author: Mr. JUSTICE STOUDER

text:
    THE CELOTEX CORPORATION, Petitioner, v. THE POLLUTION CONTROL BOARD et al., Respondents.
    Third District
    No. 81-10
    Opinion filed September 29, 1981.
    John L. Parker, of John L. Parker & Associates, Ltd., of Chicago, and H. Gerald Reynolds, of Tampa, Florida, for petitioner.
    Tyrone C. Fahner, Attorney General, of Chicago (Douglas P. Karp, Assistant Attorney General, of counsel), for respondents.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

This is a petition for direct review, pursuant to section 41 of the Environmental Protection Act (Ill. Rev. Stat. 1977, ch. lll'á, par. 1041), of a decision of the Illinois Pollution Control Board (hereinafter the Board). That decision affirmed the Illinois Environmental Protection Agency’s (hereinafter the Agency) denial of an application for renewal of an operating permit submitted by The Celotex Corporation (hereinafter Celotex).

Celotex owns and operates a dry roofing felt plant in Peoria. The plant includes two industrial coal-fired boilers for generating steam for process heating and electricity needed to operate the facility. Flue gases from both boilers pass through dust collectors and discharge through a common stack.

The Celotex operation remains the same as in 1975, when an operating permit was denied on the basis of potential violation of the sulfur dioxide emission standard of Air Pollution Rule 204 (c)(1)(A) (111. P.C.B. Rules and Regs., ch. 2, Rule 204(c)(1)(A)) (hereinafter Rule 204). As the rule had been invalidated, the Agency and Board were ordered to issue an operating permit for 120 days to permit Celotex to file a new petition. (Celotex Corp. v. Pollution Control Board (1977), 53 Ill. App. 3d 662, 368 N.E.2d 1134.) Prior to the expiration of that period, Celotex applied for renewal of its permit. The renewal permit application stated that the previously permitted operation had not been modified. The denial of the application is the subject of this proceeding.

The Agency’s permit denial was once again based on the invalidated Rule 204. The denial was also based on the particulate emission standards of Air Pollution Rule 203 (g)(1)(B) (Ill. P.C.B. Rules and Regs., ch. 2, Rule 203 (g)(1)(B)) (hereinafter Rule 203), the visual emission standards of Air Pollution Rule 202 (b) (Ill. P.C.B. Rules and Regs., ch. 2, Rule 202 (b)) (hereinafter Rule 202 (b)), informational requirements of Air Pollution Rule 103 (b)(3) (Ill. P.C.B. Rules and Regs., ch. 2, Rule 103 (b)(3)) (hereinafter Rule 103 (b) (3)). The Board reversed the Agency denial as to the two former rule violations on the basis that the rules had been invalidated; however, the denial was affirmed because of violations of the latter two rules.

On appeal, Celotex presents seven issues for review; however, we shall address only two of these questions. The first is whether the corporation supplied all necessary information under Rule 103(b)(3); the second, whether the Board improperly relied upon Rule 202(b). The Agency presents the additional issue of whether the permit was properly denied on the basis of alleged potential violations of Rules 203 and 204. As Celotex raises no objection on grounds of estoppel or procedure, we shall address the merits of this question as well.

The first of the three issues we today address is whether Celotex supplied all necessary information under Rule 103(b)(3). The rule provides, inter alia:

“(3) Application. An application for an Operating Permit shall contain, as a minimum, the data and information specified in paragraph (a)(2) of this Rule 103. ” # e To the extent that the above specified data and information has previously been submitted to the Agency pursuant to this Rule 103, the data and information need not be resubmitted; provided, however, that the applicant must certify that the data and information previously submitted remains true, correct and current.”

In response to the Celotex application for renewal of an operating permit, which certified that the data and information previously submitted remained true, correct, and current, the Agency requested various information regarding Celotex’s coal, fly ash reinjection units, and waste material disposition. Celotex responded that as the information had been previously submitted in support of an operating permit which was granted, and as the operation had not been modified, its given certification of current accuracy fulfilled the rule’s requirements.

Although Celotex ultimately supplied additional information regarding its coal, the Board agreed with the Agency that the failure to supply all of the requested information was fatal to the Celotex petition. While numerous arguments have been advanced in support of this ruling, the essential bases are that the previously submitted information is not current information and that the Rule 202(b) violation indicates the information lacks current accuracy. We shall address the initial argument presently and the latter argument in conjunction with the second issue herein.

We well recognize the Agency’s need for data and information which are current and accurate. Without this empirical base, it would be impossible to determine whether a permit application has met its burden of proving compliance with statutory and regulatory standards. In order to obviate the necessity of resubmitting this empirical base, the Board has, by rule, provided that this is unnecessary when the information remains true, correct, and current. Celotex has certified that this is the case. The Board and Agency apparently suspect this certification was made in bad faith because resubmitting unchanged data and certifying prior data as current yield the same result. This being the case, the Agency is precluded by Rule 103(b)(3) from denying the permit because Celotex did not acquiesce to its request for current information.

The second issue we shall address is whether the Board improperly relied on Rule 202(b). The rule provides, inter alia:

“Rule 202(b) Visual Emission Standards and Limitations for All Other Emission Sources.
No person shall cause or allow the emission of smoke or other particulate matter from any other emission source into the atmosphere of an opacity greater than 30 percent.”

Jewell B. Holleyman, a physical scientist employed by the United States Environmental Protection Agency (hereinafter USPEA), determined that Celotex had thrice violated this visual emission standard. While the corporation questioned this determination, it proffered no contrary evidence; rather, it contended the Board’s reliance was improper because Rules 203 and 204 have been invalidated.

In Commonwealth Edison Co. v. Pollution Control Board (1974), 25 Ill. App. 3d 271, 323 N.E.2d 84, affd in relevant part (1976), 62 Ill. 2d 494, 343 N.E.2d 459, the court concluded that the above two rules were not promulgated in accordance with law and must be viewed as arbitrary and unreasonable. The court explained:

“From our reading of the record, we are unable to state that the Board took into account the technical feasibility of these rules. # e e
We further hold that there is no evidence that the Board took into account the economic reasonableness of these rules for a substantial number of the generating units in this State. The testimony at the hearings indicated the cost of the sulfur removal systems would be great. Rather than presenting a formula indicating a balance between cost and pollution control or giving some concrete cost projections, the Board in its opinion offered general statements that there must be a ‘balancing [of] the benefits of the contemplated rule against its costs’ and that greater costs may be needed to be absorbed ‘when the need for pollution abatement is greater.’ ” (Emphasis added.) Commonwealth Edison Co. v. Pollution Control Board (1974), 25 Ill. App. 3d 271, 287-88, 343 N.E.2d 84, 95-96, affd in relevant part (1976), 62 Ill. 2d 494, 343 N.E.2d 459.

The importance of the above further holding stems from the unique interrelationship of Rules 202(b) and 203. While we do not reach the question of whether this remains true, compliance with Rule 203 was at least a defense to noncompliance with Rule 202(b) (see Ill. P.C.B. Rules and Regs., ch. 2, Rule 203(c)) before Rule 203 was invalidated. More directly in point is the additional interrelationship noted by the Board when the regulations were promulgated:

“Rule 202: Visual Emission Standards: Standards based upon the visual appearance of an emission are long-standing, familiar, and relatively unsophisticated.
# # #
The numerical standard for opacity, 40% in the APCB regulations, has been lowered for most sources to 30% on the basis of Agency evidence (R. 30, 31, 496, 501) that this level will generally be achieved or bettered by facilities complying with the numerical standards for particulate matter in Rule 203. Since we have found compliance with the latter economically reasonable, it follows that the corresponding opacity standard is reasonable too.” (Emphasis added.) In re Emission Standards (1972), 4 P.C.B. 298, 309-10.

We are thus faced with a situation where the economic reasonableness of Rule 202 was apparently never directly considered but rather solely judged on the economic reasonableness of Rule 203. Under these circumstances we are constrained to conclude the enactment of Rule 202 must be similarly held to be void. (Contra, United States Steel Corp. v. Pollution Control Board (1978), 64 Ill. App. 3d 34,380 N.E.2d 909.) On remand, the Board may validate the rule in accordance with section 27 of the Environmental Protection Act (Ill. Rev. Stat. 1977, ch. llBz, par. 1027), prepare a substitute rule (see Commonwealth Edison Co. v. Pollution Control Board (1974), 25 Ill. App. 3d 271, 288, 323 N.E.2d 84, 96, affd in relevant part (1976), 62 Ill. 2d 494, 343 N.E.2d 459) or determine economic reasonableness on the basis of a newly repromulgated Rule 203. While the latter option allows the Board to continue its present practice regarding the evaluation of the economic reasonableness of Rule 202, we grant the option as such practice is not here challenged. We have not passed on its propriety, and this direction should not be construed as a sanction of the practice.

As we have found the enactment of Rule 202 to be void, the Agency is precluded from denying the petition at bar because Celotex violated the rule. Under these circumstances, we no longer have a factual setting which frames the Agency’s contention, made in conjunction with the first issue herein, that a rule violation allows a request for current information. We therefore do not reach that question.

The last of the three issues we today address is whether the permit was properly denied on the basis of alleged violations of Rules 203 and 204. The rules are set forth in Commonwealth Edison Co. v. Pollution Control Board (1974), 25 Ill. App. 3d 271, 285-86, 323 N.E.2d 84, 91-93, affd in relevant part (1976), 62 Ill. 2d 494, 343 N.E.2d 459.

The Agency does not contend that the permit was properly denied under the provisions of the Environmental Protection Act (Ill. Rev. Stat. 1977, ch. 111?2, par. 1001 et seq.); indeed, it concedes the opposite. The Agency contends that it was required to deny the permit under the provisions of the clean Air Act (42 U.S.C.S. §7401 et seq. (1981 Supp.)). A brief examination of the history of this controversy is helpful to an understanding of this contention.

The Clean Air Act Amendments of 1970 “represented a drastic revision of earlier federal air quality standards.” (Appalachian Power Co. v. Environmental Protection Agency (4th Cir. 1973), 477 F.2d 495, 497, cited in Indiana & Michigan Electric Co. v. Environmental Protection Agency (7th Cir. 1975), 509 F.2d 839, 841.) Then and when the Act was again amended in 1977, Congress recognized “that the prevention and control of air pollution at its source is the primary responsibility of the States and local governments.” (42 U.S.C.S, §7401 (3) (1981 Supp.).) To achieve this goal, each State was required to develop and submit to USEPA a State implementation plan (hereinafter SIP) which provided for the implementation, maintenance, and enforcement of national primary and secondary ambient air quality standards. (42 U.S.C.S. §7410(a) (1981 Supp.).) On April 30,1971 the Administrator of USEPA promulgated the standards for six pollutants. (See Friends of the Earth v. Carey (2d Cir. 1977), 552 F.2d 25, 30.) Illinois developed and submitted its plan, which was approved by USEPA on May 31, 1972. (See Illinois v. Commonwealth Edison Co. (N.D. Ill. 1980), 490 F. Supp. 1145, 1151.) That approval was affirmed in Indiana <br Michigan Electric Co. v. Environmental Protection Agency (7th Cir. 1975), 509 F. 2d 839, where the court held, inter alia:

“We hold, however, that a plan’s technological feasibility and economic impact are not among the factors which the Administrator is obliged to consider under Section 110(a)(2), and that where a state’s implementation plan satisfies the criteria set forth therein, the statute quite specifically requires the Administrator to approve it.” Indiana i? Michigan Electric Co. v. Environmental Protection Agency (7th Cir. 1975), 509 F. 2d 839, 844.

The significance of the court’s holding is readily apparent when the language of section 27(a) of the Environmental Protection Act (Ill. Rev. Stat. 1977, ch. 111%, par. 1027(a)) is considered:

“In promulgating regulations under this Act, the Board shall take into account * * * the technical feasibility and economic reasonableness of measuring or reducing the particular type of pollution.”

While the Federal challenge in Indiana & Michigan Electric failed, the State challenge of Rules 203 and 204 was successful as technical feasibility and economic reasonableness had not been taken into account. (Commonwealth Edison Co. v. Pollution Control Board (1974), 25 Ill. App. 3d 271, 323 N.E.2d 84, affd in relevant part (1976), 62 Ill. 2d 494, 343 N.E.2d 459.) As perceptively noted by a member of the Board, “[A]n interlocking mechanism ha[d] become unlocked.” Sherex Chemical Co. v. Environmental Protection Agency, No. PCP 80 — 66, slip op. at 8 (P.C.B. Oct. 2, 1980) (concurring opinion).

Following the Commonwealth Edision decision, USEPA found the Illinois SIP to be deficient and requested a revision in accordance with’ Illinois law. (41 Fed. Reg. 32302 (Aug. 2, 1976).) On July 7, 1977, the Board issued an order “revalidating” the stricken rules. (See Ashland Chemical Co. v. Pollution Control Board (1978), 64 Ill. App. 3d 169, 175, 381 N.E.2d 56, 59.) Again the rules were challenged and again they were vacated. (Ashland Chemical Co. v. Pollution Control Board; Illinois State Chamber of Commerce v. Pollution Control Board (1978), 67 Ill. App. 3d 839, 384 N.E.2d 922, appeal dismissed (1979), 78 Ill. 2d 1, 398 N.E.2d 9.) Again a notice of deficiency was issued. (44 Fed. Reg. 40723 (July 12, 1979).) At the time of oral argument, no rules had been repromulgated.

As stated prefatorily to the preceding history, the Agency contends that it was required to deny the permit under the provisions of the Clean Air Act (42 U.S.C.S 7401 etseq. (1981 Supp.)). It premises this contention on the grounds that, while the rules in question have been invalidated as provisions of Illinois law, they continue as viable provisions of the Illinois SIP. The Agency views its mandate as enforcing the SIP as part of Federal law.

The Agency buttresses its argument by pointing out there are a limited number of ways to revise an SIP and none have been here pursued. It directs our attention to a section 110(a)(3) (42 U.S.C.S. §7410 (a)(3) (1981 Supp.)) revision, a section 110(c) (42 U.S.C.S §7410(c) (1981 Supp.)) administrative revision, and the prohibitions of section 110(i) (42 U.S.C.S. §7410(i) (1981 Supp.)) in support of this theory. Without further detailing the Agency’s argument, we note that it concludes the Illinois SIP has not been revised and that the rules in question remain enforceable as Federal law.

Whatever the merits of this argument may be, we decline to address them. We shall not be so presumptous as to suggest to USEPA and the Federal courts whether the SIP contains rules which are enforceable under Federal law.

That the rules are unenforceable in Illinois has been clearly established. As previously detailed, this is so because their technical feasibility and economic reasonableness have not been taken into account. These factors simply did not come into play when the SIP was approved, although the fact that they might in the then future was noted in Indiana 6-Michigan Electric:

“In addition, petitioners have a right to challenge the reasonableness of state plans in the state courts, and as the respondent concedes, if part of a state implementation plan is held invalid by a state court, the state would have to revise that part. Should the state fail to do so, the Administrator must propose and promulgate a revision ° * #. In either case, a hearing, or at least an opportunity for a hearing, is a prerequisite to adoption of the new regulation.’ (respondents’ brief, No. 72 — 1498).
Finally, as previously noted, arguments concerning technology and economic impact may be presented to the Administrator prior to the date on which a compliance order issued pursuant to Section 113(a)(4) takes effect, and may be raised in the course of enforcement proceedings under Section 113(b).” (Indiana & Michigan Electric Co. v. Environmental Protection Agency (7th Cir. 1975), 509 F. 2d 839, 847.)

In a situation such as this, it would be anomalous to allow State enforcement of the SIP. Such a holding would permit the Agency to circumvent the rulings of the courts of Illinois by merely failing to revise the implementation plan. This we decline to do.

Interestingly, neither USEPA nor the Federal courts appear to quarrel with our holding. USEPA has twice issued notices of deficiency and has stated that as a result of previous decisions in our courts, the SIP does not contain validated rules for particulate or sulfur dioxide emissions (44 Fed. Reg. 40723 (July 12, 1979)). While the Federal courts are divided on the question of Federal enforceability of the SIP (compare Illinois v. Celotex Corp. No. 80 — 1225 (C.D. Ill., filed June 19, 1981), with Illinois v. Commonwealth Edison Co. (N.D. Ill. 1980), 490 F. Supp. 1145), the Federal view of State enforcement appears consonant with our holding herein:

“Counsel for the state argues that we should remove the ‘cloud’ over state enforcement efforts caused by the notice. The decisions of the Supreme Court of Illinois create more than a ‘cloud.’ The decisions are an absolute bar to enforcement in the state courts until the mandate of the court in Commonwealth Edison is satisfied by the Pollution Control Board. The Notice of Deficiency only reflects the state court decision. The SIP by reason of the state court decisions cannot be enforced by the state in its own courts as contemplated by the Act. It appears that satisfying the Supreme Court of Illinois will also satisfy the Administrator of EPA.
We do not see it to be our responsibility in the context of this case to try to supervise or instruct the Administrator or the State of Illinois about their respective responsibilities under the Act or the proper procedures to follow. The present quarrel seems to us to be a tempest of no consequence * *
(Illinois v. United States Environmental Protection Agency (7th Cir. 1980), 621 F. 2d 259, 262.)

The rules in question are not enforceable in the courts of this State and will not be enforceable until that time the mandate of the courts of this State are heeded. The Celotex permit was therefore improperly denied on the basis of Rules 203 and 204.

Accordingly, the order of the Pollution Control Board affirming the denial of the permit at bar is reversed and this cause remanded to the Board for further proceedings in accordance with the views and directions herein.

Reversed and remanded with directions.

SCOTT, P. J., and ALLOY, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE HEIPLE

license: Public Domain

text:
    ILLINOIS POWER COMPANY, Petitioner, v. THE POLLUTION CONTROL BOARD et al., Respondents.
    Third District
    No. 81-34
    Opinion filed September 30, 1981.
    PETITION for review of order of Pollution Control Board.
    Sheldon A. Zabel and Carolyn A. Lown, both of Schiff, Hardin & Waite, of Chicago, for petitioner.
    Tyrone C. Fahner, Attorney General, of Chicago (William J. Barzano, Jr., Assistant Attorney General, of counsel), for respondents.
   Mr. JUSTICE HEIPLE

delivered the opinion of the court:

The petitioner, Illinois Power Company (Illinois Power), asks us to review an order of the Illinois Pollution Control Board (the Board), the respondent. Our jurisdiction stems from the Environmental Protection Act (the Act) (Ill. Rev. Stat. 1979, ch. 111M, par. 1041). The facts follow.

On November 21,1979, Illinois Power filed a petition for review with the Board concerning the reissuance of a National Pollution Discharge Elimination System (NPDES) permit. The Illinois Environmental Protection Agency (the Agency) reissued the permit on October 23, 1979, with certain conditions. The permit, originally issued in 1975, covered the discharge of effluents into the Illinois River by petitioner’s utility plant.

Prior to analyzing petitioner’s claims before the Board, we believe it valuable to describe briefly some pertinent aspects of petitioner’s Hennepin facility. The utility plant is a coal-fired power plant located on the Illinois River. It draws water from the river for cooling purposes. Because nutrients in the water generate the growth of slime inside the piping of the cooling system, the river water must be treated with chlorine from time to time. If neglected, the pipes would block, resulting in permanent damage to the cooling system. After the cooling process, is completed, the chlorinated water is returned to the river in the plant’s discharge.

Like the pipes in the cooling system, the plant’s condensors must be protected. To implement this, the river water passes through a series of racks and mesh screens to remove residue which might foul and ruin the condensors. Large items are removed by hand by plant personnel and returned to the river. Smaller debris, such as fish, are backwashed. In backwashing, the screens and racks are raised and flushed with a high-powered water spray so that materials caught are dislodged. The matter then flows back into the river.

Previous to filing its petition for review before the Board, Illinois Power and the Agency settled many of their differences. Agreement could not be reached on permit limitations concerning the monitoring of chlorine discharge, as well as backwash screening controls. With respect to the former, petitioner argued, the Agency’s technical requirements (i.e., weekly river water tests, and graphic representation of results) to monitor chlorine levels were unnecessary. The additional costs in personnel to do the testing, and that no appreciable deviation in chlorine levels occurred on a weekly basis, petitioner maintained, militated against permit restraints. The Agency countered that seasonal deviations might occur.

With respect to backwash screening, the aim of the permit restriction was to impose curbs on the plant’s discharge of dead or dying fish above certain levels. The Agency concluded dead fish returned to the river were pollutants, since impinged on the backwash screens or racks. No tests were conducted to establish how many fish were dead or dying when entering the flume leading up to petitioner’s screening apparatus. Thus, petitioner was placed in the position of proving that such devices were not the cause of death or disability of those dead or dying fish which eventually re-entered the Illinois River in the plant’s discharge.

Illinois Power also argued the Agency erred in refusing to allow its proposal to Standard Condition 27 of the NPDES permit. Finally, in a petition for rehearing, petitioner contended the Board’s denial of its motion to complete the record was wrong.

The Board filed its final order on December 19, 1980. It stated the chlorine monitoring conditions were left to the option of the Agency: that is, the Agency could require Illinois Power, on a weekly basis, to conduct discharge sampling after periodic chlorination, and then graph the results, or impose another method of measuring chlorine at its discretion. A similar prerogative was accorded the Agency with respect to permit limitations concerning screen backwashing. The Board rejected the petitioner’s proposal to Condition 27 as surplusage. It also denied its motion to complete the record. The Board remanded the permit to the Agency for rewriting consistent with its opinion.

On appeal to this court, Illinois Power says the Board failed to adjudicate its administrative appeal. Specifically, it maintains the Board left to the Agency the resolution of chlorine monitoring standards and backwash discharge restrictions, which is inconsistent with the Board’s adjudicatory role under the Act. We agree. It also claims the Board’s action in remanding to the Agency, with respect to both issues, is against the manifest weight of the evidence. Furthermore, it urges, that its proposal to Condition 27 should have been allowed. Finally, it says, allowing its motion to complete the record is indispensable for complete appellate review.

We reverse and remand. We will address all of petitioner’s complaints except those two concerning whether the Board’s decisions on chlorine and backwash discharge limitations are against the manifest weight of the evidence. Because further hearings must be conducted before the Board, our resolution of such issues would be untimely.

In the context of petitioner’s appeal, it is important to distinguish between the roles the Board and Agency assume in the resolution of permit issuance and disputes arising therefrom. The Board is a creature of the legislature (Ill. Rev. Stat. 1979, ch. IIIJ2, par. 1005). As such, it undertakes both quasi-legislative and quasi-judicial functions. In the former capacity, it drafts procedural rules and may adopt substantive regulations pursuant to its rule-making authority, as long as such are consistent with the purposes of the Act. In its adjudicative role, the Board has the authority to conduct hearings concerning violations of the Act, its regulations, or the denial of a permit. In the latter instance it is the Board’s principal function to interpret regulations defining the requirements of the permit system. Landfill, Inc. v. Pollution Control Board (1978), 74 Ill. 2d 541, 557.

The Agency, on the other hand, is empowered by statute with the technical, licensing, and enforcement functions in carrying out the Act. It must investigate violations of the Act and determine whether specific applicants are entitled to permits. The Agency has the authority to require permit applicants to submit detailed plans, as well as technical reports, concerning the issuance or reissuance of permits, or possible violations of the Act or Board regulations. Landfill, Inc. v. Pollution Control Board.

Quite clearly, the Board and the Agency have separate functions in the permit application procedure. Just as the Board is not the permit granting authority, neither is the Agency the Board’s retainer in the interpretation of Board regulations.

When the Agency places prohibitions on a permit which an applicant finds objectionable, the applicant has the right to appeal those modifications to the Board (Ill. Rev. Stat. 1979, ch. 111M, par. 1040). When such administrative appeal is lodged, two things occur: the applicant and Agency legally solidify their adversarial positions; and, the adjudicatory posture of the Board is triggered to resolve the dispute.

The Board’s order depreciates its functions as an adjudicative body. In remanding the permit, the Board gave the Agency the identical options to consider as permit conditions which petitioner originally contested as objectionable. The Board did not rule on petitioner’s complaint that weekly graphs and water samplings were useless, but left such resolution up to the Agency as it saw fit. As to backwash screening, the Board concluded, “* * * the permit should expressly authorize the discharge of background or addition of traces to background ** ° The term “traces” is not defined. Even so, the Board found that if such “traces” of dead fish did exist in petitioner’s discharge, Illinois Power would be required to remove all of that from the plant’s effluents, or a violation would occur subjecting the plant to penalties. With respect to its resolution of these two issues, the Board failed to do its job.

By statute (Ill. Rev. Stat. 1979, ch. HIM, par. 1033(a), (c)), the Board is required to write an order which is reasoned and explicable. It did not do this. The Board failed to decide anything as to the chlorine discharge limitations. It did not offer any reasons as to why monitoring in quarterly as opposed to weekly monitoring was unacceptable. The Board did not adjudicate the controversy before it.

The Board’s decision is vague, since it fails to relate what comprises “traces.” Therefore, the opinion is deficient because it fails to adequately inform the petitioner as to how it must conduct itself in order to comply with a permit limitation which employs such a term. We disagree with the Agency’s contention that our determination of this issue is ill-timed or rash. In a very technical sense, no limitation exists since the Board has remanded the permit to the Agency for rewriting. But such an argument ignores the fact that it is the Board’s remand which has created the very indecision upon which administrative review was originally sought. Additionally, on remand, the decision as to the contested permit requirements are left to the discretion of the Agency either to adopt, reject, or modify. Such a situation arguably lends itself to arbitrary agency action which would result in yet another administrative appeal. Such a circular sequence of events hardly fosters the timely resolution of litigation.

Moreover, we believe that petitioner is entitled to a more definitive statement from the Board as to the extent of the restrictions the permit seeks to impose. This is especially so, where, as in the cause at bar, violation of a permit condition could result in criminal and civil sanctions (Ill. Rev. Stat. 1979, ch. IIIJ2, pars. 1042, 1044). It is elementary that a party cannot be discharged with violation of a condition if the condition is written in such a manner so that a reasonable person cannot understand when a violation occurs. This is especially applicable with respect to the Board’s failure to define “traces,” but predicating possible liability on petitioner’s failure to eliminate all “traces” of dead or dying fish from the plant’s discharge.

Although, as hereinbefore stated, we will not pass on the sufficiency of the evidence, a passing observation is required.

No tests or experiments were conducted by the Agency at the Hennepin site, although it argued the racks and screens of that plant were the cause of the dying fish or offal which was in the backwash effluent. In lieu thereof, the Agency offered testimony of one of its engineers. He testified that in other utility plants employing similar screening mechanisms, the majority of the fish killed were done so by the screens and racks. This expert never visited the Hennepin plant.

Various reasons exist why the expert’s assumption as to the cause of the fishes’ death might not be so. For example, different screening devices could have been employed at Hennepin; or, the level of contaminants in the Illinois River as opposed to the condition of a river upon which a different utility was located might cause the fish to die or become diseased. Also, we believe the importance of firsthand observation by the expert is of significant value in assessing the quality of the expert’s opinion on a given issue (E. Cleary & M. Graham, Handbook of Illinois Evidence §703.1 (3d ed. 1979)). Although the applicant has the ultimate burden of proof in a permit application, this does not permit an inference that Illinois Power has not discharged this burden if the Agency’s evidence is unsatisfactory.

Next, petitioner challenges the Board’s refusal to allow it to add a clause to Condition 27 of the NPDES permit. Petitioner attacked Condition 27, among others, since it claimed they gave the Agency a license to adopt and demand more stringent effluent limitations, thereby modifying the permit, without allowing it to seek review of such new restraints. With respect to Condition 27, petitioner argues, the Agency’s imposition of new requirements it deems applicable is, in effect, a substantive regulation, which is an invasion of the rule making authority of the Board. The Board denied petitioner’s proposal.

The question petitioner conceives as requiring resolution has been inconsistently answered by Illinois Appellate Courts (cf. Peabody Coal Co. v. Pollution Control Board (1976), 36 Ill. App. 3d 5, 20, with United States Steel Corp. v. Pollution Control Board (1977), 52 Ill.App. 3d 1, 11). Since the record does not reflect the issue as Illinois Power presents it, we will not attempt to reconcile these two precedents on the facts in this cause.

Condition 27 only becomes operable where the Board has failed to promulgate certain standards, or no Federal regulations exist concerning particular effluent limitations. Then, Rule 910(a)(6) of the Board allows the Agency to impose a restriction if it deems it necessary. Such could be a more stringent control than those existing on the permit already issued. In such an instance, setting the standard of the condition is left to the Agency’s selection. However, as the Board noted:

“The permit conditions (including Standard Condition No. 27) relate to exercise [sic] of the Agency’s authority to impose effluent limitations pursuant to Rule 910(a)(6) of Chapter 3. If this authority is exercised, it will be by way of permit modification. Illinois Power may challenge that authority by way of appeal of the modified permit.”

The Board has clearly stated that petitioner can attack the exercise of the Agency’s authority to impose limitations under Rule 910(a)(6), if the Agency invokes such authority. This also includes the manner in which such power is exercised. But the Agency has not invoked such power or indicated its intent to do so in the immediate future. Therefore, to allow a challenge to the Board Rule, at this time, would be premature. The Board has acknowledged the petitioner’s right to review any such modification in the permit. This preserves all Illinois Power’s right to review such conditions and therefore its proposal to Condition 27 is extraneous.

The final issue is whether the Board erred in denying petitioner’s motion to complete the record. On this matter, we also sustain the Board’s decision.

The aim of petitioner’s motion was a transcript of a Board meeting held the day the order in the instant cause was filed. Owing to some inconsistency as to individual Board member’s opinions on the order, petitioner thought such information significant.

Several reasons exist why any transcript of such meeting is not part of the record for purposes of appeal. First, the opinions of individual Board members are personal in nature and not actions of the Board. Furthermore, such is not evidence. Also, the accuracy of the recorded information is disputed since a Board meeting, unlike a hearing before the Board, is not required to be recorded stenographically, or by another recording method (Ill. Rev. Stat. 1979, ch. 111M, pars. 1005,1032). Accordingly, the Board was quite correct in denying petitioner’s motion, and transmitting to this court said motion and the transcript as exhibits.

For the reasons stated, the Board’s rulings on Condition 27 and the motion to complete the record are affirmed. Concerning chlorine and backwash discharge limitations, and the Board’s remandment to the Agency, the Board’s actions are reversed. The cause is remanded to the Board for consideration of both issues consistent with the views expressed in this opinion. After any further hearings with respect to such issues, the Board is to enter a new order which finally adjudicates the disputes both issues generate.

Affirmed in part; reversed in part; remanded with directions.

BARRY and STOUDER, JJ., concur.


author: Mr. PRESIDING JUSTICE ROMITI Mr. JUSTICE JOHNSON,

text:
      In re APPLICATION OF COOK COUNTY TREASURER.—(CENTRAL NATIONAL BANK, Trustee, Petitioner-Appellee, v. JOCELYN CONGUA, Respondent-Appellant.)
    First District (4th Division)
    No. 80-2087
    Opinion filed September 10, 1981.

      JOHNSON, J., dissenting.
    Herbert Lesser, of Chicago, for appellant.
    James A. Regas, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

The respondent appeals from an order of the trial court setting aside a tax deed. The sole issue is whether the tax deed was obtained by fraud because the sheriff served the wrong person and his return, which was relied upon in the proceedings to issue a tax deed, indicated the correct person had been served. We find no fraud and reverse.

The petitioner, Central National Bank, was until 1975 the owner of the subject property under a land trust. On December 31, 1975, the property was sold for failure to pay 1974 taxes, to respondent’s assignor. Under section 263 of the Revenue Act (Ill. Rev. Stat. 1975, ch. 120, par. 744), a purchaser or assignee shall not be entitled to a tax deed to the premises sold unless not less than 3 months nor more than 5 months prior to the expiration of the period of redemption (from 2 years after the date of sale to not more than 3 years from the date of sale) he shall give notice of the sale and date of expiration of the period of redemption to the owners, occupants and parties interested in the premises. Where, as here, the property was vacant and the owner could be located in the county, the purchaser or its assignee was required to personally serve the owner with notice. The purchaser or its assignee was also required to deliver to the clerk of the circuit court a form directing that notice be served by certified mail, return receipt requested. If the owner or interested persons could not be ascertained or located, then service by publication was required. In 1976 the statute was amended to provide that the personal service was to be made “by causing it to be served by a sheriff.”

On June 7, 1978, respondent filed its petition for a tax deed. Thereafter, it caused service to be made upon petitioner by the sheriff pursuant to section 263 of the Revenue Act, as amended. The sheriff’s return form indicated Central National Bank was personally served on July 12, 1978, 9:35 a.m., service being made upon B. E. Sodergren (also spelled Rodergren on the return). Petitioner was also served by certified mail, the postal receipt being signed by petitioner on July 26, 1978. Finally, notice was published three times in the Chicago Daily Law Bulletin. Thereafter the respondent filed an affidavit indicating those facts including that it had caused the sheriff to serve a written notice upon petitioner — notice being left with E. Rodergren. At the November 15, 1978, hearing on the petition for a tax deed, it was again stated that petitioner was “personally served as shown in the affidavit and the Sheriff’s return.” The trial court found that the period of redemption had expired, no redemption had been made, notice required by law had been served on all parties in interest and due diligence had been exercised in trying to locate and serve proper parties in interest. The court ordered the issuance of the tax deed.

Over a year later, on December 13,1979, petitioner filed a section 72 (Ill. Rev. Stat. 1977, ch. 110, par. 72), petition to vacate the order directing the county clerk to issue a tax deed. In its petition, it alleged that the statement in the affidavit that the sheriff had made service was false and fraudulent and that there had never been an employee at petitioner’s named E. Sodergren or E. Rodergren. It further alleged that this name was invented and fraudulently written on the return slip to avoid the statutory requirement of service. It further incorrectly alleged that it had not been served as required by statute and had not been aware of the pending petition and only learned of the proceedings shortly after October 8,1979 (that petitioner was served by certified mail as required by statute and had notice is conclusively established by the record). Thereafter petitioner filed a motion for summary judgment on the grounds that the sheriff by error had served the wrong institution because of a mix-up of his papers and that the affidavit stating the sheriff had served petitioner was false. Petitioner in its motion did not allege or attempt to establish fraud. The sheriff’s deposition indicated that the service “got mixed in with some other papers” and was served on Federal National Mortgage Association where E. Sodergren works. He did not serve Central. The trial court granted the motion, finding, inter alia, that:

“b. this judgment is based upon the uncontradicted statement [of the deputy sheriff] concerning the alleged service of Notice upon [petitioner].
O # #
e. the failure of the Deputy Sheriff to serve [petitioner] resulting in an affidavit submitted [by respondent] for issuance of a Tax Deed stating that service was so made in reliance upon the Deputy Sheriff’s return is tantamount to fraud.”

Accordingly, it ordered that the order directing the issuance of a tax deed be vacated and respondent execute a deed reconveying the subject real estate to the county clerk.

I

The property in question was sold on December 31, 1975. On September 30, 1976, the amendment to section 263 of the Revenue Act (Ill. Rev. Stat. 1977, ch. 120, par. 744), requiring that service be made by the sheriff and not by the purchaser himself, became effective. It was ruled in In re Application of County Collector (1978), 66 Ill. App. 3d 437, 383 N.E.2d 1224, appeal denied, that the law in effect at the time the certificate of purchase was obtained applies since the purchaser acquired a property right in the property at the time of the purchase. However, in this case not only have the parties assumed that the 1976 amendment applies, but the trial court in the 1978 proceeding was fully aware that respondent had elected to serve notice pursuant to the requirements of the 1976 amended statute and found that proper service had been made. Since the court was fully aware of what method of service was employed and approved, its approval is binding. (In re Application of County Treasurer (1974), 20 Ill. App. 3d 291, 314 N.E.2d 300.) Accordingly, we hold that the rights of the parties here are governed by section 263 as amended in 1976.

II

Petitioner contends that since no order for issuing the tax deed would have been given if the circuit court had been made aware that personal service had not been accomplished, the tax deed was properly set aside. Because this is not the proper test to be applied (Dick v. Mitchell (1968), 103 Ill. App. 2d 93, 242 N.E.2d 785, appeal denied), we need not decide if petitioner is correct in its contention that the sheriff’s error if known to the court at that time would have precluded the issuance of the deed, despite the fact the petitioner had actual notice. A court should not direct the county clerk to issue a tax deed until it is satisfied that the requirements of the Revenue Act have been met. (Smith v. D.R.G., Inc. (1976), 63 Ill. 2d 31, 344 N.E.2d 468; In re Application of County Collector (1978), 66 Ill. App. 3d 437, 383 N.E.2d 1224, appeal denied; Dick v. Mitchell (1968), 103 Ill. App. 2d 93, 242 N.E.2d 785, appeal denied.) But once the deed is issued, it is, under section 266 of the Revenue Act (Ill. Rev. Stat. 1977, ch. 120, par. 747), incontestable except by direct appeal (Smith v. D.R.G., Inc. (1976), 63 Ill. 2d 31, 344 N.E.2d 468; Dahlke v. Hawthorne, Lane & Co. (1966), 36 Ill. 2d 241, 222 N.E.2d 465; Urban v. Lois, Inc. (1963), 29 Ill. 2d 542,194 N.E.2d 294; Farlow v. Oliver (1963), 29 Ill. 2d 493, 194 N.E.2d 262), it being the purpose of the legislature to provide a method for obtaining merchantable title. (Exline v. Weldon (1974), 57 Ill. 2d 105, 311 N.E.2d 102; Urban v. Lois, Inc. (1963), 29 Ill. 2d 542, 194 N.E.2d 294.) Accordingly, once, as here, the time for a direct appeal has passed, a tax deed can only be set aside if the order directing the issuance of the deed was utterly void or if the circumstances were such as to warrant the application of section 72 of the Civil Practice Act. (Farlow v. Oliver (1963), 29 Ill. 2d 493, 194 N.E.2d 262.) An order is rendered void, not by reason of mere error or impropriety but by lack of jurisdiction by the issuing court of either the subject matter or the necessary parties. (Farlow v. Oliver (1963), 29 Ill. 2d 493,194 N.E.2d 262.) It is well established that jurisdiction once acquired in a tax foreclosure action continues through the entire proceedings, including the order for a deed (Smith v. D.R.G., Inc. (1976), 63 Ill. 2d 31, 344 N.E.2d 468; Urban v. Lois, Inc. (1963), 29 Ill. 2d 542,194 N.E.2d 294; Farlow v. Oliver (1963), 29 Ill. 2d 493,194 N.E.2d 262; In re Application of County Treasurer (1974), 20 Ill. App. 3d 291, 314 N.E.2d 300), and the failure of an owner to receive notice as required by sections 263 and 266 of the Revenue Act (Ill. Rev. Stat. 1977, ch. 120, pars. 744, 747) does not deprive the trial court of jurisdiction to order a tax deed. In re Application of Dickey (1978), 72 Ill. 2d 317, 381 N.E.2d 260.

This does not mean that a judgment obtained by deception cannot be questioned after the expiration of 30 days. If proceedings regular in form are tainted with fraud or coercion, the court is not helpless to grant relief. (Remer v. Interstate Bond Co. (1961), 21 Ill. 2d 504,173 N.E.2d 425.) But before a tax deed can be set aside under section 72 of the Civil Practice Act, it must be established that the deed was procured by fraud. (Smith v. D.R.G., Inc. (1976), 63 Ill. 2d 31, 344 N.E.2d 468; Dahlke v. Hawthorne, Lane & Co. (1966), 36 Ill. 2d 241, 222 N.E.2d 465; In re Application of County Collector (1978), 66 Ill. App. 3d 437, 383 N.E.2d 1224, appeal denied; In re Application of County Treasurer (1974), 20 Ill. App. 3d 291, 314 N.E.2d 300; Weldon v. Exline (1972), 6 Ill. App. 3d 74, 284 N.E.2d 659, affd (1974), 57 Ill. 2d 105, 311 N.E.2d 102; In re Application of County Collector (1968), 101 Ill. App. 2d 1, 241 N.E.2d 641, appeal denied; In re Application of County Treasurer (1967), 84 Ill. App. 2d 456, 228 N.E.2d 269, appeal denied.) The burden of proof is upon the petitioner to prove by clear and convincing evidence and not merely suspicion (Smith v. D.R.G., Inc. (1976), 63 Ill. 2d 31, 344 N.E.2d 468; In re Application of County Collector (1978), 66 Ill. App. 3d 437, 383 N.E.2d 1224, appeal denied; In re Application of Dickey (1977), 51 Ill. App. 3d 697, 366 N.E.2d 511, affd (1978), 72 Ill. 2d 317, 381 N.E.2d 260), a “wrongful intent,” an “act calculated to deceive” or a “deceptive design.” Smith v. D.R.G., Inc. (1976), 63 Ill. 2d 31, 344 N.E.2d 468; Exline v. Weldon (1974), 57 Ill. 2d 105, 311 N.E.2d 102; Dahlke v. Hawthorne, Lane & Co. (1966), 36 Ill. 2d 241, 222 N.E.2d 465; In re Application of County Collector (1978), 66 Ill. App. 3d 437, 383 N.E.2d 1224, appeal denied; In re Application of County Treasurer (1974), 20 Ill. App. 3d 291, 314 N.E.2d 300; In re Application of County Collector (1968), 101 Ill. App. 2d 1, 241 N.E.2d 641, appeal denied; In re Application of County Treasurer (1967), 84 Ill. App. 2d 456, 228 N.E.2d 269, appeal denied.

It follows, therefore, that in the absence of fraud, the failure to give an interested party the notice required by statute is insufficient to warrant relief under section 72 of the Civil Practice Act (Smith v. D.R.G., Inc. (1976), 63 Ill. 2d 31, 344 N.E.2d 468; Zeve v. Levy (1967), 37 Ill. 2d 404, 226 N.E.2d 620; Urban v. Lois, Inc. (1963), 29 Ill. 2d 542, 194 N.E.2d 294; People v. Orth (1961), 21 Ill. 2d 205, 171 N.E.2d 626; People v. O’Keefe (1960), 18 Ill. 2d 386,164 N.E.2d 5; In re Application of Soldwedel (1967), 82 Ill. App. 2d 179, 225 N.E.2d 811), especially where, as here, petitioner had actual notice of the tax-sale proceedings during the redemption period. (Smith v. D.R.G., Inc. (1976), 63 Ill. 2d 31, 344 N.E.2d 468; Urban v. Lois, Inc. (1963), 29 Ill. 2d 542, 194 N.E.2d 294; People v. Orth (1961), 21 Ill. 2d 205, 171 N.E.2d 626; People v. O’Keefe (1960), 18 Ill. 2d 386,164 N.E.2d 5.) As stated in People v. Orth (1961), 21 Ill. 2d 205, 210-11, 171 N.E.2d 626, 628-29:

“The notice required in the above-mentioned sections, therefore, is not such as to be an absolute condition precedent to the issuance of a tax deed. Rather, the foregoing sections outline a statutory procedure to be followed. e * *.
° * ° As we said in the case of People v. O’Keefe, 18 Ill. 2d 386, absolute perfection is not required in a tax foreclosure proceeding or in a petition for a tax deed, but, rather, it is only required that a reasonable opportunity be given to interested parties so that they may protect their interests.”

In a tax deed proceeding, section 72 cannot, in the absence of fraud, be used to again put in issue questions previously passed upon by the trial court, such prior determination being conclusive upon all parties and immune from collateral attack. (Smith v. D.R.G., Inc. (1976), 63 Ill. 2d 31, 344 N.E.2d 468; Dahlke v. Hawthorne, Lane & Co. (1966), 36 Ill. 2d 241, 222 N.E.2d 465; Urban v. Lois, Inc. (1963), 29 Ill. 2d 542, 194 N.E.2d 294.) The trial court before ordering that the tax deed be issued found that “all notice as required by law has been given” and that determination is conclusive unless vitiated by fraud. (Smith v. D.R.G., Inc. (1976), 63 Ill. 2d 31, 344 N.E.2d 468; Dahlke v. Hawthorne, Lane & Co. (1966), 36 Ill. 2d 241, 222 N.E.2d 465; Urban v. Lois, Inc. (1963), 29 Ill. 2d 542, 194 N.E.2d 294; People v. O’Keefe (1960), 18 Ill. 2d 386, 164 N.E.2d 5; In re Application of County Collector (1978), 66 Ill. App. 3d 437, 383 N.E.2d 1224, appeal denied; In re Application of County Treasurer (1974), 20 Ill. App. 3d 291, 314 N.E.2d 300.) This is true even though the purchaser at the tax foreclosure sale could have exercised more diligence in complying with section 263 of the Revenue Act. (Exline v. Weldon (1974), 57 Ill. 2d 105, 311 N.E.2d 102; Zeve v. Levy (1967), 37 Ill. 2d 404, 226 N.E.2d 620; In re Application of County Treasurer (1967), 84 Ill. App. 2d 456, 228 N.E.2d 269, appeal denied.) In this context, it is worth noting that in 1967, section 266 of the Revenue Act was amended to provide that in reviewing an action brought under section 72 “the court shall consider defenses relating to questions of the notices required by section 263 and the proof presented in the hearing required by this section.” This amendment was held in In re Application of County Collector (1972), 7 Ill. App. 3d 124, 287 N.E.2d 81, to create an additional ground for review. This clause was, however, deleted from the statute in 1970, thus clearly showing the legislature’s intention that “defenses relating to questions of notice” not be, of themselves, sufficient grounds for setting aside a tax deed.

The trial court in the present case held that “the failure of the Deputy Sheriff to serve the Central National Bank in Chicago resulting in an affidavit submitted by petitioner for issuance of a Tax Deed stating that service was so made in reliance upon the Deputy’s Sheriff’s return is tantamount to fraud.” There is, however, absolutely no evidence to support a finding that either the deputy sheriff’s conduct or the respondent’s conduct, either singly or together constituted an act intended to deceive, a deceptive design or was due to a wrongful intent. It is undisputed that the deputy sheriff’s error was due to mere negligence. (Accordingly, we need not and do not determine whether, in light of the fact that after the 1976 amendment the purchaser is required to make service through the sheriff, a sheriff’s wrongful intent could be imputed to an innocent purchaser.) Petitioner contends that the affidavit was fraudulent since it stated that service had actually been made. It is clear, however, construing the affidavit in light of the statement at the 1978 hearing that the sheriff’s return indicated that petitioner had been personally served, that respondent was not claiming to have actual knowledge of the service; nor was he warranting the accuracy of the sheriff’s return. (Compare Smith v. D.R.G., Inc. (1976), 63 Ill. 2d 31, 344 N.E.2d 468.) The fact that the respondent relied on false information and repeated this false information to the court does not constitute fraud. (See Zeve v. Levy (1967), 37 Ill. 2d 404, 226 N.E.2d 620, where the purchaser relying on false information given him by the occupant stated in his affidavit that the owner lived in California, address unknown, whereas in fact she lived in Chicago.) It is true that the respondent could have investigated to be sure Sodergren (or Rodergren) was petitioner’s agent but he was not required to do so. The mere failure to uncover a particular fact does not of itself indicate fraud. Dahlke v. Hawthorne, Lane & Co. (1966), 36 Ill. 2d 241, 222 N.E.2d 465; People v. O’Keefe (1960), 18 Ill. 2d 386, 164 N.E.2d 5; Weldon v. Exline (1972), 6 Ill. App. 3d 74, 284 N.E.2d 659, aff’d (1974), 57 Ill. 2d 105, 311 N.E.2d 102.

Petitioner relies on In re Application of County Collector (1975), 26 Ill. App. 3d 234, 325 N.E.2d 15, and In re Application of County Treasurer (1978), 67 Ill. App. 3d 122, 384 N.E.2d 729. Neither case is relevant. In County Collector no effort or inquiry of any kind was made to locate the owner. Not only was there no personal service, but he received no notice either by mail or by publication. In County Treasurer, the purchaser’s sole witness at the hearing to obtain the tax deed, her former son-in-law, was a professional tax and title searcher. He lied to the court and concealed certain material information of which he had personal knowledge from the court. This information included the names and addresses of persons who should have been notified. The appellate court in affirming pointed out, citing County Collector, that where the deed contains information to ascertain the truth concerning persons to be notified and the purchaser fails to notice it, there is sufficient evidence of bad faith to warrant concluding the deed was procured by fraud. In the present case, to the contrary, it is clear that the respondent not only was aware who should be served but did serve petitioner both by mail and by publication.

To conclude, it is clear that under the current statute, once the deed is issued, a collateral attack on the judgment to have it set aside can only succeed if the judgment is void or if it was obtained by fraud. Conspiracy with the sheriff to issue a fraudulent return intending to deceive the court into believing personal service had been made would constitute fraud. Merely relying on the sheriff to make proper service as mandated by statute and relying on his return as proof of such service is not fraud. Any other result would defeat the legislative intent to create stability in tax titles and to convey merchantable title since under the present statute the purchaser is required to give service by causing it to be served by the sheriff.

It must finally be noted that one bringing a section 72 petition must demonstrate that due diligence was used in presenting it. (Weldon v. Exline (1972), 6 Ill. App. 3d 74, 284 N.E.2d 659, affd (1974), 57 Ill. 2d 105, 311 N.E.2d 102.) In light of the fact that petitioner had actual notice of the proceedings at least from July 26, 1978, the date on which the certified letter was received and signed for, it is difficult to see how a petition filed on December 13,1979, nearly 17 months later, can be said to be filed with due diligence.

The judgment of the trial court was entered upon petitioner’s motion for summary judgment. However, since it is clear that under petitioner’s pleadings and evidence no verdict could be entered for petitioner, we will not remand but simply reverse, dismiss the petition and enter judgment for respondent.

Reversed; petition dismissed; judgment entered for respondent.

JIGANTI, J., concurs.

Mr. JUSTICE JOHNSON,

dissenting:

I respectfully dissent. This case differs from prior notice cases to the extent that the purchaser did not make false representations to the court but relied on the false statement of the sheriff in petitioning for the issuance of a tax deed. The majority finds that service by mail and publication are sufficient notice. We are faced with the unique question of what is to be the legal effect where the sheriff fails to comply with the provisions of the statute. The statute (Ill. Rev. Stat. 1977, ch. 120, par. 744) requires the sheriff to make personal service on a corporate party by leaving a copy of the notice with the person designated by the Civil Practice Act and requires that a copy be mailed to the owner of record by certified mail.

The property concerned was vacant. The owner shown in the grantor-grantee index was Central National Bank as trustee under Trust No. 17897. Personal service was not made on an agent of Central National Bank. Service was made instead on a person named Sodergren or Rodergren at Federal National Mortgage Association. Despite this error, the sheriff’s deputy filed an official return stating that personal service was made on the Central National Bank. Appellant contends that this was inadvertent, or error, not amounting to fraud. Appellant claims that he had a right to rely on the sheriffs return. That may be true. But, should appellant’s reliance overrule the fact that it was based on an underlying document supplied by a third party which was false?

The courts have required strict compliance with the statute where land is sold for delinquent taxes (see People v. Banks (1916), 272 Ill. 502, 112 N.E. 269; Clark v. Zaleski (1911), 253 Ill. 63, 97 N.E. 272; Bailey v. Smith (1899), 178 Ill. 72, 52 N.E. 948; In re Application of County Collector (1973), 12 Ill. App. 3d 12, 297 N.E.2d 213), because once a tax deed is issued, it can only be challenged by direct appeal or by a proceeding brought under section 72, with the petitioner offering clear and convincing evidence of fraud. (Smith v. D.R.G., Inc. (1976), 63 Ill. 2d 31, 36, 344 N.E.2d 468,470; In re Application of County Collector (1978), 66 Ill. App. 3d 437, 445, 383 N.E.2d 1224,1232.) This is a heavy burden for a petitioner. It is only fair that those who rely on the conclusiveness of the tax deed should meet the burden of strict compliance.

In 1976 when the statute was amended, the responsibility of service was placed in the hands of a disinterested third party so as to remedy past abuses of whether in fact service had been made. I do not think, however, that the statute intended a lesser standard of compliance merely because the applicant for a tax deed was not the party personally responsible for service. I would affirm the judgment of the circuit court.


author: Mr. JUSTICE NASH Mr. JUSTICE LINDBERG,

text:
    E. M. MELAHN CONSTRUCTION COMPANY et al., Plaintiffs, v. THE VILLAGE OF CARPENTERSVILLE, Defendant-Appellant.—(E. M. MELAHN CONSTRUCTION COMPANY, Plaintiff-Appellee.)
    Second District
    No. 80-152
    Original opinion filed May 28,1981.
    Rehearing allowed July 27,1981. — Original opinion adhered to October 30, 1981.

      LINDBERG, J., specially concurring.
    Richard W. Husted, of Elgin, for appellant.
    Gary L. Griffin, Barry A. Spevack, and Cornelius Riordan, all of McNella & Griffin, Ltd., of Chicago, for appellee.
   Mr. JUSTICE NASH

delivered the opinion of the court:

Defendant, Village of Carpentersville, seeks to appeal from judgments entered following directed verdicts and jury verdicts in favor of plaintiff, E. M. Melahn Construction Co., on both plaintiff’s complaint and defendant’s counterclaim. Defendant has also appealed from an order awarding prejudgment interest to plaintiff. Plaintiff cross-appeals from an order denying it attorney’s fees and other relief sought pursuant to section 41 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 41).

This action was commenced by plaintiff to recover for services performed under a roadway and sewer installation contract it had entered into with defendant. The primary controversy between the parties centered upon plaintiff’s claims for extra work it alleged it was required to perform and its claim for prejudgment interest pursuant to section 2 of the Interest Act (Ill. Rev. Stat. 1979, ch. 74, par. 2). In its counterclaim defendant sought damages from plaintiff for alleged negligent construction by plaintiff and the recovery of overpayments claimed to have been made to plaintiff. The trial court directed a verdict in favor of plaintiff for a portion of the extra work claimed and, on December 7, 1979, entered judgment against defendant for $43,850.36. It also entered judgment on that date in favor of plaintiff and against defendant on portions of the counterclaim. The remaining issues relating to plaintiff’s claim for payment for additional work performed and the balance of defendant’s counterclaim were submitted to the jury, which returned verdicts in favor of plaintiff for $6,907.66 on its complaint and found for plaintiff on defendant’s counterclaim. Judgments were also entered on the verdicts of the jury on December 7,1979.

On December 19, 1979, defendant filed a notice of appeal “from the order of December 7, 1979, 0 00 directing a verdict for plaintiffs and against defendant and the judgment order of December 7, 1979 entered pursuant thereto, in the amount of $43,850.36, and further appeals from the judgment on the jury verdict of December 7, 1979, in the amount of $6,907.66,” praying that both judgments be reversed. On December 19 plaintiff also filed a motion that prejudgment interest, which it had sought in its complaint, be granted on the sums assessed against defendant by these judgments and for taxing its attorney’s fees against defendant pursuant to section 41 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 41). Defendant answered plaintiff’s motion and, after a hearing on January 25,1980, the trial court entered an order allowing prejudgment interest to plaintiff of $5,075.80 and denied plaintiff’s request for attorney’s fees. Thereafter, on January 25, defendant filed a notice of appeal “from that portion of the final order entered January 25, 1980 ° e * which allowed prejudgment interest to the plaintiff in the amount of $5,075.80,” which prayed that “said portion of the final order of January 25, 1980, be reversed.” On February 22,1980, plaintiff filed a notice of cross-appeal from that portion of the order entered January 25, which denied plaintiff’s motion for attorney’s fees under section 41 of the Civil Practice Act.

Plaintiff has filed a motion in this court to dismiss defendant’s appeal from the jury verdicts for its failure to file a post-trial motion, asserting that defendant may not seek review of issues not specified in such a motion. (Ill. Rev. Stat. 1979, ch. 110, par. 68.1(2) and (5); Ill. Rev. Stat. 1979, ch. 110A, par. 366(b)(2)(iii).) We have heretofore ordered that plaintiff’s motion, together with defendant’s objections thereto, be taken with the case. A threshold question is presented requiring us to determine what issues have been preserved for review. It is also the duty of this court to consider our jurisdiction to hear an appeal whether or not the issue has been raised by the parties. Johnson v. Northwestern Memorial Hospital (1979), 74 Ill. App. 3d 695, 697, 393 N.E.2d 712, 713.

We note first that plaintiff filed a timely notice of cross-appeal from the order denying its claim for attorney’s fees under section 41 of the Civil Practice Act but, as it has not argued that issue in its brief, we will not consider it further. See Ill. Rev. Stat. 1979, ch. 110A, par. 341(e)(7).

Defendant failed to file any post-trial motion following the judgments entered December 7,1979, which directed verdicts as to certain issues and entered judgment on the verdicts of the jury, nor did it file a post-trial motion following entry of the final judgment in this case on January 25, 1980. Claimed error generally will not be preserved for review unless if has been specifically raised in a post-trial motion pursuant to sectiop 68.1(2) of the Civil Practice Act. (Wilson v. Clark (1981), 84 Ill. 2d 186, 189, 417 N.E.2d 1322, 1324.) In Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 349, 415 N.E.2d 337, 339, the court reviewed the reasons for the rule pointing out that it was necessary for a party to apprise the trial court of claimed errors in a post-trial motion (1) to give it an opportunity to reconsider the correctness of its earlier rulings in the case; (2) to permit the reviewing court to determine from the record whether the trial court had an adequate opportunity to reassess alleged erroneous rulings; and (3) to prevent litigants from raising on appeal arguments the trial judge had no opportunity to consider. (See also Williamson v. Opsahl (1981), 92 Ill. App. 3d 1087, 416 N.E.2d 783.) We conclude defendant has not preserved for review those claims of error for which it seeks reversal of the judgments entered upon the verdicts of the jury, and we will not consider them further.

A different question is presented where defendant seeks to appeal from the verdicts which were directed by the trial court and its award of prejudgment interest. A narrow exception excusing the failure to present a post-trial motion in a case tried before a jury is recognized where a verdict has been directed by a trial court and, also, where the order for which review is sought was entered following discharge of the jury. (See Robbins v. Professional Construction Co. (1978), 72 Ill. 2d 215, 223-25, 380 N.E.2d 786, 789-90; Keen v. Davis (1967), 38 Ill. 2d 280, 282, 230 N.E.2d 859, 861.) As to these issues we conclude defendant’s failure to file a post-trial motion does not bar review.

Although not raised by plaintiff we must also consider the sufficiency of defendant’s two notices of appeal to confer jurisdiction on this court to review the judgments for directed verdicts and the judgment entered on the verdict of the jury on December 7, 1979. Defendant filed a notice of appeal from these judgments on December 19; however, it was premature as the judgments were not final. Supreme Court Rule 304(a) provides that judgments determining fewer than all of the rights and claims in issue are not appealable unless the trial court finds “there is no just reason for delaying enforcement or appeal.” (Ill. Rev. Stat. 1979, ch. 110A, par. 304(a).) The trial court did not do so here, and the appellate court thus lacks jurisdiction to review those judgments insofar as they depend upon the December 19 notice of appeal to invest jurisdiction. (Ariola v. Nigro (1958), 13 Ill. 2d 200, 207, 148 N.E.2d 787, 791; Bissett v. Gooch (1980), 87 Ill. App. 3d 1132, 1135-36, 409 N.E.2d 515, 517; Blanchette v. Martell (1977), 52 Ill. App. 3d 1029, 1031, 368 N.E.2d 458, 459; cf. Davis v. Childers (1965), 33 Ill. 2d 297, 211 N.E.2d 364; Farmar v. Crane (1975), 32 Ill. App. 3d 383, 391, 336 N.E.2d 607, 613-14.) At the time defendant filed its first notice of appeal there remained in issue between the parties plaintiff’s claim made in his complaint for prejudgment interest. The judgments entered December 7, 1979, were not appealable until the further order for interest was entered on January 25,-1980. (See In re Marriage of Lentz (1980), 79 Ill. 2d 400, 408, 403 N.E.2d 1036, 1039.) Clearly, all issues in the case were then resolved and defendant could have properly appealed from all judgments theretofore entered in the case.

We must then consider whether defendant’s January 25 notice of appeal was sufficient to permit this court to review the judgments entered on December 7. Supreme Court Rule 303(c) (2) provides that a notice of appeal “shall specify the judgment or part thereof appealed from and the relief sought from the reviewing court.” (Ill. Rev. Stat. 1979, ch. 110A, par. 303(c)(2).) In its second notice of appeal defendant specified only the issue relating to prejudgment interest and sought its reversal. We think it is clear defendant intended to and did rely upon its first notice of appeal to preserve for review the earlier judgments; it is also apparent plaintiff mistakenly believed defendant had thus done so as both parties have briefed and argued those issues without objection by plaintiff on these grounds.

Generally, when an appeal is taken from a specified judgment only, a reviewing court does not acquire jurisdiction to review other judgments which have not been specified in the notice of appeal. (Illinois Central Gulf R.R. Co. v. Sankey Brothers, Inc. (1979), 78 Ill. 2d 56, 61, 398 N.E.2d 3, 5; see also Mooring v. Village of Glen Ellyn (1978), 57 Ill. App. 3d 329, 331, 373 N.E.2d 35, 36.) In Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 394 N.E.2d 380, our supreme court noted that a notice of appeal is to be liberally construed and that appellate jurisdiction will be conferred,

* * if the notice, when considered as a whole, fairly and adequately sets out the judgment complained of and the relief sought so that the successful party is advised of the nature of the appeal. [Citations.] Unless the appellee is prejudiced thereby, the absence of strict technical compliance with the form of the notice is not fatal, and where the deficiency in the notice is one of form only, and not of substance, the appellate court is not deprived of jurisdiction. [Citations.]” (76 Ill. 2d 427, 433-34, 394 N.E.2d 380, 383.)

In Burtell appellant’s notice of appeal stated it “ ‘appeals from the decree and judgment entered against it on June 1,1976 in the sum of $89,998.22’ ” and asked it be reversed. (76 Ill. 2d 427, 431.) It failed, however, to include mention of an earlier decree entered December 19, 1975, in the same cause which had found that a joint venture existed between the parties and ordered an accounting. The judgment finally entered and described in the notice of appeal was for the sums found due under the accounting. The supreme court held that the notice of appeal was sufficient to confer jurisdiction to also review the decree of December 19, 1975, as the trial court’s finding of a joint venture was a preliminary determination necessary to the ultimate relief sought by plaintiff, a money judgment based upon the accounting, and a step in the procedural progression leading to the judgment of June 1, 1976.

In the present case, however, defendant’s January 25 notice of appeal is directed only to the judgment for prejudgment interest and requests only that it be reversed. The issue of whether plaintiff was entitled to prejudgment interest under section 2 of the Interest Act (Ill. Rev. Stat. 1979, ch. 74, par. 2) is only indirectly dependent upon the judgments entered December 7, 1979, which fixed the principal sum found due to plaintiff. In our view, defendant’s limited notice of appeal, which does not seek to set aside the earlier judgments, cannot fairly be considered as a vehicle for review of those judgments. We conclude the failure to include the December 7 judgments in defendant’s notice of appeal is of substance, not merely of form, and decline to review those issues except insofar as may be necessary to consider the question of prejudgment interest. See Conley v. Peoples Gas, Light & Coke Co. (1980), 82 Ill. App. 3d 1094, 1101, 403 N.E.2d 625, 630.

In summary of the jurisdictional quagmire presented in this case, we have determined that plaintiff’s cross-appeal will not be considered as it was not argued; the judgments entered December 7, 1979, will not be reviewed as they are not within the scope of defendant’s limited notice of appeal; the judgments entered December 7 on the verdicts of the jury will not be considered for the further reason defendant failed to present a post-trial motion to the trial court. The issues of the case as they relate to the judgment for prejudgment interest will be reviewed.

The trial court awarded plaintiff prejudgment interest on the sum of the judgments entered December 7, 1979, for the two-year period preceding that date. Defendant contends the court erred for these reasons: (1) defendant withheld payment for claimed extra work in good faith and without unreasonable and vexatious delay in making payment; (2) the fact the parties contract required judicial construction bars interest; (3) plaintiff failed to satisfy a contract requirement of acceptance of the work by defendant prior to payment becoming due, and (4) the amount of interest should be reduced as all of the work was not completed during the period for which interest was awarded.

Section 2 of the Interest Act (Ill. Rev. Stat. 1979, ch. 74, par. 2) provides:

“Creditors shall be allowed to receive at the rate of five (5) per centum per annum for all moneys after they become due on any bond, bill, promissory note, or other instrument of writing; on money lent or advanced for the use of another; on money due on the settlement of account from the day of liquidating accounts between the parties and ascertaining the balance; on money received to the use of another and retained without the owner’s knowledge; and on money withheld by an unreasonable and vexatious delay of payment.”

Defendant relies on Watson Lumber Co. v. Guennewig (1967), 79 Ill. App. 2d 377, 226 N.E.2d 270, in arguing it withheld payment in good faith, without unreasonable or vexatious delay. This court has rejected the Watson court’s reasoning in two cases in which we held that the existence of a good-faith dispute and the unreasonableness of any delay in payment “only affects that portion of section 2 of the Interest Act which relates to ‘unreasonable or vexatious delay’ and that it has no applicability to cases involving instruments in writing * * (KFK Corp. v. American Continental Homes, Inc. (1979), 71 Ill. App. 3d 304, 314, 389 N.E.2d 232, 239; Haas v. Cravatta (1979), 71 Ill. App. 3d 325, 332, 389 N.E.2d 226, 231.) A building or construction contract is an instrument in writing within the meaning of the interest statute. (Smith v. Gray (1925), 316 Ill. 488, 499, 147 N.E. 459, 464; see Keeler v. Herr (1895), 157 Ill. 57, 41 N.E. 750.) While the recovery by plaintiff was for extras outside the scope of the construction contract, the cost of each extra was agreed upon by plaintiff and an agent of the village (its engineers) prior to the commencement of each project. These agreements were reduced to writing in change orders submitted by plaintiff to defendant and approved by its agents. Defendant has not included in the record a report of proceedings of the hearing on prejudgment interest; we cannot determine whether the issue of whether defendant reasonably delayed payments was presented to the trial court. In the absence of a report of proceedings it will be assumed that the court heard adequate evidence to support a determination that defendant’s delay in payment was unreasonable and vexatious (Levy v. Dickstein (1979), 70 Ill. App. 3d 180, 184, 388 N.E.2d 97, 100; Dils v. City of Chicago (1978), 62 Ill. App. 3d 474, 479, 378 N.E.2d 1130, 1134), even if such a finding was required to support an award of interest in this case. Defendant cannot therefore be heard to complain there was a good faith dispute excusing delay in payment.

Defendant again relies on Watson as authority in support of its second argument. The court there held it error “to allow interest on an amount due when, as here, that amount depends largely upon the construction placed on the terms of a contract, * 0 (79 Ill. App. 2d 377, 398, 226 N.E.2d 270, 280.) This determination is in accord with the general rule that interest may be awarded only when the sum due is liquidated or subject to exact computation. (Central National Chicago Corp. v. Lumbermens Mutual Casualty Co. (1977), 45 Ill. App. 3d 401, 409, 359 N.E.2d 797, 802.) In the present case the trial court did construe the construction contract, but only to determine whether the village was liable for the amounts which its engineers had agreed were the costs of the “extra” items of work done by plaintiff. An amount due under a contract is liquidated when the parties agree on that amount. (See John Kubinski & Sons, Inc. v. Dockside Development Corp. (1975), 33 Ill. App. 3d 1015, 339 N.E.2d 529.) Defendant’s second contention is not persuasive because while its liability for certain extras required judicial determination the amount due if it was found liable was ascertainable. Martin v. Orvis Brothers & Co. (1974), 25 Ill. App. 3d 238, 251, 323 N.E.2d 73, 83.

Defendant next contends that plaintiff’s failure to satisfy a final inspection meant no sum ever became due for extras under the contract, especially the retained funds the release of which was expressly made subject to such final inspection and acceptance of the work by the village. We believe John Kubinski & Sons, Inc. v. Dockside Development Co. dispels defendant’s argument. The appellate court there noted under similar circumstances that an owner cannot rely on issuance of a final certificate of satisfaction as a condition precedent to the release of retained funds where it has itself been in breach of contract. The court recognized that a contrary interpretation would allow the unacceptable result that an owner could withhold the certificate, and thus the payment, regardless of any breach. The extras and retained funds were due plaintiff, and an award of interest for the period these liquidated sums were withheld was proper.

Defendant’s final contention is that plaintiff should not have received interest from December 1977 to December 1979 as it had not completed its work by December 1977. Defendant points to plaintiff’s opening statement in which it referred to unfinished work; however, this statement was made by plaintiff in terms of what it expected defendant would attempt to show was uncompleted work justifying a set-off. Plaintiff’s general superintendent did testify at trial, however, that all construction was not completed until sometime after July 1978. Plaintiff notes evidence the roadway was opened for traffic in December 1977 and that the construction contract was substantially performed then. Even assuming the contract was substantially performed at that time, however, this does not mean the extras were also, and defendant maintains that plaintiff was still submitting pay estimates for extras for village approval as late as February 1979.

In cases where there are a number of dates from which interest could be said to have accrued, this court has sought to find the most equitable date. (Rite-Way Plumbing & Heating, Inc. v. Wil-Freds, Inc. (1978), 63 Ill. App. 3d 643, 649, 380 N.E.2d 992, 996.) The important date (where as here defendant has not specified an alternate date) is when the money actually became due without regard to whether or when plaintiff made a demand for payment. (Haas v. Cravatta (1979), 71 Ill. App. 3d 325, 332, 389 N.E.2d 226, 231.) Again, we note that the report of proceedings of the December 19, 1979, hearing on prejudgment interest was not included in the record; in such circumstances a reviewing court will indulge in all reasonable presumptions based on the record before it in favor of the trial court’s order. (See Brokerage Resources, Inc. v. Jordan (1980), 80 Ill. App. 3d 605, 400 N.E.2d 77; Cloud v. Public Service Stores (1962), 36 Ill. App. 2d 13, 182 N.E.2d 705 (abstract).) While plaintiff’s superintendent testified in trial that the job was not completed until sometime after July 1978, it is reasonable to assume the trial court considered the matter inconsequential when it awarded interest. This court has no way of knowing whether the work completed after December 1977 was used by the trial judge in computing interest. It is reasonable to believe the court awarded interest from December 1977 only on that portion of the work completed by that date.

For these reasons the judgment of the circuit court of Kane County will be affirmed.

Affirmed.

SEIDENFELD, P. J., concurs.

Mr. JUSTICE LINDBERG,

specially concurring:

I specially concur in the affirmance of our earlier decision upon the granting of the defendant’s motion for rehearing. Upon reconsideration of our holding that the judgments on the December 7, 1979, directed verdicts were not properly preserved, I now conclude that they were preserved and should have been disposed of on their merits in our opinion. However, in my original consideration of those issues I concluded, and remain convinced, that the judgments on the directed verdicts should be affirmed on their merits.

While appeal of the judgment on the jury verdict was clearly waived for the reason set forth in the opinion, I now believe the judgments on the directed verdicts were preserved under the supreme court’s instructive decision in Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 394 N.E.2d 380, also relied upon in the majority opinion.

I think we should be guided in the instant cause by the holdings of the court in Burtell that the appeal from a subsequent final judgment draws in question all prior nonfinal orders and rulings which produced the judgment; the notice of appeal serves the purpose of informing the prevailing party in the trial court that the unsuccessful litigant seeks review by a higher court; briefs, and not the notice of appeal itself, specify the precise points to be relied upon for reversal; a notice of appeal will confer jurisdiction on an appellate court if the notice, when considered as a whole, fairly and adequately sets out the judgment complained of and the relief sought so that the successful party is advised of the nature of the appeal; and, unless the appellee is prejudiced thereby the absence of strict technical compliance with the form of the notice is not fatal, and where the deficiency in the notice is one of form only and not of substance the appellate court is not deprived of jurisdiction. Burtell, at 433-34.

I respect the conclusion that the issue of the plaintiff’s entitlement to prejudgment interest is only indirectly dependent upon the earlier judgments and the failure to include those judgments in the second, valid notice of appeal was of substance and not merely a form. However, I think we should read Burtell more broadly, particularly under a procedural fact situation where only through punctilious judicial research prior to oral argument was the questionable appellate jurisdiction discovered by this court. The appellee proceeded to the day of argument without awareness of this potential defect and therefore was not misled and, in fact, provided the court with a complete and vigorous argument on the merits of each of the issues embraced by both notices of appeal. I do not see how the prejudgment interest was any less substantive in its relationship to the earlier judgment than was the issue of the accounting as to its underlying judgments in Burtell.

Nevertheless, having considered the merits of the defendant’s arguments attacking the December 7 directed verdict I would affirm the judgment of the trial court on those issues. Therefore, I specially concur in the original opinion of the court upon the granting of the petition for rehearing.


author: Mr. PRESIDING JUSTICE SCOTT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD HUNT, Defendant-Appellant.
    Third District
    No. 81-117
    Opinion filed September 30,1981.

      Robert Agostinelli and Thomas Lilien, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. PRESIDING JUSTICE SCOTT

delivered the opinion of the court:

The defendant, Ronald Hunt, appeals from his conviction for armed robbery following a jury trial in the Circuit Court of Peoria County and from his 40-year extended-term sentence. He presents the following issues for review: whether the court erred in allowing a defense witness to testify at the instance of the defendant but over the objection of defense counsel, and whether the sentencing order should be vacated and the cause remanded for resentencing because the court improperly considered that the defendant received the proceeds from the armed robbery as an aggravating factor. He also requests this court to vacate his extended term sentence if this court reverses his Tazewell County armed robbery conviction. (People v. Hunt (1981), 99 Ill. App. 3d 958, 426 N.E.2d 568.) Our affirmance of that conviction has rendered that issue moot.

The defendant and his brother, Donald Hunt, were charged by information and subsequently indicted with the June 5, 1980, armed robbery of James Traphagan. The defendant’s brother pleaded guilty to armed robbery prior to the defendant’s trial. At trial, the prosecution’s evidence tended to establish the following facts. On June 5, 1980, at approximately 11 p.m., two men armed with a shotgun and pistol entered Hogan’s Place, a tavern in Dunlap, Illinois. Both men wore nylon stockings over their faces, and one wore a hat. They ordered the patrons to lie on the floor, while one of the robbers went behind the bar to the cash register. He then ordered Traphagan, the bartender, to give him the money contained in the register. The other robber took money from the wallets of the patrons, including Donald Jones. The robbers then fled from the bar. Traphagan immediately attempted to follow the robbers. He drove east from Dunlap and observed another car also leaving Dunlap at a high rate of speed. The driver wore a hat similar to that worn by one of the robbers. The car was later identified as the defendant’s.

Traphagan was unable to identify the defendant in court, but Jones did. Moreover, Jones identified the defendant from a lineup of six men with stocking masks at the Tazewell County sheriff’s office on June 20, 1980.

The defendant’s first witness was Benny Hale, who testified that he and his wife entertained the defendant and Kim Smith at their home during the night of June 5. The defendant and Smith arrived at approximately 8 p.m., and remained until the early morning hours. On cross-examination, Hale admitted he failed to recall the events of June 5 when he was first questioned by defense counsel just four days previous to the trial, but had asked for time to refresh his recollection.

The only other defense witness was the defendant’s brother, Donald Hunt. Before Donald assumed the witness stand and while the jury was excused, defense counsel informed the court that he had spoken with Donald about his possible testimony and believed the admission of such testimony was contrary to his professional judgment and his client’s best interest. Nevertheless, the defendant insisted on calling Donald to testify. The court then directly inquired of the defendant whether he wished for his brother to testify, to which the defendant affirmatively responded. The court then permitted Donald to testify. Donald, who had previously pleaded guilty and been sentenced for the June 5 armed robbery, testified that he, the defendant, Kim Smith, the Hales, and several others attended a party at Barbara Avery’s during the evening of June 5. At 9 p.m., Donald borrowed the defendant’s car without informing him and met two persons whom Donald refused to identify. The three drove to Hogan’s Place, where Donald, carrying a handgun, and another man, robbed the tavern and its patrons. Donald later returned to Avery’s but found no one there. At the conclusion of this testimony and final arguments, the jury returned a guilty verdict.

The presentence report revealed the defendant had a number of prior convictions including a 1980 Tazewell County armed robbery conviction. At the sentencing hearing, the court imposed an extended term sentence of 40 years’ imprisonment on the basis of the Tazewell County armed robbery conviction. The court also considered the numerous previous convictions, the defendant’s receipt of compensation, threatened harm, and lack of rehabilitative potential in aggravation.

The defendant first asserts that by disregarding defense counsel’s objections to calling Donald to testify and by condoning such testimony at the insistence of the defendant, the court committed error. He argues such a ruling intruded upon a sacrosanct area of defense counsel’s tactical discretion. According to the defendant’s argument on appeal, the right to receive effective assistance of counsel includes a grant of authority to counsel to make binding decisions of trial strategy based upon the exercise of his or her professional judgment, including the decision regarding the calling of witnesses. Thus, where the defendant is represented by experienced counsel, as here, the court should recognize this grant of trial strategy discretion and allow counsel to prevail over the defendant’s wishes to the contrary. In the instant case, the defendant claims the court’s failure to defer to defense counsel’s course of action resulted in the admission of testimony which conflicted substantially with Hale’s alibi testimony.

In support of the proposition that counsel exercises an exclusive power to make certain tactical decisions, the defendant relies upon standard 5.2 of the A.B.A. Standards Relating to the Defense Function (1971). That standard provides:

“(a) Certain decisions relating to the conduct of the case are ultimately for the accused and others are ultimately for defense counsel. The decisions which are to be made by the accused after full consultation with counsel are: (i) what plea to enter; (ii) whether to waive jury trial; (iii) whether to testify in his own behalf.
(b) The decisions on what witness to call, whether and how to conduct cross-examination, what jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client.
(c) If a disagreement on significant matters of tactics or strategy arises between the lawyer and his client, the lawyer should make a record of the circumstances, his advice and reasons, and the conclusion reached. The record should be made in a manner which protects the confidentiality of the lawyer-client relation.”

The commentary to this standard makes clear that such a division of responsibilities is intended to provide the defendant with a competent, effective counsel who exercises his or her experienced tactical judgment without suffering “the disconcerting experience of trying to conduct the examination of the witness or follow opposing arguments or the judge’s charge while the client ‘plucks at his sleeve’ offering gratuitous suggestions.” A.B.A. Standards Relating to the Defense Function §5.2, at 240 (1971).

Nevertheless, we hold that the standard should not be used to absolve the overzealous defendant who intrudes into this area of professional discretion by insisting on a contrary course of action after counsel has explained the possible disadvantages of the insisted tactic. Indeed, after examining the commentary and the case law invoking the standard, we find that Standard 5.2 is most commonly used to examine the effectiveness of defense counsel’s representation to ensure that he received competent assistance of counsel, and not to rectify a disagreement between counsel and the defendant on the use of trial tactics. (See A.B.A. Standards Relating to the Defense Function §5.2, at 240-41 (1971); United States v. Moore (D.C. Cir. 1976), 529 F.2d 355.) Here there is no question regarding counsel’s effectiveness. Thus, we hold that where counsel has explained on the record the consequences of a particular tactic but the defendant still insists on taking such action, he is estopped from claiming on appeal that the ruling countenancing the tactic which was made upon his insistence constituted prejudicial error even though such insistence invaded the province normally reserved for defense counsel. Cf. People v. Hamelin (1979), 75 Ill. App. 3d 445, 394 N.E.2d 566; People v. Strickler (1977), 47 Ill. App. 3d 419, 362 N.E.2d 28.

The defendant also contends his 40-year extended-term sentence must be vacated and the cause remanded for resentencing because the circuit court improperly characterized the receipts of the armed robbery as an aggravating factor. We agree and accordingly vacate the sentencing order and remand for resentencing. During the sentencing hearing the court considered the receipt of compensation for committing the offense as an aggravating factor (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(a) (2)) as follows:

“The next item of aggravation is, received compensation. Now whether that means you are hired to perform the job or whether you get money from the armed robbery as the spoils of the crime, I don’t need to argue that now, but you did during these armed robberies receive the proceeds of the crime, the monies.
Whether that is what they mean by received compensation, I don’t know, but you did profit from the armed robberies. That the intent of this armed robbery, was to get money.”

Although the court expressed some question whether the receipts were properly classified as compensation for the purpose of aggravating the sentence, the court nonetheless did consider it in making its sentencing determination. In People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906, the supreme court ruled that the receipt of proceeds from property-related offenses does not constitute the aggravating factor of receiving compensation for the offense. Only where a defendant received remuneration beyond the booty of the offense is the factor applicable. Thus, although the court considered other aggravating factors in its sentencing determination, the defendant is entitled to a new sentencing hearing because only the trial court can determine how much weight is accorded to the improper factor.

Accordingly, we affirm the defendant’s conviction for armed robbery, and we vacate and remand the sentencing order to the Circuit Court of Peoria County.

Affirmed in part, vacated and remanded in part.

HEIPLE and STOUDER, JJ., concur.


author: Mr. JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARTHA BIEDERMAN, Defendant-Appellant.
    Second District
    No. 80-615
    Opinion filed September 25,1981.

      William R. Beu, of Rockford, for appellant.
    Daniel Doyle, State’s Attorney, of Rockford (Phyllis J. Perko and Paula R. Johnson, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant was found guilty by a Winnebago County jury of aggravated battery and mob action on May 9, 1980. (Ill. Rev. Stat. 1979, ch. 38, pars. 12 — 4(b) and 25 — 1(a)(1).) The charges resulted from defendant’s participation in a counterdemonstration against a Nazi rally held in Sinnissippi Park in Rockford, Illinois, on September 15, 1979, during which a police officer was injured. Defendant’s motions for a new trial and judgment notwithstanding the verdict were denied. The court sentenced the defendant to a 12-month period of conditional discharge on July 11,1980, for the aggravated battery offense. Defendant now appeals, raising six issues, one of which concerns' the mob action offense. Although the State did not raise the issue, we determine the appeal must be dismissed without consideration of the merits of these issues for lack of a final, app'ealable order.

Before the merits of an appeal are addressed, the appellate court first has the duty to determine whether it has jurisdiction. (People v. Williams (1977), 53 Ill. App. 3d 335.) Appellate courts, subject to statutory exceptions, are without jurisdiction to. review judgments, orders, or decrees which are not final. (People v. Culhane (1975), 34 Ill. App. 3d 158.) In a criminal case, a final judgment is that which terminates the litigation on its merits and usually that consists of a judgment of guilt and the imposition of a sentence. In re A.M. (1981), 94 Ill. App. 3d 86.

The conditional discharge order in the instant cause specifically recited: “The matter of restitution is reserved for a period of 30 days for further order of this court.” This order was entered on July 11,1980, thus reserving jurisdiction in the court until August 10, 1980. Defendant’s notice of appeal, however, was filed on August 5, 1980, at which time appellate court jurisdiction attached instanter and the trial court was concomitantly deprived of jurisdiction. (People v. Baker (1980), 85 Ill. App. 3d 661, 662.) Consequently, no final appealable order was ever entered. Although our research has not disclosed a case in which these precise circumstances have occurred before, we believe the effect of the premature filing of the defendant’s notice of appeal was to suspend the trial court’s jurisdiction and that the trial court has time remaining out of the original 30-day period it had reserved to itself to consider whether or not to order restitution pursuant to section 5 — 6—3(b)(9). Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—3(b)(9).

We note defendant failed to include an appendix to her brief, and failed to supply either a verbatim transcript of the post-trial/sentencing proceedings, a bystander’s report, or an agreed statement of facts. (Ill. Rev. Stat. 1979, ch. 110A, par. 612.) Also, we are unable to determine from the record whether a judgment was ever entered by the court on the verdict of guilty of mob action. Clearly no sentence order appears of record for that offense; thus, we have no jurisdiction to consider any issue relating to that charge either. People v. Cook (1981), 94 Ill. App. 3d 73.

Accordingly, this appeal is dismissed.

Appeal dismissed.

SEIDENFELD, P. J., and VAN DEUSEN, J., concur.