author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ELMORE MYLES, Defendant-Appellant.
    First District (5th Division)
    No. 83—0885
    Opinion filed March 29, 1985.
    Rehearing denied April 24, 1985.

      Steven Clark and Gordon H. Berry, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Jane E. Liechty, and John C. Legutki, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Following a jury trial, defendant was found guilty of the offense of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1), and sentenced to a term of 30 years’ imprisonment. Defendant appeals from that verdict and sentence. We affirm.

The issues presented for review are (1) that error occurred with the sending of a photograph which was in evidence to the jury; (2) that the extent and nature of the State’s “investigatory procedure” testimony and its use by the State in closing arguments was improper; (3) that other closing arguments by the State were improper; and (4) that the court erred at sentencing in its finding of premeditation.

The evidence and testimony disclosed that the victim, A1 Young, resided with his girlfriend, Esther Johnson, in apartment No. 705 of a nine-story Chicago housing project located at 2430 South State Street.

Kenneth Lester testified that on March 5, 1982, at approximately 12:50 a.m., he arrived at the victim’s apartment requesting the use of the victim’s telephone. Lester, who resided at 101st and Carpenter Street in Chicago, originally came to the 2430 building to visit his girlfriend who lived down the hall from the victim. When he arrived at the building, he attempted to see his girlfriend; he had previously been living in the apartment with her. She would not open the apartment door to him. They argued through the closed door for awhile before the woman called the police, who escorted Lester down to the first floor of the building. Once the police left, Lester returned to the seventh floor to call his girlfriend from the victim’s apartment; he did not reach her, as she would not answer his calls.

Shortly thereafter, Lester and the victim left the victim’s apartment and proceeded to the ninth floor by way of the building’s “back” stairwell; the door to the ninth floor was open. Upon their arrival on the ninth floor, the two men separated. The victim turned to his right and walked down the hallway; Lester turned left and walked around a corner to a gallery of windows.

From the gallery area where he waited, Lester was unable to see the victim; he was, however, able to hear the victim’s footsteps as he proceeded down the hallway. Lester then heard five or six gunshots, all sounding as if they had come from the same gun. After hesitating for five seconds, Lester turned back towards the stairwell, which was located 10 to 15 feet from the gallery area. As he approached the hallway that the victim had walked down, Lester turned to his left and saw the victim lying on the floor; his feet faced Lester. He saw two men “near” the victim’s body. He identified one of the men as the defendant, Elmore Myles. He testified that the defendant was standing in front of the second man so that he was unable to see him. Defendant, however, was only 10 feet away and in plain view. Lester was able to view the defendant for three seconds before he began to back away from the scene. He also observed these men for 10 seconds as he backed towards the stairwell; the defendant appeared shocked to see Lester.

During this time, he observed defendant holding a gun up next to the side of his head. He did not remember seeing smoke coming from the gun, nor did he see anyone else in the hallway. Lester then ran down the same stairwell that he and the victim had previously used to get to the ninth floor.

Later that morning, Lester went to police headquarters, where he was shown a group of five or six color photographs. He identified the defendant from one of the photographs as the man that he saw in the hallway holding a gun. Nine days later, he attended a lineup where he positively identified the defendant from among the group of men that the police had gathered.

During direct examination, Lester again identified this photograph as the same one that he identified on the day of the victim’s death. He also identified a photograph of the lineup that he attended. While on the stand, he pointed out the defendant as the man that he saw in the ninth floor hallway on March 5, 1982.

On cross-examination, Lester testified that there was no doubt in his mind that defendant was the man that he saw. When asked by defense counsel whether, during the course of the investigation, he ever voiced his doubt that it was defendant that he saw, Lester replied that he told one of the detectives that he was unsure that it was defendant. On redirect, Lester testified that shortly after he voiced his doubt about defendant to the first detective, he spoke to another detective and told him that he was sure that he saw defendant; he stated that he was “scared” during the initial questioning.

Ollie Mae Clark testified that she lived in apartment No. 907 of the 2430 building. In the early morning hours of March 5, 1982, she was watching TV in the living room of her apartment; the oldest of her three children who were living with her was still out, and she believed that he had gone to the building’s seventh floor. On direct examination, she indicated that she heard noises outside her door, but continued to watch TV. Hearing a gunshot, she immediately started towards the door of the apartment. By the time that she reached the door, she heard two more shots. Looking out the peephole in the door, unable to see anything, she pulled the chained door open the width of the chain. Still unable to see anything, she unchained the door and stuck her head out the door. She observed a man lying on the floor of the hallway. She also heard footsteps going down the stairwell near her apartment. As she walked closer to the victim, she saw a man bending over him; her son had still not returned home. She did not immediately recognize the victim, but recognized the man bending over the victim as a man whom she knew as “Maizey.” She later learned that his real name was Alfred Myles, a brother of the defendant. She knew “Maizey’s” brother (defendant) and did not see him in the hallway that morning.

On cross-examination, she testified that the door of her apartment was four feet from her TV; that four to five seconds elapsed from the time that she heard the shots and crossed the room; that the man she saw bending over the victim was holding a gun; that she ran to the apartment door immediately after the shots were fired. She stated that she remembered telling her story to Detective Murphy oL the Chicago police department, but that she never told him that she saw the victim falling to the floor. On redirect, she testified that in order for her to get from her living room to the door of her apartment, she had to go down a hallway, and that it wasn’t until she peeked out the peephole and cracked the door that she finally opened the door to look into the hallway.

Barbara Curtis, a sister of the defendant, testified that at 1 a.m. on March 5, 1982, she was in apartment No. 903 of the 2430 building playing cards with a group of people which included her two brothers, Elmore and Alfred. During the game, she noticed a gun on the top of the apartment’s refrigerator; she had seen it before “from Elmore” (defendant). She stated that the victim came to the door of the apartment at 1:20 a.m.; her brothers and Curtis Smith went into the hall with the victim. Ms. Curtis and two other women followed them to the door, but stayed inside the apartment; they cracked the door trying to hear what was happening in the hallway. She testified that they heard gunshots in the hall and immediately looked out the door into the hallway. She saw her brothers and Smith all down in the position where the victim was later found (outside apartment No. 901). She became sick and returned to the apartment. She noticed the gun was no longer on top of the refrigerator; she did not see the actual shooting.

Detective Leo Wilcosz testified that he was working the 12:30 a.m. to 9 a.m. shift on March 5, 1982, with his partner, Detective Carey, when he received an assignment to investigate a shooting death on the ninth floor of the CHA building at 2430 South State Street. Arriving at the scene at approximately 2 a.m., he noticed a large group had gathered in the hallway; one-half of these people were police personnel. As he stepped off the elevator, he observed the victim lying face-up on the floor; the lighting conditions were "good artificial lights.”

Following a discussion with the original reporting officer on the scene, Detectives Wilcosz and Carey began a survey of the residents of the ninth-floor apartments. Wilcosz testified that he went to apartment No. 903 and found three female adults and several children; he then went to Ollie Clark’s apartment. Returning to apartment No. 903, he received five color snapshots from Barbara Curtis. He also received an additional snapshot from another of defendant’s sisters. These snapshots were later shown to Kenneth Lester at the police station.

In the course of his direct testimony, Wilcosz identified one photograph from the group as a picture of defendant. He later testified that he took the same group of photographs to Ollie Clark’s apartment, where she identified from a different photograph defendant’s brother, Alfred Myles, as the man she saw bending over the victim.

After transporting Ms. Curtis and Vanessa Mobley (also present in apartment No. 903 the morning of March 5) to Area I headquarters, Wilcosz met with Kenneth Lester between 3 a.m. and 5 a.m. His partner was also present. He showed Lester the same packet of photographs that Barbara Curtis had given him. During direct examination, Wilcosz viewed the snapshot and identified it as the same photograph from which Lester had made his initial identification. Wilcosz and Carey turned the case over to Detectives David O’Callaghan and Silva Stenzi between 8 a.m. and 8:30 a.m. that same morning.

Detective O’Callaghan testified that he received the packet of photographs from Detectives Wilcosz and Carey when he came on shift at 8 a.m. on March 5, 1982. After interviewing Ollie Clark at the police station, he spoke to Kenneth Lester at 9:30 a.m. Lester identified the defendant from one of the photographs in the packet as the man that he saw bending over the victim that morning. O’Callaghan testified that Lester told him that he’d been nervous during a prior identification, and had related to the detectives that he met with earlier that morning that he was not sure (that it was defendant); he told O’Callaghan that he was now positive. The detective also spoke to Barbara Curtis and Vanessa Mobley. Warrants on defendant and his brother Alfred were issued at 2 p.m. O’Callaghan’s shift ended before he could apprehend defendant.

Detective John Murphy took over the case at 4:30 p.m. on March 5, 1982; he received the arrest warrants on defendant and his brother from Detective O’Callaghan. He went to apartment No. 903 where defendant’s girlfriend, Doris Paige, resided; she was not home. Murphy also went to a number of other places looking for defendant, but was unable to locate him. Alfred Myles, defendant’s brother, was apprehended on March 7,1982.

Murphy was not able to arrest defendant until March 16, 1982, when he found him in apartment No. 903. Later that day, a lineup was conducted; Kenneth Lester identified defendant in this lineup as the man whom he saw standing over the victim with a gun in his hand. On direct examination, Murphy identified a photograph as a picture of this same lineup. This was the same photograph that Kenneth Lester had identified. On cross-examination, defense counsel refreshed his recollection of his testimony before the grand jury, where he testified that Ollie Clark told him that she saw the victim fall to the floor.

The parties stipulated that the victim arrived at Mercy Hospital at 2:25 a.m. and was pronounced dead at 3:10 a.m.; that an autopsy was performed on the victim on March 6, 1982; that the autopsy showed that the victim’s bile was negative of opiates, his urine was negative of barbituates, he had a blood alcohol content of 68 milligrams, and the cause of death was multiple gunshots to the head.

At the close of its case in chief, the State moved that all of its exhibits be admitted into evidence; there was no objection by defendant. However, argument ensued as to what evidence would go to the jury. Defendant objected to the photographs (People’s exhibits Nos. 4 A through F), which were given to police by defendant’s sisters, being sent to the jury. The court, in a reversal of its prior decision that the photographs would not go to the jury, allowed all photographs, including exhibit No. 4C, to go to the jury.

The defendant did not present a defense.

Following closing arguments and instructions, the jury found defendant guilty of the murder of A1 Young. After arguments in aggravation and mitigation, the court sentenced defendant to 30 years.

Defendant appeals from judgment on this verdict and sentence.

Opinion

Defendant initially contends that error occurred when Detective Wilcosz volunteered that a photograph showed defendant with a “nickel bag” of marijuana, and that sending the photograph to the jury room reminded the jury of this testimony.

During Detective Wilcosz’ testimony regarding five photographs that he had been given by defendant’s sister, Barbara Curtis, the following colloquy occurred:

“State’s Attorney: Of the five [photos] that you got from Barbara Curtis, the sister in [apartment] 903, are any of those of defendant Elmore Myles?
Witness Wilcosz: Yes, sir, the photograph with the wine bottles, and he is holding what appears to be a nickel bag of marijuana. ***
Defense counsel: Objection, Your Honor.
The court: Sustained. The jury will disregard the last comment.”

The defense counsel requested a sidebar, and asked the court to declare a mistrial. The court denied this request, and testimony resumed with the detective identifying the photograph in issue as being a picture of defendant. Requesting another sidebar, the defense counsel inquired as to the State’s contemplated use for the photograph. The court determined at this time that it would not allow the photograph to be shown to the jury, but that it would allow the State to discuss it. Following the sidebar, the court again admonished the jury with the following language:

“The court: I have struck a portion of the officer’s testimony, and I am now asking you to disregard that statement and not to consider it in any way in connection with your deliberations in this case.”

This photograph, along with several others, was admitted into evidence. Later, the State moved to send the photograph in issue back to the jury room, and defense counsel renewed his objections to this action. The court, in reversal of its previous decision that the photograph should not go to the jury, found that any problems with the picture would have dissipated with the passage of time, and allowed the photograph to go to the jury.

Defendant contends that the court committed reversible error by sending this photograph to the jury. He posits that the court’s admonitions to the jury could not have cured the prejudice created by the detective’s comment and that the sending of the photograph to the jury would have sharply brought back to mind this prejudicial testimony.

Conversely, the State maintains that the trial court was well within its discretion when it allowed the jury to view the photograph in issue and that no error occurred at trial where the voluntary statement made by the detective was objected to by the defendant and the jury was twice admonished by the court to disregard the statement. The State contends in the alternative that even if the photograph was improperly sent to the jury, the error was harmless when viewed in light of the overwhelming evidence elicited at trial.

We first turn to consider whether the detective’s unsolicited comment that defendant'was holding “what appears to be a nickel bag of marijuana” was error. While the remark was improper, it was not called for by the question posed to the witness by the assistant State’s Attorney. We are of the opinion that in view of that fact, together with the prompt striking of the language in question and the court’s admonitions to the jury, no prejudicial error remains from the detective’s comment. See People v. Kirkwood (1959), 17 Ill. 2d 23, 31, 160 N.E.2d 766, eert. denied (1960), 363 U.S. 847, 4 L. Ed. 2d 1730, 80 S. Ct. 1623; People v. Travis (1981), 94 Ill. App. 3d 983, 991, 419 N.E.2d 433; People v. Belvedere (1979), 72 Ill. App. 3d 998, 1014, 390 N.E.2d 1239.

We next consider whether the trial court erred when it allowed People’s exhibit No. 4C, a snapshot of defendant, to go to the jury. Although we have stated that the detective’s improper comment was cured with no prejudicial error remaining, defendant argues that the sending of this photograph to the jury was reversible error because it would have reminded the jury of the detective’s “prejudicial comment,” which he argues had no probative value by itself once other identification testimony had come into evidence. We disagree.

The primary conditions for the admissibility of photographs are accuracy and relevancy. (People v. Donaldson (1962), 24 Ill. 2d 315, 318, 181 N.E.2d 131.) Where photographs are relevant to establish any fact in issue, they are admissible. (People v. Henenberg (1973), 55 Ill. 2d 5, 13, 302 N.E.2d 27.) Relevant photographs have been found admissible in the court’s discretion to prove a person’s identity. (People v. Gerecke (1977), 45 Ill. App. 3d 510, 514, 359 N.E.2d 1178.) The admission of a photograph into evidence does not necessarily become cumulative merely because there is also oral testimony on the same subject. People v. Henenberg (1973), 55 Ill. 2d 5, 14, 302 N.E.2d 27.

In the case at bar, we are presented with a photograph which was introduced by the State to prove defendant’s identity. Detective Wilcosz testified that he received the photograph from defendant’s sister, and that Kenneth Lester identified the defendant from the photograph as the man he saw standing next to the victim. Kenneth Lester testified that this photograph was the one which he used on March 5, 1982, to make an identification of defendant. Detective O’Callaghan identified the photograph as that which Lester used to positively identify defendant. We find no abuse of discretion on the part of the trial court in sending this photograph back to the jury. The photograph was relevant to show the identity of the defendant.

Even assuming arguendo that the photograph reminded the jury of the detective’s stricken testimony, we fail to see how this situation would operate to change our determination above.

It is the general rule that evidence of offenses, acts and wrongs other than those for which defendant is being tried is inadmissible. (People v. Baptist (1979), 76 Ill. 2d 19, 27, 389 N.E.2d 1200.) The underlying rationale is that such evidence has too much appreciable probative value, and is therefore objectionable. (People v. Romero (1977), 66 Ill. 2d 325, 330, 362 N.E.2d 288.) “The law distrusts the inference that because a man has committed other crimes he is more likely to have committed the current crime.” (People v. Lehman (1955), 5 Ill. 2d 337, 342, 125 N.E.2d 506.) However, there are certain exceptions to this rule. If the evidence of other offenses or bad acts is relevant for any purpose other than to show propensity to commit a crime, the evidence is admissible. (People v. Baptist (1979), 76 Ill. 2d 19, 27, 389 N.E.2d 1200.) Examples of these exceptions would be evidence which goes to show motive, intent, identity, absence of mistake or modus operandi. (People v. McDonald (1975), 62 Ill. 2d 448, 455, 343 N.E.2d 489.) However, the court may exclude even this type of evidence if its incremental probative value is substantially outweighed by the risk that its admission will create a danger of undue prejudice to the accused. People v. Friedman (1980), 79 Ill. 2d 341, 355, 403 N.E.2d 229.

If the jury, while viewing this photograph, inferred prior bad acts (use/possession of marijuana) by defendant, we believe that the photograph was still relevant to defendant’s identification by an occurrence witness, and was therefore alternatively admissible as an exception to the general rule excluding evidence of other crimes.

In the present case, we find a significant degree of probative value in defendant’s photograph. It was probative of the original identification of the defendant by Kenneth Lester, as well as to the corroboration of the detectives’ testimony regarding statements made to them by Kenneth Lester and Barbara Curtis. We believe the risk of prejudice to the defendant concerning any possible inference that the jury might make from the photograph is substantially outweighed by its probative value.

We note that the major bulwark against prejudicing the jury is the sound discretion of the trial judge, and “the exercise of that discretion will not be interfered with unless there has been an abuse to the prejudice of the defendant.” (People v. Jenko (1951), 410 Ill. 478, 482, 102 N.E.2d 783.) Therefore, the sending of this photograph to the jury cannot be deemed an abuse of discretion.

Assuming arguendo that we were to find that the trial court erred in sending this photograph to the jury, we would find this error harmless.

“Harmless error is a technical violation of a rule of evidence, properly brought to the attention of the trial court, not considered a sufficient basis for reversal because the admission or exclusion did not affect a substantial right of a party.” (E. Cleary and M. Graham, Handbook on Illinois Evidence sec. 103.10, at 27 (4th ed. 1984).) The determination of harmless error must be analyzed on the particular facts of each case, considering the trial record as a whole. (United States v. Hasting (1983), 461 U.S. 499, 508, 76 L. Ed. 2d 96, 105-06, 103 S. Ct. 1974, 1980.) Error is harmless where a reviewing court can safely conclude that a trial without the error would produce no different result. People v. Warmack (1980), 83 Ill. 2d 112, 128-29, 413 N.E.2d 1254.

In People v. Wilkerson (1981), 87 Ill. 2d 151, 157, 429 N.E.2d 526, our supreme court summarized three approaches for measuring harmless error: (1) focusing on the error to determine whether it might have contributed to the conviction; (2) examining the other evidence in the case to see if overwhelming evidence supports the conviction; (3) determining whether the evidence is cumulative or merely duplicates properly admitted evidence.

Applying the first approach to the case at bar, we believe that this error would not have contributed to the defendant’s conviction, and find People v. Butler (1974), 58 Ill. 2d 45, 317 N.E.2d 35, illustrative of a situation where the supreme court applied the doctrine of harmless error where the error itself was unlikely to have contaminated the jury.

In Butler, the defense, prior to the appearance of the arresting officers at trial, moved that the officers be precluded from testifying that defendant had been originally arrested pursuant to an unrelated murder investigation, urging that such information would prejudice the jury. Following the State’s assurance to the court that the officers would not testify as to the nature of the unrelated offense, the trial court agreed that the State could show that defendant had been arrested for a prior offense so as to explain why he was already in custody before any victim in the concerned incident had identified him.

Thereafter, references were made by a testifying officer that he was a “homicide investigator” who worked in “Area 4, Homicide”; that as a result of his arrest on the prior offense, defendant was taken to “Area 4, Homicide Unit” for questioning and then taken to central detention; and that defendant was arrested on the present charge of murder when he was returned to “Area 4, Homicide.” Further, reference to “Area 4” and defendant’s original processing was mentioned by the prosecution in closing arguments.

The Butler court found that it was possible that some jurors may have concluded that defendant had been originally arrested for murder based on the inferences to “Homicide” and “Homicide Unit,” but determined that it was unlikely and by no means certain that they did. Further, the court refused to be persuaded that these “vague and indirect references that defendant had been initially arrested in connection with a different murder could have affected the [present] guilty verdict.” 58 Ill. 2d 45, 49.

We find the inferences in Butler much more egregious than those possibly made by the jury in the case at bar. To hold that the sending of the photograph in issue to the jury was reversible error-would require us to presume that the jury remembered the detective’s stricken testimony, recognized whatever defendant was holding in his hand in the picture as a “nickel bag,” and then adjudicated his guilt as to the present murder charge based on his possible use/possession of marijuana. We do not believe that justice requires this course be taken.

The concern of a reviewing court is prejudicial error, and the court need not determine that a trial was devoid of error before affirming a conviction. (See People v. Scarpelli (1980), 82 Ill. App. 3d 689, 697, 402 N.E.2d 915, cert, denied (1981), 450 U.S. 915, 67 L. Ed. 2d 340, 101 S. Ct. 1357.) It is our judgment that any prejudice to defendant which occurred as a result of the jury seeing the photograph in question was minimal, and when considered along with the strong evidence of guilt which this record presents, we have no hesitation in stating our belief that the error was harmless beyond a reasonable doubt insofar as the jury’s determination of defendant’s guilt was concerned.

Finally, we find defendant’s reliance on People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238, and People v. Stadtman (1974), 59 Ill. 2d 229, 319 N.E.2d 813, to be misplaced. In both cases, the “other” crimes evidence admitted was so highly prejudicial as to warrant reversal. We have determined this not to be the case here.

We next turn to address defendant’s argument that the extent and nature of the State’s “investigatory procedure” testimony and its use by the State in closing arguments was improper and constituted reversible error.

Defendant initially contends that the testimony of three Chicago police detectives who described the extensive investigatory procedures necessary to defendant’s apprehension gave the impression of a stronger, weightier and more extensive State’s case than actually existed. Defendant further posits that this testimony included details “prejudicial” to him.

We initially note that no objections to this line of questioning were made at any time by the defense counsel, nor did defendant raise this point as error in his motion for a new trial.

It is fundamental to our adversarial system that counsel must object to errors at trial. (People v. Roberts (1979), 75 Ill. 2d 1, 10, 387 N.E.2d 331.) The rationale underlying this procedural requirement is based on the need for timely resolution of evidentiary questions at trial. (People v. Linus (1971), 48 Ill. 2d 349, 355, 270 N.E.2d 12.) It is clear that the failure by the defendant to raise an issue in the written motion for a new trial constitutes a waiver of that issue and it cannot be urged as a reason for reversal on review. (People v. Pickett (1973), 54 Ill. 2d 280, 282, 296 N.E.2d 856.) This rule applies to constitutional questions as well as to other issues. People v. Long (1968), 39 Ill. 2d 40, 43, 233 N.E.2d 389.

We recognize, however, that the waiver doctrine is not absolute. (People v. Carlson (1980), 79 Ill. 2d 564, 576, 404 N.E.2d 233.) Supreme Court Rule 615(a) provides an exception to this rule of waiver where there has been “plain error.” The rale reads in part:

“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” 87 Ill. 2d R. 615(a).

However, Rule 615(a) does not mandate that a reviewing court consider all errors involving substantial rights whether or not they had been raised in the trial court. (People v. Howell (1975), 60 Ill. 2d 117, 120, 324 N.E.2d 403.) Rather, the rule is a means of ameliorating the harshness of the strict application of the general waiver rule. (People v. Pickett (1973), 54 Ill. 2d 280, 282, 296 N.E.2d 856.) “A significant purpose of the plain error exception to the waiver doctrine is to correct any serious injustices which have been done to the defendant. It therefore becomes relevant to examine the strength or weakness of the evidence against him; if the evidence is close, there is a possibility that an innocent person may have been convicted due to some error which is obvious from the record, but not properly preserved. Thus, this court has held that where the evidence is closely balanced, a court of review may consider errors that have not been properly preserved for review.” People v. Carlson (1980), 79 Ill. 2d 564, 576, 404 N.E.2d 233.

We do not consider that the defendant was deprived of a fair and impartial trial nor was he prejudiced by the testimony of the three detectives as to their investigatory procedures. We also do not consider that the evidence is closely balanced. We find no reasons for departing from the general rule that issues not properly preserved for review are waived.

In the case at bar, Kenneth Lester testified that upon hearing shots fired, he turned a corner and saw defendant standing over the victim with a gun in his hand. There was another man with defendant, but Lester could not see him. Ollie Clark testified that upon opening her apartment door to the hallway, she heard footsteps going down a nearby stairwell and then observed a man she knew as “Maizey” standing over the victim’s body. She later discovered that “Maizey” was defendant’s brother. Barbara Curtis, defendant’s sister, testified that she was with the defendant just before the murder; that defendant, his brother “Maizey” and another man joined the victim in the ninth-floor hallway; that she had seen a gun “from Elmore [defendant]” on top of the apartment’s refrigerator before hearing the shots, but that the gun was no longer on top of the refrigerator after the shooting; and that she had seen defendant next to the victim after she heard the shots and went into the hallway. The defendant presented no evidence. In view of these facts, there is no reason to exercise our authority to consider whether the State’s investigatory procedure testimony was plain error under Rule 615(a).

We now consider defendant’s argument that the State’s closing argument regarding the investigatory procedures of Detectives Wilcosz, O’Callaghan and Murphy resulted in a representation to the jury that defendant and his brother were the only suspects in this case. This representation, defendant argues, was prejudicial enough to warrant a new trial.

Our analysis of this contention focuses on the defendant’s post-trial motion, which merely states that the trial court erred in allowing the State to make “prejudicial inflammatory and erroneous statements in closing argument designed to arouse the prejudices and passions of the jury.” We note that the motion does not set forth the specific remarks asserted to be prejudicial.

Similar situations were addressed in People v. Camp (1984), 128 Ill. App. 3d 223, 470 N.E.2d 540, and People v. Turk (1981), 101 Ill. App. 3d 522, 428 N.E.2d 510. In People v. Camp, the appellate court declined to endorse a lax post-trial practice that would defeat the underlying purpose of the post-trial motion, namely, to allow the court the opportunity to review and correct alleged errors that occurred during trial. The court found defendant’s statement that the trial court “erred in allowing the State to make a prejudicial and improper closing argument” to be not sufficiently specific to preserve the issue for review. (128 Ill. App. 3d 223, 232.) In People v. Turk, the defendant’s post-trial motion was not deemed sufficiently specific where it merely alleged that the prosecutor’s closing arguments were “ ‘inflammatory, prejudicial and invaded the defendant’s Sixth Amendment right to counsel and exhorted the jury to convict the defendant based on matters which [are] dehor [sic] the record in violation of defendant’s rights under the Sixth and Fourteenth Amendments of the United States Constitution.’ ” 101 Ill. App. 3d 522, 533.

The motion in the instant case is as general as' the preceding two examples, and we therefore will not hesitate to find that defendant’s post-trial motion was not sufficiently specific to preserve this issue for review. We conclude that the issue has been waived. In conjunction with our above determination as to the strength of the State’s case, we will therefore not recognize the alleged errors under the plain-error doctrine.

Further, we stand on this same conclusion in our consideration of defendant’s contentions that other various comments made by the State in closing arguments were improper and therefore warranted a new trial for defendant. We deem these issues also waived, and will not recognize these contentions under the plain-error doctrine for the above reasons. We have carefully reviewed the entire record and find that defendant received a fair and impartial trial.

Finally, defendant contends that the trial court abused its discretion when it found that the defendant was the “shooter” in a premeditated murder, and that it was improper for the trial court to use the “crimes of passion” standard as the minimum standard for a murder sentence. Conversely, the State maintains that the trial court did not abuse its discretion in sentencing because it merely commented on the finding of the jury, and did not rely on improper standards in making its decision to sentence defendant to 30 years for the murder of A1 Young.

Preliminarily, it should be noted that defendant was charged and convicted pursuant to section 9 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1), the minimum sentence for which is 20 years and the maximum 40 years. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—1(a)(1)(a).) The standard of review of allegedly excessive sentences is whether a trial court abused its discretion. People v. Kuesis (1980), 83 Ill. 2d 402, 408, 415 N.E.2d 323.

In People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882, the supreme court stated:

“A reasoned judgment as to the proper sentence to be imposed must be based upon the particular circumstances of each individual case. [Citation.] Such a judgment depends upon many factors, including the defendant’s credibility, demeanor, general moral character, mentality, social environment, habits, and age. [Citation.] The trial judge, in the course of the trial and the sentencing hearing, has an opportunity to consider these factors ‘which is superior to that afforded by the cold record in this court.’ [Citation.] We continue to find that the trial court is normally the proper forum in which a suitable sentence is to be determined and the trial judge’s decisions in regard to sentencing are entitled to great deference and weight.” 68 Ill. 2d 149,154.

We will now consider whether this record discloses that the trial court abused its discretion by imposing the sentence in the instant case. Here, the record reveals that the trial judge weighed the evidence and found that it indicated not only premeditation, but also that the defendant’s role was an active one; he stated that he heard no evidence in the record concerning mitigation of the facts surrounding the victim’s death. It is clear from our careful review of the record that the trial court imposed this sentence after giving due consideration to the evidence presented and the presentencing report. We believe that the trial court, after careful consideration of the proper factors and full compliance with statutory requirements, did not abuse its discretion when it sentenced defendant to 30 years of imprisonment for the murder of A1 Young.

For the foregoing reasons, we affirm the judgment and sentence of the circuit court of Cook County.

Affirmed.

MEJDA, P.J., and SULLIVAN, J., concur.


source: Caselaw Access Project

author: JUSTICE LINDBERG

license: Public Domain

text:
      In re MARRIAGE OF SUSAN BENNETT, Petitioner-Appellant, and EDWARD BENNETT III, Respondent (Roger A. White, Appellee).
    Second District
    No. 84—158
    Opinion filed March 29, 1985.

      Paul S. Chervin and Thomas E. Patterson, both of Wildman, Harrold, Allen & Dixon, of Waukegan, for appellant.
    Howard A. London, of Beermann, Swerdlove, Woloshin, Barezky & Berkson, of Chicago, for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

Petitioner, Susan Bennett (Susan), appeals from an order of the circuit court of Lake County striking her verified post-trial motion for a hearing on the reasonableness of attorney fees which she was ordered to pay her former attorney Roger A. White (White) in her marriage dissolution suit. We are called upon to decide whether she is entitled to a hearing on the reasonableness and necessity of the $25,000 attorney fee assessed against her. We reverse and remand for such a hearing.

Petitioner engaged White as her attorney, and he filed a petition for dissolution of her marriage to respondent Edward H. Bennett III (Edward), September 17, 1982. As the result of negotiations, petitioner and respondent entered into an agreement distributing their marital property. A prove-up hearing on the agreement was held on November 29, 1983, and judgment of dissolution was entered January 30, 1984. On February 15, 1984, Susan filed her post-trial petition for a section 508 hearing (Ill. Rev. Stat. 1983, ch. 40, par. 508) on the reasonableness of attorney fees ordered by the trial court pursuant to the entry of the judgment, which incorporated the parties’ agreement.

White’s motion to dismiss the petition alleged there were no grounds or reasons for a hearing because the $25,000 fee was an agreed fee and had been reduced to judgment. The trial court made no findings and dismissed the petition. Thus, the question on appeal is whether the provisions of section 508 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) (Ill. Rev. Stat. 1983, ch. 40, par. 508) require a hearing upon a party’s request where the amount of a client’s own attorney fees is incorporated in the parties’ settlement agreement and judgment of dissolution.

For purposes of review of an order granting a motion to strike a petition, the well-pleaded allegations therein are taken as true and the motion to strike should not be granted unless it clearly appears that no set of facts could be proved which will entitle the petitioner to recovery. (Weinert v. Weinert (1982), 105 Ill. App. 3d 56, 58, 433 N.E.2d 1158, 1160.) In her post-trial petition, Susan alleged that: when she first engaged White as her attorney he advised her he would charge her $75 to $100 per hour for his time and that she would receive a statement of the amount of time he expended for his services; the first time she heard his fee would be $25,000 was during the November 29, 1983, prove-up; White set the $25,000 figure as his fee without discussion with her as to its appropriateness or a hearing as to its reasonableness under section 508; and, it was her understanding that White would account to her for the $25,000 before entry of the judgment which included the property settlement agreement between Susan and Edward. The agreement recited that Susan was to pay White $21,696.65 and one-half of the parties’ anticipated 1982 tax refund of $11,500 as White’s fees and costs less amounts already received by White.

The record discloses the following colloquy at the prove-up of the settlement agreement November 29, 1983:

“Q. [White] Each of you are going to pay your own attorneys fees and court costs?
A. [Susan] Yes.
Q. [White] You have paid me some money for which I will give you a credit on the $25,000 that you and I have agreed to on fees?
A. [Susan] Yes.”

Generally, in Illinois attorney fees may be awarded to a litigant only when they are expressly authorized by statute or by agreement of the parties; the authority of a trial court to decide matters relating to the Illinois Marriage and Dissolution of Marriage Act is limited to its . specific statutory grant, especially when the court is asked to award attorney fees. (In re Mac Harg (1983), 120 Ill. App. 3d 753, 754, 458 N.E.2d 1154, 1155; In re Marriage of Justema (1981), 95 Ill. App. 3d 483, 486, 420 N.E.2d 796, 798.) The authority of the trial court to award attorney fees and other costs and expenses in the proper case derives from section 508 of the IMDMA (Ill. Rev. Stat. 1983, ch. 40, par. 508). This section allows an award of reasonable attorney fees. Subsection (a) provides for notice and hearing prior to the entry of an order for the payment of attorney fees and costs. Illinois adheres to the general rule that the allowance of such fees and costs in divorce proceedings is not a matter of right (Barnett v. Barnett (1950), 341 Ill. App. 26, 93 N.E.2d 93), but rests with the sound discretion of the trial court. In exercising its discretion, the court may consider, in addition to the abilities of the parties to pay, the questions at issue, the significance or importance of the subject matter, the degree of responsibility involved, standing and skill of the person employed and the time and labor involved. Donnelley v. Donnelley (1980), 80 Ill. App. 3d 597, 601-02, 400 N.E.2d 56, 59-60; see also Code of Professional Responsibility, Canon 2 — 106, 87 Ill. 2d R. 2-106.

Prior to the enactment of section 16 of the predecessor divorce act (Ill. Rev. Stat. 1975, ch. 40, par. 16), now section 508 (Ill. Rev. Stat. 1983, ch. 40, par. 508), it was generally held that a court had no jurisdiction to order a party to pay his or her own attorney fees and costs in a divorce proceeding, (in re Petition of Neiman (1972), 8 Ill. App. 3d 454, 289 N.E.2d 715.) The attorney had to bring a separate action at law. (Pressney v. Pressney (1950), 339 Ill. App. 371, 90 N.E.2d 119.) A contrary position was announced in Seniuta v. Seniuta (1977), 49 Ill. App. 3d 329, 364 N.E.2d 327, which held that such actions between a client and his attorney concerning fee awards could be brought in a divorce proceeding because the Illinois Constitution of 1970 (Ill. Const, art. VI, sec. 9 (1970)) abolished the distinction between law and equity. Subsection 508(a) codifies the Seniuta decision and makes it clear that the court has authority to adjudicate the liability of either spouse for the attorney fees and costs incurred by the other spouse as well as his or her own attorney fees and costs. Subsection (a) is intended to promote judicial economy by obviating the need for an attorney to sue his own client. Ill. Ann. Stat., ch. 40, par. 508, Hist. & Prac. Notes, at 635 (Smith-Hurd 1980).

Where the trial court orders a spouse to pay the fees of his or her own attorney and there is no showing on the record that this fee was unreasonable and where the party never requested a hearing before the trial court, an objection to the fee is waived (In re Marriage of Lord (1984), 125 Ill. App. 3d 1, 6-7, 465 N.E.2d 151, 155). However, the trial court in the instant case had no information upon which to base a finding of reasonableness and necessity as required by section 508. As previously mentioned, the court made no such findings. Therefore, under the circumstances of this case, the order to pay attorney fees in the amount of $25,000 was an abuse of discretion. Donnelley v. Donnelley (1980), 80 Ill. App. 3d 597, 601-02, 400 N.E.2d 56, 59-60.

Further, we conclude based upon the allegations of Susan’s petition that her failure to object to the quoted fee and her failure to request a special hearing did not constitute a waiver. Counsel for White on appeal acknowledged that White did not give Susan notice as required by section 508(a) of his intention to seek the entry of an order in the decree that she pay him $25,000 as his fee. While Susan did not raise the issue at trial or on appeal of lack of notice, we nonetheless conclude it defeats White’s waiver argument. A party who waived this question is bound by his waiver, but the court, which has the responsibility of reaching a just decision, understandably is not. (People v. Hoskins (1984), 101 Ill. 2d 209, 219.) The rule of waiver is a limitation on the parties and not on the courts, and a reviewing court may ignore the waiver rule in order to achieve a just result. (Augsberg v. Frank’s Car Wash, Inc. (1982), 103 Ill. App. 3d 329, 333, 431 N.E.2d 58, 61.) Additionally, a fair reading of Susan’s petition establishes that she was promised and therefore reasonably expected a statement of account to be forthcoming and implicitly, if White thereby satisfactorily accounted for the time expended at the rate of $75 to $100 per hour, she would pay the $25,000. We believe the allegations, and the implications arising therefrom, explain and excuse her failure to request a hearing at or immediately after the prove-up.

Nor can it be argued reasonably that Susan was in a position to take on her attorney as an adversary to contest the amount of his fee while he was representing her in the prove-up of the settlement of her affairs with Edward. The prove-up hearing which would lead to the final judgment in the dissolution of their marriage was the most critical stage of White’s representation of Susan. Under these circumstances, we believe her failure to object is reasonable and excusable.

In light of Susan’s allegations that she anticipated a statement of account, it was not unreasonable for her to anticipate that such a statement would be forthcoming when the divorce was concluded by the entry of the final judgment which occurred January 30, 1984. When, after the entry of the judgment, no statement of account was forthcoming, it appears that Susan retained new counsel. Thereafter, and within 16 days of the entry of the judgment, she filed her petition. We find that her petition was timely filed. Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1203; see In re Marriage of Rifkin (1983), 114 Ill. App. 3d 555, 449 N.E.2d 173.

White refers us to section 502 of the IMDMA (Ill. Rev. Stat. 1983, ch. 40, par. 502) as binding the court to the terms of the parties’ settlement agreement unless it finds the agreement unconscionable. First we note that all the cases relied upon for White’s argument in this regard relate to the enforcement of the agreement by one of the parties to the agreement (e.g., In re Marriage of Miller (1981), 98 Ill. App. 3d 1084, 424 N.E.2d 1342; Lagen v. Lagen (1973), 14 Ill. App. 3d 74, 302 N.E.2d 201). While it has been held that an attorney in a divorce proceeding had standing to appeal from a divorce decree awarding him a certain amount in attorney fees even though not a party to the underlying action (e.g., Gilmore v. Gilmore (1975), 28 Ill. App. 3d 36, 328 N.E.2d 562), White has cited no authority that would entitle him to enforce the right granted to the parties to the agreement by section 502, and we have found none.

White correctly asserts that Susan did not raise the issue of unconseionability of the parties’ settlement agreement. However, section 502 does not appear to be relevant to the question of the authority of the trial court to order attorney fees in dissolution judgments. Section 502 is limited to written or oral agreements containing provisions for “disposition of any property owned by either of them, maintenance and support, custody and visitation of their children.” (Ill. Rev. Stat. 1983, ch. 40, par. 502(a).) Therefore, we reject White’s contention that the courts are bound by section 502 to the parties’ settlement agreement relating to the amount to be paid by a client to her attorney, particularly where the trial court’s authority to make the award is expressly provided for in section 508 (Ill. Rev. Stat. 1983, ch. 40, par. 508).

Further, we cannot agree with White’s contention that a contract arose between him and Susan for the payment of the $25,000 by reason of her witness-stand assent to that figure and its incorporation into the parties’ settlement agreement. Since Susan alleged an agreement for an hourly rate of $75 to $100 and a statement accounting for White’s time, White’s contention that Susan agreed to a fee of $25,000 while on the witness stand and in the agreement between the parties would constitute a modification of the attorney’s employment agreement. It is incumbent upon an attorney to exercise the utmost good faith and fairness in dealing with his client. A fiduciary relationship exists as a matter of law between an attorney and client, and all transactions growing out of such a relationship are subject to the closest scrutiny. A fee arrangement which is modified to an attorney’s advantage during the relationship of attorney and client is presumptively fraudulent. The burden is on the attorney to affirmatively prove that the modification was made with unquestionable good faith, fairness, adequacy of consideration and freedom from undue influence. (Drake v. Becker (1973), 14 Ill. App. 3d 690, 696, 303 N.E.2d 212, 216.) We do not believe White’s conduct under the facts of this case affirmatively prove that the modification was made with unquestionable good faith, fairness, adequacy of consideration and Susan’s freedom from the undue influence of risking adequate representation at a critical stage of her divorce proceedings.

In Crawford v. Crawford (1976), 39 Ill. App. 3d 457, 461-.62, 350 N.E.2d 103, 107, the court observed that a settlement agreement will be set aside and vacated if the agreement is procured by fraud, coercion or is contrary to any rule of law, public policy or morals. Applying that legal principle, among others, the court found that although the agreement was preceded by negotiations between the parties’ attorneys, the record was devoid of any evidence that the plaintiff was consulted or advised by her former attorney prior to testifying at the prove-up of the terms of the property and alimony settlement involved in that case. The court reversed the decree of divorce and remanded for a new hearing.

While Crawford is arguably distinguishable because the wife objected to the settlement as soon as the prove-up was over and immediately hired new counsel, we do not find that to be a significant distinction. We have previously accepted the reasonableness of Susan’s failure to object at the prove-up and until after the entry of the judgment, whereupon she sought independent advice and filed a timely post-trial petition. (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1203; see James v. James (1958), 14 Ill. 2d 295; see also, In re Marriage of Rifkin (1983), 114 Ill. App. 3d 555, 449 N.E.2d 173.) As in Crawford, there is no evidence that Susan had foreknowledge of the amount claimed by White on the day of the prove-up. Further, based upon the allegations of her petition which we take as true, she was entitled to a statement accounting for White’s time at the rate of $75 to $100 per hour and costs.

Upon remand, the court should hear evidence of what work was done and the value of the services rendered. Moreau v. Moreau (1973), 9 Ill. App. 3d 1008, 1009, 293 N.E.2d 680, 681 (where the reviewing court reversed for a new attorney fees hearing in part because the record contained no bills, no written accounts and no detailed breakdown of the nature and necessity of the services performed by the attorney).

In sum, we reverse the order of the circuit court of Lake County denying Susan’s post-trial petition for a section 508 hearing on the reasonableness and necessity of White’s attorney fees and remand the cause for such a hearing.

Reversed and remanded.

NASH, P.J., and REINHARD, J., concur.


author: JUSTICE ROMITI

text:
    PORTIA SILAS, Plaintiff-Appellant and Cross-Appellee, v. EMMA ROBINSON, Defendant-Appellee and Cross-Appellant.
    First District (4th Division)
    No. 83—3096
    Opinion filed March 7, 1985.
    Rehearing denied April 11, 1985.

      Kenneth A. Green, of Chicago, for appellant.
    Charles Kraut, Ltd., of Chicago, for appellee.
   JUSTICE ROMITI

delivered the opinion of the court:

Portia Silas (Silas) appeals from the judgment of the Cook County circuit court which dismissed her complaint against her sister, Emma Robinson (Robinson), for partition and accounting and which ordered her to execute a quitclaim deed to Robinson. Robinson cross-appeals from the trial court’s order which denied her post-trial motion for attorneys’ fees. The parties raise the following questions for our review:

1. Whether the trial court’s finding that Silas’ interest constituted an equitable mortgage in the real property at issue was erroneous as against the manifest weight of the evidence;

2. Whether the trial court’s conclusion that the facts proved at trial established the existence of an equitable mortgage was legally erroneous;

3. Whether the trial court’s denial of Robinson’s post-trial motion for attorney fees pursuant to section 2 — 611 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 611, formerly Ill. Rev. Stat. 1979, ch. 110, par. 41) was erroneous as an abuse of discretion.

We affirm.

Silas filed her complaint for partition and accounting on August 19, 1980. She alleged that she and Robinson were joint tenants of certain real property on the south side of Chicago, and that they had become owners of the property by purchase dated May 30, 1975. She further alleged that Robinson resided on the first floor of the premises and had control over the second floor, which Robinson rented to others. Silas claimed that Robinson had not adequately compensated her for Robinson’s occupancy or for the rents collected. Based upon these factual allegations, she requested partition of the real property and an accounting from Robinson.

Robinson filed her answer, affirmative defense, and counterclaim on October 30, 1980. She alleged in pertinent part that when she and Silas purchased the property at a total price of $5,600, each of them provided half of the total amount, or $2,800. She further claimed that she and Silas had agreed that Silas’ money was a loan to Robinson, which Robinson would repay to Silas in full plus $400 in interest, for a total of $3,200. Robinson alleged that they had agreed that title to the property would be taken in joint tenancy, but that Robinson would actually be the buyer and owner of the property and that upon repayment of the $3,200, Silas would immediately deed her interest to Robinson. Lastly, she claimed that although she had repaid Silas in full, Silas refused to convey title to the property to her. Based upon these factual allegations, Robinson requested that the court order Silas to convey her interest to Robinson and that the court order Silas to pay reasonable attorney fees and court costs.

Following a bench trial of several days’ duration in September and October 1983, at which Robinson, Silas, and Silas’ husband testified, the trial court entered its judgment denying Silas the relief sought, ordering her to quitclaim her interest to Robinson, and directing her to pay Robinson’s court costs. The court subsequently denied Robinson’s motion for attorney fees. The parties’ timely appeal followed.

I

Silas first argues that the trial court’s judgment was erroneous because the facts proved below demonstrate that no equitable mortgage was intended by Silas and Robinson. In support, Silas relies upon the factual theory she presented to the court below. This theory was that Silas borrowed a total of $3,200 from her husband to pay for her share of the purchase price of the property plus supplies for certain repairs, and that Robinson’s payment of $135 per month to Silas was Robinson’s rent payment to Silas. She further suggests, as she did before the trial court, that the receipts she gave Robinson for each of the $135 payments were to indicate the balance Silas still owed her husband on his loan to her, and were not meant to show any balance Robinson owed Silas herself for any loan of money. The trial court rejected this theory, however, based upon all of the testimonial and documentary evidence presented to it.

It is well established that “ ‘in a bench trial it is within the province of the trial court to determine the credibility and weight of testimony, to resolve the inconsistencies and conflicts, and to render its decision accordingly.’ ” (MBL (USA) Corp. v. Diekman (1983), 112 Ill. App. 3d 229, 235, 445 N.E.2d 418, quoting People v. Green (1982), 104 Ill. App. 3d 278, 284, 432 N.E.2d 937, appeal denied (1982), 91 Ill. 2d 562.) A court of review cannot substitute its judgment for that of the trial court unless the manifest weight of the evidence fails to support the trial court’s findings. (Aetna Screw Products Co. v. Borg (1983), 116 Ill. App. 3d 206, 213, 451 N.E.2d 1260.) This is especially so where testimony is conflicting and contradictory. In re Marriage of Dwan (1982), 108 Ill. App. 3d 808, 814, 439 N.E.2d 1005.

The trial court’s judgment here was based upon several days of trial wherein the court had ample opportunity to assess the credibility of Robinson, Silas, and Silas' husband. In its written judgment, the trial court made specific, detailed and thorough findings of fact. The court determined that Robinson borrowed $2,800 from Silas to make the purchase and another $400 to make certain repairs and buy insurance because Robinson was “short of cash.” The court also found that the sisters took title to the property as joint tenants “in order to guarantee the repayment of the $3,200 ***.” It further concluded that “[i]t was agreed between the sisters that when the $3,200 was repaid [Silas] would quitclaim her interest in the building back to [Robinson].” The court found that Robinson made timely payments as agreed, obtained receipts from Silas for each payment, and took charge of the management and rehabilitation of the premises. The court determined that once the loan had been fully repaid, however, Silas offered to quitclaim her security interest only upon the payment of an additional $2,000, which Robinson refused to do. Thereafter the sisters filed their respective claims against each other. Based upon these findings, the court concluded that the parties intended that Robinson would buy the property with a loan from Silas; to secure her loan, Silas was given an undivided 50% ownership of the building with the understanding that when repaid, Silas would quitclaim the 50% back to Robinson. The court determined that Silas now refused to do so without payment of more money than that to which they had originally agreed. It is thus readily apparent that the court found Robinson’s version more credible than that of Silas and her husband, and entered its judgment accordingly. Based upon our review of the record, we cannot say that these findings were against the manifest weight of the evidence presented.

II

Silas also suggests that the trial court’s judgment was erroneous because the facts found by the court do not establish the existence of an equitable mortgage between the parties. We disagree.

“Every deed conveying real estate, which shall appear to have been intended only as a security in the nature of a mortgage, though it be an absolute conveyance in terms, shall be considered as a mortgage.” (Ill. Rev. Stat. 1979, ch. 95, par. 55; see also, e.g., Wilkinson v. Johnson (1963), 29 Ill. 2d 392, 398, 194 N.E.2d 328; Warner v. Gosnell (1956), 8 Ill. 2d 24, 30, 132 N.E.2d 526; Metcalf v. Altenritter (1977), 53 Ill. App. 3d 904, 909, 369 N.E.2d 498.) “Any evidence tending to show that the purpose and intention of the parties of the transaction was that of a loan and security is admissible.” (Burroughs v. Burroughs (1971), 1 Ill. App. 3d 697, 703, 274 N.E.2d 376.) Thus, all of the circumstances surrounding the transaction are relevant to the parties’ intent (McGill v. Biggs (1982), 105 Ill. App. 3d 706, 708, 434 N.E.2d 772), including parol evidence. (Wilkinson v. Johnson (1963), 29 Ill. 2d 392, 399, 194 N.E.2d 328; Warner v. Gosnell (1956), 8 Ill. 2d 24, 30, 132 N.E.2d 526.) Relevant factors to determine whether the deed absolute in form was intended to be a mortgage include the relation of the parties, the circumstances surrounding the transaction, the adequacy of consideration, and the situation of the parties after the transaction. (Beelman v. Beelman (1984), 121 Ill. App. 3d 684, 690, 460 N.E.2d 55; Smith v. Fried (1981), 98 Ill. App. 3d 467, 470, 424 N.E.2d 636.) Although proof of an equitable mortgage must be clear, satisfactory and convincing, it is not necessary that there be no conflict in the evidence presented. Burroughs v. Burroughs (1973), 11 Ill. App. 3d 176, 178, 296 N.E.2d 350.

The facts proved here amply establish that Robinson and Silas intended that the deed to both of them in joint tenancy would serve as security for Silas’ loan to Robinson, which Robinson would repay in full at the rate of $135 per month. In addition, the evidence showed that Robinson managed and rehabilitated the property, by paying for repairs, real estate taxes, and insurance, and by occupying a portion of the premises and renting out the remainder. Silas, in contrast, contributed virtually nothing in repairs, maintenance, or taxes, nor did she attempt to occupy or otherwise take advantage of the benefits of ownership of the property. In short, both sisters regarded the premises as belonging to Robinson alone and considered Silas’ initial contribution of $3,200 as a loan to Robinson so that she could purchase the property. As a result, the evidence clearly established that Silas’ interest was an equitable mortgage which, once satisfied, obligated Silas to quitclaim the property to Robinson.

Silas also argues that there was never a mortgage between the sisters because according to Silas “conveyances of real estate cannot be by insinuation or oral agreement” but instead “must be in writing, clear and absolute.” Here, however, Silas misunderstands the nature of an equitable mortgage. Silas first suggests that pursuant to section 3 — 401(1) of the Illinois Commercial Code regarding commercial paper, no person is liable on an instrument unless his signature appears thereon. (Ill. Rev. Stat. 1979, ch. 26, par. 3— 401(1).) Consequently, according to Silas, there was no mortgage because Robinson never signed one naming Silas as mortgagor. No writing was required, however, since an equitable mortgage can be found on the basis of parol evidence. Beelman v. Beelman (1984), 121 Ill. App. 3d 684, 690, 460 N.E.2d 55.

Next, Silas urges that there was no mortgage because none was ever recorded as required by statute. (Ill. Rev. Stat. 1979, ch. 30, par. 27.) Silas neglects the obvious, however, since the statutes also provided that a deed absolute in form is to be considered a mortgage if it appears that the parties intended it to serve only as a security. (Ill. Rev. Stat. 1979, ch. 95, par. 55.) Accordingly, a recorded deed which names two sisters as joint tenants may be treated as an equitable mortgage where the circumstances surrounding their transaction so indicate.

In addition, Silas claims that there was no mortgage because Robinson never signed any instrument agreeing to pay Silas on a definite date. There was no requirement that any part of the agreement be in writing. (Miller v. Thomas (1853), 14 Ill. 428.) The evidence presented here clearly established a debt relationship between Robinson and Silas, which was sufficient to find the creation of an equitable mortgage.

Silas also contends that there was no mortgage because “courts of equity have no power to substitute a different contract in the place of the one actually made; the interest of either party to a contract must be expressed in the language of the agreement.” In support of this proposition of law, Silas cites Hibernian Banking Association v. Davis (1920), 295 Ill. 537, 129 N.E. 540. Although we do not disagree with the legal proposition of Hibernian upon which Silas relies, it is inapposite to the case before us since the evidence here fully justified the trial court’s decision.

Lastly, Silas argues that there was no mortgage because title to real property can be transferred only in writing, not by parol, and must sufficiently describe the property. We note once more that the theory of equitable mortgage takes into account all attendant circumstances, not merely the form of the deed or conveyance. Ill. Rev. Stat. 1979, ch. 95, par. 55; Beelman v. Beelman (1984), 121 Ill. App. 3d 684, 690, 460 N.E.2d 55.

Ill

In her cross-appeal, Robinson argues that the trial court abused its discretion when it denied her post-trial motion for attorney fees. We disagree.

Section 2 — 611 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 611, formerly Ill. Rev. Stat. 1979, ch. 110, par. 41), provides that allegations and denials made without reasonable cause and found to be untrue shall subject the party pleading them to the payment of reasonable attorney fees and court costs actually incurred by the other party by reason of the untrue pleading. The remedy provided is penal in nature, and the trial court is given broad discretion as to any award granted. Schnack v. Crumley (1982), 103 Ill. App. 3d 1000, 1004-05, 431 N.E.2d 1364; Tower Oil & Technology Co. v. Buckley (1981), 99 Ill. App. 3d 637, 650, 425 N.E.2d 1060.

Our review of the record leads us to conclude that although the trial court disbelieved the testimony of Silas and her husband, it did not find their testimony and other pleadings so spurious in nature as to justify the imposition of attorney fees. We cannot say that this decision was an abuse of discretion.

For the reasons stated, the judgments of the trial court are affirmed.

Affirmed.

JIGANTI, P.J., and LINN, J., concur.

      During the pendency of this appeal, both Silas and Robinson died. Upon proper motion to this court, suggestion of the death of Silas on September 26, 1984, was spread of record on 'October 26, 1984, and the special administrator of her estate substituted as party to this action on November 21, 1984. Similarly, suggestion of the death of Robinson on November 17, 1984, was spread of record on December 27, 1984, and the executor of her estate substituted as party in this appeal. We do not consider here the ramifications of the deaths of Silas and Robinson upon the legal issues discussed herein.


author: JUSTICE PERLIN

text:
      In re MARRIAGE OF MARY LOUISE DAVIS, Petitioner-Appellant, and JACK R. DAVIS, Respondent-Appellee.
    First District (2nd Division)
    No. 84—0879
    Opinion filed March 12, 1985.
    Paul Harrison Stacey, of Wheaton, for appellant.
    Law Offices of Stephen L. Baum, Ltd., of Chicago (Stephen L. Baum and Marvin A. Brusman, of counsel), for appellee.
   JUSTICE PERLIN

delivered the opinion of the court:

Petitioner, Mary Louise Davis (Mary), appeals the property division, maintenance and attorney fees portions of a judgment entered in the circuit court of Cook County dissolving her marriage to respondent, Jack R. Davis (Jack). She contends that the trial court erred in: (1) failing to “seek finality in the judgment”; (2) awarding to Jack the entire interest in his corporate law firm “without receiving evidence” as to its valuation; (3) failing to “evaluate or distribute” the law firm’s pension plan; (4) awarding her only $1,000 per month for unallocated maintenance and child support for one year and; (5) requiring Jack to pay only two-thirds of her approximately $16,000 attorney fees.

Mary and Jack were married in 1966. They had one child, Joel, born in 1968. Jack’s two children from a previous marriage apparently lived with Jack and Mary until shortly before this litigation arose, at which time they left to live with their mother.

Mary testified: She is 38 years old and in good health. She is a high school graduate and worked for a short time at the outset of her marriage, but then stopped working in order to raise the family. At the time of trial, she had again worked as a secretary for a period of six months; working 25 hours per week, she was earning a gross income of approximately $13,000 per year. She did not consider herself a qualified secretary, and had enrolled in college secretarial courses. She cannot work full time while raising Joel. The yearly expenses for her and Joel amount to approximately $43,000.

Jack testified: He is a sole practitioner attorney with offices in Chicago and Palatine. He is 52 years old and in good health. His law firm was a sole proprietorship until 1980, when he incorporated it. His personal Federal income tax returns for the years 1976-1981 reflect an income from his law firm ranging from $60,000 to $75,000. His present salary is $1,000 per week. He conceded, however, that in 1981 he borrowed $50,000 from the firm which “could be considered” income to him. In the same year, he borrowed an additional $32,000 from the firm, which funds were “earmarked” for the firm’s “defined plan pension program.” The corporation’s Federal corporate income tax return for the 1980-1981 fiscal year showed gross receipts of approximately $547,000, gross income of $180,000 and taxable income of $32,000.

Additional evidence admitted at trial relevant to valuation of the items of marital property included the following:

Jack’s Law Firm. No expert testimony was presented. Jack testified that the corporation employed no attorneys other than himself and he employed one full-time and one part-time secretary. At the time of trial, the corporation’s business was “down.” The accounts receivable totaled $3,000. Jack had transferred to the corporation his one-third interest in the Palatine office building in which the law firm is located. The corporation also owns a 1977 Mercedes car which Jack valued at $15,000 and a 1981 Toyota truck, purchased for $9,000 cash. Mary introduced into evidence a financial statement prepared by Jack in 1979 for use in securing a bank loan in which he valued the law firm at $150,000.

The Law Firm’s Pension Plan. No expert testimony was presented. Jack testified that the law firm had established a “defined benefit pension plan” which had no money in it, and that he had borrowed $32,000 from the corporation which was “earmarked” for the pension fund.

The Marital Home. The parties stipulated that it was worth $160,000 and carried a mortgage balance of $18,000. The furnishings in the home were worth approximately $7,000.

The Wisconsin Condominium. The parties stipulated that it was worth $118,000 and had a $50,000 mortgage.

The Unimproved Rand Road Lot. In 1977, the parties purchased a 50% interest in this property for $48,000. It had no mortgage.

The Palatine Office Building. In 1981, Jack and two equal partners purchased this building for $165,000. Jack assigned his one-third interest to his corporation. Jack’s appraiser valued the property at $245,000; Mary’s appraiser valued it at $265,000. It carried two mortgages which totaled $140,000 and according to Jack had “unpaid improvements” totaling $40,000.

The Unimproved Wisconsin Lot. Jack and Mary purchased an undivided one-fourth interest in it for $1,750.

Lake Barrington Shores Condominium. This was purchased in 1981 for $117,000.

Other Personal Property. The parties owned a sailboat purchased in 1980 for $60,000 cash and a 1978 Datsun car worth some $7,000.

At the conclusion of the hearings, the court took the case under advisement. At a subsequent hearing, the court announced its decision as to apportionment of the marital estate and child support and maintenance.

The court ordered the parties to sell the Lake Barrington Shores condominium and their interests in the unimproved Rand Road and Wisconsin properties, and to divide the net proceeds therefrom equally between them. Mary was awarded the marital home, its furnishings and the Datsun car. Jack was awarded his corporation, the Mercedes car and Toyota truck, the Wisconsin condominium, the corporation’s interest in the Palatine office building and the sailboat. (While the court did not then note the corporation’s pension program, at a subsequent hearing the court stated that it had “previously ruled that [Mary] shall have no interest in the pension fund.”) In apportioning these items, the trial court neither assigned values to them nor made reference to the relevant statutory factors prescribed in the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1981, ch. 40, par. 503(c)).

The court awarded custody of Joel to Mary, and ordered Jack to pay to her $1,000 per month, for 12 months, as unallocated maintenance and child support. The court ordered a review of these payments after the 12-month period. When announcing the support award, the trial court did not refer to the relevant statutory factors prescribed in the Act. Ill. Rev. Stat. 1981, ch. 40, pars. 504(b), 505(b).

At a subsequent hearing on Mary’s petition for attorney fees, the trial court ordered Jack to pay two-thirds of her approximately $16,000 attorney’s bill.

Mary’s first contention is that the trial court “failed to seek finality” in its apportionment of the marital estate. Her language does not delineate the scope of her argument. An appellant has the responsibility to clearly define the issues raised, and to support them with pertinent citations to the record and authority. Mary has failed to do so, and we therefore find this issue to have been waived. First Arlington National Bank v. Stathis (1983), 115 Ill. App. 3d 403, 450 N.E.2d 833.

Mary next argues that the trial court erred when it distributed the marital property without possessing “evidence of the valuation” of Jack’s professional corporation. Contending that “in all probability” the law firm was the largest asset in the marital estate, and that the trial court was presented “with little testimony as to the value of the corporation’s assets, goodwill or the common stock from which the court could assemble or surmise a reasonably definitive evaluation,” she requests that this court vacate the property apportionment and remand the case for further hearings, on the issue of corporate value.

Jack responds that the court was presented with “competent evidence” of the value of the law firm, including the corporate tax return; Jack’s personal tax returns; and Jack’s “extensive” testimony regarding the corporation’s economic status. He cites to cases standing for the proposition that a trial court is not required to place a value on each item of marital property, and that a trial court’s apportionment of property will be upheld so long as the record contains competent evidence of value and the court’s apportionment is supported by that evidence. See, e.g., In re Marriage of Cuisance (1983), 115 Ill. App. 3d 551, 450 N.E.2d 1302.

In our opinion, this case must be remanded for reconsideration of the value of Jack’s corporation. Section 503(d) of the Act requires the trial court to apportion the marital property “in just proportions” in light of the factors enumerated in the Act.

“For a trial court to apportion marital assets under section 503 *** the proper value of such assets must be established. [Citation.] Where the record lacks proper evidence of valuation, there is no basis upon which an appellate court can review the propriety of a trial court’s apportionment of marital property. [Citation.]” In re Marriage of Wilson (1982), 110 Ill. App. 3d 809, 813, 443 N.E.2d 31.

While we recognize that the valuation of a closely held corporation “is not an exact science” (In re Marriage of Mullins (1984), 121 Ill. App. 3d 86, 89, 458 N.E.2d 1360), this does not mean that such entities are incapable of being appropriately evaluated. For example, in In re Marriage of Weiss (1984), 129 Ill. App. 3d 166, 172, 472 N.E.2d 128, the court states:

“In re Marriage of Lopez (1974), 38 Cal. App. 3d 93, 113 Cal. Rptr. 58, stated that in valuing a law practice, consideration must be given to the existence and value of: (1) fixed assets, including cash, furniture, equipment, supplies and law library; (2) other assets, including properly aged accounts receivable, costs advanced with due regard to collectibility, work in progress partially completed but not billed as receivable, and work completed but not billed; (3) goodwill of the practitioner in his business as a going concern; and (4) liabilities of the practitioner related to his business.”

The only evidence introduced here was that of four corporate assets: two vehicles, the accounts receivable and Jack’s interest in the office building which he had assigned to the firm. Mary introduced Jack’s own four-year-old financial statement in which he valued the firm at $150,000. We consider this evidence as insufficient basis for the determination of the value of the law firm.

Further, the trial court’s failure to assign a value to the law firm precludes this court from effectively reviewing the trial court’s apportionment of marital property. Jack, in his brief, suggests that his corporation be valued at $3,000 (the amount of the accounts receivable), and thereupon calculates that each party received an approximately equal share of the marital estate. Mary, assigning to the firm a value of $150,000 (Jack’s 1979 valuation), calculates that Jack received approximately 70% of the marital estate. Under these facts “it is essential for purposes of complete fairness that a definite valuation” be placed on the professional corporation. (In re Marriage of Greenberg (1981), 102 Ill. App. 3d 938, 945, 429 N.E.2d 1334.) The trial court should permit the parties to introduce further evidence of the corporation’s value, and whereupon the court should assign a value thereto. Thereafter the court must apply the relevant statutory factors contained in the Act, and apportion the marital estate.

In a related argument, Mary contends the trial court erred when it failed to evaluate, and to distribute, the law firm’s pension plan. As noted, the only evidence relevant to this issue was Jack’s own testimony that the corporation had established a “defined benefit pension plan” which had no funds but that he had borrowed from the corporation $32,000 which was “earmarked” for the pension plan.

The trial court did not assign a value to the plan and did not, in its oral pronouncement of judgment, refer to the plan. At a subsequent hearing the court stated that it had intended to award the pension plan to Jack.

Jack argues that, in light of the evidence, the trial court “could have” found the pension plan to be an asset of the corporation, which was awarded to him. Jack notes that in closing argument, Mary’s trial attorney deemed the pension plan to be part of the corporation:

“MR. RINELLA: We are not asking for *** the professional corporation, which would include the pension ***.”

It is clear that pension rights “whether matured, vested or not vested, contributory or noncontributory, are property under section 503 of the Act [citations].” (In re Marriage of Hobbs (1982), 110 Ill. App. 3d 451, 455, 442 N.E.2d 629.) It has been recognized that when, as appears to be the case here, a party is both the “sole participant” as well as the “sole beneficiary” in a pension plan, that person has the capacity to make himself fully vested at will. (In re Marriage of Weinberg (1984), 125 Ill. App. 3d 904, 466 N.E.2d 925.) “[A]bsent sufficient evidence of the present value of future pension fund benefits, an award of an interest in such benefits is inappropriate under section 503.” (In re Marriage of Kundit (1982), 107 Ill. App. 3d 310, 314, 437 N.E.2d 777.) While the record here indicates the trial court intended to award the pension plan to Jack, the court’s failure to evaluate the pension under these facts precludes appropriate review by this court of the overall property apportionment. Upon remand, the trial court should determine the value of the pension plan to assure an equitable apportionment of the marital estate.

Mary next argues that the trial court abused its discretion in awarding her unallocated maintenance and child support of $1,000 for 12 months. She finds this unreasonably low in light of her testimony that her monthly expenses amounted to $3,600. She also suggests that the evidence indicates that Jack’s actual income was appreciably higher than his claimed income, pointing to his cash purchases of cars, boats and other property, and his large “loans” from the corporation.

Jack responds that the maintenance and child support award is “most generous” since it amounts to approximately one-third of his net income. Jack alleges that Mary’s argument suggests that she believes she is entitled to continue in the life-style to which she was accustomed during the marriage but that, as her trial attorney conceded, this is not possible given the present economic circumstances of the parties.

Because we are remanding this case, we need not reach the merits of this issue. The allocation of marital property is among the factors to be considered in setting maintenance (Ill. Rev. Stat. 1981, ch. 40, par. 504(b)(1)) and child support (Ill. Rev. Stat. 1981, ch. 40, par. 505(a)(2)). It has been deemed appropriate therefore “to remand to the trial court all interrelated property and support issues once it has been determined that the property division was improper.” (In re Marriage of Wilson (1982), 110 Ill. App. 3d 809, 815-16, 443 N.E.2d 31.) The trial court, upon apportioning the marital assets, should apply the relevant statutory factors in determining the issues of maintenance and child support.

Mary’s final contention is that the trial court abused its discretion in requiring Jack to pay only two-thirds of her $16,000 attorney fees.

The award of attorney fees should take into account, inter alia, the apportionment of the marital estate. (In re Marriage of Derning (1983), 117 Ill. App. 3d 620, 453 N.E.2d 90.) Since the present case is to be remanded for reconsideration of the marital property apportionment, the trial court must also reconsider the issue of the apportionment of attorney fees.

In determining the apportionment of Mary’s attorney fees, we suggest the trial court should examine the amount of such fees. Additionally, the fees awarded “should be limited to an amount which provides fair compensation to the attorney and which are fair to the person required to pay.” In re Marriage of Rossi (1983), 113 Ill. App. 3d 55, 62, 446 N.E.2d 1198.

“Fees granted should provide for fair compensation for reasonable and necessary services determined by considering the financial position of the parties, the skill and standing of the attorneys employed, the importance, novelty and difficulty of the question raised, the degree of responsibility, the time and labor required, the usual and customary charge in the community, and the benefits resulting to the client. [Citation.]
***
It is well established that a mere compilation of hours and hourly rates such as was provided in this case will not necessarily justify the award of attorney fees as requested. [Citations.]” (In re Marriage of McNeely (1983), 117 Ill. App. 3d 320, 329-30, 453 N.E.2d 748.)

From our review of the record in the instant case, we conclude that no novel or complex issues were involved here and that insufficient evidence was presented on the few disputed and salient issues involved. It also appears that the trial court awarded Mary’s trial attorney fees at the higher courtroom rate ($200 per hour) for such mundane matters as requesting continuances and presenting agreed orders. It has been held that this type of work does not require the “greater skill” contemplated by billing court time at a higher rate. In re Marriage ofDulyn (1980), 89 Ill. App. 3d 304, 411 N.E.2d 988.

For the foregoing reasons the judgment of the circuit court is affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion.

Affirmed in part, reversed in part and remanded with directions.

STAMOS, P.J., and HARTMAN, J., concur.

      At oral argument, the parties advised that they had not yet returned to the trial court for review of the maintenance/child support payments.


author: JUSTICE JOHNSON

text:
    JOHN PODMAJERSKY et al., Plaintiffs-Appellants, v. THE ZONING BOARD OF APPEALS OF THE CITY OF CHICAGO et al., Defendants-Appellees.
    First District (4th Division)
    No. 84—608
    Opinion filed March 14, 1985.

      Daniel Nagle, of Nagle & Gallagher, of Chicago, for appellants.
    James D. Montgomery, Corporation Counsel, of Chicago (Jerome A. Siegan and Cheryl L. Smalling, Assistant Corporation Counsel, of counsel), for appellee Zoning Board of Appeals of the City of Chicago.
    Thomas R. Burney, of Schain, Burney, Kenny & Wolfberg, of Chicago, for appellees Samuel J. and Alyse Siegel.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiffs, John and Annelies Podmajersky, appeal an order of the trial court which affirmed a zoning board decision that granted a variance to an adjoining property owner and which refused their request for a trial de novo under section 11 — 13—7 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, eh. 24, par. 11 — 13—7). At issue is whether the trial court erred in refusing plaintiffs’ request for a trial de novo.

We affirm.

On July 14, 1983, defendants, Samuel J. and Alyse Siegel, who own property adjoining that of plaintiffs, applied for variation of a zoning ordinance to permit, in an R4 general residence district, the erection of a two-story single-family residence with no north side yard instead of the required 2.5 feet.

On August 19, 1983, the zoning board of appeals of the city of Chicago (the board) held a hearing on the matter, and on August 26, 1983, it issued its decision. The board found that the property, located at 2118 North Magnolia in Chicago, could not yield a reasonable return nor be put to reasonable use as a family residence because it would be very narrow if built in compliance with the side-yard requirement. The width of the lot is 25 feet. Granting a variation would not alter the essential character of the locality because a majority of improvements on the block did not comply with the side-yard requirement. The board granted a variation to the Siegels.

On September 27, 1983, plaintiffs filed a complaint for administrative review. They alleged that they owned a three-story frame building consisting of three apartments at 2120 North Magnolia, adjoining the Siegels’ lot. Plaintiffs alleged that the board’s decision was contrary to the manifest weight of the evidence and denied them the use and enjoyment of their property. On December 15, 1983, plaintiffs moved for a trial de novo under section 11 — 13—7 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 11 — 13—7). The trial court gave judgment for defendants. Plaintiffs appeal.

Section 11 — 13—7 of the Illinois Municipal Code provides for notice to owners of record where there is a request for a variation or special use. An applicant for a variation or special use must give notice to owners within 250 feet and tell the board who the owners are. The board must then give notice to the same persons within certain time limits before a hearing begins. This appeal is concerned with the interpretation of the second paragraph of section 11 — 13—7, which provides as follows:

“Any property owner within the aforesaid 250 feet notice requirement, who entered his appearance and objected at the board of appeals hearing, and who shows that his property will be substantially affected by the outcome of the decision of the board may, without proof of any specific, special, or unique damages to himself or his property or any adverse effect upon his property *** appeal from any order, decision or decree of the board of appeals provided such appeal is taken within the statutory period provided for appeals under the Administrative Review Act ***. If the board of appeals determines that the property of any such owner will not be substantially affected by the outcome of the decision of the board, such owner may initiate or join an appeal under the Administrative Review Act, as provided in this Section, in which appeal the property owner is entitled to a de novo trial on the issue of whether his property will be substantially affected by the outcome of the decision of the board of appeals, at which time he may present evidence.” Ill. Rev. Stat. 1981, ch. 24, par. 11 — 13—7.

In construing a statute, the language should be given its plain and ordinary meaning. (City of East Peoria v. Group Five Development Co. (1981), 87 Ill. 2d 42, 46, 429 N.E.2d 492, 494.) We interpret this paragraph to mean that a property owner within 250 feet, who entered an appearance, who objected at the board of appeals hearing, and who showed that his property would be substantially affected by the board’s decision, may appeal the judgment of the board. Additionally, any property owner who the board determined would not be substantially affected by its decision may initiate or join in an appeal. Such property owner is entitled to a de novo trial at which he may present evidence on the issue of whether his property will be substantially affected.

In the instant case, the board made no statement finding that plaintiffs would not be substantially affected by its decision. Thus, under the statute, plaintiffs were not entitled to a de novo hearing. They were entitled to appeal the administrative decision, which they did.

The findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct. (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 110.) The reviewing court’s function is limited to ascertaining whether the findings and decisions of the agency are against the manifest weight of the evidence, and the decisions of the agency should be disturbed only if a review of the record indicates that they are against the manifest weight of the evidence. (Mile Square Service Corp. v. City of Chicago Zoning Board of Appeals (1976), 42 Ill. App. 3d 849, 856, 356 N.E.2d 971, 976.) In the instant case, the trial court found that the board’s decision was not contrary to the manifest weight of the evidence where the board found that unless a variance was granted, the lot would not yield a reasonable return for a reasonable use and where it found that granting the variation would not alter the essential character of the locality because a majority of improvements on the block did not comply with the side-yard requirement. We hold that the trial court did not err in so ruling and that it properly refused plaintiffs’ request for a trial de novo.

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

Affirmed.

JIGANTI, P.J., and LINN, J., concur.