author: PRESIDING JUSTICE EGAN

text:
    BENNETT AND KAHNWEILER, INC., Plaintiff-Appellant, v. AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, as Trustee, et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—91—3260
    Opinion filed August 28, 1992.
    Modified on denial of rehearing October 23, 1992.

      Warren Lupel and Barry A. Erlich, both of Katz, Randall & Weinberg, of Chicago, for appellant.
    Frederic S. Lane and Jonathan B. Piper, both of Sonnenschein, Nath & Rosenthal, of Chicago, for appellees.
   PRESIDING JUSTICE EGAN

delivered the opinion of the court:

The plaintiff, Bennett & Kahnweiler, Inc., brought this action against the defendants, seeking a judgment for a commission allegedly earned pursuant to a contract for the lease of commercial property owned by the defendants. Following a bench trial, the judge entered judgment in favor of the defendants based upon his finding that because the lease agreement had not been fully executed, the plaintiff was not entitled to the commission provided for in the contract. The judge also found that the judgment in favor of the defendants was supported by the fact that the plaintiff’s damages were mitigated by the collection of a commission under a subsequent lease transaction on behalf of its client. The plaintiff has appealed, contending that the court erred in entering judgment in favor of the defendants and in making its determination as to the mitigation of the plaintiff’s damages.

In December 1985, the law firm of Schwartz Cooper Kolb & Gaynor, Chartered (Schwartz Cooper), retained the plaintiff, Bennett & Kahnweiler, Inc., as its broker to obtain office space for the law firm in a building in Chicago.

The defendants were trustees of two land trusts which held legal title to an office building located at 33 West Monroe Street in Chicago. The beneficiary of these two land trusts (the property owner) was 33 West Monroe Associates, an Illinois limited partnership. The general partners of 33 West Monroe Associates were Draper & Kramer, Inc. (Draper & Kramer), Douglas Kramer, and Fred Ford. Douglas Kramer was president of Draper & Kramer, and Fred Ford was a senior vice-president. Draper & Kramer had between 8 and 10 corporate divisions and was in the real estate and mortgage banking business. In addition to serving as general partner of the property’s owner, Draper & Kramer served as property manager and leasing agent for the building.

In the fall of 1986, Draper & Kramer and the defendant began negotiating a lease for office space on the 22nd floor of the building at 33 West Monroe. Jerry K. Bloomstrand, a senior vice-president of Draper & Kramer, conducted the lease negotiations on behalf of the property owner. Richard Berger and Barbara Ellis acted on behalf of the plaintiff and as agents for Schwartz Cooper.

In a letter to Ellis dated September 22, 1986, Bloomstrand outlined the essential lease terms that were acceptable to the property owner. These terms included rental amount, lease term, area, rental adjustments, lease assumption, construction costs, rent abatement, expansion options, and assignment and subletting. This letter also stated that “[t]he enclosed counter-proposal has been reviewed and approved by ownership as evidenced by Mr. Collopy’s signature. These terms represent the final offer, which upon acceptance by your client, will be sent to counsel for the preparation of a lease.” The letter bore the signature of Eamonn Collopy and indicated that the document was “approved for ownership” by him. Although this letter included a signature line for Schwartz Cooper, the firm did not sign the document.

By letter dated October 6, 1986, Bloomstrand restated the basic terms which were acceptable to the property owner. In this letter, Bloomstrand agreed to an increase in the lease assumption cap, a change in the split of profits on any sublet, and made reference to a more recent tax bill with regard to rent adjustments. Thereafter, Draper & Kramer employed Patrick Moran, of Sonnenschein Carlin Nath & Rosenthal, as counsel. Moran was assisted by Valerie B. Jarrett, an associate at the Sonnenschein firm. Schwartz Cooper retained Neil T. Neumark of Greenberger Krause & Jacobs to act as counsel on its behalf.

In October 1986, Moran sent a first draft of the lease to Neumark, and several subsequent drafts were exchanged from October 1986 to February 1987. Several meetings and telephone conferences were conducted during the course of the lease negotiations.

On November 20, 1986, Bloomstrand sent a draft commission agreement to the plaintiff. On November 24, 1986, Bloomstrand sent Berger a revised broker’s agreement. This revised broker’s agreement provided that the defendants would pay the plaintiff a brokerage commission “if a mutually satisfactory lease [was] negotiated and fully executed.” This agreement was signed by Berger on December 5, 1986.

Several lease drafts were negotiated and exchanged in the latter part of January 1987. On February 4, 1987, the plaintiff received an unsolicited proposal from another company regarding a lease of space to Schwartz Cooper in another building. The plaintiff performed an economic analysis of this proposal and sent it to Schwartz Cooper on February 9, 1987. Upon review of the economic analysis prepared by the plaintiff, Schwartz Cooper rejected the alternate proposal.

In February 1987, the final draft of the lease was prepared. This draft included a paragraph (Provision 27F) which provided as follows:

“Submission of this Lease for examination shall not bind the Landlord in any manner, and no Lease or obligation of Landlord shall arise until this instrument is signed by both Landlord and Tenant and delivery is made to each.”

On February 23, 1987, counsel for the property owner sent four “execution copies” of the final lease draft to Neumark for execution by Schwartz Cooper. The cover letter which was sent with these documents requested that all four copies of the lease be signed and returned to Bloomstrand. In accordance with this request, Schwartz Cooper signed and returned all four copies of the lease agreement to Bloomstrand.

In late February 1987, an existing tenant in the building expressed interest in expanding into the office space on the 22nd floor. In a letter dated March 2, 1987, Draper & Kramer informed the plaintiff that another firm was competing for this office space. After considering the proposal made by the existing tenant, Douglas Kramer decided to lease the space to that firm rather than to Schwartz Cooper.

In a letter dated March 10, 1987, Moran advised Neumark that the property owner had decided not to rent the subject property to Schwartz Cooper and, accordingly, would not sign the lease that had been negotiated and previously executed by Schwartz Cooper.

On April 9, 1987, the plaintiff sent an invoice to Draper & Kramer in the amount of $184,793.92 for the brokerage commission under the lease agreement that had been negotiated for Schwartz Cooper. The plaintiff filed its complaint against the defendants on June 1, 1987. In November 1987, the plaintiff negotiated a lease for Schwartz Cooper at 20 South Clark Street in Chicago. Pursuant to that transaction, the plaintiff received a commission in the amount of $183,974.19.

On August 5, 1987, the defendants filed a motion to dismiss the complaint under section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615). The trial court granted the defendants’ motion and permitted the plaintiff leave to amend its complaint. On March 23, 1988, the plaintiff filed an amended complaint, and the defendants again filed a motion to dismiss under section 2 — 615, asserting that the amended complaint failed to state a cause of action because the defendants never signed the lease and because the commission agreement required that the lease be fully executed. The trial judge denied this motion, stating that the only issue in the case was whether or not the plaintiff had procured a ready, willing, and able tenant.

The defendants’ answer to the amended complaint denied that the plaintiff was entitled to a brokerage commission for the lease negotiated between the property owner and Schwartz Cooper. The answer asserted as affirmative defenses that (1) the defendants never executed the lease, and (2) the plaintiff had mitigated its damages by collecting a commission for acting as broker for Schwartz Cooper in a subsequent lease transaction. After discovery had been concluded, both parties moved for summary judgment. The trial court denied the cross-motions for summary judgment, and trial commenced on September 3, 1991.

At trial, the plaintiff called Richard Berger, who testified that he was one of the owners of the plaintiff corporation. Berger stated that in 1986 Schwartz Cooper retained the plaintiff as its broker to locate approximately 20,000 square feet of office space in Chicago. The plaintiff defined the goals and objectives of Schwartz Cooper and determined different types of buildings that might suit the needs of the firm.

Berger testified that the property owner initially offered Schwartz Cooper a lease for approximately 19,000 square feet on the 22nd floor of the building at 33 West Monroe for a term of 15 years and at a rental of $27.75 per square foot of gross rentable area, plus rental adjustments and assumption of Schwartz Cooper’s existing lease. Berger stated that Schwartz Cooper ultimately signed a lease for about 19,000 square feet on the 22nd floor of that building for a term of 15 years at the same rental cost of $27.75 per square foot of gross rentable area. Berger testified that the provisions for rental adjustments, construction costs, rent abatement, expansion options and assignment and subletting in both the offering letters and in the executed lease were the same. Both the offering letters and the lease provided for the defendants to assume Schwartz Cooper’s existing lease. The initial letter of September 22, 1986, included a cap of $750,000 on this liability. In the letter of October 6, 1986, Bloomstrand raised the cap to $780,000. Berger explained that the final lease agreement contained no cap on the liability for Schwartz Cooper’s existing lease because the actual liability was less than the proposed cap.

Berger testified further that the plaintiff assisted in the consummation of the lease negotiations. The negotiations terminated with the submission of four execution copies of the lease for Schwartz Cooper’s signature. Berger stated that Schwartz Cooper signed the execution copies of the lease agreement and forwarded them to Bloomstrand for signature by the property owner. Berger did not, however, receive copies of the lease with the property owner’s signature. After several weeks, Berger called Bloomstrand to follow up on the transaction. At that time, Bloomstrand advised Berger that the property owner did not intend to complete the lease transaction that had been negotiated. Berger then told Bloom-strand that he would call his client because Schwartz Cooper had planned to move into the building after they executed the lease document. Berger testified that Neumark then contacted Moran and that Neumark subsequently received a letter from Draper & Kramer stating that the property owner would not sign the lease.

The plaintiff’s next witness was Schwartz Cooper’s attorney, Neumark. Neumark, an experienced commercial real estate attorney, testified that he received the lease proposal covering only the basic economic terms of the lease and that it was customary for some of the terms contained in the proposal letter to be clarified or modified later. Neumark recalled Moran telling him during the lease negotiations that he checked with the property owner about certain proposals which were made to him. Neumark testified that he believed that Bloomstrand represented the owner. Neumark recognized that he could not bind Schwartz Cooper.

Neumark stated further that he discussed changes or proposed changes of the lease with Moran. Although Neumark negotiated the legal terminology in the lease with Moran, they did not negotiate the economic terms of the transaction. Neumark stated that he believed the final draft of the lease document accurately reflected the agreement of the parties.

Neumark testified that along with a letter dated February 23, 1987, he received from Jarrett four execution copies of the lease and four execution copies of an assignment and assumption agreement with instructions to have all four execution copies of both documents signed and returned to Bloomstrand. Neumark testified that the words “four execution copies of the lease” have a customary meaning in lease negotiations and that these documents were ready for signature by the parties. Neumark explained that the assignment and assumption agreement was the agreement whereby the tenant assigned its interest in its prior lease to the landlord. Neumark testified that, contrary to previous correspondence, the letter of February 23, 1987, contained no qualifying language and did not indicate that it was subject to the property owner’s approval.

Neumark stated that after he reviewed the final draft of the lease, he sent the copies to Schwartz Cooper and that Schwartz Cooper then signed the documents. Neumark stated that although he had previously received five or six drafts of the lease, this was the only time that he received four copies for execution. Neumark believed that when he received the four execution copies, all of the lease provisions had been agreed upon by the principals, and there were no other terms left to negotiate.

Neumark testified that he did not recall any further communication with Moran after Schwartz Cooper executed the lease documents, and he was not aware of any further contact between Schwartz Cooper and the property owner. Neumark stated further that he did not recall anyone ever telling him that there was some unacceptable item or term in the lease which precluded the property owner from signing the lease. On cross-examination, Neumark acknowledged that it was customary that a commission would not be paid to a tenant’s broker unless the lease was fully executed. He was not aware of “any circumstances under which a broker receives a commission where a lease isn’t signed by a landlord.”

The plaintiff’s third witness was Patrick Moran, the attorney for the property owner. Moran stated that the limited partnership that owned the subject building was controlled by its general partners for purposes of leasing transactions. Moran stated that Draper & Kramer acted as the managing agent and as the leasing agent for the building and that it was one of the three general partners. During Moran’s representation of the property’s owner, his principal contact was Bloomstrand.

Moran testified that he consulted with Bloomstrand before or after making a change in a lease draft, depending upon the importance of the matter and the substance of the change. As the negotiations with Schwartz Cooper progressed and the issues became more definite, he simultaneously sent copies of the lease drafts to Neumark and to Bloomstrand in order to keep the process moving. He did not send out any drafts which included new business or financial terms without having consulted with either Bloomstrand or another person at Draper & Kramer.

Moran began the lease-drafting process with a printed form lease. He then inserted the relevant terms that had been provided to him and sent a draft to Neumark for review. Telephone conferences and meetings were conducted to aid the conclusion of the lease negotiations and to enable the principals to agree on the language of the proposed lease. During the drafting process, Moran checked with Bloomstrand to clarify certain provisions in the proposed lease. Where there were questions on more significant issues, Bloomstrand said that he would get back to Moran with an answer after checking with someone else.

Moran was sure that he spoke with Bloomstrand before he sent the execution copies out and that Bloomstrand knew that the execution copies had been sent to Neumark. Moran testified that he did not learn that his client was discussing the same space with another possible tenant until about a week after he sent the execution copies to Neumark.

Finally, the plaintiff called Jerry Bloomstrand. He stated that he was responsible for marketing space at the subject building. Bloom-strand acknowledged that he marketed the building as being owner-occupied, and the only entity that occupied the building and had an ownership interest in it was Draper & Kramer. Bloomstrand also stated that he inserted Draper & Kramer in various documents prepared by him when he was actually referring to the owner of the building.

Bloomstrand stated that the lease negotiations ended and he did not recall any further communication after the execution copies were prepared and issued. Bloomstrand testified that he was not aware of any terms in the lease signed by Schwartz Cooper that were unsatisfactory to the property owner.

Douglas Kramer, president of Draper & Kramer, testified for the defendants. Kramer described the practice for leasing space in the building owned by the defendants. According to Kramer, leases for space at the subject building were signed by the land trustee as landlord. Leases were executed by the land trustee at the direction of one of three people at Draper & Kramer: Douglas Kramer, Fred Ford, or Ferd Kramer. Kramer stated that he was always aware of any negotiations for space in the subject building.

Kramer testified that a broker in the corporate services division negotiated lease terms with a potential tenant. After the lease was negotiated and executed by the tenant, if it was satisfactory in all respects, then Douglas Kramer signed off on it and authorized the land trustee to sign the lease. If Douglas Kramer was unavailable, then Fred Ford or Ferd Kramer could sign the letter of direction to the land trustee. The property owner insisted that the potential tenant sign the lease before the owner reviewed the document so that the owner knew that the terms were acceptable to the tenant.

According to Kramer, after the potential tenant signed the lease, the document was reviewed by Eamonn Collopy, the head of the corporate services division. Collopy performed an analysis of the lease terms, and if he approved the lease, he would recommend it to Kramer. If Kramer found the lease satisfactory, he would then instruct the land trustees to sign the lease as owner of the property. Kramer was the only person with the authority to accept or reject lease terms. The Draper & Kramer broker who was involved in lease negotiations had no such authority. The brokers for Draper & Kramer were instructed to treat Draper & Kramer and Douglas Kramer as “clients” when negotiating leases for the building.

• Kramer testified that the lease signed by Schwartz Cooper was never presented to him for his signature. Kramer acknowledged, however, that he was periodically advised of the progress of the negotiations with Schwartz Cooper. He knew that Bloomstrand was negotiating basic economic terms, and he reviewed all of the economic terms as they were discussed. He participated in the discussions of the business terms for every lease transaction at the building. He never compared the economic terms of the initial term sheet and the provisions in the lease signed by Schwartz Cooper to see if they were the same.

He personally decided to lease the subject space to an existing tenant in the building. The grounds for this decision included the fact that the property owner had a prior relationship with that tenant, the terms of this lease were economically more favorable, and this tenant had a mor favorable credit rating.

At the close of the evidence, the trial court entered judgment in favor of the defendants. In making his ruling, the trial judge stated that the plaintiff could have no greater rights than Schwartz Cooper, and nothing in the evidence indicated that the defendants were obligated to sign the lease.

The plaintiff contends that, as a matter of law, it was entitled to collect a commission based upon the lease agreement which had been negotiated between the property owner and Schwartz Cooper even though the agreement was not signed by the defendant. We disagree.

The rights and obligations of a real estate broker are determined by the terms of the brokerage contract or listing agreement. (See generally Tom Brinkoetter & Co. v. Cresthaven Country Club, Inc. (1983), 118 Ill. App. 3d 554, 454 N.E.2d 1182; Busch v. Eisin (1981), 96 Ill. App. 3d 909, 422 N.E.2d 135; Arthur Rubloff & Co. v. Drovers National Bank (1980), 80 Ill. App. 3d 867, 400 N.E.2d 614; Borrowdale v. Shepherd (1967), 94 Ill. App. 2d 1, 236 N.E.2d 436.) A court is required to construe the provisions of such a contract so as to give effect to the intention of the parties, and where the terms are unambiguous, the parties’ intent must be determined solely from the language of the instrument itself. (Continental Assurance Co. v. Commonwealth Edison Co. (1990), 194 Ill. App. 3d 1085, 1088, 551 N.E.2d 1054.) The parties’ intent must be determined from the instrument as a whole, and it is presumed that the parties inserted each provision deliberately and for a purpose. (Shelton v. Andres (1985), 106 Ill. 2d 153, 159, 478 N.E.2d 311; In re Marriage of Holderrieth (1989), 181 Ill. App. 3d 199, 202, 536 N.E.2d 946.) The terms and provisions of the instrument may not be construed in a manner which is contrary to or different from the plain and obvious meaning of the language used. In re Marriage of Holderrieth, 181 Ill. App. 3d at 202.

In the case before us, the plaintiff agrees that the contract is unambiguous: the brokerage agreement specifically stated that a commission would be paid to the plaintiff only “if a mutually satisfactory lease [was] negotiated and fully executed.” A contract is executed when nothing remains to be done by either of the parties. (12 Ill. L. & Prac. Contracts §2, at 241 nn. 22, 23 (1983), citing Fox v. Kitton (1858), 19 Ill. 518.) The lease would not be executed by the defendant until the lease was at least signed by the defendant. (See Stuart v. Dutton (1866), 39 Ill. 91.) The language of the agreement clearly established that the plaintiff was entitled to collect a commission only if the lease negotiations were consummated and the property owner actually leased the subject property to Schwartz Cooper. It is undisputed that the property owner never signed the final draft of the lease, and consequently, the lease was not “fully executed.” Thus, under the express terms of the brokerage agreement, the defendants were not obligated to pay the plaintiff a commission where the final draft of the lease was signed by Schwartz Cooper but was never reviewed or executed by the property owner. This court cannot remake the contract to give the plaintiff a better bargain than the plaintiff itself was satisfied to make; the terms of this unambiguous contract must be enforced. See Michigan Avenue National Bank v. Evans, Inc. (1988), 176 Ill. App. 3d 1047, 531 N.E.2d 872.

The cases cited by the plaintiff do not support its position. In Webster v. Hochberg (1969), 105 Ill. App. 2d 466, 245 N.E.2d 529, the owner of the property and the purchaser had in fact signed an agreement which was rescinded because of fraud on the part of the owner of the property. Similarly, in Goldstein v. Rosenberg (1947), 331 Ill. App. 374, 73 N.E.2d 171, the seller and purchaser had both signed a contract for the sale of the property. It is fair to assume that in both Webster and Goldstein, the purchaser would have been entitled to specific performance.

We do not understand the plaintiff’s citation of Chapman v. Illinois Midwest Joint Stock Land Bank (1939), 302 Ill. App. 282, 23 N.E.2d 744. That case supports the defendants’ position. In denying recovery to the broker, the court said the following:

“A real estate broker is entitled to his commissions when he has furnished a purchaser, with whom the principal enters into a valid contract [citation], and this is true though the actual transfer of the property is never made. [Citation.]

It is likewise true if one or both parties to the contract refuse to comply with the contract. [Citations.] But where there is no complete contract of sale unless the seller approves the offer, no commission- is required to be paid until such approval is shown [citation]. Under such circumstances the burden is on the plaintiff broker suing for commissions, to show that he actually brought about a consummation of a sale, or was prevented from doing so by the owner (Jackson v. Kohler [(1919)], 289 Ill. 444[, 124 N.E.2d 650]).” (Emphasis added.) (302 Ill. App. at 287.)

In Jackson v. Kohler, cited in Chapman, the broker did bring the purchaser and seller of property together, and they did enter into a contract for the sale of the property.

We hold that the plaintiff was not entitled to collect its commission where the property owner never executed the lease with Schwartz Cooper as required by the brokerage agreement. We affirm the judgment.

We need not address the plaintiff’s claim that the trial court erred in admitting evidence of mitigation of damages.

Judgment affirmed.

McNAMARA and RAKOWSKI, JJ., concur.

      Justice Rosemary LaPorta participated in oral argument before her death. Justice Thomas Rakowski was substituted on the panel. He has listened to the oral argument tape and has read the briefs.


source: Caselaw Access Project

author: JUSTICE HENRY LEWIS

license: Public Domain

text:
      In re MARRIAGE OF BETTY M. EIDSON, Petitioner-Appellee, and MAURICE A. EIDSON, Respondent-Appellant.
    Fifth District
    No. 5—90—0549
    Opinion filed October 15, 1992.

      Morris Lane Harvey, of Law Offices of Morris Lane Harvey, of Fair-field, for appellant.
    Donald G. Musick, of Mt. Vernon, for appellee.
   JUSTICE HENRY LEWIS

delivered the opinion of the court:

The respondent, Maurice A. Eidson, appeals the judgment of the circuit court dissolving the parties’ marriage; awarding the petitioner, Betty M. Eidson, maintenance for 58 months; dividing the marital property; and ordering respondent to pay 72% of the college expenses for the parties’ daughter, Tranae. The respondent does not question the dissolution of marriage; however, he contends that the court’s distribution of the marital property was inequitable, that the court erred in granting petitioner temporary maintenance for 58 months, and that the court erred in ordering the respondent to pay 72% of Tranae’s college expenses. For the reasons set forth below, we affirm in part and modify in part the circuit court’s decision.

The parties were married on October 17, 1970, and had one child, Tranae, bom October 2, 1972. Petitioner filed a petition for dissolution of marriage on October 3, 1988. The marriage was dissolved on June 26, 1989. Hearings on the remaining issues were held on February 5, February 7, and February 20, 1990. At the time of the aforementioned hearings to determine maintenance and allocate property, both of the parties were employed and in good health. The record discloses that the circuit court distributed the marital assets as follows:

Thus, Maurice was awarded 38% of the marital property, and Betty was awarded 62% of the marital property.

However, the marital debts were ordered to be paid as follows:

Therefore, Betty was ordered to pay a much more substantial portion of the marital debts than Maurice.

According to section 503(d) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1991, ch. 40, par. 503(d)), the division of marital property must be in “just proportions” after a consideration of all “relevant factors.” (In re Marriage of Drone (1991), 217 Ill. App. 3d 758, 765, 577 N.E.2d 926, 931.) The division of marital property in “just proportions,” however, does not mean that the property must be divided with mathematical equality. (Drone, 217 Ill. App. 3d at 765, 577 N.E.2d at 931.) An unequal division may be made where the court has properly applied the statute. (Drone, 217 Ill. App. 3d at 765, 577 N.E.2d at 931.) In fact, an approximate equality is equitable, especially in longer marriages. (In re Marriage of Cepek (1992), 230 Ill. App. 3d 1045, 1048, 596 N.E.2d 131, 134.) Section 503(d) of the Act (Ill. Rev. Stat. 1991, ch. 40, par. 503(d)) sets forth the factors to be considered by the trial court in determining the division of marital property. The relevant statutory factors to include in this case are as follows: the contribution of the parties to the marital property; the value of the property set apart for each spouse; the duration of the marriage; the relevant economic circumstances of the parties upon distribution of the property; the age, health, station, occupation, amount and sources of income, vocational skills, and employability of the parties; the custodial provisions for any children; whether apportionment is in lieu of or in addition to maintenance; and the reasonable opportunity of each spouse to acquire capital assets and income in the future. (Drone, 217 Ill. App. 3d at 765-66, 577 N.E.2d at 931; In re Marriage of Kristie (1987), 156 Ill. App. 3d 821, 824, 510 N.E.2d 14, 16.) Thus, the court has broad discretion under section 503(d) to make an equitable apportionment of marital property (In re Marriage of Zummo (1988), 167 Ill. App. 3d 566, 575, 521 N.E.2d 621, 626; In re Marriage of Phillips (1992), 229 Ill. App. 3d 809, 825, 594 N.E.2d 353, 363), and abuse of discretion occurs only when no reasonable man could take the view adopted by the trial court. (Kristie, 156 Ill. App. 3d at 824, 510 N.E.2d at 16.) “As we have stated countless times before, a trial court’s resolution of property division is fettered only by the range of reason. [Citation.] And we, sitting as a reviewing court, will not disturb the judgment unless an abuse of the court’s discretion is shown.” In re Marriage of Siddens (1992), 225 Ill. App. 3d 496, 500, 588 N.E.2d 321, 324.

The respondent relies upon In re Marriage of Sheber (1984), 121 Ill. App. 3d 328, 459 N.E.2d 1056, to support his argument that he is entitled to a percentage of the equity in the marital home. However, the respondent fails to recognize the distinction between the case at hand and the Sheber case. In Sheber, the only significant asset was the marital home; therefore, the court determined that it was appropriate to give the respondent a lien on the proceeds of the sale of the marital home. In the instant case, however, the parties’ most substantial assets were their retirement accounts, which were equally divided. Hence, the marital home is not the most significant asset in the instant case, and the respondent is not entitled to a portion of the equity in the marital home because he has failed to show how the trial court abused its discretion in the distribution of the marital property.

Furthermore, the respondent relies upon In re Marriage of Wade (1987), 158 Ill. App. 3d 255, 511 N.E.2d 156, to support his proposition that the marital home should be sold and the equity divided between the parties. However, the respondent fails to realize that the petitioner is not required to sell or diminish her assets in order to meet her needs.

Here, both parties were awarded everything equally with the exception of the marital home and various personal property. We find that the court’s distribution of marital property was in “just proportions.” The evidence revealed that the petitioner and the respondent were 54 years of age at the time the petition was filed. Both parties worked outside of the home during the marriage and contributed to the marital property. The marriage lasted for almost 19 years. Petitioner was awarded custody of Tranae, and although Tranae was 17 years old and would soon be going to college, she would stay at the marital residence with her mother when she came home from college. Further, the petitioner’s income was approximately $18,000 per year, while respondent’s annual income was approximately $44,000. Therefore, in this instance, we do not find that the court’s distribution of marital property was an abuse of discretion in light of the aforementioned factors and the fact that the respondent has significantly more earning power than petitioner and has sufficient resources to make the payments to petitioner as directed. One of the factors to be considered in the division of property is “the reasonable opportunity of each spouse for future acquisition of capital assets and income.” (Ill. Rev. Stat. 1991, ch. 40, par. 503(d)(10).) It is obvious that the respondent is in a much better position in this regard than the petitioner. See Cepek, 230 Ill. App. 3d at 1049, 596 N.E.2d at 134.

In the same vein, the respondent claims that the court erred when it awarded petitioner maintenance of $500 per month for 58 months. He claims that the division of property which was ordered by the court was adequate to meet the petitioner’s needs. In order for a court to grant maintenance, section 504(a) of the Act requires that the court find that the spouse seeking maintenance lacks sufficient property to provide for her reasonable needs, is unable to support herself through appropriate employment, or is otherwise without sufficient income. (Ill. Rev. Stat. 1991, ch. 40, pars. 504(a)(1) through (a)(3).) Moreover, maintenance is appropriate for a limited period of time where the spouse is employable at an income not overly disproportionate from the standard established during the marriage. Wade, 158 Ill. App. 3d at 269, 511 N.E.2d at 166.

Maintenance is to be ordered in such amounts and for such periods of time as the court deems just, after a consideration of all relevant factors, including:

“(1) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
(2) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(3) the standard of living established during the marriage;
(4) the duration of the marriage;
(5) the age and the physical and emotional condition of both parties;
(6) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance; and
(7) the tax consequences of the property division upon the respective economic circumstances of the parties.” (In re Marriage of Cheger (1991), 213 Ill. App. 3d 371, 378, 571 N.E.2d 1135, 1140.)

The propriety, amount and duration of a maintenance award are matters within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. (Cheger, 213 Ill. App. 3d at 378, 571 N.E.2d at 1140; Siddens, 225 Ill. App. 3d at 501, 588 N.E.2d at 325.) Abuse of discretion occurs where no reasonable man would take the view adopted by the trial court. (Cheger, 213 Ill. App. 3d at 378, 571 N.E.2d at 1140.) Furthermore, the burden is on the party seeking reversal of the maintenance award to show an abuse of discretion. In re Marriage of Dodge (1989), 184 Ill. App. 3d 495, 501, 540 N.E.2d 440, 444.

Respondent has not met that burden. The spouse need not be reduced to poverty before maintenance is appropriate. (In re Marriage of Martin (1992), 223 Ill. App. 3d 855, 860, 585 N.E.2d 1158, 1162.) While petitioner received approximately 60% of the marital estate, valued at $156,699.61, petitioner is not required to sell or diminish her assets in order to meet her needs. (In re Marriage of Gable (1990), 205 Ill. App. 3d 696, 699, 563 N.E.2d 1215, 1217, citing In re Marriage of Greenberg (1981), 102 Ill. App. 3d 938, 429 N.E.2d 1334; In re Marriage of Lloyd (1980), 81 Ill. App. 3d 311, 401 N.E.2d 328.) In fact, none of the assets awarded to the petitioner were income producing; therefore, the evidence at trial demonstrated the petitioner's inability to generate income which is sufficient to meet her needs. In determining the award of maintenance, it is the income producible by the property which is to be considered, rather than its value when the other spouse has sufficient income to meet his needs and make a contribution to hers. In re Marriage of Gentry (1989), 188 Ill. App. 3d 372, 377, 544 N.E.2d 435, 437.

The record established that the court did not abuse its discretion in awarding the petitioner maintenance of $500 per month for 58 months. The evidence revealed that the petitioner’s only source of income was her wages earned at a law office, a yearly gross income of about $18,000, while respondent’s yearly gross income was approximately $44,000. Thus, maintenance may be awarded even though the marital property of the spouse has not been consumed or where a spouse’s salary is insufficient to maintain the standard of living established during the marriage. (In re Marriage of Brenner (1981), 95 Ill. App. 3d 100, 102, 419 N.E.2d 400, 402.) Furthermore, petitioner was entitled to maintenance since there was a great disparity in the incomes of the parties, and petitioner was unable to support herself at a level consistent with the standard of living established during the marriage. Brenner, 95 Ill. App. 3d at 103, 419 N.E.2d at 402.

The petitioner signed an affidavit stating that her monthly expenses were $1,337, but her net monthly income was $1,119, which evidence demonstrated the petitioner’s inability to meet her reasonable needs. In contrast, the respondent’s net monthly income was about $2,910, and his current expenses were only $1,151 even though his anticipated expenses were $1,563. Clearly, the respondent’s income was more than adequate to meet his needs while meeting the needs of the petitioner. Furthermore, the petitioner and respondent will be nearing retirement age when the maintenance award ends, and the petitioner will have retirement monies available to her at that time to provide for her everyday needs. It should also be noted that the mortgage will be paid off at approximately the same time that the maintenance award ends. It is apparent that the court believed that the petitioner lacked sufficient property to provide for her reasonable needs and was unable to support herself through her employment as a secretary. On the other hand, respondent had more than adequate income to provide for the reasonable needs of both parties. The petitioner is not required to sell or diminish her assets to provide for her support when respondent has sufficient income to meet his needs as well as hers. Cheger, 213 Ill. App. 3d at 379-80, 571 N.E.2d at 1141; Dodge, 184 Ill. App. 3d at 501-02, 540 N.E.2d at 444.

Finally, the respondent asserts that the court erred in ordering him to pay 72% of Tranae’s college education costs and unreimbursed medical expenses. Respondent argues that the court failed to consider the financial resources of the parties.

Again, we are governed by the standard of review which is applicable to the court’s apportionment of the marital estate, whether the court abused its discretion so that no reasonable person could agree with the trial court. (In re Marriage of Olson (1992), 223 Ill. App. 3d 636, 653, 585 N.E.2d 1082, 1093.) When the court determines parental responsibility for coHege expenses, it should consider the financial resources of both parents and the child and the standard of living of the child absent divorce. (Olson, 223 Ill. App. 3d at 653, 585 N.E.2d at 1094.) The cost of education must also be considered. Olson, 223 Ill. App. 3d at 653, 585 N.E.2d at 1094.

The respondent claims that the court did not consider the financial resources of the parties. More specifically, the respondent claims that the court did not take into account that the respondent would be making a $500-per-month maintenance payment to the petitioner. The court apportioned Tranae’s coHege expenses as follows:

“The Respondent shall currently pay 72% of such reasonable college education expenses and the petitioner shall currently pay the remaining 28%; such percentages are computed as foHows:

Apparently, the court ordered that Tranae’s college education expenses be paid according to the parties’ respective incomes. However, the court failed to consider the $500-per-month maintenance payment to the petitioner from the respondent. If the court had considered the maintenance payment, the parties’ incomes would have been as follows:

Thus, Maurice’s college education expense payment should be 60% of the total college education expenses, or $2,410.09 divided by $4,029.13. Betty’s college education expense payment should be 40% of the total college education expenses, or $1,619.04 divided by $4,029.13. Further, we believe that the unreimbursed medical expenses should be apportioned in the same manner due to the aforementioned reasons because the court apportioned them in the same manner as the college education expenses.

Since the trial court failed to consider the $500 maintenance payment, we believe that the court abused its discretion. Therefore, we believe that this portion of the court’s decision should be modified to reflect the actual financial resources of the parties. Thus, Maurice is obligated to pay 60% of Tranae’s college education expenses and un-reimbursed medical expenses, and Betty is obligated to pay 40% of Tranae’s college education expenses and unreimbursed medical expenses. In all other respects, the judgment of the circuit court is affirmed.

For the reasons set forth above, we affirm in part and modify in part.

Affirmed as modified.

GOLDENHERSH, P.J., and HARRISON, J., concur.


author: JUSTICE RARICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GREGORY J. TURLEY, Defendant-Appellant.
    Fifth District
    No. 5—91—0338
    Opinion filed October 15, 1992.

      Daniel M. Kirwan and Robert S. Burke, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Jon C. Anderson, State’s Attorney, of Robinson (Norbert J. Goetten, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

On May 29, 1990, defendant, Gregory Turley, was charged in the circuit court of Crawford County with theft, kidnapping, and seven counts of aggravated criminal sexual assault. On May 30, 1990, the public defender was appointed to defend him. On June 15, 1990, the public defender withdrew as counsel. Fred Johnson was appointed to represent Turley but withdrew on June 20, 1990. On June 22, 1990, Mike Damold was appointed but withdrew three days later because of a conflict. Edward Kirkwood was then appointed to represent Turley.

On July 27, 1990, defendant sought a change of place of trial, but the motion was denied on August 3, 1990. On August 16, 1990, defendant sought a substitution of judge, and that motion was granted on August 29, 1990. Defendant also filed a motion to suppress statements on August 16, 1990, but the motion was withdrawn when it came up for hearing on September 14, 1990. At that hearing the parties were asked for their determination of where the case was within the speedy trial framework. The parties agreed that 45 days of delay were attributable to defendant.

On October 5, 1990, the defendant moved for discovery sanctions but withdrew the motion at the pretrial hearing on October 23, 1990. The State indicated that it needed an additional 30 days to prepare for trial. Defendant also indicated the need for more time, and the trial was continued to December 3, 1990, and a pretrial hearing was set for November 27, 1990. On November 27, 1990, defendant requested and was granted a continuance.

On December 24, 1990, Turley filed a pro se motion seeking either new counsel or a waiver of his right to counsel, and to have the charges dismissed based on the speedy trial statute. Attorney Kirk-wood sought to withdraw as counsel, and a hearing was held on February 15, 1991. The hearing was reset for February 22, 1991. Turley’s pro se motions were denied. Trial was held on March 11, 1991, and Turley was found guilty on all counts. The trial court vacated four of the seven convictions of aggravated criminal sexual assault and sentenced defendant to consecutive terms totaling 115 years’ imprisonment.

On appeal, Turley argues that he was denied his right to a speedy trial pursuant to section 103 — 5 of the Code of Criminal Procedure of 1963, which provides that every person in custody for an alleged offense must be brought to trial within 120 days of the date he was taken into custody, unless the delay is occasioned by the defendant. (Ill. Rev. Stat. 1991, ch. 38, par. 103 — 5(a).) Defendant maintains that he was in custody for 136 days, not counting delays attributable to him.

Initially, we note that defendant failed to include this issue in his post-trial motion. Our supreme court has held that to preserve an issue for appeal, defendant must make both a timely objection at trial and specifically raise the issue in a post-trial motion. Failure to do both results in a waiver of that issue on appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) Having failed to specifically raise this issue in his post-trial motion, it is waived.

Even if not waived, a review of the record demonstrates that defendant was not denied his right to a speedy trial.

Defendant was taken into custody on May 29, 1990. Absent any delays occasioned by defendant, the speedy trial term would have expired on September 27, 1990. Defendant concedes that the 29-day delay resulting from his August 16, 1990, motion for substitution of judge was properly attributable to him, and that his October 23 and November 27 motions for continuance delayed the expiration of the speedy trial term until February 22, 1991. He argues that the delay resulting from the withdrawal of his first three attorneys and his motion for a change of place of trial should not be attributed to him. He also argues that the trial court erred in ordering, sua sponte, on February 22, 1991, that the speedy trial term would toll until March 11, 1991.

Where delay occasioned by defendant occurs within 21 days of the statutory speedy trial limit, the trial court may, upon application of the State, continue the case for up to 21 days beyond the 120-day limit. (Ill. Rev. Stat. 1991, ch. 38, par. 103 — 5(f).) Defendant concedes that when he sought a continuance on October 23, 1990, less than 21 days remained of the speedy trial limit. He argues, however, that because the State did not seek to have the case continued, the trial court was without authority to do so. Reviewing the record, we find that, contrary to defendant’s assertion, the trial court did not toll the running of the speedy trial term pursuant to section 103 — 5(f), but rather ruled that the delay resulting from defendant’s November 27, 1990, motion to continue was attributable to defendant and that the length of the delay would run from the time of the filing of defendant’s motion until the case could be placed back on the jury setting, which was March 11, 1991.

Reviewing the record, we find that defendant was brought to trial within the statutory 120-day speedy trial limit. Defendant was taken into custody on May 29, 1990. On June 15, 1990, the public defender withdrew, and new counsel, Fred Johnson, was appointed that same day. Attorney Johnson subsequently withdrew on June 20, 1990, because of prior commitments. On June 22, 1990, Attorney Mike Darnold was appointed but withdrew on June 25, 1990, because of a conflict. Attorney Edward Kirkwood was appointed to represent defendant. No actual delay resulted from the appointments of attorneys Johnson and Kirkwood, and we find that any delay resulting from the substitution of attorney Darnold for attorney Johnson should not be attributed to the defendant as attorney Darnold withdrew on his own initiative and not at the request of the defendant. Between the date of defendant’s arrest and June 30, 1990, 32 days of the speedy trial term expired.

On July 27, 1990, defendant filed a motion for change of place of trial, which was argued and denied on August 3, 1990. Defendant argues that the delay resulting from this motion should not be charged to him because the motion was short and simple, no evidence was presented at the hearing on the motion, and no actual delay occurred. The State argues that it was required to prepare a response which included three affidavits. Delays resulting from motions for change of place of trial are properly charged to the defendant. (People v. Holliday (1983), 115 Ill. App. 3d 141, 450 N.E.2d 355, citing People v. Ortiz (1979), 70 Ill. App. 3d 684, 388 N.E.2d 891; People v. Ellis (1972), 4 Ill. App. 3d 585, 281 N.E.2d 405.) As of July 27, 1990, 59 days of the speedy trial term had expired.

On August 16, 1990, defendant filed a motion for substitution of judge. A new judge was assigned to the case, and it was set for the next available trial date which was September 14, 1990. This resulted in a 29-day delay which the defendant concedes is attributable to him. (People v. Grant (1977), 68 Ill. 2d 1, 368 N.E.2d 909, citing People v. Zuniga (1973), 53 Ill. 2d 550, 293 N.E.2d 595; People v. Grayson (1988), 165 Ill. App. 3d 1038, 520 N.E.2d 901.) As of August 16, 1990, 72 days of the speedy trial term had expired.

On October 9, 1990, defendant filed a motion to suppress evidence and a hearing on the motion was scheduled for October 23, 1990. The delay resulting from the motion is properly attributable to defendant. (People v. Donalson (1976), 64 Ill. 2d 536, 356 N.E.2d 776; People v. McCoy (1987), 155 Ill. App. 3d 725, 508 N.E.2d 739; People v. Boyd (1980), 88 Ill. App. 3d 825, 410 N.E.2d 931; People v. DeCarlis (1980), 88 Ill. App. 3d 634, 410 N.E.2d 677.) As of October 9, 1990, 97 days of the speedy trial term had expired. On October 23, 1990, defendant withdrew his motion and requested a continuance. The continuance was granted, and the trial was set for December 5, 1990. Twenty-three days of the speedy trial term still remained.

On November 27, 1990, defendant requested the trial court to order an examination to determine whether there was a bona fide doubt as to his fitness to stand trial, and he requested the case be continued until an expert could examine him and render an opinion. Defendant’s motions were granted. The case was rescheduled for February 22, 1991, at which time the trial court ruled that there was no bona fide doubt as to defendant’s fitness to stand trial. Defendant concedes that the delay from October 23, 1990, to February 22, 1991, was attributable to him. People v. Siglar (1971), 49 Ill. 2d 491, 274 N.E.2d 65; People v. Martin (1989), 185 Ill. App. 3d 547, 542 N.E.2d 27; People v. Bivins (1981), 97 Ill. App. 3d 386, 422 N.E.2d 1044 (delay resulting from defendant’s request for continuance); People v. Clark (1986), 148 Ill. App. 3d 669, 499 N.E.2d 701, citing People v. Sonntag (1984), 128 Ill. App. 3d 548, 470 N.E.2d 631 (delay resulting from petition for fitness examination attributable to defendant).

At the February 22, 1991, hearing, trial was set for March 11, 1991. The trial court ruled that the delay attributable to defendant resulting from his November 17, 1990, motion for a continuance would run until March 11, 1991. Defendant argues that the trial court erred in ruling that the delay from February 22, 1991, to March 11, 1991, was attributable to him. Assuming, arguendo, that the trial court did err in attributing that portion of the delay to defendant, as of February 22, 1991, 23 days of the speedy trial term remained. Only 17 days elapsed between February 22, 1991, and March 11, 1991. Any error was harmless as defendant was still brought to trial within the speedy trial term.

Defendant also maintains that he was denied his constitutional right to conduct his own defense and that the trial court did not properly admonish him pursuant to Supreme Court Rule 401 (134 Ill. 2d R. 401). Again, we find this issue to be waived because it was not included in a written post-trial motion. Again, we find that were we to consider the merits of defendant’s argument, we would reject it. Defendant filed a pro se motion to waive court-appointed counsel. Reviewing the transcript of the hearing on defendant’s motion, we find that defendant wished to proceed pro se only if the trial court declined to appoint a different attorney to represent him, and then only if certain conditions could be met, namely access to a typewriter, a law library and a telephone. During the hearing, the following exchange took place:

“THE COURT: The question that I initially have to determine is whether or not at this point in time, do you want to have a Court-appointed attorney, or whether you’re asking to represent yourself, what we call legally, pro se?
MR. TURLEY: I’m not an attorney at all. I say, I don’t know that much about the system, but I’ve come to realize that what’s going on, to my knowledge, it don’t seem like it’s being handled like it should be handled. *** If I have to do it myself, I guess I’ll have to do it myself. That’s the only way I can approach it. I don’t want to, no. I do need help ***.
THE COURT: Well, the Court — what I’m hearing you say is that you want to have Court-appointed counsel; is that correct?
MR. TURLEY: Yes, I do need that ***.
THE COURT: As a Defendant, you have a right to have Court-appointed counsel, and you have a right to have your own counsel, if you wish to have someone — if you wish to hire someone — to have a particular attorney. But, once the Court appoints an attorney, unless there are specific allegations which the Court finds render his representation to be incompetent, ineffective, the Court basically leaves you with that Court-appointed counsel.”

The court thereupon ruled that defendant’s counsel had not been ineffective and declined to dismiss defendant’s counsel and gave defendant the option to either continue with his present counsel or proceed pro se. Defendant responded that unless the conditions he requested were met, he could not effectively represent himself. Upon being informed that some of his conditions could not be met and that being incarcerated would drastically limit his ability to prepare his case, defendant stated:

“With these limitations, I don’t see how I could properly defend myself, so I’ll have to resort to Mr. Kirkwood’s help.”

The trial court again informed defendant that he had the right to represent himself, but defendant indicated that he could not represent himself if his conditions were not met. The trial court inquired as to whether defendant wished to proceed with his present counsel, and defendant responded that he did not have much of an alternative. The court then inquired of defense counsel if he was prepared to go forward on several pro se motions defendant had filed. When defense counsel indicated that he would need a week to prepare, defendant stated that he wanted to proceed pro se.

The court then stated:

“I’m offering you a Court-appointed attorney in this matter, and at this point you have a right to have an attorney. If you can’t afford one, I have appointed an attorney, but you do not have a right to dictate who that attorney is going to be, unless he does not effectively and competently represent you. I’m, unfortunately, in the position I make that decision as to whether he is or he isn’t. At this point, I have made the decision that he’s representing you effectively and competently, and that’s who’s being appointed to represent you. You certainly have a right to represent yourself. But, that’s why I’m going through all this, if you’re going to do so, under some very bad limitations. I’m trying to talk you out of it is what I’m trying to do.”

After explaining some of the difficulties he would encounter in presenting of witnesses and evidence and providing jury instructions, the trial court inquired whether defendant wished to proceed pro se:

“THE COURT: Knowing all that, do you want to proceed representing yourself in this matter?
MR. TURLEY: Well, my hands are tied, Your Honor. I’m going to have to — I have to have somebody. I have to have some help if I can’t do it myself, but it sure don’t seem right to me, but I guess it is. I guess that’s the way it goes.
THE COURT: I heard what you said, but I’m not sure I understand. What is it you’re saying?
MR. TURLEY: Yes, I’ll keep Mr. Kirkwood, because I don’t have any other choice, because I can’t — with the limitations I have, you’re correct, there’s no way I can adequately do it, without some instruction from you.
THE COURT: Well, the Court cannot instruct you or help you or assist you in any way. That’s why we have someone who is Court-appointed to do that. Do you understand that:
MR. TURLEY: Yes, I do, Your Honor.
THE COURT: So, at this point in time, do you want to represent yourself, or do you want Mr. Kirkwood to represent you?
MR. TURLEY: Well, I’ll have to-
THE COURT: Pardon?
MR. TURLEY: I’ll have to use Mr. Kirkwood.
THE COURT: You’re positive? I only say that because I just went through that a minute ago, and then when we started into it, you backed up on me.
MR. TURLEY: Your Honor, you’ve made it quite clear there’s no other way of getting around it, so—
THE COURT: Okay, so Mr. Kirkwood is going to represent you in this matter?
MR. TURLEY: Yes, he is.”

The record clearly demonstrates that defendant did not waive counsel, and therefore Rule 401 admonishments were not necessary. After being informed of the difficulty of self-representation and that his conditions for self-representation could not be met, defendant freely, albeit reluctantly, chose to proceed with appointed counsel. Although defendant would have preferred a different attorney, his right to counsel did not entitle him to appointed counsel of choice (People v. Lewis (1988), 165 Ill. App. 3d 97, 518 N.E.2d 741), and the special provisions he requested in order to represent himself were privileges not available to inmates. The trial court did not deny defendant the right to represent himself, it merely presented him with his available options and advised him of the ramifications of proceeding pro se. Having made his choice, defendant cannot now be heard to complain.

Defendant contends that he was denied effective assistance of counsel in that trial counsel failed to present a second motion for discharge prior to trial and failed to properly preserve the speedy trial issue for review. Having previously determined that defendant was brought to trial within the speedy trial term, we need not address this issue.

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

Affirmed.

GOLDENHERSH, P.J., and CHAPMAN, J., concur.


author: JUSTICE CHAPMAN

text:
    ROBERT BISHOP et al., Appellants, v. THE POLLUTION CONTROL BOARD et al., Appellees.
    Fifth District
    No. 5-91-0487
    Opinion filed October 16, 1992.
    Val C. Simhauser, of Simhauser Law Office, of Springfield, for petitioners.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Jerald S. Post, Assistant Attorney General, of Chicago, of counsel), for respondent Pollution Control Board.
    Phelps, Kasten, Verticchio & Ruyle, of Gillespie, for other respondents.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Robert and Arminda Bishop were granted site-location-suitability approval for a regional pollution-control facility by the Montgomery County Board of Supervisors (County). The Illinois Pollution Control Board reversed this decision. The Bishops appeal. We reverse.

The Bishops own property in Montgomery County which had been used for a sanitary landfill during the 1980’s. They planned to reopen a new facility at that location and were granted siting approval by the County. The new expanded facility was to operate on approximately 37 acres and would be considered a new regional pollution-control facility under section 3.32 of the Illinois Environmental Protection Act (Act) (Ill. Rev. Stat. 1991, ch. 111½, par. 1003.32). The facility would be located in rural Montgomery County and would serve Montgomery County and the surrounding area.

On appeal before the Illinois Pollution Control Board (Board) the petitioners argued that the county lacked jurisdiction to consider the Bishops’ application because the notice requirements of section 39.2(b) of the Act (Ill. Rev. Stat. 1991, ch. 111½, par. 1039.2(b)) had not been met. Under section 39.2(b):

“No later than 14 days prior to a request for location approval the applicant shall cause written notice of such request to be served either in person or by registered mail, return receipt requested, on the owners of all property within the subject area not solely owned by the applicant, and on the owner of all property within 250 feet in each direction of the lot line of the subject property, said owners being such persons or entities which appear from the authentic tax records of the County in which such facility is to be located ***.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 111½, par. 1039.2(b).)

The statute requires that applicants for location approval use the “authentic tax records” to determine the owners to whom notice shall be sent. The question confronted by the Board was, what are “authentic tax records”?

The Bishops insist that authentic tax records are those records that must be maintained by the county treasurer, which show the names and addresses of the recipients of the most recent real estate tax bills. Petitioners contend that the authentic tax records are those maintained by the county clerk. The petitioners argued that the notice requirements were not met because the Bishops notified those persons listed as taxpayers in the county treasurer’s tax collector’s book for the 1988 tax year tax obligation. The Illinois Pollution Control Board found that the notice requirements were not met and held that the county lacked jurisdiction to hear the Bishops’ application for landfill siting.

More than 14 days prior to the request for siting approval, the Bishops served notice of the application upon all adjacent property owners with the exception of Marvin and Shirley Savage. The Savages reside in rural Montgomery County and own property north of the proposed landfill. The Savages had purchased the property from Shirley Savage’s parents, Anthony and Anna Leitschuh, on February 28, 1989, and the deed was recorded the same day. It is undisputed that in May 1989, Anthony Leitschuh received notice via certified mail of the Bishops’ intent to file the application for landfill siting approval. Shirley Savage testified that her father, Anthony Leitschuh, advised her of the notice in August 1989, and that she and her husband attended the public hearing before the county board of supervisors.

During the hearing before the Illinois Pollution Control Board, several witnesses explained the tax cycle in Montgomery County.

Linda Bolton, a 16-year employee with the supervisor of assessments, testified that in Montgomery County the county clerk’s office also serves as the recorder of deeds. Once a month the county clerk’s office in its capacity as recorder of deeds sends the declarations of property transfer it receives to the supervisor of assessments’ office. Bolton testified that there are three cycles involved in the maintenance and processing of tax records in Montgomery County. Cycle one concerns the assessment of real estate by the supervisor of assessments. Cycle one begins with the county clerk sending the declarations of property transfer to the supervisor of assessments. The supervisor of assessments assists in valuation and compiles information which is logged into a computer system and manually entered in bound volumes. Cycle two, which concerns the county clerk’s office, involves the extension of taxes based on levies by the various units of government that levy property tax. Cycle three involves the county treasurer’s office, which actually generates and mails the tax bills and collects the taxes.

After the declarations of property transfer are received by the supervisor of assessments’ office, it prepares a property-transfer record card which indicates who the previous owner was and where the tax bills should be sent. Property-transfer record-card information is then used to update the tax records in the assessor’s computer system. Bolton testified that if a person wanted the most current information regarding the ownership of a parcel of property, she would advise him or her to first check with the county clerk’s office in its capacity as the recorder of deeds because that is where the recording of information is first available. For instance, with regard to the parcel at issue in this case, the county clerk’s office recorded the deed transferring the Leitschuh property to Marvin and Shirley Savage on February 28, 1989. Information regarding the change in ownership was documented by the assessor’s office on a property-transfer record card on March 16, 1989, and was logged into the assessor’s computer system May 24, 1989. Thus, it was not until May 24, 1989, that the supervisor of assessments’ computer system showed Marvin Savage as the owner.

Linda Bolton also testified that the supervisor of assessments’ office is the only office with authority to make name and address changes as to the tax records on file with the treasurer’s office and the county clerk’s office. Bolton testified that each fall the assessor’s office closes its books, marking the end of cycle one. Once cycle one is complete, cycle two begins in the county clerk’s office. Not until cycle one is complete can the supervisor of assessments make changes to the names and addresses on file with the county clerk’s office. Bolton explained that all of the changes made with the county clerk’s office during cycle two will be transferred to the treasurer’s office with cycle three. Not until cycle two is complete can the supervisor of assessments make changes to the names and addresses on file with the treasurer’s office.

Bolton testified that she completed a property-transfer record card in the supervisor of assessments’ office for the Leitschuh/Savage property on March 16, 1989. That card was admitted into evidence. It indicates that it is a “Property Transfer Record” and that the property in the name of “Anthony Leitschuh” is changed to “Marvin Savage” for the tax year 1989 payable in 1990. The property-transfer record card is a document which is kept in the supervisor of assessments’ office because the supervisor of assessments is responsible for keeping current the names and addresses of the person responsible for paying the tax bills. Bolton testified that the supervisor of assessments’ office is the only office that has the opportunity to also enter the computer systems of the treasurer’s office and the county clerk’s office to update the names and addresses of taxpayers.

The Montgomery County clerk and recorder of deeds, Clinton Kimbro, testified that in his capacity as recorder of deeds he maintains a tract index which shows the ownership of property within a given geographic area. Grantors and grantees are recorded in the tract index, which refers to the deeds themselves where more detailed information as to property owners and their addresses can be obtained.

Montgomery County treasurer, Ron Jenkins, testified that his office maintains collector’s books, which are a listing of every taxpayer in the county who owns a parcel of property. They include a record of the tax bill that is generated and mailed by the treasurer’s office. The collector’s books are the source the treasurer’s office uses if a person wants to know the recipient of a tax bill. Jenkins testified that the collector’s books for the 1988 taxes billed and payable in 1989 show that the tax bill on the parcel at bar was sent to Anthony Leitschuh. The collector’s books showing taxes for 1989 payable in 1990 were not available in the treasurer’s office on May 7, 1990, as they were not yet compiled. Thus, the taxpayer for the parcel at issue indicated in the collector’s books on May 7, 1990, was Anthony Leitschuh. Jenkins explained that if there was a change in the taxpayer’s name and address after the collector’s books for 1988 taxes payable in 1989 were made, the treasurer’s office would have to check with the supervisor of assessments to ascertain the change. Therefore, on May 7, 1990, the treasurer’s office would not know whether Anthony Leits-chuh was the current taxpayer designated to receive the tax bill for taxes payable in 1990 without checking with the supervisor of assessments.

Jenkins testified that the supervisor of assessments provides his office with information regarding name and address changes. When a name and address change is necessary, either the supervisor of assessments sends the treasurer a certificate of error and the treasurer makes the name and address change himself, or Linda Bolton from the supervisor of assessments’ office comes to the treasurer’s office and makes the changes.

Petitioners argue, and it is apparent from the testimony given at the hearing before the Illinois Pollution Control Board, that on May 7, 1990, the supervisor of assessments’ records showed Marvin and Shirley Savage as landowners of the property at issue, while the county treasurer’s collector’s books for the 1988 tax year payable in 1989 showed Leitschuh as the landowner that day. On May 7, 1990, had the Bishops inquired of either the supervisor of assessments’ office or the county clerk’s office, current information as to the landowners and the designated taxpayer for taxes payable in 1990 could have been obtained. Petitioners contend that while the notice requirements of section 39.2(b) were not intended to burden siting applicants with completing a title search to identify the true owners of adjacent property, it was not the intent of the legislature to limit an applicant’s search to a prior year’s tax collector’s books without making any inquiry of personnel of the offices involved in maintaining the authentic tax records. Petitioners argue that mere inquiry with personnel at the treasurer’s office may have caused the applicant to seek further information from the supervisor of assessments or the county clerk concerning the name of property owners.

The Bishops claim that they checked with the county treasurer’s office on May 7, 1990, to determine the names and addresses of the landowners for purposes of meeting the notice requirements of section 39.2(b). Attached to the Bishops’ application for siting approval is a list entitled “Property Owners Adjacent to Robert Bishop Property.” Mr. Leitsehuh is included on that list; the Savages are not. Petitioners point out that no evidence was presented to verify that the Bishops made inquiry of the treasurer’s office in order to obtain the list of landowners on May 7, 1990. In fact, Treasurer Jenkins testified that neither he nor anyone from his office prepared the list presented by the Bishops. This point supports the petitioners’ theory that the Bishops made no inquiry of the personnel at the treasurer’s office. We note, however, that the list of property owners presented by the Bishops lists the same information regarding landowners as Treasurer Jenkins testified would have been available on that date had personal inquiry of the treasurer’s office been made.

Many of the cases interpreting the notice provision of section 39.2(b) concern the statutory requirement of the number of days in which notice must be given. For instance, Illinois Power Co. v. Pollution Control Board (1985), 137 Ill. App. 3d 449, 484 N.E.2d 898, concerned the interpretation of the notice requirements of section 40 of the Environmental Protection Act, which requires the Board to give 21 days’ notice to interested persons prior to a hearing on the permit. In that case the Illinois Power Company alleged that the decision of the Board was void because the Board failed to give the requisite statutory notice of its hearing regarding Illinois Power Company’s power plant permit. The Board argued that although it did not meet the technical notice requirements, since notice was given only five days prior to the hearing, Illinois Power suffered no prejudice by the failure to give notice. The court held that the statutory notice requirement of the Act was a jurisdictional point, and the Board’s decision was void because the statutory notice requirement was not met.

“[A]n administrative authority derives its power solely from the statute by which it was created [citation]. ***
The State agency and, in this instance, the Pollution Control Board cannot ignore the mandatory requirements of notice in an effort to evade the responsibility to complete a hearing within the required time ***.” 137 Ill. App. 3d at 452, 484 N.E.2d at 900.

Illinois Power was relied on in Kane County Defenders, Inc. v. Pollution Control Board (1985), 139 Ill. App. 3d 588, 487 N.E.2d 743. In Kane the Elgin Sanitary District served timely notice on the necessary property owners under section 39.2(b). However, it was not until one day before it filed a request for location approval that it caused written notice of the request to be published in the newspaper. This act contravened the statute which required newspaper publication no later than 14 days prior to a request for location approval. Furthermore, the notice in the newspaper stated that the site-approval request would be submitted to the county board “within 14 days,” rather than announcing the exact date it would be filed as required by the statute.

The Kane court, relying on Illinois Power Co. v. Pollution Control Board, stated that the notice requirements of section 39.2(b) are jurisdictional prerequisites which must be followed in order to vest the county board with the power to hear a landfill proposal. Because the Elgin Sanitary District failed to comply with the 14-day notice requirement and further failed to publish the date when the request for site approval would be submitted, the court found that the county board lacked jurisdiction and vacated the decision of the board.

The holding that the statutory notice requirements of section 39.2(b) are jurisdictional prerequisites which must be strictly followed was carried forth in Concerned Boone Citizens, Inc. v. M.I.G. Investments, Inc. (1986), 144 Ill. App. 3d 334, 494 N.E.2d 180, and in Browning-Ferris Industries of Illinois, Inc. v. Pollution Control Board (1987), 162 Ill. App. 3d 801, 516 N.E.2d 804. In Concerned Boone Citizens the court held that because M.I.G. Investments filed its application 13 days after it published notice of its application, M.I.G. Investments’ application was defective and the county board lacked jurisdiction to act on it. In Browning-Ferris the court affirmed the county’s denial of request for site approval of a landfill where the approval occurred 13 days after published notice of such request, instead of 14 days as required by statute.

Petitioners cite Illinois Power, Kane, Concerned Boone Citizens, and Browning-Ferris as authority for the proposition that the notice requirements of section 39.2(b) are jurisdictional prerequisites which must be followed. In this case, however, the determination of whether the statutory prerequisites were met is not as clear as it is in cases involving the number of days in notice requirements. The issue here is what are or may be “authentic tax records.”

Petitioners cite DiMaggio v. Solid Waste Agency of Northern Cook County (Jan. 11, 1990), PCB No. 89 — 138, as authority for holding that the “authentic tax records” are those records held by the county clerk. DiMaggio is an opinion of the Illinois Pollution Control Board which concerned an interpretation of the notice requirements of section 39.2(b). The Illinois Pollution Control Board pointed out that the county clerk’s office maintains the county records as required by statute. (See Ill. Rev. Stat. 1991, ch. 34, par. 3 — 2012.) In that case the clerk of Cook County testified that the county clerk’s office maintains the authentic tax records of the county. The Pollution Control Board held that while section 39.2(b) does not require searches of records from the treasurer’s and assessor’s offices, the authentic tax records are held by the county clerk. DiMaggio at __.

In the case at bar the county clerk did not testify that the county clerk’s office maintains the authentic tax records. In fact, Linda Bolton testified that the records from each of the three cycles involved in maintaining and processing Montgomery County’s tax records are included as part of the county’s authentic tax records. She further testified that to determine current ownership of property the most up-to-date information would be available in the county clerk’s office. We do not agree with the petitioners that DiMaggio is conclusive authority that the county clerk’s records are the “authentic tax records” for purposes of section 39.2(b). All three offices play a role in the collection and record-keeping functions of the taxing process. (See, for example, functions of the county clerk (Ill. Rev. Stat. 1991, ch. 120, pars. 513, 639), the assessor (Ill. Rev. Stat. 1991, ch. 120, pars. 483.01, 576a), and the treasurer (Ill. Rev. Stat. 1991, ch. 120, pars. 657, 671).) While on a given date the treasurer’s collector’s books may not be the most current records available in the tax cycle, they are authentic tax records.

In Daubs Landfill, Inc. v. Pollution Control Board (1988), 166 Ill. App. 3d 778, 520 N.E.2d 977, the sole question presented was whether a defect in the legal description of the proposed landfill location invalidated an otherwise accurate narrative description of the property in the notice which was mailed to adjoining landowners and published in the local newspaper. The court held that the narrative description provided adequate notice and did not divest the county board of jurisdiction because the statutory provision which required that the notice state “the location of the proposed site” did not specifically require a legal description. Just as the court in Daubs examined the language of the statute to determine whether the legal description given was sufficient to comply with the notice requirements of section 39.2(b), in this case we will examine the language of the statute to determine what “authentic tax records” are.

Section 39.2(b) does not define owners as those persons or entities appearing from the county clerk’s records. Nor does section 39.2(b) define owners as those available from the most up-to-date record of ownership. “Authentic tax records” is the term used in the statute. “Authentic” is defined as:

“Genuine; true; real; pure; reliable; trustworthy; having the character and authority of an original; duly vested with all necessary formalities and legally attested. Competent, credible, and reliable as evidence.” (Black’s Law Dictionary 121 (5th ed. 1979).)

Words used in a statute are to be given their plain and commonly understood meaning in the absence of an indication of legislative intent to the contrary. (In re Petition to Annex Certain Territory to the Village of North Barrington (1991), 144 Ill. 2d 353, 362, 579 N.E.2d 880, 884.) We cannot read section 39.2(b) as requiring more of the applicant than is statutorily mandated. Generally, as long as notice is in compliance with the statute and places those potentially interested persons on inquiry, it is sufficient to confer jurisdiction on the county board. (Wabash & Lawrence Counties Taxpayers & Water Drinkers Association v. Pollution Control Board (1990), 198 Ill. App. 3d 388, 555 N.E.2d 1081.) We find that the authentic tax records in this case included the records maintained by the treasurer’s office and that service on Anthony Leitschuh was proper.

In view of the foregoing, we reverse the decision of the Illinois Pollution Control Board.

Reversed.

WELCH and W.A. LEWIS, JJ., concur.