author: JUSTICE UNVERZAGT

text:
    RICHARD E. WEISS et al., Objectors-Appellants, v. DOROTHY M. WEISS, Ex’r of the Last Will and Codicil of Emil F. Weiss, Deceased, Respondent-Appellee.
    Second District
    Nos. 82—455, 82—648 cons.
    Opinion filed March 15, 1983.

      William C. Murphy and Patrick M. Flaherty, both of Reid, Ochsenschlager, Murphy & Hupp, of Aurora, for appellants.
    Oliver S. DeBartolo, of DeBartolo & DeBartolo, Stuart L. Whitt, and Matthews, Dean, Eichmeier, Simantz & Hem, P.C., all of Aurora, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Emil E Weiss died testate; a codicil to his will named his daughter, Dorothy M. Weiss, executor. Emil’s will devised and bequeathed all of his real and personal property in equal shares to his four children: Dorothy, Richard and Robert, and Marilyn Nowak. The codicil empowered Dorothy, as executor, without order of court:

“***(a) to settle claims in favor of or against my estate; (b) to sell at public or private sale any real or personal property owned by me at the time of my death, without application to or confirmation by any court; and (c) to make distribution of my estate wholly or partly in cash or kind, and the determination of my executor as to the value of any property distributed in kind shall be conclusive.”

This consolidated appeal arose after the trial court overruled Richard, Robert, and Marilyn’s objections to Dorothy’s final account and report, and after the court later authorized her to defend the appeal using estate funds upon her petition for the court’s instructions on that matter.

At the hearing on the objections to the final account, Dorothy was called to testify under section 60 of the Civil Practice Act (111. Rev. Stat. 1979, ch. 110, par. 60, recodified as 111. Rev. Stat. 1981, ch. 110, par. 2 — 1102) and the following facts were revealed. Emil’s attorney, Leon Weiss (a cousin), predeceased him, as did Emil’s wife seven months earlier. Dorothy was unmarried, and resided in the family home in Aurora with her parents before their deaths. Her married sister, Marilyn, lived in Wisconsin; her brothers, Robert and Richard, lived, respectively, in Shreveport, Louisiana, and Aurora, Illinois. Leon Weiss had been handling Emil’s wife’s estate and when Leon died, the file was passed on to attorney Peter Grometer. Upon Emil’s death, Grometer was consulted by the four heirs concerning the estate. A dispute arose between Dorothy and her sister and brothers concerning how long she would be allowed to stay rent-free in the family home. Dorothy requested four months; the others felt three months was a reasonable amount of time. Dorothy, a teacher, indicated the additional month would allow her to stay until June and school would be out for the summer, so she would have time to consult some financial people about whether she could afford to buy the house and whether it was a wise move.

Dorothy neither denied or affirmed that she had a conversation with attorney Grometer in which she told him that she was “going to go elsewhere for a lawyer to whom [sic] will protect my interests.” Dorothy eventually secured the services of attorney Oliver DeBartolo.

She denied she consulted with attorney DeBartolo about her own personal interests as well as the affairs of the estate. She testified the controversy was between her brothers and sister on one hand, and herself as executor on the other.

The arguing began the night of her father’s burial; the controversy about the personal property was that “[she] wanted certain things and [her brothers and sister] wanted certain things ***,” causing her “many sleepless nights.”

The other major controversy was about the sale of the house. The price of the house and its sale to Dorothy was agreed upon in a “Weiss Family Settlement Agreement” which was drafted by attorney William Murphy, who represented Robert, Richard and Marilyn. The agreement was signed by Dorothy individually and as executor. She testified she never consulted with attorney DeBartolo as the buyer of the house, only in her capacity as seller. They discussed whether there was clear title, DeBartolo obtained a title commitment, attended the closing, and took the deed to Geneva to remove some title exceptions, and he recorded the deed. She represented herself at the closing. From the date of her father’s death to the present, she had not received a bill from DeBartolo for services rendered to her personally, nor did she expect to receive one.

She consulted with DeBartolo a “couple of times” when the family agreement was drafted and redrafted, but not concerning her individual interests except insofar as the discussion led to the hiring of Colonel James G. Quick, an auctioneer, who conducted a lottery in order to distribute the decedent’s personal property. She recalled the lottery method was suggested either by her brother, Richard, or Colonel Quick himself. Colonel Quick’s bill for $1,271 was not paid because both she and the other family members objected to the amount of the bill, and were not happy about it. Colonel Quick spent “no more than an hour” to appraise the furnishings, and then spent about 44/2 hours conducting the actual lottery. Dorothy agreed that in addition to the necessary filings and court appearances, her consultations with attorney DeBartolo concerned the division of the furniture, the family settlement agreement, and the sale of the house.

Dorothy testified the codicil to her father’s will gave her unlimited authority to distribute the personalty. She resorted to Colonel Quick’s services because there were “so many arguments it could never have been settled fairly any other way. [She] never knew of a fair way to settle it in the first place.” She agreed that during the many, many discussions she had with her brothers and sister concerning the distribution, that DeBartolo was not present, nor did he consult with her about her financing plans to buy the house. She did not recall whether he had advised her about the amount of monthly rental she was to pay for living in the house; she said her brothers and sister set the rental fee. He advised her to get three appraisals on the house, and they compared them to see what a reasonable price for the house would be. She then negotiated the sale with the family through her brother, Robert, amidst “many, many miserable calls and constant threats from her family.” She recalled that DeBartolo felt that the final price, $82,000 was “outlandish.” An appraisal of the real estate appended to the decedent’s State inheritance tax form showed the property was valued at between $72,000 and $75,000 in May 1980. She testified her brothers and sister did not respect her as executor and resented her being the executor.

Attorney DeBartolo told her she would be entitled to deeds from each of her brothers and sister and their respective spouses at the closing. He advised her as to whether she had clear title; she did not believe he had rendered her personally any advice, only in her capacity as executor. Attorney Grometer had advised the family that it would cost more to have a bank act as executor than if she were exec^ utor; also, Richard rejected Marilyn’s suggestion that he be the executor. No objection was raised concerning Dorothy’s fee as executor.

On recross-examination, Dorothy testified she did not discuss with DeBartolo the continuous threats and harassments she was subjected to by her family; she felt DeBartolo had been informed of the controversy by Mr. Grometer when the file was turned over.

Attorney DeBartolo testified and his time sheets on the Weiss estate were admitted in evidence. He stated there were instances when he discussed individual matters with Dorothy Weiss, but he deducted that time and only charged the estate for the time he spent on estate matters. He stated that although he advised her on individual matters, he was not charging her for that, and kept no separate time sheet. He could not estimate what percentage of the total time he spent on the estate was spent in connection with the division of personal property and the sale of the house, including the family settlement agreement. He stated he did not talk with attorney Murphy concerning any of the routine estate matters.

Attorney DeBartolo testified that just prior to the lottery, he prepared an interim accounting on the demand of Mr. Murphy’s three clients. He made it clear to Dorothy at the outset that he would be representing her as the executor of the estate, not individually. After the closing, DeBartolo took the deed to the title company for recording and clearance of certain objections. He did not recall advising Dorothy on the language of the family settlement agreement; he relayed corrections or amendments from her to Murphy. He did not recall her ever discussing with him the threats or harassments she received from her family.

Dorothy’s sister, Marilyn Nowak, testified that at an initial meeting with attorney Grometer, Dorothy said she had to find someone who would protect her personal interests. She also testified that at the meeting with Grometer the day after her father died, Dorothy was upset by Grometer’s suggestion that three months was an adequate amount of time for her to either decide to buy the house or make arrangements to live elsewhere; Dorothy wanted a year to do it. Ultimately, Dorothy was allowed four months rent-free during which time the estate paid the utility bills.

The objectors sought leave to amend the objection on its face to include an objection to Colonel Quick’s bill, which was equal to 25% of the value of the personal property.

In closing, the objectors argued that half of the $4,500 attorney fees should be borne by the executor personally. DeBartolo argued in response that perhaps 90% of the time he spent on the controversies concerning the furniture, the house, the payment of rent, and the closing resulted from the unreasonable attitude of the objectors. He argued he did not feel he rendered any service to the executor as an individual, and that the cost of his services should be borne by the estate so that each of the heirs will pay a portion. The objectors responded in argument that the heart of the matter is precisely the fact that the controversy existed between the executor and the other heirs, and that she should have had independent counsel.

In its ruling, the court below considered that it would not have been possible for the executor to have performed her duties without the attorney clearing the outstanding objections to the real estate title when the deed was to be recorded, or without the executor understanding the terms of the family settlement agreement. Further, the court found that, as executor, Dorothy had the absolute power to hire Colonel Quick in order to divide the personalty. Accordingly, the trial court overruled both objections to the final account.

Thereafter, in ruling on the executor’s petition for instructions, the court directed the executor to defend the appeal, to select and retain counsel for same, and to pay the costs incurred in such defense out of the estate assets. The matter of payment of attorney fees in connection with the appeal was reserved for future determination. The appellants appealed from these orders and the appeals were consolidated.

Three issues are presented: (1) Whether it was error for the court to approve the executor’s final account and report granting a $4,500 fee to the executor’s attorney where the evidence failed to show that the attorney’s services were performed for the benefit of the estate; (2) Whether it was error for the court to approve the executor’s final account and report which included a $1,271 auctioneer’s fee when the evidence did not show that the fee was usual, reasonable or customary; and (3) Whether it was error for the court to direct the executor to defend the judgment on appeal and to pay the costs of such defense from estate assets.

Appellants point out that the issue at bar is not the reasonableness of the amount of the attorney fees but, rather, that the court should have directed the executor to pay 50% of the $4,500 attorney fees which were rendered for her. own personal benefit. They charge that the executor used her position as executor to secure free legal services for herself personally. They term her purchase of the house and participation in the personal property division “classic conflicts of interest.” They emphasize that an executor of an estate serves in the same fiduciary capacity as a trustee. (Nonnast v. Northern Trust Co. (1940), 374 Ill. 248, 261.) An executor must act with the highest degree of fidelity and with the utmost good faith; “but *** is held to the exercise of only that degree of skill and diligence which an ordinarily prudent man bestows on his own similar private affairs.” Christy v. Christy (1907), 225 Ill. 547, 552-53.

Appellants do not dispute that the fact the executor has a personal interest in the estate is not enough, standing alone, to disqualify that person as executor. (In re Estate of Kuhn (1967), 87 Ill. App. 2d 411, 420.) They contend here, however, that Dorothy abused her position as executor and breached her fiduciary duty of undivided loyalty by having the attorney she hired as executor charge the estate entirely for his services, even though she received legal advice in her dual capacity as buyer and seller of the house. Appellants assert they are entitled to recover the profit realized by the offending executor as the result of such a voidable transaction, as well as recovery of their expenses in remedying the breach of the fiduciary duty.

Appellants find Dorothy’s breach of fiduciary duty analogous to that which occurred in In re Estate of Glenos (1964), 50 Ill. App. 2d 89, and In re Corrington (1888), 124 Ill. 363. The executor in each case was found to have breached his fiduciary obligation after selling real property of the estate through a crony (Glenos) and to a son (Corrington) at a lower price than the evidence showed it would have brought but for the representative’s breach of duty. Appellants further suggest that when Dorothy’s individual interests conflicted with her duties as executor, she could simply have hired her own lawyer and disqualified herself as executor. They contend she should now “pay the bill” for her failure to do so.

Appellants correctly point out that before attorney fees may be charged to the estate of a decedent, they must have been incurred in such a manner as to be in the interest of or for the benefit of the estate. (In re Estate of Minsky (1978), 59 Ill. App. 3d 974, 979; In re Estate of Lipchik (1975), 27 Ill. App. 3d 331, 336; In re Estate of Breault (1965), 63 Ill. App. 2d 246, 254.) They assert that the uncontradicted evidence at bar is that the attorney performed services for the executor individually in both the purchase of decedent’s home and during the “bitter disputes” concerning the division of the decedent’s personalty. They state that to allow the executor to “escape charges for legal services as buyer because she is also seller is neither good common sense nor good law.”

The record is clear that Dorothy, individually, did not receive a bill from the attorney for his services to her in negotiating the “Weiss Family Settlement Agreement.” It is pointed out that the cost of those services should not be borne by the estate since the estate as such had no interest in which beneficiary in particular took which asset, so long as the proceeds of the estate were distributed in equal shares pursuant to the terms of the will and codicil.

Appellants conclude the executor failed to sustain her self-stated burden of proof as to the propriety of the charges sought to be assessed against the estate, and thus, the court erred in overruling their objection thereto.

Appellants similarly conclude the court erred in approving the auctioneer’s fee. for $1,271 when the evidence failed to show the charge was usual, reasonable, or customary as was the executor’s burden to show in the face of objections. (In re Estate of Glenos (1964), 50 Ill. App. 2d 89, 97.) This burden of proof is akin to that borne by the executor when his fitness to remain in office is challenged. In re Estate of Lucas (1978), 71 Ill. 2d 277, 281-82.

Accordingly, appellants ask this court to reverse the trial court’s order approving the executor’s final account and report entered on May 24. For the same reasons, they also seek reversal of the trial court’s order of July 9 authorizing the executor to defend the appeal, and to pay the costs of the defense out of the assets.

As appellee, the executor asserts that the only question before this court is whether the trial court committed manifest or palpable error in approving the executor’s final account and report. She points out that section 27 — 2 of the Probate Act of 1975 allows reasonable compensation for a representative’s attorney. (111. Rev. Stat. 1981, ch. IIOV2, par. 27 — 2.) The determination of what is reasonable compensation lies peculiarly within the broad discretion of the circuit court (In re Estate of Bonnett (1977), 52 Ill. App. 3d 393, 398), and each case must rest on its own facts and circumstances. (In re Estate of James (1956), 10 Ill. App. 2d 232, 241-42.) It has been established that an allowance of attorney fees will not be disturbed or altered on appeal absent manifest or palpable error, or an abuse of discretion. In re Estate of Marks (1979), 74 Ill. App. 3d 599, 604.

The executor disputes the appellants’ allegation that the attorney’s services were not performed for the benefit of the estate. She points out that the attorney’s services in reviewing the family settlement agreement benefited the estate in that compliance with the decedent’s last will and codicil thereby was assured, and that the interim accounting prepared prior to the lottery was performed at the behest of the appellants, not the executor. She points to evidence in the record that she personally sought appraisals as to the value of the property and negotiated with her family in arriving at the final purchase price. Further, she notes that no broker’s commission was necessitated by virtue of her purchase of the house, and that it was an obligation of the estate as seller to make sure there was clear title. She notes that the attorney’s preparation of the closing statement, attendance at the closing and removal of certain exceptions before the deed could be recorded, were all contractual duties to be performed on the part of the estate as seller.

In sum, the executor contends the evidence shows no manifest or palpable error which would permit reversal. We agree.

With regard to the auctioneer’s fees, she points out that under the terms of the will and codicil her determination as to the value of any property distributed in kind was to be deemed conclusive. Yet, the bitter dispute which erupted between her and her siblings necessitated the execution of a family settlement agreement which was prepared by her siblings’ attorney. The agreement included the employment of Colonel Quick and, if necessary, use of his valuation figures for certain of the personalty. She contends approval of the fee for Colonel Quick’s services was within the court’s discretion and no abuse of that discretion is shown in the record. Accordingly, she seeks this court’s affirmance of the trial court’s order approving the final account .and report, as well as its order of July 9,. 1982, authorizing her to defend the appeal and pay the costs of the defense from the estate assets.

Our review of the record leads us to conclude that the trial court’s judgment was not manifestly and palpably erroneous and the cause must therefore be affirmed.

Although the “Weiss Family Settlement Agreement” was admitted into evidence during the hearing, and all parties acknowledge its existence, none seems to pay any heed to its plain terms. The agreement was signed by the executor in her capacity as executor and as an individual. Therein it is stated that the agreement is entered into in order to preserve family tranquillity and good relationships, to finally and forever settle all controversies between them arising out of the estate and property of the decedent, and to avoid the expense, delay, and uncertainty of long, continued litigation. Therein the parties agreed to transfer fee simple title to the house to Dorothy for the gross price of $82,000. Applied against that figure, she was to receive a credit of 25% against the net sale price after the deduction of all prorations and title expenses which were attributable to the seller which were to be borne by the estate of Emil F. Weiss.

The parties also agreed that Dorothy would not accept an executor’s fee in excess of $1,300; her final executor’s fee of $1,500 has not been challenged in this appeal. Further, Dorothy, as executor, agreed that her lawyer, Oliver S. DeBartolo, would not request or accept fees for acting as attorney for the estate in excess of a certain amount. The exhibit included in the record was only a copy of the agreement, and the space for the maximum fee amount was left blank. Consequently, it is not known whether the $4,500 requested as attorney fees on the final account was over the maximum agreed amount or not. In addition, Dorothy M. Weiss, personally, agreed to pay Oliver S. DeBartolo for “any services incurred in negotiating and executing this agreement personally, without any claim against any other party” thereto, and the other parties agreed to pay their own counsel as well.

Several facts are indisputable: all parties to the agreement knew the executor, Dorothy, would be selling the house on behalf of the estate and that DeBartolo was the attorney for the estate. All parties knew Dorothy was also the buyer of the house, and that she, personally, was to pay DeBartolo for his services to her in negotiating and executing the family settlement agreement.

It has been established that family settlement agreements are especially favored on grounds of public policy upholding the honor and peace of families (Ham v. Marshall (1964), 46 Ill. App. 2d 92, 96), and such agreements are enforced by the courts and act as a bar to subsequent attempts to litigate matters covered by such agreements. In re Estate of Swanson (1981), 102 Ill. App. 3d 104, 107.

In the case at bar, the record provided this court by the appellants does not show whether the $4,500 attorney fee exceeded the maximum agreed to by the parties for DeBartolo’s representation of the estate, nor do we seriously mean to suggest that inclusion of that figure in the record would have been dispositive of the issue at bar. At most, it would have provided some measure of the fee’s reasonableness, an issue which has not been raised by appellants. In our opinion, the evidence adduced at the hearing shows no palpable error in the trial court’s conclusion that the attorney’s services in connection with the sale of the real estate were services necessitated by the estate as seller of the real property. The court considered that one of the services provided by the attorney — the recording of the deed in Geneva — was arguably a service performed for Dorothy’s benefit as buyer rather than for the benefit of the estate. However, the court found that to be of no moment in view of the fact the attorney testified he had to be in Geneva to clear some objections on behalf of the estate before giving clear title. We agree with that assessment. The testimony at the hearing clearly showed Dorothy sought financial advice independently of Mr. DeBartolo concerning her ability to purchase the house and the wisdom of doing so. She independently sought three appraisals of the property and then negotiated herself the price of the house with her family through her brother Robert. Certainly she had an interest in the price of the property and clear title thereto in both her capacities. Undeniably, as seller of the real estate and co-beneficiary of the estate, she was actually chargeable with a one-quarter aliquot share of the attorney fees shown on the final account and report.

The appellants appear to suggest in their brief that Dorothy should have secured her own personal counsel and disqualified herself as executor when it became apparent that her individual interests conflicted with her duties as executor. Appellants, however, with access to definitive statutory means of removing her for cause (111. Rev. Stat. 1981, ch. IIOV2, par. 23 — 2) did not seek her removal. The record shows, in fact, that appellants considered and rejected alternate executors, after being advised by attorney Grometer that it would be more expensive for a bank to act as executor, and after Richard Weiss rejected his sister Marilyn’s suggestion that he serve as executor.

It has been stated that the purchase by an administrator of property belonging to the estate of which he is administrator is forbidden.

“Such a transaction the law deems fraudulent, for the reason that the interests of the buyer and seller in a contract of sale are opposed, that the administrator acts in a fiduciary relation in making the sale, and he ought not to be exposed to this conflict of interest in selling as trustee for the estate and buying for himself.” (Schultz v. O’Hearn (1925), 319 Ill. 244, 247.)

It has also been stated:

“Such a sale is not, however, void but only voidable. The heirs have their election to let the sale stand, or by taking appropriate action within a reasonable time to have it set aside. They must act promptly when they are not under any disability and . are acquainted with the facts if they would insist upon having the sale set aside.” Schultz v. O’Hearn (1925), 319 Ill. 244, 247.

In our opinion, the appellants may not now assert that Dorothy’s dual capacity as buyer and seller of the property compromised her integrity in her fiduciary relationship with them as beneficiaries. The record does not show that she took bad-faith advantage of the good services of the attorney for the estate as a result of her dual posture. It is not extraordinarily unusual for a purchaser of real estate to represent himself or herself in the transaction. Granted, such a buyer’s inexpertise often causes the seller’s attorney to render an unbar-gained-for amount of additional “explaining” to the buyer, simply to assure that the client’s sale will be successfully completed.

As to the approval of the $4,500 in attorney fees, we affirm the trial court. The decision as to what constitutes reasonable compensation for the executor’s attorney is a matter which lies peculiarly within the broad discretion of the circuit court. (In re Estate of Bonnett (1977), 52 Ill. App. 3d 393.) On appeal, reviewing courts will not disturb the circuit court’s determination of reasonable fees unless that determination is manifestly or palpably erroneous.

In this case, the executor’s attorney did all that was necessary to finalize the affairs of Emil F. Weiss and to close the estate. Furthermore, the objectors stipulated that there was no question regarding the amount of time spent by the attorney for the estate and no question regarding the reasonableness of his hourly fee. They merely alleged that the majority of the attorney’s efforts were spent in representation of Dorothy, individually. However, no evidence was presented to the trial court as to services to Dorothy individually, except the recording of the deed. The trial court did not find services were rendered to her individually and this is supported by the evidence. We will not disturb the trial court’s ruling on this issue.

With regard to the auctioneer’s services, the evidence showed the bill had not been paid, according to Dorothy, because her co-beneficiaries objected to the bill and because she also was “not happy about the bill.” We believe the court below correctly determined that Dorothy had the authority to engage the services of Colonel Quick.

The last "will and testament of Emil F. Weiss provided that his personalty be distributed in cash or in kind amongst his four children in equal shares. His codicil named Dorothy as executor and authorized her, without order of court, to distribute his estate in cash or in kind. Under the express terms of the codicil, her determination as to the value of any property distributed in kind was deemed conclusive. The bickering and quarreling of the beneficiaries prevented the contemplated distribution by the executor. In an attempt to resolve their disputes, the executor and the objectors entered into a family settlement agreement which was prepared by the objectors’ attorney. Pursuant to the terms of that document, the heirs were to reach agreement regarding the value which was to be placed upon Emil F. Weiss’ personal property and, in the event they were unable to agree, valuations were to be made by Colonel Quick. The objectors, therefore, cannot after such agreement be heard to complain of the employment of Colonel Quick. As to the amount of his fee, this determination lay exclusively within the discretion of the circuit court and cannot be set aside, absent manifest or palpable error. (In re Estate of Bonnett (1977), 52 Ill. App. 3d 393.) We find no error in this regard. Therefore, the circuit court’s approval of the final account and report with auctioneer’s fee of $1,271 is affirmed.

In light of the foregoing, we determine it was not error for the court below to direct the executor to defend the judgments appealed from and to pay the costs of such defense from estate assets.

After the filing of briefs in this court, the executor moved to dismiss the appeal in cause No. 82 — 648 on the ground that the appellants’ brief and argument failed to meet the requirements of Supreme Court Rule 341 (87 Ill. 2d R. 341). In reviewing the brief, we determine that it addressed the issues raised. That motion is therefore denied.

For the foregoing reasons, the judgments of the circuit court of Kane County are affirmed.

Affirmed.

SEIDENFELD, P.J., and REINHARD, J., concur.


source: Caselaw Access Project

author: JUSTICE MEJDA

license: Public Domain

text:
    THE VILLAGE OF HILLSIDE, Plaintiff-Appellant, v. JOHN SEXTON SAND & GRAVEL CORPORATION et al., Defendants-Appellees.
    First District (5th Division)
    No. 81—2655
    Opinion filed March 31, 1983.

      Schain, Burney & Kenny, of Chicago (Jerome S. Schain and Thomas R. Burney, of counsel), for appellant.
    Mary E. Drake, of Maywood, for appellee Illinois Environmental Protection Agency.
    Kirkland & Ellis, of Chicago (Daniel W. Vittum, Jr., Frank L. Winter, and Donald W. Rupert, of counsel), for other appellees.
   JUSTICE MEJDA

delivered the opinion of the court:

This appeal is from the trial court’s order entered nunc pro tunc affirming the decision of the Illinois Environmental Protection Agency (Agency) to approve the issuance of certain permits to John Sexton Sand & Gravel Corporation (Sexton) and Browning-Ferris Industries, Inc. (Browning-Ferris), to operate a sanitary landfill at the Hillside Stone Quarry (Quarry), and denying declaratory, injunctive and mandamus relief sought generally in counts III, V and IX of plaintiff’s fourth amended complaint. Plaintiff, village of Hillside (Village), a non-home-rule municipality, here contends that: (1) the trial court erred in according the Agency’s decision a presumption of validity; (2) the trial court’s ruling on the land use and suitability of the Quarry as a sanitary landfill is against the manifest weight of the evidence; (3) the trial court’s findings that Sexton had the requisite legal interest to obtain solid waste permits and site approval from the Agency, and that the Agency had authority to approve site location before Sexton obtained ownership of the Quarry, are against the manifest weight of the evidence; (4) the trial court’s affirmance on certiorari of the Agency decision to issue sanitary landfill permits for the Quarry is against the manifest weight of the evidence; and (5) the trial court’s denial of plaintiff’s motion for preliminary and permanent injunctive relief is against the manifest weight of the evidence.

The Quarry which is the subject of these proceedings occupies approximately 75 acres within the corporate limits of the Village and was formerly used to quarry limestone. It is located adjacent to the Mannheim Road-Eisenhower Expressway interchange and lies almost 10 miles west of downtown Chicago. The site contains an excavation covering about 62 acres to a depth of 300 to 350 feet, having a capacity of approximately 16 million cubic yards. About 14 acres of the property, located along Mannheim Road and Harrison Street, are at grade level. The site adjoins the Spector Freight Motor terminal to the north, Mannheim Road and commercial uses located in the village of Bellwood on the east, the Eisenhower Expressway on the south, and the Holiday Inn and Hillside Squares Theatre on the west. It has point-to-point contiguity with a single-family residential use on the northwest, less than 100 feet from the property line of the site. Beyond the Eisenhower Expressway to the south are located several industrial uses including the Allied Asphalt Plant, Seneca Oil, Chippewa Paper, the Illinois Department of Transportation maintenance yard and Hillside disposal. To the west of these uses is located a single-family subdivision in the village of Hillside and some commercial uses including a movie theatre.

Within a one-mile radius of the site, 49% of the land is put to residential use. The commercial and industrial uses comprise 11% and 14%, respectively, and public and semi-public land use comprise 18%. Two percent of the land is used for parks and 3% is vacant. The subject property accounts for 4% of the total land uses within this radius.

The population density in the immediate area is approximately 5,400 persons per square mile. The population living within approximately one mile of the property is in the range of 26,204 to 33,981 people. The population living within one ring of quarter sections adjacent to the quarter section where the property is located is 13,812 persons. That area includes persons living adjacent to the Quarry and a little beyond one-half mile from the property.

On May 7, 1979, Sexton and Browning-Ferris (hereinafter referred to as “private defendants”), doing business as Congress Development Company, a partnership engaged in the development and operation of sanitary landfills, signed a sales agreement with Commonwealth Edison Company (Edison) to purchase the Quarry. On May 23, 1979, Edison petitioned the Illinois Commerce Commission for approval of the sale. Approval was granted on July 16, 1980, and Edison conveyed title in fee simple to private defendants on July 24, 1980. Earlier, on August 14, 1979, the Agency granted Sexton’s permit application requesting that the Agency transfer to Sexton certain permits previously held by Edison permitting it to develop the Quarry as a clean landfill; i.e., a dumping site for only inorganic matter. Then, on August 15, 1979, the Agency issued to Sexton a supplemental permit allowing Sexton, subject to certain conditions, to modify the development of the site in accordance with the plans of its engineering firm. Finally, on July 18, 1979, Sexton requested an operating permit from the Agency, which was granted to private defendants on August 28, 1980 (No. 1975-57-OP) and which restricted operations of the site to the disposal of general municipal solid waste — excluding liquid, special and hazardous waste. Private defendants commenced a sanitary landfill operation at the Quarry under this permit on September 15, 1980.

Relevant to our consideration are counts III, V and IX of plaintiffs fourth amended complaint which generally seek declaratory, injunctive and mandamus relief. Count V seeks preliminary and permanent injunctive relief against Sexton and the Agency to prevent the continued operation of the sanitary landfill based on traditional principles applicable to land use and zoning decisions. It alleges that the sanitary landfill as proposed here is arbitrary, capricious and an abuse of discretion since it is not in conformity with the surrounding land uses, the trend of development and is contrary to the Village’s comprehensive plan and its zoning ordinances. It further alleges that such a use will substantially depreciate the property values, and that the Agency’s decision bears no relationship to the public health, safety and welfare of the Village. Counts III and IX seek injunctive or, in the alternative, mandamus relief alleging that the site location approval and transfer of permits by the Agency violated the rules of the Illinois Pollution Control Board (Board).

On November 12, 1980, following a hearing on plaintiff’s motions for declaratory judgment, temporary restraining order and injunction based on various counts of its fourth amended complaint, the trial court found, inter alia, that all defendants were entitled to judgment on the issue of the Agency’s procedure in permit decisions and the permit transfers; that the Village, as a non-home-rule municipality, was preempted from applying its zoning ordinance to the site; and that the Agency’s decisions to transfer and issue permits were entitled to a presumption of validity. The trial court accordingly dismissed with prejudice the counts in question, including counts III and IX, and denied the motion for a temporary restraining order. On January 9, 1981, the trial court entered an order — subsequently modified nunc pro tunc finding, inter alia, that its order of November 12, 1980, was correct.

A final judgment order entered October 2, 1981, later modified nunc pro tunc, addressed count V and other remaining counts, and also reconsidered the November 12, 1980, dismissal of counts III and IX. The trial court therein entered judgment in favor of all defendants on counts III, V (as amended), and IX, holding, inter alia, that the Agency’s decision on site approval was entitled to a presumption of validity; that the Village had failed to establish that the Agency’s decision bears no relationship to the public health, safety and welfare; that the evidence presented established the contrary; and that its prior dismissal of counts III and IX was correct. Accordingly, the trial court denied the Village’s motion for reconsideration, its motions for preliminary and permanent injunction, and its petition for writ of certiorari based on the remaining counts of its complaint. Finally, an order nunc pro tunc modifying the October 2, 1981, final judgment order was entered on October 27, 1981. This order brought to the court’s attention the existence of two additional sequential operating permits issued by the Agency to Sexton since the close of the proofs in the case. The trial court ruled in favor of all defendants on the Village’s challenges to the issuance of those permits and any further operating permits issued by the Agency for the site.

The Agency Hearings

The Agency hearings at issue commenced on June 12, 1979, and were concluded on July 10, 1979. Prior to these hearings, the hearing officer distributed to the parties a compilation of “Nine Issues” to be considered with respect to the 1979 Sexton supplemental permit application and permit transfer request. These issues address the following matters:

1. Adequacy of the engineering plan to protect environment;
2. Problems of scenic blight, damage to archaeological and historic sites or areas of natural beauty;
3. Hazards to public health and safety, offenses to the senses;
4. Compatibility with character of area;
5. Avoidance of substantial depreciation of nearby property;
6. Need for landfill at this location;
7. Avoidance of adverse effect on air and water quality;
8. Suitability for landfill purposes in terms of site location, sources of solid waste, transportation loads, technical feasibility and economic reasonableness; weight limits, if any, on access roads and bridges; and
9. Notification of municipal officials, local zoning boards and planning agencies, State legislators, adjacent landowners.

At the hearing, private defendants presented the testimony of Arthur A. Daniels, executive vice-president of Sexton, Richard W. Eldredge, a solid waste engineer, Kenneth H. Kastman, a soils engineer, E. L. Hardin, an expert in solid waste management systems, Paul C. Box, a traffic engineer, and Rolf C. Campbell and Richard B. Stern, urban land use planners. The Village presented Charles E. Clark, a solid waste engineer, and Thomas P. Dyke, an urban land planner. An-van, Inc., the owner of the Hillside Holiday Inn, presented Herbert Smith, an officer of that company. William A. McCann, an appraiser, was permitted by the Agency to submit a written analysis of the effect of the proposed sanitary landfill on surrounding properties and the Village’s appraisal expert, Theodore R. Kowalski, was afforded the opportunity to file a similar analysis, but none was filed.

Following the conclusion of the hearings, on August 14, 1979, the Agency approved the Quarry as a sanitary landfill site and transferred existing Edison permits to Sexton. On August 15, the Agency issued a supplemental development permit (No. 1979-1715) to Sexton allowing it, subject to certain specified conditions, to modify the development of the Quarry site in accordance with plans prepared by its engineer. Finally, on August 28, 1980, the Agency granted private defendants the operating permit for Phase I (No. 1975-57-OP) allowing them, subject to certain conditions, to operate a solid waste disposal site at the Quarry to handle general municipal solid waste — excluding liquid, special and hazardous waste. The existing permits authorize dumping operations at the Quarry up to a grade level.

By letter of August 18, 1980, the Village requested that certain conditions be imposed on the operating permit, including the right of the Village to inspect the operation daily to insure conformity with the Environmental Protection Act, the rules of the Pollution Control Board and the specific conditions of the development and operating permits issued for the Quarry. This request was denied, the Agency refusing to impose such requirements in the permits.

The Trial Court Hearings

The Village instituted this lawsuit on September 14, 1979, and evidence was heard and received in the trial court commencing on February 19, 1981, and concluding on April 29, 1981. The hearings corresponded to the two tasks before the trial court.

First, the trial court received and reviewed, by way of certiorari, the entire record of the Agency’s proceedings for review of the Agency’s issuance of the permits for the sanitary landfill site. Second, the trial court received supplemental testimony relevant to the Village’s complaint for declaratory and injunctive relief. The evidence presented is rather voluminous, consisting of numerous exhibits and substantial expert opinion testimony and will not be fully summarized here. For purposes of our determination, the following evidentiary summary is provided while additional evidence is incorporated in the opinion below as necessary.

The evidentiary record contains substantial testimony regarding the character of the area surrounding the Quarry site and its historical development, which basically is undisputed. The contested issues evolve essentially from the contradictory opinion evidence presented by the Village and private defendants regarding the impact of the sanitary landfill operation on the surrounding area. On these matters the Village presented an expert in land planning, Thomas Dyke, an expert in real estate appraisal, Francis S. Lorenz, Jr., and an expert in urban sciences, Pierre de Vise. Generally, their collective opinion was that the proposed sanitary landfill operation is not the highest and best use of the Quarry site; that its operation would adversely affect real estate values within a proximity to the site; and that the Village and its environs would experience a negative socio-economic impact if the sanitary landfill operation were permitted to continue. The private defendants presented testimony by an expert in land planning, Richard Stein, and by an expert in real estate appraisal, William McCann. Their opinion testimony was that the highest and best use of the property was for a sanitary landfill, and then ultimately for recreational and industrial pursuits; that the sanitary landfill is the only way to return to the site a future, economic, viable and productive use to the community within 10 to 12 years; and that such a use will have no reasonable or ascertainable impact on the use, value or marketability of surrounding commercial, industrial and residential properties. Also presented were testimony and exhibits relating to other sanitary landfills and their environs — the Village submitting testimony and land use exhibits on nine sites, Maryville, Richton Park, Blue Island, Lansing, Mallard Lake, Techney, Greene Valley, Summit and Calumet Industrial Districts, and private defendants introducing evidence of four additional sites, Oak Brook-Westchester, Barrington, Lake Bluff and Winnetka. After the parties submitted briefs and presented oral argument, the trial court upheld the Agency’s decision and found in favor of the Agency and private defendants and against the Village on its complaint for injunctive and declaratory relief, and this appeal followed.

Opinion

Plaintiff initially contends that the trial court erred in according the Agency decision the “presumption of validity.” In its final order of November 12, 1982, the trial court found that: “F. The Agency decisions issuing and transferring permits *** are entitled to a presumption of validity which may only be overcome by clear and convincing evidence ***.” This order was affirmed by this court in Village of Hillside v. John Sexton Sand & Gravel Corp. (1982), 105 Ill. App. 3d 533, 434 N.E.2d 382; however, in that appeal plaintiff chose not to argue this point. Under the rule that no question raised or which could have been raised in a prior appeal on the merits can be urged on a subsequent appeal (see Kazubowski v. Kazubowski (1970), 45 Ill. 2d 405, 259 N.E.2d 282; Turner v. Commonwealth Edison Co. (1978), 63 Ill. App. 3d 693, 380 N.E.2d 477), we deem this question waived. We note parenthetically, however, that our courts have consistently adhered to the rule that an administrative agency is entitled to a presumption that all of its official acts have been performed properly and that this presumption extends to a reading and consideration of the evidence. E.g., Des Plaines Currency Exchange, Inc. v. Knight (1963), 29 Ill. 2d 244, 194 N.E.2d 89, cert. denied (1964), 376 U.S. 969, 12 L. Ed. 2d 84, 84 S. Ct. 1136; Watra, Inc. v. License Appeal Com. (1979), 71 Ill. App. 3d 596, 390 N.E.2d 102.

Next, the plaintiff seeks reversal of the trial court’s denial of preliminary and permanent injunctive relief sought in its complaint, arguing that the proposed use of the Quarry for a sanitary landfill is unreasonable, it is not the highest and best use of the property, and it is unrelated to the health, safety and welfare of the public. Plaintiff further contends that the evidence establishes that the proposed use is not compatible with and beneficial to the surrounding area; that there will be a substantial effect on nearby property values; that such use is contrary to the Village zoning ordinance; and finally, that the trial court’s findings are contrary to the manifest weight of the evidence.

The parties agree that the instant case presents issues parallel to those considered in cases challenging zoning ordinances, and therefore that the standards for review and the factors for consideration of the challenge to the Agency’s decision to issue permits for the Quarry site are those announced in La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 145 N.E.2d 65, and repeatedly followed by Illinois courts. (See generally LaSalle National Bank v. City of Park Ridge (1979), 74 Ill. App. 3d 647, 393 N.E.2d 623.) The parties also agree that the Agency’s decision is, in effect, a decision to “rezone” the property in question. As indicated in La Salle National Bank v. County of Cook, “A zoning ordinance is presumptively valid [citation], this presumption may be overcome only by clear and convincing evidence [citation], and the burden of proof is on the plaintiff.” (12 Ill. 2d 40, 46, 145 N.E.2d 65, 69.) If, however, plaintiff shows that the Agency ordinance bears no relationship to the public health, safety and welfare, the ordinance is void. (La Salle National Bank v. County of Cook.) We believe that these principles apply to the review of the Agency decision here, and therefore that it was the burden of the Village to show by clear and convincing evidence that the Agency’s decision was unreasonable.

In reviewing the evidence, we note that six factors have been considered particularly relevant to reviewing the validity of zoning ordinances. As listed in La Salle National Bank v. County of Cook, these factors are: (1) the existing uses and zoning of nearby property; (2) the extent to which property values are diminished by the particular zoning restrictions; (3) the extent to which the destruction of property values of plaintiff promotes the health, safety, morals or general welfare of the public; (4) the relative gain to the public as compared to the hardship imposed upon the individual property owner; (5) the suitability of the subject property for the zoned purposes; and (6) the length of time the property has been vacant as zoned. (12 Ill. 2d 40, 46-47, 145 N.E.2d 65, 69.) No one factor is controlling, and the validity of each zoning ordinance must be determined on its own facts and circumstances. La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46-47, 145 N.E.2d 65, 69.

The criteria used by the Agency in determining the issue of land use and site suitability here are set forth in the “Nine Issues” summarized in the facts above. We find that these nine issues embody, at least, the traditional zoning criteria as prescribed in La Salle National Bank v. County of Cook, as well as the general purpose stated in section 20 of the Environmental Protection Act (111. Rev. Stat. 1979, ch. IIIV2, par. 1020). Thus, we need not decide further whether the standards applied by the Agency were appropriate, but rather whether plaintiff has met its burden of proving in the trial court that the Agency decision has no reasonable relationship to the public good.

As noted, much evidence was heard concerning the character of the Quarry, the make-up of the surrounding neighborhood, the highest and best uses of the land, the effect on valuations, the existing zoning and uses of nearby property, the suitability of the site for a sanitary landfill, pollution, vectors, etc. Each side presented expert opinion testimony sustaining its contentions and resulting in substantial difference of opinion. After examining the record we are satisfied that the trial court was justified in its conclusions. We are mindful of the conflict of testimony that a case of this nature and import naturally generates. However, we are ultimately bound by the rule that when testimony is contradictory in a trial without a jury, the weight to be accorded testimony is a matter to be determined by the trial court and its findings will not be disturbed unless clearly against the manifest weight of the evidence. (See, e.g., La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 48, 145 N.E.2d 65, 70.) We find the trial court’s findings on the land use and suitability of the Quarry as a sanitary landfill are supported by the evidence. Accordingly, we will not disturb them on review.

Next, the plaintiff urges this court to declare that Sexton lacked the requisite legal standing to apply for the transfer of landfill permits previously held by Edison since such application could only be made by the owner and operator of the site. Pollution Control Board Solid Waste Rule 205(d); see Village of Hillside v. Illinois Commerce Com. (1982), 111 Ill. App. 3d 25, 443 N.E.2d 710.

Solid Waste Rule 205(d) requires that:

“All permit applications shall be signed by the owner and operator of the solid waste management site or their duly authorized agents ***.”

Rule 104(¿) defines operator as: “a person who owns, leases, or manages a solid waste management facility.”

In its brief before this court, the Agency argues that Sexton was, indeed, managing the site under its authority to “commence development” of the site, and therefore qualified as an operator under the above definition. Similarly, Sexton points to the prospective nature of the permits in question, arguing that they relate specifically to the development phase and were issued to Sexton pursuant to its rights as a contract purchaser of the property. (See Western Pride Builders, Inc. v. City of Berwyn (1968), 99 Ill. App. 2d 250, 240 N.E.2d 269.) We find it unnecessary to review further the arguments presented challenging Sexton’s standing to apply for and receive transfer of Edison’s permits, or the new supplemental development permit. The issue of Sexton’s standing was not raised by objection before the Agency hearings, and we hold, therefore, that plaintiff has waived this issue. A defense not presented in the administrative hearing may not be raised in the court on review or upon appeal. (Robert S. Abbott Publishing Co. v. Annunzio (1953), 414 Ill. 559, 112 N.E.2d 101; Environmental Protection Agency v. Pollution Control Board (1976), 37 Ill. App. 3d 519, 346 N.E.2d 427; Gordon v. Department of Registration & Education (1970), 130 Ill. App. 2d 435, 264 N.E.2d 792.) This rule is based on the requirement of orderly procedure and the justice of holding a party to the results of his own conduct where otherwise a party would surprise his opponent and deprive him of an opportunity to contest the issue in the administrative hearing. (Robert S. Abbott Publishing Co.) Plaintiff argues that the waiver rule utilized in the above-cited cases applies only to administrative review proceedings and not to de novo declaratory judgment proceedings. We consider the above tenets to be equally applicable in the circumstances of the instant case, and we see no useful purpose served by the distinction suggested by plaintiff. Indeed, the instant complaint was in a significant respect, a petition for writ of certiorari to review the Agency’s decision to issue the sanitary landfill permits. The distinction between administrative review and a review pursuant to the common law writ of certiorari have all but disappeared in our State. (Smith v. Department of Public Aid (1977), 67 Ill. 2d 529, 367 N.E.2d 1286.) The declaratory relief herein sought so closely resembles an administrative review of the Agency proceedings that we determine that the waiver rule is particularly appropriate in the interests of justice and orderly procedure.

Finally, plaintiff seeks review of the Agency decisions pursuant to a common law writ of certiorari. Such a review is limited to our determination of whether the record contains any evidence which fairly tends to support the Agency’s findings. (S & F Corp. v. Daley (1978), 59 Ill. App. 3d 1024, 376 N.E.2d 699; Philbin v. Civil Service Com. (1978), 66 Ill. App. 3d 772, 384 N.E.2d 145.) Plaintiff, however, has failed to provide a report of the Agency proceedings on appeal as required by Supreme Court Rule 323(a) (73 Ill. 2d Rd. 323(a)). In the absence of a record sufficient to establish the error urged on review, a reviewing court will indulge in every presumption favorable to the judgment or order appealed from. (Schranz v. I. L. Grossman, Inc. (1980), 90 Ill. App. 3d 507, 412 N.E.2d 1378.) Without benefit of the Agency record, we cannot say that the Agency’s decision is not supported by the evidence. Accordingly, we will assume that the evidence presented at the hearing supports the trial court’s ultimate disposition of plaintiff’s petition for certiorari review.

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

Affirmed.

WILSON, P.J., and SULLIVAN, J., concur.

       Under the applicable provisions of the Environmental Protection Act (111. Rev. Stat. 1981, ch. IIIV2, par. 1001 et seq.) in effect at the time of the instant litigation, the Environmental Protection Agency maintained exclusive jurisdiction over sanitary landfill siting within non-home-rule municipalities. (Carlson v. Village of Worth (1975), 62 Ill. 2d 406, 343 N.E.2d 493.) As amended by Pub. Act 82 — 682, section 39(c) of the Act now requires initial siting approval by local governmental authorities. (111. Rev. Stat. 1981, ch. IIIV2, par. 1039(c).) In determining the issues raised herein, we consider only the prior, unamended provisions of the Act, and note this recent amendment as a matter of reference only.

       The Illinois Commerce Commission’s actions were the subject of an appeal before this court. Village of Hillside v. Illinois Commerce Com. (1982), 111 Ill. App. 3d 25, 443 N.E.2d 710.

       The Agency’s actions were the subject of an appeal before this court. Village of Hillside v. John Sexton Sand & Gravel Corp. (1982), 105 Ill. App. 3d 533, 434 N.E.2d 382.