text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES DICKERSON, Defendant-Appellant.
    First District (4th Division)
    No. 81—1872
    Opinion filed November 17, 1983.

      Steven Clark and Susan Kaplan, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello, and Adam Dabek, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, James Dickerson, was charged with three counts of armed robbery. The motion to nolle prosequi two counts was granted. Dickerson was then tried for one count of the armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 2(a)) of Derrick Hayes, the assistant manager of a Church’s Chicken restaurant. He was convicted by a jury and sentenced by the trial court to 12 years in the Illinois Penitentiary.

On appeal, defendant raises the following issues: (1) whether alibi evidence was properly excluded; (2) whether introduction of evidence of other crimes was proper; and (3) whether certain closing arguments by the prosecutor were improper.

We reverse and remand.

At a pretrial hearing on April 30, 1981, defense counsel presented a motion in limine to exclude evidence of (1) a pending charge for bail-jumping; (2) other robberies of Church’s for which defendant was not formally charged; and (3) allegations concerning implications of involvement in a murder. After arguments by both sides, the motion was denied.

On June 19, 1981, five days before the scheduled date of trial, defense counsel filed notice of an alibi defense. The State objected on the ground that the untimely notice was prejudicial to its case. On June 23, the court heard and denied defendant’s motion to produce three witnesses for an alibi defense. The ruling barred defendant’s alibi defense and the case proceeded to trial on June 25, 1981.

The facts, as summarized here, show that Church’s Chicken restaurant, at 6301 South Woodlawn, in Chicago, was robbed twice, at noon and 9 p.m., on February 3, 1980. There was also evidence that the same restaurant had been robbed on January 7, 1980. Defendant was tried only for the robbery that occurred at noon on February 3, 1980.

On February 3, 1980, at approximately noon, Derrick Hayes, an employee of Church’s restaurant, at the Woodlawn address, was robbed. The offender brandished a sawed-off shotgun and demanded money from Hayes. After Hayes gave the offender money from a safe, the offender then ran out the door. At approximately 9 p.m. on that same date, the same man returned to Church’s, again brandishing a shotgun. He demanded and was given money from the cash register.

After each robbery, a description of the offender was given to the police by witnesses. After the noon robbery, the offender was described as a male, 5 feet 9 inches in height, weighing 140 to 150 pounds, dark complexioned with a facial rash, and clean shaven. He wore a beige trench coat and blue jeans. It is unclear whether the offender wore a cap. Following the 9 p.m. robbery, the offender was described as wearing a blue pea coat, blue pants and a blue cap.

On February 22, 1980, Chicago police officers Wheat and Johnson arrested defendant at 63rd Street and Woodlawn. Shortly after his arrest, defendant was identified by Derrick Hayes and other employees of Church’s as the perpetrator of the robberies on January 7 and February 3, 1980. There was conflicting testimony as to exactly how the identification of defendant was carried out immediately after his arrest. Defendant was also identified in court as the offender.

According to Officer Wheat, defendant admitted committing two robberies on the same day (February 3,1980) because it was so easy.

The jury found defendant guilty of armed robbery. Following a hearing in mitigation and aggravation, defendant was sentenced to 12 years’ imprisonment.

Defendant contends the trial court’s exclusion of his alibi defense was error. He argues, convincingly, that the trial court could have imposed a lesser sanction for his failure to make his alibi defense known earlier. Defendant argues that exclusion of his alibi defense was especially prejudicial since the State’s case was based on identification testimony. Furthermore, there were numerous inconsistencies in the State’s identification evidence, and thus presentation of the alibi defense was crucial to his case.

The State argues that defendant has waived this issue because of his failure to raise it in a written motion for a new trial. However, the waiver rule is a limitation on the parties, not on the court, and a reviewing court may ignore the rule to reach a just result. (Augsburg v. Frank’s Car Wash, Inc. (1982), 103 Ill. App. 3d 329, 333, 431 N.E.2d 58, 61.) Accordingly, we will address the issue.

The State makes two arguments in support of its contention that exclusion of the alibi defense was proper. First, it argues that to allow defendant to proceed with his alibi defense, which was made known to the court only five days before trial, would be prejudicial to the State’s case. There was not enough time prior to trial to locate and interview the witnesses and to investigate the defense. Second, the State contends the identification testimony was so overwhelming that it rendered exclusion of the alibi defense harmless even if the court erred in excluding it. We find the State’s position untenable and accordingly reject it.

Supreme Court Rule 415(g) provides as follows:

“(i) If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, exclude such evidence, or enter such other order as it deems just under the circumstances.
(ii) Wilful violation by counsel of an applicable discovery rule or an order issued pursuant thereto may subject counsel to appropriate sanctions by the court.” (87 Ill. 2d R. 415(g).)

Under Rule 415(g), the trial court has a choice of sanctions which may be imposed upon the offending party. People v. Williams (1977), 55 Ill. App. 3d 752, 757, 370 N.E.2d 1261,1265.

The Committee Comments to Rule 415(g) state in part:

“Rather than attempt to provide specific sanctions for specific violations, the Committee deemed it wise to leave the sanctions to the discretion of the trial court. *** If justified, under the circumstances, the court may exclude evidence which a party has failed to disclose under applicable discovery rules. The Committee felt that such a device is a useful sanction, and that even though some problems may arise in applying it against the accused, the sanction can be applied in some situations. *** The sanctions listed are not exclusive.” (Emphasis added.) Ill. Ann. Stat., ch. 110A, par. 415(g), Committee Comments, at 709 (Smith-Hurd 1976); People v. Williams (1977), 55 Ill. App. 3d 752, 757.

We do not believe that this was the type of situation contemplated by the Committee as one which warrants imposition of the strictest sanction. In the instant case, there was evidence that defendant and his counsel did not have a good working relationship. Defense counsel was only informed of the alibi defense approximately five days before trial, and he immediately informed the court. According to defense counsel, defendant was under a misapprehension that his lawyer was not to be trusted and that early disclosure of his alibi defense would weaken his case.

The basic purpose of a trial is the determination of the truth. (Tehan v. United States ex rel. Shott (1966), 382 U.S. 406, 416, 15 L. Ed. 2d 453, 460, 86 S. Ct. 459, 465.) Thus, the purpose of sanctions is to compel discovery of the truth rather than to punish. People v. Jackson (1977), 48 Ill. App. 3d 769, 771, 363 N.E.2d 392, 394.

The trial judge ordered the State to make a good-faith attempt to conduct its investigation of the witnesses and report to him one day before trial. On that day, the prosecutor informed the court that since the witnesses were not within the city or the county, it would be unduly burdensome for the State to conduct an investigation. He did not suggest that any attempt had been made. The State has not stated how defendant’s alibi could or would have prejudiced its case. Instead, the State simply contends that it would be a “dangerous precedent” for the trial judge to have imposed any sanction other than exclusion of the defense. The cases cited by the State do not bolster its position under these facts. Accordingly, we reject the State’s argument. In our view, the facts of this case are such that the purpose of Supreme Court Rule 415(g) was not served by the sanction imposed. The effect was to deny defendant his right to present a defense. This was not and is not the intent of the rule. The better approach would have been to allow a continuance so that both parties could investigate the defense and interview witnesses. We note that defense counsel had not himself had an opportunity to interview the witnesses at the time he informed the court of the alibi defense.

The State also makes an alternative argument that even if the alibi defense was improperly excluded such exclusion was harmless and does not rise to the level of reversible error.

In a criminal case such as this, the burden of persuasion is upon the State to establish beyond a reasonable doubt that exclusion of the evidence would not affect the outcome of the case. (See Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.) We cannot conclude beyond a reasonable doubt that the admission of defendant’s alibi evidence would not have affected the outcome of the case.

The jury was charged with determining the credibility of the witnesses. Assuming, arguendo, that the excluded alibi witness had testified and the jury had determined that the testimony was believable, logic would compel them to also conclude that defendant was not at the scene and could not have committed the crime.

Accordingly, the State’s argument of harmless error must fail. We find that the exclusion of defendant’s alibi defense was improper. Further, we believe that the exclusion was so prejudicial that it is necessary to reverse and remand for a new trial.

The next issue raised by defendant is whether the trial court erred in allowing evidence of crimes other than the one for which he was being tried. He argues that the evidence in question did not fall within any of the exceptions to the general rule barring evidence of other crimes and was therefore erroneously admitted.

Prior to trial, the defense presented a motion in limine in an attempt to exclude the evidence of two additional robberies. The State argued that the evidence was admissible to prove modus operandi as well as to establish the identity of defendant. On appeal, the State points out that the evidence of other crimes was admissible because the similarities between the crimes were such that it fell within the modus operandi exception. The State also points out that in order to establish certainty of identification it was important to show that the witnesses had had previous opportunities to observe defendant.

As a general rule, the evidence of crimes other than the one for which the accused is being tried is not admissible. (People v. McDonald (1975), 62 Ill. 2d 448, 455, 343 N.E.2d 489, 492.) Specifically, evidence of a defendant’s misconduct which is similar to the conduct constituting the crime at issue is not admissible to create an inference of guilt or to show the propensity to commit a crime. (People v. Barbour (1982), 106 Ill. App. 3d 993, 1001, 436 N.E.2d 667, 673.) There are exceptions to this rule, and “[ejvidence which tends to prove a fact in issue is admissible though it may be evidence showing that the accused has committed a crime other than the one for which he is being tried, and evidence which goes to show motive, intent, identity, absence of mistake or modus operandi is admissible though it may show the commission of a separate offense.” People v. McDonald (1975), 62 Ill. 2d 448, 455.

To be admissible under the modus operandi exception, the crimes must share peculiar and distinctive features that are strikingly similar (People v. Middleton (1976), 38 Ill. App. 3d 984, 989, 350 N.E.2d 223, 228), and there must be substantial connecting links between the different offenses (People v. Tate (1981), 87 Ill. 2d 134, 142, 429 N.E.2d 470, 475). There must be some distinctive features that are not common to most offenses of that type. 87 Ill. 2d 134,143.

In this case, we find no such striking similarity between the three robberies. We do find that what the State characterizes as similarities are only generally similar and in fact common to many robberies. Illustratively, the prosecutor’s argument on the motion in limine, that defendant “proceeded with great vigor directly to the cash register with a pure motive of obtaining cash,” does not support the State’s position. Instead, that statement could be applicable to any one of the multitude of armed robberies committed in Cook County each year.

The State argues alternatively that evidence of the other offenses was properly admitted to identify the offender. The police reports establish that the descriptions of the offender in each of the three crimes brought out at trial were quite similar, thus suggesting that one person committed all three crimes.

Generally, evidence of other crimes is inadmissible unless such evidence is relevant in placing the defendant in proximity to the time and place of the crime in question, or to establish identity, design, motive or knowledge. (People v. Butler (1975), 31 Ill. App. 3d 78, 80, 334 N.E.2d 448, 450.) However, proper application of this general rule requires the sound discretion of the trial judge, for the probative value of the evidence must outweigh its prejudicial effect.

The actual need for the evidence must be considered in light of the relevant issues and other evidence available to the prosecution. The evidence should be limited to those details necessary to identify the offender, the purpose of the evidence being to identify not to attack the character of the accused. Further, some courts have applied a more demanding standard than mere relevance for the admission of evidence of other crimes. (See People v. Butler.) All of these factors should be applied during a retrial of this case.

In light of this court’s decision to reverse on other grounds, a ruling on this issue is unnecessary and judicial restraint counsels against issuing such a ruling other than the guidelines set down herein which should aid the trial court in ruling on the issue during a retrial.

Defendant also argues that a certain remark made by the prosecutor during closing argument was a comment on defendant’s failure to testify and was thus a violation of his constitutional right not to testify. We note that no objection was made by defense counsel at the time of the statement. Since it is unlikely that this will recur in a new trial, and in light of our ruling on the other issues, we find it unnecessary to address this issue.

For the foregoing reasons, this case is reversed and remanded for a new trial.

Reversed and remanded.

ROMITI, P.J., and JIGANTI, J., concur.


source: Caselaw Access Project

author: JUSTICE STAMOS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSE RODRIGUEZ, Defendant-Appellant.
    First District (2nd Division)
    No. 82—1786
    Opinion filed November 22, 1983.
    Peter B. Carey, of Joyce and Kubasiak, of Chicago (Leland Shalgos, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Lawrence R. Stasica, and Kip R. Owen, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE STAMOS

delivered the opinion of the court:

Following a bench trial, defendant, Jose Rodriguez, was convicted of possession of a controlled substance (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 1402) and sentenced to an 18-month period of probation. He contends on appeal that the trial court erred in quashing subpoenas which sought the production of documents relating to statements contained in an affidavit in support of a search warrant.

After the execution of a search warrant at their residence, defendant and his wife, Ida Rios, were charged with certain offenses involving controlled substances. The application of the search warrant was supported by the affidavit of Officer Clifford Berti, which contained the following representations regarding the reliability of an anonymous informant:

“I, Clifford Berti, a police officer for the City of Chicago for the last 15 years had occasion on 24 March ’81 to meet with a reliable informant at the corner of Pulaski and Lawrence. I have known this informant for a period of 3 months and during this time he has provided me with information which has resulted in 3 Narcotic raids with 3 arrests. In all these raids Controlled Substances were recovered and submitted to the CPD Crime lab for analysis with positive results. All of these cases are still pending in Court.”

The affidavit further related that the informant told Officer Berti that he had just left defendant’s residence at 4016 West Belle Plaine in Chicago, where he purchased cocaine from a woman named Ida Rios.

The search warrant was issued that same day, and at 1 p.m. Officer Berti and five other officers conducted a search of defendant’s residence. There they found a quantity of cocaine and marijuana, $25,000 and two weapons. The police then arrested defendant and Ida Rios, who arrived at the house while the search was being conducted.

Prior to trial, defense counsel caused subpoenas duces tecum to be served upon the keeper of the books and records of the Chicago Police Department, Detective Clifford Berti and the commanding officer of the Organized Crime Division of the Chicago Police Department, seeking production of the following documents:

“(1) Copies of all search warrants and relevant affidavits made by Detective Berti between January 1, 1979, and March 25,1981;
(2) Copies of all documents, reports, etc., relevant to any narcotic raids conducted by Detective Berti between December 1, 1980, and March 25, 1981;
(3) Copies of all documents, police reports, etc., relating to any cases pending in the Circuit Court of Cook County where individuals were arrested by Detective Berti between December 1,1980, and March 25, 1981; and
(4) Copies of all documents, reports, etc., relating to the Chicago Police Department Crime Labs analysis of any narcotics seized by Detective Berti during raids which resulted in arrests between December 1,1980, and March 25,1981.”

Defense counsel also caused a subpoena duces tecum to be served upon the Felony Review Division of the Cook County State’s Attorney’s office seeking copies of all search warrants and relevant affidavits made by Detective Clifford Berti between January 21, 1979, and March 25, 1981.

The subpoenas were intended to ascertain the existence of any documents which would substantiate Officer Berti’s representations regarding the reliability of his anonymous informant. At the court's invitation, defense counsel filed a motion in support of compliance of the subpoenas. Attached to the motion were the affidavits of defendant and Ida Rios denying the facts contained in Officer Berti’s affidavit concerning the sale of narcotics to his informant on May 24, 1981. To substantiate her claim that she could not have made a narcotics sale on that date, Ida Rios attached to her affidavit various receipts and sales slips to establish her whereabouts that morning. The earliest receipt was from a doctor’s appointment scheduled for 10 a.m.

The trial court granted the State’s motion to quash the subpoenas on the grounds that defendants failed to make a substantial preliminary showing that Officer Berti made false statements in the affidavit supporting the search warrant.

Defendant’s sole contention on appeal is that the trial court erred in granting the State’s motion to quash the subpoena.

Prior to the United States Supreme Court decision in Frank v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, Illinois law prohibited a defendant from impeaching the veracity of the sworn statement upon which the search warrant was issued. (People v. Born (1983), 113 Ill. App. 3d 449, 447 N.E.2d 426; People v. Bak (1970), 45 Ill. 2d 140, 258 N.E.2d 341, cert, denied (1970), 400 U.S. 882, 27 L. Ed. 2d 121, 91 S. Ct. 117.) In Franks v. Delaware, the court held that an absolute rule banning post-search impeachment of veracity is not justified and that under certain circumstances such impeachment must be permitted. The court then announced the following limited exception to the rule:

“[Wjhere the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.” (438 U.S. 154, 155-56, 57 L. Ed. 2d 667, 672, 98 S. Ct. 2674, 2676.)

To mandate an evidentiary hearing, the defendant’s attack must be more than conclusional and must be supported by more than a mere desire to cross-examine the affiant. The court further stated that it is the veracity of the affiant, not that of the informant, which is subject to impeachment.

Defendant admits that he is unable to make the substantial preliminary showing of falsity required to obtain an evidentiary hearing under Franks v. Delaware. However, he argues that where there is some evidence that the affidavit in support of the warrant contains deliberate falsehoods, a defendant should be allowed reasonable use of the discovery process in order to determine whether there is a basis for challenging the validity of the warrant.

It has been recognized that without some discovery, a Franks claim regarding the existence or reliability of an anonymous informant may be difficult, if not impossible, to prove. (United States v. Dorfman (N.D. Ill. 1982), 542 E Supp. 345.) However, the Dorfman court stated that in light of the presumption of validity with respect to the affidavit supporting the search warrant, disclosure should not be routine. Instead, some preliminary showing overcoming the presumption should be required.

In our view, defendant in the case at bar has failed to make any showing whatsoever that Officer Berti’s statements concerning the existence or reliability of his anonymous informant were deliberate falsehoods. The affidavits of defendant and his wife constitute no more than a general denial of the narcotics sale. The sales receipts attached to the affidavit of Ida Rios do not substantiate her whereabouts prior to 10 a.m. on the morning of the sale and therefore are of little value. In fact, nothing in the affidavits can be construed as a showing that Officer Berti lied about the reliability of the informant. Under these circumstances, defendant’s attempt to compel the police department and the State’s Attorney’s office to produce documents relating to Berti’s representations concerning his informant amounts to a mere “fishing expedition.” Besides producing a substantial burden upon the departments having to produce the requested documents, use of the discovery process in this manner could open the door to potential abuse as a dilatory tactic. Therefore, we believe the trial court acted properly in quashing the subpoena.

Pursuant to People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, we grant the State’s request that defendant, he assessed $50 as costs for the State’s defending this appeal and incorporate it as part of the judgment.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

DOWNING, P.J., and HARTMAN, J., concur.


author: JUSTICE CAMPBELL

text:
    ROBERT D. ELLIS, Plaintiff-Appellant, v. JEFFREY C. MILLER, Director, Department of Public Aid, et al., Defendants-Appellees.
    First District (1st Division)
    No. 83—108
    Opinion filed November 21, 1983.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Michael R. Callahan, of counsel), for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Owen M. Field, Special Assistant Attorney General, of counsel), for appellees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

The plaintiff, Robert D. Ellis, filed an action under the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 264 et seq.) to review the decision for the defendant, Jeffrey C. Miller, Director, and the Illinois Department of Public Aid (hereinafter the Department) denying his application for a medical assistance grant for a period of hospitalization prior to April 1, 1982. The circuit court of Cook County, upon allowance of defendants’ motion, dismissed the action for the reason that it was not timely commenced. On appeal, plaintiff has presented the following issues for review: (1) whether the trial court’s ruling that plaintiff failed to file his complaint for administrative review within the time required under section 3 — 103 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 103) was erroneous as a matter of law or, in the alternative, was contrary to the manifest weight of the evidence; (2) whether the clerk of the circuit court’s improper refusal to accept for filing the plaintiff’s complaint for administrative review acted to deny the plaintiff his statutory right to appeal under section 3 — 103 of the Code; and (3) whether, under the facts and circumstances of this case, there exists an exception to the 35-day filing requirement under section 3 — 103 of the Code where a party, in good faith, presents a timely complaint and summons for filing.

On September 23, 1982, plaintiff filed a complaint for administrative review of a decision by the Department denying plaintiff’s application for medical assistance benefits pursuant to one of the medical assistance programs administered by the Department. Plaintiff had been hospitalized on January 21, 1982, and applied on February 5, 1982, for medical assistance benefits while still a patient. This application was denied pursuant to the Department’s manual because plaintiff’s assets at that time exceeded the maximum allowed by agency standards. On April 30, 1982, plaintiff again applied and the Department approved the application effective for the months of April 1, 1982, through September 30, 1982, but refused to approve the enrollment for benefits for the months of January, February and March of 1982. Plaintiff filed a timely notice of appeal from the Department’s ruling and a hearing was held resulting in a written notice dated August 18, 1982, denying eligibility for January through March of 1982. A copy of the notice of decision was sent to plaintiff and his attorney. This action followed.

Defendants filed their motion to dismiss asserting that the complaint was not filed within 35 days of the date of mailing of the final administrative decision in accordance with section 4 of the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 267). Attached to the motion was an affidavit of mailing to plaintiff and his attorney dated August 18, 1982. Plaintiff filed a responsive pleading, coupled with an affidavit of a docket clerk for plaintiff’s attorney. The affidavit states that one hour before the close of the circuit court clerk’s office on September 22, 1982, the docket clerk attempted to file plaintiff’s complaint and that the filing of the complaint was refused by the clerk’s office because the summons was improperly prepared. The summons which had been initially prepared was one which is typically filed for law division cases. It did not contain the heading “Summons in Administrative Review.” A new summons was prepared and the complaint and summons were filed on September 23,1982.

Plaintiff has raised several issues which may properly be disposed of by the question of whether the trial court erred in concluding that plaintiff did not file his action for administrative review within the jurisdictional time limit.

In Chin v. Department of Public Aid (1979), 78 Ill. App. 3d 1137, 1139, 398 N.E.2d 135, this court stated as follows:

“Section 11 — 8.7 of the Public Aid Code (Ill. Rev. Stat. 1977, ch. 23, par. 11 — 8.7) expressly provides that the Administrative Review Act governs judicial review of agency decisions with respect to the Medical Assistance Program. Section 4 of the Administrative Review Act requires a plaintiff to file a complaint for administrative review ‘within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby.’ (Emphasis added.)”

Plaintiff has not denied that he received notice of the denial of his application for medical assistance benefits. In this connection the recent case of Cox v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 399, 451 N.E.2d 842, is controlling. In Cox, the trial court dismissed an administrative review action on the ground that it was not timely filed when the complaint was filed within the 35-day time period, but the summons was not issued. Plaintiff argued that he had performed all the acts required under the statute and that he should not be denied his day in court because of the failure of the clerk’s office to issue the summons on the day they were delivered. The Illinois Supreme Court agreed and held that plaintiff had acted with diligence in presenting to the clerk summons which requires only signature and seals prior to service. On the record presented the action was timely filed and on the method of service of the administrative decision “the decision was served when deposited in the United States mail.” (96 Ill. 2d 399, 403; of. Thompson v. Bernardi (1983), 112 Ill. App. 3d 721, 445 N.E.2d 1321.) In the instant case, the trial court properly rejected plaintiff’s claim of good faith and the matter of improper summons as supporting a recognition of an exception to the 35-day jurisdictional filing requirement of a complaint under section 3 — 103. We agree with the ruling of the trial court and we do not perceive the language in Cox as sanctioning any exception by reason of an uncorroborated delay occasioned by the clerk’s office as distinguished from a situation where the facts are established that the clerk’s office occasioned the delay in the issuance of the summons only.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

BUCKLEY, P.J., and GOLDBERG, J., concur.


author: JUSTICE GOLDBERG

text:
    JUSTINE REALTY COMPANY, Plaintiff-Appellant, v. AMERICAN CAN COMPANY et al., Defendants-Appellees.
    First District (1st Division)
    No. 83—0670
    Opinion filed November 14, 1983.

      Lord, Bissell & Brook, of Chicago (C. Joseph Yast, Sharon Jones, and Hugh C. Griffin, of counsel), for appellant.
    Winston & Strawn, of Chicago (Neil E. Holmen and Timothy J. Rooney, of counsel), for appellee American Can Company.
    Conklin and Adler, Ltd., of Rolling Meadows (James T. Grotty and Scott W. Hoyne, of counsel), for appellees Central National Bank and General Warehouse and Transportation Company, Inc.
    Sachnoff, Weaver & Rubenstein, Ltd., of Chicago (William P. Colson and Ellis B. Rosenzweig, of counsel), for appellee P.M. Foods, Inc.
   JUSTICE GOLDBERG

delivered the opinion of the court:

Justine Realty (plaintiff) brought this forcible entry and detainer action based upon alleged breaches of a lease by the defendants. Defendants are American Can Company, the current tenant (lessee), and several subtenants: P.M. Foods and Central National Bank, as trustee, subtenants of American Can; General Warehouse and Transportation Company, subtenant of Central National Bank; and Good Humor Corporation, subtenant of P.M. Foods. P.M. Foods was also a subtenant of General Warehouse. At the close of plaintiff’s case, in a bench trial, the trial court entered judgment for defendants. Ill. Rev. Stat. 1981, ch. 110, par. 2-1110.

A lease between corporate predecessors of plaintiff and American Can was entered into in 1960. By assignment, American Can became lessee of the entire premises in 1967. The premises consist of a one-story, 270,000 square foot commercial and industrial building.

A defendant may move for a finding or judgment in his favor at the close of plaintiff’s case-in-chief. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1110.) In ruling upon this motion, the trial court must consider all of the evidence presented, including any favorable to the defendant, pass on the credibility of the witnesses, draw reasonable inferences from the testimony, and generally consider the weight and quality of the evidence. Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 154, 407 N.E.2d 43.

On appeal, the decision of the trial judge should not be reversed unless it is contrary to the manifest weight of the evidence. 81 Ill. 2d 151, 154; Stender v. National Boulevard Bank (1983), 114 Ill. App. 3d 1041, 1046, 449 N.E.2d 873.

Proceeding with these rules in mind, we will address the two separate factual and legal problems here. First is the matter of alleged structural changes in the premises. Second is the issue of various allegedly unauthorized subleases.

I

As regards the matter of alleged structural alterations, during American Can’s tenancy, certain physical changes were made on the premises. A 200-foot interior wall was constructed to subdivide the space in the east half of the building. This was not a load-bearing wall.

In addition to four truck docks in the south wall, the premises originally had six truck docks at the north end of the east wall. With the installation of the interior dividing wall, it became necessary to install five truck docks in the east wall just south of the dividing wall. Two more truck docks were later installed in the west half of the south wall. The trial court found and concluded that the changes were not “structural alterations” requiring prior written consent of the lessor.

Plaintiff’s argument is based upon the assumption that the above physical changes of the premises constituted “structural alterations.” Yet, plaintiff cites no Illinois case which has squarely addressed the issue of what constitutes a “structural alteration” in the instant context. Plaintiff relies upon cases which establish that a general covenant in a lease requiring the tenant to keep the premises in repair binds him only to make those ordinary repairs reasonably required to keep the premises in proper condition but does not require him to make repairs involving structural changes. See, e.g., Hardy v. Montgomery Ward & Co. (1971), 131 Ill. App. 2d 1038, 267 N.E.2d 748.

However, the question of responsibility to pay for repairs is not at issue in the case at bar. The lease expressly provides that “[l]essee shall *** at its sole cost and expense, make all necessary repairs and alterations, whether structural or otherwise ***.” The issue here is whether the installations of the non-load-bearing, interior dividing wall and the additional truck docks were alterations so major as to be deemed “structural.”

A “structural alteration” has been defined to be “[o]ne that affects a vital and substantial portion of a thing; that changes its characteristic appearance, the fundamental purpose of its erection, and the uses contemplated [and] *** is extraordinary in scope and effect, or unusual in expenditure.” (Black’s Law Dictionary 1276 (5th ed. 1979).) The trial court used this definition in analyzing the physical changes alleged to be “structural alterations” made without prior written consent.

Our supreme court has implicitly approved the use of such a definition of the term “structural alteration.” In Klumpp v. Rhoads (1936), 362 Ill. 412, 415, 200 N.E. 153, changes including the installation of a cement floor and the alteration of windows and doors were held to be “minor changes *** not contemplated by the legal definition of structural alterations.” Although the opinion did not set out the legal definition referred to, it cited Plaza Amusement Co. v. Rothenberg (1930), 159 Miss. 800, 838, 131 So. 350, 357, which sets out a definition of the term “structural alteration” which is substantially the same as the dictionary definition quoted above.

The trial court in the instant case found that the purpose of the dividing wall and the additional truck docks was to make the building more useful to the occupants throughout the 20-year term of the lease, and that the premises could be restored so as to comply with the lease provision requiring return of the premises in substantially the same condition as leased. The dividing wall was non-load-bearing, and the additional truck docks were similar to the original truck docks. The trial court thus concluded that the changes did not affect a vital and substantial portion of the premises, or change the characteristic appearance or fundamental purpose of the building.

The lease contemplated occupancy by commercial tenants and subtenants whose varied operations could well be expected to require physical changes to the premises to maintain production efficiency. We conclude as a matter of law that the changes in question should not be classified as “structural alterations.” Accordingly, the judgment of the trial court in this regard is affirmed.

II

As regards the sublease, in August of 1970, American Can sought plaintiff’s prior written consent to a sublease to Wayco Foods. Because plaintiff found that the proposed subtenant had “already started moving in” and had “made changes to the floor,” plaintiff responded that consent would be granted only if American Can relinquished its option to purchase the premises. American Can agreed. The sublease began September 15, 1970. Plaintiff forwarded its written consent on December 1, 1970. The trial court found that plaintiff ignored its right to declare a forfeiture for American Can’s failure to submit this sublease for prior written consent, because plaintiff “found it unnecessary to enforce its requirement for prior consent in 1970 when the sublease to Wayco Foods was submitted to it.”

In 1977, American Can sought plaintiff’s prior written consent to a proposed sublease to M & T Chemicals, Inc., a wholly owned subsidiary of American Can of which American Can was planning to divest itself. Since M & T Chemicals would thus be an independent entity, occupancy by it would no longer be covered by the Wayco Foods sublease. Plaintiff indicated its consent by signing and returning the letter requesting consent. The trial court found that plaintiff deemed it unnecessary to enforce its requirement for prior consent ‘ ‘when the M & T sublease was submitted to it in 1971.”

In 1978, P.M. Foods replaced Wayco Foods as a sublessee. Plaintiff admits that, while it was aware of the occupancy by P.M., it did not insist on compliance with the requirement of prior written consent. Plaintiff continued to accept rent. However, plaintiff relies upon a clause in the lease (paragraph 10) which provides that a waiver of any particular breach of the lease does not waive plaintiff’s right to declare a forfeiture for subsequent breaches.

Four additional subleases, of which plaintiff was apparently unaware, followed. In 1978, P.M. Foods sublet a portion of its space to Good Humor Corporation. No prior written consent or subsequent approval was ever sought.

In 1980, American Can sublet a portion of the premises to Central National Bank, as trustee. Following plaintiff’s inspection tour of the premises, during March 1982, American Can sought plaintiff’s approval of this sublease. Plaintiff declined.

In December of 1980, Central National Bank sublet its space to General Warehouse and Transportation Company. Approval of this sublease was not sought by American Can until after inspection of the premises by plaintiff in 1982. Plaintiff declined to grant approval.

In 1981, General Warehouse sublet a portion of its space to P.M. Foods. Again, approval was sought after plaintiff’s March 1982, discovery of P.M. Foods’ subtenancy, but was not granted.

On March 29, 1982, following the discovery of these unauthorized subleases to Good Humor Corporation, Central National Bank, General Warehouse and P.M. Foods, plaintiff made demand for a written explanation from American Can. American Can was given until April 16, 1982, to explain why “these serious breaches of the lease” should be overlooked. American Can responded on April 14, 1982, by requesting approval for these four most recent subleases. Plaintiff served notice of termination of the lease on May 26,1982.

The trial court found that plaintiff had failed to enforce the prior written consent requirement regarding the Wayco Foods, M & T Chemicals and P.M. Foods subleases, and had failed to take immediate action to terminate the lease following its March 1982, discovery of unauthorized subleases. Based upon these findings, the trial court concluded that plaintiff had waived the prior written consent requirement of the lease. In addition, the trial court concluded: “If the actions of the parties reflect the intent with respect to [the prior written consent requirement], the actions may also be determinants as to the intent with respect to a modification of Paragraph 10 [of the lease] relating to subsequent causes of forfeiture.” The trial court accordingly entered judgment in favor of defendants at the close of plaintiff’s case.

On the contrary, plaintiff argues that even if these were one or more waivers of the right to declare a forfeiture for failure to obtain prior written consent to a sublease, the right to declare a forfeiture for subsequent unauthorized sublettings remained unaffected. This argument is based upon paragraph 10 of the lease which provides:

“No waiver of any forfeiture, by acceptance of rent or otherwise, shall waive any subsequent cause of forfeiture or breach of any condition of this lease, nor shall any consent by Lessor to any assignment or subletting of said premises, or any part thereof, be held to waive or release Lessee from direct and primary liability on any of the foregoing covenants, agreements or conditions; and every assignee or sublessee shall be expressly subject thereto.”

The parties do not cite, and our research has not discovered, any Illinois case which has squarely addressed the issue of whether, and under what circumstances, such a provision in a lease is to be given effect. Defendants, in arguing that the provision requiring prior written consent, in effect, was permanently and completely waived, place reliance upon cases which demonstrate that lease provisions may be waived as to particular breaches by conduct amounting to an estoppel. See, e.g., Doerr v. Maher (1949), 337 Ill. App. 245, 85 N.E.2d 363; Waukegan Times Theatre Corp. v. Conrad (1945), 324 Ill. App. 622, 59 N.E.2d 308; Peacock v. Feltman (1927), 243 Ill. App. 236, appeal denied.

These cases are inapposite for at least two reasons. First, in the case at bar we have no issue of estoppel. There is no evidence that defendants relied to their detriment upon plaintiff’s words or conduct concerning prior written consent to any sublease. (See Gary-Wheaton Bank v. Burt (1982), 104 Ill. App. 3d 767, 776, 433 N.E.2d 315.) On the contrary, the record reveals numerous communications between the parties after the initial P.M. Foods sublease which evidence a com-píete understanding on defendants’ part that the consent requirement remained firmly in effect.

Second, the clauses involved in the above cases all attempted to allow the lessor to take action amounting to a waiver of a particular default, but then to terminate the lease for the very same default. None involved a clause like paragraph 10 of the instant lease above quoted, which strongly provides that forgiveness by the lessor of one breach will not excuse future breaches. In addition, as this court has stated, in Barnard v. Hollingsworth (1948), 336 Ill. App. 228, 232, 83 N.E.2d 372, were this court to sustain the contention that a waiver of a particular breach constitutes a waiver of the related lease provision,

“it would mean that once a tenant had breached a provision in a lease without penalty, there [would be] nothing the lessor [could] ever do to enforce that provision. The effect would be to nullify the plain wording of the lease and to place the lessor at the mercy of a tenant who flouts the provisions of the lease.”

The decision of this court in McKinney v. Mulvey Manufacturing Co. (1910), 157 Ill. App. 339, involved a provision similar to paragraph 10 of the instant lease, and provides some guidance which is directly applicable. In McKinney, the defendant in a forcible detainer action argued that the plaintiff lessor, by accepting past-due rent payments, had waived his right to declare a forfeiture for breach of a lease provision requiring timely payment of rent.

The lease in McKinney contained two important clauses. The first provided that no demand for rent or notice to the lessee would be necessary before declaration of a forfeiture for late payment of rent. The second provided that the acceptance of rent, “ ‘or any other act of apparent affirmance of the tenancy [would not] operate as a waiver of the right to forfeit this lease *** for the term still unexpired for any breach of any of the covenants herein.’ ” (157 Ill. App. 339, 342.) The court concluded that, in view of these provisions, it was (157 Ill. App. 339, 343):

“unable to perceive how the failure of plaintiff to take advantage of previous defaults on the part of the defendant, can constitute in law a waiver of the provisions of the lease, and establish a new contract between the parties ***.”

To the same effect is Merritt v. Kay (D.C. Cir. 1924), 295 E 973. There, the lessee argued that the lessor, by continuing to accept rent following the discovery of two unauthorized subleases, had waived a lease provision prohibiting subleases. The court concluded (295 F. 973, •976):

“If the lessee had simply convenanted not to sublet, those waivers might well be regarded as working a waiver of all subsequent breaches of the condition, and as entirely freeing the tenant from the obligation not to sublet. No such effect, however, can be given to the waivers mentioned, in view of the fact that the lessee, not only stipulated that she would not sublet, but expressly agreed that no waiver of any breach of that covenant of the lease should be construed as a waiver of the covenant itself or of any subsequent breach thereof.” (Emphasis added.)

The similar lease provision in the instant case must necessarily be given effect. The 1967 “Assignment of Lease Agreement” by which American Can became the sole lessee of the premises expressly states that the tenancy of American Can is subject to the terms of the original lease which include paragraph 10 above quoted.

In oral argument, defendants directed our attention to the time frame in which plaintiff demanded an explanation from American Can on March 29, 1982; American Can responded on April 14, 1982; and plaintiff’s notice of termination of the lease was sent May 26, 1982. We cannot possibly construe these facts as sufficient to create a waiver.

In Glad-Nan Corp. v. Henry’s Drive-In, Inc. (1961), 29 Ill. App. 2d 363, 173 N.E.2d 521, appeal denied (1961), 21 Ill. 2d 621, during the month of July 1959, the lessor terminated a franchise held by the tenant. However, the lessor did not terminate the lease until September. During that time the parties attempted an amicable adjustment. Following the breakdown of negotiations in mid-September, the lessor terminated the lease. The court expressly held the lessor’s right to terminate the lease had not been waived, and noted that the intervening period of negotiations rendered the exercise of the right to terminate timely. 29 Ill. App. 2d 363, 371.

In the instant case, plaintiff attempted to avoid a forfeiture of the lease. Plaintiff expressly gave American Can an opportunity to work the situation out during a period of approximately two weeks. American Can took advantage of this opportunity and responded on April 14, 1982. Rather than provide any explanation for its failure to comply with the prior written consent requirements, however, American Can simply sought approval of the subleases. Plaintiff served notice of termination on May 26, 1982, slightly more than one month later. During this period apparently plaintiff heard nothing further from American Can. As in Glad-Nan, we can draw no waiver of this lease from these facts.

We are fully cognizant of the fact that the law does not favor a forfeiture. In fact equity “abhors” a forfeiture. However, it is our legal duty at this particular time to effectuate the plain language of the lease. We do so secure in the knowledge that defendants will be given a full opportunity to proceed with their portion of the case.

Accordingly, we conclude that the trial court erred in finding a waiver of the lease provision requiring prior written consent to any subleases. We reach this conclusion as a matter of law and as a result of the binding covenants contained in the lease. We do conclude that defendants should necessarily be given an opportunity to proceed with the introduction of evidence.

We therefore affirm the trial court’s judgment in favor of defendants insofar as it is based upon plaintiff’s failure to demonstrate that the physical changes made on the premises constituted “structural alterations” requiring prior written consent. We also reverse the judgment insofar as it is based upon a finding of a waiver of the lease provision concerning the right to sublet. We remand the cause to the circuit court with directions to proceed as though defendants’ motion had been denied by the trial court or waived. See 87 Ill. 2d R. 366(b)(3)(iii).

Affirmed in part, reversed in part and remanded.

BUCKLEY, P.J., and CAMPBELL, J., concur.


author: JUSTICE MEJDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LAWRENCE POREE, a/k/a Charles Porce, Defendant-Appellant.
    First District (5th Division)
    No. 81—160
    Opinion filed November 18, 1983.

      Steven Clark and Patricia Unsinn, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Gar-ritt E. Howard, and Jane E. Liechty, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MEJDA

delivered the opinion of the court:

Following a joint jury trial, Lawrence Poree, also known as Charles Force (defendant), and three codefendants were found guilty of armed robbery stemming from the holdup of a gasoline service station. Each defendant was sentenced to an extended term of 60 years’ imprisonment. Defendant Poree appeals from the judgment. We affirm.

The following issues are raised on appeal: (1) whether the trial court erred in refusing to grant Poree’s motion for a mistrial; (2) whether Poree was denied a fair trial by introduction of evidence of his involvement in other criminal offenses; (3) whether the prosecutor’s characterization of the evidence in closing argument constituted reversible error; and (4) whether the court erred in imposing an extended-term sentence.

The convictions of Leroy Sanford, James Lewis and Edward James, Poree’s codefendants, were recently considered by this court in People v. Sanford (1983), 116 Ill. App. 3d 834, 452 N.E.2d 710. We adopt the statement of facts there presented and summarize the facts pertinent to this appeal as follows: On August 7, 1979, at 4:15 a.m., a Mercedes Benz containing four men entered the gas lane at the Concord Gas Station in Chicago. The men got out of the car, proceeded to rob the employees of the station, and demanded that an employee open the safe or be killed. One of the men wore a black stocking mask and carried what looked like a machine gun and was later viewed in a police lineup and identified as Poree. This man ordered a station employee to lie on the floor and not look at him or he would be shot. The masked man then took from the employee a money belt and coin changer, an additional $60 in cash and a check payable to Percy Powell. Defendants’ vehicle was chased by police into an alley whereupon the occupants escaped on foot. The police conducted an organized search of the area during which Poree was apprehended. United States currency and a check made out to Percy Powell were found in his possession. The purported machine gun, actually a semi-automatic carbine, and two masks were found nearby. Poree furnished police with the names of our other people allegedly involved. Poree and co-defendant Sanford gave statements to an assistant State’s Attorney. Sanford named four other participants and recounted the planning and execution of the robbery and the ensuing events. Poree’s statement was essentially the same. He had worn a nylon stocking mask and had carried the carbine which he hoped would appear to be a machine gun. The trial court instructed the jury to consider Poree’s statement only against him and Sanford’s statement only against him and not against any other defendant.

The following evidence also was adduced at trial. Reverend Mary Davis Brown testified that she saw Poree at the tavern owned by her daughter at 6 p.m. the evening before the robbery and that she believed he remained there all evening although she did not see him until approximately 4 the next morning in the apartment above the tavern, where he stayed until 5:30 or later. Other testimony placed Poree in the tavern on August 6, 1979, from 10:30 p.m. until 5:30 the next morning.

A further discussion of events which occurred at trial is necessary to our disposition of this appeal. Poree made no pretrial motion for severance. At trial, codefendant James, testifying on his own behalf, was questioned regarding his relationships with the other defendants whereupon counsel for Poree objected on grounds that such testimony was antagonistic to Poree’s defense and moved for a mistrial or, in the alternative, severance. Counsel for James then made an offer of proof concerning James’ proposed defense: that Poree knew James was out of town at the time of the robbery and named him as an accomplice only to protect his real accomplices. The court denied Po-ree’s motion for severance or mistrial but granted an in limine order barring James’ testimony in this regard.

During examination, assistant State’s Attorneys made reference to defendants’ involvement in offenses other than the instant offense. In closing argument the prosecutor characterized the evidence against Poree as “uncontradicted, unrebutted and undenied” and referred to the defendants as “professionals” engaged in a “reign of terror.” Defense counsel for James, in closing argument, theorized that James was on trial only because he had been named by Poree in order to protect Poree’s real accomplices.

Defendants were found guilty of armed robbery and each was sentenced to an extended term of 60 years’ imprisonment. Poree appeals.

Opinion

The first issue raised is whether the trial court erred in refusing to grant a mistrial. Poree contends, generally, that his case should have been severed from codefendant James’ because James’ defense was antagonistic to his own and further contends that the trial court erred in refusing to grant a mistrial because the closing statements of James’ counsel caused him prejudice. We will address these contentions in turn.

The general rule is that defendants jointly indicted should be jointly tried; separate trials are only required where the defenses are “so antagonistic that a fair trial can be had only by severance” (People v. Yonder (1969), 44 Ill. 2d 376, 386, 256 N.E.2d 321, cert, denied sub nom. Guido v. Illinois (1970), 397 U.S. 975, 25 L. Ed. 2d 270, 90 S. Ct. 1094). (People v. Murphy (1981), 93 Ill. App. 3d 606, 417 N.E.2d 759.) The granting of a severance falls within the sound discretion of the trial court. (Yonder.) “Antagonistic defenses have been confined to those instances where one or more codefendants testify implicating the other.” (People v. Murphy (1981), 93 Ill. App. 3d 606, 609, 417 N.E.2d 759.) In the instant case there was no showing of an antagonistic defense until James’ offer of proof. At that time the court granted Poree’s motion in limine and thereby barred James’ testimony regarding an antagonistic defense. As there was no testimony regarding an antagonistic defense, there was, therefore, no prejudice as to Poree. Severance at that time was made unnecessary to assure Poree a fair trial because of the granting of the motion in limine and the court, therefore, did not err in its refusal to then grant a severance.

Nonetheless, the court has a continuing duty at all stages of trial to grant severance if prejudice appears. (See People v. Lee (1981), 87 Ill. 2d 182, 429 N.E.2d 461.) Poree further complains that the closing arguments of James’ counsel required that their cases be severed. However, we are unable to find that defendant Poree was prejudiced by the closing argument of James’ counsel. The trial court’s action in sustaining defendant’s objections and instructing the jury to disregard the argument cured any prejudicial error which may have resulted. (People v. Jodie (1979), 79 Ill. App. 3d 348, 352, 398 N.E.2d 595.) Since Poree was not prejudiced, the court did not err in refusing to grant Poree a severance.

Poree next argues that the court erred in refusing to grant a mistrial following James' counsel's assertion during closing argument that James had been named as a participant in the robbery by one of the other defendants in an attempt to protect the actual participants in the robbery, thus inferring the guilt of Poree. “It is well settled in Illinois that even though every defendant is entitled to a trial that is free from improper comments or arguments that engender prejudice, his conviction will not be disturbed on review unless such remarks (1) constitute a material factor in his conviction, or (2) result in substantial prejudice to the accused.” (People v. Witted (1979), 79 Ill. App. 3d 156, 165, 398 N.E.2d 68.) The trial court herein sustained Poree’s objections to the remarks of James’ counsel at closing argument, instructed the jury to disregard these comments and, in addition, instructed the jury that argument by counsel does not constitute evidence and that any argument not based on evidence should be disregarded. Furthermore, sufficient evidence was produced at trial to sustain defendant Poree’s conviction. Poree was arrested in possession of proceeds from the robbery, he was identified as a perpetrator by an eyewitness and there was testimony that he had admitted participating in the crime. In view of the foregoing, we find that his co-defendant’s closing argument neither constituted a material factor in Poree’s conviction nor resulted in substantial prejudice which would require a reversal herein.

Poree argues that the presentation of an antagonistic defense at closing argument increased the resultant prejudice as he was denied the right to cross-examine the “witness” against him. (See People v. Lee (1981), 87 Ill. 2d 182, 429 N.E.2d 461.) We find, however, that the trial court’s action in sustaining the objection and instructing the jury to disregard the remarks cured any prejudicial error which may have resulted. (People v. Jodie (1979), 79 Ill. App. 3d 348, 352, 398 N.E.2d 595.) A court of review will not reverse a conviction merely because error has been committed “unless it appears that real justice has been denied or that the verdict of the jury may have resulted from such error:” (People v. Tranowski (1960), 20 Ill. 2d 11, 17, 169 N.E.2d 347, cert, denied (1960), 364 U.S. 923, 5 L. Ed. 2d 262, 81 S. Ct. 290.) In view of the strength of the prosecution’s case, we are satisfied that the verdict of the jury would have been no different had the objectionable comments not been made. We are unable to find, therefore, that the court committed reversible error in denying defendant’s motion for mistrial.

The next issue raised is whether Poree was denied a fair trial by introduction of evidence of his involvement in other criminal offenses. Specifically, Poree first contends that he was prejudiced by the following testimony of two assistant State’s Attorneys. During cross-examination by a defense attorney, Assistant State’s Attorney James Linn was asked if Poree had ever refused to answer any of his questions. Linn responded that “he did refuse to answer one question, but it was not related to this case.” Assistant State’s Attorney Lawrence Terrell later testified that James “went on to tell me some things about an — unrelated cases,” that another assistant State’s Attorney “had a special interest in these defendants,” and that defendants James and Lewis spoke about “a group which they belonged to.” (Emphasis added.)

As a general rule evidence which shows that an accused has committed crimes or acts of misconduct which are distinct and entirely unrelated to the crimes charged is both incompetent and prejudicial. (People v. Curry (1975), 25 Ill. App. 3d 637, 323 N.E.2d 778.) However, where the evidence of prior criminality is not direct, but merely inferential, the issue is the probative and prejudicial effect of the nexus between the admitted and prior criminality. (People v. Sanford (1983), 116 Ill. App. 3d 834, 452 N.E.2d 710; People v. Banks (1981), 98 Ill. App. 3d 556, 424 N.E.2d 898; People v. Allen (1981), 96 Ill. App. 3d 871, 422 N.E.2d 100.) In the instant case there was no evidence before the jury that Poree had been arrested or charged with any crime other than the one for which he was being tried. There was, at most, inferential reference to “unrelated” crimes, which references provided no details as to the type of criminal activity or offense involved or what involvement defendant had with the commission of such offenses. In our opinion these references were not substantially prejudicial as to constitute error requiring reversal. Furthermore, in view of the evidence against Poree, the sufficiency of which he does not contest, we cannot conclude that the testimony influenced the verdict as to Poree or that such verdict would have been otherwise had the testimony not been given.

Poree next contends that the prosecutor made certain remarks which were improper. The prosecutor in closing argument referred to defendants as “professionals” engaged in a “reign of terror.” Reversible error occurs where remarks by the prosecutor are likely to result in prejudice to defendant unless the court’s action is sufficient to overcome the prejudicial effect of the remark. (People v. Jarosiewicz (1977), 55 Ill. App. 3d 1057, 1063, 371 N.E.2d 949.) In the instant case the trial court sustained objections to the prosecutor’s remarks and promptly instructed the jury to disregard the word “professionals.” Thus, any prejudicial effect from the remarks was cured. Furthermore, prosecutor’s references to defendants as “professionals” have been deemed nonprejudicial. (See People v. Gillarm (1976), 41 Ill. App. 3d 174, 353 N.E.2d 280.) A prosecutor may comment unfavorably on the defendant and the violence of the crime and its evil results, when supported by the evidence. Even when such comments are considered to be error, reversal is not required if the evidence so clearly indicates the defendant’s guilt that the verdict would not have been otherwise had the improper remarks not been made. (People v. Jackson (1981), 84 Ill. 2d 350, 360, 418 N.E.2d 739.) In the case at bar the evidence showed that Poree was a participant in the robbery of a gas station, pursuant to a plan. Poree wore a mask and carried a semi-automatic carbine which he hoped would be mistaken.for a machine gun. The prosecutor’s comments were, therefore, supported by the evidence. Moreover, even if the references to “professionals” and “terror” are considered to be error, we believe that the evidence established defendant Poree’s guilt beyond a reasonable doubt and that the verdict as to Poree would not have been otherwise had the remarks not been made.

The next issue is whether the prosecutor’s characterization of the State’s evidence constituted reversible error. Poree contends that the prosecutor’s characterization of the State’s evidence was a comment on his failure to testify and thus reversible error. (Griffin v. California (1965), 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229.) In closing argument the prosecutor twice stated that the testimony concerning Poree’s confession was “uncontradicted, unrebuttéd and undenied” and that the evidence that Poree was apprehended with proceeds of the robbery in his pocket was “not contradicted, and it is not rebutted and it is not denied.”

A prosecutor may comment that the State’s case is uncontradicted even when the only person who might have contradicted it was the defendant. (People v. Mills (1968), 40 Ill. 2d 4, 237 N.E.2d 697.) The State may not, however, argue in a manner intended or calculated to direct the jury’s attention to the defendant’s failure to testify. (People v. Burton (1969), 44 Ill. 2d 53, 56, 254 N.E.2d 527.) “Repetition is not necessarily fatal. (People v. Hopkins (1972), 52 Ill. 2d 1, 284 N.E.2d 283 (‘uncontradicted’ used seven times).) But an argument whose thrust is the defendant’s nonappearance rather than the strength of the State’s case is error.” (People v. Escobar (1979), 77 Ill. App. 3d 169, 178, 395 N.E.2d 1028.) On the evidence here presented we do not believe the State was attempting to draw the jury’s attention to the fact that defendant Poree did not testify. Rather, the comments summarized the evidence and permissibly emphasized the strength of the State’s case: the evidence of Poree’s confession and his possession of proceeds of the robbery. See People v. Harrison (1982), 106 Ill. App. 3d 341, 435 N.E.2d 1211; People v. Vinson (1978), 61 Ill. App. 3d 684, 378 N.E.2d 348.

Poree next argues that the State’s comment did not accurately summarize the evidence in that the evidence of his confession was contradicted and rebutted by a showing that he made no written statement and a claimed insufficiency regarding the State’s memorandum of his confession. Poree also asserts that the evidence that he was apprehended with a check made payable to “Percy Powell,” a proceed of the robbery, in his possession was contradicted by introduction of a police report which stated that the check was recovered from “M. Powell.”

Where the State’s case is not in fact unchallenged, the suggestion that it is unchallenged is not an “accurate summary of the evidence” (People v. Hopkins (1972), 52 Ill. 2d 1, 6, 284 N.E.2d 283). (People v. Escobar (1979), 77 Ill. App. 3d 169, 178, 395 N.E.2d 1028.) Here, however, there was no evidence of Poree’s denial of his confession and the prosecutor’s comment, therefore, accurately summarized the evidence. (See People v. Hopkins (1972), 52 Ill. 2d 1, 284 N.E.2d 283.) Similarly, the police officer’s testimony that the check was recovered from Poree and the evidence that it was a proceed of the robbery were not refuted by the police report. We are unable to find that the prosecutor’s comments were other than an accurate summary of the evidence and we, therefore, reject Poree’s claim of error. Moreover, defense counsel failed to object to two of the comments now asserted as error. We hold that failure to object serves as a waiver of objection on appeal as to those comments to which there was no objection. (Peo ple v. Hanson (1972), 53 Ill. 2d 79, 289 N.E.2d 611, cert, denied (1973), 411 U.S. 937, 36 L. Ed. 2d 398, 93 S. Ct. 1916; People v. Harrison (1982), 106 Ill. App. 3d 341, 435 N.E.2d 1211.) In addition, defendant did not raise these allegations in his motion for a new trial. Contentions not cited as the basis for a motion for new trial are not preserved for appeal. (People v. Edwards (1978), 74 Ill. 2d 1, 4, 383 N.E.2d 944, cert, denied (1979), 442 U.S. 931, 61 L. Ed. 2d 299, 99 S. Ct. 2862.) We hold, therefore, that the issue was not preserved for review.

The final issue is whether the trial court erred in imposing an extended-term sentence of 60 years’ imprisonment. An extended-term sentence may be imposed:

“(1) When a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, within 10 years, excluding time spent in custody, and such charges are separately brought and tried and arise out of different series of acts; or
(2) When a defendant is convicted of any felony and the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2(b).

Poree argues, first, that he was not eligible for an extended-term sentence since his prior convictions were for offenses which were not classified as Class X offenses at the time of the prior convictions. In People v. Butler (1979), 78 Ill. App. 3d 809, 396 N.E.2d 1374, the court considered the same argument made here and held a defendant convicted of armed robbery in 1978 eligible for an extended-term sentence based upon a 1972 armed robbery conviction even though armed robbery was classified as a Class 1 felony in 1972. Butler did not focus on the legislative alteration of the classification of the crime of armed robbery, but rather on the fact of the defendant’s prior conviction for the same offense and held that the two convictions were for “the same or greater class offense.” We adopt the reasoning of the Butler court that “[Qor appellant to argue that an individual convicted in 1972 of armed robbery can now defy both the legislature and the courts by arguing that he really committed a different crime, because the classification names were distinctive, and that he should not be treated as a repeat offender for purposes of sentencing, simply because the sentences for the same crime differed at two relative points in time, is patently absurd as form over substance and contrary to the wording and intent of the legislature.” People v. Butler (1979), 78 Ill. App. 3d 809, 816.

Poree also contends that an amendment to the habitual criminal act which limits the application of that act to persons “twice convicted *** of an offense that contains the same elements as an offense now classified *** as a Class X felony or murder, and is thereafter convicted of a Class X felony or murder, committed after the 2 prior convictions ***” (Ill. Rev. Stat. 1981, ch. 38, par. 33B — 1(a)) evidences the legislature’s intent that one convicted of a Class X offense is not subject to an extended-term sentence unless the offenses for which he had been convicted in the past were classified as Class X offenses at the time of the prior convictions. Poree argues that the legislature would have similarly amended the statute here at issue if it had intended to qualify persons convicted of a Class X offense for an extended term because of prior convictions which would have been Class X offenses had they occurred after enactment of the Class X provisions of the Criminal Code.

We find such contention without merit. The Butler court correctly noted that “where the legislature deemed it proper to impose limitations on sentencing, it explicitly did so.” (People v. Butler (1979), 78 Ill. App. 3d 809, 816, 396 N.E.2d 1374; see, e.g., Ill. Rev. Stat. 1981, ch. 38, pars. 1005 — 5—3(c)(6) and 33B — 1.) We decline to here adopt a limitation on the imposition of extended-term sentences not provided for by the legislature.

Poree next argues that he was not eligible for an extended-term sentence based on his prior convictions since his prior convictions resulted from guilty pleas. “Conviction” is defined as “a judgment of conviction or sentence entered upon a plea of guilty or upon a verdict or finding of guilty ***.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 1—5.) Under the plain meaning of the statute Poree has had prior “convictions,” albeit by sentence upon guilty pleas, and such convictions render him eligible for an extended-term sentence. (People v. Eddington (1983), 117 Ill. App. 3d 953; People v. Baker (1983), 114 Ill. App. 3d 803, 448 N.E.2d 631.) We therefore find this argument without merit.

Finally, Poree argues that he did not engage in any exceptionally brutal or heinous behavior indicative of wanton cruelty as a participant in the robbery. In imposing the extended-term sentence the trial court here expressly relied upon Poree’s convictions within the last 10 years for felonies of the same or greater class and upon its finding that the defendant’s offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. Sentencing decisions are matters of judicial discretion and must be accorded great deference and weight. (People v. Willingham (1982), 89 Ill. 2d 352, 364, 432 N.E.2d 861.) Absent an abuse of that discretion a reviewing court may not reduce the sentence imposed as long as it is within statutory limits. See People v. Gallardo (1983), 112 Ill. App. 3d 764, 445 N.E.2d 1213.

The instant record supports the trial court’s finding that Poree was within the last 10 years convicted of a felony of the same or greater class as the instant conviction. Accordingly, the imposition of an extended-term sentence was proper under the statute, regardless of whether the court erred in characterizing his conduct as “brutal or heinous.” Therefore, we are unable to find that the court abused its discretion in imposing an extended-term sentence.

For all the foregoing reasons, the judgment is affirmed.

Affirmed.

LORENZ and SULLIVAN, JJ., concur.


author: JUSTICE SULLIVAN

text:
    HAROLD F. MOTZ et al., Plaintiffs-Appellants, v. CENTRAL NATIONAL BANK, Trustee, et al., Defendants-Appellees.
    First District (5th Division)
    No. 83-631
    Opinion filed November 18, 1983.

      Lawrence T. Stanner and Daniel M. Houlihan, both of Chicago, for appellants.
    Andrew D. Thomas, Gregory Prosen, and Clark D. Forsythe, all of Ho-mewood, for appellees.
   JUSTICE SULLIVAN

delivered the opinion of the court:

This appeal is from summary judgment for defendants in an action to set aside the sale of plaintiffs’ beneficial interest in a land trust and in a consolidated action in forcible entry and detainer brought by defendants against plaintiff Harold Motz (Harold). Plaintiffs contend that summary judgment was improperly granted. In the alternative, they maintain that the trial court erred in ruling that they were not entitled to a homestead exemption.

It is undisputed that plaintiffs purchased the subject property, a single-family residence located in Glenwood, Illinois, as joint tenants in 1966, assuming a $27,000 mortgage as part of the consideration therefor. In 1968, the property was deeded to Steel City National Bank of Chicago (Steel City), as trustee under Trust No. 562 (the Steel City trust), with plaintiffs as sole beneficiaries thereunder. Subsequently, plaintiffs encountered financial difficulties, and Harold sought a loan from Steel City, signing a 60-day promissory note on October 7, 1980, secured by a purported pledge of 100% of the beneficial interest in the Steel City trust. Harold was unable to pay the note when it became due, and the debt was refinanced by a 180-day promissory note in the total amount of $19,141.57, again secured by a purported pledge of 100% of the beneficial interest in the Steel City trust. Each note was signed solely by Harold. When the loan was not repaid, Steel City sold the beneficial interest at public sale on January 8, 1982, subject to the prior mortgage, then in default, to Arthur M. Heller (Heller) acting as nominee of Central National Bank, as trustee (CNB) under Trust No. 24962 (the CNB trust), for $22,501 — one dollar more than the amount then due Steel City under the defaulted note.

Plaintiffs received notification of the sale to Heller, and Heller, as agent of Magna Management Company (Magna), offered to rent the premises to plaintiffs under a month-to-month lease. When plaintiffs refused that offer, Magna and CNB brought a forcible entry and de-tainer action against Harold on February 5, 1982. Shortly thereafter, plaintiffs filed a complaint seeking to set aside the sale of the beneficial interest in the subject property, and the two actions were consolidated at Harold’s request.

Plaintiffs’ amended complaint alleged in pertinent part that the property in question had a fair market value of $100,000, and that Steel City failed to sell the beneficial interest therein in a commercially reasonable manner, as required by section 9 — 504 of the Uniform Commercial Code (the Code) (Ill. Rev. Stat. 1981, ch. 26, par. 9 — 504), in that it failed to make reasonable efforts to attract bidders likely to bid on the property, imposed unreasonable terms of sale-making the property extremely unattractive to most potential bidders, sold the property for a grossly inadequate amount in a one-bidder sale, and otherwise conducted the sale in a commercially unreasonable manner. Plaintiffs further alleged that Heller knew that the sale was not conducted in a commercially reasonable manner and was defective, and that he collusively entered into the transaction with Steel City.

Defendants CNB and Magna, without answering the amended complaint, moved for summary judgment in both actions, maintaining that there were no genuine issues as to any material facts in either, and asserting also that plaintiffs’ complaint failed to state a cause of action against them. In support thereof, defendants submitted Heller’s affidavit, which states in pertinent part that he is a beneficiary under the CNB trust; that he operates a realty and management business, doing business as Magna Management Company; that he became aware of the sale of plaintiffs’ beneficial interest through a public notice published in a newspaper of general circulation; that he was the only bidder to appear at Steel City’s offices at the time specified in the public notice; that he bid and paid $22,501 for the 100% beneficial interest in plaintiffs’ land trust; that he caused Steel City, as trustee under the Steel City trust, to convey its legal and equitable title to CNB under the CNB trust; that the public sale was conducted in the usual and customary practice of such financial institutions; that he did not wrongfully collaborate with Steel City as trustee; and that he gave good and valuable consideration and was a bona fide purchaser for value.

The trial court granted defendants’ motions for summary judgment in both actions and awarded possession of the subject premises to Heller, ordering plaintiffs to pay $15 per day rent to Heller from the date of judgment to the date they vacated the premises. Plaintiffs’ post-trial motion seeking vacation of the order or, in the alternative, modification thereof to provide compensation for their homestead rights, was denied, and this appeal followed.

Opinion

Plaintiffs contend that the summary judgments were improperly granted. They argue (a) that defendants have failed to negate the allegations of their complaint or set forth facts which would entitle them to summary judgment as a matter of law; and (b) that defendants have failed to establish their entitlement to summary judgment in the forcible entry and detainer action, because there were questions of fact as to the validity of the sale.

On a motion for summary judgment, the trial court must determine whether there is a genuine issue as to any material fact that requires a trial. (Bezin v. Ginsburg (1978), 59 Ill. App. 3d 429, 375 N.E.2d 468.) The motion should be granted where the pleadings, exhibits, depositions, and affidavits of record show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1005.) However, because this is a drastic measure, it is to be granted only where the evidence, when construed most strongly against the moving party, establishes clearly and without doubt his right thereto. (Marquette National Bank v. Heritage Pullman Bank & Trust Co. (1982), 109 Ill. App. 3d 532, 440 N.E.2d 1033; Pitler v. Michael Reese Hospital (1980), 92 Ill. App. 3d 739, 415 N.E.2d 1255.) Furthermore, where the movant seeks to establish evidentiary facts by way of affidavit, Supreme Court Rule 191 requires that the affidavits relied upon consist of facts admissible in evidence, not mere conclusions (87 Ill. 2d R. 191); and although facts in an affidavit which are not contradicted by counteraffidavit will be taken as true despite contrary averments in the pleadings (Marquette National Bank v. Heritage Pullman Bank & Trust Co. (1982), 109 Ill. App. 3d 532, 440 N.E.2d 1033), the movant must present evidence which precludes any possible liability before the party opposing summary judgment is required to present some factual basis by way of counteraffidavit which would arguably entitle him to judgment (see Cohen v. Washington Manufacturing Co. (1979), 80 Ill. App. 3d 1, 398 N.E.2d 1202). Thus, we have held that “even though the party opposing the motion for summary judgment fails to file counteraffidavits, the moving party should not be awarded summary judgment unless the affidavits filed in support of the motion establish the judgment as a matter of law.” Marquette National Bank v. Heritage Pullman Bank & Trust Co. (1982), 109 Ill. App. 3d 532, 535, 440 N.E.2d 1033,1035-36.

In the instant action, plaintiffs have relied upon the allegations in their pleadings and various exhibits of record, and have not filed any counteraffidavits. Therefore, we must take as true the facts, but not the conclusions, contained in Heller’s affidavit in support of the motion in reviewing the trial court’s granting of summary judgment. The parties agree that the sale in question is governed by article 9 of the Code, relating to secured transactions. (Ill. Rev. Stat. 1981, ch. 26, par. 9 — 101 et seq.) Plaintiffs’ complaint relies in particular on section 9 — 504, which provides in relevant part that “every aspect of the [sale of collateral upon default] including the method, manner, time, place and terms must be commercially reasonable” (Ill. Rev. Stat. 1981, ch. 26, par. 9 — 504(3)) and that, where the secured party fails to comply with these requirements, a purchaser at the sale takes free of all rights and interests of the debtor only if “in the case of a public sale *** the purchaser has no knowledge of any defects in the sale and *** he does not buy in collusion with the secured party ***.” Ill. Rev. Stat. 1981, ch.26, par. 9-504(4)(a).

Plaintiffs’ amended complaint alleges that the terms of the sale and the price received were commercially unreasonable, that Heller knew of these defects, and that he purchased in collusion with the secured party — Steel City. Defendants countered these allegations with Heller’s affidavit wherein he states that he learned of the sale from a public notice in a newspaper of general circulation. He does not indicate what newspaper contained the notice, and the only such notice appearing in the record advertises a sale to take place in October 1981; whereas, it is undisputed that the sale in question took place on January 8, 1982. Nevertheless, that notice does contain the terms which plaintiffs allege are commercially unreasonable; therefore, it appears that Heller did have knowledge of those terms at the time of the sale. Plaintiffs’ amended complaint further alleges that the sale was commercially unreasonable because Heller was the sole bidder and because the property in question had an estimated fair market value of $100,000 but was sold for only $22,501.

While it appears from his affidavit that Heller had knowledge of the terms, price, and method of sale which plaintiffs allege were commercially unreasonable, knowledge of these defects alone is insufficient, as the purchaser also must act in collusion with the secured party. Here, although plaintiffs allege such collusion, Heller’s affidavit only denies collusion with Steel City, as trustee. It is our view that this denial is insufficient, since it is clear from the record that in selling the beneficial interest, Steel City was acting in its capacity as a secured party under the security agreement, not as trustee under the Steel City land trust. Absent that security agreement, Steel City had no power as trustee to sell the beneficial interest; it could only deal with the title to the property as directed by the beneficial owners.

Since Heller’s affidavit fails to establish that he did not know of the alleged defects in the sale or that he did not purchase in collusion with the secured party, summary judgment was proper only if the evidence established that Steel City’s disposition of the collateral was, contrary to plaintiffs’ allegations, commercially reasonable. Heller’s affidavit seeks to establish this by his averment that “the public sale was conducted in the usual and customary practices of such financial institutions,” apparently relying on section 9 — 507 of the Code, which provides in relevant part that “[i]f the secured party *** sells the collateral in the usual manner in any recognized market therefor * * * or if he has otherwise sold in conformity with reasonable commercial practices among dealers in the type of property sold he has sold in a commercially reasonable manner.” (Ill. Rev. Stat. 1981, ch. 26, par. 9 — 507.) However, Heller’s affidavit contains no basis for his conclusion that the sale was conducted in “the usual and customary” manner of “such financial institutions”; nothing herein establishes his expertise in such matters, or his qualifications to give his opinion as to what is or is not “usual and customary” among banking institutions in the sale of a beneficial interest in a land trust pursuant to section 9 — 504. Because Heller’s statement constitutes a conclusion rather than a fact admissible into evidence, as required by Supreme Court Rule 191 (87 Ill. 2d R. 191), it is our view that defendants have failed to establish their entitlement to judgment as a matter of law, that a genuine issue of material fact existed with regard to the commercial reasonableness of the sale, and that summary judgment was therefore improper.

Furthermore, although neither party has raised the question here, we note that genuine issues of material fact exist as to whether Steel City had an enforceable security interest in, and was therefore able to sell, Emma Motz’ interest in the subject property, as well as whether defendants were entitled to possession as against Emma. It is clear from the pleadings and exhibits before the trial court that Emma and Harold owned the property as joint tenants but only Harold signed the security agreement. Section 9 — 203 of the Code provides in part that “a security interest is not enforceable against the debtor or third parties with respect to the collateral and does not attach unless” (a) the debtor has signed the security agreement; (b) value has been given; and (c) “the debtor has rights in the collateral.” (Ill. Rev. Stat. 1981, ch. 26, par. 9 — 203.) The owner of property may become a “debtor” for purposes of the Code by pledging his property as collateral for the debt of another (see Ill. Rev. Stat. 1981, ch. 26, par. 9— 112), but the Uniform Commercial Code Comment to section 9 — 112 indicates that “[wjhether a person who does not own property has authority to encumber it for his own debts *** [is a matter] to be decided under other rules of law and [is] not covered by this section” (emphasis added) (Ill. Ann. Stat., ch. 26, par. 9 — 112, Uniform Commercial Code Comment, at 92 (Smith-Hurd 1974)), and the Illinois Comment to this section indicates that even where a third party has authorized the use of his property as collateral for the debt of another, the security agreement is enforceable as against the third party only if he has signed the agreement (Ill. Ann. Stat., ch. 26, par. 9— 112, Illinois Code Comment, at 91 (Smith-Hurd 1974)).

A number of courts in other jurisdictions, in construing sections 9 — 203 and 9 — 112 and the comments pertaining thereto, have held that “[o]ne without authority to encumber the property of another can not grant a valid security interest in such property” (Val-U Construction Co. of South Dakota, Inc. v. Contractors, Inc. (1983), 213 Neb. 291, 295, 328 N.W.2d 774, 777; see also Towe Farms, Inc. v. Central Iowa Production Credit Association (S.D. Iowa 1981), 528 F. Supp. 500) and that, even if the owner of the collateral may be considered a debtor for purposes of section 9 — 203 by reason of his authorization of the use of his property as collateral, a purported security interest is enforceable against him only if the security agreement has been signed by him (Baystate Drywall, Inc. v. Chicopee Savings Bank (1982), 385 Mass. 17, 429 N.E.2d 1138), although the true owner may be estopped from denying the creation or existence of a security agreement (In re Pubs, Inc. (7th Cir. 1980), 618 F.2d 432). Furthermore, we note that in the case of joint tenants, other courts have held that the signing of a security agreement by only one of the joint tenants without the authorization or consent of the co-tenant, affects only the interest of the signing tenant, and that the ownership rights of the nonsigning co-tenant are superior to those of the secured party. Clearfield State Bank v. Contos (Utah 1977), 562 P.2d 622.

We believe that the same reasoning is applicable under the Illinois Code, since the rules of law stated by the above jurisdictions are identical to the rules of law which obtain in this State; namely, that an assignor can convey no greater title or interest than he possesses (Angelina County Lumber Co. v. Michigan Central R.R. Co. (1929), 252 Ill. App. 82) and that "an act or contract by one joint tenant respecting the joint property without the authority or consent of his co-tenants cannot bind or prejudicially affect the latter” (23 Ill. L. & Prac. Joint Tenancy sec. 23 (1979); see Jeffers v. Brua (1963), 40 Ill. App. 2d 156, 189 N.E.2d 374). Therefore, since Emma is a joint tenant, did not sign the security agreement, and no facts thus far presented establish that she authorized or consented to the pledge of her interest as collateral or is estopped to deny the validity of the agreement, summary judgment affirming the sale of 100% of the beneficial interest and granting possession to defendants was improper.

As a general rule, Supreme Court Rule 341(e)(7), which provides that an issue not raised by the appellant is deemed waived, would preclude our consideration of this latter issue. (87 Ill. 2d R. 341(e)(7).) However, Supreme Court Rule 366, which is analogous to the plain error doctrine in criminal cases (Schutzenhofer v. Granite City Steel Co. (1982), 93 Ill. 2d 208, 443 N.E.2d 563) provides that “[i]n all appeals the reviewing court may, in its discretion, and on such terms as it deems just *** (5) enter any judgment and make any order *** and grant any relief *** that the case may require.” (87 Ill. 2d R. 366.) It has been held that Rule 366 “recognize[s] that the responsibility of a reviewing court for a just result and for the maintenance of a sound and uniform body of precedent may sometimes override the considerations of waiver that stem from the adversary character of our system.” (Hux v. Raben (1967), 38 Ill. 2d 223, 225, 230 N.E.2d 831, 832; see also Pritz v. Chesnul (1982), 106 Ill. App. 3d 969, 436 N.E.2d 631.) It is our view that, in the instant case, a just result will not be reached unless the question of Emma Motz’ rights is addressed. Under the facts thus far developed in the trial court, defendants have failed to present evidence which would establish that an enforceable security agreement existed authorizing sale of the entire beneficial interest or that they were entitled to possession as against Emma. Moreover, our determination herein in no way precludes defendants from presenting evidence on this issue, since they are entitled to present such facts as exist upon remand of this cause. In addition, the issues presented by the facts now before us are questions never before considered by our courts, and we believe that resolution thereof upon a full factual record is important to the development of a sound body of precedent.

In the light of our disposition of the first issue raised by plaintiffs, it is unnecessary at this time to address their alternative argument.

For the reasons stated, the order of the trial court granting summary judgment to defendants is reversed, and the cause is remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded for further proceedings.

WILSON, P.J., and LORENZ, J., concur.

      The action remains pending in the trial court as to Steel City.