author: PRESIDING JUSTICE JIGANTI

text:
      In re MARRIAGE OF BARBARA GOCAL, Petitioner-Appellee, and MICHAEL GOCAL, Respondent-Appellant.
    First District (4th Division)
    No. 1 — 90—0303
    Opinion filed June 27,1991.
    David I. Grand, of Grand, Marcus, McNish, Knabe & Nadler, P.C., of Chicago, for appellant.

      Jerome Marvin Kaplan, of Batler & Schwartz, of Buffalo Grove, for appellee.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The respondent, Michael Gocal, appeals from an order of the trial court in which the court created a trust from the respondent’s nonmarital property for the support of his child through marriage to the petitioner, Barbara Gocal. Michael questions the authority of the trial court to create the trust and also contends that the court improperly directed that unallocated maintenance and a subsequent award of attorney fees be paid out of the monies earmarked for the trust fund. Michael also argues that Barbara’s attorney fees were excessive and raises an issue with respect to his visitation rights.

The parties were married in May of 1982. Barbara Gocal left the marital home in 1984, taking the parties’ young son, Matthew, who was born in July of 1983. In September of 1984, an order was entered requiring Michael Gocal to pay temporary child support for Matthew. Michael fell in arrears in his child support payments, and in March of 1988 the parties settled the accumulated arrearage. Michael again fell into arrears for child support due in 1988 and 1989. Although Barbara filed numerous motions concerning the child support, a contempt order was never entered against Michael.

During the marriage, Michael suffered a work-related injury. He filed a personal injury lawsuit, and in 1987 he received a settlement in the amount of approximately $95,000. He spent $45,000 and placed the remaining $50,000 in a mutual fund under his mother’s name.

At the time of the proceedings below, Michael had had bouts of manic depressive disorder. He had been hospitalized on occasion for treatment. At the time of the dissolution, Michael’s most recent hospitalizations had occurred in August and October of 1989. Michael admitted that if he did not take the medication he had been prescribed, he would require hospitalization. Michael’s psychiatrist testified that Michael’s prognosis was reasonably good if he continued his treatment.

Barbara testified that during 1982 and 1983, Michael abused alcohol and cocaine. She also testified that Michael had exhibited periods of aggressive behavior with members of his family and had assaulted his aunt. There was no evidence that Michael was aggressive or violent toward his son, Matthew. Like Michael, Matthew had also been diagnosed as a manic depressive. At the time of the proceedings, Matthew was receiving psychiatric treatment.

During 1988 and 1989, Michael enjoyed unsupervised visitation with his son, Matthew. During the pendency of the action below, the court appointed an attorney to represent the interests of Matthew. The court-appointed attorney reported in June of 1989 that in her opinion, Matthew and Michael had a positive relationship and that Matthew was happy with Michael. The attorney recommended that Michael be allowed unsupervised, regular visitation with Matthew. In a subsequent follow-up report, after Michael had suffered a violent episode and been hospitalized, Matthew’s attorney recommended that no further visitations be allowed until Michael had stabilized. In her final report in December of 1989, the attorney recommended that the visits between Michael and Matthew be resumed on a supervised basis.

On December 26, 1989, the trial court entered an order dissolving the marriage of Barbara and Michael Gocal. Michael was granted supervised visitation with Matthew for 12 months, after which Michael could petition the court for a modification of the visitation provision. The trial court stated that its intention was to eventually allow Michael to have unsupervised visitation with Matthew.

In determining the property distribution, the trial court specifically found that the $95,000 Michael received in settlement of his personal injury lawsuit was nonmarital property. The court also determined that in spending $45,000 of the settlement sum, Michael had not dissipated marital assets.

The court further ordered Michael to turn over to Barbara’s attorney the remaining $50,000 of the settlement proceeds which he had placed in a mutual fund under his mother’s name. Pursuant to section 503(g) of the Illinois Marriage and Dissolution of Marriage Act (Marriage and Dissolution Act) (111. Rev. Stat. 1987, ch. 40, par. 503(g)), the court directed Barbara’s attorney to establish a trust fund and make the following disbursements:

$20,000 for Matthew’s unpaid psychiatric bills;
$2,928 in child support arrearage for the period post-January 1, 1988;
$5,892 in attorney fees to the attorney appointed to represent Matthew’s interests;
$15,600 in unallocated support to Barbara and Matthew at the rate of $1,300 per month for 12 months, after which the court upon petition would review the support award.

In January of 1990, Barbara’s attorney petitioned the court for payment of attorney fees. The attorney’s petition was accompanied by an exhibit summarizing $12,187 worth of hours. In addition, the attorney testified to $3,900 of in-court fees, $662 of court costs, and a payment made to her by Barbara in the amount of $3,000. The court awarded Barbara’s attorney the sum of $19,500. Finding Barbara without the means to pay the attorney fees, the trial court, pursuant to section 508 of the Marriage and Dissolution Act, directed that the fee award be paid out of the monies Barbara’s attorney was holding pursuant to establishing the trust fund as ordered by the court in the judgment for dissolution. Ill. Rev. Stat. 1987, ch. 40, par. 508.

On appeal, Michael asserts that the trial court improperly invoked the remedial provision of section 503(g) of the Marriage and Dissolution Act in creating a trust for Matthew and Barbara’s benefit. Citing to In re Marriage of Bates (1986), 141 Ill. App. 3d 566, 490 N.E.2d 1014, Michael argues that the court is without authority to create such a trust absent a finding that the parent has been found in willful contempt of the court’s child support order. Further, Michael asserts that the court erred in directing out of the trust funds the disbursements for unallocated maintenance and for Barbara’s attorney fees, which he argues are in any case excessive. Michael admits that both the unallocated maintenance and the attorney fees have already been paid out of the trust monies. He seeks reimbursement only for any portion of the attorney fees that are deemed improper.

We do not believe that the trial court improperly invoked section 503(g) of the Marriage and Dissolution Act in creating a trust for the benefit of Michael’s son, Matthew. Under section 503(g), “[t]he court if necessary to protect and promote the best interests of the children may set aside a portion of the jointly or separately held estates of the parties in a separate fund or trust for the support, maintenance, education, and general welfare of any minor, dependent, or incompetent child of the parties.” Ill. Rev. Stat. 1987, ch. 40, par. 503(g).

Section 503(g) does not require, as a prerequisite to establishing a trust, a finding that the party has been in willful contempt of a court order. Nor do we view Bates as establishing this proposition as a rule. The court in Bates noted that not only had the respondent not been found in willful contempt, but also that the petitioner’s numerous child support petitions were unjustified, a point of distinction from the case at bar. As such, we view the holding in Bates as representing that the lack of a willful contempt order is a factor among other factors that the court may consider in determining whether a trust should be established.

We believe that the court in this case could find it necessary to place funds in trust in order to protect the best interests of Matthew. The record is replete with pleadings indicating that Michael was not complying with the support order. Barbara also testified that Michael did not keep up with his support obligations. Further, it is uncontroverted that Michael had settled one child support arrearage with Barbara and was at the time of the trial again in arrears.

We do agree that unallocated maintenance and an award of attorney fees are not proper distributions from a fund set up for the child’s benefit under section 503(g). (See generally In re Marriage of Clarke (1984), 125 Ill. App. 3d 432, 465 N.E.2d 975.) Section 503(g) speaks specifically and exclusively to the needs of the child. As Michael has asked for no relief with respect to the unallocated maintenance, no action is required.

With respect to Barbara’s attorney fees, Michael has requested that any excessive or inappropriate fees be reimbursed. In asserting that Barbara’s attorney fees were excessive, Michael argues that the fees were both unjustified and unsupported by the evidence. Michael points out that although Barbara's attorney petitioned for fees in the amount of $19,500, the affidavit attached to her petition supports only $12,187 worth of out-of-court fees. This amount, together with $3,900 of in-court fees, $662 in costs, and less a $3,000 payment made by Barbara to her attorney, totals $13,750. This is the sum for which the attorney has presented evidentiary support. Accordingly, we reduce the attorney fee award to $13,750.107 Ill. 2d R. 366(a)(5).

Finally, Michael argues that in ordering supervised visitation for 12 months, the court improperly limited his visitation with Matthew. We disagree. The disposition of matters of child custody rests largely in the discretion of the trial court. (In re Marriage of Johnson (1981), 100 Ill. App. 3d 767, 427 N.E.2d 374.) At the time that the trial court ordered that Michael be temporarily restricted to supervised visitation with Matthew, Michael had twice in the recent past undergone hospitalization for manic episodes. There was evidence from Barbara and Michael’s psychiatrist that when Michael suffered manic episodes, he became aggressive and out of control. Further, the child’s attorney recommended that Michael’s visitation with Matthew be supervised temporarily. The court provided for a reevaluation of Michael’s visitation rights after 12 months. Under these circumstances, we do not believe the trial court abused its discretion in temporarily limiting Michael’s visitation. For these reasons, the trial court’s ruling is affirmed as modified and the case is remanded for an order consistent with this opinion.

Affirmed as modified and remanded.

JOHNSON and LINN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    SANFORD SANDELMAN, as Trustee, et al., Plaintiffs-Appellants, v. BUCKEYE REALTY, INC., et al., Defendants-Appellees.
    First District (6th Division)
    No. 1 — 89—3347
    Opinion filed June 28,1991.
    — Rehearing denied August 8,1991.

      Holleb & Coff and Pope & John, both of Chicago (Howard J. Stein, Howard M. Hoffman, James W. Marks, and Michael J. Hewlett, Jr., of counsel), for appellants.
    Ross & Hardies, of Chicago (Jeffery M. Cross and Deborah S. Pardini, of counsel), for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiffs, Sanford and Susan Sandelman (landlord), as trustees for the Aneff and Alisan Trusts, respectively, filed a declaratory judgment action asking the court to determine whether defendants, Deseo Corporation and Buckeye Realty, Inc. (tenant), were in default under the terms of a long-term commercial lease for failing to replace the roof on the demised premises. After a trial without a jury, the court held that plaintiffs were obligated to replace the roof, and that defendants were not in default and were entitled to exercise their option to extend the lease term. Plaintiffs appeal.

The relevant facts are as follows. On November 30, 1949, the trustees of the Jas. P. Marsh Employees’ Profit Sharing Trust (Trust) entered into a lease with the Jas. P. Marsh Corporation (Marsh) for commercial premises located at 3501 West Howard Street, Skokie, Illinois. The lease provided for an initial rental term of 25 years, with periodic five-year extensions totaling an additional 45-year rental period. The lease is a “triple-net lease,” wherein tenant is responsible for real estate taxes, maintenance and insurance expenses. The original lease provided for a market value rental rate, and renewal terms were set below market value. There is no right to the tenant to purchase upon termination of the lease. Marsh utilized the building for the manufacture of various types of gauges, thermometers and other instruments.

The Trust subsequently conveyed the property, subject to the long-term lease, to the Penn Mutual Life Insurance Company (Penn Mutual). In 1951, a supplemental agreement of lease modifying the rental terms of the lease was entered into between Penn Mutual and Marsh.

In 1982, plaintiffs purchased the premises for $120,000 from Penn Mutual subject to the original lease and supplemental agreement, and became the landlord under the lease. The Aneff and Alisan Trusts are deedholders to the Skokie property, which is managed by Kin Properties, a real estate company that manages over 600 buildings throughout the United States and Canada for the Sandelman family. Kin specializes in buying commercial properties that are encumbered by below market leases, thereby holding down the ultimate value of the property until the time of the nonrenewal expiration or end of any lease term.

On March 17, 1988, Deseo Corporation acquired the assets of Marsh, including the long-term lease on the subject premises. As such, Deseo acquired possession of the premises subject to the benefits and obligations of the original lease and supplemental agreement. At the time Deseo acquired the property, one year remained on the current lease term with an option to renew for six successive five-year terms. (Deseo subsequently assigned the lease to Buckeye, a sister corporation with identical ownership.) Deseo planned eventually to relocate Marsh’s business operations and rent the premises to a third party. The lease permits the tenant to assign or sublet the building.

On November 14, 1988, the tenant advised the landlord in writing of its intention to exercise its option to extend the lease. The landlord informed the tenant that it would not extend the lease term because the tenant was in default for failing to properly maintain the building and effectuate necessary repairs. The landlord compiled a list of repairs that it required the tenant to perform, several of which concerned repair and replacement of the roof. The landlord further stated that the tenant’s notice to extend the term of the lease was ineffective, as it was in default at the time it attempted to extend the lease.

The landlord filed a declaratory judgment action seeking to determine whether the tenant was in default under the terms of the lease and a separate forcible entry and detainer action. The tenant in turn sought a declaratory judgment that it was not in default and that it effectively notified the landlord of its intention to extend the lease term. The court consolidated all actions prior to trial.

At trial, several expert witnesses testified for both sides concerning the condition of the roof and whether repair was cost effective or if replacement was required. The consensus of the expert witnesses’ testimony was that the roof had a useful life span ranging between 18 and 30 years. At the time of trial, the roof was approximately 40 years old. (On appeal, replacement of the roof is not at issue.)

The trial judge found the language contained in the lease under the heading of “Condition and Upkeep of Premises,” as set forth in paragraph 3 of the original lease, dispositive in the determination of whether the landlord or the tenant was obligated to replace the roof. That section provides in relevant part:

“Tenant at its own expense during the term of this lease or any extension thereof will keep said premises and all buildings and improvements of permanent character *** in good repair, replacing all broken glass with glass of the same size and quality as that broken; and replace all damaged plumbing, electrical and other fixtures with other of equal quality, and will keep said premises in a clean and healthful condition *** and upon termination of this lease, in any way, will yield up said premises to Landlord in good condition and repair (ordinary wear excepted) ***.***
* * *
Landlord shall not be obligated to incur any expense for repairing any improvements on the demised premises or connected therewith during the term of this lease or any extension thereof.”

The trial judge determined that the roof could no longer be repaired and required replacement. The court applied the test set forth in Kaufman v. Shoe Corporation of America (1960), 24 Ill. App. 2d 431, 164 N.E.2d 617, to determine which party was responsible for replacement of the roof. In Kaufman, the court held that where alterations are of a structural or substantial nature and are made necessary by extraordinary or unforeseen future events not within the contemplation of the parties at the time the lease was executed, the landlord is responsible for such alterations or additions. Kaufman v. Shoe Corporation, 24 Ill. App. 2d at 436, 164 N.E.2d at 617.

The trial judge held that replacement of the roof constituted a substantial improvement, thereby satisfying the first element of the Kaufman standard. However, replacement of the roof in a commercial lease that could potentially extend over a 70-year term was unquestionably a foreseeable occurrence. Upon review of the language in paragraph 3, the judge found that replacement of the roof by the tenant was not within the plain language under the terms of the lease and that the landlord was obligated to replace the roof on the building now 40 years old. The court concluded that the tenant properly notified the landlord of its intention to exercise its option to extend the lease for an additional five-year period.

The landlord contends that the language contained in paragraph 3 requiring tenant at its own expense to keep all buildings and improvements “in good repair,” in conjunction with the proviso that “landlord shall not be obligated to incur any expenses for repairing any improvements on the demised premises” is sufficient to impose the obligation of replacing the roof upon the tenant.

It is instructive to review the ordinary meaning of the word “repair” as defined in Webster’s Third New International Dictionary, to wit: to restore by replacing a part or putting together what is torn or broken: FIX, MEND. (Webster’s Third New International Dictionary 1923 (1986).) The word “repair” involves the idea of something preexisting; the term contemplates an existing structure the condition of which has been affected by decay, waste, injury, or partial destruction. (76 C.J.S. Repair §314, at 1170 (1952).) An ordinary covenant of “good repair” does not include replacement of a roof which has become so run down that it cannot be repaired. Scott v. Prazma (Wyo. 1976), 555 P.2d 571.

Upon review of the lease, we note the absence of any express language pertaining to the roof, although the lease requires defendant, as lessee, to keep the demised premises in “good repair.” A general covenant of the tenant to repair, or to keep the premises in repair, merely binds him to make the ordinary repairs reasonably required to keep the premises in proper condition; it does not require him to make repairs involving structural changes, or to make renewals and replacements which would last a lifetime. 51C C.J.S. Landlord & Tenant §1 et seq. (1968).

In order to shift to the tenant a burden which would naturally fall on the landlord, the warrant for the change should be plainly discoverable in the lease. (Kaufman v. Shoe Corporation, 24 Ill. App. 2d at 438, 164 N.E.2d at 620.) The record indicates that the landlord in this case was a sophisticated investor in over 600 commercial real estate properties. It is reasonable to infer that it had acquired sufficient business acumen in managing these extensive real estate holdings to realize that the party responsible for undertaking any substantial improvement to the premises, such as replacement of the roof at an estimated cost of $760,000, must be specifically addressed in the lease.

We find that the court correctly concluded that the landlord must bear the burden of replacing the roof on the demised premises, and that the tenant is not in default and may extend the lease term. At the conclusion of trial, the judge acknowledged that his holding “could well be characterized as an unfair result” in view of the decreasing monthly rental schedule which falls far below the market value of the property. However, this court has found it unfair to require a lessee to provide substantial permanent improvements necessary to his enjoyment of the lease which he could not have foreseen when the term began. Koenigshofer v. Shumate (1966), 68 Ill. App. 2d 474, 477, 216 N.E.2d 195,196.

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

Judgment affirmed.

EGAN and LaPORTA, JJ., concur.


author: JUSTICE CAMPBELL

text:
    SANTA CLAUS INDUSTRIES, INC., Plaintiff-Appellant, v. THE FIRST NATIONAL BANK OF CHICAGO, Defendant-Appellee.
    First District (1st Division)
    No. 1 — 89—2269
    Opinion filed June 28,1991.

      Shefsky & Froelich, Ltd., of Chicago (Joel J. Sprayregen and William H. Gifford, Jr., of counsel), for appellant.
    Lynn A. Goldstein and Cynthia H. Hyndman, both of First National Bank of Chicago, of Chicago, for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Santa Claus Industries, Inc. (SCI), appeals from the trial court’s order which granted the section 2 — 619 motion (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619) filed by defendant, the First National Bank of Chicago (FNBC), dismissing, with prejudice, SCI’s complaint for accounting and discovery. On appeal, SCI contends that: (1) the trial court incorrectly found that SCI’s accounting action had accrued in 1978 and, thus, was barred by the five-year statute of limitations; and (2) FNBC had fraudulently concealed facts from SCI, thereby tolling the running of the limitations period. For the following reasons, the judgment of the trial court is affirmed.

The record sets forth the following facts relevant to this appeal. SCI’s accounting action was predicated on a workout loan executed in April 1975 by SCI, Illinois J.P. & Company, Inc. (JP), Technical Publishing of Illinois, Inc. (TPI), and FNBC. A brief history of the relationship of these parties clarifies the terms of the workout loan. Prior to the workout loan, SCI and JP had a debtor-creditor relationship with FNBC. SCI also alleges that FNBC owned 20% of its stock. The record indicates that at one point in 1970, SCI owed FNBC in excess of $3 million, and had a negative net worth of $1 million. However, the record does not indicate whether SCI owed any money to FNBC at the time the workout loan was negotiated. With respect to JP, at the time of the workout loan, JP owed FNBC approximately $1.8 million, partially secured by 50,000 shares of Digest Books stock owned by JP. JP’s loan was in default.

Pursuant to the terms of the April 1975 workout loan, FNBC agreed to accept a note from JP in the amount of $750,000, payable on July 1, 1982, with no interest, as settlement of JP’s $1.8 million debt. SCI then agreed to purchase the assets of JP, including the stock pledged to FNBC, and to assume JP’s obligation to FNBC. SCI also guaranteed the indebtedness from JP to FNBC. FNBC then released its interest in the Digest Books stock and SCI sold the stock to TPI in exchange for TPI’s note in the amount of $750,000, with interest, dated April 2, 1975 (the TPI Note). Pursuant to the terms of the TPI Note, TPI was to pay the interest quarterly, commencing July 15, 1975, and to pay the principal in five equal annual installments, commencing April 2, 1976. Payments were to be made at FNBC’s offices. SCI then assigned the TPI Note to FNBC, which was to collect TPI’s payments and apply them to the debt assumed by SCI. In effect, SCI’s assumption of JP’s debt was consideration between SCI and JP for the sale of JP’s assets. SCI’s subsequent assignment of the TPI Note to FNBC was consideration between SCI and FNBC for FNBC’s release of its security interest in the Digest Books stock. FNBC opened a new account specifically for the receipt of interest and principal payments on the TPI Note. Pursuant to the record, the TPI Note was prepaid on January 19, 1978. The total amount collected, including interest, was $864,948.99.

In 1984, SCI and FNBC entered into an agreement whereby SCI was to buy back its own shares from FNBC. SCI made its final payment on the buy back in 1987, at which time FNBC returned the shares. Subsequently, on September 29, 1988, SCI filed a complaint for accounting and discovery against FNBC. In its complaint, SCI alleged that FNBC had refused to account for all of the interest payments it had received from TPI on the TPI Note and had refused to pay over to SCI all of the interest it had received. In response, FNBC filed a section 2 — 615 motion (Ill. Rev. Stat. 1989, ch. 110, par. 2— 615) to dismiss on the grounds that SCI had assigned all of its interest in the TPI Note to FNBC and that SCI had no claim to the interest payments. The trial court denied FNBC’s section 2 — 615 motion. FNBC then filed a section 2 — 619 motion to dismiss, arguing that SCI’s accounting action had accrued at the very latest in April 1980, when, pursuant to the terms of the TPI Note, the final interest payment was due, and that the action was barred by the five-year statute of limitations set forth in section 13 — 205 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 205).

In response, SCI filed a memo in opposition, in which it argued that: (1) pursuant to the terms of the assignment of the TPI Note from SCI to FNBC, FNBC was not entitled to retain any payments made by TPI in excess of $750,000; (2) although the five-year limitations period set forth in section 13 — 205 of the Code applied to the cause of action, the cause of action did not accrue until May 5, 1989, the date FNBC had produced the payment history on the TPI Note; (3) if the action had accrued in 1978, the limitations period had been tolled by FNBC’s fraudulent concealment of the relevant facts regarding TPI’s interest payments; and (4) a fiduciary relationship existed between SCI and FNBC which mandated that FNBC account to SCI for the payments received from TPI.

In support of its claim of fraudulent concealment, SCI attached the affidavit of Norman Cohn, its president, who stated that in late 1978/early 1979, he had met with Robert Heymann, a senior commercial loan officer at FNBC, and had inquired as to whether TPI had paid anything in excess of $750,000 to FNBC. Heymann allegedly told Cohn not to worry and that he had received everything that he was supposed to receive. In support of its claim, that a fiduciary relationship existed between itself and FNBC, SCI alleged that, at the time it had assigned the TPI Note to FNBC, FNBC was SCI’s largest creditor; FNBC owned 20% of SCI’s stock; and FNBC “effectively directed the major decisions” made by SCI.

In its reply to SCI’s memo in opposition, FNBC argued that the essence of the assignment of the TPI Note by SCI to FNBC was that in return for principal payments of $750,000 and interest payments of approximately $114,000, FNBC would forgive a $1.8 million debt and would release its security interest in 50,000 shares of Digest Books stock. FNBC argued that, when SCI assigned the TPI Note, SCI gave up nothing and undertook no obligation because its guarantee limited recourse by FNBC to an action against TPI. FNBC further denied any fraudulent concealment or fiduciary relationship, and attached the affidavit of Robert Gripe, human resources officer of FNBC and manager of pension administration, who stated that, pursuant to FNBC’s personnel file, Robert Heymann, the loan officer to whom Cohn had allegedly spoken in late 1978/early 1979, had left FNBC’s employ on August 30, 1974, and had died on April 26, 1985. FNBC then filed a motion to strike Norman Cohn’s affidavit and a motion for sanctions.

Following a hearing on the motions, the trial court denied FNBC’s motions to strike the affidavit and for sanctions, but granted the section 2 — 619 motion to dismiss with prejudice, finding that the loan officer’s statement to SCI’s president in late 1978/early 1979 “would clearly put any sophisticated businessman, and that’s what these people are, on notice that the matter was over with and that any disagreement on that point was ripe.” SCI’s timely appeal followed.

Initially, in reliance on Conway v. Conners (1981), 101 Ill. App. 3d 121, 427 N.E.2d 1015, SCI argues that the statute of limitations is not a defense to an accounting action. However, SCI’s reliance on Conway is misplaced. Although an accounting was one of seven forms of relief requested by the plaintiff in Conway, the court characterized plaintiff’s lawsuit as a stockholders’ derivative action, which sounds in equity and for which the statute of limitations is not a bar. (101 Ill. App. 3d at 124.) By contrast, the cause of action in the present case is an accounting action, which sounds in both law and equity and for which the statute of limitations has long been held to be a valid defense. Pratl v. Hawthorn-Mellody Farms Dairy, Inc. (1977), 53 Ill. App. 3d 344, 368 N.E.2d 767. See also Schlossberg v. Corrington (1980), 80 Ill. App. 3d 860, 400 N.E.2d 73.

SCI next argues that the trial court erred in granting FNBC’s section 2 — 619 motion to dismiss based on its determination that SCI’s accounting action had accrued in 1978 and, thus, was barred by the five-year statute of limitations. As a general rule, a section 2 — 619 motion is properly allowed only when it raises an affirmative matter which negates plaintiff’s cause of action completely or when it refutes crucial conclusions of law or conclusions of material fact that are unsupported by allegations of specific facts. On review, although the appellate court is limited to a consideration of the legal questions presented by the pleadings, it is not required to defer to the trial court’s reasoning. Instead, it may affirm a dismissal of a complaint on any grounds supported by the record. (Miranda v. Jewel Cos. (1989), 192 Ill. App. 3d 586, 548 N.E.2d 1348.) In the present case, we affirm the trial court’s dismissal of SCI’s complaint, but disagree with the trial court’s finding that SCI’s cause of action accrued in late 1978/early 1979.

Neither SCI nor FNBC disputes the applicability of the discovery rule, which provides that the relevant statute of limitations begins to run when a person knows or reasonably should have known of his injury and also knows or reasonably should have known that it was wrongfully caused. (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 430 N.E.2d 976.) The term “wrongfully caused” does not connote knowledge of the existence of a cause of action. (88 Ill. 2d at 416.) Instead, it is a general or generic term, signifying the point at which the injured person has sufficient information concerning his injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is involved. (88 Ill. 2d at 416.) At that point, the party is obligated to inquire further to determine whether an actionable wrong was committed. (Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 171, 421 N.E.2d 864.) Generally, the determination as to when an injured party knows or reasonably should have known of his injury and that it was wrongfully caused is a question of fact. However, if it is apparent from the undisputed facts that only one conclusion can be drawn, the determination is one of law to be made by the court. Witherell v. Weimer (1981), 85 Ill. 2d 146, 156, 421 N.E.2d 869.

In the present case, SCI and FNBC have vacillated throughout the proceedings as to the date SCI’s cause of action accrued. In its memo in opposition filed in the trial court, SCI argued that the cause of action accrued on May 5, 1989, the date FNBC had produced the payment history on the TPI Note in response to SCI’s discovery request in this action. However, in its brief on appeal, SCI contends that the cause of action accrued in 1987 when its relationship with FNBC terminated and FNBC allegedly refused to provide SCI with information as to the amount received from TPI as payment on the TPI Note. Similarly, in its section 2 — 619 motion filed in the trial court, FNBC claimed that SCI’s action accrued “at the very latest” in April 1980, when the final interest payment on the TPI Note was scheduled to be made. Later, in its reply to SCI’s memo in opposition, FNBC argued that the limitations period began to run “at the very latest” in January 1978 when the final payment under the TPI Note was made. Then, in its brief on appeal, FNBC argues that the cause of action accrued in late 1978/early 1979 when SCI’s president had his conversation with a loan officer at FNBC.

In our view, FNBC defeated its own argument that the cause of action accrued in late 1978/early 1979 when it filed its counteraffidavit which effectively negated the affidavit of SCI’s president regarding his late 1978/early 1979 conversation with Robert Heymann. FNBC’s counteraffidavit established that the conversation with Heymann could not have taken place because Heymann was not employed by FNBC at that time. As a result, whether the conversation took place was a disputed material fact which could not support a decision to dismiss the cause of action as a matter of law. Consumer Electric Co. v. Cobelcomex, Inc. (1986), 149 Ill. App. 3d 699, 501 N.E.2d 156.

However, the terms of the TPI Note are not disputed, and, in our view, based on these terms, only one conclusion can be drawn: SCI’s cause of action accrued in April 1980, when the final payment under the TPI Note was due. The record indicates that SCI had a copy of the TPI Note and was on notice as to its terms, which in-eluded a payment schedule. Even if SCI did not know in late 1978/ early 1979 that TPI had prepaid its obligation under the TPI Note, it knew that TPI was obligated to make quarterly interest payments, commencing July 15, 1975, and it knew that the TPI Note was due and payable in April 1980. Therefore, when SCI never received any interest payments by April 1980, it knew or should have known that it had been injured and that the injury had been wrongfully caused. Pursuant to section 13 — 205 of the Code, SCI had five years from that date within which to file its accounting action.

Our decision that SCI’s cause of action accrued in April 1980 obviates the need to address SCI’s contention that the statement by FNBC’s loan officer in late 1978/early 1979 was an affirmative act by FNBC to fraudulently conceal from SCI facts pertinent to TPI’s payments on the TPI Note, and acted to toll the running of the limitations period. However, our decision does not obviate the need to address SCI’s contention that FNBC’s silence as to the amount of interest payments paid by TPI constitutes fraudulent concealment because a fiduciary relationship existed between SCI and FNBC. As a general rule, a fiduciary relationship does not exist between a guarantor-creditor or between a debtor-creditor as a matter of law. (Farmer City State Bank v. Guingrich (1985), 139 Ill. App. 3d 416, 487 N.E.2d 758.) SCI is correct that a fiduciary relationship can exist between a guarantor-creditor under certain circumstances. (Farmer City State Bank v. Guingrich, 139 Ill. App. 3d 416, 487 N.E.2d 758.) However, SCI failed to allege the existence of such circumstances in its complaint.

The burden of proving the existence of a fiduciary relationship lies with the party seeking relief. Where the alleged relationship does not exist as a matter of law, the plaintiff must plead facts from which a fiduciary relationship arises. (Farmer City State Bank v. Guingrich, 139 Ill. App. 3d 416, 487 N.E.2d 758.) For example, the party seeking to establish the relationship must show that he placed trust and confidence in another so that the other gained influence and superiority over him. This degree of trust and confidence can be shown by such factors as degree of kinship, age disparity, health, mental condition, education, business experience, and extent of reliance. Farmer City State Bank v. Guingrich, 139 Ill. App. 3d 416, 487 N.E.2d 758.

In the present case, SCI alleged nothing more than a debtor-creditor relationship with FNBC in its complaint. Count I of SCI’s complaint stated that on or about April 2, 1975, SCI purchased all of the assets of JP and assumed the obligations of a promissory note JP had executed in favor of FNBC; FNBC held 50,000 shares of stock in Digest Books, Inc., as collateral for JP’s note; on or about April 2, 1975, FNBC released the stock; on or about April 2, 1975, SCI sold the stock to TPI for $750,000, paid for in the form of a secured, nonnegotiable note; TPI was to make interest payments on the note to SCI; SCI believes TPI paid the interest to FNBC; and FNBC refused to account for the interest payments. Count II addressed SCI’s discovery request. As the aforementioned indicates, SCI has failed to allege any facts which would give rise to a fiduciary relationship between itself and FNBC. Although SCI did argue in its memo in opposition that FNBC owned 20% of SCI’s stock and directed SCI in its major business decisions, more than bare statements are required. (De Witt County Public Building Comm’n v. County of De Witt (1984), 128 Ill. App. 3d 11, 469 N.E.2d 689.) Accordingly, we find that SCI failed to state a fraudulent concealment claim predicated on a fiduciary relationship.

For the aforementioned reasons, the judgment of the trial court is affirmed.

Affirmed.

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


author: JUSTICE EGAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN MACK, Defendant-Appellant.
    First District (6th Division)
    No. 1 — 88—0902
    Opinion filed June 28,1991.

      Randolph N. Stone, Public Defender, of Chicago (Bruce Landrum, Assistant Public Defender, of counsel), for appellant.
    John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Gael O’Brien, and Susan S. Wigoda, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE EGAN

delivered the opinion of the court:

A jury convicted the defendant, John Mack, of aggravated criminal sexual assault; he was sentenced to a term of 30 years in the Illinois Department of Corrections. He contends that he was not proved guilty beyond a reasonable doubt and that the judge erred when he permitted the eight-year-old prosecutrix to testify.

Before trial the defendant filed a motion in limine to preclude the testimony of S.R., who was eight years old. On direct examination, S.R. testified that she had three brothers and one sister. She was in second grade and lived with her grandparents. She knew her colors and the days of the week. She knew the difference between the truth and a lie, but she did not know the name of the city where she lived.

On cross-examination, she stated the assistant State’s Attorneys told her what to say. They rehearsed the questions and answers a number of times. She then said she did not know the difference between the truth and a lie; she did not know what a courtroom was; and she could not read, print or add numbers.

On redirect examination, she said that the assistant State’s Attorneys did not give her the answers to the questions; they were her own answers.

On re-cross-examination, she said that the assistant State’s Attorney told her what to say. She told her what to tell the judge about what happened with the defendant; she did not know the difference between the truth and a lie.

Before ruling, the judge asked S.R. what color a particular book was, and S.R. answered correctly. The judge found S.R. to be “plainly competent” and denied the motion to bar her testimony.

She testified that she lived with her grandparents, Rose and Earl. She used to live with her mother, Sherlie Ann Richardson, her grandmother, Gracie Farr, and her Uncle Neil. Her brothers, Anthony, Cortes and Fonzo, and sister, Crystal, also lived there.

She was in bed in her mother’s room when the defendant (Pumpkin) woke her up. He was taking off his shoes and shirt, and then he got into bed with her. He took off her panties and started licking her “cat” with his tongue. She stood up and showed the jury where the defendant was licking her by pointing to her vagina. She also showed the jury how the defendant licked her by using her fingers in a repeated motion from front to back.

After the defendant began licking her, he slapped her in the left cheek. She screamed for her grandmother, and the defendant told her to shut up. She then asked to go to the bathroom, but the defendant said, “No.” She then “peed” in the bed because “she had to go to the bathroom.” The defendant then started licking her vagina again.

The next thing she remembered was that her brother Cortes, her Uncle Neil, and her Grandmother Gracie came into the room. Uncle Neil turned on the light and the defendant jumped up. Neil asked the defendant what he was doing, and the defendant said, “I thought it was a cat.” S.R. then went to her grandmother’s room with only a T-shirt on.

During her testimony, S.R. also used an anatomically correct doll to demonstrate what the defendant did to her. She took the doll’s panties off and said that the defendant started licking her in the vagina. She demonstrated by pointing to the vaginal area on the doll. She also used an open hand to show on the doll how the defendant slapped her left cheek as he told her to “shut up.” She also showed how the defendant covered her mouth with his hand as he told her to shut up, and how he bit her navel.

Later, while in her grandmother’s room, S.R. told her Uncle Neil that the defendant had “juiced” and slapped her. A few days later, some police came to her house and showed her photographs. She identified the defendant from the photographs and also identified him in court.

On cross-examination, she stated that she was telling the truth at her competency hearing when she testified that the prosecutor told her what to say about the defendant. She rehearsed the story "with the prosecutor over 10 times. She also stated that she talked to the police and told them of the incident; but she did not tell them that the defendant took off his pants. She also told social workers of the incident that the defendant put his thing in her vagina; but the thing she was referring to was his tongue. She was repeating the second grade and was making all “F’s.”

On redirect examination, she said that the prosecutor did not coach her. On re-cross-examination, she repeated that she was coached and that she did not know what the truth or a lie was.

Dr. Maria Cruz, a pediatrician, testified that she saw S.R. on December 23, 1986, in the pediatric emergency room at Mt. Sinai Hospital. She interviewed S.R. alone, and S.R. told her that her mother brought her to the hospital “because a John Mack or Pumpkin tried to *** suck her, bite her, juice her.”

Dr. Cruz testified that there was a “diffused or reddened area” on S.R.’s left cheek that was consistent with her having been slapped. She also stated that the examination of S.R. showed that her “labia were swollen and red.” Over S.R’s “left labial fold, there was a *** strand of hair which was thick, about 5 centimeters.” She testified that, since S.R. did not have pubic hair, that hair should not have been there. Her clinical findings were “definitely” consistent with “someone having licked [S.R.’s] vagina.”

S.R.’s uncle, Cornelius Farr, who is called Neil, testified that he was awake at 5 a.m. giving his grandmother some medicine. He let the defendant into the house. The defendant was looking for S.R’s. mother, Sherlie Ann. The defendant went to Sherlie Ann’s room, where S.R. was sleeping. Suddenly, Neil heard a scream coming from his sister’s room. He ran to the door with his mother and Cortes, S.R.’s brother, opened the door and turned on the light. He saw the defendant jump off his niece and off the bed. He asked the defendant what he was “doing to her.” The defendant said, “I thought it was a cat or something like that.”

Neil testified that S.R. was crying when he came into the room. She told him the defendant slapped her twice on her face; her face was red. She was wearing a top and no panties. Neil then sent her to her grandmother’s room. After a few minutes, S.R.’s mother came home, and she went with Neil to a pay phone to call the police. The defendant left when they went to call the police.

Cortes Farr testified that he was asleep at home when a knock on the front door woke him up. He answered the door with his Uncle Neil. The defendant was at the door and asked if Cortes’ mother, Sherlie Ann, was home. Neil said she was not home, and the defendant went to her room and closed the door. Cortes was talking to his uncle and grandmother when about three or four minutes later he heard his sister scream. S.R. was screaming, “Grandma.” When Cortes and Neil got to Sherlie Ann’s room, Neil opened the door and turned on the light. He saw “Pumpkin Mack with his head down by [his] sister’s vagina.” The defendant and S.R. were in the bed.

When Neil turned on the light, the defendant jumped up. Neil asked S.R. “What did he do?” S.R. said, “He slapped me two times.” Cortes noticed that the defendant had no shirt or shoes on and his pants were unzipped. S.R. was lying on top of the bed and was crying. She was only wearing a top. He noticed that the left side of her cheek was red. S.R. told her grandmother, “He slapped me twice, and then he tried to juice me.” Cortes and Neil asked the defendant what he did to S.R., and he said he did not do anything.

When his mother came home, Cortes went with her and Neil to call the police. The defendant walked behind them “and then he went through this alley, and then he disappeared.”

After S.R. identified the defendant’s picture to the police, his name and picture were submitted to the Chicago Police Daily Bulletin.

Officer John Patton testified that he saw a Chicago Police Daily Bulletin with the defendant’s picture in it. On February 3, at about 1 a.m., he was off duty near 3800 West Chicago Avenue. He saw the defendant entering a motorcycle club house at 3803 West Chicago. Patton went to a pay telephone, dialed 911 and requested uniformed officers to assist. When the officers arrived, Patton entered the motorcycle club house and went to the rear, where he saw the defendant seated at a table. When the defendant saw the officers, he got up and ran. Patton caught the defendant at the rear door.

Detective James Schreiner testified that he interviewed the defendant after advising him of his rights. The defendant told him that he entered the home at 4:30 a.m. looking for S.R.’s mother. He went into her bedroom and lay down to wait for her. Suddenly, he heard a little girl screaming. He later repeated the same story to Assistant State’s Attorney David Cuomo.

Earl Johnson, a former police officer, testified for the defendant that Officer Patton hated the defendant. On one occasion, Patton got into an argument with the defendant at the Demons Motorcycle Club. Johnson also said that the defendant lived with him for three months and baby-sat for his children.

The defendant testified that he met Sherlie Ann Richardson in February 1986 through his “godbrother” Roger Harris. Sherlie Ann and Roger were being harassed and threatened by people in the neighborhood, whom they owed “drug money.” The defendant told them that he would talk to the persons that were threatening them. He stayed with Sherlie Ann for two weeks; he also paid off the $1,500 Sherlie Ann and Roger owed the drug dealers.

He testified that he went to Sherlie Ann’s home on December 23 to collect part of the debt. Sherlie Ann was not there, but Neil let him in. Neil told him his sister was home. The defendant looked for Sherlie Ann, but could not find her; so he waited for her in her room. No one was in the room when he entered; he turned on the light; sat on the bed; and turned on the television. He did not see S.R. in the bedroom. Sherlie Ann returned home about 20 minutes later, and they argued about the money. Finally, conceding the loss of the money, the defendant left the house.

Before he went to Sherlie Ann’s home, he had gone to a “motorcycle set” from 10 p.m. until 4 a.m. At the “set” (party) the defendant smoked marijuana and drank six or seven beers and some wine.

Assistant State’s Attorney David Cuomo testified in rebuttal as to the defendant’s statements which were contrary to his testimony.

The defendant now concedes there is no additional requirement that in a case in which a sex offense is charged the State must, in addition to proving the defendant guilty beyond a reasonable doubt, demonstrate either the evidence is substantially corroborated or the victim’s testimony is clear and convincing. (People v. Westfield (1990), 207 Ill. App. 3d 772, 566 N.E.2d 392; People v. Roy (1990), 201 Ill. App. 3d 166, 558 N.E.2d 1208.) The standard of proof in a sex case is precisely the same as in any other criminal case.

We reject the defendant’s argument that he was not proved guilty beyond a reasonable doubt. The totality of the evidence establishes a strong case for the prosecution. The testimony of S.R. concerning the occurrence was straightforward and clear. Moreover, it was substantially corroborated by the testimony of her brother and uncle and, most important, by the testimony of Dr. Cruz. (See People v. Helton (1990), 195 Ill. App. 3d 410, 552 N.E.2d 398.) In addition, the State established the defendant’s flight; and his testimony was impeached by the assistant State’s Attorney and Officer Schreiner.

We must also disagree with the defendant’s alternative contention that the judge erred when he permitted S.R. to testify. The question of a witness’ competency is to be determined by the trial judge, and a reviewing court may not disturb such a determination unless it is clear that the trial judge abused his discretion or misapprehended some legal principle. (People v. Epps (1986), 143 Ill. App. 3d 636, 493 N.E.2d 378.) The controlling factor in determining a child’s competency is the degree of intelligence, not age. (People v. Ballinger (1967), 36 Ill. 2d 620, 225 N.E.2d 10.) A child is competent to testify if mature enough to receive correct impressions by the senses; to recollect and narrate intelligently; and to appreciate the moral duty to tell the truth. (People v. Wolfe (1988), 176 Ill. App. 3d 299, 531 N.E.2d 152.) The recent trend has been toward an extremely broad standard of competency in which trial courts’ decisions permitting very young children to testify have been upheld. See People v. Daniels (1987), 164 Ill. App. 3d 1055, 518 N.E.2d 669, citing In re A.M.C. (1986), 148 Ill. App. 3d 775, 500 N.E.2d 104.

The defendant emphasizes the fact that S.R. testified on cross-examination that she could not read, print or add numbers, that the assistant State’s Attorney told her the questions and answers and that she twice testified that she did not know the difference between the truth and a lie.

Her academic failures are not surprising considering the environment in which she lives and are not necessarily a true gauge of her intelligence. It is understandable that the assistant State’s Attorney would spend considerable time in preparing a young girl for the ordeal of cross-examination which proved to be intense and aggressive. Her testimony that she did not know what truth or a lie was came from suggestive questions on cross-examination:

“Q. And when you talked about truth, the answer that you gave was what the lady told you to say, right?
A. Yes.
Q. You don’t understand what truth is, do you, Hon?
A. No.
Q. You don’t know what a lie is, do you, Hon?
A. No.”

On the other hand, her unsuggested testimony on direct examination was as follows:

“Q. Okay [S.R.], do you know the difference between telling the truth and telling a lie?
A. When you make stories up.
Q. Is that when you tell a lie?
A. Yes.
Q. Okay. Now, is it good or bad to tell the truth?
A. Good.
Q. Okay. Is it good or bad to tell a lie?
A. Bad.
Q. S.R., do you know what will happen to you if you told the judge a lie here in court?
A. You go to jail.
Q. Now, is jail a good or a bad place?
A. A bad place.
Q. And are you going to tell the judge the truth or a lie?
A. The truth.”

It has been often said that the cold black and white of the record is a poor substitute for the personal observation of the fact finder in determining credibility. The same observation is applicable in determining competency. The demeanor and general alertness of the witness and the spontaneity of her answers are all matters which were obvious to the judge but are hidden from us. The deficiencies in her testimony, pointed out by the defendant, are not sufficient for us to substitute our judgment for that of the trial judge who observed the witness.

The defendant has cited only one case in which a reviewing court reversed a trial judge’s order upholding competence of a witness, People v. Sims (1969), 113 Ill. App. 2d 58, 251 N.E.2d 795. The Sims case, however, is not apposite. Sims was reversed and remanded for a new trial because the trial judge had not conducted an adequate preliminary inquiry as to competence. (See People v. Fultz (1975), 32 Ill. App. 3d 317, 336 N.E.2d 288; People v. Brown (1973), 11 Ill. App. 3d 67, 296 N.E.2d 77.) In this case the judge conducted a thorough hearing.

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

Judgment affirmed.

RAKOWSKI, P.J., and LaPORTA, J., concur.