text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SAMMIE JOHNSON, Defendant-Appellant.
    First District (5th Division)
    No. 1—89—3361
    Opinion filed March 27, 1992.

      Michael J. Pelletier and Karen Daniel, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Michael Latz, and Lisa Ciardelli, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GORDON

delivered the opinion of the court:

Following a bench trial, defendant Sammie Johnson was convicted of first degree murder. The trial court sentenced defendant to 28 years’ imprisonment. On appeal, defendant contends that he was not proved guilty of first degree murder beyond a reasonable doubt and that the charge should be reduced to second degree murder; that the Illinois murder statute is unconstitutional; that the trial court erred in not appointing new counsel for defendant when he presented his pro se post-conviction motion alleging ineffective assistance of counsel; and that the sentence was improper.

George Nance, a sergeant with the Ford Heights, Illinois, police department testified for the State that on April 23, 1989, at about 4 p.m., he responded to a radio call regarding a shooting at 17th and Ellis Avenues in Ford Heights. Nance arrived at the scene and found the body of Leo Armstrong, who had been shot in the back of the head. Nance had seen Armstrong several days earlier, in connection with a police investigation, in the hospital emergency room being treated for an arm injury.

At the scene, Nance spoke with Terry Brooks. Nance then sought out defendant, whom he located the next day around noon. Defendant was arrested, and he gave a statement. Defendant stated that he was walking down the street when:

“Leo and Moon [Terry Brooks], drove up and Leo said, ‘Why you tell Freddie to ask me where Tim was at?’ I said, ‘Why you call me for Freddie?’ That I’m not in that stuff. He said, ‘I’ll beat your little punk tail.’ He jumped out of the car, started walking up on me. I kept walking back. Moon was driving back slowly with the car. So, I said, ‘Go on, Leo.’ He said, ‘I’ll beat your little ass.’ With his arm in his jacket. I kept backing back. He kept following me so I pulled out the gun. He said, ‘Shoot. Shoot.’ So, I shot and he kept coming. So, I shot two more times. Then he fell. I dropped the gun. And ran. When I was running I saw Dunsa, supposed to be his cousin, following me in Moon’s car so I just kept running and that’s it.”

Sergeant Nance asked defendant about any prior encounters between defendant and Armstrong. Defendant replied:

“We used to be friends. That was it. We just say hello, go on, leave. Never hung together. He had told me prior that he was going to beat me up in front of Freddie and Rodney Johnson. When he approached me, he had his hands in his jacket. I thought he was going to shoot me. When [sic] I shot him.”

Nance testified further that no weapon was recovered at the scene.

Terry Brooks testified for the State that on April 23, 1989, he was driving with the victim on 17th Avenue. No one else was in the car. As they approached Ellis Avenue, they saw defendant walking and “Leo told me to stop.” The victim, who remained in the car, asked defendant “why he was telling lies on him.” Defendant told the victim to “get the f— out of his face.” The victim then began to get out of the car, saying: “You think I’m handicapped because my arm is hurt? I’ll wipe your ass with one arm.” Brooks testified that the victim was referring to the fact that his collar bone was fractured or bruised and his right arm was strapped down to his stomach. The victim had on a sweat jacket with no shirt, with his left arm in the sleeve and the jacket draped over his right arm. Brooks did not see the victim with a weapon.

Brooks testified that he then heard defendant tell the victim to “go on.” Defendant “walked away and then he turned around,” about seven feet from the car. Defendant “pulled a long black gun out of his back, out of the back of his belt.” Defendant aimed the gun, and fired a shot. The victim started running away from defendant. Brooks heard defendant’s gun “click three times.” Then he heard two more gunshots, and he saw the victim fall. Defendant turned and ran. Brooks walked over to the victim, lying facedown on the ground, and saw “a hole in the back of his head.”

On cross-examination, defense counsel questioned Brooks about any drug dealings he had with Leo Armstrong:

“Q. As a matter of fact, you work for Leo, don’t you?
A. No.
Q. Don’t you sell drugs for Leo?
[PROSECUTOR]: Objection.
THE WITNESS: No, I don’t sell no drugs.
THE COURT: Sustained.
* * *
[DEFENSE COUNSEL]: How long had you been working for Leo?
[PROSECUTOR]: Objection, Judge.
THE WITNESS: I ain’t working for nobody.
THE COURT: Asked and answered.”

Paul W. Groah, an assistant State’s Attorney, testified for the State that on April 24,1989, he took this statement from defendant:

“On 4/23/89, I saw Leo Armstrong in a car with Moon [Brooks]. He got out of the car and kept coming on me. We were face to face the whole time. He kept walking up on me. I kept walking backwards. He had his right arm in his jacket. I reached into my back pants and pulled out a gun. I had purchased the gun earlier in the afternoon, because I wanted it for protection and I was scared. I pulled the trigger once, heard a shot, and Leo kept coming on me. I pulled the trigger at least two more times. I don’t know how many times, exactly. Leo was still coming toward me. I saw Leo fall. I dropped the gun and ran. When Leo got out of the car, I never saw him with a gun, a knife, a club, or any weapon.”

Defendant made three corrections to the written statement and signed the document.

The parties stipulated that if Dr. Shaku-Teas, a pathologist, were to testify, she would state that an autopsy of the victim revealed that the 26-year-old male weighed 216 pounds and measured lQxk inches tall. One gunshot wound entered behind the left ear and traversed at a diagonal until it lodged in the right forehead. The direction of the wound track was back to front, left to right.

Terry Brooks testified for the defense, also. He stated that there may have been other eyewitnesses. “Could have. I haven’t seen them.” A man named “Dunsa” was not with them, and Brooks denied telling Sergeant Nance that Dunsa was present.

Rhonda Clerk testified for defendant that on April 21, 1989, at about 10 p.m., she saw Armstrong and two men on the side of her house. Defendant then arrived. As defendant was walking to the front door, Armstrong asked where Tim was. Defendant replied: “I don’t know. You should know.” Armstrong then called defendant a “short bastard” and threatened to kill him. Armstrong was walking towards defendant. He had nothing in his hands. Defendant then went into Clerk’s house, stayed five minutes, and left by the back door. Clerk soon exited her house through the front door. Armstrong called her a “black bitch” and threatened to “smack” her. At that point, for the first time that evening, Clerk saw Armstrong holding a black gun in his hand. Clerk and her sister went to the police station to report the incident. When they returned to the house with the police, Armstrong was gone.

Alfred Lee Washington, who was subpoenaed, testified for defendant that on April 23, 1989, he saw Armstrong and Moon (Terry Brooks) in a car at 17th and Ellis Avenues. Armstrong exited from the car and walked over to defendant, arguing with him. Washington could not hear what the two men were saying; however, he could see that Armstrong “was steady walking [sic]” towards defendant. Defendant was “backing back.” Washington testified further: “And then I seen an object appeared to be a gun because Sammie fired one shot.” The first shot was fired into the air. At this point, Washington was kneeling down behind a bush, about 45 feet away. Washington heard a second shot fired. He looked up and saw defendant “running on that third shot.” Defendant was “running away from the scene.” After the third shot was fired, Armstrong fell to the ground. Between the second and third shots, Armstrong had not moved. Armstrong remained facing defendant at all times. Armstrong never tried to run away. Washington never saw a weapon in Armstrong’s hands, and never saw Armstrong raise his hand to strike defendant.

Sergeant Nance was also called to testify on behalf of defendant. Nance stated that Brooks had told him Armstrong, Brooks and “Dune” were present at the scene. Nance never spoke with “Dune,” although he knew him. Nance testified further that he spoke with Clerk several days before the shooting regarding an alleged assault on Clerk by Armstrong. Clerk told Nance that Armstrong had threatened her with a gun. Nance also testified that he was aware of Armstrong’s reputation in the community and that there had been a number of complaints made against him for threats of violence.

Defendant, who was 19 years old, testified that on April 23, 1989, he saw Armstrong with Moon (Terry Brooks) and Dune. Armstrong asked defendant “why did I go around lying on him.” Defendant replied: “Don’t bring that to me. I’m not in that stuff.” Armstrong said: “You think I’m playing with you. I’ll kick your little ass.” Defendant kept walking. Moon, who was driving, followed defendant slowly. Armstrong got out of the car and “began to walk towards me.” Moon and Dune exited the car, also. Armstrong said, “I’ll till your little ass.” Defendant was “scared and then at that time I pulled out a gun.”

Defendant testified further: “I told them to ‘Leave me alone. I’m not in that stuff.’ ” Armstrong replied, “Shoot, shoot.” Defendant fired over his head into the air, and then saw that Armstrong’s hand was in his coat. He did not remember if Armstrong’s arm was in the jacket sleeve. He could see something that looked like a belt around Armstrong’s waist. Armstrong “kept coming towards” defendant. Defendant tried to fire again into the air, but the gun did not discharge. “Then I looked at him. I [sic] looked as if he was trying to come out of his jacket with something.” Defendant “took it he had a gun, trying to come out with a gun.” Armstrong stood three or four feet from defendant. Defendant began to walk backwards. Defendant then “began to turn and run.” At that point, “I was just shooting backwards.” He was “running [and] I pointed the gun backwards and [was] shooting it,” but he was not looting backwards. After firing the gun several times, defendant looked back and saw Armstrong on the ground. Defendant dropped the gun and ran.

Defendant also testified that on April 21, 1989, he saw Armstrong with a gun during an “incident” between defendant and Armstrong. He did not report the incident to the police.

On cross-examination, defendant testified that he had bought the gun an hour before the shooting took place. He never checked to see whether or not it was loaded. Defendant testified on redirect that he was 5 feet 2 inches tall and weighed 135 pounds. Defendant was previously convicted of possession of a controlled substance with intent to deliver on January 12,1989, and was placed on probation.

The court found defendant guilty of first degree murder. The court noted that Brooks’ “observation^] as to the relative positions of the defendant, [and] victim is corroborated by the photograph evidence. *** That bullet entered on the left rear of the victim’s head above his ear.” The court pointed to photographs that evidenced the bullet lodged above the right eye. “That photographic [evidence] rebuts the defense’s theory that the victim kept coming, kept coming.” The court continued: “With respect to the issue of the defendant’s apprehension of this victim there may have been some of that. But not to the degree required by the statute for reduction of this charge to *** second degree murder.”

Opinion

Defendant first contends that the conviction for first degree murder should be reduced to second degree murder because he believed that the victim was going to inflict great bodily harm upon him.

Upon review, when faced with a challenge to the sufficiency of the evidence, the question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 453.) Whether a homicide is classified as first or second degree murder is a question for the trier of fact. (People v. Falconer (1988), 168 Ill. App. 3d 618, 522 N.E.2d 903.) The burden of proof is on defendant to provide the mitigating factor by a preponderance of the evidence. (Ill. Rev. Stat. 1989, ch. 38, par. 9— 2(c).) A person commits second degree murder if he kills an individual and at “the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing” as self-defense, but “his belief is unreasonable.” (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 2(aX2).) Defendant must believe that force was necessary to prevent imminent death or great bodily harm, even though that belief was unreasonable. People v. Peterson (1990), 202 Ill. App. 3d 33, 559 N.E.2d 762.

Defendant maintains that his belief that the use of deadly force was necessary is evidenced by the fact that on April 21, 1989, Armstrong threatened to kill defendant; that Armstrong approached defendant on the street on April 23, 1989, and again threatened to kill him; and that Armstrong’s right hand was hidden by his jacket.

The trial court, sitting as the trier of fact, could reasonably believe Brooks’ testimony that the victim began running away from defendant after the first shot was fired. The medical evidence strongly corroborated this testimony, as it showed that the bullet entered the back of the victim’s head, on the left side, and traveled to the front of the victim’s head, on the right side. Defendant’s version, that he ran from the victim, shooting blindly over his shoulder, was uncorroborated and was in fact inconsistent with his prior statements to the police.

The trial judge was not required to believe defendant’s testimony that he saw the victim with a gun two days prior to the shooting. The defense witness Clerk testified that the victim had nothing in his hand when he exchanged comments with defendant that day. It was not until after defendant left that Clerk saw Armstrong with a weapon.

Moreover, the defendant never reported the April 21 incident to the police. See People v. Williams (1989), 205 Ill. App. 3d 751, 563 N.E.2d 762 (defendant never reported prior incident where victim allegedly shot defendant, two weeks before defendant killed the victim).

Nor did the defendant specifically mention the April 21 incident in his statement to the police and the assistant State’s Attorney, when questioned about the instant occurrence. In reply to Nance’s question about prior encounters with the victim, defendant merely said that they “used to be friends” and that the victim had previously told defendant “that he was going to beat me up.”

The trier of fact could also rely on the fact that no weapons were found on Armstrong. (See People v. Williams, 205 Ill. App. 3d 751, 563 N.E.2d 762.) Defendant admits he never saw Armstrong with a weapon. There was no evidence of a physical fight, or more than the exchange of a few words. Although the victim was bigger than defendant, his verbal threats and physical size presented little threat to defendant once defendant pulled out his gun and immediately began firing.

The trial judge could also have relied on the fact that in his statements to the police and the assistant State’s Attorney, defendant said that he shot the victim when they were face to face. “I shot and he kept coming. So, I shot two more times. Then he fell.” Defendant also said: “We were face to face the whole time.” At trial, however, defendant altered the story and said that he ran from the victim, shooting blindly over his shoulder.

Concomitantly, the trial court was not required to believe the defense witness Washington, who testified that the victim never turned and ran from defendant. Washington was 45 feet away, hiding behind a bush, and admitted not seeing the second shot.

It is the function of the trier of fact to observe the demeanor of the witnesses and judge their credibility. (See People v. Williams, 205 Ill. App. 3d 751, 563 N.E.2d 762.) There is sufficient evidence in the record to support the trial court’s conclusion that defendant did not believe Armstrong was threatening him with imminent death or great bodily harm. Thus, we find that in viewing the evidence in the light most favorable to the State, the trial court could have found the essential elements of first degree murder beyond a reasonable doubt.

Defendant next contends that the Illinois murder statute (Ill. Rev. Stat. 1989, ch. 38, pars. 9 — 1, 9 — 2) unconstitutionally violates the due process, equal protection and separation of powers clauses. We have recently rejected these arguments numerous times, and we follow those holdings here. See, e.g., People v. Davis (1991), 221 Ill. App. 3d 1023, 583 N.E.2d 64 (and citations contained therein); People v. Smalley (1991), 249 Ill. App. 3d 964; People v. Newbern (1991), 219 Ill. App. 3d 333, 579 N.E.2d 583; People v. Wright (1991), 218 Ill. App. 3d 764, 573 N.E.2d 1090; People v. Thomas (1991), 216 Ill. App. 3d 469, 576 N.E.2d 1020; People v. Doss (1991), 214 Ill. App. 3d 1051, 574 N.E.2d 806; People v. Gore (1991), 212 Ill. App. 3d 984, 571 N.E.2d 1041.

Defendant next contends that the trial court erred in not appointing new counsel for him when he filed his pro se post-trial motion alleging ineffective assistance of trial counsel, and attaching a complaint which defendant had filed against his trial attorney with the Illinois Attorney Registration and Disciplinary Commission (ARDC). On appeal, defendant does not challenge the effectiveness of his trial counsel, and thus we do not address that issue. Nevertheless, defendant complains that because of the pending ARDC complaint, a per se conflict of interest existed, and thus defendant was deprived of his right to conflict-free counsel.

On November 14, 1989, defendant’s private counsel filed a motion for a new trial. On November 14, 1989, a hearing was held on that post-trial motion. Defendant appeared, tendering to the court a handwritten statement alleging ineffective assistance of counsel without specifying any particular claim. The handwritten statement requested that the “court appoint me a bar association lawyer or a murder taskforce lawyer to handle the further proceedings in my case in accordance with the 6th and 14th Amendment rights to the United States Constitution, Gideon v. Wainwright, cite as 83 Supreme Court 792.” Defendant also filed with the court an ARDC complaint form, filled out by defendant and dated November 9, 1989, listing the following grievances: failed “to file the proper pretrial motion”; failed “to investigated [sic] the facts of my case”; failed “to interview material witnesses”; failed “to subpoena material evidence of hospital records or any criminal history of victims or eyewitness[es] for the purpose of impeachment or the creditability [sic] of such witnesses”; failed “to challenge weaknesses in prosecution [sic] case”; failed “to present adequate defense”; requested “$2,300 to hire a private investigator”; “did not handle properly my case”; “did in fact show neglectfulness and unethical practices with my case before the tribunal in which he violate^] the canon code of ethics” (then quoting Canons 1 and 6, Rule 1— 102, and Rule 7 — 101(a)); and failed to have a “pre-trial consultation.” (Defendant contradicts this final allegation later in the complaint, stating that: “I was misled before trial in that he convincefd] me to wave [sic] my rights to a jury trial.” (Emphasis added).)

The trial court addressed defendant at the post-trial hearing: “Earlier today *** you tendered to me a handwritten statement and a copy of a complaint form directed to the [ARDC] *** in support of your handwritten statement asserting the issue of ineffective assistance of counsel.” The court commented on the pretrial and trial proceedings at length, including the fact that prior to trial the court had carefully admonished defendant regarding the nature of the charges, the possible penalties and the meaning of a jury waiver. The court stated that it had reviewed the ARDC complaint, and “all of my notes, which are rather copious,” of the trial. The court concluded that it did “not find any basis for the charge of ineffective assistance of counsel.”

Without questioning either defendant or defense counsel about the specifics of the ARDC complaint, the trial judge went on to address defense counsel. “Now, I have to move on to the next issue and that it [sic] the motion for [a] new trial that your attorney *** filed in this cause.” At that point, defense counsel made an amendment to the post-trial motion for a new trial. (The post-trial motion filed by counsel did not include an ineffective assistance of counsel argument.) Defense counsel then argued the post-trial motion orally at length. After hearing arguments from both attorneys, the court denied the motion for a new trial. The court then heard arguments relating to sentencing, in aggravation and mitigation, and imposed sentence on defendant.

In its brief filed with this court, the State relies on People v. Pecoraro (1991), 144 Ill. 2d 1, 578 N.E.2d 942, where the court held that the trial judge was not required to appoint other counsel to replace defendant’s private attorney at the post-trial hearing which addressed defendant’s pro se claim of ineffective assistance of counsel (failure to make certain trial objections; impeach State witnesses, and call certain other witnesses for the defense). After finding that defendant had not established ineffective assistance of counsel under Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, the court in Pecoraro went on to state:

“In further support of our position, nowhere in the record does it reflect that defendant requested other counsel to represent him. ***
* * *
*** [Defendant Pecoraro retained private counsel to represent him at trial and in post-trial motions. It was not within the trial court’s rubric of authority to advise or exercise any influence or control over the selection of counsel by defendant, who was able to, and did, choose counsel on his own accord. [Citation.] Moreover, the trial judge could not force defendant to retain counsel other than that chosen by defendant. [Citation.] Defendant and his counsel were the only parties who could have altered their attorney-client relationship. Defendant could have retained other counsel to represent him prior to the hearing of his post-trial motions.” Pecoraro, 144 Ill. 2d at 14-15.

But see People v. Pecoraro, 144 Ill. 2d at 21-23 (Clark, J., dissenting) (Justice Clark stated that in regard to an ineffective assistance claim, there is no difference between retained and appointed counsel. “It is as equally inappropriate for private counsel to argue his incompetence at a post-trial hearing as it is for an appointed public defender”). (Emphasis in original.)

We note that, unlike the facts in the present case, the defendant in Pecoraro did not file a disciplinary complaint against his lawyer. We further note that the defendant in Pecoraro did not request a continuance to obtain new counsel, and that defendant “did not request that he be represented by other counsel.” (Pecoraro, 144 Ill. 2d at 15.) Consequently, we do not believe Pecoraro stands for the proposition that a trial court is free to automatically deny a pro se request for new counsel simply because the defense counsel who was allegedly ineffective was privately retained.

In the evaluation of a claim of ineffective assistance of counsel, there is no distinction between court-appointed counsel and privately retained counsel. (McCoy v. Court of Appeals (1988), 486 U.S. 429, 438, 100 L. Ed. 2d 440, 453, 108 S. Ct. 1895, 1902 (“Every advocate has essentially the same professional responsibility whether he or she accepted a retainer from a paying client or an appointment from a court”); Cuyler v. Sullivan (1980), 446 U.S. 335, 344-45, 64 L. Ed. 2d 333, 344, 100 S. Ct. 1708, 1716 (“A proper respect for the Sixth Amendment disarms petitioner’s contention that defendants who retain their own lawyers are entitled to less protection than defendants for whom the State appoints counsel. *** [W]e see no basis for drawing a distinction between retained and appointed counsel that would deny equal justice to defendants who must choose their own lawyers”); United States ex rel. Cosey v. Wolff (7th Cir. 1982), 682 E2d 691; People v. Williams (1989), 182 Ill. App. 3d 598, 538 N.E.2d 564, aff’d (1990), 139 Ill. 2d 1, 563 N.E.2d 431.) Thus, we reject the State’s argument that under Pecoraro, simply because defendant retained private counsel he could not have new counsel appointed for him, even where defendant specifically requests such an appointment if a true conflict of interest were otherwise demonstrated.

Accordingly, defendant’s contention that the court should have appointed new counsel cannot be disregarded simply because his attorney was privately retained.

The sixth amendment right to effective assistance of counsel includes a right to conflict-free counsel. (Strickland v. Washington (1984), 466 U.S. 668, 688, 80 L. Ed. 2d 674, 694, 104 S. Ct. 2052, 2065 (defense counsel “owes the client a duty of loyalty, a duty to avoid conflicts of interest”); Wood v. Georgia (1981), 450 U.S. 261, 271, 67 L. Ed. 2d 220, 230, 101 S. Ct. 1097, 1103 (sixth amendment gives rise to a “correlative right to representation that is free from conflicts of interests”).) Whether a conflict of interest exists must be evaluated on the specific facts of each case. Smith v. Lockhart (8th Cir. 1991), 923 F.2d 1314, 1320.

If an actual conflict is shown, defendant need not show prejudice since “some conflicts of interest so affront the right to effective assistance of counsel as to constitute a per se violation of the sixth amendment.” United States v. Aiello (2d Cir. 1990), 900 F.2d 528, 531, citing Cuyler, 446 U.S. at 349-50, 64 L. Ed. 2d at 347, 100 S. Ct. at 1718-19. See also Mathis v. Hood (2d Cir. 1991), 937 F.2d 790, 795 (same).

The trial court, however, has a “duty to inquire” into the effectiveness of counsel whenever “the possibility of a conflict” becomes apparent. (Emphasis in original.) Wood v. Georgia, 450 U.S. at 272, 67 L. Ed. 2d at 230-31, 101 S. Ct. at 1103-04; see also Cuyler v. Sullivan, 446 U.S. at 347, 64 L. Ed. 2d at 346, 100 S. Ct. at 1717 (inquiry should be initiated whenever court “knows or reasonably should know that a particular conflict exists”).

Significantly, “ ‘[i]f the reasons are made known to the court, the court may rule without more.’ ” United States v. Welty (3d Cir. 1982), 674 F.2d 185, 187-88, quoting Brown v. United States (D.C. Cir. 1959), 264 F.2d 363, 369 (en banc) (Burger, J., concurring in part); McKee v. Harris (2d Cir. 1981), 649 F.2d 927, 934.

Here, the court made sufficient inquiry where defendant provided the court with a written document purportedly listing all reasons for his claim of ineffective assistance. The court thoroughly examined the documents tendered by defendant, reviewed its copious pretrial and trial notes and discussed its reasoning at length.

Some courts have found a per se conflict of interest exists where defendant has filed a grievance with an attorney disciplinary body. For example, in People v. Cano (1991), 220 Ill. App. 3d 725, 581 N.E.2d 236, this court recently held that, under the particular facts of that case, defendant’s filing of a disciplinary claim against defense counsel created a conflict of interest requiring appointment of new counsel for the post-trial hearing. The court held that a per se conflict existed where defendant had filed an ARDC complaint against his appointed public defender. We remanded for a new hearing on the post-trial motion with directions that an attorney not associated with the public defender’s office be appointed. (People v. Cano, 220 Ill. App. 3d 725, 581 N.E.2d 236.) In Cano, however, counsel was appointed, and the court required the assistant public defender’s supervisor to argue the effective assistance of counsel claim filed against his subordinate, despite the supervisor’s repeated request that the court “not place [him] in a position of arguing a motion on behalf of the defendant and against [trial counsel], of whom I am his supervisor.” People v. Cano, 220 Ill. App. 3d at 731, 581 N.E.2d at 240.

See also Mathis v. Hood (2d Cir. 1991), 937 F.2d 790, 796 (defendant’s filing of a disciplinary action against his attorney was a “conflict that established a per se violation of Mathis’s right to effective assistance of counsel”); Douglas v. United States (D.C. App. 1985), 488 A.2d 121, 136-37 (holding that as soon as defense counsel learned that defendant had filed a complaint with bar counsel, “he acquired a personal interest in the way he conducted *** [the] defense”; circumstances “were not conducive to the cooperative spirit and singlemindedness of purpose that ordinarily should underlie a defendant/attorney relationship”; however, trial court’s findings that the conflict of interest would have adversely affected counsel’s ability to render effective assistance were given “substantial deference”).

In contrast, other cases in Illinois have found no conflict of interest even where defendant filed an ARDC complaint or a lawsuit against defense counsel. For example, in People v. Gardner (1977), 47 Ill. App. 3d 529, 362 N.E.2d 14, this court held that reversal of conviction was not required as a result of alleged conflict resulting from defendant’s mother’s having filed an ARDC complaint against defense counsel. The court held that there was no per se conflict arising from the pending ARDC complaint. “In the present case the defendant has failed to demonstrate good cause.” (Gardner, 47 v App. 3d at 535.) The court found the public defender had acted competently. “Even though trial counsel articulated the difficulty he would have in adequately representing the defendant because of the personal conflict, it is within the judge’s discretion whether or not to appoint another attorney.” Gardner, 47 Ill. App. 3d at 535.

In People v. Arnold (1991), 218 Ill. App. 3d 647, 655, 577 N.E.2d 1355, this court held that “the fact that defendant has filed suit against the public defender representing him does not fall into [the] category of per se conflict.”

In People v. Hardeman (1990), 203 Ill. App. 3d 482, 560 N.E.2d 1198, the court held that the trial counsel did not abuse its discretion in denying defense counsel’s post-trial motion to withdraw on the basis of a potential conflict of interest stemming from defendant’s having filed a civil malpractice lawsuit against him. This court stated that “the trial judge had the discretion to find that for purposes of the present case the civil suit was frivolous and was utilized merely as an attempt to frustrate the administration of justice in his courtroom.” 203 Ill. App. 3d at 491.

In People v. Heard (1989), 181 Ill. App. 3d 943, 947, 537 N.E.2d 883, the court did not regard defendant’s filing of ARDC complaint against trial counsel “as evidence or lack of evidence that the attorney’s conduct may have been incompetent.”

Other jurisdictions have held similarly. See, e.g., Carter v. Armontrout (8th Cir. 1991), 929 E2d 1294, 1300 (“a defendant who files a lawsuit against his attorney does not necessarily create such a conflict” of interest; court accepts “the state court’s credibility determinations” regarding hearing testimony by trial counsel and by defendant, sufficiently establishing that “except [for] the filing of the lawsuit,” there was no evidence of an “irreconcilable conflict”), citing Smith v. Lockhart (8th Cir. 1991), 923 F.2d 1314, 1321 n.11; Miles v. Vasquez (N.D. Cal. 1991),_F. Supp___ 1991 U.S. Dist. LEXIS 10627 (dismissing petition for writ of habeas corpus; court relied on State trial court’s findings that defendant made motion to discharge attorney for purpose of delaying proceedings; petitioner’s filing of a civil rights action against his attorney “does not automatically create a conflict which requires removal of defense attorney. Without the malpractice action, there is nothing in the record to indicate that a conflict existed between petitioner and defense counsel”); State v. D’Ambrosio (1988), 156 Ariz. 71, 73, 74, 750 P.2d 14, 16, 17 (remanded for post-conviction evidentiary hearing; filing of a disciplinary complaint is not a “per se violation of a criminal defendant’s right to receive effective assistance,” but the “complaint before the State Bar was specific and in depth, describing numerous instances of ineffectiveness”); McLeod v. State (Ala. App. 1991), 588 So. 2d 537, 538 (affirming trial court’s denial of post-conviction relief and trial court finding that the “fact that Petitioner filed a complaint with the bar association about his appointed counsel is no evidence of ineffective assistance of counsel”); Mendes v. United States (D.C. App. 1991), 595 A.2d 972, 974 (defendant’s filing of complaint against professional responsibility board alleging ineffective assistance on behalf of his private, retained attorney was found by trial court to be a “blatant attempt to subvert the judicial process”); State v. Michael (1989), 161 Ariz. 382, 384, 778 P.2d 1278, 1280 (defendant’s filing of a bar complaint against his privately retained attorney does automatically create conflict of interest requiring withdrawal of counsel; there was “no abuse of discretion in the trial court’s refusal to find an actual conflict of interest preventing Howard from representing defendant”).

Thus, we do not believe that every time a defendant files a disciplinary complaint, the court must honor his request for new counsel.

The American Bar Association has also commented on this problem:

“Clients’ interests sometimes also clash with their lawyers’ interests in their professional reputations as lawyers. This occurs most often when clients either sue or threaten to sue their lawyers for malpractice, file or threaten to file disciplinary charges against them ***. ***
* * *
Courts are less likely, in criminal cases at least, to disqualify lawyers solely because their clients have filed disciplinary complaints against them. The reason for this restraint is the courts’ concern over making it too easy for criminal defendants to get rid of their court-appointed lawyers, delay their trials, or obtain reversals of their convictions.” ABA/BNA Lawyers’ Manual on Professional Conduct, at 51:406 through 51:407 (February 28, 1990), citing State v. Michael (Ariz. App. 1989), 778 P.2d 1278.

State v. Sinclair (1986), 46 Wash. App. 433, 730 P.2d 742.

Courts have similarly expressed a concern that appointment of new counsel after defendant files a disciplinary complaint might “cause many [defendants] to file disciplinary charges against their attorneys.” (Mathis v. Hood, 937 F.2d at 796.) “Were [the filing of a formal complaint] sufficient to disqualify court-appointed counsel, however, a defendant could force the appointment of a new attorney simply by filing such a complaint, regardless of its merit.” (State v. Sinclair (1986), 46 Wash. App. 433, 437, 730 P.2d 742, 744.) Thus, courts do not permit a defendant to “employ complaints against counsel as a dilatory tactic.” United States v. McFadden (3d Cir. 1980), 630 F.2d 963, 972. See also State v. Michael (1989), 161 Ariz. 382, 778 P.2d 1278 (where the court held: “As a matter of public policy, a defendant’s filing of a bar complaint against his attorney should not mandate removal of that attorney. A ruling to the contrary would encourage the filing of groundless bar complaints by defendants whose only motivation is to delay their own day of reckoning”). Michael, 161 Ariz. at 384-85, 778 P.2d at 1280-81, citing People v. Gardner (1977), 47 Ill. App. 3d 529, 362 N.E.2d 14.

Similarly, in Smith v. Lockhart (923 F.2d at 1321 n.11), the court “recognize[dj the danger of any holding implying that defendants can manufacture conflicts of interest by initiating lawsuits against their attorneys.” The court held that a “patently frivolous lawsuit brought by a defendant against his or her counsel may not, alone, constitute cause for appointment of new counsel. Trial judges must be wary of defendants who employ complaints about counsel as dilatory tactics or for some other invidious motive.” (Smith v. Lockhart, 923 F.2d at 1321 n.11.) In Smith v. Lockhart, however, the court found that Smith raised his objections to trial counsel “at the earliest possible time and consistency and vigorously objected to him,” and that his lawsuit against the attorney “was not patently frivolous.” Smith v. Lockhart, 923 F.2d at 1321 n.11.

In contrast to Smith v. Lockhart, here the defendant did not raise his objections until the day of the post-trial hearing. There is no indication that he communicated with the court prior to the hearing, or that he fired his attorney prior to or during that hearing. In addition, the ARDC complaint appears “patently frivolous.” It merely parrots general assertions which might be applicable to any case, such as defense counsel’s failure to “present adequate defense” to failure to “handle properly my case.”

Generally, it is a duty of the trial court to determine whether, for example, the “disciplinary complaint *** [is] well founded,” or whether it is merely a “frivolous complaint against an attorney, or one filed for purposes of delay, or even one filed for the purpose of obtaining new counsel, [which] would not create a conflict of interest.” (Mathis v. Hood, 937 F.2d at 796.) “It is the trial judge who is assigned the ultimate responsibility for thwarting transparent and manipulative tactics of the defendant while at the same time ensuring that there is good cause for the defendant’s complaints about counsel and that the defendant’s waiver of counsel is voluntary.” (United States v. Welty (3d Cir. 1982), 674 F.2d 185, 194.) Thus, it is the responsibility of the defendant to “provide the court with legitimate reasons” supporting his request for new counsel. State v. Sinclair (1986), 46 Wash. App. 433, 436, 730 P.2d 742, 744.

Here, the defendant offered nothing more than vague reasons to support his request for new counsel. (See State v. Sinclair, 46 Wash. App. at 436, 730 R2d at 744 (defendant offered only “a vague account of how counsel had lied” but otherwise “failed to articulate any reason” to the trial or appellate courts for replacing counsel).) We do not believe the trial court violated defendant’s sixth amendment right to conflict-free counsel by refusing defendant’s last-minute request to appoint counsel other than his private counsel (who may not even have been fired yet by defendant) to assist him at the post-trial hearing.

Defendant finally contends that his sentence was improper because the trial court improperly found, without any basis in the evidence, that the crime was drug-related.

A sentence determination lies within the sound discretion of the trial court and will not be disturbed absent an abuse of that discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) Here, defendant was convicted of first degree murder, for which he can be sentenced to a term of 20 to 60 years in prison. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(a)(1).) Defendant was sentenced to 28 years in prison.

The State argues that the “trial court did not say that the murder was drug-related.” During the sentencing hearing, the trial court stated:

“Now, I know that these events all unfolded in the suburb of Ford Heights *** in which there are problems *** associated with drugs and I know from your presentence report about your prior conviction of possession of a controlled substance in which you were placed on probation for two years, only a few short months before this offense, the murder charge occurred.
*** I think that your intent to commit the murder is inherent in the sequence of events that I have just alluded to, in that incident where your girlfriend was testifying about, there was [sic] prior drug dealings involving the victim and you and his friends.
This is another facet of our nationwide problem, drug deals going sour, fighting about the proceeds or fighting about the drugs themselves or enforcing collection. These are spawning an epidemic of crime nationwide and to a degree, that problem exists in the community of Ford Heights.
* * *
Now, this sentence is imposed in part as a deterrent to you and also to the citizenry of our community. You just can’t receive a slap on the wrist and send the message to the community.
I want the young people out there and the old people, if they get involved in the type of conduct that precipitated this ultimate offense of murder, they need to know that the courts will deal with it sternly and, hopefully, it will deter them from that type of conduct.”

This language indicates to us that the trial court did in fact consider the crime to be drug-related. However, there was no evidence in the record from which such an inference could be drawn.

No one testified that defendant or the victim was involved in drug dealings or that the argument between them was drug related. Thus, we remand the cause for resentencing. See People v. Smith (1989), 178 Ill. App. 3d 976, 985, 533 N.E.2d 1169 (remanded for resentencing where sentencing judge believed the offense was gang-related, notwithstanding absence in record of any evidence that defendant shot the victim because of gang-related motives). See also People v. Hammock (1979), 68 Ill. App. 3d 34, 385 N.E.2d 796 (sentence reduced where sentencing judge believed, without support in the record, that defendant had inflicted mental abuse on the victim and that defendant was a persistent law violator although he had no prior record).

Accordingly, the judgment of the circuit court of Cook County is affirmed, and the cause is remanded for a new sentencing hearing.

Judgment affirmed; remanded with directions.

McNULTY, P.J., and LORENZ, J., concur.

       The ARDC complaint concludes with this statement: “I am earnestly aggrieved by the wantoness of this attorney who neglected my case and I am earnestly asking this *** Commission for your undivided fidelity and to review this complaint with impartiality and to take the appropriate measures to assure that the Canon Code of Ethics [is] enforced in this issue. And to preclude this wanton misconduct from ever being mimistered [sic] again in the procedures before a judicial tribunal to protect the public from injury by dishonest, neglgectful [sic] and unethical lawyers who fail to perform their duties professionally, competently and diligently.”


source: Caselaw Access Project

author: JUSTICE WELCH

license: Public Domain

text:
    REGINALD HUDLIN et al, Plaintiffs-Appellees, v. THE CITY OF EAST ST. LOUIS, Defendant-Appellant.
    Fifth District
    No. 5—91—0144
    Opinion filed May 4, 1992.
    Rehearing denied May 21, 1992.

      Edward L. Welch, of Edwardsville, for appellant.

      Brian A. Babka, of Chatham & Babka, of Belleville, for appellees.
   JUSTICE WELCH

delivered the opinion of the court:

Defendant, City of East St. Louis, appeals from the September 14, 1989, order of the circuit court of St. Clair County granting the motion for summary judgment on the issue of liability filed by plaintiffs, Reginald Hudlin and Gerald Hudlin. Defendant also indicates in its notice of appeal that it is appealing from the denial of its motion to dismiss; however, this issue was not discussed by defendant in its brief or argument to this court, and so we will not address it on appeal. Defendant further appeals from the November 8, 1990, judgment of the circuit court in favor of plaintiffs, following bench trial on the issue of damages, in the amount of $189,360. The circuit court denied defendant’s post-trial motion to reconsider on February 11, 1991.

We initially note that the instant case is a consolidation of two St. Clair County circuit court cases, No. 83 — L—512 and No. 85 — L—606. The causes were consolidated on September 6, 1989, on motion of plaintiffs that the cases involved the same parties and identical issues, the taking of property owned by section 11 — 31—1 of the Illinois Municipal Code (Ill. Rev. Stat. 1983, ch. 24, par. 11 — 31—1). This section of the Illinois Municipal Code provides in pertinent part:

“The corporate authorities of each municipality may demolish, repair or cause the demolition or repair of dangerous and unsafe buildings *** within the territory of any such municipality ***. *** The corporate authorities shall apply to the circuit court of the county in which such building is located for an order authorizing such action to be taken with respect to any such building if the owner or owners thereof, including the lien holders of record, after at least 15 days’ written notice by mail so to do, have failed to put such building in a safe condition or to demolish it. *** Where, upon diligent search, the identity or whereabouts of the owner or owners of any such building including the lien holders of record is not ascertainable, notice mailed to the person or persons in whose name such real estate was last assessed is sufficient notice under this Section.” Ill. Rev. Stat. 1983, ch. 24, par. 11 — 31—1.

Cause No. 83 — L—512 involved real property, allegedly owned by plaintiffs, located at 2041-2043 Bond Avenue in East St. Louis, Illinois. Plaintiffs alleged therein that defendant failed to give them the notice required under the statute prior to the demolition of their property on May 24, 1983, and that they were damaged in excess of $15,000. Cause No. 85 — L—606 involved real property allegedly owned by plaintiffs located at lot 11, in block 124, of “Denverside,” referencing the plat recorded in the recorder of deeds office for St. Clair County, Illinois, in book “F,” pages 39 and 40. The address for this property was 1322 Trendley Avenue, East St. Louis, Illinois. Plaintiffs also alleged that defendant failed to give them the notice required under the statute prior to the demolition of this property on June 7, 1985. Plaintiffs prayed for damages in excess of $15,000. In cause No. 83 — L—512, Target 2000 Metro-East Associates and St. Clair County, Illinois, were joined as defendants. These defendants were dismissed from the case prior to trial.

Defendant filed a motion for summary judgment in cause No. 83— L — 512 on January 26, 1984. In said motion defendant stated that in order to obtain an order of demolition, the demolition statute (Ill. Rev. Stat. 1983, ch. 24, par. 11 — 31—1) requires application to the circuit court for an order to demolish structures and clearance of land, provided notice of the proposed application is given to the owners of the real estate. Defendant further stated that plaintiffs did not reside at the real estate located at 2041-2043 Bond Avenue and that the statute allows for notices to be mailed to the person or persons in whose name such real estate was last assessed, provided the identity of the owners is not otherwise ascertainable upon diligent search. Defendant noted that Illinois law defines a diligent search as being a title search conducted to determine ownership of the affected real estate, citing City of Chicago v. General Realty Corp. (1971), 133 Ill. App. 2d 662, 273 N.E.2d 712. Defendant stated that it obtained a preliminary report of title through the Lawyers’ Title Insurance Company which showed that the real estate tax bill for the property in question was to be sent to “Hudlin & Company, 602 First Illinois Bank Building, East St. Louis, Illinois, 62201.” Defendant attached a copy of the title report to the motion. Defendant also attached in support of its motion the affidavit of Janet F. Bovay in which the affiant stated that on March 18, 1983, she forwarded to the owner of the real estate via United States mail the statutory notice of the City of East St. Louis addressed to 602 First Illinois Bank Building, East St. Louis, Illinois, 62201. Finally, in support of its motion, defendant attached a copy of the notice to plaintiffs.

In their response to defendant’s motion for summary judgment, filed April 6, 1984, plaintiffs stated that the deed to the property located at 2041-2043 Bond Avenue listed the names of plaintiffs as well as their respective addresses and said deed was recorded at the St. Clair County recorder of deeds office on September 4, 1981. Plaintiffs further stated that the notice to be given under section 11 — 31—1 of the Illinois Municipal Code only allows for the notice to be mailed to the person in whose name the real estate was last assessed when a “diligent search” did not reveal the owners. Plaintiffs cited City of Chicago v. Moran (1974), 17 Ill. App. 3d 515, 308 N.E.2d 324, for the proposition that the inquiry needs to be more than a perfunctory performance and “requires an honest and well-directed effort to ascertain the whereabouts of [the owner] by an inquiry as full as circumstances permit.” (Moran, 17 Ill. App. 3d at 520, 308 N.E.2d at 328.) Plaintiffs further stated in their affidavit in support of their response to defendant’s motion that they had never received any notice of any proceedings in respect to any actions taken on the property. Defendant’s motion for summary judgment in cause No. 83 — L— 512 was denied by the circuit court on July 9,1984.

Plaintiffs filed a motion for summary judgment in cause No. 83— L — 512 on December 24, 1985. In support of their motion, plaintiffs attached as exhibit D the discovery deposition of Janet Bovay, which deposition had been taken by plaintiffs in cause No. 83 — L—512 on June 4, 1985. Plaintiffs stated in their motion that in Ms. Bovay’s deposition she testified that she was employed by the legal counsel for the City of East St. Louis and that her job responsibility was to run the “demolition file.” Ms. Bovay testified that among her duties in this capacity, she mailed out notices on all demolition projects for the City of East St. Louis. She further testified, plaintiffs stated, that at no time did she ever mail notice to the legal owner of properties subject to demolition, but rather she sent all notices directly to the last taxpayer of record. Plaintiffs cited exhibit C, pages 10, 11, and 12 with regard to the name and address of the last taxpayer of record for the subject property. Plaintiffs also attached as exhibit A to the motion a copy of their deed to the subject property, acquired on December 11, 1980. Plaintiffs stated that, on its face, the deed showed the address of plaintiff Gerald Hudlin as 705 Alhambra, East St. Louis, Illinois, 62205, and the address of plaintiff Reginald A. Hudlin as 3136 Virginia Place, East St. Louis, Illinois, 62207. Plaintiffs also stated that the deed was recorded on September 4, 1981, with the St. Clair County recorder. Plaintiffs contended that there was no genuine question as to any material fact that defendant did not undertake a diligent search in order to ascertain the whereabouts of the owners of the subject property, citing City of Moran (1974), 17 Ill. App. 3d 515, 308 N.E.2d 324. Plaintiffs prayed for judgment as a matter of law against defendant, City of East St. Louis.

Defendant served interrogatories pursuant to Supreme Court Rule 213 (134 Ill. 2d R. 213) on plaintiffs in cause No. 83 — L—512, a copy of which was filed with the court on January 2, 1986. These interrogatories asked plaintiffs, inter alia, to:

“[s]tate whether Gerald D. Hudlin and Reginald A. Hudlin had an interest as shareholder, director or officer of Hudlin and Company on March 18, 1983 and if so state the interest of either party.
* * *
State whether Gerald D. Hudlin, Reginald A. Hudlin or any representative of Hudlin and Company received a notice of hearing to enter order for summary demolition, a copy of which is attached hereto, on or about March 18, 1983 and if so state the name of the party receiving said notice and the date received.”

The record does not indicate whether plaintiffs ever served answers to these interrogatories on defendant.

The circuit court heard plaintiffs’ motion for summary judgment in cause No. 83 — L—512 on January 17, 1986, ordering the parties to submit authority within 14 days. Plaintiffs submitted the affidavits of Gerald D. Hudlin and Reginald A. Hudlin on January 21, 1986. In each affidavit the affiant stated that no notice of demolition or repair had been received at his residence as indicated in the deed and, if it had been received, appropriate steps would have been taken. Plaintiffs also submitted a copy of City of Chicago v. Moran in support of their argument that, because plaintiffs’ addresses were readily available from the recorded deed to the subject property, defendant did not meet the statutory requirement of a diligent search which would have authorized sending of the notices to the address where tax bills were sent.

On January 24, 1986, defendant submitted a memorandum of authority and written argument in opposition to plaintiffs’ motion for summary judgment. Therein defendant argued that the deed to the property in question indicated that plaintiffs did not reside in the premises in question and that they were accepting real estate tax bills in the name of “Hudlin and Company,” at the address to which the defendant’s demolition notice was sent. Defendant argued that, from all appearances, plaintiffs were using Hudlin and Company at Room 602, First Illinois Bank Building, East St. Louis, Illinois, as their representative or agent as to matters involving the property in question. Therefore, defendant argued, plaintiffs should not be allowed to argue that notice sent to Hudlin and Company at this address was not sufficient notice, especially since defendant made a diligent search by ob-taming a preliminary report of title and using the address contained therein, to which the real estate tax bills for this property were being sent, as the address for the statutory notice, citing City of Chicago v. General Realty Corp. Defendant prayed that plaintiffs’ motion for summary judgment be dismissed because there was an apparent question of fact as to the relationship between Hudlin and Company and the plaintiffs in this cause. The circuit court denied plaintiffs’ motion for summary judgment in cause No. 83 — L—512 on February 18, 1986. Plaintiffs filed a motion to reconsider on February 27, 1986, which was denied by the circuit court on May 2, 1986.

The record indicates that defendant also served interrogatories on plaintiffs pursuant to Supreme Court Rule 213 (134 Ill. 2d R. 213), on or about April 16, 1986, in cause No. 85 — L—606. These interrogatories asked plaintiffs, inter alia, to:

“state whether plaintiff ever owned or had interest in Hudlin and Company either as a shareholder, director, officer, partner, sole proprietor, or was an employee and if so state:
A. In what capacity
B. During what period of time.”

At pretrial conference on August 4, 1987, in cause No. 85 — L—606, the circuit court ordered plaintiffs to file their answers to defendant’s discovery in 28 days. The record does not indicate whether plaintiffs ever complied with this order, nor does the record indicate that defendant ever brought a motion to compel or for sanctions for plaintiffs’ failure to comply with the August 4, 1987, order.

The original attorneys of record for defendant filed a motion to withdraw in cause Nos. 83 — L—512 and 85 — L—606 on November 14, 1988, because of the termination of their litigation agreement with the City of East St. Louis. The motion was allowed and the law firm of Vickers, Moore & Wiest entered their appearance on behalf of defendant in both causes on December 5,1988.

Plaintiffs filed a second motion for summary judgment in cause No. 83 — L—512 on July 7, 1989. In this motion plaintiffs stated that they were residents of the City of East St. Louis, that they were the legal owners of the subject property alleged in the complaint to have been demolished by defendant and that they had acquired said property by quitclaim deed on December 11, 1980. Plaintiffs attached a copy of the quitclaim deed to the motion filed in cause No. 83 — L— 512. Plaintiffs also stated in the motion that the quitclaim deed listed their respective addresses and that this deed was recorded on September 4, 1981, with the St. Clair County recorder. Plaintiffs also claimed, by way of a copy of the notice of demolition sent on March 18, 1983, and a copy of defendant’s answers to interrogatories, that the statutory notice for demolition and condemnation was sent for the subject property. Plaintiffs contended that section 11 — 31—1 of the Illinois Municipal Code required that said notice be sent to owners of the property subject to demolition but when the owners could not be located, then notice can be mailed to the person or persons in whose name the real estate was last assessed. Plaintiffs contended that at no time could they not be located at the addresses listed on the deed and that at no time did they receive notice of demolition as required by the statute. Plaintiffs attached the discovery deposition testimony of Janet Bovay to their motion and stated that as employee of the legal counsel for the City of East St. Louis, her job was to run the “demolition file.” Plaintiffs cited Ms. Bovay’s deposition testimony that her duties included mailing out notices on all demolition projects for the city and that at no time did she ever mail notice to the legal owner of the properties subject to demolition but rather all notices went directly to the last taxpayer of record. Plaintiffs concluded that there was no genuine issue of material fact that defendant failed to make a diligent search in order to ascertain the whereabouts of the owners of the property, citing City of Chicago v. Moran.

Plaintiffs also filed a motion for summary judgment in cause No. 85 — L—606 on July 20, 1989. Plaintiffs stated therein that they were residents of the City of East St. Louis and that they were on June 7, 1985, legal owners of the property alleged in their complaint to have been demolished by defendant without the giving of the statutory notice. Plaintiffs stated that under the statute, notice of demolition should have been sent by defendant to the owners of the property subject to demolition or repair. Plaintiffs also stated that at no time could plaintiffs not be located at the address listed on the aforementioned property and that at no time had they received notice of demolition. Plaintiffs also attached the deposition testimony of Janet Bovay in which she testified that at no time did she ever mail notice to the legal owner of the property subject to demolition but rather all notices went directly to the last taxpayer of record. Plaintiffs concluded that defendant failed to make a diligent search in order to ascertain the whereabouts of the owners of the property, citing City of Chicago v. Moran.

The record indicates that plaintiffs’ July 7, 1989, motion for summary judgment in cause No. 83 — L—512 was heard on August 23, 1989. As noted above, the causes were consolidated by order of the circuit court on September 6, 1989. The circuit court noted in its September 14, 1989, order granting plaintiffs’ motions for summary judgment on the issue of liability that the motion for summary judgment filed in cause No. 85 — L—606 contained identical legal issues to those contained in the motion for summary judgment in cause No. 83 — L— 512, upon which it had heard legal argument. In ruling on plaintiffs’ motion for summary judgment on September 14, 1989, the court adopted as findings of fact each of the allegations stated in the motion for summary judgment filed on July 7, 1989, and each of the allegations stated in the motion for summary judgment filed on July 20, 1989. Based on these findings of fact, the court granted summary judgment on the issue of defendant’s liability for negligence.

The sole function of the court reviewing the trial court’s entry of summary judgment under section 2 — 1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005) is to determine whether the lower court correctly ruled that no genuine issue of fact had been raised and, if none was raised, whether judgment was correctly entered as a matter of law. (Blankenship v. Dialist International Corp. (1991), 209 Ill. App. 3d 920, 923, 568 N.E.2d 503, 505.) Section 2-1005 of the Code of Civil Procedure provides in pertinent part:

“If the court determines that there is no genuine issue of material fact as to one or more of the major issues in the case, but that substantial controversy exists with respect to other major issues, or if a party moves for a summary determination of one or more, but less than all, of the major issues in the case, and the court finds that there is no genuine issue of material fact as to that issue or those issues, the court shall thereupon draw an order specifying the major issue or issues that appear without substantial controversy, and directing such further proceedings upon the the remaining undetermined issues as are just. Upon the trial of the case, the facts so specified shall be deemed established, and the trial shall be conducted accordingly.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(d).)

This rule further provides that the judgment sought shall be rendered without delay if the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2— 1005(c).) As noted above, summary judgment was entered on the issue of liability. The legal theory of plaintiffs’ complaints was damage to property caused by defendant’s negligent failure to give the demolition notice required under the statute.

Section 11 — 31—1 of the Illinois Municipal Code plainly provides that no municipality is entitled to an order for demolition unless it first serves notice of the demolition hearing on the owner and allows the owner 15 days in which to put the building in safe condition or to demolish it. There is therefore no question that defendant had a duty under the statute to give notice to plaintiffs; the issue of law involved in plaintiffs’ motions for summary judgment is whether under the statute defendant had a duty to send the demolition notice to plaintiffs’ residences rather than the address of the last taxpayer of record. It is undisputed that notice was sent to the name and address of the last taxpayer of record rather than to plaintiffs at the addresses listed on the deed, which plaintiffs contended were their residences at the time of demolition of the subject properties, and this point, too, was uncontroverted by defendant. Section 11 — 31—1 of the Illinois Municipal Code also plainly provides that if the identity or whereabouts of the owner of the property proposed for demolition is not ascertainable after diligent search, notice mailed to the person in whose name such real estate was last assessed is sufficient notice. A secondary issue of law involved in plaintiffs’ motions for summary judgment is thus whether defendant made a “diligent search” for the whereabouts of the owners of the subject property.

Defendant contends that a title search conducted by the city constitutes a “diligent search” within the meaning of the statute, citing City of Chicago v. General Realty Cory. (1971), 133 Ill. App. 2d 662, 668, 273 N.E.2d 712, 716. In General Realty the city had conducted a title search which revealed that General Realty, Chicago Title & Trust and A1 Abraham were the owners. The title search showed that taxes were last paid by General Realty but that the tax bills went to A1 Abraham. The city served Chicago Title & Trust with notice of the demolition hearing but could not locate either General Realty or A1 Abraham. General Realty had sold its interest in the property to the First National Bank of Blue Island, which held the title in a land trust for an unnamed beneficiary. These later transactions were not of record at the time the demolition hearing was held. The court held that under the circumstances of that case the title search conducted was a diligent search and that it was not the fault of the city that the proper parties could not be found. In that particular case the court also found that the owners were not prejudiced because on the date of the demolition hearing a receiver had been appointed but the demolition order was not entered until some six months later when all owners and mortgagees, including those not of record when the city originally sent out its notices, had entered their appearances in the proceedings.

In contrast, Janet Bovay’s deposition in the instant case indicates that her procedure with regard to the demolition cases was to order a preliminary title report together with the last taxpayer of record and current address. She noted that the owner was usually listed on the first page of the title report and the last taxpayer of record was somewhere else in the title report. She very clearly testified that her instructions were to send the demolition notice to the last taxpayer of record, even if the owner and last taxpayer of record were different persons.

In City of Chicago v. Moran (1974), 17 Ill. App. 3d 515, 308 N.E.2d 324, upon which plaintiffs rely for their entitlement to judgment as a matter of law, the court held that a tax and title search initiated by the city was not a diligent search under the circumstances of that case. In Moran, the title search revealed that the owners of the property were Michael Moran and Walter Pittel, and the tax search showed that the property had been assessed in the name of Pittel, whose residence was listed as 1516 W. Schreiber Avenue in Chicago, although at that time Pittel had a different address. Pittel’s address had never been the address of Michael Moran; however, the summons and alias summons in a suit filed by the city against Moran and Pittel, for housing code violations and containing a prayer for the entry of an order of demolition, listed the address for service of Moran and Pittel at 1516 W. Schreiber Avenue in Chicago. The city sought to serve Moran and Pittel by publication and in its affidavit stated that on due inquiry defendants could not be found, upon diligent inquiry defendants’ places of residence could not be ascertained and that the last known place of residence for each defendant was 1516 West Schreiber, Chicago, Illinois. On review, the court addressed the limited issue of whether the city was entitled to obtain in rem jurisdiction over defendants’ property when personal service could not be had on defendants at the addresses discovered by the tax and title search. The court noted that the city building department had previously sent notice of ordinance violations to Moran’s correct, current residential address and that the correct addresses of both defendants could have been easily ascertained by merely consulting the then-current Chicago telephone directory. The court vacated the order of demolition.

While defendant in the instant case caused a search to be performed prior to the mailing of the demolition notices, it cannot be said that the identities and whereabouts of the owners of the subject properties were not ascertainable. Indeed, the preliminary reports of title ordered by defendant showed the names of the owners and the location of the recording of the deeds to the properties at the St. Clair County recorder of deed’s office. Therefore, we hold that the circuit court’s finding that defendant did not undertake a diligent search to ascertain the whereabouts of the owners of the property was supported by the pleadings, depositions, admissions and affidavits on file, and so there was no genuine issue of material fact as to this point. Accordingly, defendant’s notice sent to the last taxpayer of record was not sufficient notice under the statute.

Defendant argues, however, that the September 6, 1989, order for summary judgment on the issue of liability was improperly granted because plaintiffs’ causes of action, sounding in tort, necessarily had to prove both negligence and injury in order to prove defendant’s liability, citing Schwartz v. City of Chicago (1974), 21 Ill. App. 3d 84, 315 N.E.2d 215. Defendant contends that assuming the City of East St. Louis had a duty to serve plaintiffs at their addresses shown on the deed rather than at the address shown for the sending of tax bills, that fact alone did not add to plaintiffs’ injury, for if the notice had been received, plaintiffs would have had to expend large sums of money to repair derelict buildings on which defendant contends they had been unwilling to pay the real estate taxes. Thus, defendant concludes, a factual dispute existed with regard to whether the alleged negligence on the part of defendant caused their injury or whether the plaintiffs’ gross neglect of their buildings caused their injury.

In order to prove liability on the part of defendant for negligence, plaintiffs would have to prove not only duty and breach of duty on the part of defendant but also that this breach of duty was the proximate cause of their damages. Plaintiffs alleged in their complaints in the two causes that failure to give the notice required under the statute was the proximate cause of defendant’s destruction of their properties. It is undisputed that the subject properties were demolished by defendant on or about the dates stated in the respective complaints. Plaintiffs argue, however, that defendant is attempting to create a factual dispute by raising for the first time on appeal the alleged issue of whether the negligence of the city caused plaintiffs any injury. In our review of the various motions for summary judgment filed by plaintiffs and defendant in the two cases, as well as the memoranda in support of, and in opposition to, the motions for summary judgment, we could find no argument concerning causation. We are also unable to determine whether this issue was argued at the August 23, 1989, hearing on plaintiffs’ motion for summary judgment because no report of proceedings for this hearing was filed with the record on appeal. Appellant has the duty to present the reviewing court with a complete record on appeal; any doubts arising from the incomplete record are therefore resolved against the appellant, and those issues which depend for resolution upon facts not in the record mandate affirmance. (U.S. Minerals & Mining, Inc. v. Licensed Processors, Ltd. (1990), 194 Ill. App. 3d 428, 434, 551 N.E.2d 661, 665.) We would also note that an allegation that plaintiffs were not injured, because if they had received notice of the demolition they would have been forced to expend large sums of money to repair worthless property, should have been raised as an affirmative defense of contributory negligence in order to have been an issue in this case. No such defense was pled by defendant in either cause No. 83 — L—512 or cause No. 85 — L—606. Accordingly, there was no genuine issue of material fact as to this point properly before the circuit court when it ruled on plaintiffs’ motion for summary judgment.

Defendant further contends that an issue of fact existed as to whether plaintiffs had actually received notice of the demolition hearing which was sent to “Hudlin and Company.” Defendant contends that the interrogatories propounded to plaintiffs concerning Hudlin and Company, the answers to which are not a part of the record, evinced the existence of this issue of fact. Defendant argues that an inference could have been drawn that the owners in fact had received the demolition hearing notice from an answer to its interrogatories and that the judge who had denied plaintiffs’ motion for summary judgment in cause No. 83 — L—512 on February 18, 1986, had obviously recognized the implications of the answers to the above question. Defendant also notes that the record includes (as an attachment to defendant St. Clair County’s response to plaintiffs’ request for production) the notice of injury served on the county prior to the filing of suit by plaintiffs in cause No. 83 — L—512. This notice lists the name and residence of the person injured as Gerald D. Hudlin and Reginald A. Hudlin, do Hudlin Plaza, 601 East Broadway, East St. Louis, Illinois. Defendant contends that this negates plaintiffs’ contention that they regarded their residences as the addresses shown on the deed.

As noted above, we have not been provided with a report of proceedings for the hearing on plaintiffs’ second motion for summary judgment on August 23, 1989, and neither has defendant provided us with a report of proceedings for the February 18, 1986, hearing on plaintiffs’ first motion for summary judgment in cause No. 83 — L— 512. We thus will decline to speculate on the reasoning for the circuit court’s decision with respect to either motion, other than as is expressed in the court’s respective written orders. Moreover, we note that defendant did not take the deposition of either plaintiff in order to investigate plaintiffs’ contention that their addresses at the time of the demolitions were the addresses stated on the deed or the connection between plaintiffs and “Hudlin and Company.”

We also note that while plaintiffs’ answers to defendant’s interrogatories propounded in either case concerning the relationship between plaintiffs and Hudlin and Company may have provided the tool for denying plaintiffs’ motion for summary judgment on the issue of liability, defendant failed to include those answers as an attachment to any memorandum in opposition to plaintiffs’ motions for summary judgment, nor were they to be found anywhere in the court records. Supreme Court Rule 213 provides that answers to interrogatories may be used in evidence to the same extent as a discovery deposition. (134 Ill. 2d R. 213(f).) Section 2 — 1005 of the Code of Civil Procedure provides that both the movant for summary judgment and opposite party thereto may submit affidavits and counteraffidavits. (111. Rev. Stat. 1989, ch. 110, pars. 2 — 1005(a), (c).) As noted above, the court considers the pleadings, depositions, admissions and affidavits on file when determining whether no genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Plaintiffs each filed affidavits in support of their motion for summary judgment that they had never received the demolition notice. If defendant had answers to interrogatories which belied this testimony, it was defendant’s duty under the rule to present those discovery answers in opposition to plaintiffs’ motion. The record indicates clearly that defendant failed to present this evidence to the court on the issue of plaintiffs’ receipt of the demolition notice.

In ruling on a summary judgment motion, the trial court is required to construe the pleadings, affidavits, depositions and admissions strictly against the moving party and liberally in favor of the opponent. (Blankenship, 209 Ill. App. 3d at 923, 568 N.E.2d at 505.) However, where a party moving for summary judgment files supporting affidavits containing well-pleaded facts and the party opposing the motion files no counteraffidavits, the material facts set forth in the movant’s affidavits stand as admitted. (Blankenship, 209 Ill. App. 3d at 924, 568 N.E.2d at 506.) Moreover, if the opponent fails to controvert the proofs offered in support of the motion and the movant’s showing of uncontradicted facts would entitle him to judgment as a matter of law, then summary judgment is proper. (Blankenship, 209 Ill. App. 3d at 924, 568 N.E.2d at 506.) Therefore, because plaintiffs’ affidavit concerning lack of notice of the demolition hearing was uncontroverted, there was accordingly no genuine issue of material fact on this point. In summary, we hold that the circuit court did not err in the entry of summary judgment on the issue of liability.

We next will discuss whether the circuit court’s determination of damages was grossly improper and contrary to existing law. The consolidated cases proceeded to bench trial on May 15, 1990, on the issue of damages. The parties stipulated prior to trial that plaintiffs’ witness, James Wilkerson, a certified real estate appraiser, if called to testify, would testify that there could be no fair market value established for the property due to its uniqueness and the absence of similar structures in this area. Plaintiffs’ counsel further announced that he would have Mr. Wilkerson submit a report to the court at a later date with copies to opposing counsel, addressing certain areas that opposing counsel stated he wanted to address that he normally would go into in cross-examination, subject to defense counsel’s prior review. The parties also stipulated to the admission into evidence of defendant’s exhibits 1 through 11, copies of tax bills, assessments, pictures and various deeds for the subject property. Finally, the parties stipulated that the court could take judicial notice of the demolition notices which were already of record in the case; however, plaintiffs did not stipulate as to their accuracy or foundation.

Plaintiffs called Russell Hudlin, Sr., the father of plaintiff Gerald Hudlin and uncle of plaintiff Reginald Hudlin. Hudlin testified that he was 62 years old, that his present occupation was that of a pharmacist, and that he owned Hudlin Plaza, a business located at 600 East Broadway, East St. Louis, Illinois. Hudlin testified that he finished his schooling at the St. Louis College of Pharmacy in 1959 but that until approximately the mid-1960’s, he worked in the stone business with his father, building several stone buildings in town, and had been a general contractor for 15 years. Hudlin discussed the “rubblestonework” method of construction which uses odd shapes of stone which are fit together like a mosaic. He also stated that it had taken him five years to learn how to lay stone. Hudlin has a brother who is still in the stone business in Edwardsville, Illinois.

Hudlin testified that he is well acquainted with the present-day cost of materials and labor in this particular trade because he was chairman of the planning committee for nine years for the St. Mary’s Hospital board. In that position, Hudlin testified, he oversaw the construction of the new surgical wing and entrance lobby which ran into the millions of dollars.

Hudlin also testified that he helped construct both structures on the subject properties involved in the instant case. Hudlin testified that 2043 Bond Avenue was a building consisting of nine rental units and the main building portion of it had a dome, such as you might see on a chapel or church, completely made of stone. The walls were made of 12-inch stone. Hudlin testified that the home located at 1322 Trendley Avenue also had 12-inch stone walls and had a fireplace that held a six-foot log and floors which were made out of Italian marble. These types of structures would be described as Wisconsin-limestone and red-granite structures. Hudlin testified that based on his prior experience as a stone mason and a contractor and a member of the planning commission of various other organizations, he would estimate the cost of reconstructing these two buildings at approximately $300,000.

Plaintiffs’ exhibit 1, a copy of a quitclaim deed, was admitted into evidence without objection and was identified by Hudlin as the deed for the subject property and showed plaintiffs as the owners. Plaintiffs’ exhibits 2 and 3 were also admitted into evidence without objection of defendant and were identified by Hudlin as maps showing the location of the subject property. Hudlin explained the basis for his $300,000 estimate of reconstructing two Wisconsin-limestone, red-granite structures: (1) the 4,320-square-foot, eight-unit apartment complex at 2043 Bond Avenue for $216,000; and (2) the 1,680-square-foot residence at 1322 Trendley for $84,000. Hudlin noted that the cost of materials generally made up 75% of the job but that the estimate was prepared without figuring in a cost for labor. Hudlin also noted line drawings which had been prepared showing the subject structures that had been destroyed, plaintiffs’ exhibit 4, which was admitted by the court as demonstrative evidence. Hudlin also testified that he knew of no contractors available today that could rebuild these two buildings using the rubblestone work and that this would necessarily increase the cost of the building. Hudlin added that the transportation expense for the Wisconsin granite would figure into the estimate of total reconstruction cost, and he stated that they had consulted with the Stone Center in St. Louis for figures on the current price for stone. Hudlin testified that these structures require little or no maintenance or tuckpointing and that the stone will remain intact even if the windows and doors have been removed. In addition, the properties held sentimental value to the Hudlin family.

Hudlin was asked about the $1,096 assessment on the 2043 Bond Avenue property, as shown on defendant’s exhibit 1, which had been admitted by stipulation, and stated that it was low because the complex had never been completed. He denied the statement in the demolition notice that the property was a fire hazard and stated that the weeds were cut occasionally. Hudlin admitted that there had not been any rent collected at this complex since 1960.

Hudlin also admitted that while his mother had lived at the 1322 Trendley property until sometime in the 1970’s, no one had lived in this house since that time. The property was assessed at $1,040, according to defendant’s exhibit 2, which had been admitted by stipulation. Hudlin was not aware that the house had been vandalized but stated that he had never gone to inspect the house prior to its demolition. He did drive by the property every two or three months and stated that he had never seen a broken window on the house. Mr. Cooper, a neighbor, would occasionally cut the grass on the property and keep Hudlin advised of any repairs that needed to be made. Hudlin stated that he felt it was feasible to rebuild the properties.

There was no further evidence given at the trial on the issue of damages. The court asked the parties to submit a memorandum of law on the measure of damages, following submission of the report from plaintiffs’ appraiser, and took the matter under advisement. In June 1990, plaintiffs apparently determined not to submit a written report from their appraiser, and defendant petitioned the court to submit an appraisal report for the subject properties. Plaintiffs did submit a report of their appraiser, Mr. Wilkerson, on July 13, 1990, wherein Mr. Wilkerson gave an opinion regarding depreciation, based on the Residential Cost Handbook published by Marshall and Swift. Mr. Wilkerson stated:

“In my opinion, the two subject buildings would fall into the ‘good’ quality designation. The indicated typical building life for a masonry single family residence of good quality is 55 years. Assuming an effective age of 30 years for the subject residence the indicated depreciation is 34%. The indicated typical building life for a masonry multi-family residential building of good quality is 50 years. Assuming an effective age of 30 years for the subject apartment building, the indicated depreciation is 38%.”

Plaintiffs submitted their memorandum of law on the measure of damages on July 16, 1990. In their memorandum, plaintiffs argued that the measure of damages was the cost of restoration. Defendant submitted no memorandum of law on the measure of damages.

The court entered an order on July 19, 1990, allowing defendant’s petition to submit appraisals for the subject property but setting August 13, 1990, as the date to submit such appraisals. Defendant filed a motion for continuance on August 10, 1990, and submitted appraisal reports for the subject properties on October 9, 1990, showing $29,000 as the value of the Bond Avenue property and $25,000 as the value of the Trendley Avenue property. However, the court entered an order on October 23, 1990, denying defendant’s motion for continuance stating that it would not consider any evidence submitted after August 13, 1990.

The court entered judgment in the total sum of $189,360 for plaintiffs on November 8, 1990. In the judgment order the court stated that the judgment was based on the following calculations:

Multifamily structure at 2041-2043 Bond Avenue-Reconstruction Cost: $216,000
Less 38% Depreciation: 82,080
Total $133,920
Single-family residence at Trendley Avenue-Reconstruction Cost: $84,000
Less 34% Depreciation: 28,560
Total: $55,440
$133,920 + 55,440
$189,360

The rule adopted by this court in Arras v. Columbia Quarry Co. (1977), 52 Ill. App. 3d 560, 367 N.E.2d 580, concerning the measure of damages for injury to real property, which delineates between injuries which are permanent and injuries which are temporary, appears to state the general rule which is followed in most cases: if the injury is permanent, the measure of damages is the market value of the real estate before the injury, less the market value after the injury; if the injury to real estate is not permanent, then the measure of damages is the cost of restoration. (Arras, 52 Ill. App. 3d at 565, 367 N.E.2d at 583-84; cf. Williams-Bowman Rubber Co. v. Industrial Maintenance, Welding & Machining Co. (N.D. Ill. 1987), 677 E Supp. 539, 554 (under Illinois law, if real property is partially injured and the injury may be repaired in a practicable manner, then the proper measure of damages is the cost of restoring the property to its condition prior to the injury; if the real property is totally destroyed or damaged in a manner which renders repair impracticable, then the diminution-in-value rule applies). The diminution-in-value rule may be inadequate and unfair in some instances, however; for example, where the building is used for a purpose personal to the owner, such as the family residence. (Jones v. Consolidation Coal Co. (1988), 174 Ill. App. 3d 38, 45-46, 528 N.E.2d 33, 38, citing Myers v. Arnold (1980), 83 Ill. App. 3d 1, 403 N.E.2d 316.) When damaged real property gains its principal value from personal use rather than use for pecuniary gain, the loss in market value is a poor gauge of damage, and so when the property is used in a special personal way, a criterion based on reproduction cost should be used when that can be reasonably done. (Matich v. Gerdes (1990), 193 Ill. App. 3d 859, 866, 550 N.E.2d 622, 627.) Under this analysis, the court held in Matich that where plaintiffs had totally refurbished a bam upon their purchase of the property and had personally used said barn, the proper measure of damages for its total destruction was the reproduction-cost-minus-depreciation method of loss evaluation. Matich, 193 Ill. App. 3d at 867, 550 N.E.2d at 627.

It is readily apparent from an examination of the circuit court’s judgment that it considered restoration value less depreciation as the proper measure of plaintiffs’ damages for the destmction of their buildings. We hold that the court erred as a matter of law in so finding, based on the above analysis. It cannot be disputed that the buildings were totally destroyed and so the injury to the real property was permanent. There was no evidence that plaintiffs had a personal use for the subject properties. The Trendley Avenue property had been used as a personal residence by Mr. Hudlin’s mother at one time but she had moved from the property in 1970. The Bond Avenue property had been used for a pecuniary purpose, as rental units. Moreover, Mr. Hudlin testified that no rent had been collected on this property since 1960. Accordingly, we reverse the November 8, 1990, judgment of the circuit court.

Under the general rule for damage to real property where the property is totally destroyed, the court should have assessed damages as the diminution in market value for the two properties, before and after their demolition. There does not appear to have been any evidence presented at trial concerning the market value of the properties prior to their demolition or the value of the postdemolition unimproved land. We note that defendant’s appraisals, which the court refused to consider, did offer some evidence of fair market value of the buildings, landscaping and land. Although plaintiffs contend that defendant failed to offer a memorandum of law on the measure of damages and failed to specify alternative measures of damages in its post-trial motion and therefore cannot now complain that an improper measure of damages was used by the court, we note that it was plaintiffs’ burden to prove damages in the instant case. We remand this case to the circuit court of St. Clair County for further evidence on diminution of market value, the proper measure of damages in this case.

The judgment of the circuit court is affirmed in part and reversed and remanded on the issue of damages only.

Affirmed in part; reversed and remanded in part.

CHAPMAN and LEWIS, JJ., concur.