text:
    WITOLD RYBICKI, Plaintiff-Appellant, v. ANESTHESIA & ANALGESIA ASSOCIATES, LTD., et al., Defendants-Appellees.
    Fourth District
    No. 4 — 92—0658
    Argued March 24, 1993.
    Opinion filed June 24, 1993.

      William A. Allison (argued), of Allison & Kelly, of Bloomington, for appellant.
    Jeffrey Alan Ryva (argued), of Husch & Eppenberger, of Peoria, for appellees.
   JUSTICE LUND

delivered the opinion of the court:

Plaintiff Witold Rybicki, an anesthesiologist, entered into employment contracts with Anesthesia & Analgesia Associates, Ltd. (Associates), a corporation solely owned by Ettore DiMiceli. DiMiceli is also an anesthesiologist, and the Associates was in the business of providing analgesia services to a hospital medical center. The present action initially arose following plaintiff’s termination in December 1989 and a dispute over profit-sharing contributions, proper bonus payments, and severance pay. The principal issue on appeal relates to the profit-sharing issue. Plaintiff appeals following a bench trial and a judgment in defendants’ favor by the circuit court of McLean County.

I. Facts

Plaintiff’s first contract with Associates was dated November 17, 1985, and ran from December 9, 1985, until June 13, 1986. This contract did not provide for profit-sharing or a bonus. The second contract was dated July 18, 1986, and provided for a period beginning July 1, 1986, “and continuing unless terminated in a manner set forth in Paragraph 7.” This contract provided for an annual salary of $95,000, plus a 10% bonus of paid fees earned by plaintiff over $140,000 and under $180,000, and 25% of paid fees over $180,000. The contract further provided:

“Employee will receive a contribution in his behalf to the corporate profit[-]sharing plan which shall be subject to all the rules and regulations set forth by the Internal Revenue Service and those laws governing such plans.”

Admitted into evidence was plaintiff’s exhibit No. 3, a summary dated July 14, 1986, prepared by DiMiceli on Associates’ letterhead, which provided:

“The following are very accurate estimates of the cost to the corporation for an anesthesiologist at the contract salary level:
Salary $ 95,000.00
Profit Sharing 14,250.00
Malpractice 14,000.00
Health Insurance 1,350.00
Meetings 1,000.00
Associates Dues 1,000.00
Collections and Overhead
(assuming 10% on collection of $150,000.00) 15,000.00
Total $141,600.00

Plaintiff testified that the $14,250 listed on exhibit No. 3 was the amount agreed by DiMiceli to be paid into the corporate profit-sharing plan each year on plaintiffs behalf. DiMiceli testified that exhibit No. 3 was prepared to establish a basis for bonus payments and used to explain the basis to plaintiff. DiMiceli contends contributions to the profit-sharing plan were always discretionary, and not intended to be fixed.

The profit-sharing trust and plan (plan) for Associates was adopted on October 1, 1978, as shown by an amendment adopted on June 20, 1985. The plan provided for deferment of taxation and provided that all contributions must be paid from Associates’ profits. Plan qualifications apparently require one year of employment, with at least 1,000 working hours during that year before eligibility. (The copy of the 69-page plan in the record before us, exhibit No. 10, is missing every other page.)

It is apparent that the contribution of income to the plan would be allocated on a proportional basis to all included employees. Plaintiff’s exhibit No. 13 was a “CERTIFICATE OF PARTICIPATION AND SUMMARY PLAN DESCRIPTION FOR WITOLD RYBICKIA PARTICIPANT IN THE EMJAY PROFIT[-]SHARING PLAN FOR ANESTHESIA AND ANALGESIA ASSOC., LTD.” The summary clearly states contributions are dependent upon profits. The summary includes a statement that “[t]he Company decides each year, depending on profits, how much of a contribution will be made.” Paragraph No. 4.2 of the plan provides for allocation of contributions. The allocation of company contributions is integrated with social security, with the company paying social security taxes up to the maximum allowable amount.

II. Example Of Allocation Of Employer

Contribution To Profit-Sharing Plan

This example is provided in an attempt to illustrate why an employee’s employment contract containing an annual fixed profit-sharing amount has the effect of determining the total employer annual contribution and the amount allocated to each employee’s account. If two employees had contracts with fixed annual contributions, the plan allocation provisions could not be implemented unless there were identical incomes and agreed-to contributions.

For purposes of this explanation, we are ignoring the top-heavy provisions. Of the total amount allocated by the employer to the plan, the plan trustee shall first allocate to the account of each participant an amount up to 5.7% of the participant’s compensation which is in excess of the maximum taxable wage base (maximum subject to social security tax) which, for 1987, was $43,800. Assuming the contribution exceeded the amount computed by the 5.7%, then the balance must be allocated in the same proportion that the participant’s compensation bears to the compensation of all such participants.

Taking the year 1987 as an example, and assuming two employees being paid $95,000 and the corporate officer being paid $200,000:

First Step

To be able to deposit $14,250 in plaintiff’s account in 1987, based upon the above assumptions, first deduct $2,918.40 from $14,250.00 equals $11,331.60; and then divide $11,331.60 by 24% equals $47,215; and add the total of the 5.7% payments (or $14,740.20), for a required contribution by the corporation of $61,955.20 ($47,215 plus $14,740.20) to the 1987 profit-sharing plan.

III. Corporate Tax Return Information

Associates’ corporate tax returns contained the following totals:

Shareholder equity on May 31, 1987, December 31, 1987, and December 31, 1988, consisted basically of cash and accounts receivable, and was probably accumulated corporate net income which could be used for profit-sharing contributions.

IV. Subsequent Employment Contracts

A letter to plaintiff from DiMiceli dated June 22, 1988, had given plaintiff three options: (1) continue the July 18, 1986, contract; (2) terminate that contract and sign the new one enclosed; or (3) sign a termination of the July 18, 1986, contract with no new contract available. Plaintiff evidently signed the enclosed (June 27, 1988) contract. The new employment contract provided “for a period beginning on the first day of July, 1988, and continuing unless terminated in a manner set forth in Paragraph 7.” Salary was set at $100,000 per year, and the same bonus provision was included. The profit-sharing provision was deleted. On July 25, 1989, a new contract was executed which provided for a salary of $10,000 per month and a different bonus arrangement. No profit-sharing plan was included. The hospital contract with Associates was terminated, plaintiff’s employment was terminated in December 1989, and the plan was terminated the following year. A benefit statement to plaintiff from the plan at the end of 1989 showed $3,890.37 vested in his account, of which $3,276.64 appears to have been contributed by Associates.

V. Issues On Appeal

This appeal is centered on counts I, II, III, and VI of plaintiff’s complaint. The crux of counts I and II is that Associates contracted with plaintiff to contribute to the plan pursuant to the agreement in the contract dated July 18, 1986, and that Associates promised the contribution would be $14,250 per year. Count III alleged that the $14,250 contribution was also an entitlement, under some theory, within the 1988 contract. Count VI was against DiMieeli, charging intentional misrepresentation to plaintiff that Associates would make a contribution of $14,250 per year for plaintiff’s profit-sharing account beginning July 18, 1986. On April 20, 1992, after trial, the court granted judgment in favor of both Associates and DiMieeli against plaintiff on counts I, II, III, and VI. At the end of the trial, the judge made a statement, which included the following:

“[Tjhere is conflicting evidence particularly in the testimony of the two doctors here as to what transpired and what was said in regard to the 1986 contract which was entered into July 18th and the discussion apparently taking place between them four days previously on the 18th of July. When there is that type of conflict in the testimony of witnesses, the Court starts to look to the various relevant documents that might be of some assistance in trying to reconstruct the events.
One of those is Plaintiff’s Exhibit 3. That document when it is read and considered indicates as part of its content that it is setting out essentially the cost to the corporation for an anesthesiologist. More specifically, it indicates that the amounts shown are very accurate estimates of the cost to the corporation. Dr. DiMieeli testified that the fourteen thousand two hundred fifty dollar figure shown in the exhibit as profit-sharing was arrived at and set out in that exhibit as the maximum amount that might be contributable in profit-sharing on behalf of a person whose salary was ninety-five thousand dollars, and a fifteen percent limit on that amount was what the maximum amount could be that would be contributable as profit-sharing.
All that it seems to the Court is consistent with [the] Defendant’s [sic] version here that what was being attempted here was to try to figure out an appropriate bonus threshold level in the discussions.
It also is of some significance to the Court that one of the items listed on Plaintiff’s Exhibit [No.] 3 apparently represents an estimate of collections and overhead of some fifteen thousand dollars. In the evidence and the testimony here today, the Plaintiff acknowledged that he really didn’t expect to receive that fifteen thousand dollars, but that is one of the items that goes to make up the total shown of a hundred forty-one thousand six hundred dollars.
In the contract *** entered into July 18th, 1986, the figure one hundred forty thousand appears ***, but it appears as the amount at which a bonus would be available to the Plaintiff. It seems to the Court that that detracts from the reasonableness of the Plaintiff’s version that he was to get some one hundred forty thousand dollars in compensation including a specific fourteen thousand two hundred fifty dollar profit-sharing contribution annually.
Further, there is nothing in the contract entered into July 18th, 1986[,] about a fourteen thousand two hundred fifty dollar profit-sharing plan contribution to be made on an annual basis and promising a specific amount of a contribution annually to the Plaintiff would be contrary to the procedure and practice for administering the plan which had been in existence for some time and some years.
It is the Court’s view that there was no promise or representation to pay fourteen thousand two hundred fifty dollars in profit[ Jsharing annually to the Plaintiff. While he may have thought he would be able to receive some amount as profit[ Jsharing and while he perhaps may not have fully understood the thrust and tenor of Plaintiff’s Exhibit [No.] 3, the Court thinks that there is ample evidence of him being warned about the profit-sharing being discretionary from the terms of the July 18th, 1986[,] * contract which covers how that works without regard to the testimony of Dr. DiMiceli who indicates he also advised him along those lines. The Court recognizes that there is testimony which has been admitted and acknowledged by Dr. DiMiceli that an error was made by him as to the Plaintiff’s eligibility and the misinformation was communicated to the Plaintiff by him. It seems to the Court though that from all the circumstances that the Court has heard about this incorrect information, it does not rise to the level of an intentional misrepresentation.
So the Court’s view is that the Plaintiff should not recover under the contract counts I, II or III or under the fraud count, Count VI. The Court finds in favor of the Defendants here and against the Plaintiff on all the counts.”

The trial evidence indicated the plaintiff was led to believe that he would, under the 1986 contract, be able to participate in the plan immediately. Because of the rules and regulations controlling the plan, this was not so. Eligibility requirements of the plan include the completion of 12 months’ employment, within certain dates. Plaintiff, having been first employed as of December 9, 1985, had not met this requirement at the time the contract signed July 18, 1986, became effective.

Plaintiff lists three issues on appeal: First, as to count VI, which involved the misinformation as to when the profit sharing could begin, plaintiff argues it was error for the trial court to require him to prove an “intentional misstatement” when it would be sufficient to have proved the misrepresentation was made “in culpable ignorance of the truth”; second, as to counts I, II, and III, plaintiff argues the trial court misapplied the provisional-admission approach to the parol evidence rule; and third, plaintiff argues the verdict as to all four counts was contrary to the manifest weight of the evidence.

A. Fraudulent Misrepresentation

The first issue arises because of the trial court’s verbal statement at the end of the trial that “the Court has heard about this incorrect information, it does not rise to the level of an intentional misrepresentation.” Plaintiff argues an action for fraudulent misrepresentation can be based upon the allegations of misrepresentation in reckless disregard of the truth, as well as knowing of the false nature of a statement. However, the decisions cited as authority require a finding that the statement made must have been known to be false or made in culpable ignorance of the truth or falsity. (Oltmer v. Zamora (1981), 94 Ill. App. 3d 651, 653, 418 N.E.2d 506, 508; Wright v. Richards (1986), 144 Ill. App. 3d 450, 457, 494 N.E.2d 1269, 1274; Broberg v. Mann (1965), 66 Ill. App. 2d 134, 139, 213 N.E.2d 89, 92.) Plaintiff goes one step further and contends that due to DiMiceli’s long-time association with the plan, if he did not know of the 12-month eligibility requirement, “his ignorance was culpable.” He also contends if DiMiceli was ignorant of the eligibility requirements, he must have been aware of his ignorance. Having examined half (since every other page is missing from the record on appeal) of the 69-page plan and the plan summary furnished plaintiff, we are inclined to believe this last argument arises from fairyland. The complexities of qualified profit-sharing plans prohibit this court from charging corporate officers, such as DiMiceli, with knowledge of all significant requirements of such plans.

For the reasons stated previously, relating to the complexity of the profit-sharing plan, we find it difficult to envision a finding of culpable ignorance in this case. However, we hold such a determination unnecessary because of waiver. Our close examination of the record indicates the “culpable-ignorance test” was never brought to the trial court’s attention. While the second amendment of the amended complaint provided an allegation of “reckless regard for the truth,” the specific allegation of culpable ignorance was never made. On more than one occasion during the pretrial proceedings, plaintiff maintained that all allegations in count VI were based upon an intent to defraud and alleged a scheme or device to defraud plaintiff.

The plaintiff argues the culpable-ignorance test for the first time before our court. Failure to bring this issue to the trial court’s attention results in waiver. Issues not raised in the trial court will not normally be considered by this court on appeal. Brown v. Lober (1979), 75 Ill. 2d 547, 556, 389 N.E.2d 1188, 1193; Moehle v. Chrysler Motors Corp. (1982), 93 Ill. 2d 299, 303, 443 N.E.2d 575, 577.

B. Application of Parol Evidence Rule

The primary objective in construing a contract is to determine and give effect to the intention of the parties at the time they entered into the contract. (Zale Construction Co. v. Hoffman (1986), 145 Ill. App. 3d 235, 241, 494 N.E.2d 830, 834.) Whether or not the contract is ambiguous is a question of law, and the court may consider extrinsic evidence provisionally for the limited purpose of determining whether an ambiguity exists. (Zale, 145 Ill. App. 3d at 241, 494 N.E.2d at 834.) Plaintiff contends the trial court erred in the application of the “provisional admission approach to the parol evidence rule” when ruling as to counts I, II, and III of the complaint. Plaintiff contends the trial court should have “first ma[d]e a finding as to the terms of the integrated contract.” Plaintiff suggests (citing as authority U R S Corp. v. Ash (1981), 101 Ill. App. 3d 229, 427 N.E.2d 1295):

“Then the Court may admit evidence on a provisional basis to determine whether there is any ambiguity in the integrated contract. Such evidence is admitted not to vary or change the terms of the integrated contract but to determine the meaning of terms used in the integration.”

The URS opinion relied upon Ortman v. Stanray Corp. (7th Cir. 1971), 437 F.2d 231, which in turn was interpreting Illinois law. URS involved an easement for underground storage of “natural gas or other gases or vapors” and the issue was whether “air” was included within other gases or vapors. (See URS, 101 Ill. App. 3d at 233, 427 N.E.2d at 1299.) URS held relevant parol evidence is always admissible to assist in the determination of the meaning of the words “in an integrated contract.” The parol evidence rule is not being violated because evidence is being used to interpret meanings of terms, not change those terms. In such cases, evidence of prior negotiations does not contradict or change terms, but is limited to interpretation of terms. See URS, 101 Ill. App. 3d at 234-35, 427 N.E.2d at 1299-1300.

We determine that sections 402 and 403 of Contracts in American Jurisprudence 2d exceed both URS and Ortman in clarity in setting forth the appropriate rule of law:

“Contradicting, varying, or explaining written contract^]
As intimated earlier, and in accordance with the general rule of evidence that parol evidence is inadmissible to vary or contradict the terms of a valid, and plain and unambiguous, written contract, no preliminary negotiations, and no parol agreement prior to, or contemporaneous with, a written contract, which tends to vary or contradict either its express provisions or its legal import, can be considered in construing it. A parol agreement inconsistent with a written agreement made contemporaneously therewith is void and unenforceable, unless it was omitted from the written contract by fraud, accident, or mistake. Parol understandings, although they induce the making of a written contract, are merged in the writing so that they cannot be used to change the contract or show any intent different from that expressed in the instrument.” 17A Am. Jur. 2d Contracts §402, at 428-29 (1991).
“Ambiguous or uncertain contract^]
The explanation of an ambiguous or uncertain written contract is something apart from the contradiction or variance of a plain, certain, and unambiguous one. In the construction of an ambiguous or uncertain writing which is intended to state the entire agreement, preliminary negotiations between the parties may be considered in order to determine their meaning and intention and to ascertain in what sense the parties themselves used the ambiguous terms in the writing which sets forth their contract. If the previous negotiations make it manifest in what sense they understood and used those terms, they furnish the best definition to be applied in the construction of the contract itself. The effect must be limited to a definition of the terms used and an identification of the subject matter, but, if so limited, it makes no difference that the language of the negotiations relates to the future and consists in positive engagements on the part of the other party to the contract. Their effect depends, not upon their promissory obligation, but upon the aid they afford in the construction of the contract in suit, and they are not less effective for the purposes of explanation and definition because they purport to carry the force of the obligation. In the determination of the meaning of an ambiguous or uncertain contract and as an aid to its construction, the court must have recourse, not only to the wording and context of the agreement, but also to the circumstances under which it was made, and to the conferences and correspondence between the parties pending the negotiation of the final agreement.” 17A Am. Jur. 2d Contracts §403, at 429-30 (1991).

Plaintiff claims the trial court never considered exhibit No. 3 (which included the $14,250 amount) as a factor in interpreting what he contends is an ambiguous contract provision. That provision provides for plaintiff to receive a profit-sharing contribution, but provides no specific amount. Plaintiff’s position, as we understand it, is that the court determined the purpose for including $14,250 in exhibit No. 3, instead of focusing on the existence of this amount when deciding whether there was an ambiguous term in the agreement. He complains that the trial court focused on DiMiceli’s intent in preparing exhibit No. 3, rather than on his intent in giving the document to plaintiff. We do not so read the trial court’s decision.

Testimony of plaintiff was that DiMiceli gave him a copy of exhibit No. 3 and told him he would receive $14,250 in profit sharing each year under the contract. DiMiceli testified he used the $14,250 amount to compute the total possible employment cost of plaintiff so that a bonus level could be ascertained. He stated he used exhibit No. 3 to show plaintiff how he arrived at the bonus arrangement. DiMiceli also testified that he had never before paid a bonus. He also testified he did not tell plaintiff he would receive the $14,250 annually. He testified he told plaintiff that contributions to the profit-sharing plan would be at his discretion. In accepting DiMiceli’s testimony instead of Eybicki’s, a finding of fact resulted (no offer of $14,250) which was incompatible with plaintiff’s contention that an ambiguity existed relative to the profit-sharing provision in the July 1986 agreement. We find the trial court’s statement indicated consideration of all evidence and was not a misapplication of the so-called “provisional admission approach.”

C. Manifest Weight of the Evidence

Our court will not disturb a trial court’s findings unless it is manifestly against the weight of the evidence, as that court is in a superior position to determine credibility, weigh evidence, and determine the preponderance thereof. Greene v. City of Chicago (1978), 73 Ill. 2d 100, 110, 382 N.E.2d 1205, 1210.

Here, we have conflicting testimony from the two principal parties. We do have specific evidence setting forth requirements of the plan. The plan requires a lump-sum contribution which must benefit all eligible employees. As indicated, it calls for certain percentage allocations. No preferences can be directed by Associates. A fixed $14,250 to plaintiff would result in plaintiff’s specific benefit controlling the amounts going to each eligible employee. The plan required that contributions come from corporate income, either current or accumulated. It provided for DiMiceli in his official capacity, with discretion, to determine fiscal contributions which, testimony indicated, was exercised in consultation with his accountant. We recognize DiMiceli’s salary withdrawals in the last two years were much larger than normal, and profit sharing on a much larger scale could have been made by decreasing that salary. Regardless, considering all the evidence, we hold the trial judge’s conclusion that $14,250 was not part of plaintiff’s salary agreement was not against the manifest weight of the evidence.

Neither was the trial court’s determination that there was no intentional misrepresentation as to the profit-sharing eligibility date against the manifest weight of the evidence. As we have previously stated, DiMiceli was a medical professional, not an accountant or a lawyer. We will not charge him, as a matter of law, with specific knowledge of the terms of the plan.

Affirmed.

STEIGMANN, P.J., and McCULLOUGH, J., concur.


source: Caselaw Access Project

author: JUSTICE COOK

license: Public Domain

text:
    CITY NATIONAL BANK OF HOOPESTON, Plaintiff-Appellee and Cross-Appellant, v. DEAN RUSSELL, Defendant-Appellant and Cross-Appellee.
    Fourth District
    No. 4 — 92—0910
    Argued May 24, 1993.
    Opinion filed June 29, 1993.

      John P. Wolgamot (argued), of Kurth, Wolgamot & DeArmond, of Danville, for appellant.
    Steven M. Helm (argued) and Nancy S. Johnson, both of Dukes, Martin, Helm & Ryan, Ltd., of Danville, for appellee.
   JUSTICE COOK

delivered the opinion of the court:

Defendant Dean Russell appeals the trial court’s summary judgment in favor of plaintiff City National Bank of Hoopeston. Defendant contends the trial court erred in finding consideration for his' guaranty and erred in finding no genuine issue of material fact on the affirmative defense of fraud. Plaintiff cross-appeals the trial court’s denial of attorney fees. We reverse the order of summary judgment and remand.

G. Neil Sheppard began farming in 1976. When he started his farming business, he received financing from plaintiff bank. Sometime in the late 1970’s defendant signed a guaranty for $60,000 to cover plaintiff’s loan to Sheppard. At that time Sheppard was defendant’s son-in-law. In fall 1986 plaintiff received a bank examiner’s report which “criticized” the Sheppard loan. William Penicook, agricultural loan officer at plaintiff bank, stated that because the examiners had “classified” the Sheppard loan, he decided “to help the classification that we would, you know, ask for an increase in the personal guarantee from [defendant].” Sheppard’s loan was secured with equipment, crops, and the personal guaranty from defendant. Sheppard’s operating loans had not been paid in the past and his machinery had declined in value; therefore, plaintiff wanted additional collateral to cover Sheppard’s loan.

On February 27, 1987, Penicook met with Sheppard to discuss concerns about the loan and collateral, and to review Sheppard’s loan needs for 1987. Penicook drafted three loans for Sheppard dated February 27: (1) a $30,000 operating loan (a line of credit) for 1987, (2) a $107,670 renewal of an existing loan, and (3) a $1,790 loan for unpaid 1986 operating expenses. The three loans totalled $139,460. Penicook indicated that at their February 27 meeting he told Sheppard the bank would not make the loan if defendant would not increase the guaranty. Sheppard recalled that Penicook told him “in a professional way that [he] was borderline” and that Penicook would have to get “an okay from [defendant].” This was the first time Sheppard realized that defendant was involved with his financing. On February 27, prior to anyone contacting defendant, the loans were signed making all new funds immediately available to Sheppard. The notes had a term of one year. After his meeting with Sheppard on February 27, Penicook called defendant and told defendant they needed to talk about Sheppard; Penicook did not mention the guaranty in that call.

At his deposition defendant stated he met with Penicook at the bank on April 1, and Penicook told him the bank needed to increase the guaranty on Sheppard’s loan to $90,000. Defendant recalled that he asked Penicook how much Sheppard owed and that Penicook answered “ ‘Around seventy thousand dollars ($70,000.00), he needs twenty for operation for the following year.’ ” Defendant “believes” he then asked Penicook how much Sheppard’s machinery was listed at, and Penicook told defendant “sixty-three thousand dollars ($63,000.00) on machinery and [Sheppard] had twenty-five to maybe thirty coming in for crops that year.” Although defendant did not look at the documents referred to by Penicook, he was familiar with Sheppard’s farming operation and estimated the machinery might only be worth $40,000. Defendant then figured out his possible liability in his mind by adding the $40,000 collateral from the machinery and the $30,000 estimated income, and told Penicook, “ ‘Well, if worse [sic] comes to worse [sic]’ assuming [Sheppard’s] equipment is valued at that, and the money is coming in[,] the worse [sic] I could get hurt for would be about twenty thousand dollars ($20,000.00)[,] and Mr. Penicook agreed with me.” Defendant then asked Penicook to keep him informed about Sheppard’s finances, read the $90,000 guaranty “somewhat,” and signed the guaranty. Defendant claims he understood that “Sheppard would not owe [plaintiff] more than ninety thousand dollars ($90,000),” he could be held liable up to $90,000 if Sheppard failed to make payments, and if he did not sign the guaranty Sheppard “would not be farming.” Defendant did not look at Sheppard’s financial records and never discussed the guaranty with Sheppard.

Penicook stated at his deposition that when he met with defendant on April 1 he told defendant the bank “needed” to increase the guaranty and asked defendant to increase the limit on the guaranty from $60,000 to $90,000 because “we didn’t want to go any farther [sic] without additional collateral.” If they discussed the amount of money Sheppard owed, Penicook stated he would have told defendant exactly what Sheppard owed on the three notes signed February 27. There was not much discussion about the necessity for increasing the guaranty because defendant “was willing to sign.” Penicook did not recall any discussion about defendant’s maximum risk exposure. Defendant did not ask plaintiff “not to call [Sheppard’s] loans,” “not to sue [Sheppard],” or “not to foreclose” on any of the bank’s collateral. Defendant told Penicook that he wanted to be informed annually about how Sheppard was doing, and signed the guaranty. The guaranty provided that defendant would guarantee:

“the full and prompt payment, when due, whether by acceleration or otherwise, together with interest and all costs, expenses and attorney’s fees, of any and all notes, bills, drafts, commercial paper and other obligations or liabilities of the Debtor of every kind (herein collectively called ‘Liabilities’), whether signed, accepted, drawn, endorsed or otherwise incurred by the Debtor, that are or shall be owned, held or acquired, whether through discount, overdraft, purchase, direct loan, or as collateral or otherwise by Bank, either for the Debtor or for any holder thereof, provided that the Liability thereon and hereon of the undersigned shall not exceed the principal sum of NINETY THOUSAND AND NO/lOO-DoIlars ($90,000.00) at any one time outstanding.
This Guaranty shall be and remain a continuing and unconditional guarantee for the payment of any and all Liabilities of the Debtor not exceeding in the aggregate the said principal sum at any one time outstanding and shall continue and be in force until all Liabilities of the Debtor guaranteed hereby shall be fully paid.”

The next time defendant met with anyone at the bank about Sheppard’s loans was one year later in April 1988. Defendant recalled asking Penicook how Sheppard was doing and Penicook responded “ ‘Oh, he is doing okay’ that was about the extent of their conversation. Approximately one year later, in April 1989, defendant again discussed Sheppard’s loan with Penicook. Defendant asked how Sheppard was doing, Penicook told defendant “ ‘He is on our watch list,’ ” and that was the end of their conversation.

In late spring or early summer of 1989 Sheppard and defendant’s daughter separated and, in the fall, defendant told Penicook he “would have to withdraw [his] support of [Sheppard’s] loans.” Defendant recalled that Penicook told him to put “something in writing.” Defendant indicated that he asked Penicook how much Penicook thought defendant would be responsible for on the loans and after checking some documents Penicook told him “$20,000.” By late November or early December Sheppard and defendant’s daughter had divorced, and defendant called the bank and told Penicook he was getting ready to send the letter. On or about December 18 defendant sent a letter to Penicook and a copy to Sheppard; apparently, the letter mentioned defendant’s desire to withdraw his guaranty. A copy of the letter was not included in the record on appeal.

The next contact defendant had with plaintiff bank was at the end of December when Penicook called defendant and asked him to advance $4,000 for Sheppard’s fertilizer bill. Defendant asked if it looked like he was “still in the twenty thousand dollar area of this commitment” he would owe the bank, Penicook confirmed that amount, and defendant said “ ‘well, if I can stand twenty thousand dollars I can surely stand twenty-four’ ” and he approved the advance ■for the fertilizer bill. In early January Penicook told defendant the fertilizer bill came to $11,000 and that Penicook had advanced the money to Sheppard on defendant’s behalf. Later in January defendant learned that Sheppard planned to sell his farm equipment and quit farming. Defendant heard the sale brought $43,000, less auctioneer fees, which was about what he had estimated as the value of the equipment.

Defendant then met with Penicook on April 1, 1990, and Penicook informed defendant the debt was approximately $113,000. Defendant claims he responded by saying “ ‘This is way over the limit’ ” and Penicook said “ ‘It has always been over the limit. That doesn’t mean anything.’ ” At his deposition, defendant stated this was the first time the bank told him that Sheppard owed more than $90,000. Defendant subsequently received a letter from plaintiff bank describing Sheppard’s defaulted loans and requesting payment from defendant as required by the guaranty. About a week later defendant met with Penicook, bank president Byron Hedgecock, and Larry Oyler, the loan officer who originally handled Sheppard’s loans. They discussed whether the $43,000 from the machinery sale should be subtracted from the $90,000 guaranty, and Oyler explained “that is not the way it is done.” Sheppard subsequently filed bankruptcy.

In October 1990 plaintiff filed a complaint against defendant for the $90,000 guaranty, plus costs and attorney fees. Defendant filed affirmative defenses and a counterclaim; both parties filed motions for summary judgment. After a hearing the trial court granted plaintiff’s motion for summary judgment, entered judgment against defendant for $90,000 plus costs, and denied plaintiff’s petition for attorney fees. Defendant filed a timely notice of appeal and plaintiff a timely cross-appeal.

In allowing plaintiff’s motion for summary judgment, the trial court ruled there were no genuine issues of material fact. A motion for summary judgment should be granted as a matter of law when the pleadings, depositions, and affidavits reveal no genuine issue as to any material fact. (Vesey v. Chicago Housing Authority (1991), 145 Ill. 2d 404, 411, 583 N.E.2d 538, 541; see Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1005(c).) In reviewing the trial court’s granting of plaintiff’s motion for summary judgment, this court’s role is to consider anew the facts and law related to the case to determine whether the trial court was correct. Gresham v. Kirby (1992), 229 Ill. App. 3d 952, 955, 595 N.E.2d 201, 203; Swisher v. Janes (1992), 239 Ill. App. 3d 786, 790-91, 606 N.E.2d 798, 802.

The first issue is whether the trial court erred in finding there was consideration for the guaranty, as a matter of law. A guaranty which is executed contemporaneously with the debt it guarantees is supported by sufficient consideration. (American National Bank v. Warner (1984), 127 Ill. App. 3d 203, 207, 468 N.E.2d 184, 187.) However, where the guaranty is executed after the guaranteed debt is incurred, new consideration is necessary to support the guaranty. (First National Bank v. Chapman (1977), 51 Ill. App. 3d 738, 740, 366 N.E.2d 937, 940; American National Bank, 127 Ill. App. 3d at 207, 468 N.E.2d at 187; 1A A. Corbin, Corbin on Contracts §213, at 285-87 (1963).) Forbearance from exercising a right to take legal action against a third party constitutes adequate consideration for the guaranty of a debt obligation of the third party. (Town & Country Bank v. E. & D. Bancshares, Inc. (1988), 172 Ill. App. 3d 1066, 1075, 527 N.E.2d 637, 642.) To constitute consideration for a guaranty, an agreement to forbear need not be in express terms or for an exact period of time. (Town & Country, 172 Ill. App. 3d at 1075, 527 N.E.2d at 642; Corn Belt Bank v. Lincoln Savings & Loan Association (1983), 119 Ill. App. 3d 238, 248-49, 456 N.E.2d 150, 158.) However, the mere fact that the creditor eventually did forbear is not consideration unless the forbearance was pursuant to an agreement between the parties for such forbearance. First National Bank, 51 Ill. App. 3d at 742, 366 N.E.2d at 941.

Here, the trial court concluded there was consideration; there was an “indicia of forbearance” evidenced by defendant’s statement that he understood Sheppard “would not be farming” if defendant did not sign the guaranty. Plaintiff contends that is enough to show consideration in light of Penicook’s statement that he told defendant “that we didn’t want to go any farther [sic] without additional collateral,” and the fact that Sheppard continued to farm in 1987 and 1988 without interference by the bank. Plaintiff views this evidence as particularly convincing given that defendant was an experienced farmer with knowledge of farm financing. To determine whether there was consideration, it must be determined what plaintiff could have done to stop the farm operation. The notes were written for a period of one year; at the end of the year, nothing contained in the notes would have prevented plaintiff from declining to renew them. Plaintiff does not argue that it would have been required to renew the notes, relying instead on its vague argument “there was definitely a suggestion or an inference that Mr. Sheppard would not be allowed to continue his farming operation if defendant did not sign the $90,000.00 ‘Unconditional Guarantee.’ ”

An insecurity clause in the “DEFAULT” paragraph on the back of the February 27, 1987, notes issued to Sheppard may have allowed the bank to accelerate the notes if the guaranty had not been signed. (See Ill. Rev. Stat. 1991, ch. 26, par. 1 — 208.) That paragraph lists several events which constitute default, including if “anything else happens which causes you [the bank] to believe that you will have difficulty collecting the amount I [Sheppard] owe you.” Perhaps the bank in good faith could have accelerated the notes by deeming itself insecure, if defendant had not executed the guaranties the bank (and apparently Sheppard) expected defendant to sign. See Watseka First National Bank v. Ruda (1990), 135 Ill. 2d 140, 157, 552 N.E.2d 775, 782 (“a creditor acts in good faith when exercising an acceleration clause so long as it acts honestly, irrespective of whether the ‘reasonable creditor’ would have accelerated under the same circumstances”).

As of April 1, 1987, when defendant signed the guaranty, Sheppard had access to all funds from the three loans and none of the loans had yet reached maturity. Penicook admitted that as of February 27, 1987, the loans were fully available to Sheppard, and stated that he decided to increase the personal guaranty from defendant in order to “help with the classification” of Sheppard’s loans that the bank had recently received from the bank examiners. Defendant argues the increased guaranty was simply to “shore up” the loans already made to Sheppard. While the bank sought the guaranty to improve its position, there was no evidence presented that the bank could have taken action against Sheppard if the guaranty had not been signed. An agreement to perform one’s preexisting contractual obligations does not constitute legally sufficient consideration for a guaranty agreement. American National Bank, 127 Ill. App. 3d at 207, 468 N.E.2d at 187 (no indication Bank in accepting guaranty agreed to forbear collection longer than term of note, which it was already obligated to do).

We find a genuine issue of fact exists as to whether the $90,000 guaranty was supported by sufficient consideration. There was some evidence the Bank could have done nothing if the guaranty had not been signed. The trial court should not have granted summary judgment.

It is also an issue whether a material issue of fact exists regarding defendant’s affirmative defense. Defendant contends plaintiff made fraudulent misrepresentations to him which he relied upon in signing the $90,000 guaranty. Defendant stated in his deposition that Penicook told him Sheppard owed $70,000 and needed $20,000 for operating; Penicook stated in his deposition that if he told defendant an amount, it would have been the amount of the three loans. Defendant stated that Penicook agreed with his statement that, given the collateral, the worst-case scenario would be defendant owing the bank $20,000; Penicook does not recall discussing the collateral or potential losses with defendant. To prove his claim of fraud, defendant must show (1) plaintiff made a false statement of material fact which plaintiff knew or believed to be false, (2) plaintiff intended to induce defendant to sign the guaranty, (3) defendant signed the guaranty in reliance on the truth of plaintiff’s statement, and (4) damage to defendant resulted from justifiable reliance on plaintiff’s statement. Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 286, 402 N.E.2d 599, 601; Mt. Zion State Bank & Trust v. Weaver (1992), 226 Ill. App. 3d 783, 787, 589 N.E.2d 983, 986; see W. Keeton, Prosser & Keeton on Torts §105, at 728 (5th ed. 1984); Restatement (Second) of Torts §537, at 80 (1977).

Plaintiff contends there was no fraud because there was no justifiable reliance. Plaintiff argues defendant is not entitled to claim fraud where he had equal access to all relevant information. (See Central States Joint Board v. Continental Assurance Co. (1983), 117 Ill. App. 3d 600, 606, 453 N.E.2d 932, 936.) Plaintiff contends defendant could not justifiably rely on Penicook’s statement, given that defendant was an experienced farmer familiar with farm loan operations, especially where he had sufficient opportunity to discuss the loans with Sheppard, who lived nearby and was his son-in-law. (See Luciani v. Bestor (1982), 106 Ill. App. 3d 878, 884, 436 N.E.2d 251, 256.) Even if defendant relied on Penicook’s alleged statement, plaintiff argues such reliance would not be justifiable since defendant could have determined the amount of Sheppard’s outstanding loans to the bank by exercising “ordinary prudence.” See Soules, 79 Ill. 2d at 286, 402 N.E.2d at 601.

Defendant contends his reliance on the statements by Penicook was clearly justified. Even if plaintiff had no duty to provide information to defendant, it did have a duty not to provide false information. A bank has a duty of good faith in dealing with a guarantor (see Magna Bank v. Jameson (1992), 237 Ill. App. 3d 614, 617, 604 N.E.2d 541, 543; Dee v. Bank of Oakbrook Terrace (1980), 84 Ill. App. 3d 1022, 1025, 406 N.E.2d 195, 198; McHenry State Bank v. Y & A Trucking, Inc. (1983), 117 Ill. App. 3d 629, 632-33, 454 N.E.2d 345, 348); therefore, the guarantor is entitled to rely on the representations of fact made by the bank (Mt. Zion, 226 Ill. App. 3d at 787, 589 N.E.2d at 986; Farmer City State Bank v. Guingrich (1985), 139 Ill. App. 3d 416, 426, 487 N.E.2d 758, 765), especially the representations on how much money the bank has loaned to the person whose debts will be guaranteed. Defendant could have been more cautious and double-checked loan balances with Sheppard, but he must be able to rely on representations of the creditor bank which had a duty to provide him with accurate information regarding Sheppard’s loans. A guarantor is a favorite of the law. Farmers State Bank v. Doering (1980), 80 Ill. App. 3d 959, 961-62, 400 N.E.2d 705, 707; Hensler v. Busey Bank (1992), 231 Ill. App. 3d 920, 926, 596 N.E.2d 1269, 1274.

If the trier of fact accepts defendant’s version of the facts, it could find that plaintiff fraudulently induced defendant to sign the guaranty and defendant justifiably relied on Penicook’s representations. Accordingly, summary judgment was improper because there are genuine issues of fact regarding the affirmative defense of fraudulent misrepresentation.

The last issue raised on appeal is whether the trial court erred in denying plaintiff’s request for attorney fees. After a hearing the trial court denied plaintiff’s request for attorney fees, strictly construing the ambiguous language of the guaranty against plaintiff. The guaranty provides “the Liability thereon and hereon of the undersigned shall not exceed the principal sum of” $90,000. Payment of notes, interest, attorney fees, and other obligations are “collectively called ‘Liabilities’ ” by the guaranty. By its terms, the guaranty is an “unconditional guarantee for the payment of any and all Liabilities of the Debtor not exceeding in the aggregate the said principal sum.” This language limits defendant’s total liability on the guaranty (including costs, interest, attorney fees, and principal due) to a total of $90,000. Plaintiff’s reliance on Boatmen’s Bank v. Dowell (1991), 208 Ill. App. 3d 994, 567 N.E.2d 739, is misplaced because the guaranty in that case was not limited as to amount, and expressly included attorney fees as a collectible amount. Defendant correctly points out that guaranty agreements are strictly construed in favor of the guarantor, especially where the guaranty is on a printed form supplied by the creditor. (See Farmers State Bank, 80 Ill. App. 3d at 961-62, 400 N.E.2d at 707; Dee, 84 Ill. App. 3d at 1024, 406 N.E.2d at 198; McLean County Bank v. Brokaw (1988), 119 Ill. 2d 405, 412, 519 N.E.2d 453, 456.) The trial court’s decision to award costs but not attorney fees above the $90,000 limit is inconsistent. However, in strictly construing the contract against plaintiff, the trial court correctly denied its request for attorney fees.

Accordingly, we reverse the entry of summary judgment for plaintiff and remand for further proceedings consistent with this opinion.

Reversed and remanded.

STEIGMANN, P.J., and GREEN, J., concur.


author: PRESIDING JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES WILSON, Defendant-Appellant.
    Fourth District
    No. 4 — 92—0218
    Opinion filed June 29, 1993.

      Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Vince Moreth, State’s Attorney, of Carlin ville (Norbert J. Goetten, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

In September 1991, a jury found defendant, James Wilson, guilty of one count of aggravated criminal sexual assault (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 14(b)(2)) and one count of aggravated criminal sexual abuse (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 16(c)(1)(i)) as to C.J., who was 41/2 years old in October 1990 when these crimes were committed. The jury also found defendant guilty of a second count of aggravated criminal sexual abuse as to his own child, A.J., who was eight years old in October 1990 when that crime was committed. The trial court later sentenced defendant to nine years in prison for the aggravated criminal sexual assault conviction and ordered defendant to serve that sentence consecutively to concurrent three-year prison terms the court imposed for the two aggravated criminal sexual abuse convictions.

Defendant appeals, making the following arguments: (1) the trial court improperly admitted hearsay statements that the State offered pursuant to section 115 — 10 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1991, ch. 38, par. 115 — 10); (2) the court erred by admitting hearsay statements of the child complainant made to the State’s Attorney without considering their admissibility under section 115 — 10 of the Code; (3) the court erred by admitting evidence of defendant’s committing other criminal acts upon C.J.; (4) the court abused its discretion by not allowing expert testimony “concerning the unique problems associated with children of tender years in recounting instances of abuse and the problems associated with interviews by authorities”; and (5) the court erred by not conducting a hearing to determine whether one juror was “coerced” into convicting defendant.

We affirm.

I. Background

Around October 1988, C.J. (born January 22, 1986) and her parents, Susan and Bart Jones, moved next door to the house occupied by defendant and his family, including A.J. C.J. was no relation to defendant or anyone in his family. A.J. (born October 17, 1982) lived with Sue Wilson (her mother), defendant (her stepfather), and J.W. (her younger half brother and the son of defendant and Sue Wilson). Prior to and in October 1990, C.J. and A.J. often played together. Their parents also frequently sat outside at night and talked.

Defendant worked nights and stayed home during the day. On October 8, 1990, a school holiday (Columbus Day), A.J. asked C.J. to come over to her house to play. Mrs. Jones knew defendant would supervise them, so she allowed C.J. to do so, telling her to return home when A.J.’s mother got home for supper. When C.J. returned at around 5 p.m., Mrs. Jones noticed that she acted withdrawn and quiet. She asked C.J. if she had fun, and C.J. responded by shrugging her shoulders and saying, “I guess.” C.J. usually came home excited after she played with a friend, so Mrs. Jones asked her if anything was wrong. C.J. shook her head, and her mother continued to prepare supper.

However, C.J. still stayed next to her mother in the kitchen. Mrs. Jones asked several more questions, and C.J. eventually responded that she could not say what troubled her because “[i]t was a secret.” After further questioning, C.J. then responded that defendant would “ ‘whip her butt’ ” if she told. Despite Mrs. Jones’ reassurances that defendant would not hurt her, C.J. insisted that he would.

Mrs. Jones then assumed that C.J. got in trouble and that defendant had punished her, so she asked if C.J. had broken something at defendant’s house. C.J. responded, “ ‘It wasn’t nothing like that.’ ” Only then did it dawn on Mrs. Jones that some sort of abuse might have occurred. She thus took C.J. up to Mrs. Jones’ bedroom to talk. She asked C.J. if defendant did something wrong to her, and C.J. nodded that he had. After further questions, C.J. told her mother that “she had to take her pants off.” Mrs. Jones asked where J.W. and A.J. were, and C.J. said that defendant had told J.W. to stay in his room and play, and that A.J. was in defendant’s bedroom with C.J. and defendant. C.J. said that defendant closed the bedroom curtain because it faced the Jones’ living room.

C.J. continued that A.J. also stood naked in the room and cried. C.J. said that defendant had rubbed C.J.’s legs and played with her “privates,” indicating what she meant by pointing to her vagina. C.J. began to cry, started rubbing on her mouth, and told her mother that defendant forced her to put her mouth on his penis. She said that “it didn’t taste good at all.”

Based on this information, the Illinois Department of Children and Family Services (DCFS) became involved in the case. Two days later, October 10, 1990, the State charged defendant with the multiple counts of sex offenses of which the jury later convicted him.

When C.J. took the witness stand at defendant’s trial, she initially did not want to testify about the events at issue. She first denied that anyone had ever touched her and then testified that she “forgot” that anything she “did not like” happened in defendant’s bedroom. Ultimately, however, when the prosecutor asked her if she had touched anyone, she testified that she had kissed defendant’s “privates” because defendant had told her to do so. She said that this occurred in defendant’s bedroom one day when she went to play at A.J.’s house. She added that when she did so, “[h]e told me to make it go up and down.” She also testified that defendant had kissed her on her privates and that A.J. had watched as these events occurred. When asked what A.J. did at the time, she responded that A.J. cried “[because she didn’t want to do it.” Finally, she added that defendant “[t]old me that if I told anybody, *** he would spank my butt.” C.J. testified that she had discussed these events with her mother and the prosecutor.

Over defense counsel’s repeated objections, C.J. also testified about another time when she went over to play with J.W. when A.J. was not home. She testified that, while she wore only her shirt, she kissed defendant “[o]n the private” and he kissed her “on the privates” in defendant’s bedroom. She added that when she kissed defendant’s privates, defendant again told her to “make [her] head go up and down.” After she finished, defendant then told her, “if I told anybody, he’d spank my butt.”

A.J. also had problems testifying. A.J. initially testified that she and C.J. almost never played together, saying that C.J. came over to play “[m]aybe a couple” of times. A.J. said that she went to play at C.J.’s house only once. When the prosecutor asked her if she could tell the jury what happened when C.J. came over to play, she first said that she forgot, and then said that she did not know if she could tell what happened.

A.J. eventually testified that she saw C.J. kiss defendant but refused to say where. When the prosecutor asked A.J. if C.J. kissed defendant on his privates, A.J. did not say or do anything in response. The court encouraged A.J. to tell the truth, but A.J. continued to remain mute when asked any question pertaining to sexual contact. She explained that she did not want to say where defendant touched her.

The prosecutor then suggested that she write the answer down, which she agreed to do. Over defense counsel’s objection, she wrote the words “the privates” on a piece of paper. When asked whether she wrote the truth or just something she did not want to say, she responded that it was the truth. However, she still did not want the prosecutor to tell the jury what she wrote. Finally, the prosecutor got her to answer affirmatively that defendant had touched both C.J. and her, that the touching involved kissing, and that the kissing involved what she wrote on the piece of paper: “the privates.”

On cross-examination, defense counsel asked her if she ever told Barry Beagles (a DCFS worker) what happened, and she responded, “No.” Defense counsel then asked her if Beagles had ever asked her several leading questions like the prosecutor had just done, and she said, “Yes.” She testified that she got tired of Beagles asking so many questions. She also said that she never told her mother that defendant had touched her private parts. On redirect, A.J. testified that she wrote the truth down on the paper. She also testified that she did not want to be alone in a house with defendant ever again.

Susan Jones then testified about statements C.J. made to her describing what happened to C.J. and A.J. Mrs. Jones testified about the night in question and to the events regarding how she learned about defendant’s behavior toward C.J. and A.J. The prosecutor also asked Mrs. Jones about a day in the summer of 1990 when C.J. went to defendant’s house to play with two-year-old J.W. when A.J. was not home. Mrs. Jones remembered the one occasion because C.J. had not previously- or subsequently gone over to defendant’s house when A.J. was not home.

Mrs. Wilson then testified as a defense witness that she and defendant had a normal family life. She said that C.J. played at their house almost every day for hours at a time.

Regarding October 8, 1990, Mrs. Wilson testified that she came home around 5:15 p.m. and watched C.J. and A.J. play until around 6 p.m. when she told C.J. it was time to go home. She watched A.J. walk C.J. home and Mrs. Jones open the door for C.J. to let her inside. Mrs. Wilson testified that she noticed nothing unusual, that the children were fully dressed as usual, and that both A.J. and C.J. made no complaints to her. Mrs. Wilson added that she and Mrs. Jones spoke later that evening, and that Mrs. Jones told Mrs. Wilson that C.J. felt “uncomfortable” because she had come home “crying, [and was] red in the face when she [came] home.” However, Mrs. Jones did not mention anything about any sexual abuse.

The next day, Mrs. Wilson dropped A.J. off at the baby-sitter’s when she went to work. When she returned after work, the baby-sitter brought her inside to meet Beagles, a DCFS employee, who then held A.J. in his arms. Beagles informed Mrs. Wilson why he was there. Mrs. Wilson testified that Beagles then wanted to speak to her son, so “[h]e took my son by the hand and drug [sic] him through a small hallway, [while] my son was screaming.”

Mrs. Wilson testified that A.J. had denied to her that “something” had happened. Mrs. Wilson also testified that A.J. had told her that she had lied to the State’s Attorney during a meeting “because the State’s Attorney wouldn’t leave her alone and she was scared.”

Defendant testified next and denied that he touched either A.J. or C.J. in the vaginal area on October 8, 1990. He also denied that he forced C.J. to kiss his penis.

II. Analysis

A. The Testimony of the Child-Declarant at the Section 115 — 10 Hearing

Defendant first argues that the trial court improperly admitted the hearsay testimony of Susan Jones and Barry Beagles about what C.J. and A.J. had told them because the State neither called C.J. and A.J. to testify at the section 115 — 10 hearing nor proved them to be unavailable. In People v. Back (1992), 239 Ill. App. 3d 44, 53-54, 605 N.E.2d 689, 696, this court addressed the same argument and wrote the following:

“Defendant’s argument is grounded in the presumption [that] the ‘proceeding’ referred to in section 115 — 10(b)(2)(A) means the reliability hearing. [Citation.] According to defendant, the child victim must testify at this hearing unless he or she is unavailable. Defendant directs us to no legal support for this contention. A review of Illinois case law reveals no instances when the child was required to testify at both the reliability hearing and the trial.
We reject defendant’s interpretation of ‘proceeding.’ ‘Proceeding,’ as contemplated by the legislature, and evident from the purpose of the reliability hearing, refers to trial proceedings, not the reliability hearing. The reliability hearing focuses on the timing, content and circumstances when the child victim made the statements. The child’s testimony at the reliability hearing is not necessary to enable the trial judge to evaluate whether there were sufficient safeguards of reliability when the statements were made.”

We abide by our holding in Back and accordingly reject defendant’s argument that C.J. and A.J. needed to testify at the reliability hearing if the State did not prove them unavailable.

B. Hearsay Statements of the Child Victim

Defendant does not challenge the trial court’s findings that the time, content, and circumstances of the statements of C.J. and A.J. about the events in question contained sufficient safeguards of reliability. Instead, defendant argues that the prosecutor elicited testimony from A.J. about what she had said to the prosecutor before trial without first submitting those statements for a determination of their admission at the section 115 — 10 reliability hearing.

As described above, A.J. had difficulty testifying at trial. As one means of trying to elicit A.J.’s testimony, the prosecutor asked her if she remembered what she had told him in a previous meeting between her (A.J.), C.J., and the prosecutor. Defendant complains of the following four colloquies between the prosecutor and A.J.:

“[(1)] [State’s Attorney]: [A.J.], [do] you remember when you and [C.J.] talked in my office?
A. Yeah.
Q. Can you tell me what happened that time when you and [C.J.] were over at your house with [defendant]?
A. (Pause.) (No response heard or seen.)
* * *
[(2)] Q. [A.J.], do you remember when you and [C.J.] were in my office and we talked?
A. Yeah.
Q. Okay. And do you know what we talked about? You remember, right?
A. (Nodding head.)
Q. You remember you told me about some things — well, let me ask you this. Did — did you see [C.J.] touch your step-dad * * *?
A. Yes.
Q. What did you see [C.J.] do? Where did she touch him at?
A. (Pause.) (No response heard or seen.)
* * *
[(3)] Q. You remember — you remember when you and [C.J.] came down to my office that day?
A. Yeah.
Q. Okay. Now[,] did you ever see [C.J.] kiss [defendant] anywhere?
A. (Pause.) (No response heard or seen.)
Q. [A.J.]?
A. What?
Q. You remember what you told me when you were in my office?
A. Yeah.
Q. Okay. Did you tell me that you saw—
[Defense counsel]: Your Honor—
[Prosecutor]: —[C.J.] kiss [defendant]?
[Defense counsel]: —approach the bench, your Honor?
THE COURT: You may.
* * *
[(4)] [Prosecutor]: I am going to make this simple. Do you remember what you told me in my office when you and [C.J.] were there?
A. Yeah.
Q. Okay. Can you tell us what you told me when you and [C.J.] were in the bedroom with [defendant]?
A. (Pause.) (No response heard or seen.)
Q. Did — did [defendant] ever touch you on any part of your body at all when you were in the room with [C.J.] and him?
A. Yes.
* * *
Q. Do you remember where he touched you?
A. Yeah.
Q. Where was that?
A. (No response seen or heard.)”

Several of the questions about which defendant complains merely ask A.J. what defendant did to her and what she saw him do to C.J. Thus, these questions do not call for a hearsay response, but for testimony about events that A.J. witnessed. In other questions, the prosecutor asked questions that called for a hearsay response, but for whatever reason, A.J. never answered them. We need not decide whether A.J.’s responses to these questions could have been properly received in evidence because she gave no response.

C. Evidence of Prior Bad Acts

Defendant next argues that the trial court erred by allowing the State to introduce evidence of defendant’s prior misconduct with C.J. In particular, the prosecutor elicited testimony from C.J. that the charged conduct in this case was not the only time that defendant had sexually abused her. She testified that he had done the same things to her on a previous occasion when A.J. was not home. Defendant emphasizes that the State provided no corroboration of this prior incident and that C.J. claimed this prior incident occurred “when it was cold outside,” while her mother testified that the only time C.J. went to defendant’s house without A.J.’s being there was during the summer.

In sex offense cases involving child victims, evidence of prior sexual acts between the defendant and the child victim is admissible to show intent, design, course of conduct, the intimate relationship between the parties, or to corroborate the victim’s testimony regarding the charged offense. (People v. Anderson (1992), 225 Ill. App. 3d 636, 647, 587 N.E.2d 1050, 1059; People v. Diaz (1990), 201 Ill. App. 3d 830, 837, 558 N.E.2d 1363, 1367.) In this case, C.J. testified about prior sexual acts between her and defendant. For the reasons stated in Anderson and Diaz, the trial court did not err in allowing testimony about them into evidence.

D. Expert Testimony About a Child Victim’s Credibility

Defendant next argues that the trial court erred by not allowing a defense expert psychiatrist to testify about the problems that child victims of sex abuse have remembering and describing these incidents. In support of this argument, defense counsel tendered a Time magazine article to the trial court that reports about child victims’ purported proclivity to make these allegations only to please investigators and parents who, intentionally or unintentionally, subtly suggest what the child should say. We reject defendant’s argument and emphatically disagree that the trial court abused its discretion by not permitting this testimony.

A trial court should allow expert testimony only if (1) the proffered expert has knowledge and qualifications uncommon to laypersons that distinguishes him as an expert; (2) the expert’s testimony would help the jury understand an aspect of the evidence that it otherwise might not understand, without invading the province of the jury to determine credibility and assess the facts of the case; and (3) the expert’s testimony would reflect generally accepted scientific or technical principles. (See People v. Enis (1990), 139 Ill. 2d 264, 288, 564 N.E.2d 1155, 1164; People v. Eyler (1989), 133 Ill. 2d 173, 211, 549 N.E.2d 268, 285, citing Frye v. United States (D.C. Cir. 1923), 293 F. 1013, 1014.) In the present case, we hold that the proffered testimony (1) would not have provided the jury with much — if any— information beyond the knowledge of an average layperson, and (2) would have severely impinged on the province of the jury to determine credibility and assess the facts of the case.

In a hearing on defendant’s offer of proof conducted prior to trial, Dr. Michael B. Schwartz of the department of psychiatry of Southern Illinois University in Springfield testified about the limitations child victims have recalling alleged instances of abuse. Dr. Schwartz testified regarding his findings in studies about how the limited cognitive ability of child victims taints their recollection of events. Defendant claims that Dr. Schwartz would have informed the jury that “based on his 25 years of experience in child psychiatry[,] *** wherever there is an allegation of sexual abuse [upon a child victim], it is imperative to establish an appreciation of the cognitive development of the child, their [sic] ability or tendency to engage in fantasy, and their [sic] ability to differentiate between fantasy or reality.”

In refusing to allow defendant’s expert to testify, the trial court noted that the expert testimony would unduly emphasize the children’s testimony at trial, would reveal only general information about children as opposed to information about the child victims in this case, and would only provide common knowledge that defendant could argue to the jury without the aid of an expert. We agree. The limited cognitive abilities of children are well known, and any jury can be expected to take that factor into account when determining a child’s credibility. The proffered expert testimony on this point would have provided no useful information to the jury.

The supreme court in Enis addressed a similar situation when the defendant in that case offered an expert to testify about the reliability of eyewitness testimony. Although the court noted that much of the expert’s testimony would have resolved purported “myths” about eyewitness testimony that were not pertinent to that case, the court wrote the following:

“We caution against the overuse of expert testimony. Such testimony, in this case concerning the unreliability of eyewitness testimony, could well lead to the use of expert testimony concerning the unreliability of other types of testimony and, eventually, to the use of experts to testify as to the unreliability of expert testimony. So-called experts can usually be obtained to support most any position. The determination of a lawsuit should not depend upon which side can present the most or the most convincing expert witnesses. We are concerned with the reliability of eyewitness expert testimony [citations], whether and to what degree it can aid the jury, and if it is necessary in light of defendant’s ability to cross-examine eyewitnesses. An expert’s opinion concerning the unreliability of eyewitness testimony is based on statistical averages. The eyewitness in a particular case may well not fit within the spectrum of these averages. It would be [inappropriate] for a jury to conclude, based on expert testimony, that all eyewitness testimony is unreliable.” Enis. 139 Ill. 2d at 289-90. 564 N.E.2d at 1165.

The above analysis regarding expert testimony about eyewitness testimony also applies to expert testimony about child victims’ allegedly poor memories and proclivities to invent accusations to please their elders. Indeed, we view defendant’s argument in this case as much weaker than the defendant’s argument in Enis. Here, the testimony of the psychiatrist would have provided nothing more than generalizations — of dubious authenticity — that would have nothing to do with the credibility of A.J. and C.J. Dr. Schwartz would have provided only stereotyped generalizations regarding child victims.

We agree with the decisions of the courts of other States that have considered and rejected similar arguments. (See State v. Erickson (Minn. Ct. App. 1990), 454 N.W.2d 624, 628; State v. James (1989), 211 Conn. 555, 575, 560 A.2d 426, 437.) Thus, we hold that the trial court did not abuse its discretion in rejecting the proffered expert testimony concerning the reliability of child-victim testimony.

E. Juror Intimidation

Defendant last argues that the trial court erred by failing to conduct a hearing to determine whether one juror “coerced” another juror into voting “guilty” by misinforming that juror about the effect of a “not guilty” verdict. After defendant’s trial, a juror contacted defense counsel because she feared that the jury verdict was improper. She informed defense counsel that another juror advised her that “if she persisted in her vote of not guilty, the Defendant would be set free and would never stand trial for the charges, and that it would be her responsibility if [defendant again committed] a similar [offense].” Defense counsel added that the juror claimed this “misinformation” swayed her to vote “guilty.” The trial court denied defendant’s motion to conduct a hearing about this purported coercion.

A juror may not impeach a jury’s verdict by subsequently providing an affidavit or testimony which shows the motive, method, or process by which the jury reached its verdict. (People v. Boclair (1989), 129 Ill. 2d 458, 485, 544 N.E.2d 715, 727.) Accordingly, evidence regarding a juror’s reasoning or what persuaded a juror to vote as he did is inadmissible. (People v. Tucker (1990), 193 Ill. App. 3d 849, 857, 550 N.E.2d 581, 586.) The only way to impeach a jury’s verdict is to reveal physical intimidation (see People v. Reid (1991), 221 Ill. App. 3d 695, 699, 583 N.E.2d 1, 4) or excluded events brought to the jury’s attention without showing how these events affected the jury’s reasoning (Tucker, 193 Ill. App. 3d at 857, 550 N.E.2d at 586). In this case, the information provided by the juror pertains to what influenced her decision making. Therefore, because it could not impeach the jury’s verdict even if true, the trial court correctly denied defendant’s motion without conducting a hearing thereon.

III. Conclusion

For the reasons stated, we affirm the judgment of the trial court.

Affirmed.

KNECHT and GREEN, JJ., concur.


author: JUSTICE LUND

text:
    WILLIAM PALMER, Plaintiff-Appellant, v. BETH CRAIG, Defendant-Appellee.
    Fourth District
    No. 4 — 92—0977
    Argued June 16, 1993.
    Opinion filed June 29, 1993.

      Robert G. Kirchner (argued), of Lerner & Kirchner, of Champaign, for appellant.
    John F. Bramfeld (argued), of Phebus, Tummelson, Bryan & Knox, of Urbana, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

Plaintiff William Palmer appeals a judgment of the circuit court of Champaign County entered upon a jury verdict in favor of defendant. The action was brought to recover damages resulting from defendant’s alleged negligence in the operation of a motor vehicle. Plaintiff contends (1) the trial court erred in limiting testimony of his accident-reconstruction expert; (2) the trial court erred in refusing to instruct the jury regarding the legal significance of a stop sign located on private property; and (3) the cumulative effect of these errors caused the jury to render a verdict that is against the manifest weight of the evidence. We affirm.

On January 29, 1989, defendant was traveling in an easterly direction on the perimeter road surrounding Market- Place Mall in Champaign, Illinois. This perimeter road has four lanes, two in each direction. Defendant was in the right-hand lane, traveling between 30 and 35 miles per hour. Her car was in good condition, the day was clear and dry, and the time was approximately 3:30 p.m. Defendant had entered the perimeter road from Neil Street and, a few moments later, she noticed another car traveling in the same direction in the left-hand lane. The other car was moving at the same rate of speed and was located about half a car length behind her vehicle.

Defendant first noticed plaintiff’s van when she was about four car lengths from it. Plaintiff’s van was on an access road near Byerly Music, heading north, attempting to cross the perimeter road in order to enter the mall parking lot. This access road is controlled by a stop sign, but defendant testified the van was not stopped, but rolling. (This description is in conflict with deposition testimony where she agreed to defense counsel’s description of a van stopped on the access road.) Upon seeing the van ahead of her and on her right, defendant removed her foot from the accelerator and started to lower her speed. As plaintiff began to cross the perimeter road, defendant slammed on her brakes and, moments later, collided with the side of the van near the driver’s door. After the collision her own vehicle came to a stop, while plaintiff’s vehicle continued moving, skipped a curb surrounding an island at the entrance to the parking lot, brushed against a small tree, and hit a car located in the parking area. Defendant claims she hit the van squarely in the outermost (right-hand) lane of the perimeter road. After impact, her car angled a bit to the left.

Billy Rickard, a disinterested witness, was driving his car half a car length behind defendant’s vehicle and in the innermost (left-hand) lane of the eastbound perimeter road. He first saw plaintiff’s vehicle just as it was entering the perimeter road. He had no idea whether plaintiff came to a full stop at the stop sign. Rickard testified the collision occurred in the outermost (right-hand) lane of the perimeter road and that impact was dead center (“t-boned”). When asked whether or not defendant had applied her brakes, he replied he did not see that she had time to do anything. Rickard hit his own brakes and merely attempted to stay out of the accident. Nevertheless, his right front fender came into contact with defendant’s left-rear-quarter panel. Overall, Rickard’s testimony completely corroborates defendant’s description of events.

Plaintiff testified that when he arrived at the intersection there was a car driven by a female in front of him. He saw her look both ways at the stop, then cross the four lanes of the perimeter road and enter the parking lot. He then testified:

“I moved up to the corner when she left, and watched her to [sic] go completely across the two eastbound lanes, the two westbound lanes, enter into the parking lot, and I proceeded from that point on out to go across.”

Plaintiff acknowledges the existence of the stop sign controlling his access to the perimeter road, but does not indicate he stopped there; nor does he state he looked both ways before crossing.

Plaintiff contends that as he crossed the intersection he heard a thud to his left. At the time he heard this sound, he was in the northeast quadrant of the intersection (westbound lanes). A moment later defendant’s car hit his van, just behind the driver’s side door. The impact drove the. van over the island adjacent to the opening to the parking lot, where it grazed a tree. After he went over the island, and while bringing the vehicle back under control, he hit a vehicle in the parking lot driven by Jane Good.

Jane Good was driving the vehicle that preceded plaintiff’s van in crossing the intersection into the parking lot. After plaintiff traveled over the curb surrounding the island, he hit the right front side of her vehicle. Good testified she saw debris from the accident being swept up from the westbound lanes of the perimeter road. She also stated glass was spread around and that it was being swept toward the north (toward the westbound lanes). She had no idea where they started to sweep.

The court also heard testimony from plaintiff’s accident-reconstruction expert, Michael Cooper. Defendant had filed a motion in limine, arguing the inadmissibility of this evidence where eyewitness testimony is available and where it is not necessary to rely upon knowledge beyond the ken of the average juror. Furthermore, defendant objected to the fact that Cooper arrived at his conclusions by selecting elements of the eyewitness testimony he believed (such as the velocity of the vehicles) and ignoring those elements that did not fit his hypothesis. Plaintiff countered that various factors such as the weights of the respective vehicles and the effects of mass and speed in the determination of the point of impact are beyond the ken of the average juror. As an offer of proof, plaintiff submitted the text of Cooper’s analysis, which concluded that the point of impact was in the westbound lanes. The trial court ruled that Cooper would be allowed to testify as to the location of the collision, but he would not be allowed to testify as to where the collision did not occur. In other words, the expert would not be allowed to impeach the credibility of the eyewitnesses.

The general rule is that reconstruction testimony may not be used as a substitute for eyewitness testimony. Reconstruction testimony may only be used in addition to eyewitness testimony if it is determined necessary to rely upon knowledge and application of principles of science beyond the ken of the average juror. (Peterson v. Lou Bachrodt Chevrolet Co. (1979), 76 Ill. 2d 353, 359, 392 N.E.2d 1, 3; McGrath v. Rohde (1972), 53 Ill. 2d 56, 61, 289 N.E.2d 619, 622-23.) Application of this rule has proved to be extremely difficult for our courts. The issue has been resolved in a variety of ways, giving rise to countless restrictions and exceptions. An extensive overview of these decisions can be found in Augenstein v. Pulley (1989), 191 Ill. App. 3d 664, 547 N.E.2d 1345, appeal denied sub nom. Augenstein v. Steinmetz (1990), 131 Ill. 2d 557, 553 N.E.2d 393.

The Augenstein court identified two fundamental reasons for the exclusion of reconstruction evidence. The first is the court’s assessment that jurors are well aware of driving situations and do not require the assistance of experts in reaching their decision. The second is that many reconstruction experts are police officers with little or no training in physics and, therefore, unable to provide expertise in a truly scientific field. The Augenstein court concluded the fact “that some witnesses may not be properly qualified as experts or that some opinions may not assist the fact finder does not justify a slavish adherence to a rule that excludes reconstruction evidence in all cases in which there is eyewitness testimony.” (Emphasis in original.) Augenstein, 191 Ill. App. 3d at 680, 547 N.E.2d at 1355.

Acknowledging the proposition that reconstruction testimony is still not a favorite of the courts in cases involving eyewitnesses, the Augenstein court held that the admissibility of this type of evidence is to be based upon the rules announced by the supreme court for opinion testimony. Accordingly, the court must only determine (1) whether the expert is qualified in the field, and (2) whether his testimony will aid the fact finder in a resolution of the dispute. The presence of eyewitnesses thus becomes one factor, rather than the sole factor, in determining whether evidence is admissible.

We find the Augenstein court’s approach to the issue of reconstruction evidence persuasive and join those courts adopting its holding. (See Robles v. Chicago Transit Authority (1992), 235 Ill. App. 3d 121, 601 N.E.2d 869; Rios v. Navistar International Transportation Corp. (1990), 200 Ill. App. 3d 526, 558 N.E.2d 252, appeal denied (1990), 133 Ill. 2d 572; Magna Bank v. Ogilvie (1992), 235 Ill. App. 3d 318, 601 N.E.2d 1091.) Whether reconstruction evidence should be admitted at trial is a matter within the court’s discretion. (Rios, 200 Ill. App. 3d at 536, 558 N.E.2d at 259.) However, it has been a longstanding rule of this court that expert reconstruction opinion may- not be used to impeach otherwise credible eyewitness testimony. (National Bank v. Pickens (1972), 8 Ill. App. 3d 58, 289 N.E.2d 64.) The trial court’s decision prohibiting the expert from directly impeaching the eyewitnesses with evidence that the collision could not have taken place in the eastbound lanes represents a sound application of this long-standing principle.

Plaintiff contends this limitation rendered the expert’s testimony virtually meaningless, since the jury was not fully informed as to the basis of the expert’s opinion. We find this argument without merit. Plaintiff’s expert was allowed to explain in detail the basis for his opinion corroborating plaintiff’s version of events. We find no prejudice to plaintiff’s case.

Next, plaintiff contends the trial court erred in refusing to instruct the jury regarding the legal significance of a stop sign located on private property. Both the access road from which plaintiff entered the intersection and the perimeter road itself are located on private property. Section 11 — 201 of the Illinois Vehicle Code (Code) states that the provisions of the Illinois Rules of the Road refer exclusively to operation of vehicles upon highways. (Ill. Rev. Stat. 1991, ch. 951/2, par. 11 — 201.) “Highway” is defined, in pertinent part, as the entire width between the boundaries of every way publicly maintained. (Ill. Rev. Stat. 1991, ch. 951/2, par. 1 — 126; see also Romano v. Bittner (1987), 157 Ill. App. 3d 15, 510 N.E.2d 924.) Accordingly, plaintiff submitted nonpattern instruction No. 27, stating:

“Market Place Shopping Center is private property. The Rules of the Road do not apply to private property. In reaching your verdict, you are not to infer that the stop sign on Access Road for northbound traffic created any legal obligation on the Plaintiff to stop before crossing Ring Road, nor that it created any legal obligation on the Plaintiff to yield to traffic traveling on Ring Road before crossing Ring Road.”

The trial court viewed this instruction as an anticipatory defense to Illinois Pattern Jury Instruction, Civil, No. 60.01, which informs the jury that a particular statute was in effect and, should it decide it violated the statute, the jury would be allowed to consider this fact in determining whether the party was negligent. (Illinois Pattern Jury Instructions, Civil, No. 60.01 (3d ed. 1992).) Defense counsel assured the court that he had no intention of submitting this instruction. The trial court advised plaintiff’s counsel he was free to explain to the jury that no statutory violations of the Code could arise from failure to obey this stop sign. However, the trial court found there may be rights or obligations of a civil nature implicated and that it would be the jury’s duty to decide the issue.

The trial court concluded, and we agree, that plaintiff’s non-pattern instruction No. 27 would only have served to confuse the jury. Instructing the jury that the stop sign created no legal obligation implies plaintiff was free to ignore the stop sign or any other traffic control signal or device located on private property — an implication which we find ridiculous.

Plaintiff argues that without being instructed in the manner proposed, the jury, employing its experiences in the ordinary affairs of life, would be led to conclude that certain obligations and rights flowed from the mere existence of the stop sign. We agree. Assuming the jury has been selected from an intelligent and mature pool of citizens, we hope they would infer that the mere presence of a stop sign does in fact obligate a person to stop. To do otherwise would indicate a failure to use ordinary care. We find no error in the trial court’s rejection of plaintiff’s nonpattern instruction No. 27.

Related to the argument above is plaintiff’s contention that the court erred in failing to instruct the jury to ignore defense counsel’s remarks in his opening statements regarding the existence of a stop sign on the access road upon which plaintiff was driving. For the reasons cited above, we find no error.

Finally, plaintiff contends the cumulative effect of the claims of error discussed above caused the jury to render a verdict against the manifest weight of the evidence. Plaintiff’s own testimony indicates that he crossed an intersection without looking left or right. Regardless of the lane where the collision occurred, and regardless whether he came to a full stop at the stop sign, a jury was entitled to believe he did not exercise due care in the operation of his motor vehicle. The verdict was not against the manifest weight of the evidence.

Affirmed.

STEIGMANN, P.J., and KNECHT, J., concur.