text:
    WHITECO METROCOM DIVISION, Plaintiff-Appellant, v. THE VILLAGE OF DOWNERS GROVE, Defendant-Appellee.
    Second District
    No. 2—89—0612
    Opinion filed April 24, 1990.

      Douglas R. Prochnow, Lawrence D. Mishkin, and E. Regan Daniels, all of Wildman, Harrold, Allen & Dixon, of Chicago (James R. Morrin, of counsel), for appellant.
    Rosenthal, Murphey, Coblentz & Janega, of Chicago, and Barbara J. Gosselar, of Kubiesa & Power, Ltd., of Westmont (Jon B. Murphey, of counsel), for appellee.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

The plaintiff, Whiteco Metrocom Division (Whiteco), seeks reversal of a judgment on the pleadings entered by the circuit court of Du Page County in its two-count complaint for declaratory judgment against the defendant, the Village of Downers Grove. On leased property at 1023 Butterfield Road in Downers Grove, Whiteco, which was engaged in the business of outdoor advertising, proposed to erect two double-faced outdoor advertising display signs, each to be located within 660 feet of U.S. Interstate 88 (1-88). Each of the sign faces was to be 60 feet wide and 20 feet high and have a total display area of 1,200 square feet. The bottom of the sign was to be 60 feet above grade, and the sign would be oriented so that it was viewable by eastbound and westbound vehicles on 1-88.

As proposed, the signs complied with certain relevant provisions of the Highway Advertising Control Act of 1971 (the Act) (Ill. Rev. Stat. 1987, ch. 121, pars. 504, 504.04, 506, 506.01). In particular, section 6.01 of the Act provides in pertinent part: “No sign may be erected which exceeds 1200 square feet in area, 30 feet in height and 60 feet in length.” The Illinois Department of Transportation, the State agency charged with the administration of the Act, granted permits for the signs, but the Village of Downers Grove, a home rule unit, advised Whiteco that it would deny any application for signs which exceeded the sign face size and height limitations contained in article IX, section 5.3 — 1(c) of its zoning ordinance. Section 5.3 — 1(c) regulates signs in the B — 3 zoning district in Downers Grove; the property on which the proposed signs were to be erected is located in a B — 3 zoning district. Inter alia, “[advertising signs not exceeding 20 feet in height and 200 square feet in area” are permitted in the Downers Grove B — 3 zoning district. Downers Grove, Ill., Zoning Ordinance art. IX, §5.3 — 1(c).

At issue is whether the advertising sign size limitation imposed by the Downers Grove zoning ordinance is an invalid preemption of the maximum sign size permitted under the Act.

Whiteco acknowledges that in zoned commercial and industrial areas municipalities are permitted under section 7 of the Act to adopt regulations with respect to the size of signs other than as set forth in section 6.01 of the Act if such regulations are “consistent with the intent of [the] Act and with customary use.” (Ill. Rev. Stat. 1987, ch. 121, par. 507.) “Customary use,” Whiteco contends, refers to the customary use of advertising signs in the State of Illinois by the outdoor advertising industry in its exercise of the rights established by the Act and does not refer, as Downers Grove contends, to “the customary use of land based on its designation, restrictions on usage, and surrounding uses in a particular community as delineated and described in a local municipal zoning ordinance.”

Whiteco relies on the language of section 1 of the Act and the legislative histories of the Act and of the Federal Highway Beautification Act of 1965 (23 U.S.C. §131 et seq. (1970)) in support of its interpretation of the term “customary use.” It concludes on the basis of those authorities that Downers Grove’s restriction of the size of signs in the B — 3 zoning district to 20 feet in height and 200 square feet in area is not consistent with “customary use” since regulatory standards consistent with such “customary use” are specified in section 1 as those “set forth in section 6 of [the] Act.” (Ill. Rev. Stat. 1987, ch. 121, par. 501.) Thus, Whiteco argues, Downers Grove’s more severe sign size restriction is inconsistent with “customary use.”

The Illinois Highway Advertising Control Act of 1971 was adopted by the Illinois legislature pursuant to the Federal Highway Beautification Act of 1965. (23 U.S.C. §131 et seq. (1970).) In order for States to preserve Federal funding for State highways, the Highway Beautification Act required them to enact legislation regulating outdoor advertising signs. The Illinois Highway Advertising Control Act, in part, regulates the size, lighting and spacing of outdoor advertising signs. Ill. Rev. Stat. 1987, ch. 121, pars. 506, 506.01, 506.02, 506.03.

Section 1 of the Act provides in full as follows:

“The General Assembly finds and declares that the erection and maintenance of outdoor advertising signs, displays, and devices in areas adjacent to Interstate highways and primary highways should be regulated in order to protect the public investment in such highways, to promote the recreational value of public travel, to preserve natural beauty and to promote the reasonable, orderly and effective display of such signs, displays and devices.
The General Assembly further finds and declares that outdoor advertising is a legitimate, commercial use of private property adjacent to roads and highways; that outdoor advertising is an integral part of the business and marketing function, and an established segment of the national economy which serves to promote and protect private investments in commerce and industry and should be allowed to operate in business areas; and that the regulatory standards set forth in Section 6 of this Act are consistent with customary use in this State and will properly and adequately carry out each and all of the purposes of this Act, more severe restrictions being inconsistent with customary use and ineffective to accomplish the purposes of this Act.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 121, par. 501.

Section 7 of the Act provides, however, that:

“In zoned commercial and industrial areas, whenever a State, county or municipal zoning authority has adopted laws or ordinances, which include regulations with respect to the size, lighting and spacing of signs, which regulations are consistent with the intent of this Act and with customary use, then from and after the effective date of such regulations, and so long as they shall continue in effect, the provisions of Section 6 shall not apply to the erection of signs in such areas.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 121, par. 507.

Several cases have addressed the seeming inconsistency of municipal zoning regulations permitting less generous square footage of advertising signs pursuant to the provisions of section 7 of the Act in light of the language of section 1 of the Act that “more severe restrictions” than section 6 regulatory standards are “inconsistent with customary use.” (National Advertising Co. v. City of Rolling Meadows (7th Cir. 1986), 789 F.2d 571, 575; Dingeman Advertising, Inc. v. Village of Mt. Zion (1987), 157 Ill. App. 3d 461; National Advertising Co. v. Village of Downers Grove (1988), 166 Ill. App. 3d 58.) Sections 1 and 7 of the Act have variously been described as having been born of either the compromise (Rolling Meadows, 789 F. 2d 571, 575) or conflict (Dingeman, 157 Ill. App. 3d 461; Downers Grove, 166 Ill. App. 3d 58) between the State — concerned with preserving its Federal highway funds; the advertising industry — concerned with effective highway advertising; and local zoning entities — concerned with highway aesthetics and safety. (Rolling Meadows, 789 F.2d at 576; Dingeman, 157 Ill. App. 3d at 464-65; Downers Grove, 166 Ill. App. 3d at 62.) As stated in Dingeman,

“The main purpose of the Act was to obtain Federal funds and that entailed maximum limitation on advertising signs. The protection for the advertising industry indicated by section 1 was an offshoot of the legislation. Section 7 was a protection for municipalities desiring additional limitations.” Dingeman, 157 Ill. App. 3d at 464.

In National Advertising Co. v. City of Rolling Meadows, the court of appeals invalidated section 9.1 of Rolling Meadows’ zoning ordinance limiting the size of signs to 200 square feet inasmuch as it was “more restrictive than [section 6.01 of the Act] and so *** not consistent with ‘customary use’ within the meaning of [sections 1 and 7].” (Rolling Meadows, 789 F.2d at 576.) The court there was of the opinion that Rolling Meadows, as a home rule municipality, may restrict the total height of a sign and its support structures since section 6 of the Act does not specify those matters, but that it could not restrict the size of the visible face of the sign to less than 1,200 square feet since section 6 of the Act does regulate square footage. The court observed that, “[wjhen the state expressly establishes a coordinated plan, §6(i) of the state constitution requires home-rule municipalities to go along.” (789 F.2d at 576; Ill. Const. 1970, art. VII, §6(i).) In other words, the court found the more restrictive Rolling Meadows sign size regulation was “preempted” by section I of the Act, which stated that the sign size which was “consistent with customary use in this State” was the regulatory standard set forth in section 6 of the Act, i.e., 1,200 square feet.

The preemption found in National Advertising Co. v. City of Rolling Meadows was rejected after careful analysis in Dingeman Advertising, Inc. v. Village of Mt. Zion, however, and Dingeman’s lead was followed in this court’s subsequent decision in National Advertising Co. v. Village of Downers Grove. (Dingeman, 157 Ill. App. 3d 461; Downers Grove, 166 Ill. App. 3d 58.) At issue in Dingeman was the validity of Mt. Zion’s zoning ordinance prohibiting all signs larger than 150 square feet in area. The plaintiff, Dingeman Advertising, Inc., sought approval of a two-sided, off-premises advertising sign, each side of which measured 300 square feet. Mt. Zion denied Dingeman’s application, and in Dingeman’s subsequent suit for declaratory judgment, the trial court found Mt. Zion’s ordinance invalid as being in conflict with the Act.

The precise issue considered on appeal in Dingeman was: “Does the Highway Advertising Control Act (the Act) preempt all municipal zoning controls and establish, as a minimum advertisement requirement for all commercial areas adjoining Federal-aid primary highways, the same maximum limitation set forth in the Act?” (Emphasis added.) (Dingeman, 157 Ill. App. 3d at 462.) Dingeman argued the second paragraph of section 1 of the Act had the effect of making the maximum limitations of the section 6 series the minimum limitations available to municipalities for commercial and industrial-zoned areas. Mt. Zion contended section 7 of the Act has effect only if municipalities are allowed to make more restrictive provisions than those set forth in the section 6 series.

Dingeman’s contention was rejected, and the trial court’s finding of invalidity of the Mt. Zion sign size limitation ordinance was reversed. The court observed that, “[i]f ‘customary use’ is, in fact, the upper limits provided by section 6, then section 7 is a nullity.” (Dingeman, 157 Ill. App. 3d at 463.) Recognizing that statutes should not be construed, if possible, as containing a superfluous provision, the court concluded that insofar as sections 1 and 7 conflicted, section 7 controls, and it upheld Mt. Zion’s right to regulate the size, lighting, and spacing of advertising signs “consistent with customary use.” Dingeman, 157 Ill. App. 3d at 465.

This court agreed with the reasoning and conclusion of Dingeman in National Advertising Co. v. Village of Downers Grove, which concerned the same section of the Downers Grove zoning ordinance which is at issue here, section 5.3 — 1(c) of article IX. The trial court found in each of the consolidated cases before it that the Act preempted local regulations which were inconsistent with it.

On appeal before this court, there was no dispute between the parties that the Village’s sign ordinance imposed substantially stricter limitations on the size and location of outdoor advertising signs than those imposed by the Illinois General Assembly under section 6 of the Act. Adhering to the reasoning and conclusion of Dingeman in affording control to section 7 over section 1 of the Act, this court also observed that the enactment of more restrictive local advertising sign regulations by a municipality would not jeopardize the continued receipt of Federal highway funds which was the legislature’s impetus in adopting the Act. 166 Ill. App. 3d at 61-62.

Whiteco contends, however, that neither Dingeman nor National Advertising Co. v. Village of Downers Grove recognized a right in municipalities to regulate State highway advertising sign standards using a purely local standard of customary use of land based on its designation as contended by Downers Grove. Rather, municipalities may only regulate sign sizes subject to the Act’s imposed standard of “customary use” which, Whiteco argues, refers to the statewide sign industry usage declared in section 1 of the Act, which, in turn, refers to the section 6 sign area size of 1,200 square feet. Whiteco contends the trial court’s judgment in the instant cause deprived the sign industry of the legitimate rights and considerations which the Act intended to preserve for it in Illinois and deprived it of any meaningful remedy to enforce those rights by rendering superfluous the “customary use” language in sections 1 and 7 of the Act.

The trial court’s judgment has not deprived the sign industry of any legitimate rights and considerations provided by the Act. The construction of a statute is a question of law (In re Estate of Pirie (1986), 141 Ill. App. 3d 750), and the statute may be construed by this court independently of the trial court’s judgment (People ex rel. Edgar v. Curley (1989), 188 Ill. App. 3d 37). A court’s function in interpreting statutory provisions is to ascertain and give effect to the legislative intent underlying the statute. The court must look at the statute as a whole, taking into consideration its nature, its purposes and the evil the statute was intended to remedy. (Rodgers v. Department of Employment Security (1989), 186 Ill. App. 3d 194, 198.) Each word, clause, or sentence of a statute must not be rendered superfluous but must, if possible, be given some reasonable meaning. (Peoria Roofing & Sheet Metal Co. v. Industrial Comm’n (1989), 181 Ill. App. 3d 616.) Absent contrary legislative intent, the same, or substantially the same, words appearing in different parts of the same statute will be given consistent interpretation. (People v. Yarbrough (1988), 166 Ill. App. 3d 782.) Where intent can be ascertained from the statutory language itself, it must be given effect without resorting to extrinsic aids for construction. People v. Bryant (1989), 128 Ill. 2d 448.

Notwithstanding Whiteco’s thorough, hard-pressed argument setting forth the State and Federal legislative histories of the Act and the Highway Beautification Act in support of its position that “customary use” in section 7 refers to statewide sign industry usage and not local land use, we believe resort to extrinsic aids in interpretation of the Act is unnecessary. Accepting, for purposes of discussion, that the term “customary use” in section 7 should be afforded a meaning consistent with the term “customary use in this state” as used in section 1, section 7 nonetheless permits zoning authorities to preempt the provisions of the section 6 series (regulating sign size, lighting, and spacing) in zoned commercial and industrial areas if such preemptive regulations “are consistent with the intent of [the] Act and with customary use.” (Ill. Rev. Stat. 1987, ch. 121, par. 507.) Again, assuming “customary use” to mean “customary use in this state” as provided in section 1 of the Act and as urged by Whiteco, section 1 declares that: “[T]he regulatory standards set forth in section 6 *** are consistent with customary use in this state and will properly and adequately carry out each and all of the purposes of this Act, more severe restrictions being inconsistent with customary use and ineffective to accomplish the purposes of this Act.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 121, par. 501.

The regulatory standard for sign size established by section 6 of the Act which, by virtue of section 1, is expressly declared to be consistent with customary use in this State, is a maximum of 1,200 square feet in area. Section 6 clearly permits the erection of signs less than 1,200 square feet in area. Consequently, if signs not exceeding 1,200 square feet in area are consistent with customary use as declared in section 1, then the only sign size regulation which would be inconsistent with customary use would be one that allows erection of a sign with an area of more than 1,200 square feet.

The only way to achieve consistency between the apparent blanket prohibition of section 1 against “more severe restrictions” and the preemptive capabilities granted zoning authorities in section 7 is to construe section 1 as a declaration that “more severe restrictions [on a statewide basis would be] inconsistent with customary use and ineffective to accomplish the purposes of this Act.” Construed thusly, the statute assures that outdoor advertising signs in business areas adjacent to interstate highways and primary highways in the State of Illinois shall be allowed and may be as large in area as 1,200 square feet except insofar as they may be located in zoned business and industrial areas and are otherwise regulated not in excess of the maximum size limitation of1,200 square feet.

Whiteco asserts that the court’s finding of validity of the Downers Grove zoning ordinance preempting the 1,200 square foot maximum sign size set forth in the Act “deprives the sign industry of any meaningful remedy to enforce the rights recognized in sections 1 and 7 of the Act” in that municipal sign ordinances would “need only pass constitutional muster under traditional zoning law” (i.e., LaSalle National Bank v. County of Cook (1957), 12 Ill. 2d 40). That zoning law test, it argues, would not include a consideration of statewide customary sign industry usage and practices. The Village argues in response that Whiteco’s fear that customary sign industry usage on a statewide basis could not be considered under LaSalle is incorrect and cites Cosmopolitan National Bank v. County of Cook (1984), 103 Ill. 2d 302, as an example of a case where the regional and statewide need for landfills was considered in reviewing the denial of a landfill zoning request.

In section 1(D) of its reply brief, Whiteco takes exception to Downers Grove’s position on this issue and its supporting authority, arguing that it amounts to a withholding from this court of Downers Grove’s “true position” on the test applicable to sign regulation ordinances. In support of its argument in this regard, it points to a trial court brief which Downers Grove filed in National Advertising Co. v. Village of Downers Grove, case No. 88—MR—527. Whiteco characterizes Downers Grove’s true position to be that “absent the Act, local communities are not required to recognize sign industry usage in any respect” since it is the reasonableness of sign regulation ordinances which is the proper test of validity and not the test used in La Salle. Whiteco’s reply brief then appends as exhibit “T” a copy of Downers Grove’s so-called brief which, in actuality, was Downers Grove’s reply memorandum in support of its motion for summary judgment in that cause.

In a motion taken with this case, Downers Grove moves to strike Whiteco’s reply brief, and Whiteco has filed its objections thereto. Downers Grove argues Whiteco’s reply brief should be stricken in that it does not limit itself to matters of reply, injects entirely new matter into the case and improperly attempts to supplement the record without leave of court, all in violation of Supreme Court Rule 341. (113 Ill. 2d R. 341(g).) Whiteco counters that its section 1(D) argument and appendix T are properly responsive to arguments made by Downers Grove in its answer brief and are not violative of Supreme Court Rule 341. Alternatively, it argues that striking only that portion of the reply brief and appendix which is deemed to be improper rather than its entire brief would adequately protect Downers Grove’s interests without greatly prejudicing Whiteco.

Downers Grove’s answer brief in the instant cause appears to suggest that the traditional zoning test used in La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, would allow consideration of statewide industry practice in analyzing the validity of the sign ordinance. The inherent implication that the La Salle test is the one which would be used to test the validity of a sign ordinance is not well taken, but we do not believe Downers Grove’s argument in answer to Whiteco’s contention can be construed to be an intentional misrepresentation of the law or Downers Grove’s position to this court. It has been pointed out that the factors to be considered under the traditional La Salle zoning test focus only on the validity of a zoning classification as applied to a particular piece of property. In contrast, a sign regulation ordinance is applicable to all signs within a zoning district thus distinguishing it in its scope and application. Therefore, it is tested strictly on the basis of whether it is reasonable, that is, whether it is rationally related to the public health, safety or welfare. Village of Skokie v. Walton on Dempster, Inc. (1983), 119 Ill. App. 3d 299, 302-03; see also Krych v. Village of Burr Ridge (1982), 111 Ill. App. 3d 461, 464-66; City of Champaign v. Kroger Co. (1980), 88 Ill. App. 3d 498, 503-10.

In countering Downers Grove’s suggestion that statewide sign industry usage could be considered even under the La Salle test, White-co is forced in its reply brief to acknowledge that La Salle is not the proper test, but, rather, that the reasonableness test applies. Whiteco doggedly adheres to its “lack of remedy” argument, however, by weakly concluding that none of the reasonableness cases arose under the Act and, thus, absent the protection afforded the sign industry by the Act, “the only test for a sign ordinance is ‘reasonableness,’ nothing more.” As Downers Grove points out, Whiteco has not contended in this cause that its maximum sign size is unreasonable, nor, in fact, does Whiteco argue here that the reasonableness test could not include consideration of statewide sign industry advertising practices. Its lack-of-remedy argument seriously deflated, Whiteco proceeds to attack Downers Grove, charging it has concealed its “true position” discussed above.

That portion of section 1(D) of Whiteco’s reply brief which unfairly charges Downers Grove with misrepresenting its true position to this court is stricken. Although appendix T ordinarily also should be stricken as concerning a matter de hors the record, Downers Grove’s motion to strike relies itself on appendix T in arguing the reply brief should be stricken, thus rendering its presence in the record essential to this court’s determination of the motion. Accordingly, it would be inappropriate to strike it in this instance.

It is well established that a motion for judgment on the pleadings admits the facts well pleaded by the opposite party and seeks judgment on the questions of law raised by the pleadings. (Vermeil v. Jefferson Trust & Savings Bank (1988), 176 Ill. App. 3d 556, 563.) Judgment on the pleadings is appropriate only if the pleadings do not raise genuine issues of material fact. (Allcare, Inc. v. Bork (1988), 176 Ill. App. 3d 993, 999.) The grant or denial of declaratory relief is discretionary with the court (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 701; Clyde Savings & Loan Association v. May Department Stores (1981), 100 Ill. App. 3d 189); the trial court’s exercise of this discretion is not afforded the same deference as its exercise of discretion in other contexts which may require factual determinations such as the credibility of the witnesses (Chicago & Eastern Illinois R.R. Co. v. Reserve Insurance Co. (1981), 99 Ill. App. 3d 433, 436). When no question of fact is presented, entry of judgment on the pleadings in a declaratory judgment action is proper. Lane v. Bauscher (1978), 59 Ill. App. 3d 621; Commercial Mortgage & Finance Co. v. City of Rockford (1965), 62 Ill. App. 2d 160.

For the reasons above, we conclude the court did not err in granting Downers Grove’s motion for judgment on the pleadings where the only question presented was one of law and that the plaintiff was not entitled to judgment based upon the plaintiff’s allegation that customary usage, as an industry standard, preempts and invalidates Downers Grove’s zoning ordinance because the ordinance is inconsistent with customary usage and is ipso facto invalid.

The judgment of the circuit court of Du Page County is affirmed. Downers Grove’s motion to strike Whiteco’s reply brief is granted in part.

Motion to strike granted in part; judgment affirmed.

DUNN and McLAREN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE UNVERZAGT

license: Public Domain

text:
    DOUGLAS C. LOGAN et al., Plaintiffs-Appellants, v. WEST COAST CYCLE SUPPLY COMPANY, merged with Medalist Industries, Inc., Defendant-Appellee (Nishiki Bicycle Company et al., Defendants).
    Second District
    No. 2—89—0450
    Opinion filed April 24, 1990.

      Daniel Slijepcevich, of Thomas R. Cirignani & Associates, of Chicago, for appellants.
    William J. Cremer and Francis A. Spina, both of Tressler, Soderstrom, Maloney & Priess, of Wheaton, for appellee.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

The plaintiffs, Douglas C. Logan and his wife, Frances Logan, appeal the judgment of the circuit court of Du Page County refusing to vacate its order denying reinstatement in the case of the previously dismissed strict product liability count against the defendant, West Coast Cycle Supply Company (West Coast Cycle). West Coast Cycle was the distributor of a Nishiki bicycle which malfunctioned on August 12, 1984, while plaintiff Douglas Logan was operating it, causing him injury.

Plaintiffs contend the court erred when it dismissed count I of their amended complaint against West Coast Cycle and when it subsequently denied its reinstatement following dismissal of the cause with prejudice against Kawamura, the manufacturer of the bicycle. We affirm.

Plaintiffs filed a four-count complaint in the circuit court of Cook County on December 7, 1984, against Nishiki Bicycle Company (Nishiki) as the seller/distributor of the bicycle and Kawamura Cycle Company (Kawamura) as the designer/maker/manufacturer of the bicycle. An amended complaint filed on March 5, 1985, named West Coast Cycle and the Sport & Cycle Center as additional defendants. Only defendant West Coast Cycle is involved in this appeal. The amended complaint claimed strict product liability (count I), negligence (count II), breach of express warranty (count III) and loss of consortium on behalf of Frances Logan (count IV).

West Coast Cycle answered counts I, II and IV of the amended complaint on July 15, 1985. It did not answer count III at that time, which was directed against defendant Nishiki. On August 23, 1985, it filed a comparative negligence special defense, notice of deposition, request for production and interrogatories. Subsequently, on January 14, 1987, West Coast Cycle, “at times doing business under the trade name of Nishiki Bicycle Company,” filed its answer to count III of the plaintiffs’ amended complaint.

On December 9, 1986, West Coast Cycle invoked the protection of the “seller’s exception” provided by section 2 — 621 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 621) by moving for dismissal of the plaintiffs’ strict product liability claim against it. Its motion alleged it was engaged in the distribution of certain Nishiki bicycles to retailers, but at no time was it “engaged in the actual design or manufacture of the subject bicycle.” It alleged further that those Nishiki bicycles were manufactured by the Kawamura Cycle Company as supported by the affidavit of Mary Davenport, manager of West Coast Cycle. Davenport’s affidavit was not attached to the motion which appears in the record before us; copies of it appear elsewhere in the record, however. Davenport stated in her notarized affidavit, in pertinent part, “[t]he certain Nishiki bicycles imported by West Coast [Cycle] and subsequently distributed to retail dealers are manufactured by Kawarmura [sic] Cycle Company of Cobe [sic], Japan.”

West Coast Cycle’s motion was entered on October 28, 1987, and the cause was continued. The order recited that plaintiffs were granted 60 days in which to issue summons against Kawamura. On that same date, plaintiffs requested the court to reconsider its order, alleging Davenport’s affidavit was insufficient certification of the manufacturer because the affidavit was not properly notarized, did not state that the affiant was employed at the relevant time and failed to reveal the manufacturer. Plaintiffs’ motion prayed the court order West Coast Cycle to provide the plaintiffs with an affidavit certifying “the correct identity and address of the manufacturer.” It further prayed the court vacate its order requiring plaintiffs to issue summons against Kawamura. Plaintiffs provide no record reference or report of proceedings which indicates the disposition of this motion for reconsideration. In any event, summons was issued on November 19, 1987, and, after plaintiffs were granted an extension of time, Kawamura was served on March 23, 1988. That date was approximately 43 months after the injury occurred, 39 months after suit was filed and 19 months after the applicable statute of limitations had expired.

Kawamura filed its appearance, and its motion to transfer the cause to Du Page County was granted. Its motion to dismiss the cause with prejudice due to plaintiffs’ lack of diligence in serving summons pursuant to Supreme Court Rule 103 (107 Ill. 2d R. 103(b)) subsequently was granted on February 22, 1989. Because Kawamura was dismissed, plaintiffs moved to have West Coast Cycle reinstated as a defendant, alleging West Coast Cycle did not certify the manufacturer’s existence until December 9, 1986, four months after the statute of limitations had expired. December 9 was the date of West Coast’s motion to dismiss count I against it pursuant to section 2 — 621 in light of the fact Kawamura was the manufacturer as set forth in Mary Davenport’s affidavit. After a written response and plaintiffs’ reply thereto, the motion to reinstate West Coast Cycle was denied, and plaintiffs brought this appeal.

Plaintiffs first argue the court erred when it dismissed count I against West Coast Cycle because West Coast Cycle had not complied properly with the requirements of section 2 — 621. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 621.) Specifically, plaintiffs argue West Coast Cycle failed to provide an affidavit which was certain and specific and failed to include other necessary information or, alternatively, West Coast Cycle failed to exercise the required diligence in providing the correct identity of the manufacturer.

In its motion ordered taken with this case, along with plaintiffs’ objections thereto, West Coast Cycle requests plaintiffs’ argument as to this issue be stricken. It asserts this court has no jurisdiction to consider the propriety of the court’s May 13, 1988, order dismissing it because plaintiffs’ notice of appeal specifies appeal only from the court’s April 19, 1989, order denying their motion to vacate the dismissal and reinstate West Coast Cycle. We deny West Coast Cycle’s motion.

It is well established that an appeal from a final judgment draws into issue all prior nonfinal orders which produced the final judgment. (Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 433; In re Marriage of Click (1988), 169 Ill. App. 3d 48, 54.) An order entered pursuant to section 2 — 621 dismissing a defendant who has certified the identity of the manufacturer of the defective product in issue is not a final order, nor would it become such by the mere inclusion of a finding pursuant to Supreme Court Rule 304 (107 Ill. 2d R. 304(a)) because there exists the possibility that the certifying defendant may be reinstated under the circumstances prescribed in section 2 — 621. (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 621(b)(1) through (b)(5); Kellerman v. Crowe (1987), 119 Ill. 2d 111, 115-16.) Accordingly, West Coast Cycle’s motion to strike plaintiffs’ argument I is denied.

We are not persuaded by plaintiffs' argument on this issue, however, and find West Coast Cycle was properly dismissed.

All persons in the distributive chain, including suppliers, distributors, wholesalers and retailers, are liable for injuries resulting from a defective product in a product liability action. (Kellerman, 119 Ill. 2d at 116; Sims v. Teepak, Inc. (1986), 143 Ill. App. 3d 865, 868.) Under the provisions of section 2 — 621, nonmanufacturers may be dismissed from a product liability action upon certifying the correct identity of the manufacturer of the product which allegedly caused the personal injury. “Once the product manufacturer has been sued and has answered or otherwise pleaded, the trial court is to dismiss the certifying [defendant unless the certifying defendant] *** shares some responsibility for the creation of the defect in the product or had actual knowledge of its existence.” (Kellerman, 119 Ill. 2d at 113-14; Ill. Rev. Stat. 1987, ch. 110, par. 2 — 621(c).) Even if a certifying defendant has been dismissed, the plaintiff may seek to have it reinstated by showing one or more of the five circumstances set forth in section 2— 621, i.e., the action against the manufacturer is time barred; the defendant’s certification of the manufacturer was incorrect; the manufacturer no longer exists, is not subject to jurisdiction in this State, or is not amenable to process; or the manufacturer would not be able to satisfy a judgment or settlement. Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 621(b)(1) through (b)(5).

Plaintiffs cite no authority in support of their argument that Mary Davenport’s affidavit was inadequate because it did not identify Kawamura as the manufacturer of this specific Nishiki bicycle, serial No. KC13915, or as the manufacturer of the specific component part of the bicycle which failed. Contentions unsupported by citation of relevant authority as required by Supreme Court Rule 341 (113 Ill. 2d R. 341(e)(7)) merit no consideration. Dillard v. Kean (1989), 183 Ill. App. 3d 28, 31.

Plaintiffs cite Farris v. Satzinger (N.D. Ill. 1987), 681 E Supp. 485, and Bastian v. Wausau Homes, Inc. (N.D. Ill. 1986), 638 F. Supp. 1325, in support of their further claim the affidavit is required to set forth affirmatively the nonmanufacturing defendant’s lack of knowledge, control or creation of the defect. Bastian does not so state, nor does Farris. In Bastian, the defendant, Wausau Homes, Inc., submitted with its motion to dismiss pursuant to section 2 — 621 a two-page extract of the deposition of the plaintiffs’ expert, rather than an affidavit. In the excerpt, the expert stated the fire in the plaintiffs’ home began in an electric baseboard heater. More extensive extracts of the expert’s testimony submitted by the plaintiffs in opposition to Wausau’s motion indicated the heater may have been defective, but Wausau’s product — the prefabricated, mass-produced home itself — may possibly have been a cause, as well. Consequently, Wausau’s motion to be dismissed from the strict liability count was denied.

In Farris, the plaintiff was injured by a caustic substance expelled from an automatic lubricator distributed by one of the defendants, Forty Three Distributors, Inc. That defendant moved for judgment on the pleadings pursuant to the provisions of section 2 — 621 of the Civil Practice Law, incorporating by reference the affidavit of its agent and officer, Karl Joseph Bieling, certifying to the court the manufacturer of the lubricator and denying creation, control or knowledge of the lubricator’s defect. Plaintiff failed to respond in any way to the defendant’s motion for judgment or to Bieling’s affidavit. Accordingly, the court granted the motion pursuant to statute.

On its face, section 2 — 621 does not require anything more than certification of the correct identity of the manufacturer of the allegedly defective product. To preclude dismissal of the certifying defendant, it is the plaintiff who must show the certifying defendant exercised some significant control over the design or manufacture of the product, or had actual knowledge of, or created, the defect. (Ill. Rev. Stat. 1987, ch. 110, pars. 2-621(c)(l) through (c)(3).) Plaintiffs’ response to West Coast Cycle’s motion to dismiss alleged only “[t]hat it is possible an expert may testify that the defect in the Nishiki bicycle was caused by or due to improper assembly or storage of the bicycle.” Plaintiffs’ allegation does not constitute “a showing,” nor do plaintiffs argue here they subsequently offered any competent evidence in support of that allegation.

Plaintiffs’ position the instant affidavit was inadequate conflicts, in fact, with their allegation below in their motion to reinstate West Coast Cycle that West Coast Cycle “certified the manufacturer’s existence pursuant to the Illinois Code of Civil Procedure Section 2— 621” on December 9, 1986, the date of West Coast Cycle’s motion to dismiss supported by Davenport’s affidavit. We conclude West Coast Cycle’s affidavit was adequate under section 2 — 621.

We do not consider plaintiffs’ further contention on this issue that West Coast Cycle was not duly diligent in certifying the correct identity of the manufacturer. That issue was not brought to the trial court’s attention before it ruled on the motion to dismiss, and, thus, it is not properly presented for review. Pursuant to West Coast Cycle’s motion, that portion of plaintiffs’ reply brief which argues that West Coast Cycle is guilty of waiver or should be estopped from asserting its rights under section 2 — 621 due to its lack of due diligence is granted. 113 Ill. 2d R. 341(g).

In sum, we conclude West Coast Cycle was properly dismissed as to count I of plaintiffs’ amended complaint. We further conclude below the court did not err in refusing to reinstate West Coast Cycle after the manufacturer, Kawamura, was dismissed with prejudice.

Kawamura was dismissed from the cause pursuant to Supreme Court Rule 103, which requires a plaintiff to exercise due diligence in obtaining service of summons on a defendant before the expiration of the applicable statute of limitations. (107 Ill. 2d R. 103(b); Ill. Rev. Stat. 1987, ch. 110, pars. 13 — 202, 13 — 213.) Plaintiffs have not appealed the propriety of Kawamura’s dismissal. Rather, they contend West Coast Cycle should be reinstated because it “did not attempt to comply with the certification requirement until approximately four months after the statute of limitations against the Japanese manufacturer had run” and section 2 — 621 specifically allows reinstatement if the cause of action against the manufacturer is time barred. Ill. Rev. Stat. 1987, ch. 110, par. 2 — 621(b)(1).

In the instant cause, plaintiffs’ timely filed initial and amended complaints named Kawamura as a defendant, alleging it “did design, make and manufacture that certain 15-speed touring bicycle, serial No. KC13195 for Nishiki Bicycle Company.” The record shows no attempt by plaintiffs to serve Kawamura with summons until ordered to do so by the court. Even then, plaintiffs requested the court reconsider its order and sought an extension of time within which to serve summons.

That Kawamura has been released from its liability to plaintiffs is directly attributable to plaintiffs’ own lack of diligence in serving it with process. Section 2 — 621 imposes an affirmative duty upon the plaintiff to exercise due diligence “in filing an action and obtaining jurisdiction over the manufacturer or manufacturers” once its correct identity is known. Plaintiffs were aware of Kawamura’s identity from the outset, and an action against Kawamura was timely “commenced” by the filing of the plaintiffs’ complaint naming it as a defendant. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 201.) Thus, the cause against Kawamura was not barred by the applicable statute of limitations or statute of repose. Rather, it was barred because plaintiffs failed to comply with Supreme Court Rule 103 by exercising reasonable diligence in obtaining service of summons upon Kawamura before the expiration of the applicable statute of limitations. This is not one of the five enumerated bases upon which reinstatement of a dismissed nonmanufacturing defendant may be premised. Section 2 — 621 allows a strict product liability action to proceed against previously dismissed nonmanufacturing defendants “if the manufacturers cannot be identified or sued within the statute of limitations.” (Emphasis added.) (Thomas v. Unique Food Equipment, Inc. (1989), 182 Ill. App. 3d 278, 282.) Clearly, the manufacturer here was both identified and sued within the statute of limitations. Plaintiffs’ argument notwithstanding, “[t]he main thrust of [section 2 — 621] *** remains that of a ‘seller’s exception’; the seller may still be sued in the first instance, but may identify an upstream defendant (the manufacturer) and thus escape ultimate liability where the seller has done nothing to create or contribute to the defect.” (Emphasis added.) (Sims v. Teepak, Inc. (1986), 143 Ill. App. 3d 865, 868.) Plaintiffs have not pointed to any evidence presented below which shows West Coast Cycle created or contributed to the defect of the bicycle. Accordingly, the court correctly applied the seller’s exception by refusing to reinstate West Coast Cycle under the instant circumstances.

We have already determined above that plaintiffs waived the issue of West Coast Cycle’s due diligence in certifying the name of the manufacturer by failing to raise it below in their response to West Coast Cycle’s motion to dismiss. We disagree that West Coast Cycle’s conduct could be characterized as having “lulled” plaintiffs into the belief that West Coast Cycle was going to stand in the shoes of a foreign manufacturer. Plaintiffs’ argument ignores the undisputed fact that Kawamura was the named defendant manufacturer from the outset and their own lack of reasonable diligence in effectuating service of summons on Kawamura. The fact that Kawamura was the named defendant manufacturer may well have been what led West Coast Cycle to allege — albeit incorrectly so — in its motion to be dismissed out of count I that, “Kawamura Cycle has previously been made a party defendant and served with process in this action.” Accordingly, upon West Coast Cycle’s motion taken with this case, we strike the plaintiffs’ belated citation of authority in their reply brief in support of their contention that they are equitably entitled to West Coast Cycle’s reinstatement.

West Coast Cycle’s motion to strike plaintiffs’ first argument is denied; its motion to strike certain portions of plaintiffs’ reply brief is granted.

The judgment of the circuit court is affirmed.

Affirmed.

INGLIS and DUNN, JJ., concur.


text:
    LEE GLADSTONE, Plaintiff-Appellee and Cross-Appellant, v. McHENRY MEDICAL GROUP et al., Defendants-Appellants and Cross-Appellees.
    Second District
    No. 2—89—0439
    Opinion filed April 26, 1990.

      Burditt, Bowles & Radzius, Ltd., of Chicago (Steven M. Kowal, of counsel), for appellants.
    Kell, Nuelle & Loizzo, of Woodstock (Thomas D. Nuelle, of counsel), for appellee.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, Dr. Lee Gladstone, brought an action in the circuit court of McHenry County for breach of contract against defendants McHenry Medical Group, a partnership, and the partners, individually. By majority vote of the partners, defendants had deleted a provision of the partnership agreement which provided continuing annual payments of partnership income to plaintiff until age 65. Prior to deletion of the provision, defendants had made payments to plaintiff from 1960 through 1975. The trial court held that the deleted provision was a separate contract severable from the rest of the partnership agreement and, therefore, not subject to the amendatory powers set forth in the agreement upon which defendants relied in deleting the provision. The court entered summary judgment in plaintiff’s favor on the issue of liability and denied defendants’ summary judgment motion.

Subsequently, the trial court granted plaintiff’s motion for summary judgment on the issue of damages and awarded plaintiff damages in the amount of $67,710.63 for the years 1976 through 1979, the year in which plaintiff became 65 years old. The court denied plaintiff’s motion for prejudgment interest on the damages pursuant to the Illinois prejudgment interest statute. Ill. Rev. Stat. 1987, ch. 17, par. 6402.

Defendants appeal, contending that the trial court erred in entering summary judgment in favor of plaintiff because the contested provision of the partnership agreement did not constitute a separate contract severable from the rest of the agreement. Plaintiff cross-appeals, contending that the trial court erred in finding that plaintiff was not entitled to prejudgment interest on the damages arising from the separate contract.

About 1946, plaintiff, Lee Gladstone, began practice as a general practitioner in McHenry. Some time prior to 1955, plaintiff began practicing under the name McHenry Medical Group and located his office in a building which he had constructed. Believing that the medical needs of the community could not be fully satisfied by a general practitioner and that it was imperative to have a surgeon in the area, plaintiff formed a medical partnership on January 1, 1955, with Dr. George Alvary, a surgeon. The partnership operated under the name McHenry Medical Group and leased space in the building plaintiff owned.

During the years 1955 to 1960, plaintiff personally secured loans for the expansion of the medical group. Both plaintiff and Dr. Alvary spent a great deal of time in organizing and financing the needs of the group as well as in training the people working for them and in establishing the medical group’s reliability. In an effort to build their practice and to maintain good public relations with the community, the two doctors spoke to endless numbers of organizations and made continual house calls and night calls, often making themselves available 24 hours a'day.

Late in the 1950’s plaintiff was instrumental in establishing McHenry Hospital, and both he and Dr. Alvary guaranteed the mortgage on the hospital as well as contributed large sums of money to the hospital so that the hospital could function.

On January 1, 1959, plaintiff and Dr. Alvary entered into a new partnership agreement which provided that the net profits of the partnership were to be divided equally between the two partners and that the net losses were to be borne equally by them.

On November 1, 1960, plaintiff and Dr. Alvary amended the articles of partnership of McHenry Medical Group to provide for the admission of Dr. Peter Griesbach, a pediatrician, and for the admission of other physicians into the partnership from time to time. The document was prepared by plaintiff’s attorney, who had represented plaintiff for years and who was also acceptable to Doctors Alvary and Griesbach. All three doctors worked closely together in developing the document, putting a great deal of time and thought into the agreement and bearing in mind that other doctors would eventually be joining the medical group. During the discussions concerning the drafting of the amended document, consideration was given to including a provision which would pay plaintiff and Dr. Alvary a percentage of the partnership profits in compensation for the work and contributions in time and money which the two doctors had expended in building the McHenry Medical Group practice. The provision, section S — 2(c), which was included in supplement A to the amendment to the articles of partnership stated:

“[T]he amount thus credited to the accounts of the various partners (except the single unit account of GLADSTONE and ALVARY) shall be subject to a two (2%) percent charge which shall be immediately credited to a separate single unit retirement account of GLADSTONE and ALVARY to age sixty-five (65) respectively. The two (2%) percent charge is predicated upon the fact that for many years GLADSTONE and ALVARY invested their time and money, frequently working around the clock, seven (7) days a week, in order to develop and build the McHENRY MEDICAL GROUP practice for which they have never been fairly compensated.”

Subsequent amendments to the articles of partnership included this provision. All new members of the partnership were extensively briefed on the agreement, including section S — 2(c). Each defendant doctor testified at his deposition that when he signed the partnership agreement, he was aware of section S — 2(c) and intended to be bound by its terms.

Supplement A to the amended articles of partnership also contained section S — 8, which provided:

“The Partnership Agreement as Amended, together with Supplement A, may be amended at any time by majority vote of the Senior Partners.”

Additionally, the 1960 amended articles of partnership contained section 24(c), which stated:

“Notwithstanding anything herein contained to the contrary, the SENIOR PARTNERS by majority vote shall have full power over all Partnership affairs and its operations.”

From 1960 through 1966, the defendant doctors paid the annual payments set forth in section S — 2(c) to plaintiff and Dr. Alvary. In a letter dated October 4, 1966, plaintiff informed the defendants of his intention to withdraw from the partnership at the end of 1966. In his letter plaintiff stated, “All benefits under the contract accruing to me are to be fulfilled including the 1% retirement clause to age 65.” On October 14, 1966, plaintiff received a letter from the chairman of the executive committee of McHenry Medical Group, stating, “It is understood that the 1% retirement clause will apply to age 65 or death, if it occurs prior to age 65.” Following plaintiff’s withdrawal from the partnership, he received payment from McHenry Medical Group in accordance with section S — 2(c) through December 31, 1975, at which time the plaintiff was 61 years of age.

On April 18, 1977, plaintiff wrote McHenry Medical Group requesting the payment for 1976. In a letter dated April 25, 1977, the administrator of the medical group informed plaintiff that section S— 2(c) had been removed from the partnership agreement as of January 1, 1976, and that there would be no payments for the years subsequent to 1975.

According to the testimony of defendant Dr. Sherman Porter at his deposition, the McHenry Medical Group lost four physicians in 1974, who were to become partners, because of fiscal arrangements set forth in the partnership agreement, including those provided in section S — 2(c). Dr. Porter testified that the deletion of this clause and other provisions within the agreement, which were considered “unfriendly to recruiting,” were discussed among the partners for some time before the partnership acted upon them.

Defendant Dr. Edward Wilt testified at his deposition that in 1975 the partnership was experiencing some difficulty in keeping the doctors it had and in recruiting new doctors. Dr. Wilt stated that younger doctors, who were unaware of the work plaintiff and Dr. Al-vary had done as founders of the medical group, did not understand the continued payments to them and found it difficult to accept the payments. At a partnership meeting in 1976, 11 partners voted to delete the payment provision. The twelfth partner, Dr. Alvary, abstained from the voting.

On September 19, 1978, plaintiff filed a one-count complaint, alleging that section S — 2(c) constituted a retirement account and that the benefits of the account were paid annually from deposits made by the partnership into the account. On October 23, 1981, defendants filed a motion for summary judgment, contending that section S — 2(c) was a participation in earnings and not a retirement provision, that the provision was subject to the amendatory powers conferred by section 24(c) and section S — 8 of the partnership agreement, and that, therefore, the payment provision was properly deleted from the agreement by a majority vote of the partners. Plaintiff filed a response on May 6, 1982, asserting that an.issue of material fact existed as to whether the original parties to the agreement intended that the promise to pay plaintiff and Dr. Alvary to age 65 would be subject to the amendatory power provision. Plaintiffs supporting affidavit and the deposition of Dr. Alvary were attached to plaintiffs response. The trial court denied defendants’ motion for summary judgment, finding that there was an issue of material fact to be resolved.

On October 23, 1984, the court granted plaintiff leave to file an amended complaint which contained a second count. Count II alleged that section S — 2(c) constituted a separate contract which was sever-able from the other provisions of the partnership agreement. On December 20, 1985, plaintiff amended his complaint to add a third count. This count did not allege any new cause of action, but it asserted that the individual partners, George Alvary, Edward Wilt, August Rosetti, Nicholas Gemell, Sherman Porter, Robert Stein, Gregory Eckstein, Bernard Miller, Gerard Dominique, Aniceto D’Sousa, Robert Kessler, and Ted Rolander, were liable for the debt to plaintiff.

The defendants filed a motion for summary judgment on counts II and III on December 11, 1986. The plaintiff filed his summary judgment motion on counts II and III on January 9, 1987. After considering the pleadings, the depositions, the motions of the parties and affidavits attached thereto, the memoranda of law submitted by both parties, as well as hearing the arguments of counsel on the motions, the court issued its memorandum opinion on August 24, 1987, granting plaintiff’s motion and denying defendants’. In that opinion the court found that section S — 2(c) constituted a separate contract severable from the rest of the partnership agreement. The consideration for the payments under this contract was the goodwill of the McHenry Medical Group created by plaintiff’s past labor and expense and shared by all incoming partners.

Thereafter, the parties engaged in the resolution of the damage issues. On April 10, 1989, the trial court found that plaintiff was entitled to damages in the amount of $67,710.63 but not entitled to prejudgment interest on those damages.

Defendants filed a timely notice of appeal on the issue of liability, and plaintiff filed a timely cross-appeal on the issue of prejudgment interest on the damages.

Summary judgment should be granted only when the pleadings, depositions, admissions on file, and affidavits show that.there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c); Community Convalescent Center of Naperville, Inc. v. First Interstate Mortgage Co. (1989), 181 Ill. App. 3d 996, 998.) In construing the legal principles of a contract, summary judgment is an appropriate procedure. (Village of Fox Lake v. Aetna Casualty & Surety Co. (1989), 178 Ill. App. 3d 887, 903.) The function of this court in reviewing a grant of summary judgment is limited to the determination of whether the trial court correctly ruled that no genuine issue of material fact has been raised, and if none was raised, whether judgment, as a matter of law, was correctly entered. Lindstrom v. Houzenga (1988), 177 Ill. App. 3d 1, 3.

Defendants contend that the trial court erred in entering summary judgment for plaintiff because the law and uncontroverted facts of the case supported a judgment in their favor. In particular, defendants maintain that section S — 2(c), providing for payment of a percentage of each partner’s profits to plaintiff, did not constitute a contract separate from the partnership agreement. Rather, the entire agreement constituted a single contract subject to the amendatory powers conferred by section 24(c) and section S — 8 of the partnership agreement, and, therefore, defendants’ deletion of section S — 2(c) did not constitute a breach of contract.

We agree with defendants’ initial proposition that if section S— 2(c), which appears within supplement A of the partnership agreement, is not severable from the agreement, it was subject to amendment by a majority vote of the senior partners of the partnership, as provided in section 24(c) and section S — 8. Section 24(c) of the agreement states:

“Notwithstanding anything herein contained to the contrary, the SENIOR PARTNERS by majority vote shall have full power over all Partnership affairs and its operations.”

Section S — 8 states:

“The Partnership Agreement as Amended, together with Supplement A, may be amended at any time by majority vote of the Senior Partners.”

In determining the meaning of these two sections, the words used in the provisions must be accorded their plain and obvious meaning. (Gordon v. Bauer (1988), 177 Ill. App. 3d 1073, 1088.) Under the plain language of the two provisions, the majority of the senior partners had amendatory power over all partnership affairs and operations as well as the unrestricted power to amend any provision of the partnership agreement and supplement A. Thus, unless section S — 2(c) constituted a contract separate from the rest of the partnership agreement, the defendants, as senior partners, had the power to delete it from the agreement.

In determining whether a contract is entire or severable, consideration is given to the intention of the parties as manifested by the specific terms and provisions of the contract itself, by the subject matter to which it has reference, and by the circumstances of the particular transaction. (In re Estate of Parker (1988), 171 Ill. App. 3d 538, 546; Trapkus v. Edstrom’s, Inc. (1986), 140 Ill. App. 3d 720, 727-28.) When each and all of the parts of a contract appear to be interdependent and common to one another and to the consideration, the contract should be treated as entire. Trapkus, 140 Ill. App. 3d at 727.

The partnership agreement in the instant case was designed to provide for the general operation and affairs of the partnership, McHenry Medical Group, and consisted of the mutual agreement of each partner to the other regarding the practice of medicine. The document addressed, for example, employment of associates, progression to partnership status, a covenant not to compete, vacation policy, withdrawals from the partnership, accounts receivable, purchase of partnership interests and assets, retirement, and participation in earnings. In executing the agreement, the partners accepted all of its terms and agreed to be governed by them.

Section S — 2(c), the provision in question, is contained in supplement A of the partnership agreement. The title to supplement A clearly states that the supplement must be included as part of the partnership agreement. The title states:

“This Supplement A to the Amendment to the Articles of Partnership dated as of the 1st day of November, 1960, of the McHenry Medical Group is supplementary thereto and shall be treated as a part thereof.” (Emphasis added.)

The partnership agreement also specifically incorporates supplement A. Section 25 of the partnership agreement states:

“Supplement A to this Amendment to the Articles of Partnership is incorporated herein by express reference thereto, and is and shall be treated as a part hereof. The said Supplement A deals with:
(a) Accounts Receivable.
(b) Interests in Partnership Assets.
(c) Participation in Partnership earnings and losses, and other related matters.”

Section S — 2(c), which directly relates to participation in earnings, represents one of the provisions specifically enumerated and incorporated by section 25. It provides:

“[T]he amount thus credited to the accounts of the various partners (except the single unit account of GLADSTONE and ALVARY) shall be subject to a two (2%) percent charge which shall be immediately credited to a separate single unit retirement account of GLADSTONE and ALVARY to age sixty-five (65) respectively. The two (2%) percent charge is predicated upon the fact that for many years GLADSTONE and ALVARY invested their time and money, frequently working around the clock, seven (7) days a week, in order to develop and build the McHENRY MEDICAL GROUP practice for which they have never been fairly compensated.”

Notably absent from section S — 2(c) is any statement that it is a contract independent of the remainder of the partnership agreement. To determine that the provision constitutes a contract separate from the rest of the agreement, it would be necessary to conclude that the partners agreed to be bound by section S — 2(c) regardless of whether the partnership earned revenue, or existed at all. We find it unlikely the partners would assent to making payments to plaintiff irrespective of whether the partnership existed and operated. Moreover, plaintiff admitted this fact in his response to defendants’ summary judgment motion and also admitted that the amounts to be paid under section S — 2(c) depended upon the operation of the partnership.

Despite these admissions, plaintiff maintains that the partners who joined the partnership after November 1, 1960, the date on which the partnership agreement was drafted, promised to pay plaintiff for the efforts he expended in the organization and development of the medical partnership prior to 1960. In essence, plaintiff is contending that the particular consideration set forth in section S — 2(c) is plaintiff’s past performance.

Generally, if the alleged consideration for a promise has been conferred prior to the promise upon which alleged agreement is based, there is no valid contract. (Worner Agency, Inc. v. Doyle (1985), 133 Ill. App. 3d 850, 856-57.) Section S — 2(c) explicitly states that the reason for the payment provision was the plaintiff’s efforts prior to the establishment of the partnership agreement on November 1, 1960. None of the defendant doctors were partners prior to that date, and, thus, the efforts cited by plaintiff in section S — 2(c) occurred prior to any promise or agreement by the partners.

Also, plaintiff testified at his deposition that the additional compensation provided in section S — 2(c) did not constitute the reason for the prior efforts plaintiff expended in establishing and developing the business, nor was any such provision contemplated at the time the work was being performed.

Nevertheless, plaintiff maintains, as did the trial court, that the particular consideration set forth in section S — 2(c), i.e., plaintiff’s past efforts in establishing the medical group, is found nowhere else in the partnership agreement and, consequently, supports plaintiff’s contention that the payment provision is a separate contract from the rest of the agreement. This contention, however, ignores the fact that the November 1, 1960, partnership agreement contains the following recital:

“Any seemingly preferential treatment accorded GLADSTONE and ALVARY hereunder is in recognition of their many years of effort in the organizing of the McHENRY MEDICAL GROUP and in its development, for which GLADSTONE and ALVARY have not been adequately or fairly compensated.”

In addition to the “preferential treatment” accorded plaintiff and Dr. Alvary in section S — 2(c) of the agreement, such treatment is also bestowed upon them in other provisions of the agreement. For example, section 7(b) provides that plaintiff and Dr. Alvary shall each have five additional votes in determining partnership policies and operations because of the services rendered by them prior to November 1, 1960. Section 14(b) provides that plaintiff and Dr. Alvary shall each have two extra weeks of vacation. Section 20 provides the two doctors with the power to veto any decision to terminate the partnership, and section S — 6(b) of supplement A to the agreement provides that the two doctors will be exempt from any reduction in the crediting of amounts collected on accounts receivable after termination of partnership status.

If we were to agree with the lower court’s conclusion that plaintiff’s past efforts constituted the consideration for section S — 2(c), making it a contract severable from the rest of the partnership agreement, then sections 7(b), 14(b), 20 and 6(b) should also be separate contracts. Such a decision, however, would have the effect of judicially creating a series of subcontracts rather than the agreement which plaintiff admitted was agreed to as a “unified whole.”

We note that the trial court stresses in its memorandum opinion that it is not plaintiff’s past efforts which constitute the consideration for the separate contract set forth in section S — 2(c) but, rather, the “culmination” of those past efforts, i.e., “the good will of the McHenry Medical Group.” We, however, consider this determination an attempt by the court to reach an equitable solution to what the court perceived as an unfair act by the partners, i.e., the deletion of section S — 2(c). Nevertheless, a contract must be enforced according to its terms or not at all (Village of Grandview v. City of Springfield (1984), 122 Ill. App. 3d 794, 797), and a court may not rewrite a contract to suit one of the parties but must, instead, enforce the terms as written. (A.A. Conte, Inc. v. Campbell-Lowrie-Lautermilch Corp. (1985), 132 Ill. App. 3d 325, 329.) Here, where plaintiff admitted that the partnership agreement, including supplement A of which section S — 2(c) was a part, was designed to govern all the affairs and operations of the medical partnership and was agreed to as a unified whole, where other sections within the agreement also set forth the type of preferential treatment towards plaintiff and Dr. Alvary as was set forth in section S — 2(c), and where the partnership agreement recited at the very outset that such preferential treatment was due to the past efforts of plaintiff and Dr. Alvary in organizing and developing McHenry Medical Group, we believe the trial court erred in finding that section S — 2(c) was a separate contract not subject to the amendatory powers established in the agreement. In so finding, the trial court remade the agreement to suit plaintiff.

We conclude that section S — 2(c) was not a separate contract but a part of the partnership agreement and therefore subject to deletion by a majority of the senior partners under the amendatory powers established in the agreement. Accordingly, we find that the trial court’s grant of summary judgment in plaintiff’s favor on the issue of liability was improper. Because of our decision on this issue, it is not necessary to review plaintiff’s cross-appeal concerning denial of prejudgment interests.

In light of the above, the judgment of the circuit court of McHenry County entering summary judgment in plaintiff’s favor on the issue of liability is reversed. This cause is remanded with directions that the trial court enter judgment in favor of defendants.

Reversed and remanded with directions.

McLAREN and REINHARD, JJ., concur.


author: JUSTICE WOODWARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOEL C. HICKOX, Defendant-Appellant.
    Second District
    No. 2—88—0828
    Opinion filed April 26, 1990.
    G. Joseph Weller and Beth Katz, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Colleen M. Griffin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOODWARD

delivered the opinion of the court:

Defendant, Joel Hickox, was found guilty of two counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1987, ch. 38, par. 12— 16(b)) and three counts of criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 13(a)(3)) after a bench trial. Defendant appeals his convictions, raising the following issues: (1) whether he was proved guilty beyond a reasonable doubt when the complaining witness had retracted her claim and was known to exaggerate and make up stories; and (2) whether the trial court improperly based its decision on an expert witness’ opinion of the complainant’s credibility.

Defendant was charged by indictment with committing acts of sexual conduct and penetration with his minor daughter, K. At the trial on January 28, 1988, K. stated that' she was eight years old and in the second grade. After the court found her competent to testify, K. stated that when she was five years old she lived in Bloomingdale with her mother, Joan. Defendant would sometimes visit K. on Fridays. K. explained that her birthday is December 21 and that, sometime around her fifth birthday, she and defendant were alone at K.’s house. Defendant called her into the bathroom. K. went in and saw defendant going to the bathroom. Defendant told K. to touch his penis, which she did.

K. then testified about another incident. She and defendant were home alone. K. was in the bathtub taking a bath when defendant came into the bathroom. Defendant then “scratched” her when he touched her “privates.” K. further testified about a third incident which occurred in the spring. K. was home alone with defendant. They were in the living room “playing doctor.” K. was lying on her back on the couch. Defendant was sitting on the couch wearing only a shirt. K. stated that she did not remember what else happened. The court then questioned K. about the incident. K. answered that they only “played doctor” that one time. In response to the court’s questioning, K. indicated that she had touched defendant’s penis and that defendant had touched her vagina with his .hand.

The prosecutor then resumed her examination. K. testified that in the summer, when she was five years old, she was again home alone with defendant. K. was doing cartwheels and handstands in the living room when defendant pulled down her pants and touched K.’s vagina with his hand and his mouth. Defendant also had K. put her mouth on defendant’s penis. Defendant told K. not to tell anyone about what happened and that K. “would have a problem” and would get her mouth washed out with soap. K. did not tell anyone about these incidents until a local group put on a safety program at K.’s school. K. told one of the members of the group that defendant sexually abused her. K. then told her kindergarten teacher and the school principal.

On cross-examination, K. first denied having talked about the incidents with her mother, then explained that she talked to her mother about some of it after the safety program at school. K. denied that there was any sexual contact between herself and defendant before she was five years old. At the time the incidents occurred, a person named Beatrice was baby-sitting for K. K. testified that she had not seen defendant for one year and would like him to visit her “as soon as he gets help.”

Defense counsel then questioned K. about her visits with a psychologist, Dr. Thomas Phelan. K. denied that she told Dr. Phelan that she was “not sure” that defendant abused her and further denied that she said to Dr. Phelan about defendant, “maybe he did it and maybe he did not.” K. also denied that she ever told anyone that the abuse did not happen.

Although on direct examination K. testified that defendant “scratched” her when he touched her vagina, K. explained that a physician told K. that she had a scratch on her which was caused by defendant touching her vagina. The court asked K. about the touching, and she indicated that she felt his finger inside her, but she did not remember feeling any pain. K. further indicated that what she told the person from the safety program was the same as her testimony in court. The court then asked if everything to which she had testified was the truth, and K. answered yes. K. also denied that any part of the testimony was made up or imagined or thought up because of the safety program.

Diana Bloem testified that in March 1986 she was working for the child assault prevention program (child safety program), which she described as a team of three women who went to schools to present a safety program to the children. On March 10, 1986, Bloem and her team put on a program for K.’s kindergarten class. As part of the program, Bloem presented a skit which dramatized a situation where a child is subjected to “bad touching.” In the skit, an adult relative sits close to the child, rubs her arm, or brushes her hair while telling her how grown up she is. Then the adult asks the child for a kiss, but the child does not want to kiss the adult. Eventually, the child kisses the adult on the cheek, and he tells the child “this is our secret” and do not tell anyone. After presenting this program to K.’s class, the team told the children that if they had questions, they could speak with the team members individually. Bloem talked with K. Bloem testified that K. “identified a person as having touched her in a private place[ ].” Bloem then advised K.’s teacher and the school principal of K.’s revelation.

On cross-examination, Bloem explained that after presenting the skit, the team asked the children questions about the skit, such as “how do you think [the child in the skit] felt? Did she feel good or did she feel bad[?]” The team also asked the children for examples of good secrets and bad secrets. The team told the children “a bad secret is something that makes you feel really yucky inside.”

Bloem elaborated on her individual meeting with K. Bloem asked K. to tell her about a picture that K. had drawn. K. was telling Bloem about the picture when, suddenly, K. said “my daddy touches me in private places” and that “it made her feel yucky” when he did that. K. did not want Bloem to tell anyone about what happened. K. then abruptly changed the subject.

Joan Evans, K.’s mother, testified that K. was born on December 21, 1979. Joan and defendant’s marriage was dissolved in December 1981, and Joan remarried in 1986. Joan was living in Bloomingdale when the alleged offenses occurred, and she subsequently moved out of the State with her new husband and K. When Joan and defendant’s marriage broke up, they had agreed on a liberal visitation between defendant and K. Joan retained custody of K. Defendant visited K. at Joan’s home in Bloomingdale approximately twice per month. Defendant stayed at the house while he was visiting. Joan was usually not around when defendant came to visit, but the live-in babysitter would often be in the house.

Joan further testified that on March 14, 1986, the principal of K.’s school called Joan and asked her to come to the school. Joan went to see the principal and there met two women from the child safety program. They informed Joan that K. told them she had been abused.

Detective Scott Stick of the Bloomingdale police department testified that in December 1986 he began investigating K.’s allegation of abuse. In January 1987, Detective Stick interviewed K. Through the use of anatomically correct dolls, K. explained to Detective Stick that at her home “an individual” called K. into the bathroom and asked her to touch and rub his penis. Another time, while being given a bath, “an individual” touched K.’s vaginal area. K. also described to Detective Stick an incident where “an individual” asked her to “play doctor.” The person then had K. perform oral sex on him. K. also related to Detective Stick another incident when K. was doing gymnastics in her living room and “an individual” came up to her, pulled down her pants, put his finger in her vagina and then placed his tongue on her vagina.

The State’s next witness, Dr. Mireille Kanda, was qualified to testify as an expert in pediatric medicine and child sexual abuse. Dr. Kanda testified that she examined K. in March 1987. Joan told Dr. Kanda that K. had been sexually abused from the age of three until March 1986. In addition, Joan told Dr. Kanda that K. masturbated frequently and had been complaining of genital itching for three years. K. also told Dr. Kanda that defendant had touched K.’s genitalia.

During her physical examination of K., Dr. Kanda found two scars in K.’s vaginal area and labial fusion, which is an abnormal finding in a child of K.’s age. Dr. Kanda testified that this labial fusion is an indication of trauma to the area. Dr. Kanda also noted that the edge of K.’s hymen was rounded. According to Dr. Kanda, sometimes after a trauma, the edge of the hymen becomes rounded. Dr. Kanda stated that the scars were evidence of trauma to the genital area, which is not normal in children. In Dr. Kanda’s opinion, the scars could not have been self-inflicted during masturbation. Dr. Kanda concluded that the evidence of trauma she found was consistent with sexual abuse.

Dr. Kanda stated that she could not determine when the trauma which caused the scars occurred. Dr. Kanda admitted that it was possible that masturbation could have caused the evidence of trauma to the area. Dr. Kanda had been told that K. was seen trying to use a carrot to masturbate and that K. frequently masturbated. Dr. Kanda explained that witnessing sexual activity would not cause a child to masturbate if the child did not understand the sexual connotation of the activity. Dr. Kanda also stated that many sexually abused children exhibit symptoms of genital itching.

The defense called Dr. Thomas Phelan to testify as an expert in clinical psychology. Dr. Phelan was not an expert in child sexual abuse. Dr. Phelan testified that in March 1986 Joan requested that he examine K. because Joan was concerned that K. might have been sexually abused by defendant. Joan was confused and did not know whether to believe defendant or K. Joan told Dr. Phelan that K. was “prone to exaggeration” and made up stories that were not true. Dr. Phelan also collected information from K.’s maternal grandparents. They said that K. could not be trusted and that she was often rude, impulsive, and unpredictable.

Dr. Phelan interviewed K. three times, each meeting lasting between 15 and 20 minutes. Dr. Phelan described K. as restless and anxious and that she made inappropriate and overly friendly remarks. K. told Dr. Phelan that she liked him and that she thought he was “cute.” K. also wanted to sit physically close to Dr. Phelan. Dr. Phelan found K. to be “uninterviewable.” When Dr. Phelan tried to question K. about the abuse, she gave a “smart aleck” response to the effect of “well maybe he [defendant] did and maybe he didn’t” abuse her. K. also told Dr. Phelan that she was not sure if defendant abused her and that she lied and she had changed her mind.

Dr. Phelan diagnosed K. as suffering from attention deficit disorder. The disorder is characterized by difficulty in concentrating, distractibility, and a short attention span. Other symptoms include impulsivity, hyperactivity, emotional overarousal, social aggressiveness, and disciplinary problems. Dr. Phelan testified that the disorder “would make [K.] something of a less credible witness” and that if children suffering from the disorder do lie, it is “to cover up some things they have done.” Dr. Phelan’s conclusion that he could not trust what K. said was based both on the grandparents’ and Joan’s comments that K. was not credible and Dr. Phelan’s opinion that she suffered from the disorder. Since children with the disorder “tend to be attention seeking, and often dramatic and hysterical,” Dr. Phelan believed that viewing the child safety program caused K. to make false accusations.

Dr. Phelan also testified that Joan told him that K. had seen some of the live-in baby-sitters sunbathing topless and that K. told Joan that she had seen a landscaper on top of one of the baby-sitters, kissing her. Dr. Phelan admitted that lying is not a symptom of the disorder. In addition, there may be some overlap between the symptoms of the disorder and the indicia of sexual abuse; however, the two are not mutually exclusive. Dr. Phelan also admitted that he had not been able to rule out the possibility that K. had been sexually abused.

Dr. Mary Robinson testified that she was a clinical psychologist and K. was one of her patients. K. had been referred to Dr. Robinson by K.’s pediatrician, who thought K. needed therapy because she had been sexually abused. Before beginning sessions with K., Dr. Robinson met with Joan, who told Dr. Robinson that K. behaved seductively toward adult men.

Including the initial diagnostic sessions, Dr. Robinson had met with K. approximately 40 times at the time of trial. Dr. Robinson conducted four diagnostic sessions with K., each lasting approximately one hour, and Dr. Robinson was currently meeting with K. on a weekly basis for a one-hour session.

In the first diagnostic session, K. seemed tense, anxious, and agitated. While playing with anatomically correct dolls, K. told Dr. Robinson that defendant asked K. to touch his penis. During a subsequent diagnostic session, K. described in greater detail what happened. K. said to Dr. Robinson, “ ‘You will think it is gross.’ ” K. then related that defendant performed oral sex on her, and she did the same to him. In the last diagnostic session, K. demonstrated on the anatomically correct dolls what defendant had done to her. K. was “very distressed” while demonstrating with the dolls and went limp and collapsed on the floor.

Dr. Robinson opined that K.’s behavior and history demonstrated “classic” symptoms of sexual abuse. Dr. Robinson based that opinion on K.’s statements, her play with the dolls, her behavior and drawings, and her history, which Dr. Robinson characterized as consistent with sexual abuse. Dr. Robinson further explained that when K. talked about the incidents, she would complain of stomachaches and headaches, she would have difficulty talking about the incidents, she would become “exceedingly anxious” and would “grasp the front of her dress over her genital area.” In addition, K.’s history of seductive behavior toward men is indicative of sexual abuse because “when a child has been exposed to sexual activity with an adult, then the child tends to repeat this behavior.”

Dr. Robinson further testified that K.’s failure to tell anyone what happened until after she saw the child safety program was also characteristic of a child who had been sexually abused. In addition, sexually abused children generally retract the allegation of abuse on at least one occasion out of fear of retribution, fear of appearing to be bad, fear of not being believed, and out of affection for the abuser. K.’s interest in masturbation was also consistent with having been the victim of sexual abuse. K. never named anyone other than defendant as having sexually abused her.

Dr. Robinson had seen Dr. Phelan’s report in which he concluded that K. had not been abused, and Dr. Robinson explained that she did not contact Dr. Phelan because he had only seen K. on a few occasions for 20 minutes. Dr. Robinson did not contact K.’s grandparents, but did contact K.’s teachers when making her evaluation of K.

K. had told Dr. Robinson that she had been abused when she was four years old. K. had said that when it occurred, she felt terrible, scared, and worried. As part of a session, K. had made a clay figure. Robinson described it as looking “like a phallus.” When K. made the phallus, she put it in the mouth of a puppet and said, “Suck on it.” Also during a session, K. had a doll say, “ ‘Joel touched me and that he hurt me very bad.’ ” K. told Dr. Robinson that defendant warned K. that if she told anyone about what they did, K. would have a big problem. K. still loved defendant and expressed the fear that he would go to jail. According to Dr. Robinson, such mixed feelings are a common characteristic of a child who has been sexually abused.

Dr. Robinson explained that merely witnessing sexual acts would not account for K.’s symptoms. Dr. Robinson had asked K. what she knew about sexual activity, and K. described only what happened with defendant. Dr. Robinson further explained that young children, such as K., are good at describing events, but they have difficulty placing those events in time. K. could not tell Dr. Robinson on which dates or during which months the incidents occurred, but K. was able to place them in terms of holidays.

Dr. Robinson testified that although K. tended to exaggerate, Joan did not say that K. made up stories. Rather, what Joan described to Dr. Robinson was “defensive lying,” that is, when a child denies doing something that he or she has done.

The court then asked Dr. Robinson whether she had any techniques to determine whether a child is lying or whether a child is relating fantasies. Dr. Robinson answered that she uses her professional judgment to determine whether a child is lying and that she had never encountered a child of K.’s age who fantasized in detail about adult sexual activity who had not actually experienced it.

Defense counsel asked Dr. Robinson if she had ever dealt with a child who was coached and fabricated allegations of abuse. Dr. Robinson had encountered several children between the ages of 3 and 10 years old who had been coached. Dr. Robinson was able to detect the coaching in the diagnostic interviews based on the children’s behavior. She stated that the history of the child is not important when determining whether a child has been coached because often the person who provides the history is the one who coached the child to make the allegations. Dr. Robinson opined that K. had not been coached and that she had not made up the allegations.

Beatrice Davis testified on defendant’s behalf. Davis was employed as a live-in baby-sitter by Joan from October 1984 to June 1985. Davis testified that defendant visited them during Christmas time in December 1984 and left on December 26, 1984. He did not return until the beginning of February 1985. Davis was usually home on the weekends that defendant was in town. According to Davis, K. was always happy and excited to see defendant. Defendant wrote K. letters and talked to her on the telephone. Davis never noticed anything unusual whenever she walked in on defendant and K. Davis admitted that there were many occasions when defendant was at the house with K. when Davis was not there.

Jeffery Feingold testified that he dated Joan between December 1984 and July 1985. During this time, Feingold saw K. at least three days per week. Feingold described K. as “hyper” and uncontrollable. According to Feingold, K. “would make up stories *** as any little child might, she would say things that some one told her, something [that] had turned out not to be true.”

Defendant testified that in 1984 he had Christmas dinner at Joan’s house and then he left the next day. The next time defendant visited was in February 1985. Davis was usually there when defendant visited, although several times defendant was alone with K. Defendant denied that he ever had any sexual contact with K. He had given her baths and dried her off. Defendant also denied that he ever threatened K. if she accused him of sexually abusing her.

In finding defendant guilty on all counts, the court specifically stated that K.’s testimony was credible. In addition, the court found that her testimony was independently corroborated, there was no evidence that K. was coached, or that her testimony was the result of fabrication or suggestion.

Defendant first contends on appeal that he was not proved guilty of sexually abusing K. beyond a reasonable doubt. When a reviewing court is asked to overturn a conviction based on the sufficiency of the evidence, the court must consider whether, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 261.) Defendant argues that K. was not a credible witness and that there was no evidence to corroborate her allegations.

A conviction of sexual abuse will be upheld where the complainant’s testimony is clear and convincing or independently corroborated. (People v. Avila (1989), 180 Ill. App. 3d 345, 350.) Testimony is clear and convincing if the complainant’s testimony is consistent and the discrepancies, if any, do not detract from its reasonableness. (People v. Escobedo (1986), 151 Ill. App. 3d 69, 81.) The failure of a child witness to remember dates does not render the testimony unclear as a matter of law. (People v. Morton (1989), 188 Ill. App. 3d 95, 99.) A reviewing court will not substitute its judgment for that of the trier of fact. Avila, 180 Ill. App. 3d at 350.

We disagree with defendant’s assertions that K.’s testimony should be discounted because she had a tendency to make up stories. Both Dr. Phelan and Dr. Robinson testified that K. lied to cover things up. Furthermore, Dr. Robinson testified that merely viewing sexual activity would not enable K. to fantasize in detail about sexual activity, and K.’s allegations are entirely different from the behavior shown in the skit from the child safety program.

We also do not agree with defendant’s argument that because a length of time had passed between the date of the incidents and K.’s complaint, K.’s testimony is rendered unreliable. In Avila, the 16-year-old victim did not report that her stepfather sexually abused her until eight years after the abuse began. This delay did not damage the victim’s credibility because when the abuse first began, the victim thought that the sexual conduct was normal. (Avila, 180 Ill. App. 3d at 351.) The victim here is even younger than the victim in Avila was at the time the sexual abuse began. The first time K. learned about “bad touches” in school, she reported the abuse.

K.’s remarks to Dr. Phelan that defendant may or may not have abused her do not diminish her credibility. Dr. Robinson testified that it is common for child sexual abuse victims to retract their allegations for a number of reasons. Furthermore, contrary to defendant’s assertions, the evidence that K. suffered from attention deficit disorder does not render her testimony unbelievable. Dr. Phelan testified that a child with the disorder would appear less credible, not that such children are less credible because they lie. Lying is not a symptom of the disorder. Since the disorder and sexual abuse are not mutually exclusive, it is irrelevant whether K. does suffer from the disorder.

We also disagree with defendant’s argument that there was no evidence to corroborate K.’s story. Dr. Kanda amply testified to the physical evidence of sexual abuse, and Dr. Robinson testified to the emotional evidence of sexual abuse. The trial court evidently believed the conclusions of these experts. Since the credibility of the witnesses is a matter for the trier of fact to resolve, we will not dispute its findings. People v. Freeman (1988), 167 Ill. App. 3d 740, 744.

The trial court believed K. and found her testimony to be genuine. K.’s account of the incidents of abuse never varied, and she testified in detail about each occurrence. The State offered the testimony of two experts and two witnesses to whom the child made her report. By contrast, defendant presented the testimony of an expert who could not rule out sexual abuse and who based his conclusion that the allegations were a product of K.’s imagination on three 20-minute interviews in which K. was “uninterviewable.” The testimony of defendant’s witnesses did not refute the allegations. Davis admitted that there were times when defendant was alone with K., and, according to K., the abuse occurred when no one else was home. Although Feingold testified that K. made up stories as any small child would, Dr. Robinson testified that children of K.’s age do not make up sexual fantasies unless they have experienced the acts. We therefore conclude that the State presented overwhelming evidence to prove beyond a reasonable doubt that defendant committed the offenses.

Defendant next contends that the trial court erred in considering Dr. Robinson’s opinion of K.’s credibility. We note, however, that defendant neither objected to the court’s questioning of Dr. Robinson at trial nor raised this matter in his post-trial motion. This issue is therefore waived. (People v. Enoch (1988), 122 Ill. 2d 176, 186-88.) Defendant argues, however, that we should consider the issue as one of plain error.

A court will consider an issue as plain error only when the question of guilt is close and the error might have significantly affected the outcome of the case, or when the error is so substantial that it deprived a defendant of a fair trial. (People v. Sanders (1983), 99 Ill. 2d 262, 273.) As previously discussed, the evidence in this case is not closely balanced. In addition, this was a bench trial. Courts employ the plain-error exception to the waiver rule to correct any serious injustice which may have deprived a defendant of a fair trial, and because the exception is narrow and limited, it should not be applied in every case. (People v. Sommerville (1990), 193 Ill. App. 3d 161, 171.) The error of which defendant complains is not of such magnitude to require review of it as plain error.

The judgment of the circuit court is affirmed.

Affirmed.

UNVERZAGT, P.J., and GEIGER, J., concur.