author: PRESIDING JUSTICE TULLY JUSTICE GREIMAN,

text:
    DAVID VAN MILLIGAN, Plaintiff-Appellant, v. THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE VILLAGE OF GLENVIEW et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—90—2425
    Opinion filed January 20,1993.
    GREIMAN, J., dissenting.

      Frank E. Stachyra, of Riverside, and Flood, Breedeman & Evans, of Park Ridge (James J. Flood and Larry M. Evans, of counsel), for appellant.
    Klein, Thorpe & Jenkins, Ltd., of Chicago (Richard T. Wimmer, of counsel), and Randall, Gayle & Patt, of Glenview (Jeffrey M. Randall, of counsel), for appellees.
   PRESIDING JUSTICE TULLY

delivered the opinion of the court:

This case arises out of the circuit court of Cook County’s administrative review of charges brought by defendant David J. Kelly (Chief Kelly), chief of police of the Village of Glenview, Illinois, against plaintiff Officer David Van Milligan of the Glenview police department (the Department), before defendant Board of Fire and Police Commissioners of the Village of Glenview, Illinois (the Board). It is from the circuit court’s order affirming the Board’s decision to discharge him that Van Milligan appeals to this court. On appeal, Van Milligan contends that: (1) defendants are guilty of laches and thus precluded from bringing charges against Van Milligan; (2) it was improper to apply the doctrine of collateral estoppel to the results of the Federal civil trial so as to prevent Van Milligan from receiving an evidentiary hearing before the Board on the facts forming the basis for Van Milligan’s discharge; and (3) the decision of the Board in discharging Van Milligan was against the manifest weight of the evidence. We reverse and remand.

The genesis of this case is an unfortunate incident which occurred on July 22, 1982, between Van Milligan and Mr. Milton W. Grosse, a resident of Glenview, Illinois. This incident ultimately led to the arrest of Grosse and pressing of criminal charges against him by Van Milligan. The criminal charges against Grosse were ultimately dropped. Grosse filed both a citizen’s complaint with the Department and a civil rights action in Federal court against Van Milligan. In both actions Grosse charged Van Milligan with violating his constitutional rights and with the use of unnecessary force.

In June 1983, pursuant to Rule 8 of “Police Department Rules and Regulations of the Board of Fire and Police Commissioners” (Rules), which addresses the issue of a “Citizen Complaint Against Department Personnel,” Deputy Chief of Police Steve Halls concluded an internal investigation of the matter and found that Grosse’s complaint against Van Milligan was “unfounded.” A finding of “unfounded” is defined in Rule 11 of the Rules, entitled “Conclusion of Investigation Involving Department Members or Employees,” as one in which “[t]he investigation indicates that the act or acts complained did not occur and did not involve police personnel.” This finding was concurred in by Chief Kelly and forwarded to the village manager, Grosse, and Van Milligan.

Subsequently, Grosse filed his Federal lawsuit seeking damages from Van Milligan for violation of 42 U.S.C. §1983 (1988) and for pendant State common law claims. (Grosse v. Van Milligan, No. 83 — C— 9334 (N.D. Ill. filed Dec. 20, 1983).) On October 22, 1986, after a jury trial which found in favor of Grosse, the district court entered judgment against Van Milligan and awarded Grosse $50,000 in compensatory damages and $10,000 in punitive damages.

From the time of the incident through the pendency of Grosse’s lawsuit, Van Milligan continued in his regular duties as a patrolman for the Department. He was never placed on any special or restricted status. Van Milligan was never told by anyone in the Department that he would face disciplinary proceedings should he lose the civil lawsuit. Van Milligan testified that after his attorneys had discussed settling the lawsuit with Grosse, he approached Chief Kelly to discuss the matter and Chief Kelly said, “Don’t settle. The village will be behind you all the way.”

On January 4, 1988, following the district court’s rulings on post-trial motions in the Federal suit, almost hVz years after the incident between Grosse and Van Milligan, Chief Kelly brought the instant charges against Van Milligan before the Board. The charges that were brought against Van Milligan alleged that Van Milligan committed the crimes of assault (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 1) and battery (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 3) against Grosse, directed obscene language and verbal threats towards Grosse, used excessive force in arresting Grosse, and threatened and inflicted physical and emotional harm upon Grosse while he was in custody, all in violation of the Rules. Each charge also contained the allegation that Van Milligan was estopped from litigating the charges before the Board because of the results of the Federal lawsuit.

At the hearing before the Board, Van Milligan filed motions to dismiss the charges on various grounds, among them, that the doctrine of laches applied. All of these motions were denied and on May 3, 1988, the Board found against Van Milligan on four of the five counts, making no finding regarding the charge of directing obscene language and verbal threats towards Grosse. Consequently, Van Milligan was discharged from the Department.

On June 6, 1988, Van Milligan filed the first of two actions for administrative review of the Board’s decision in the circuit court of Cook County. In this action, the circuit court remanded the case to the Board for the limited purpose of allowing Van Milligan to introduce evidence on the question of whether or not his conduct regarding Grosse was within the Rules and training he received as a probationary officer. On remand to the Board, Van Milligan presented additional evidence in accordance with the order of the circuit court. On March 23, 1989, the Board again found against Van Milligan and affirmed its prior decision discharging him.

On April 14, 1989, Van Milligan filed his second action for administrative review in the circuit court of Cook County which was consolidated with his first action. On July 20, 1990, the circuit court, in the consolidated case, affirmed the Board’s action in discharging Van Milligan in the second hearing.

In reviewing this case, we shall not indulge in a reexamination of the civil lawsuit upon which the charges against Van Milligan were based; the United States Court of Appeals for the Seventh Circuit was the proper forum for such an appeal. Nor shall we second-guess the Department’s internal investigation of this matter. Rather than pass judgment on the conflict between Grosse and Van Milligan, which is what it appears the parties to this case wish us to do, we shall instead focus on the process employed by the defendants vis-a-vis Van Milligan. It is with this premise in mind that we now turn to the instant appeal.

Van Milligan argues that the filing of charges against him before the Board is precluded by the doctrine of laches. It is Van Milligan’s belief that the almost S^-year span of time between the occurrence of the incident with Grosse and the bringing of charges, coupled with Chief Kelly’s encouragement not to settle the Federal civil case and assurances of the village’s support, should bar Van Milligan’s discharge on the equitable grounds of laches. We agree.

It is settled law in Illinois that the doctrine of laches can operate as bar to a public entity’s bringing administrative charges against a public employee. (See Mank v. Board of Fire & Police Commissioners (1972), 7 Ill. App. 3d 478, 288 N.E.2d 49; Monroe v. Civil Service Comm’n (1965), 55 Ill. App. 2d 354, 204 N.E.2d 486.) Recently, our supreme court has defined the doctrine of laches as the following:

“Laches is an equitable doctrine which precludes the assertion of a claim by a litigant whose unreasonable delay in raising that claim has prejudiced the opposing party. [Citation.] The doctrine is grounded in the equitable notion that courts are reluctant to come to the aid of a party who has knowingly slept on his rights to the detriment of the opposing party. [Citation.] Two elements are necessary to a finding of laches: (1) lack of diligence by the party asserting the claim and (2) prejudice to the opposing party resulting from the delay.” (Citation.) (Tully v. Illinois (1991), 143 Ill. 2d 425, 432, 574 N.E.2d 659.)

“Whether or not laches will apply as a bar depends on the particular facts and circumstances of each case.” Monroe, 55 Ill. App. 2d at 358.

In the case at bar, we find that the first element necessary to a finding of laches, a lack of diligence by the defendants in asserting their claim against Van Milligan, is met. We remain unconvinced by the defendants’ argument that it was a matter of “definitional necessity” that the outcome of the civil rights case be learned prior to their taking action against Van Milligan. There was nothing at all preventing defendants from pressing charges against Van Milligan at any time during the pendency of the Federal lawsuit. In fact, the Department knew of and investigated Crosse’s allegations against Van Milligan from nearly the moment of the incident. Consequently, we believe the delay of almost hVz years exhibits a lack of due diligence.

We further find that Van Milligan was prejudiced by the delay in bringing charges against him; thus, the second element of laches is fulfilled. No one had ever indicated to Van Milligan that the result of Crosse’s suit would have any effect on his status with the Department. In fact, the Department indicated support for Van Milligan and encouraged him not to settle the litigation. Moreover, the Department determined, in its internal investigation, that the charges against Van Milligan were “unfounded.” It is not unreasonable to believe that had Van Milligan known that the results of the civil suit would be applied in a subsequent disciplinary hearing and would collaterally estop him from litigating those issues before the Board, he might have settled the case or otherwise proceeded differently. Thus, we believe that Van Milligan suffered prejudice as a result of the defendants’ delay. Therefore, the defendants were guilty of laches and barred from bringing charges against Van Milligan.

Since we have determined that the judgment of the circuit court and decision of the Board are in error and require reversal, there is no need to determine the other issues presented in this appeal.

For the foregoing reasons, the judgment of the circuit court of Cook County, affirming the decision of the Board, is reversed and it is ordered that David Van Milligan be reinstated to his position with the Glenview police department.

Reversed.

CERDA, J., concurs.

JUSTICE GREIMAN,

dissenting:

I must respectfully dissent.

The majority suggests that the Village of Glenview is guilty of laches in failing to bring discharge proceedings against the plaintiff within a reasonable time after the incident rather than wait for the decision in the Federal civil rights proceeding.

The majority cites, with some irony, Tally v. State of Illinois (1991), 143 Ill. 2d 425, 574 N.E.2d 659, for its definition of laches. The Tally case dealt with laches attributable to an individual rather than a unit of government. The doctrine of laches or estoppel must be applied with great caution to government and its officials. Such defenses apply to public bodies only under the most unusual circumstances. (Hickey v. Illinois Central R.R. Co. (1966), 35 Ill. 2d 427, 220 N.E.2d 415.) Generally, in applying such doctrines, the courts will not decide such questions by mere lapse of time but rather by all the circumstances of the case and will hold the public estopped only as right or justice may require. City of Quincy v. Sturhahn (1960), 18 Ill. 2d 604, 165 N.E.2d 271.

Accordingly, Tally, which looks at the inaction of a private individual, cannot be the standard for developing the defense of laches against a public body. Only one Illinois case has recognized the doctrine of laches as a bar to discharge of a public employee. (Mank v. Board of Fire & Police Commissioners (1972), 7 Ill. App. 3d 478, 288 N.E.2d 49.) Mank held that charges involving undue force used by a police officer were barred by laches where the charges were filed 39 to 44 months after the incident occurred. However, such recognition of laches was found appropriate only after a review of the evidence indicated conflicting testimony as to what had occurred and that such testimony depended upon recollection and several witnesses were not available. Accordingly, laches was available only where the length of time would be sufficient to cause prejudice where resolution of the factual dispute was solely dependent upon recollection.

In two other public employee discharge cases, the courts rejected the defense of laches. (Bultas v. Board of Fire & Police Commissioners (1988), 171 Ill. App. 3d 189, 524 N.E.2d 1172; Monroe v. Civil Service Comm’n (1965), 55 Ill. App. 2d 354, 204 N.E.2d 486.) In Bultas, the defense of laches was rejected where the complaint was instituted two years after the incident and the plaintiff did not contend that the delay contributed to the unavailability of any material witness and all of the witnesses had the benefit of reviewing prior written statements, none testifying doubtfully or with equivocation as to the incident at issue.

Similarly, the Monroe court determined that there was no change in the subject matter of the suit or in the relation of the parties resulting in any disadvantage to the plaintiff by reason of the 27-month delay in asserting the city’s claim; nor was there any loss or obscurity in the evidence which would have prevented the plaintiff from presenting his defense.

The prejudice which a party must suffer relates to his ability to properly participate in the administrative proceedings and not merely that he was lulled into a false sense of security by the inaction of the public body.

I cannot deny that the plaintiff, had he known at the time of the incident that his position on the force would be threatened, would not have sought different employment or considered a different career track. But as the court determined in Monroe, the plaintiff, there as here, remained in public employment and was paid for his services.

The majority seeks to cast a shadow on the defendant’s motives in awaiting the outcome of the Federal civil rights action. However, in People ex. rel. Casey v. Health & Hospitals Governing Comm’n (1976), 37 Ill. App. 3d 1056, 347 N.E.2d 261, the court determined that public employees who awaited the result of a suit brought by a fellow employee and predicated upon similar circumstances did not bar their claim for reinstatement although almost two years had passed from the time of discharge.

In considering this issue, the court in Casey said “ ‘[a] dismissed government employee acts reasonably, and is not guilty of laches, if he awaits the result of a suit by another employee who was dismissed in similar circumstances.’ ” Casey, 37 Ill. App. 3d at 1059, 347 N.E.2d 261, quoting Duncan v. Summerfield (D.C. Cir. 1957), 251 F.2d 896, 897.

Even under the standard in Tully it is difficult to discern from the majority opinion any prejudice that the plaintiff has suffered. The mere lapse of time does not, in and of itself, rise to the level of prejudice resulting from delay.

I would, therefore, consider the other issues raised by the plaintiff to determine whether this court should reverse and remand to the trial court.

      The doctrine of equitable estoppel is one which precludes a person from acting or asserting a right which he otherwise might do. The doctrine of equitable estoppel has been applied against municipal corporations; however, such a finding against a public body is not favored. (Lindahl v. City of Des Plaines (1991), 210 Ill. App. 3d 281, 295, 568 N.E.2d 1306.) The doctrine has two prerequisites: (1) the affirmative act on the part of the municipality and (2) inducement of substantial reliance by the affirmative act. The affirmative act, however, must be one which induces plaintiffs reliance and must be enacted by the municipality itself, such as legislation, rather than the unauthorized act of a ministerial officer. Lindahl, 210 Ill. App. 3d at 295.
      Accordingly, the encouragement by the Glenview police chief would not be the kind of affirmative act imputed to a municipality. People ex rel. Village of Hazel Crest v. Village of Homewood (1985), 132 Ill. App. 3d 632, 478 N.E.2d 426; VonBokel v. City ofBreese (1981), 100 Ill. App. 3d 956, 427 N.E.2d 322; Amalgamated Trust & Savings Bank v. Village of Glenview (1981), 98 Ill. App. 3d 254, 423 N.E.2d 1230. But see Wheeling Trust & Savings Bank v. City of Highland Park (1981), 97 Ill. App. 3d 519, 423 N.E.2d 245; Forest Preserve District v. Illinois Local Labor Relations Board (1989), 190 Ill. App. 3d 283, 546 N.E.2d 675.


source: Caselaw Access Project

author: JUSTICE McNULTY

license: Public Domain

text:
    WARBUCKS INVESTMENTS LIMITED PARTNERSHIP, Plaintiff, v. EDWARD J. ROSEWELL, Indiv. and as County Treasurer and ex officio Collector of Cook County, Defendant (Northern Illinois Industrial Properties, Inc., Intervening Petitioner-Appellant; Edward J. Rosewell, Collector of Cook County, Defendant-Appellee).
    First District (5th Division)
    No. 1—91—1586
    Opinion filed January 22, 1993.

      Bernard Allen Fried, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Karen A. Covy, Daniel E. Cannon, and Mark E. Repp, Assistant State’s Attorneys, of counsel), for appellee.
   JUSTICE McNULTY

delivered the opinion of the court:

This case involves an appeal by petitioner-intervenor, Northern Illinois Industrial Properties (Northern), of the May 1991 judgment of the circuit court upholding the. constitutionality of the 1990 amendment to section 245 of the Revenue Act of 1939. Ill. Rev. Stat. 1991, ch. 120, par. 726.

On December 12, 1990, Warbucks Investments Limited Partnership (Warbucks) filed a complaint seeking a preliminary injunction as well as a declaratory judgment against Edward J. Rosewell, collector of Cook County (Collector). At issue was the constitutionality of the 1990 amendment to section 245 of the Revenue Act of 1939 and the rules and regulations which put the new provisions into effect. On December 21, 1990, the trial court denied the request for injunctive relief and sustained the validity of the rules and regulations. This holding did not address the constitutionality of the amendment itself. Warbucks did not appeal. On January 4, 1991, Northern presented its petition to intervene as of right in this matter, and filed a motion seeking to declare the Act as amended unconstitutional. In its petition, Northern did not identify its interest in this litigation, its business or its corporate status. Further, Northern did not specify in its pleadings in what way its interest could not be adequately represented by the existing parties or in what way it would or might be bound by an order or judgment in the litigation as statutorily required in order to intervene. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 408.) Northern merely stated in its pleadings that there were other constitutional arguments it wished to present to the court concerning the validity of section 245 of the Revenue Act. In response, the Collector filed a motion to strike and dismiss Northern’s petition to intervene for failing to meet the statutory, requirements (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 408) and a motion to strike and dismiss Northern’s motion to declare the Act as amended unconstitutional.

Northern’s response to the collector’s motion did not address the Collector’s challenge to Northern’s petition to intervene, but rather, ignored it, and instead set forth extensive argument challenging the constitutionality of the amendments to section 245 of the Revenue Act. Thus, the allegation of the Collector in his motion to strike and dismiss Northern’s petition to intervene that Northern failed to meet the statutory requirements to intervene (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 408) stands unrefuted and thus admitted. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 610(b).) Nonetheless, by order entered April 15, 1991, the trial court allowed Northern’s petition to intervene but denied its request for an order declaring the act as amended unconstitutional. Both Northern and the Collector appealed this judgment, the Collector still contending that Northern’s intervention was improper, and Northern maintaining that the Act as amended was unconstitutional.

Illinois law permits individuals to intervene in an existing action if they meet specified criteria. Pursuant to the Code of Civil -Procedure, intervention is allowed:

“(1) [Wjhen a statute confers an unconditional right to intervene; or (2) when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant will or may be bound by an order or judgment in the action; or (3) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property in the custody or subject to the control or disposition of the court or a court officer.” Ill. Rev. Stat. 1989, ch. 110, par. 2 — 408.

The Joint Committee Comments to this section of the Illinois Code of Civil Procedure indicate that the above requirements are to be broadly construed. While “prior law” had severely limited the right to intervene, the present section provided a “modern intervention practice for Illinois analogous to that in other states and under the Federal Rules.” Case law has further established that only where there is a clear abuse of discretion should a trial judge’s determination of the right to intervene be reversed. Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 382, 415 N.E.2d 1034,1038.

Thus, where the applicant has an enforceable or recognizable right and more than a general interest in the subject matter, the right to intervene has been upheld. (See Maiter, 82 Ill. 2d at 382, 415 N.E.2d at 1038 (where the Illinois Supreme Court upheld the right of parents of school children to intervene in a suit brought by school principals over eligibility lists).) Furthermore, the right to intervene has been upheld even where the petition requesting intervention has been filed after judgment, and after the time for appeal has run. Avery v. Garbutt (1974), 19 Ill. App. 3d 1001, 313 N.E.2d 274; but see In re Estate of Reilly (1979), 68 Ill. App. 3d 906, 386 N.E.2d 462 (which held that intervention is usually only allowed before judgment, but that it could be allowed after judgment when necessary to protect the rights of the parties).

Although it is well settled that the intervention statute is remedial and should be liberally construed (Board of Trustees, Barrington Police Pension Fund v. Department of Insurance (1991), 211 Ill. App. 3d 698, 570 N.E.2d 622), the petitioner is nevertheless required to allege specific facts that demonstrate that he has a right to intervene. Allegations that are conclusory in nature and merely recite statutory language are insufficient to meet the requirements of section 2 — 408. Thus, where petitioners attempted to intervene in a suit challenging the validity of the annexation of certain parcels of land to the Village of Sleepy Hollow and argued only the statutory language, the appellate court upheld the trial court’s determination that intervention should be denied. In its decision, the appellate court noted that petitioners had stated only that they were electors of the Village of Sleepy Hollow or residents of Dundee Township and that they would or might be affected by the agreement at issue. Based only on the above general allegations, the appellate court determined that the petitioners’ assertions were “conclusory” and did not demonstrate how petitioners had an interest in the subject matter and how they would be affected by the order at issue. (People ex rel. Thomas v. Village of Sleepy Hollow (1981), 94 Ill. App. 3d 492, 495, 418 N.E.2d 466, 469.) Similarly, in the case at bar, Northern’s complaint and request to intervene (which was filed shortly after a final judgment in the original action) states only that the representation of its interests by War-bucks was “inadequate” as the Warbucks complaint was directed only to paragraphs 5 and 7 of the Cook County tax sales rules and regulations. This statement is not entirely correct. The Warbucks complaint was directed not only to the rules and regulations but to the constitutionality of the amendment itself. However, the order of the trial court disposing of the Warbucks complaint dealt only with the rules and regulations. Even though Northern asserts that the constitutionality issue was not fully developed by Warbucks, it still neglects to note not only its own specific interest in this matter, but also exactly how it would be affected by this amendment. In fact, Northern fails to state, until its appellate reply brief, that it is an Illinois corporation dealing in real estate. Additionally, for the first time in its reply brief (when it is too late for the Collector to challenge) Northern addresses the challenge to its intervention, stating that it “appropriately set forth its compliance with the required allegation for intervention.”

Northern further asserts that “Warbucks’ claim was never a class action but solely brought in the interest of Warbucks alone and no other entity.” However, that assertion provides nothing in support of Northern’s right to intervene since the trial court did not permit Northern to intervene on behalf of a class but only on its own behalf.

Although we recognize the trial court’s broad discretion in granting a petitioner the right to intervene, we nevertheless hold that absence of any specific facts in Northern’s complaint which would establish its identity and show how it would be affected by the amendment at issue is fatal to its petition to intervene. Accordingly, we find that the trial judge should have denied the petition to intervene. While we are not impressed with the meritoriousness of appellant’s arguments, we refrain from giving these substantive issues consideration at this time, since we find that the petition to intervene was improperly granted.

Accordingly, we reverse that part of the judgment allowing Northern’s intervention and vacate the trial court’s findings regarding the constitutionality of the Act, as the particular constitutional challenges addressed in the trial court’s order were only raised by Northern’s pleadings.

Reversed in part, vacated in part.

GORDON, P.J., and MURRAY, J., concur.


author: PRESIDING JUSTICE McCORMICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LAVEL LURKS, Defendant-Appellant.
    First District (2nd Division)
    No. 1—90—0910
    Opinion filed January 26, 1993.
    Rita A. Fry, Public Defender, of Chicago (Fred Weil, Assistant Public Defender, of counsel), for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Christine Cook, and Thomas J. Barman, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McCORMICK

delivered the opinion of the court:

Defendant, Lavel Lurks, appeals from his convictions and sentences for aggravated criminal sexual assault, aggravated kidnaping and armed robbery. We affirm. The trial court properly accepted the verdict despite two jurors’ expressions of reservations about the verdict. Because the kidnaping was not merely incidental to the other offenses, we find that the separate conviction for that offense could stand. Since the sentences are supported by appropriate factors, we also affirm the sentences.

Shortly after 5 a.m. on June 25, 1988, the victim, C.V., left the home where she lived with her boyfriend, Tony McDougall, and his family, to go to work. She was 17 years old and about one month pregnant with Tony’s child. She and Tony planned to marry.

After she had walked a few blocks, two men came up behind her. One held a wooden board about 21lz feet long and the other one had a gun. When she walked past an alley the men each grabbed one of her arms and asked her if she had any money. Sh.e said she had no money and she was pregnant. The man with the gun tripped her when she tried to run away. The men took her to the alley and took a sterling silver ring from her. The men took her to a nearby abandoned building and up three flights to an apartment where they threatened to beat her with the board if she made trouble. They repeatedly raped her vaginally, orally and anally for more than an hour. When they left, she ran back to her boyfriend’s home and reported the rape to the police. She went to the hospital where she was treated and released. She returned to the hospital two days later when she experienced vaginal bleeding and sharp abdominal pain. She had lost the fetus.

On July 3, 1988, the victim identified defendant in a police lineup as the man with the gun who had raped her. About 10 days later, she picked a photograph of Calvin Evans out of a photographic lineup as the man who had the board. Police have tried repeatedly, unsuccessfully, to locate and apprehend Calvin Evans.

On July 7, 1988, police questioned defendant after informing him of his Miranda rights. Defendant told police that on June 25 after he and a friend named Evans smoked several joints, Evans said he wanted some “pussy.” The victim walked past, and Evans, who had a bat, came up behind her and grabbed her arm. Defendant watched Evans take the victim into an abandoned building and a few minutes later he followed. Defendant admitted that the victim told them she was pregnant. He had intercourse with her while Evans stood over her, holding the bat.

The State tried defendant on eight counts of aggravated criminal sexual assault, one count of aggravated kidnaping and one count of armed robbery.

The victim identified defendant again in court as one of the men who raped her. Dr. Hermes Ayuste testified that he examined the victim on June 27, 1988, and he determined that she had spontaneously aborted the fetus. He said that emotional trauma is, in general, a possible cause of spontaneous abortion, and that the traumatic rape could possibly have caused the victim’s spontaneous abortion. He admitted that some medical authorities state that as many as 30% of all pregnancies spontaneously miscarry in the first trimester. He also agreed that physical trauma, even the kind of physical trauma the victim suffered, was not likely to have caused this first trimester miscarriage.

The trial court allowed the jury to consider three counts of aggravated criminal sexual assault and the counts of aggravated kidnaping and armed robbery. The jury found defendant guilty on all five counts. Defendant asked the court to poll the jury. After several jurors said that these were their verdicts, the following exchanges took place:

“THE COURT: Robert Phillips, were these then and are these now your verdicts?
JUROR PHILLIPS: I had a problem with the charging this young man with everything and the other fellow is not here to be charged with anything. It could very well be that there was some type of influence that put this young man in this position.
THE COURT: Well, sir, you have signed thé verdict forms, is that right?
JUROR PHILLIPS: Yes.
THE COURT: When you signed those verdict forms were you voting that the Defendant be found guilty in each one of these counts?
JUROR PHILLIPS: Well, yes.
THE COURT: Do you at this time — is it still your verdict, guilty on each one of those counts?
JUROR PHILLIPS: I can’t do anything about it now, so yes.
THE COURT: Well, sir, I am asking you now, you certainly can do something about it, this is a very important decision and I want you to be comfortable making your final decision. At the time you signed it was it your verdict?
JUROR PHILLIPS: If the other young man — if—
THE COURT: Well, to tell you the truth we are not going to reargue the case and I don’t mean to cut you off, this is not the time to continue deliberations, if you do not have a verdict that is one thing, but my question to you is at the time you signed these pieces of paper was that your verdict of guilty?
JUROR PHILLIPS: Yes.
THE COURT: As you sit here now is it still your verdict on each one of these counts?
• JUROR PHILLIPS: Yes.
* * *
THE COURT: Miss Sides, were these then and are these now your verdicts?
JUROR SIDES: (No response.)
THE COURT: Miss Sides.
JUROR SIDES: With some application, yes — yes, just take yes as the answer.
THE COURT: Okay, you are saying that when you signed these this was your verdict—
JUROR SIDES: I had a problem with one of them, but yes.
THE COURT: And when you signed them it was your verdict?
JUROR SIDES: The answer is yes.
THE COURT: And at this point too it is your verdict, is that right?
JUROR SIDES: Yes.”

The other jurors stated, without qualification, that those were their verdicts. Defendant argued in his motion for new trial that the court should have sent the jury back for further deliberations in light of the two jurors’ hesitations. The court denied the motion, finding that the jurors indicated that those were their verdicts.

The trial judge, in passing sentence, expressly considered the severity of the crime, defendant’s age, and defendant’s prior convictions for robbery and attempted burglary. The court also said:

“[C.V.] was living with her boyfriend and his family in a family situation. He was working. She was just barely pregnant. She was beginning a new life ***. You ruined her life and the life of that child.
Now, there was no specific evidence to show that your actions caused the miscarriage that resulted here and I certainly am not going to sentence you to punish you for that because *** we can’t say what necessarily caused her miscarriage. But I think it’s very clear from reading, for example, the victim impact statement here that the loss of that child and the destruction of the life that she knew at that time is something that she’s going to have to live with a long time and, sir, you will have to as well.
***
*** [T]he legislature has [established that] *** the type of horror that this young woman went through where you and another man attacked her in every way that a perverted mind could possibly think of, that that is such a horror that an additional sentence would be appropriate.
The legislature has also said that while certainly violent crimes are a horrible thing, *** they can have more significant impact if the victim is a young person. Here she was a young girl. She was 17 years old. She was living in a happy, stable family situation until you attacked her in the way that you did. And we heard that she didn’t marry the young man and she doesn’t live with his family anymore and she doesn’t have a baby anymore. Her life significantly changed. *** [TJhat factor, the State legislature has also set out, is a basis for sentencing you to more than that 30 year sentence. And based upon that factor as well I will certainly take into account.
Mr. Lurks, what I’m saying is I think that it’s clear in this case the sentence must be extended.”

The victim impact statement is not included in the record on appeal. Although the victim testified that she no longer lived with Tony, nothing in the record supports the court’s assertion that life with the McDougalls had been happy or stable.

The trial court sentenced defendant to 45 years’ imprisonment for aggravated criminal sexual assault, 30 years’ imprisonment for armed robbery and 15 years’ imprisonment for aggravated kidnaping, all sentences to run concurrently. The order of sentence shows convictions for five counts of aggravated criminal sexual assault, including two counts charging as aggravation the use of force which caused the bodily harm of a miscarriage. One part of the order shows convictions and sentences for both armed robbery and aggravated kidnaping; another part of the order omits the aggravated kidnaping conviction.

Defendant argues that we must reverse the conviction because the trial court precluded two jurors from expressing their dissent from the verdicts. Our supreme court restated pertinent principles in People v. Cabrera (1987), 116 Ill. 2d 474, 490, 508 N.E.2d 708:

“The polling of a jury is intended ‘to ascertain whether any juror had been coerced into agreeing upon a verdict — coerced by his associate jurors.’ [Citation.] While polling the jury, a trial court must be careful not to hinder a juror’s expression of dissent.” [Citation.]’ (People v. Williams (1983), 97 Ill. 2d 252, 307[, 454 N.E.2d 220].) The trial judge, in determining whether a juror has freely assented to the verdict, not only hears the juror’s response, but observes the juror’s demeanor and tone of voice during the course of the polling of the jury. (People v. Kellogg (1979), 77 Ill. 2d 524, 529[, 397 N.E.2d 835]; People v. Herron (1975), 30 Ill. App. 3d 788, 792[, 332 N.E.2d 623].) A trial court’s determination as to a juror’s voluntariness of his assent to the verdict will not be set aside unless the trial court’s conclusion is clearly unreasonable.”

In Cabrera, as here, the court asked, “Was this and is this now your verdict?” (Cabrera, 116 Ill. 2d at 488.) The juror in Cabrera started to give an answer other than yes or no and the trial court, like the trial court here, cut off the answer and insisted on a yes or no answer. The juror in Cabrera, like both jurors here, said yes. The trial court in Cabrera, at hearing on a post-trial motion, said that the juror did not show a desire to recant her verdict. Similarly, the trial judge here accepted the verdicts based upon the responses the jurors gave to her questions, where they reaffirmed their verdicts after she specifically told them that they could recant the verdicts even though they signed the verdict forms.

Our supreme court stated in Cabrera (116 Ill. 2d at 490):

“It cannot be said that the determination of the trial judge here that the juror voluntarily assented to the verdict and did not wish to repudiate it is clearly unreasonable. When Ms. Ciancanelli understood that she was to respond with a yes or no answer, she unequivocally answered yes when the judge inquired: ‘Was this and is this now your verdict?’ The situations in People v. Kellogg (1979), 77 Ill. 2d 524, and People ex rel. Paul v. Harvey (1972), 9 Ill. App. 3d 209, [292 N.E.2d 124,] which decisions the defendant cites, clearly are distinguishable. In Kellogg the juror inquired of the court as to whether she might change her vote, and in Harvey the juror, when asked if the verdict was his, responded: ‘Well, it wasn’t exactly, no.’ ”

The responses of the jurors here, like the response in Cabrera, support the judgment. We cannot say that the determination that both jurors voluntarily assented to the verdict is clearly unreasonable.

Defendant contends that this court should vacate the aggravated kidnaping conviction because the asportation here was incidental to the robbery. (See People v. Enoch (1988), 122 Ill. 2d 176, 197, 522 N.E.2d 1124.) To determine whether an act which technically includes the elements of aggravated kidnaping is merely incidental to another offense the court should look at four factors:

“ ‘(1) [T]he duration of the detention or asportation; (2) whether the detention or asportation occurred during the commission of a separate offense; (3) whether the detention or asportation which occurred is inherent in the separate offense; and (4) whether the asportation or detention created a significant danger to the victim independent of that posed by the separate offense.’ ” People v. Smith (1980), 91 Ill. App. 3d 523, 529, 414 N.E.2d 1117, quoting Government of the Virgin Islands v. Berry (3d Cir. 1979), 604 F.2d 221, 227.

In People v. Sherrod (1991), 220 Ill. App. 3d 429, 581 N.E.2d 53, as in this case, the defendants took their victim a short distance to a secluded place to rape her. This court said:

“Applying the Smith factors to the case at bar, we hold that the defendants’ kidnaping convictions were proper. In People v. Casiano (1991), 212 Ill. App. 3d 680, 687-88, [571 N.E.2d 742,] the court noted that an asportation lasting approximately V-k blocks, which allowed a criminal sexual assault to be carried out more easily in the defendant’s apartment and with less chance of detection, was sufficiently lengthy to satisfy the first part of the Smith test. Similarly, in the case at bar, D.M. was forced off the street, into an alley and then into a garage; ‘[wjhether an asportation is sufficient to constitute a kidnapping depends on the particular facts and circumstances of each case’ (Casiano, 212 Ill. App. 3d at 687), and here, the asportation satisfied this first factor.
The remaining parts of the Smith test are just as clearly met. D.M.’s asportation took place before, not during, the sexual assault, thus distinguishing it from the circumstances in Smith, where the victim was detained and moved while his car was stolen (Smith, 91 Ill. App. 3d at 529), and from those in [People v.] Young [(1983), 115 Ill. App. 3d 455, 450 N.E.2d 947], in which the victim was not moved and was detained only while the rape was committed. (Young, 115 Ill. App. 3d at 470.) Next, the asportation from the street to the garage was certainly not inherent in the sexual assault. ([People v.] Eyler [(1989), 133 Ill. 2d 173, 200, 549 N.E.2d 268] (confinement necessary to brutalize victim not incidental to victim’s murder); Casiano, 212 Ill. App. 3d at 688; see also People v. Gully (1986), 151 Ill. App. 3d 795, 800[, 502 N.E.2d 1091] (defendant need not have moved victim to a secluded area in order to sexually assault her).) Finally, forcing an unwilling D.M. into the alley and into the garage posed a significant danger to her separate from that posed by the sexual assault.” Sherrod, 220 Ill. App. 3d at 435-36.

Defendant attempts to distinguish Sherrod on the basis of the conviction for armed robbery here. The robbery began in the alley when defendant and Evans took the victim’s ring. Defendant contends that the robbery was not complete until Evans removed a knife from the victim’s bag while they were in the abandoned building. This distinction affects only the second of the four Smith factors, since the asportation was not inherent in the robbery, and the asportation posed a far greater danger to the victim than the robbery. Defendant shows two separate acts of robbery, not one continuing robbery occurring during the asportation and detention. One act of robbery preceded the asportation, and the other occurred after the asportation was complete, during the detention and rape. Applying the Smith factors in this case, as in Sherrod, the aggravated kidnaping is sufficiently distinct from the other offenses to support the separate conviction.

Defendant next argues that the trial court considered improper factors in sentencing defendant. The court expressly considered in aggravation defendant’s prior convictions, the severity of the crime, the victim’s age, and the fact that two men participated in the rape. The legislature has established that when the victim is under 18 years old, or when more than one person participates in the rape, an extended-term sentence may be appropriate. Ill. Rev. Stat. 1987, ch. 38, pars. 1005-5-3.2 (b)(5), (c).

The trial judge expressly did not sentence defendant for causing the miscarriage, but the judge expressly took into account the significant changes in the victim’s life following the rape, including her failure to marry Tony McDougall and her loss of the fetus. The trial judge apparently meant that she would not sentence defendant on the counts charging sexual assault aggravated by “bodily harm to [C.V.] by causing a miscarriage,” as charged in two counts, because the State failed to prove that defendant caused the miscarriage. However, the judge decided that she could take into account the effect of the crime upon the victim, as shown by the changes in the victim’s life, in sentencing on the other counts of aggravated criminal sexual assault.

The appellate court defers to the trial court’s decisions concerning sentencing and presumes that the trial court considered only appropriate factors in sentencing, unless the record affirmatively shows otherwise. (People v. Gant (1974), 18 Ill. App. 3d 61, 66, 309 N.E.2d 265.) Trial courts have a duty to weigh all statutory factors in aggravation and mitigation, including the effect of the crime upon the victim. (People v. Pavlovskis (1992), 229 Ill. App. 3d 776, 784, 595 N.E.2d 587.) “[T]he probability of permanent psychological harm to the victim is an important sentencing factor.” (People v. Fisher (1985), 135 Ill. App. 3d 502, 506, 481 N.E.2d 1233.) Although the court cannot base a sentence on a “vague guess about generalized possibilities of harm” (People v. Andrews (1991), 210 Ill. App. 3d 474, 484, 569 N.E.2d 192), the court may consider the possibility of harm to the victim when there is sufficient evidence of the possibility. Andrews, 210 Ill. App. 3d 474.

Here, the victim’s doctor testified that the rape and the attendant emotional trauma could possibly have caused the abortion. The trial court appropriately considered this possibility of harm as an aggravating factor.

However, there is no evidence in the record connecting the rape to the victim’s decision to move out of the McDougall house and her failure to marry Tony. The trial court could not properly consider those facts in aggravation.

“[R]eliance on an improper factor in aggravation does not always necessitate remandment for resentencing. Where the reviewing court is unable to determine the weight given to an improperly considered factor, the cause must be remanded for resentencing. [Citations.] However, where it can be determined from the record that the weight placed on the improperly considered aggravating factor was so insignificant that it did not lead to a greater sentence, remandment is not required.” People v. Bourke (1983), 96 Ill. 2d 327, 332, 449 N.E.2d 1338.

In People v. Kelchner (1991), 221 Ill. App. 3d 25, 581 N.E.2d 793, the trial court listed both proper and improper factors, including harm to the victim, in imposing an extended-term sentence. Although the record did not contain sufficient evidence to show that defendant’s conduct caused the harm, the appellate court affirmed the sentence, finding that the court relied on the proper factors, and the “improper consideration of serious harm did not result in defendant receiving a greater sentence than would have been imposed without it.” Kelchner, 221 Ill. App. 3d at 33.

Here the trial judge properly sentenced defendant to an extended term based on the participation of two persons in the rape, the victim’s age and the possibility of psychological harm to the victim. The sentence is in the middle of the 30- to 60-year range for extended-term sentences for aggravated criminal sexual assault. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—2(a)(2).) We find that the trial court placed no significant weight in sentencing on facts about the victim’s life which were not shown to be causally connected to the rape. The court’s consideration of the victim’s move out of the McDougall house and her failure to marry Tony did not lead to the imposition of a greater sentence than the court would have imposed otherwise. Therefore we affirm the sentences.

For the reasons stated above, the convictions and sentences are affirmed. In accord with defendant’s request, we order correction of the mittimus to show conviction on one count of aggravated kidnaping, one count of armed robbery and three counts of aggravated criminal sexual assault, not five. See People v. Ammons (1983), 120 Ill. App. 3d 855, 863, 458 N.E.2d 1031.

Affirmed as modified.

HARTMAN and SCARIANO, JJ., concur.


author: PRESIDING JUSTICE JIGANTI

text:
    HOWARD JOHNSON AND COMPANY, Plaintiff-Appellee, v. DAVID C. FEINSTEIN et al., Defendants-Appellants.
    First District (4th Division)
    No. 1—92—3172
    Opinion filed January 29, 1993.

      Thomas D. Rosenwein and Kathryn E. Garipay, both of Schaefer, Rosenwein & Fleming, of Chicago, for appellants.

      Paul K. Vickrey and Adam M. Kingsley, both of Hopkins & Sutter, of Chicago, for appellee.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

A preliminary injunction was entered against the defendants David C. Feinstein and Ted Windsor to enforce certain noncompetition agreements. The injunction prohibited them from soliciting or accepting business from former clients and prospects of the plaintiff, Howard Johnson & Company (Howard Johnson). In this interlocutory appeal, the defendants contend that the noncompetition agreements were replaced and superseded by the terms of a merger agreement executed by the parties, that the noncompetition agreements were unreasonably broad and that the order granting injunctive relief is void for lack of specificity.

The defendants are professional actuaries who, in the late 1980s, joined the Illinois actuarial firm of Skalinder, Wilkinson & Associates (SWA). In 1990, Feinstein owned 8% of the shares of SWA; Windsor owned 2%. Howard Johnson is an actuarial company headquartered in Seattle, Washington, with several subsidiary offices throughout the nation. Seeking to expand into the Chicago market, Howard Johnson contacted SWA to negotiate a merger. As a result of these negotiations, Howard Johnson agreed to employ the defendants, issue them stock in Howard Johnson and pay them cash for their shares in SWA. The named partners in SWA, Greg Skalinder and Joe Wilkinson, entered into similar agreements and were also made directors of Howard Johnson.

Of the documents effectuating the merger between Howard Johnson and SWA, three have particular significance to this appeal. The first is the “Agreement to Preserve Client and Customer Knowledge, Corporate Goodwill, and Non-Competition” (noncompetition agreement). Feinstein and Windsor each signed a noncompetition agreement on April 9, 1990. The noncompetition agreements provided that as an inducement for Howard Johnson to employ the defendants and to purchase their shares in SWA, the defendants for a period of three years would not:

“Solicit or accept business of the kind engaged in by [Howard Johnson] or assist others directly or indirectly, to solicit or perform such business from or on behalf of any such client or former client *** or from any person or entity who was being actively solicited as a potential client during the one year period immediately prior to Shareholder-Staff Member’s termination of employment with [Howard Johnson].”

The agreements stated that the prohibitions did not apply to services not previously provided by Howard Johnson. The noncompetition agreements further stated the remedies available to Howard Johnson in the event of a breach. These remedies are as follows:

“A. [Liquidated damages equal to three years gross billings paid by any person or entity who was a [Howard Johnson] client [to the shareholder].
B. [E]ntry of a restraining order with a maximum bond of $100 enjoining the Shareholder *** from further soliciting or accepting business from any persons or entities who are or were clients of [Howard Johnson].
C. [A]n award of reasonable attorney’s fees *** for enforcing the provisions of this agreement regardless of whether suit is instituted.”

The agreements provided that if the restriction on soliciting or accepting clients was violated, the prohibitions would automatically extend for an additional three years from the date of the violation and the liquidated damages penalty would extend for another four years from the date of the violation.

The second document significant to this appeal is the merger agreement, signed two days after the noncompetition agreements, which comprehensively set forth the terms of the merger. Section 13.8 of the merger agreement states that “[t]his Agreement (including all exhibits attached hereto and all documents delivered as provided for herein) replaces and supersedes all prior or contemporaneous agreements, written or oral, as to the subject matter hereof.”

Attached to the merger agreement is the third document of concern to this appeal, the shareholder’s agreement. The shareholder’s agreement, like the merger agreement, is dated April 11, 1990. Section 8, entitled “Price of Shares,” states the computations to be made in determining the price at which shares may be purchased and sold. Section 8.5(a) states that the purchase price of shares sold to Howard Johnson by withdrawing shareholders shall be reduced by the amount of any indebtedness that the shareholder owes to Howard Johnson. Section 8.5(b) then provides as follows:

“The price to the Selling or Withdrawing Shareholder shall be further reduced by an amount equal to the annual revenues paid by clients to the Company retaining the services of the Selling or Withdrawing Shareholder after the Shareholder has left the Company, where such Shareholder is providing services to such clients which are competitive with the services of [Howard Johnson] ***.”

Two years after the merger, on June 14, 1992, the defendants notified Howard Johnson that they would be terminating their employment in order to start their own benefits consulting practice. On June 23, 1992, Howard Johnson sent a letter to the defendants reminding them of their obligations under the noncompetition agreements. After receiving information that the defendants were accepting business from Howard Johnson clients, Howard Johnson initiated the instant litigation seeking injunctive relief.

An evidentiary hearing was held at which testimony was presented by the defendants, Howard Johnson (the plaintiff’s president), Greg Skalinder, and Donald McDonald, one of the Howard Johnson clients from whom the defendants accepted business. Howard Johnson’s president testified that the company was seeking to merge with a local firm in order to expand into the Chicago market. He testified that there were 10 or 12 significant firms and many smaller firms which performed the same services as Howard Johnson. SWA was chosen for the merger because of its excellent reputation. Johnson testified that it takes approximately one year to develop a client and that steps were taken to protect the SWA client base. One of the steps was to require the defendants to sign noncompetition agreements. Following the hearing, the trial court determined that the non-competition agreements were not superseded by the merger agreement and that the noncompetition agreements were ancillary to the sale of a business and reasonable in their terms. The court then entered the following order:

“This matter coming on to be heard on Plaintiff’s Motion for Preliminary Injunction to enforce certain noncompetition agreements dated April 9, 1990, the Court having considered the evidence and the briefs and arguments, it is hereby ordered that
(1) Plaintiff’s motion is granted for the reasons stated in open court, and
(2) Plaintiff is required to post a bond of $100,000.”

The defendants first contend that the trial court erred as a matter of law in determining that the noncompetition agreements were not replaced and superseded by the terms of the merger agreement. As stated earlier, the merger agreement provided that it “replaces and supersedes all prior or contemporaneous agreements *** as to the subject matter.” According to the defendants, both the noncompetition agreements and the shareholder’s agreements concern the same subject matter, i.e., what happens when a departing shareholder competes by accepting work from a former client of Howard Johnson. The noncompetition agreements were signed two days before the merger agreement and were not mentioned in the merger agreement. The merger agreement did specifically refer to the shareholder’s agreements. Therefore, the defendants argue that the merger agreement served to extinguish the noncompetition agreements. Howard Johnson responds that the shareholder’s agreements and the noncom-petition agreements serve different purposes and did not address the same subject matter. Howard Johnson asserts that the defendants’ interpretation would lead to the absurd result of nullifying documents signed just two days before the merger agreement.

A contract should be construed as a whole to give effect to the intention of the parties, and great weight should be given to the principal, apparent purpose and intention of the parties at the time they entered into the contract. (De Witt County Public Building Comm’n v. County of De Witt (1984), 128 Ill. App. 3d 11, 18, 469 N.E.2d 689.) Contractual terms should be construed to avoid the conclusion that other terms are meaningless. De Witt, 128 Ill. App. 3d 11, 469 N.E.2d 689.

The determinative factor in resolving this issue is whether the noncompetition agreements and shareholder’s agreements concern the same subject matter. Only those prior or contemporaneous agreements which concern the same subject matter as the merger agreement are replaced and superseded by the merger agreement. Our review of these two documents leads us to conclude that they do not concern the same subject matter. It is true, as the defendants assert, that both the noncompetition agreements and the shareholder’s agreements affect departing shareholders who later compete with Howard Johnson. However, a reading of the documents establishes that they were designed to serve completely different purposes. The section of the shareholder’s agreement pertinent to this appeal provides for a loss of shares in relation to the amount of work performed by departing shareholders who compete with Howard Johnson. As such, it addresses the concern resulting from having individuals whose interests are adverse to Howard Johnson holding Howard Johnson stock. The noncompetition agreements, on the other hand, serve to protect the company’s client base and include remedies sufficient to afford that protection, such as injunctive relief and liquidated damages. Furthermore, the noncompetition agreements spell out with specificity the type of conduct which is prohibited. We accordingly do not accept the defendants’ contention that the noncompetition agreements were replaced and superseded by the terms of the merger agreement.

The defendants next contend that the trial court erred in granting injunctive relief based on the noncompetition agreements because the agreements were unreasonably broad. The defendants argue that the agreements were unreasonable in terms of the type of activity prohibited because they barred not only solicitation but also the mere acceptance of former Howard Johnson clients as well as prospects solicited by Howard Johnson. The defendants further assert as unreasonable the provisions which extend the prohibitions for an additional three years, and in some respects four years, in the event a former Howard Johnson client or prospect is accepted.

The noncompetition agreements in the case at bar were ancillary to the sale of a business. Illinois courts have distinguished between restrictive covenants based on an employment relationship and restrictive covenants which are ancillary to the sale of a business. (Dryvit System, Inc. v. Rushing (1985), 132 Ill. App. 3d 9, 13, 477 N.E.2d 35.) In Dryvit, this court noted that the interest to be protected in the sale of a business is the good will purchased by the buyer. “A transfer of good will cannot be effectively accomplished ■without an enforceable agreement by the transferor not to act so as unreasonably to diminish the value of that which he is selling.” (Blake, Employee Agreements Not To Compete, 73 Harv. L. Rev. 625, 646 (1960).) Also, the bargaining power attendant to the sale of a business is not as uneven as it generally is in an employer/employee relationship. For these reasons, the courts are less likely to declare invalid a restrictive covenant ancillary to the sale of a business than they would be to invalidate a restraint based on an employer/employee relationship. Dryvit, 132 Ill. App. 3d 9, 477 N.E.2d 35; Hamer Holding Group, Inc. v. Elmore (1990), 202 Ill. App. 3d 994, 1008, 560 N.E.2d 907.

The defendants argue that we cannot conclude that the non-competition agreements were ancillary to the sale of a business because the merger agreement does not list the execution of the non-competition agreements as conditions precedent to the sale. In our view, the facts and circumstances surrounding the merger and the testimony elicited at the hearing support a finding that the noncom-petition agreements were ancillary to the sale of a business. The record shows that Howard Johnson negotiated the merger with SWA as a means of entering the Chicago market. Howard Johnson’s president testified that SWA’s clientele was its main asset. The defendants were paid cash for their shares in SWA, received stock in Howard Johnson and signed the noncompetition agreements two days before the merger agreement was signed. In determining whether a restrictive covenant is ancillary to the sale of a business, a court will consider the facts bearing on the parties’ intent to protect the integrity of a sale. (Hamer Holding Group, Inc. v. Elmore (1990), 202 Ill. App. 3d 994, 1008, 560 N.E.2d 907.) We believe that the facts before us show that the noncompetition agreements were entered into to protect against the threat of the defendants walking away with SWA’s client base, which was the main asset of the sale.

The question then becomes whether the restrictions in the noncompetition agreements were reasonable. The validity of a restrictive covenant is determined by its reasonableness in terms of the effect on the parties and the public. (Dryvit System, Inc. v. Rushing (1985), 132 Ill. App. 3d 9, 12, 477 N.E.2d 35.) It must be reasonable as to time, geographical scope and activity. (Dryvit, 132 Ill. App. 3d 9, 477 N.E.2d 35.) In the context of the sale of a business, the restriction must not be greater than necessary to protect the buyer, oppressive to the seller or injurious to the general public. Hamer Holding Group, Inc. v. Elmore (1990), 202 Ill. App. 3d 994, 1009, 560 N.E.2d 907.

The noncompetition agreements here contain what is generally known as an activity restraint. (See Dryvit, 132 Ill. App. 3d at 14, 477 N.E.2d at 38-39; Blake, Employee Agreements Not To Compete, 73 Harv. L. Rev. at 675.) Rather than prohibiting all competition within a particular geographical area, the restraint is limited by the type of activity prohibited. (Restatement (Second) of Contracts §188, Comment d, at 43 (1981).) Activity restraints are subject to a less stringent test of reasonableness than that which is applied to restrictions with a geographical limitation. Dryvit, 132 Ill. App. 3d at 14, 477 N.E.2d at 39.

The noncompetition agreements signed by the defendants prohibit them for a period of three years from soliciting or accepting business of the kind engaged in by Howard Johnson from former Howard Johnson clients or from any person who is being actively solicited as a potential client during the one year preceding the defendants’ termination of employment. The plaintiff’s president testified that it took approximately 12 months to develop a client. The agreements do not prohibit the defendants from competing with Howard Johnson or from accepting work from Howard Johnson clients provided the work was not of the type engaged in by Howard Johnson. We believe that the activity restraint in the instant cause was carefully tailored and narrowly drawn to meet the interests of both Howard Johnson and the defendants. See A.B. Dick Co. v. American Pro-Tech (1987), 159 Ill. App. 3d 786, 795-96, 514 N.E.2d 45 (Jiganti, J., specially concurring).

The defendants nevertheless argue that the scope of the agreements is unreasonably broad because they prohibit not only solicitation, but also the mere acceptance of business from former Howard Johnson clients. We disagree. Restrictive covenants prohibiting the acceptance of business or the furnishing of services have been upheld even where they were ancillary to an employment relationship. (McRand, Inc. v. van Beelen (1985), 138 Ill. App. 3d 1045, 1055, 486 N.E.2d 1306.) The rationale for upholding a restriction on the acceptance of business from former clients is even greater where it is ancillary to the sale of a business. Without the protection of such a restriction, the buyer would face the possibility of losing to the seller the main asset of the sale, i.e., the seller’s client base. We are satisfied that the noncompetition agreements are reasonable in the scope of business activity prohibited.

The defendants also maintain that the noncompetition agreements were unreasonable in duration. They specifically challenge the provision that extends the prohibitions in the event the agreement is violated. In support of this argument, the defendants cite Jefco Laboratories, Inc. v. Carroo (1985), 136 Ill. App. 3d 793, 483 N.E.2d 999, in which a restrictive covenant was found unreasonable in part because of a provision which extended the restrictions in the event of a violation. Jefco, however, involved a covenant ancillary to an employment contract. In invalidating the covenant, the court relied significantly upon the employee’s lack of bargaining power, noting that the employee “must either sign the contract or be discharged.” (Jefco, 136 Ill. App. 3d at 800, 483 N.E.2d at 1003.) Here, the record shows that the defendants, who are professional actuaries, engaged in negotiations involving the sale of a business. As we stated in Dryvit, the bargaining power attendant to the sale of a business is not as uneven in the employer/ employee relationship and the courts are accordingly less likely to invalidate covenants ancillary to the sale of a business. The defendants agreed to the terms regarding duration and have not persuaded us that reasons exist for releasing them from the consequences of their bargain.

The defendants next contend that the noncompetition agreements were injurious to the public because they had the effect of unreasonably narrowing the market and limiting the public’s right to choose a professional actuary. However, at the hearing, Howard Johnson presented testimony that there were 10 or 12 significant firms and several smaller firms in the Chicago area which performed the type of work done by Howard Johnson. In our view, the record does not support the defendants’ contention that the noncompetition agreements were unreasonable because of their effect on the general public.

Finally, the defendants maintain that the order entered by the trial court was defective because it was not sufficiently specific to comply with the requirements of section 11 — 101 of the Code of Civil Procedure, which provides as follows:

“Every order granting an injunction and every restraining order shall set forth the reasons for its entry; shall be specific in terms; [and] shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained ***.” Ill. Rev. Stat. 1989, ch. 110, par. 11 — 101.

The order in the instant cause, quoted earlier, merely states that Howard Johnson’s motion to enforce the noncompetition agreements is granted. As such, it does not specifically describe the acts to be enjoined, but rather refers to the noncompetition agreements. In arguing that the order should be considered void for lack of specificity, the defendants cite Streif v. Bovinette (1980), 88 Ill. App. 3d 1079, 411 N.E.2d 341, and Carriage Way Apartments v. Pojman (1988), 172 Ill. App. 3d 827, 527 N.E.2d 89. In Streif the court’s order was deemed too imprecise to enforce because it failed to define the terms “annoying” and “harassing.” (Streif, 88 Ill. App. 3d at 1085, 411 N.E.2d at 346.) In Carriage Way, the order was fatally defective because it failed to specify which parties were to contribute what amounts into an escrow fund. (Carriage Way, 172 Ill. App. 3d at 840, 527 N.E.2d at 97.) Unlike the situations in Streif and Carriage Way, we do not believe that the parties in the case at bar were unclear as to the meaning of the trial court’s order. Nevertheless, the order does violate the requirements of section 11 — 101 of the Code of Civil Procedure by referring to another document instead of specifying in express terms what actions are to be enjoined. We believe that the proper remedy is to remand the order to the trial court with instructions to modify the order in compliance with the statutory requirements.

For the foregoing reasons, the judgment of the trial court is affirmed, and the order is remanded to the trial court to be modified in accordance with the instructions stated in this opinion.

Affirmed; order remanded.

JOHNSON and CAHILL, JJ., concur.


author: JUSTICE GIANNIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LUTHER EDWARDS, Defendant-Appellant.
    First District (6th Division)
    No. 1—90—3306
    Opinion filed February 5,1993.
    Rita A. Fry, Public Defender, of Chicago (Mark Floyd Pasterski, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Donald T. Lyman, and Bennett E. Kaplan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GIANNIS

delivered the opinion of the court:

Defendant was charged in connection with the abduction of three women on three separate occasions during the period of March 25, 1989, to March 31, 1989. The charges relating to each abduction were tried separately. Defendant initially filed a motion to appeal both the second and third convictions, those concerning the abductions of Patty K. and Karen D., respectively. Defendant no longer challenges his conviction in the Patty K. case. This appeal therefore relates only to the defendant’s third conviction, that for the March 25, 1989, abduction of Karen D.

Defendant was charged with aggravated criminal sexual assault, aggravated kidnapping and robbery. (Ill. Rev. Stat. 1989, ch. 38, pars. 12 — 14, 10 — 2, 18 — 1.) On the day set for trial, defendant indicated to the trial court that he and his appointed counsel were locked in disagreement. Defendant requested the court to appoint substitute counsel or, in the alternative, allow him time to retain his own counsel. After discussion with both defendant and his counsel, the trial court denied defendant’s request. After further discussion, and after explaining to defendant the hazards of self-representation, defendant elected to proceed to trial pro se. Defendant is represented by the public defender’s office in this appeal. No issues concerning defendant’s decision to represent himself are raised.

On October 16, 1990, following a jury trial, defendant was found guilty of each of the charged offenses. Defendant was sentenced to concurrent terms of imprisonment of 60 years on the conviction of aggravated criminal sexual assault, 15 years on the aggravated kidnapping conviction and 7 years on the conviction of robbery. On appeal, defendant contends that the court erred by admitting evidence of his refusal to comply with a court order compelling him to submit to the taking of blood samples.

The complaining witness testified to the following facts. On March 25, 1989, she left work at 9:30 p.m. and drove to a bar to meet her boyfriend. At 2 a.m., she and her boyfriend went to a second bar across the street. At 4 a.m. she left the bar alone and drove to her sister’s house to spend the night. She arrived at her sister’s home at 4:30 a.m. and parked the car in an alley next to the building.

When the complaining witness got out of the car, she heard footsteps and saw a man walking next to the trunk of her car. She identified the man in open court as being the defendant. She testified that the defendant grabbed her arm and stuck a blunt object covered by a newspaper into her side stating, “I have a gun. Now get in the car. I don’t want to have to shoot you.” She testified that the defendant dragged her into the car and required her to drive for two hours through the streets of the north side of Chicago.

The complaining witness testified that defendant had her park the car in an alley and climb into the back seat where he forced her to have sexual intercourse. It was during this time that she noticed a silver-dollar-sized tattoo on the left arm of her attacker. She identified the defendant’s tattoo as being the same as the one she saw during the attack. Afterwards, she testified that defendant had her drive away from the area and ultimately park at a second location where he began searching through her belongings. Here he removed two photographs from her wallet and placed them into his pocket.

The complaining witness testified that on three separate occasions the defendant required her to climb into the trunk of her car where she was locked inside from 5 to 15 minutes. The witness also testified that while sitting in the car the defendant smoked approximately three Pall Mall brand cigarettes.

The complaining witness testified that during her abduction she was instructed by the defendant to drive them to her bank in Lombard. At approximately 11:30 a.m. they reached the bank. She testified that defendant had her cash her paycheck and later withdrew $180 from a savings account. He then instructed her to return to Chicago, where he had her drop him off at an expressway exit. She testified that he took with him her money, the two pictures removed from her purse and an overnight bag. She then returned to her sister’s home, where she contacted the police.

The complaining witness testified that on April 20, 1989, she was taken by police to a room to view a lineup of suspects but was rushed from the lineup room when one of the suspects began slouching and screaming. She was unable to see this suspect’s face at the time. Several months later, on August 1, 1990, she was shown six photographs by an assistant State’s Attorney and asked to identify her attacker. She identified the defendant.

Police officer Willoughby testified that the defendant was arrested for traffic violations and for possession of a stolen motor vehicle on April 3, 1989. On the morning of April 20, 1989, defendant was placed in a lineup and, according to the testimony of police officers Ryan and Zuley, bent over and threw himself on the floor, preventing his face from being seen. Officer Zuley testified that defendant stated following the lineup, “I fucked this thing up enough where any identification won’t be worth shit and the line-up will be thrown out of court.” Police officer Ryan also testified that on the morning of April 20, 1989, he observed defendant smoking Pall Mall cigarettes. Assistant State’s Attorney Buckley testified that he conducted a photographic lineup for the complaining witness on August 1, 1990, and that she identified the defendant as being her attacker.

Investigator Harris testified that on August 24, 1989, he was given an assignment to execute a court order to have blood and saliva taken from the defendant. Harris testified that he showed the court order to the defendant and explained that defendant was compelled to give the samples. Defendant, however, refused to submit to the taking of samples. Harris received the same assignment on October 20, 1989, November 15, 1989, and finally on December 13, 1989. Only on this fourth attempt did defendant consent to the taking of samples. On cross-examination Harris was asked by defendant, who appeared at trial pro se, if Harris recalled whether the defendant had refused the sampling based upon the advise of counsel. Harris indicated that he did not recall and stated, “Wasn’t paying attention. I merely asked you to submit. You said ‘no.’ and I said that was all.”

On December 28, 1989, Harris received an assignment to take the complaining witness to the hospital to have blood and saliva samples taken. She was transported by him to the hospital where the samples were taken. Harris also testified that he received an assignment on July 23, 1990, to have the defendant fingerprinted. Harris observed the defendant’s fingerprints being taken by a technician. Subsequent witnesses tied the defendant’s fingerprints to prints found in both the interior and exterior of the complaining witnesses’ car and testified that body fluids found in the car and collected from the complaining witnesses’ body were consistent with spermatozoa. These samples were also consistent with the defendant’s body-fluid type. A latent fingerprint examiner, Victoria Psichalinos, testified, however, that when defendant’s fingerprints were submitted to the Automatic Fingerprint Identification System (AFIS), AFIS did not return the defendant’s name as a possible suspect. Psichalinos testified that she could not explain precisely why defendant was not identified as a possible match by AFIS, but suggested a number of possibilities as to why a match was not found.

Defendant was ordered to submit to blood sampling pursuant to Supreme Court Rule 413(a)(vii) (107 Ill. 2d R. 413(a)(vii)). Rule 413(a)(vii) provides for judicial orders compelling the taking of blood samples. Defendant, however, does not attack the validity or propriety of the court order. Indeed, both the United States Supreme Court, in Schmerber v. California (1966), 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826, and the Illinois Supreme Court, in People v. Turner (1973), 56 Ill. 2d 201, have upheld the constitutional validity of such testing. Instead, defendant argues that while his refusal to submit to blood sampling may have some probative value of his consciousness of guilt, and thus be relevant, the prejudice resulting from such testimony outweighs its probative value and this evidence should therefore be suppressed.

The State initially responds that the defendant failed to preserve his claim for appeal, noting that ordinarily both an objection at trial and a written post-trial motion are necessary to preserve issues for review. (People v. Enoch (1988), 122 Ill. 2d 176, 186-88.) With regard to the testimony of defendant’s initial refusal to submit to blood sampling, the State points out that no objection was made at trial, nor was a written post-trial motion filed.

Defendant responds that the State may no longer insist on the filing of a written post-trial motion, and the State has conceded this point during oral argument. During a post-trial conference the defendant made an oral motion for a new trial. When asked by the trial court whether the State would object to the defendant’s motion, the assistant State’s Attorney responded, “No, your Honor. We will honor an oral motion.” As the State now recognizes, it has waived its right to insist upon the filing of a written post-trial motion and defendant may now avail himself of any ground for a new trial which may appear in the record. Enoch, 122 Ill. 2d at 188.

Although defendant is not obligated to file a post-trial motion to preserve the current issue, he is still required to make a timely trial objection. (People v. Wade (1989), 131 Ill. 2d 370, 375 (issues not raised at the trial court level may not be raised for the first time on appeal); Enoch, 122 Ill. 2d at 186 (both trial objection and written post-trial motion required to preserve claim of error).) Because defendant did not object to the introduction of the testimony indicating his initial unwillingness to submit to the court-ordered blood test, this issue is waived.

We note, however, that even if the defendant had objected to the testimony regarding his refusal to submit to blood sampling, and had the trial court overruled this objection, we would not find in favor of the defendant. Defendant’s initial refusal to submit to blood testing has some tendency to indicate a consciousness of guilt and is therefore relevant and generally admissible. (People v. Roberts (1983), 115 Ill. App. 3d 384, 387 (“Evidence of refiisal to take a potentially incriminating test is similar to other circumstantial evidence of consciousness of guilt which may be inferred from a defendant’s conduct”).) While a trial court has discretion to exclude evidence that is relevant if the prejudicial effect of that evidence substantially outweighs its probative value (People v. Eyler (1989), 133 Ill. 2d 173, 218), a ruling against the defendant would not have been an abuse of discretion in this case, particularly where the facts indicate that the defendant repeatedly sought to hamper the police investigation closing in around him.

Defendant cites for support People v. Townes (1985), 130 Ill. App. 3d 844. In Townes the defendant had been arrested and served the same day with a search warrant requiring him to submit to the taking of body samples such as blood and fingernail clippings. The trial court admitted testimony of the defendant’s refusal to submit to the warrant. On appeal, the appellate court concluded that evidence of the defendant’s refusal to submit should have been excluded due to its dubious probative value. Two considerations influenced the court: (1) the short interval of time between when the defendant was apprehended and when the search warrant was served and (2) the fact that defendant indicated at the time of his refusal that he was only refusing to submit at that particular time. The court concluded in Townes that the defendant’s refusal was “reasonably consistent with the response of a cautious innocent person who would want to seek the advice of counsel before submitting.” Townes, 130 Ill. App. 3d at 859.

Neither of the two factors present in the Townes case is present here. Notably, defendant’s repeated refusal to comply with court-ordered blood testing occurred over a period of nearly four months. While defendant attempted on cross-examination of Officer Harris to elicit testimony that his refusal was based upon the advice of counsel, he was unable to do so, and there is nothing in the record to indicate that this was the case. Thus, while the defendant in the Townes case acted in a way consistent with that of an innocent man, every indication in the present case, as noted, is that defendant deliberately sought to hamper the police investigation in order to conceal his guilt.

Finally, even if defendant were successful on this claim, a review of the overwhelming evidence of his guilt leads to the conclusion that any error by the trial court would have been harmless. See Townes, 130 Ill. App. 3d at 859 (affirming defendant’s conviction despite erroneous admission of similar evidence).

Defendant’s attempt to characterize his refusal to give blood as “acts of remaining silent,” thereby implicating his fifth amendment rights, is unpersuasive. The cases cited by defendant involve constitutional concerns which are not present here. See People v. Kennedy (1975), 33 Ill. App. 3d 857; People v. Warner (1984), 121 Ill. App. 3d 322 (both involving a defendant’s refusal to undergo voice sampling after being advised of the right to remain silent).

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

Affirmed.

McNAMARA, P.J., and EGAN, J., concur.