author: Mr. JUSTICE JIGANTI

text:
    ROBERT RICKEY, a Minor, by Janet Rickey, his Mother and Next Friend, Plaintiff-Appellant, v. THE CHICAGO TRANSIT AUTHORITY et al., Defendants-Appellees.
    First District (4th Division)
    No. 80-2253
    Opinion filed October 29, 1981.
    James J. Reidy, Ltd., of Chicago, for appellant Robert Rickey.
    Norman J. Barry and Daniel Cummings, both of Chicago (Rothschild, Barry & Myers, of counsel), for appellee Chicago Transit Authority.
    French and Rogers, of Chicago (Richard G. French and Dorothy F. French, of counsel), for appellee United States Elevator Corporation.
    McKenna, Storer, Rowe, White & Farrug, of Chicago (James P. DeNardo, of. counsel), for appellee Otis Elevator Company.
   Mr. JUSTICE JIGANTI

delivered the opinion of the court:

This action was brought by Janet Rickey on behalf of her minor son, Robert Rickey, seeking damages for emotional distress resulting from the alleged negligence of the defendants, the Chicago Transit Authority (CTA), United States Elevator Corporation and Midland Elevator Company. Additionally, the plaintiff sought recovery against Otis Elevator Company predicated on a theory of strict product liability. The trial court dismissed the suit on the basis that the complaint failed to state a cause of action and the plaintiff appeals. The issue involved is whether there may be recovery of damages for the negligent infliction of emotional distress in the absence of a contemporaneous physical impact or injury suffered by the plaintiff.

Since this appeal comes to us on a motion to dismiss, we must accept as true all facts properly pleaded together with all reasonable inferences which could be drawn from those facts. (Carroll v. Caldwell (1957), 12 Ill. 2d 487, 147 N.E.2d 69.) The complaint, as amended, alleges that the minor plaintiff was present with his parents at a CTA subway station when he observed a serious accident involving his brother, Richard Michael Rickey. Richard’s clothing became entangled in an escalator and he was choked and deprived of oxygen for some time. After he was freed, he was found to be in a comatose state and still remains in that condition in a nursing care facility. As a result of observing this incident and its aftermath, the plaintiff experienced severe functional, emotional, psychiatric and behavorial disorders. The symptoms of these disorders are severe depression, permanent mental disturbances, and an inability to conduct the normal affairs of life, whether in school or through employment. The complaint further alleges that the plaintiff has undergone and is likely to undergo in the future a great deal of expensive medical psychiatric care for these ailments. The plaintiff specifically asserts on appeal that he is not alleging that he suffered physical injury or impact at the time he observed his brother’s accident. The plaintiff does not claim that the injuries of which he complains were caused by an intentional act on the part of the defendants nor does he allege that he was within a “zone of danger.”

Illinois has consistently barred recovery for negligently inflicted emotional distress unless it arises from and is directly related to a contemporaneous physical impact or injury suffered by the plaintiff. (Cutright v. City National Bank (1980), 88 Ill. App. 3d 742, 410 N.E.2d 1142.) This impact rule, as it is characterized by the parties, was first enunciated in Braun v. Craven (1898), 175 Ill. 401, 51 N.E. 657, where the Illinois Supreme Court held that no liability exists for negligent acts which occasion fright or terror where there has been no accompanying physical impact even if nervous shock, which constitutes a physical injury, results. The appellate court has repeatedly followed the Braun decision. See Cutright v. City National Bank; Carlinville National Bank v. Rhoads (1978), 63 Ill. App. 3d 502, 380 N.E.2d 63; Kaiserman v. Bright (1978), 61 Ill. App. 3d 67, 377 N.E.2d 261; Rosenberg v. Packerland Packing Co. (1977), 55 Ill. App. 3d 959, 370 N.E.2d 1235; Benza v. Shulman Air Freight (1977), 46 Ill. App. 3d 521, 361 N.E.2d 91.

The plaintiff concedes that the above rule of law would preclude recovery in this cause. He argues, however, that the majority of jurisdictions have abandoned the impact rule on the grounds that it is arbitrary and obsolete and that it bars meritorious claims. The plaintiff asks us to reconsider the viability of the rule in light of the recent trend of allowing recovery, under certain conditions, to one who is emotionally distressed as a result of observing harm or peril to another.

The defendants, on the other hand, assert that this court lacks authority to award relief in this cause. They argue that we are duty bound to follow the Illinois Supreme Court decision in Braun v. Craven. Ordinarily, we would agree that it is improper for the appellate court to deviate from the decisions of the State Supreme Court. (See Benza v. Shulman Air Freight (1977), 46 Ill. App. 3d 521, 361 N.E.2d 91.) However, the subsequent history of the impact rule and the development of the law in areas dealing with mental distress convince us that a reevaluation of the rule is proper. Braun was decided in 1898, at a time when the impact rule was followed in a majority of .jurisdictions. Since then, many of the precedents cited as support by the Braun court have been overruled. (See Benza, 46 Ill. App. 3d 521, 525, 361 N.E.2d 91, 94, for a listing of these precedents and the cases overruling them.) As will be subsequently detailed, the rationales underlying the impact rule have been rejected as unsound not only by the vast majority of jurisdictions, but also specifically by the Illinois Supreme Court in Knierim v. Izzo (1961), 22 Ill. 2d 73, 174 N.E.2d 157, where it recognized a cause of action for the intentional infliction of emotional distress.

The three-part rationale which provides the basis for the impact rule has been seriously undermined in recent years. The first reason usually asserted for requiring a contemporaneous impact is that mental or emotional injuries suffered in the absence of a physical impact or injury are not readily foreseeable as natural and proximate consequences of the defendant’s negligent conduct. This is the position taken in Braun v. Craven. However, this view has been discredited in a majority of jurisdictions. (See Dillon v. Legg (1968), 68 Cal. 2d 728, 441 P.2d 912, 69 Cal. Rptr. 72; D’Ambra v. United States (1975), 114 R.I. 643, 338 A.2d 524.) These jurisdictions have recognized that under certain circumstances, it is reasonably foreseeable to the defendant that his negligence may cause another to suffer emotional distress. Also, it is illogical to maintain that emotional injury is not foreseeable where the plaintiff receives no impact and yet that it is foreseeable where the plaintiff receives only a slight, almost imperceptible impact. Second, the impact rule has been perpetuated on the basis that its rejection would precipitate a flood of litigation. It is apparent, however, that in those States which follow the majority rule and allow recovery for emotional injuries without physical impact “the feared flood tide of litigation has simply not appeared.” (Niederman v. Brodsky (1970), 436 Pa. 401, 411, 261 A.2d 84, 89.) Third, it has been suggested that abandonment of the impact rule would open the door for fraudulent or fictitious claims. This argument was addressed by the court in D’Ambra v. United States (1975), 114 R.I. 643, 655, 338 A.2d 524, 530, which stated that “many courts, including this one, have shown themselves reluctant to bar an entire class of claims with a bright line rule merely for fear that occasionally recovery will be ill-founded.” Moreover, in Knierim v. Izzo (1961), 22 Ill. 2d 73, 174 N.E.2d 157, the Illinois Supreme Court recognized that recovery is available for the intentional infliction of emotional distress even where no contemporaneous physical impact or injury occurs. Illinois is thus already involved in the task of weeding out dishonest claims relating to emotional distress.

A leading commentator in the area of toft law has pointed out the absurdity of conditioning recovery for severe mental distress upon whether the plaintiff received a contemporaneous physical impact.

“[Cjourts have found ‘impact’ in minor contacts with the person which play no part in causing the real harm, and in themselves can have no importance whatever. ‘Impact’ has meant a slight blow, a trifling burn or electric shock, a trivial jolt or jar, a forcible seating on the floor, dust in the eye, or the inhalation of smoke. The requirement has even been satisfied by a fall brought about by a faint after a collision, or the plaintiff’s own wrenching of her shoulder in reaction to the fright. The magic formula ‘impact’ is pronounced; the door opens to the full joy of a complete recovery.” Prosser, Torts §54, at 331 (4th Ed. 1971).

The defendant asserts that the impact rule serves an important purpose in limiting the potentially infinite liability of a defendant for the consequences of his negligent acts. We agree that it would be unfair to hold a negligent defendant liable for consequences which he could not reasonably foresee. However, as stated in Dillon v. Legg (1968), 68 Cal. 2d 728, 739, 441 P.2d 912, 919, 69 Cal. Rptr. 72, 79, “[t]he alleged inability to fix definitions for recovery on the different facts of future cases does not justify the denial of recovery on the specific facts of the instant case.” We feel that the cause before us possesses adequate safeguards against the hazards of unlimited liability. First, the minor plaintiff was located near the scene of the accident. Second, his injuries allegedly resulted from a direct emotional impact caused by the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. Third, the plaintiff and victim were closely related. These three factors have been used by several courts in determining whether the defendant could reasonably foresee injury to the plaintiff or, in other terminology, whether the defendant owes the plaintiff a duty of due care. (Dillon v. Legg; D’Ambra v. United States; D’Amicol v. Alvarez Shipping Co. (1973), 31 Conn. Supp. 164, 326 A.2d 129; Toms v. McConnell (1973), 45 Mich. App. 647, 207 N.W.2d 140.) Furthermore, we believe that the plaintiff’s allegations regarding the consequences of his distress are sufficient to establish a real, compensable injury as opposed to mere temporary fright. (See Vanoni v. Western Airlines (1967), 247 Cal. App. 2d 793, 56 Cal. Rptr. 115; Cook v. Maier (1939), 33 Cal. App. 2d 581, 92 P.2d 434.) We therefore believe that the allegations of the complaint are sufficient to state a cause of action for the negligent infliction of emotional distress.

The plaintiff’s claim against Otis Elevator Company, however, is predicated not upon a theory of negligence but rather on the theory of strict product liability. As the defendant correctly asserts, Illinois does not recognize a cause of action for mental and emotional distress under strict product liability. (Woodill v. Parke Davis & Company (1978), 58 Ill. App. 3d 349, 374 N.E.2d 683, aff'd (1980), 79 Ill. 2d 26, 402 N.E.2d 194.) Furthermore, the plaintiff has failed to argue or cite authority in support of recognizing a strict product liability theory of recovery for mental or emotional distress. For these reasons, the judgment of the circuit court with regard to defendant Otis Elevator Company is affirmed.

Accordingly, the judgment of the circuit court is affirmed in part, and reversed and remanded in part.

ROMITI, P. J., and LINN, J., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE HARTMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY BLOUNT, Defendant-Appellant.
    First District (2nd Division)
    No. 80-350
    Opinion filed November 3, 1981.

      James J. Doherty, Public Defender, of Chicago (Jeffrey R. Martin and Timothy K. McMorrow, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Lester M. Joseph, and Francis J. Mahon, Jr., Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Defendant was convicted by a jury for unlawful use of a weapon (Ill. Rev. Stat. 1971, ch. 38, par. 24 — l(a—7)), armed robbery (Ill. Rev. Stat. 1971, ch. 38,_par. 18 — 2), two counts of aggravated battery (Ill. Rev. Stat. 1971, ch. 38, pars. 12 — 4, 12 — 4(b—1)), and attempted murder (Ill. Rev. Stat. 1971, ch. 38, par. 8 — 4). After the verdict was rendered, the trial court granted defendant’s motion in arrest of judgment with respect to attempted murder. Defendant was sentenced to 8 to 24 years for armed robbery and 3 to 10 years for unlawful use of a weapon and aggravated battery, to be served concurrently. On appeal, defendant maintains that the trial court committed reversible error when it failed to quash his warrantless arrest and suppress the evidence subsequently seized inside his hotel room. For the reasons enunciated below, we affirm.

The State presented the following case at trial. Officer Harry Radney testified that about 11:30 a.m. on July 20,1972, while seated at the rear of a clothing store where he was employed as a security guard, he observed defendant and another man enter. After 10 to 15 minutes of browsing, defendant and his accomplice, ultimately identified as George Martin, moved behind a clothes rack and reappeared, wielding guns. Defendant ordered, “Nobody move, this is it,” but Radney reached for his revolver under his vest. Martin then shot Radney, who lost consciousness and collapsed. The offenders stole about $500 in cash as well as several articles of clothing.

Investigator Michael Hoke testified that he was assigned to investigate the shooting incident. He arrested Martin on August 16, 1972, pursuant to his investigation. Defendant, who was with Martin at that time, was not then arrested. Later that same day during Martin’s lineup, defendant came to the police station to inquire about the latter’s status with the police. Hoke told defendant that Martin was under arrest for the armed robbery of the clothing store and Radney’s shooting. Hoke left defendant to secure Officer Radney who was in the next room; when they returned approximately one minute later, however, defendant was gone.

Hoke stated that at 10 a.m. on August 23, 1972, he and Officer William Wagner, without a warrant, went to a hotel on East 67th Place and knocked on the door of defendant’s room. Defendant “came out of his apartment into the hall and closed the door behind him, at which time I informed * ° * [him] that he was under arrest for armed robbery.” Standing in just his boxer shorts, defendant asked to reenter his room to dress. They allowed him to do so in their company. Inside, they found and seized a loaded .38-caliber blue steel revolver in plain sight on top of the dresser and defendant’s pants. The pants were similar to those sold at the clothing store in that they lacked zippers and buttons, except that their label had been cut out. When defendant started to reach under the bed for his shoes, they observed and confiscated a sawed-off shotgun nine or 10 inches long.

The parties stipulated that the blue steel revolver found in defendant’s room was the weapon employed by Martin to shoot Officer Radney during the armed robbery.

As its only witness, the defense called Officer Radney to testify, who stated that prior to the incident he did not know defendant or his friend and that he provided the investigating officers with a description of the offenders while in the hospital.

Certain testimony was adduced at the evidentiary hearing on defendant’s motion to quash his arrest and suppress evidence which will also be set forth here in furtherance of a complete understanding of defendant’s arguments on appeal. At that hearing, Officer Wagner testified that he was assigned to investigate the robbery and shooting. A witness had provided the police with the license number of the vehicle used by the offenders. A license check revealed that one Herman Holmes was the registered owner. On August 17,1972, Holmes informed the officers that he had loaned the car to Martin on July 20; that defendant informed him that he participated in the incident; and defendant requested Holmes’ assistance in moving stolen clothing from his room. Wagner’s testimony concerning the circumstances of defendant’s arrest and subsequent search of his room is substantially consistent with that given by Investigator Hoke.

Also at the evidentiary hearing on defendant’s motion to suppress, defendant testified that Officers Hoke and Wagner knocked down his apartment door between 6:30 and 7 a.m. on August 23,1972, while he was still in bed with his girlfriend. Hoke pointed a gun at his head telling him he was under arrest. Wagner handcuffed him and took him out into the hallway although he was dressed only in his shorts, and then searched his room. Defendant denied knowing Holmes, or having a conversation with him, or being with Martin when the latter was arrested on August 16,1972.

Defendant contends that under Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371, his warrantless arrest and the subsequent search of his room was constitutionally improper, and he seeks a new trial. We disagree. The Payton court held that the fourth amendment prohibited the police from nonconsensual and warrantless entries into a suspect’s home for purposes of effectuating a routine felony arrest. Its decision was founded on the premise that the fourth amendment was primarily intended to protect the sanctity and privacy of the home from physical invasions by the police. (445 U.S. 573, 589, 63 L. Ed. 2d 639, 652, 100 S. Ct. 1371, 1381.) The court held that the paramount determinant is whether the intrusion physically occurs within the home not whether the intrusion is in the form of a search or an arrest:

“In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” (445 U.S. 573, 590, 63 L. Ed. 2d 639, 653, 100 S. Ct. 1371, 1382.)

Recently, the Illinois Supreme Court in People v. Abney (1980), 81 Ill. 2d 159, 407 N.E.2d 543, held that the Payton holding has always been judicially engrafted onto the Illinois arrest statute. Ill. Rev. Stat. 1979, ch. 38, pars. 107 — 1 through 107 — 14.

Defendant’s reliance on Payton is misplaced, because, according to the testimony of the officers, the arrest did not take place in defendant’s home. The “firm line” drawn by the fourth amendment at the entrance of defendant’s home was never crossed by the officers. Defendant’s arrest physically took place in the hotel corridor outside rather than inside defendant’s room. A hotel corridor is no more a constitutionally protected area than a hallway situated in an apartment building. (People v. Miller (1975), 30 Ill. App. 3d 643, 644, 332 N.E.2d 440; People v. Carroll (1973), 12 Ill. App. 3d 869, 876, 299 N.E.2d 134, cert. denied (1974), 417 U.S. 972, 41 L. Ed. 2d 1144, 94 S. Ct. 3180.) The door to defendant’s room was closed at the time of arrest. (People v. Wipfler (1977), 68 Ill. 2d 158, 165, 368 N.E.2d 870; People v. Clark (1956), 9 Ill. 2d 400, 404, 137 N.E.2d 820.) In determining that the arrest of defendant occurred outside of his home, it is entirely proper for the court to consider the trial testimony of witnesses in addition to evidence adduced at the pretrial hearing on a motion to suppress. (People v. Conner (1979), 78 Ill. 2d 525, 532, 401 N.E.2d 513; People v. Braden (1966), 34 Ill. 2d 516, 520, 216 N.E.2d 808; People v. Cowan (1971), 1 Ill. App. 3d 601, 602-03, 274 N.E.2d 683.) The arrest of the defendant outside of his home was lawful because, as counsel for the defendant concedes, the officers had probable cause on the basis of Holmes’ statement that defendant admitted participating in the incident and on their own dealings with the defendant at the time of Martin’s arrest and later at the police station. Ill. Rev. Stat. 1979, ch. 38, par. 107—2(b); People v. Lawson (1976), 36 Ill. App. 3d 767, 770, 345 N.E.2d 41.

The resulting search of defendant’s room also complied with the fourth amendment as a search incident to a lawful arrest. (People v. Robinson (1976), 62 Ill. 2d 273, 276, 342 N.E.2d 356.) The police officers were fully justified in following the defendant back into his room incident to his lawful arrest and in accordance with his request to reenter, since they could have reasonably concluded that the defendant should not be left out of sight where he might obtain a deadly weapon or attempt to escape. Once inside defendant’s room, the police acted properly when they confiscated the loaded revolver which was clearly visible on the dresser, retrieved the shotgun from under the bed as defendant reached for his shoes, and searched the articles of clothing defendant selected to wear, because all the items seized were either within plain view or the area of defendant’s immediate control.

We conclude that the arrest of the defendant and the subsequent search of his abode were constitutionally permissible.

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

Affirmed.

DOWNING and PERLIN, JJ., concur.


author: Mr. JUSTICE PERLIN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HIGINIO MUNOZ, Defendant-Appellant.
    First District (2nd Division)
    No. 80-2217
    Opinion filed November 3, 1981.

      Patrick G. Reardon, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr, Mary Ellen Dienes, and Ruth Stern Geis, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE PERLIN

delivered the opinion of the court:

The defendant, Higinio Munoz, was charged by information with the offense of burglary. Prior to trial, defendant filed a motion to suppress evidence. After an evidentiary hearing, the trial court denied defendant’s motion, holding that the arresting police officers had probable cause to enter defendant’s apartment. Defendant then filed a written motion to reconsider, which was also denied by the trial court. Thereafter, the parties agreed to a bench trial on stipulated facts. The trial court then found defendant guilty of theft and sentenced him to a penitentiary term of two years. On appeal, defendant claims only that the trial court erred in denying his motion to suppress.

We initially disposed of this matter, pursuant to Supreme Court Rule 23 (73 Ill. 2d R. 23), reversing defendant’s conviction since the investigating police officers’ warrantless, nonconsensual entry of defendant’s residence could not be justified on the basis of exigent circumstances. Because defendant’s conviction for theft was based solely on the presence of the burglary proceeds found in his apartment during that illegal search, we concluded that his conviction could not stand in view of the fact that such evidence should have been suppressed pursuant to defendant’s motion. In its petition for rehearing, the State contends that, since only one of two identifications of the physical proceeds of the theft should have been suppressed, defendant’s conviction should have been vacated and remanded for a new trial rather than granting defendant an outright reversal.

At the hearing on defendant’s motion to suppress, police investigator Kenneth Restis stated that on March 17, 1980, the complaining witness, Janos Czifra, reported that his apartment had been burglarized that morning. Two days later, Officer Restis and his partner went to the complaining witness’ residence and interviewed him. During that interview, the complainant gave Officer Restis a verbal description of a missing television set and a photograph of the missing stereo system.

The police officer then showed the photograph to the apartment building manager. The manager informed the officers that he had observed the stereo and a small portable television in defendant’s apartment on the day of the burglary and that defendant’s apartment was in the same complex. The two police officers and the manager then went upstairs to defendant’s apartment. Officer Restis knocked on the apartment door and, according to Restis, he then heard noises from inside the apartment which sounded like a person moving about and a door being opened. Officer Restis again knocked on the door, called defendant’s name and announced his office. After receiving no answer, the manager opened defendant’s door with his passkey. Without an arrest or search warrant, Officer Restis and the manager entered but observed no one there at the time. However, in the front room the two men observed the stolen television and stereo sets. The complainant was then brought to defendant’s apartment, and complainant identified the property.

On cross-examination, Officer Restis admitted that it was possible the noises he had heard came from somewhere other than defendant’s apartment. After hearing this testimony and the arguments of counsel, the court denied defendant’s motion to suppress the items seized.

In support of its assertion that defendant’s conviction should have been vacated and remanded for a new trial, the State calls attention to the fact that the physical objects taken in the theft were never introduced into evidence; that defendant’s conviction was based upon the complainant’s identification of those articles, which should have been suppressed, and the building manager’s identification of those same goods; and that, prior to the illegal search, but shortly after the theft had occurred, the building manager observed the proceeds of the theft in defendant’s apartment. The State argues that, since the building manager’s identification of those articles took place prior to the illegal search, such testimonial evidence was obviously admissible. For this reason, the State further maintains that such testimonial evidence is sufficient evidence on which to base defendant’s conviction for theft.

However, the State failed to introduce any evidence which would have indicated that the building manager was able to properly identify the missing television and stereo sets. For example, there was no testimony to the effect that these articles possessed any unique characteristics. Nor did the State demonstrate that the building manager was aware of the serial numbers of these items. Accordingly, we cannot conclude that defendant’s conviction for theft can be based solely on the building manager’s identification.

Moreover, defendant was convicted upon circumstantial evidence alone. Therefore, it is evident that the trier of fact inferred from the presence of burglary proceeds in defendant’s residence that defendant had committed theft in that he had exerted unauthorized control over the complainant’s property. In People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151, our supreme court concluded that a similar burglary inference violated the due process rights of the defendant where the State failed to introduce other evidence corroborating defendant’s guilt. Since the State did not introduce other corroborating evidence in the present matter, we must conclude, in light of Housby, that defendant cannot be convicted of theft by the use of a similar inference.

In addition, defendant was charged by information with the offense of burglary, not theft; however, he was convicted of theft. Such a finding operates as an acquittal on the burglary charge. (See People v. Gray (1977), 69 Ill. 2d 44,51-52, 370 N.E.2d 797.) Furthermore, since theft is not a lesser-included offense of burglary (People v. Heard (1980), 80 Ill. App. 3d 701, 707-08, 400 N.E.2d 65), the trial court erred when it convicted defendant of the former offense. See People v. Kimble (1980), 90 Ill. App. 3d 999, 1001, 414 N.E.2d 135.

For these reasons defendant’s conviction is reversed, and the State’s petition for rehearing is denied.

Judgment reversed; petition for rehearing denied.

HARTMAN, P. J., and DOWNING, J., concur.


text:
      In re ESTATE OF GEORGE L. COLEMAN, Deceased.—(AHAVIA SCHEINDLIN, as Mother and Next Friend of Noam Scheindlin, a Minor, Petitioner-Appellee, v. LISETTE COLEMAN, Respondent-Appellant.)
    First District (2nd Division)
    No. 80-2404
    Opinion filed November 3, 1981.
    — Rehearing denied December 1, 1981.
    Law Offices of Stephen Sonderby, of Chicago (Regan D. Ebert, of counsel), for appellant.
    Michael F. Maloney and Fishman, Fishman & Saltzberg, P. C., both of Chicago (Sidney Z. Karasik, of counsel), for appellee.
   Mr. PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

On May 23, 1980, Michael F. Maloney petitioned, as a creditor, for the issuance of letters of administration to Carol Ligmanowski as administrator of the estate of George L. Coleman, who died on June 3, 1974. Coleman’s widow, Lisette Coleman, contested the issuance of letters of administration on the ground that over three years had passed since Coleman’s death. On August 8, 1980, the court issued letters of administration. Lisette Coleman appeals, raising the issue of whether the court erred in issuing letters of administration more than three years after Coleman’s death. For the following reasons, we affirm.

The petition for letters of administration listed as unknown the value of any: real property; or income from real estate; or the amount of an automobile insurance policy. Accompanying the petition was an affidavit setting forth that the petitioner was an attorney representing Ahavia Scheindlin as mother and next friend of Noam, a minor; and that Noam Scheindlin was injured in an accident on April 18, 1972, at which time he was 5/2 years old.

On May 28, 1980, Lisette Coleman, through her attorney, filed a special and limited appearance and motion to quash and dismiss the petition for letters of administration on the ground that the three year nonclaim provision of section 18 — 12(b) of the Probate Act (Ill. Rev. Stat. 1979, ch. 110/2, par. 18 — 12(b)) barred the filing of any claims three years after decedent’s death.

A hearing was held on the petition on August 8, 1980, in which the court noted that the only issue before it was whether or not letters of administration should issue, not whether a claim against the estate should be barred, which issue was premature. The court consequently denied Lisette Coleman’s motion, and further ordered that section 18 — 12(b) does not bar the court from issuing letters of administration more than three years after decedent’s death.

Appellant asserts that no equitable consideration, including disability of a claimant, may be applied to extend the period for filing claims as articulated in section 18 — 12(b) of the Probate Act, which provides that all claims brought against an estate (with certain specified exceptions not relevant here) are “barred unless letters of office are issued upon the estate of decedent within 3 years after his death.” She argues the court thus erred in issuing letters of administration more than three years after Coleman’s death.

We note at the outset that nowhere in the record before us is there evidence that a claim has been filed against the estate. Thus, since no claim has yet been filed against which section 18 — 12(b) might be raised, the trial court properly refused to determine whether or not a claim against the estate should have been barred. Courts may not render advisory opinions except where required to do so by statute. (In re Estates of Rice (1979), 77 Ill. App. 3d 641, 396 N.E.2d 298.) Moreover, the issue of whether section 18 — 12(b) applies to bar claims against the instant estate is, under these circumstances, a hypothetical question not reviewable by this court. See In re Johnson (1977), 53 Ill. App. 3d 921, 369 N.E.2d 70; In re Matter of Creager (1944), 323 Ill. App. 594, 56 N.E.2d 649.

Further, appellee’s petition for letters listed, as the only asset of the estate, an automobile insurance policy, the amount of which was unknown. Section 18 — 12(b) only applies to “e ° ° claims barrable under this Section e ° which section ° ° does not bar actions to establish liability of the decedent to the extent the estate is protected by liability insurance.” (Ill. Rev. Stat. 1979, eh. 110/2, pars. 18 — 12(b), 18 — 12(a).) Whether any action brought by appellee would constitute a liability claim against decedent for which his estate is protected by said insurance policy, thus precluding the application of section 18 — 12(b) to the case at bar (cf. In re Estate of Garawany (1980), 80 Ill. App. 3d 401, 403, 399 N.E.2d 1024) is also a question, the determination of which would be premature, given the dearth of facts before us. For the foregoing reasons the trial court’s order is affirmed.

Affirmed.

STAMOS and DOWNING, JJ., concur.


author: Mr. JUSTICE McNAMARA

text:
    FRANKIE MAE DIXON, Plaintiff-Appellant, v. THE CITY OF CHICAGO, Defendant-Appellee.
    First District (3rd Division)
    No. 80-2816
    Opinion filed October 21, 1981.
    — Rehearing denied November 19, 1981.

      Terrance E. Leonard, John W. Lally, and Andrew A. Ziemba, all of Chicago, for appellant.
    Stanley Garber, Corporation Counsel, of Chicago (Robert R. Retke and Frank W. Nagorka, Assistant Corporation Counsel, of counsel), for appellee.
   Mr. JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Frankie Mae Dixon, brought this action for personal injuries charging the defendant city of Chicago with negligently failing to maintain the streets and sidewalks on a certain corner in the city. Plaintiff appeals from an order of the trial court granting summary judgment in favor of the city based on its finding that the city had no duty to maintain the property involved.

On January 30, 1974, plaintiff was walking west on the north side of Chicago Avenue in the city. As she reached the east curb of Pulaski Road a lunging dog caused her to step back onto a defect in that curb. She fell, injuring her knee.

Plaintiff’s complaint alleged that she had fallen and injured herself on a corroded “street and sidewalk” which the city had negligently failed to maintain safely. The city answered by denying plaintiff’s allegations of negligence but admitting that it “owned, maintained, managed and controlled, and held out to the public as being reasonably safe for pedestrian travel, certain public streets improved with public sidewalks, including the northeast corner of Chicago Avenue and Pulaski Street ft # # ”

At plaintiff’s deposition on February 23, 1979, plaintiff revealed that the defect which caused her injuries was actually on the curb rather than on the sidewalk or street. She described the precise location of the defective curb to be on the east side of Pulaski in the crosswalk area just north of Chicago Avenue.

The city thereafter filed a motion for summary judgment claiming that the defective curb was under the maintenance jurisdiction of the State of Illinois and that the city had no duty to maintain it. State responsibility for the maintenance of the curb was asserted by Joseph Roster, district safety and claims manager for the Illinois Department of Transportation, first by affidavit and later at an evidentiary hearing.

On appeal plaintiff initially contends that because the city, in its answer to the complaint, admitted that it “owned, maintained, managed and controlled the streets and sidewalks” in question, it is now estopped from denying control over the curb at that location.

When a statement of fact is admitted in the pleadings it becomes a judicial admission which binds the party making it. The other party is thereafter not required to introduce any evidence in support thereof. (State Security Insurance Co. v. Linton (1978), 67 Ill. App. 3d 480, 384 N.E.2d 718; Western Life Insurance Co. v. Chapman (1975), 31 Ill. App. 3d 368, 334 N.E.2d 806, cert. denied (1976), 424 U.S. 927, 47 L. Ed. 2d 337, 96 S. Ct. 1140; Hastings v. Abernathy Taxi Association, Inc. (1973), 16 Ill. App. 3d 671, 306 N.E.2d 498.) The city made such an admission of fact as to its ownership of and control over the streets and sidewalks on the northeast corner of Chicago and Pulaski. It did not, however, admit ownership of and control over the curb. Although an admission of fact carries with it an admission of other facts necessarily implied therefrom (Bennett v. Benton State Bank (1928), 249 Ill. App. 539), an admission should not be construed as being broader than the allegations or facts admitted. (Southern Illinois Conference of the Methodist Church v. City of Edwardsville (1975), 33 Ill. App. 3d 642, 342 N.E.2d 315; Affiliated Realty & Mortgage Co. v. Jursich (1974), 17 Ill. App. 3d 146, 308 N.E.2d 118.) Thus a party is not bound by mere permissible inferences of facts admitted. In the present case, the city’s admission of ownership of and control over the streets and sidewalks is not an admission that it owns and controls the curb. The trial court did not err in allowing the city to show that the State, rather than the city, owns and controls the curb in question.

Plaintiff next contends that summary judgment was improper because an issue of material fact, whether or not the State exclusively owns and controls the curbs in question, is yet unresolved.

Section 4- — 203 of the Illinois Highway Code (Ill. Rev. Stat. 1979, ch. 121, par. 4 — 203) provides in pertinent part:

“The Department [of Transportation] may e 6 ° add additional highways to the State highway system by ° * ° taking over highways from * 6 ° the municipal street system ° # Whenever any part or portion of any such highway which is situated within the corporate limits of any municipality is hereafter or has heretofore been taken over, the Department shall have exclusive jurisdiction and control over 060 such highway * * * which has been taken over by the Department, and for the maintenance of which the Department is responsible ° °

The State Department of Transportation publishes a listing of streets within the city of Chicago which are owned and maintained by the State of Illinois. The relevant portion of this listing was attached to the city’s motion for summary judgment. It indicates State ownership of and maintenance responsibility over Pulaski Road and curbs from 28 feet north of the center line of Chicago Avenue, in a northerly direction, to 20 feet south of the center line of Augusta Boulevard. Therefore, if the defective curb in question is on Pulaski Road at least 28 feet north of the center line of Chicago Avenue, it is on State property. Other exhibits disclose this to be the fact. A map prepared for pavement marking purposes by the city department of streets and sanitation, filed by the city, showed Chicago Avenue at Pulaski Road to be 56 feet wide from curb to curb. Therefore, city control ends and State control commences at the northern edge of Chicago Avenue. All of Pulaski Road and curbs which extend north of Chicago Avenue are part of the State highway system. Plaintiff’s photographs of the defective curb, attached to her response to the city’s motion for summary judgment, also disclose that the curb was located on the east side of Pulaski Road in the crosswalk area north of Chicago Avenue. This is clearly State property. Consequently, the trial court was correct in finding that no material question of fact remains as to ownership and control of the defective curb.

Plaintiff also contends that even if the defective curb was on State property, the city, as a matter of law, had a concurrent obligation to maintain it.

This position is directly contrary to the unambiguous language of the statute which authorizes State control. As we have stated, the Illinois Highway Code gives the State “exclusive jurisdiction and control over” municipal streets taken over by the State pursuant to section 4 — 203. This provision was applied by this court in Krajicek v. West Towns Bus Co. (1977), 48 Ill. App. 3d 570, 363 N.E.2d 89. In that case the town of Cicero was charged with negligently maintaining and failing to plow Cicero Avenue. Since the street was a highway taken over by the State pursuant to section 4 — 203, and since the town had not voluntarily plowed the street, the court found no duty on the part of the town to maintain the street.

Plaintiff in part bases her theory of concurrent liability on section 1 — 102 of the Illinois Highway Code. That section recites that highway transportation development requires the cooperation of all agencies, State, county, township and municipal. Citing Janssen v. City of Springfield (1980), 79 Ill. 2d 435, 404 N.E.2d 213, plaintiff urges that section 1 — 102 should be interpreted as creating a concurrent duty on the part of the city to maintain highways taken over by the State. The court in Janssen, however, did not so interpret section 1 — 102. In Janssen plaintiff was thrown from his motorcycle and seriously injured when he ran into a portion of a traffic island which projected into the street. The traffic island and the projection were owned by the State. The city, however, owned and controlled the street approaching the projection. The court recognized a legislative intent in section 1 — 102 that State and local authorities cooperate in the management of highways in which both have an interest. The court held that the legislative call for intergovernmental cooperation imposed upon the city a duty to place on its own approaching street a sign warning of the danger ahead. It did not go so far as to impose on the city the duty to alter the island to eliminate the hazard. This duty, the court held, rested exclusively with the State.

Likewise, in the present case, the duty to repair the curb rested exclusively with the State. Since the goal of section 1 — 102 is the improvement of the highway transportation system, we will not extend Janssen so as to impose upon a municipality a duty to place signs on the approaching sidewalk to warn pedestrians of broken pavement ahead.

Plaintiff next argues that her theory of concurrent liability is supported by section 9 — 3—1 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 9 — 3—1.) Section 9 — 3—1 provides in pertinent part:

“Any municipality may make a local improvement whenever the public necessity requires such improvement, subject only to the limitations prescribed in this Division 3. This Division 3 shall not be construed as repealing any other laws with respect to local improvements, but shall be considered as an additional grant of power for the purposes herein set out.” (Emphasis added.)

Section 9 — 3—1 essentially authorizes a municipality to make local improvements on its own city streets. Although the court has recognized a duty on the part of a municipality to maintain its streets and sidewalks in a reasonably safe condition (First National Bank v. City of Aurora (1978), 71 Ill. 2d 1, 373 N.E.2d 1326), we find no authority, either statutory or judicial, for extending that duty to encompass municipal maintenance of streets and curbs owned by the State.

Plaintiff cites City of Chicago v. Sanitary District (1949), 404 Ill. 315, 89 N.E.2d 35, to support her contention that the city’s duty to maintain streets extends to streets owned or constructed by another governmental entity. There, the court found the city liable for the maintenance of bridges built by the sanitary districts, but the case is clearly distinguishable from the present one. The bridges were constructed by the sanitary district at points in the city where an artificial drainage channel intersected with major thoroughfares. Although the court recognized that the sanitary district initially had a duty to build the bridges so as to restore the highway to its former condition of usefulness, it held that the maintenance of the bridges thereafter was a city, not a district responsibility. Unlike the present case, the streets and bridges involved, at all relevant times, belonged to and were controlled by the city. While the duty of a city to maintain its own streets is beyond question, it is not an issue in the present case.

Plaintiff finally refers to sections 27 — 398 and 33 — 5 of the Municipal Code of Chicago to support her theory of concurrent liability. Section 27 — 398 authorizes the commissioner of streets and sanitation to “designate and maintain, by use of appropriate devices, marks, or lines upon the surface of the roadway, crosswalks, at intersections where in his opinion there is particular danger to pedestrians * * Plain and unambiguous provisions of a statute do not need construction. (Nordine v. Illinois Power Co. (1965), 32 Ill. 2d 421, 206 N.E.2d 709.) This ordinance clearly authorizes the commissioner to maintain the lines, marks or whatever device is selected to designate the crosswalk area. No duty to maintain the curbs can be read into this ordinance. Nor can we find any authority for imposing upon the city the duty of maintaining the pavement and curbs which fall within the crosswalk area of a State owned highway.

Section 33 — 5 imposes a penalty upon “[a]ny person who shall injure or tear up any pavement, side or cross walk or any part thereof 999 without 999 permission from the Commissioner of Streets and Sanitation * 9 9Again, the plain meaning of this ordinance authorizes the commissioner to penalize persons who tear up city pavement without permission. It also implies on the part of the commissioner the power to grant such permission. There is no language in the ordinance, however, which indicates that this power extends to streets owned by the State rather than the city. The trial court properly found no concurrent duty on the part of the city to maintain property under the exclusive maintenance jurisdiction of the State of Illinois.

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

Judgment affirmed.

RIZZI, P. J., and McGILLICUDDY, J., concur.


author: Mr. JUSTICE LINN

text:
    FIRST NATIONAL BANK AND TRUST COMPANY OF EVANSTON, Trustee, Plaintiff-Appellee and Cross-Appellant, v. EDWARD J. ROSEWELL, Treasurer of Cook County, et al., Defendants-Appellants and Cross-Appellees.— (THOMAS C. HYNES, Assessor of Cook County, Defendant.)
    First District (4th Division)
    No. 80-1942
    Opinion filed October 22, 1981.
    Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey and Michael F. Baccash, Assistant State’s Attorneys, of counsel), for appellants.

      James A. Rooney, of Chicago, for appellee.
   Mr. JUSTICE LINN

delivered the opinion of the court:

Defendant, Edward Rosewell, in his position as county collector, appeals from an order entered in the circuit court of Cook County permanently enjoining him from collecting approximately $700,000 in 1978 real estate taxes allegedly owed by plaintiff, First National Bank and Trust Company of Evanston, the legal title holder of improved business property in Evanston. Plaintiff cross-appeals from a judgment entered in favor of defendants Harry Semrow and Seymour Zaban, in their positions as Commissioners of the Board of (Tax) Appeals, on a civil rights claim for damages and injunctive relief brought by plaintiff under 42 U.S.C. §1983 (1976).

We affirm.

Facts

Plaintiff holds legal title to improved business property in Evanston in a land trust for a limited partnership known as American Plaza Associates (hereinafter the partnership). In October 1977, the partnership completed construction on the property of an 18-story office building. This office building was the sole income producing asset of the partnership. Following the completion of the building, the partnership began the process of renting space in the building. By the end of 1978, the building was only partially occupied. In the middle of 1978, the partnership received notice from defendant Thomas Hynes, in his position as county assessor, that the assessed value of the property for 1978 had been determined to be approximately $8 million. This represented a fair cash value of the property of approximately $20 million since the applicable assessment rate was 40 percent. The $8 million assessment was an increase of $6 million over the 1977 assessed value of $2 million.

After receiving the notice, the partnership filed a complaint with the assessor seeking a decrease in the 1978 assessment to $3.1 million. In its complaint, the partnership alleged that the building on the property had cost $17 million to construct and even under a replacement cost approach the $8 million assessment representing a $20 million fair cash value was excessive. The partnership pointed out that the office building was only in its first year of operation, that it had only been partially rented, and that the estimated gross income the partnership would receive from the property in 1978 was approximately $3 million. The partnership requested that the assessor take into consideration the problem of renting the building in its first year, and requested that the assessor use primarily an income capitalization approach to determine the fair cash value of the property. This request was based on guidelines used by the assessor and known to the partnership as being applicable to income producing property. After taking certain deductions from gross income usually allowed by the assessor for determining the figure to be capitalized, the partnership contended that the fair cash value of the property based on an income capitalization approach was a little less than $8 million and the assessed value for 1978 should be $3.1 million.

After being supplied with necessary documentation, the assessor’s employee in charge of handling the complaint agreed with the partnership that the income capitalization approach should be given primary consideration, but disagreed with some of the figures supplied by the partnership. The employee determined that the fair cash value for the property should be set at approximately $8.5 million with an assessed value of $3.4 million. The employee, after receiving authorization, told the partnership that he would change the assessor’s rolls to show an assessed value for 1978 of $3.4 million. The employee also told the partnership that this assessed value would apply for 1978 only and the property would be reassessed in 1979 when the income from the property would probably be higher.

The assessor’s decision to lower the 1978 assessed value to $3.4 million was made in early November 1978. After the decision was made, it was discovered that the assessor’s rolls for 1978 for Evanston had already been certified to the Board of Appeals. Once certified, assessed values can only be changed by the Board of Appeals. The assessor’s employee told the partnership what had occurred and suggested that the partnership could pursue either of two statutory methods for getting the assessment changed. The employee said that the assessor could certify a mistake to the Board (see Ill. Rev. Stat. 1979, ch. 120, pars. 594(2), 603), or the partnership could file a complaint with the Board and the assessor would file a recommendation that the assessed value be changed to $3.4 million (see Ill. Rev. Stat. 1979, ch. 120, par. 594(1)).

The partnership chose the latter course and, in late November 1978, it filed a complaint with the Board requesting a decrease in the assessment to $3.1 million. The assessor filed a recommendation that the assessed value be changed to $3.4 million. Thereafter, without explanation, the Board of Appeals, consisting of Commissioners Semrow and Zaban, dismissed the complaint and left the assessed value at $8 million.

In 1979, when the 1978 real estate taxes became due, the partnership paid approximately $600,000 in real estate taxes, the amount it would have owed if the $3.4 million assessment recommended by the assessor had been accepted by the Board. The partnership refused to pay an additional $800,000 in taxes allegedly owed based on the $8 million assessment. Instead, the partnership (through plaintiff) brought the present three-count action in the circuit court of Cook County.

In count I, the partnership sought a permanent injunction against defendant Rosewell to prevent him from collecting the additional $800,000 in taxes and any penalties or interest owed on the amount because of the partnership’s failure to pay the taxes on time. The partnership alleged that the $8 million assessment was constructively fraudulent because it was almost 2% times the assessment determined by the assessor himself to be correct and because the Board of Appeals had failed to apply any known standards to determine that the $8 million assessment was correct. The partnership alleged that its remedy at law, to pay the taxes under protest and then file its objections in court when the collector filed his application for judgment (see Ill. Rev. Stat. 1979, ch. 120, pars. 675, 716), was inadequate. The partnership pointed out that it did not have the assets to pay the additional taxes because the partnership’s sole source of income was the office building, and it did not have the cash on hand to pay the additional taxes since its total net income from the first year of operation was less than the amount of the taxes. The partnership admitted that it could borrow the amount necessary to pay the tax but contended it would have to pay 13.5 percent per year in interest (the prime rate at the time the complaint was filed). The partnership alleged that, on the average, it takes two years for an improper tax to be returned to the taxpayer, and thus it would cost the partnership approximately $200,000 to pursue its legal remedy since no interest is paid by the collector on amounts refunded to taxpayers. The partnership asserted that it was unreasonable to require it to pursue its legal remedy in the circumstances of this case and injunctive relief should be granted.

In count II, the partnership sought legal and equitable relief under 42 U.S.C. §1983 (1976). The partnership alleged that the Board’s arbitrary determination to leave the assessment at $8 million denied it equal protection of the laws under the Fourteenth Amendment to the United States Constitution. The partnership sought damages of $100,000 from Commissioners Semrow and Zaban for depriving it of its constitutional right and sought an injunction against defendant Rosewell to prevent him from collecting the additional taxes.

In count III, the partnership requested that a writ of certiorari be issued to the Board of Appeals, that the proceedings in which the Board determined that the $8 million assessment was correct be quashed, and that an injunction be issued to prevent Rosewell from collecting the additional taxes.

The defendants answered the complaint denying all of the essential allegations except that defendant Thomas Hynes, in his position as county assessor, admitted that the $8 million assessment was incorrect and admitted that the assessor had recommended a $3.4 million assessment. The assessor asserted, however, that upon further review of the information it had on file (some of it supplied by the partnership after the complaint was filed), the assessor believed that the proper assessed value of the property for 1978 should have been approximately $4.3 million.

The case went to trial. During plaintiff’s case-in-chief various documents and testimony were presented to show that the partnership had a gross income of approximately $3 million in 1978 and that, after expenses, it did not have the cash on hand to pay the taxes. Plaintiff called various witnesses, among whom were employees of the assessor’s office who had worked on plaintiff’s file. These employees explained that the assessor uses three basic methods to determine the fair cash value of property: the market approach, the income capitalization approach and the replacement cost approach. The employees explained that the assessor had established various standards to be followed in determining the fair cash value of any particular piece of property and these standards were made known to persons who complained to the assessor about the assessed value of property.

It was brought out that all three methods of evaluation would be considered by the assessor with the market approach — an examination of recent sales of similar property in the same general area — being the preferred method. However, on office buildings, the market approach was admitted to be of little value because of a usual lack of recent sales of similar structures. For office buildings, the assessor looks primarily to the income capitalization approach and the replacement cost approach.

One of the employees that handled the partnership’s file stated that with new office buildings, the assessor would give particular consideration to the problem of getting the building filled with tenants in the first year of operation and that the income capitalization approach would be given primary consideration, though all approaches were considered. The employees testified that after considering the partnership’s file, they determined that the $3.4 million assessment was correct. One employee who had not seen the file until after it was updated following the filing of the complaint said that he would have recommended an assessed value of $4.3 million if all the information had been available in 1978. None of the employees contended that the $8 million assessment was correct.

Plaintiff called defendant Semrow under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 60). Semrow stated that he had been on the Board of Appeals for 10 years. The bulk of plaintiff’s examination of Semrow consisted of an attempt to determine why the Board had dismissed plaintiff’s complaint and left the assessed value at $8 million. He said the Board dismissed the complaint because it had not been provided sufficient evidence to reach a reasonable conclusion. He said he had been confused because he did not understand how a piece of property with a newly constructed $17 million office building on it could have- a fair cash value of only $8 million. He said that he believed that plaintiff had failed to meet its burden of proof to show that the $8 million assessment was incorrect. When asked what plaintiff had to prove beyond showing that the assessor himself believed the proper assessment should be $3.4 million, Semrow failed to give any explanation. When asked what standards the Board applies in determining a proper assessment, Semrow answered it depended on the facts of the case. When asked whether Semrow, as a member of the Board, used the same standards as the assessor to determine value, Semrow answered that he did not know what the assessor did, that the Board was totally autonomous and used its own standards. When again asked what those standards were, Semrow repeated that it depended on the facts of the case. When asked whether Semrow, as a member of the Board, had used a replacement cost approach or an income capitalization approach, Semrow answered, at one point, that he considered a replacement cost approach, - but, at another point, he said, “I didn’t establish a cost approach, I didn’t establish an income approach, I based my whole judgment on the way I answered “ ° ° before.”

At one point in the examination, Semrow claimed that he may have dismissed the complaint because, though the income statements supplied to him were verified, he had requested an audited statement and the partnership had failed to provide one. (The partnership had informed him that it would try to get one, but the complaint was dismissed before one was supplied.) However, when Semrow was asked why the audited statement was considered important, he replied that he did not remember.

Plaintiff also showed that the assessor had determined that the 1979 assessed value of plaintiff’s property would be approximately $6 million.

At the conclusion of plaintiff’s case-in-chief, the trial court granted a motion for judgment in favor of the defendants on count II of the complaint, the civil rights claim, but denied the motion as to the other counts.

Defendants presented evidence to show that the property was subject to an outstanding mortgage of $20 million. Defendant also submitted into evidence a partnership letter written in 1978 which mentioned that a third party, who did not testify, had made a tentative offer to purchase the property with the building for $25 million. The court allowed this letter to be admitted as proof that an offer was made but refused to allow it as evidence to prove that the property had a market value of $25 million. No evidence was presented to show that the Board had considered the mortgage or the offer when it determined that the $8 million assessment was correct. No one ever testified to the belief that the $8 million assessment was correct, including Semrow, who simply said he did not believe plaintiff had presented sufficient evidence to show it was incorrect.

In final argument, defendants’ attorney, after contending that plaintiff had failed to show that the remedy at law was inadequate or that the $8 million assessment was constructively fraudulent, went on to argue what he believed to be the proper assessment of the property for 1978. He presented a chart with the partnership’s income figures for 1978. Based on these figures, the attorney argued that the 1978 assessed value of the property should be set by the court to be $3.9 million based on an income capitalization method.

In its final order, the trial court found that the $8 million assessment was constructively fraudulent, that plaintiff had no adequate remedy at law, and that a permanent injunction should be issued. Nevertheless, the court found that the proper assessment for 1978 should have been $3.9 million, the amount suggested by defendants’ attorney. Based on this finding, the court ordered plaintiff to pay any additional tax owed based on the $3.9 million figure. The court also granted plaintiff’s request for a writ of certiorari to the Board and quashed the proceedings had before the Board in which it affirmed the $8 million assessment.

Defendants Rosewell, Semrow, and Zaban appealed. Rosewell has challenged the court’s issuance of an injunction, and Semrow and Zaban have challenged the court’s issuance of a writ of certiorari. Defendant Hynes has not appealed. Plaintiff cross-appealed and has challenged the court’s order granting defendants’ motion for judgment on the civil rights claim brought under 42 U.S.C. §1983 (1976).

Opinion

I

Defendants’ Appeal

Injunctions to prevent the collection of real estate taxes are generally allowed in only three situations: (1) when the property is exempt from taxes; (2) when the tax is unauthorized by law or void; (3) when the tax, or the assessment upon which the tax is based, is fraudulent or constructively fraudulent and the remedy at law is inadequate. (Clarendon Associates v. Korzen (1973), 56 Ill. 2d 101, 306 N.E.2d 299.) It is the third situation which is alleged to be applicable to this case. Defendants assert that plaintiff failed to show that the remedy at law was inadequate or that the $8 million assessment was constructively fraudulent. We hold that in the circumstances of this case the injunction to prevent the collection of the additional taxes was properly granted.

Constructive Fraud

Defendants argue that plaintiff failed to show that the $8 million assessment was constructively fraudulent. They assert that based on a replacement cost approach for determining fair cash value, the property could have been deemed to be worth $20 million in 1978. They also argue that the letter mentioning the 1978 offer to purchase the property for $25 million should have been admitted as evidence tending to show the fair cash value of the property under the market approach. Based on this, defendants claim that the property could have been deemed to be worth $20 million in 1978 under the market approach. Since either of the above approaches would give an assessed value of the property in 1978 of $8 million, defendants contend that plaintiff failed to show the $8 million assessment was excessive at all and thus failed to meet its burden to prove the assessment was constructively fraudulent.

Even assuming that the letter should have been admitted as evidence of value, defendants’ argument is still unacceptable. The question here is not what standards should have been used to determine value, but whether the Board of Appeals used any standards. When plaintiff went before the Board of Appeals, it had the burden of proving the $8 million assessment was improper. Once the assessor, the official whose duty it is to determine assessed values, admitted to the Board that the $8 million assessment was incorrect and a $3.4 million assessment was correct, plaintiff had undoubtedly met its burden. Contrary to Commissioner Semrow’s belief at trial, the Board could not ignore the assessor’s recommendation entirely. The Board is not an autonomous body that can set its own standards for determining assessed values. Under the law, the assessor and the Board are required to act jointly in establishing standards for determining assessed values. (Ill. Rev. Stat. 1979, ch. 120, par. 494.) Apparently, in Cook County, only the assessor has made public the standards used for determining assessed values. (See Ganz & Laswell, Review of Real Estate Assessments — Cook County (Chicago) vs. Remainder of Illinois, 11 J. Mar. J. Prac. & Proc. 16 (1977).) However, it must be assumed that these standards were adopted in accordance with the law, meaning that the assessor and the Board concurred in their adoption. Hence, the Board was bound to apply the same general standards used by the assessor.

The Board, perhaps, could have determined that the assessor should not have relied primarily on the income capitalization approach under the facts of the particular case, but the Board had to use known and existing standards before it could reject the assessor’s recommendation outright. In the present case, it is obvious from Commissioner Semrow’s testimony that the $8 million assessment was arbitrarily affirmed. The only understandable reason given by Semrow for affirming the assessment was that he was confused, and we believe that if a taxpayer is about to be placed in a position of owing a million dollars in real estate taxes, there should be more justification than the simple fact that a public official was confused.

It is peculiar in this case that no one at trial ever testified to the belief that the $8 million assessment was correct. Commissioner Semrow merely stated that he believed plaintiff had failed to meet its burden in proving the $8 million assessment was improper. By the conclusion of the trial, even the defendants’ attorney was arguing for a $3.9 assessment. This argument was actually adopted by the trial court.

From all of the facts in this case, it is clear that plaintiff met its burden of proving the $8 million assessment for 1978 was excessive and constructively fraudulent. The assessor admitted, from the beginning, that it was excessive. The assessor admitted that under applicable standards the proper assessment was between $3.4 and $4.3 million. The Board of Appeals had no known reason for affirming the $8 million assessment. The 1979 assessment has been set at only $6 million. The defendants’ attorney argued that a $3.9 million assessment was proper. Obviously, the trial court was correct in finding the $8 million assessment constructively fraudulent. Cf. People ex rel. Nordlund v. Lans (1964), 31 Ill. 2d 477, 202 N.E.2d 543.

Adequate Remedy at Law

Defendants argue that plaintiff failed to show the remedy at law was inadequate. Citing Clarendon Associates v. Korzen (1973), 56 Ill. 2d 101, 306 N.E.2d 299, defendants contend that plaintiff, to prove the inadequacy of the remedy at law, had to show the remedy at law was “unavailable.” Defendants contend that to do this plaintiff had to show that it was impossible for it to pay the taxes under protest and challenge the collector’s application for judgment in court. Defendants argue that since the partnership admitted it could borrow the money to pay the taxes, the “unavailability” of the remedy at law was not shown. Defendants, in the alternative, contend, that even if the partnership need not have shown that it was unable to borrow the money to pay the taxes, the partnership should have been required to show that all of the partners, from their personal assets, could not have paid the taxes, and not just merely that the partnership entity did not have the funds to pay the taxes.

Though Clarendon Associates v. Korzen contains language to the effect that an injunction against the collection of taxes should be denied unless the taxpayer shows the remedy at law is unavailable, the language of that opinion was tempered somewhat in the subsequent opinion of Hoyne Savings & Loan Association v. Hare (1974), 60 Ill. 2d 84, 322 N.E.2d 833. There, the supreme court held that even when a taxpayer can pay the taxes, rare cases may present themselves where it would be extremely unjust to deny an injunction and require a taxpayer to pay the taxes under protest and forego the interest on his payment. We believe the present facts present such a case.

Stripped to the basics, this case presents the following scenario. Defendants contend that plaintiff should be denied an injunction and be required to lose over $200,000 in interest by pursuing its legal remedy of paying the taxes under protest and then challenging the collector’s application for judgment in court. Defendants make this contention though the assessor himself has always admitted that the $8 million assessment was excessive and that the taxpayer should pay taxes based on an assessment of $3.4 million to $4.3 million. Defendants make this contention despite their own argument that a $3.9 million assessment was proper and that the taxpayer should pay a tax based on that assessment. In essence, defendants contend that plaintiff should be required to lose over $200,000 in interest to pursue its legal remedy, not because there is any possibility that plaintiff owes an additional tax based on the $8 million assessment, but merely because a member of the Board of Appeals was confused. Clearly, it would be extremely unjust to require plaintiff to pursue its legal remedy in this case. Therefore, even assuming that the partnership could have paid the taxes, we would still hold that the injunction was properly issued in this case.

II

Defendants also Contend that the trial court erred in granting the writ of certiorari and quashing the proceedings had before the Board when it affirmed the $8 million assessment. In light of our decision on the constructive fraud count, we find we need not address this issue. The primary relief sought by plaintiff under count I of its complaint, the constructive fraud count, and count III, the writ of certiorari count, was the issuance of an injunction to prevent the collection of the additional taxes. Since we have found that the injunctive relief was properly granted under the constructive fraud count, it would be superfluous to consider whether the same relief should have been granted under the writ of certiorari count. Accordingly, we simply affirm the trial court’s findings under count III without expressing any opinion as to whether a writ of certiorari was properly granted.

III

Plaintiffs Cross-appeal

Plaintiff has cross-appealed from the judgment entered for defendants at the conclusion of plaintiff’s evidence on the civil rights claim brought under 42 U.S.C. §1983 (1976). In that claim plaintiff accused Commissioners Semrow and Zaban of violating plaintiff’s right of equal protection of the laws (U.S. Const., amend. XIV) by affirming the $8 million assessment without applying any known standards of valuation. Plaintiff sought damages of $100,000 from Semrow and Zaban and an injunction against Rosewell to prevent him from collecting the additional taxes based on the $8 million assessment.

In entering judgment for defendants, the trial court found, after weighing the evidence, that plaintiff had failed to present a prima facie case against defendants.

We note that plaintiff only claimed a violation of equal protection of the laws and not a violation of due process. From the evidence at trial plaintiff presented an arguable case for violation of due process in that Semrow failed to apply any standards in affirming the $8 million assessment but there was little evidence from which a violation of equal protection could be inferred. We also note that no direct evidence was presented against Commissioner Zaban and the only evidence on damages was the damage plaintiff would suffer if it was forced to pay the additional taxes. At oral argument, plaintiff indicated that the civil rights claim was asserted primarily as another basis for obtaining the injunction and did not indicate any desire to amend its complaint or pursue the claim any further if the injunction were affirmed under the constructive fraud count. Hence, for all of these reasons, we affirm the judgment entered for defendants on the civil rights claim.

Accordingly, for the reasons noted, we affirm.

Affirmed.

JOHNSON and JIGANTI, JJ., concur.


author: Mr. JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENNIS CALDERON, Defendant-Appellant.
    First District (5th Division)
    No. 80-1412
    Opinion filed October 23, 1981.

      Ralph Ruebner and Barbara Kamm, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr and Rimas F. Cernius, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Following a jury trial, defendant was convicted of the offense of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 2) and sentenced to nine years in the penitentiary. On appeal, he contends that: (1) his warrantless arrest in his home was unauthorized and made without probable cause, mandating the suppression of the evidence obtained as a result therefrom; (2) the trial court erred in failing to suppress a statement given by defendant prior to receiving Miranda admonishments; and (3) the trial court abused its discretion when it employed an arbitrary structure for determining defendant’s sentence and when it failed to consider his rehabilitative potential in assessing the penalty.

The pertinent evidence adduced at trial is as follows:

Junior Luciano testified that he owned a jewelry store on 26th Street in the city of Chicago. On February 24,1979, he closed the store at 9 p.m. Since he had no safe at the store, he put jewelry and the receipts of the day in a briefcase and a plastic shopping bag and placed them in the back seat of his car. Luciano dropped off his wife and children at his home at 1061 North Marshfield at about 10:30 that evening. He then drove southbound on Marshfield to find a parking space. As he was parking his car on the west side of the street, he noticed a green car parked directly opposite of his car on the east side of Marshfield facing north with two persons in it. It was dark, and there was a lot of snow on the ground.

He got out of the car and reached for the briefcase and bag. When he turned around, a man standing a few feet away from him pointed a gun at him and yelled, “Give me the green.” Another man was positioned on the side of the green car. The car’s engine was running, the headlights were off, and the passenger’s door was open. Both wore nylon stockings over their faces.

Luciano told the gunman that everything was in the briefcase. The man searched him, picked up the bag and the briefcase, and walked backwards to the green car. The gunman then entered the driver’s side, the other man got in the passenger’s side, and they drove off. Luciano pulled out his gun and fired two or three shots at the car. One of the shots shattered the back window of the car and it crashed into a parked car about three houses north of the crime scene.

The two men exited the car and ran north on Marshfield. Luciano pursued them. The gunman, who was then carrying only the briefcase, fired a shot at Luciano. Luciano ducked into a pile of snow, and returned a shot at the two men as they ran northbound. He followed them as they ran north to Division and east to Milwaukee, but then lost track of them. When Luciano returned to the crashed car, the police were there. The assailants had left the shopping bag containing the jewelry in the car.

At about 4 o’clock the next morning, Luciano went to the police station and identified some jewelry as that which had been placed in the briefcase the previous night. Later, at about 7 o’clock that evening, he viewed a lineup and picked out a man as the one who had accosted him with the gun. He had previously known this person as “Gregory.” Gregory had been in his sister-in-law’s wedding party and was once a visitor at Luciano’s house. Luciano later learned his name to be Gregory Buenfil. Defendant was also present in the lineup, but Luciano did not identify him.

According to Luciano, there had been $700 in cash in his briefcase, but he only recovered $141. The jewelry taken was valued between $15,000 and $25,000.

Paul Gonzalez testified that he had been married to Ida Sonya Gonzalez at one time and they had lived at 1040 W. Hollywood in Chicago. He had owned a 1972 green Camaro during his marriage to her, but the car was awarded to her in their divorce settlement. He did not have possession of the car, nor did he see it for five months previous to the day of the crime.

Investigator Ralph Vucko of the Chicago Police Department testified that he went to the police station at about 11:30 p.m. on February 24,1979, and spoke to Luciano and some other police officers. He then proceeded to the scene of the incident and examined the crashed car. He found a bullet hole in the roof section of the car near the rear window and several bills and receipts inside the car. They bore the name Paul Gonzalez and the address 1040 W. Hollywood, Apartment 507. A temporary Illinois registration permit taped on the front windshield showed the name Paul Gonzalez, and the address, 932 N. Hamlin. The car keys were still in the ignition.

Vucko returned to the police station and again conversed with Luciano and the other officers. He then went to 932 N. Hamlin, arriving at about midnight. A person who identified himself as Gonzalez’ father told him that his son was not there. He and three other officers then proceeded to the Hollywood address where Vucko opened the vestibule door of the apartment building with one of the keys recovered from the crashed car. When the officers reached apartment 507, they heard voices inside. With revolver drawn, Vucko knocked on the door and announced his office. A woman opened the door. He asked if anyone else was there, but she gave no response. Vucko then saw someone looking through a partially opened door in the apartment. He ordered the person to come out. Defendant, who was dressed in undershorts and a T-shirt, came out from behind the door and immediately assumed a prone position on the floor.

Vucko searched defendant and asked him where his car was. Defendant replied that it was parked in the rear of the building. Vucko and another officer accompanied defendant to the bedroom so that he could get dressed. In the bedroom, Vucko informed defendant of his Miranda rights. Defendant indicated he understood these rights. At first, defendant stated that he did not know anything about the robbery on Marshfield. Vucko then showed defendant the keys recovered from the green car, and defendant admitted that they were his. Defendant told Vucko that earlier that day Gregory Buenfil phoned him, and he later picked Buenfil up at his house. They drove around and parked on the 1000 block of Marshfield at about 10 p.m. and drank beer. Another car pulled up, and Buenfil crossed the street and “stuck up the guy” who got out of the car. During the robbery, defendant got out of the car, stood for awhile, got back into the car and pulled off. Some shots were fired, the car crashed and they ran. Defendant admitted to Vucko that he wore a nylon scarf over part of his face that day.

Vucko obtained Gregory Buenfil’s telephone number from defendant and traced his address to 4924 N. Drake. $140 was recovered from defendant’s wallet, and he was taken into custody.

At about 3:15 that same morning, Vucko and other officers went to the Drake address and arrested Buenfil. They found $141 in Buenfil’s wallet and several items of gold jewelry in a paper bag on the rear porch. They also found a suitcase containing jewelry and bills and receipts belonging to Luciano’s store under the rear porch of the home.

Defendant testified on his own behalf that he is married to Ida Sonya Calderon, formerly Ida Sonya Gonzalez, and that on February. 24, 1979, he was living with her at the Hollywood address. On the day in question, Buenfil telephoned him and asked for a ride to a friend’s house. He picked up Buenfil in Sonya’s green Camaro. Buenfil told him that he wanted to go to a friend’s house to borrow money that he needed for a divorce. At about 9:45 p.m., defendant pulled the car up in front of Luciano’s home. Since the lights were out in Luciano’s home, they drove to a tavern a few blocks away to pick up a six-pack of beer.

They then drove back to Marshfield and parked the car, turning off the engine and the headlights. The two men drank beer and conversed for a short while, until a white car arrived and parked directly across from the green car. Buenfil suddenly jumped out of the car and went over to Luciano, who was getting out of the white car. Defendant had never before met Luciano. Buenfil then reached inside his coat, pulled out a gun and put it to Luciano’s chest. Buenfil had a nylon stocking over his head. According to defendant, when Buenfil got out of the green car, he had no gun and wore nothing over his head. When Buenfil approached Luciano, defendant did not ask him what he was doing. But when he reached into his coat, defendant “knew what was going to happen.” Defendant assumed there was going to be a gun and knew there was going to be a robbery.

Buenfil told Luciano to give him his money or his “green.” Defendant got out of the car and was going to run but “just froze.” While Buenfil searched Luciano, defendant got in the car to leave. However, the car tires slipped on the snowy pavement, allowing Buenfil to jump in on the passengers’ side of the car with Luciano’s bag and briefcase.

Shots were fired and defendant lost control of the car, crashing into another car. Both men ran from the crashed car north towards Division. During this time, Buenfil and Luciano exchanged gunfire. Defendant, running ahead of Buenfil, turned the corner at Division, headed over to Milwaukee and eventually made his way down an alley and entered a tavern. Buenfil came in the tavern immediately thereafter. Defendant cursed Buenfil for involving him in the robbery.

About five minutes later, defendant left the tavern. Buenfil followed. Defendant hailed a cab and both got in. Defendant again berated Buenfil for implicating him in the robbery. Buenfil told him to “shut up and keep cool,” then directed the cab driver to take him to his home at Drake and Lawrence. When Buenfil exited the cab at that location, defendant told Buenfil that if he were arrested he would “tell them [the police] everything.” Buenfil paid the cab driver, took some money out of his coat pocket and threw it at defendant. Defendant picked up the money, put it in his coat pocket and told the cab driver to take him to his home at 1040 W. Hollywood. When he got home, he put the money in his wallet. Defendant was in shock and had a hard time explaining to his wife what had happened. He then went into his bedroom and undressed.

The police arrived about 45 minutes later. They ordered defendant to get on the floor, searched and handcuffed him, and brought him to the bedroom. Defendant admitted falsely telling Vucko that his car was in the parking lot downstairs. After initially professing no knowledge of any robbery, defendant admitted that he was present during the crime, but did not know “what was going on.” According to defendant, he told Vucko that he wore a white wool scarf on the night of the robbery and not one made of nylon.

Opinion

Defendant first contends that the police lacked probable cause to arrest him, and illegally entered his home to effect the arrest. As a result, defendant argues, statements he made to the police and other evidence flowing from the arrest are tainted and should have been suppressed.

Initially, we note that defendant did not file any pretrial motions to quash his arrest and suppress the fruits derived therefrom. In addition, the legality of defendant’s arrest and the entry into his home was not challenged in his motion for a new trial. The State argues that since this issue was not raised at the trial court, it must be waived for purposes of review. People v. Stanley (1978), 62 Ill. App. 3d 638, 378 N.E.2d 1351; People v. Davis (1974), 18 Ill. App. 3d 793, 310 N.E.2d 682.

Defendant argues that the waiver rule should be relaxed in this case for three reasons. The first reason is that the alleged illegal arrest constitutes plain error which affects substantial rights of defendant. In support of this assertion, defendant cites People v. Willis (1976), 39 Ill. App. 3d 905, 351 N.E.2d 330, where the court found upon evidence presented at trial that the admission of certain evidence was plain error because it had resulted from an invalid search. In Willis, defendant made no motion to suppress and did not object to the introduction of the evidence. In this case, however, we cannot determine from the record whether there was probable cause to arrest defendant, since this issue was never raised at or prior to trial. Investigator Vucko testified at trial that he had a conversation with Luciano and some other police officers before and after he recovered evidence from the disabled vehicle, and that he later conversed with Gonzalez’ father. The content of these conversations was not elicited by the State since it was objectionable as hearsay. Yet, information obtained from these people could have been crucial in determining whether Vucko had probable cause to arrest defendant. For instance, Gonzalez’ father may have told Vucko that his son’s former wife owned a green Camaro and was then living with a man at 1040 W. Hollywood, Apartment 507. Defendant’s description might also have been provided, matching one that may have been given to Vucko by Luciano. The facts and circumstances within the knowledge of Vucko, the arresting officer, could have been examined by defendant prior to trial by a motion to suppress. The content of the abovementioned conversations, even though hearsay, would have been admissible at a suppression hearing. People v. McClinton (1978), 59 Ill. App. 3d 168, 375 N.E.2d 1342.

The defendant, however, did not challenge the legality of his arrest and the prosecution was under no burden to adduce testimony at trial establishing probable cause. Hence, it is not possible for us to say what the full evidence might have been had the State been required to justify the arrest. Therefore, we will not speculate as to whether the admission of evidence was plain error on the basis of an incomplete record.

Defendant’s second reason advanced for avoiding the waiver rule is that his counsel’s failure to raise the issue of the legality of the arrest constitutes ineffective assistance of counsel. The failure of counsel to make a motion to suppress is not per se incompetence of counsel, but depends on the circumstances of each case. (People v. Harter (1972), 4 Ill. App. 3d 772, 282 N.E.2d 10.) We likewise fail to see how this question can be answered on the basis of the record before us. If the evidence was such that such a motion would be unavailing, the failure to make it would not be incompetence. Therefore, we will not engage in speculation, guess and conjecture to find support for this contention. See People v. Mitchell (1979), 78 Ill. App. 3d 851, 397 N.E.2d 569; People v. Stanley.

The third reason offered by defendant for addressing the merits of the issue now before us is that the trial court would have applied the wrong standard in evaluating the legality of his arrest had the issue been raised. More specifically, defendant argues that upon a finding of probable cause, the trial court would have determined his arrest to be valid even in the absence of exigent circumstances justifying the entry into his home.

It is clear that exigent circumstances are necessary in order to justify a warrantless, nonconsensual entry into a private residence to effect a felony arrest. (Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371; People v. Abney (1980), 81 Ill. 2d 159, 407 N.E.2d 543.) Contrary to defendant’s assertion, however, this rule was recognized in Illinois at the time of his trial and prior to the Payton decision. (See, e.g., People v. Wolgemuth (1977), 69 Ill. 2d 154, 370 N.E.2d 1067; People v. Logan (1979), 78 Ill. App. 3d 646, 397 N.E.2d 504.) Therefore, there is no reason to believe that the trial court would have ignored the' exigent circumstances requirement in assessing the propriety of defendant’s arrest. Accordingly, the issues defendant now attempts to raise for the first time concerning his allegedly illegal arrest and the unlawful entry into his home were effectively waived.

Defendant’s second contention is that the trial court erred in failing to suppress a statement he made to the police prior to receiving his Miranda warnings. The statement challenged as improperly admitted occurred at the time of defendant’s arrest. When Investigator Vucko questioned him in his home as to where his car was, defendant lied by saying that it was in the parking lot. Defendant argues that the admission of the statement was erroneous and prejudicial since it suggested to the jury that he was conscious of his guilt.

In response, the State argues that defendant has waived any objection to the admission of this statement, that the question which provoked defendant’s response was of an investigatory nature requiring no admonishments, and that any error in admitting the statement was harmless.

We first examine the waiver argument. Prior to trial, defendant filed a motion to suppress all statements he made to the police. The trial court denied this motion. Defendant made no objections when his statements were admitted into evidence at trial, yet he raised the issue concerning the denial of the motion to suppress in his motion for a new trial.

It is well settled in this State that the admissibility of an accused’s confession or statement may be challenged by either a motion to suppress or an objection at trial, and that failure to pursue one of these devices ordinarily precludes consideration of the matter on appeal. (People v. Taylor (1965), 33 Ill. 2d 417, 211 N.E.2d 673; People v. Hall (1976), 40 Ill. App. 3d 56, 351 N.E.2d 639.) In this case, it would have been pointless for defendant to have objected to the admission of the statement in question at trial after the trial court had previously denied his pretrial motion to suppress. By challenging the admissibility of the statement prior to trial and again in his motion for a new trial, defendant adequately brought the issue before the attention of the trial court. We shall therefore consider the merits of this contention.

The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.) “Custodial interrogation” of a defendant means “* ” * questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” (384 U.S. 436, 444, 16 L. Ed. 2d 694, 706, 86 S. Ct. 1602, 1612.) (Emphasis added.) Although Miranda admonishments must be given to an accused during a custodial interrogation, they are not necessary where the police conduct a general, on the scene, questioning as to facts surrounding a crime. (People v. Tolefree (1972), 9 Ill. App. 3d 475, 292 N.E.2d 452.) Thus, the question in this case is whether defendant was subject to general, on the scene, questioning by the police when his first statement was made, or whether he was under custodial interrogation and thus deprived of his freedom of action.

We believe that the testimony adduced at the suppression hearing and at trial clearly shows that defendant’s statement was given during a period of custodial interrogation which necessitated Miranda admonishments. In the early morning hours of February 25, 1979, Investigator Vucko and three other officers entered defendant’s home, with revolvers drawn, and ordered the partially clad man out of his bedroom. Defendant assumed a prone position on the floor. During this time, Investigator Vucko had his gun trained on him. Vucko asked defendant where his car was, and was told that it was in the parking lot. Later, while in the bedroom, defendant was informed of his Miranda rights and he then gave another statement concerning his involvement in the crime. It is evident from these facts that defendant’s first statement was given during a police-dominated atmosphere from which he was unable to leave. Since the appropriate admonishments were not given to defendant before his statement concerning the whereabouts of his car, that particular remark should have been excluded at trial. See Orozco v. Texas (1969), 394 U.S. 324, 22 L. Ed. 2d 311, 89 S. Ct. 1095.

There are circumstances, however, where a failure to comply fully with Miranda can be classified as harmless error. If it can be determined beyond a reasonable doubt that the error did not contribute to the conviction, a reversal on the constitutional grounds is not warranted. (People v. Kaprelian (1972), 6 Ill. App. 3d 1066, 286 N.E.2d 613, cert. denied (1973), 412 U.S. 918, 37 L. Ed. 2d 144, 93 S. Ct. 2730; People v. Landgham (1970), 122 Ill. App. 2d 9, 257 N.E.2d 484, cert. denied (1971), 402 U.S. 911, 28 L. Ed. 2d 652, 91 S. Ct. 1389.) In this case, we believe that the statement in question did not prove any element of the crime of armed robbery that was not established more strongly by other competent evidence. The victim’s testimony clearly shows that defendant was an active participant in the crime. In addition, proceeds of the robbery were recovered from defendant’s wallet when he was arrested, and he gave a statement after proper admonishments admitting his involvement in the crime. Defendant has not challenged in this appeal that he was proved guilty beyond a reasonable doubt. Under these circumstances, the error in the admission of the statement was harmless.

Finally, defendant contends that the trial court erred in employing an arbitrary structure for determining his sentence. He also asserts that his nine-year term for armed robbery erroneously fails to reflect his rehabilitative potential. The first part of defendant’s argument is gleaned from a comment made by the trial judge prior to pronouncing sentence. The judge stated that 0 0 the sentence of the court will be reduced by, specifically by three years 0 0 0 because of your lack of prior criminal record.” Defendant interprets this remark to indicate that the trial court improperly used a 12-year starting point in determining the sentence. Since the range of sentences for armed robbery is six to 30 years (Ill. Rev. Stat. 1979, ch. 38, pars. 18 — 2(b), 1005 — 8—1(3)), defendant claims that the proper procedure in sentencing for this crime was to start at the six-year point and then to add or subtract time based upon the aggravating and mitigating factors provided by statute. Ill. Rev. Stat. 1979, ch. 38, pars. 1005 — 5—3.2, 1005 — 5—3.1.

After carefully reviewing the sentencing hearing, we believe that defendant has misinterpreted the trial judge’s comment. Although the judge stated that the sentence would be reduced by three years, he noted that defendant’s participation in the robbery was “extremely active,” and was also aware that shots were fired on a residential street causing a car to crash during the crime. Hence, it is apparent that the trial court may well have started at the six-year point, added six years due to the serious harm threatened by defendant’s conduct, and then reduced three years because of the lack of his prior criminal history. In any event, we note that there is no specific formula provided in the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1001 — 1—1 et seq.) for determining a defendant’s sentence. It would be illogical in each case to start at the minimum sentence and mechanically add or subtract years depending on each aggravating or mitigating factor. If this were the proper procedure, a defendant convicted of armed robbery but having several mitigating factors and no aggravating factors could hypothetically be sentenced to a term below the minimum. Such a result could not have been contemplated by the legislature.

We likewise reject defendant’s assertion that the nine-year sentence is not considerate of his rehabilitative potential. (Ill. Const. 1970, art. I, §11.) The trial court, after considering a presentence investigative report detailing defendant’s background, and hearing evidence of his good employment history, his military service and his lack of a criminal record, sentenced him to a term exceeding the minimum by only three years. We do not believe that the trial court abused its discretion in reaching this sentence (see People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882), and see no reason to disturb it on appeal.

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

Affirmed.

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