author: JUSTICE McGLOON

text:
    JOSEPH D. CAPUTO, Plaintiff-Appellant, v. THE CITY OF CHICAGO et al., Defendants-Appellees.
    First District (1st Division)
    No. 82—500
    Opinion filed March 7, 1983.
    J. Peter Dowd, of Jacobs, Burns, Sugarman & Orlove, of Chicago, for appellant.
    Stanley Garber, Corporation Counsel, and Jeremiah Marsah, John L. Conlon, and Rebecca R. Pallmeyer, all of Hopkins & Sutter, both of Chicago (Jerome A. Siegan, Assistant Corporation Counsel, of counsel), for appellees.
   JUSTICE McGLOON

delivered the opinion of the court:

Plaintiff appeals from the denial of his motion for attorney fees filed under the Civil Rights Attorney’s Fees Awards Act of 1976 (42 U.S.C. sec. 1988 (1976)). On appeal, plaintiff contends (1) the motion for fees was timely filed; (2) the trial court abused its discretion in denying the motion; and (3) the amount of fees was not excessive.

We affirm.

Plaintiff Joseph Caputo was employed by the city of Chicago as a traffic maintenance supervisor in the Department of Streets and Sanitation. On August 27, 1981, he was discharged from his employment without notice or a hearing. On September 16, 1981, plaintiff filed an action seeking reinstatement. His complaint alleged that he should not have been discharged without notice and a hearing because the Chicago Municipal Code and Personnel Rules grant these rights to career service employees and the Federal Civil Rights Act of 1971 prohibits deprivation, under color of State law, of any citizens privileges and rights secured by the United States Constitution or Federal law.

Plaintiff returned to work on September 17, 1981, pursuant to a temporary restraining order entered by the trial court. After a hearing on November 25, 1981, the trial court entered an order finding that under the Municipal Code of the city of Chicago, plaintiff could not be deprived of his employment status without notice and a hearing. The order entered by the trial court also provided that other relief requested by Caputo was denied. The order was made final and appealable.

Within 30 days of the entry of the order, plaintiff filed a motion requesting that defendants be ordered to reimburse plaintiff for wages and benefits lost between the time of his discharge and reinstatement and to pay costs, including reasonable attorney fees, as allowed by the Civil Rights Attorney’s Fees Awards Act of 1976 (42 U.S.C. sec. 1988 (1976)). The trial court granted that part of the motion pertaining to lost wages and benefits. However, plaintiff’s request for attorney fees was denied on the ground that it was not timely filed. The trial court believed the matter should have been raised and evidence presented thereon during the hearing on the merits.

First, plaintiff contends his motion was timely filed. Defendants concede that on the basis of White v. New Hampshire Department of Employment Security (1982), 455 U.S. 445, 71 L. Ed. 2d 325, 102 S. Ct. 1162, the trial court’s finding on this issue was erroneous. It is clear in White that motions filed under 42 U.S.C. sec. 1988 (1976) may be filed after the resolution of the case. Thus, the trial court’s denial of plaintiff’s motion for fees cannot be upheld on this basis.

Plaintiff next contends that the trial court abused its discretion in denying his motion for fees. He argues that under 42 U.S.C. sec. 1988 (1976), attorney fees are broadly available in actions brought in State and Federal courts against State officials and administrators for violations of Federal statutory and constitutional rights and should be granted almost as a matter of course. In support of this argument, he cites Bond v. Stanton (7th Cir. 1980), 630 F.2d 1231, Brown v. Stanton (7th Cir. 1980), 617 F.2d 1224, and Dawson v. Pastrick (7th Cir. 1979), 600 F.2d 70. Additionally, plaintiff contends that under Maher v. Gagne (1980), 448 U.S. 122, 65 L. Ed. 2d 653, 100 S. Ct. 2570, fees may be awarded for prevailing on his statutory, non-civil-rights claim because the claim was pendent to a Federal constitutional claim.

Initially, we note that the trial court did not consider this issue in ruling on plaintiff’s motion. However, our affirmance of the trial court’s ruling is based on this issue and is proper if the ground appears in the record, regardless of the actual findings and rulings of the trial court. Stach v. Sears, Roebuck & Co. (1981), 102 Ill. App. 3d 397, 429 N.E.2d 1242.

Returning to the issue raised by plaintiff, we acknowledge that in the cases cited by him, attorney fees were awarded to claimants even though the actions were not actually decided on constitutional grounds. But we find they do not support an award of fees in this case. In Bond v. Stanton and Brown v. Stanton, the claimants brought actions against the Indiana State Department of Public Welfare under 42 U.S.C. sec. 1983 (1976) and alleged that defendant’s actions violated the Federal Social Security Act (42 U.S.C. sec. 1396 et seq. (1976)). The cases were decided on Federal statutory rather than constitutional grounds, but the courts held that the Fees Act was intended to extend to statutory claims asserted under 42 U.S.C. sec. 1983 (1976). Similarly, in Dawson v. Pastrick, plaintiffs claimed that defendant’s conduct violated the thirteenth and fourteenth amendments (42 U.S.C. secs. 1981, 1982 (1976)) and title VII of the Civil Rights Act of 1964 (42 U.S.C. sec. 2000e (1976)). Although a consent decree was entered without a finding regarding violations of plaintiff’s constitutional rights, the court nonetheless held that attorney fees should have been awarded because the action was brought to enforce a Federal right under 42 U.S.C. sec. 1981 (1976). Also, in Ma-her v. Gagne, the court held that fees may be awarded under 42 U.S.C. sec. 1988 (1976) when claimants prevail in an action through settlement and constitutional issues remained in the case until the dispute was settled.

The distinguishing features of the aforementioned cases are that they either were decided on Federal statutory grounds or were actions filed to enforce Federal constitutional or Federal statutory rights. None involved claims based on State or local law as does the case at bar. Certain claims alleging deprivations of Federal statutory rights may be filed in State courts and fees authorized under 42 U.S.C. sec. 1988 (1976) are an appropriate part of the remedy in such cases. (Maine v. Thiboutot (1980), 448 U.S. 1, 65 L. Ed. 2d 555, 100 S. Ct. 2502.) However, even in Maine, the action was. decided on Federal statutory grounds. In view of these distinctions, we find that our State courts should award attorney fees under 42 U.S.C. sec. 1988 (1976) only in the following instances: (1) where Federal statutory or constitutional law is the basis for a decision in favor of a claimant, or (2) where Federal law remains intimately involved in the case until a settlement or consent decree is entered into.

The case at bar was decided solely on the basis of the Municipal Code of the city of Chicago. Our review of the record reveals the plaintiff presented no evidence regarding the alleged violation of his constitutional rights and the constitutional question was not considered by the trial court in resolving the controversy. Under similar circumstances, the court in Bastían v. Personnel Board (1982), 108 Ill. App. 3d 672, 439 N.E.2d 142, found that an award of attorney fees under 42 U.S.C. sec. 1988 (1976) was not warranted. Furthermore, the trial court actually entered a finding against plaintiff on his Federal constitutional claim. Thus, we find no basis for the award of fees to plaintiff under the Civil Rights Attorney’s Fees Awards Act of 1976 and find no error in the trial court’s ruling on plaintiff’s motion.

We further note the general rule in Illinois regarding recovery of attorney fees is that such fees are not recoverable unless permitted by statute or a contractual agreement. (Kerns v. Engelke (1979), 76 Ill. 2d 154, 390 N.E.2d 859; Hamer v. Kirk (1976), 64 Ill. 2d 434, 356 N.E.2d 524.) Plaintiff has not alleged that attorney fees are recoverable in this case under either of these means, nor have we found any basis for such recovery.

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

Judgment affirmed.

GOLDBERG and CAMPBELL, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES J. WILLIAMS, Defendant-Appellant.
    First District (1st Division)
    No. 81—1543
    Opinion filed March 7, 1983.
    — Rehearing denied March 28, 1983.
    Steven Clark and Gordon H. Berry, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Ramond Brogan, and Sara Dillery Hynes, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGLOON

delivered the opinion of the court:

Charles Williams and Ronald Acklin were charged by indictment with the murder of Barry Nance. After a separate jury trial, defendant Charles Williams was found guilty and sentenced to 60 years in the Illinois Department of Corrections. Williams appeals.

On appeal, Williams contends (1) he was not proved guilty beyond a reasonable doubt; (2) evidence of bias on the part of two witnesses was improperly excluded; (3) the trial court erred in permitting the State to use prior statements of a witness for impeachment; and (4) photographs were improperly admitted into evidence.

We affirm.

At trial, the victim’s mother Naria Nance testified that on January 3, 1979, at 12:15 a.m., her son Barry told her he was going to his girlfriend’s house. When Barry left, he was wearing a cranberry suit, multicolored shirt, high tan boots, two pairs of socks, a corduroy jacket, green trench coat, and a beret. She next saw her son’s body on January 8,1979, at the Cook County Morgue.

Chicago police officer Lawrence Dunne testified that after receiving a radio order on January 5, 1979, he went to an alley behind 12326 South Normal Avenue. He saw a large bundle of blankets atop a garbage can. Upon opening a corner of the bundle, he discovered the victim’s body. Officer Dunne identified four photos of the blanket-wrapped corpse.

Dr. Robert Stein, chief medical examiner of Cook County, performed the autopsy on Barry Nance. He testified the body was wrapped in plastic and two blankets. The victim’s ankles were bound with wire. A bicycle inner tube was tied around his knees and neck causing the deceased to lie in a fetal position. The body was clothed in blue jean shorts, a sweater, two pairs of socks and undershorts. Dr. Stein’s examination revealed that the victim had received head injuries inflicted by a blunt instrument. The blows to the head caused brain hemorrhages and contusions. A total of four lacerations appeared on the back, top and side of the head. There were numerous slash-like injuries on the victim’s torso, arms and legs and the upper and lower jaws were broken. Dr. Stein further testified that all injuries were inflicted prior to his death. He attributed death to cranial cerebral injury and trauma in association with the broken jaw and incise wounds.

Frances Wright Acklin (hereinafter referred to as Wright) was called as a court’s witness. She testified that on January 3, 1979, she resided at 12354 South Normal with her boyfriend Ronald Acklin, her nephew Denard Coats, and others. On this evening, defendant and the victim came to her home and spent the evening in the basement with Acklin. Shortly thereafter, while she and her nephew were watching television upstairs, Wright heard falling and crashing noises emanating from the basement.

During the evening, Acklin received three phone calls from a woman living in Alabama. Wright answered each call and sent Coats into the basement to tell Acklin of the calls. For 45 minutes after Acklin answered the first call, Wright heard loud noises coming from the basement. While Acklin was engaged in the second conversation, Wright heard defendant and the victim arguing. When Acklin returned to the basement,- she heard him say, “That is enough, leave him alone, let him up.” After the third phone conversation, Acklin remained upstairs to eat. When he returned to the basement, he yelled to Wright that someone had been taken home. Wright could not recall exactly what Acklin said.

Two minutes later, Acklin came upstairs and said he had to clean the basement. Ten minutes thereafter, Wright saw defendant in the living room. She had not seen him walk up from the basement and believed Coats had let defendant in through the front door. Wright then explained the basement had a door which led to the back yard.

Wright further testified that the ax, meat cleaver, club and mason’s hammer found by the police were owned by no one in particular and belonged to the house. She could not recall telling Officer Bennett that at about 1 a.m. on January 4, 1979, Acklin told her he and defendant were going to walk the victim home and that five minutes later, defendant and Acklin entered the house through the front door.

During examination by defense counsel, Wright testified she never saw blood in the basement. Until police came to her house, she was unaware that boots worn by the victim were in the basement. She slept in the basement bedroom on the morning of January 4, but did not notice the condition of the basement because the lights were off.

Denard Coats, also called as a court’s witness, testified that when the victim arrived at his home on the evening in question, he was wearing boots which he had borrowed from Coats on New Year’s Eve. After defendant and the victim went into the basement, he heard an argument concerning an ashtray which had been spilled. Forty-five minutes later, Acklin received a phone call and Coats went to tell him. Acklin and the two other men were in the basement bedroom. When Coats went into the basement to tell Acklin of the second call, he noticed blood near the bottom of the bedroom door. Coats further testified that while Acklin was engaged in the second conversation, he heard the victim and defendant arguing. The victim said, “Please don’t kill me, please don’t kill me.” Coats told Acklin about the victim’s pleas, and Acklin returned to the basement. Coats heard Acklin say, “Let him up.” Coats also told Acklin of the third phone call. The men were in the bedroom and no one was in the main basement area. Acklin remained upstairs to eat after the third phone call and then went back to the basement. When Acklin came upstairs shortly thereafter, he said defendant and the victim had gone home. Acklin then said he was going to clean the basement. Three minutes later, defendant came in the front door.

Coats was also questioned about statements he made to the police. He could not recall stating that after the third phone call, he saw defendant and Acklin with what appeared to be a body and a blanket, that he saw a bloody ax and blood on the floor, that he saw defendant and Acklin dragging a blanket-wrapped object out through the basement door, and that Acklin had asked him to clean a bloody ax.

Detective Thomas Bennett investigated the Barry Nance murder. He testified that on January 8, 1979, he and his partner went to the home at 12354 South Normal and were admitted by Frances Wright. She took the officers to the basement where Bennett observed blood stains on the floor and a chair. Bennett also found blood-stained wire, a three-foot ax, a two-foot club, and blood-stained bottles. On the main floor of the house, Bennett recovered a meat cleaver and mason’s hammer under the garbage in the kitchen. The items were in a plastic bag. Outside the house, Bennett found drag marks in the snow leading from the back entrance to the alley. He also testified to statements made to him by Wright and Coats, which Wright and Coats could not recall at trial.

After hearing the evidence, the jury returned a verdict of guilty on the charge of murder.

First, defendant contends the testimony of Wright and Coats was incredible and thus he was not proved guilty beyond a reasonable doubt. Defendant cites the following instances to support his argument: (1) Acklin answered the telephone calls upstairs, even though there was a phone in the basement; (2) Coats testified he did not see anyone in the main area of the basement, yet police found evidence of the crime there; (3) Wright did not see blood in the basement when she went to bed on the evening in question; (4) the witnesses failed to inspect the basement after Coats heard the victim plead for his life. Additionally, defendant argues that Wright’s bias in favor of Acklin (her husband at the time of trial) renders her testimony incredible.

We do not agree that the alleged infirmities in the witnesses’ testimony create a reasonable doubt of guilt, particularly in view of the other evidence presented at trial. At best, they raise questions of credibility which are matters for resolution by the jury. (People v. Warmack (1980), 83 Ill. 2d 112, 413 N.E.2d 1254; People v. Miller (1980), 79 Ill. 2d 454, 404 N.E.2d 199.) Furthermore, the jury was aware of Wright’s possible bias and undoubtedly took this factor into consideration.

Second, defendant contends the trial court erred in prohibiting his examination of Wright and Coats regarding their testimony during Acklin’s trial. We have reviewed the pertinent parts of the trial transcript and found that defendant was allowed to question the witnesses about their prior testimony. The trial court only prohibited defendant from referring to the guilty finding in Acklin’s trial and to the fact that Acklin was the defendant in that trial. Thus, it is clear that counsel’s request to use the prior testimony was in fact granted and the issue raised on this point is unwarranted.

Third, defendant contends the trial court erred in allowing the State to use for impeachment purposes Coats’ statements to Officer Bennett which incriminated defendant. As noted in the facts of this case, Coats could not recall telling Bennett that he saw Acklin and defendant with a blanket-wrapped bundle, that they dragged the bundle out of the basement, that he saw the bloody ax and that Acklin asked him to clean the ax. When the prosecution examined Officer Bennett, he testified that Coats had made these statements. Defendant argues that no foundation was laid for the introduction of the statements through Bennett and that the statements were used improperly as substantive evidence.

A proper foundation for using a prior statement for impeachment consists of informing the witness sought to be impeached of the time, place, circumstances, and substance of the statement and persons present when the statement was made. (People v. Sanders (1974), 56 Ill. 2d 241, 306 N.E.2d 865, cert. denied (1974), 417 U.S. 972, 41 L. Ed. 2d 1143, 94 S. Ct. 3178; People v. McIntosh (1979), 70 Ill. App. 3d 188, 388 N.E.2d 142.) In the case at bar, the record clearly reveals that a proper foundation was established. Coats was asked about the time, place, persons present, and substance of his statements. Fur: thermore, we cannot agree that the prosecution attempted to use Coats’ prior statements as substantive evidence as it did not dwell at length on the contents of the statement nor refer to the statement during closing arguments as evidence of guilt. Also, the trial court instructed the jury that Officer Bennett’s testimony regarding the statement was to be considered only for impeachment and not as proof of guilt. Thus, we find no error in this aspect of the trial.

Finally, defendant contends prejudicial error occurred when the trial court admitted into evidence several photographs of the victim’s body.

Fourteen photographs were admitted during trial. Four of the photos depicted the blanket-wrapped corpse atop the garbage can in the alley. Defendant did not object to the admission of these photos and thus any objections concerning these are deemed waived. People v. Eckles (1980), 83 Ill. App. 3d 292, 404 N.E.2d 358.

Regarding the admission of the remaining 10 photos, we initially note that the admission of photographs is a matter within the sound discretion of the trial court. (People v. Foster (1979), 76 Ill. 2d 365, 392 N.E.2d 6; People v. Stocks (1981), 93 Ill. App. 3d 439, 417 N.E.2d 1080.) Photographs are admissible despite their gruesome nature if they are probative of the cause of death, depict the amount of force used in the crime, or tend to corroborate or not corroborate the testimony of the pathologist or other witnesses. (People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238; People v. Stocks.) Here, two of the photos were of the corpse wrapped in the blanket. They were not gruesome and thus had no prejudicial effect. The remaining eight photographs depicted various parts of the victim’s mutilated and battered body. Several are gruesome and shocking, but each photo is relevant to the issues on the cause of death and the degree of force used in the murder. They are particularly relevant to the latter issue because they show that virtually no part of the victim’s body was left unscathed by the perpetrators of the offense. Additionally, the photos corroborate the testimony of Dr. Stein. We, therefore, find no abuse of discretion in the admission of the photographs.

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

Judgment affirmed.

O’CONNOR and CAMPBELL, JJ., concur.


text:
      In re MARRIAGE OF CLARICE ROSSI, Petitioner-Appellee and Cross-Appellant, and JOSEPH ROSSI, Respondent-Appellant and Cross-Appellee.
    First District (1st Division)
    No. 81—2942
    Opinion filed February 22, 1983.
    — Rehearing denied April 4, 1983.

      Barbara B. Hirsch, of Chicago, for appellant.
    Junie L. Sinson and Robert A. McNees, both of Barclay, Damisch & Sinson, Ltd., of Chicago, for appellee.
   JUSTICE McGLOON

delivered the opinion of the court:

Respondent Joseph Rossi appeals and petitioner Clarice Rossi cross-appeals from the financial and property dispositions of a supplemental judgment for dissolution of marriage entered December 1, 1981.

On appeal, respondent contends (1) that the judgment is contrary to law and equity because it is punitive; (2) that the trial court’s findings and orders with respect to the designation and valuation of certain assets are erroneous; and (3) that the trial court’s order awarding petitioner’s attorney fees and costs of $42,864.82 to be paid by respondent is erroneous.

On cross-appeal, petitioner contends that the property distribution is erroneous and the award of attorney fees is insufficient.

We affirm in part, reverse in part and remand with directions.

On January 30, 1979, judgment for dissolution of marriage of respondent and petitioner was entered. The matters of property settlement and maintenance were continued. On June 22, 1981, the circuit court of Cook County entered its memorandum opinion on these issues, reserving the issue of assessment of petitioner’s attorney fees. The trial court entered its final supplemental judgment for dissolution of marriage on December 1,1981, and respondent appeals.

The parties were married for 17 years prior to separating in 1978. Both parties are in their early forties. As a result of the marriage, four children were bom. Two are currently residing with petitioner.

At the time of the marriage, petitioner was an elementary school teacher. She ceased teaching to raise the parties’ family. Respondent held various jobs during the marriage. In 1971, respondent began managing Progressive Bronze Works, Inc. (PBW), a business which manufactures brass ecclesiastical supplies. Respondent is currently president and 100% shareholder of PBW.

The judgment from which this appeal and cross-appeal are taken distributed the assets as follows. Respondent was awarded: (1) 100% of the stock of PBW valued at $600,000; (2) the real estate on which PBW is situated, known as the Spaulding Avenue property, with equity valued at $73,000; (3) the beneficial interest in PBW’s pension fund, established by respondent, which had $20,184 on deposit; (4) three real estate limited partnerships for tax shelter purposes, in which respondent invested $88,180 after the judgment of dissolution was entered and which the trial court designated as non-marital property of respondent; (5) 100% of the stock of Exchem Corporation valued at $3,000; (6) furniture and personalty valued at $5,000.

Petitioner was awarded: (1) the marital residence located in Park Ridge, Illinois, with a gross equity of $130,000, subject to all mortgage payments and real estate taxes accruing after June 22, 1981; (2) $67,000, representing the sale proceeds, held in escrow, of a lot at 990 Rose Street, Park Ridge, Illinois; (3) various shares of stock held in respondent’s name valued at $47,700 on January 30, 1979; (4) sole title to a vacant lot in Delavan, Wisconsin, valued at $35,000 and subject to real estate taxes after June 22, 1981; (5) $25,200 representing the sale proceeds, held in escrow, of a 32-foot boat purchased by respondent in 1976; and (6) furniture and personalty valued at $15,000.

Respondent was also ordered to pay petitioner the principal amount of $100,000 in five equal installments plus interest at a rate of 8% per annum. The court further ordered respondent to pay $2,500 per month unallocated maintenance and child support, all extraordinary medical and dental expenses of the minor children and tuition for any of the children who desire to attend college. Respondent was also ordered to keep a $30,000 life insurance policy in effect so long as his responsibilities under the judgment had not been fulfilled. Finally, respondent was ordered to pay petitioner’s attorney fees and costs of $42,864.82.

First, respondent contends that the December 1, 1981, order is punitive and therefore contrary to law and equity. To support this contention, he argues that the order takes all his assets, with the exception of the Spaulding Avenue property, leaving him destitute. We disagree.

The total value of the marital assets, as set forth above, equals $1,121,084. Of this amount, respondent was awarded approximately $701,185 or 63%. The total value of petitioner’s award was approximately $419,900 or 37%. During oral arguments before this panel, attorneys for both parties reiterated that they agreed with the court’s valuation of the marital assets with the exception of the stock of PBW. Therefore, assuming, arguendo, that the stock of PBW is worth its book value ($263,774), respondent still received 46% of the marital assets; if valued at its net worth ($357,014), respondent received 52%.

Section 503(c) of the Illinois Marriage and Dissolution of Marriage Act (Act) requires that the court shall divide marital property in just proportions considering all relevant factors. (111. Rev. Stat. 1981, ch. 40, par. 503(c).) Cases decided under the Act have established that an equitable division of marital property is not necessarily an equal one. (In re Marriage of Borg (1981), 96 Ill. App. 3d 282, 421 N.E.2d 214; In re Marriage of Lloyd (1980), 81 Ill. App. 3d 311, 401 N.E.2d 328.) The court can properly award one spouse a greater share where the relevant factors warrant such a result. In re Marriage of Gustke (1979), 78 Ill. App. 3d 274, 397 N.E.2d 146.

The apportionment of property by the trial court will not be disturbed in the absence of an abuse of discretion. Moreover, discretion is abused only if no reasonable person would take the view of the trial court. In re Marriage of Borg (1981), 96 Ill. App. 3d 282, 287, 421 N.E.2d 214, 218.

In the instant case, the distribution of property was clearly not against the manifest weight of the evidence nor an abuse of judicial discretion.

Following a lengthy trial on the matter, the trial judge recognized that unique circumstances were presented with regard to PBW and the Spaulding Avenue property. The court noted that these two assets alone comprised over 60% of the marital assets and were, in effect, the sole income producer for all concerned. The court pointed out that the award to respondent of the business (valued at $600,000) and the land resulted in a “lopsided division of marital property” in favor of respondent. However, the court reasoned that the best interests of all concerned were served by such an award because the corporation had thrived under the direction of respondent over the years he had operated it. Furthermore, the court attempted to equalize respondent’s award by awarding petitioner the sum of $100,000. In light of these facts and statistics, we find that the trial court considered relevant factors in dividing the marital property and did not abuse its discretion.

In furtherance of respondent’s argument that the property division is inequitable, he asserts that petitioner was awarded all of the liquid assets, leaving him with heavily encumbered illiquid assets. The requirements of section 503 of the Act necessarily encompass only those assets which the court has before it and those of which it is aware. (111. Rev. Stat. 1981, ch. 40, par. 503.) Using the values found by the trial court, the marital assets are 87% nonliquid. The court awarded respondent PBW and the Spaulding Avenue property rather than forcing its liquidation or dividing it. We have held that dividing a closely held corporation is particularly disadvantageous where it would require ongoing business associations between the parties. In re Marriage of Sales (1982), 106 Ill. App. 3d 378, 436 N.E.2d 23.

As noted above, said distribution benefited both parties. As president and chief operating officer of PBW, respondent has earned an annual salary ranging from $85,000 to $115,000 per year. The court was justified in awarding PBW to respondent. Moreover, there is nothing in the court’s orders preventing respondent from liquidating the business if he so chooses.

Furthermore, we believe that the record supports the trial court’s finding that respondent himself is responsible for destroying much of the liquidity by unilaterally transferring approximately $107,000 into nonliquid assets. He should not be heard to complain.

Second, respondent contends that the trial court erred in holding that PBW is a marital asset. Respondent’s father founded PBW in 1935 and operated it until his death in October 1971. His will conveyed PBW into a testamentary trust for the benefit of respondent’s mother. About three or four weeks after respondent’s father’s death, respondent was contacted by his mother and her attorney about purchasing PBW. At approximately the same time, respondent began managing PBW on a full-time basis. In 1972, respondent incorporated Design & Forms, Inc., a business which works in conjunction with PBW. Petitioner was the secretary of Design & Forms, Inc. Shortly after its incorporation, Design & Forms, Inc. purchased PBW. The purchase agreement was signed by petitioner, as secretary of Design & Forms, Inc.

To support this contention, respondent argues that the acquisition of PBW was merely the completion of his father’s disposition scheme. He implies that his father left PBW in trust so that his mother could sell the business and receive proceeds for her support. This testimony is insufficient to establish that respondent received PBW by bequest, devise or descent. Furthermore, there is no evidence that respondent would have received PBW via the trust, into which it was conveyed, since the terms of the trust were not offered into evidence. The purchase of the stock took place during the marriage and is presumed marital property (111. Rev. Stat. 1981, ch. 40, par. 503(a)), and therefore subject to apportionment. Respondent failed to demonstrate that the acquisition of PBW fits into one of the six exceptions declared in sections 503(a). (El. Rev. Stat. 1981, ch. 40, pars. 503(aXl) through (6).) We find that the trial court properly held PBW to be a marital asset.

Third, respondent contends that the trial court erred in valuing PBW at $600,000. We begin by noting that we are unable to discern whether the trial court considered evidence subsequent to January 30, 1979 (the date the dissolution was entered). Petitioner’s expert, Mr. McCulloch, testified that $600,000 was the value of the corporation as of January 1979. However, a balance sheet dated May 31, 1980, placing the corporation’s net worth at $393,354, as well as other financial statements through June 1980, were admitted into evidence. The court also noted that the sales of the corporation grew to over a million dollars for the year ending June 1980. We are not unmindful that the economic outlook of the future and the capitalization of future earnings are important tools in the valuation of stock. However, facts existing on the valuation date should be the only ones taken into account. (Valuation of Shares of Closely Held Corporations, Tax Mgmt. (BNA), No. 22, at A-36 (1969).) In the instant case, there was data available as of the date of the dissolution. We find that the proper valuation date is January 30, 1979. To hold otherwise would have the effect of treating appreciation of the corporation subsequent to the dissolution as marital property contrary to section 503(c)(3) of the Act. Ill. Rev. Stat. 1981, ch. 40, par. 503(c)(3).

Arguing that McCulloch ignored both legal and business guidelines, respondent urges that the law recognizes the need for valuing a closely held corporation from book value. Respondent then criticizes the mathematical gymnastics performed by McCulloch in arriving at his valuation.

The Internal Revenue Service has recognized that the general approach, method and factors outlined in Revenue Ruling 59-60 may be relevant in determining the fair market value of business interests of any type. (Rev. Rui. 59-60, 1959-1 C.B. 237.) McCulloch relied on Revenue Ruling 59-60 in determining the value of PBW but failed to consider several factors including the nature of the business, the history of the business, the industry outlook, dividend paying capacity, and prior stock sales in comparison to listed companies. He believed these factors were either inapplicable or unascertainable. In an attempt to establish fair market value, McCulloch stated that earning capacity was the more important factor to consider. He applied this factor by reviewing corporate tax returns and financial statements from a five-year period, selecting the two best years and ignoring the other years. Then he “normalized” earnings by eliminating the corporate pension plan and reducing respondent’s salary. This was done in direct contravention of Revenue Ruling 59-60 which states that in analyzing the earning capacity of a company

“***[d]etailed profit and loss statements should be obtained and considered for a representative period immediately prior to the [valuation date], preferably five or more years. *** Potential future income is a major factor in many valuations of closely-held stocks, and all information concerning past income which will be helpful in predicting the future should be secured.” (Rev. Rui. 59-60,1959-1 C.B. 237, 240-41.)

Throughout McCulloch’s analysis of net sales, gross profits and operating expenses, he applied figures from only the two best years. Finally, McCulloch put a premium on respondent’s 100% ownership and valued respondent’s block of stock at 150%. This was done despite the fact that an unlisted closely held stock, in which trading is infrequent and which therefore lacks marketability, is less attractive than similar stock listed on the exchange. (Central Trust Co. v. United States (U.S. Ct. Cl. 1962), 305 F.2d 393.) Petitioner contends that the only testimony as to the fair cash market value was that of her expert, McCulloch. However, respondent’s certified public accountant testified that the corporation’s book value was $263,774 and supported his finding with certified financial statements.

Furthermore, the balance sheet for January 1979 placed the corporation’s net worth at $357,014.

This court has held that the precise rules for determining the value of closely-held stock cannot be laid down. In re Marriage of Mitchell (1981), 103 Ill. App. 3d 242, 248, 430 N.E.2d 716, 720.

Stock is usually valued at its market value, “the price which a willing purchaser will pay to a willing seller in a voluntary transaction.” (In re Estate of Voss (1973), 55 Ill. 2d 313, 315, 303 N.E.2d 9, 11; In re Marriage of Olsher (1979), 78 Ill. App. 3d 627, 635, 397 N.E.2d 488, 494.) Notably, market value is sometimes above and sometimes below the actual value of the stock. 55 Ill. 2d 313, 315; 78 Ill. App. 3d 627, 635.

From our review of the record, we cannot say that the methods used by petitioner’s expert were proper. In light of the fact that respondent’s certified public accountant placed the corporation’s net worth at slightly over one-half of petitioner’s valuation, we must remand the cause for reconsideration of value of the stock of PBW. Further, to achieve a just apportionment, modification of the previously-ordered distribution of marital property is hereby authorized as part of our mandate if, upon remand, such modification is dictated by the evidence elicited on the revaluation of the PBW stock. In re Marriage of Boone (1980), 86 Ill. App. 3d 250, 408 N.E.2d 96.

Fourth, respondent contends that in light of his inability to pay, the trial court erred in ordering him to pay petitioner’s attorney $42,864.82 for attorney fees and costs. In a dissolution proceeding, the allowance of attorney fees rests within the sound discretion of the trial court. (In re Marriage of Dwan (1982), 108 Ill. App. 3d 808, 439 N.E.2d 1005; In re Marriage of Brophy (1981), 96 Ill. App. 3d 1108, 421 N.E.2d 1308.) The party seeking the allowance of fees must show financial inability to pay and the ability of the other spouse to do so. (Dwan.) Financial inability to pay does not mean destitution. If disbursement of petitioner’s funds would exhaust her estate to undermine her economic stability, the order directing respondent to pay attorney fees will be upheld. Gasperini v. Gasperini (1978), 57 Ill. App. 3d 578, 373 N.E.2d 576.

In the instant case, the trial court found that due to the illiquidity problem caused by respondent, petitioner’s only true income is the monthly maintenance and child support she receives. To require her to sell assets and completely deplete her cash reserves to pay attorney fees would defeat the trial court’s proposed equitable distribution. Because respondent’s ability for future earnings over the years is substantially greater than petitioner’s, we find that the trial court did not abuse its discretion.

Turning next to respondent’s contention that the fees awarded were excessive, we note that the criteria for determining the amount of fees concern:

“the nature of the controversy; the question at issue; the significance or importance of the subject matter; the degree of the responsibility involved; the standing or skill of the person employed; the time and labor involved; and the relative financial positions of the parties.” (In re Marriage of Janetzke (1981), 97 Ill. App. 3d 418, 423, 422 N.E.2d 914, 919.)

In addition, the fees allowed should be limited to an amount which provides fair compensation to the attorney and which are fair to the person required to pay. In re Marriage of Brophy (1981), 96 Ill. App. 3d 1108, 421 N.E.2d 1308; Gasperini v. Gasperini (1978), 57 Ill. App. 3d 578, 373 N.E.2d 576.

Furthermore, the time charged must be necessary for proper handling of all matters involved. In the event the court finds the hours claimed are the result of unnecessary, duplicative work efforts, it must reduce the excessive hours claimed. (In re Marriage of Janetzke (1981), 97 Ill. App. 3d 418, 424, 422 N.E.2d 914, 919.) Furthermore, where the trial court determines that an extensive expenditure of time and labor were required, it may limit the amount if the person required to pay lacks the ability to do so.

Application of the foregoing principles and the matrix of factors to be considered mandates our finding that the award of $42,864.82 in attorney fees and costs is excessive and must be reconsidered. The instant case is a simple one in that grounds, custody and visitation were never in issue. However, the property settlement, permanent support and maintenance was highly contested. There was a series of assignments and reassignments of the case to numerous judges in the domestic relations division before the case was finally tried. Petitioner’s attorney appeared before Judge Monica Reynolds on 32 occasions between April 1980 and February 1981. During this period, respondent appealed two orders. Both appeals were dismissed. Judge Reynolds granted respondent’s second motion for a change of venue on February 6, 1981, and petitioner filed a motion and related petition for writ of mandamus which was also denied and dismissed summarily. The case was finally tried before Judge Wayne Olson and took five days to complete.

We are not unmindful of the fact that an attorney using dilatory tactics designed to harass and frustrate the other party’s pursuit of justice in an orderly manner may cause the opposing counsel to expend numerous hours of time in order to protect his client’s interests. However, a party should not be held accountable for payment of duplicative work efforts resulting from such tactics.

Petitioner’s attorneys’ itemized petition requested $54,608.32 representing the balance of fees and costs incurred as follows: 304.5 hours at $125 an hour for both in and out of court services rendered by the partner principally responsible for handling the case, and 176.5 hours at $80 per hour for associate counsel’s services.

An expert testifying for petitioner’s attorneys established that reasonable compensation for the services such as those rendered in the instant case would be $125 to $200 per hour for a partner’s time and $75 to $100 per hour for associate counsels’ time. The trial judge found the hourly rate charged to be well within the area of fair and reasonable considering the factors established by numerous Illinois decisions in recent years. We do not dispute the trial judge’s finding. Nor do we dispute the fact that the standing and skill of petitioners’s attorneys are well recognized.

After reviewing over 325 individual time records, the trial judge properly disallowed or reduced time charged for tax advice, waiting and telephone calls. We have also thoroughly reviewed the record and find that additional hours should be stricken or reduced as set forth below.

In mandamus proceedings damages and costs are not allowed unless the plaintiff succeeds in obtaining a judgment of mandamus. (111. Rev. Stat. 1981, ch. 87, par. 5.) In the instant case the mandamus petition was dismissed and the hours charged in relation to said matter should be stricken. Any time charged for the repeated presentation of identical motions should be stricken, as well as other time charged for duplicative work efforts. Finally, the trial court should reconsider respondent’s ability to pay and adjust the fees accordingly.

In view of our disposition of the case, we need not address respondent’s further arguments.

For the foregoing reasons, we affirm the trial court’s finding that PBW was a marital asset. We reverse the trial court’s finding that the fair market value of PBW on January 30, 1979, was $600,000 and remand the cause for a new hearing. Upon remand, if the court finds the value of PBW to be less than $600,000, the court may redistribute the marital property to achieve a more equitable distribution. Further, we affirm, in part, the trial court’s finding that respondent shall pay petitioner’s attorney fees, but reverse that part of the order awarding petitioner’s attorneys $42,864.82. We remand the cause for further consideration consistent with this opinion.

Judgment affirmed in part, reversed in part; cause remanded.

GOLDBERG and O’CONNOR, JJ., concur.


author: JUSTICE MEJDA

text:
    BESCOR, INC., Plaintiff-Appellant, v. CHICAGO TITLE & TRUST COMPANY, Defendant-Appellee .—(Parkway Bank & Trust Company et al., Defendants.)
    First District (5th Division)
    No. 81—2987
    Opinion filed February 25, 1983.
    A. Denison Weaver, of Chicago, for appellant.
    Stanley M. Cahn and John J. Foster, of Chicago, for appellee.
   JUSTICE MEJDA

delivered the opinion of the court:

Plaintiff appeals from an order granting a motion to dismiss counts XI and XIII of its second amended complaint directed against defendant Chicago Title & Trust Company (hereinafter Chicago Title). The motion to dismiss was brought pursuant to both sections 45 and 48(l)(i) of the Civil Practice Act (111. Rev. Stat. 1981, ch. 110,. pars. 45, 48(l)(i), now sections 2 — 615 and 2 — 619(a)(9) of the Code of Civil Procedure (111. Rev.. Stat. 1981, ch. 110,. pars. 2 — 615, 2 — 619(a)(9)), and was granted under these sections simultaneously. The dismissed' counts alleged acts and omissions by Chicago Title in its capacity as construction loan escrowee and further alleged that such conduct constituted both negligence and a breach of trust, and that plaintiff sought damages in the amount of $30,685. The following factual summary is taken from the pleadings.

Plaintiff furnished electrical construction work on a construction project in Cook County, Illinois, for which he claims he has not been paid. The actors germane to the appeal are the owner of the project, Wheeling Trust & Savings Bank; the construction lender, Columbia National Bank; the general contractor, Joost-Anonich Construction Corporation; the disbursing agent, or escrowee, of the construction loan proceeds, Chicago Title, the defendant; the subcontractor, Bescor, Inc., plaintiff; and Roy A. Swanson, the so-called “unauthorized employee” of plaintiff and alleged forger. The complaint refers to the construction contract, the subcontract, and to the construction loan escrow trust agreement (the escrow agreement), but none of the foregoing documents nor any part, are attached as an exhibit or recited therein. (See 111. Rev. Stat. 1981, ch. 110, par. 2 — 606.) However, the escrow agreement has been made a part of the instant record as an attachment to defendant’s motion to dismiss. Thus, reference to the relevant provisions of this instrument will be made as necessary in our discussion below.

Count XI of plaintiff’s amendment to the second amended complaint recited that under the construction agreement Joost-Anonich, as general contractor, agreed with Wheeling Trust & Savings Bank, the owner, to perform construction work on the owner’s property; that in turn the general contractor and plaintiff had executed an agreement whereby plaintiff, as subcontractor, was to undertake the electrical portion of the construction project; that on December 18, 1978, the owner appointed Chicago Title as its agent for disbursing the construction funds to the various contractors, including plaintiff; that the sum of $360,000 was thereafter deposited by the owner through its lender with Chicago Title with instructions to make disbursements directly to the various contractors upon the presentation of the necessary documentation evidencing completion of the work; that it was the duty of Chicago Title, as disbursing agent of the owner, to exercise the “highest degree of care” in accordance with the authority extended by the owner; that Chicago Title breached this duty by negligently disbursing the sum of $30,685 to Swanson, without first ascertaining his authority to accept payment on behalf of plaintiff; and finally, that as a direct and proximate result of the foregoing, the above sum was converted by Swanson for his own use and benefit, and plaintiff was thereby deprived of payment for his work.

The second count brought against Chicago Title, count XIII, alleged that on December 18, 1979, the owner entered in to a trust agreement with Chicago Title for the benefit of the various contractors, including plaintiff; that under the trust agreement, Chicago Title accepted $360,000 deposited by the owner through its lender and agreed to hold this amount for the benefit of the various contractors employed on the construction project, and to disburse such funds directly to the contractors upon presentation of the necessary documentation evidencing completion of the work; that Chicago Title breached this trust when it failed to disburse the funds due and owing to plaintiff; and that as a result plaintiff was deprived of payment for its work on the project.

Opinion

Chicago Title’s motion to dismiss was grounded on plaintiff’s failure to state a cause of action and on other affirmative matters presented by way of affidavits. We think that the trial court properly dismissed the claims for damages against this defendant since the complaint clearly fails to state any cause of action against Chicago Title, the disbursing agent (escrowee), for negligence, for breach of trust, or under any other legal theories urged by plaintiff on appeal.

Plaintiff contends that its count XI states a cause of action in negligence. Chicago Title denies that it owed any duty to plaintiff under any negligence theory.

To survive a motion to dismiss for failure to state a cause of action, the complaint must set out the existence of a duty owed by the defendant to the plaintiff, a breach of that duty and an injury proximately resulting from the breach. (Cunis v. Brennan (1974), 56 Ill. 2d 372, 374, 308 N.E.2d 617, 618.) It is not sufficient, however, that a complaint merely allege a duty, but the pleader must allege facts from which the law will raise a duty. (Bell v. Village of Midlothian (1980), 90 Ill. App. 3d 967, 414 N.E.2d 104.) It is also insufficient that there has been a breach of some duty unless such duty was owing to the person injured. See generally 28 Ill. L. & Prac. Negligence sec. 22 (1957).

“1. A is given money by P and directed to pay it to T. A fails to pay the money to T. A is not thereby liable to T.”

Count XI alleges that Chicago Title, “as the disbursing agent of defendant Wheeling Trust,” the owner, owed a duty to exercise the “highest degree of care” in making disbursements in accordance with the authority “extended by the defendant Wheeling Trust.” Taking these allegations as true, we believe plaintiff has merely pleaded the existence of some duty owed by Chicago Title, as disbursing agent, to the owner, its principal. Absent in this count, however, are any allegations of fact establishing a duty on the part of this defendant owing to plaintiff. Traditionally, an agent is not liable for injuries to third persons resulting solely from a mere breach of duty which he owes to his principal, unless at the same time the agent owes a separate duty to the third party. (See Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1971), 2 Ill. App. 3d 906, 274 N.E.2d 507, rev’d on other grounds (1973), 54 Ill. 2d 511, 301 N.E.2d 729, cert. denied (1976), 424 U.S. 943, 47 L. Ed. 2d 349, 96 S. Ct. 1411; see also Restatement (Second) of Agency sec. 352 (1957).) An illustrative example of the above rule, and one which closely parallels the situation presented before us, is cited in section 352 of the Restatement (Second) of Agency as follows:

Thus, under this rule limiting an agent’s tort liability plaintiff, in the instant case, was required to allege facts from which a legal duty would arise apart and distinct from those duties pleaded merely establishing the agent’s duties to its principal. We find that plaintiff has failed to allege any such facts which if proved would establish a duty owing from the defendant as “disbursing agent” to the plaintiff. Without such a duty there can be no recovery. (See generally Beaver v. Union National Bank & Trust Co. (1980), 92 Ill. App. 3d 503, 414 N.E.2d 1339.) The trial court therefore was correct in dismissing count XI.

Plaintiff next contends that its count XIII states a cause of action for breach of the escrow trust of which it claims, on appeal, to be an intended beneficiary. Chicago Title denies that the construction loan escrow trust agreement gave rise to any rights in plaintiff based on a third-party beneficiary or express trust theories.

Both parties accept the general rules that an escrowee, like a trustee, owes a fiduciary duty to act only according to the terms of the escrow instructions (Toro Petroleum Corp. v. Newell (1974), 33 Ill. App. 3d 223, 338 N.E.2d 491), and that an escrowee may become the trustee of both the party making the deposit and the one for whose benefit it is made. (Stark v. Chicago Title & Trust Co. (1942), 316 Ill. App. 353, 45 N.E.2d 81.) We find that plaintiffs count XIII, however, is unaided by the application of these two general principles. First, the fiduciary duty rule as discussed in Toro Petroleum Corp. relates only to parties to the escrow agreement and is therefore not supportive of plaintiff’s claim under a third-party beneficiary status. Secondly, applying general contract and trust principles, we find that plaintiff’s theories of recovery are without merit.

As to plaintiff’s allegation in count XIII that the escrow funds were entrusted to Chicago Title “for the benefit of the various contractors *** including the plaintiff,” we find this unsupported allegation insufficient to establish that the subcontractors were more than incidental beneficiaries of the instant construction loan escrow trust. Plaintiff has not pleaded that it was a party to the escrow trust agreement. As a general rule, only a party to a contract or those in privy with him may sue to enforce a contract. In order for a third party to enforce a contract, it must be shown that there was a contractual intent to benefit the third person, or, in other words, that the third party was the direct and intended beneficiary of the contract. (People ex rel. Resnik v. Curtis & Davis, Architects & Planners, Inc. (1980), 78 Ill. 2d 381, 400 N.E.2d 918; Dale v. Groebe & Co. (1981), 103 Ill. App. 3d 649, 431 N.E.2d 1107.) Similarly, the test for determining who is the beneficiary of an express trust is intent of the parties imposing the trust (Restatement (Second) of Trusts sec. 127 (1959)), and this intention will be ascertained in the first instance, from the express language of the document creating the trust. (See, e.g., Koppers Co. v. Garling & Langlois (6th Cir. 1979), 594 F.2d 1094.) The document creating the construction loan escrow trust at bar specifically states that “[t]he undersigned agrees that this agreement shall not be construed as, nor is it the intent of any of the parties hereto to give any benefits, rights, privileges, actions or remedies to any person, partnership or corporation other than Chicago Title and Trust Company, COLUMBIA NATIONAL BANK OF CHICAGO (Lender), and Wheeling Trust & Savings Bank, as Trustee *** (Owner/Borrower), under a third party beneficiary theory or otherwise.” (Emphasis added.) Thus, it appears from the unambiguous language of the agreement that the manifest intent of the contracting parties was, inter alia, to exclude subcontractors as third-party beneficiaries of the express trust. Moreover, aside from this manifest intention to preclude third-party beneficiary claims, we agree with Chicago Title’s assertion on appeal that a fair reading of the balance of the agreement shows that its foremost purpose was to protect the security interests of the lender against possible mechanics’ lien claims. Thus, we do not believe it plausible that the subcontractors, including Bescor, were any more than mere incidental beneficiaries of the express trust. (See Koppers.) We believe that count XIII fails to state a cause of action for breach of trust, and also that as a matter of law, Chicago Title incurred no liabilities to plaintiff as a third-party beneficiary of the construction loan escrow trust agreement. The trial court therefore was correct in dismissing count XIII.

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

Affirmed.

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

       This “hybrid” procedure of combining a motion under section 45 and a motion under section 48 has been disapproved. (See Moreno v. Joe Perillo Pontiac, Inc. (1983), 112 Ill. App. 3d 670; see also Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 312 N.E.2d 605.) Nonetheless, in the interest of judicial economy and to avoid delay we do not remand because of the foregoing but consider each of the issues thereby presented.

       The record discloses that Swanson received from Chicago Title a draft made payable to the order of “BESCOR, INC.” and not a “sum” of money as might be inferred from the pleadings. This check was paid and purports to have been endorsed as follows:
      “DEPOSIT ONLY
      ROBE RTSON/SWANSON
      DBA
      BESCOR, INC.
      00118850 0.”


author: JUSTICE TRAPP

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GREGORY HUSTON, Defendant-Appellant.
    Fourth District
    No. 4—82—0393
    Opinion filed March 7, 1983.

      Daniel D. Yuhas, of State Appellate Defender’s Office, of Springfield, and Jonathan C. Haile, law student, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur (Robert J. Biderman and David C. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

Defendant Gregory Huston appeals from his conviction of escape entered upon a jury verdict. (See Ill. Rev. Stat. 1981, ch. 38, par. 31— 6(a).) Huston was sentenced to a term of four years’ imprisonment, the sentence to run consecutive to the term he is serving at present for a robbery conviction as provided by section 5 — 8—4(f) of the Unified Code of Corrections. Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8— 4(f).

Failure to return from authorized absence upon a work-release is properly prosecuted as the offense of escape under section 31 — 6(a) of the Criminal Code of 1961 (111. Rev. Stat. 1979, ch. 38, par. 31 — 6(a)). People v. Cole (1980), 84 Ill. App. 3d 347, 405 N.E.2d 347, aff'd (1982), 91 Ill. 2d 242, 437 N.E.2d 641.

Defendant was incarcerated at the Decatur Community Correctional Center. He participated in a work-release program, through which he was allowed to leave the center each day to pursue employment and required to return to the center in the evening after finishing work. On the morning of Friday, March 26, 1982, the defendant clocked out of the correctional center at about 8:20 a.m. He was scheduled to return at 6 p.m. Defendant failed to return to the correctional center that evening and was absent throughout the weekend. On Tuesday, March 30, police received a “tip” from a relative of defendant and arrested him several miles from the correctional center.

On appeal defendant contends that it was not necessary or proper for the jury to know whether he was imprisoned for a felony or misdemeanor offense at the time he escaped, or to know the specific crime for which he was imprisoned. The defendant contends that the trial court erred by allowing the State to present evidence to the jury of his prior robbery, that this was important for sentencing purposes only, and since the defendant was willing to stipulate that he had been properly committed to a correctional institution, it was irrelevant to any legitimate object of the fact finder’s inquiry.

At the start of the trial, defense counsel made an oral motion in limine that the judge not allow the State to inform the jury that the defendant was a convicted felon, or that the defendant had committed robbery. Defense counsel was willing to stipulate that the defendant had been properly committed to a correctional institution. Holding that the grade of the prior offense had to be proved to the jury, the court refused to prohibit the State from presenting evidence that the defendant was a convicted felon. Defense counsel then moved that the State not be allowed to introduce to the jury evidence of the nature of the prior felony conviction. The court denied this request also. The State called assistant State’s Attorney Richard Currant, who testified that the defendant had been convicted of the felony of robbery.

The defendant’s argument that People v. Hayes (1981), 87 Ill. 2d 95, 429 N.E.2d 490, governs this case is not persuasive. In Hayes, defendant was charged by information with three counts of retail theft under $150. The information did not allege that the defendant had a prior theft conviction. During the trial, the defendant’s prior retail theft conviction was admitted into evidence by stipulation. The defendant was subsequently convicted and sentenced for the felony of theft (second offense). On appeal, the defendant argued that it was necessary to allege in the information that the offense charged was a second or subsequent offense of retail theft. The court, affirming the defendant’s conviction, remarked:

“We do not, however, find any sound reason to hold that because the prior conviction elevates the degree of the offense from a misdemeanor to a felony it should be necessary, at the risk of prejudice to the accused, that it be alleged in the information and proved.” 87 Ill. 2d 95, 98, 429 N.E.2d 490, 491.

In People v. Orrs (1980), 87 Ill. App. 3d 4, 408 N.E.2d 1105, defendant was charged with escape in failing to return from a work-release assignment. An argument substantially identical to that made here was presented on review, including defendant’s contention that it was reversible error to deny his motion to strike the allegations of four present felony convictions and to admit evidence of the specific crime of burglary underlying the escape. The conviction of escape was affirmed but one justice dissented. The supreme court, thereafter, denied leave to appeal. We feel constrained to follow this authority.

The defendant’s willingness to stipulate that he had been properly committed to a correctional institution does not make it error to admit evidence to prove this element. People v. Campbell (1979), 77 Ill. App. 3d 804, 396 N.E.2d 607; People v. Kuntz (1977), 52 Ill. App. 3d 804, 368 N.E.2d 114.

The distinction between the offenses of retail theft and escape are readily apparent. There can be a retail theft without a prior conviction of theft or any other offense. On the contrary, to be guilty of felony escape there must be a present imprisonment upon a present conviction.

We find no error, and the judgment of the trial court is affirmed.

Affirmed.

GREEN and MILLER, JJ., concur.


author: PRESIDING JUSTICE WEBBER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD GILMAN, Defendant-Appellant.
    Fourth District
    No. 4—82—0407
    Opinion filed March 9, 1983.

      Daniel D. Yuhas and Gary S. Rapaport, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur (Robert J. Biderman and Garry W. Bryan, both of State’s Attorney’s Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

Defendant, Edward Gilman, was charged by information, in the circuit court of Macon County, with the offense of attempt (burglary) in violation of section 8 — 4 of the Criminal Code of 1961 (111. Rev. Stat. 1979, ch. 38, par. 8 — 4). He was tried to a jury and found guilty. Defendant appeals his conviction and sentence arguing that the jury was improperly instructed. We affirm.

At the instruction conference, defense counsel tendered Illinois Pattern Jury Instructions, Criminal, No. 24 — 25.02 (2d ed. 1981) (hereinafter IPI Criminal) on the defense of voluntary intoxication. The instruction reads, in pertinent part, as follows:

“An intoxicated person is criminally responsible for his conduct unless his intoxication renders him incapable of acting [(knowingly) (intentionally)].”

A trial court is to select the mental state applicable to the crime charged. The trial court, upon urging by the assistant State’s Attorney, elected to use “knowingly.” Defense counsel objected, stating that intent is an element of the crime of attempt and, therefore, “intentionally” should have been inserted.

Although defense counsel raised the issue at the instructions conference, he failed to raise it in his written post-trial motion. The People contend that the issue has therefore been waived unless it rises to the level of plain error.

We hold that the issue has been waived and does not, in the instant case, rise to the level of plain error. The failure by a defendant to raise an issue in his written motion for a new trial constitutes waiver of that issue and it cannot be urged as a ground for reversal on review. (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) Error that rises to the level of plain error may be considered on review despite a defendant’s failure to properly preserve an objection. People v. Baynes (1981), 88 Ill. 2d 225, 430 N.E.2d 1070.

The plain error rule is a narrow and limited exception to the general waiver rule. (People v. Pastorino (1982), 91 Ill. 2d 178, 435 N.E.2d 1144.) To circumvent the general waiver rule the record must clearly show the commission of error that substantially affects a defendant’s rights. (People v. Jackson (1981), 84 Ill. 2d 350, 418 N.E.2d 739.) We hold that no substantial error such as to deprive defendant of a fair trial has occurred.

In addition to the instruction on the intoxication defense, the trial court instructed the jury as follows:

“A person commits the offense of attempt when he, with intent to commit the offense of Burglary, does any act which constitutes a substantial step toward the commission of the offense of Burglary.
The offense attempted need not have been committed.” IPI Criminal No. 6.05.
“A person commits the offense of burglary when he, without authority, knowingly enters a building or any part thereof with intent to commit therein the offense of theft.” IPI Criminal No. 14.05.
“To sustain the charge of attempt, the State must prove the following propositions:
FIRST: That the defendant performed an act which constituted a substantial step toward the commission of the offense of Burglary; and
SECOND: That the defendant did so with intent to commit the offense of Burglary; and
THIRD: That at the time of the offense, the defendant was capable of acting knowingly.” IPI Criminal Nos. 6.07, 24— 25.02A.

The jury was appropriately instructed as to the requisite mental state for the offense of attempt, intent. (IPI Criminal No. 6.05.) When the jury was instructed as to intoxication, the trial court erred in utilizing the term “knowingly.” However, we hold that it was not reversible error.

Attempt is a specific intent crime. (See People v. Jones (1914), 263 Ill. 564, 105 N.E. 744; Ill. Rev. Stat. 1979, ch. 38, par. 4-3.) The mental state which is an element of the offense of attempt is intent. Burglary is defined by section 19 — 1 of the Criminal Code of 1961. (Ill. Rev. Stat. 1979, ch. 38, par. 19 — 1.) The key elements of that offense are knowledge, entry and intent to commit a theft or a felony. People v. Dandridge (1981), 98 Ill. App. 3d 1021, 424 N.E.2d 1262.

To sustain a charge of attempt it must be shown that a defendant formed the specific intent to commit a crime. It follows that the trial court should have instructed the jury that defendant could not have been criminally responsible for the charged offense of attempt unless his intoxication rendered him incapable of forming the intent. It appears that the trial court, and counsel, became sidetracked by the charging instrument which we find to be inartfully drafted. The court and counsel, from their discussions at the instruction conference, apparently believed that the intoxication defense went to negating the dual mental state of burglary, knowledge and intent. However, defendant was not charged with burglary; he was charged with attempt. Therefore, the jury should have been instructed that defendant was not criminally responsible if his intoxication precluded him from forming intent.

However, the error was harmless. If the jury determined that defendant’s intoxication was not sufficient to negate his ability to act knowingly, it follows logically that his intoxication would not be great enough to impair his ability to act intentionally, as intentional conduct is more culpable than knowing conduct.

The committee comments to section 4 — 8 reveal that the use of the word “intent” in the Code is limited to conscious objective or purpose to accomplish a described result. This is distinct from “general intent,” which constitutes an awareness that certain voluntary acts will, or probably will, have unlawful results. The committee went on to state that “knowingly” is “properly applicable to the situation in which a person, while not having an actual intent to accomplish a specific wrong purpose, is consciously aware of the nature of his conduct or of the result which will *** be caused.” (Ill. Ann. Stat., ch. 38, par. 4 — 3, Committee Comments, at 256 (Smith-Hurd 1972).) Thus, it is clear that in order to form intent, one must first be aware of the surrounding circumstances and then intend to commit a specific unlawful act. Consequently, intoxication which will negate intent subsumes intoxication which will negate knowledge. It follows that intoxication which is not severe enough to negate knowledge is not severe enough to negate intent. As was said in People v. Olson (1981), 96 Ill. App. 3d 193, 420 N.E.2d 1161, voluntary intoxication may negate the element of intent only when it is so extreme as to entirely suspend a defendant’s power of reason, that is, his ability to act knowingly.

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

Affirmed.

MILLS and MILLER, JJ., concur.


author: JUSTICE GREEN

text:
      In re GERALD PETERSON. — (The People of the State of Illinois, Petitioner-Appellee, v. Gerald Peterson, Respondent-Appellant.)
    Fourth District
    No. 4—82—0514
    Opinion filed March 3, 1983.

      Roger Derstine and Linda S. Ganski, both of Legal Advocacy Services, of Chicago, for appellant.
    J. William Roberts, Sate’s Attorney, of Springfield (Robert J. Biderman and Garry W. Bryan, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

Respondent, Gerald Peterson, appeals from a judgment entered by the circuit court of Sangamon County finding that he was a person “subject to involuntary admission” under section 1 — 119(1) of the Mental Health and Developmental Disabilities Code (Code) (111. Rev. Stat. 1981, ch. 9IV2, par. 1 — 119(1)) and ordering him to be hospitalized in the Department of Mental Health and Developmental Disabilities (Department). The trial court’s order was based on its finding that defendant was mentally ill and because of his illness might be reasonably expected to inflict serious injury upon himself or another in the near future. We affirm.

On appeal the respondent maintains that he was improperly committed to the Department because (1) the State did not sustain its burden of proving by clear and convincing evidence that the respondent was reasonably expected to inflict serious physical harm upon himself or another in the near future, (2) the examining psychiatrist did not certify that he personally informed the respondent of his statutory right to remain silent, (3) he was denied effective assistance of counsel, and (4) following the entry of the trial court’s order, the Department failed to comply with certain statutory provisions.

The proceedings were commenced on July 7, 1982, when Mary L. Peterson filed a petition in the circuit court of Sangamon County asserting that her son, Gerald Peterson, was (1) mentally ill, (2) reasonably expected to inflict serious physical harm upon himself or another in the near future, and (3) in need of immediate hospitalization for the prevention of such harm. The petition requested that respondent be involuntarily admitted for hospitalization by the Department.

In In re Stephenson (1977), 67 Ill. 2d 544, 367 N.E.2d 1273, the court held that in an involuntary commitment proceeding the petitioner must prove the allegations of the complaint by clear and convincing evidence. (See also 111. Rev. Stat. 1981, ch. 91V2, par. 3 — 808.) The respondent does not dispute that the evidence here sufficiently showed his mental illness. We conclude that the record also contains ample evidence to indicate that he presented a danger to himself or others and that this evidence fully met the required standard of proof. At the hearing on the merits the petitioner testified to much which was too remote to be properly considered here. However, the petitioner testified concerning an incident where the respondent had threatened his father with a letter opener approximately two or three weeks prior to the hearing. Based upon an examination of the respondent and a consideration of the respondent’s history of suicide threats, Dr. Reddy testified that he was of the opinion that the respondent’s judgment and insight were impaired, and that the respondent suffered from a schizoaffective illness, posed a severe threat of harm to himself and others, and needed psychiatric treatment on an “in-patient basis at least for 30 to 60 days.”

The respondent’s second contention is based upon sections 3 — 208 and 3 — 807 of the Code, which provide:

“Whenever a petition has been executed *** and prior to this examination for the purpose of certification of a person 12 or over, the person conducting this examination shall inform the person being examined in a simple comprehensible manner of the purpose of the examination; that he does not have to talk to the examiner; and that any statements he makes may be disclosed at a court hearing on the issue of whether he is subject to involuntary admission. If the person being examined has not been so informed, the examiner shall not be permitted to testify at any subsequent court hearing concerning the respondent’s admission.
* * *
No respondent may be found subject to involuntary admission unless at least one psychiatrist or clinical psychologist who has examined him testifies in person at the hearing. The respondent may waive the requirement of such testimony subject to the approval of the court.” Ill. Rev. Stat. 1981, ch. 911/2, pars. 3 — 208, 3 — 807.

The respondent maintains that Dr. Reddy, who testified at the hearing, did not personally inform him in accordance with these provisions.

In In re Collins (1981), 102 Ill. App. 3d 138, 429 N.E.2d 531, this court stated:

“[Section 3 — 203 of the Code] admits of only one interpretation: the examining physician must personally inform respondent of his rights.
*** If the doctors do not personally inform respondent of his rights, their testimony, in its entirety, is barred. If there is no testimony of a psychiatrist or psychologist who has examined the respondent before the court, a respondent may not be found subject to involuntary admission. That is the bottom line.” (Emphasis in original.) 102 Ill. App. 3d 138, 143, 429 N.E.2d 531, 536.

There are, however, two major differences between In re Collins and the case at bar. First, in In re Collins the respondent’s counsel filed a motion to suppress the testimony of the examining physicians on the grounds that they had not informed him of his rights prior to the examination. In the case at bar the respondent’s counsel neither filed such a motion, nor objected to the introduction of Dr. Reddy’s testimony in any manner. Second, in In re Collins this court noted that the record was clear that “both doctors were examining physi- • cians but that neither personally informed respondent of his rights— even though they affixed their signatures to certificates verifying that they did, under penalty of perjury.” (102 Ill. App. 3d 138, 143, 429 N.E.2d 531, 536.) In the case at bar there is no affirmative showing in the record whether the examining psychiatrist, Dr. Reddy, informed the respondent of his statutory rights.

Accordingly, the issue of whether Dr. Reddy had properly admonished respondent prior to examining him was not timely raised. The court had no occasion to determine whether the admonitions had been given. It may well be that they had not because a portion of Dr. Reddy’s certificate of examination, filed of record, contained an affidavit by an employee of the Department stating that the affiant had given the admonitions, in the form required by statute, to respondent before the examination. However, if Dr. Reddy had failed to give the admonitions and the issue had been timely raised by a motion to suppress, the petitioner would have had an opportunity to call another psychiatrist who had in fact examined respondent and had in fact made affidavit of personally admonishing respondent as required.

Respondent’s claim of lack of effective assistance of counsel is based upon his counsel’s failure to cross-examine petitioner’s witnesses or to object to the testimony of Dr. Reddy and petitioner. However, appellate review of a trial counsel’s competency does not extend to areas involving the exercise of judgment, discretion, or trial strategy. (People v. Abrams (1972), 8 Ill. App. 3d 636, 291 N.E.2d 16.) Given the weight of evidence presented by petitioner, counsel may well have decided that cross-examination would only strengthen petitioner’s case. He might also have concluded that objecting to Dr. Reddy’s testimony would have only brought about testimony by Dr. Conran, the other examining psychiatrist. The certificate filed by Dr. Conran was comparable to that filed by Dr. Reddy. As a result, we conclude that it is not shown that respondent received ineffective assistance of counsel.

Finally, respondent points out that sections 3 — 814 and 3— 902(c) of the Code (111. Rev. Stat. 1981, ch. 911/2, pars. 3 — 814, 3— 902(c)) provide for the facility director to file a certain treatment plan for a patient with the court within 30 days after admission to hospitalization and to take certain action when a patient is discharged. He claims that compliance has not been made with those provisions. We have no knowledge of any theory whereby an order for hospitalization can be upset for failure of Department personnel to take subsequent action required by statute. Furthermore, the trial court record presented does not cover entries subsequent to the notice of appeal. We find no merit in this contention.

For the reasons stated, we affirm.

Affirmed.

WEBBER, P.J., and TRAPP, J., concur.


author: JUSTICE HOPF

text:
    McHENRY STATE BANK, Trustee, Plaintiff-Appellant, v. THE CITY OF McHENRY, Defendant-Appellee.
    Second District
    No. 82—123
    Opinion filed January 26, 1983.
    — Modified on denial of rehearing April 4, 1983.

      Gerard C. Heldrich, Jr., of Chicago, for appellant.
    Bernard V. Narusis, of Narusis and Narusis, of Cary, for appellee.
   JUSTICE HOPF

delivered the opinion of the court:

The plaintiff, McHenry State Bank, trustee under Trust No. 860, appealed from an order of the trial court dismissing its complaint for declaratory judgment. (111. Rev. Stat. 1981, ch. 110, par. 2 — 701.) This order was in accordance with a motion made by the defendant, city of McHenry (city), at the close of the plaintiff’s case.

Peter Tutera is the beneficial owner of the property, the subject matter of Trust No. 860. The property was acquired in August of 1978. The property is improved with a 17-unit apartment building which Tutera intended to convert to condominiums. The defendant, city, has no condominium conversion ordinance, and no conversions have heretofore been attempted.

The surrounding area is improved with single-family homes, but two apartment buildings containing 17 and 24 units, respectively, are adjacent to the subject property and share a common water main with Tutera’s property.

The city has a zoning ordinance and the property in question is in an area zoned for multiple-family dwellings and known as R-4. The ordinance for R-4 requires a minimum lot requirement of 2500 square feet per dwelling. The subject property constituted a nonconforming use by only having 1882 square feet per dwelling. According to the ordinance, condominiums were permitted only in districts zoned R-5 and R-5A, which had minimum square footage requirements of 4300 and 5500 square feet, respectively. Further R-5 and R-5A did not permit cumulative zoning.

When Tutera acquired the building he had notice of the current zoning restriction pertaining to R-4 multiple-family dwellings, and further that the city had no ordinance permitting condominium conversion. He notified the tenants of his intention to convert the 17-unit apartment building and a tenant in turn notified the city who in turn notified Tutera to cease.

Tutera and the bank sought rezoning and requested a variation in the density restrictions. Both petitions were denied. The bank filed a complaint for declaratory relief (111. Rev. Stat. 1981, ch. 110, par. 2— 701), asking the court to declare the zoning ordinance of the defendant insofar as it pertains to the plaintiffs property to be void and unenforceable. Defendant moved to dismiss on the ground the plaintiff did not prove his case.

The trial court, in ruling in favor of the defendant’s motion, found that the plaintiff had failed to prove the allegations of its complaint by clear and convincing evidence and that the defendant’s motion to dismiss would be allowed.

In its appeal the plaintiff raises the question whether the city’s zoning ordinance unconstitutionally discriminates against condominiums due to its restriction of condominiums to a specific zone, its density requirements and its standard for obtaining a variation.

Inasmuch as the lower court’s ruling was made at the close of the plaintiff’s case, certain legal principles govern the review of its decision. In a bench trial, as here, the defendant may move for judgment in his or her favor at the close of the plaintiff’s case. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1110.) The trial court must first determine, as a legal question, whether the plaintiff has presented a prima facie case and to grant the defendant’s motion if the plaintiff has failed to do so. (Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 407 N.E.2d 43.) If the plaintiff has presented a prima facie case, the court must then weigh the evidence considering the credibility of the witnesses and the quality of the evidence. (Ill. Rev. Stat. 1981, ch. 110, par. 2— 1110; Kokinis v. Kotrich; City of Evanston v. Ridgeview House, Inc. (1976), 64 Ill. 2d 40, 349 N.E.2d 399.) The court is to consider all the evidence including that which is favorable to the defendant, and is not to view the evidence in the light most favorable to the plaintiff. (Kokinis; City of Evanston.) If this weighing process negates some of the evidence necessary to the plaintiff’s prima facie case, the court should enter judgment for the defendant. (Kokinis.) However, the motion should be denied if sufficient evidence remains to establish the plaintiff’s prima facie case. The trial court’s determination will not be reversed unless it is contrary to the manifest weight of the evidence. Kokinis; City of Evanston.

A zoning ordinance is presumed valid, and a party attacking the ordinance must prove by clear and convincing evidence that the classification is arbitrary, unreasonable and without a substantial relationship to the public welfare. Tomasek v. City of Des Plaines (1976), 64 Ill. 2d 172, 354 N.E.2d 899; Parkway Bank & Trust Co. v. City of Chicago (1982), 107 Ill. App. 3d 252, 437 N.E.2d 753.

Plaintiff has challenged the facial validity of the ordinance; consequently, we are required to review the ordinance itself.

Under the ordinance, condominiums are only permitted in districts R-5 and R-5A, and are the only permitted uses in those districts. Other residential zoning districts permit cumulative zoning; however, R-5 and R-5A do not. There further appears to be a wide disparity between the minimum lot requirements in the districts which permit condominiums as opposed to requirements in those zoned districts which permit apartments.

According to the city’s zoning ordinance in general the zoning board may grant a variation in zoning only where the physical surroundings of the property would result in particular hardship if the zoning ordinance is applied strictly; the conditions on which the petition is based are unique; the petitioner’s purpose is not solely financial gain; the alleged hardship has not been created by the present owner; granting the variation will not be materially detrimental to the public welfare or surrounding properties; and, the proposed variation will not impair an adequate supply of light and air to adjacent property, substantially increase fire hazards or traffic, endanger the public safety, or substantially impair the value of neighboring property. As one can see by simple review of the variations standards, procuring a variation is not compatible with apartment conversion.

Condominiums and condominium conversions are lawful operations (Ill. Rev. Stat. 1981, ch. 30, par. 301 et seq.), and they should not be prohibited entirely by a zoning ordinance unless doing so has a substantial relationship to the public welfare. Village of Cahokia v. Wright (1973), 11 Ill. App. 3d 124, 296 N.E.2d 30, aff'd (1974), 57 Ill. 2d 166, 311 N.E.2d 153; High Meadows Park, Inc. v. City of Aurora (1969), 112 Ill. App. 2d 220, 250 N.E.2d 517.

Though condominiums are not prohibited entirely under the city’s zoning ordinance, as condominium zones within the ordinance are provided, the practical effect of restricting condominiums to only condominium zones does constitute an impermissible discrimination against the conversion of existing apartment dwellings into condominium units. A disparate treatment of condominiums and apartments is constitutional only if there would be some basis for distinction. (Village of Cahokia v. Wright (1973), 11 Ill. App. 3d 124, 296 N.E.2d 30, aff'd (1974), 57 Ill. 2d 166, 311 N.E.2d 153.) Where no-real difference exists between groups treated differently and there is no basis for the disparity of classification, the ordinance is invalid. If a zoning ordinance permits certain uses of property but excludes other uses which are not significantly different, the ordinance cannot be sustained. City of Chicago v. Sachs (1953), 1 Ill. 2d 342, 115 N.E.2d 762.

A conversion of an apartment building into a condominium complex does not basically involve a change in the use of the property, but only a change in the ownership. (Maplewood Village Tenants Association v. Maplewood Village (1971), 116 N.J. Super. 372, 282 A.2d 428; Bridge Park Co. v. Borough of Highland Park (1971), 113 N.J. Super. 219, 273 A.2d 397.) The statute enabling a municipality to enact zoning ordinances is directed to the regulation of the use of the property. See Ill. Rev. Stat. 1981, ch. 24. par. 11 — 13—1.

There appears to be no Illinois case precisely on this point; however, a municipality should not be permitted to use its zoning power for the purpose of precluding condominiums or condominium conversions. Maplewood Village Tenants Association v. Maplewood Village (1971), 116 N.J. Super. 372, 282 A.2d 428; Bridge Park Co. v. Borough of Highland Park (1971), 113 N.J. Super. 219, 273 A.2d 397.

As heretofore discussed, plaintiffs did attempt a rezoning and requested a variation of density restrictions. As pointed out, the standards for procuring a variation according to the zoning ordinance of the city are quite incompatible with seeking a variation for the purpose of conversion of an apartment into a condominium. Also Tutera is unable to show a “particular hardship,” as he purchased the property intending to convert and with a full knowledge of the zoning restrictions. (Podmers v. Village of Winfield (1976), 39 Ill. App. 3d 615, 350 N.E.2d 232.) However, this would not preclude the plaintiffs for challenging the unconstitutionality of the ordinance. Kraegel v. Village of Wood Dale (1973), 10 Ill. App. 3d 486, 294 N.E.2d 64.

The bank has also argued that any local regulation of condominiums is preempted by the State’s enactment of the Condominium Property Act. (Ill. Rev. Stat. 1981, ch. 30, par. 301 et seq.) However, prior to trial the parties stipulated that the case would not involve preemption and therefore this was not an issue before the trial court and should be considered waived for the purposes of appeal. (Somerset House, Inc. v. Board of Appeals (1970), 131 Ill. App. 2d 569, 266 N.E.2d 508.) Even if not waived the argument lacks merit as municipalities have extensive statutory authority over zoning, and such regulation does not fall under the Condominium Property Act. (111. Rev. Stat. 1981, ch. 24, par. 11 — 13—1; People ex rel. County of LaSalle v. Grundy County National Bank (1981), 97 Ill. App. 3d 101, 422 N.E.2d 648.) Also the Condominium Property Act contains no express provision preempting the local regulation of condominiums and the statute is not such as to indicate a legislative purpose to preempt the field. Rezler v. Village of Riverside (1963), 28 Ill. 2d 142, 190 N.E.2d 706; Wright v. County of Winnebago (1979), 73 Ill. App. 3d 337, 391 N.E.2d 772.

The plaintiff has made out a prima facie case that the city by restricting condominium use to a noncumulative lower density zoning district has discriminated against the conversion of apartment buildings to condominiums in other zoning areas. The statute enabling a municipality to enact zoning ordinances is directed against the use of the property. (111. Rev. Stat. 1981, ch. 24, par. 11 — 13—1.) The city may not use its zoning powers to differentiate between condominiums and apartments based solely on the form of ownership. Maplewood Village Tenants Association v. Maplewood Village (1971), 116 N.J. Super. 372, 282 A.2d 428; Bridge Park Co. v. Borough of Highland Park (1971), 113 N.J. Super. 219, 273 A.2d 397.

In the present posture of the case there has been no evidence of a distinction between use contemplated by the plaintiff for his apartment building in Zone R-4 and the permissible condominium use of R-5 and R-5A. In the absence of evidence showing any distinction between these uses, or that the zoning classifications bore any real and substantial relationship to the public health, safety or welfare (City of Champaign v. Roseman (1958), 15 Ill. 2d 363, 155 N.E.2d 34), the case must be remanded for further proceedings.

The judgment of the trial court of McHenry County is reversed and this case is remanded for further proceedings.

Reversed and remanded.

VAN DEUSEN and LINDBERG, JJ., concur.