author: PRESIDING JUSTICE HARTMAN JUSTICE McCORMICK,

text:
    PATRICIA ANN McCALL, Plaintiff-Appellee, v. CHICAGO BOARD OF EDUCATION, Defendant-Appellant.
    First District (2nd Division)
    No. 1—90—2985
    Opinion filed April 14, 1992.
    Rehearing denied May 13, 1992.

      McCORMICK, J., concurring in part and dissenting in part.
    Kralovec, Marquard, Doyle & Gibbons, Chartered, of Chicago (Nancy Jo Arnold, Stephen J. Smalling, and Philip W. Domagalski, of counsel), for appellant.
    Lane & Munday, of Chicago (John J. Perconti, of counsel), for appellee.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiff, Patricia Ann McCall, when a student enrolled in the fourth grade of a Chicago public school, was injured on September 9, 1977, as she was entering a mobile classroom through a doorway. The door closed on her leg, allegedly resulting in a serious injury consisting of a recurrent infection at the site of an abrasion caused by the door. A jury returned a verdict of $570,000 in plaintiffs favor and against defendant Chicago Board of Education, from which this appeal proceeds.

Defendant raises as issues on appeal whether (1) the verdict was against the manifest weight of the evidence; (2) the jury was properly instructed; and (3) the court abused its discretion by barring defense expert testimony.

In her amended complaint, plaintiff essentially alleged, as the proximate cause of her injury, that defendant failed to maintain entranceways and doors to classrooms in reasonably safe condition; allowed a classroom door to remain in a dangerous condition with sharp metal edges exposed; maintained a classroom door without a “door check” or other device to prevent the door from slamming closed; failed to warn students of a dangerous doorway; failed to inspect the door and doorways to the classrooms; and failed to employ or provide adequate numbers of maintenance personnel at the school. Defendant’s answer placed at issue the principal allegations of negligence.

Pretrial motions relating to expert testimony will be discussed in the body of the opinion.

Trial commenced on February 14, 1990, during which the following facts were adduced.

Plaintiff testified that she was nine years old and in fourth grade at the time of the accident. As she entered a classroom doorway, the door slammed on her thigh and knee. The door was rusty, closed quickly, and was heavy. No one held the door as she entered the room; specifically, a fellow student named Diamond Martin did not hold the door.

Diamond Martin (Diamond), a fellow student, testified that he held the classroom door open as all the children reentered the room from recess; plaintiff was last in line; and, in jest, he shut the door on her leg.

Robin Robinson (Robin), also a fellow student, testified that she did not see plaintiff sustain the injury, although plaintiff was directly behind her. Diamond held the door open after the teacher initially opened it and, after the accident, Diamond was outside the door. She did not know if he was holding the door at the time of the injury because she was already in the room. She did not look at plaintiff’s leg for injuries. She saw that the spring at the top of the door was missing. Prior to the incident, the door tended to shut quickly and would not stay open unless someone held it.

Deborah Bakos, plaintiff’s teacher at the time of the occurrence, testified as an adverse witness. She did not see the accident, but was told about it afterward. She was unaware of any protective covering on the edge of the schoolroom door. In defendant’s case in chief, she testified that school custodian Andrew Lathan maintained the classroom on the date of the accident. The door had a hydraulic closure at the top.

Andrew Lathan, custodian in charge of the room on the date of the occurrence, testified on behalf of defendant. He examined the door on the day of the accident as it was his responsibility to make sure it worked properly; he would have repaired broken metal on the door and would have fixed the door if it tended to slam shut. Les Fant, assistant principal at the time of the injury, testified that he prepared the school accident report regarding this incident.

Dr. Allen Wright, an orthopedic surgeon, treated plaintiff at St. Bernard Hospital on the day after the accident. Plaintiff complained of severe pain in her left knee. He found marked swelling and an abnormal build-up of fluid, with infusion into her knee joint. She sustained an abrasion on the patella-tendon area. Bacteria entered plaintiff’s system due to trauma, diagnosed as “a septic arthritis [sic],” secondary to staphylococcous aureus invasion of the tissue. This condition could have been due to plaintiff’s accident on September 9, 1977. A subsequent examination revealed muscular atrophy and a scar. Plaintiff may experience future repeated flare-ups permanently.

Dr. Sharukin Yelda, an orthopedic surgeon, testified through a video tape presentation. He diagnosed plaintiff’s condition as chronic osteomyelitis of the femur, which is an infection of the bone. The disorder could have been caused by the school accident. Plaintiff was admitted to a hospital twice due to the infection. The infection may flare up in the future.

Dr. Howard Lee testified for the defense. He saw plaintiff on consultation from Dr. Wright in 1977. Plaintiff’s left knee joint was swollen and she could not flex her knee without pain. His diagnosis was traumatic effusion in the left knee joint.

The jury returned a verdict for plaintiff in the amount of $570,000. Defendant’s post-trial motion seeking judgment notwithstanding the verdict or, alternatively, for a new trial was denied. Defendant appeals.

I

Defendant asserts that plaintiff’s injury was not causally related to the classroom door condition, but was sustained solely as a result of Diamond’s actions; therefore, based upon the evidence, neither the alleged absence of a door check device nor the alleged sharp metal or rusty edges on the door were causes of her injury.

A jury’s finding will not be disturbed unless, considering all the evidence in a light most favorable to the prevailing party, the jury’s conclusion is palpably erroneous and wholly unwarranted. (Hargrove v. Neuner (1985), 138 Ill. App. 3d 811, 813, 485 N.E.2d 1355.) Defendant contends that the jury’s verdict here must be reversed because the fact that Diamond intentionally forced the door onto plaintiff was uncontradicted, requiring the jury to conclude Diamond was liable and not defendant; there was no evidence that a door check device was missing from the classroom door, or that such a device would have prevented said injury, precluding a finding against defendant; and there was no evidence to support a conclusion that any sharp metal edges on the door came into contact with plaintiff’s leg at the site of the abrasion, which was identified as a possible entry point of the infection.

Plaintiff testified that Diamond was not holding the door, however. This testimony was unimpeached, contrary to defendant’s assertion. On cross-examination, plaintiff was asked whether Diamond was holding the door, to which she responded “no.” Defense counsel then asked if she recalled stating under oath that Diamond held the door, to which she answered “don’t remember.” At this point, it was incumbent upon defense counsel to prove the impeachment. (Bradford v. City of Chicago (1985), 132 Ill. App. 3d 317, 323, 476 N.E.2d 1221; Rigor v. Howard Liquors, Inc. (1973), 10 Ill. App. 3d 1004, 1008-10, 295 N.E.2d 491.) This counsel failed to do and plaintiff’s testimony remained unimpeached. Accordingly, defendant’s reliance on Aluminum Co. of America v. Home Can Manufacturing Corp. (1985), 134 Ill. App. 3d 676, 480 N.E.2d 1243, is unfounded. The jury was free to disregard Diamond’s testimony, which remained contradicted under these circumstances.

Further, the jury could have found Diamond’s testimony and credibility wanting on this record. Diamond testified there was only one line of children entering the room from recess; plaintiff and Robin related that there were two lines. Diamond did not remember the weather, the day of the week, or the identity of the children directly in front of plaintiff. He also asserted that Ms. Bakos pulled the door open all the way, against the mobile wall. He was assigned to hold it open, which he did, his back against the door, hands behind him on the handlebar, watching the children as they entered. When he saw plaintiff, he asserted, he playfully pulled the door shut on her leg. To do so, he would have had to be inside the room at that time, yet Robin placed him outside, on the platform, directly after the accident. He also revealed that previously he was convicted of a felony and was incarcerated at the time of the trial for another felony. These were factors the jury would have been entitled to take into account in arriving at its decision as to who should be believed.

With respect to plaintiff’s claims that a door check was missing from the door, or that such a device could have prevented the injury, defendant argues that all the evidence, even when viewed most favorably toward plaintiff, so overwhelmingly favors defendant that the verdict for plaintiff cannot stand. There was sufficient evidence, however, to support the assertion that a door check was missing and that such a device could have prevented the injury. Robin testified that a spring was missing from the top of the door, the spring previously had been there, and the door closed fast if not held open. Plaintiff asserted that this door was heavy and was composed of steel. Bakos stated that at 9 a.m., prior to the occurrence, there was a hydraulic door closure at the top of the door. This evidence could have led the jury to conclude that a door check was missing from the door, and the lack thereof permitted or caused the door to be closed quickly.

Plaintiff also testified that on the day of the accident, the steel door edge was “raggedy,” “jaggedy,” and “rusty,” and that the door was in the same condition ever since she attended that school. She never saw repairs being made to the door.

Juries may use their common experience when deliberating. (Dollison v. Chicago, Rock Island & Pacific R.R. Co. (1976), 42 Ill. App. 3d 267, 355 N.E.2d 588.) Based upon this evidence, the jury could have concluded a door check would have retarded, if not prevented, the door from slamming on plaintiff, even if Diamond pushed it. The jury also could have concluded from the evidence that the door was not maintained properly.

The jury was instructed that the owner of property owed a duty to keep it reasonably safe for use. Further, the jury was instructed it could find that defendant carelessly and negligently maintained the door by failing to provide a properly working door check to prevent it from slamming closed on children, by failing to warn of the dangerous door, or by failing to inspect and repair the dangerous condition. The jury additionally was instructed that more than one party could be at fault. Based upon the evidence presented and these instructions, the jury’s finding was not palpably erroneous or wholly unwarranted.

Defendant asserts that the verdict was based upon surmise and conjecture. (Broussard v. Houdaille Industries, Inc. (1989), 183 Ill. App. 3d 739, 539 N.E.2d 360; Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 508 N.E.2d 1201; Gilbertson v. Rolscreen Co. (1986), 150 Ill. App. 3d 192, 501 N.E.2d 954.) We disagree. The evidence revealed that the door could be and was closed quickly, the metal door edge could have been rusty, a closure spring could have been missing, and the door would not stay open on its own. From these facts, the jury properly could infer that defendant’s negligence proximately caused plaintiff’s injury. Dollison, 42 Ill. App. 3d at 278.

Defendant next contends that the evidence does not support a finding that plaintiff’s bacterial infection resulted from contact with the door.

Defendant claims that plaintiff indicated the door made contact on the inside of her leg above the knee. Although plaintiff did not verbalize this circumstance at trial, at closing argument, counsel stated that this is where plaintiff pointed. Dr. Wright testified that the abrasion he found the day after the accident was on the patella-tendon area, below the knee cap, which was the cause of plaintiff’s bacterial infection. This apparent inconsistency is the basis for defendant’s claim that the injury from the door did not cause the infection.

Plaintiff testified the edge of the door struck her thigh and knee. Dr. Wright stated the knee was swollen the day after the injury, and plaintiff was in the emergency room due to pain and swelling. Dr. Wright testified that to his knowledge plaintiff had no other injuries, and this injury was related to the bacterial infection. He further stated the infection was near the knee joint.

A jury may consider circumstantial evidence when evaluating elements of a cause of action. (See Johnson v. Burlington Northern, Inc. (1982), 107 Ill. App. 3d 130, 437 N.E.2d 334.) A jury also may draw inferences of fact and use common experiences in its determinations. (Dollison, 42 Ill. App. 3d at 278.) There was sufficient evidence here for the jury to find that plaintiff’s infection was caused by contact with the door. The jury saw the child and could have believed that the edge of the steel door contacted the area above and below the knee concurrently. The jury’s conclusion that the injury and infection were caused by contact with the door was not palpably erroneous or wholly unwarranted.

II

Defendant next contends that a new trial should have been granted because the jury was not instructed that it could find the intentional acts of Diamond were the sole proximate cause of plaintiff’s injury.

Relying on Miyatovich v. Chicago Transit Authority (1969), 112 Ill. App. 2d 437, 442-44, 251 N.E.2d 345, defendant contends that the second paragraph of Illinois Pattern Jury Instructions, Civil, No. 12.04 (2d ed. 1971) (IPI Civil 2d No. 12.04) should have been given to the jury, which reads:

“However, if you decide the sole proximate cause of injury to the plaintiff was the conduct of some person other than the defendant, then your verdict should be for the defendant.”

Plaintiff argues the evidence leads to no result other than a finding that defendant’s negligence caused plaintiff’s injury, precluding the need for giving the second paragraph. It is possible, however, the jury might have concluded from Lathan’s testimony that there was no rust on the door and from his and Bakos’ testimony that it was equipped with a door check near the time of the accident. Also, there was sufficient evidence for the jury to have determined that Diamond was the sole proximate cause of the injury. Miyatovich held that the second paragraph of IPI Civil 2d No. 12.04 must be given to the jury in a case such as this “in order to correct any negative implications arising from the first paragraph” which would permit the jury to “cease its inquiry after finding a defendant’s negligence to have been simply a cause of the injury” although a third person was the sole proximate cause of the injury. (Miyatovich, 112 Ill. App. 2d at 443-44.) In consonance with Miyatovich, we must conclude that the jury was improperly instructed.

Such an error is reversible, however, only if it has misled the jury. (Ruggiero v. Public Taxi Service, Inc. (1973), 16 Ill. App. 3d 754, 306 N.E.2d 567.) The dissent’s reliance upon Ruggiero as authority for the proposition that a deficiency in one instruction may be cured by other instructions overlooks that part of the opinion which acknowledges “that it was error to refuse to give this part [the second paragraph] of the instruction” (Ruggiero, 16 Ill. App. 3d at 762), but held the error not reversible for another reason, the jury finding on a special interrogatory, not present in the case sub judice, which the court held removed “any claimed harm produced by the omission of this second paragraph.” Ruggiero, 16 Ill. App. 3d at 763.

Here, the first section of IPI Civil 2d No. 12.04 was read to the jury, which could have confused the issue of sole proximate cause. (Miyatovich, 112 Ill. App. 2d 437.) Because Diamond could have been the sole proximate cause of plaintiff’s injury under the evidence in this case, it was reversible error not to give the second paragraph of IPI Civil 2d No. 12.04 to the jury.

Plaintiff maintains that defense counsel told the jury the defective condition of the door had nothing to do with the injury; therefore, no prejudice resulted from not including the second paragraph of IPI Civil 2d No. 12.04. The first paragraph of IPI Civil 2d No. 12.04, which created the confusion regarding proximate cause, was read after the closing argument, however. Accordingly, there is no reason to assume counsel’s theory of proximate cause cured the confusion.

Plaintiff insists that the defense untimely tendered the second paragraph of IPI Civil 2d No. 12.04. Section 2 — 1107 of the Civil Practice Law allows a court to provide jury instructions after argument if, as the result of argument, it is desirable to do so. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1107.) Here, as plaintiff asserts, proximate cause was emphasized in closing. The additional provision of IPI Civil 2d No. 12.04 could have and should have been given.

Plaintiff urges that defendant was required to plead, as an affirmative defense, that Diamond’s conduct was the sole proximate cause of the occurrence. The assertion that a third party is the sole proximate cause of plaintiff’s injury need not be pled as an affirmative defense (Grimming v. Alton & Southern Ry. Co. (1990), 204 Ill. App. 3d 961, 984, 562 N.E.2d 1086; Robertson v. General Tire & Rubber Co. (1984), 123 Ill. App. 3d 11, 16-17, 462 N.E.2d 706) under section 2 — 613 of the Civil Practice Law (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 613). The circuit court was not precluded from giving the omitted paragraph in its instruction to the jury.

Defendant next alleges that the circuit court committed reversible error by not instructing the jury as to the applicable provisions of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1977, ch. 85, par. 3 — 102) (Tort Immunity Act). Those provisions would require a jury to find that defendant’s duty only applied to property used in a manner which was reasonably foreseeable and, further, that defendant would not be liable for injury unless it was proved that it had actual or constructive notice of a condition not reasonably safe. Nevertheless, defendant waived its right to claim error. The Tort Immunity Act must be raised as an affirmative defense. (See Ill. Rev. Stat. 1989, ch. 110, par. 2 — 613(d); First National Bank v. Village of Mundelein (1988), 166 Ill. App. 3d 83, 519 N.E.2d 476; Midwest Bank & Trust Co. v. Village of Lakewood (1983), 113 Ill. App. 3d 962, 447 N.E.2d 1358.) Here, defendant failed to plead it; therefore, this defense cannot be considered even if the evidence reveals its appropriateness. (Spagat v. Schak (1985), 130 Ill. App. 3d 130, 473 N.E.2d 988.) There was no error in refusing to instruct the jury as to the applicability of the Tort Immunity Act.

III

Lastly, defendant contends that the circuit court abused its discretion in barring its medical expert, Dr. Richard Geline, from testifying, based upon Supreme Court Rule 220. 134 Ill. 2d R. 220 (Rule 220).

Although discovery was closed in December of 1984, on September 27, 1988, about V-k years before trial, the defense sought to compel plaintiff to submit to a physical examination pursuant to Supreme Court Rule 215(a) (134 Ill. 2d R. 215(a)). Plaintiff was ordered to appear for the examination, which did not take place until January 13, 1989. Four days later, Dr. Geline was identified by the defense as an expert witness. Plaintiff moved to bar Dr. Geline from testifying. The circuit court, apprised of the facts, barred Dr. Geline from testifying because he could not be deposed in time to comply with Rule 220. Rule 220 provides that all discovery of expert witnesses must be complete no later than 60 days before the date on which the circuit court anticipates trial will commence. The circuit court here was not satisfied with defendant’s excuses for the long delay. Such a finding will not be reversed absent a clear demonstration of discretionary abuse. (Norman v. American National Fire Insurance Co. (1990), 198 Ill. App. 3d 269, 555 N.E.2d 1087.) Nevertheless, in light of the fact that this cause must be retried, the circuit court is directed to reconsider its order barring Dr. Geline’s testimony in order to determine whether any significant prejudice will result, other than the passage of time, should Dr. Geline be permitted to testify.

For the foregoing reasons, the judgment is reversed and the cause is remanded for a new trial, with directions.

Reversed and remanded with directions.

SCARIANO, J., concurs.

JUSTICE McCORMICK,

concurring in part and dissenting in part:

I respectfully concur in part and dissent in part.

I dissent only from the majority’s holding that the failure to include the second paragraph of IPI Civil 2d No. 12.04 could have confused the issue of sole proximate cause and that it was reversible error.

When a party seeks reversal of a trial court’s judgment due to errors in jury instructions, this court must consider all of the instructions as a whole, mindful that “[a] deficiency in one instruction may be cured by another.” (Friedman v. Park District (1986), 151 Ill. App. 3d 374, 389, 502 N.E.2d 826, 837.) We should not reverse the judgment unless the party challenging the instructions shows that the jury was misled to that party’s prejudice. Nowakowski v. Hoppe Tire Co. (1976), 39 Ill. App. 3d 155, 162-63, 349 N.E.2d 578, 585; Webb v. Angell (1987), 155 Ill. App. 3d 848, 854, 508 N.E.2d 508, 514.

The trial court properly instructed the jury on the definition of proximate cause and gave IPI Civil 2d No. A21.02 (Supp. 1981) by which the court informed the jurors of plaintiff’s burden of proving that the negligence of defendant was a proximate cause of the injury to the plaintiff. The jury was instructed that if you find that plaintiff fails to prove this proposition, your verdict is for defendant, and if plaintiff proves this proposition, your verdict is for plaintiff. It’s elementary logic that if defendant’s conduct was negligent and was the proximate cause (in whole or in part) of the injury, the conduct of Diamond could not be the sole proximate cause. The jury found by its verdict that the negligence of defendant was a proximate cause of the injury. The verdict for plaintiff could not have been rendered.

If a perfect trial was conducted, the second paragraph of IPI Civil 2d No. 12.05 would have been given. Assume that the jury during its deliberations found that defendant’s negligence was a proximate cause of the injury. Would it be wrong, in view of this finding, if the jury concluded that it is unnecessary to address the issue of whether Diamond’s conduct was the sole proximate cause of the injury? If Diamond’s acts were the sole proximate cause of plaintiff’s injuries, that fact would preempt and exclude the possibility of defendant’s negligence being a proximate cause. A finding that one party’s conduct is a proximate cause cannot coexist with a finding that another person’s conduct is the sole proximate cause. The jury’s verdict in favor of plaintiff dismisses the possibility of Diamond’s conduct being the sole proximate cause of plaintiff’s injuries.

This court in Ruggiero v. Public Taxi Service, Inc. (1973), 16 Ill. App. 3d 754, 306 N.E.2d 567, found that the trial court improperly refused to include the second paragraph of IPI Civil 2d No. 12.04 in its jury instructions, but this court affirmed the trial court’s judgment, finding that the defendant did not show that the error misled the jury. This court stated:

“The jurors *** were properly instructed as to the definition of proximate cause. Defendants’ instruction No. 11, which was given, informed the jurors that plaintiffs had the burden of proving, inter alia, '*** that the negligence of the defendants was a proximate cause of the injuries to the plaintiffs.’ They were also instructed that, ‘If, on the other hand, you find from your consideration of all the evidence, that any one of the propositions the plaintiff is required to prove has not been proved, *** then your verdict should be for the defendants.’ Thus the jury was told that if they found [codefendant’s] conduct was not a proximate cause of plaintiffs’ injuries, they must rule for defendants. This, in essence, gives the jury the same information as the second paragraph would have given them.” Ruggiero, 16 Ill. App. 3d at 762-63, 306 N.E.2d at 573.

The instructions given in this case were essentially identical to the instructions given in Ruggiero on the issue of proximate cause. The defendant in this case, like the defendant in Ruggiero, has not shown that the jury was misled to defendant’s prejudice by the instructions considered as a whole, and therefore, the judgment of the trial court should be affirmed.


source: Caselaw Access Project

author: JUSTICE CAMPBELL

license: Public Domain

text:
    OFFICE ELECTRONICS, INC., Plaintiff-Appellant, v. JANI L. ADELL, Defendant-Appellee.
    First District (1st Division)
    No. 1—90—2867
    Opinion filed April 27, 1992.

      Winston & Strawn and Sander D. Levin, P.C., both of Chicago (David S. Acker, Paul P. Biebel, Jr., Caryn S. Mohan, and Jeffrey W. Brend, of counsel), for appellant.
    Griffin & Fadden, Ltd., of Chicago (Bradley B. Falkof, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Office Electronics, Inc. (OEI), appeals from an order of the circuit court of Cook County denying OEI’s motion for preliminary injunction. OEI sought the preliminary injunction to enforce a noncompetition agreement against defendant Jani L. Adell, a former salesperson for OEI. For the following reasons, we affirm the judgment of the trial court.

The record on appeal reveals the following facts. On September 14, 1990, plaintiff OEI filed a verified complaint seeking to enjoin defendant Adell from soliciting business from 88 customers listed in an attachment to the complaint. In the complaint, plaintiff identifies itself as a corporation engaged in the manufacture and sale of printing used in data processing, marketing and other business applications. The complaint alleges that on June 10, 1985, plaintiff and defendant allegedly signed a document entitled “EMPLOYMENT AGREEMENT,” which provides in relevant part:

“7. PROHIBITIONS REGARDING OFFICE ELECTRONICS’ CUSTOMERS AND EMPLOYEES.
(a) It is understood and agreed by Salesperson that all business relationships and goodwill now existing with respect to customers of Office Electronics to be served by Salesperson hereunder, whether or not created by Salesperson, and all such relationships and goodwill which may hereafter be created or enhanced by Salesperson in the course of employment hereunder, constitute proprietary rights and interests of Office Electronics, and shall inure to the sole benefit of and are and shall at all times remain the sole property of Office Electronics. Accordingly, Salesperson agrees that during the term of this Agreement and for a further period of one year beginning on the termination of this Agreement under any circumstances, he/she will not, as proprietor partner, joint venturer, stockholder, director, officer, trustee, principal, agent, servant, employee, or in any other capacity whatever, directly or indirectly solicit orders from, sell or render services to any customer solicited, sold, or serviced by Salesperson in the course of employment by Office Electronics as a salesperson at any time during the term of this Agreement, with respect to any product or service sold by Office Electronics or any subsidiary or affiliated corporation, nor shall Salesperson directly or indirectly aid or assist any other person, firm, or corporation to do any of the aforesaid acts.”

The complaint further alleges that defendant was employed by plaintiff as a sales representative from June 10, 1985, until her voluntary resignation on August 17, 1990. It is also alleged that during that time, defendant serviced a number of OEI accounts in Chicago and its suburbs. After her resignation, defendant allegedly was hired by the Combined Printing Corp., a competing marketer of business forms in the Chicago metropolitan area. Defendant has since contacted customers she serviced at OEI, allegedly in violation of the terms of the employment agreement.

These allegations also form the basis of plaintiff’s verified motion for preliminary injunction, which was filed the same day as the initial complaint.

A “Verified Answer to Complaint” is attached to plaintiff’s brief as exhibit “D.” It appears, however, that this document is not contained in the record on appeal.

On October 2, 1990, the trial court held a hearing on the motion for preliminary injunction. The report of proceedings indicates that there was an initial colloquy concerning production of documents. The trial court then stated as follows:

“THE COURT: Well, without ruling on the difficulties that this late production causes the defendants, I have not had the opportunity to go deeply into the pleadings in preparation for the hearing on preliminary injunction.
It would seem that before I hear evidence on the plaintiff’s protectible business interests in the plaintiff’s customers, I should hear argument on the reasonableness of the restrictive covenant that’s contained in the employment agreement. The reason for that is that if the agreement is overbroad or vauge [sic] it may not be enforced and there’s no need to hear evidence.”

The trial court then discussed the law of noncompetitive agreements in Illinois and indicated that the court had reviewed the agreement closely. The trial court then stated:

“THE COURT: *** And with that as the basis upon which I invite your inquiry, I would now like to discuss with you, or have you discuss with me, the language ‘directly or indirectly solicit orders from, sell or render services to any customer solicited, sold or serviced.’ That language is critical.”

The trial court then heard argument on the meaning of the restrictive covenant. At one point, in an exchange with plaintiff’s attorney, the trial court stated:

“THE COURT: But read your clause, counsel. My focus is that you have a right to protect your customers. You don’t have a right to protect your prospects. This agreement attempts to protect your prospects. This agreement says the employee agrees not to ‘directly or indirectly solicit orders from,’ leaving the rest blank, ‘any customer solicited.’
So what this agreement does is it not only purports to bar the defendant’s sales to customers who the defendant had sold to while she was engaged with the plaintiff, but it further purports to preclude her from soliciting orders from those she had previously solicited, but had never sold.”

Plaintiff responded that it interpreted a “customer solicited” as a person who had already purchased goods or services from OEI, but was being solicited for additional business, such as for products not previously bought by that customer.

The trial court ruled that the covenant was facially invalid due to overbreadth because: (1) it barred defendant from soliciting from those who were never customers of OEI, but who may have been solicited at an earlier time; (2) it barred solicitation of any person who was an OEI customer during defendant’s employment, regardless of whether that person remained an OEI customer; and (3) it applied to all of OEI’s products and services, regardless of whether defendant had ever sold a particular product or service. The trial court entered an order denying the motion for preliminary injunction “for the reasons stated *** in open court” on October 2, 1990. Plaintiff now appeals.

We first discuss the proper standard of review to be employed in this case. In general, the decision to grant or deny preliminary injunctive relief falls within the broad discretion of the trial court; accordingly, such decisions will not be disturbed on appeal absent a clear abuse of that discretion. (Witter v. Buchanan (1985), 132 Ill. App. 3d 273, 279, 476 N.E.2d 1123, 1128.) This standard is applied because a hearing on a preliminary injunction is not an adjudication on the merits; it is only when an order effectively decides the merits that this court examines whether the trial court’s findings are against the manifest weight of the evidence and whether the trial court was legally correct. (See Witter, 132 Ill. App. 3d at 279, 476 N.E.2d at 1128.) The parties in this case both argued that the trial court’s decision is subject to de novo review, but both parties relied on cases involving motions to dismiss, rather than a motion for preliminary injunction.

We next turn to the question of whether the trial court erred in denying the motion for preliminary injunction, given the state of the record on appeal. A party seeking preliminary injunctive relief must establish: (1) a certain and clearly ascertainable right needing protection; (2) irreparable injury will occur without injunctive relief; (3) no adequate remedy at law exists; and (4) a probability of success on the merits. (A.B. Dick Co. v. American Pro-Tech (1987), 159 Ill. App. 3d 786, 791, 514 N.E.2d 45, 48; McRand, Inc. v. Van Beelen (1985), 138 Ill. App. 3d 1045, 1050, 486 N.E.2d 1306, 1310; Morrison Metalweld Process Corp. v. Valent (1981), 97 Ill. App. 3d 373, 375, 422 N.E.2d 1034, 1036.) Where the basis for the preliminary injunction rests in the complaint, plaintiff is required to allege, with both certainty and precision, specific facts regarding these elements, including that of irreparable harm. (See Illinois Municipal League v. Illinois State Labor Relations Board (1986), 140 Ill. App. 3d 592, 608, 488 N.E.2d 1040, 1051; Whitaker v. Pierce (1976), 44 Ill. App. 3d 148, 150, 358 N.E.2d 61, 63.) However, an evidentiary hearing on a motion for preliminary injunction is generally required where a verified answer is filed denying material allegations in the complaint. Peoples Gas Light & Coke Co. v. City of Chicago (1983), 117 Ill. App. 3d 353, 355, 453 N.E.2d 740, 742.

On appeal, no verified answer appears in the record. Plaintiff has attached what purports to be such an answer to its brief and stated at oral argument that it believed the answer had been tendered in open court. Defendant stated that the exclusion of the answer was merely an oversight. Although an attachment to a brief is no substitute for a record, this court may consider the attachment if the parties so stipulate at oral argument. Chicago Title & Trust Co. v. Brooklyn Bagel Boys, Inc. (1991), 222 Ill. App. 3d 413, 417.

In this case, the trial court heard the argument of counsel for both parties. The trial court also had before it the verified complaint, including the attachments thereto. These attachments included the agreement at issue, a list of 88 entities to which OEI believed the agreement to apply, and correspondence between OEI and Adell, as well as between Combined Printing Corp. and OEI. In addition, the trial court apparently had before it the verified answer to the complaint. The verified answer, however, is important not only because it raises the issue of overbreadth, but also because it does not deny the basic facts upon which OEI’s complaint is based. In particular, the verified answer admits that defendant signed the agreement attached to the complaint and was employed from June 10, 1985, through August 17, 1990. The answer further admits that defendant became employed by the Combined Printing Corp. in August 1990 and has since contacted customers she serviced at OEI.

Given the nature of the verified answer in this case (or its possible absence), we conclude that the trial court’s refusal to hold a full evidentiary hearing was not a clear abuse of discretion. The record on appeal, such as it is, indicates that the parties agreed on the facts which comprised the essence of plaintiff’s complaint. The transcript of proceedings indicates that plaintiff was prepared to show that the 88 entities listed in the attachment to its complaint had all done business with plaintiff through defendant within the past year. However, as plaintiff notes in its brief, the trial court would not have had a problem with restricting defendant from dealing with 88 OEI customers for a period of one year. The transcript further indicates that plaintiff was prepared to show that 95% of defendant’s time was spent in connection with customers of OEI, as opposed to the recruitment of new clients. Nevertheless, the transcript clearly indicates that the trial court’s ruling in this case depended on its interpretation of the covenant as broader than plaintiff’s request as stated at the hearing. It is therefore apparent that the evidence that plaintiff was prepared to introduce would not have affected the outcome in the trial court.

Since the facts and circumstances presented by the record at this time indicate that the trial court did not clearly abuse its discretion in denying relief based on the facts as set forth in the complaint, it is appropriate for this court to consider whether the motion for preliminary injunction was sufficient. (Whitaker, 44 Ill. App. 3d at 150, 358 N.E.2d at 63.) Even a cursory review of the motion in this case reveals that plaintiff’s allegations concerning irreparable injury and the lack of an adequate legal remedy are merely conclusory and fail to set forth facts with the detail necessary to support the issuance of a preliminary injunction. (Whitaker, 44 Ill. App. 3d at 151, 358 N.E.2d at 63-64.) We stress, as did the Whitaker court, that our sole function on appeal is to review whether the trial court abused its discretion in denying preliminary injunctive relief; we express no opinion on the merits of the case. Whitaker, 44 Ill. App. 3d at 152, 358 N.E.2d at 64.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

O’CONNOR and MANNING, JJ., concur.


author: PRESIDING JUSTICE GREIMAN

text:
      In re MARRIAGE OF GORDON SEVERSEN, Petitioner-Appellant, and CLAUDIA SEVERSEN, Respondent-Appellee.
    First District (3rd Division)
    No. 1—90—1815
    Opinion filed April 29, 1992.

      Paul J. Bargiel, P.C., of Chicago, for appellant.
    Steven A. Miner, of Barrington, for appellee.
   PRESIDING JUSTICE GREIMAN

delivered the opinion' of the court;

Petitioner Gordon Seversen (Gordon) appeals from a judgment for dissolution of marriage entered on October 12, 1989. Gordon contends that the trial court erred (1) in finding that respondent Claudia Sever-sen (Claudia) did not dissipate $80,000 which she received in 1983 as termination benefits when she left a former job; and (2) in valuating the property.

As to the trial court’s finding that Claudia did not dissipate certain funds, we modify in part and remand with directions. We affirm the trial court’s valuation of the property.

The parties married on April 15, 1972. No children were born of this marriage. In March of 1981, Claudia left the marital residence, a condominium located in Palatine, Illinois, and filed a petition for dissolution of marriage. After a contested trial, the circuit court entered an order denying her petition for dissolution of marriage on April 10, 1984.

On April 16, 1984, Gordon filed a petition for dissolution of marriage. In August of 1984, Claudia reentered the Palatine condominium where Gordon was residing. By order dated October 3, 1984, the circuit court directed Claudia to vacate the marital home and barred her from the Palatine premises. Claudia testified that she had no intention of reconciling with Gordon when she reentered the Palatine residence. Although Claudia stayed at the Palatine condominium for approximately two months in 1984, the parties do not dispute that the breakdown of their marriage occurred in March of 1981 when Claudia initially left the marital home. Claudia subsequently lived in Elgin with her daughter from a previous marriage.

At the time trial commenced in March of 1988, Gordon was 65 years old and Claudia was 48 years old. Throughout their marriage, Claudia and Gordon never had a joint checking or savings account. The parties held no joint assets with the sole exception of the Palatine real estate.

On October 12, 1989, the trial court entered its judgment for dissolution of marriage and found that Claudia had no nonmarital estate and valued Gordon’s nonmarital estate between $118,046 and $161,012. The marital estate was valued at $258,178. The trial court then divided the property as follows.

Gordon was awarded the following assets:

(1) Palatine condominium (the marital residence valued at $53,000);
(2) Elmhurst home (a home acquired by Gordon prior to his marriage to Claudia and valued at $84,000);
(3) Seversen Engineering (a business acquired by Gordon prior to the marriage);
(4) Bloomingdale Secretarial Services (a business purchased by Gordon during the marriage and valued at $14,000);
(5) a bond valued at $5,000;
(6) a life insurance policy (purchased by Gordon prior to the marriage and valued at $6,655); and
(7) all accounts held in Gordon’s own name.

Claudia was awarded the following assets:

(1) Pension from a former employer valued at $9,400;
(2) all accounts held in Claudia’s own name;
(3) judgment in the amount of $62,993 to be paid by Gordon.

In addition, the trial court found that Claudia had not dissipated $80,000 which she received as termination benefits in September of 1983 when she was laid off from her job at Universal Oil Products (UOP). To account for the use of these fimds, Claudia had prepared an itemized summary of expenses for the years 1983,1984 and 1985.

On appeal, Gordon first asserts the “no dissipation” finding is erroneous because: (1) at the time Claudia received this money (1983), the marriage had irretrievably broken down since she had left the marital home and filed for a divorce; and (2) Claudia used the money for her sole benefit for a purpose unrelated to the marriage.

Claudia responds that she accounted for the entire $80,000 to the best of her knowledge and documentary evidence was available to Gordon for the five years that this proceeding was pending. Claudia contends that she did not use the funds for a purpose unrelated to the marriage because the funds were used to provide for her needs after Gordon had obtained an order excluding her from the marital residence. Thus, according to Claudia, her use of the funds excused Gordon from any obligation of maintenance. Claudia also argues that the parties always intended to keep their funds separate as evidenced by the fact that they never maintained a joint account and no evidence was adduced of an intent to wilfully dissipate marital assets.

The term “dissipation” refers to “the ‘use of marital property for the sole benefit of one of the spouses for a purpose unrelated to the marriage at a time that the marriage is undergoing an irreconcilable breakdown.’ ” (In re Marriage of O’Neill (1990), 138 Ill. 2d 487, 497, 563 N.E.2d 494 (the contested expenditure did not constitute dissipation of marital assets because there was no claim that the expenditure occurred during the time the marriage was undergoing an irreconcilable breakdown), quoting In re Marriage of Petrovich (1987), 154 Ill. App. 3d 881, 886, 507 N.E.2d 207 (a finding of dissipation was appropriate because the charged party offered only indefinite and unsupported testimony to explain what had happened to nearly $2 million in stock investments which he claimed was lost).) In the present case, there is no dispute that Claudia expended the contested funds at a time when the marriage was experiencing an irretrievable breakdown.

Whether or not a given course of conduct constitutes dissipation depends on the facts of the particular case. (Petrovich, 154 Ill. App. 3d at 886.) The issue of dissipation is generally a question of fact, and the trial court’s findings will not be disturbed unless the trial court’s decision is contrary to the manifest weight of the evidence and thus an abuse of discretion. (In re Marriage of Zirngibl (1991), 237 Ill. App. 3d 1049; In re Marriage of Sobo (1990), 205 Ill. App. 3d 357, 562 N.E.2d 1083.) Furthermore, where the facts are disputed, the credibility of the witnesses and the weight to be given their testimony are matters for the trier of fact. (Sobo, 205 Ill. App. 3d at 360.) The trial court’s credibility determination is central to the adjudication where, as in the present case, the husband and wife are the primary witnesses. (In re Marriage of Westcott (1987), 163 Ill. App. 3d 168, 175, 516 N.E.2d 566.) An abuse of discretion occurs only where no reasonable person could take the view adopted by the trial court. Zirngibl, 237 Ill. App. 3d 1049.

In the present case, we cannot say that no reasonable person could take the view adopted by the trial court in finding that Claudia did not dissipate $58,000 of the $80,000 she received as termination benefits. However, we find that $20,000 which Claudia used to purchase stock in a printing business and $2,000 which Claudia spent to buy a computer and a printer constitutes dissipation.

A person charged with the dissipation is obligated to establish by clear and specific evidence how the funds were spent. General and vague statements that the funds were spent on marital expenses or to pay bills are inadequate to avoid a finding of dissipation. (Petrovich, 154 Ill. App. 3d at 886; see also In re Marriage of Partyka (1987), 158 Ill. App. 3d 545, 549-50, 511 N.E.2d 676.) Moreover, an explanation given by a spouse charged with dissipation as to how funds were spent requires a trial court to determine her credibility. In re Marriage of Adams (1989), 183 Ill. App. 3d 296, 538 N.E.2d 1286.

Initially we note that this dissolution proceeding lasted over five years from the time Gordon filed his petition for dissolution in 1984 until the trial court entered its judgment in 1989. Throughout those years, numerous document requests were filed and answered, depositions of the parties were taken, and trial testimony was given over the course of a year beginning in March of 1988. With all the documentary and testimonial evidence before her and with her advantage of observing the witnesses’ demeanor and credibility, the trial judge found that Claudia had not dissipated funds and thus satisfactorily accounted for her expenditures.

We cannot say that this ruling was an abuse of discretion or against the manifest weight of the evidence. A finding of dissipation is required where the charged party fails to explain specifically how the disputed funds were spent. (In re Marriage of Los (1985), 136 Ill. App. 3d 26, 482 N.E.2d 1022.) An inadequate explanation has been found where the charged party merely testified that the money was spent “to ‘live on and pay the bills’ ” (Partyka, 158 Ill. App. 3d at 552) or for “his cost of living and his bills” (Los, 136 Ill. App. 3d at 33), and where the charged party produced no evidence (In re Marriage of Radae (1991), 208 Ill. App. 3d 1027, 567 N.E.2d 760). In contrast, Claudia, as the charged party, provided a detailed accounting of how the funds were spent and testified that the figures were based on cancelled checks, credit card statements, bills, receipts, and estimates for cash expenditures.

Claudia’s itemization included expenses for rent, food, transportation, medical and dental care, utilities, school, job search, clothes, taxes, attorney fees for this divorce, movers, jewelry, and routine day-to-day needs. The record further reveals that when Claudia and Gordon were living together, Claudia’s daughter from a prior marriage resided with them in the marital home. When Claudia and Gordon ceased living together, Claudia and her daughter then shared a residence. Moreover, Claudia was forced to vacate the marital home by court order and her motions to reenter the marital home or to receive temporary maintenance apparently remained undecided.

Gordon relies on this court’s decision in Partyka (158 Ill. App. 3d 545, 511 N.E.2d 676), which found that the funds used by the husband to maintain and furnish an apartment after he vacated the marital home constituted dissipation. Unlike the present case, however, no court order barred the husband in Partyka from the marital residence when he moved into a separate apartment.

Gordon also relies on In re Marriage of Harding (1989), 189 Ill. App. 3d 663, 678, 545 N.E.2d 459, which stated that the “[u]se of marital property to secure housing after leaving the marital home is an expenditure for a purpose unrelated to the marriage.” In Harding, an agreed injunction order was entered which enjoined the parties from disposing of a specified list of properties including the husband’s medical practice. In violation of this injunctive order, the husband sold his medical practice and used a portion of the proceeds from the sale to buy a house. In contrast, no agreed injunction order was entered in the present case and Claudia did not sell any marital assets to purchase a nonmarital home.

When a couple live apart while undergoing a dissolution of marriage, the spouse who remains in the marital residence is allowed to spend marital funds for necessary, appropriate and legitimate living expenses including the maintenance of the marital residence. (In re Marriage of Sevon (1983), 117 Ill. App. 3d 313, 453 N.E.2d 866; see also In re Marriage of Rai (1989), 189 Ill. App. 3d 559, 565, 545 N.E.2d 446 (“[w]here the funds are spent for legitimate family expenses, and necessary and appropriate purposes, there is no dissipation”).) Similarly, the wife who occupied the marital home after the husband moved did not dissipate funds by withdrawing from marital accounts the money necessary to pay the day-to-day expenses of the wife and her children in Sobo (205 Ill. App. 3d 357, 562 N.E.2d 1083). The same outcome occurred in Zirngibl (237 Ill. App. 3d 1049), where the wife moved and the husband remained in the marital home. To the extent that the husband expended funds for food, clothing and necessities of life, there was no dissipation.

During the dissolution of marriage proceedings in In re Marriage of Hensley (1991), 210 Ill. App. 3d 1043, 1046-47, 569 N.E.2d 1097, the husband vacated the marital residence. The trial court ordered that his “ ‘reasonable expenses caused by his having to live elsewhere than the marital home shall be taken out of marital assets on a share and share alike basis.’ ” Similarly, by court order, the wife in Hensley was allowed to withdraw “ ‘such amounts from time to time which are usual and necessary for living expenses for her and the two minor children of the parties.’ ” The husband was found to have dissipated funds because he could not account for money spent on his living expenses and he admitted that he was unsure of where all the money went.

We find the Hensley case instructive because the underlying principle recognizes that marital assets used by a spouse who is not able to live in the marital residence during the pendency of a dissolution of marriage proceeding should not necessarily be treated differently than the marital assets spent by a spouse who lives in the marital home during the dissolution proceeding. As the husband in Hensley had “ ‘to live elsewhere than the marital home,’ ” Claudia had to vacate the marital home by court order. (Hensley, 210 Ill. App. 3d 1046.) Under these particular circumstances, to penalize Claudia for spending her termination benefits on usual and necessary living expenses, such as food, rent and transportation, would seem unfair and unjust.

The dichotomous treatment of spouses based on the location of their residence while they are in the process of dissolving their marriage defies reason and reality. During the marriage, the spouses do not differ in the need for usual living expenses. During the dissolution process, the needs of each party remain unchanged yet the disparate application of the dissipation principle penalizes one spouse while it condones the same type of expenditures for the other spouse.

We continue to adhere to our prior denunciation of dissipation as “an unacceptable practice that will not be sanctioned.” (In re Marriage of Smith (1983), 114 Ill. App. 3d 47, 51, 448 N.E.2d 545.) Wasteful expenditures, concealment of assets, unsupported allegations of the use of marital funds, and similar misuse of assets will not be condoned. See In re Marriage of Osborn (1990), 206 Ill. App. 3d 588, 564 N.E.2d 1325 (husband dissipated funds which were used to take three pleasure trips with another woman after separation from his wife); Sobo, 205 Ill. App. 3d 357, 562 N.E.2d 1083 (husband dissipated marital assets by incurring substantial gambling debts); Rai, 189 Ill. App. 3d 559, 545 N.E.2d 446 (husband demonstrated blatant dissipation when he diverted and hid assets, altered financial documents, spent huge sums of money without his wife’s knowledge, and failed to account for inordinate amounts of missing funds).

For all of the foregoing reasons, we find that the trial court did not abuse its discretion in finding that Claudia did not dissipate the $58,000 she used for legitimate living expenses.

However, we also find that the trial court abused its discretion in holding that Claudia had not dissipated the funds used to buy a computer, a printer, and stock in a printing business. These items, totaling $22,000, are not usual and necessary living expenses.

The apportionment of dissipated funds may be charged against a spouse’s share of the marital property so as to compensate the other party. (Partyka, 158 Ill. App. 3d at 550.) An award of cash or property equal to half of the amount dissipated is not mandated. In re Marriage of Durante (1990), 201 Ill. App. 3d 376, 386, 559 N.E.2d 56; In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 464, 426 N.E.2d 1087.

Since the record contains sufficient facts to enable us to order a reapportionment of the dissipated funds, remandment for a new hearing is not necessary. (In re Marriage of Madoch (1991), 212 Ill. App. 3d 1007, 571 N.E.2d 1029.) The trial court ordered Gordon to pay to Claudia the sum of $62,993 for her entire interest in all marital property, which was valued at $258,178. Accordingly, the marital estate was divided approximately 24% to Claudia and 76% to Gordon. Applying the same distribution to the amount of funds dissipated ($22,000), we direct that the $62,993 judgment against Gordon be reduced by $16,720 and entered in the amount of $46,273.

Next Gordon asserts that the trial court abused its discretion in its valuation of the property because it: (1) failed to consider assets in existence and in possession of Claudia; (2) failed to use the same date for valuation of all assets; and (3) undervalued some assets and overvalued other assets. Specifically, Gordon points to five categories of property which he argues were valued improperly.

Gordon first reasserts that Claudia dissipated the $80,000 she received in termination benefits. Second, he argues that the $20,000 Claudia used to purchase stock in a printing business should have been included in the value of Claudia’s estate. We have already decided these two issues and need not repeat our discussion here.

Third, Gordon contests the trial court’s assigning a value of $185,000 to his liquid assets. In its order, the trial court noted the several, substantially conflicting figures which were presented on this issue and which ranged from $135,000 to $406,000. We find no error in the trial court’s approach to valuation.

The Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 503) only requires that there be competent evidence of the value of the property (In re Marriage of Hyland (1981), 95 Ill. App. 3d 31, 37, 419 N.E.2d 662) and vests the trial court with broad discretion in the valuation of marital assets. (In re Marriage of Malters (1985), 133 Ill. App. 3d 168, 478 N.E.2d 1068.) In the instant case, the trial court was presented with substantial, conflicting evidence regarding the value of Gordon’s liquid assets including testimony by both parties and their respective experts. From our review of the record, we cannot say that the valuation determined by the trial court was an abuse of discretion.

Fourth, Gordon notes that the trial court awarded the Bloomingdale Secretarial Services business to Gordon after finding that Gordon purchased this business during the marriage and that it constituted a marital asset worth $14,000. Gordon submits that this business was sold on November 2, 1987, and the sale proceeds were added to his version of his liquid assets provided in an exhibit. Thus, Gordon maintains that by adding the value of this business to his portion of marital assets, the trial court overstated his share by $14,000.

We find Gordon’s argument unpersuasive because the trial court did not base its valuation of Gordon’s liquid assets solely on the exhibit tendered by Gordon. Instead, as previously discussed, the trial court considered the parties’ testimony, the experts’ testimony, and the documentary evidence. There is no indication in the record that the sale proceeds from Bloomingdale Secretarial Services were double counted.

Fifth, Gordon maintains that the trial court erroneously valued Claudia’s pension from UOP at $9,400 and assigned a 6.5% rate of interest to tax-exempt earnings which Claudia had declared. In its judgment, the trial court noted that Claudia testified to having tax-exempt earnings of $1,168 in 1987 but failed to offer an explanation regarding the amount of capital or principal which generated those earnings. Regarding this undisclosed principal, the trial court, sua sponte, assigned an interest rate of 6.5% per year and accordingly determined the value of the undisclosed asset to be $17,969. Gordon argues that the problem with the 6.5% rate of interest is that it did not coincide with the time Claudia purchased the asset in 1987.

We find no abuse of discretion in the trial court’s adoption of a reasonable formula to determine the value of Claudia’s pension and undisclosed principal. The record reveals that the pension value conforms to the expert testimony and evidence. Claudia admitted that she did not know the source of her tax-exempt earnings, and Gordon offered no competent testimony or evidence with which to ascertain a value. The trial court’s determination of the value for Claudia’s unknown principal certainly did not exceed the bounds of reason.

For the reasons stated, we affirm the trial court’s valuation of property and reduce the judgment against Gordon by $16,720.

Judgment affirmed in part; modified in part and remanded with directions.

RIZZI and TULLY, JJ., concur.


author: JUSTICE McMORROW

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JAMAL LAUDERDALE, Defendant-Appellee.
    First District (4th Division)
    No. 1—91—0667
    Opinion filed April 30, 1992.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Veronica X. Calderon, and Catherine A. Hufford, Assistant State’s Attorneys, of counsel), for the People.
    Tate & Schroeder, Ltd., of Chicago, for appellee.
   JUSTICE McMORROW

delivered the opinion of the court:

Defendant Jamal Lauderdale was indicted on one count of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12— 14(a)(2)) and one count of criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 13(a)(1)) with respect to an incident pertaining to L.T. that allegedly occurred in January 1990. Defendant filed a motion to dismiss the count of the indictment charging him with aggravated criminal sexual assault, arguing that the victim’s injuries as alleged in that count did not warrant enhancement of the charge to aggravated criminal sexual assault. The trial court granted the defendant’s motion to dismiss the aggravated criminal sexual assault count in the indictment, and the State appeals. (134 Ill. 2d R. 604(a)(1).) Because we conclude that the allegations of bruising and abrasion to the victim’s vaginal wall and destruction of her hymen were sufficient to constitute the “bodily harm” element of aggravated criminal sexual assault, we reverse and remand.

The record shows that a two-count indictment was returned against defendant in February 1990. Count I alleged that he had committed an act of aggravated criminal sexual assault upon L.T. by “sexual penetration, *** to wit: contact between [defendant’s] penis and [L.T.'s] vagina by the use of force and by the threat of force,” and that this act “caused bodily harm to [L.T.] by causing destruction of the hymen, and causing bruises and abrasions on the inside of vaginal vault.” Count II of the indictment alleged that defendant had committed an act of criminal sexual assault upon L.T. by “sexual penetration, *** to wit: contact between [defendant’s] penis and [L.T.’s] vagina by the use of force and by the threat of force.”

Defendant filed a motion to dismiss count I of the indictment alleging aggravated criminal sexual assault. (See Ill. Rev. Stat. 1989, ch. 38, par. 114 — 1(a) (dismissal of indictment where charge does not state an offense).) Defendant argued that destruction of the victim’s hymen and bruises and abrasions to the victim’s vaginal wall were normal incidents to the criminal sexual assault and therefore could not support enhancement of the charge to aggravated criminal sexual assault.

Following a hearing, the trial court granted the defendant’s motion to dismiss the aggravated criminal sexual assault count of the indictment. The court determined that the alleged bodily harm to the victim was implicit in the act of criminal sexual assault and could not serve to enhance the offense charged to aggravated criminal sexual assault. The trial court later denied the State’s motion to reconsider, and this appeal followed.

The State argues that count I of the indictment, wherein the defendant was indicted for aggravated criminal sexual assault, alleged sufficient injury to the victim to charge the defendant with causing her “bodily harm,” thus enhancing the offense to aggravated criminal sexual assault. On this basis, the State contends that count I of the indictment was sufficient to withstand the defendant’s motion to dismiss that count of the indictment. Defendant responds that because the victim’s vaginal bruises, abrasions, and ruptured hymen were the normal incident of the alleged criminal sexual assault, these injuries could not serve to enhance the offense to aggravated criminal sexual assault.

Section 12 — 13 of the Criminal Code of 1961 states that a person commits the offense of criminal sexual assault when he “commits an act of sexual penetration by the use of force or threat of force.” (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 13(a)(1).) Under the statute, “sexual penetration” is defined as “any contact, however slight, between the sex organ of one person and the sex organ *** of another person.” Ill. Rev. Stat. 1989, ch. 38, par. 12— 12(f).

Section 12 — 14(a)(2) of the Criminal Code provides that the offense of criminal sexual assault is enhanced to aggravated criminal sexual assault if the offender causes “bodily harm to the victim” in committing the act of criminal sexual assault. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 14(a)(2).) Section 12 — 12(b) defines “bodily harm” to “mean[ ] physical harm, and includes, but is not limited to, sexually transmitted disease, pregnancy and impotence.” Ill. Rev. Stat. 1989, ch. 38, par. 12 — 12(b).

In People v. Haywood (1987), 118 Ill. 2d 263, 515 N.E.2d 45, the Illinois Supreme Court found that it is proper to give the term “bodily harm” in the aggravated criminal sexual assault statute the. same meaning that the supreme court ascribed to the term “bodily harm” in People v. Mays (1982), 91 Ill. 2d 251, 437 N.E.2d 633, to interpret the battery statute. In Mays, the court stated:

“Although it may be difficult to pinpoint exactly what constitutes bodily harm for the purposes of the statute, some sort of physical pain or damage to the body, like lacerations, bruises or abrasions, whether temporary or permanent, is required.” (91 Ill. 2d at 256.)

By considering this definition for the term “bodily harm” under the aggravated criminal sexual assault statute, the court in Haywood determined that the definition of this offense was not unconstitutionally vague. (Haywood, 118 Ill. 2d at 275-77.) In so ruling, the Hlinois Supreme Court rejected the view that the distinction between criminal sexual assault and aggravated criminal sexual assault was vague on the theory that “an act of ‘sexual penetration alone constitutes bodily harm by the mere invasion of the victim’s sexual anatomy.’ ” 118 Ill. 2d at 276.

A similar ruling was reached by the court in People v. Wallace (1986), 145 Ill. App. 3d 247, 495 N.E.2d 665, where the court rejected the defendant’s argument that the jury should have been given an instruction defining the term “bodily harm” under the aggravated criminal sexual assault statute. The defendant claimed that the lack of such an instruction permitted the jury to conclude that the vaginal trauma incident to forcible sexual penetration amounted to bodily harm, and thereby eliminate the distinction between criminal sexual assault and aggravated criminal sexual assault. (145 Ill. App. 3d at 253.) The court rejected this contention, reasoning as follows:

“The problem with this [argument of the defendant] lies in the assumption that ‘forcible sexual penetration’ of the vagina will necessarily cause some vaginal trauma. There is no basis for this assumption in the record, and it is certainly incorrect, as ‘ “[s]exual penetration” means any contact, however slight, between the sex organ of one person and the sex organ *** of another person.' Ill. Rev. Stat. 1985, ch. 38, par. 12 — 12(f).” 145 Ill. App. 3d at 253.

In light of this precedent, we are unable to accept the claim of the defendant in this cause that count I of the indictment failed to state the offense of aggravated criminal sexual assault.

The definition of “bodily harm” under the aggravated criminal sexual assault statute includes injuries to sexual organs, such as sexually transmitted diseases, or other medical conditions such as pregnancy or impotence. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 12(b).) Inclusion of these conditions indicates that the legislature intended that the term “bodily harm” be given a broad interpretation to include injuries to the victim’s sexual organs or reproductive capacities. Accordingly, the vaginal abrasions, bruises and ruptured hymen suffered by the victim herein are sufficient allegations of bodily harm to survive defendant’s motion to dismiss. These injuries constitute allegations of “bruises or abrasions, whether temporary or permanent” (Mays, 91 Ill. 2d at 256), and therefore are adequate to charge the defendant with aggravated criminal sexual assault.

We cannot agree with defendant’s assertion that the vaginal injuries suffered by the victim were the normal incident of a criminal sexual assault. Criminal sexual assault does not require vaginal penetration, but only contact between the sexual organs of the defendant and the victim’s vagina. (Ill. Rev. Stat. 1989, ch. 38, pars. 12 — 12(f), 12 — 13(a)(1).) We are unable to say that such sexual contact would necessarily cause bruises and abrasions to the victim’s vaginal wall or destruction of her hymen. In addition, consistent with the reasoning of Haywood, and Wallace, we are not prepared to hold that forcible sexual penetration of a victim’s vaginal cavity will necessarily cause the victim to suffer vaginal bruises, abrasions and a ruptured hymen.

In light of all of these considerations, we find that the allegations of the victim’s injuries as stated in count I of the indictment were sufficient to overcome defendant’s motion to dismiss. Accordingly, we reverse the trial court’s dismissal of the aggravated criminal sexual assault count of the indictment returned against defendant and remand the cause for further proceedings consistent herewith.

Reversed and remanded.

JIGANTI, P.J., and JOHNSON, J., concur.


author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMIE DAVIS, Defendant-Appellant.
    First District (5th Division)
    No. 1—90—2253
    Opinion filed May 1, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Carlos Gonzalez and Karen Tietz, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Barbara Jones, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant, Jamie Davis, was convicted of possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1989, ch. 561/2, par. 1401). At the sentencing hearing, defendant also entered pleas of guilty to possession of a controlled substance (Ill. Rev. Stat. 1989, ch. 561/2, par. 1402) and to unlawful use of a weapon (Ill. Rev. Stat. 1989, ch. 38, par. 24 — 1). The trial court sentenced defendant to consecutive terms of six years’ imprisonment for possession of a controlled substance with intent to deliver, two years’ imprisonment for possession of a controlled substance, and one year’s imprisonment for unlawful use of a weapon. Defendant appeals the jury conviction, contending that he was denied a fair trial because of improper comments made by the prosecution at various points during the trial.

We affirm.

Relevant to our disposition are the following facts as disclosed by the record. Defendant originally received a jury trial in December 1989. The trial court, however, ordered a mistrial after the jury could not reach a verdict. Defendant’s second jury trial began in April 1990.

The respective testimony deduced by the prosecution and defendant presented contrary versions of fact. The prosecution’s testimony indicated the following. On January 6, 1989, Sergeant Thomas Eichler of the Chicago police department dispatched police officers Michael Daukus and Gregory Janettas to conduct a narcotics surveillance at the Scorpion Karate School (school) located at 2338 West Roosevelt in Chicago, Illinois. The officers observed two men (Robert Lee and Leon Johnson) exit the school and enter a Chevrolet van parked on the street. A few minutes later, a third man carrying a sawed-off shotgun under his coat exited the school. This man (Tavares Hall) paced back and forth in front of the school. A few seconds later, defendant exited the school carrying a brown shoulder bag. Defendant and Hall entered the van, which then drove off in a westerly direction on Roosevelt Road. Officers Daukus and Janettas, after contacting Sergeant Eichler by radio, followed the van until it stopped at 3111 West Douglas Boulevard. Sergeant Eichler and additional officers quickly arrived on the scene.

Defendant exited the van with the shoulder bag and walked eastbound on the sidewalk. Officers Daukus and Janettas moved in on the van and ordered Hall to drop the shotgun. Defendant, seeing the commotion, threw the shoulder bag on the parkway and continued walking. Sergeant Eichler detained and arrested defendant; defendant’s shoulder bag was retrieved and was found to contain a white powder substance, $14,000 in currency, a grinder, a sifter, a strainer, a funnel and sealable plastic bags. A second shotgun was found in the van. Hall and the two other men were also arrested; all four men were taken to the area police station.

The police officers then returned to the school, where they met the owner, Harold Burrage (defendant’s brother). Sergeant Eichler explained to Burrage that four men had just been arrested after they were seen exiting the school. Burrage signed a “Consent to Search” form; the blank spaces were later filled in at the police station. Bur-rage initially denied any knowledge of drugs or weapons present in the school but soon admitted that he had a rifle on the premises. The officers searched the premises and recovered the rifle, which was unregistered and had been reported stolen from Pennsylvania. The officers also searched Burrage and recovered $1,000 in cash. Burrage was arrested and taken to the area police station. The officers testifled that they did not find a safe in the school. Sergeant Eichler admitted on cross-examination that he had been present on prior occasions in which defendant, Jamie Davis, had been arrested for possession of controlled substances.

Finally, the prosecution called a police chemist who testified that the white powder substance recovered from defendant’s shoulder bag was cocaine weighing over 20 grams. The prosecution rested.

Defendant called three witnesses: Harold Burrage, Anthony Gipson, and Victor Gonzalez. Defendant also testified on his own behalf. This testimony indicated the following. On January 6, 1989, defendant was driving his brother’s Chevrolet van accompanied by three friends, Tavares Hall, Robert Lee, and Leon Johnson. Robert Lee needed to visit his girl friend, so defendant dropped Lee off and parked the van at 3111 West Douglas Boulevard to wait for Lee.

While defendant waited, a plainclothes officer (Mike McNeil) approached the van; defendant recognized him as “Officer Mike.” Officer McNeil asked defendant to step out of the van. Other officers approached and ordered Hall and Johnson out of the van. The three men were placed in a squad car while the officers ran a computer background check. Defendant was ordered out of the squad car and was searched. The police removed defendant’s keys. All four men were then taken to the area police station where they were handcuffed to rings on the wall. At about 10 p.m. that night the officers returned to the station with shotguns and bundles of money.

Defendant denied that he got out of the van to walk away, denied that he was carrying a brown shoulder bag or that he threw the bag to the ground, and denied that he possessed $14,000 or any of the drug paraphernalia allegedly found in the bag. Defendant admitted that he had been arrested and convicted twice for the unlawful possession of a gun and that he had a drug charge and a weapon charge currently pending against him.

Harold Burrage testified that he collected approximately $25,000 from a karate tournament in October 1988 and that he stored the money in a safe at the school. Burrage and one of his students, Anthony Gipson, arrived at the school around 7:30 p.m. on January 6, 1989. Burrage saw that two unmarked police cars were parked in front of the school and that the gates to the school were opened. Bur-rage told Gipson to go to a pay phone and telephone his mother. Bur-rage walked to the open gates and identified himself. The officers accused Burrage of selling drugs and then handcuffed him. Burrage told the officers that he had a rifle on the premises which had been a gift from one of his students. The officers, without asking for consent, searched the premises recovering the rifle. The officers also searched Burrage and removed money from his wallet. Burrage was taken to the area police station where he was instructed to sign a folded piece of paper. Burrage was not permitted to read the folded paper but the officers told him that he needed to sign the paper in order to recover the money that was taken from his wallet.

Burrage was released and he returned to his school. The safe containing the $25,000 was missing and the premises were in disarray. Anthony Gipson, who had waited outside the school after telephoning Burrage’s mother, testified that he saw police officers remove a safe and some clothing from the school. Louis Gonzalez, another student, testified that he arrived at the school around 6 p.m. and saw police officers remove some clothes and something that appeared to be a safe. Burrage admitted that he did not report the loss of the money to the “authorities.”

Having elicited the above testimony, the defendant rested.

In light of the issues addressed in this appeal, we set forth the following comments of counsel made during both opening and closing arguments. During opening arguments, defense counsel clearly stated that the jury would have to decide the case based on a determination of the credibility of the witnesses. Defense counsel then challenged the credibility of the officers’ testimony, stating “just because the officer said this is what happened doesn’t necessarily mean it’s so.” Defense counsel later added “[i]t’s not to say all police officers are bad, and I don’t want you to take that because we are not talking about all police officers *** we are talking about this incident and their relationship with that man, Jamie Davis, and we all know that some people just don’t like other people.” The prosecution responded, over defendant’s objections, by arguing that the police officers would not risk their careers, reputations, and pensions for the sake of framing defendant. The prosecution added that defendant’s witness Burrage had a motive to lie because he was defendant’s brother and that Gipson and Gonzalez had a motive to lie because they were Burrage’s students.

The prosecution commented several times during both opening and closing arguments that the police had received a “tip” concerning drug activity at the school. There was no evidence of a “tip” in the record. The trial court sustained defendant’s single objection and instructed the jury to ignore the comment. The prosecution also questioned why Burrage did not report the loss of the $25,000 to the “Illinois State Police Department, or the State’s Attorney’s office or the FBI.” The defendant objected and the trial court sustained the objection.

In further response to defendant’s attack on the credibility of the officers, the prosecution mockingly commented to the jury, “You know what today is? January 6th? No. This is let’s frame Jamie Davis day.” The prosecution also challenged whether the jury should believe that Sergeant Eichler and the other officers were “big crooks” as characterized by defendant.

Finally, the prosecution commented during closing arguments that defendant had prior arrests. The prosecution commented: “He’s arrested in other districts and he has two pending cases, a drug case and gun case pending right now. And these were pending before this particular case.” The prosecution specified that the drug case involved possession of “twenty seven packs of cocaine.” However, during trial, defense counsel, using defendant’s own rap sheet, cross-examined one officer about defendant’s prior arrests. The trial court warned defense counsel that the cross-examination would invite comments by the prosecution. During closing argument, defense counsel candidly admitted: “Sergeant Eichler testified that he arrested Jamie Davis on numerous occasions for drugs. Now I’m even the one who brought out all of Jamie’s arrests.”

After closing arguments, the trial court instructed the jury that the arguments of counsel were not evidence and that the jury should disregard any argument which was not based on the evidence.

Opinion

Initially, we note that defendant has failed to preserve the issues of improper prosecutorial comment by failing to specifically raise them in his post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) Defendant contends, however, that the evidence was closely balanced requiring application of the plain error rule. Although defendant’s first trial resulted in a hung jury, that fact alone would not necessarily compel us to view the evidence in the subsequent trial as closely balanced. Nevertheless, even if defendant was correct in his contention that the plain error rule applies, our consideration of the issues would not alter the disposition of this appeal. Accordingly, we will consider the issues as if the plain error rule applied.

We will consider each prosecutorial comment in the order it appears in defendant’s brief.

First, defendant argues that it was improper for the prosecution to suggest that the police officers’ testimony was more credible because of their official position in the community and, more specifically, that it was improper for the prosecution to comment that the police officers would not risk their careers, reputations, and pensions in order to frame defendant. We acknowledge that courts have generally held that these types of comments concerning police officers’ testimony are improper. (People v. Clark (1989), 185 Ill. App. 3d 231, 542 N.E.2d 138.) Here, however, as in People v. Parker (1979), 72 Ill. App. 3d 679, 391 N.E.2d 89, we believe that the question is not whether the argument was proper, but whether it reached the level of impropriety which deprived defendant of a fair trial. In this regard, defendant argues that the comments unfairly played upon the jury’s sympathies. We disagree. The record shows that it was precisely defendant’s strategy to make the credibility of the officers the dispositive issue; defendant expressly attacked the credibility of the officers throughout the trial. Therefore, the prosecution’s comments, in response to defendant’s trial strategy, focused the jury’s attention on the dispositive issue; the comments did not unfairly play upon the jury’s sympathies and did not deny defendant a fair trial.

Second, defendant argues, relying on People v. Ellison (1980), 89 Ill. App. 3d 1, 411 N.E.2d 350, that the prosecution improperly commented that Harold Burrage’s testimony was biased because he was defendant’s brother and that Gipson’s and Gonzalez’ testimony was biased because they were Burrage’s students. We believe that defendant’s reliance on Ellison is misplaced. There, the court held that it was improper for counsel to comment that two witnesses were biased because they shared the same last name; however, there was no evidence in the record that the witnesses were in fact related. Here, the relationships of defendant’s witnesses were established by the record. Therefore, we believe that the prosecutor’s comments arose out of a fair inference of facts in the record.

Third, defendant argues that the prosecution improperly commented that the police officers had received a “tip” about narcotics activity at the school; the record contained no evidence of any “tip.” The prosecution argues that the comment was a reasonable inference from the evidence that the police were conducting a narcotics surveillance. Alternatively, the prosecution, relying on People v. Jenkins (1989), 190 Ill. App. 3d 115, 545 N.E.2d 986, argues that the comment was not sufficiently egregious to warrant a new trial. We agree that Jenkins applies. There, unsupported by any evidence in the record, the prosecution insinuated that the defendant bribed a witness. The trial court sustained the defendant’s objections and admonished the jury to ignore the comment. The appellate court, in turn, held that the court’s admonition to the jury was sufficient to cure any perceived prejudice to the defendant. Here, we do not believe that the comment about the “tip” was any more egregious than a comment about a “bribe.” Further, the trial court here, like the court in Jenkins, sustained each of defendant’s objections and admonished the jury to ignore the comments. We believe that, overall, the jury was not unduly prejudiced by the prosecution’s comments concerning a “tip.”

Fourth, defendant argues that it was improper for the prosecution to comment that Burrage did not report the loss of the $25,000 to the “Illinois State Police Department, or the State’s Attorney’s office, or the FBI.” Defendant argues that these comments served only to bolster the police officers’ testimony. We do not believe that these comments were improper because Burrage did testify that he did not report the loss to the “authorities.” To the extent that the comments were improper, we note that the trial judge sustained defendant’s objection. Therefore, defendant was not prejudiced.

Fifth, defendant argues that several of the prosecution’s comments improperly characterized defendant’s theory of the case. Defendant argues that the use of expressions like “frame up” and “big crooks” unduly inflamed the jury. We disagree. Our reading of the record reflects substantial evidence to support the prosecution’s characterization of defendant’s theory of the case. Further, the prosecution’s use of expressions was within an acceptable range for arguments.

Sixth, defendant argues that the prosecution improperly argued evidence of other crimes at his jury trial and therefore denied him a fair trial. We note that the trial court sustained defendant’s objection and admonished the jury to disregard the remarks. Moreover, defense counsel invited discussion of defendant’s prior arrests. Defense counsel candidly admitted: “Now I’m the one who brought out all of Jamie’s arrests.” Therefore, we find no error in the prosecution’s comments concerning defendant’s other crimes.

Finally, we note that, after closing arguments, the trial court instructed the jury that the arguments of counsel were not evidence and that the jury should disregard any argument which was not based on the evidence. Therefore, the trial court cured any residual prejudice from the prosecution’s comments. (People v. Scott (1990), 194 Ill. App. 3d 634, 551 N.E.2d 288.) In sum, defendant was not denied a fair trial.

Affirmed.

MURRAY and GORDON, JJ., concur.