author: JUSTICE KNECHT JUSTICE COOK,

text:
    MARY RUTKOSKI, as Ex’r for the Estate of Charles Rutkoski, Plaintiff-Appellant, v. RICHARD A. HOLLIS, Defendant-Appellee.
    Fourth District
    No. 4—91—0798
    Opinion filed September 30, 1992.

      COOK, J., dissenting.
    Hasselberg & Rock, of Peoria, for appellant.
    Bruce D. Locher, of Springfield, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

Plaintiff, Mary Rutkoski, filed a one-count amended legal malpractice complaint in the Sangamon County circuit court against defendant, attorney Richard Hollis, on behalf of her deceased husband’s estate. She appeals from the trial court’s dismissal of her complaint. The complaint alleged her husband, Charles Rutkoski, received deficient advice regarding his role as executor of the estate of his orother, Alexander Rutkoski. The trial court concluded the complaint failed to state a cause of action because Illinois law precludes recovery for economic losses in legal malpractice cases where the claim is eased on negligence. Plaintiff argues her amended complaint adequately alleged decedent was owed an extracontractual duty by lefendant, thereby allowing her to recover damages in tort. She also contends her complaint stated a third-party beneficiary breach of contract cause of action. We disagree and affirm.

I. Facts

A. Plaintiff’s Complaint

Charles sought legal advice from defendant in connection with Charles’ role as executor of Alexander’s estate. Charles later died and plaintiff was appointed executor of his estate. Plaintiff’s July 1989 complaint alleged defendant committed legal malpractice by failing to advise Charles regarding his role as executor of Alexander’s estate. Charles was also a beneficiary of the estate.

Before Alexander died, they owned farmland in a closely held corporation named Rutkoski Brothers, Inc. When Alexander died, Charles and his heirs intended to continue to farm the property owned by the corporation. The complaint alleged that all conditions of the special-use valuation for Federal and State tax laws were met when Alexander died and these conditions have continually been met.

Plaintiff alleged that defendant, as an attorney, breached his duty by negligently and carelessly failing to make an election under the special-use valuation provisions of the Federal and State tax laws, specifically, but not limited to, elections pursuant to section 2032(a) of the Internal Revenue Code of 1939 (26 U.S.C. §2032(a) (1988)). This negligence resulted in the estate paying excessive estate taxes in the amount of $250,000, which reduced Charles’ share of the estate proceeds. Plaintiff sought damages in excess of $15,000 plus costs.

Defendant sought an involuntary dismissal of the complaint pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615). In April 1990, the trial court granted the dismissal because, in pertinent part, the complaint failed to set forth facts establishing a duty owed to Charles by defendant and breach of that duty.

B. Plaintiff’s Amended Complaint

In May 1990, plaintiff filed a one-count amended complaint. The complaint alleged an attorney-client relationship existed between defendant and Charles, the executor of Alexander’s estate, and that defendant undertook the duty to act as the attorney of the estate and prepared documents for the estate. The complaint also stated in relevant part:

“6. Charles Rutkoski was a direct beneficiary of the Will of Alexander Rutkoski.
* * *
13. In performance of the legal services to Charles *** [defendant] breached his duty in that he negligently and carelessly failed to make an election under the special use valuation provisions of the federal and state tax laws, specifically, but not limited to, elections pursuant to Section 2032(a) of the Internal Revenue Code.
15. As a direct and proximate result of the negligent and careless acts of the Defendant, Charles Rutkoski suffered damage for the reason that his share, as a beneficiary of the estate, was reduced as a result of the payment of excessive estate taxes.
17. Charles Rutkoski during his lifetime was not familiar with the provisions of the Internal Revenue Code.
18. During his lifetime, Charles Rutkoski did not receive any legal advice regarding various tax elections that could have been made at the time of Alexander Rutkoski’s death.”

Plaintiff again sought damages in excess of $15,000 plus costs. In July 1991, defendant filed a motion to dismiss (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615). He argued plaintiff’s complaint failed to state a cause of action because the claim was based on negligence and she sought only economic damages. Defendant contended purely economic damages cannot be recovered from an attorney under a tort theory of negligence. Plaintiff responded she was not seeking economic loss damages. Rather, she sought damages for an intended beneficiary of the contract between Charles and defendant. She argued the Illinois Supreme Court authorizes actions where there was an extracontractual duty to the persons whom the client intended to benefit from the agreement between the parties.

In September 1991, the trial court dismissed this complaint for failure to state a cause of action. The trial judge relied on this court’s ruling in Collins v. Reynard (1990), 195 Ill. App. 3d 1067, 553 N.E.2d 69, reh’g allowed (1992), 154 Ill. 2d 48, that Illinois law precludes recovery of economic losses in tort cases, including legal malpractice, which are based on claims of negligence.

Defendant contends dismissal of plaintiff’s amended complaint was proper because it alleged only economic damages and did not allege (1) the primary purpose of the attorney-client relationship between Charles, as executor, and defendant, as attorney, was for Charles’ benefit as a beneficiary of Alexander’s estate; or that (2) a duty owed to a nonclient was breached and was the proximate cause of plaintiff’s loss.

II. Negligence-Based Claim Fails

A proper complaint for legal malpractice under a tort theory of negligence must allege (1) the existence of an attorney-client relationship; (2) a duty arising from that relationship, and in the case of a nonclient, that the relationship between the attorney and client was primarily or directly to benefit the nonclient; (3) a breach of that duty by defendant counsel; (4) proximate cause; and (5) damages. (Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 18, 440 N.E.2d 96, 98; McLane v. Russell (1989), 131 Ill. 2d 509, 514-15, 546 N.E.2d 499, 501-02.) Plaintiff contends her complaint adequately alleged a negligence claim against defendant based on defendant’s duties to Charles as a beneficiary of Alexander’s estate.

The deficiency in plaintiff’s pleadings lies in her failure to allege that the relationship between Charles and defendant was primarily for the benefit of Charles as a beneficiary of the estate.

A. Points Adequately Pleaded

Contrary to defendant’s contentions, plaintiff’s amended complaint adequately addressed the additional factors. It sufficiently established the existence of an attorney-client relationship. It also adequately alleged a duty on the part of defendant and breach of duty causing damages.

Defendant argues that plaintiff’s amended complaint does not allege defendant breached his duty by failing to advise Charles about tax elections. Paragraph No. 18 states Charles did not receive any legal advice about these tax elections. Although this does not specifically allege defendant’s failure to advise, it adequately informed defendant that plaintiff alleged he did not do so. Mid-America Fire & Marine Insurance Co. v. Middleton (1984), 127 Ill. App. 3d 887, 892, 468 N.E.2d 1335, 1338.

Plaintiff’s pleading adequately alleged defendant breached his duty to Charles as executor by failing to advise him about taxes. This allegation does not, however, address a duty owed Charles as a third-party beneficiary of the estate.

Defendant also argues plaintiff cannot maintain an action against him when Charles suffered no monetary damages due to defendant’s actions. He cites Jackson Jordan, Inc. v. Leydig, Voit & Mayer (1990), 199 Ill. App. 3d 728, 733, 557 N.E.2d 525, 528, as support. Plaintiff correctly notes Jackson Jordan, Inc., involved an action by a corporate client against its attorney and did not involve the issue of an attorney’s extracontractual duty to a nonclient. Jackson Jordan, Inc., 199 Ill. App. 3d at 730, 557 N.E.2d at 526.

A nonclient can sufficiently plead a cause of action against an attorney for negligence without having to allege the client suffered monetary damages. (See McLane, 131 Ill. 2d at 514-15, 546 N.E.2d at 501-02; Pelham, 92 Ill. 2d at 20-21, 440 N.E.2d at 99; Ogle v. Fuiten (1983), 112 Ill. App. 3d 1048, 1050, 445 N.E.2d 1344, 1346, aff'd 1984), 102 Ill. 2d 356, 466 N.E.2d 224.) Plaintiff adequately alleged lamages. However, without more than economic damages, this legal nalpractice claim founded in a tort theory of negligence could not survive unless it was alleged that defendant owed Charles an extra-contractual duty. Plaintiff failed to include such an allegation.

B. Insufficient Complaint

Plaintiff contends she seeks compensation for damages suffered )y Charles in his capacity as a third-party beneficiary of the contract setween him and defendant. She indicates Charles suffered no dam-iges as executor of Alexander’s estate. The damages for which she seeks compensation were incurred by Charles as beneficiary of Alex-mder’s estate and were caused by excessive or unnecessary estate axes, which taxes reduced Charles’ share of the estate.

When a client directly intends to benefit a person, or group of sersons, the person or group may maintain an action against an attoriey based on negligence although no privity exists between the person or group and the attorney. This remedy is limited to circumstances where the attorney owed some extracontractual duty to the njured party. The nonclient must allege and prove the intent of the lient was primarily to benefit the nonclient third party through the ttorney’s actions. Pelham, 92 Ill. 2d at 20, 440 N.E.2d at 99; McLane, 131 Ill. 2d at 515, 546 N.E.2d at 502.

Defendant does not challenge this principle. He contends, how-ver, that plaintiff’s complaint did not allege facts or law necessary to iermit her complaint to proceed. He argues plaintiff’s amended com-laint did not contain any allegations which support a third-party ben-ficiary claim. He contends plaintiff’s claim incorrectly relies only on er presumption that, since Charles was a beneficiary under Alexaner’s will, Charles as executor intended to benefit himself as benefi-iary when he employed defendant.

Plaintiff responds that defendant cannot in good faith claim he ras unaware that Charles, as a beneficiary under the will, expected 3 benefit from the executor-attorney relationship. Plaintiff cites no cases wherein an attorney representing an executor of an estate was found to have implied duties to the beneficiaries of the will.

Several sections of the Probate Act of 1975 (Ill. Rev. Stat. 1989, ch. 110½, par. 1 — 1 et seq.) support defendant’s argument that his primary duty was to Charles as executor and not to Charles as a beneficiary of Alexander’s will. An executor has a duty to defend a proceeding in which another contests the validity of a will. (Ill. Rev. Stat. 1989, ch. 110½, par. 8 — 1(a).) Any beneficiary could choose to contest a will. Under these circumstances, an attorney retained by the executor owes no duty to the interests of the beneficiaries. (See also Ill. Rev. Stat. 1989, ch. 110½, par. 8 — 2.) Moreover, any beneficiary could have sought plaintiff’s removal as executor. Ill. Rev. Stat. 1989, ch. 110½, par. 23 — 2.

At oral argument, defendant cited supplemental authority to establish that an attorney representing an executor of an estate cannot also have obligations to the beneficiaries of an estate. In Neal v. Baker (1990), 194 Ill. App. 3d 485, 551 N.E.2d 704, the Fifth District Appellate Court concluded that an income beneficiary of a will failed to state a negligence cause of action against the attorney who advised the executor of the estate. The court reasoned the beneficiary could not be viewed as an intended beneficiary of the attorney’s advice regarding taxes because of the adversarial role between the executor and the beneficiary. The primary purpose between the executor and the defendant attorney was to assist the executor in properly administering the estate. Neal, 194 Ill. App. 3d at 488, 551 N.E.2d at 706.

Plaintiff responds that Neal is not dispositive because it did not hold a beneficiary could never establish a specific intent to benefit from the executor-attorney relationship. She also notes defendant raises this argument for the first time on appeal. She relies on Trent v. Brasch Manufacturing Co. (1985), 132 Ill. App. 3d 586, 593, 477 N.E.2d 1312, 1317, for her argument that because defendant did not raise this issue of deficiency in her pleadings regarding Charles as £ third-party beneficiary of the relationship between defendant anc Charles as executor below, she should be permitted to amend hei pleadings accordingly.

We note discussion did occur at the trial level regarding Charles as £ beneficiary of the estate being a third-party beneficiary of the agree ment between defendant and Charles as executor. The record indicates that during the hearing on the motion to dismiss, plaintiff alluded to £ potential claim based on the intended-beneficiary theory and defense counsel noted plaintiff’s pleadings did not allege the primary, direct pur pose of the attorney-client relationship was to Charles.

In addition, in her initial brief to this court, plaintiff argued because defendant owed an extracontractual duty to Charles, she, on be-lalf of Charles’ estate, could recover damages in tort. She also con-;ended, however, that her pleadings adequately alleged a breach of jontract claim with Charles as a third-party beneficiary. She cannot low change her theory of her argument by suggesting we should only consider the trial court’s dismissal based on a negligence claim.

The outcome in Neal is relevant. Even if plaintiff had approiriately alleged Charles was an intended third-party beneficiary, she :ould not have successfully brought an action against defendant be:ause of the potentially adversarial relationship between an executor’s nterest in administering the estate and the interests of the beneficiares of the estate. Defendant’s primary duty was to Charles as execu- ;or of the estate and not to the beneficiaries of the estate, including lharles. If defendant’s primary duty was to the beneficiaries, plaintiff lad to explicitly include facts to that effect.

Plaintiff finally argues even if her pleading did not fully establish i third-party beneficiary claim against defendant, her pleadings hould have been liberally construed and her action should have been •ermitted to continue. She argues because her pleadings, if liberally onstrued, adequately informed defendant of what he was being ac-used, they should have been allowed to stand. She cites Middleton 127 Ill. App. 3d at 892, 468 N.E.2d at 1338) as support.

In ruling on a motion to dismiss, a court is to interpret the allegaions of the complaint in light most favorable to the nonmoving party. McGrath v. Fahey (1988), 126 Ill. 2d 78, 90, 533 N.E.2d 806, 811.)

'he court must accept as true all well-pleaded factual matters in the omplaint and all reasonable inferences to be drawn therefrom. Howver, it need not accept conclusions of law, argumentative matter, or onclusions of fact unsupported by allegations of specific facts upon ¡diich such conclusions rest. Kennedy v. First National Bank (1990), 94 Ill. App. 3d 1004, 1009, 551 N.E.2d 1002, 1005.

Plaintiff’s amended complaint does not allege facts necessary to ave permitted her claim based on negligence to succeed. The mended complaint did not allege defendant owed Charles, as a third-arty beneficiary, a duty which was breached.

III. Breach Of Contract Claim Fails

A. Third-Party Beneficiary Contract Not Alleged

Although plaintiff’s one-count complaint is drawn under a egligence theory, she argues the court should have inferred defendant owed Charles, as a beneficiary of the estate, duties which he breached. Defendant contends plaintiff did not properly allege a third-party beneficiary breach of contract in her amended complaint. To do so, defendant correctly notes, she had to allege the purpose of the contract was to benefit Charles as a beneficiary of Alexander’s estate and a term of that contract was breached. Pelham, 92 Ill. 2d at 17-18, 440 N.E.2d at 98.

Plaintiff characterizes the contract between Charles, as executor, and defendant as one to benefit all beneficiaries of Alexander’s estate. She relies on an alleged implicit covenant by an attorney representing an executor so that the executor fulfills his own duty, which is to prevent dissipation of the estate assets. Defendant breached this duty because property of the estate was dissipated when the estate paid excessive and unnecessary taxes. This dissipation injured al beneficiaries of the will. These allegations, however, were not includec in plaintiff’s amended complaint.

The Pelham court found plaintiff’s amended complaint failed tc state a cause of action for breach of contract. It reasoned the “amended complaint fails to allege, legally or factually, that a contrae was entered into for the direct benefit of the plaintiffs, which is ai indispensable element of a third-party beneficiary theory of recovery.’ (Pelham, 92 Ill. 2d at 17-18, 440 N.E.2d at 98.) Plaintiff neglected t( include this necessary allegation.

B. Plaintiffs Inadequate Pleadings Preclude Proceeding

Plaintiff also argues the dismissal should be vacated and the cas( decided on its merits rather than on procedural technicalities. She relies on Summar v. Indiana Harbor Belt R.R. Co. (1986), 147 Ill. App. 3d 851, 515 N.E.2d 130, as support. She also directs us to Village of Pawnee v. Knostman (1983), 115 Ill. App. 3d 842, 450 N.E.2d 1272, in which this court granted a party leave to amend on remand Plaintiff notes in Village of Pawnee, this court indicated “justic would not be served by affirming a dismissal of a judgment against ¡ party on the basis of a pleading defect which could be remedied b; amendment.” Village of Pawnee, 115 Ill. App. 3d at 854-55, 45 N.E.2d at 1281.

We note the court’s observation in Village of Pawnee was not controlling factor. Moreover, in that case this court concluded plair tiff’s pleadings sufficiently stated a cause of action for a breach c contract. Village of Pawnee, 115 Ill. App. 3d at 854, 450 N.E.2d a 1281.

Plaintiff was provided an opportunity to amend her pleadings to properly state a cause of action against defendant. She failed to sufficiently allege any recognized cause of action against defendant. Her complaint did not allege facts to support a third-party beneficiary claim based on negligence. Her failure to allege that the contract between Charles and defendant was entered into for Charles’ direct benefit as a beneficiary also defeats her third-party beneficiary breach of contract claim. The trial court did not err by dismissing her claims based on both theories.

Affirmed.

McCullough, j., concurs.

JUSTICE COOK,

dissenting:

I respectfully dissent and would reverse the order dismissing the complaint for failure to state a cause of action.

The majority recognizes an exception to the rule that economic losses cannot be recovered in legal malpractice negligence actions, i.e., since Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443, the Illinois Supreme Court has allowed such recovery where the attorney defendant owed some extracontractual duty to the injured party. See 2314 Lincoln Park West Condominium Association v. Mann, Gin, Ebel & Frazier, Ltd. (1990), 136 Ill. 2d 302, 317-18, 555 N.E.2d 346, 353, citing McLane, 131 Ill. 2d 509, 546 N.E.2d 499 (recovery allowed where nonclients showed they were intended beneficiaries of the attorney-client relationship); Ogle, 102 Ill. 2d 356, 466 N.E.2d 224.

Plaintiff sought to fit herself within that exception here, but in die view of the majority, plaintiff failed to adequately allege that the relationship between Charles Rutkoski and the attorney defendant ¡vas primarily for the benefit of Charles as a beneficiary of the estate. Charles was executor of the estate of his brother, Alexander Jutkoski, and also a beneficiary of Alexander’s estate. The majority lotes that the primary duty of the attorney for an estate usually is to ;he executor of the estate, not to the beneficiaries.

The complaint alleges that defendant “undertook the performance >f legal services for Charles Rutkoski” regarding the handling of the estate of Alexander Rutkoski, that Charles was the executor and a leneficiary of that estate, that defendant breached his duty by failing ;o make an election under section 2032(a) of the Internal Revenue Jode of 1939 (26 U.S.C. §2032(a) (1988)), and that as a result of defendant’s negligence “Charles Rutkoski suffered damage for the reason that his share, as a beneficiary of the estate, was reduced.” The complaint does not specify whether defendant breached a duty to Charles as beneficiary or as executor, but it does allege the damages suffered by Charles were in his role as beneficiary. The complaint does not allege that defendant’s representation was primarily intended to benefit Charles as a beneficiary, but such an allegation would be a conclusion anyway.

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 proved 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; Meerbrey v. Marshall Field & Co. (1990), 139 Ill. 2d 455, 473, 564 N.E.2d 1222, 1230; Ogle, 102 Ill. 2d at 360-61, 466 N.E.2d at 226 (count against attorney who drafted will adequately stated third-party beneficiary/ breach of contract theory); cf. In re Beatty (1987), 118 Ill. 2d 489, 499, 517 N.E.2d 1065, 1070 (“While a pleading will not be held to be bad in substance if it contains sufficient information as will reasonably inform a defendant of what he must defend against, that liberality of pleading will not relieve the necessity that a complaint contain sufficient, factual averments and set out every fact essential to be proved”); Pelham, 92 Ill. 2d 13, 440 N.E.2d 96 (dismissal of complaint for failure to state cause of action for attorney malpractice affirmed where complaint did not allege sufficient facts to prove primary purpose of attorney-client relationship was to benefit third party); see also R. Michael, Illinois Practice §§23.1, 23.3, 27.4 (1989).) In Meerbrey, false arrest and imprisonment counts which the trial court had dismissed for failure to sufficiently allege defendant was acting without reasonable cause were held sufficient on appeal, “[i]n view ol the statutory directive in section 2 — 603 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 603(c)) that ‘[pjleadings shall be liberally construed with a view to doing substantial justice between the parties.’ ” Meerbrey, 139 Ill. 2d at 474, 564 N.E.2d at 1231.

Although the generally accepted rule is that an attorney drawing a will can be held liable for negligence by the intended beneficiary, an attorney representing the executor of an estate is generally held to have a duty only to that person, not to beneficiaries of the estate wit! whom he was not in privity. The reason for the latter rule is that the representative of an estate must be neutral and should not favor the interests of any claimants to the estate, whether an heir, a claimec beneficiary or a creditor. (2 Mallen & Smith, Legal Malpractice §§26.4, 26.5 (3d ed. 1989).) If an attorney for an executor could nevei have a duty to a beneficiary of the estate, then I would agree with the majority that this case was properly dismissed on the pleadings. I do not read the majority opinion to say that, however, and believe that in a proper case such a duty can exist. In Neal v. Baker (1990), 194 Ill. App. 3d 485, 551 N.E.2d 704, where a beneficiary’s complaint against the executor’s attorney was dismissed, there appeared to be a conflict between the plaintiff and other claimants. In some estates there may be no potential conflicts. There may be only one beneficiary, the potential heirs may be the beneficiaries, and there may be no creditors. In such cases the situation may be similar to that recognized in drafting a will, where the attorney’s mistakes most often harm not the client, but third parties. Even if some conflicts are possible here the issue before the court does not involve a conflict among estate claimants: an attorney for an executor always has a duty to prevent dissipation of the estate. Before this court’s opinion in Collins, the rights of third parties could be protected by a negligence action brought against the attorney by the executor. Since Collins, such an action in many cases is no longer possible and increased protection of third parties to whom the attorney owed an extracontractual duty may be necessary. In Neal, plaintiff could have sued the executor, who might have filed an action over against the attorney. Since this court’s decision in Collins, that is usually not possible.

When an executor employs an attorney, he certainly intends some eenefit for the beneficiaries of the estate. The executor may be more concerned that his improper performance would expose him to liabilty, but it is difficult to say an executor’s selfish concerns are greater ;han his concerns for a beneficiary, especially where the executor and ;he beneficiary are the same person. Assuming the exception for ex-;racontractual duties is measured by whether the plaintiff would qualfy as a third-party beneficiary in a contract action, it should be noted ;hat beneficiaries of an estate are more than “incidental” beneficia-’ies as that term is used in the Restatement (Second) of Contracts >302 (1981).

The majority opinion in essence tells this plaintiff “we know what mu are trying to say, but you haven’t said it.” Much time is wasted in ;he trial courts attempting to determine whether what is said in one :omplaint could be better said in another. If plaintiff could never state i cause of action, then the case should be dismissed on the pleadings, f plaintiff can state a cause of action but uses imperfect language to lo so, the case should proceed to discovery where defendant will be ible to find out, not just the details of what plaintiff has alleged, but vhether those allegations have any basis in reality. In most cases a motion for summary judgment is a better way of weeding out merit-less cases than is a motion to dismiss.

Because it is not clearly apparent that no set of facts could be proved which would entitle plaintiff to recover, I would reverse the order of the trial court dismissing this complaint for failure to state a cause of action. A liberal view of the pleadings is especially appropriate where the state of the law is unclear. (Hagney v. Lopeman (1992), 147 Ill. 2d 458, 466, 590 N.E.2d 466, 470.) I believe this is such a case; the notice of appeal was filed in this case on October 29, 1991, just before a divided supreme court ruled on the appeal of this court’s opinion in Collins and before that court granted rehearing. At the very least this case should be remanded to give plaintiff an opportunity to amend.


source: Caselaw Access Project

author: JUSTICE GORMAN

license: Public Domain

text:
    EAST PEORIA COMMUNITY HIGH SCHOOL DISTRICT No. 309, Plaintiff-Appellant, v. GRAND STAGE LIGHTING COMPANY et al., Defendants-Appellees.
    Third District
    No. 3—91—0869
    Opinion filed September 4, 1992.
    Rehearing denied November 13, 1992.

      Dennis R. Triggs and Thomas R. Davis, both of Miller, Hall & Triggs, of Peoria (William R. Kohlhase, of counsel), for appellant.
    Bret A. Rappaport and Earle S. Rappaport, both of Schwartz, Cooper, Kolb & Gaynor, of Chicago, and William R. Kelly, of Peoria (Eric S. Rein, of eounsel), for appellees Grand Stage Lighting Company and Union Roofing Co., Inc.
    Randall Ray, of Sebat, Swanson, Banks, Garman & Townsley, of Dan-ville, for appellee Shick Supply and Equipment Company.
    Daniel G. O’Day, of Cusack & Fleming, P.C., of Peoria, for appellee The Pipco Companies, Ltd.

      Andrew W. Covey, of Baymiller, Christison & Radley, of Peoria, for First National Bank of Peoria.
   JUSTICE GORMAN

delivered the opinion of the court:

Defendants-counterplaintiffs-subcontractors filed actions against plaintiff-counterdefendant East Peoria Community High School District No. 309 to collect on amounts unpaid by the general contractor for certain work performed on the school. The trial court granted summary judgment for defendants. We affirm.

In 1985, plaintiff East Peoria High School District No. 309 contracted with Tousley-Iber to oversee a life safety survey and related improvements of some high school buildings. Tousley-Iber contracted with defendant Union Roofing for the roof work; with defendant PIPCO Companies Ltd. for the plumbing and electrical work; with defendant Grand Stage Lighting for stage renovation work; and with defendant Shick Supply and Equipment Company for the locker replacement. All of the subcontractors performed the work contracted for. The original unpaid amounts were as follows: Union Roofing — $63,042.61; PIPCO — $15,467.07; Grand Stage— $145,949; and Shick-$22,782.

Plaintiff made progress payments to Tousley-Iber. Tousley-Iber did not make any payments to defendant Shick or to defendant Grand Stage Lighting. Tousley-Iber paid defendant Union Roofing and defendant PIPCO for part of the work they performed.

Litigation ensued between the parties. The only claims at issue here are the claims by the subcontractors that they were third-party beneficiaries of the agreement between plaintiff and Tousley-Iber and that “An Act in relation to bonds of contractors entering into contracts for public construction” (Bond Act) (Ill. Rev. Stat. 1987, ch. 29, par. 15 et seq.) mandated that plaintiff require Tousley-Iber to obtain a payment bond. Plaintiff raised certain affirmative defenses. The court granted each defendant’s motion for summary judgment and held in its February 1990 order that, among other things, the contract was subject to the Bond Act and that the subcontractors were third-party beneficiaries of the contract be: tween plaintiff and Tousley-Iber. As a result of the court’s Octobei 1991 order entered pursuant to the parties’ stipulation, defendants Union Roofing, Grand Stage, and PIPCO received partial paymeni against their lien claims. The amounts now claimed to be due are as follows: Union Roofing — $53,263.34; PIPCO — $13,067.80; Grane Stage-$123,309.27; and Shick-$22,782.

Plaintiff now appeals.

The first issue for review is whether the Bond Act mandated that plaintiff require Tousley-Iber to obtain a payment bond.

The Bond Act provides, in pertinent part, as follows:

“All officials, boards, commissions or agents of this State, or of any political subdivision thereof in making contracts for public work of any kind to be performed for the State, or any political subdivision thereof shall require every contractor for such work to furnish, supply and deliver a bond to the State, or to the political subdivision thereof entering into such contract, as the case may be, with good and sufficient sureties.” Ill. Rev. Stat. 1987, ch. 29, par. 15.
“Every person furnishing material or performing labor, either individually or as a sub-contractor for any contractor, with the State, or a political subdivision thereof where a bond or letter of credit shall be executed as provided in this Act, shall have the right to sue on such bond or letter of credit *** provided, however, that this Act shall not be taken to in any way make the State, or the political subdivision thereof entering into such contract, as the case may be, liable *** to any greater extent than it was liable under the law as it stood prior to the adoption of this Act.” Ill. Rev. Stat. 1987, ch. 29, par. 16.

As a preliminary matter, Tousley-Iber was a general contractor even though it styled itself a “construction manager.” It hired subcontractors and provided no unique services.

Plaintiff argues that the liability of a public body to a subcontractor is controlled by the Mechanics Lien Act (Ill. Rev. Stat. 1987, ch. 82, par. 1 et seq.) and the Bond Act, with the latter containing a critical proviso. The proviso states that the Bond Act “shall not be taken to in any way make the State, or the political subdivision thereof entering into such contract *** liable *** to any greater extent than it was liable under the law as it stood prior to the adoption of this Act.” (Ill. Rev. Stat. 1981, ch. 29, par. 16.) Pointing especially to the inclusion of the words “in any way,” plaintiff asserts that the proviso defeats the subcontractors’ contract claims here. Plaintiff argues that Emulsicoat, Inc. v. City of Hoopeston (1981), 99 Ill. App. 3d 835, 425 N.E.2d 1349, supports its position that the language is to be read broadly.

We are not persuaded by plaintiff’s argument. First, we note that “as a remedial statute, the Bond Act is liberally construed to effectuate the General Assembly’s intent to encourage and protect artisans, materialmen, and tradesmen.” (Chicago Housing Authority v. United States Fidelity & Guaranty Co. (1964), 49 Ill. App. 2d 407, 199 N.E.2d 217.) Furthermore, Western Waterproofing Co. v. Springfield Housing Authority (C.D. Ill. 1987), 669 F. Supp. 901, squarely addressed the issue presented in the instant case. There, the court had to determine whether a third-party beneficiary contract action could be asserted against a public entity where the entity had failed to procure a payment bond from a general contractor. The court held that the Bond Act should be read into the contract between the housing authority and the general contractor. The court there noted that “[u]nder Illinois law ‘statutory provisions applicable to a contract *** are deemed to form a part of that contract and must be construed in connection therewith.’ ” (Western Waterproofing, 669 F. Supp. at 903, quoting DC Electronics, Inc. v. Employers Modern Life Co. (1980), 90 Ill. App. 3d 342, 348, 413 N.E.2d 23.) “[B]ecause the Bond Act was established to achieve the same remedial goal as the mechanic’s lien in a public works situation, it follows that the Bond Act should be read into the public works contract between [the housing authority] and [the general contractor], requiring the procurement of a payment bond as required by the Bond Act.” 669 F. Supp. at 904.

In contrast, the Emulsicoat case dealt only with a negligence claim against two municipalities. The court there specifically examined the Bond Act’s proviso and held that it “represented] a very cautious approach by the legislature to the question of tort immunity of municipalities.” (Emulsicoat, 99 Ill. App. 3d at 838.) Thus, we reject plaintiff’s argument and hold that the Bond Act mandated that plaintiff require Tousley-Iber to obtain a payment bond.

The second issue for review is whether the subcontractors were third-party beneficiaries of the contract between plaintiff and Tous-ley-Iber.

The general rule is that if a contract is entered into for a direct benefit of a third person not a party thereto, such third person may sue for breach thereof. (Metro East Sanitary District v. Village of Sauget (1985), 131 Ill. App. 3d 653, 475 N.E.2d 1327.) Moreover, “[o]ne is a third-party beneficiary of a contractual provision if the parties to a contract, or at least the promisee *** intended that the agreement confer a benefit on him. [Citation.] That intent is ‘ “to be gleaned from a consideration of all of the contract and the circumstances surrounding the parties at the time of its execution. [Citation.]” ’ ” Bates & Rogers Construction Corp. v. Greeley & Hansen (1985), 109 Ill. 2d 225, 232, 486 N.E.2d 902.

In Metro East, a regional sewer agreement provided that the municipality “shall reimburse” the other municipal corporations “for fees which such party has paid or become contractually obligated to pay to its attorneys” for work related to the agreement. It also specified the “reimbursable amount due.” The municipality refused to pay the attorney. The court held that the attorney was an intended beneficiary under the contract because the agreement expressly referred to attorney fees and the reference was made in a context showing that the parties anticipated that attorney services would be provided on credit and that they desired to make express arrangement for payment of those services.

Furthermore, in Town & Country Bank v. James M. Canfield Contracting Co. (1973), 55 Ill. App. 3d 91, 370 N.E.2d 630, it was held that a subsubcontractor was an intended third-party beneficiary of a contract between his subcontractor and the general contractor. The basis for that court’s decision was Avco Delta Corp. v. United States (7th Cir. 1973), 484 F.2d 692, in which the Seventh Circuit held that a materialman was a third-party beneficiary of a promise by a general contractor to provide an affidavit of payment oefore receiving the retainage from the owner and a promise that the owner could if it chose pay any liquidated claims that arose out of the contract and charge the general contractor.

As noted earlier, “under Illinois law, statutory provisions applicable to a [construction] contract *** are *** a part of that contract and must be construed in connection [with such laws].” (West?rn Waterproofing v. Springfield Housing Authority (C.D. Ill. 1987), 669 F. Supp. 901, 903.) As a policy matter, it would be meaningless here to read the Bond Act requirements into the construction manager agreement without reading in third-party rights to enforce that statute.

Furthermore, in the construction manager agreement, Tousley-Iber agreed at paragraph 11.3 to “promptly pay all amounts due” the trade contractors upon receipt of any payment from plaintiff. In paragraph 2.2.5, Tousley-Iber agreed to “develop and implement a procedure for the review, processing, and payment of applications jy Trade Creditors for progress and final payment.”

Also, in paragraph 11.3 of the agreement, plaintiff and Tousley-ber agreed that before issuance of final payment, the latter was required to submit satisfactory evidence that all indebtedness had seen paid. As in Metro East and Avco, these promises regarding payment show that the parties anticipated that subcontractors’ ser-dees would be provided on credit and that the parties wanted to make express arrangements for payment to them. Therefore, we hold that defendants here were third-party beneficiaries of the contract between plaintiff and Tousley-Iber.

The third issue for review is whether plaintiff has standing to assert that the contract is void because of plaintiffs failure to comply with competitive bidding procedures.

Plaintiff argues that the construction manager agreement is void because it was not awarded after due advertisement and after obtaining competitive bids. Defendants assert that plaintiff lacks standing to raise this argument and is estopped from raising the argument. We agree with defendants. Where a suit alleges injury due to a violation of a statute, the doctrine of standing requires that the plaintiff be one of a class designed to be protected by the statute, or for whose benefit the statute was enacted. Under Cardinal Glass Co. v. Board of Education of Mendota Community Consolidated School District No. 259 (1983), 113 Ill. App. 3d 442, 447 N.E.2d 546, the third district held that the school bidding procedures were intended to protect taxpayers and bidders. Thus, plaintiff does not now have standing to raise the argument that the contract is void.

Furthermore, estoppel may be applied against school districts. The test is whether, under all the circumstances of the case, the affirmative acts of the district have created a situation where it would be inequitable and unjust to permit it to deny what it has done or permitted to be done, then the doctrine may be applied against it. (Stahelin v. Board of Education, School District No. U (1967), 87 Ill. App. 2d 28, 230 N.E.2d 465.) There it was held that the school board could not assert, on one hand, that it was entitled to a number of credits which were to be adjudicated on completion of school construction under a contract requiring contract changes to be in writing and to have prior board approval and, on the other hand, not be obligated for any of the extras to be adjudicated in the same manner because it did not vote by yeas and nays on expenditures for extras as required by statute. Here, plaintiff’s acts oi drafting the agreement and then receiving the benefits thereundei estop it from arguing now that the contract is void.

Finally, plaintiff argues that the trial court erred in finding that the construction manager was subject to the Bond Act but not the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 1 — 1 et seq.).

This argument is without merit. Plaintiff cites no authority that these statutes must be read together. The two statutes are no1 part of the same act. Moreover, they were designed to effectuate different policies. The Bond Act requires that a public body require a contractor to obtain a payment bond to protect subcontractors. The School Code generally requires competitive bids to assure that taxpayers pay the lowest responsible price.

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

Affirmed.

BARRY, P.J., and McCUSKEY, J., concur.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. COREY TAYLOR, Defendant-Appellant.
    Third District
    No. 3—91—0736
    Opinion filed October 7, 1992.
    Rehearing denied November 13, 1992.
    Peter A. Carusona, of State Appellate Defender’s Office, of Ottawa, for appellant.

      Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Corey Taylor, was convicted of first degree murder (Ill. Rev. Stat. 1991, ch. 38, par. 9 — 1(a)), and was sentenced to an extended term of imprisonment of 75 years. He appeals.

The record reveals that prior to jury selection, defense counsel submitted four questions to be asked of prospective jurors. One of the questions was whether the prospective jurors would be more likely to believe the testimony of a police officer simply because he was a police officer. The court indicated that it would ask that question only of prospective jurors who first answered that they knew a police officer.

Following his conviction, the defendant moved for a new trial. He argued that he had been denied a fair trial by the court’s failure to ask the voir dire question he had submitted. His motion for a new trial was denied. The defendant appeals.

On appeal, the defendant argues that the trial court erred in refusing to ask prospective jurors whether they would be more likely to believe the testimony of a police officer simply because he was a police officer.

The general rule in cases involving information not disclosed by a juror during voir dire is that a new trial will not be granted unless it is established that prejudice resulted. (People v. Porter (1986), 111 Ill. 2d 386, 489 N.E.2d 1329.) Likewise, where, as here, voir dire questions are offered but not asked, prejudicial error will not be inferred unless the jury finally selected was actually unfair or biased in any manner. (People v. Salazar (1991), 211 Ill. App. 3d 899, 570 N.E.2d 802.) The burden is on the defendant to show that he was actually prejudiced. People v. Porter (1986), 111 Ill. 2d 386, 489 N.E.2d 1329.

Here, the trial court should have asked the question. (See United States v. Evans (4th Cir. 1990), 917 F.2d 800.) However, the defendant does not allege that the jury selected was actually biased in any way, nor does the record contain any evidence to support such an allegation. Additionally, the jury instructions helped to alleviate any possible prejudice by admonishing the jury to “judge the testimony of the defendant in the same manner as you judge the testimony of any other witness.” (See King v. Lynaugh, (5th Cir.

1988), 850 F.2d 1055.) Because there is no evidence of actual prejudice to the defendant, we affirm the judgment of the circuit court of Peoria County.

Affirmed.

SLATER and HAASE, JJ., concur.


author: JUSTICE DOYLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAGE BOOKS, INC., d/b/a Bachelor’s Library Adult Bookstore, Defendant-Appellant.
    Second District
    No. 2—91—0243
    Opinion filed September 25, 1992.
    Rehearing denied November 9, 1992.

      J. Steven Beckett, of Beckett & Crewell, of Champaign (Roger B. Webber, of counsel), for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (John Kinsella, Assistant State’s Attorney, and William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DOYLE

delivered the opinion of the court:

Defendant, Page Books, Inc., was charged by verified complaint in the circuit court of Du Page County with two counts of obscenity (Ill. Rev. Stat. 1989, ch. 38, par. 11 — 20(a)(1)). Following a jury trial, defendant was found guilty of both counts and sentenced to a fine of $1,000 plus costs on each count.

Defendant raises the following issues on appeal: (1) whether the use of an Illinois Pattern Jury Instructions (IPI) instruction referring to children in the context of community standards constituted prejudicial error; (2) whether the exclusion of certain community standards evidence violated due process; (3) whether the inclusion of multiple communicative items in a single count combined with a general verdict form created an impermissible prior restraint; and (4) whether the complaint failed to properly charge an offense because it did not allege that the various materials were obscene.

The following facts are relevant to the issues raised on appeal. On November 15, 1989, pursuant to a warrant, authorities searched a bookstore owned and operated by defendant. A total of 26 magazines and five videotapes were seized during the search. Twenty-five of the magazines and three of the videos were introduced as evidence at defendant’s trial along with three magazines purchased by an investigator prior to the issuance of the search warrant.

Dr. Joseph Scott, a professor in the sociology department at Ohio State University, testified on behalf of defendant. Dr. Scott was hired by defendant to conduct a survey of 500 adults in Illinois concerning their views of and attitudes on sexually explicit materials. The 500 adults questioned were a representative cross-section of Illinois. The survey was prepared, conducted and evaluated in accordance with state-of-the-art procedures.

The survey consisted of numerous background and general information questions. Additionally, there were seven questions that addressed contemporary community standards concerning explicit sexual material. The persons surveyed were told prior to answering the seven questions that “[t]he next few questions deal with adult x-rated videos and sexually explicit magazines. These videos and magazines may have little or no plot. Their contents are primarily graphic depictions of nudity and sex, showing a variety of actual sexual activities including: vaginal intercourse, ejaculation, bondage, oral sex, masturbation, anal sex, use of vibrators, lesbian sex, group sex and variations of these by adult performers. No minors are involved, and these materials can only be purchased, rented or viewed by adults who desire them.”

Question number 16 asked whether the “portrayal of such sexual conduct, in adult videos and magazines, available only to adults, has become more or less acceptable in recent years in Illinois?” (Emphasis in original.) Question number 20 inquired whether it is “acceptable or not in Illinois for these neighborhood video stores to rent or sell such X-rated videos to adults?” The State objected to questions 16 and 20 and the responses thereto. The court ruled that questions 16 and 20 were inadmissible, and it barred Dr. Scott from testifying about either question. Dr. Scott did testify that based on the survey results generally at least 50% of every subcategory of people surveyed found such sexually explicit materials to be acceptable or tolerated.

The State filed a motion in limine seeking to bar evidence “relating to the availability of ‘x-rated’ or ‘adult’ video tapes in certain, yet undisclosed video stores *** for the purpose of establishing ‘acceptability’ within the contemporary adult community.” The trial court granted the motion and barred any evidence pertaining to a survey conducted by Larry Adelsberger of various “adult bookstores” and “family video stores.” The parties stipulated as an offer of proof that if called to testify Adelsberger would testify to the information contained in a written report prepared by him. The report states that Adelsberger visited 14 adult book stores and 14 family video stores throughout Illinois in August 1990. Regarding the adult bookstores, he made observations concerning the outside of the stores, the customers, the printed materials, video tapes and marital aids. He also purchased printed materials and videos from various stores that he considered representative of the materials offered for sale. As to the family video stores, he observed the adult video section and interviewed employees of the various stores concerning the inventory of adult videos and the frequency of their rental. Adelsberger would also testify as to various magazines he purchased from other bookstores in Illinois as representative of what type of sexual magazines are available. Defendant offered the report and Adelsberger’s testimony as evidence of the degree of acceptability of this type of material in Illinois.

The trial court also barred admission of the information, docket sheet and signed verdict forms in an obscenity prosecution in the circuit court of Champaign County. The jury returned a verdict of not guilty in that case in October 1990.

The jury received the following instruction, among others, in this case:

“To sustain the charge of obscenity, the State must prove the following propositions:
First that the defendant offered or agreed to sell or provide an obscene magazine; and
Second that the defendant then knew the nature or content of the magazine or recklessly failed to exercise reasonable inspection which would have disclosed the nature or content of the magazine.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.”

The State also tendered Illinois Pattern Jury Instructions, Criminal, No. 9.57 (2d ed. Supp. 1989) (hereinafter IPI Criminal 2d No. 9.57 (Supp. 1989)), which reads in pertinent part:

“Obscenity is judged with reference to the standards of adults, except that it is judged with reference to children or other specially susceptible audiences if it appears from the character of the material or the circumstances of its dissemination to be specially designed for or directed to such an audience.”

Defendant objected to this portion of the instruction and argued that the reference to children should be deleted as there was no evidence that the materials at issue involved children or were directed to children. Defendant offered a modified version of IPI Criminal 2d No. 9.57 (Supp. 1989) wherein it deleted the reference to children and added language referring to homosexuals as a specially susceptible audience.

The court, over defendant’s objection, gave general verdict forms of guilty and not guilty on each count as to the magazines and the videos. Defendant tendered special verdict forms that would have required the jury to record a finding of obscenity as to each magazine and each video. The court overruled the objection to the general verdict forms and refused to submit the special verdict forms to the jury.

The jury returned a verdict of guilty on the count pertaining to the magazines and a guilty verdict on the video count. Following the denial of its post-trial motion, defendant filed this timely appeal.

We first consider defendant’s prior restraint argument as that issue is dispositive of this appeal. Defendant contends that the clustering of the three videos into one count and the 25 magazines into a second count, combined with the submission of general verdict forms as to each count, created an impermissible prior restraint. Specifically, defendant argues that the jury could have returned guilty verdicts based upon its finding that only one of the items listed in each count was obscene and that it is impossible to discern which magazines or videos were found to be obscene. Thus, defendant is compelled to curtail its continued dissemination of all of the magazines and videos, or other similar items, for fear that those materials may have been determined to be obscene by the jury.

A prior restraint occurs when, without any judicial determination, a communication is characterized as obscene and suffers a detriment to its further communication. (People v. Hall (1986), 143 Ill. App. 3d 766, 778, citing Southeastern Promotions, Ltd. v. Conrad (1975), 420 U.S. 546, 43 L. Ed. 2d 448, 95 S. Ct. 1239.) Under the fourteenth amendment, a State is not free to adopt whatever procedures it pleases for addressing obscenity without regard to the possible consequences for constitutionally protected speech. (Marcus v. Search Warrant of Property (1961), 367 U.S. 717, 731, 6 L. Ed. 2d 1127, 1136, 81 S. Ct. 1708, 1716.) The regulation of obscenity must conform to procedures that ensure against the curtailment of constitutionally protected expression, which is often separated from obscenity by a dim and uncertain line. (Bantam Books, Inc. v. Sullivan (1963), 372 U.S. 58, 66, 9 L. Ed. 2d 584, 590, 83 S. Ct. 631, 637.) Moreover, because only considerations of the greatest urgency can justify restrictions on speech, and because the validity of a restraint on speech in each case depends on careful analysis of the particular circumstances, the procedures by which the facts are adjudicated are of special importance, and the validity of the restraint may turn on the safeguards which they afford. (Speiser v. Randall (1958), 357 U.S. 513, 521, 2 L. Ed. 2d 1460, 1469-70, 78 S. Ct. 1332, 1339.) Only a judicial determination in an adversary proceeding ensures the sensitivity to freedom of expression sufficient to impose a valid final restraint. Freedman v. Maryland (1965), 380 U.S. 51, 58, 13 L. Ed. 2d 649, 654, 85 S. Ct. 734, 739.

This case differs from the typical prior restraint scenario in that defendant was afforded a full-scale trial by jury on the charges that the various magazines and videos were obscene. Nevertheless, we believe the procedures employed here resulted in an improper final restraint on defendant’s first amendment rights. The State elected to charge all 25 magazines in a single count. The jury, in turn, was instructed that if it found “a magazine” to be obscene it could find defendant guilty. The court also submitted a general verdict form which limited the jury to either finding defendant guilty or not guilty. The jury was not required to make an individualized determination concerning the obscenity of each magazine. Because the jury returned a general verdict of guilty, we cannot determine, nor can defendant, which of the 25 magazines were in fact obscene. It is possible that one or more of the magazines were determined to be obscene or that all of them were found obscene. It is this ultimate uncertainty which renders the procedures followed here constitutionally defective.

The State seized and detained defendant’s publications and subjected them to judicial scrutiny. Yet, the seizure was not followed by any decisive determination of obscenity as to any individual magazine or video. While such a process may not constitute a prior restraint in the classic sense of that term, it has essentially similar constitutional ramifications. Defendant is left to speculate as to which magazines were obscene and is therefore without a concrete determination of obscenity. An obvious potential exists that the scatter gun impact of such a general verdict might unjustifiably operate to publicly taint constitutionally protected materials which were not the actual object of the jury’s finding.

Parenthetically we note that the constitutional deficiencies inherent in the charging procedure in question here might become even more troublesome in those cases in which the sufficiency of the evidence of obscenity is challenged on appeal. It is not the function of a reviewing court to rummage through a potentially unlimited supply of suspect materials in search of an unidentified item or items which might be sufficient to sustain a general verdict of guilty. There can be no certainty that such a process would necessarily disclose the same item(s) which led to the jury’s determination. Although a reviewing court can reverse a conviction by concluding that allegedly obscene materials are not obscene, it cannot declare materials obscene where the jury found otherwise. Only the trier of fact may render the initial determination, and that determination must be sufficiently particularized to enable subsequent review. The charging of multiple magazines in one count, instructing the jury that a guilty verdict should be returned if any magazine is obscene and the giving of a general verdict form combined to render the verdict in this case imprecise. Such imprecision cannot be tolerated when freedom of expression is at issue.

This opinion is significantly based upon considerations uniquely applicable to the protection of freedom of expression. Although we have concluded that this particular charging procedure, when utilized in conjunction with general verdict forms, is inadequate to separate protected from unprotected expression, our opinion should not be misconstrued as criticizing the practice of joining closely related acts in a single count of the charging instrument in other types of prosecutions. Considering the options available to the State to modify its approach to accommodate the constitutional concerns expressed herein, it seems unlikely that this requirement will create any significant impediment to the effective prosecution of obscenity offenses.

Because defendant failed to receive a precise judicial determination as to the obscenity of the various magazines and videos on trial, it was denied the full protections of due process provided by the fourteenth amendment. As such, we are compelled to reverse defendant’s conviction and remand for a new trial. In doing so, we will consider the remaining issues raised in defendant’s appeal as they are likely to recur on remand.

The first of the remaining issues is whether the use of IPI Criminal 2d No. 9.57 (Supp. 1989), which referred to children, constituted prejudicial error. Defendant contends that it was error in this case to include a reference to children in the instruction on community standards because to do so allowed the jury to consider children as part of the relevant community. IPI Criminal 2d No. 9.57 (Supp. 1989) defines obscenity and states:

“Any [(material) (performance)] is obscene if
the average person, applying contemporary adult community standards, would find that the work, taken as a whole, appeals to the prurient interest; and
the average person, applying contemporary adult community standards, would find that it depicts or describes, in a patently offensive way, ultimate sexual acts or sadomasochistic sexual acts, whether normal or perverted, actual or simulated, or masturbation, excretory functions or lewd exhibition of the genitals; and
a reasonable person, taking the [(material) (performance)] as a whole, would find no serious literary, artistic, political or scientific value.
[Obscenity is judged with reference to the standards of adults, except that it is judged with reference to children or other specially susceptible audiences if it appears from the character of the material or the circumstances of its dissemination to be specially designed for or directed to such an audience.]
In determining how any [(material) (performance)] would be viewed by the average person, you are to consider how it would be viewed by ordinary adults in the whole State of lili-nois rather than by the people in any single city or town or region within the State.” IPI Criminal 2d No. 9.57 (Supp. 1989).

Our obscenity statute specifically sets forth when children can be considered part of the community. (People v. Hall (1986), 143 Ill. App. 3d 766, 780.) Section 11 — 20(c) states that “[ojbscenity shall be judged with reference to ordinary adults, except that it shall be judged with reference to children or other specially susceptible audiences if it appears from the character of the material or the circumstances of its dissemination to be specially designed for or directed to such an audience.” (Ill. Rev. Stat. 1989, ch. 38, par. 11 — 20(c).) Clearly, IPI Criminal 2d No. 9.57 (Supp. 1989) reflects the adult community standard and its children or susceptible audience exception as set forth in section 11 — 20(c).

It is evident that the portion of IPI Criminal 2d No. 9.57 (Supp. 1989) concerning children and specially susceptible audiences was intended to be an optional part of the instruction as it is contained in brackets. Furthermore, the committee notes to IPI Criminal 2d No. 9.57 instruct to “[u]se applicable bracketed material.” (IPI Criminal 2d No. 9.57, Committee Notes (Supp. 1989).) This further suggests that the bracketed material is optional. The fact that the bracketed material is optional indicates that it was not intended to be used in every instance in which a jury is instructed on the definition of obscenity.

In the present case, defendant objected to the bracketed portion of the instruction and argued that the reference to children should be deleted because there was no evidence that the materials at issue were directed toward children.

We conclude that it was error for the trial court to have given the challenged portion of the instruction over objection without first making a finding that some evidence existed from which the jury might find that the material was specially designed for or directed to an audience of children. Any contrary holding would be tantamount to an approval of the optional instruction in all obscenity cases without reference to the evidence.

Defendant next contends that the exclusion of certain community standards evidence was a violation of due process. First, defendant argues that the trial court erred in ruling that two questions and their responses from Dr. Scott’s survey were inadmissible as evidence of community standards. The first question asked whether, in the interviewee’s opinion, the portrayal of sexual conduct in adult videos and magazines had become more or less acceptable in Illinois in recent years. The second question inquired as to the acceptability of “neighborhood video stores” making x-rated videos available to adults.

Our research reveals one case addressing the admissibility of community standards survey results in an obscenity prosecution. In People v. Nelson (1980), 88 Ill. App. 3d 196, this court held that it was error for the trial court to have excluded a survey of a sample of the adult population regarding the acceptability of depictions of sexually explicit materials. (Nelson, 88 Ill. App. 3d at 197-200.) In so holding, we relied in part on section 11 — 20(c)(4) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. ll-20(c)(4)), which provided that evidence showing the degree of public acceptance of sexually explicit material was admissible. (Nelson, 88 Ill. App. 3d at 198.) We further determined the survey questions and answers to be relevant because they showed that a majority of Illinois residents found depictions of nudity and actual or pretended sexual activities acceptable. (Nelson, 88 Ill. App. 3d at 198.) Such questions and answers are relevant to the questions of whether materials are patently offensive and whether such material appeals to prurient interest. (Nelson, 88 Ill. App. 3d at 198.) Lastly, we concluded that survey evidence may be the only way to prove degrees of acceptability of sexually explicit material as compared to its availability. Nelson, 88 Ill. App. 3d at 199.

While we held in Nelson that surveys regarding the acceptability of sexually explicit materials cannot be ruled inadmissible per se, we did not hold them to be admissible in all cases or in toto. In the present case, the trial court admitted all but two questions from the proferred survey. Question 16 of the survey asked, “In your opinion, has the portrayal of such sexual conduct, in adult videos and magazines, available only to adults, become more or less acceptable in recent years in Illinois?” (Emphasis in original.) Such a question, while arguably showing a trend in acceptability of sexually explicit materials, does not establish whether particular materials are presently acceptable. For instance, certain sexually explicit materials may be more acceptable today than a few years ago but may still remain unacceptable by a majority of the adult population. The issue in an obscenity prosecution is present day acceptance, not whether materials are more acceptable than they once were. Thus, the trial court properly excluded question 16.

Question 20 stated that “[m]any neighborhood video stores in Illinois have x-rated videos as described” and asked whether it is or is not acceptable “in Illinois for these neighborhood video stores to rent or sell such x-rated videos to adults requesting such material.” This question is clearly premised upon the assertion that many neighborhood video stores have sexually explicit videos. Such a premise is unproven, however. As such, it unfairly contaminates the results of question 20 in that it suggests that such videos are acceptable because they are marketed in many neighborhood stores. The use of the word “many” suggests widespread dissemination. The word “neighborhood” when contrasted with “adult video” or “adult bookstore” has a more familial connotation. Used in conjunction, and unsupported by any evidence, these words create a strong impression to the person responding to the survey that there is a degree of acceptability to the videos.

We also perceive an additional problem with admitting question 20 into evidence. Because it contains the unsupported assertion that many neighborhood video stores stock sexually explicit videos, there is a significant risk that the jury would conclude that many neighborhood stores do in fact carry such videos. This could have a direct impact on the jury’s determination of acceptability of the materials at issue in the trial. Absent some evidentiary basis to support such an assertion, the question was properly excluded. Accordingly, there was no clear abuse of discretion in excluding questions 16 and 20.

Furthermore, a trial court’s ruling concerning the relevance and admissibility of evidence will not be reversed unless, if an abuse of discretion, it results in a manifest prejudice to the defendant. (People v. Hayes (1990), 139 Ill. 2d 89, 130.) Even if the trial court erred in excluding questions 16 and 20, any error was harmless in light of the additional evidence presented from the survey relevant to the issue of community standards and acceptability. For example, the survey asked whether the portrayal of sexual conduct is acceptable in Illinois and whether it is acceptable that sexually explicit materials should be sold or rented to adults. Moreover, the degree of acceptability, indicated by the admitted questions was comparable to or slightly greater than the excluded questions. Consequently, under these circumstances, it was not manifestly prejudicial error to have excluded questions 16 and 20 from the trial.

Second, defendant maintains that it was error to exclude testimony concerning Larry Adelsberger’s visits to various adult bookstores and neighborhood video stores because such information constituted evidence of acceptability. Again, we will not reverse the trial court’s ruling in this regard absent a clear abuse of discretion resulting in manifest prejudice to defendant. (See Hayes, 139 Ill. 2d at 130.) In reviewing the discretionary ruling of the district court excluding admission of similar materials available on newstands, the United States Supreme Court held that while a defendant in an obscenity prosecution is entitled to an opportunity to present relevant, competent evidence bearing on the issues at trial the mere availability of similar materials in the community does not automatically make them admissible as tending to prove the nonobscenity of the materials which the defendant is charged with disseminating. (Bawling v. United States (1974), 418 U.S. 87, 125, 41 L. Ed. 2d 590, 625, 94 S. Ct. 2887, 2911-12.) The “[m]ere availability of similar material by itself means nothing more than that other persons are engaged in similar activities.” Hamling, 418 U.S. at 126, 41 L. Ed. 2d at 626, 94 S. Ct. at 2912.

The fact that other similar magazines and videos are available does not bear on the question of acceptability of those materials by the community. If that were the case, the dissemination of such materials could hardly be subject to prosecution as they would be necessarily acceptable by virtue of their availability. The fact that Adelsberger observed persons purchasing these magazines or renting videos does not substantially alter the result. Merely because certain individuals may choose to partake in the availability of sexually explicit materials does not establish the acceptability by the community of such materials. Again, the mere purchase of similar materials alone means nothing more than other persons are engaged in similar activities. Absent some concrete indication that the purchasers or renters of such materials represent a significant portion of the community, evidence of the acquisition of such materials does not bear on the question of acceptability. As such, the exclusion of Adelsberger’s testimony and his survey was not a clear abuse of discretion.

Third, defendant maintains that the trial court erred in refusing to take judicial notice of certain portions of a prior obscenity prosecution in Champaign County wherein the defendant was found not guilty by jury verdict. Defendant argues that because 10 of the magazines charged in the Champaign County case have identical titles as 10 of the magazines at issue here the not guilty verdict is strong evidence of acceptability of the magazines charged here.

Defendant cites no case directly addressing this issue, nor does our research reveal any. Defendant’s contention must fail for several reasons. First, it would be improper to take judicial notice of the findings of the jury in the Champaign County case because the parties in that proceeding are not the same as in the present case. (See People v. Free (1986), 112 Ill. 2d 154, 165-66.) Second, there is no evidence on this record that the magazines at issue in the Champaign County prosecution are the same as any of those in this case. While some of the titles are identical, there is no indication that they are in fact the same magazines or that they contain similar material. Third, we have no way of knowing the jury’s basis in the Champaign County case for its not guilty verdicts. It may be that the jury found an element other than obscenity of the materials to be lacking in the evidence. At the very least, it cannot be conclusively said that the basis of the not guilty verdicts was the nonobscenity of the 10 magazines. Thus, even if we concluded that it would be proper to introduce the record from the Champaign County prosecution as submitted by defendant, it would do nothing more than confuse the issues before the jury rather than aid the jury in arriving at its verdict. For all of the foregoing reasons, we hold that the trial court’s refusal to take judicial notice of the Champaign County record and admit it into evidence was not an abuse of discretion.

Finally, defendant contends that while none of the excluded items of evidence alone would be dispositive of the issue of community standards or the acceptability of the materials, the items are “strong evidence” of the degree of acceptability of such materials and comparable materials in Illinois. Because we have already held that such evidence was properly excluded from the trial, we necessarily reject this argument. Whether certain evidence is potentially dispositive or merely “strong evidence” is of no consequence if the evidence is otherwise inadmissible.

We need not address defendant’s final argument that the complaint was deficient for not including an allegation of obscenity as defendant has conceded in its reply brief that such deficiency did not render the complaint defective.

For the foregoing reasons, we reverse the judgment of the circuit court of Du Page County and remand this cause for a new trial.

Reversed and remanded.

BOWMAN and NICKELS, JJ., concur.