author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIMOTHY H. SON, Defendant-Appellant.
    Second District
    No. 81—841
    Opinion filed December 22, 1982.

      G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, and Douglas Drenk and Robert L. Thompson, both of Konewko, Drenk & Thompson, Ltd., of Wheaton, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara Preiner, Assistant State’s Attorney, and Phyllis J. Perko, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Timothy H. Son, was charged by information with armed robbery and armed violence. In a bench trial, he was found guilty of both offenses and sentenced to seven years’ imprisonment on the armed robbery charge. On appeal, defendant raises the following issues: (1) whether certain pretrial identification procedures were unduly suggestive; (2) whether the State failed to show by clear and convincing evidence that an independent basis existed for his in-court identification; (3) whether the trial court abused its discretion when it struck without an evidentiary hearing defendant’s post-trial motion for a new trial based upon newly discovered evidence; (4) whether defendant was denied effective assistance of counsel; (5) whether the judgment of conviction entered for armed violence must be vacated; (6) whether the defendant was proved guilty beyond a reasonable doubt; and (7) whether cumulative error denied defendant a fair trial.

On June 28, 1979, at approximately 10:30 p.m. a man of oriental extraction entered the Taco Bell restaurant in Downers Grove, Illinois, approached the cash register, and requested that the cashier, Sherry Jones, give him change for a dollar. When Jones opened the register, the man drew a gun and demanded all the money. Jones backed away, and the man reached into the register, took money, and fled. A co-worker, Rebecca Fitzgerald, the only other person in the restaurant at the time, witnessed the robbery. The two witnesses each subsequently assisted the police in putting together composite drawings of the robber. Sherry Jones did not view any photographs until several days before trial at which time she identified the defendant from six photographs shown to her. She was told that Rebecca Fitzgerald previously had identified the defendant’s photograph from those shown her although Jones was not told which photograph was that of the defendant. Rebecca Fitzgerald viewed various photographs the evening of the armed robbery but was unable to make any identification. On August 30, 1979, Fitzgerald went to the Downers Grove police station, viewed various photographs, and picked out a photograph of the defendant whom she identified as the robber. An arrest warrant was issued for defendant on September 21, 1979, and he was subsequently arrested on December 11, 1979. He was released on bond on December 28, 1979.

Jones and Fitzgerald were the only witnesses who testified at trial for the State. Sherry Jones testified that she viewed the robber for about IV2 minutes at a distance of several feet; that she had no difficulty in observing the robber’s facial features; that the robber had a bandana across the top of his head and wore sunglasses; that defendant was the robber; and that her in-court identification of defendant was based upon her view of him on the night of the crime. During her cross-examination, defense counsel was furnished the six photographs from which Jones had selected defendant’s photograph several days before trial.

Rebecca Fitzgerald testified that she observed the robber from the time he walked into the restaurant; that she stood right next to Jones facing the robber during the crime; that nothing obstructed her view and that there were lights right above where the robber was standing; that she thought the whole occurrence took 10 to 12 seconds, but it could be shorter or longer; that she could observe the robber’s complexion, the shape of his eyes and cheekbones, and some of his hair; and she was positive of her identification in court of the defendant.

At the conclusion of the State’s case, the trial court denied a motion to strike all the testimony on the basis of the pretrial identification procedures. The defendant then testified he did not commit the armed robbery. He further testified that on the day of trial an assistant State’s Attorney approached him, and, in the presence of Jones and Fitzgerald, asked if he was Tim or his brother. On redirect examination, he testified that he had been arrested “a couple of times” for things his brother had done.

Two assistant State’s Attorneys testified in rebuttal that they had approached defendant in the hall on the day of trial and spoke to him briefly about whether he was Tim or his brother, but denied the two witnesses were present at that time.

On June 17, 1980, at the conclusion of trial, the court found the defendant guilty of both armed robbery and armed violence. New privately retained counsel, substituted for defendant’s privately retained trial counsel on August 14, 1980, then filed a motion for new trial claiming newly discovered evidence. Attached to the motion was a copy of a transcript of a statement given to a court reporter under oath by defendant’s brother which, in substance, related that he had committed the robbery at the Taco Bell restaurant on the evening in question. The State thereafter moved to strike the motion for new trial and contended that the motion for new trial failed to include an affidavit setting forth a statement of the defendant’s due diligence in attempting to discover all evidence favorable to his defense prior to trial. After hearing oral arguments on the motion to strike, the trial court granted the motion to strike. A later motion for post-trial relief filed by defendant setting forth various allegations of trial error was denied. After a sentencing hearing, defendant was sentenced to seven years’ imprisonment.

Defendant first contends that the State’s failure to “turn over” composite drawings and photographs used in several pretrial photographic showups, and failure to provide notice of a photographic lineup held several days before trial, violated his right to discovery. While no discovery motion was made by the defendant, the court entered a form discovery order on its own which required, inter alia, that the State disclose to defendant’s attorney all matters as required by sections (a), (b), and (c), of Supreme Court Rule 412 (87 Ill. 2d R. 412), and provide copies of those materials that lend themselves to copying, and as to other materials, permit the defense to make an examination or photograph thereof. The State filed a document entitled “Disclosure to the Accused” which recited, in part, that “[a]ll physical exhibits are in the custody of the Downers Grove Police Department. They may be viewed by appointment at a mutually convenient time.” The supplemental record includes a police report which makes reference to two photographic lineups and the identification of defendant by a witness, Rebecca Fitzgerald.

Supreme Court Rule 412(a)(v) (87 Ill. 2d R. 412(a)(v)) provides for disclosure of “any books, papers, documents, photographs or tangible objects which the prosecuting attorney intends to use in the hearing or trial or which were obtained from or belong to the accused.” The composite drawings and photographs used in the various photographic lineups were not used by the State at trial, nor were they obtained from, nor did they belong to, the defendant. Unless photographs are favorable to the defense, they are not automatically discoverable by the defendant unless the prosecution intends to use them at trial or unless they were obtained from, or belonged to, defendant. (People v. Newbury (1972), 53 Ill. 2d 228, 238, 290 N.E.2d 592; People v. Sakalas (1980), 85 Ill. App. 3d 59, 70-71, 405 N.E.2d 1121; People v. Molsby (1978), 66 Ill. App. 3d 647, 655, 383 N.E.2d 1336.) Moreover, there is no indication in this record of evidence not disclosed which is favorable to the defendant, such as a misidentification, or an inability to make an identification when shown photographs which include that of the defendant. (See People v. Elston (1977), 46 Ill. App. 3d 103, 360 N.E.2d 518.) Thus, under the discovery order here which required only disclosure in conformance with Rule 412(a)(v), we reject defendant’s contention that there was a discovery violation by the State’s failure to “turn over” photographs used in the various lineups and any composite drawings of defendant as they were not used at trial or obtained from or belong to the defendant.

Defendant also maintains that the State’s failure to provide defendant with this pretrial identification information and the failure to notify defendant of the photographic lineup conducted a few days before trial resulted in surprise, unfairness and his inadequate preparation which deprived him of due process and the right to a fair trial. Insofar as this argument relates to any discovery violation, it is rejected. The State complied with the discovery order and defendant does not cite us to any rule violation other than that previously contended relating to the State’s duty to “turn over” this material, which we rejected above. In fact, we note that the State did answer in its discovery disclosure that all physical exhibits may be viewed by appointment, thereby affording defendant a further opportunity to view the photographs and composite drawings even though not required under the rule since they were not used in trial. It was defendant’s obligation to pursue additional discovery, if necessary, or follow up on the State’s disclosure provided to him. Nor do the discovery rules require notice to the defendant of a photographic lineup. Accordingly, we find the State complied with all discovery as required under the rule and as ordered in the trial court’s discovery order. Nothing the State did denied the defendant the opportunity for a pretrial hearing on the question of the identification procedures. During the trial, the defendant was given adequate opportunity to cross-examine the State’s witnesses on out-of-court identification procedures and, in fact, this was done. We find no merit to this argument.

Defendant next maintains that shortly before trial began, while he was waiting in the hallway outside the courtroom, the prosecutor approached him and in the presence of the two witnesses, Fitzgerald and Jones, asked him if he was Timothy Son. He asserts this resulted in an impermissible one-man showup. Two assistant State’s Attorneys, however, testified that although this conversation with the defendant occurred, the witnesses were not present at that time. The trial court, at the time it found defendant guilty, specifically found that the defendant’s testimony was not believable and accepted the two prosecutors’ version of that occurrence. In a bench trial, it is the province of the trial court to determine the credibility and weight of the testimony, to resolve inconsistencies and conflicts therein, and to render its decision accordingly. The trial court, unlike the reviewing court, was in a position to observe the witnesses. (People v. Berland (1978), 74 Ill. 2d 286, 305-06, 385 N.E.2d 649; People v. McCoy (1979), 78 Ill. App. 3d 157, 162, 397 N.E.2d 79.) We find no basis to disturb the findings of the trial court on this issue, and we reject defendant’s argument.

In addition, defendant contends that the witness, Sherry Jones, remained in the courtroom after all witnesses had been excluded, thus allowing her to view the defendant when he approached the bench after the case was called for trial. While the record does indicate that Jones admitted viewing the defendant approach the bench when the case was called, it also reveals that the motion to exclude witnesses was not made until a short while after the case was announced. From our examination of the record, Jones’ presence in the court at the start of trial does not indicate an intentional design by the State to have a showup. Rather, she was simply present to testify, and subsequently did testify as the State’s first witness. (See People v. Wolf (1977), 48 Ill. App. 3d 736, 740, 363 N.E.2d 402.) The State has no duty to conceal a defendant from all potential witnesses throughout all preliminary hearings preceding an actual trial (People v. Martin (1970), 47 Ill. 2d 331, 338, 265 N.E.2d 685), nor should one be self-imposed at trial.

The defendant also contends that a photographic showup approximately one year after the crime and several days before trial at which the prosecutor handed the witness, Sherry Jones, six photographs and advised her that Rebecca Fitzgerald had already identified one of the pictures as that of the robber was improper and impermissibly suggestive. While showing a defendant’s photograph just prior to trial to a witness who has never made an identification of a defendant has been condemned (People v. Martin (1970), 47 Ill. 2d 331, 338, 265 N.E.2d 685, People v. Freeman (1978), 60 Ill. App. 3d 794, 802, 377 N.E.2d 107, aff’d (1979), 79 Ill. 2d 147, 402 N.E.2d 157), the “highly suggestive” procedure employed in Martin and Freeman was the showing of a defendant’s photo alone. Here, the witness was shown six photographs, and there is no challenge on this appeal that the photographs themselves were suggestive. Moreover, while it is preferable that the witness not be told that a suspect is included in a particular photoarray, that will not taint an otherwise fair identification procedure. (People v. Harrell (1982), 104 Ill. App. 3d 138, 146, 432 N.E.2d 1163.) The fact that a witness is told that a suspect was included in the lineup may be a statement of the obvious. (People v. Young (1981), 97 Ill. App. 3d 319, 323-24, 422 N.E.2d 1158; People v. Carlton (1979), 78 Ill. App. 3d 1098, 1104, 398 N.E.2d 107.) We do not find the procedure complained of here unduly suggestive.

However, even assuming the procedure employed to obtain Jones’ identification of defendant was impermissibly and unnecessarily suggestive, this does not automatically mean that her in-court identification of defendant must be set aside. (People v. Canity (1981), 100 Ill. App. 3d 135, 146, 426 N.E.2d 591.) While it is the defendant’s burden to establish that the pretrial confrontation was impermissibly suggestive, once accomplished, the State may nevertheless overcome that obstacle, by a clear and convincing showing, based on the totality of the surrounding circumstances, that the witness is identifying the defendant solely on the basis of his memory of events at the time of the crime. (People v. McTush (1980), 81 Ill. 2d 513, 520, 410 N.E.2d 861.) We may determine this from an examination of the record. (People v. McTush; People v. Allender (1977), 69 Ill. 2d 38, 43-44, 370 N.E.2d 509.) As stated in Manson v. Brathwaite (1977), 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243, reliability is the linchpin in determining the admissibility of identification testimony. (432 U.S. 98, 114, 53 L. Ed. 2d 140, 154, 97 S. Ct. 2243, 2253.) The factors to be considered are set forth in People v. McTush:

“The factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. (Neil v. Biggers (1972), 409 U.S. 188, 199, 34 L. Ed. 2d 401, 411, 93 S. Ct. 375, 382; see People v. Manion (1977), 67 Ill. 2d 564, 571.) This court has added another factor in determining whether a witness’ identification has an independent origin: ‘any acquaintance with the suspect prior to the crime.’ People v. Blumenshine (1969), 42 Ill. 2d 508, 514.” (81 Ill. 2d 513, 521, 410 N.E.2d 861.)

Each case must be examined in light of the facts in the record.

Sherry Jones viewed defendant at the time of the crime under good lighting conditions from a distance of approximately three to four feet; her view was not obstructed; she had no difficulty in describing his features; and she was attentive during the V-lz minutes she saw the defendant. She testified that her in-court identification was based on her view of the defendant on the date of the crime. The trial court specifically found both witnesses alert, articulate and credible and their identification of defendant very persuasive and reliable. It further found their identification of defendant not to be tainted by any out-of-court identification. We conclude that applying the factors set forth in McTush, the reliability of Sherry Jones’ identification testimony was established sufficiently to allow it into evidence. While the testimony of Rebecca Fitzgerald was also reliable under these factors, this finding is unnecessary as defendant has demonstrated nothing “unduly suggestive” about the procedures used in her out-of-court identification of defendant.

Defendant has also challenged his conviction on the basis that the sole evidence against him was the eyewitness testimony of Jones and Fitzgerald which, he asserts, is insufficient to establish his guilt beyond a reasonable doubt. The testimony of a single occurrence witness is sufficient to support a conviction even though such testimony is contradicted by the accused, provided the witness is credible and he viewed the accused under such circumstances as would permit a positive identification to be made. (People v. Stringer (1972), 52 Ill. 2d 564, 569, 289 N.E.2d 631.) In a bench trial, the credibility of witnesses and the weight to be afforded their testimony is determined by the trial court, whose judgment will not be set aside unless the proof is so unsatisfactory as to create a reasonable doubt of guilt. People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313; People v. Sakalas (1980), 85 Ill. App. 3d 59, 68, 405 N.E.2d 1121.

In the instant case, the two identifying witnesses viewed the defendant during the holdup under good lighting conditions, with an unobstructed view, and for a sufficient length of time to make an identification. Both witnesses made a positive in-court identification which the trial court found very persuasive and reliable. The defendant’s testimony was that he did not commit the armed robbery. Where the evidence is irreconcilably conflicting, it is the particular prerogative of the trier of fact to ascertain the truth. (People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313.) We find the evidence here sufficient to prove the defendant guilty beyond a reasonable doubt.

Next, defendant contends that the trial court abused its discretion when it struck, without an evidentiary hearing, his motion for a new trial which was based upon the newly discovered evidence of his brother’s statement that he committed the robbery at the Taco Bell restaurant. The trial court did strike the defendant’s motion, stating that the absence of any statement of due diligence in discovering this evidence coupled with the defendant’s statement at trial that he had been arrested a couple of times for what his brother had done was a fatal defect in the motion.

In People v. Miller (1980), 79 Ill. 2d 454, 404 N.E.2d 199, our supreme court restated the criteria to be considered in reviewing the circuit court’s denial of a motion for a new trial based upon newly discovered evidence, as follows:

“A succinct and oft-cited summary of criteria to be considered in reviewing the circuit court’s denial of a motion for a new trial is found in People v. Baker (1959), 16 Ill. 2d 364. The court there said: ‘A motion for a new trial on the ground of newly discovered evidence is addressed to the discretion of the trial judge and denial thereof will not be disturbed upon review in the absence of a showing of an abuse of discretion. [Citation.] To warrant a new trial, the new evidence must be of such conclusive character that it will probably change the result on retrial, that it must be material to the issue but not merely cumulative, and that it must have been discovered since the trial and be of such character that it could not have been discovered prior to trial by the exercise of due diligence. [Citations.]’ (16 Ill. 2d 364, 373-74.) In an earlier case, the court also held: ‘Applications for a new trial on the ground of newly discovered evidence are not looked upon with favor by the courts, and in order to prevent, so far as possible, fraud and imposition which defeated parties may be tempted to practice, as a last resort, to escape the consequence of an adverse verdict, such application should always be subjected to the closest scrutiny by the court, and the burden is upon the applicant to rebut the presumption that the verdict is correct and to show there has been no lack of diligence. The matter is largely discretionary with the trial court, and the exercise of its discretion will not be disturbed except in case of manifest abuse.’ (People v. Holtzman (1953), 1 Ill. 2d 562, 569; see also People v. Reese (1973), 54 Ill. 2d 51, 59; People ex rel. Walker v. Pate (1973), 53 Ill. 2d 485, 491-94.)” 79 Ill. 2d 454, 464-65, 404 N.E.2d 199.

In this appeal, the focus of our inquiry is whether the newly discovered evidence was of such a character that it could not have been discovered before trial by the exercise of due diligence. It has been held that a motion for new trial alleging newly discovered evidence must be accompanied by the defendant’s affidavit showing his lack of prior knowledge of this evidence and his due diligence in obtaining it. (People v. Gray (1981), 96 Ill. App. 3d 757, 762, 422 N.E.2d 45; People v. Boyce (1977), 51 Ill. App. 3d 549, 562-63, 366 N.E.2d 914.) The failure to attach an affidavit that the evidence could not have been discovered prior to trial by the exercise of due diligence has resulted in the denial of a motion for new trial without an evidentiary hearing. (See People v. Gray; People v. Boyce.) Even where there has been an evidentiary hearing, this court has held that the failure to exercise due diligence in discovering the evidence prior to trial is sufficient alone to deny the motion for new trial without reaching the issue of whether the evidence proposed would have properly warranted the granting of a new trial. (People v. Moore (1980), 81 Ill. App. 3d 614, 404 N.E.2d 276.) It is incumbent upon the defendant to show how he learned of the witness in order to establish the witness’ previous inaccessibility. (People v. Starr (1976), 37 Ill. App. 3d 495, 501, 346 N.E.2d 410.) The court may look to the record to determine whether such evidence is newly discovered. See People v. Pavic (1982), 104 Ill. App. 3d 436, 450-51, 432 N.E.2d 1074; People v. Petrovic (1981), 102 Ill. App. 3d 282, 288-89, 430 N.E.2d 6.

In the instant case, there is no affidavit by defendant or his attorney showing a lack of prior knowledge of the new evidence and due diligence in discovering it; there is no indication in defendant’s brother’s statement relating when or why he disclosed his commission of the crime to defendant; there was no attempt by defendant to counter the lack of due diligence argument after the State filed its motion to strike on that basis; and there is evidence in the record that at trial defendant testified that a couple of times he was mistakenly arrested for his brother’s crimes. At the hearing below on the State’s motion to strike defendant’s motion for a new trial, the defendant argued that an affidavit setting forth due diligence was unnecessary, that due diligence was an element to be proved at a later evidentiary hearing, and that he elected to stand upon his general allegation in his motion for new trial that “such evidence could not have been discovered prior to trial as *** defendant at the time of trial had no idea as to who committed said offenses and that the presence and location of Daniel Son was not known until after said trial.” Under these circumstances, we find a total failure by defendant to represent by affidavit, or by any other competent method, that the newly discovered evidence could not have been discovered prior to trial by the exercise of due diligence. To prevent the possibilities of fraudulent claims of newly discovered evidence, such motions for new trial are looked upon with disfavor by the courts and subjected to the closest inspection. (People v. Wolf (1977), 48 Ill. App. 3d 736, 741, 363 N.E.2d 402.) Where, as here, the record at trial indicates that defendant testified he was arrested before for his brother’s crimes and defendant has failed to make any effort to support by affidavit or by other competent method his bare allegation in his motion for new trial that the evidence could not have been discovered before trial, we find no abuse of discretion in the dismissal of the motion without an evidentiary hearing.

In his brief, defendant has asserted that he was denied effective assistance of counsel by his trial counsel’s failure to move to suppress his identification prior to trial, his failure to examine photographs, drawings and composites used by the witnesses before trial, his failure to call the police officers attending the pretrial identification procedures to determine the nature and circumstances of the pretrial identification process, and his failure to provide defendant’s post-trial counsel with an affidavit regarding the due diligence employed in gathering any evidence of defendant’s brother’s involvement in the crime. The State contends this issue is waived by the failure of defendant’s post-trial counsel to raise this in his written post-trial motion. In his reply brief, defendant contends he also has alleged the ineffective assistance of counsel by his post-trial counsel for his failure to specify ineffective assistance of trial counsel in the post-trial motion.

Examination of defendant’s initial appellate brief indicates that no issue was raised pertaining to the effective assistance of his post-trial counsel. While the issue is raised in defendant’s reply brief, this is in direct violation of Supreme Court Rule 341(e)(7) and (g) (87 Ill. 2d R. 341(e)(7), (g)) and we consider the point waived. (See People v Slaughter (1980), 84 Ill. App. 3d 88, 94, 404 N.E.2d 1058.) Rule 341 is applicable to criminal as well as civil appeals. Supreme Court Rule 612(1) (87 Ill. 2d R. 612(i)).

While defendant in his appellate brief did raise the ineffective assistance of his trial counsel, the failure to include this point in his written post-trial motion, in bench as well as jury trials, is a waiver of review of this contention appeal. (See People v. Christiansen (1981), 96 Ill. App. 3d 540, 542, 421 N.E.2d 570.) In People v. Precup (1978), 73 Ill. 2d 7, 382 N.E.2d 227, and People v. Williams (1981), 94 Ill. App. 3d 241, 256-57, 418 N.E.2d 840, additional counsel was permitted to enter the case and to participate in the preparation and argument of the motion for a new trial, but he failed to address the issue of ineffective assistance of counsel made on appeal. In both Precup and Williams the issue was considered waived.

Even addressing the issue, we find no basis for reversal. The same standard in reviewing competency of counsel pertains to retained and appointed counsel. The standard is whether defendant’s attorney was actually incompetent in carrying out his duty to his client to defendant’s substantial prejudice. (People v. Lovitz (1981), 101 Ill. App. 3d 704, 710, 428 N.E.2d 727; People v. Ortiz (1981), 96 Ill. App. 3d 497, 421 N.E.2d 556.) Counsel’s decision not to make a motion to suppress identification may be an error in judgment, but such an error does not establish incompetency. (See, e.g., People v. Washington (1968), 41 Ill. 2d 16, 21, 241 N.E.2d 425; People v. Ortiz.) However, trial counsel did move to strike both eyewitnesses’ testimony after the State rested, on the basis of the pretrial identification procedures, and, as we concluded above, the procedures were not unduly suggestive. Trial counsel’s failure to view the photographs and composite drawings referred to in the police reports and his failure to call police officers to testify relative to the pretrial identification procedures are tactical matters left to counsel’s judgment. (See People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203; People v. Elder (1979), 73 Ill. App. 3d 192, 391 N.E.2d 403.) Nor is there any substance to the argument that trial counsel failed to provide post-trial counsel with an affidavit regarding his diligence in gathering any evidence of defendant’s brother’s involvement in the crime. There is nothing in this record that indicates he received such a request, nor did he remain as counsel once post-trial counsel was substituted for him. Competency of trial counsel should be judged from the totality of his conduct at trial, not on the basis of what appellate counsel might have done in his stead. (People v. Nutall (1980), 91 Ill. App. 3d 758, 767, 415 N.E.2d 628.) From our review of the record, we conclude that trial counsel represented his client vigorously, ably, and on the whole, sufficiently to preclude a finding of incompetency.

Finally, defendant contends that the trial court should not have entered judgments of conviction on both the armed robbery and armed violence counts since they both arise out of the same physical act. Even though no sentence was imposed on the armed violence count, neither a judgment nor a sentence may be entered where the same physical act is the basis for both the armed violence and armed robbery charges. (People v. Donaldson (1982), 91 Ill. 2d 164, 170, 435 N.E.2d 477; People v. Lucien (1982), 109 Ill. App. 3d 412, 419, 440 N.E.2d 899; People v. Tyllas (1981), 96 Ill. App. 3d 1, 5, 420 N.E.2d 625.) Accordingly, the judgment of conviction entered on the armed violence count must be vacated.

For the foregoing reasons, we affirm the defendant’s conviction and sentence for armed robbery, and we vacate the judgment of conviction for armed violence.

Affirmed in part and vacated in part.

UNVERZAGT and NASH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE NASH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LAWRENCE BAYLOR, Defendant-Appellant.
    Second District
    No. 81—751
    Opinion filed December 28, 1982.

      G. Joseph Weller and Marilyn Martin, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, for the People.
   JUSTICE NASH

delivered the opinion of the court:

Defendant, Lawrence Baylor, was found guilty of attempted murder (Ill. Rev. Stat. 1979, ch. 38, pars. 8—4(a) and 9—1(a)(1)) after trial by jury and was sentenced to a term of 30 years imprisonment. He appeals, contending: (1) improper argument by the prosecutor was prejudicial; (2) the trial court abused its discretion in imposing the maximum term sentence of 30 years; and (3) cumulative errors denied him a fair trial.

A North Chicago police officer testified at trial that at 1:30 a.m. on May 1, 1981, he was patrolling in an area known as the “strip” near the Great Lakes Naval Base. He had stopped a car for a minor traffic violation in which two black men and a white man were riding. While seeking to determine the ownership of the car, the officer received a radio call regarding another matter in which someone had been injured. He then advised the two black men to return to Chicago in the car and the white man to go back to the base. At trial, the officer identified defendant as the driver of the car.

James Egan testified he was in the Navy on May 1, 1981, stationed at Great Lakes Naval Base. He had been paid on April 30 and, while visiting bars near the base, met an acquaintance named Sikes who introduced him to defendant. Egan asked for a ride back to the Sheraton Hotel and as the three men were driving they were stopped by an officer. The officer told Egan to go back to the base and he walked off in that direction. Shortly thereafter the men drove up to him in the car and Egan rejoined them. After driving around for about an hour, the car stopped on a road in a dark area near an apartment complex. The driver went back to the trunk and opened it and Egan followed him.

The driver, who Egan identified in trial as defendant, removed an object from the trunk and pointed it at Egan telling him to drop his wallet. Egan then attempted to kick defendant with his right foot and was shot; he turned and started to run, then lost consciousness. A doctor testified Egan had been injured by a shotgun fired from close range and sustained a four-inch wide chest wound and loss of his left kidney. There were pellet wounds to the stomach, colon, diaphragm and lung and a colostomy was performed; further surgery will be required.

Officers Steven Anderson and Timothy Neimietz testified they interviewed defendant on May 5, 1981, and, after advising him of his Miranda rights, defendant signed a rights waiver form and subsequently signed a written confession. A motion to suppress the confession was heard during trial outside the presence of the jury. Defendant there testified he signed the confession because one of the officers yelled at him and he was grabbed by the neck, struck and his head hit against the wall. Defendant also stated he was threatened with a 20 to 40 year sentence if he did not sign the confession and thought he would “get off” if he did so. The officers also testified denying the use of force or threats against defendant and the trial court denied the motion to suppress.

Officers Anderson and Neimietz testified before the jury that defendant told them he knew the end of the month was payday for the Navy and he could get money by robbing a sailor. He and Lawler Sikes borrowed a car and drove to Waukegan from Chicago after stopping at defendant’s home to put his sawed-off shotgun in the trunk of the car. In Waukegan they picked up a sailor and later were stopped by police; when the police left the sailor got back in the car. The three men drove around; then defendant found a dark road and got out of the car, saying he was going to get marijuana the sailor wanted. At the trunk of the car defendant pointed the shotgun at the sailor and told him to drop his wallet; when the sailor backed up quickly, defendant said he pointed the gun at his abdomen and pulled the trigger. Defendant put the shotgun back in the car trunk and drove to a friend’s house in Waukegan, returning to Chicago the next day. Although it was not included in the written confession, Office Neimietz testified defendant had also said, “I did it on purpose.”

Defendant testified in trial that he and Sikes came to North Chicago on the night of April 30 to meet friends. They stopped at a club where a man approached and inquired if defendant wanted to sell some marijuana. After leaving the club with the man they were stopped by police who told defendant to return to Chicago and the sailor to return to the base. Defendant testified he next saw Egan in court and had not attempted to rob him or shoot him. Defendant also testified he had made the statement to Officers Anderson and Neimietz and signed the typewritten confession involuntarily because of physical and mental force applied to him.

Defendant contends first that in argument the assistant State’s Attorney’s comments that defendant had presented inconsistent defenses was improper and prejudicial. Defendant failed, however, to preserve that issue for review by first raising it in his post-trial motion for consideration by the trial court. (People v. Lucas (1981), 88 Ill. 2d 245, 250, 430 N.E.2d 1091, 1093; People v. Jackson (1981), 84 Ill. 2d 350, 358-59, 418 N.E.2d 739, 743.) Nor does the fact defendant objected to the alleged erroneous argument when made in trial preserve it for review when such claim of error was not also included in his post-trial motion. People v. Tannenbaum (1980), 82 Ill. 2d 177, 181, 415 N.E.2d 1027, 1029-30; Wilson v. Clark (1981), 84 Ill. 2d 186, 189, 417 N.E.2d 1322, 1324, cert. denied (1981), 454 U.S. 836, 70 L. Ed. 2d 117, 102 S. Ct. 140.

We need not consider whether this issue may be reviewed under the plain error doctrine of Supreme Court Rule 615(a) (73 Ill. 2d R. 615(a)), although waived, as in our view the disputed argument was fair and responsive comment directed to the evidence and argument made by defendant’s counsel.

Defendant had testified he was not present during the commission of the offense and his counsel argued to the jury that, even if he had been present, under the evidence it was not shown defendant had the requisite intent to Mil necessary to his conviction. Reasonably enough, the prosecutor pointed out in final argument that the jury was being tendered inconsistent defenses from which to choose. Where defendant’s argument invites or provokes an obvious response from the prosecutor, he may not complain he was thereby prejudiced. People v. Vriner (1978), 74 Ill. 2d 329, 344, 385 N.E.2d 671, 677, cert. denied (1979), 442 U.S. 929, 61 L. Ed. 2d 296, 99 S. Ct. 2858; People v. McElroy (1980), 81 Ill. App. 3d 1067, 1073-74, 401 N.E.2d 1069, 1074.

Defendant next contends that in imposing the maximum 30 year sentence of imprisonment for attempted murder (Ill. Rev. Stat. 1979, ch. 38, pars. 8—4(c)(1), 1005—8—1(a)(3)), the trial court abused its discretion by failing to consider or give adequate weight to the evidence of defendant’s potential for rehabilitation as is required by the constitution (Ill. Const. 1970, art. I, sec. 11).

At the sentencing hearing the presentence report disclosed that defendant was 20 years of age, a high school graduate and was engaged to be married to the mother of his two children. He had served for 15 months in the Navy, receiving a “General Discharge under Honorable Conditions,” and had been employed for about three months as a factory worker prior to his arrest. Defendant had no record of prior juvenile adjudications or criminal convictions. The State’s Attorney sought imposition of an extended term sentence in excess of 30 years, pursuant to section 5 — 5—3.2(b)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005—5—3.2(b)(2)), arguing that the severe injuries inflicted by defendant upon his victim were indicative of wanton cruelty. The trial court concluded, however, it could not impose an extended term under the language of the statute.

Before sentencing defendant the trial judge commented he had reviewed the factors in mitigation and aggravation set forth in sections 5 — 5—3.1 and 5 — 5—3.2 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, pars. 1005—5—3.1, 1005—5—3.2), the presentence report describing defendant’s personal background and history and the evidence at trial of the circumstances of the offense. The court noted particularly the serious injuries sustained by the victim and the testimony of the police officer that defendant had stated the gun did not go off accidentally, but that he did it on purpose. The court noted defendant had placed a loaded shotgun in the car trunk before going to Waukegan, then removed it to shoot the victim, concluding he intended to do so.

Defendant argues that in imposing the maximum sentence the trial court “resigned to total retribution” a person whose background evidences that he has a chance to be restored to useful citizenship and ignored his rehabilitative potential. He urges the sentence be reduced as have others involving heinous crimes. People v. Goodwin (1980), 83 Ill. App. 3d 203, 403 N.E.2d 1051; People v. Goodman (1981), 98 Ill. App. 3d 743, 424 N.E.2d 663, appeal denied (1981), 85 Ill. 2d 579; People v. Williams (1978), 62 Ill. App. 3d 966, 379 N.E.2d 1268; People v. Smith (1977), 50 Ill. App. 3d 320, 365 N.E.2d 558, cert. denied (1978), 435 U.S. 1008, 56 L. Ed. 2d 390, 98 S. Ct. 1880; People v. Gibbs (1977), 49 Ill. App. 3d 644, 364 N.E.2d 491; People v. Wilkins (1976), 36 Ill. App. 3d 761, 344 N.E.2d 724.

Reviewing courts have the power under Supreme Court Rule 615(b)(4) (73 Ill. 2d R. 615(b)(4)) to reduce a sentence if the trial court abused its discretion in imposing it. (People v. La Pointe (1981), 88 Ill. 2d 482, 492, 431 N.E.2d 344, 348.) We are mindful, however, that the trial judge is in a better position to determine what is a suitable sentence than is a reviewing court. (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 883.) Here the trial court did take into consideration the statutory factors together with evidence of defendant’s premeditation, deliberate conduct and the devastating injuries to his victim resulting therefrom. The judge obviously concluded that these matters heavily outweighed the evidence, also considered by him, that defendant had not previously been convicted of criminal conduct. Under the circumstances of this case, we cannot say the trial court abused its discretion in sentencing defendant. See People v. Jenkins (1978), 67 Ill. App. 3d 565, 570, 384 N.E.2d 1348, 1352; People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344.

Defendant also contends he was denied a fair trial because of other cumulative errors.

He argues first his conviction by an all-white jury violated his right to trial by a jury comprised of a fair cross-section of the community. However, as no evidence was presented of the systematic exclusion of blacks from the jury, defendant’s constitutional rights were not infringed. People v. Butler (1970), 46 Ill. 2d 162, 164, 263 N.E.2d 89, 90; People v. Fleming (1980), 91 Ill. App. 3d 99, 107, 413 N.E.2d 1330,1333-34, appeal denied (1981), 83 Ill. 2d 571.

Defendant further argues that the trial court erred in denying the motions to suppress his confession and his in-court identification by the victim which was alleged to have been tainted by a suggestive pretrial photographic identification. We have considered the evidence upon which the trial court denied defendant’s motions and conclude it did not err. The court found from the evidence that defendant was fully advised of his Miranda rights and understanding^ waived them without coercion by the police officers. In doing so the court determined the credibility of the witnesses in resolving the factual disputes, and we cannot say its conclusion was contrary to the manifest weight of the evidence. It is also apparent that the victim’s in-court identification of defendant was made independently of the prior photo identification. The victim was with his assailant for over an hour and had ample opportunity in that time to observe him under well-lighted conditions.

Nor do we find merit in defendant’s final argument he was denied effective assistance of counsel. The question presented in whether counsel was actually incompetent in carrying out her duties to her client to his substantial prejudice. (People v. Lewis (1981), 88 Ill. 2d 129, 154, 430 N.E.2d 1346, 1357-58, cert. denied (1982), 456 U.S. 1011, 73 L. Ed. 2d 1308, 102 S. Ct. 2307; People v. Lovitz (1982), 101 Ill. App. 3d 704, 710, 428 N.E.2d 727, 731.) Defendant’s attorney ably presented his defense and sought to suppress or reduce the effect of the State’s evidence. Counsel’s failure to include the “all-white jury” issue in the post-trial motion does not suggest incompetence; as we have noted, it was without substance.

Accordingly, the judgment of the circuit court will be affirmed.

Affirmed.

HOPE and UNVERZAGT, JJ., concur.


author: PRESIDING JUSTICE SEIDENFELD

text:
    THE COUNTY OF KANE, Plaintiff-Appellee, v. ELMHURST NATIONAL BANK, Trustee, et al., Defendants-Appellants.
    Second District
    Nos. 82—532, 82—651 cons.
    Opinion filed December 28, 1982.

      Edward T. Graham, of Glen Ellyn, for appellants.
    Robert J. Morrow, State’s Attorney, of Geneva (Edgar K. Collison, III, Assistant State’s Attorney, of counsel), for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

The County of Kane (County) filed complaints in the nature of equitable bills for discovery against the defendant landowners and thereafter filed a motion for “pre-pleading discovery.” It sought permission to enter the land of the defendants, Elmhurst National Bank, as trustee under Trust No. 3000, Frederick E. Haskins and Mary L. Haskins (the Owners) to conduct surveys, appraisals and subsoil tests preliminary to condemning the lands for highway construction purposes. The defendants filed motions to dismiss alleging that neither the provisions of the Illinois Highway Code relied upon by the County (Ill. Rev. Stat. 1979, ch. 121, par. 4—503) nor Supreme Court Rule 214 (73 Ill. 2d R. 214) authorize the relief sought in the absence of the owners’ consent; and alleging alternatively that if so construed a violation of defendants’ constitutional rights would ensue. The trial court denied the motion to dismiss the complaint. The motion of the County for prepleading discovery pursuant to Supreme Court Rule 214 was granted and the court entered the following order:

“It is hereby ordered that the County of Kane or its agents are allowed to reasonably enter the premises and allowed to take and perform necessary and reasonable and necessary [sic] procedures in securing a survey, appraisal and subsoil and geologic samples outlined in the following manner:
Jerry Hines to come upon the property to survey (with transit) and Stake the Center line of the proposed highway by placing stakes every 100’ (small stakes), that soil and material services shall enter the premises with a small jeep like vehicle with an auger on the back and every three hundred feet take a soil boring and at special insistence of Plaintiff’s attorney and after soil boring made and geologic study completed shall fill said hole. Finally Robert Lightner shall enter the premises and appraise both the vacant parcel and appraise said home on parcel. That this entire process shall be over 8 working days and any damages done shall be paid for. That at least 4 days advance notice is needed to have and coordinate all parties so that a minimum of inconvenience shall be done to Defendants”

from which the Owners appeal.

A preliminary question arises from the County’s motion to dismiss the appeal which we have taken with the case. The County argues that the order, being a grant of a discovery motion, is not appealable under Supreme Court Rule 307(a)(1) (73 Ill. 2d R. 307(a)(1)), since, while injunctive relief was prayed for in the complaint, it was not granted in the order. Generally, preliminary orders in a pending suit are not appealable because they are reviewable on appeal from the final order in the suit. (Durkin v. Hey (1941), 376 Ill. 292, 297.) Here, although the order was formally a grant of a discovery motion, no condemnation proceedings have been initiated by the County. The complaint sought permission to enter upon defendants’ land pursuant to section 4 — 503 of the Hlinois Highway Code “for the purpose of conducting engineering studies and appraisals of the property to be acquired.” The trial court’s order allowing the County to enter the land and to perform reasonable and necessary procedures to secure a “survey, appraisal and soil and geologic samples,” specifying methods of surveying and soil borings to be used, in substance granted plaintiff the relief sought under the complaint and it is therefore appealable. (Durkin v. Hey (1941), 376 Ill. 292, 296-97.) To hold otherwise would enable the County to obtain the requested relief while denying the property owners the right to a review of the granting of the petition.

The Owners argue that section 4 — 503 does not allow plaintiff to enter upon the lands of others to make surveys or appraisals or to take subsurface soil surveys without either the landowners’ permission or prior condemnation proceedings. But the County asserts that although the complaint was brought under section 4 — 503 of the Illinois Highway Code, because the highway is a county highway the case is controlled by section 5 — 803 of the Code. Section 5 — 803 provides:

“For the purpose of making surveys and the determination of the amount of property necessary to be taken or damaged in connection with any highway project, the county through its officers, agents or employees, after notice to the owner, may enter upon the lands or waters of any person or corporation, but subject to responsibility for all damages that may be occasioned thereby.” Ill. Rev. Stat. 1981, ch. 121, par. 5—803.

We agree that section 5 — 803, and not section 4 — 503, governs whether the County has the right to make the surveys requested by the complaint. Article V of the Illinois Highway Code deals with county administration of highways, whereas article IV deals with State administration of highways. The power of entry and survey granted by section 5 — 803 is in aid of the county’s power under section 5 — 801 to acquire property, by condemnation if necessary, for highway construction purposes.

Nonetheless we disagree with the County’s assertion that section 5 — 803 allows it to conduct the requested subsurface and geologic studies without the owners’ consent. The County argues that because section 5 — 803 does not (in contrast to section 4 — 503) explicitly require the owners’ consent for soil surveys, these surveys are permissible. However, statutes delegating the power of eminent domain are to be strictly construed to protect the property rights of landowners. (Village of Arlington Heights v. Gatzke (1981), 101 Ill. App. 3d 885, 887; Iowa State Highway Com. v. Hipp (1966), 259 Iowa 1082, 1088, 147 N.W.2d 195, 198.) In contrast to section 4 — 503, section 5 — 803 does not explicitly grant the county power to undertake subsurface soil surveys at all; to read the grant of power to “mak[e] surveys” as enabling the county to make unconsented subsurface soil surveys would give the county a power of entry for construction of county highways that neither it nor the Department of Transportation has under a sister statute in connection with state highway construction. Also, section 4 — 503 was amended by Public Act 81 — 1248, effective January 1, 1981; previously it did not mention subsurface soil surveys, granting only the right to make “preliminary surveys.” The legislature evidently did not believe that the power to make “preliminary surveys” embraced the power to make subsurface soil studies, which necessarily involve substantial and not merely incidental disruption and damage to the landowners’ property. Therefore we will not construe section 5 — 803’s grant of power to “make[e] surveys” to authorize subsurface soil and geological studies, at least in a case such as this where the landowner has not consented.

Furthermore, to construe the statute as the County urges would, as we note below in discussing the permissible scope of the order in this case, require us to declare section 5 — 803 unconstitutional as applied to a precondemnation proceeding. We therefore construe section 5 — 803 so as to save it from doubts as to its constitutionality. Board of Commissioners v. County of Du Page (1982), 107 Ill. App. 3d 409, 412-13.

Although the motion for prepleading discovery was made pursuant to Supreme Court Rule 214, we agree with the Owners that this provision is not applicable to circumvent any statutory limitation placed on the authority granted under the Illinois Highway Code. Supreme Court Rule 214 is a general discovery provision which enables a litigant to obtain “access to real estate for the purpose of making surface or subsurface inspections or surveys ***.” Section 5 — 803 of the Illinois Highway Code deals specifically with the power of a prospective condemnor to enter and survey land before the institution of condemnation proceedings. If, as we conclude from our analysis of the statute, the legislature did not wish to permit precondemnation subsurface soil surveys, it could not have intended that prospective condemnors be allowed to undertake such surveys by using the discovery procedures of Rule 214 as a subterfuge. Also, to interpret Rule 214 as authorizing precondemnation subsurface soil surveys would raise the same constitutional problems as would arise with a similar interpretation of the statute.

We reject, however, the Owners’ challenge to the validity of the order other than to the part dealing with the subsurface boring and sampling. They argue that not even preliminary surveys or appraisals may be undertaken without the landlord’s consent unless a condemnation proceeding has first been instituted. We cannot agree.

While there appears to be no particular precedent in Illinois, section 5 — 803 of the Illinois Highway Code appears typical of statutory provisions allowing bodies with the power of eminent domain to enter the land of others, before the institution of condemnation proceedings, in order to make preliminary surveys or explorations of the land. The basic purpose of such statute is to enable the prospective condemnor to determine whether and how much of the land is suitable for eventual condemnation and thus to facilitate an intelligent, economical condemnation decision. Indiana & Michigan Electric Co. v. Stevenson (1977), 173 Ind. App. 329, 334, 363 N.E.2d 1254, 1259; County of San Luis Obispo v. Ranchita Cattle Co. (Cal. App. 1971), 94 Cal. Rptr. 73, 76-77. See generally Annot., 29 A.L.R.3d 1104 (1970).

There is no language in section 5 — 803 which can be reasonably read to require the prospective condemnor to institute condemnation proceedings before entering the land of others for preliminary surveys or appraisals. The section itself states that its purpose is in part to facilitate the “determination of the amount of property necessary to be taken or damaged.” Given the purpose of the statute to facilitate a decision on whether to condemn it would not be logical to require that the plaintiff institute condemnation proceedings before making a preliminary minimally intrusive entry.

Moreover, although the question does not appear to have been addressed in Illinois, courts in a vast majority of jurisdictions have held that a prior condemnation suit is not a prerequisite to an entry on the lands of another for preliminary exploration and survey purposes. These courts have recognized a basic conceptual difference between a preliminary entry and a constitutionally compensable taking or damaging of property and have held that because the former is not a variety of the latter, it does not require adherence to condemnation procedures or constitutional provisions for just compensation. See Orange Water & Sewer Authority v. Estate of Armstrong (1977), 34 N.C. App. 162, 163, 237 S.E.2d 486, 487; County of San Luis Obispo v. Ranchita Cattle Co. (Cal. App. 1971), 94 Cal. Rptr. 73; Litchfield v. Bond (1906), 186 N.Y. 66, 76-77, 78 N.E. 719, 723; Town of Carlisle v. Department of Public Utilities (1968), 353 Mass. 722, 234 N.E.2d 752.

Constitutional restrictions on taking and damaging without just compensation (U.S. Const., amends. V, XIV; Ill. Const. 1970, art. I, sec. 15); however, limit the permissible scope of an order authorizing entry for preliminary survey and appraisal purposes. A taking may not be allowed under the guise of a preliminary survey; the right of entry does not include the right to make permanent appropriation or cause more than minimal or incidental damage to property; and the entering party is free of liability “only to the extent that the entry or occupation is temporary, or the infliction of damage is incidental and incipient or preliminary.” (Litchfield v. Bond (1906), 186 N.Y. 66, 78, 78 N.E. 719, 723.) Permissible entry “cannot amount to other than such innocuous entry and superficial examination as would suffice for the making of surveys or maps and as would not in the nature of things seriously impinge upon or impair the rights of the owner to the use and enjoyment of his property.” (Jacobsen v. Superior Court (1923), 192 Cal. 319, 329, 219 P. 986, 991.) Thus the County may enter the property, appraise the premises, and place stakes on the property as specified. (See Onorato Brothers, Inc. v. Massachusetts Turnpike Authority (1957), 336 Mass. 54, 142 N.E.2d 389; Mackie v. Mayor of Town of Elkton (1972), 265 Md. 410, 419, 290 A.2d 500, 505; Indiana & Michigan Electric Co. v. Stevenson (1977), 173 Ind. App. 329, 363 N.E.2d 1254.) The order ought not be read, however, as authorizing any cutting of trees or damage to crops, except insofar as these are unavoidable incidents (for which the county must pay damages) of permissible preliminary surveying. Indiana & Michigan Electric Co. v. Stevenson (1977), 173 Ind. App. 329, 335, 363 N.E.2d 1254, 1260; Dancy v. Alabama Power Co. (1916), 198 Ala. 504, 507, 73 So. 901, 902-03; Litchfield v. Bond (1906), 186 N.Y. 66, 79, 78 N.E. 719, 723-24.

Similarly the part of the order authorizing soil borings and a geologic study without the landowners’ consent or a prior condemnation proceeding would be invalid even if statutorily authorized. Such drilling and excavation, even where subsequent backfilling has been required, has been properly recognized as a substantial interference with the landowners’ property rights rather than a minimally intrusive preliminary survey causing only incidental damage. (Jacobsen v. Superior Court (1923), 192 Cal. 319, 325, 219 P. 986, 989-91; County of San Luis Obispo v. Ranchita Cattle Co. (Cal. App. 1971), 94 Cal. Rptr. 73, 76; Mackie v. Mayor of Town of Elkton (1972), 265 Md. 410, 413, 419-22, 290 A.2d 500, 502, 505-06.) Rather than hold that such drilling and surveying is authorized under a statute which we would then have to invalidate, we decline to read the power to make the contemplated soil and geologic survey into section 5 — 803’s grant of power to “mak[e] surveys.” See Mackie v. Mayor of Town of Elkton (1972), 265 Md. 410, 419-22, 290 A.2d 500, 505-06.

The Owners have also raised a bare reference in their amended motion to dismiss the complaint and in their brief and argument to the fourth amendment of the United States Constitution and article I, section 6 of the Illinois Constitution, asserting without any argument or authority that the preliminary entry sought by the County is prohibited by these provisions unless the County first files a condemnation suit. We are unable to determine whether these questions are different from those we have discussed relative to the prohibition of the taking without just compensation. A bare contention in a brief unsupported by any further argument or citation of authority fails to raise or preserve an issue for appellate review. (Village of Roxana v. Costanzo (1968), 41 Ill. 2d 423, 426; 73 Ill. 2d R. 341(e)(7).) We conclude that these issues have been waived.

That part of the trial court’s order which allows subsoil surveys without the Owners’ consent is vacated. The balance of the order is affirmed insofar as it authorizes preliminary entry onto the Owners’ land for minimally intrusive surveys and appraisals consistent with the views expressed in this opinion.

Vacated in part and affirmed in part.

LINDBERG and HOPE, JJ., concur.

      “Entry on lands to make surveys
      For the purpose of making subsurface soil surveys, preliminary surveys and determinations of the amount and extent of such land, rights or other property required, the Department, or any county, by its officers, agents or employees, after notice to the owner, and in the case of subsurface soil surveys, written consent by the owner, may enter upon the lands or waters of any person, but subject to responsibility for all damages which shall be occasioned thereby.” Ill. Rev. Stat. 1981, ch. 121, par. 4—503.

      Most other jurisdictions have also held that a preliminary entry for survey purposes is not an exercise of the power of eminent domain, but rather a mere temporary intrusion not substantially interfering with the owner’s property rights or beneficial enjoyment of the land, and that a party statutorily authorized to make such an entry need not file preliminary condemnation proceedings. Such has been held or approved in dictum by Federal courts. (Bonaparte v. Camden & A.R. Co. (D.N.J. 1830), 3 F. Cas. 821 (No. 1,617); Kincaid v. United States (W.D. La. 1929), 35 F.2d 235, later trial (W.D. La. 1929), 37 F.2d 602, aff'd (5th Cir. 1931), 49 F.2d 768, rev’d on other grounds sub nom. Hurley v. Kincaid (1932), 285 U.S. 95, 76 L. Ed. 637, 52 S. Ct. 267) and courts in Alabama (Dancy v. Alabama Power Co. (1916), 198 Ala. 504, 73 So. 901); Colorado (McClain v. People (1886), 9 Colo. 190, 194, 11 P. 85, 87); Georgia (Chambers v. Cincinnati & Georgia R.R. (1882), 69 Ga. 320); Indiana (Indiana & Michigan Electric Co. v. Stevenson (1977), 173 Ind. App. 329, 363 N.E.2d 1254); Kentucky (Thomas v. City of Horse Cave (1933), 249 Ky. 713, 61 S.W.2d 601); Maine (Cushman v. Smith (1852), 34 Me. 247); Maryland (Steuart v. Mayor of Baltimore (1855), 7 Md. 500; LaFontaine’s Heirs at Law v. LaFontaine’s Heirs at Law (1953), 205 Md. 311, 107 A.2d 653); Mississippi (Wood v. Mississippi Power Co. (1962), 245 Miss. 103, 146 So. 2d 546); Missouri (Walther v. Warner (1857), 25 Mo. 277, aff'd (1858), 26 Mo. 143); New Hampshire (Orr v. Quimby (1874), 54 N.H. 590); New Jersey (State v. Seymour (1871), 35 N.J.L. 47); New York (Litchfield v. Bond (1906), 186 N.Y. 66, 78 N.E. 719; King v. Power Authority (1973), 76 Misc. 2d 725, 351 N.Y.S.2d 493); Ohio (Ward v. Toledo, Norwalk & Cleveland R.R. Co. (1853), 1 Ohio Dec. Reprint 553); Oregon (Oregonian Ry. Co. v. Hill (1881), 9 Or. 377); Texas (Lewis v. Texas Power & Light Co. (Tex. Cir. App. 1955), 276 S.W.2d 950); and Wisconsin (Lyon v. Green Bay & Minnesota Ry. Co. (1877), 42 Wis. 538, rev’d on other grounds (1877), 42 Wis. 548.) See also Annot., 29 A.L.R.Sd 1104 (1970); 2 Nichols, Eminent Domain sec. 6.11 (3d ed. 1982).


text:
    LEVITT HOMES, INC., Plaintiff, v. OLD FARM HOMEOWNERS’ ASSOCIATION et al., Defendants.—(Gregory Locke et al., Plaintiffs-Appellants, v. Levitt Homes, Inc., et al., Defendants-Appellees.)
    Second District
    No. 82—492
    Opinion filed December 22, 1982.

      H. Kent Heller and Jan H. Ramsey, both of Harlan Heller, Ltd., of Aurora, for appellants.
    Robert C. Johnson, Richard L. Fenton, and Steven B. Isaacson, all of Sonnenschein, Carlin, Nath & Rosenthal, and Marvin J. Glink and Peter D. Coblentz, both of Ancel, Clink, Diamond, Murphy & Cope, both of Chicago, for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

In these two actions consolidated in the trial court, Levitt Homes, Inc. (Levitt) filed suit against the Old Farm Homeowners’ Association, Willowgate Homeowners’ Association, and various known and unknown homeowners (Homeowners) seeking injunctive and other relief based upon tortious interference with prospective contractual relations, libel and slander. Homeowners filed suit against Levitt and the city of Naperville (city) for injunctive and other relief to enforce subdivision restrictive covenants and certain city of Naperville ordinances, and to seek damages based upon several theories of recovery. After an evidentiary hearing on Levitt’s and Homeowners’ motions for preliminary injunctions, the trial court entered an order denying both motions. Only Homeowners appeal from that interlocutory order denying their motion for a preliminary injunction. See Supreme Court Rule 307(a)(1) (87 Ill. 2d R. 307(a)(1)).

The issues presented for review by Homeowners are: (1) whether Homeowners have established the elements required for the issuance of a preliminary injunction and are entitled to a preliminary injunction enjoining Levitt from building or selling certain homes on the theories that (a) Levitt violated certain ordinances of the city, (b) Levitt violated certain restrictive covenants which it could not later amend, and (c) Levitt is estopped by its promises to some of the Homeowners; and (2) whether Homeowners are entitled to a preliminary injunction enjoining the city from issuing building permits to Levitt. While Levitt did not appeal the ruling below against it, Levitt affirmatively asserts in its brief that Homeowners’ actions constituted such misconduct that they are precluded from equitable relief under the doctrine of “unclean hands.”

In 1978, pursuant to city of Naperville ordinance 78 — 106 (Naperville, Ill., Ordinance 78 — 106 (1978)) Levitt began marketing the Willowgate subdivision (Willowgate) as a planned unit development on a parcel of property known as Old Farm Unit 5 in Naperville, Illinois. Between 1978 and 1981 Levitt sold approximately 40 homes, selected from five model types, in Willowgate. The owners took title between 1979 and 1981. Levitt’s senior vice-president Harvey Rafofsky testified that these homes ranged in price from “the high 60’s to the mid 80’s” and in size from 1,000 to “16 or 1800 square feet.” Thomas Trybus, a homeowner, testified that the smallest model was 1,200 square feet while Doug Engebrethson, another homeowner, testified that the largest model was 2,200 square feet. All of these homes have two car garages. Rafofsky testified that Levitt failed to complete Willowgate due to market conditions which made selling this type of home difficult.

Levitt then decided to market the new Gingerplace subdivision (Gingerplace) in the areas of Old Farm Unit 5, Willowgate subdivision, where homes had not been built. Levitt planned to build 82 homes. These homes were to consist of two models of single-story homes which would be either a 979-square-foot two-bedroom model selling for $48,990 or a 1,068-square-foot three-bedroom model selling for $50,990. Both models would have one-car garages. According to Rafofsky, the Gingerplace homes were to be of comparable quality to the homes in Willowgate except they would be smaller.

Gingerplace would be located in a horseshoe pattern surrounding Willowgate on the east, west and south and across Modaff Road from the Old Farm subdivision (Old Farm). Old Farm was also developed by Levitt and consists of approximately 500 homes built between 1975 and 1980. Rafofsky testified that the homes in Old Farm are generally larger than those in Willowgate and were also generally higher in price.

Sales of the Gingerplace homes began May 22, 1982, preceded by a heavy advertising campaign and a salesperson training program with combined costs of $50,000. On May 22, 1982, as Levitt was beginning its sales drive at Gingerplace, a group of protestors gathered on the side of the public street leading into Gingerplace near Levitt’s sales trailer. Though a great deal of testimony at the hearing below dealt with the protestors’ activities, it is unnecessary to discuss these activities since Levitt has not appealed the denial of its motion to preliminarily enjoin the protesters.

Ordinance 78—106 (Naperville, Ill., Ordinance 78—106 (1978)) authorizing Levitt to build a planned unit development on Old Farm Unit 5 was enacted September 5, 1978, by the Naperville city council and recorded with the county recorder September 28, 1978. The document entitled “Declarations of Covenants, Conditions and Restrictions” (declaration) at issue in this case was not before the city council at the time it enacted the ordinance nor was it recorded with this ordinance. Rather, the declaration was filed with the county recorder on July 10,1979.

According to the declaration all homes built in Old Farm Unit 5 were subject to a 1,000 square foot minimum floor space requirement and a minimum cost of construction equal to:

“$45,000 x Consumer Price Index (CPI) at commencement of construction.
CPI as of date hereof.”

The declaration contained a provision allowing Levitt to amend the minimum floor space and minimum cost restrictions.

Homeowners introduced another document which attorney Charlotte Rubenstein testified was supplied to her by Levitt. She obtained this document in connection with her clients’, the Trybuses, purchase of a home in Willowgate. This document was similar to the declaration filed by Levitt except that the minimum floor space requirement was 1,200 square feet and the minimum cost formula was:

“$65,000 x CPI at commencement of construction.
CPI as of date hereof.”

The Trybuses purchased their home in May 1980, approximately 10 months after Levitt filed its July 10,1979, declaration.

On May 6, 1982, Levitt invoked the provision allowing it to amend and filed amendments to the declaration changing the minimum floor space requirement to 900 square feet and the minimum cost of construction to a flat $44,000. These amendments, like the original declaration, were not submitted to the city council for approval.

Walter Newman, director of community development for the city of Naperville testified that he administers the city’s zoning ordinances and that the city does not require developers of planned unit developments to have minimum floor space or minimum cost restrictions in the agreements annexing these developments to the city. He testified further that the city had no interest in whether such restrictions existed in planned unit developments or in any amendments to such restrictions.

Several Willowgate homeowners testified that Levitt sales personnel represented to them, at the time they bought their homes, that all homes built in Willowgate would be carefully controlled to avoid uniformity of model or color and that at least five different models would be interspersed throughout the subdivision. Gregory Locke testified he had been told that Willowgate would consist of “one of the five models.” Thomas Trybus testified he had been told that if he wanted to build a home on a lot next to a similar model or similar colored home, the other homeowner’s permission would be required. Thomas Clark testified he had been told that sister model homes would be built on the lots behind his home. Jeanne Noonan testified she had been told that Willowgate was going to be comprised of homes that were like the five models. Mary Chiappetta testified she had been told that Levitt “would be bringing over” to Willowgate two models from Old Farm and would possibly be adding a few more larger models. These homeowners testified that these representations affected their decisions to buy.

Along with the Old Farm Homeowners, the Willowgate Homeowners testified they believed the value of their homes would be lowered by the building of the homes in Gingerplace because of the use of only two models, the lower square footage, and the lower cost. Two real estate appraisers testified. Richard Hauser testified for Homeowners that building the Gingerplace homes would cause a 5-10% depreciation in the value of the existing homes. Ronald Bomba testified for Levitt that the Gingerplace homes would not have a detrimental effect on existing property values.

At the close of all the evidence, the trial court denied all motions for preliminary injunctions. The court found that Homeowners had an adequate remedy at law “if, in fact, they will suffer any damages to the valuation [sic] of their property by virtue of diminution.” The court also found that the restrictions concerning minimum floor space and minimum cost were not a part of the final plat. Therefore, no injunction should issue barring the issuance of building permits by the city to Levitt.

In order for a preliminary injunction to issue, a plaintiff must establish (1) that he possesses a clearly ascertained right which needs protection, (2) that he will suffer irreparable harm without the injunction, (3) that there is no adequate remedy at law for his injury, and (4) that he is likely to be successful on the merits of his action. (Cross Wood Products, Inc. v. Suter (1981), 97 Ill. App. 3d 282, 284, 422 N.E.2d 953; Crest Builders, Inc. v. Willow Falls Improvement Association (1979), 74 Ill. App. 3d 420, 422, 393 N.E.2d 107.) The issuance of a preliminary injunction is applicable only to situations where an extreme emergency exists and irreparable and serious injury will result in the absence of the injunction. (Dixon v. Village of Lombard (1977), 50 Ill. App. 3d 590, 593, 365 N.E.2d 1131.) The issuance of a preliminary injunction is within the sound discretion of the trial court and is to be used cautiously and only in cases of great necessity. (50 Ill. App. 3d 590, 593, 365 N.E.2d 1131.) Its determination will not be overturned absent a showing of the abuse of that discretion. (Shorr Paper Products, Inc. v. Frary (1979), 74 Ill. App. 3d 498, 502, 392 N.E.2d 1148.) As it is not the purpose of the preliminary injunction to determine controverted rights or decide the merits of the case, a court of review looks to the sufficiency of the evidence only for the limited purpose of ascertaining whether the trial court’s discretion has been abused. Baal v. McDonald’s Corp. (1981), 97 Ill. App. 3d 495, 500, 422 N.E.2d 1166.

Homeowners premise their contention that they possess a clearly ascertained right which needs protection upon three bases: (1) that Levitt improperly amended certain restrictive covenants in the declaration; (2) that Levitt has not complied with certain of the city’s zoning ordinances; and (3) that Levitt is estopped by its oral and written promises. The declaration was filed in the office of the Du Page County Recorder of Deeds on July 10, 1979. It contained a recital that it created certain covenants, conditions, restrictions, easements and other reservations “so as to assist in assuring the development of the property, in protecting the value and desirability of the property, and in preserving the general character of the property.” The declaration provided in section 5.04 that each owner shall have the right to . enforce the covenants and other rights created therein except against Levitt. Further, in section 5.08 Levitt specifically reserved the right to amend, alter, change, modify, waive, revoke or delete any of the covenants and other rights pertaining to minimum floor area, minimum cost of construction and other rights created, “it being the intent hereof that the right reserved in this section 5.08 shall not negate the existence of a general development scheme with respect to property so as to deprive the owners of the benefit of, or the power to enforce, the covenants, conditions and restrictions contained in this declaration.” Homeowners argue that the amendments to the declaration filed May 6, 1982, which reduced the minimum floor space and cost of construction from that in the declaration, are void since they interfere with the covenants and other rights in the declaration enacted for the general development of the subdivision for the Homeowners’ benefit as set forth therein. They contend that the right to amend contained in the declaration “may be exercised only to make the covenants amended more restrictive or amend the covenants in a fashion which will not, in fact, interfere with the development of the community as planned.” Levitt counters that it specifically reserved the right to make amendments, that the two amendments do not negate the general development scheme, and that the covenants cannot be enforced against Levitt under the express terms of the declaration.

Generally, restrictive covenants affecting land will be enforced according to their plain and unambiguous language (Hawthorne Hills Association v. Lawrence (1980), 85 Ill. App. 3d 377, 381, 406 N.E.2d 869), and, unless against public policy, or where the principles of waiver or estoppel operate, their violation will be enjoined by the court. (Cordogan v. Union National Bank (1978), 64 Ill. App. 3d 248, 253, 380 N.E.2d 1194.) A subdivider who expressly reserves the right to revoke restrictions and conditions set forth in a declaration of rights and conditions contained in contracts of sale of lots may later change the covenants and other promises respecting the use of the land where the intent and purpose of the reservation to revoke is evident. (See Fox Lake Hills Property Owners Association v. Fox Lake Hills, Inc. (1970), 120 Ill. App. 2d 139, 256 N.E.2d 496.) We must look to the language of the declaration in order to determine what rights were reserved, applying the rule that an instrument is to be construed most strongly against its author. (See Crest Builders, Inc. v. Willow Falls Improvement Association (1979), 74 Ill. App. 3d 420, 393 N.E.2d 107.) Decisions in other jurisdictions generally hold "that a grantor may retain the right to make exceptions to or revocation of restrictions contained in a subdivision plat or deed where the intent to reserve such power is included in the instrument. See Davis v. Miller (1957), 212 Ga. 836, 96 S.E.2d 498; Matthews v. Kernewood, Inc. (1945), 184 Md. 297, 40 A.2d 522; Thrasher v. Bear (1940), 239 Ala. 438, 195 So. 441.

The declaration filed July 10, 1979, expressly provides in section 5.02 that the obligations contained in the declaration, except for section 4.01 and 4.02 pertinent to easements, shall not be applicable to Levitt, and in section 5.04 that each owner shall have the right to enforce the covenants against other owners but not against Levitt. Section 5.08 contains an express reservation by Levitt of the right to amend, modify or otherwise revoke any of the covenants, and, specifically, those pertaining to minimum floor area of a dwelling and construction cost which do not negate the existence of a general development scheme with respect to property. We interpret the declaration, read as a whole, to confer benefits and rights to the homeowners to be enforceable against each other. However, the benefits and rights conferred thereunder are expressly intended not to be enforceable against Levitt with regard to modifications in section 5.08 except that Levitt’s reservation of rights to modify in 5.08 shall not negate the existence of a general development scheme.

In the recitals in the declaration it is stated that the property “shall be developed as a planned suburban residential community” with the creation of certain covenants and restrictions upon the property “to assist in assuring the development of the property, in protecting the value and desirability of the property, and in preserving the general character of the property.” This recital is consistent with our interpretation that the covenants and restrictions confer benefits and rights to the homeowners against each other in protecting the value of their property, and retain in Levitt the right to modify the covenants and restrictions to develop the property consistent with the general development scheme and character of the property. Levitt’s amendment of the declaration to permit smaller houses does not negate the general development scheme. The lots have not been resubdivided, commercial or multi-family dwellings are not allowed, the minimum floor space square foot requirement has been reduced only 21 square feet, and the construction cost reduction is not a drastic change. While it is evident from the proofs at the hearing below that the planned construction of homes will be different from existing homes in that they will be slightly smaller, will all be one-story, will not have two-car garages, and will initially have available only two types of home design, they will have the same construction quality as the existing homes in Willowgate. We conclude under the facts presented below that the modifications in the amended declaration do not negate the existence of the general development scheme of the subdivision. Accordingly, Homeowners have failed to establish that they possess a clearly ascertained right to be protected.

Alternatively, Homeowners contend that the city has not enforced its ordinances and that they are entitled to injunctive relief against the city and Levitt for Levitt’s failure to comply with the zoning and subdivision control ordinances.

Homeowners argue that Levitt improperly changed its planned unit development (PUD) at Old Farm Unit 5 when it imposed the declaration without having submitted it to the city council as "supporting data” when it sought and obtained city approval for the development. They argue Levitt, again improperly, changed the PUD when it amended the declaration without city council approval. Homeowners contend that section 4.9.2(5) of Ordinance A — 139 (Naperville, Ill., Ordinance A — 139, section 4.9.2(5) (1977)) establishes the only allowable procedures for changing a PUD. That section provides procedures for major or minor changes both of which require city council approval. Homeowners argue that Levitt’s declaration and later amendments thereto made changes to the PUD without the requisite city council approval and that this lack of approval renders the PUD void. They contend that the declaration is valid, but that no building permits can be issued for Gingerplace unless the city council approves the amended declaration under the section 4.9.2(5) procedures. They maintain section 8.002.7 of Ordinance 76 — 34 (Naperville, Ill., Ordinance 76 — 34, section 8.002.7 (1976)) bars the issuance of building permits in this case.

Levitt concedes that it never obtained city council approval of the declaration or amendments. However, it contends no such approval is required since the declaration is not a part of the PUD, and, therefore, the imposition or amendment of the declaration is not a change in the PUD.

Section 8.002.7 of Ordinance 76 — 34 provides that:

“No building permit shall be issued for the construction of any building, structure, or improvement unless the owner of the land upon which said building, structure, or improvement is to be constructed has complied with the requirements of the ordinances of the City.”

Ordinance A — 139, section 4.9.2(5) provides, in part, that:

“[A] planned unit development project shall be developed only according to the approved and recorded final plat and all supporting data.” (Emphasis added.)

Homeowners maintain that the term “supporting data” includes any restrictive covenant to be applied to property within the planned unit development. Homeowners base their contention on the following language from Ordinance A — 139, section 4.9.4:

“The planned unit development plats and supporting data shall include at least the following information: *** (2) Preliminary Plat Stage *** (e) Covenants — Proposed agreements, provisions, or covenants which will govern the use, maintenance, development and continued protection of the planned development and any of its common open space.
* * *
(3) Final Plat Stage *** (f) Covenants — Final agreements, provisions or covenants shall govern the use, maintenance, and continued protection of the planned unit development.”

“The primary rule in construing statutes and ordinances is to ascertain and give effect to the intention of the legislative body.” (Village of Schaumberg v. Franberg (1981), 99 Ill. App. 3d 1, 5, 424 N.E.2d 1239.) This is done “ ‘by concentrating on the terminology, its goals and purposes, “the natural import of the words used in common and accepted usage, the setting in which they are employed, and the general structure of the ordinance.” ’ ” (Palella v. Leyden Family Service & Mental Health Center (1980), 79 Ill. 2d 493, 500, 404 N.E.2d 228.) Applying this standard, we hold that the city council in enacting Ordinance A — 139 did not intend that restrictions such as the ones in issue here be included in the supporting data submitted with the final plat of a PUD.

An ordinance must be read as a whole to determine its meaning. (Pascal v. Lyons (1958), 15 Ill. 2d 41, 153 N.E.2d 817.) Section 4.9.1 of Ordinance A — 139 states that the purposes of allowing planned unit developments are to permit the following:

“(1) A maximum choice in the types of environment available to the public by allowing a development that would not be possible under the strict application of the other sections of this Ordinance.
(2) Permanent preservation of common open space and recreation areas and facilities.
(3) A pattern of development to preserve natural vegetation, topographic and geologic features.
(4) A creative approach to the use of land and related physical facilities that results in better development and design and the construction of aesthetic amenities.
(5) An efficient use of the land resulting in more economic net-works of utilities, streets, schools, public grounds and buildings, and other facilities.
(6) A land use which promotes the public health, safety, comfort, morals and welfare.
(7) Innovations in residential, commercial and industrial development so that growing demands of the population may be met by greater variety in type, design and layout of buildings and by the conservation and more efficient use of open space ancillary to said buildings.
The planned unit development is intended to provide for developments incorporating a single type or a variety of related uses which are planned and developed as a unit. Such development may consist of conventionally subdivided lots or provide for development by a planned unit development plat in keeping with the purpose of the plan.”

This language demonstrates that the intent of the planned unit development provisions is to allow more flexibility in development than is available under the general zoning ordinance provisions while continuing to allow the city to protect the interests it normally protects through general zoning provisions. This intention is reinforced by section 4.9.2 of Ordinance A — 139 which provides that a planned unit development may “be granted as a special use” and “may depart from the normal procedures, standards, and other requirements of the other sections of this Ordinance.” The ordinance then sets forth a procedure for approval of the PUD which ultimately requires approval by the city council. Thus, the ordinance provides for the city council to approve or disapprove individual planned unit developments as special uses in order to protect the interests of the city which are protected by the general zoning ordinance provisions where special uses are not sought.

These city interests are stated in section 1.2 of Ordinance A — 139 which details the matters regulated as follows:

“Hereafter in the City of Naperville, Illinois, the erection and use of any new building or structure, or the relocation, enlargement or structural alteration of any existing building or structure, or any change in use, or new or additional use made of any tract of land or of existing building or structure,
(a) Shall be for only those principal uses permitted, including any use or activity customarily incidental or accessory thereto unless otherwise restricted or prohibited;
(b) Shall provide and preserve the required building setback, front yard, side yard, rear yard, lot area per family, lot width, alley setback, corner visibility and automobile parking areas;
(c) Shall not exceed the height limit; and
(d) Shall not encroach upon or reduce the required open spaces surrounding any existing building.
all as specified in this Ordinance.”

This provision does not include any reference to minimum square footage or minimum cost of construction. Since the city expressed no interest in minimum square footage or minimum cost of construction in the general zoning provisions, it is unreasonable to hold that the city intended to exert such an interest in its planned unit development provisions since the intention of planned unit developments is greater flexibility in development than is available under the general zoning ordinance.

Reading the ordinance as a whole the language of section 4.9.4 relied on by Homeowners cannot be said to cover the covenants at issue in this case. Rather, it is more reasonable to read this language to mean proposed and final agreements between the developer and the city such as the “Statement of Intent and Agreement” recorded with Ordinance 78 — 106 (Naperville, Ill., Ordinance 78 — 106 (1978)) which authorized the Old Farm Unit 5 PUD.

Homeowners also contend that Ordinance 76—34 (Naperville, Ill., Ordinance 76—34 (1976)) supports their argument. Section 8.003.21 of 76—34 reads:

“Other Information Required at time of Preliminary Plat application: *** (5) Summary of all restrictions intended to be imposed by the Final Plat or by Deeds of conveyance as to the use of all property within the subdivision: including area of buildings for residence use, if any, or other design limitations or planning schedules.”

Section 8.003.4B provides:

“Supporting Documents with Final Plat. The following supporting documents and data, shall be submitted with said Final Plat: *** 4. All covenants such as homeowners association covenants and agreements which are to be applied to the property.”

Again, reading the ordinance as a whole, we hold that covenants such as the ones in issue here were not required by this ordinance to be submitted at either the preliminary or final plat stage.

The intent of Ordinance 76 — 34 is stated in section 8.001 as follows:

“The intent of these regulations is to provide for the orderly and harmonious development of the City and the surrounding areas within the City’s planning jurisdiction.”

The ordinance then goes on to detail the information a subdivider must submit for preliminary plat approval and the supporting data required to be submitted with the final plat. These requirements deal with the layout of the subdivision, the specifications for streets, parks and other public use areas, traffic studies, and other factors that concern orderly development of the subdivision and the demands it will make on city services.

In this context, the section 8.003.21(5) requirement of a summary of restrictions as to “the area of buildings for residence use” must refer to the area of the subdivision in which residences will be constructed. Interpreting “area” to mean square footage of a particular home would be giving subsection 5 an interpretation that is not consonant with the intent of surrounding subsections.

Similarly, the section 8.003.4B4 requirement that “[a]ll covenants such as homeowners association covenants” be supplied does not create an obligation to submit the covenants at issue in this case. This language appears in a list of required data all of which deals with the subdivision and its relationship to city services. Thus, the best interpretation of section 8.003.4B4 is that any covenant of the nature of a homeowners’ association covenant must be provided since such a covenant would deal with common area maintenance and other services which the city might otherwise provide.

Homeowners also contend that Levitt should be enjoined, under the theory of promissory estoppel, from denying the promises made to them by Levitt sales personnel. The testimony of various homeowners sought to be construed as promises are that Levitt sales persons indicated that: the remainder of the houses in the area “would be comparable to what we have”; the other homes built would be exactly like the one to be purchased except with a different front or another model exactly as they had now in the area with a different fronting; and the houses in Willowgate were going to be comprised of houses that were like the five models. Furthermore, testimony was adduced that a map was displayed in Levitt’s sales office showing the entire subdivision area as being Willowgate, that brochures distributed when Willowgate was being developed showed only the five models presently being built, and representations were made that in future development houses would be bigger.

In order to maintain an action for promissory estoppel, the law requires that there be a promise which is unambiguous in its terms and reliance by the party to whom the promise is made. The reliance must be expected and foreseeable by the party making the promise and the party to whom the promise is made must rely upon the promise to his detriment. (Dale v. Groebe & Co. (1981), 103 Ill. App. 3d 649, 431 N.E.2d 1107; S.M. Wilson & Co. v. Prepaid Concrete Co. (1974), 23 Ill. App. 3d 137, 318 N.E.2d 722.) A fraudulent intent is not essential for recovery under promissory estoppel. (Lincolnland Properties, Inc. v. Butterworth Apartments, Inc. (1978), 65 Ill. App. 3d 907, 912, 382 N.E.2d 1250; S.M. Wilson & Co. v. Prepakt Concrete Co. (1974), 23 Ill. App. 3d 137, 141, 318 N.E.2d 722; but cf. Hughes v. Encyclopaedia Britannica, Inc. (1954), 1 Ill. App. 2d 514, 117 N.E.2d 880.) However, if the action is specifically one based upon fraud and deceit, then fraud must be pleaded. (Zaborowski v. Hoffman Rosner Corp. (1976), 43 Ill. App. 3d 21, 356 N.E.2d 653.) Homeowners’ count V pleads the elements of promissory estoppel.

Under the record before us at this stage of the proceedings, there is insufficient evidence to support preliminary injunctive relief based upon the theory of promissory estoppel. The statements attributed to Levitt sales personnel relative to future development in the context testified to below by various homeowners do not amount to an unambiguous promise to build only similar models of houses in the subdivision. Rather, it appears that the intention was to build similar houses. Nor is there sufficient testimony to establish the extent to which the homeowners relied on Levitt’s sales personnel’s statements of future development in their determination to purchase a home. Moreover, any reliance on these oral statements may have been unreasonable considering a statement in the real estate sales contract signed by several of the purchasers, which provides:

“29. This document contains the entire agreement between the parties. NO REPRESENTATIONS, WARRANTIES, UNDERTAKINGS, AGREEMENTS OR PROMISES (WHETHER ORAL, WRITTEN, EXPRESS OR IMPLIED), CAN BE MADE OR HAVE BEEN MADE BY EITHER SELLER OR PURCHASER TO THE OTHER, EXCEPT AS EXPRESSLY STATED IN THIS CONTRACT OR IN THE HOME WARRANTY BOOKLET. No amendment, supplement, or rider to this Contract shall be binding unless in writing and executed by both Purchaser and Seller. No employee, agent, broker, salesman, officer or other representative of Seller has authority to make or has made any statement, representation, warranty, undertaking, agreement or promise (either oral, written, express or implied) in connection with this Contract or the Premises, supplementing or amending the provisions of this Contract.”

However, we need not ascertain the applicability of this provision to determine the issue before us on this appeal from the denial of a preliminary injunction, for the facts below do not clearly establish an unambiguous promise which Homeowners relied upon in the purchase of their houses.

Additionally, we point out that the trial court found that Homeowners have an adequate remedy at law in the form of monetary damages “if, in fact, they will suffer any damages to the valuation of their property by virtue of diminution.” For there to be an adequate remedy at law which will deprive equity of its power to grant injunctive relief, the remedy must be clear, complete, and as practical and efficient to the ends of justice, and its prompt administration as the equitable remedy. (Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 549, 370 N.E.2d 223; K.F.K. Corp. v. American Continental Homes, Inc. (1975), 31 Ill. App. 3d 1017, 1021, 335 N.E.2d 156.) Where money damages is an adequate remedy, injunctive relief is not proper. (Allstate Amusement Co. of Illinois, Inc. v. Pasinato (1981), 96 Ill. App. 3d 306, 308, 421 N.E.2d 374.) We conclude that there is adequate evidence in the record to support the trial judge’s finding, and this is an additional basis to deny the preliminary injunction.

It was disputed at the hearing below whether Homeowners would suffer any depreciation in the value of their homes by the future construction of the Gingerplace homes in the subdivision. Homeowners’ expert witness, Robert Hauser, a real estate appraiser, testified that in his opinion the construction of the Gingerplace homes would result in a 5 to 10% depreciation in the value of Homeowners’ homes. On the other hand, Levitt’s real estate appraiser, Ronald Bomba, stated that the development of Gingerplace would not have a detrimental effect on property values in Willowgate. Thus, if there is damage to Homeowners’ property values, it appears to be ascertainable in an action at law. While several persons testified to their fears that the Gingerplace homes would all be in a row, looking exactly alike, the proofs at this stage of the proceedings did not establish this contention. The evidence below was that Gingerplace would consist of the same quality home construction as in Willowgate, would initially consist of two types of houses, and would consist of one-story, one-car garage homes, some with two bedrooms, others with three bedrooms. There was no evidence that the homes were unsightly, of poor construction, radically different from the Willowgate homes, or other than single-family dwellings. Thus, there is insufficient evidence to establish any other basis why the remedy at law for these changes would be inadequate. Accordingly, from the evidence adduced below, we find the trial court did not abuse its discretion in finding an adequate remedy at law existed.

For the foregoing reasons, we find that the trial court properly exercised its discretion in denying a preliminary injunction under the facts presented to it. Therefore, we need not consider any other contentions raised by Homeowners, nor determine whether equitable relief should be denied Homeowners under the doctrine of “unclean hands” as asserted by Levitt.

Affirmed.

SEIDENFELD, P.J., and HOPF, J., concur.