author: JUSTICE HOWERTON

text:
    VICTOR VIDAL, Petitioner-Appellant, v. THE HUMAN RIGHTS COMMISSION et al., Respondents-Appellees.
    Fifth District
    No. 5-90-0484
    Opinion filed December 27, 1991.
    Rehearing denied February 4, 1992.

      Edward L. Welch, of Welch & Bush, P.C., of East St. Louis, for petitioner.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Tanya Solov, Assistant Attorney General, of Chicago, of counsel), for respondent Human Rights Commission.
    Gerald M. Richardson, of Greensfelder, Hemker & Gale, P.C., of St. Louis, Missouri, for respondent St. Mary’s Hospital of East St. Louis, Inc.
   JUSTICE HOWERTON

delivered the opinion of the court:

Petitioner, who is black and from Nigeria, filed a complaint with the Illinois Human Rights Commission (Commission) accusing respondent, St. Mary’s Hospital of East St. Louis, of employment discrimination. The complaint alleged disparate treatment, i.e., that the hospital fired petitioner for neglect of duty but did not fire American employees, whether black or white, for similar offenses.

An administrative law judge ruled in petitioner’s favor, but the Commission reversed. Petitioner appealed, claiming: (1) the Commission failed to give proper weight to the findings of the administrative law judge as required by section 8A — 103(E)(2) of the Illinois Human Rights Act (Ill. Rev. Stat. 1989, ch. 68, par. 8A — 103(E)(2)), namely that the Commission shall adopt the hearing officer’s findings of fact unless they are against the manifest weight of the evidence; and (2) the administrative law judge erred when he refused to admit a newspaper article that detailed petitioner’s dedication to the hospital during a blizzard. We vacate the Commission’s order and remand.

The order and allocation of proofs in an employment discrimination case are as follows: The employee first must establish, by a preponderance of the evidence, a prima facia case of discrimination. If this is accomplished, the burden of producing evidence shifts to the employer to articulate a legitimate, nondiscriminatory reason for its action. If the employer produces evidence of a legitimate, nondiscriminatory reason, then the burden of production shifts back to the employee, who must then prove, by a preponderance of the evidence, that the employer’s stated reason was merely a pretext for discrimination. (See McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817; refined in Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089; Habinka v. Human Rights Comm’n (1989), 192 Ill. App. 3d 343, 548 N.E.2d 702.) Thus, the employee carries the burden of persuading the trier of fact that the employer discriminated against him throughout the entire proceeding. Burdine, 450 U.S. at 253, 67 L. Ed. 2d at 215,101 S. Ct. at 1093.

In the case at bar, the administrative law judge (ALJ) and the Commission agreed that petitioner made a prima facie case of disparate treatment and that the hospital stated legitimate nondiscriminatory reasons for firing petitioner. The ALJ and the Commission disagreed, however, on the issue of pretext.

After petitioner made a prima facie case and after the hospital articulated nondiscriminatory purposes for its action, petitioner proffered evidence of pretext, namely, that American employees, whether black or white, charged with similar neglect of duty were not fired.

The ALJ ruled that the hospital’s reasons for firing petitioner were merely a pretext for discrimination, finding the distinctions that the hospital made between petitioner and his fellow employees, e.g., that petitioner’s misconduct jeopardized patient care, were not credible because petitioner’s fellow employees’ misconduct also jeopardized patient care.

The Commission, citing Kindred v. Human Rights Comm’n (1989), 180 Ill. App. 3d 766, 536 N.E.2d 447, reversed the ALJ’s finding of pretext stating that “it is only when an employer’s decision-making is so obviously wrong that legitimate explanations for the decisions are unbelievable that the Commission may step in and infer that an illegal, discriminatory motivation was behind the employment transaction at issue.” This is a misstatement and a misapplication of the correct standard. We, therefore, vacate the Commission’s order and remand for further review consistent with the proper standard.

An employee establishes pretext by a preponderance of the evidence (see McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817; Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089; Habinka v. Human Rights Comm’n (1989), 192 Ill. App. 3d 343, 548 N.E.2d 702) and may do so in one of two ways: “either directly by persuading the court that a discriminatory purpose more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” (Emphasis added.) (Burdine, 450 U.S. at 256, 67 L. Ed. 2d at 217, 101 S. Ct. at 1095.) The operative words of the above-quoted Burdine language are “directly” and “indirectly,” because, by their use, the Supreme Court instructs us that pretext may be shown: (1) “directly,” e.g., by the employee offering evidence of pretext that, when weighed against the employer’s statement of nondiscriminatory purpose, tilts the scales ever so slightly in the employee’s favor; or (2) “indirectly,” e.g., by showing through cross-examination that the employer’s statement of nondiscriminatory purpose is unworthy of belief. To say, however, as did the Commission, that pretext is shown “only when an employer’s decision-making is so obviously wrong that legitimate explanations for the decisions are unbelievable” is a misstatement, for it imposes a higher standard than prescribed in Burdine. Thus, the Commission erred.

We recognize that the Human Rights Act limits our function to ascertaining whether the final decision of the Commission is against the manifest weight of the evidence. (Ill. Rev. Stat. 1989, ch. 68, par. 8 — 111(A)(2); Habinka v. Human Rights Comm’n (1989), 192 Ill. App. 3d 343, 548 N.E.2d 702.) We believe, however, that neither the Human Rights Act, nor cases interpreting it, compel us to ignore the Commission’s application of an improper burden of proof upon the employee. Therefore, we vacate the Commission’s order and remand this matter for review consistent with the proper burden for proving pretext set forth in Texas Department of Community Affairs v. Bur- dine (1981), 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089, and the proper standard of review set forth in section 8A — 103(E)(2) of the Illinois Human Rights Act (Ill. Rev. Stat. 1989, ch. 68, par. 8A— 103(E)(2) (“[t]he Commission shall adopt the hearing officer’s findings of fact if they are not against the manifest weight of the evidence”)).

Petitioner’s second claim, that the ALJ erred by not admitting into evidence a newspaper article detailing his dedication to the hospital during a snowstorm, is waived because he filed no objection with the Commission. Glassworks, Inc. v. Human Rights Comm’n (1987), 164 Ill. App. 3d 842, 518 N.E.2d 343.

Vacated and remanded.

GOLDENHERSH, P.J., and CHAPMAN, J., concur.


source: Caselaw Access Project

author: JUSTICE CHAPMAN

license: Public Domain

text:
    CENTRAL ILLINOIS PUBLIC SERVICE COMPANY, Plaintiff-Appellee, v. JOHN MOLINAROLO, Defendant-Appellant.
    Fifth District
    No. 5 — 91—0058
    Opinion filed January 8, 1992.

      Harold B. Gulley, Jr., of Raleigh, for appellant.
    Craig S. Burkhardt and Liesl G. Smith, both of Sorling, Northrup, Hanna, Cullen & Cochran, Ltd., of Springfield, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Central Illinois Public Service Company (CIPS) brought this action to recover $12,188.25 allegedly due under deferred-utility-payment agreements with three businesses which are partially owned by John Molinarolo. Molinarolo denies personal liability and claims that he signed the agreements in a representative capacity. The trial court found John Molinarolo personally liable on the deferred-payment agreements and rendered judgment against him. Molinarolo appeals. We affirm.

We note parenthetically that this case was decided by the trial court based on the stipulation and briefs submitted by the parties.

Molinarolo is an officer of the Muddy Supply Corporation and owns one-third of its corporate stock. Muddy Supply Corporation owns Village Laundry and Gateway Motor Inn. In March 1989, the three businesses fell into arrears in payments to CIPS. Deferred-payment agreements as to the three businesses were entered into, and each of them provided that the arrearages would be paid over a four-month period. Each of the payment agreements was signed “John Molinarolo, Treas.” The arrearages were not paid, and on November 27,1989, CIPS filed a complaint against John Molinarolo.

The first issue on appeal is whether the trial court erred in refusing to acknowledge that CIPS made a judicial admission that the payment agreements were signed in a representative capacity.

In his answer to CIPS’ complaint, Molinarolo made admissions and denials to each of the averments. Under a separate paragraph entitled “Further Answering,” he stated:

“The Deferred Payment Agreements *** clearly indicate that JOHN MOLINAROLO signed said Deferred Payment Agreements as a corporate officer and not as an individual in that the documents were signed ‘John Molinarolo, Treas.’; the responsibility, if any, for said accounts is and are corporate obligations and are not the responsibility of JOHN MOLINAROLO individually.
WHEREFORE, the Defendant, JOHN MOLINAROLO, would ask that said Complaint be dismissed with prejudice and for his costs.”

Molinarolo argues that because he asserted new matter by way of defense in his answer, and because a reply was not filed by the plaintiff (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 602), the new allegations were admitted (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 610). While defendant aptly refers to those sections of the Code of Civil Procedure which state these general propositions, his application of these sections to the facts at bar is inappropriate.

The complaint in this case seeks to hold defendant personally liable on the deferred-payment agreements. The complaint itself negates the affirmative defense such that no reply was necessary. It is well settled that where a complaint negatives the allegations of an answer or subsequent pleading, a reply is unnecessary. (Adams v. Zayre Comp. (1986), 148 Ill. App. 3d 704, 499 N.E.2d 678; Skive v. Skive (1978), 57 Ill. App. 3d 754, 373 N.E.2d 557; see also 134 Ill. 2d R. 136(b).) We hold that the trial court did not err in refusing to find that CIPS admitted the allegation that Molinarolo did not sign the agreements in an individual capacity.

The other issue for our review is whether the trial court erred in concluding that Molinarolo is personally liable for the debt. With the exception of the name of the business and the dollar figures, each of the deferred-payment agreements provides as follows:

The primary goal in construing a contract is to give effect to the intention of the parties involved. Where no ambiguity in the terms of the agreement exists, the parties’ intent must be determined solely from the language used. (Schek v. Chicago Transit Authority (1969), 42 Ill. 2d 362, 364, 247 N.E.2d 886, 888.) The agreement should be given a fair and reasonable interpretation based upon a consideration of all of its language and provisions. (Tatar v. Maxon Construction Co. (1973), 54 Ill. 2d 64, 67, 294 N.E.2d 272, 273-74.) To interpret the agreements at bar, we look to the governing statutory provision of section 3 — 403(2) of the Uniform Commercial Code:

“An authorized representative who signs his own name to an instrument
(a) is personally obligated if the instrument neither names the person represented nor shows that the representative signed in a representative capacity;
(b) except as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show that the representative signed in a representative capacity ***.” Ill. Rev. Stat. 1989, ch. 26, par. 3 — 403(2).

In the instant case, the deferred-utility-payment agreements name the businesses which Molinarolo claims he represents. Thus, the first prong of section 3 — 403(2)(a) suggests that Molinarolo signed the agreements in a representative capacity. Moving to the second prong of section 3 — 403(2)(a), the signature line contains Molinarolo’s signature followed by the designation “Treas.” When an agent signs a document and indicates next to his signature his corporation affiliation, then, absent evidence of contrary intent in the document, the agent is not personally bound. Knightsbridge Realty Partners, Ltd-75 v. Pace (1981), 101 Ill. App. 3d 49, 53, 427 N.E.2d 815, 819.

These principles suggest that Molinarolo signed the agreements in a representative capacity. However, in order to fairly interpret the agreement, we need to examine the language of the entire instrument. (Tatar, 54 Ill. 2d at 67, 294 N.E.2d at 273-74.) Contained within the body of the deferred-utility-payment agreements, next to the name of the businesses, is John Molinarolo’s name in parentheses. For instance, the agreement involving the Muddy Supply Corporation provides:

“As an inducement for Central Illinois Public Service Company, hereinafter referred to as “Company”, to furnish electric and/ or gas service, I, Muddy Supply Corp (John Molinarolo), hereby agree to pay any and all bills not presently paid for gas and/or electric service in accordance with the terms and conditions of this agreement.”

“[WJhere the language in the body of the document conflicts with the apparent representation by the officer’s signature, an issue of fact as to the agent’s intent arises ***.” (Wottowa Insurance Agency, Inc. v. Bock (1984), 104 Ill. 2d 311, 316, 472 N.E.2d 411, 413, citing Knightsbridge, 101 Ill. App. 3d at 53, 427 N.E.2d at 819.) The deferred-utility-payment agreements name the businesses represented, but it is not clear whether Molinarolo signed the agreements in a representative capacity. Ill. Rev. Stat. 1989, ch. 26, pars. 3 — 403(2)(a), (b).

As noted at the outset of this opinion, the parties agreed to allow the trial judge to decide the case based solely upon the stipulation of facts and the briefs submitted by the parties. The stipulation of facts does not in any way delve into what the intent of the parties was when the agreements were entered into. In addition, the briefs submitted to the trial court did not enlighten the court as to the parties’ intentions. Because the instruments are ambiguous as to the signer’s obligation on the debt, it would have been proper to elicit parol evidence to discern the parties’ intentions as to whether Molinarolo signed in his personal capacity or as a representative. Molinarolo argues on appeal that because the agreements do not fit precisely into any of the subsections of section 3 — 403, extrinsic evidence would have been admissible to determine the capacity in which he signed the agreements. Molinarolo concedes that he did not introduce any extrinsic evidence on the issue of capacity because he wanted to take advantage of the alleged admission resulting from CIPS’ failure to reply to his answer.

It is axiomatic that there can be no error in failing to receive evidence that was not offered. (Skokie Gold Standard Liquors, Inc. v. Joseph E. Seagram & Sons, Inc. (1983), 116 Ill. App. 3d 1043, 452 N.E.2d 804.) While Molinarolo claims that the trial court erred in not considering parol evidence, the record reveals that Molinarolo made no offer of proof regarding what the substance of the alleged excluded testimony would be. An offer of proof may have removed the ambiguity, but none was made; therefore, the issue was not properly preserved for review. (See Pioneer Hi-Bred Corn Co. v. Northern Illinois Gas Co. (1975), 61 Ill. 2d 6, 329 N.E.2d 228.) The stipulation of facts and the documents included in the record submitted to the judge without any further evidence allowed the conclusion made, namely, that Molinarolo signed in an individual capacity. Under the circumstances and in the absence of such an offer, we cannot conclude that reversible error occurred.

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

Affirmed.

GOLDENHERSH, P.J., and RARICK, J., concur.


author: JUSTICE HARRISON

text:
    KENNETH JOHNSON et al., Plaintiffs-Appellants, v. JAMES MAY et al., Defendants-Appellees.
    Fifth District
    No. 5 — 90—0401
    Opinion filed January 10, 1992.

      Gordon Lambert, of Harris & Lambert, of Marion, for appellants.
    Hinshaw & Culbertson, of Chicago (Stephen R. Swofford, Dennis J. Graber, and Gary J. Bazydlo, of counsel), for appellees.
   JUSTICE HARRISON

delivered the opinion of the court:

Plaintiff Kenneth Randall Johnson (Randy) brought an action in the circuit court of Franklin County to recover damages for personal injuries he sustained when his tractor-trailer was hit at an intersection by a truck which had failed to yield the right-of-way to him in violation of section 11 — 904(b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 904(b)). In the same action, plaintiff Linda Johnson, Randy’s wife, asserted a claim for loss of consortium. Named as defendants were James May, the driver of the second truck, and Shapiro Brothers of Illinois, Inc., the second truck’s owner. Following a jury trial, a verdict was returned in favor of Randy. He was found to have sustained $43,609.60 in damages, but the jury concluded that he was 50% contributorily negligent. It therefore reduced his recovery to $21,804.80. Linda received nothing. On her claim, the jury found for defendants. The circuit court entered judgment on the jury's verdicts and denied plaintiffs' post-trial motion. Plaintiffs now appeal. We affirm in part and reverse and remand in part.

Plaintiff Randy Johnson was a professional truck driver. The record before us established that on the morning of December 21, 1987, he was driving a tractor-trailer loaded with coal along Illinois Route 154 near the town of Sesser. Route 154 is a two-lane, undivided highway. Each lane is 12 feet wide. At the location relevant here, the highway runs east to west. It is intersected by County Road 800E, which cuts across it from north to south at a 90-degree angle. At the intersection between these two roads, County Road 800E is marked by stop signs. Route 154 is not. This means that Route 154 is the preferential highway, and drivers approaching it from County Road 800E have a statutory duty to stop and to “yield the right-of-way to any vehicle which has entered the intersection from [the other] roadway or which is approaching so closely on the roadway as to constitute an immediate hazard during the time when the driver is moving across or within the intersection.” Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 904(b).

Randy approached the intersection with County Road 800E from the west, traveling at a speed of between 50 and 55 miles per hour, which was within the legal limit. As Randy’s tractor-trailer entered the intersection, it was struck by a truck driven by defendant James May, who had been proceeding north along County Road 800E. The initial point of contact between the two vehicles was at the left front fender of May’s truck and the right front fender of Randy’s tractor-trailer. An accident-reconstruction expert testified that Randy’s truck was astride the center line of Route 154 when it was hit. He believed that May had run the stop sign and that the vehicles had hit where they did because Randy had swerved at the last second to avoid the crash. This scenario found corroboration in the testimony of plaintiff Linda Johnson, who reported hearing May admit to his wife that he had run the stop sign.

May’s version of the events leading to the collision was somewhat different. He testified that he did stop at the stop sign before proceeding into the intersection and denied ever having said otherwise. What he did not deny is that he failed to yield the right-of-way to Randy’s tractor-trailer, as he was obligated to do. Evidently, the reason he did not yield the right-of-way was simply because he did not see Randy coming. Why he did not see him was never explained, for May claimed that he did not remember the accident. May admitted, however, that it was a clear day, that there were no obstructions to his vision, and that he was completely familiar with the road.

The force of the collision was so severe that Randy’s rig was totally demolished. Randy was pinned under the debris, facedown, for over an hour and a half. Firefighters were unable to cut him free using the “jaws of life,” and he was extricated only after a crane was brought from a nearby mine to lift the wreckage off of him. From the crash site, Randy was taken to the hospital, where he remained for five days. An otolaryngologist who treated him in the emergency room testified that Randy had a laceration in his right eyelid, two lacerations on his forehead, abrasions on the left side of his temple, a laceration on his scalp, a cut lip, and a broken nose. The doctor sutured the lacerations on Randy’s face and lip and straightened his nose. The various cuts healed properly, although Randy was left with some permanent scars. Randy continued to have a problem with a deviated septum, and the otolaryngologist recommended corrective surgery. By the time of the trial, however, Randy had not yet had this done.

Randy was also treated by an orthopaedic surgeon, who initially diagnosed plaintiff as having a fracture of the right humerus, which is the long bone which extends from the shoulder to the elbow. The same orthopaedic surgeon saw Randy again approximately one month after the accident, when he complained of having impaired motion in his right shoulder. Upon further examination, the surgeon discovered that Randy also was suffering from a fracture to his shoulder blade. There was no dispute that this injury was also caused by the accident.

While none of Randy’s physical injuries was particularly grave, he continued to complain of persistent pain throughout his body. At the same time, friends, family members and associates testified that he was completely changed by the accident. Where previously he had been very active and hard working, he was now listless and seemed always to be in pain and discomfort. He walked and talked slowly. He became short-tempered and combative. He ceased being the affectionate and caring person he once was. He was no longer able to perform even relatively simple household maintenance tasks. Most of his time was spent lying on the couch or in bed. His physical relationship with his wife ended, and they no longer had sexual relations.

In the months and years that followed, Randy sought treatment from a succession of doctors in an attempt to alleviate his suffering. One of the first of these was Dr. Larry Jones, a family practitioner. Jones recommended physical therapy for Randy’s shoulder and sent him to a neurologist named Dr. Modali, who reported that Randy had no objective abnormalities. Jones continued to see Randy in early 1988, but his complaints did not abate. Jones’ diagnosis was that, as a result of the accident, Randy was suffering from posttraumatic stress disorder, a psychiatric disorder which afflicts some people after they have suffered a traumatic experience outside the realm of normal human experience, such as an accident or explosion. Jones testified that Randy actually had one of the worst cases of the disorder that he had ever seen. According to Jones, the disorder was so severe that Randy was totally disabled. Jones prescribed antidepressants and pain medication and referred him to a psychologist named Dr. Gordon Plumb.

Plumb, a licensed clinical psychologist, first saw Randy on March 7, 1988. He took Randy’s history, evaluated his symptoms, and administered the Minnesota Multiphasic Personality Inventory Test to him. Based upon the test results, the history, and the symptoms he observed, Plumb confirmed Jones’ diagnosis that Randy was suffering from posttraumatic stress disorder as a result of the accident. According to Plumb, it was a “very severe case,” “the most severe case *** I have seen.”

Plumb subsequently had approximately three dozen sessions with Randy. He testified that Randy’s condition was not necessarily permanent but that it was extremely unlikely that he would ever return to any occupation involving driving trucks or cars. In fact, he opined that Randy was permanently disabled from returning to work as a truck driver. In his view, Randy would require weekly sessions with him for one to two years in the future. However, he also recommended that Randy participate in a pain clinic on an inpatient basis. In his view, a successful stay at a pain clinic could reduce the course of Randy’s psychological treatment by six months to a year.

In addition to sending Randy to Dr. Plumb, Dr. Jones also referred him to Dr. Philip Hurley, an orthopaedic surgeon. As he had with the other doctors, Randy presented himself to Dr. Hurley complaining of pervasive pain. He also reported having the shakes, being afraid of driving, being irritable, and having muscle twitches. Hurley’s examination disclosed the fractures in Randy’s humerus and collar bone. He also discovered the scar tissue caused by the fractures and evidence of early reflex sympathetic distrophy. He subsequently found that Randy had some mechanical low-back pain. In Hurley’s opinion, however, Randy’s most serious problem was his extreme emotional anxiety, and he told Randy that he could not do more to help him until he got help with those problems. As had Plumb, Hurley recommended that Randy receive inpatient treatment at a pain clinic. He prescribed anti-inflammatory and antianxiety medications. Hurley shared the other doctors’ view that Randy was disabled and that he could never return to work as a truck driver, although he added that "with treatment Randy would probably improve enough so that he would be able to “return to some source of labor.”

A year after he first saw Dr. Jones, Randy also sought treatment from another family physician whose name was Dr. Ewell. Ewell diagnosed Randy as having a chronic back sprain, which was caused by the accident. In his view, the back sprain would eventually resolve to the point that it would not impair normal activities. Ewell also diagnosed Randy as suffering from depression and posttraumatic stress disorder. The posttraumatic stress disorder, in Ewell’s view, was Randy’s most serious problem. He opined that it would require extensive psychiatric therapy, including a minimum of four to six weeks of inpatient treatment and outpatient treatment for a couple of years after that. Ewell testified that Randy was disabled to work and that without proper care he might never be able to rejoin the work force. He stated that with proper treatment, Randy might be able to do something with himself, although he would be surprised if he ever drove a tractor-trailer again. He told the jury that Randy’s marital and family problems were related to the accident, and that his posttraumatic stress disorder was caused by the accident.

Dr. Ewell referred Randy to Dr. Ronald Kelley, a psychiatrist. Kelley first saw Randy on May 26, 1989. This initial visit was followed by four subsequent treatment sessions in June, July and August of 1989. Based on these sessions, Dr. Kelley also diagnosed Randy as suffering from posttraumatic stress disorder. Kelley confirmed that posttraumatic stress disorder is a recognized psychiatric disorder according to the American Psychiatric Association, and he noted research which showed that vehicular accidents, such as the one Randy was involved in, are probably the most common peacetime causes of the disorder.

Kelley felt that Randy was suffering from a chronic and severe form of the disorder and that he also had a depressive disorder. He placed Randy on medication, including, in succession, Prosac and Bus-par, and he recommended that Randy receive at least three months of inpatient psychiatric treatment. Kelley believed that after such treatment, Randy would need additional outpatient care, including monthly medication checks and weekly psychotherapy sessions, for “anywhere from one to three years.” Kelley opined that with such treatment, Randy’s prognosis would improve and that there was a 50% probability that he would be able to return to some kind of job, provided that it was routine and not stressful. In his view, however, Randy would never be able to drive a truck again professionally.

In the year leading up to the accident, Randy earned approximately $23,000. After the accident, and up to the time of the trial, which was held in January of 1990, he had not been able to return to any kind of work. His total medical bills already amounted to over $14,000, and the evidence showed that his future medical expenses could be substantially greater. Dr. Kelley testified, for example, that if Randy were to undergo the inpatient psychiatric treatment he recommended, the cost would be up to $1,000 per day, seven days a week, for the prescribed three-month period. This alone would amount to over $90,000.

Following the close of the evidence, the jury returned a verdict in favor of Randy, but found that he had sustained a total of only $43,609.60 in damages. It itemized these damages as $0 for disability, $2,000 for disfigurement, $10,000 for pain and suffering, $8,609.60 for past and future medical care, and $23,000 for lost earnings. The jury further determined that Randy was 50% contributorily negligent and therefore reduced his recoverable damages by half, to $21,804.80. The jury returned a verdict against Linda Johnson and in favor of defendants on her loss of consortium claim. Judgment was entered on the verdict, and plaintiffs’ posttrial motion for judgment notwithstanding the verdict or, in the alternative, a new trial was denied. Plaintiffs now appeal.

On this appeal, plaintiffs first argue that the circuit court erred in denying their motion for judgment notwithstanding the verdict on the issue of Randy’s contributory negligence. Judgments notwithstanding the verdict, as with directed verdicts, should be entered only in those cases where all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the moving party that no contrary verdict based on that evidence could ever stand. (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 139-40, 554 N.E.2d 223, 226.) With respect to the issue of contributory negligence, we believe that standard has been met here.

May does not deny that he failed to yield the right-of-way to Randy as required by section 11 — 904(b) of the Elinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 904(b)). As indicated at the outset of this opinion, that statute specifically provides that the driver of a vehicle approaching a stop at an intersection indicated by a stop sign is obligated to stop and, after having stopped, to “yield the right-of-way to any vehicle which has entered the intersection from another roadway or which is approaching so closely on the roadway as to constitute an immediate hazard during the time when the driver is moving across or within the intersection.” (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 904(b).) There were no facts to palliate May’s negligence in failing to do this. He simply was not paying attention to what he was doing. By his own admission, he did not even see Randy before pulling out in front of him.

At trial May nevertheless claimed that Randy should share a substantial share of the responsibility for the accident because he was not keeping a proper lookout either. We agree that Randy did not have an absolute right to drive into the intersection at will. Even though the driver on a preferential road has the right-of-way, he may not proceed into obvious danger. (Thomas v. Lynch (1978), 59 Ill. App. 3d 542, 545, 375 N.E.2d 859, 861.) Rather, he has a duty to keep a proper lookout, observe due care in approaching and crossing intersections, and drive as a prudent person would to avoid a collision when danger is discovered or, by the exercise of reasonable care, should have been discovered. (Salo v. Singhurse (1989), 181 Ill. App. 3d 641, 643, 537 N.E.2d 339, 341.) We fail to see, however, how Randy could possibly be found to have breached this duty.

As he approached the intersection with County Road 800E, a secondary road controlled by a stop sign, Randy had the right to expect that May, who was approaching along that road, would obey the stop sign and yield the right-of-way. (See Thomas v. Lynch (1978), 59 Ill. App. 3d 542, 545, 375 N.E.2d 859, 861.) Under his own version of the facts, May did, in fact, stop at that stop sign. Accordingly, even if he had been more vigilant, Randy would have had no possible reason to believe that any danger existed until May moved forward again and into the intersection. By that time, however, there was nothing that Randy could reasonably have done to avert the collision.

Although there was no direct evidence as to May’s speed, the reconstruction expert testified that he was probably traveling five miles per hour or less at the time he hit Randy’s vehicle. This means that from the time May began to move forward from the stop sign until the time he spanned the 12-foot or so distance to the center of Route 154 where the collision took place, less than three seconds elapsed. At the beginning of that brief interval, Randy was less than 242 feet away from the point of impact. We infer this based on the speed he was traveling, which the undisputed evidence showed to be not more than 55 miles per hour, a rate equivalent to 80.67 feet per second. Given that the reaction time necessary to stop a motor vehicle is at least a second (Seeds v. Chicago Transit Authority (1950), 342 Ill. App. 303, 306-07, 96 N.E.2d 646, 648, appeal dismissed in part, judgment rev’d in part on other grounds (1951), 409 Ill. 566, 101 N.E.2d 84), Randy would thus have been left with less than 162 feet in which to stop after May began to pull forward into the intersection. It requires no special expertise to realize that a tractor-trailer loaded with coal, traveling at or near 55 miles per hour, is incapable of being stopped in so short a distance. Accordingly, even if Randy had kept a better lookout, the collision would still have taken place.

We are mindful the great deference we must accord to a jury’s determination of comparative negligence. (See Rainey v. City of Salem (1991), 209 Ill. App. 3d 898, 905, 568 N.E.2d 463, 468.) That deference, however, should not be regarded as an invitation to abandon reason. Even when all of the evidence is viewed in the light most favorable to defendants, the prevailing parties, there is no way Randy could rationally be regarded as having contributed in any way to the accident. The sole cause for that accident was May’s negligence. (See Salo v. Singhurse (1989), 181 Ill. App. 3d 641, 643-44, 537 N.E.2d 339, 341.) We therefore reverse the judgment to the extent that it apportioned 50% of the fault to Randy. May’s fault is 100%. Randy’s is 0%.

Randy next asks that we set aside the jury’s damage award. It is axiomatic that a jury’s finding of damages will not be overturned unless the damages are manifestly inadequate, proven elements of damages were ignored, or the amount awarded bears no reasonable relationship to the loss suffered. (Zitzmann v. Miller (1990), 194 Ill. App. 3d 477, 482, 551 N.E.2d 707, 710.) This is such a case. As we have indicated, the jury awarded Randy nothing for disability, only one years’ worth of lost wages, and a sum for medical expenses that was not only inadequate to cover his future medical bills but was insufficient even to meet the medical costs he had already incurred. The only explanation for this result is that the jury agreed with what ultimately became defendants’ primary defense, namely, that plaintiff was not suffering from any legitimate psychiatric disorder but was, in fact, faking. This conclusion cannot be sustained by the evidence in the record before us.

As our summary of that record indicated, the medical and psychiatric testimony overwhelmingly established that Randy was suffering from a debilitating case of posttraumatic stress disorder. Defendants adduced no psychiatric or psychological testimony to the contrary. The only medical evidence of any kind which they presented was the testimony of a neurologist named William Landau. Landau was retained to examine Randy by the insurance carrier for Randy’s employer. He saw Randy only once and then for only an hour and 15 minutes. Landau was evidently so hurried or so inattentive during this brief meeting that he did not even observe accurately which hand Randy wrote with. His notes specifically indicate that Randy is right-handed, when there is no dispute that he is in fact left-handed.

Based upon his brief examination, Landau could “find no possible explanation involving disturbance, structure damage, or functioning of the nervous system” and could see no way of accounting for Randy’s symptoms and behavior “except to consider that this whole picture represented a concept of malingering.” Landau completely discounted the possibility that posttraumatic stress disorder could be to blame. Indeed, he testified at his deposition that he did not believe that such a thing as posttraumatic stress disorder even existed as a valid medical diagnosis. According to Landau, it simply “define[d] a syndrome of malingering, but is a fancy name therefor.” By malingering, he meant “faking,” and he stated that in his view, there was no legitimate basis for the disorder and that it was not supported by any scientific evidence that he personally knew of.

Following the testimony given by Randy’s experts at trial, Landau attempted to qualify this position somewhat. In the end, however, it was evident that the primary reason Landau regarded Randy as a faker was because Landau harbored a personal philosophical belief that posttraumatic stress disorder was a faker’s claim. Landau took this position notwithstanding the American Psychiatric Association and the overwhelming weight of medical authority and notwithstanding the fact that, by his own admission, he had never even personally treated a patient who had been diagnosed as suffering from the condition. He was, after all, a neurologist, not a psychologist. He explained that “[sjuch patients don’t come to neurologists ***. They go to psychiatrists who treat the psychological reactions.”

Landau’s condemnation of posttraumatic stress disorder was the cornerstone of the defense’s “malingerer” theory. In our view, however, the validity of the disorder is not something which is open to serious question, at least not on this record. Posttraumatic stress disorder has been recognized by the courts of this State in a variety of contexts, including criminal cases (see People v. Wasson (1991), 211 Ill. App. 3d 264, 270, 569 N.E.2d 1321, 1326), workers’ compensation claims (see May v. Industrial Comm’n (1990), 195 Ill. App. 3d 468, 487, 552 N.E.2d 258, 270-71), and personal injury actions (see DeYoung v. Alpha Construction Co. (1989), 186 Ill. App. 3d 758, 766, 542 N.E.2d 859, 864). Dr. Landau’s position, by contrast, appears to be entirely idiosyncratic. At least we have found nothing in the case law and there is nothing in the medical testimony here to corroborate it.

Lacking any expert support for Landau’s position, defendants adduced various other types of evidence which was supposed to show that Randy had, in fact, been faking as Landau had charged. For example, defendants’ counsel elicited from Linda Johnson that Randy had a close cousin afflicted with posttraumatic stress disorder who had lived with them on and off for some period of time. That cousin had committed suicide a year to a year and a half prior to Randy’s accident. This tragedy was brought out not to establish some family predisposition toward the disorder. Its function, evidently, was to indicate to the jury that Randy had some prior exposure to the disease and, thus, an opportunity to learn to emulate its symptoms.

Defendants also called Gene Fox, one of Randy’s former employers, who testified that he had once had to fire Randy because Randy [ would not do the work he was being paid for but would, instead, have his sons do the work for him. Fox also testified that he observed Randy drive a tractor-trailer cab since the accident. On rebuttal, however, Randy called various witnesses who revealed that Fox was actually a disgruntled neighbor of the plaintiffs who had feuded with Randy over the water supply to their respective properties. These witnesses also categorically denied Fox’s claim that Randy had driven a tractor-trailer cab after the accident.

Defendants’ biggest stratagem was their use of a so-called “legal investigator and claims adjuster” whom they hired to spy on Randy. The investigator testified that on December 6, 1989, he observed Randy driving his car and laughing with his wife. He followed them to their home, where he observed Randy walk into the house. From a hiding spot several hundred feet away, the investigator took photos of Randy as he walked along, and these were explained in some detail to the jury. Several days later the investigator also trailed Randy as_he visited his psychologist, Dr. Plumb. This time the investigator made a video recording of Randy which showed, among other things, Randy driving, walking some more, and putting on his jacket.

This presentation gave the clear impression that some deep secrets were being revealed. Such, however, was not the case. Although Randy’s evidence was that he was constantly in pain and out of sorts, no claim was made that he never laughed or was incapable of moving his arms enough to put on a jacket. About his walk, the photographs themselves reveal nothing. In them he appears as little more than a small spot in the middle of the frame. In the video, where you can see him walk, his gait is plainly slowed and pained, which is entirely consistent with his testimony and that of his doctors. Moreover, although Linda Johnson once suggested otherwise at a deposition, the plaintiffs freely admitted that Randy did drive a car on occasion. He never claimed that he could not, and his doctors never claimed that he could not. What the evidence did show is that since the accident, Randy drove badly and unsafely. His wife recalled one incident in particular when Randy’s attention failed as he was driving down a country road. He veered to the right and nearly crashed into a 15- to 20-foot ravine.

Taken as a whole, what the record in this case makes manifestly clear is that Randy had been hardworking, industrious, and active his entire life. He is now sedentary and lethargic, unable even to do household repairs which would have been routine for him previously. The expert medical and psychiatric evidence overwhelmingly established that this was the result of Randy’s acute posttraumatic stress disorder, and that the disorder is a legitimate psychiatric condition. The reported case law shows that persons afflicted with posttraumatic stress disorder arising from accidents comparable in severity to Randy’s have received as much as a half a million dollars in noneconomic damages from the negligent party. While the magnitude of that award is scarcely controlling in other cases, we think that it is at least some indicia of just how far off the mark the jury’s verdict was in this case. The verdict is contrary to the weight of the evidence, and Randy is entitled to a new trial on the issue of damages. Randy has raised various subsidiary arguments, but in light of this disposition, we need not address them.

Linda Johnson, for her part, contends that we must likewise set aside the jury’s verdict on count II, which found for defendants on her claim for loss of consortium. We agree. When one spouse is injured by the negligence of another, the other spouse may recover from the tortfeasor for the loss which the deprived spouse suffered by virtue of the impaired spouse’s injury. (Malfeo v. Larson (1990), 208 Ill. App. 3d 418, 425, 567 N.E.2d 364, 369.) Actions such as this for loss of consortium are based upon a transferred-negligence theory whereby the defendant’s duty to act with reasonable care toward the impaired spouse is transferred to the deprived spouse. A loss of consortium claim incorporates two basic elements of the marital relationship: (1) loss of support and (2) loss of society, which includes companionship and sexual intercourse. Casey v. Pohlman (1990), 198 Ill. App. 3d 503, 509, 555 N.E.2d 1221, 1225.

To recover on a loss of consortium claim, the deprived spouse must prove liability on the part of the defendant, marriage to the injured spouse, and damages. (Seaman v. Wallace (1990), 204 Ill. App. 3d 619, 639, 561 N.E.2d 1324, 1338.) In this case, there is no dispute that the evidence established that defendants were liable and that Linda Johnson was married to Randy at the time of his injury. The evidence also overwhelmingly established that Linda Johnson sustained the type of injuries cognizable in an action for loss of consortium. Linda and Randy had previously had a happy marriage. Randy was affectionate and considerate, he helped around the house, and the two had an active sex life. Now he is combative and disagreeable. In Linda’s words, “It’s been a living hell ***.” At one point she entertained thoughts of leaving him. They have ceased having sexual intercourse, and Randy makes no contribution to the maintenance or upkeep of the household.

In view of this evidence, the only explanation for the jury’s verdict is that it believed that whatever suffering Linda endured was simply the result of symptoms which were feigned by Randy. As we have previously indicated, however, the evidence overwhelmingly showed that Randy was not faking and that his disorder was a legitimate one. Accordingly, just as he is entitled to a new trial as to his damages, Linda is entitled to a new trial on her loss of consortium claim.

For the foregoing reasons, the judgment of the circuit court of Franklin County is affirmed insofar as it found defendants liable on count I of plaintiffs’ complaint. The judgment is reversed insofar as it found Randy 50% contributorily negligent, and we direct that his contributory negligence be reduced to zero. We further reverse the circuit court’s damage award to Randy and remand the cause for a new trial on the issue of Randy’s damages. We also reverse the judgment against Linda Johnson on count II, her loss of consortium claim, and remand for a new trial on that claim.

Affirmed in part; reversed and remanded in part with directions.

WELCH and LEWIS, JJ., concur.


author: JUSTICE RARICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD R. MEIER, Defendant-Appellant.
    Fifth District
    No. 5 — 90—0784
    Opinion filed January 10, 1992.
    Daniel M. Kirwan and Lawrence J. O’Neill, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Dennis Middendorff, State’s Attorney, of Carlyle (Kenneth R. Boyle, Stephen E. Norris, and Kendra S. Mitchell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

Defendant, Donald R. Meier, appeals from his conviction for aggravated criminal sexual assault after a stipulated bench trial in the circuit court of Clinton County. We reverse.

Defendant was arrested in July of 1990 pursuant to an investigation triggered by a letter from authorities in Georgia to the Clinton County State’s Attorney accusing defendant of having sexually assaulted his 10-year-old stepdaughter sometime between December 1, 1986, and January 1, 1987, while the family was living in Illinois. The family had moved to Georgia in May of 1989, but by December of 1989, defendant had returned to Illinois. The criminal information filed on July 24, 1990, charged defendant with aggravated criminal sexual assault committed between the dates of December 1, 1986, and January 1, 1987. Following the denial of defendant’s motion to suppress his confession, defendant agreed to stipulate to the prosecution’s evidence. In exchange for this stipulation, the State recommended a minimum six-year sentence. The trial court accepted both the stipulation and the sentence.

Defendant raises two issues on appeal, one of which we need not address in light of our disposition of the first issue. Defendant’s first issue is whether the information which shows on its face that the alleged offense was committed beyond the limitations period is fatally defective in failing to allege facts invoking exclusion from the statute of limitations. We find that it is.

A prosecution for aggravated criminal sexual assault must be instituted within three years of the commission of the offense. (Ill. Rev. Stat. 1989, ch. 38, par. 3 — 5(b).) The information presented here alleges dates clearly beyond this three-year period of limitations. The limitations period, however, may be extended in certain circumstances (see Ill. Rev. Stat. 1989, ch. 38, par. 3 — 6), at least three of which arguably may be applicable here, but such circumstances must be alleged in the information. (See People v. Morris (1990), 135 Ill. 2d 540, 543, 554 N.E.2d 150, 151; People v. Munoz (1974), 23 Ill. App. 3d 306, 308, 319 N.E.2d 98, 100.) The facts upon which an extension of the limitations period is sought are material allegations to the criminal charge which must not only be proved but must be pleaded as well. (People v. Hawkins (1975), 34 Ill. App. 3d 566, 569, 340 N.E.2d 223, 225; Munoz, 23 Ill. App. 3d at 308, 319 N.E.2d at 100.) As with the other elements which the State must prove, “[t]he grounds upon which the People seek to wrest from a defendant the protection [of the statute of limitations] should be stated in the information with sufficient specificity to enable him to defend against them.” (People v. Strait (1978), 72 Ill. 2d 503, 506, 381 N.E.2d 692, 693.) Additionally, not only must the State set forth circumstances which, in and of themselves, would provide a basis for tolling a limitation period, but the State must make clear that those circumstances are in fact the basis upon which the State seeks to toll the limitations period. (Morris, 135 Ill. 2d at 547, 554 N.E.2d at 153.) This the State did not do. Because the prosecution failed to state the basis upon which it sought to extend the limitations period, the extended limitations period was not invoked, and defendant’s conviction must be reversed. (Morris, 135 Ill. 2d at 548, 554 N.E.2d at 154.) We realize defendant is challenging the information for the first time on appeal. But, we believe the defect in the information here sufficiently prejudiced defendant in preparing his defense so as to require reversal in this instance. See People v. Thingvold (1991), 145 Ill. 2d 441, 448.

The State further asserts defendant has waived the issue by failing to raise the matter in a pretrial motion or in a motion in arrest of judgment. We, however, decline to apply the general waiver rule in this instance. We agree defendant received ineffective assistance of counsel with respect to the charging instrument and the statute of limitations. Ineffective assistance of counsel is established by showing counsel’s representation fell below an objective standard of reasonableness which resulted in substantial prejudice to the defendant without which the outcome probably would have been different. (People v. Albanese (1984), 104 Ill. 2d 504, 525, 473 N.E.2d 1246, 1255.) Here, counsel’s failure to move to dismiss the charges against defendant or to file a motion in arrest of judgment clearly resulted in substantial prejudice culminating in defendant’s conviction. (See People v. Grogan (1990), 197 Ill. App. 3d 18, 22, 554 N.E.2d 665, 667; People v. Staton (1987), 154 Ill. App. 3d 230, 232, 507 N.E.2d 62, 64; cf. People v. Was-son (1991), 211 Ill. App. 3d 264, 569 N.E.2d 1321; People v. Williams (1979), 79 Ill. App. 3d 806, 398 N.E.2d 1013.) Looking at the record before us, we cannot say with sufficient certitude that the result probably would not have been different. For instance, even though it is quite possible that defendant was in another State for part of the limitations period, thereby tolling the statute, it is also quite possible that the limitations period still ran out prior to his being charged after defendant returned to Illinois. Moreover, an information which lacks all the elements necessary to charge an offense is vulnerable to attack at any time, including on appeal. (See People v. Heard (1970), 47 Ill. 2d 501, 505, 266 N.E.2d 340, 343; see also Thingvold, 145 Ill. 2d at 448.) Under the circumstances presented to us here, we are compelled to reverse defendant’s conviction for aggravated criminal sexual assault. This does not mean to say, however, that the State is precluded from bringing other charges against defendant again, especially in light of the continuing pattern of incidents alleged to have occurred. (See Thingvold, 145 Ill. 2d at 450.) Additionally, as defendant has not challenged the sufficiency of the evidence at trial, there is no double jeopardy. See People v. Taylor (1979), 76 Ill. 2d 289, 309, 391 N.E.2d 366, 375.

For the above-mentioned reasons, we reverse the judgment of the circuit court of Clinton County.

Reversed.

GOLDENHERSH, P.J., and CHAPMAN, J., concur.


text:
    ESTATE OF BERNICE CHOSNYKA et al., Plaintiffs-Appellees, v. DOMINIC MEYER et al., Defendants-Appellants.
    Fifth District
    No. 5-89-0714
    Opinion filed January 8, 1992.
    Rehearing denied February 5, 1992.

      David M. Fahrenkamp, of Edwardsville, for appellants.
    William L. Berry and Edward L. Adelman, both of Dunham, Boman & Leskera, of East St. Louis, for appellees.
   JUSTICE HOWERTON

delivered the opinion of the court:

The sign on plaintiffs’ land read “FOR SALE 95 ACRES.” Defendant saw the sign, inquired, and after a title search, offered to buy the land for $250,000. Paragraph nine of defendant’s offer stated:

“9. This Agreement For Sale is an offer on the part of Buyer to purchase the property upon the terms herein contained. Seller has ten (10) days from the date hereof to accept the offer and if not accepted by Seller by signing and delivery of a signed copy to Buyer at 211 N. Bluff Street, Collinsville, Illinois, on or before ten (10) days from the date hereof, then the offer is to be considered withdrawn.” (Emphasis added.)

Plaintiffs signed and returned the offer to defendant the next day, tendering with it another document, a sort of contractual oxymoron, entitled, “Acceptance and Counteroffer,” which provided, in pertinent part:

“Sellers accept the agreement for sale dated February 22, 1985 proposed by Dominic Meyer, Buyer with the following exceptions:
1. Closing Date — the closing date for said sale shall be no later than 60 days from the date of this acceptance to allow sufficient time for Sellers to remove all personal effects held in the Estate of Bernice Chosnyka.
2. Acreage — Sellers warrant that the legal description attached to the agreement for sale represents a true an [sic] accurate description of the property. However, the acreage listed in that legal description is an estimate and is not warranted to be the true and accurate number of acres conveyed ***.
Sellers accept all remaining terms of the agreement for sale on this 23rd day of February, 1985 ***.”

Defendant testified that the day following plaintiffs’ return of the offer, he went to the property and discovered, for the first time, a marker indicating an undisclosed underground pressurized gas line. Because of the undisclosed easement and because the land was not warranted to be exactly 95 acres, defendant told the real estate broker that he would proceed with the purchase only if the price were reduced. The broker declined, and defendant cancelled the agreement. Plaintiffs sued for $50,000 damages, the difference between the contract price and the subsequent sale price of the land.

The circuit court found for plaintiffs, ruling that plaintiffs’ “Acceptance and Counteroffer” was a valid acceptance, and therefore, a contract had formed. Defendant appealed. We affirm.

Defendant’s first claim on appeal is that the document entitled “Acceptance and Counteroffer” was not a valid acceptance but a counteroffer that he never accepted.

Though we agree with the circuit court that a contract for the sale of the land formed, we disagree that plaintiffs’ document entitled “Acceptance and Counteroffer” was plaintiffs’ acceptance. We hold, instead, that plaintiffs’ “Acceptance and Counteroffer” had, as a matter of law, no effect on the terms of the contract. It had no effect precisely because plaintiffs had accepted defendant’s offer by signing and returning it to defendant within 10 days as dictated by the offer.

It is axiomatic that a contract forms when there has been an offer, acceptance of that offer, and consideration. (La Salle National Bank v. Vega (1988), 167 Ill. App. 3d 154, 520 N.E.2d 1129, appeal denied (1988), 122 Ill. 2d 577, 530 N.E.2d 248.) Equally axiomatic is that an offeree must strictly comply to, or conduct herself consistent with, the terms of the offer, including the mode of acceptance dictated therein. (See Loeb v. Gray (1985), 131 Ill. App. 3d 793, 475 N.E.2d 1342; Nationwide Commercial Co. v. Knox (1973), 10 Ill. App. 3d 13, 293 N.E.2d 638; see also Baltimore & Ohio Southwestern R.R. Co. v. People ex rel. Allen (1902), 195 Ill. 423, 63 N.E. 262; Brophy v. City of Joliet (1957), 14 Ill. App. 2d 443, 144 N.E.2d 816.) Here, defendant specified the mode of acceptance in paragraph nine of the offer: “Seller has ten (10) days from the date hereof to accept the offer and if not accepted by Seller by signing and delivery of a signed copy to Buyer at 211 N. Bluff Street, Collinsville, Illinois, on or before ten (10) days from the date hereof, then the offer is to be considered withdrawn.” (Emphasis added.) In full compliance with paragraph nine, plaintiffs signed and returned a copy of the offer to defendant the next day, well within the 10-day period. At that point, a contract formed.

Defendant argues secondly that since the acreage to be conveyed was not warranted to be 95 acres, mutual assent was destroyed. We disagree.

In order to constitute a contract between two parties there must be mutual assent, i.e., an agreement “by the contracting parties on the essential terms and conditions of the subject about which they are contracting.” (Loeb, 131 Ill. App. 3d at 799, 475 N.E.2d at 1346.) When one makes an offer, therefore, he necessarily assents to the terms of his offer in advance.

Here defendant’s offer stated that: “Seller agrees to convey to Buyer in fee simple by Warranty Deed, the property described on the addendum attached hereto and made part hereof by reference.” (Emphasis added.) The addendum contained a legal description of the land sought to be purchased and three plat maps which specified footage and acreage.

In Illinois, the established rule “is that where a tract of land is conveyed by proper description, the boundaries thus included will control as to the quantity of acres, and in case of deficiency the grantee will have no remedy, and in case of excess the grantor will have no remedy. The mention of the number of acres, in such case, has no legal effect.” (Tope v. Tope (1938), 370 Ill. 187, 194, 18 N.E.2d 229, 232, citing Binder v. Hejhal (1931), 347 Ill. 11, 178 N.E. 901; Attebery v. Blair (1910), 244 Ill. 363, 91 N.E. 475; Higinbotham v. Blair (1923), 308 Ill. 568, 139 N.E. 909.) Conversely, where a tract of land is sold for a certain sum per acre, then an acreage discrepancy is more serious because the most vital term of the sale — acreage—is varied. In such a case, therefore, the law will provide a remedy, because no true meeting of the minds occurred. See Hagenbuch v. Chapin (1986), 149 Ill. App. 3d 572, 500 N.E.2d 987, appeal denied (1987), 114 Ill. 2d 545, 508 N.E.2d 728.

Where as here, however, the land was sold for a certain sum, its acreage notwithstanding, a discrepancy is less critical, because it is the land, its usage, and its potential, in view of its grade, its contour and its location, that is most critical. Unless the discrepancy in acreage is significant to its use and its potential, therefore, the law will find a meeting of the minds and will grant no remedy. (Binder v. Hejhal (1931), 347 Ill. 11, 178 N.E. 901; see also Meyer v. Ranson (1967), 80 Ill. App. 2d 175, 224 N.E.2d 293.) Here, the acreage discrepancy is small and does not interfere with defendant’s planned use as a mobile home park. Therefore, the discrepancy does not destroy mutual assent.

Moreover, as evidence that defendant sought to buy the land, its acreage notwithstanding, defendant stated in his offer:

“7. Buyer acknowledges that he has examined the premises and all of the improvements thereon and has knowledge of the condition and character thereof, and accepts the premises and all improvements thereon in their present condition. This contract contains the entire agreement between the parties and neither is bound by any verbal representations as to value or otherwise.”

Defendant’s offer contained the proper legal description of all the land he sought to purchase, and that offer was accepted. We, therefore, find no error.

Defendant argues alternatively that if a contract existed, the circuit court erred in not finding grounds for rescission. Rescission is appropriate when: (1) there is mistake, which relates to a material feature of the contract; (2) the mistake occurred despite the exercise of reasonable care; and (3) the other party will be placed in status quo upon rescission. John J. Calnan Co. v. Talsma Builders, Inc. (1977), 67 Ill. 2d 213, 367 N.E.2d 695.

Defendant claims: (1) he did not discover the presence of a pressurized-gas-line easement on the property until after he offered to purchase the land, and that the presence of this gas-line easement significantly reduced the value of the property; (2) he made reasonable efforts to discover all easements by obtaining a title commitment from a title insurance company; and (3) rescission will place the party in status quo.

Rescission is not a remedy that is granted as a matter of right but rather a remedy within the circuit court’s discretion. (Farmer v. Koen (1989), 187 Ill. App. 3d 47, 542 N.E.2d 1326.) We hold that the circuit court did not abuse its discretion by refusing rescission. At trial, there was conflicting testimony whether defendant actually knew of the pressurized gas line prior to making the offer, thereby calling into question whether there was a mistake. The circuit court was in a better position to determine if defendant actually was mistaken about the existence of the gas-line easement, and we, therefore, will not disturb the circuit court’s ruling.

The circuit court is affirmed.

Affirmed.

GOLDENHERSH, P.J., and LEWIS, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL MATLOCK, Defendant-Appellant.
    Fifth District
    No. 5 — 90—0625
    Opinion filed January 13, 1992.

      Daniel M. Kirwan, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Paula Phillips, State’s Attorney, of Effingham (Kenneth R. Boyle, Stephen E. Norris, and Scott A. Manuel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Defendant, Michael Matlock, pled guilty to driving while license revoked and was sentenced to two years and six months in prison. Defendant filed a petition for post-conviction relief alleging that he had been detained and arrested without probable cause and that his lawyer was ineffective because he failed to investigate the case properly and failed to move to quash the defendant’s arrest. Defendant contended that his subsequent guilty plea was neither knowing nor voluntary as a result of counsel’s inadequate representation. Defendant’s petition was denied following an evidentiary hearing. We affirm.

Michael J. Matlock was charged with driving while license revoked. At the preliminary hearing the arresting officer, Detective Leonard Klein, testified he was traveling east on West Fayette Road around 2:05 p.m., August 21, 1989, when he first saw the defendant’s yellow vehicle. The vehicle, Klein said, was coming from a farm road or private lane and turned onto West Fayette Road in front of the officer. Klein stated he was certain the yellow car had no business being on the property as he was familiar with the owner and there was a “no trespassing” sign at the entrance of the private drive. Officer Klein said he then ran a check on the vehicle and it came back registered to a Leona Matlock of Mattoon. He followed the car as it entered Interstate 70 from West Fayette. At this point Detective Klein attempted to stop the vehicle with his siren, but the defendant apparently could not hear the siren as he did not stop. Defendant’s car exited Interstate 70 and stopped at a K mart parking lot. Detective Klein pulled up behind the vehicle, walked up to the car, and asked the defendant for some identification. The driver produced an Illinois identification card with the name Michael J. Matlock. Officer Klein ran a check on the defendant and was advised that the defendant’s driver’s license was currently revoked.

On January 3, 1990, the defendant, while represented by counsel Tracy W. Resch, pled guilty to the charge of driving while license revoked. This was a Class 4 felony, under the circumstances, with a maximum sentence of three years and a possible fine of $10,000. On February 13, 1990, the court sentenced the defendant to two years and six months in the Department of Corrections.

A hearing was held on June 8, 1990, on defendant’s motion to withdraw his guilty plea. At this hearing defendant testified that counsel Resch had told him there was no defense and that if he pled guilty he would have a “good” chance at probation. On cross-examination defendant admitted that Mr. Resch had told him this based on the information given him by the defendant. Defendant also admitted that he had not told Mr. Resch about his prior criminal convictions in Texas. Tracy Resch also testified at the hearing. Mr. Resch stated that he had filed a motion for discovery, had examined the relevant police records, and had conferred with the defendant about the merits of the case and possible defenses. Mr. Resch said that he had considered filing a motion to quash the defendant’s arrest but after investigation had decided not to file such a motion. The court denied defendant’s motion to withdraw his plea.

On July 11, 1990, the defendant, by counsel Michael J. Meyer, filed a petition for post-conviction relief. Defendant alleged that Detective Klein had detained and arrested him without reasonable cause, that Mr. Resch had failed to provide effective assistance of counsel when he failed to investigate and to attempt to quash the defendant’s arrest, and that defendant’s guilty plea was neither knowing nor voluntary as a result of counsel’s inadequate representation. A hearing on the petition was held September 7, 1990.

At the September 7, 1990, proceedings Detective Klein reaffirmed his testimony from the preliminary hearing. He added that, at the time, he was driving an unmarked car with only a siren, that the “no trespassing” sign was posted on the private drive about 10 feet from the road, and that about half of the defendant’s car was still located on the side of the sign toward the private property when he first observed it. Klein also added that the registration on the plates was current and valid. Officer Klein elaborated on his previous testimony, stating that the private property in this case was owned by a person he knew, Marie Pike, a secretary of the police department. He said that her home had recently been burglarized, that there had been other acts of vandalism and burglary in that area, and that the private drive in question ran behind a wooded area through which one could walk and reach the Pike residence. He also testified that he knew that no one was home on the date in question. After approaching the defendant at K mart, Klein asked him what he was doing on the Pike property, but Klein could not recall defendant’s answer. Detective Klein reiterated that after checking defendant’s Illinois identification card and learning that his driver’s license had been revoked, defendant was arrested for driving while license revoked.

In his testimony at the post-conviction proceeding, the defendant testified that he had backed the vehicle into the farm lane in order to turn around. He said that he did see the “no trespassing” sign, but that no part of his car ever passed beyond the sign. After turning around and heading toward the interstate, the defendant observed a brown sedan behind him, but he did not recognize it as a police vehicle and heard no siren. Once stopped by Detective Klein, defendant said, he was not asked about trespassing or his presence on the Pike property. Defendant also claimed that his original counsel, Tracy W. Resch, never discussed the circumstances of his arrest with him, never told him of any possible defense based on the circumstances of the stop and arrest, and indeed told him there was no defense. Defendant stated that when he pled guilty he did not know of any defense.

The court denied the defendant’s petition for post-conviction relief. The court held that Officer Klein did have reasonable cause to stop the vehicle in order to make an investigatory inquiry into the defendant’s actions. The court also held that the failure to file a motion to quash the defendant’s arrest was not ineffective assistance of counsel.

Defendant’s argument on the propriety of the stop rests largely on his ability to show that the stop was without sufficient justification. Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, holds that a police officer may stop and temporarily detain an individual or motorist for the purpose of a limited investigation if the officer is able to point to specific and articulable facts which, taken together with reasonable inferences drawn from the officer’s experience, reasonably justify the investigative intrusion. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868; People v. Bujdud (1988), 177 Ill. App. 3d 396, 401, 532 N.E.2d 370, 373.) Thus an investigatory stop is proper if the facts available to the officer would warrant a man of reasonable caution to believe that the action taken was appropriate. Each case must be decided on its own facts, and a reviewing court may not disturb the trial court’s decision unless it was manifestly erroneous. Bujdud, 177 Ill. App. 3d at 401, 532 N.E.2d at 373.

While defendant may have been on the Pike property legally and justifiably, a trained officer who was familiar with the area could reasonably have perceived it otherwise. Officer Klein testified that at least half of the defendant’s vehicle was beyond the “no trespassing” sign and moving away from the Pike property when he first observed it. From his own experience the officer stated that he knew the owner of the land, that no one was home at that time, that the residence had recently been burglarized, that other acts of vandalism and burglary had occurred in that area, and that the road defendant was seen on gave access to the residence by means of a short walk through a wooded area.

The cases cited by defendant in an attempt to demonstrate that the stop by Klein was unjustified are easily distinguishable. In each of those cases the officers had seen nothing to indicate that any traffic or other laws or ordinances had been violated. In this case Officer Klein, based on his observances and personal experience, had reason to believe that the defendant had at least committed a criminal trespass. Ill. Rev. Stat. 1989, ch. 38, pars. 21 — 3(a), (b).

People v. Deppert (1980), 83 Ill. App. 3d 375, 403 N.E.2d 1279, is the case most similar to the instant case. In Deppert, however, the police officer had observed the defendant enter and immediately turn around on the alleged private property and quickly exit. There was also a factual dispute as to the posting of any signs, and the officer admitted that he did not stop the defendant because of the trespass. In the case at hand, both sides acknowledged the existence of signs posted, and Officer Klein stated he stopped defendant at least in part due to a suspected trespass. Further, Klein only observed the defendant exiting the Pike property. While the defendant’s explanation as to his presence on the private property may have been truthful, the officer’s suspicion of a trespass, and possibly more, was not inconsistent with the facts when viewed objectively from his position.

We find that Officer Klein’s testimony gave specific and articulable facts which, when taken with the reasonable inferences from his own experience, reasonably justified the investigative intrusion. Thus the circuit court’s decision was not manifestly erroneous and will not be disturbed.

This being said we move to the allegation of ineffective assistance of counsel. Defendant claims his attorney, Mr. Resch, provided ineffective assistance when he failed to file a motion to suppress evidence gained from the “illegal” stop, thereby prompting the defendant to plead guilty.

“A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064.

In People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246, the supreme court of Illinois adopted the Strickland standard. Under the first prong of Strickland, a defendant claiming ineffective assistance of counsel must show that the advice of counsel fell outside the range of competence demanded of attorneys in criminal cases. (Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) There is a strong presumption that the challenged action of counsel was the product of sound strategy and not of incompetence. (People v. Barrow (1989), 133 Ill. 2d 226, 247, 549 N.E.2d 240, 249.) An attorney’s decision to file a motion is generally regarded as a matter of trial strategy which must be given great deference. People v. Bryant (1989), 128 Ill. 2d 448, 458, 539 N.E.2d 1221, 1226.

The burden is on the defendant to show that counsel’s performance was deficient and ineffective. (See Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) Resch testified that he had conferred with the defendant about the merits of the case and possible defenses and said that he had considered a motion to quash the defendant’s arrest but after investigating had decided not to file such a motion. Having concluded that the stop was justifiable, we cannot now say that the decision of Resch not to pursue a motion to quash fell outside the range of competence demanded of attorneys in criminal cases.

While defendant disputed the extent of discussions concerning the merits of the case and possible defenses, he did admit that he had not told Mr. Resch about his previous convictions in Texas. Absent this information, Resch, after weighing the costs and benefits involved, advised the defendant that if he pled guilty he was likely to receive probation. The defendant, acting on the advice of counsel, pled guilty. The presentence investigation report revealed the previous convictions, and the defendant received 21/2 years in prison.

Counsel is entitled to rely upon information provided by the defendant in forming a trial strategy. (Bryant, 128 Ill. 2d at 459, 539 N.E.2d at 1226.) Counsel has a duty only to make reasonable investigations or to make reasonable decisions which make particular investigations unnecessary. Heavy deterrence is given to counsel’s judgment in this matter. (People v. Harris (1989), 129 Ill. 2d 123, 544 N.E.2d 357.) Having relied on the false information provided him by the defendant and having determined from his own investigation that no defense was available, Mr. Resch advised the defendant to plead guilty.

Given the strong presumption in favor of counsel’s competence and the great deference toward strategic decisions, we find that the defendant has failed to show that counsel’s performance was deficient and has thus failed to demonstrate the first prong of the Strickland test. Since both prongs are necessary to establish ineffective assistance of counsel, the defendant has failed in his burden on appeal.

Had the defendant told Mr. Resch of his prior criminal convictions, it may be that the attorney, in weighing the costs and benefits of a guilty plea, would have decided that the likelihood of imprisonment outweighed any benefits hoped to be gained by pleading guilty. But we will not second-guess the decision of an attorney relying on information provided him by his own client or allow a defendant to profit from his own deceptions.

For the foregoing reasons, we hold that the trial court did not err in denying the defendant post-conviction relief on the basis of ineffective assistance of counsel.

Affirmed.

GOLDENHERSH, P.J., and RARICK, J., concur.


text:
      In re ESTATE OF STEPHANIE M. WILLIAMS, Deceased.
    Fifth District
    No. 5-90-0835
    Opinion filed January 13, 1992.
    Janie F. Smith, of Wham & Wham Attorneys, of Centraba, for appellant.
    R. Edward Veltman, Jr., and David M. Foreman, both of Crain, Cooksey, Veltman & Miller, Ltd., of Centraba, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Stephanie Williams was killed on September 15, 1988, when the motorcycle upon which she was riding as a passenger collided with a tree which had fallen across the roadway. Stephanie was 15 years old at the time of the accident. She was survived by her father DeWayne Williams and her mother Anita Kratz.

DeWayne and Anita divorced in 1975, and DeWayne had custody of Stephanie until her death. DeWayne was appointed administrator of her estate, and a wrongful death action was instituted on her behalf. The claim was subsequently settled, with the estate receiving approximately $58,000. Out of the proceeds, Stephanie’s two half-brothers and two half-sisters each received $1,000. In addition, the court awarded each of Stephanie’s half-brothers $1,000 from their father’s share of the proceeds; $5,064.80 was placed in escrow pending resolution of a claim made against the estate by St. Mary’s Hospital; $6,558.12 was paid to DeWayne as reimbursement for funeral and other expenses; and $406 was paid to attorney John McGuire for his services as guardian ad litem,. The balance of the proceeds were distributed to DeWayne and Anita as follows:

Anita Kratz argues that the trial court abused its discretion in not making an equal distribution of the proceeds between DeWayne and herself. We affirm the decision of the trial court.

In order to offer insight into the trial court’s reasoning, a substantial portion of its order is set forth below:

“The parents in this case shall take in such proportion as they were dependent upon the deceased (see Para. 2, Ch. 70, Illinois Revised Statutes).
* * *
There is no presumption of equal pecuniary loss as between the parents and as the 15 year-old decedent did not and would not in the foreseeable future contribute financially to either parent the division will substantially turn on the parents’ relative loss of companionship, guidance, security, love and affection.
(4) There is no guidance in the common law to the trial courts in how to weigh the intangible ‘love and affection’ as opposed to the only slightly more tangible ‘companionship, guidance and security’. However, given the history of pecuniary injuries relative to the Wrongful Death Statute this court believes that the more tangible should be more heavily considered.
(5) The parents have been equally deprived of the ‘love and affection’ of Stephanie. Although mother saw the child much less frequently the relationship itself was plainly deep and meaningful. The absence of the child did not lessen the bond. There was no estrangement as the mother and daughter visited regularly, if not frequently.
Of the balance each parent should therefore take $8,394.22.
(6) The parents have not been equally deprived of the child’s ‘companionship, guidance and security’.
Although there is some suggestion in this record of fault, suggestions made by each parent as to the other, the court completely disregards such suggestions or inferences as having no relevance.
For this area of inquiry time actually spent with the child is relevant. Father shared the child’s companionship on a day-today basis. The child was and for several years would continue to be a household member. It was he who had to deal with the daily details of this child’s life since March 1976. He was the one that shared the subtle and meaningful experiences of the developing child’s life on a constant basis. Mother was close, but father suffered a much greater loss of companionship and guidance.
The child was being raised in Marion County. Both father and mother have family in Marion County. Father lives here and can reasonably be expected to stay. Mother lives in northern Illinois and can reasonably be expect [sic] to stay. Even if Stephanie had left Marion County upon becoming an adult she would reasonably be expected to treat this area as her home and to return to it with greater frequency. Father’s loss of companionship and guidance would continue to be proportionately greater.
For this element of their loss father shall take 20,987.21 and mother shall take 4,195.43.
(7) Any balance remaining after all payments set out above and after the resolution of the hospital claim shall be divided with father to receive 70 percent and mother to receive 30 percent.”

Under the divorce decree Anita was permitted visitation with Stephanie one weekend per month and whatever other arrangements could be made by the parents. Anita Kratz testified that she regularly exercised her once-a-month visitation during the first year after the divorce. In 1976 Anita moved to Lincoln, Illinois, which is approximately a two-hour drive from DeWayne’s residence. During her IV2year residency in Lincoln, Anita exercised visitation with Stephanie every month and a half. Anita remarried in 1977 and moved farther away from Stephanie. Anita visited her daughter approximately five or eight times that year. In 1978 Anita moved to Fox Lake, Illinois, which necessitated a six-hour drive to visit Stephanie. She estimated that she visited her five to nine times a year after her move to Fox Lake. Anita Kratz also testified that she asked DeWayne for visitation on Thanksgiving and Christmas, but he always refused. Anita presented evidence that she sent $1,000 to $1,400 to Stephanie each of the two years before her death. In the last five years of Stephanie’s life, Anita spoke with Stephanie by telephone at least once a week.

Kimberly Kratz, Anita’s stepdaughter, testified that Anita made many trips to visit with Stephanie. Kimberly observed that Anita and Stephanie had a very strong and loving mother-daughter relationship. A lifelong acquaintance of Anita’s, William Parish, testified that Anita and Stephanie seemed to have a good time together and seemed to have affection for one another. He testified that they would “hug, embrace, like a mother-daughter would if she hadn’t seen her for a while and she was glad to see her.”

DeWayne Williams testified that Stephanie was “Daddy’s girl.” He taught her how to play racquetball and basketball and how to water-ski and swim. Stephanie went on many trips with DeWayne, his wife Cindy, and Stephanie’s two half-brothers. They visited Disney-world, took trips to Kentucky Lake, made numerous trips to Six Flags, and went on float trips on the Meramec River. The family attended church nearly every Sunday and also attended catechism classes together. DeWayne testified that after their divorce Anita only visited Stephanie two or three times a year. Stephanie visited with Anita for approximately two weeks during the summer before she died.

Parents are entitled to a presumption of pecuniary injury in the loss of a child’s society. (Bullard v. Barnes (1984), 102 Ill. 2d 505, 468 N.E.2d 1228.) The parties agree that pecuniary injury encompasses loss of society or the deprivation of the companionship, guidance, comfort, love and affection of the deceased. (Bullard, 102 Ill. 2d 505, 468 N.E.2d 1228; Drews v. Gobel Freight Lines, Inc. (1990), 197 Ill. App. 3d 1049, 557 N.E.2d 303; Gabriel v. Illinois Farmers Insurance Co. (1988), 171 Ill. App. 3d 663, 525 N.E.2d 864.) Anita Kratz contends, however, that because there was no estrangement between Stephanie and herself, the proceeds should be equally split between DeWayne and herself.

Under the Wrongful Death Act, the court is to apportion the settlement according to “the percentage of dependency” of the next of kin of the decedent. (Ill. Rev. Stat. 1989, ch. 70, par. 2.) The division of the award is left to the discretion of the trial court. (Adams v. Turner (1990), 198 Ill. App. 3d 353, 356, 555 N.E.2d 1040, 1042.) Calculation of the loss suffered is one that is not subject to mathematical determination. Adams, 198 Ill. App. 3d at 358, 555 N.E.2d at 1043, citing In re Estate of Flake (1985), 137 Ill. App. 3d 535, 537, 484 N.E.2d 1243, 1245.

In the instant case, the trial court considered the past relationship between Stephanie and her father in support of its findings on the future relationship between Stephanie and her parents. There was no evidence presented as to Stephanie’s future plans or goals. Based on the record it is not unreasonable that the noncustodial parent received less than the custodial parent (see Mortensen v. Sullivan (1972), 3 Ill. App. 3d 332, 278 N.E.2d 6), and we cannot find that the division of the award amounts to an abuse of discretion.

Anita also argues that because the trial court found that the parties’ love and affection were equal, it could not logically find that their loss of companionship, guidance and security was disproportionate. We disagree.

There is no mathematical calculation or formula for determining the division of an award. (In re Estate of Flake (1985), 137 Ill. App. 3d 535, 484 N.E.2d 1243.) The trial court in this case gave no weight to the suggestion that either parent was at fault. The court did, however, place relevance on the time actually spent with Stephanie. The court acknowledged that DeWayne shared Stephanie’s companionship on a daily basis; Stephanie was a member of his household, and it was DeWayne who dealt with the daily details of her life. Based on the record, we cannot find that the trial court’s determination is against ! the manifest weight of the evidence.

For the foregoing reasons, the decision of the circuit court is affirmed. |

Affirmed.

GOLDENHERSH, P.J., and LEWIS, J., concur.