author: PRESIDING JUSTICE MANNING

text:
    STEVE LUCKETT, JR., Appellant, v. THE HUMAN RIGHTS COMMISSION et al., Appellees.
    First District (1st Division)
    No. 1 — 87—1362
    Opinion filed December 29, 1989.
    — Rehearing denied April 4,1991.

      Edwin F. Mandel Legal Aid Clinic, of Chicago (Gary H. Palm, of counsel), for petitioner.
    Neil F Hartigan, Attorney General, of Springfield (Shawn W. Denney, Solicitor General, of Springfield, and William D. Frazier, Assistant Attorney General, of Chicago, of counsel), for respondent.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

Steve Luckett, Jr. (Luckett), appeals directly to this court from adverse orders of the Department of Human Rights (Department) and the Human Rights Commission (Commission), wherein the Department and Commission dismissed his charge, which alleged employment discrimination against Amco Corporation. The questions presented on appeal are: (1) whether the Commission’s dismissal of Luckett’s discrimination charge for lack of substantial evidence was against the manifest weight of the evidence; and (2) whether the Commission’s adoption of the Department’s finding of lack of substantial evidence denied Luckett’s right to procedural due process.

The record below reveals the facts as follows. Luckett, a black male, was hired by Amco Corporation as a stockroom keeper on December 28, 1982. Luckett had a history of absenteeism and had received several oral and written warnings from Amco. On the warning notice dated February 2, 1984, Amco stated that Luckett had missed at least six days and had been late at least six times in the past few months. On a notice dated August 30, 1984, Luckett was cited for 26 excused and unexcused absences in the previous year. Thereafter, he was suspended. In a memo dated September 5, 1984, which stated that Luckett’s absences had become excessive, Amco also advised him that a single absence in the next 30 days or two absences in the next 60 days would result in termination. Additionally, Amco issued Luckett more warnings on October 20, 1984, February 11, 1985, and March 7, 1985, regarding absenteeism and tardiness. Luckett also received several warning notices regarding his employment at Amco for deficient work performance.

On May 10, 1985, Luckett received his final warning notice, which constituted the notice of termination for “defective work,” citing, “[mjiscounts on 5/2/85. Employee was given 3 days off for prior miscounts. Employee to be terminated.”

On or about June 19, 1985, Luckett filed a charge of discrimination with the Department pursuant to the Human Rights Act (HRA) (Ill. Rev. Stat. 1983, ch. 68, par. 1 — 101 et seq.), regarding his discharge on May 10, 1985. In the charge, Luckett alleged he had been discriminated against on account of his race in that Amco discharged him and other blacks and replaced them with Hispanic employees. He also alleged that the reason given for his termination, excessive absenteeism, was merely pretextual. Luckett alleged that he had requested to be off from work on May 3, 1985, two weeks in advance of that date, and that upon his return to work, he was given two employee warnings and terminated. He alleged that a nonblack, Ramon Castro, had requested time off from work and was granted the time but was not terminated upon his return. Luckett further alleged that “non-black employees such as Ramon are off work as much or more than I had been and no actions are ever taken against them.”

After conducting a fact-finding investigation, the Department in its investigation report dated April 14, 1986, determined and recommended a finding of lack of substantial evidence regarding the allegations in Luckett’s charge. The report stated that: (1) Luckett was absent and tardy more often than his nonblack comparison; (2) Luckett was not terminated for requesting time off, but because he took the day off without permission, coupled with his history of absenteeism; and (3) the documents revealed that Luckett’s allegation that Amco was discharging blacks and replacing them with Hispanics was unfounded.

On August 7, 1986, the Department notified the parties that based upon the investigation report, it had determined there was not substantial evidence to support the allegations of the charge and the charge, therefore, was dismissed in accordance with section 7 — 102(D) of the HRA. (Ill. Rev. Stat. 1983, ch. 68, par. 7-102(D).) On September 11, 1986, Luckett filed a request for review with the Commission. On October 10, 1986, Luckett filed his “Argument and Materials in Support” of the request for review, maintaining that substantial evidence existed to support the charge. Amco, in its response, pointed out a number of factual inconsistencies and inaccuracies in Luckett’s memoranda and requested that all relief be denied.

On February 19, 1987, the Commission adopted and affirmed the decision of the Department and entered an order dismissing Luckett’s charge for lack of substantial evidence, citing several findings of fact and reasons in support of its decision. Luckett has appealed directly to this court pursuant to section 8 — 111(A)(1) of the HRA. Ill. Rev. Stat. 1983, ch. 68, par. 8 — 111(A)(1).

Initially, we turn our attention to the motions filed by the parties to this appeal, which were taken with the case. Since oral argument in this matter, both parties have filed several motions to file additional or supplemental authority. These motions primarily concern the interpretation of and application to be given to the several rulings in the case of Lemon v. Tucker (N.D. Ill. 1988), 695 F. Supp. 963 (Lemon II), related to Lemon v. Tucker (N.D. Ill. 1985), 625 F. Supp. Ill. (Lemon I), a class action suit filed in Federal court, in which Luckett was a named plaintiff. Hence, before we address the other issues raised by Luckett, we turn our attention to the applicability, if any, of the Lemon v. Tucker findings to the resolution of the case at bar.

In Lemon I, the plaintiffs filed a two-count complaint challenging the constitutionality of the procedures for processing charges under the HRA. Initially, plaintiffs had sought declaratory and injunctive relief against the defendant, maintaining due process and equal protection violations. However, pursuant to a motion to dismiss filed by the defendant, the court dismissed count II, the equal protection claim, but declined to dismiss count I, the due process claim. Lemon, 625 F. Supp. at 1117-18.

Essentially, plaintiffs charged that the defendant deprived them of their State-created property interests in their HRA actions without due process of law. Specifically, count I alleged that the Department’s procedures were deficient in the following respects:

(1) Complainants do not have the right to have an adjudicatory hearing.

(2) Complainants do not have the right to know the evidence against them.

(3) Ex parte contacts are permitted.

(4) Complainants do not have the right to cross-examine respondent’s witnesses.

(5) Complainants do not have the right to present all evidence in their favor.

(6) Complainants do not have the right to make or have made a verbatim record of testimony or to have a decision made solely on the basis of the record.

(7) Complainants do not have the right to compulsory process for the production of witnesses or documents.

(8) Complainants do not have the right to notice of their rights under the due process clause of the fourteenth amendment to the United States Constitution under the HRA, under HRA rules and regulations, and under HRA policies and practices.

The district court concluded that the procedures afforded complainants under the HRA were sufficiently offensive to due process to state a valid cause of action under section 1983 of the civil rights statute and to survive a motion to dismiss. The court held that the “question here is the adequacy of the IHRA investigative procedures.” (Lemon, 625 F. Supp. at 1115.) Subsequently, the parties engaged in discovery and brought cross-motions for summary judgment on the due process claim. See Lemon, 695 F. Supp. 963.

In Lemon II, plaintiffs sought a ruling that defendant was depriving them of due process in two specific ways:

(1) by dismissing their discrimination charges without allowing them to view the evidence submitted by the respondent; and

(2) by dismissing the discrimination charges which involve credibility determinations without a full evidentiary hearing.

Defendant’s cross-claim alleged that due process for this type of claim was minimal and that the procedures guaranteed by the HRA, especially those added by the 1987 amendments, were sufficient to satisfy Luckett’s due process rights.

The court generally concluded that the HRA’s amended procedures did not deny plaintiffs due process. Then, the court proceeded to an in-depth analysis of plaintiffs’ claims. First, the court recognized that defendant must satisfy due process requirements. Next, the court considered what the due process clause requires in this case by reiterating Judge Getzendanner’s conclusions in light of the formula enunciated in Mathews v. Eldridge (1976), 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893. We decline to rereview this analysis as it is expressed in great detail in Lemon II, which quotes extensively from Lemon I. Suffice it to say that the Lemon II court concluded that those class members whose claims were subject to the procedures existing prior to the September 24, 1987, amendments to the HRA, and who were never afforded an opportunity to present reasons why their charges should not be dismissed, were denied due process of law. The court there ordered that all such persons’ claims should be reopened.

The court held that under the new amendments, which took effect September 24, 1987, and established a “pleadings” procedure, complainants were assured of two protections which they were previously denied. Those added protections are access to a verified response by the respondent to the claimant’s charge and claimant’s right to reply to respondent’s defenses and present reasons why claimant’s charge should not be dismissed. (Ill. Rev. Stat. 1987, ch. 68, par. 7 — 102(B).) Moreover, a claimant can supplement his reply at any time and present additional information to the investigator.

The court did not agree with plaintiffs’ claim that they were entitled to access to all documents submitted to the Department by the Department and Commission. Nor did the court completely agree that claimants were entitled to some discovery of factual details, on the basis that the case there addressed post-deprivation procedures in which the deprivation did not cause an immediate change in the status quo. The court concluded that claimants, although deprived of a post-deprivation evidentiary hearing, still have an opportunity to challenge the Department’s factual determinations before the Commission, and if dissatisfied with the Commission ruling, to appeal directly to the Illinois Appellate Court.

The last claim urged by the plaintiffs before the Lemon II court, that in the case of charges where material credibility disputes arise, complainants are entitled to a full evidentiary hearing; i.e., an opportunity to cross-examine respondent’s witnesses, was similarly rejected. The court found that the opportunity for any Department finding of lack of substantial evidence to be reviewed by both the Commission and the Illinois Appellate Court adequately guards against the Department making erroneous determinations based on credibility issues. (Lemon, 695 F. Supp. at 972.) Having reviewed the Lemon v. Tucker decisions, we now briefly address the parties’ arguments thereto. Respondents first assert that Lemon II has res judicata and collateral estoppel effect on this court, and thus, Luckett’s claims should be barred. Luckett first counters that this claim is not barred because the Lemon v. Tucker decision is not final. We agree with Luckett. In Ballweg v. City of Springfield (1986), 114 Ill. 2d 107, 499 N.E.2d 1373, our supreme court held that a decision is not final where the potential for review has not been exhausted. The record here reveals that the Lemon v. Tucker plaintiffs filed a notice of appeal on July 19, 1989. Thus, the potential for review of the matter has not yet been exhausted.

In addition, contrary to the parties’ dispute, the Lemon II decision, even if it were to be considered final, did not seek to grant relief to any claim pending in the Illinois Appellate Court. The parties disagree whether or not the order entered on June 22, 1989, which further clarified the March 8, 1989, order and September 21, 1988, opinion bars this court’s consideration of Luckett’s due process claims. The June 22, 1989, order provides that “[t]he court clarifies its order as follows. The March 8, 1989, order denying retroactive relief encompasses all claims that have proceeded beyond the investigative stage within the Department. Those claims, if any, which are still pending within the Department at the investigative stage, should be afforded the procedures of the amended act. All other claims are not entitled to relief.”

Although there are several interpretations to be given to the June 22, 1989, order, we believe the better interpretation encompasses our long-established principle that the doctrines of federalism and comity require the Federal district court to decline to issue orders that affect the Illinois Appellate Court’s enforcement of the fourteenth amendment. See District of Columbia Court of Appeals v. Feldman (1983), 460 U.S. 462, 75 L. Ed. 2d 206, 103 S. Ct. 1303. Luckett has preserved his due process argument during the pending appeal before this court. Thus, although we may consider the instant case in light of the pronouncement in Lemon II, we are free to reach our own decision whether Luckett’s individual rights to due process have been violated. (See Pennzoil Co. v. Texaco, Inc. (1987), 481 U.S. 1, 95 L. Ed. 2d 1, 107 S. Ct. 1519 (Federal court has no authority to issue orders directing how State courts ought to rule).) Accordingly, based upon the factual matrix in the instant case, our review of the record, the pronouncements in Lemon II and other established principles of law in Illinois, we believe that Luckett was not denied due process of law.

In essence, Luckett has set forth on this appeal the same arguments involving alleged due process of law violations which have been discussed and dismissed by this court (see Jabbari v. Human Rights Comm’n (1988), 173 Ill. App. 3d 227, 527 N.E.2d 480; Glassworks, Inc. v. Human Rights Comm’n (1987), 164 Ill. App. 3d 842, 518 N.E.2d 343, appeal denied (1988), 119 Ill. 2d 556, 522 N.E.2d 1244; Castillo v. Human Rights Comm’n (1987), 159 Ill. App. 3d 158, 512 N.E.2d 72), and the Illinois Federal district court in the aforementioned Lemon v. Tucker cases. Luckett asserts that: (1) he was denied a fair forum to present reasons why he was wrongly discharged; (2) he was denied access to information which might have revealed substantial evidence that Amco discriminated against him; (3) he was denied permission to examine documents submitted by Amco to the Department investigator; and (4) the Department erred by refusing to investigate further the incident of May 3 to determine whether or not he was given the day off. Luckett further contends that the Department’s rejection of all of his allegations and its acceptance of all of those made by Amco deprived him of due process.

Finally, Luckett argues that the Commission committed reversible error because of its failure to order the Department to conduct a hearing and submit additional information on the basis that, had the Commission ordered a fact-finding hearing or demanded that the Department submit more data, it would have been in a better position to solve several of the credibility disputes it improperly resolved.

The Department and Commission counter that the procedures of the Commission do not violate any due process rights of Luckett.

At the outset, we note that during the pendency of this appeal, Illinois amended the HRA and such amendments took effect on September 24, 1987. As noted above, during the pendency of the instant appeal, the Lemon II court considered the issue whether the State’s method of considering civil rights violations pursuant to the HRA denied complainants named in the class due process of law. Also, as previously discussed, Lemon II concluded that the class members were not deprived of due process even though they were unable to review Department files and documents submitted by the Department and Commission; receive a full evidentiary hearing; or cross-examine the Department and Commission’s witnesses, where the administrative investigation provided for new “pleadings” procedures, allowed amendments at any time during the investigation and granted complainants a meaningful opportunity to present their side of the story.

Thus by analogy, we can readily dismiss that part of Luckett’s argument which involves access to information and examination of records. Moreover, our court has held that all of the due process rights guaranteed in judicial and quasi-judicial proceedings do not apply to the investigatory stage of an employment discrimination charge before the Department (see Jabarri, 173 Ill. App. 3d 227), and that a party alleging a charge of discrimination pursuant to the HRA is not automatically entitled to an evidentiary hearing before the Commission to determine if substantial evidence exists to support the charge. See Castillo, 159 111. App. 3d 158.

Hence, the crux of our determination concerns (1) whether Luckett was given a fair forum to present reasons why he was wrongly discharged; and (2) whether the Department’s refusal to investigate further the incident of May 3, 1985, was an erroneous credibility determination without an evidentiary hearing. The Lemon II court also addressed these issues and concluded that (1) the previous method of considering civil rights violations denied complainants due process where they were not given an opportunity to explain why the charges should not be dismissed at any point in the proceedings beyond the original charge; and (2) the opportunity for administrative and State judicial review guards against the Department making erroneous witness credibility determinations without an evidentiary hearing during the investigatory stage. Accordingly, we will address each question separately as it pertains to Luckett.

First, as to the issue whether or not Luckett had an opportunity to explain why his charge should not have been dismissed, we believe he was given and exercised several opportunities to do so. The record demonstrates that Luckett had an opportunity to participate in the investigatory stage of the proceedings where he proffered questions to the Department to be utilized in its fact-finding process. He requested and was granted leave to file supporting documents to the Commission for the request for review. He then submitted memoranda and his own affidavit explaining why his charge should not be dismissed for lack of substantial evidence to the Commission. Hence, First, as to the issue whether or not Luckett had an opportunity to explain why his charge should not have been dismissed, we believe he was given and exercised several opportunities to do so. The record demonstrates that Luckett had an opportunity to participate in the investigatory stage of the proceedings where he proffered questions to the Department to be utilized in its fact-finding process. He requested and was granted leave to file supporting documents to the Commission for the request for review. He then submitted memoranda and his own affidavit explaining why his charge should not be dismissed for lack of substantial evidence to the Commission. Hence,

Second, we believe that the Department’s decision not to investigate further whether Luckett took an unauthorized absence on May 3, 1985, as advocated by Amco, or had permission to be off from work on that date, as advocated by him, was not an erroneous credibility determination. The record reflects that during the fact-finding conference, Tom Neary, vice-president, Amco Corporation, stated that the company never authorized Luckett to be absent from work on May 3, 1985, and, in fact, advised against such action in light of his attendance record and because he was not entitled to any additional days off. Luckett never stated or submitted any evidence to substantiate his “presumption” that he could be off from work on May 3, 1985. His argument that he thought he had the day off must fail. Because Luckett was able to receive his check early and his superior told him to “have a good vacation” when he came in to the office on the morning of May 3, 1985, to pick up his paycheck are neither evidence that Luckett’s employer authorized his absence on that date nor facts which rise to the level to support Luckett’s view that a credibility dispute existed. The record demonstrates that Amco’s policy allowed employees to receive their checks early, if they requested to do so, on one or two occasions. The record also reflects that Luckett was scheduled to work on the night shift. Thus, any remarks made by a supe-

rior during the day shift have no bearing to Luckett’s belief that he did not have to report to work later on that day. Even more important is the fact that Luckett could not produce any evidence through proposed testimony or documents to support his position. In the charge, Luckett never alleged that he had the day off. However, in his affidavit submitted to the Commission, he averred that he believed he had the day off. This attempt to raise the issue to one of credibility did not satisfy the Commission as being valid and neither does it satisfy this court as being valid. Accordingly, we conclude that the Department’s finding that Luckett’s absence from work on May 3, 1985, was unauthorized was not an erroneous determination based on a credibility issue. Furthermore, as the Lemon II court noted, “the concept of ‘substantial evidence’ encompasses the possibility that claimant and respondent will have differing versions of an event.” Lemon, 695 F. Supp. at 972.

We next consider whether the Commission’s decision to dismiss Luckett’s discrimination action for lack of substantial evidence is against the manifest weight of the evidence. We believe the Commission’s decision was correct.

To support his contention, Luckett specifically argues that the Commission’s decision was arbitrary and capricious, he established a prima facie case of discrimination, there was no legitimate reason for his discharge and the reasons given by Amco were merely pretextual.

First, Luckett contends that under Klein v. Fair Employment Practices Comm’n (1975), 31 Ill. App. 3d 473, 334 N.E.2d 370, the Commission’s function is not to determine the weight of the evidence but only to determine whether there was enough evidence to justify the filing of a complaint. He contends that during the investigation the Department improperly acted as a finder of fact and a weigher of the credibility of the witnesses’ testimony. As noted earlier, we find this argument to be without merit.

Second, Luckett argues that the Commission erred when it determined he had not made out a prima facie case of employment discrimination in a discharge case. Luckett states that he met all of the requirements as set forth in the In re Williams (1985), 18 Ill. HRC Rep. 89, 99 in that: (1) he was a member of a protected group; (2) he was doing satisfactory work; (3) he was discharged despite the adequacy of his work; and (4) after his discharge, the position remained open and the respondent continued to seek applicants with his qualifications. Luckett concedes that he had an attendance problem early on during his employment; however, he asserts that he took corrective measures and greatly improved his attendance in line with company policy. Thus, he maintains there was no reason for Amco to terminate him.

Next, Luckett argues that once he made out his prima facie case of discrimination, the burden shifted to Amco to show the discharge was for a legitimate and nondiscriminatory reason under the United States Supreme Court decision in Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089. Luckett contends it was error for the Commission to dismiss his charge because neither the Department’s investigation nor Amco’s evidence revealed an admissible, legitimate, nondiscriminatory reason for his discharge. To support this contention, Luckett argues that the Department interviewed only one witness and then concluded Luckett’s absence on May 3, 1985, was unauthorized. He maintains that the Commission should have held a public hearing to determine whether the absence was excused.

Luckett finally argues that even if Amco articulated a legitimate, nondiscriminatory reason for his discharge, the proffered reasons were merely pretext to cover its discrimination.

The Department and Commission contend that the dismissal of Luckett’s charge was not against the manifest weight of the evidence and that the factual determinations made by it are clearly supported by the evidence that Luckett did not make out a prima facie case of racial discrimination involving discharge for violation of work rules. Respondents assert that Luckett did not demonstrate that he did not violate an employer rule, or that if he did violate a rule, white employees who were engaged in similar acts were not punished similarly.

The HRA vests the Commission with jurisdiction to adjudicate cases brought pursuant to it, which includes subject matter jurisdiction of charges involving racial discrimination by employers. (Ill. Rev. Stat. 1983, ch. 68, pars. 1-102(A), 1-103(D), 2-102(A), 7-101(B).) Under the HRA, the Commission’s findings of fact must be sustained unless the reviewing court determines that such findings are against the manifest weight of the evidence. (Ill. Rev. Stat. 1983, ch. 68, par. 8 — 111(A)(2).) Moreover, judicial review under the HRA is to be in accordance with the Administrative Review Act (Ill. Rev. Stat. 1981, ch. 68, par. 8 — 111(A)(1)) which provides that an agency’s findings are to be taken as prima facie true (Ill. Rev. Stat. 1981, ch. 110, par. 3— 110), unless a contrary result is clearly evident. See Clark Oil & Refining Corp. v. Golden (1983), 114 Ill. App. 3d 300, 448 N.E.2d 958.

When analyzing claims of discrimination under the HRA, Illinois courts have looked to the standards applicable to analogous Federal claims. (See Valley Mould & Iron Co. v. Human Rights Comm’n (1985), 133 Ill. App. 3d 273, 478 N.E.2d 449.) The rule follows the McDonnell-Douglas analysis under which the employee first must prove by a preponderance of the evidence a prima facie case of unlawful discrimination. (Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089.) The employer then must set forth a legitimate nondiscriminatory reason for its decision to rebut the presumption of unlawful discrimination. If the employer is successful, the presumption of unlawful discrimination no longer is present in the case.

The employee then must prove by a preponderance of the evidence that the reason offered by the employer was not the true reason underlying its decision, and that it is only a pretext. (See Kraft, Inc. v. City of Peoria (1988), 177 Ill. App. 3d 197, 531 N.E.2d 1106.) This burden merges with the employee’s ultimate burden of proving whether the employer engaged in unlawful discrimination. See Village of Oak Lawn v. Human Rights Comm’n (1985), 133 Ill. App. 3d 221, 478 N.E.2d 1115.

We have reviewed the record below, and in applying the foregoing factors to the instant case, we find there is adequate support for the Commission’s findings that Luckett did not make out a prima facie case of unlawful discrimination. Assuming arguendo that he did, we believe that the employer set forth a legitimate, nondiscriminatory reason for his discharge and that Luckett was unable to prove that the proffered reason was only a pretext for unlawful discrimination.

The administrative record before the Department indicates that Luckett was issued warning notices for absenteeism on no fewer than six occasions and was given several warnings for deficient work performance. He was warned that he would be terminated if the absenteeism and tardiness did not improve. Consequently, the record supports the Commission’s conclusion that “[c]omplainant was discharged for taking an unauthorized absence from work when he already had been warned by respondent that his attendance and tardiness record was unacceptable.”

Luckett was well aware of the company policy that such behavior constituted conduct that would result in termination. He had received numerous verbal and written warnings regarding his poor work performance and had been suspended a few weeks prior to his termination for the same “defective work” citation listed on the final warning.

Luckett’s argument that it was reasonable for him to assume he had permission to take May 3 off because he never received a direct answer to his request to do so and his check was available on that morning is unpersuasive. Respondent conducted an investigation and made its factual determination that “complainant might have misunderstood respondent when he understood respondent gave him a vacation day in early May, 1985.” It is well within the province of the Commission to review and weigh conflicting evidence in illegal discharge actions, whether it is at the preliminary level or at a later stage. (See Sanders v. United Parcel Service (1986), 142 Ill. App. 3d 362, 491 N.E.2d 1314.) In addition, whether or not Luckett was given permission to be off from work on'May 3, 1985, is irrelevant because he failed to demonstrate that he was treated differently from similarly situated nonblack employees. There was no showing that a non-black in the same situation; i.e., one who had a dispute about permission to be absent from work and had a record of poor attendance and performance, was treated differently from Luckett. Moreover, “the fact that complainant took this unauthorized vacation day *** does not corroborate that his race, black, was a factor in that discharge decision.

The administrative record further reflects that Mr. Castro, a non-black, was not treated differently from Luckett, nor was he an appropriate comparative. The evidence reflects that: (1) Mr. Castro did not take any long leave of absence at any time in 1985 prior to his termination; (2) he had not received two warning notices, both for absences; and (3) he was not discharged for insubordination.

Moreover, Amco’s EEO-1 reports, also a part of this record, reflect that Amco’s work force included a proportionate number of blacks. The reports do not reflect that Hispanics were hired to replace Luckett or other blacks as alleged in the charge.

The appellate court must accept the determination of the Commission absent a clear abuse of discretion (see Board of Directors, Green Hills Country Club v. Human Rights Comm’n (1987), 162 Ill. App. 3d 216, 514 N.E.2d 1227), and it is not within the province of the reviewing court to overturn the decision of the Commission by looking at the sufficiency of proof, unless such decision was contrary to the manifest weight of the evidence. (See Burnham Hospital v. Human Rights Comm’n (1984), 126 Ill. App. 3d 999, 467 N.E.2d 635.) Accordingly, having found there is substantial evidence in the record to support the Commission’s contentions and findings of fact that Luckett initially did not make out a prima facie case of unlawful discrimination where he violated the company standards by his excessive absenteeism and tardiness and that even if such a case did exist, the employer’s articulated reason for discharge of Luckett was not a pretext for unlawful discrimination in light of its EEO-1 reports and other available documents, we conclude that the Commission’s dismissal of Luckett’s charge for lack of substantial evidences was not arbitrary or capricious or against the manifest weight of the evidence and therefore affirm the administrative decision.

Order affirmed.

BUCKLEY and O’CONNOR, JJ., concur.

      By order dated March 8, 1989, the court modified its previous order of September 21,1988, to strike the retroactive relief suggested therein.

      Justice Buckley participated in this opinion after the resignation of Justice Quinlan, who had participated in the oral argument. Justice Buckley has read the briefs and listened to a tape of oral argument.


source: Caselaw Access Project

author: JUSTICE LINN

license: Public Domain

text:
    MICHAEL D. HARRINGTON, Indiv. and as the Special Adm’r of the Estate of Sheryl Colburn Harrington, Deceased, Plaintiff-Appellee, v. RUSH-PRESBYTERIAN-ST. LUKE’S HOSPITAL, Defendant-Appellant.
    First District (4th Division)
    No. 1 — 89—1254
    Opinion filed December 20, 1990.
    — Rehearing denied April 2,1991.

      Lord, Bissell & Brook, of Chicago (William C. Anderson, Harold L. Jacobson, and Hugh C. Griffin, of counsel), for appellant.
    Hayes & Power, of Chicago (Joseph A. Power, Jr., and David A. Novoselsky, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Defendant Rush-Presbyterian-St. Luke’s Hospital (Rush) brings this appeal seeking reversal of a jury verdict rendered in favor of plaintiff Michael Harrington. Harrington’s medical malpractice action alleges that Rush was negligent in the care and treatment of Sheryl Harrington, Michael’s wife, and that such negligence proximately resulted in Sheryl’s death. After a full trial on the merits of Harrington’s claims, the jury returned a verdict in Harrington’s favor and against Rush.

Rush now brings this appeal, claiming: (1) the trial court erred in not granting Rush’s motion for a directed verdict and/or Rush’s motion for judgment n.o.v.; and (2) erroneous evidentiary rulings, improper jury instructions and plaintiff’s prejudicial closing argument entitle Rush to a new trial.

For the reasons set forth below, we affirm.

Background

Sheryl and Michael Harrington were married in 1975. Shortly before their marriage, Sheryl was involved in a serious automobile accident that resulted in the amputation of her right leg below the knee. In 1976, Sheryl and Michael had a son, Ryan.

The leg amputation left Sheryl with chronic pain in her right leg stump and serious mental depression. Sheryl was under the treatment of several physicians for problems relating to the leg amputation. Sheryl was prescribed Darvocet, a mild pain killer. Sheryl thereafter became dependent on Darvocet.

In 1977, Sheryl and Michael decided to have another child. Before attempting to do so, Sheryl wanted to terminate her dependency on Darvocet. Sheryl’s physician advised her to undergo in-patient treatment to relieve her of any dependency on Darvocet. Sheryl’s physician indicated that the in-patient detoxification program would last approximately three weeks. Sheryl decided to voluntarily admit herself into Rush for the purpose of undergoing an in-patient detoxification program.

Sheryl was admitted to Rush on October 24, 1977. On October 25 and 26, Sheryl’s visitors noticed that she appeared to be groggy. On October 28, her condition improved and she became more alert. Sheryl’s poor condition was attributed to the detoxification program.

On October 29, 1977, Sheryl’s condition appeared to worsen. She was constantly falling asleep and could not carry on a conversation. On October 30, 1977, Sheryl suffered from severe headaches and appeared to be totally incoherent.

On October 31, 1977, Sheryl remained groggy. The last time a member of Sheryl’s family saw her alive was at approximately 9 p.m. on October 31, 1977. Sheryl was pronounced dead on November 1, 1977.

The autopsy report indicated that Sheryl had died from “combined drug toxicity” as a result of her system being overloaded with various drugs, most notably, Darvocet.

Michael thereafter commenced this action against Rush claiming that Rush’s failure to monitor and care for Sheryl had proximately caused Sheryl’s death.

The case against Rush was premised on Rush’s failure to properly monitor Sheryl during the night of October 31, 1977, and the morning of November 1, 1977.

Near 11 p.m. on October 31, 1977, Sheryl passed out on the bathroom floor. The nurses returned Sheryl to her bed but did not contact a physician regarding Sheryl’s episode. There were no progress notes of Sheryl’s condition from 11 p.m. to 7 a.m. and no mention was made in Sheryl’s records of her collapse. In addition, the record reveals that following Sheryl’s collapse, Rush’s nurses failed to check on Sheryl’s condition for the remainder of the evening of October 31-No-vember 1, 1977. The evidence also showed that Rush’s nursing staff failed to give Sheryl her medicine at 1 a.m. and 5 a.m. Sheryl’s autopsy indicated that she had died some four to six hours before 7 a.m. on November 1,1977.

The evidence at trial showed that Narcon is an antidote for Darvocet. It immediately reverses the effects of Darvocet. There was expert testimony presented that if Narcon had been given to Sheryl, she would be alive.

Both Rush and the plaintiff presented expert testimony regarding the standard of care owed by a hospital’s nursing staff. The plaintiff’s experts testified that Rush’s failure to give Sheryl her medicine at the prescribed intervals as well as Rush’s failure to check Sheryl on a regular basis constituted a breach of the standard of care. In addition, the plaintiff’s expert testified that Sheryl’s life could have been saved had Rush’s nurses identified her condition and provided her with Narcon. The plaintiff’s experts interpreted the absence of entries on Sheryl’s medical charts as indicating that nothing had been done for Sheryl during the night.

Rush’s experts, on the other hand, opined that the mere absence of entries did not reflect that regular checks on Sheryl had not been made. Rush’s experts also asserted that Sheryl’s drug toxicity level was so high that she could not have been saved even if her condition had been discovered by Rush’s nurses. According to Rush’s experts, therefore, no breach of the standard of care occurred.

Following a trial of several weeks, and the presentation of many exhibits, the jury returned a verdict in favor of the plaintiff and against Rush in the amount of $4 million. That amount was subsequently reduced by prior settlements that other defendants had made with the plaintiff.

Rush’s post-trial motions were denied, prompting Rush to bring this appeal.

Opinion

Rush asserts two principle arguments in seeking reversal of the jury’s verdict.

First, Rush claims that it was entitled to a directed verdict or, in the alternative, a judgment n.o.v. Rush asserts that the evidence was insufficient to prove a breach of the standard of care by Rush’s nurses and that the plaintiff did not meet its burden of establishing that any additional monitoring by Rush’s nurses would have prevented Sheryl’s death.

The standard governing directed verdicts and judgment n.o.v. was set forth by the supreme court in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504. The celebrated “Pedrick standard” provides:

“[V]erdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” 37 Ill. 2d at 510, 229 N.E.2d at 513-14.

Applying that standard to the case at bar, we believe the trial court correctly denied Rush’s motion for a directed verdict as well as its motion for judgment n.o.v. There is no dispute that Rush had a duty to monitor Sheryl’s vital signs, to observe Sheryl’s breathing patterns on a periodic basis during the night, and to advise Sheryl’s physician of any significant changes. Rather, the dispute centered around whether Rush had in fact performed its monitoring obligations.

The plaintiff presented medical evidence that showed Rush had not checked on Sheryl’s condition for at least six or seven hours. The plaintiff’s expert testified that rigor mortis had set in between 3 a.m. and 4 a.m. and that any type of inspection by Rush’s nurses would have revealed Sheryl’s condition. Also, there was no dispute that Rush’s nurses failed to give Sheryl her medicine at 1 a.m. and 5 a.m. on the morning in question.

Furthermore, the evidence shows that Sheryl collapsed at approximately 11 p.m. and was helped back into bed by Rush’s nurses. However, the nurses failed to notify Sheryl’s physician of that episode.

The plaintiff thus presented evidence from which a jury could find that Rush breached the standard of care by failing to monitor Sheryl’s condition and by failing to inform Sheryl’s physician of her collapse. This evidence, when viewed in a light most favorable to the plaintiff, is clearly sufficient to withstand scrutiny under the Pedrick standard.

Rush also claims that, even if its nurses failed to monitor Sheryl, nevertheless, Rush’s failure was not the proximate cause of Sheryl’s death because there was nothing that could be done to save Sheryl’s life.

This was a hotly contested issue at trial. Each side’s expert witnesses opined regarding whether “prompt intervention” could have saved Sheryl’s life. Needless to say, the plaintiff’s experts contended that Sheryl’s life could have been spared and Rush’s experts testified that no help would have been sufficient.

There is no dispute, however, that Narcon was an antidote that could have been utilized to counter the effects of Sheryl’s toxicity. The plaintiff’s expert specifically testified that, to a degree of medical and scientific certainty, Sheryl’s life could have been saved if the Narcon had been administered at 11 p.m. following her collapse. Although Rush’s expert testified that Sheryl’s death was “sudden” and that no amount of monitoring could have saved her, this difference of opinion between experts was clearly a credibility issue that the jury resolved in the plaintiff’s favor.

The plaintiff thus presented sufficient evidence from which a jury could find that Sheryl’s death was proximately caused by Rush’s negligence. Under these circumstances, we cannot overturn the jury’s verdict pursuant to the Pedrick standards.

In sum, the issues of negligence and proximate cause were matters that were properly left for the jury to decide. We cannot say that the evidence “so overwhelmingly favors [Rush] that no contrary verdict” could ever stand. (Pedrick, 37 Ill. 2d at 510, 220 N.E.2d at 513-14.) We therefore affirm the trial court’s orders denying Rush’s motion for a directed verdict and its motion for a judgment n.o.v.

Rush’s second basis for reversal attacks procedural rather than evidentiary matters. Rush asserts that the trial court erred in permitting one of the plaintiff’s expert witnesses to render certain testimony, that Rush was denied a fair trial because of improper jury instructions, and that plaintiff’s closing argument was unfairly prejudicial.

Initially, we do not believe that the trial court abused its discretion in permitting the plaintiff’s nursing expert to render testimony regarding the effects of certain medicines. The trial court inquired as to the expert’s qualifications, and the trial court could have found, within its discretion, that the nursing expert’s experience and background were adequate to permit her to render her opinion. See Broussard v. Huffman Manufacturing Co. (1982), 108 Ill. App. 3d 356, 438 N.E.2d 1217.

Rush also asserts that the trial court erred in giving both the “ordinary negligence” instructions and the “medical malpractice” jury instructions. We agree with Rush that both instructions should not be given in a medical malpractice case. However, Rush failed to submit a modified set of jury instructions and, therefore, waived any complaint regarding the instructions tendered by the trial court.

Finally, Rush complains about plaintiff’s closing argument. Interestingly, the focus of this dispute relates to the failure to call the nurses who were on duty on the evening of October 31-November 1, 1977, to testify. Plaintiff’s counsel asserted that he did not call the nurses because he believed Rush’s counsel was going to do so. Rush’s attorney, on the other hand, also did not call the nurses to testify. For some reason, therefore, neither side called the very persons whose conduct, it appears, was at issue in this trial.

Whatever the reason for this strategy, we have closely reviewed the record and reject Rush’s contention that it was denied a fair trial because of comments made by plaintiff’s counsel during closing arguments. The comments directed to the testimony or nontestimony of the nurses were certainly a disputed issue and one that could not possibly have interfered with Rush receiving a fair trial.

Accordingly, for all the reasons set forth above, we affirm the jury’s verdict.

Affirmed.

McMORROW, P.J., and JIGANTI, J., concur.


author: JUSTICE McNAMARA

text:
    DREYFUSS METAL COMPANY, Plaintiff-Appellee, v. ROBERT BERG et al., Defendants-Appellants.— WAYNE-WEBSTER TRADING COMPANY, INC., on Behalf of Itself and all Shareholders of Dreyfuss Metal Company, et al., Plaintiffs, v. CHARLES DREYFUSS et al., Defendants.
    First District (6th Division)
    No. 1 — 90—0983
    Opinion filed December 28, 1990.
    — Rehearing denied March 27, 1991.

      Daniel S. Hefter & Associates, Ltd., of Chicago (Daniel S. Hefter and Michael R. Goldfein, of counsel), for appellants.
    Arnstein & Lehr, of Chicago (Michael R. Turoff and Arthur L. Klein, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Dreyfuss Metal Company (Dreyfuss), brought an action for specific performance against defendants, Robert Berg and Wayne-Webster Trading Company, demanding that they perform their obligations under a “Memorandum of Understanding” in which Dreyfuss agreed to purchase defendants’ 50% interest in Dreyfuss and a one-half ownership interest in its Chicago building and land for $1,338,000. The dispute which delayed the closing and prompted this suit resulted from a tax indemnity provision, which Dreyfuss conceded at trial was not part of the original agreement, but which its attorney subsequently added. On February 6, 1990, almost one year after the agreement was set to close, the trial court entered a decree for specific performance according to the terms of the written agreement dated January 19, 1989. On March 6, 1990, the trial court denied defendants’ post-trial motion to require Dreyfuss as a condition of specific performance to compensate defendants for losses which resulted because the closing did not proceed as agreed on February 24, 1989, but rather on April 11,1990.

On appeal, although defendants contend that specific performance was improperly granted, they do not seek reversal of the decree. Rather, they seek reversal only of the court’s order denying defendants’ post-trial motion for compensation for losses of interest and for fees.

Plaintiff is a closely held corporation engaged in the scrap metal business. Two shareholders, Dreyfuss Industries, Inc., and Wayne-Webster, each own 50% of Dreyfuss’ stock. Dreyfuss Industries, Inc., is an Illinois corporation whose president and sole shareholder is Elsbeth Dreyfuss. Wayne-Webster, a Delaware corporation engaged in the scrap metal business, is owned and operated by Robert Berg, who serves as president. Both Elsbeth Dreyfuss and Berg held seats on Dreyfuss’s board of directors. Elsbeth’s son, Charles Dreyfuss, served as president and exclusively managed Dreyfuss. Despite Berg’s more than 20-year association with plaintiff and his official title as treasurer, Berg never actively participated in the plaintiff’s daily operations. He did, however, receive a substantial yearly commission from plaintiff.

In early 1987, Berg indicated to Leonard Kaskel, plaintiff’s accountant, his desire to sell his ownership interest in the company. Although Berg made an offer at an October 1987 meeting, the parties did not agree on a price, and negotiations ceased until March 1988, when the parties again met. At this meeting, the parties established the formula for valuing Berg’s shares. At the July 1988 board of directors’ meeting, Charles Dreyfuss informed Berg that he would no longer receive a yearly commission because he did not actively participate in plaintiff’s daily affairs. However, Berg, in his capacity as director, refused to approve the cessation of his commission, thereby causing a deadlock with Elsbeth Dreyfuss on this vote. Berg reaffirmed his desire at this meeting to terminate his association with plaintiff. Due to the continued friction and tension between the parties, they continued to negotiate the terms for plaintiff’s purchase of Berg’s interest in the company and his resignation as treasurer and director.

On January 19, 1989, the parties met at Berg’s request to discuss this matter. Charles and Elsbeth Dreyfuss, Berg, and Kaskel were present. Eventually, the parties agreed to the terms of a deal which Kaskel reduced to a two-page, handwritten “Memorandum of Agreement,” which Elsbeth Dreyfuss, on plaintiff’s behalf, and Berg, on behalf of himself and Wayne-Webster, signed. The basic terms of the agreement are undisputed: Plaintiff would pay $1,138,000 and a one-half interest in the Dreyfuss building and land in exchange for defendants’ 50% shareholder interest. Plaintiff would place $500,000 of the cash payment into an escrow account to fund a potential Dreyfuss liability. The remaining $638,000 would be received by defendants at the closing. The document further provided that plaintiff would rent defendants’ one-half interest in the real estate at agreed-upon terms and that defendants would be liable for 50% of the liabilities upon the sale of the building. The parties also agreed that defendants would be responsible for half of any undetermined business liabilities which arose during defendants’ period of ownership and that Berg would be bound for five years by a covenant not to compete. Finally, the agreement recited that “a formal contract based upon the above” would be prepared and set February 1, 1989, as the closing date. Despite the provision for a “formal contract,” it is undisputed that the parties believed that the written agreement was binding and that they intended the proposed “formal contract” only to memorialize their handwritten agreement in more formal language. Indeed, the trial court found that the handwritten document itself was a valid, enforceable contract.

After the meeting, Kaskel gave the agreement to Martin Kamensky, Dreyfuss’ attorney, to draft the formal contract. Kamensky assigned the task to James Shaw, his associate, instructing him to draft a contract reflecting only the agreed upon terms in the “Memorandum of Understanding.” Upon completion, Shaw presented the draft to Kamensky, who reviewed it and added the disputed tax liability provision which was not contained in the original handwritten agreement. The provision obligated defendants to indemnify plaintiff for any tax, interest and penalty that plaintiff might be required to pay if the Internal Revenue Service (IRS) disallowed the deduction plaintiff intended to claim for part of the purchase price of defendants’ stock.

Kaskel testified that although the parties valued defendants’ stock at $1,138,000, plaintiff would report $500,000 as the stock’s value and allocate the remaining $638,000 to the covenant not to compete with Berg and compensation for Berg's prior services. By so doing, the $638,000 would be deductible as business expenses. Kaskel testified that after the January 19, 1989, meeting, he calculated that if the IRS allowed the deduction, the purchase would ultimately cost plaintiff $1,400,000; if, however, the IRS disallowed the deduction, the stock purchase would ultimately cost $1,600,000. Kaskel testified that he discussed this matter with Kamensky and Shaw.

Shaw testified that on February 23, 1989, Martin McNally, acting then as defendants’ attorney, telephoned him concerning the tax liability provision. McNally told Shaw that Berg never agreed to the provision and wanted it removed entirely. Again, Shaw consulted with Kamensky and telephoned McNally later that day. He explained to McNally that although Kamensky and he believed the provision was implicit in the agreement, they would be willing to “entertain” removing the section if Berg provided plaintiff with substantiation for his prior services in order to document the allocation of the purchase price for tax purposes. Shaw admitted, however, that plaintiff never agreed to remove the tax indemnity provision even if Berg satisfied the additional condition. According to Shaw, McNally indicated that he would contact Shaw after he discussed the matter with Berg. McNally did not telephone Shaw again on February 23.

On the morning of February 24, 1989, the scheduled closing date, as extended by the parties’ consent, Shaw called McNally, who indicated that Berg was upset about the provision and that he refused to close with the added provision. Shaw testified that McNally never provided the requested substantiation for Berg’s services or suggested any other alternatives.

On March 8, 1989, Charles Dreyfuss, Kamensky and Shaw held a meeting at which Dreyfuss expressed a willingness to close the deal without the tax indemnity provision and instructed his attorneys to so proceed. Kamensky, however, suggested that other alternatives first be considered. After Kamensky’s request for additional time, Charles Dreyfuss rescinded the instruction to his attorneys to close the deal without the provision. Shaw, in fact, testified that neither he nor Kamensky ever offered to settle the deal on behalf of plaintiff without the tax provision.

Later in March, Berg requested a meeting at which he told Kaskel and Charles Dreyfuss that he wanted interest on the purchase price because the deal did not close as scheduled. He also requested an additional $200,000. Charles Dreyfuss testified that he did not agree to defendants’ requests, telling Berg that he would have already received his money if he had allowed the transaction to close on February 24, 1989, as scheduled. Kaskel testified that Berg did not state at this meeting that he would not close the deal with the tax provision.

Kaskel testified that he spoke with Berg on several occasions after the March meeting, attempting to close the deal. Berg told him that he was tired and wanted to delay a decision until after April 15. In early May, Berg informed Charles Dreyfuss that he was selling his shares to a third party. On May 17, 1989, plaintiff filed this suit against Berg and Wayne-Webster to compel specific performance of the January 19, 1989, agreement. Defendants filed a motion to dismiss, claiming that the written memorandum was not an enforceable contract. The court denied that motion.

As an offer of proof, Keith Berk, defendants’ substituted attorney, testified that in early June he met with Kamensky to discuss closing the transaction. Berk testified that at their June 7 meeting, Kamensky told Berk that the tax indemnity provision was a “significant economic deal point,” without which they “didn’t have a deal.” Plaintiff’s counsel objected to Berk’s testimony as privileged settlement negotiation and the trial court excluded it.

On February 6, 1990, the circuit court granted specific performance of the “Memorandum of Understanding,” finding that plaintiff was ready, willing and able to close the transaction. Defendants filed a post-trial motion, requesting that as a condition of the specific performance plaintiff compensate defendants for rent, interest and attorney fees. The court denied defendants’ motion on March 6, 1990. On April 11, 1990, the parties closed the transaction as ordered by the circuit court.

On appeal, defendants maintain that the trial court erred in granting specific performance because plaintiff failed to prove that it tendered its own performance. Defendants, however, do not seek reversal of the decree. Rather, defendants contend that by insisting on the tax liability provision, plaintiff delayed the closing from February 24, 1989, to April 11, 1990. As such, defendants maintain that the trial court improperly denied its post-trial motion to condition the grant of specific performance upon plaintiff's payment to defendants of three elements of damage: loss of use of purchase price from February 24, 1989, to April 11, 1990, loss of agreed-upon rent for same period, attorney fees and costs from February 24,1989, forward.

In rendering judgment for the plaintiff, the trial court filed a memorandum opinion in which it specifically found:

“10. The evidence establishes that plaintiff was ready, willing and able to close the transaction and acted consistently with the belief that there was a contract and the belief that it should be closed on the terms that were agreed to on January 19, 1989.”

The trial court found, and we agree, that the January 19, 1989, memorandum constituted a valid, enforceable contract. At issue in this case, however, is whether plaintiff’s conduct constituted an unconditional tender of performance. Our analysis of the evidence leads us to conclude that the plaintiff was not ready, willing and able to perform under the agreed upon contract. Further, we conclude that because plaintiff’s failure to tender its performance constituted a breach of contract, the trial court’s award of specific performance was improper.

Generally, a plaintiff seeking specific performance of a contract must be “ready and offer to pay any sum that may be due and to comply with the contract on his part.” (Dodds v. Giachini (1979), 79 Ill. App. 3d 358, 362, 398 N.E 2d.205, 209, rev’d on other grounds (1981), 84 Ill. 2d 284, 418 N.E .2d 704; Kennedy v. Neil (1929), 333 Ill. 629, 634, 165 N.E. 148, 151.) Although equity relaxes the technical rules of tender in order to prevent injustice, a party seeking specific performance must make a “conscientious effort on his part to comply honestly with the contract.” (Dodds v. Giachini, 79 Ill. App. 3d at 363, 418 N.E.2d at 209; Macy v. Brown (1927), 326 Ill. 556, 564, 158 N.E. 216, 219.) Further, when a party attempts to impose conditions not contained in the contract, he fails to show that he complied with the contract’s terms and is ready, willing and able to do the acts required by the contract. Sullivan v. Burke (1958), 15 Ill. 2d 101, 153 N.E .2d 824; Arnold v. Leahy Home Building Co. (1981), 95 Ill. App. 3d 501, 420 N.E.2d 699; Wolford v. James E. Kolls Investment Co. (1978), 61 Ill. App. 3d 405, 377 N.E.2d 1314.

In Sullivan v. Burke, the prospective purchaser of land requested specific performance of a trustee’s agreement to sell the land. The trustee entered into an agreement to sell a parcel of real estate to the buyer, which provided that the buyer had 60 days from the time “after the title has been examined and found good, or accepted by [the buyer]” to pay the seller the sum of $11,500. Although buyer received an opinion of good, marketable title, he waited 105 days and then advised seller he would remit the agreed-upon purchase price only if the seller would execute a deed to buyer and deliver it to buyer’s attorney. The buyer stated that he would tender the balance of the purchase price only after the deed was recorded and he received a later title report. Our supreme court concluded that the circuit court improperly ordered specific performance, writing:

“Purchasers had no right to impose conditions not contained in the contract of sale and by attempting to do so they failed to show that they had complied with the terms of the contract of sale as far as possible and that they were ready, able and willing to do the future acts required under the contract. [Citations.]” Sullivan, 15 Ill. 2d at 113-14,153 N.E.2d at 831.

Like the plaintiff in Sullivan, plaintiff in this case added a new provision to previously agreed-upon terms and refused to close on the contract terms. The January 19, 1989, handwritten document, which neither party disputes on appeal is an enforceable contract, contained no tax indemnity provision, nor did the parties discuss such a provision at the January meeting. Although plaintiff and its attorneys continued to maintain that this provision was implicit in the parties’ contract, Berg repeatedly asserted that he never agreed to such terms. Plaintiff’s attorney, in fact, conceded during closing arguments at trial that the provision was not a part of the contract, but was unilaterally added by plaintiff’s attorney after the parties executed the January 19 agreement. Although both parties appeared interested in closing the transaction, plaintiff repeatedly failed to indicate a willingness to close the deal without the added tax indemnity provision. Plaintiff simply wanted to close the deal on its own terms. Under Sullivan, by attempting to impose a condition not contained in the parties’ agreement, plaintiff failed to demonstrate that it was ready, willing and able to perform the contract. As such, specific performance was improper.

Further, in our view, the trial court improperly concluded that the plaintiff did not breach the parties’ contract. The general rule is that a party’s failure to perform a contract according to its terms constitutes a breach. 17A C.J.S. Contracts §451 (1963).

The trial court found:

“9. Defendants also claim that plaintiff breached the contract by insisting on [the tax indemnity provision] in the final contract. In this regard the Court finds that defendants have not established that plaintiff insisted on changing the terms of the January 19 contract to add [the tax indemnity provision]. Although the agents of the parties discussed that provision, the draft containing [the provision] and the deletion of that paragraph was never expressly dealt with by the parties. While there was a great deal of confusion communicated, there was not a clear statement from plaintiff in the days around February 23, 1989 or subsequent days including March 8, 1989 that it would not go ahead without [the provision] in the contract.”

Unlike the trial court, we believe that plaintiff did not demonstrate, at any time from February 23, 1989, until the closing arguments on January 24, 1990, its willingness to perform pursuant to the agreed-upon contract terms nor did it offer to close without the tax provision. We conclude that plaintiff’s failure to perform the contract according to its terms constitutes a breach.

First, we believe that the evidence demonstrates that on the scheduled closing date plaintiff was not ready, willing and able to perform the contract. When McNally, defendants’ attorney, telephoned Shaw on the day before the scheduled closing to demand the removal of the added provision, Shaw told McNally that Kamensky believed the provision to be implicit in the agreement. After speaking to Kamensky, Shaw refused to remove it. Although Shaw told defendants that plaintiff would “entertain” removing the provision if defendants would agree to a different provision, Shaw conceded that plaintiff never agreed to close without the tax provision and never actually agreed to remove the provision even if defendants agreed to provide the substituted condition. Further, even if plaintiff had agreed to remove the tax provision upon defendants’ agreement to the other condition, plaintiff would still not have tendered performance according to the conditions of the contract. On February 24, 1989, McNally again demanded that plaintiff remove the provision. Shaw again refused to remove it and refused to close without it. The evidence positively demonstrates that the transaction did not close as scheduled because plaintiff would not close without the unilaterally added provision. Indeed, even the testimony of plaintiff’s president, Charles Dreyfuss, and its attorney, Shaw, demonstrates that the disputed tax provision was the only issue preventing the closing.

Moreover, contrary to the trial court’s findings, we conclude that subsequent to the February 24, 1989, closing date, plaintiff continued to refuse to tender its performance. At the March 8 meeting of Dreyfuss, Kamensky and Shaw, even though Charles Dreyfuss knew the tax provision was the only issue which prevented the closing, he still refused to close on the agreed-upon terms. Although Dreyfuss initially agreed to remove the tax provision from the contract, Kamensky persuaded him to consider additional alternatives. Dreyfuss then rescinded his earlier instructions to close the deal.

Indeed, even as late as June 7, 1989, plaintiff, through its attorneys, indicated its unwillingness to close without the tax indemnity provision. As shown through an offer of proof, Keith Berk, defendants’ second retained attorney, would have testified that at his June 7 meeting with Kamensky to discuss the possibility of closing the deal, Kamensky told Berk that from plaintiff’s view, the tax indemnity provision was “a significant economic deal point,” without which the parties “didn’t have a deal.” Although the trial court excluded this evidence upon plaintiff’s objection as privileged settlement negotiations, (Barkei v. Delnor Hospital (1988), 176 Ill. App. 3d 681, 531 N.E.2d 413), we agree with defendants that this evidentiary ruling was erroneous. The trial court deemed this evidence an offer of compromise and considered it offered for the purpose of proving the liability of the party making the offer. We find that the proffered testimony in this case did not involve an offer to compromise nor was it offered to prove the liability of any party. Rather, Berk’s testimony was offered as an admission that even after filing suit, plaintiff would not close without the tax provision which it considered a crucial economic point. Because admissions, unlike offers to compromise, are admissible (Lipschultz v. So-Jess Management Corp. (1967), 89 Ill. App. 2d 192, 200, 232 N.E .2d 485, 489; Domm v. Hollenbeck (1908), 142 Ill. App. 439, 442-43, rev’d on other grounds (1913), 259 Ill. 382, 102 N.E. 782), the trial court improperly excluded this evidence and we may consider it on appeal.

In sum, plaintiff, through its attorneys, refused to close upon the terms of the parties’ contract and, as such, breached the contract. Therefore, we reverse the trial court’s denial of the defendants’ post-trial motion requesting damages for the the loss of purchase price and rent from February 24, 1989, to April 11, 1990. We remand to the trial court and direct it to calculate damages and award them to the defendants.

Finally, we consider defendants’ claim that the trial court improperly denied their request for attorney fees. Defendants argue that because plaintiff’s conduct caused them to incur unnecessary attorney fees and costs, plaintiff should reimburse defendants for these expenses. However, defendants cite no authority for this argument. More importantly, well-settled Illinois law requires us to reject defendants’ claim. A successful litigant generally may not recover fees or costs in the absence of a statute, agreement or stipulations specifically so allowing. (Saltiel v. Olsen (1981), 85 Ill. 2d 484, 488-89, 426 N.E.2d 1204, 1206; Evink v. Pekin Insurance Co. (1984), 122 Ill. App. 3d 246, 251, 460 N.E.2d 1211, 1214.) Although plaintiff breached the contract, its conduct did not rise to the level of illegal or wrongful conduct meriting an award of fees. (See Sorenson v. Fio Rito (1980), 90 Ill. App. 3d 368, 413 N.E .2d 47.) We thus find no reason to except the present case from the general rule that the ordinary litigant is responsible for his own attorney fees and costs.

The trial court’s order denying defendants’ post-trial motion is, therefore, reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

LaPORTA, P.J., and RAKOWSKI, J., concur.


author: JUSTICE DiVITO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CRAIG MUZARD, Defendant-Appellant.
    First District (2nd Division)
    No. 1 — 88—1234
    Opinion filed February 5, 1991.
    — Rehearing denied March 27, 1991.

      Genson, Steinback & Gillespie, of Chicago (Edward M. Genson and Geena D. Cohen, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Paul Gliatta and John deGrasse, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DiVITO

delivered the opinion of the court;

A jury found defendant Craig Muzard guilty of murder (Ill. Rev. Stat. 1985, ch. 38, pars. 9 — 1(a)(1),(a)(2)), and he was sentenced to 20 years in the Illinois Department of Corrections. On appeal, defendant contends that his conviction must be reversed because (1) the State violated the trial court’s in limine order, engaged in conduct designed to prejudice defendant and his counsel, and misled the jury in closing arguments; (2) conversations protected by marital privilege were improperly admitted into evidence against him; and (3) the State failed to prove that he was guilty of murder beyond a reasonable doubt.

Evidence at trial established that in February 1986, defendant and his wife, Sandra Muzard, had been married 10 years and were the parents of two daughters, ages eight and four. Defendant was employed as an engineer for WLS radio.

In December 1985, Brian Tosch was a carpenter who was hired by defendant to panel the hot tub room which had been recently added to the Muzard residence. Since Tosch resided in Wisconsin, defendant invited him to live in the Muzard home until he completed the job. During the 10 to 12 days of his stay, or shortly thereafter, Tosch and Sandra began an intimate sexual relationship. Suspecting that relationship, defendant ordered Tosch to leave his house just before the panelling work was completed.

On February 19, 1986, Sandra received two phone calls from Tosch. On three prior occasions before that date, she had met Tosch to have sexual relations with him. Unbeknownst to Sandra and Tosch, defendant had placed a device which was capable of starting a tape recorder and recording both sides of a conversation whenever a telephone was picked up anywhere in the house. During their phone conversations, Tosch and Sandra talked about some of their prior sexual activity and Tosch encouraged Sandra to meet him that night at a motel. When Sandra expressed reluctance to do so, Tosch said that if she did not meet him, he would begin shooting at cars on Interstate 90 and, if they were lucky, defendant would be in one of the cars and they could take his insurance money and the children and move into his house in Wisconsin.

Defendant listened to the tape recording of these conversations after Sandra had gone out on the evening of February 19. He immediately woke up his two daughters and drove with them to the motel identified on the tape. In the parking lot he saw his wife’s car. He learned the room in which Tosch was registered from the desk clerk, and went to the room with both of his daughters. When he was admitted by Tosch, Sandra, who had been alerted by the clerk, was not there. When he went to the window, he saw that Sandra’s car was no longer in the parking lot. Defendant took his daughters to the home of Joseph Hecker, left them there, and returned to the motel with Hecker. They knocked on Tosch’s door, but he was gone. Tosch had gone to meet Sandra at another motel, where they stayed the night together.

On the morning of the next day, February 20, 1986, before Sandra returned home, defendant talked to Christopher Bates, a neighbor. According to Bates, defendant said that his wife was having an affair with another man. Defendant asked Bates if he would kill the man or knew of someone who would do so. Defendant’s version of that conversation was that Bates initiated the topic of having the man killed and that Bates knew someone who would do the job. Defendant denied pursuing the matter.

Later on February 20, according to defendant, he contacted Tosch and arranged a meeting at a restaurant to try to resolve matters. Defendant took a .22 caliber pistol with him. In the restaurant, according to defendant, Tosch put his keys and a knife on the table, told defendant that he had to let Sandra go, told him that Sandra enjoyed having sex with him more than with defendant, and told him of having sex with Sandra the night before and that very morning. After that meeting, defendant contacted Linda Brown, a WLS psychologist who had been counselling him. She referred him to Dr. Irving Tracer, a psychiatrist, who telephonically prescribed sleeping pills and arranged an appointment for noon the next day.

On February 21, 1986, defendant saw Dr. Tracer, who recommended that defendant admit himself into Forest Psychiatric Hospital. Because the next day was his wedding anniversary, defendant said he decided to postpone his admission.

According to defendant, he received several telephone calls from Tosch requesting a meeting that day. Though defendant said he declined to meet with Tosch, he called Roy Tosch, Tosch’s father, and asked for Tosch. Defendant informed Roy Tosch that his son was having an affair with his wife and sought his help.

Defendant stated that Tosch later contacted him by phone and suggested that they meet in a forest preserve. Because he feared Tosch, defendant suggested that they meet in a public place. A 7-Eleven store about a half mile from defendant’s home was selected. Defendant put a loaded .22 caliber handgun in his right coat pocket and a loaded 9 millimeter handgun in the seat behind him. He then drove in his Cherokee Jeep to the 7-Eleven, met Tosch, drove across the street with Tosch following so that Tosch could leave his car in a more public parking lot, and then began driving with Tosch in the passenger seat of his car. Defendant said that he purposely placed his jacket on the console of his vehicle so that Tosch would see the butt of the gun protruding.

According to defendant, Tosch informed defendant that he was in love with Sandra and defendant cried and pleaded with Tosch to leave his family alone. Defendant then informed Tosch that he had a tape recording of the phone conversations he had with Sandra. Tosch said that Sandra thought he was more of a man than defendant and taunted defendant with sexual experiences he had with her. Tosch told defendant that he would have to get used to his children calling Tosch “dad” because they were going to leave defendant.

Defendant then informed Tosch that he had spoken with his father and he threatened to play the tape for Tosch’s father. According to defendant, Tosch responded by shouting expletives and by hitting defendant in the right shoulder. As the two men “started pushing back and forth,” defendant drove off the road. Both reached for the .22 caliber gun at the same time. Defendant had his right hand on the gun and Tosch had his hand on top of defendant’s. As they struggled, “[t]he gun fired.” While defendant was watching the road and applying the brake, “it fired two more times.” Defendant did not know if those shots hit Tosch, but he thought the gun was touching Tosch. They continued to struggle. The gun then jammed; it would not fire anymore; and defendant released it. When Tosch grabbed for the gun, defendant reached behind him for the other gun. Tosch then lurched toward defendant; when Tosch was on top of him, defendant “fired a couple of shots down at him” while the gun was touching Tosch. Tosch then “backed up toward the door” and defendant continued firing. Tosch then slumped over the seat and the console. By this time, the car was stopped in the middle of the road. Defendant felt Tosch’s body for a pulse, but found none.

Sometime after 10 p.m., defendant then went to the home of his half brother, Mike Richardson. He entered the house and called, but no one responded. In the house, he attempted to “unjam” the gun, and it fired. He then began to leave. His sister-in-law, Ellen Richardson, had been awakened by defendant’s car in the driveway and heard the gunshot, but did not know at that time what it was. She left her bedroom and talked to defendant, who left shortly thereafter. After Ellen Richardson went back to bed, defendant returned. This time Ellen saw that his hands were covered with blood. Defendant told her that he had killed Tosch and gave her both guns. Defendant said that he killed Tosch after Tosch had tried to shoot him with a gun that jammed. He stated that he had thrown Tosch’s gun into a field. Defendant asked her to drive him to two places: to a field to look for the gun and to Tosch’s car so that he could move it. She refused both requests.-Ellen made numerous phone calls in an unsuccessful attempt to locate her husband. While awaiting her husband’s return, she summoned Gordon Muzard, defendant’s brother. Defendant rejected both Gordon’s and Ellen’s requests to call the police. Gordon left after a short period because he was so upset. As dawn approached, defendant put his car in the garage so that no one would see it.

At about 5:30 a.m., Mike Richardson came home. Defendant’s requests for help in cleaning the car or burning it were rejected by Richardson. Defendant then took Tosch’s body from the front of the car and placed it in the back. Later that morning, defendant drove to Dan Cordingley's house with Tosch’s body in the back of his car. Ellen Richardson had called the police and told them of defendant’s destination; he was arrested en route. Later, defendant made a statement to police, at first stating that Tosch had pulled his own gun and then admitting that he had lied and that Tosch had no gun. Police observed no marks or bruises on defendant.

Joseph Hecker, Scott Longueil and Dan Cordingley each testified that shortly after he was arrested, defendant requested that they plant a gun in a field near the shooting. During his testimony, defendant admitted making these requests.

An autopsy revealed that Tosch was shot seven times. One bullet grazed off the top of the left side of his forehead. Two bullets entered the back of his neck and exited below the right ear; the gun causing these wounds was positioned behind his neck pointing towards the right. The point of entry of one of these bullets had characteristics of a “tight contact wound,” indicating that the gun was pressed against the skin; the other point of entry had characteristics of a “loose contact wound,” indicating that the gun was loosely on the skin or within close proximity to it. Another bullet entered his torso, exited his abdomen, and entered the palm of his right hand. Another bullet entered from his left side and went through his diaphragm. The sixth bullet entered beneath his left nipple, and the seventh bullet entered in the area of his upper right chest. The wounds caused by the last four bullets had characteristics indicating that the gun was held in close proximity to or touching his clothing. Four projectiles were recovered at the autopsy. The body had no bruises or “defensive wounds.”

I

Defendant maintains that error occurred because the State (a) knowingly and repeatedly defied the trial court’s in limine order; (b) improperly attempted to unfairly prejudice the jury against him and defense counsel; and (c) made improper comments during opening statements and closing and rebuttal arguments.

A

Defendant complains of three instances where the State allegedly violated the trial court’s in limine order.

(1) During the questioning of Sandra, the State asked whether she had ever had sexual relations, about which defendant knew, with another man. Her affirmative response and the following question asking “on how many occasions” were objected to by defense counsel, who also moved for a mistrial based upon the State’s alleged disregard of the in limine order. After a lengthy discussion in chambers, the trial court sustained the objection, instructed the jury to disregard the last inquiry, and denied the motion for mistrial.

(2) Defense witness Therese Krueger, wife of one of defendant’s co-workers, had testified on direct examination that at a Christmas party for WLS employees in December 1985, Sandra had told her that she would rather have been home having sex with the carpenter. On cross-examination, after Krueger said that she knew that Sandra and defendant were having marital problems, the State asked if she had been told by Sandra “about her husband’s behavior with other women.” Defendant’s objection to this question was sustained, the jury was instructed to disregard the question, and defendant’s motion for a mistrial was denied.

(3) During her testimony, Sandra had testified that, during the time that Tosch resided in their home, defendant had on one occasion taken off her brassiere in the presence of Tosch while the three of them were in the hot tub. During his testimony, defendant denied removing her brassiere and stated that Sandra had done so herself. On cross-examination the State asked what he had said in response to that action by Sandra. Defendant responded, “Nothing, we’re fairly open-minded” and “we’ve been skinny dipping before in our own pool.” The State then asked, “Have you ever done wife-swapping?” After defense counsel objected and after a lengthy discussion out of the presence of the jury, during which the State sought to produce evidence through a number of witnesses that wife-swapping had occurred, the trial court sustained defendant’s objection, instructed the jury to disregard the question, and eventually denied defendant’s motion for a mistrial, a motion which it initially took under advisement.

We have carefully examined the record to ascertain what, if any, in limine order the trial court entered in this case. We have found none. As a matter of fact, in examining the record before oral argument, we were unable to find even a written motion. The absence of both a motion and an order in the record was called to defense counsel’s attention during oral argument. Counsel responded that the trial court’s consideration of the motion and its order did not occur in the presence of a court reporter. Subsequent to oral argument, defense counsel was granted leave to file a supplemental record which contains the motion in limine. We note that the motion and its attached memorandum seek to preclude evidence of defendant’s extramarital affairs and specifically argue for the admissibility of evidence concerning Sandra’s extramarital affairs.

The record reflects that while the motion for mistrial concerning one of the alleged violations of the in limine order was being argued, the trial court itself stated that it was unsure of the substance of its prior ruling. We are thus asked to determine whether the State violated the trial court’s in limine order without any certainty as to what that order was. Moreover, we are asked to determine that the trial court erred in its conclusion that the State’s questions in this case warranted neither a mistrial nor a new trial. In short, we are being asked to conclude that an in limine order was violated when the trial court itself did not rule that such an order was violated.

A party who. asserts error bears the responsibility for preserving and presenting a sufficient record of that asserted error. (People v. Smith (1985), 106 Ill. 2d 327, 478 N.E.2d 357; People v. Edwards (1978), 74 Ill. 2d 1, 383 N.E.2d 944, cert. denied (1979), 442 U.S. 931, 61 L. Ed. 2d 299, 99 S. Ct. 2862.) Here, it was defendant’s duty, as the party appealing the circuit court’s judgment, to preserve and present on review an adequate record from which his allegation of error could be resolved. (People v. Smith, 106 Ill. 2d at 336.) As the supreme court said in Edwards, “Where the record is insufficient or does not demonstrate the alleged error, the reviewing court must refrain from supposition and decide accordingly.” People v. Edwards, 74 Ill. 2d at 7.

Apart from the in limine issue, we conclude that the disputed questions were not so prejudicial as to warrant a reversal of defendant’s conviction. In furtherance of one of the theories of defense in this case, defendant presented evidence that he was distraught over his discovery that his wife was having an affair with another man. The questions which he challenged at trial, and now argues constituted reversible error, certainly were relevant to his alleged state of mind. In support of his defense theory, defendant elicited evidence concerning Sandra’s infidelity. Given the defense theory and the totality of evidence in this case, defendant’s prior knowledge of Sandra’s extramarital behavior was certainly relevant. Arguably, his own “behavior with other women” was also relevant, but we note that the objection to the question concerning that matter was quickly sustained, the jury was told to disregard it, and there was no further reference to the matter.

Given the inadequacy of the record regarding the trial court’s in limine order, prompt action by the trial court in sustaining objections to the questions and in instructing the jury to disregard them, and our conclusion that the questions may indeed have had relevance, we reject defendant’s contention that these questions constituted reversible error.

B

Defendant next maintains that the State engaged in improper conduct designed to prejudice the jury against him and defense counsel. He cites as an example the State’s angry objection to the testimony of Therese Krueger as irrelevant and improper. The record discloses that the jury was excused after this objection and the trial court reprimanded both the State and defense counsel for their displays of anger in the presence of the jury. When the trial resumed, the trial court instructed the jury to consider only the evidence and not to be concerned by “any outbursts by either side.”

Another example cited by defendant concerned the State’s comment in open court that “everything is proper for the defense,” after a defense objection was sustained. Though the record does not reflect the statement, the trial judge stated that he heard it and feared that the jury also heard it. Again, out of the presence of the jury, the trial court admonished all attorneys concerning “outbursts” and “comments” in the presence of the jury.

Neither of the above-described incidents indicate conduct designed to prejudice defendant or his counsel. On the contrary, though emotional outbursts are not condoned, both incidents typify reactions of advocates in a hotly contested trial.

Defendant also complains that the State elicited highly prejudicial statements from Sandra that she was “scared” and “afraid” of defendant. The record shows, however, that Sandra volunteered these statements in unresponsive answers to the State’s questions. The record does not support the contention that the State purposefully elicited such information.

C

We find no merit in defendant’s claim that reversible error occurred because, in its opening statement, the State told the jury that defendant’s claim of self-defense would be "laughable” and told the jury of Sandra’s love for Tosch. Though a prosecutor’s characterization, in opening statement, of an anticipated defense as laughable is inappropriate, that remark in no way prejudiced defendant. As for statements concerning Sandra’s love for Tosch, the record shows that they were made in connection with her admitted infidelity. We fail to see how these remarks prejudiced defendant.

Defendant maintains that he was prejudiced by the State’s closing-argument characterization of him as a liar, and by the State’s attacking his credibility and that of his counsel because of his “two theories of defense.”

In criminal cases involving questions of improper argument on the part of the State, each case must be decided on its own facts. (People v. Weathers (1975), 62 Ill. 2d 114, 338 N.E.2d 880.) Reversible error occurs where there are reasonable grounds for believing the jury was prejudiced by improper remarks. (People v. Whitlow (1982), 89 Ill. 2d 322, 341, 433 N.E.2d 629.) Unless they are based on evidence, statements made in closing arguments by the State which suggest that defense counsel fabricated a defense theory, attempted to free his client through trickery or deception, or suborned perjury are improper. People v. Emerson (1983), 97 Ill. 2d 487, 497.

The record in this case, however, shows that the State was not suggesting that defense counsel was guilty of misrepresenting facts or presenting evidence designed to confuse the jury. On the contrary, there were adequate bases to challenge defendant’s credibility. There were instances when his testimony contrasted sharply with that of other witnesses, such as when he disputed Bates’ version of the conversation concerning killing the man involved with his wife. There was evidence which was inherently implausible, such as defendant’s testimony that he intentionally left his coat in a place where Tosch could see the gun. There was evidence that, even after his arrest, defendant asked friends to plant a gun which might be linked to Tosch. Finally, there was explicit evidence that defendant lied in telling Ellen Richardson and the police that Tosch had his own gun and attempted to use it. Challenging the credibility of a defendant and his theory of defense is proper in closing argument when there is evidence which justifies that challenge. (People v. Tiller (1982), 94 Ill. 2d 303, 447 N.E.2d 174, cert. denied (1983), 461 U.S. 944, 77 L. Ed. 2d 1302, 103 S. Ct. 2121.) Ample justification was present here.

Finally, defendant maintains that error occurred because the State, during closing argument, argued an interpretation of the law which, in this case, would preclude a finding of “sudden” passion necessary to justify a voluntary manslaughter verdict. We note that, in response to defendant’s objection, the trial court informed the jury that the law would be furnished to it only through the court’s instructions. Furthermore, in considering the State’s argument on this issue in proper context, we do not believe the State misstated the law (see, e.g., People v. McCarthy (1989), 132 Ill. 2d 331; People v. Chevalier (1989), 131 Ill. 2d 66, 544 N.E.2d 942), nor do we believe that the jury was misled.

II

Defendant contends that Sandra was allowed to testify to three conversations which were protected by marital privilege. (Ill. Rev. Stat. 1985, ch. 38, par. 155 — 1.) He argues that the admission of these conversations was improper and contributed to the guilty verdict.

In Illinois, a husband and wife may testify for or against each other in criminal cases, provided that neither may testify as to any communication or admission made by either of them to the other or as to any conversation between them during marriage. (Ill. Rev. Stat. 1985, ch. 38, par. 155 — 1.) Admission of evidence in violation of the marital privilege, which contributes to a guilty verdict, constitutes denial of a fair trial and requires reversal. (People v. Sanders (1982), 111 Ill. App. 3d 1, 9, 443 N.E.2d 687.) However, where the record shows that the errors complained of could not reasonably have affected the result of the trial, the judgment of the trial court should be affirmed. People v. Bartell (1944), 386 Ill. 483, 491, 54 N.E.2d 700.

Sandra testified that at 5 p.m. on February 21, 1986, as she was about to leave the house, defendant said to her, “You’re not going anywhere.” “You’re not going out because you’re going to meet Gary.” She responded, “Fine, I’ll just be your puppet. I won’t go anywhere.”

Sandra testified that, in another conversation, defendant asked her, “Where’s my ammunition?” and she responded, “I hid it.” When defendant retorted, “I want it,” she said, “No, I don’t think you should have it.” Defendant then said, “Give me my ammunition,” and she said, “I’m not going to give it to you.” Defendant then said, “You better give it to me. You’re going to — something is going to happen.”

Sandra also related the content of another conversation in which she stated that she asked defendant, “Why did you tell Gary that the three of us were going to meet when I never said that I would meet, that I didn’t want to meet?” She also stated that she told defendant, “if he harmed one hair on Gary that would be it.”

Our review of the record indicates that the marital privilege was waived as to a substantial portion of the first two conversations summarized above. (See People v. Simpson (1977), 68 Ill. 2d 276, 369 N.E.2d 1248.) As to the first conversation, Joseph Hecker testified that defendant called him on the evening of February 21 asking if he had seen Sandra. When Hecker said he had not, defendant said, “I told her to stay around the house. I told her to be home around 10:00 o’clock because I had a surprise for her, our problems would be over, and we would be a family again.” As to the second conversation, defendant himself testified that he asked his wife for the ammunition. Furthermore, Hecker testified that defendant had . called him earlier on the evening of February 21 and asked if defendant could bring over all his guns and ammunition. Hecker’s recollection was that defendant made that request because “he said he didn’t trust himself with the guns in the house.” Defendant, however, did not bring any items to Hecker’s house that night.

Defendant contends that these conversations were offered to suggest defendant had a premeditated plan to murder Tosch and thus he could not have acted in self-defense or pursuant to sudden and intense passion at the time he shot Tosch. However, other evidence the jury heard, much of which we have already summarized, adequately indicated that defendant had a premeditated plan to kill Tosch. In this case, as the supreme court did in Bartell, we conclude that the admission of defendant’s conversations with his wife could not reasonably have affected the result of the trial. People v. Bartell, 386 Ill. at 491.

Ill

Defendant’s final contention is that the State’s evidence was insufficient to establish guilt of murder beyond a reasonable doubt. He asserts that the State failed to disprove self-defense beyond a reasonable doubt. (Ill. Rev. Stat. 1985, ch. 38, pars. 3 — 2(a), 7 — 1, 7 — 14.) Alternatively, he asserts that, at best, the evidence established only voluntary manslaughter. He premises this contention on his assertion that if self-defense was properly rejected by the jury, his unreasonable belief in the need for self-defense and/or his sudden and intense passion justified only a voluntary manslaughter verdict. We disagree.

When presented with a challenge to the sufficiency of the evidence, it is a reviewing court’s function to carefully examine the evidence, giving due consideration to the fact that the trier of fact saw and heard the witnesses. (People v. Young (1989), 128 Ill. 2d 1, 48, 538 N.E.2d 461.) It is the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. (People v. Young, 128 Ill. 2d at 49.) The inquiry on review is not whether this court believes that the evidence at trial established guilt beyond a reasonable doubt but, “ ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis omitted.) People v. Young, 128 Ill. 2d at 49, quoting Jackson v. Virginia (1979), 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2788-89.

A person who kills an individual without lawful justification is guilty of murder if he intends to kill or do great bodily harm to that individual, or knows that such acts will cause death to that individual, or knows that the acts which cause the death create a strong probability of death or great bodily harm to that individual. (Ill. Rev. Stat. 1985, ch. 38, pars. 9 — 1(a)(1),(a)(2).) It is not necessary to show that a defendant had a specific intent to kill or do great bodily harm, or that he knew his acts would achieve those results. (People v. Gross (1988), 166 Ill. App. 3d 413, 420, 519 N.E.2d 1043.) Intent can be implied or inferred from the character of the act. (People v. Szerletich (1980), 86 Ill. App. 3d 1121, 1124, 408 N.E.2d 1098.) The question of intent is one to be resolved by the trier of fact, whose finding will not be reversed on appeal unless it is inherently impossible or unreasonable. People v. Gross, 166 Ill. App. 3d at 420.

The evidence in this case, much of which has already been summarized, showed that defendant knew of Sandra and Tosch’s relationship; that defendant asked Joseph Hecker and Christopher Bates about the possibility of having Tosch killed; that defendant brought two loaded guns to his meeting with Tosch; that Tosch sustained seven gunshot wounds; that each of defendant’s guns required a separate pull of the trigger for each firing; that neither defendant’s nor Tosch’s body revealed any bruises nor was there any other physical evidence that a struggle had occurred; that defendant lied to Ellen Richardson and the police about what initiated the shooting; that defendant made futile efforts to conceal what he had done; and that defendant asked friends to plant evidence.

Our standard of review, as recently reiterated by the supreme court, is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) (People v. West (1990), 137 Ill. 2d 558, 584, 560 N.E.2d 594.) The record establishes that the jury’s verdict was justified by sufficient evidence, indeed overwhelming evidence, that defendant was guilty of murder beyond a reasonable doubt.

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

Affirmed.

SCARIANO, P.J., and BILANDIC, J., concur.

      Justice Bilandic participated in this decision prior to his election to the Illinois Supreme Court.