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June 15, 2001

JUSTICE BRESLIN delivered the opinion of the court:

Plaintiff NC Illinois Trust Company (Trustee), as trustee ofthe John Golofsky trust, filed suit against defendant First IlliniBancorp, Inc. (Bank), alleging that Bank breached its fiduciaryduty as the executor of the trust estate. The jury returned averdict in favor of Trustee. Bank appealed and Trustee cross-appealed. For the following reasons, we affirm in part andreverse in part.

FACTS

Bank became the executor and trustee of the Golofsky estateand trust after a corporate merger. John Golofsky left a widow,Zoe Golofsky, and a daughter, Marilyn Urena. Each receivedsuccessive life estates under the trust. Golofsky was alsosurvived by two grandchildren, Jon Urena and Zoe Urena Weiss. Bothgrandchildren were remainder beneficiaries under the trust. Whenhe died, Golofsky owned one-half of the common stock of BrownSpecialty Corporation (Brown Specialty), and Mitchell Rudman ownedthe other half.

Rudman was designated the "point man" in selling the stock inBrown Specialty. Rudman, Zoe Golofsky, and Bank agreed to sell thestock to Brown-SXTN, a company formed by John Sexton, for $1.6million. This sale price was approved by the probate court overthe objections of the remainder beneficiaries, who believed theprice was inadequate. A stock purchase agreement, created bySexton, was entered into by Bank as executor of the trust andSexton.

The agreement provided certain warranties that BrownSpecialty's financial statements were prepared in accordance withgenerally accepted accounting principles (GAAP), and that thestatements fairly represented the company's financial position. The figures comprising the financial statements were provided byRudman. Before the agreement was executed, Zoe Urena Weiss'husband, Zeff Weiss, on behalf of the remainder beneficiaries, senta letter to Bank's trust officer, Lane Smallwood, indicating thatthe warranties made in the stock purchase agreement were false.

Smallwood consulted with Burrell Barash, an attorney oftenused by Bank, who recommended that Bank execute the sale agreement. Bank, as executor of the Golofsky estate, received 50% of the saleproceeds which totaled $800,000. Several months later, Brown-SXTNforwarded a letter to Barash alleging that the stock purchaseagreement contained misrepresentations in connection with the saleof the Brown Specialty stock. Sexton contended that themisrepresentations inflated the purchase price of Brown Specialtyby $420,000. Sexton eventually sued Bank, Rudman and Zoe Golofskyin federal court, alleging that the defendants committed securitiesviolations and breached warranties contained in the agreement.

Bank and Rudman were simultaneously represented by Barash overthe objections of the remainder beneficiaries. Zeff Weiss informedBank that joint representation should not be undertaken becauseBank should seek indemnification against Rudman in the event Sextonprevailed at trial. Bank relied upon Barash's advice that it wasbetter to present a united front to avoid harmful finger-pointing. Rather than file suit against Rudman for indemnity, Bank enteredinto an agreement with Rudman stating that Bank could later seekindemnity against Rudman and Rudman could not assert the statute oflimitations as a defense.

The federal jury returned a verdict in favor of Sexton for$200,000 and assessed $50,000 in punitive damages against Rudman. The court did not enter judgment, however, because the issue ofattorney fees needed to be resolved. Before resolution, theparties settled the case for $375,000, of which Rudman paid$212,500 and Bank paid $162,500. Zeff Weiss contacted Bank torequest that any judgment be paid by Bank and not from estateassets. Still, Bank paid the settlement from estate assets. Bankalso paid Barash $29,743 for legal services in its representationof the estate generally, and $50,111 for the defense of the Brown-SXTN case out of estate assets. Bank did so without notifying thebeneficiaries of the trust because it believed they would object.

After the federal case was settled, Trustee filed suit againstBank on behalf of the remainder beneficiaries. Count I soughtactual damages based on professional negligence and/or breach offiduciary duty. Count II sought punitive damages based on the samealleged conduct in count I. Bank brought an indemnity actionagainst Rudman in the event Bank was found liable to thebeneficiaries.

Bank filed a motion for summary judgment which was granted bythe trial court but later reversed by this court in First ofAmerica Trust Co. v. First Illini Bancorp, Inc., 289 Ill. App. 3d276, 685 N.E.2d 351 (1997). On remand, the jury returned a verdictin favor of Trustee, awarding $242,443 in compensatory damages. The jury also awarded Trustee punitive damages in the amount of$1,375,232. The trial court remitted those damages to $450,000. Bank appealed and Trustee cross-appealed.

Additional facts will be set forth below as they becomepertinent to the analysis.

ANALYSIS

The first issue is whether the trial court erred when itdenied Bank's request for judgment notwithstanding the verdict onthe basis that Bank satisfied the applicable legal standards forexecutors by relying upon the advice of outside legal counsel.

A judgment notwithstanding the verdict should be entered onlywhen all the evidence, when viewed in the light most favorable tothe opponent, so overwhelmingly favors the movant that no contraryverdict based on the evidence could stand. Pedrick v. Peoria &Eastern R.R. Co., 37 Ill. 2d 494, 229 N.E.2d 504 (1967). We reviewa trial court's decision to deny a motion for judgmentnotwithstanding the verdict de novo. Arellano v. SGL Abrasives, 246Ill. App. 3d 1002, 617 N.E.2d 130 (1993).

Bank claims that the court should have granted its motion forjudgment notwithstanding the verdict because it reasonably reliedupon the advice of Barash in signing the stock purchase agreement,in allowing Barash to represent both Bank and Rudman, and in usingestate assets to satisfy the federal judgment against it. For thisproposition, Bank relies upon Jewish Hospital v. Boatmen's NationalBank, 261 Ill. App. 3d 750, 633 N.E.2d 1267 (1994).

In Jewish Hospital, the court stated that a bank has a rightto hire an attorney to handle the legal affairs of the estate, andthe bank has a right to rely on the attorney's advice, unless thebank knowingly chooses incompetent counsel or has some reason toknow that the given advice is not sound.

Trustee responds that Bank had reason to know that Barash'sadvice was not sound. The record supports that argument. Smallwood, head of the trust department at First Illini, washimself an attorney specializing in trusts who acknowledged attrial that he was probably the best qualified attorney in Galesburgin the area of estate and trust administration. It goes withoutsaying then, that Smallwood believed himself to be more qualifiedthan Barash with respect to this matter though he relied entirelyupon Barash's advice. Though Smallwood got court approval to sellGolofsky's share of Brown Specialty, the stock purchase agreementcontained warranties and misrepresentations which were beyond theboundaries of the court order. The beneficiaries of the Golofskytrust brought this to the attention of Smallwood, but he signed thestock purchase agreement without remedying the errors contained init.

In addition, Smallwood had independent knowledge that theagreement contained certain warranties that Brown Specialty'sfinancial statements were prepared in accordance with GAAP when, infact, they were not. Smallwood admitted reviewing a letter fromthe firm of Landy & Rothbaum which indicated that if GAAP had beenused in preparing the financial statements, Brown Specialties'land, building and stock holders' equity would have decreased by$189,859. Smallwood admitted that he did not have enoughinformation to know whether the warranties and representations inthe agreement were accurate, but he nevertheless signed it.

The record reveals that Bank breached its fiduciary duties inother respects. For instance, no one on behalf of Bank advised ZoeGolofsky not to sign the stock purchase agreement because, by doingso, she personally obligated herself, though she held no stock ofher own. Additionally, Bank was financing Sexton in his attemptsto purchase Brown Specialty at the same time it was negotiating thepurchase price on behalf of the estate.

Bank also allowed Barash to represent Zoe Golofsky, Rudman andBank despite the known conflict of interest. Though Smallwoodacknowledged that the potential indemnification claim againstRudman was an asset of the estate, Bank failed to pursueindemnification from Rudman on the estate's behalf. Still,Smallwood represented during trial that Bank filed suit againstRudman for indemnification on behalf of the estate when, inactuality, it filed such an action against him on its own behalf inthe present action.

But this is not all. Smallwood admitted that he relied uponRudman to turn over accurate accounting records for BrownSpeciality despite having knowledge that Rudman had been convictedpreviously of making misrepresentations under oath. Smallwood alsoacknowledged relying upon Rudman to sell Brown Specialty though hewas unaware of whether Rudman was qualified to do so. Rather,Smallwood expected Zoe Golofsky to be "up on" the business and toinform Bank if any problems with Rudman or the sale of the businessarose.

Adding insult to injury, Although Bank settled the federallawsuit brought by Sexton under a complaint that charged Bank withfault, Bank used estate assets to pay that settlement. This wastrue despite the fact that neither the trust nor the beneficiarieswere responsible for the misrepresentations in the stock purchaseagreement (First Illini, 289 Ill. App. 3d at 284, 685 N.E.2d at357) and, in fact, the beneficiaries attempted to warn Bank of theexistence of such misrepresentations. Additionally, Bank paidBarash's fees from estate assets for defending it in the Sextonlawsuit without informing the beneficiaries it was doing so becauseit was aware the beneficiaries would object.

Finally, in an obvious attempt to delay the filing of thislawsuit, Bank resisted repeated efforts by the beneficiaries toremove it as executor in order to sue on behalf of the estate andtrust. Trustee was ultimately substituted in this case asplaintiff over Bank's objections.

It is unnecessary for this court to expound upon the long-standing principle that a fiduciary is held to the highest standardof care and must act with undivided loyalty and the utmostfidelity. See Home Federal Savings & Loan Ass'n v. Zarkin, 89 Ill.2d 232, 432 N.E.2d 841 (1982). While we are cognizant of the lawas set forth in Jewish Hospital, that a bank has a right to relyupon the advice of outside counsel, we cannot agree with Bank thatit reasonably relied upon the advice of Barash when it signed thestock purchase agreement, when it allowed Barash to represent bothit and Rudman, or when it used estate assets to pay the settlementwith Sexton and to pay Barash's legal fees for defending thelawsuit. Rather, Bank was presented with substantial evidence thatthe advice was not sound. Accordingly, we affirm the trial court'sdecision denying Bank's request for judgment notwithstanding theverdict on that basis.

Bank also argues that the trial court erred in denying itsrequest for judgment notwithstanding the verdict on the issue ofpunitive damages because Bank acted in good faith and its conductwas reasonable.

Punitive damages are appropriate only in cases where thewrongful acts in question are characterized by aggravatedcircumstances such as fraud, actual malice, deliberate oppression,wilful and wanton behavior or where the wrong involved someviolation of duty springing from a relation of trust andconfidence. Home Savings & Loan Ass'n v. Schneider, 108 Ill. 2d277, 483 N.E.2d 1225 (1985). Bank suggests that because it actedin good faith in relying upon Barash's advice, its conduct does notrise to the level of wilful or wanton which is required for apunitive damages award to stand.

We have already determined that Bank did not reasonably relyupon Barash's advice; rather, Bank had more than enough reason toknow that the advice was not sound. Accordingly, we reject Bank'sargument that it should be absolved of the punitive damages award.

The third issue on appeal is whether the trial courtimproperly split the burden of proof between Trustee and Bank oncount I of Trustee's complaint.

In count I of its amended complaint, Trustee alleged that Bankwas negligent and/or breached its fiduciary duty in variousrespects. Bank contends that Trustee's instruction No. 14improperly split the claims in count I into two groups: thoseconcerning the improper administration of the Golofsky estate(which Trustee was properly given the burden to prove pursuant toinstruction Nos. 18 and 21) and those concerning the inappropriateuse of the estate assets to settle the federal action (which Bankwas improperly given the burden to disprove pursuant to instructionNos. 15 and 19).

A trustee must act with the utmost fidelity and good faithwith respect to the administration of the trust. Accordingly, thetrustee must not deal with the subject matter of the trust for hisown benefit. White v. Macqueen, 360 Ill. 236, 195 N.E. 832 (1935). When this duty is breached, the presumption arises that thetransaction at issue was fraudulent. Obermaier v. Obermaier, 128Ill. App. 3d 602, 470 N.E.2d 1047 (1984). It is then the trustee'sburden to prove, by clear and convincing evidence, that thetransaction was fair and that the trustee did not breach its dutyof loyalty. Curtis v. Fisher, 406 Ill. 102, 92 N.E.2d 327 (1950).

Here, the jury was instructed of Trustee's claim that theestate was damaged by Bank's use of estate assets to settle thefederal lawsuit and that Bank benefitted through the use of thoseassets. It was also instructed of Bank's defense that the estatedid not suffer damages as claimed and that Bank acted in goodfaith. The jury was then instructed that when an executorpersonally benefits from a transaction involving estate assets, theexecutor has the burden to prove by clear and convincing evidencethat it acted in good faith. Accordingly, before consideringBank's evidence that it did not personally benefit through the useof estate assets, the jury necessarily had to first find Trustee'sclaim to be true.

The evidence presented at trial supports a finding that Bankbenefitted when it used entrusted estate assets to satisfy thesettlement of a complaint charging it with violating securitieslaws and breaching warranties in the stock purchase agreement. Thelaw is clear that Bank, as fiduciary, had the burden to prove byclear and convincing evidence that it acted in good faith in usingestate assets. Accordingly, the trial court did not err ininstructing the jury as it did.

Bank also suggests that the trial court erred in modifying itsinstruction No. 17 when the court eliminated the provision ofIllinois' Pattern Jury Instructions, Civil, No. 20.01 (3d ed. 1995)stating that Bank denied it committed the alleged breaches of itsfiduciary duty and instead inserted the following: "The defendantdenies that the Estate of John Golofsky sustained damages to theextent claimed and asserts that it acted with good faith and commonprudence."

Initially, we note that it is within the sound discretion ofthe trial court whether to give a non-IPI instruction. People v.Moore, 89 Ill. App. 3d 202, 411 N.E.2d 579 (1980). We fail to seehow Bank was prejudiced by the modification as claimed. The jurywas instructed on Bank's theory that it acted in good faith andwith common prudence, i.e., that Bank did not breach its fiduciaryduty. The presence of good faith and common prudence necessarilydictates the absence of a breach of fiduciary duty.

Finally, Bank argues that the court erred in failing to giveits instruction No. 30, which provided that "an executor isentitled to use moneys for the payment of liability to thirdparties which arise from litigation if the executor acted with goodfaith and common prudence." Because we discuss below Bank'ssuggestion that the trial court erred in prohibiting it fromarguing that the settlement constituted a refund payable fromestate assets, we reserve resolution of this issue for thatdiscussion.

The fourth issue raised by Bank is whether the trial courterred when it refused to allow Bank to explain why it believed itwas proper to use estate assets to settle the federal lawsuit.

Prior to trial, Trustee filed a motion in limine to prohibitBank from presenting evidence explaining why it believed thefederal action presented a claim for a partial refund from estateassets and, thus, why it used estate assets to pay the settlement. The court granted Trustee's motion. Bank suggests the court erredin doing so.

We cannot agree. Bank settled the federal suit under acomplaint that charged it with breach of the warranties in thestock purchase agreement, various securities violations, fraud andmisrepresentation. When a party settles a complaint that chargesit with fault, it can be inferred the party did so to avoid afinding of liability. See Dixon v. Chicago & North WesternTransportation Co., 151 Ill. 2d 108, 601 N.E.2d 704 (1992). Thisinference is even truer here where Bank settled only after a juryreturned a finding of liability against it.

Thus, it was disingenuous for Bank to attempt to argue thatthe settlement simply constituted a refund of estate assetsobtained from an inflated purchase price. Additionally, Bank couldnot justify the over $50,000 it paid in attorney fees from estateassets as a "partial refund" of the purchase price. Accordingly,we affirm the trial court's decision to restrict Bank's attempt tocharacterize the settlement as a refund of estate assets. For thesame reason, we affirm the trial court's refusal to instruct thejury using Bank's instruction No. 30.

The fifth issue on appeal is whether the trial court erred inadmitting evidence of the 1975 criminal conviction of MitchellRudman while excluding evidence of the criminal conviction of thedecedent, John Golofsky. Bank claims that evidence of Rudman'scriminal conviction for making certain misrepresentations in anIllinois cigarette tax filing were highly prejudicial and of noprobative value.

Trustee contends that evidence of Rudman's conviction wasrelevant because Smallwood, who had knowledge of Rudman'sconviction, relied solely upon a semi-annual review of financialstatements composed of figures provided by Rudman to determine theassets and operations of Brown Specialty. Smallwood also testifiedthat he knew the financial statements were unaudited compilationsand were wholly dependent upon Rudman for their accuracy.

When a party seeks to admit a prior conviction involvingdishonesty or false statements, the trial court must determinewhether the probative value of the evidence is substantiallyoutweighed by the danger of unfair prejudice. Ryan v. Mobil OilCorp., 157 Ill. App. 3d 1069, 510 N.E.2d 1162 (1987). Whileevidence of a conviction more than 10 years old is typically notadmissible to impeach a witness due to the danger of unfairprejudice (Ryan, 157 Ill. App. 3d at 1082, 510 N.E.2d at 1170),Trustee did not seek to admit the conviction to impeach Rudman'scredibility. Rather, the conviction was used to show thatSmallwood, having knowledge of it, had additional reason toquestion the veracity of the financial statements.

We cannot agree with Bank that the admission of the convictionsubstantially prejudiced it. Even assuming the conviction waserroneously admitted, other evidence existed for the jury todetermine that Smallwood should not have executed the stockpurchase agreement; namely, the beneficiaries' notice to Bank ofthe misrepresentations contained in the agreement and theaccounting firm's letter indicating the financial statements werenot prepared in accordance with GAAP.

Bank also contends that the court erred in excluding evidencethat Golofsky was convicted of the same crime. Bank does notexplain, and we cannot comprehend, how it would help Bank's case toshow that Golofsky, who died before the transaction occurred, wasalso convicted of the same crime. Accordingly, we affirm.

The sixth issue Bank raises is whether the trial courtimproperly instructed the jury concerning the agency relationshipbetween Bank, Barash and Rudman.

Bank contends that the instructions relating to Barash andRudman being agents of Bank were confusing, misleading andprejudicial. Bank argues that because Trustee's claims against itwere for negligence and/or breach of fiduciary duty in itsproprietary capacity, instructions pertaining to the acts oromissions of Rudman and Barash as agents for Bank in its capacityas executor were irrelevant to Trustee's claims.

We disagree. The federal case was tried on an agency theorywith the jury being instructed that Rudman was the agent of theestate and, therefore, his acts were to be considered those of theestate. Therefore, an action for indemnity against Rudman wouldhave protected the estate. While Smallwood acknowledged as much,no such action was brought. Rather, any claim by the estateagainst Rudman for indemnity was forfeited when Bank settled withBrown-SXTN. See First Illini, 289 Ill. App. 3d at 288, 685 N.E.2dat 360. Consequently, it would be inequitable to allow Bank todeny the binding effect of the agency relationship in order toshift liability to Rudman, a party against whom the estate's claimis now barred as a matter of law.

Additionally, evidence of an agency relationship between Bankand Barash was appropriately admitted. While Bank attempts tosuggest that it bears no fault because it relied upon the advice ofits counsel, parties are bound by the acts of their attorneys astheir agents. See Kaput v. Hoey, 124 Ill. 2d 370, 530 N.E.2d 230(1988). Bank's remedy, like any other client in Illinois whobelieves he received ineffective assistance, was to sue Barash intort for malpractice (see Collins v. Reynard, 154 Ill. 2d 48, 607N.E.2d 1185 (1992)), which Bank did in fact do.

Though Bank believes that evidence of its malpractice actionagainst Barash's estate should have been admitted, in light ofBarash's agency relationship with Bank we fail to see how Bank'shighlighting Barash's alleged incompetence would benefit Bank assuggested. Because the agency instruction regarding Barashaccurately states the law regarding his relationship to Bank duringits administration of the Golofsky estate, we affirm the court'sissuance of the agency instructions.

The seventh issue we consider is whether the trial court erredin awarding Trustee equitable prejudgment interest.

In Illinois, prejudgment interest may be recovered whenwarranted by equitable considerations. In re Estate of Wernick, 127Ill. 2d 61, 535 N.E.2d 876 (1989). Whether equitable considerationssupport an award of interest is a matter lying within the sounddiscretion of the trial court. Wernick, 127 Ill. 2d at 87, 535N.E.2d at 888. The rationale underlying an equitable award ofprejudgment interest in a case involving a breach of a fiduciaryduty is to make the injured party complete by forcing the fiduciaryto account for profits and interest it gained by the use of theinjured party's money. Fundamental principles of damages andcompensation dictate that when money has been wrongfully withheldthe victim receive interest for the wrongdoer's retention of hismoney. Wernick, 127 Ill. 2d at 87, 535 N.E.2d at 888.

The jury determined that Bank breached its fiduciary dutieswhen it used estate assets to settle the federal lawsuit and to payBarash for his representation of Bank. As we have already noted,there is no doubt that Bank benefitted from this transaction. Accordingly, we affirm the court's issuance of prejudgmentinterest.

B. Trustee's Cross-Appeal

The issue first raised by Trustee is whether the trial courterred in remitting the jury's punitive damages verdict. Bank alsotakes issue with the court's treatment of punitive damages and,accordingly, we address the parties' complaints together.

The jury returned a punitive damages award in the amount of$1,375,232. The trial court remitted that award to $450,000,finding only that the evidence did not support the jury's award.

Trustee contends that the jury's punitive damages award shouldbe reinstated because, absent findings by the trial court whichdemonstrate that the verdict which was remitted was the product ofpassion or prejudice, it should not be disturbed. For thisproposition, Trustee cites Batterton v. Thurman, 105 Ill. App. 3d798, 434 N.E.2d 1174 (1982).

Bank argues that this court should further remit the jury'spunitive damages award because its actions were reasonable inrelying upon the advice of Barash. In the alternative, Banksuggests this court should affirm the trial court's remittitur ofthe award because section 2-1207 of the Illinois Code of CivilProcedure (Code) (735 ILCS 5/2-1207 (West 1998)), enactedsubsequent to Batterton, provides the trial court with absolutediscretion to remit a punitive damages award.

While section 2-1207 does provide a trial court with thediscretion to remit a punitive damages award, we cannot agree withBank that such discretion is absolute. Trial courts have long beengiven discretion to review the propriety of jury verdicts, but thiscourt always has the authority to review that decision for an abuseof discretion. See, e.g., Keen v. Davis, 108 Ill. App. 2d 55, 246N.E.2d 467 (1969) (trial court's decision to grant new trial on thebasis that the verdict is against the manifest weight of theevidence is reviewed for an abuse of discretion). Nor do we agreewith Bank that section 2-1207 effectively abolished the lawregarding remittitur as enunciated in Batterton.

Subsequent to the passage of section 2-1207, the IllinoisAppellate Court reiterated the Batterton court's statement of thelaw of remittitur in Dahan v. UHS of Bethesda, Inc., 295 Ill. App.3d 770, 692 N.E.2d 1303 (1998). The Dahan court, like theBatterton court, noted that a trial judge does not have the powerto speculatively and gratuitously negate a jury's verdict. Rather,where the record supports the jury's verdict, a trial judge may notoverturn such an award merely because she, for subjective andunknown reasons, would have computed damages differently. SeeDahan, 295 Ill. App. 3d at 782, 692 N.E.2d at 1311-12; Batterton,105 Ill. App. 3d at 805, 434 N.E.2d at 1178.

In remitting the jury's punitive damages award to $450,000,the trial court here made no specific findings nor did it determinethat the jury verdict was the product of passion or prejudice. Instead, the court stated only that it found the damages award tobe excessive.

This court has already set forth with particularity theevidence in the record supporting the jury's finding that Bankrepeatedly breached its fiduciary duty to the estate. Because thetrial court indicated only that it did not believe the evidencesupported the verdict, this court has no way to review thepropriety of that decision. Case law dictates that when the recordsupports the jury verdict, the trial court must set forth itsreasons for remitting that award. See Batterton, 105 Ill. App. 3dat 805, 434 N.E.2d at 1178. As the court here failed to do so, wereverse.

While Bank would have this court remand this case to the trialjudge so that she may set forth her reasons for remitting thepunitive damages award, we do not believe that justice so requires. Illinois views punitive damages as a punishment designed to servethree distinct purposes: (1) to act as retribution againstdefendant; (2) to deter defendant from committing similar wrongs inthe future; and (3) to deter others from similar conduct. Ford v.Herman, 316 Ill. App. 3d 726, 737 N.E.2d 332 (2000). Importantconsiderations in reviewing a punitive damages award include thenature and enormity of the wrong, the financial status of thedefendant, and the potential liability of the defendant. Ford, 316Ill. App. 3d at 734, 737 N.E.2d at 339.

The enormity of the breach committed by Bank in signing theagreement despite its knowledge that the warranties in theagreement were false, in so subjecting the estate to liability, inallowing Barash to represent both it and Rudman despite theconflict, in failing to protect the estate by seeking indemnityagainst Rudman, and in using estate assets to satisfy its ownliability cannot be questioned. Additionally, Bank's assets inexcess of $48 million far exceed the punitive damages award of$1,375,232. Accordingly, we cannot say that the award is soexcessive that justice requires remanding this case to the trialjudge.

The next issue raised by Trustee is whether the trial courterred in denying its request for judgment notwithstanding theverdict for sums paid to Barash for legal services rendered in thegeneral administration of the estate.

Barash received $29,743 for legal services with respect to theadministration of the estate generally. This does not include the$50,111 paid for defense of the Sexton litigation. The juryincluded the latter amount in its award of damages but not theformer.

Trustee contends that because Barash breached his fiduciaryduty, he should not receive any attorney fees for theadministration of the trust. While it is clear Barash breached hisduty to the estate when he recommended Bank execute the stockpurchase agreement and when he represented Bank and Rudman despitethe obvious conflict, and thus, he should not have been paid fromestate assets to defend the Sexton lawsuit, it is not clear, andTrustee does not explain, what services Barash performed for theestate "generally." Accordingly, this court cannot determine howthe $29,743 figure was arrived at and whether it constitutespayment for legitimate services rendered. Therefore, we affirm thetrial court on this issue.

Finally, we determine whether the trial court erred inexcluding evidence of investment potential and growth on sumswrongfully taken from the estate.

Trustee contends that in calculating prejudgment interest, thecourt should have considered evidence of investment potential. Forthis proposition, Trustee cites to Progressive Land Developers,Inc. v. Exchange National Bank, 266 Ill. App. 3d 934, 641 N.E.2d608 (1994).

We do not find Progessive Land particularly helpful as thatcase concerned a land trustee who was found liable for selling realestate without the proper authority to do so. The court did notconsider, as we must here, an executor's duty with respect toestate assets.

In Wernick, 127 Ill. 2d at 87-88, 535 N.E.2d at 888, thesupreme court held that the statutory rate for prejudgment interesthad not been changed to reflect the escalating interest rates inthe market. Accordingly, it was appropriate to award prejudgmentinterest at the prime rate. But, there is nothing in Wernicksuggesting that investment potential may be taken into account. Additionally, while a trustee has a duty to invest and diversify,an executor has a duty to conserve estate assets. In re Estate ofPirie, 141 Ill. App. 3d 750, 492 N.E.2d 884 (1986). Therefore, weaffirm the trial court's decision to exclude evidence of investmentpotential.

In conclusion, we note that any arguments raised by theparties within the context of the larger issues discussedthroughout this order and not heretofore addressed are withoutmerit and warrant no further discussion.

For the foregoing reasons, the judgment of the circuit courtof Peoria County is affirmed in part and reversed in part.

Affirmed in part; reversed in part.

LYTTON and McDADE, JJ., concur.