author: JUSTICE CAMPBELL

text:
    CAPITOL INDEMNITY CORPORATION, Plaintiff-Appellant, v. STEWART SMITH INTERMEDIARIES, INC., Indiv. and f/k/a Stewart Smith East, Inc., et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—90—1193
    Opinion filed May 11, 1992.

      Pretzel & Stouffer, Chartered, of Chicago (Joseph B. Lederleitner, John V. Smith III, Robert Marc Chemers, and Michael G. Bruton, of counsel), for appellant.
    Peterson & Ross, of Chicago (Robert S. Milnikel, Vincent P. Reilly, and James A. Knox, Jr., of counsel), for appellees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff Capitol Indemnity Corp. (Capitol) appeals an order of the circuit court of Cook County dismissing its complaint against defendant Stewart Smith Intermediaries, Inc. (SSI), individually and formerly known as Stewart Smith East, Inc. (SSE); Stewart Smith Treaties, Inc. (SST); Stewart Smith & Kingaby, Inc. (SS&K), and Stewart Smith & Company, Inc. (SS & Co.). For the following reasons, we affirm.

The record on appeal indicates the following facts. On July 13, 1989, Capitol filed a complaint against defendant in the circuit court of Cook County. The complaint indicated that it was a refiling of a cause of action previously dismissed for want of prosecution on April 4, 1989. The complaint was 24 pages long; 115 pages of exhibits were attached.

Count I of the complaint alleged the following facts. In 1973, Capitol agreed to reinsure the business of certain issuing insurance companies whose policies were placed and managed by a common agent. This agreement was memorialized in two contracts, numbered 0697 and 0697A. Contract 0697 was a 20% quota share reinsurance agreement between Capitol and the policy issuing companies of OMNI Aviation Managers, Inc. (OMNI), which included the National Indemnity Company (National), among others. Contract 0697 was signed by Capitol and Michael Eisenstadt, president of OMNI, as the agent of National. Contract 0697A was a retrocession agreement between Capitol and the Superior Insurance Company of Providence (Superior). Under this agreement, a portion of the business Capitol had reinsured would go to Superior on the same terms as the original agreement. Michael Eisenstadt signed 0697A as an officer of Superior. This second agreement was typed on SST stationery.

In 1976, Capitol filed suit in the Federal District Court for Central California against Eisenstadt, OMNI, Superior and Upstart Eagle, Inc. (Upstart), which managed both OMNI and Superior and which was also owned by Eisenstadt. Capitol alleged that it was fraudulently induced into executing the retrocession agreement. The Federal court entered a judgment in favor of Capitol for $75,980.29 in compensatory damages and $100,000 in punitive damages.

The complaint also alleged that defendant brokered the business of the issuing-fronting companies, including the business of National. Defendant was allegedly compensated for the brokerage services. The complaint then alleged that at the time of the transactions at issue, Capitol dealt with employees or agents of the defendant broker, usually Harry Ambrose and Leonard Corsentino, who were officers and directors in the various Stewart Smith companies. The complaint listed a number of exhibits from the California lawsuit which identify communications between the various parties, including alleged wrongdoers. The complaint also noted that an order in the California lawsuit states that in 1972 and 1973, Capitol and Eisenstadt (on behalf of Superior) negotiated through SST.

The complaint also alleged that Ambrose and Corsentino were initially employed by SS & Co. In 1969, the reinsurance business of SS & Co. was spun off to SS&K, which later changed its name to SST. Around 1975, SST was merged into SSE. SSI was formed in 1982; sometime thereafter the reinsurance business of SSE was merged into SSL Ambrose and Corsentino allegedly brokered business for these entities as a business conduit, as the entities were interrelated and had a common business purpose and common control. It was also alleged that the parent corporation for these various entities is Stewart Wrightson, P.L.C.

Count I further alleged that through Ambrose and Corsentino, defendant became aware of negative facts regarding the acquisition and runoff of the fronting companies managed by Eisenstadt for several underwriting periods prior to the period beginning July 1, 1972. These negative facts were set forth in 11 subparagraphs of the complaint. The complaint concluded that defendant therefore “had knowledge of, consented to and acquiesced” in Eisenstadt’s activities, was in “complicity” with his wrongdoings and cooperated with others to “silently aid and abet Eisenstadt.” The complaint alleges in the alternative that defendant conspired with Eisenstadt to defraud Capitol.

Count I then alleged that defendant, as a broker/intermediary, acted as an agent for Capitol in the reinsurance transaction and stood in a fiduciary relationship to Capitol. The failure of defendant to disclose the allegedly negative facts specified in the complaint was alleged to be a breach of that fiduciary duty which caused Capitol to suffer losses in excess of $735,278 plus interest, costs and prejudgment interest. Count I sought to pierce defendant’s corporate veil to ensure that Capitol could recover the damages it sought.

Count II of the complaint incorporated the allegations of count I, but sought the production of a number of documents pursuant to an accounting in equity. Count II also alleged that it was not until the adjudication of the California lawsuit in 1980 that Capitol discovered defendant’s alleged wrongful acts.

On August 13, 1989, defendant moved to dismiss the complaint. Following a hearing on the motion, the trial court entered an order on January 19, 1990, granting defendant’s motion to strike and dismiss the complaint, but also granting leave for Capitol to file an amended complaint within 28 days. On February 20, 1990, Capitol filed a motion to extend the time for filing an amended complaint, stating that its failure to meet the deadline in the trial court’s order was due to an inadvertent error. On February 27, 1990, defendant filed a motion to dismiss the case with prejudice, noting that Capitol’s motion indicated that the amended complaint was not completed at that time and sought an additional 14 days to file. Capitol then sought leave to file its amended complaint, which contained substantially similar allegations to the initial complaint, but which ran only 16 pages in length. Most of the exhibits were not attached to the amended complaint. Defendant filed its objections to that motion.

Following a hearing held on April 12, 1990, the trial court granted Capitol’s motion to file the amended complaint, but also granted SSI’s motion to dismiss the amended complaint with prejudice. Capitol timely filed a notice of appeal.

The sole issue on appeal is whether the trial court erred in dismissing Capitol’s amended complaint. A trial court should dismiss a cause of action on the pleadings only if it is clearly apparent that no set of facts can be proven which will entitle a plaintiff to recover. (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 504, 565 N.E.2d 654, 657.) This broad statement, however, should not be misconstrued as an adoption of notice pleading. (Board of Education v. A, C & S, Inc. (1989), 131 Ill. 2d 428, 438, 546 N.E.2d 580, 585.) Illinois is a fact-pleading jurisdiction. (Washington v. Chicago Board of Education (1990), 204 Ill. App. 3d 1091, 1096, 562 N.E.2d 541, 544.) When reviewing a dismissal, it is this court’s duty not only to take all well-pleaded facts as true, but also to disregard mere conclusions of law or fact unsupported by the facts alleged. (See Weil, Freiburg & Thomas, P.C. v. Sara Lee Corp. (1991), 218 Ill. App. 3d 383, 389, 577 N.E.2d 1344, 1349.) On appeal, this court may affirm the dismissal of the claim on any legally valid basis appearing in the record. Natural Gas Pipeline Co. v. Phillips Petroleum Co. (1987), 163 Ill. App. 3d 136, 142, 516 N.E.2d 527, 531.

This court has recognized the difficulties facing a pleader in distinguishing between ultimate facts and conclusions and between pleading too much and too little. (Washington, 204 Ill. App. 3d at 1096, 562 N.E.2d at 544.) Nevertheless, the prolixity of Capitol’s complaint should be noted. All pleadings must contain a “plain and concise statement of the pleader’s cause of action.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 603(a).) The amended complaint, while shorter than its predecessor, still contains redundancies and does not appear to be either plain or concise. Capitol admits in its brief that the amended complaint “is not a model of pleading” while arguing that a lengthy pleading was necessary because of the complexity of the case. Yet the complexity of the case should underscore, rather than obviate, the necessity for a plain and concise statement of the cause of action. Moreover, if plaintiff believed that detailing the facts giving rise to the California litigation was essential to understanding the case, it should be noted that the brief contains numerous facts detailing the background of this litigation which may have aided the trial court in understanding the litigation, but which are absent from the pleadings. The complaint may also confuse the reader, for example, by referring to National as “the Defendant” in paragraph 2 of its amended complaint, while later noting that National was dismissed as a defendant during the 1985 litigation.

Nevertheless, mere verbosity, repetition or the inclusion of surplusage will not warrant the dismissal of a complaint which states a cause of action. (See In re Estate of Lipchik (1975), 27 Ill. App. 3d 331, 334, 326 N.E.2d 464, 466.) We come, therefore, to the ultimate issue on appeal.

Initially, Capitol argues that a complaint “need only allege sufficient facts to bring plaintiff’s claim for a remedy within the scope of a legally recognized cause of action or equitable remedy.” Capitol relies on Adkins v. Sarah Bush Lincoln Health Center (1989), 129 Ill. 2d 497, 544 N.E.2d 733, in support of this statement. Adkins, however, states that a complaint “must allege sufficient facts to bring plaintiff’s claim for a remedy within the scope of a legally recognized cause of action.” (Adkins, 129 Ill. 2d at 518, 544 N.E.2d at 743.) Adkins does not appear to allow a complaint which merely alleges an equitable remedy to survive a motion to dismiss. To the contrary, the Adkins court’s use of the phrase “claim for a remedy” suggests that the former is a prerequisite to the latter, not vice versa.

In this case, the allegations of Capitol’s amended complaint include “complicity” or a civil conspiracy with Eisenstadt to defraud Capitol and breach of fiduciary duty by defendant. Capitol’s brief, however, only discusses the alleged breach of fiduciary duty. Capitol has waived any argument that the amended complaint states a claim for “complicity” or civil conspiracy. 134 Ill. 2d R. 341(e)(7).

An action for breach of fiduciary duty is not a tort; rather, it is controlled by the substantive laws of agency, contract and equity. (Kinzer v. City of Chicago (1989), 128 Ill. 2d 437, 445, 539 N.E.2d 1216, 1220.) An agency relationship is a fiduciary one; insurance brokers employed for a single transaction or series of transactions are agents, though they are independent contractors with respect to their physical activities. (See American Environmental, Inc. v. 3-J Co. (1991), 222 Ill. App. 3d 242, 249, 583 N.E.2d 649, 655.) Although an insurance broker typically represents the insured, the broker may also become the agent of the insurer or both parties. (Browder v. Hanley Dawson Cadillac Co. (1978), 62 Ill. App. 3d 623, 629, 379 N.E.2d 1206, 1211.) A reinsurance broker may be defined as “a solicitor of reinsurance who does not represent reinsurance companies and is employed by the ceding company (reinsured) to place reinsurance on its behalf with markets of his choice, or as designated by the ceding company.” (See In re Pritchard & Baird, Inc. (D.N.J. 1980), 8 Bankr. 265, 267 n.2, aff’d without op. Hartford Fire Insurance Co. v. Francis (3d Cir. 1981), 673 F.2d 1299, aff’d without op. In re Pritchard & Baird, Inc. (3d Cir. 1981), 673 F.2d 1301.) A reinsurance intermediary may be defined as “a reinsurance broker who negotiates contracts of reinsurance on behalf of the reinsured, usually with those reinsurers who recognize brokers and pay them commissions on reinsurance premiums ceded ***.” (See In re Pritchard & Baird, Inc., 8 Bankr. at 267 n.2.) However, a reinsurance intermediary may also provide similar services in transactions with reciprocal reinsurance arrangements and risk-spreading among multiple reinsurers. (See Sheffey, Reinsurance Intermediaries: Their Relationship to Reinsured & Reinsurer, 16 The Forum 922, 923 (1981) (Sheffey).) Whether a broker is an agent for the insured, the insurer or both is generally a question of fact. (Browder, 62 Ill. App. 3d at 629, 379 N.E.2d at 1211. But see Sheffey, 16 The Forum at 930-34 (criticizing application of agency principles in context of reinsurance intermediaries).) Nevertheless, assuming agency principles apply, in the context of a motion to dismiss, a complaint alleging an agency relationship must allege specific facts from which the existence of the agency can be inferred. See HPI Health Care Services, Inc. v. Mt. Vernon Hospital, Inc. (1989), 131 Ill. 2d 145,163, 545 N.E.2d 672, 680.

In this case, paragraph 8 of the amended complaint alleges that defendant brokered the business of the issuing-fronting companies. Paragraph 8A alleges that Capitol dealt with employees and agents of defendant, particularly Ambrose and Corsentino. Paragraph 8B alleges that Ambrose and Corsentino had numerous communications with the parties to the transactions at issue, including the alleged wrongdoers. Paragraph 8F alleges that Capitol entered into the transaction relying on defendant. Paragraph 11 alleges that defendant became aware of facts regarding the acquisition and runoff of the fronting companies managed by Eisenstadt for several underwriting periods prior to the period beginning July 1, 1972. Paragraphs 11A through 11J specifically describe allegedly negative facts regarding the transaction. Paragraph 13 alleges that defendant functioned in an insurance fronting operation as Capitol’s agent, for which defendant was compensated. Paragraph 13 also alleges that defendant therefore had a fiduciary duty of good faith and honesty to Capitol. Paragraphs 14 and 16 allege that defendant’s failure to disclose negative facts about the transaction constituted a breach of defendant’s fiduciary duty which caused Capitol to suffer hundreds of thousands of dollars in losses.

Capitol has failed to allege specific facts from which the agency relationship can be inferred. The allegation that defendant was Capitol’s agent is, by itself, a mere legal conclusion. (Goodknight v. Piraino (1990), 197 Ill. App. 3d 319, 326, 554 N.E.2d 1, 6.) The allegation that defendant, as a broker, spoke to the parties involved in the transaction does not allow an inference that defendant was plaintiff’s agent, for such activity would have occurred regardless of which party or parties the broker or intermediary represented. (See Sheffey, 16 The Forum at 924.) The allegation that defendant was compensated for its services does not indicate who paid this compensation. Plaintiff’s brief states that defendant “paid itself its one percent contractual fee before it disbursed any funds to Capitol.” The record shows that the amended complaint does not allege this. Moreover, if defendant collected its “contractual fee,” it would follow that there is a contract which allocates this fee to defendant. Such a document might have shed light on the nature of the relationship between the parties; indeed, an agency relationship is contractual in nature. Yet defendant failed to identify or discuss any document in its complaint or brief, e.g., the reinsurance or retrocession agreements, indicating how and by whom defendant was paid.

Plaintiff argues that this court should construe the complaint liberally and infer that defendant was plaintiff’s agent. Yet the liberal construction rule does not trump the rule that a court only accepts well-pleaded facts as true when reviewing a motion to dismiss. (Teter v. Clemens (1986), 112 Ill. 2d 252, 256-57, 492 N.E.2d 1340, 1342.) The existence or scope of an agency relationship is typically considered to be a factual question because its resolution depends upon facts such as the right of the principal to control the agent, the ability of the agent to enter into binding negotiations on behalf of the principal and the extent to which the alleged wrongful conduct was committed in the course of the alleged agency; generally, it is both unrealistic and unnecessary that a plaintiff include such details without the benefit of discovery. (See Sherman v. Field Clinic (1979), 74 Ill. App. 3d 21, 25, 392 N.E.2d 154, 157-58.) However, this rule is invoked in cases where the plaintiff is a third party. (See, e.g., Sherman, 74 Ill. App. 3d 21, 392 N.E.2d 154.) In contrast, plaintiff here alleges that it was defendant’s principal. In this context, plaintiff was required to allege more specific facts than are present in this complaint. In this case, the complaint does not specify what defendant did on plaintiff’s behalf, plaintiff’s knowledge of any such acts or even the parties’ course of dealings (other than communicating with each other) during the transaction. Thus, as Capitol has failed to adequately allege an agency, it has also failed to adequately allege a fiduciary relationship or to state a cause of action for breach of fiduciary duty.

Plaintiff’s reply brief hints that the complaint states a cause of action for fraud. Although plaintiff has waived this argument for the purposes of appeal, we note that the failure to adequately allege the agency relationship also results in failure to state a cause of action for fraudulent concealment of facts. Cf. Wright v. Chicago Title Insurance Co. (1990), 196 Ill. App. 3d 920, 926, 554 N.E.2d 511, 515 (plaintiff required to plead that defendant intended to deceive and had duty to speak).

Finally, plaintiff contends that the trial court erred in dismissing the amended complaint with prejudice. The decision whether to permit further amendment of pleadings or to terminate the litigation rests within the discretion of the trial court. (See Plocar v. Dunkin’ Donuts of America, Inc. (1981), 103 Ill. App. 3d 740, 749, 431 N.E.2d 1175, 1182.) In this regard, the trial court may consider the ultimate efficacy of the claim and whether plaintiff had prior opportunities to amend. (Plocar, 103 Ill. App. 3d at 749, 431 N.E.2d at 1182.) Section 2 — 615 does not grant plaintiffs the right to unlimited amendment. See Plocar, 103 Ill. App. 3d at 750, 431 N.E.2d at 1182.

In this case, the record shows that the trial court was faced with a 1989 complaint which was a refiling of an action from 1985, based on alleged acts taking place in the early-to-mid-1970’s. The initial 1989 complaint was dismissed with leave to amend within 28 days. Plaintiff failed to amend within 28 days; the trial court granted plaintiff additional time to file an amended complaint. This amended complaint was only slightly less prolix than its predecessor and equally defective in stating a claim. Given this record, plaintiff has failed to show that the trial court abused its discretion in dismissing the amended complaint with prejudice.

For all the aforementioned reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

BUCKLEY, P.J., and MANNING, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE HARTMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARNELL LANDIS, Defendant-Appellant.
    First District (2nd Division)
    No. 1—89—2486
    Opinion filed May 12, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Frank Madea, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Gael M. O’Brien, and Susan Wigoda, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Defendant, Darnell Landis, appeals his conviction by a jury of aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12— 14) and 30-year sentence in custody of the Illinois Department of Corrections. On appeal he questions whether (1) his conviction was improperly based upon unreliable out-of-court statements; (2) his right to confrontation of witnesses was violated by the admission of the statements; (3) he was denied a fair trial due to closing argument remarks; and (4) his sentence was excessive.

During a pretrial competency hearing, held in accordance with section 115 — 10 (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10 (section 115 — 10)), the six-year-old victim, who was five years of age when assaulted, was questioned. She was unaware of the difference between the truth and a lie, but cognizant of punishment for lying. The meaning of an oath, the number of days in a week or months in a year, the day, month or time of year, and her present or previous location were beyond her knowledge. She was found incompetent and unable to understand the significance of the court and not allowed to testify.

To evaluate admissibility of the victim’s alleged out-of-court statements, the hearing continued. The victim’s mother testified that she lived with three of her four daughters in July of 1988, at which time defendant was her boyfriend of four months. On July 7 at 2 a.m., she went to sleep. Defendant was in her bed, and her daughters were in their bedrooms. No other men were inside the apartment, and the front and back doors were closed and locked. At 4 or 5 a.m., she awoke. Defendant was gone. Reasoning he was in the bathroom, she went back to sleep. Her daughter, who shared a bedroom with the victim, was in the mother’s bed. The victim had brought her there earlier that night.

At 8 a.m., she awoke to find defendant back in bed. On her way downstairs, she noticed that the victim, who was wearing a shirt and underpants when put in bed, was naked. She never before removed her own panties. The mother returned upstairs and entered the victim’s bedroom. White and brown substances were on the victim’s upper thigh above her vagina. She awoke and jumped. After being asked twice if “somebody been messing with you,” she asserted that defendant “stuck his thing in my t.t.” “Thing” was the word she used for penis, and “t.t.” was her word for vagina. This scenario occurred within 30 seconds from the time the victim woke. The victim indicated that this had happened once before. The mother left and called the police from a neighbor’s home. After the police spoke with the victim alone, the mother took her to the hospital, where it was learned that the victim had contracted gonorrhea.

On cross-examination the mother asserted that the victim told her defendant “stayed on her, did it to her until he did that stuff out.” Additionally, the mother heard defendant indicate to the police that he was “the one.”

Chicago police officer John Hett testified that on July 7 at 8:45 a.m., he and his partner arrived at the home in response to a domestic disturbance assignment. The mother met him outside. She asserted that the victim said “defendant put his thing in her t.t.” and that defendant was inside. He entered the residence, handcuffed defendant and proceeded upstairs. His partner remained with defendant.

The victim informed Officer Hett that “he put his thing in my t.t.,” indicating this had happened before. He observed the white and brown substances on the child. Although he first asserted the victim did not mention defendant by name, after reading his police report, he testified that she did so. He did not recall the minor recanting or reaffirming her statements and there was no indication of arguing between defendant and the mother. Defendant did not confess at the scene in the officer’s presence.

Chicago police detective Ernest Bell testified that he arrived at the house at 9 a.m. Defendant, whom he identified in court, was in custody. Inside the home, the victim asserted “he stuck his thing in my t.t.,” pointing to defendant. He spoke with her again at the hospital, where she repeated this accusation and affirmatively indicated a prior occurrence. Medical examination revealed redness and tenderness. The examining doctor observed a discharge and a white liquid outside of the vagina and on the stomach area.

On cross-examination, Detective Bell asserted the victim did not mention defendant by name. She related the occurrence to him. Defendant came into her bed while she was asleep. She awoke and he was there. He put his “thing” into her “t.t.” At the police station, she pointed to a doll’s vaginal area in reference to “t.t.”

Following argument, the court found the necessary indicia of reliability in relation to the victim’s statements made in the home. The mother and both officers were allowed to relate these statements at trial. The victim’s utterances at the hospital and police station were excluded. The case proceeded to trial.

At trial, the mother related the victim’s statements and testified to substantially the same sequence of events as at the preliminary hearing. She added that the victim would not speak of the events when defendant was present, and she had no prior reason to suspect sexual abuse in her household.

At trial, Officer Hett’s testimony also tracked that given at the pretrial hearing, noting that “a white, like a slimy substance” was around and above defendant’s crotch, around his zipper and on his underwear. He inventoried the pants and underwear, which were forwarded to the crime laboratory.

Pamela Fish, a seven-year Chicago police department criminalist, testified that she analyzed a vaginal smear and swab specimen, a pelvic swab specimen, a bed sheet, a pair of pants and a pair of defendant’s underwear. Semen stains were found on the pants and underwear. There was no semen or spermatozoa on the specimens or bed sheet. She acknowledged that if defendant did not climax inside the victim, the discovery of sperm would have been affected.

Dr. Jai Arya, who examined the victim at the hospital, testified that during a complete examination he observed that her vaginal area was swollen and tender and a sticky discharge was present. A growth of “gonoccoccus [sic]” indicated gonorrhea. The swollen vaginal area was possibly due to the gonorrhea or a penis, hand or other blunt injury. The minor might have been sexually abused. The hymen was not broken. At the time of the injury, he believed the sticky discharge could only have come from a penis. Due to its location and the injury, it did not come from the victim. He added that the victim could have contracted gonorrhea from earlier contact or a penis discharge lying in that area. He admitted the infection could have occurred due to a recent discharge on a bed sheet, which was sat on in such a way as to cause contact with the vagina, rectal area or mouth where there was a skin wound.

On redirect examination, Dr. Arya asserted that the bruise on both sides of the victim’s vulva area was consistent with some acute injury in that area; the abuse of which the victim complained was consistent with his observations; and the sticky substance came from someone who had gonorrhea. He indicated it could have been passed by someone ejaculating on the pelvic area. He swabbed the pelvic area outside of the vagina for semen and the culture.

Ronald Rose, a technician in the transmission and cure of sexually transmitted diseases employed by Cermak Health Services at Cook County jail, stated that on July 9 he examined defendant’s culture and found that it tested positive for gonorrhea.

Detective Bell testified to substantially the same sequence of events as he did at the pretrial hearing.

Defendant’s motion for a directed finding at the close of the State’s case in chief was denied.

Defendant testified on his own behalf. Defendant denied sexually assaulting the victim. He was living at the victim’s home intermittently. For two to three weeks prior to the incident, he had occasionally stayed the night. On the evening of the incident he had sexual intercourse with the mother between 10 and 10:30 p.m., after which he went to a friend’s house and spent the night. Defendant returned between 7:30 and 7:45 a.m., and was let in by the mother, as he did not have his own key. They went upstairs. The mother went downstairs to answer the door and returned, indicating someone was abusing her daughter. Defendant got out of bed and approached the victim’s bedroom. He asked her if “someone messed with her.” She did not respond. The mother left and called the police from a neighbor’s house. The police arrived and arrested defendant.

On cross-examination, defendant acknowledged that he had a burning sensation around his penis for two or three weeks. He experienced a white discharge from his penis for about three weeks prior to the incident, which he contracted from the victim’s mother. He remembered someone taking a swab from his penis, making a culture plate and receiving treatment, but not being told he tested positive.

The defense rested. In rebuttal, the State submitted two certified copies of defendant’s convictions, which were received in evidence. The first conviction was for burglary and the second was for armed robbery.

As previously mentioned, the jury found defendant guilty of committing aggravated criminal sexual assault on July 7, 1988, and he was sentenced as noted.

I

Defendant initially urges that the evidence was so improbable that it creates reasonable doubt as to defendant’s conviction.

It is asserted that the conviction was improperly based upon an unreliable hearsay statement, namely, defendant stuck or put “his thing in my t.t.” Also, because the hymen was not torn, there were no semen or spermatozoa on the vaginal and pelvic specimens, the redness and tenderness could have come from the venereal disease, the disease could have been contracted from another source, and the minor’s statements were coaxed and not spontaneous, defendant asserts that there was insufficient proof of any crime committed.

Section 115 — 10 contains a hearsay exception which permits admission of testimony relating to an out-of-court statement made by a child under the age of 13 in a prosecution for a sexual act perpetrated upon the child. Such testimony may be admitted after a hearing is conducted outside the presence of the jury. The court must determine whether the time, content and circumstances of the statement provide sufficient safeguards of reliability. (Ill. Rev. Stat. 1989, ch. 38, par. 115-10; Ohio v. Roberts (1980), 448 U.S. 56, 66, 65 L. Ed. 2d 597, 608, 100 S. Ct. 2531, 2539.) Further, if the child is unavailable as a witness, there must be corroborative evidence of the act which is the subject of the statement, which amounts to a “particularized guarantee of trustworthiness.” People v. Rocha (1989), 191 Ill. App. 3d 529, 541, 547 N.E.2d 1335. See People v. Denning (1991), 219 Ill. App. 3d 428, 434, 579 N.E.2d 943.

In the present case, the mother and both police officers testified to the victim’s out-of-court statements at the pretrial hearing, after which the circuit court determined that they were reliable. The court’s conclusions as to reliability were consistent with the criteria set forth by the United States Supreme Court in Idaho v. Wright (1990), 497 U.S. 805, 821-22, Ill L. Ed. 2d 638, 656, 110 S. Ct. 3139, 3150. First, the victim’s statements were spontaneous and consistently repeated. The first time she informed her mother was within 30 seconds after waking. Second, as to the minor’s mental state, there is no evidence that the minor was in a mind-set that impacted upon her communication abilities. Third, the terminology used was not unexpected. “Thing” and “t.t.” are expected utterances from a five-year-old child. Her description, however, of intercourse is unexpected and indicates she was assaulted or had observed the act. Finally, there was no motive to fabricate, the fourth factor.

The court’s determination of reliability was further supported by requiring counsel to address significant factors relevant to determine whether the time, content and circumstances of a child’s out-of-court statement provide sufficient safeguards of reliability. Several of these factors are substantially similar to those in Wright (497 U.S. at 821-22, 111 L. Ed. 2d at 656, 110 S. Ct. at 3150). Additional factors include the child’s physical condition; the nature and duration of the sexual act; the relationship of the child and the accused; reaffirmance or recantation; whether the child is likely, apart from the incident, to have sufficient knowledge of sexual matters to realize the act is possible and sexually gratifying to some; whether the language is embarrassing and, therefore, only spoken if true; and whether it was a cry for help. M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §803.23, at 188-89 (4th ed. Supp. 1989).

In this case, by virtue of the circuit court’s earlier ruling, the minor was unavailable to testify (People v. Hart (1991), 214 Ill. App. 3d 512, 525, 573 N.E.2d 1288); therefore, corroborative evidence of the act was required. (Rocha, 191 Ill. App. 3d at 539.) We find such corroboration existed. Semen stains were found on the underwear and pants defendant was wearing upon arrest. The victim’s vaginal area was swollen, tender and covered with a sticky discharge. The discharge came from someone who had contracted gonorrhea; defendant tested positive for gonorrhea. The bruise on her vulva area was consistent with acute injury, and Dr. Arya’s observations were consistent with the victim’s complaint. The cumulative effect of these facts supports the circuit court’s conclusion that there was sufficient corroboration of the sexual assault. (Hart, 214 Ill. App. 3d at 521.) The victim’s statements to others were properly admitted in accordance with section 115 — 10. Rocha, 191 Ill. App. 3d at 539.

Although there was no semen found in the victim’s pelvic or vaginal specimens, the presence of semen is not required to prove that a sex crime was committed. (People v. Allman (1989), 180 Ill. App. 3d 396, 402, 535 N.E.2d 1097.) Additionally, defendant’s reliance on People v. Lambert (1984), 104 Ill. 2d 375, 472 N.E.2d 427, and People v. Zwart (1990), 208 Ill. App. 3d 407, 567 N.E.2d 373, is misplaced. Lambert involves the corroboration of a confession and the lack of evidence to prove a relationship between the victim’s condition and the commission of the crime. In this case, substantial evidence exists to prove the relationship. In Zwart, the court found the hearsay statements unreliable because of a lapse in time before the making of the statements, which is not an issue in this case because of the victim’s prompt report to her mother.

The victim’s outcries and the corroborative evidence fulfilled the essential elements of defendant’s conviction, aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14). Accordingly, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found defendant guilty of aggravated criminal sexual assault beyond a reasonable doubt. (Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 453.) We find no improbability in the evidence which rises to a reasonable doubt of defendant’s guilt.

II

Defendant next asserts that the admission of the minor’s reported statements violated his right to confrontation of witnesses under the United States and Illinois Constitutions.

The confrontation clause of the United States Constitution, as applied to the States through the fourteenth amendment (U.S. Const., amend. XIV), provides that “[i]n all criminal prosecutions, the accused shall enjoy the right *** to be confronted with the witnesses against him” (U.S. Const., amend. VI). Substantially the same right is contained in the Illinois Constitution, which endows an accused with the right “to meet the witnesses face to face.” Ill. Const. 1970, art. I, §8.

The confrontation clause requires the circuit court to make special inquiry into a statement’s reliability if the declarant is not subject to cross-examination. (Ohio v. Roberts (1980), 448 U.S. 56, 66, 65 L. Ed. 2d 597, 608, 100 S. Ct. 2531, 2539; People v. Rocha (1989), 191 Ill. App. 3d 529, 540, 547 N.E.2d 1335.) An accused may challenge whether the declarant was sincerely telling what he believed to be the truth or whether the declarant’s intended meaning is adequately conveyed by the language employed. Roberts, 448 U.S. at 71, 65 L. Ed. 2d at 611,100 S. Ct. at 2541.

Section 115 — 10 comports with these guarantees. It secures the reliability of a hearsay statement by requiring a hearing and corroboration if the declarant is unavailable, thereby mandating that the evidence in each case demonstrate a particularized guarantee of trustworthiness. (Rocha, 191 Ill. App. 3d at 541.) The court must find at a hearing conducted outside the presence of the jury that the time, content and circumstances of the statement provide sufficient safeguards of reliability. Rocha, 191 Ill. App. 3d at 541.

In the case sub judice, the court conducted a proper hearing in compliance with section 115 — 10 and, therefore, defendant’s confrontation rights were not violated.

Ill

Denial of a fair and impartial trial by way of the State’s closing comments is the basis for defendant’s next point of error.

Defendant waived this issue by failing to object to most of the comments and by omitting them from his post-trial motion (People v. Morgan (1991), 142 Ill. 2d 410, 445, 568 N.E.2d 755). Even were we to consider them on their merits, the remarks did not constitute reversible error.

Considerable latitude is allowed in making closing and rebuttal argument. (People v. Thompkins (1988), 121 Ill. 2d 401, 445-46, 521 N.E.2d 38.) The circuit court’s ruling in this regard generally will be upheld absent clear abuse of discretion. (People v. Cisewski (1987), 118 Ill. 2d 163, 175, 514 N.E.2d 970.) Here, several of the remarks properly were comments on the evidence and legitimate inferences therefrom (People v. Harris (1989), 187 Ill. App. 3d 832, 842, 543 N.E.2d 859). Some were responses to defense counsel’s argument (People v. Morando (1988), 169 Ill. App. 3d 716, 733, 523 N.E.2d 1061). Others were mere overstatements of the evidence (People v. Enoch (1989), 189 Ill. App. 3d 535, 551, 545 N.E.2d 429). Furthermore, remarks regarding defendant’s prior convictions were permissible, for they related to defendant's credibility (People v. Stiff (1989), 185 Ill. App. 3d 751, 757, 542 N.E.2d 392), as the jury was instructed (People v. McKinney (1983), 117 Ill. App. 3d 591, 597, 453 N.E.2d 926). These comments did not constitute reversible error.

Additionally, any error was cured and harmless. The court sustained several objections (Cisewski, 118 Ill. 2d at 178), and instructed the jury that closing argument is not evidence. (People v. Barney (1982), 111 Ill. App. 3d 669, 677-78, 444 N.E.2d 518.) The evidence was substantially against defendant, and the remarks were not a factor in his conviction, nor did they result in substantial prejudice to him or affect the verdict (Harris, 187 Ill. App. 3d at 842-43). In sum, the State’s closing argument did not constitute reversible error.

IV

Defendant lastly asserts that his 30-year sentence is excessive because he did not cause permanent harm to the victim and did not hold a position of trust, a factor in aggravation. Ill. Rev. Stat. 1987, ch. 38, par. 1005-5-3.2.

The circuit court addressed the former argument, observing that the transmission of a venereal disease to a five-year-old child caused her “serious physical harm,” while noting, in mitigation, that she was treated with no evident residual effect. In applying the position of trust factor in aggravation, the court appropriately reasoned that the mother let defendant into her home and near the children, expecting that he would act in “the proper way.” The imposition of a longer sentence to deter sexual abuse in the household is proper. (People v. Reid (1987), 160 Ill. App. 3d 491, 493, 513 N.E.2d 517.) A sentence will not be altered upon review absent an abuse of discretion, which we do not find here. The sentence, as that entered in this case, should be based upon the unique circumstances of each case. People v. Perruquet (1977), 68 Ill. 2d 149,154, 368 N.E.2d 882.

Aggravated criminal sexual assault is a Class X felony carrying a sentence of 6 to 30 years’ imprisonment. Defendant, however, was eligible for a 60-year sentence due to a prior conviction. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.2; Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—2.) The circuit court weighed all aggravating and mitigating factors and recognized that defendant was subject to this extended term, but did not impose it. Defendant was amenable to a sentence of 30 years in prison, the maximum for a Class X felony without an extended term. The circuit court did not abuse its discretion by imposing this sentence for aggravated criminal sexual assault of a five-year-old child.

For the aforesaid reasons, we affirm defendant’s conviction and sentence.

Affirmed.

DiVITO and McCORMICK, JJ., concur.


author: JUSTICE McCORMICK

text:
      In re APPLICATION OF THE COOK COUNTY COLLECTOR FOR THE TAX YEAR 1982 (Hugo Brandstetter et al., Objectors-Appellants, v. Edward J. Rosewell, Cook County Collector, Realtor-Appellee).
    First District (2nd Division)
    No. 1—89—0929
    Opinion filed May 12, 1992.

      James A. Rooney and Gordon H. Millner, both of Chicago, for appellants.
    Jack O’Malley, State’s Attorney, of Chicago (Joan S. Cherry, Daniel E. Cannon, and Karen J. Dimond, Assistant State’s Attorneys, of counsel), for appellee.
   JUSTICE McCORMICK

delivered the opinion of the court:

Objectors, the owners of 21 parcels of real estate located throughout Cook County, appeal from the circuit court’s dismissal of their objections protesting increases in their property tax assessments for the year 1982.

In November 1983, the objectors filed five-count objections protesting the increase in the assessed value of their property. The allegations in all 21 objections were virtually identical and all concerned assessments for the 1982 tax year; only the identity of the property owners and the amount of the assessments differed.

In count I, objectors alleged that the Cook County assessor (Assessor) had a policy of increasing nonquadrennial year assessments for property when the Board of Appeals of Cook County (Board) had reduced the Assessor’s assessment for the preceding year, i.e., when the Board reduced an assessment of property made by the Assessor, it was the policy of the Assessor to increase the assessment for that property in the following year.

For example, in 1980 and 1981 the assessment on the property involved in objection No. 2743 was increased to $80,872. In both years, the objector filed complaints with the Board, and in both years, the Board reduced the assessment to $41,139. In 1982, the Assessor again increased the property assessment to $80,872 and the objector again filed a complaint. However, in that year, the Board reduced the assessment to $53,195, $12,056 more than its previous assessment. Similarly, with regard to the 20 other parcels of property, the Board either confirmed the 1982 increased assessments or reduced them to amounts that exceeded the 1981 assessments set by the Board.

The objectors alleged in count I that the Assessor lacked jurisdiction to make routine increases in the assessments in nonquadrennial years. The objectors also alleged that the Assessor had no authority to increase the assessments in the absence of some change in the subject property that would justify the increases.

In count II, the objectors realleged the allegations contained in count I and also alleged that the Assessor and the Board had failed to prescribe and make public the standards for the 1982 property assessments, as required by section 13 of the Revenue Act of 1939 (Ill. Rev. Stat. 1981, ch. 120, par. 494). The objectors further alleged that the Assessor’s practice of routinely increasing the assessments to the amount found to be excessive by the Board in previous years established that the Assessor’s determination was not based on the application of assessment standards as they existed in January 1982, and that this practice rebutted any presumption of correctness with regard to the 1982 assessment.

In count III, the objectors alleged that the Board lacked jurisdiction to confirm any or all of the 1982 increases in the assessments because, for the reasons set forth in count I, the Assessor lacked jurisdiction to make the increases. The objectors also alleged that the Board lacked jurisdiction to confirm a nonquadrennial assessment made in the manner set forth in count II.

Count IV alleged that in years prior to 1982, it was the practice of the Board to restore its reduction of previous years in cases where the Assessor increased assessments in a nonquadrennial year. The objectors claimed that despite the fact that the Board did not prescribe or make public a change in that practice for 1982, a new Board member adopted a practice of reviewing each such case. The objectors further claimed that in making this review, the Board member considered evidence presented to the Board for the year in which the first reduction was granted, rather than facts relevant to the property’s value as of January 1982.

It was also alleged that the Board member’s decision was based on a determination of whether, in his judgment, the Board had erred in making the first reduction. According to the objectors, this conduct rendered the increased assessments void because Board practices could not be changed by a single member, and because the final decision of the Board could not be reopened solely on the basis of the judgment of a new Board member.

The objectors alleged in count V that the Assessor and the Board were required by statute to act jointly to establish assessment standards; that the standards applied by the new Board member were not established jointly with the other members or the Assessor; that the standards were applied on a case-by-case basis without having been made public or available in advance; and that they were applied to the evidence submitted to the Board for the prior year rather than to new evidence relevant to the January 1982 value of the property.

The objectors alleged that the Assessor did not appear before the Board and presented no evidence to support the increase. The objectors also alleged that the only evidence before the Board was the Assessor’s increase to an amount which the Board had previously found to be excessive and the unrebutted complaints and affidavits of the objectors stating that there had been no substantive changes to the property.

The Cook County collector (Collector) filed motions to strike all of the objections, alleging that the Assessor and the Board had acted within their authority. The Collector argued that under the Revenue Act of 1939 (Ill. Rev. Stat. 1989, ch. 120, par. 482 et seq.), the Assessor had the authority to make any annual revision in assessments “as shall appear to him to be just” and was not bound to follow the decision of the Board in making assessments in other years. The Collector also argued that where a complaint is made, the Board may make revisions in assessments purely on its own knowledge and information without taking any evidence or documenting the reasons for its actions.

The circuit court granted the Collector’s motion to strike. The court found that the objections failed to establish a theory of law entitling the objectors to relief. The court stated that it was beyond dispute that the Assessor had authority to make changes in assessments in nonquadrennial years and that the Assessor was not to be bound by the determinations of the Board in prior years. The court also found that the Board and its members were free to exercise their duties of office without regard to actions taken in prior years. Finally, the court found that there was nothing in the objections to rebut the presumption that the actions of the Assessor and the Board were correct.

In entering its findings, the court stated that because the objectors had not set forth a theory of law that could be maintained under any circumstances, its dismissal would be with prejudice. When asked by counsel for objectors about the possibility of raising a different theory of recovery in an amended complaint, the court stated that it would rule upon any amended pleadings when filed.

No amended pleadings were presented to the court. Instead, the objectors filed a motion to reconsider, which was denied. This appeal followed.

Section 97 of the Revenue Act grants the Cook County Assessor the authority to make annual revisions in assessments “as shall appear to him to be just.” (Ill. Rev. Stat. 1981, ch. 120, par. 578.) In their briefs on appeal, the objectors concede that the Assessor has the authority to revise assessments in nonquadrennial years. However, they argue that the circuit court erred in ruling that the objections failed to state a valid claim for relief.

In reviewing a case of specific objection, a court will presume that the assessing authority competently and honestly performed its function. (In re Application of Rosewell (1985), 106 Ill. 2d 311, 478 N.E.2d 343.) Thus, when challenging an assessment, the taxpayer bears the burden of establishing by clear and convincing evidence that the taxing authorities have not exercised their honest judgment and that the assessment is constructively fraudulent. In re Application of the County Treasurer (1989), 131 Ill. 2d 541, 550-51, 546 N.E.2d 506 (Ford or Ford Motor Co.).

In Ford, the supreme court noted that a finding of constructive fraud usually was based on evidence of the circumstances surrounding the assessment. The court stated that fraud was found when the circumstances indicated that, in fixing the value of the property, the assessing officer failed to exercise his or her honest judgment either by ignoring the known value of the property or by failing to consider and apply recognized standards by which the value of property is determined. (Ford Motor Co., 131 Ill. 2d at 551.) The supreme court listed the following as examples of circumstances showing constructive fraud: (1) an assessor’s disregard of the amount the property brought at a recent sale; (2) an assessor’s failure to consider both rental value and fair market value of the property; (3) a valuation that was based on a speculative future value that was contingent on the happening of an uncertain event and not what the property would fairly sell for at the time of the assessment; (4) an assessment that resulted from public demand and not from a thorough investigation of the actual value of the property; and (5) an assessor’s refusal to consider recent sales of property in determining the property’s value. Ford Motor Co., 131 Ill. 2d at 551-52.

In the present case, the objectors allege only that, after a reduction in the assessments by the Board, the Assessor routinely returned the assessments to the amount at which he had assessed the property prior to the Board’s reduction. The objectors claim that these allegations show that the Assessor failed to exercise his honest judgment in increasing their assessments and that the increases could not have appeared “just” to the Assessor because he made them routinely without considering any facts to justify them.

It does not appear that the mere fact that the Assessor returned the amount of the assessments to an earlier value establishes either constructive fraud or that the assessment did not appear to be just. In Chicago Title & Trust Co. v. Tully (1979), 76 Ill. App. 3d 336, 395 N.E.2d 42, this court stated that the language authorizing revisions as shall appear “just” contemplates making adjustments which are in harmony with the requirements that the assessments be uniform and bear some relation to fair cash value within that class of property. Tully, 76 Ill. App. 3d at 343.

In addition, neither the fact that the assessments were returned to amounts that had previously been reduced by the Board nor the presence of a routine or regular pattern in the Assessor’s action requires a conclusion that the Assessor failed to exercise his honest judgment. See In re Application of Clark County Collector (1983), 116 Ill. App. 3d 539, 452 N.E.2d 100 (holding that the fact that the Assessor increased assessments for a variety of properties by the same percentage did not show constructive fraud); Mid-Continental Realty Corp. v. Korzen (1976), 40 Ill. App. 3d 133, 351 N.E.2d 376 (finding no constructive fraud in a case where the Assessor reinstated an assessment made in an earlier year after it had been reduced by the Board).

Thus, it would appear that the circuit court properly concluded that the objectors failed to state a claim for relief.

The objectors also argue that the circuit court erred in denying them leave to replead. This argument is without merit.

The transcript from the hearing on the Collector’s motion to strike reveals that, when asked by counsel for the objectors whether its ruling precluded the filing of an amended complaint, the circuit court stated:

“I am not going to rule on that. I don’t know. If you want to file something — I set forth my reasons to try to assist Counsel. I am not here as an interlocutor to answer questions. If you wish to file something and have this Court construe it, Mr. Millner, you certainly have access to this Court at any time and then we will make a determination upon having it considered.”

In light of the trial court’s statement, there is no basis for the objectors’ claim on appeal that they were denied the opportunity to re-plead.

For the foregoing reasons, the order of the circuit court dismissing the objections is affirmed.

Affirmed.

HARTMAN, P.J., and SCARIANO, J., concur.