author: JUSTICE GEIGER

text:
    THE BOARD OF LIBRARY DIRECTORS OF THE VILLAGE OF LOMBARD, Plaintiff-Appellee, v. SKIDMORE, OWINGS AND MERRILL, Defendant (Wil-Freds, Inc., Defendant and Third-Party Plaintiff-Appellant; Ringbloom Masonry, Third-Party Defendant-Appellee).
    Second District
    No. 2—90—0810
    Opinion filed June 20, 1991.
    Rehearing denied July 18, 1991.

      Nicholas A. Riewer and Timothy J. Harris, both of Bollinger & Ruberry, and Querrey & Harrow, Ltd., both of Chicago (Paul Lively, of counsel), for appellant.

      James T. Ferrini and Susan Condon, both of Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago, and Thomas H. Ryerson, of Clausen, Miller, Gorman, Caffrey & Witous, P.C., and McKenna, Storer, Rowe, White & Farrug, both of Wheaton (H. Evan Williams IV, of counsel), for appellee Ringbloom Masonry.
    Roger A. Ritzman, of Peregrine, Stime, Newman, Ritzman & Bruckner, Ltd., of Wheaton (Dale W. Bruckner of counsel), for appellee Board of Library Directors of the Village of Lombard.
   JUSTICE GEIGER

delivered the opinion of the court:

The defendant, third-party plaintiff, Wil-Freds, Inc. (Wil-Freds), appeals from an order denying summary judgment against the plaintiff, the Board of Library Directors of the ViUage of Lombard, and dismissing its third-party complaint against Ringbloom Masonry (Ringbloom). We affirm in part and dismiss in part.

The facts relevant to this appeal are as follows. In 1975, the plaintiff contracted with the architectural firm of Skidmore, Owings & Merrill (SOM) for architectural and engineering services in relation to the plaintiff’s plans to remodel and construct an addition to a local library. In July 1977, the plaintiff contracted with Wil-Freds to act as general contractor for the library addition and remodeling. Wil-Freds subcontracted the library masonry work to Ringbloom, and subcontracted other portions of the construction work to other contractors.

In 1978, the masonry walls exhibited a condition known as “efflorescence.” This occurs when water moves from a cavity behind the masonry through a salt deposit, absorbs the salt, and leaves a visible deposit of salt on the exterior surface of the masonry. The salt may occur in either the masonry or the mortar. Efflorescence is a sign that trapped water is leaking through the wall and that there is unwanted salt in the masonry material.

In October 1978, the plaintiff and SOM discussed the efflorescence problem. One possible solution was to seal the brick with a waterproofing material. In April 1979, SOM sent a proposed change order to the plaintiff to authorize the sealing of the masonry walls. In May 1979, SOM distributed to the plaintiff a “punch list” which noted continued efflorescence.

In June 1979, the plaintiff and technical representatives for J.N. Lucas & Associates (Lucas) inspected the efflorescence problem. The Lucas representatives sent SOM a follow-up letter which noted that the efflorescence was related to moisture in the walls and that some locations showed slight mortar deterioration and were probably the moisture’s entry point. Wil-Freds also received a copy of this letter. In July 1979, Wil-Freds received a change order to seal the masonry wall to combat the efflorescence.

In October 1979, the plaintiff, SOM, and Wil-Freds observed and investigated a separate problem involving moisture infiltration and leakage relating to the waterproofing membrane on the library roof. In March 1983, the plaintiff commissioned an independent consultant to investigate a water leak. The consultant issued his report on May 25, 1983; the report stated that upon initial inspection, he could not locate the source of the water. An October 10, 1983, consultant’s report concluded that the waterproofing done years earlier was the source of the efflorescence.

On December 12, 1984, the plaintiff filed its complaint against SOM and Wil-Freds. The plaintiff alleged breach of contract and architectural malpractice against SOM, and breach of contract and negligence against Wil-Freds. On July 22, 1988, Wil-Freds brought its third-party complaint seeking indemnification from Ringbloom.

Ringbloom brought a motion under section 2 — 615 of the Code of Civil Procedure to dismiss the third-party complaint (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615), arguing that Wil-Freds had not alleged a claim for indemnification. Ringbloom also brought a dismissal motion under section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619), arguing that the indemnification clause in its subcontract with Wil-Freds was void (see Ill. Rev. Stat. 1989, ch. 29, par. 61), and that the third-party suit was barred by the statute of limitations (see Ill. Rev. Stat. 1989, ch. 110, par. 13 — 214).

On March 20, 1989, the trial court found that Wil-Freds should have “discovered” the masonry problems no later than 1979, and that Wil-Freds’ third-party complaint relating to problems arising out of the construction of the addition and the remodeling was barred by the applicable statute of limitations (Ill. Rev. Stat. 1989, ch. 110, par. 13— 214). The trial court granted Ringbloom’s motion to dismiss.

Wil-Freds then brought a motion for summary judgment, arguing that since the trial court found that Wil-Freds should have “discovered” the defects no later than 1979, then the plaintiff also should have “discovered” the defects within the same time, since the plaintiff and Wil-Freds were privy to the same information. In the alternative, Wil-Freds sought reconsideration of the March 20, 1989, order. The judge that had heard Ringbloom’s motion to dismiss, Judge Peccarelli, had reassigned the case to Judge Teschner.

On June 6, 1990, after hearing the arguments, Judge Teschner denied Wil-Freds’ motion for summary judgment. On June 25, 1990, the trial court expressly found that there was no just reason to delay enforcement or appeal of the orders of March 20, 1989, and June 6, 1990 (see 134 Ill. 2d R. 304(a)). This appeal followed.

Before addressing Wil-Freds’ other issues, we turn to Wil-Freds’ contention that the trial court erred in denying its motion for summary judgment against the plaintiff.

A final order either terminates the litigation between the parties on the merits or disposes of the rights of the parties in regard to the entire controversy or some definite part thereof. (Kawa v. Harnischfeger Corp. (1990), 204 Ill. App. 3d 206, 210.) Where there has been no final judgment on the claim for which the trial court denied summary judgment, the denial of a motion for summary judgment is nonfinal and nonappealable. (See Deerfield Management Co. v. Ohio Farmers Insurance Co. (1988), 174 Ill. App. 3d 837, 840-41.) Moreover, the trial court’s finding that there was “no just reason for delaying enforcement or appeal” does not make an interlocutory order denying summary judgment a final judgment. (Davis v. Childers (1965), 33 Ill. 2d 297, 300-01.) We find that we do not have jurisdiction to address the denial of the motion for summary judgment.

We now turn to the other issues raised in the appeal. Wil-Freds first argues that the statute of limitations in section 13 — 214 of the Code of Civil Procedure does not apply to third-party actions for contractual indemnification. It contends that since a defendant can wait until it is found liable and then file its third-party complaint for indemnification (see Gibbons v. Nalco Chemical Co. (1980), 91 Ill. App. 3d 917, 920), it brought its third-party complaint within the statute of limitations.

Ringbloom, relying on the cases of Hartford Fire Insurance Co. v. Architectural Management, Inc. (1987), 158 Ill. App. 3d 515, and La Salle National Bank v. Edward M. Cohon & Associates, Ltd. (1988), 177 Ill. App. 3d 464, argues that the four-year statute of limitations in section 13 — 214 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 214) is the applicable statute of limitations for third-party actions based upon an underlying action covered by section 13 — 214. In both Hartford and La Salle, the First District Appellate Court found that section 13 — 214’s statute of limitations for construction “[ajctions based upon tort, contract or otherwise” also controlled the time in which counterclaims and third-party complaints for contribution could be filed. La Salle, 177 Ill. App. 3d at 471; Hartford, 158 Ill. App. 3d at 518.

Section 13 — 214, in pertinent part, provides:

“(a) Actions based upon tort, contract or otherwise against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property shall be commenced within 4 years from the time the person bringing an action, or his or her privity, knew or should reasonably have known of such act or omission.” Ill. Rev. Stat. 1989, ch. 110, par. 13 — 214(a).

In Hartford, the plaintiffs brought a complaint against FGM, Inc. (FGM), in 1981. The complaint alleged various acts of negligence in the construction of a school. In 1985, FGM brought its counterclaim for contribution against several engineers. The engineers moved to dismiss the counterclaim, arguing that the then two-year statute of limitations in section 13 — 214 (Ill. Rev. Stat. 1981, ch. 110, par. 13— 214) controlled the third-party action. (158 Ill. App. 3d at 516.) FGM argued that the longer statute of limitations governing contribution actions controlled all actions in contribution (see Ill. Rev. Stat. 1983, ch. 110, par. 13 — 204). The trial court granted the motion to dismiss. 158 Ill. App. 3d at 517.

The Appellate Court for the First District affirmed the trial court’s dismissal, finding that the section 13 — 214 statute of limitations “was intended to encompass all actions against persons involved in the construction-related activities enumerated therein.” (Emphasis added.) (158 Ill. App. 3d at 518.) The court then reasoned that

“the latest date on which FGM could be charged with discovery of the acts or omissions alleged in its counterclaim for contribution was December 30, 1981, the date on which the original action was filed by the plaintiffs. Adding thereto the two-year ‘discovery’ extension [of section 13 — 214] in effect at that time, FGM then had until December 30, 1983, to file a counterclaim for contribution.” 158 Ill. App. 3d at 520-21.

In La Salle, the facts and result were almost identical. The First District did, however, reason that “in an appropriate case, the date of service of the complaint upon a defendant rather than the date of filing of the complaint, particularly where the service date came much later than the date of filing,” would control. 177 Ill. App. 3d at 471.

Following the holdings in Hartford and La Salle, we find that the statute of limitations set out in section 13 — 214 applies to third-party actions for indemnification which are filed in cases covered by that section of the Code of Civil Procedure. Section 13 — 214 requires that an action be commenced “within 4 years from the time the person *** knew or should reasonably have known of such act or omission.” Ill. Rev. Stat. 1989, ch. 110, par. 13 — 214(a).

Having found that Wil-Freds’ action is controlled by section 13— 214’s statute of limitations, we now turn to whether the trial court erred in finding that Wil-Freds should have “discovered” the masonry problems no later than 1978.

In support of its motion to dismiss, Ringbloom included the affidavit of Neal Anderson, one of SOM’s architects. Anderson stated that the efflorescence was observed as early as October 1978 when SOM reviewed Wil-Freds’ recommendations to correct the problem. By May 7, 1979, the time that SOM issued its certification of substantial completion, the masonry walls were exhibiting the effects of efflorescence. By May 6, 1979, through the “punch list,” Wil-Freds knew of the efflorescence.

Ringbloom also offered the deposition testimony of Daniel Lyne, the plaintiff’s expert. When asked whether the efflorescence was specifically due to the fact that the mortar had excessive levels of salt, Lyne answered, “It could be. *** That is a possibility.” Lyne did not “specifically” have an opinion as to what caused the efflorescence. However, he did know that there were “ingredients” in the wall that would allow for water passage, “a major fault.”

Wil-Freds, in its response to the motion to dismiss, argued that it did not discover “the specific nature of the problems” until Lyne was deposed beginning on October 21, 1986. However, it did not offer any counterevidentiary material to Ringbloom’s motion to dismiss.

We find the case of Freeport Memorial Hospital v. Lankton, Ziegele, Terry & Associates (1988), 170 Ill. App. 3d 531, controlling on this question. In Freeport, the plaintiff sought recovery from an architect and a general contractor for alleged construction-related negligence. (170 Ill. App. 3d at 532-33.) The plaintiff alleged that in 1976, the defendants completed an addition to the plaintiff’s hospital; however, the plaintiff did not bring its complaint until December 27, 1984. The complaint further alleged that the plaintiff “did not know or have any reason to know of these defects caused by the negligence of defendants until *** discovered on September 18, 1983, during an inspection.” 170 Ill. App. 3d at 533.

The Freeport defendants moved for dismissal, arguing that the plaintiff’s action was barred by reason of the then two-year statute of limitations of section 13 — 214. The defendants argued that the plaintiff knew or should have known of its injury more than two years before it brought its action. Through affidavit, one of the plaintiff’s former assistant administrators testified that he was aware of water seepage in 1978. (170 Ill. App. 3d at 533.) Further, one of the architects testified that the plaintiff had complained of cracks in the masonry and investigated the complaints. In a letter to the plaintiff dated April 10, 1981, the architect concluded that the cracks were caused by “abnormally rapid expansion and contraction of the brick panels.” 170 Ill. App. 3d at 534.

As in the case at bar, in Freeport, the plaintiff did not file any counterevidentiary material to respond to the defendant’s motion to dismiss. (170 Ill. App. 3d at 534.) Thus, the trial court properly granted the defendants’ motions to dismiss. See 170 Ill. App. 3d at 534.

Applying the Freeport case to this one, we find that the trial court’s order dismissing Wil-Freds’ third-party complaint against Ringbloom was proper. With no evidence to the contrary in its responses to the motion to dismiss, the only conclusion available is that Wil-Freds knew or should have known of an actionable defect in 1978.

The order of March 20, 1989, of the circuit court of Du Page County is affirmed, and the appeal from the order of June 6, 1990, is dismissed.

Affirmed in part; dismissed in part.

NICKELS and DUNN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE DUNN

license: Public Domain

text:
    STANDARD BANK AND TRUST COMPANY, Plaintiff-Appellant, v. DAVID G. CALLAGHAN et al., Defendants-Appellees.
    Second District
    No. 2—90—0507
    Opinion filed May 30, 1991.
    Rehearing denied July 4, 1991.

      Francis D. Morrissey, Thomas F. Bridgman, Michael A. Pollard, and Kathleen F. MacLennan, all of Baker & McKenzie, of Chicago, Eugene G. Callahan and Matthew W. LaKoma, both of Callahan, Fitzpatrick & LaKoma, of Oak Brook, and R. Terrence Kalina, of Rathje, Woodward, Dyer & Burt, of Wheaton, for appellant.
    Jay L. Statland, Mark R. Valley, James P. Boyle, and Robert D. Boyle, all of Murphy & Boyle, Chartered, of Chicago, and Robert C. Liston, of Liston & Mauter, P.C., of Wheaton, for appellees.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, Standard Bank and Trust Company (the Bank), appeals from an order of the circuit court of Du Page County awarding a $242,404.70 deficiency judgment against defendants, David and Mary Callaghan (the Callaghans), but denying the Bank interest and attorney fees accruing after entry of a foreclosure decree in 1984. The following issues are presented on appeal: (1) whether the Bank should have been awarded statutory post-judgment interest from the date of the sheriff’s sale; (2) whether the doctrine of merger prevented the Bank from seeking additional attorney fees pursuant to the promissory note executed by the Callaghans; (3) whether allegedly unreasonable conduct by the Bank justified denial of the additional attorney fees; and (4) whether the Bank was precluded from seeking some of the fees in question because it failed to appeal from a portion of a 1988 order providing that each party would pay its own fees and costs. We affirm in part, reverse in part, and remand.

Although it is somewhat painstaking, a discussion of the history and background of this case is necessary for a resolution of the issues presented here. In July 1980, the Callaghans borrowed $700,000 from the Bank, then known as Heritage Standard Bank and Trust Company, and executed a note for repayment of the amount plus interest. The note stated that, in the event of default, the Callaghans would pay the reasonable attorney fees incurred by the Bank in enforcing the terms of the note. The note also stated that the beneficial interest in a certain land trust which was held by the Callaghans would serve as security for payment of the note. The Callaghans had previously executed an assignment of the beneficial interest in the land trust in favor of the Bank.

The CaBaghans subsequently defaulted on the note. On January 8, 1983, the Bank filed a complaint to foreclose its security interest in the beneficial interest in the land trust. The Callaghans filed a counterclaim. The trial court granted the Bank summary judgment on both the complaint and counterclaim. The foreclosure decree, which was entered on September 27, 1984, states that it is ordered that defendants pay plaintiff the sum of $721,073.16 within three days with a post-judgment interest rate of 9% per annum. The decree further states that the sheriff of Du Page County will conduct a judicial sale of the beneficial interest and, if the amount derived from the sale was not sufficient to satisfy the judgment amount, the sheriff was to specify the deficiency amount in his report of sale. The above judgment amount included $7,760.50 in attorney fees incurred up until that point.

The sheriff’s sale was held on March 14, 1985. The beneficial interest in the land trust was sold to the Bank, which bid $221,000. In the sheriff's report of sale concerning the land trust, the sheriff recommended that a deficiency judgment be entered in favor of the Bank in the amount of $292,404.70, of which $13,023.36 constituted attorney fees.

On June 3, 1985, however, the circuit court entered an order denying the Bank any deficiency judgment. The court’s ruling was based upon the Bank’s failure to specifically request a deficiency judgment in the complaint for foreclosure and equitable concerns. The Bank appealed from this order, and this court reversed it in Heritage Standard Bank & Trust Co. v. Heritage Standard Bank & Trust Co. (1986), 149 Ill. App. 3d 563 (Standard Bank I). This court held that the general prayer for relief in the foreclosure complaint was sufficient to authorize entry of a deficiency judgment and rejected certain equitable arguments raised by defendants. (Standard Bank, 149 Ill. App. 3d at 568-70.) It remanded the cause to the circuit court for a hearing concerning defendants’ contention that the sale was commercially unreasonable. 149 Ill. App. 3d at 570-71.

Upon remand, the trial court conducted such a hearing and determined that the fair-market value of the property was $50,000 greater than the amount bid by the Bank, $221,000. The trial court determined that the amount bid was commercially unreasonable and that the Bank engaged in a mistaken practice by relying on an appraiser’s report in making the bid when it should have known the appraisal was erroneous. On February 29, 1988, the court entered an order denying the deficiency judgment once again on the above grounds. The order further stated that each side would pay its own costs and attorney fees.

The Bank appealed the above order to this court, which affirmed in part and reversed in part in Standard Bank & Trust Co. v. Callaghan (1988), 177 Ill. App. 3d 973 (Standard Bank II). This court held that the trial court’s finding that the sheriff’s sale was commercially unreasonable because of the Bank’s mistaken practice was not against the manifest weight of the evidence (Standard Bank, 177 Ill. App. 3d at 979) but that the trial court erred in concluding that this constituted an absolute bar to a deficiency judgment (177 Ill. App. 3d at 982). We remanded the case to the trial court with instructions to award a judgment to the Bank in the amount of $50,000 less than the deficiency. 177 Ill. App. 3d at 982.

Upon remand, the parties agreed that, under Standard Bank II, the Bank was entitled to a judgment in the amount of at least $242,404.70, representing the $292,404.70 deficiency noted in the sheriff’s report of sale minus $50,000. The Bank asserted that it was also entitled to attorney fees incurred in the litigation since March 14, 1985, the date of the sheriff’s sale, plus statutory post-judgment interest of 9% for that time period pursuant to section 2 — 1303 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1303). The trial court ruled that the Bank was not entitled to post-judgment interest under section 2 — 1303 because in a foreclosure action, the deficiency judgment rather than the foreclosure decree determines defendants’ personal liability. The trial court also ruled that the Bank was not entitled to additional attorney fees because its commercially unreasonable conduct had caused the continuing litigation and because the Bank never appealed from the portion of the February 29, 1988, order assessing each side its own costs and fees. The court entered a deficiency judgment in the amount of $242,404.70 on April 5,1990. The Bank now appeals.

Section 2 — 1303 of the Code of Civil Procedure states that “[¡judgments recovered in any court shall draw interest at the rate of 9% per annum from the date of the judgment.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1303.) The Bank argues that under this provision it was entitled to 9% interest per annum on the judgment order in the foreclosure decree which stated that defendants shall pay plaintiff the sum of $721,073.16 within three days plus post-judgment interest at a rate of 9%. The Bank also maintains that, since the Callaghans did not appeal from the foreclosure decree, they are bound to pay 9% interest per annum from the date of the decree under the law-of-the-case doctrine.

At the time the foreclosure decree was entered, section 6 of “An Act relating to mortgages of property of public utilities” (Act) provided in part as follows:

“|T]n all actions directing foreclosure of mortgages, a judgment may be rendered for any balance of money that may be found due to the plaintiff, over and above the proceeds of the sale or sales, and enforcement may be had for the collection of such balance, the same as when the judgment is solely for the payment of money. Such judgment may be rendered conditionally, at the time of ordering the foreclosure, or it may be rendered after the sale and the ascertainment of the balance due.” Ill. Rev. Stat. 1983, ch. 95, par. 56.

Our supreme court has consistently held that while this statute did authorize conditional deficiency decrees at the time the judgment of foreclosure was entered, such a decree would only have the effect of a finding that the plaintiff was entitled to a personal judgment for the balance remaining due after the application of the sale proceeds. (State Bank v. Burr (1940), 375 Ill. 379, 382-83; Eggleston v. Morrison (1900), 185 Ill. 577, 579; Cotes v. Bennett (1899), 183 Ill. 82, 86.) Conditional judgments under this provision were not considered personal judgments against the defendants. (Burr, 375 Ill. at 383; Cotes, 183 Ill. at 86.) Thus, provisions in a foreclosure decree such as the provision in the present case directing payment by defendants of a particular sum within a certain time period did not render defendants personally liable for the sum in question but instead were to be interpreted as alternative decrees allowing the foreclosure sale to be avoided by payment of the specified sum within that period. Bumgartner v. Hall (1896), 163 Ill. 136, 138; Kirby v. Runals (1892), 140 Ill. 289, 298.

Under the above holdings the provision of the foreclosure decree stating that defendants shall pay $721,073.16 within three days at 9% interest did not render the Callaghans personally liable for payment of this amount. Instead, it merely amounted to a declaration that payment of that sum was necessary to avoid a sale of the property. Since there was no personal judgment entered against the Callaghans until the April 5, 1990, deficiency judgment was entered, the trial court properly denied the Bank’s claim for statutory post-judgment interest.

For the first time in its reply brief, the Bank argues that, if it was not entitled to an award of statutory post-judgment interest for the period between the sheriff’s sale and the entry of the deficiency judgment, then it was entitled to an award of interest in accord with the terms of the note for that period, at its prime lending rate plus 3%. The Bank never raised this issue in the trial court, and it is therefore waived for purposes of appeal. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 500.) The issue is also waived because it was not raised in the Bank’s initial brief (134 Ill. 2d R. 341(e)(7); Calabrese v. State Farm Mutual Automobile Insurance Co. (1989), 187 Ill. App. 3d 349, 354) and, accordingly, we will not consider it.

We will now consider whether the trial court was correct in ruling that the Bank was not entitled to an award of attorney fees. The Callaghans contend that the Bank was precluded from recovering additional attorney fees after the foreclosure judgment was entered in September 1984 because the note executed by the Callaghans in 1980 merged into the judgment. The Callaghans cite Doerr v. Schmitt (1941), 375 Ill. 470, in which the court concluded that certain bonds secured by the trust deed merged into the judgment. (Doerr, 375 Ill. at 473.) While Doerr was a foreclosure action, a deficiency judgment had been entered in that case at the relevant time. Here, by contrast, the Callaghans assert that the note merged into the September 1984 judgment of foreclosure.

This contention is untenable. Applying the doctrine of merger at the time a foreclosure decree is entered would bar any further recovery on the underlying notes. This would be contrary to section 6 of the old Act (Ill. Rev. Stat. 1983, ch. 95, par. 56), and section 15 — 1508(e) of the current Illinois Mortgage Foreclosure Law (Ill. Rev. Stat. 1989, ch. 110, par. 15 — 1508(e)), which clearly authorize the entry of deficiency judgments after the entry of foreclosure decrees. We reject the Callaghans’ merger argument.

The Callaghans also contend that the Bank was precluded from recovering additional attorney fees because in its February 29, 1988, order denying the Bank a deficiency judgment, the trial court also provided that each side would pay its own costs and fees. According to the Callaghans, the Bank never appealed from this portion of the order, and it was therefore barred from seeking the additional fees. The trial court agreed with this contention.

The Bank’s notice of appeal for Standard Bank II states that it appeals from the trial court’s ruling “that the price bid by the [Bank] at the Sheriff’s Sale was not commercially reasonable and denying a deficiency judgment be reversed.” According to the Callaghans, since the notice of appeal did not specify the portion of the order regarding costs and fees, the Bank did not appeal from this portion of the order and remained bound by it, prohibiting the Bank from seeking additional attorney fees.

We disagree with this assertion. Section 6 of the old Act is captioned “Deficiency judgment — Enforcement” and authorized entry of judgment “for any balance of money that may be found due to the plaintiff, over and above the proceeds of the sale or sales.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 95, par. 56.) This language would indicate that a deficiency judgment can include any amounts due to the plaintiff which would include attorney fees. In fact, the recommended deficiency judgment amount in the sheriff’s report of sale included attorney fees.

Therefore we conclude that the Bank’s notice of appeal, which sought reversal of the denial of a deficiency judgment, encompassed the denial of additional attorney fees as well. Additionally, this court’s opinion in Standard Bank II, which reversed the February 29, 1988, order and remanded the cause for entry of judgment in the amount of the deficiency minus $50,000, authorized the trial court to consider additional attorney fees in calculating the deficiency amount. We therefore reject the Callaghans’ argument.

The Callaghans also contend that the Bank cannot receive additional attorney fees because the trial court did not reserve jurisdiction to award such fees in the foreclosure decree, citing Phillips v. O’Connell (1947), 331 Ill. App. 511, 532-34. The Callaghans acknowledge that the foreclosure decree states “the cost of foreclosure, including attorneys’ fees, are additional indebtedness for which the plaintiff should be reimbursed.” They assert, however, that this was not intended to include additional fees incurred after the sheriff’s sale. We disagree and conclude that this provision was intended to encompass all reasonable attorney fees resulting from the foreclosure proceedings, including fees incurred in seeking the deficiency judgment and for appeals. Accordingly, this contention must fail.

The trial court premised its denial of attorney fees in part upon its conclusion that the litigation after the sheriff’s sale resulted from the Bank’s mistaken practice in submitting a bid much lower than the value of the property. Although attorney fees are ordinarily not awarded to the prevailing litigant, if there is a contractual provision authorizing attorney fees, the trial court may enforce that provision at its discretion. (Petkus v. St. Charles Savings & Loan Association (1989), 182 Ill. App. 3d 327, 331.) Therefore, we must determine whether the denial of fees was an abuse of the trial court’s discretion.

Following this court’s opinion in Standard Bank I, the ensuing litigation focused almost exclusively on whether the Bank’s conduct was commercially unreasonable and whether, if it was, this would operate as an absolute bar to a deficiency judgment. The trial court determined that the Bank’s conduct was commercially unreasonable, and we held in Standard Bank II that this finding was not against the manifest weight of the evidence. (Standard Bank, 177 Ill. App. 3d at 979.) Since the promissory note only authorized the Bank to recover “reasonable attorney fees” incurred in enforcing the note, the trial court’s ruling on attorney fees was clearly correct with regard to the period of time following our decision in Standard Bank I. In our view, attorney fees incurred primarily because of the necessity of resolving issues created by the Bank’s misconduct are not “reasonable attorney fees” which the Callaghans should be forced to pay.

The same is not true, however, of the fees incurred between the time of the sheriff’s sale and this court’s decision in Standard Bank I. The primary issues resolved during this period were whether the general prayer for relief in the Bank’s complaint was sufficient to authorize entry of a deficiency judgment, whether the Bank violated its fiduciary duty as land trustee by bidding on the property, and whether certain equitable considerations precluded entry of a deficiency judgment. This court ruled in the Bank’s favor on each of these issues and then remanded the cause to the trial court for a hearing on whether the sheriff’s sale was commercially reasonable. Standard Bank, 149 Ill. App. 3d at 571.

It is evident that the proceedings between the time of the sheriff’s sale and our decision in Standard Bank I would have taken place regardless of whether the Bank had submitted the unreasonable bid at the sale. These proceedings, including the initial appeal, did not result from the Bank’s misconduct. In light of our eventual holding in Standard Bank II that the Bank was entitled to a deficiency judgment, it was clearly reasonable for the Bank to assert its claim to such relief in the trial court and on appeal. While it would not be reasonable to allow the Bank an award of attorney fees for the period following our remand in Standard Bank I because the remaining issues to be resolved resulted from the Bank’s misconduct, the trial court abused its discretion by failing, in accordance with the note’s provisions, to award attorney fees for the period between the sheriff’s sale and the resolution of Standard Bank I.

We, therefore, reverse this aspect of the trial court’s order and remand the cause to the trial court for a hearing at which it shall determine a reasonable attorney fee for this period.

Affirmed in part; reversed in part and remanded.

REINHARD, P.J., and UNVERZAGT, J., concur.


author: JUSTICE McLaren

text:
      In re CLARENCE T.B. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Clarence H.B. et al., Respondents-Appellants).
    Second District
    Nos. 2—90—0849 through 2—90—0852 cons.
    Opinion filed June 20, 1991.

      Peter B. Nolte, of Sreenan & Cain, P.C., of Rockford, for appellants.
    Paul A. Logli, State’s Attorney, of Rockford, and Eleesha Pastor O’Neill, of Chicago (William L. Browers and Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLaren

delivered the opinion of the court:

Respondents, Clarence H.B. (Clarence) and Jennie B., appeal from the orders of the circuit court which found them unfit and terminated their parental rights. On June 28, 1990, the trial court appointed the Department of Children and Family Services (DCFS) guardian with the power to consent to the adoption of 14-year-old Clarence T.B. (Tommy), 10-year-old Barbara B. (Barbie), 8-year-old Catherine B. (Cathy), and 5-year-old Christine B. (Crissy). These appeals have been consolidated and raise the issue whether the order finding respondents unfit and terminating their parental rights must be reversed because the evidence of unfitness was not clear and convincing. We affirm.

On May 18, 1988, a four-count petition was filed which alleged that Tommy was a delinquent minor based on several acts of violent behavior. On June 3, 1988, the petition was amended to add one count of criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12— 15(a)(2)) and one count of aggravated criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 16(c)(2)(i)). The criminal sexual abuse count alleged that Tommy committed an act of sexual conduct on Cathy. The aggravated criminal sexual abuse count alleged that Tommy committed an act of sexual conduct on Barbie. On the same date, Tommy was adjudicated delinquent in that he committed the offense of battery and the offense of aggravated criminal sexual abuse.

On June 28, 1988, a supplemental petition was filed which alleged that Tommy was an abused minor in that Jennie sexually abused him by performing fellatio on him. Petitions were also filed alleging that the girls were abused minors. The petitions were amended on August 15, 1988, to include the allegation that Barbie had been abused by Clarence.

On September 15, 1988, the minors were adjudicated neglected and abused minors by respondents, their parents. The girls were made wards of the court on September 22, 1988. An amended order of adjudication was entered regarding Tommy which found that he was delinquent in addition to being an abused minor.

On October 18, 1989, DCFS filed petitions for termination of parental rights and power to consent to adoption of the minors. The petitions alleged that respondents were unfit because they: (1) had failed to maintain a reasonable degree of responsibility for the minors’ welfare; (2) substantially neglected the minors in a continuous or repeated manner; (3) had “been extremely or repeatedly cruel to the” minors; (4) failed to protect the minors from conditions within their environment which were injurious to their welfare; (5) were depraved; and (6) failed to make reasonable efforts to correct the conditions which were the basis for the removal of the minors, or to make reasonable progress towards the return of the minors within 12 months following the adjudication of neglected minors.

The trial court held the hearing on the petitions on several dates between January 30, 1990, and March 13, 1990, due to the extensive testimony offered by the State. The first witness to testify was Lou Gadow, the director of Family Advocate. Gadow first became involved with the family on June 14, 1988, when Tommy was referred to Family Advocate by the juvenile probation office for an adolescent offender assessment. On June 24, 1988, Tommy reported to Gadow that he had been sexually abused by his mother in that she performed oral sex on him and fondled him. Gadow then initiated a protective service assessment, which resulted in the girls being taken from the home and placed in foster care.

After Clarence visited Tommy at the detention center, Tommy retracted the allegation that he had been abused. In mid-July, Tommy was placed for evaluation in the adolescent psychiatric unit at SwedishAmerican Hospital. Gadow recommended the evaluation because Tommy was “such an extremely disturbed child.” Gadow described Tommy’s affect in his meetings with her as either “very flat with *** no facial expression” and with monotone speech or as “one of a great deal of vulgar language, threats, swearing[,] *** hand gestures, [and] fist gestures.” When he first related the sexual abuse to Gadow, Tommy expressed concern that his revelation would cause his mother to harm herself or that his parents would go to prison and, if his parents were raped or killed in prison, it would be Tommy’s fault. According to Gadow, Tommy would then state that he should kill himself.

Gadow described Tommy as “an extremely disturbed child; that he was probably one of the two most disturbed children of his age that [she] had ever encountered. He was very antisocial.” Gadow related how Tommy “talked at length” about his past physical assaults on other children and on teachers at his school. In addition, Tommy was sexually preoccupied, and Gadow “was concerned about the level of sexual preoccupation that he evidenced in those early months.” Tommy “talked extensively about sexual conquests, *** [a]nd he would spontaneously deny his homosexuality.” Gadow further stated that Tommy had exhibited inappropriate sexual behavior while at SwedishAmerican. Tommy also described to Gadow his impression that one who has been victimized is weak and disgusting “and that the only way to not be a victim, in Tom’s statement, was to be the aggressor.” Gadow believed that Tommy’s behavior was consistent with both a victim of sexual abuse and with a sexual abuse perpetrator. Gadow concluded that Tommy “had been sexually victimized and that the sexual victimization had been long-term and had been committed by both an adult male and an adult female, and that, in [her] opinion, that was his parents.”

Gadow recommended that Tommy receive specialized offender treatment, but she encountered difficulty in placing him because few programs were able to respond to Tommy’s needs, and they “generally have a much older population.” Gadow explained:

“Normally when an adolescent offender is exhibiting this level of aggression the children are more likely to be older adolescents, like 15 as a mean age. And Tom at this time was 12 years old. So the facilities that were willing to consider him with the level of aggression that he had exhibited also had a minimal [sic] age requirement of 13. And so *** I couldn’t get the referral actualized to those places because of his age. And the places that normally took children Tom’s age and did have openings *** were not prepared to deal with the level of either general physical aggression or more specifically were absolutely refusing to deal with *** a child who exhibited this sexual aggression.”

Tommy eventually was placed at an out-of-State facility in March 1989.

By November 1988, Tommy had retracted his retraction and again alleged sexual abuse by both respondents. From that point forward, Tommy had been consistent in his allegations of abuse. Tommy told Gadow that the abuse started when he was about six years old, and he estimated that it occurred weekly. Tommy described to Gadow incidents in which the sexual contact was a group activity with the parents directing the children’s activities. Tommy also described oral and anal sex with his father, and Tommy expressed concern about his physiological response to some of the sexual contacts. Tommy had been directed to engage in intercourse with Barbie, but then Tommy had done it on his own.

Gadow further discussed how Tommy was “hostile toward the court system” because respondents had been found not guilty of criminal charges. Gadow stated that Tommy related to her that on June 24, 1988, when Tommy was in detention, Clarence had threatened to kill Tommy for talking about the sexual abuse.

Gadow explained that her assessment that respondents had made no progress toward the return of the children was based primarily on respondents’ continued denial that they sexually abused their children. Gadow also identified other problems respondents needed to work on, such as “[individual functioning, marital problems, family problems, [and] parent/child problems.”

Gadow explained the apparent inconsistency of the finding of abuse with Jennie’s act of reporting Tommy to DCFS for abusing his sisters. According to Gadow, the reason Jennie reported Tommy was that she was angry at Tommy for independently engaging in sexual acts. A parent such as Jennie may be so angry that she will risk being investigated for sexual abuse to punish the abusive child. Gadow further explained:

“[B]ased upon the controlled dynamics that go on within intra-familial sexual abuse families, there is some logic to the level of anger that would occur when the person who is supposed to be in control sees their control being usurped by a *** person who is in a middle level [of] control like the adolescent. In additional [sic], I have had other families that I have worked with who have come to the attention of the system because of a parent making a report about the child being sexually abused by someone else *** as a way of covering up for a problem that the parent feels is likely to be identified anyway.”

Gadow believed that because Tommy’s behavior had been deteriorating at an accelerating rate, there would be increased scrutiny from the school system in the immediate future.

Gadow also testified that of all the cases involving a child who is a sexual aggressor, 100% of the female adolescents and 70% to 75% of the male adolescents had been victims of sexual abuse. Gadow specifically noted that she had never worked with a child offender under the age of 12 who had not been victimized. According to Gadow, 86% of the parents accused of sexual abuse by their children eventually admit to the sexual abuse. Gadow noted that respondents “exhibited a much more rigid level of denial than most of the people that [she] worked with and did not move beyond their denial to any level of discussion or willingness to look at the possibilities around their abuse behavior.” Gadow distinguished the type of denial exhibited by respondents from that exhibited by people who had not committed any abuse.

Pat Graham-Toohey testified that on June 27, 1988, the girls were at the Family Advocate offices. Gadow asked Graham-Toohey to take care of Barbie while she was at the office. Barbie had been taken to the doctor earlier because she was not feeling well. Barbie was still not feeling well when she went to Graham-Toohey’s office, and she said she wanted to sleep. Graham-Toohey offered to make up a bed for Barbie on the floor, but Barbie wanted to be held instead. Graham-Toohey held Barbie in her arms for about an hour while Barbie slept. When Barbie woke up, she started crying. Barbie told Graham-Toohey that she was afraid that she was going to get killed. When Graham-Toohey asked what she meant, Barbie said, “ ‘My mother will kill me.’ ” Graham-Toohey reassured Barbie that mothers often jokingly say they are going to “kill” their children if they do not do their chores. Barbie continued crying and said that her mother meant it and that her mother would kill her if she told anyone what her mother made her do.

Barbie would not look at Graham-Toohey when she told her, “ ‘My mom makes me get naked and touches my private parts and makes me touch my sisters’ private parts.’ ” Barbie continued crying, pulled her knees up to her chest, and buried her head in the crook of Graham-Toohey’s arm. Barbie’s whole body was trembling while she was talking. At that time, all Graham-Toohey knew was that Tommy had been referred to Family Advocate for adolescent sex offender assessment. Graham-Toohey did not know any details, and she had not heard any allegations regarding respondents.

Graham-Toohey asked to be the girls’ caseworker. GrahamToohey observed that “Barbie was by far the most fearful child [she] had ever seen *** at Family Advocate.” Following a visit with respondents on July 6, 1988, Barbie was very upset and complained ■that she had a headache, a stomachache, and that she felt nauseous. Graham-Toohey asked if Barbie often felt that way, and Barbie told her that she “ ‘always [had] headaches and stomaches [sic] when the abuse is happening.’ ”

In addition to the touching, Barbie described for Graham-Toohey how Jennie performed oral sex on Barbie and that Barbie was made to perform oral sex on Jennie. Barbie described the odor of her mother’s genital area and what she felt when she performed oral sex on her father. Barbie was not able to place these events in time, but she told Graham-Toohey that it happened “a lot.” According to Graham-Toohey, “[e]ight year olds that have not been sexually abused would not be able to describe graphically the odor of their mother’s genitals or what semen tasted, felt like in a mouth.” Graham-Toohey believed Barbie’s allegations after Graham-Toohey questioned Barbie about whether the things she described had happened with Tommy and not her parents. Not only did Barbie’s allegations remain consistent, but “when she described what her parents had did [sic] to her, she resumed this fearful behavior where she was crying. She curled up in the fetal position. She would tremble, wrap her arms around herself.” At times she would cling to Graham-Toohey and not look her in the face when talking about the things that happened. In addition, Barbie started biting her nails. According to Graham-Toohey, such behavior is consistent with children who had been sexually abused often.

Barbie revealed the incidents of sexual abuse “incrementally,” that is, she would disclose more information the more protected she felt. In Graham-Toohey’s experience, those children who tend to disclose information incrementally are those who have been victims of intrafamilial victimization, which is accompanied by coercion and secrecy.

When respondents were found not guilty of the criminal charges, Barbie was upset. When Graham-Toohey informed her that visitation with her parents would resume, Barbie cried and told Graham-Toohey:

“ T hate my parents. They should go to jail for 100 years. I don’t want to see my parents.’ ”

Graham-Toohey further testified that the results of a physical examination of Barbie supported her allegations of penetration. Graham-Toohey also stated that although Barbie’s statements to her had remained consistent, Barbie would not have testified consistently with those statements if the parents were in the courtroom while Barbie was testifying. Although Barbie was given the option of testifying in chambers, she agreed to testify in the courtroom because she “was an overly compliant child” who tried to say what she thought people wanted to hear. According to Graham-Toohey, Barbie “was scared to death to come to court.” Graham-Toohey believed that Barbie’s testimony in the prior hearing was unreliable because her parents were present and, therefore, Barbie was probably reluctant to tell everything.

Mark Morrison, the clinical services supervisor for Family Advocate, testified he conducted an assessment of Cathy and Crissy in June 1988. Initially, Cathy was “very anxious, very frightened and reluctant to discuss family issues.” Cathy openly discussed school and extracurricular activities, but when questioned about her family, Cathy became “withdrawn, sullen, quiet, [with her] head down.” Cathy eventually admitted that she did not want to talk about her family because of her fears about how others would respond to what she had to say, about getting others “in trouble,” and of being harmed herself.

During the interview session on June 27, Cathy told Morrison that “her mother had touched her in the same place that her brother, Tommy, had,” and she pointed to her vaginal area. In subsequent sessions from June through August 1988, Cathy related incidents of sexual contact with her father and two other family members residing outside the home. Cathy discussed in detail the sexual contact, which included oral sex. While discussing these things, Cathy spoke with halted speech and was visibly anxious. Frequently, Cathy would stop talking and need to be supported and comforted. Based on Cathy’s demeanor, Morrison believed that she was very frightened, and he “concluded that Cathy had been repeatedly sexually molested over a fairly extensive period of time.”

In addition to Cathy’s demeanor during the interviews, her sexual acting out with another foster child while she was in foster care indicated to Morrison that Cathy had been sexually abused. Cathy also exhibited a factual knowledge of sexual activity beyond that of a normal six-year-old, including descriptions of both vaginal and anal intercourse.

Morrison evaluated Crissy during June and July 1988, when she was three years old. Crissy frequently exhibited regressed behavior. Crissy “talked about the bad touches that her sisters received from Tommy.” Crissy initially denied that anything bad happened to her, but later she acknowledged sexual contact with her parents and with her brother. Morrison determined that Crissy’s statements regarding sexual contact with her parents were valid, based on Crissy’s descriptions, including how her “mother made her put her hand and wiggle on her private part.” Crissy described oral sex with her mother as “ ‘icky,’ ” and when asked how she felt during sexual contact with her father, “she simply said, ‘Ow.’ ” While she was describing these things, Crissy appeared anxious and afraid. In Morrison’s opinion, neither Cathy nor Crissy had been “programmed” to relate sexual experiences.

Morrison discussed the possible sources of a child’s knowledge of sexual activities. Morrison explained:

“[T]he kid who has seen a pornographic film depicting, say, oral sex will describe it and talk about it. A child who has had that done to them [sic] will not only be able to describe and talk about it but provide other specific kinds of details and information about that than the child simply having seen it, say, in video.”

According to Morrison, the sexually abused child will display an “emotional congruence with things” the child was describing. Morrison stated that Cathy continued to have ambivalent feelings towards her parents, and she told Morrison that she wished her parents would admit their problems so Cathy could go home.

Lou Gadow was recalled to testify about her work with respondents beginning in March 1989. Respondents told Gadow that they wanted to reunite with their children. Gadow informed them of what was required of them for the return of the children. According to Gadow, respondents showed some anger with Family Advocate, so Gadow indicated that they could work with their own professional. Respondents told Gadow that they had never done any of the abuse and, therefore, there was no need for them to resolve their problems.

Respondents did, however, attend sessions at Family Advocate throughout 1989. Gadow began to take social history information from respondents individually. Both respondents continued to deny the occurrence of any sexual abuse and to deny the existence of any individual problems. Respondents indicated that there were no marital problems, family problems or parenting problems and that they did not need any services for sexual abuse behavior. Clarence’s “response to [Gadow’s] approach was primarily to question [her] relationship with God and to make accusatory statements about [her] alliance with [S]atan.” Clarence also accused Gadow of having “programmed the children.” On some occasions, Clarence calmly explained to Gadow how “[S]atan [was] working through this system and *** [Gadow] was doing this [programming] to the children *** because of [S]atan.” On other occasions, Clarence appeared very angry and “talked very loudly in a very accusatory tone.” In May 1989, Gadow informed Clarence that there would be no further discussion of her religious affiliations. Clarence indicated that he did not think Gadow was doing it deliberately, “but that [S]atan worked through people without them knowing it.” After that, Clarence was never antagonistic towards Gadow, although he still complained about “the system.”

Gadow further testified that the social history of Jennie revealed that she “had an extensive history of sexual victimization of herself by her father and two of her brothers.” Clarence repeatedly referred to his being mistreated or persecuted during his social history. Gadow indicated to Jennie that her own victimization could contribute to her problems as an adult, including marital and parental problems. Jennie responded that she had already dealt with her own victimization in previous counseling.

Respondents refused to participate in psychological testing through Family Advocate. Respondents were allowed to select a psychologist, and they indicated they would participate in testing with that person. Respondents were tested on several different occasions. Before the results were in, Clarence told Gadow that he doubted the ability of his psychologist and the validity of the test results. Gadow discussed the test results with respondents, and she encouraged them to discuss the evaluation with the psychologist. The evaluations showed that respondents are very similar to each other, in part because “they are antisocial.” Gadow explained antisocial behavior as not abiding by the primary social mores and laws of a community and believing in things opposite of what was commonly believed. Clarence responded “that if they were antisocial, it was because they followed God’s laws, as opposed to social laws.”

The type of personality respondents showed tends to be a type which refuses to take responsibility for their own behavior. According to Gadow, that was the exact problem respondents had in resolving their problems. They responded by saying that they did not have these problems.

Gadow tried to have the girls visit with respondents, but Cathy and Barbie refused. Instead, Gadow made videotapes of the girls expressing their concerns to respondents. After viewing Cathy’s videotape, respondents denied that they had abused her and stated that Cathy had been programmed to say those things. Gadow also tried to discuss the children’s problems with respondents, including Tommy’s extreme psychopathology and Barbie’s post-traumatic ■stress disorder. Respondents would only talk about the system violating their parental rights.

Gadow set up meetings with Barbie and respondents and Cathy and respondents. Barbie did not want to see respondents, and, after five minutes, she left the room crying because respondents said they would not lie and say they abused Barbie. Cathy was angry with respondents because the parents of several girls in her therapy group had taken responsibility for the abuse and the girls were making progress. Cathy wanted respondents to admit to the abuse. In the meeting, Clarence denied that they ever abused Cathy, and respondents said that they were not going to admit to something that they did not do. Cathy started to cry and asked to leave.

The result of the meetings was that “instead of becoming less entrenched in denial, [respondents] were becoming more entrenched in denial.” They became more insistent that the children were “programmed by the corrupt system.” Tommy, who was in a county home in Minnesota, sent a videotape for respondents. In it, Tommy stated he was upset with respondents because they had not “ ‘admitted up to the abuse.’ ” Tommy explained that he had taken responsibility for his sexual assaults, and he knew that was difficult, but if he could do it, he did not understand why respondents could not do likewise. Tommy also accused Clarence of being a “ ‘wimp’ ” because, during the sexual abuse, Clarence did what Jennie directed him to do. At the end of the tape, Tommy expressed the hope that if respondents could admit that they sexually abused their children, the family could be together again.

In a meeting between Tommy and respondents on December 1, 1989, Tommy reiterated what he said on the tape. Based on his parents’ responses, Tommy became angry and told respondents that he did not want to see them because they still lied. The meeting ended when Tommy told them, “ T don’t want to see you until you are ready to go straight about what happened.’ ”

On cross-examination, Gadow explained that most of the families served by Family Advocate exhibit “a tremendous amount of hostility about intervention and about placement of their children in the initial stages.” Gadow admitted that respondents attended every scheduled meeting. In addition, Gadow admitted that occasionally respondents acknowledged that there were problems other than sexual abuse in the family, in particular, financial problems as a result of litigation. Gadow explained what she had expected of respondents:

“[I]n terms of the relationship between the parents and the children, because of the children’s adamance in terms of wanting the parents to admit the behavior in order to resolve the problems *** there would be no potential for healing the relationship, the estrangement between the parents and the children, without their admission.”

According to Gadow, in a situation where the child wants the parent to admit to abuse which did not occur, Gadow would attempt to rid the child of that distortion of reality so that the child would come to see that the abuse did not happen. Gadow had seen that situation arise in the context of custody disputes. Gadow believed “the distortion is with [respondents] and that the children’s perception is accurate.” Gadow stated that respondents’ denial is the reason they had not resolved their problems, which led to the termination hearing.

Jennie testified that she was 36 years old and had been married to Clarence for 16 years. Respondents sought professional help for Tommy when he was 21k to 3 years old because he was a very destructive child. Tommy was diagnosed as being hyperactive and was placed in a special program for preschoolers. Tommy’s behavior in elementary school was “not too bad.” Around the time Tommy was in third and fourth grades, he became more aggressive by fighting with other children and disobeying teachers.

When Tommy was 11 years old, he attacked two teachers. Respondents took him to a social worker, Penny Shaw, for counseling. Tommy saw Shaw for about six months. About a month after Tommy stopped counseling with Shaw, respondents contacted Paul White, a social worker who had worked within the juvenile system. The first meeting with White was in May 1988. White agreed to counsel Tommy. At the second meeting, White outlined what he expected to achieve with Tommy.

The third session was around the end of May or beginning of June 1988. The night before that session, Cathy and Barbie had come to Jennie and told her that Tommy touched them improperly. This was the second time Cathy and Barbie had complained to Jennie about it. Jennie discounted the first complaint as normal curiosity between “boy and girl.” Clarence had talked to Tommy about the complaint the night before the session. At the third session, Jennie told White that she was concerned that Tommy might be sexually abusing the girls. Tommy admitted that he touched the girls, and White told Jennie that she would have to call DCFS or the child abuse hot line. White dialed the number, and Jennie explained to the person what Tommy told her. Jennie was aware of the ramifications of notifying the authorities because her oldest brother “spent six months in jail” for sexually abusing her. Tommy was very upset with Jennie when they left the session.

Because of Jennie’s report, DCFS set up a family meeting on June 3, 1988, at Family Advocate. At the meeting, Ruth Nolan questioned respondents for more details regarding what was going on between Tommy and the girls. Nolan then interviewed the girls out of respondents’ presence, and she interviewed Tommy separately. Nolan then informed respondents that Tommy admitted to abusing the girls and that he had to be placed in juvenile detention. Tommy was taken into custody at that time.

On June 20, Jennie returned to Family Advocate to set up a social history because Tommy had been ordered to undergo testing as a sex offender. Jennie cooperated with Family Advocate and answered their questions. On June 24, Rockford police officers came to Jennie’s house to discuss Tommy’s allegations of sexual abuse by Jennie. Jennie accompanied the officers to the police station, and the girls were taken into protective custody.

Jennie denied sexually abusing the children and related that the children had two separate cases of pinworms, which required respondents to check the children’s buttocks at night, while they were asleep.

Jennie testified that she and Clarence had been charged with criminal offenses in regard to the sexual abuse. Both respondents were found not guilty of the charges. Respondents then went to counseling at Family Advocate. Respondents had weekly visits and counseling with Gadow from March through November 1989. According to Jennie they did not pursue counseling with the psychologist who tested respondents because he told them “it was not necessary; that it was a waste of his time and [respondents’] money to continue to see him.” The psychologist told respondents to continue with Family Advocate.

Jennie denied that there was ever any pornographic material in her home, and she indicated that the children would not have had access to any pornographic materials. Jennie believed that Barbie said she never wanted to see her parents again because Barbie had been taught that she would be punished if she lied. Jennie had no idea why her children would lie about sexual abuse.

Clarence, who was 40 years old, denied sexually abusing any of his children. Clarence testified that several times he had discussed with Tommy the girls’ accusation of sexual abuse by Tommy. Tommy denied that he had touched his sisters and accused them of “trying to get him in trouble.” Clarence forbade Tommy to go in his sisters’ bedrooms. After the first time the girls complained about Tommy, Clarence moved Tommy to a bedroom downstairs. According to Clarence, he did everything Family Advocate requested of him except for admitting that he abused the children.

On cross-examination, the attorney for the guardian ad litem asked Clarence to describe his relationship with Tommy when Tommy was 3 to 3%; years old. Clarence responded, “He was my whole life.” Clarence related that Shaw had informed Clarence that Tommy was angry and despised authority figures. Shaw also thought Tommy might have been the victim of sexual abuse. Clarence stated that he talked with Tommy about that, but that Tommy denied that anything ever happened to him. Clarence admitted that his relationship with Tommy had been strained since Tommy started having trouble at school, in 1982 or 1983.

Clarence indicated that the children were lying about any sexual abuse. Clarence believed that their statements were suggested to them by “the D.C.F.S. caseworkers and workers at Family Advocate.” Clarence further expressed the belief that DCFS forced the children to testify about sexual things “[b]y continued suggesting that the children are denying the fact that this happened and are afraid that it would get us in trouble if they admitted to the truth.” Clarence agreed that people who had been victimized as children would be more inclined than other people to abuse their children.

Clarence explained the source of Tommy’s pathology was derived from trouble Tommy had with children in the neighborhood, i.e., the other children teased and harassed Tommy. When Clarence complained about the children harassing Tommy on the bus, the authorities put the blame on Tommy because he was disruptive. Although the psychiatric reports indicated that both Tommy and Clarence are antisocial and have difficulty with authority figures, Clarence did not make any connection between himself and Tommy’s problems.

In rendering its decision, the court explained that it had “given a great deal of attention to this case,” reviewed the evidence, the exhibits and the law. The court recognized that termination cases “carry the gravest of consequences for all the parties concerned.” The court noted that it observed the demeanor of the witnesses testifying in this proceeding and considered the question before the court as one of their credibility. The court explained:

“The parents have advanced two reasons why the children said what they said. One is in regard to Tommy. There has been a suggestion by the parents that Tommy has said the things he said in order to relieve himself of the responsibility of his own acts of sexual misconduct against the girls. That reasoning, however, does not address why the girls have said what they have said about the parents’ conduct.
The other reason that the parents advance for explaining or justifying why the children have said what they have said is that the children have been programmed or indoctrinated by the Department of Children and Family Services and Family Advocate to say the things they said. I find it hard to believe that Family Advocate or the Department of Children and Family Services could indoctrinate these children in this way to say the things that they said.
Also, I have these statements of how much fear the children were in. I have testimony regarding how they trembled, how they demonstrated other obvious symptoms of fear; and I don’t know how the department or Family Advocate could tell or make the children do that.
I suppose it’s possible that the children didn’t do it and that the witnesses on behalf of the State are just lying about what they observed, but I find it hard to believe that.
There is also the consideration in my mind as to how the children would know about the things that they knew. *** We know during the testimony that the children weren’t exposed to any *** pornographic materials, any magazines. I don’t know how the children could have got that information other than from having experienced it themselves unless, of course, I adopt the theory that Family Advocate has taken these children and told them about these things, made them lie about it, and then made up stories about them trembling and exhibiting the symptoms of fear; and I am unwilling to adopt that theory.
Regarding the efforts and the progress of the parents *** towards the return of the children, the simple question is whether the parents’ failure to admit what’s happened can form a basis for the State to show and prove that they failed to make reasonable efforts and they failed to make reasonable progress. After reflection on that point, it occurs to me that it would be impossible for any agency to treat parents for something that they do not acknowledge has existed. And to that extent I believe that the State has shown and proved by clear and convincing evidence that the parents have failed to make reasonable efforts and failed to correct the conditions which were the basis for the removal of the children.”

The court found that the State proved by clear and convincing evidence all of the allegations in each count of the petitions against both respondents and, therefore, found respondents to be unfit parents.

On June 28, 1990, the court held a hearing to determine the best interests of the children. Pat Graham-Toohey testified that both Tommy and Barbie did not want to live with respondents. Mark Morrison testified that Cathy and Crissy wanted to return home, but they were still angry with respondents for abusing them. Respondents testified that they did not abuse the children, and they took a lie detector test which they passed. After hearing the arguments of counsel for all the parties, the court decided that it would be in the children’s best interests that the parental rights of respondents be terminated. Respondents timely filed a notice of appeal in each cause. The appeals were consolidated on respondents’ motion.

Respondents contend that the orders finding them unfit and terminating their parental rights must be reversed because the State failed to sustain those charges by clear and convincing evidence.

A trial court’s finding of parental unfitness must be given great deference because it had the opportunity to view the witnesses and evaluate their credibility. (In re Henry (1988), 175 Ill. App. 3d 778, 790.) Consequently, a reviewing court will not reverse that decision unless it is against the manifest weight of the evidence. (Henry, 175 Ill. App. 3d at 790.) Parental rights are of the gravest importance and should be terminated only when clear, convincing evidence establishes that the parent is unfit. In re Paul (1984), 101 Ill. 2d 345, 352.

The trial court should not consider the child’s best interests when determining whether the parent is unfit. (In re Adoption of Syck (1990), 138 Ill. 2d 255, 276.) A parent may be found unfit if he or she fails to make reasonable efforts to correct the conditions which were the basis for the removal of the child or fails to make reasonable progress toward the return of the child within 12 months after an adjudication of abused minor. (Ill. Rev. Stat. 1989, ch. 40, par. 1501(D)(m).) Each case of an adjudication of parental unfitness is unique, and comparisons with other causes are not appropriate. Syck, 138 Ill. 2d at 279.

Respondents argue that because the trial court based its finding of unfitness solely on respondents’ refusal to admit the allegations of sexual abuse, respondents are forced into an untenable position wherein they must admit to conduct they have consistently denied or lose all parental rights. Respondents emphasize that the allegations were found “not proven” in a criminal proceeding. According to respondents, their refusal to admit to such conduct is insufficient to support a finding that they did not make reasonable efforts or reasonable progress.

Contrary to respondents’ argument, the appellate court has held that a parent’s failure to acknowledge that sexual abuse has occurred and, therefore, failed to take steps to prevent the children’s exposure to that abuse, is sufficient to support a finding of unfitness by clear and convincing evidence. (In re A.C.B (1987), 153 Ill. App. 3d 704, 708-09.) We agree with the trial court’s assessment that respondents can make no progress in resolving their sexual abuse problems until they admit that they have such problems.

Respondents, however, challenge the existence of abuse, arguing that the allegations were not supported by clear and convincing evidence. The State counters that respondents are estopped from denying the fact of sexual abuse because they did not appeal the finding that the children were abused minors. The State relies on In re Boolman (1986), 141 Ill. App. 3d 508, 512, in support of its estoppel argument.

We agree with respondents that estoppel principles do not apply in this situation. Boolman cited no authority for that proposition of law and did not consider the difference in the burdens of proof between the proceedings. The burden of proof in a proceeding to determine whether a minor is abused is the preponderance of the evidence standard (see Ill. Rev. Stat. 1989, ch. 37, par. 802 — 18(1)), whereas in a proceeding seeking to declare parents unfit, the State must prove the allegations by clear and convincing evidence (see Ill. Rev. Stat. 1989, ch. 37, par. 802 — 29(3)). It is axiomatic that, because the burden of proof in the former proceeding is lower than in the latter proceeding, a court’s ruling on a factual issue when determining whether a child is an abused or neglected minor is not binding in the proceeding to determine the fitness of the parents. (See People v. Golden (1983), 117 Ill. App. 3d 150, 155; see also People v. Zeravich (1965), 64 Ill. App. 2d 150, 157.) Similarly, we reject respondents’ assertion that the acquittal necessarily means that the charges are unfounded. In the criminal prosecution, the trier of fact determined that the State failed to prove beyond a reasonable doubt that respondents committed the charged offenses, whereas in the present proceeding, the State only needed to prove that respondents committed these offenses by the lesser standard of clear and convincing evidence. See In re T.D. (1989), 180 Ill. App. 3d 608, 612.

Respondents complain that the only evidence supporting a finding of abuse was hearsay and that the trial court never heard the children’s testimony. While respondents admit that hearsay is permitted by the Juvenile Court Act (Act), they argue that hearsay testimony alone is insufficient to meet the clear and convincing standard. Citing In re Brunken (1985), 139 Ill. App. 3d 232, respondents maintain that the Act requires corroboration of such hearsay statements and the fact that the children related similar things to different people and that employees of Family Advocate opined that the children exhibited signs of abuse are insufficient corroboration.

Section 2 — 18 of the Act provides that prior statements of the child relating allegations of abuse or neglect are admissible; “[hjowever, no such statement, if uncorroborated and not subject to cross-examination, shall be sufficient in itself to support a finding of abuse or neglect.” (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 18(4)(c).) Although the children did not testify in the hearing to determine respondents’ fitness, the trial court had the transcript of Barbie’s and Cathy’s testimony from the hearing in which they were adjudicated abused minors. Brunken is inapposite because there the child had never testified and, because the allegation arose from a visitation dispute between the parents, the mother had a motive to fabricate allegations of sexual abuse by the father. (See Brunken, 139 Ill. App. 3d 232.) By contrast, in the present case there is no motive for the children to fabricate the allegations of abuse. Furthermore, the statements of Barbie and Cathy were subject to cross-examination and, therefore, did not need to be corroborated. The hearsay statements related by the employees of Family Advocate were corroborated by the girls’ testimony in the prior hearing.

Respondents’ attacks on Barbie’s credibility are insufficient to require reversal. As Pat Graham-Toohey testified, Barbie would have been reluctant to reveal the extent of the abuse while testifying in the prior hearing because respondents were present in the courtroom. In addition, for testimony to be clear and convincing, it need not be entirely void of discrepancies and unimpeached, so long as the testimony is consistent and the discrepancies do not detract from its reasonableness. (People v. Hickox (1990), 197 Ill. App. 3d 205, 213.) Barbie remained consistent in her allegations that she had been sexually abused by respondents and Tommy. We emphasize that Barbie was eight years old at the time she testified.

Even if Barbie’s testimony is discounted, Cathy’s testimony was clear and convincing. Cathy, who was six years old at the time she testified, had difficulty with dates and times; however, she indicated that if she could not remember something, she would not adopt the answer that someone suggested to her. In addition, any discrepancies regarding specific details in the girls’ testimony actually lends credibility to the allegations. The girls testified that they could not remember how old they were when the abuse began, but it was before they were in school, and this activity occurred frequently. At a minimum, then, we may assume the abuse had to have been going on for at least four years. It is not unreasonable to conclude that the girls did not relate the details of every incident which occurred over a four-year period. Moreover, both Barbie and Cathy were asked “ever” questions, and it is not unlikely that they did not understand that they should answer in generalities and instead related details of a specific incident.

The trial court found that the evidence of abuse was clear and convincing, and the only way the trial court could find otherwise was to believe respondents’ “conspiracy theory.” Respondents presented no evidence to establish any motive for Family Advocate or DCFS to indoctrinate the children or make them testify to acts of sexual abuse. The evidence showed that the girls were very afraid and reluctant to divulge information about the abuse and that Tommy was severely disturbed as a result of being sexually abused by his parents. In addition, the trial court was impressed by the children’s knowledge of sexual activity in the absence of any exposure to pornographic materials. Respondents’ ability to pass a lie detector test is not inconsistent with these findings, since it may demonstrate respondents’ deep level of denial. Based on these facts, the finding that the children were sexually abused was not against the manifest weight of the evidence.

Respondents did not dispute that they refused to admit that they abused their children. The trial court, which assessed the credibility of the witnesses, believed the testimony that the children were angry at respondents for refusing to admit to what happened. The trial court found that respondents’ refusal to acknowledge and take responsibility for the sexual abuse precluded any progress towards resolving the family’s problems. We conclude that this clearly and convincingly establishes that respondents have failed to make reasonable efforts to correct the conditions which led to the children’s removal and failed to make reasonable progress towards their return.

The judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

DUNN and NICKELS, JJ., concur.


author: JUSTICE McLAREN

text:
    JOHN COYNE, Plaintiff-Appellee and Cross-Appellant, v. ROBERT H. ANDERSON AND ASSOCIATES, INC., Defendant-Appellant and Cross-Appellee and Third-Party Plaintiff (The Village of East Dundee, Defendant; C.H. Ward Contractors, Inc., Third-Party Defendant).
    Second District
    No. 2—90—0702
    Opinion filed June 20, 1991.

      Michael W. Duffy, James T. Ferrini, P. Scott Ritchie, and Mark J. Seplak, all of Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (Edward M. Kay, of counsel), for appellant.
    Karen A. Keefer, of Bernard R. Nevoral & Associates, Ltd., and Braun, Lynch, Smith & Strobel, Ltd., both of Chicago, and Judge & Knight, Ltd., of Park Ridge (David L. Cwik, of counsel), for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Robert Anderson & Associates, Inc. (Anderson), appeals from the trial court’s order denying Anderson’s motion for a judgment non obstante veredicto. Anderson contends it was not a person “having charge of” the work as a matter of law. Therefore, it could not be found liable under the Structural Work Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 60 et seq.). Anderson also contends the court erred in allowing certain expert testimony to be presented. Plaintiff, John Coyne, cross-appeals from the jury’s award of $215,000 in damages. Coyne contends this award is insufficient as a matter of law.

Anderson is an engineering firm hired by the Village of East Dundee (Village) to prepare plans and specifications for a sewer system. The Village had no engineers on its staff. Anderson prepared the plans and aided the Village in receiving bids and selecting C.H. Ward Contractors, Inc. (Ward), as the contractor for the project.

On September 26, 1985, plaintiff was injured when a trench in which he was working caved in. Plaintiff’s third amended complaint contained four counts. Count I was against Anderson and alleged violations of the Act. Count II was also directed at Anderson and sounded in negligence. Count III alleged violations of the Act and named the Village as the defendant. Count IV was also directed at the Village and sounded in negligence. Plaintiff later voluntarily dismissed counts II and IV, and the cause proceeded on the remaining statutory counts. Anderson filed a third-party complaint seeking contribution from Ward, the plaintiff’s employer, alleging it was Ward’s negligence that caused plaintiff’s injuries. The court entered judgment in favor of Anderson and against Ward on its third-party complaint.

A jury trial was conducted, and the jury returned a verdict in favor of plaintiff and against defendant Anderson for $215,000. The jury found in favor of the defendant Village. The jury answered two special interrogatories. The jury found Anderson was one of the persons having charge of the work. The jury also apportioned 2% of the damages to Anderson and 98% of the damages to Ward. The court granted Anderson’s motion for a remitter and reduced the jury award by $1,900 to $213,100.

Anderson filed a motion for judgment n.o.v., and the trial court denied the motion. Anderson appeals from this order. Plaintiff cross-appeals from the jury’s damage award.

Section 9 of the Structural Work Act provides in part:

“Any owner, contractor, sub-contractor, foreman or other person having charge of the erection, construction *** of any building *** within the provisions of this act, shall comply with all the terms thereof ***.
* * *
For any injury to person or property, occasioned by any wilful violations of this Act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured, for any direct damages sustained thereby ***.” (Ill. Rev. Stat. 1985, ch. 48, par. 69.)

Anderson contends the trial court erred by denying its motion for a judgment n.o.v. Anderson argues that, as a matter of law, it was not a “person having charge of” the work.

Since Anderson contends judgment notwithstanding the verdict should have been entered in its favor, we must review the evidence in the light most favorable to the plaintiff, and unless the evidence overwhelmingly favors a finding that Anderson was not a “person having charge of” the work and no contrary verdict based on that evidence could ever stand, we must not disturb the jury’s verdict. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510.) The determination of whether a person is in charge of the work is a question of fact requiring the evaluation of the totality of circumstances. (Zukauskas v. Bruning (1989), 179 Ill. App. 3d 657, 661.) More than one person or entity may be in charge of the work. Emberton v. State Farm Mutual Automobile Insurance Co. (1978), 71 Ill. 2d 111, 119.

Our supreme court has refused to specifically define the statutory phrase “having charge of,” as this phrase is one of common usage and understanding. (Larson v. Commonwealth Edison Co. (1965), 33 Ill. 2d 316, 323.) The supreme court has noted with approval 10 factors considered by the appellate court in Chance v. City of Collinsville (1983), 112 Ill. App. 3d 6, 11, to resolve the issue of whether someone is “in charge of” work performed. (Simmons v. Union Electric Co. (1984), 104 Ill. 2d 444, 452.) These factors are whether the defendant:

“(1) supervised and controlled the work; (2) retained the right to supervise and control the work; (3) constantly participated in the ongoing activities at the construction site; (4) supervised and coordinated the subcontractors; (5) took responsibility for safety precautions at the jobsite; (6) had authority to issue change orders; (7) had the right to stop the work; (8) owned the equipment at the jobsite; (9) was familiar with construction customs and practices; and (10) was in a position to assure worker safety or alleviate equipment deficiencies or improper work habits.” Zukauskas, 179 Ill. App. 3d at 662.

“[Wjhile the actual exercise of supervision and control over the work and the persons doing it, or the retention of the right to so supervise and control, may be factors bearing on the ultimate factual question of whether an owner is ‘in charge,’ they are not necessary or conclusive factors, nor is either made a sine qua non for liability under the statute.” Larson, 33 Ill. 2d at 322.

The first factors we consider to determine if Anderson was a person “having charge” are whether it supervised and controlled or retained the right to supervise and control the work. It is undisputed Anderson had the right to supervise the work performed. The agreement entered into by the parties provided that, “All materials and each part or detail of the WORK may be subject at all times to observation by the ENGINEER.” Additionally, David Smith, the Village administrator, and Gerald Heinz, an engineer at Anderson, both testified it was Anderson’s responsibility as engineer to supervise the work performed and to make sure the work complied with the specifications of the contract.

There is little evidence Anderson actually “controlled” the work. Anderson did not choose the specific tools or materials used at the jobsite. There is no evidence Anderson had any control over when each particular task at the jobsite would be performed or even if any work at all was to be performed on any given day. Anderson did, however, have the right to request the contractor Ward to discharge a laborer if that worker was “careless, [injcompetent, obstructs the progress of the work, acts contrary to the instructions, or conducts himself improperly.” It appears Anderson monitored compliance with the job specifications by observation and supervision more than it “controlled” the work.

The next factor to review is whether Anderson constantly participated in the ongoing activities at the construction site. Anderson’s employee Heinz visited the jobsite everyday he could to observe the progress of the work. Anderson was a participant in the ongoing activities at the construction site.

The next factor to consider is whether Anderson supervised and coordinated the subcontractors on the job. A review of the record does not disclose the existence of subcontractors on this project. The workers were employees of the contractor Ward.

The next factor to consider is whether Anderson took responsibility for safety precautions at the jobsite. While Heinz testified “everyone is concerned about safety,” the contract provided, “The duty of the ENGINEER to conduct observations and construction review of the CONTRACTOR’S performance is not intended to include review of the adequacy of the CONTRACTOR’S safety measures in, on or near the construction site.” (Emphasis added.) Additionally, the specifications provided, “CONTRACTOR shall comply with State and Federal safety regulations.” Anderson did have the responsibility to monitor Ward’s compliance with the specifications.

The next factor to consider is whether Anderson had the authority to issue change orders. It is clear the contract reserved to the Village, as owner, the ability to issue change orders. Both Smith and Heinz testified Anderson did not have the right to issue change orders. The evidence indicated Anderson could propose or recommend changes to the Village.

The next factor we consider is whether Anderson had the right to stop the work. The specifications vested the right to stop the work in the Village as owner. Furthermore, Heinz testified Anderson did not have the right to stop work. Anderson could make recommendations to the Village in this regard but it was the Village’s decision.

It is undisputed Anderson did not own the equipment used at the jobsite.

The next factor to consider is whether Anderson was familiar with construction customs and practices. It is clear from the record Anderson, as an engineering firm, is familiar with construction methods.

The final factor to analyze is whether Anderson was in a position to assure worker safety or alleviate equipment deficiencies or improper work habits. The only evidence related to this point is the fact Anderson could demand the discharge of an employee for carelessness or conducting himself improperly, and Anderson was to monitor compliance with the contract specifications. There is no evidence Anderson had anything to do with selecting tools, equipment, or construction methods.

Summarizing the above factors as they apply to this case, it seems that Anderson did continually supervise the work and had knowledge of construction practices. Additionally, Anderson could have a worker removed from the project for cause. Furthermore, there is some evidence elicited from the Village that the Village had given any rights it had under the contract to Anderson. The question is whether the presence of these factors is sufficient to support the jury’s finding that Anderson was a “person having charge of” the work.

While there is not a wealth of evidence indicating Anderson had charge of the work, there is some evidence. As stated previously, more than one person can be in charge of the work. (Emberton, 71 Ill. 2d at 119.) This court cannot determine that, when reviewing the evidence in the light most favorable to the plaintiff, the jury’s finding that Anderson was a person in charge of the work is unable to stand. The court did not err in denying Anderson’s motion for a judgment n.o.v.

Anderson next contends the court erred in allowing Morely Brick-man to testify as plaintiff’s expert witness. Anderson argues Brick-man was not an expert, and Brickman’s opinion testimony went to the ultimate issue of fact in the case, that being whether Anderson was “a person having charge of” the work.

A witness will be allowed to testify as an expert if his experience and qualifications afford him knowledge which is not common to lay persons and where such testimony will aid the trier of fact in reading its conclusion. (People v. Jordan (1984), 103 Ill. 2d 192, 208.) The trial court has broad discretion in determining whether or not a person has been qualified as an expert. Galindo v. Riddell, Inc. (1982), 107 Ill. App. 3d 139.

While a review of the record provides evidence establishing Brick-man as an expert, the opinions rendered by Brickman had nothing to do with his expertise as a forensic engineer. During a sidebar conducted pursuant to defendant’s objection regarding Brickman’s qualifications, counsel for plaintiff reiterated, “The only issue in this case as to the engineer is what role he played in his capacity on this jobsite during the construction phase.” Additionally, during a prior hearing on Anderson’s motion in limine, plaintiff’s counsel informed the court, “Plaintiff cannot ask his expert, nor will he, whether he holds an opinion as to whether Robert Anderson & Associates was in charge of the work. That’s the question for the jury.” However, Brick-man was asked, inter alia, upon direct examination, the following questions and gave the following answers:

“Q. In your opinion, based upon your review of the materials that we have discussed, did this engineer on this project have the authority or control to say to this contractor sheet, or shore, or support this trench?
* * *
A. I believe the engineer in this particular case did.
* * *
Q. Upon your review of the evidence in this case, what role do you believe this engineer had on this project with regard to this particular specification which he required, 2.03, Width of Excavation?
* * *
A. It is my opinion that the engineer had the authority and the duty to enforce these specifications. That’s what he was getting paid to do.”

The defendant objected to both of these questions. The court overruled the objections at the time but later informed the jury the court had erred in allowing the witness to testify to “the ultimate issue for [the jury] to decide.” The court admonished the jury to disregard this testimony.

Brickman also testified as follows on direct examination:

“Q. If you were the engineer on this project and you were faced with the evidence of this trench as was described in the diary and that photograph, what would you have done?
* * *
A. Given what I believe to be the situation from the evidence given me, I wouldn’t have allowed anybody to go down in it, and I would have insisted that some protection be provided.
* * *
Q. Other than the matters we have already discussed which relate to this particular accident of John Coyne, should the engineer, acting as the policeman, have done anything to prevent the situation from occurring?
A. Well, he could have insisted with the contractor that the contractor comply with the specifications in terms of the sand box, or sheeting, or protecting the trench, and in the absence of such compliance, and continuation of the contractor, tell him he wasn’t going to approve payment, or if payment was insisted, the village was going to get a credit for non-conformance with the contract.
Q. As the policeman on this project, to use Mr. Heinz’s term, do you believe, in your opinion, Mr. Heinz had the responsibility where he encounters this unstable soil condition to require that instability to be stabilized before any pipe is being laid,—
* * *
A. Before any individual goes down to lay any pipe in the ground, yes.”

As plaintiff admitted, the issue in this case was the responsibilities Anderson had under the contracts and procedures carried out in this construction project. This was a factual determination to be made by the jury. Brickman’s testimony was improper for two reasons. First, as previously noted, our supreme court has refused to define the phrase “having charge of,” as it is one of common usage and understanding. (Larson, 33 Ill. 2d at 323.) Expert testimony is improper when the inquiry regards an area within the common knowledge of the average juror. (Gutkowski v. Stover Brothers Trucking Co. (1976), 42 Ill. App. 3d 257, 261.) It is clear Brickman was called upon to determine Anderson’s legal duties as the engineer with respect to this construction project. This is a legal conclusion the jury was clearly able to make without Brickman’s testimony, expert or otherwise. The trial court erred in allowing plaintiff to question Brickman regarding Anderson’s legal duties under the Act and what Anderson “could have” done.

Secondly, much of Brickman’s testimony concerned reviewing specific provisions in the contract and rendering an opinion as to whether Anderson breached the contract with respect to each provision. Brick-man was not certified as an expert in contract interpretation. He possessed no knowledge in this area that a lay person does not possess. The jury was to examine the totality of the circumstances and determine if Anderson was a person “having charge of” the work. It was improper for Brickman to be questioned and render opinions on this subject.

Plaintiff claims the trial court cured any error by informing the jury to disregard the testimony. While a court may cure a defect in this manner (see Carlasare v. Wilhelmi (1985), 134 Ill. App. 3d 1, 5-6), we find the court’s actions were not sufficient in this case. Brick-man should not have been allowed to testify as he did in this case. While we have, due to our required standard of review, upheld the jury’s finding that Anderson was a person having charge of the work, there was very little evidence presented establishing Anderson was in charge of this work. We are not confident the jury would have come to the same conclusion had it not heard these incompetent opinions by an “expert.” We determine it was prejudicial error for the court to allow Brickman to testify as to Anderson’s responsibilities on the project and whether he fulfilled them. Therefore, Anderson is entitled to a new trial.

Due to the disposition of the above issue, plaintiff’s cross-appeal alleging insufficient damages need not be addressed at this time.

For the above stated reasons, the judgment of the circuit court of Kane County is reversed, and the cause is remanded for a new trial.

Reversed and remanded.

BOWMAN and GEIGER, JJ., concur.