N.E.2d 66; McDonald v. McGowan (1987), 163 Ill. App. 3d 697, 516 N.E.2d 934.) In each case, the trial court dismissed the petition to establish paternity as barred by the statute of limitations under the Illinois Parentage Act of 1984. Additionally, in the Majidi and McDonald cases, the appellate court affirmed the trial court’s decision, dismissing the suit as time barred, but remanded to the trial court for the appointment of a guardian ad litem.

In the case at bar, the parties raised the issues of the constitutionality of the statute in question and whether the statute of limitations should be applied retroactively. Neither party raised the issue of the trial court’s failure to appoint a guardian ad litem or to add a new party to the suit, nor did the trial court raise these issues sua sponte. Nevertheless, we direct our attention to these issues in light of Majidi and McDonald.

The Majidi and McDonald decisions held that under the circumstances there the circuit court had an obligation to appoint a guardian ad litem, citing Roth v. Roth (1977), 52 Ill. App. 3d 220, 226, 367 N.E.2d 442, for the proposition that “[w]hen a court has notice that a minor is present without proper representation, it is the duty of that court to appoint a guardian ad litem to help safeguard and protect the interests and welfare of the minor.”

The Roth decision, which involved a contested custody dispute, also opined that “appointment of a guardian ad litem is not required in custody proceedings but is permitted by statute.” (Emphasis added.) (52 Ill. App. 3d at 227.) Similarly, under the Illinois Parentage Act of 1984, “[i]f any party is a minor, he or she may be represented by his or her general guardian or a guardian ad litem appointed by the court ***. The court may align the parties.” (Ill. Rev. Stat. 1987, ch. 40, par. 2507(c).) Section 2 — 407 of the Code of Civil Procedure provides that “[n]ew parties may be added *** by order of the court.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 407.) Therefore, in light of the statutory provisions under the Code of Civil Procedure and the Illinois Parentage Act of 1984, we conclude it is not mandatory that the trial court appoint a guardian ad litem, and therefore, we decline to follow Majidi and McDonald in the present circumstances.

We hold that the trial court was correct in its decision to dismiss the cause of action as time barred, where the filing of the paternity action was not filed either by or on behalf of the child, was filed later than two years after the birth of the child and, in fact, the plaintiff waited for almost two years after the Illinois Parentage Act of 1984 was passed and almost a year after it became effective before bringing the action.

Accordingly, the judgment of the trial court is affirmed.

Judgment affirmed.

CAMPBELL and QUINLAN, JJ., concur.

      We would like to add for the record for future guidance, in a situation such as the one at bar, where there is a potential conflict between the minor’s interests and those of her legal guardian, it may be prudent for the trial court to appoint a guardian ad litem to protect the interests of the minor child. However, to avoid any doubts and confusion, it may also be necessary for the legislature to review situations such as the one in this case and those in the Majidi and McDonald cases in order that the statute will be clear whether the trial court should make a finding as to whether the interests of the child and those of her legal guardian are in conflict. If this is not done, we will find ourselves in the wary position of reversing and. remanding otherwise sound and good decisions in order to clarify and correct an ambiguity in the law.
      As a reviewing court, it is not within our prerogative to rewrite statutes or mandate that trial judges must join parties when our Code of Civil Procedure does not require such a conclusion.


text:
      In re APPLICATION OF THE COUNTY TREASURER AND EX OFFICIO COUNTY COLLECTOR OF COOK COUNTY, ILLINOIS, FOR JUDGMENT AND ORDER OF SALE AGAINST REAL ESTATE RENDERED DELINQUENT FOR THE NONPAYMENT OF 1980 TAXES (Elisa Fredericks et al., Petitioners-Appellees, v. Midwest Real Estate Investment Company, Respondent-Appellant).
    First District (1st Division)
    No. 1-87-0577
    Opinion filed June 26, 1989.

      David R. Gray, of Chicago, for appellant.
    Jones, Ware & Grenard and Shaheen, Lundberg, Callahan & Orr, both of Chicago (Mitchell Ware, Frank M. Grenard, Alfred M. Swanson, Jr., David S. Allen, Saul R. Wexler, and George M. Pearce, of counsel), for appellees.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

Respondent, Midwest Real Estate Investment Company (Midwest), seeks reversal of a judgment entered by the circuit court which vacates a previous order directing issuance of a tax deed. This appeal affects two condominium units located on the first floor at 5036-38 South Drexel Boulevard, Chicago, Illinois. On December 11, 1978, Robert and Grace Hsu, the original owners, recorded a condominium declaration with the recorder of deeds. The declaration included an attachment which provided a legal description of the property and the percentage of ownership assigned to each of the six condominium units located in the building. Unit 1 was listed as 5036-lst and unit 4 as 5038-lst. A plat of survey was also attached to the declaration which designated unit 1 as 5038 South Drexel and unit 4 as 5036 South Drexel. Subsequent to the recording of a condominium declaration, the county assessor voids the permanent real estate index number originally assigned to property and divides the property by matching the legal description of the units as specified in the declaration. The division of property is then sent to the county clerk’s office, where a new permanent index number is created for the condominium units. Unit number 5036 — 1st was assigned the permanent index number of 20 — 11—113—029—1001 (PIN 1001), and unit number 5038-lst was assigned 20 — 11—113—029—1004 (PIN 1004).

On June 4, 1979, the owner filed an amended condominium declaration with the recorder of deeds with unit 1 listed as 5038 Drexel and unit 4 listed as 5036 Drexel. In November 1979, Theodore and Wanda Varnadoe, petitioners, obtained and recorded a warranty deed which listed the condominium unit they had purchased as 5036 South Drexel, unit 1. The Varnadoes entered into a mortgage contract with the First National Bank of Chicago, petitioner, who recorded the mortgage listing 5036 South Drexel, unit 1, as the address of the property mortgaged. Thereafter, the Varnadoes began living in the first floor unit of 5036 South Drexel which they believed they had purchased.

On October 6, 1980, Elisa Fredericks, petitioner, began living in unit 4 of 5038 South Drexel after obtaining and recording the warranty deed for that unit. There was confusion in the issuance of the warranty deeds because the Varnadoes thought they had purchased the first-floor unit they occupied at 5036 South Drexel but actually owned the first floor unit at 5038 South Drexel. Moreover, Ms. Fredericks occupied the first-floor unit at 5038 South Drexel but actually owned the first-floor unit at 5036 South Drexel.

Since their closings, the Varnadoes have paid their taxes through the First National Bank of Chicago, and Ms. Fredericks has paid her taxes through Taiman Home Mortgage Corporation. There was a double payment of taxes for the property located at 5036 South Drexel PIN 1001, and no taxes paid since 1980 for the property located at 5038 South Drexel PIN 1004.

On April 20, 1982, Midwest purchased PIN 1004 for the delinquent 1980 taxes. On June 8, 1984, Midwest filed a petition for a tax deed naming the Varnadoes as the respondents. Thereafter, on November 9, 1984, Midwest filed an application for an order directing the county clerk to issue a tax deed for PIN 1004. The circuit court entered an order on December 21, 1984, directing the county clerk to extend the period of redemption to April 19, 1985, and granted Midwest leave to file an amended petition for tax deed. Subsequently, on December 21, 1984, Midwest filed an amended petition for tax deed naming the Varnadoes, Ms. Fredericks and the First National Bank as respondents.

All notices required by the Revenue Act of 1939 (Ill. Rev. Stat. 1985, ch. 120, par. 482 et seq.) had been sent to both the Varnadoes and Ms. Fredericks at the 5038 South Drexel address. On April 23, 1985, Midwest filed an application for an order directing the county clerk to issue a tax deed. On October 10, 1985, after conducting a hearing, the trial court entered an order directing the county clerk to issue a tax deed. The petitioners did not redeem from the sale of the property nor did they appear at the hearing to defend against the issuance of the tax deed.

On March 10, 1986, Midwest filed a petition for eviction. In response, Ms. Fredericks, and subsequently the First National Bank and the Varnadoes, filed section 2 — 1401 (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1401) petitions to vacate the order directing issuance of a tax deed. A hearing on the section 2 — 1401 petitions was held on October 22, 1986. On January 26, 1987, the circuit court vacated its October 10, 1985, order concluding that the tax deed should be set aside to prevent injustice and that Midwest had committed fraud while obtaining the tax deed. Midwest appealed that order.

Midwest contends that the trial court erred in granting the petitioners’ section 2 — 1401 petitions to vacate the order, directing issuance of a tax deed, since it complied with the requirement of section 266 of the Revenue Act (Ill. Rev. Stat. 1985, ch. 120, par. 747), and the petitioners failed to establish a meritorious defense to the issuance of the tax deed. Midwest further contends that the court’s finding that Midwest committed fraud is against the manifest weight of the evidence.

The legislative intent of section 266 of the Revenue Act of 1939, which provides that tax deeds are incontestable except by direct appeal or by a section 2 — 1401 petition, identifies a strong policy favoring the merchantability of tax deeds in collateral cases once they have been issued. (In re Application of County Treasurer & Ex Officio County Collector (1987), 171 Ill. App. 3d 644, 648, 525 N.E.2d 852; In re Application of County Treasurer (1982), 92 Ill. 2d 400, 406, 442 N.E.2d 216.) However, there is a well-established competing policy favoring the liberal construction of a property owner’s right to redeem where there would be no injury to the tax purchaser. (In re Application of County Treasurer, 171 Ill. App. 3d at 648; In re Application of Rosewell (1986), 148 Ill. App. 3d 297, 303, 498 N.E.2d 790; Franzen v. Donichy (1956), 9 Ill. 2d 382, 387, 137 N.E.2d 825, 828.) A tax purchaser is not injured by the failure to get a deed since the amount the purchaser paid for the property is recovered from the county. Rosewell, 148 Ill. App. 3d at 303; In re Application of County Treasurer (1973), 16 Ill. App. 3d 385, 389, 306 N.E.2d 743, 747.

Illinois courts have held that where a property owner petitions to vacate a judgment granting a tax deed under section 2— 1401, the owner must prove fraud, and absent fraud, the tax deeds issued are incontestable except on direct appeal. (In re Application of County Treasurer (1982), 92 Ill. 2d 400, 408, 442 N.E.2d 216; Smith v. D.R.G., Inc. (1976), 63 Ill. 2d 31, 36, 344 N.E.2d 468; In re Application of County Treasurer & Ex Officio County Collector (1987), 171 Ill. App. 3d 644, 648, 525 N.E.2d 852; Ill. Rev. Stat. 1985, ch. 120, par. 747.) “Fraud” is defined as “a wrongful intent-an act calculated to deceive.” (In re Application of County Treasurer, 92 Ill. 2d at 405, 442 N.E.2d at 218; Dahlke v. Hawthorne, Lane & Co. (1966), 36 Ill. 2d 241, 245, 222 N.E.2d 465, 467.) However, our courts have also determined that an allegation of fraud is not always required when reviewing a property owner’s right to redeem. See In re Application of County Treasurer (1980), 84 Ill. App. 3d 506, 511-12, 405 N.E.2d 869.

Although in the present case there are facts in the record to support the trial court’s finding of fraud, a reviewing court is not required to accept the trial court’s reasoning for its judgment (Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387, 457 N.E.2d 9), and the trial court’s judgment may be sustained by the reviewing court on any grounds supported by the record. Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 502, 520 N.E.2d 37; Bell v. Louisville & Nashville R.R. Co. (1985), 106 Ill. 2d 135, 148, 478 N.E.2d 384.

The purpose of a petition for relief under section 2 — 1401 of the Code of Civil Procedure, formerly section 72 of the Civil Practice Act, is to bring factual matters before the trial court not appearing in the record which, if the court had known at the time judgment was rendered, would have prevented its rendition. (Aroonsakul v. Flanagan (1987), 155 Ill. App. 3d 223, 227, 507 N.E.2d 1, appeal denied (1987), 116 Ill. 2d 547, 515 N.E.2d 100; Taxman v. Health & Hospital Governing Comm’n (1980), 83 Ill. App. 3d 499, 501, 404 N.E.2d 419.) In the present case, the circuit court acknowledged that it would not have issued the tax deed if it had known of the mistakes in the title, occupancy and public records. Where unfair, unjust or unconscionable circumstances are present, justice may require the court to invoke its equitable power to vacate a default judgment to prevent such circumstances under a section 2 — 1401 petition. Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 225, 499 N.E.2d 1381; In re Application of County Treasurer (1980), 84 Ill. App. 3d 506, 509, 405 N.E.2d 869.

The petitioners are entitled to relief pursuant to section 2— 1401 of the Code of Civil Procedure if they affirmatively set forth factual allegations which support: “(1) the existence of a meritorious defense or claim; (2) due diligence in presenting this defense or claim to the circuit court in the original action; and (3) due diligence in filing the section 2 — 1401 petition for relief.” (Smith v. Airoom, Inc. (1986) , 114 Ill. 2d 209, 221, 499 N.E.2d 1381.) Although due diligence required petitioner to have a reasonable excuse for failing to act within the designated time (114 Ill. 2d at 222), when applying equitable principles, courts are not strictly bound by precedent where justice and good conscience require the vacatur of a default judgment even though the due diligence requirement has not been met. (114 Ill. 2d at 225; American Consulting Association, Inc. v. Spencer (1981), 100 Ill. App. 3d 917, 923, 427 N.E.2d 579, cert. denied (1982), 458 U.S. 1112, 73 L. Ed. 2d 1375, 102 S. Ct. 3495; Manny Cab Co. v. McNeil Teaming Co. (1975), 28 Ill. App. 3d 1014, 1019, 329 N.E.2d 376.) It is within the sound discretion of the circuit court based upon the facts and equities presented whether a section 2— 1401 petition should be granted, and a court of review will not disturb those findings unless there has been an abuse of discretion. Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 221, 499 N.E.2d 1381.

A party relying on section 2 — 1401 is also entitled to relief if he can show that he failed to defend against a lawsuit due to an excusable mistake, and that under the circumstances he acted reasonably, and not negligently, when he failed to initially defend against the judgment. 114 Ill. 2d at 222; American Reserve Corp. v. Holland (1980), 80 Ill. App. 3d 638, 643, 400 N.E.2d 102.

Our courts have held that a meritorious defense exists where owners have attempted to redeem their property and were precluded from redemption due to error by the county clerk’s office. (See In re Application of County Treasurer & Ex Officio County Collector (1987), 171 Ill. App. 3d 644, 650, 525 N.E.2d 852; In re Application of County Treasurer (1980), 84 Ill. App. 3d 506, 509-10, 405 N.E.2d 869.) Moreover, the United States Supreme Court has held that the right to redeem is a substantial right, and a court of equity has a duty to intervene when the exercise of that right is prevented as a result of official mistake. Martin v. Barbour (1891), 140 U.S. 634, 646, 35 L. Ed. 546, 550, 11 S. Ct. 944, 949; In re Application of Rosewell (1986), 148 Ill. App. 3d 297, 303, 498 N.E.2d 790.

In the case at bar, both the meritorious defense and due diligence requirements were met. The record reveals that the original owners filed a condominium declaration with the recorder of deeds on December 11, 1978, which listed unit 1 as 5036-lst and unit 4 as 5038-lst. A plat of survey was attached to the declaration designating unit 1 as 5038 South Drexel and unit 4 as 5036 South Drexel. In order to reconcile this discrepancy, on June 4, 1979, the owners filed an amended condominium declaration listing unit 1 as 5038 South Drexel and unit 4 as 5036 South Drexel. It is the responsibility of the county clerk to list subdivided property that has not been listed by the proper description (Ill. Rev. Stat. 1985, ch. 120, par. 513), and it is the county assessor’s duty to correct the descriptions upon receipt of the lists from the county clerk’s office. Ill. Rev. Stat. 1985, ch. 120, par. 523.

A representative from the county assessor’s office testified that the county assessor’s office did not receive a copy of the 1979 amended condominium declaration until 1986. He further testified that the property descriptions and permanent index numbers would have been reassigned for the 1980 tax year if the county assessor’s office had received a copy of the amended condominium declaration. This reassignment would have affected the payment of taxes since taxes are paid by permanent index numbers. Consequently, both the county clerk and the county assessor failed to meet their statutory duties, resulting in an improper listing of the units for purposes of taxation due to their failure to revise the permanent index numbers and unit descriptions consistent with the amended condominium declaration. Moreover, when Mr. Vernadoe received notice of the tax deed proceeding, he forwarded the notice to the First National Bank, which compared the notice and the legal description of the Varnadoes’ property to the Sidwell map which established that the PIN 1004 was assigned to unit 5038-lst. The bank further verified this information by reexamining the Sidwell map in the county clerk’s office, where an employee of the county clerk’s office informed the bank that the property subject to the tax sale was not the property on which the bank held a mortgage. He further mistakenly informed the bank that the Varnadoes “shouldn’t worry about the notices because the notices were not for their unit.”

The right of redemption is a substantial right and that right should not be lost due to mistake or misrepresentation. (In re Application of Rosewell (1986), 148 Ill. App. 3d 297, 303-04, 498 N.E.2d 790; Van Fleet v. Van Fleet (1984), 126 Ill. App. 3d 448, 453, 467 N.E.2d 592, 596.) Based on the foregoing, we conclude that the petitioners in good faith attempted to pay their taxes but were precluded from paying their taxes to the proper permanent index number as a result of mistakes by county officials. The petitioners were entitled to equitable relief based on the mistake of the county clerk and the county assessor’s office. In re Application of County Treasurer & Ex Officio County Collector (1987), 171 Ill. App. 3d 644, 647, 525 N.E.2d 852.

Our courts have further held that the equitable powers of the court may be exercised to allow redemption after the period to redeem has expired where redemption may have been prevented as a result of mistake by the public official or by the purchaser. (In re Application of Rosewell, 148 Ill. App. 3d at 304; Mutual Life Insurance Co. v. Chambers (1980), 88 Ill. App. 3d 952, 957, 410 N.E.2d 962, 966.) Therefore, notwithstanding the errors committed by the county officials, the petitioners are also entitled to equitable relief as a result of their own excusable mistakes in purchasing the property and paying the property taxes.

The record reveals that the original owners informed the Varnadoes that they were purchasing 5036 South Drexel unit 1 and their recorded warranty deed also listed the property they purchased as 5036 South Drexel unit 1. Moreover, Ms. Fredericks testified that she believed that she owned the unit which she occupied, which was listed in her warranty deed as 5038 South Drexel unit 4. In spite of these mistaken actions and beliefs, in actuality, the Varnadoes owned the unit occupied by Ms. Fredericks, and Ms. Fredericks owned the unit occupied by the Varnadoes.

Neither the Varnadoes nor Ms. Fredericks were negligent in their failure to respond to the notices of the tax deed proceedings. On the contrary, they believed in good faith that they were paying their property taxes when the payment of the taxes was made through their respective mortgagees, the First National Bank of Chicago and Taiman Home Corporation. Although only three of the four tax installments were paid for 1980, it is not clear from the record whether the taxes were actually paid for the property located at 5036-lst or 5038-lst South Drexel.

In reliance on: (1) the representations from the county clerk’s office that the property sold for delinquent taxes was not the property owned by the Varnadoes; (2) the bank’s belief that it had mortgaged property located at 5036 South Drexel; (3) the notice which described the delinquent tax property as 5038 South Drexel; and (4) the petitioners’ belief that the taxes on the respective units had been paid, the petitioners in good faith did not attend the hearing to defend against the issuance of the tax deed.

The right of a property owner to redeem is superior to the right of a purchaser to get a tax deed. (In re Application of Rosewell (1986), 148 Ill. App. 3d 297, 303, 498 N.E.2d 790; In re Application of Du Page County Collector (1981), 98 Ill. App. 3d 950, 952, 424 N.E.2d 1204, 1207.) In light of the circumstances, we conclude that the trial court did not abuse its discretion in granting the section 2— 1401 petitions. Instead, the trial court properly invoked its equitable power to insure fairness and justice. Accordingly, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

CAMPBELL and QUINLAN, JJ., concur.


author: JUSTICE O’CONNOR

text:
    DESIGN STUDIO INTERNATIONAL, INC., Plaintiff-Appellee, v. CHICAGO TITLE & TRUST COMPANY, as Trustee, Defendant-Appellant.
    First District (1st Division)
    No. 1-87-0915
    Opinion filed June 26, 1989.

      Irwin I. Zatz, George L. Grumley, and A. Marcy Newman, all of Arvey, Hodes, Costello & Burman, of Chicago, for appellant.
    Jerome Wiener and Joanne A. Sarasin, both of Antonow & Fink, of Chicago, for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This is an appeal from a declaratory judgment entered in favor of plaintiff, Design Studio International, Inc. (Design Studio). The trial court held that Design Studio’s obligation under its lease to pay a portion of any real estate tax increases paid by its lessor, Helene Curtis, should be based on the building as it existed prior to the improvements made by Helene Curtis. We affirm.

On February 16, 1979, plaintiff, Design Studio, executed a lease and rider with L.I.R. Associates, as agents for Michigan Avenue National Bank, as trustee under trust No. 1158.

The lease was for a term of five years from June 1, 1979, through May 31, 1984, and covered a store and basement premises in what was then known as the Exhibitors Building at 331-35 North Wells Street, Chicago, Illinois. The building was a 70-year-old, nine-story brick building with a small lobby housing some 30 to 40 tenants who exhibited home furnishings for sale to retailers or the public.

Howard Caller (Caller), the president of Design Studio, negotiated the lease directly with Daniel Comroe (Comroe), the then owner of the Exhibitors Building. The provisions of the lease which were the subject of this declaratory judgment action are paragraphs 23(A) and 24(A) of the rider. Paragraph 23(A) provided:

“Lessee agrees to pay as additional rental hereafter for each calendar year succeeding 1978, the ‘base year,’ during the remainder of the term, including any extensions or renewals thereof, a portion of any increase in the real estate taxes paid by lessor during the ‘base year.’ Said proportion shall be such fraction as the number of square feet of rental space of the leased premises bears to the total rental space in the said building.
Said additional rental shall be payable in a lump sum on the first day of June of each calendar year for which the additional rent is payable, but only after Lessor renders a Statement to Lessee thereof.”

Paragraph 24(A) provided:

“2. ‘Building Area’ in Building means all of the office and store area.
3. ‘Occupancy Factor’ is 5% (.05) which is the ratio of the premises to the total Building area in the Building.”

In October of 1981, Helene Curtis purchased the property in which Design Studio’s premises were located for about $2 million. Title was taken by Helene Curtis in the name of Chicago Title & Trust Company, as trustee under trust No. 41080664. Helene Curtis terminated the leases of every tenant in the Exhibitors Building with the exception of Design Studio, which could not be terminated because of the renewal provisions in its lease.

Between 1982 and 1984, Helene Curtis spent approximately $20 million renovating the building which it renamed the Helene Curtis Building. The building was gutted and two new floors were added. The building was rewired, and new plumbing, heating, air-conditioning, ventilation and windows were installed. The building is now used exclusively by Helene Curtis with the exception of the portion leased by Design Studio. The area leased by Design Studio was left essentially unchanged except for some work on the heating and sprinkler systems. Defendant does not dispute that Design Studio has no access to, nor is it allowed to make any use of, the new building.

In 1982, the Exhibitors Building had an assessed value of $631,975, real estate taxes were $81,977.79, and Design Studio’s proportionate share of the real estate tax was $2,133. Design Studio paid its tax bill for 1981, 1982 and 1983 based on the above assessed value. In 1984, Helene Curtis received the first real estate tax bill based on the value of the new building as determined by the quadrennial reassessment. The assessed value of the property after renovation was $2,605,692 and real estate taxes were $488,309.82. Helene Curtis subsequently sent Design Studio a bill for $20,958.48.

Design Studio refused to pay the bill but responded that pursuant to its lease, it would pay the amount of taxes it owed based upon the Exhibitors Building. Thereafter, in February of 1986, Helene Curtis served Design Studio with a five-day notice for nonpayment of rent.

Design Studio filed a declaratory judgment action and a temporary restraining order. On February 24, 1987, a declaratory judgment was entered in favor of Design Studio and defendant now brings this appeal.

Defendant contends that the trial court’s order of February 24, 1987, finding that Design Studio’s obligation to pay a portion of the real estate taxes paid by Helene Curtis should be based on the condition of the property as it existed prior to the improvements was an abuse of discretion and contrary to the manifest weight of the evidence. Defendant notes that Caller, plaintiff’s principal representative, had sophisticated knowledge of real estate matters, which was evidenced by Caller and his counsel’s decision to strike certain portions of the lease and to insert language protecting his own interests. Defendant points out that plaintiff did not revise or delete certain portions of the lease reserving the lessor’s right to make any alterations or additions to the building. Nor did he strike or amend paragraph 23(A), which provided for a payment of additional rental fees based upon the increase in real estate taxes paid by the lessor. Defendant’s principal assertion is that the terms of the lease were unambiguous and thus there was no need for the trial court to rely on extrinsic and parole evidence in construing the lease.

Defendant argues that the unambiguous lease provisions setting out Design Studio’s obligation to pay real estate taxes could not become retroactively ambiguous by reason of the improvements to the building by Helene Curtis between 1982 and 1984. Defendant maintains that the lease clearly foresaw a sale of the building and major remodeling or improvements by a new owner. Furthermore, defendant points out that Design Studio exercised an option to extend the lease in June 1984 at a time when the improvements to the building were near completion and Design Studio had knowledge of them. Defendant maintains that if the parties to the lease had intended to limit Design Studio’s tax payment obligations to the condition of the building as it existed at the time the lease was made, the lease would have so stated.

Defendant relies on Bradley v. S.S. Kresge Co. (7th Cir. 1954), 214 F.2d 692. In Bradley, the passage of the Butler Law in Illinois caused an unusual real estate tax increase. The court held the tenant liable for the increased real estate taxes on the basis that the provision in the lease for the payment of real estate taxes was not ambiguous and therefore the lease had to be construed from the language used in the instrument itself. Bradley, 214 F.2d at 694-95.

The rules for construing a lease are the same as those for construing a contract. (Book Production Industries, Inc. v. Blue Star Auto Stores, Inc. (1961), 33 Ill. App. 2d 22, 178 N.E.2d 881.) Where the language used in a lease is definite and precise, the instrument speaks for itself and there is no need for interpretation. (Book Production Industries, 33 Ill. App. 2d at 30-31.) Where there is any doubt or uncertainty as to the language used in a lease, it should be construed most strongly against the lessor. (American National Bank & Trust Co. v. Lembessis (1969), 116 Ill. App. 2d 5, 11, 253 N.E.2d 126.) However, a trial court may look to extrinsic evidence provisionally to determine whether the contract does contain an ambiguity. (Baird & Warner, Inc. v. Ruud (1976), 45 Ill. App. 3d 223, 229, 359 N.E.2d 745.) If the court thereafter determines that no ambiguity exists, extrinsic evidence is not admissible, but if the court determines that there is ambiguity, then extrinsic evidence may be used to show the intent of the parties. Sunstream Jet Express, Inc. v. International Air Service Co. (7th Cir. 1984), 734 F.2d 1258,1268.

The trial court reviewed the lease which, even after the renovations, refers to the Exhibitors Building, the tenant’s space as 331-35 North Wells Street and an occupancy factor based on the fraction of the number of square feet of rental space to the total rental space in the building. In light of the fact that the evidence showed that the Exhibitors Building no longer exists, the tenant’s space is not at the above address and there is no longer total rental space in the building, the trial court found that the lease was ambiguous.

Defendant’s reliance on Bradley v. S.S. Kresge Co. (7th Cir. 1954), 214 F.2d 692, is unwarranted. In Bradley, the court held that increases in real estate taxes resulting from a new tax law could be levied against the tenant under a tax escalation clause. There had been no change in circumstances which might have made the terms of the lease ambiguous. There was simply an increase in the tax rates caused by unilateral government action, precisely the circumstances a tax escalation clause is intended to cover.

The circumstances here are more analagous to those in Gold Medal Stamp Co. v. Carver (1971), 359 Mass. 681, 270 N.E.2d 834. The lessee in Gold Medal Stamp had agreed that “[i]n addition to the rent as hereinafter provided, the lessee agrees to pay to the lessor *** 35% of any increase in real estate taxes above the taxes for the year 1962.” (Emphasis added.) (359 Mass. at 682, 270 N.E.2d at 835.) After the lease was entered into, but before the tenant exercised his option to renew, the landlord spent approximately $247,954.94 to renovate the property. Based on the changes in the factual circumstances, the trial court found the lease ambiguous and refused to be bound by the landlord’s claim that the lessee was obligated to pay the cost of the tax increases irrespective of the cause. (Gold Medal Stamp, 359 Mass. at 684, 270 N.E.2d at 836.) The appellate court affirmed, concluding that the renovation by the landlord constituted an extraordinary improvement that was not within the contemplation of the parties at the time the lease was entered into, and therefore the tax escalation clause should be interpreted based upon the condition of the property when the lease was originally executed. (Gold Medal Stamp, 359 Mass. at 684, 270 N.E.2d at 836.) Helene Curtis appears to concede to some extent that the changes it made in the property required that the original lease language be construed in light of those changes. This is reflected in defendant’s decision to reduce the 1984 tax bill to reflect the fact that the 5% occupancy factor was no longer applicable in the Helene Curtis Building. This action on the part of Helene Curtis in conjunction with the language in the lease that allows the landlord to make improvements at its own expense, raises a sufficient ambiguity to support the trial court’s decision to consider the intention of the parties.

Having found the lease provisions to be ambiguous, the trial court admitted evidence as to the intention of the parties in order to explain the terms of the lease. Defendant now contends that the trial court abused its discretion in making findings 4, 7, 9, 12, 13, 14, 15, 16,17 and 18 in its February 24, 1987, order.

Finding 4 stated: “That the Lease and Rider provided that Design Studio pay a portion of increased real estate taxes on the property as improved with the Exhibitors Building ***.” Defendant contends that this finding is not supported by any competent evidence and that it is contrary to paragraph 23(A) of the lease, which provides:

“Lessee agrees to pay as additional rental hereunder for each calendar year succeeding 1978, the ‘base year’ during the remainder of the term, *** a proportion of any increase in the real estate taxes paid by Lessor during the ‘base year’ ***.”

Defendant contends that Design Studio knew that under paragraphs 4 and 12 of the lease, Helene Curtis had the right to change the name and address of the building and to make any changes in the building, including changes to the premises leased to Design Studio, and therefore finding 4 is inconsistent with the language and intent of the lease.

Although paragraphs 23(A) and 24(A) of the lease provided that Design Studio pay a portion of the increase in real estate taxes over the “base year” of 1975, the portion was clearly specified as 5%, which was Design Studio’s proportion of rental space to the total rental space in the Exhibitors Building. The record indicates that neither party to the original lease intended the tax escalation clause to apply to an essentially new building. Howard Galler testified that it was his understanding that the tax escalation clause was to apply to normal real estate tax increases as they ensued and as the building stood in 1978. Mr. Comroe, the landlord who initially executed the lease, testified that he intended the tax escalation clause only as a guard against inflation. The testimony of Galler and Comroe was consistent and supports the trial court’s finding that the parties to the lease intended that any increased real estate taxes would be based on the property as improved with the Exhibitors Building.

Finding 7 stated: “That in 1983 and 1984, Helene Curtis spent approximately $20,000,000 to gut the Exhibitors Building and to construct extraordinary capital improvements which amount to a new building.” Defendant contends that the improvements made between 1982 and 1984 were not extraordinary, were not unforeseen by Design Studio and did not result in a new building. Defendant points out that on June 1, 1984, Design Studio exercised an option to extend its lease at a time when the Helene Curtis improvements were essentially completed and it must have been obvious to Design Studio that it would incur real estate tax increases due to these improvements. Further, defendant contends that the $20 million did not represent the expenditures for capital improvements and did not increase the tax valuation by that amount.

In response, Design Studio points out that Helene Curtis stipulated that $20 million was spent in making capital improvements. Thus the finding, which did not hold that the improvements were worth $20 million, is not inconsistent with the stipulation. Design Studio also notes that the original building on the property was a nine-story stone building at 331-335 North Wells housing more than 30 tenants. That building was completely gutted and replaced by an 11-story building of stone and glass. We therefore conclude that there was sufficient evidence to support the court’s finding that the changes to the Exhibitors Building were extraordinary and in effect constituted a new building.

Defendant also contends that finding 9 is contrary to the manifest weight of the evidence. Finding 9 states: “That the aforesaid capital improvements were for the benefit of Helene Curtis and its affiliates *** and not for the benefit of Design Studio.” Defendant maintains that while Helene Curtis benefitted, Design Studio benefit-ted as well. Defendant argues that plumbing and electrical work as well as certain exterior improvements were made which improve Design Studio’s premises. Defendant also notes that Design Studio’s liability for the payment of real estate taxes under paragraph 23(A) was not dependent on whether Design Studio benefitted from the real estate improvements.

Contrary to defendant’s assertions, we conclude that this finding is not against the manifest weight of the evidence. The evidence that was introduced at trial supported Design Studio’s contention that it had no use of the improved facilities and that it benefitted only marginally from the improvements to the building.

Defendant also contends that finding 12 is contrary to the manifest weight of the evidence. Finding 12 states: “That the extraordinary increase in the 1984 real estate taxes was due to the extraordinary capital improvements which resulted in the Helene Curtis Building.” Defendant contends that there was no evidence in the record that the 1984 tax increase was an extraordinary real estate tax increase nor was there any evidence that an extraordinary tax increase resulted from the $20 million of capital improvements. Defendant maintains that the $20 million spent for renovating the building does not add $20 million of assessed valuation to the building. Defendant argues that the assessed valuation was the result of the building being in what it termed a “hot area,” rather than the result of the $20 million renovation.

The trial court did not find that the capital improvements were worth $20 million, as noted previously. Rather, it concluded that Helene Curtis made extraordinary capital improvements that resulted in an extraordinary increase in the 1984 tax assessment. The finding is not inconsistent with the expert testimony presented at trial that if the extraordinary capital improvements had not been made, the tax increase would probably have been between 15% to 20% based on the area that the building was in. Thus it was not unreasonable for the trial court to have determined that the amount of the increase above 15% was the result of Helene Curtis’ improvements.

Defendant also challenges finding 13. Finding 13 states:

“That the aforementioned capital improvements made by Helene Curtis were not contemplated by Design Studio or L.I.R. at the time of the execution of the Lease and Rider, and it was not the intention of the parties *** that the portion of real estate taxes to be paid by Design Studio would be based on an increase in real estate taxes resulting from such capital improvements. It was the intention of L.I.R. and Design Studio that Design Studio’s portion of real estate taxes be based on the property with the Exhibitor’s Building.”
Defendant maintains that this finding is inconsistent with the language in the lease which permitted improvements and remodeling. Defendant, however, presented no evidence to contradict this finding. To the contrary, there was sufficient evidence before the court indicating that neither Design Studio nor Daniel Comroe, the owner of the Exhibitors Building at the time the initial lease was signed, intended the tax escalation clause to apply under the circumstances at issue here. We believe that this finding was consistent with the evidence presented in the trial court.

Defendant also contends that finding number 14 is contrary to the manifest weight of the evidence and contrary to law. Finding 14 states:

“That equity and fairness therefore require that Design Studio’s payments for the 1984 real estate taxes, and for each year thereafter, until the end of the Lease, including any extensions or renewals of the Lease, should be based on the property with the Exhibitors Building or, in other words, the property as it was before the aforementioned capital improvements which resulted in the Helene Curtis Building.”

Defendant’s contention regarding this finding is that equity and fairness require that Design Studio should pay for the benefits it has received. Furthermore, defendant claims that the value of Design Studio’s leasehold interest has increased because of the improvements and that Design Studio should not be allowed to avoid paying its fair share of that increase. Defendant points out that finding 14 does not take into account higher real estate taxes due to increased land values in the area, nor does it require Design Studio to pay its fair share of any real estate tax that might arise due to improvements made by Design Studio to its own premises.

This finding is consistent with the trial court’s determination that the tax escalation clause of the lease was intended to be based upon the land as improved with the Exhibitors Building. In light of that determination, we conclude that this finding also is proper.

Defendant also challenges finding 15, which states:

“That if the *** capital improvements had not been made, the real estate taxes on the property with the Exhibitors Building would have increased by approximately 15% for 1984 real estate taxes due to the quadrennial reassessment. *** If the construction had not taken place, the real estate taxes for 1984 would therefore have increased by approximately 15% over the 1982 real estate taxes. Using this 15% factor, the real estate taxes for 1984 on the property with the Exhibitors Building would have been $140,922.55.”

Defendant challenges the 15% figure used by the court, pointing out that the testimony of Maurice Connors, the director of deputy assessor in charge of assessments and evaluations was that the overall increase would probably be between 15% and 20%. Defendant contends that the trial court arbitrarily used the lowest possible increase, rather than market value or comparable building prices, which Connors had testified were significant aspects of determining value.

It was within the discretion of the trial court to use the 15% rather than the 20% figure to determine what the tax increase for the Exhibitors Building would have been following the quadrennial reassessment. On appeal, the issue is whether the finding reached by the trial court was reasonable in light of the facts presented, not whether the court could have reached other conclusions. Since evidence was presented that the tax increase could have been 15% had Helene Curtis not made the improvements to the building, there is no basis for setting the finding aside despite the testimony by Connors that the increase could have been as high as 20%.

Finding 16 states:

“That the 1984 real estate taxes on the property with the Helene Curtis Building were $488,309.82. The ratio between the taxes on the property with the Exhibitors Building as determined in paragraph 15 to taxes on the property with the Helene Curtis Building is 28.86%.”

Defendant contends that this finding should be set aside as the result was arrived at by using the 15% tax increase estimate. Defendant also contends that finding 16 is based upon the clearly erroneous finding that the lease limited Design Studio’s obligation to pay a portion of the real estate tax increase to the condition of the building as it existed at the time the February 16, 1979, lease with L.I.R. Associates was made.

It was undisputed that the 1984 real estate taxes on the property with the Helene Curtis Building were $488,309.82. Having determined that finding 15 was proper, we decline to set aside finding 16 as it simply states the mathematical ratio between taxes on the Exhibitors Building and on the building as it now exists.

Defendant also objects to findings 17 and 18, restating previous arguments as to the interpretation of the lease and the appropriateness of using the 15% tax increase figure testified to by Mr. Connors. For the reasons stated above, findings 17 and 18 will not be set aside.

Defendant’s final argument is that the trial court abused its discretion in entering a temporary restraining order, restraining Helene Curtis from interfering with Design Studio’s possession of the premises. Defendant urges that the temporary restraining order should not have been entered because Design Studio had a full, complete and adequate remedy in a forcible detainer action at law. See Kanter & Eisenberg v. Madison Associates (1986), 144 Ill. App. 3d 588, 592-93, 494 N.E.2d 493, aff’d (1986), 116 Ill. 2d 506.

The entry of the temporary restraining order was never appealed by Helene Curtis and the propriety of the order is raised for the first time here. While a temporary restraining order is appealable under Supreme Court Rule 307(a)(1) (107 Ill. 2d R. 307(a)(1); Bohn Aluminum & Brass Co. v. Barker (1973), 55 Ill. 2d 177, 178, 303 N.E.2d 1), an appeal must be filed with 30 days of the entry of the order sought to be reviewed or the right to challenge the ruling will be lost. (Baird & Warner, Inc. v. Gary-Wheaton Bank (1984), 122 Ill. App. 3d 136, 138-39, 460 N.E.2d 840.) As defendant did not file a timely appeal in the trial court, the issue is waived here.

For the reasons set forth above, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

MANNING, P.J., and CAMPBELL, J., concur.