author: JUSTICE GEIGER

text:
    WINIFRED RYAN, Plaintiff-Appellant, v. MARIANNE KATZ, Defendant-Appellee.
    Second District
    No. 2—91—0965
    Opinion filed September 23, 1992.
    Paul W. Barbahen, of O’Brien & Barbahen, of Chicago, for appellant.
    Donald Ridge & Associates and James S. Tukesbrey, of Law Office of James S. Tukesbrey, both of Waukegan, for appellee.
   JUSTICE GEIGER

delivered the opinion of the court:

The plaintiff, Winifred Ryan, was injured when her car was struck by a car driven by the defendant, Marianne Katz. A jury found the defendant negligent and awarded the plaintiff $8,300 in damages. The plaintiff appeals the damage award, arguing that the defendant’s closing argument misstated the evidence of damages. We affirm.

Before discussing the substance of this appeal, we feel bound to comment on a matter of appellate procedure. Supreme Court Rule 341(e)(6) (134 Ill. 2d R. 341(e)(6)) requires an appellant’s statement of facts to “contain the facts necessary to an understanding of the case, stated accurately and fairly, without argument or comment, and with appropriate reference to the pages of the record on appeal.” The plaintiff’s initial statement of facts consisted of three short paragraphs with almost no citations to the record. The statement of facts completely omitted any summary of any of the testimony or argument at trial. On our own motion, we ordered the plaintiff to file “a complete statement of the facts needed to understand the case fully, with appropriate citations to the record on appeal, or the brief will be stricken.”

The plaintiff’s counsel filed an amended statement of facts slightly over one page long. Aside from a few additional record references, the only new matter is a two-paragraph summary of part of the specific trial testimony and closing argument on which the plaintiff relies to argue for reversal. Originally, this summary was placed (improperly) in the “Argument” section of the plaintiff’s brief.

The plaintiff has failed, after due warning, to comply with Rule 341(e)(6). The rules of procedure are rules and not merely suggestions (People v. Wilk (1988), 124 Ill. 2d 93, 103; Roberson v. Liu (1990), 198 Ill. App. 3d 332, 335-36). We would be well within our discretion under Rule 375(a) (134 Ill. 2d R. 375(a)) to strike the plaintiff’s brief and dismiss the appeal. However, because the record is not long and the issues are simple, we decline to penalize the plaintiff so severely for the lapses of her appellate counsel. See Falk v. Martel (1991), 210 Ill. App. 3d 557, 559; Coffey v. Hancock (1984), 122 Ill. App. 3d 442, 444.

We summarize the relevant testimony. At the time of the accident, the plaintiff’s car was sitting at an intersection. The collision pushed her car across the intersection and off the road. The plaintiff was thrown forward; her head hit the dashboard, and her left knee hit a light in the area of the fuse box underneath the dashboard. The defendant exited her car and asked the plaintiff how the plaintiff felt. The plaintiff said she was all right.

John Anderson of the Lake County sheriff’s department investigated the accident. He estimated that there was about $250 worth of damage to the rear of the plaintiff’s car. The plaintiff was not visibly injured, although she told Anderson she felt some pain in her neck. No part of her body was cut or bleeding. Paramedics arrived, but the plaintiff drove home. When she arrived home at about 9 p.m., she told her husband, Edward Ryan, that she felt some injuries. Because it was late, her husband did not drive her to a hospital that day.

The next morning, the defendant called her house and asked the plaintiff how she was feeling. According to the defendant’s testimony, the plaintiff responded that she was all right. That day, the plaintiff and her husband went to a doctor. Three days after the accident, the plaintiff went to a hospital emergency room. On May 17, 1988, she made the first of her several visits to Dr. Thad Penn, an orthopedic surgeon.

The plaintiff testified that, before the accident, she was in excellent health. In 1980 or 1981, she injured her right knee, but she had completely recovered from that injury. In 1987, she was treated at a hospital for a right wrist fracture. By the time of the collision with the defendant, the plaintiff’s right wrist was weak, but it gave her pain only after the accident. Her only hospitalization before the accident was for gallbladder surgery in February 1988. According to her husband, the plaintiff had never complained, before the accident, of any problems with her neck, left shoulder or left knee.

Both the plaintiff and her husband stated that the accident had greatly reduced the plaintiff’s activity. Before the accident, the plaintiff did most of the couple’s housework, cooking and laundry. After the accident, her husband did most or all the laundry, cooking, housework and grocery shopping. Before the accident, the plaintiff regularly went swimming, dancing, skiing, skating and golfing with her husband. After the accident, she was unable to engage in these activities. According to her husband, the accident caused the plaintiff a persistent limp, and she regularly woke up during the night with pain. He had to help her get dressed. The plaintiff admitted that, since the accident, she travelled twice to Ireland and once to Florida, with the former two trips necessitated by illness in her family. The plaintiff testified that, as of the time of trial, she still experienced pain, which she treated with liniment, aspirin, heat, and whirlpool baths.

Dr. Penn, the plaintiff’s expert witness, testified that, on her first visit to his office, the plaintiff told him that, after her accident, she developed pain in her neck, shoulders, and left knee. Two days after the injury, she developed more pain in these areas, and, four days after the accident, she underwent X rays at Victory Memorial Hospital in Waukegan.

At her first consultation, the plaintiff told Dr. Penn that her left knee was swollen and bruised, especially over the inner side and the back side. She also told him that she experienced pain with the movement of her head and neck and that her right shoulder pain, which she had experienced since fracturing her right wrist, had worsened since the accident.

Directly after taking this patient history, Dr. Penn examined the plaintiff. The plaintiff’s neck was tender in areas, and there was some limitation on her ability to move her neck without pain. Movement of the plaintiff’s right shoulder was slightly limited. However, Dr. Penn could not say if the problems in the plaintiff’s right shoulder were the result of the accident. There was a large area of ecchymosis, or a hemorrhage into the skin, and accompanying discoloration on the inner side of the thigh. Dr. Penn opined that this ecchymosis was caused by trauma and was consistent with a knee striking a portion of the dashboard. The plaintiff had tenderness elsewhere in her knee, but knee motion was not impaired, there was no swelling in the joint, and the ligaments were intact. Dr. Penn’s diagnoses were “sprain, cervical spine, strain, left shoulder girdle, and contusion, left knee.” Dr. Penn told the plaintiff to take ibuprofen, as she had been doing since the X rays, and to start physical therapy.

The plaintiff next visited Dr. Penn June 14, 1988. She reported some improvement in her neck and left shoulder. She reported swelling and cramping of her left knee, and she experienced pain in her left knee when she walked or when she extended the knee. The knee buckled occasionally and it felt stiff after periods of inactivity. Dr. Penn noted that the various areas of discoloration about the knee had “largely faded away.” The knee was still tender, but there was no swelling in the joint and no ligament damage. Dr. Penn testified that the plaintiff did not report any neck or shoulder pain after June 1988.

On July 12, 1988, the plaintiff again visited Dr. Penn, still complaining that she experienced knee pain when she stood or walked, that she still limped, and that her knee occasionally buckled. Dr. Penn examined the plaintiff. He noticed some tendency to limping and tenderness in the knee area. There was no swelling, motion was not impaired, and the ligaments were still intact.

On July 28, 1988, Dr. Penn performed arthroscopic surgery on the plaintiff and discovered mild inflammation in the lining of the pouch in front of the knee joint and in the lining of the joint. The knee showed mild degeneration that long predated the accident. The cartilage and ligaments were all normal. The arthroscopy revealed nothing wrong with the left knee joint itself. There was no contusion to the bone itself, and the plaintiff’s pain would go away after the contusion to the soft tissue around the bone healed.

On August 11, the plaintiff again saw Dr. Penn. She reported that her left knee was stiff, which was common after arthroscopy.

On September 1, 1988, the plaintiff next visited Dr. Penn. The plaintiff reported reduced pain and swelling about the left knee. Dr. Penn’s examination revealed a good range of knee motion with no swelling. The plaintiff had a full range of motion in her left shoulder with pain when the shoulder was elevated above a right angle.

On her next visit, on December 5, 1988, the plaintiff reported continuing pain in her left shoulder, occasional limping, and pain in the left knee joint. Dr. Penn’s examination revealed nothing to change his diagnosis or his recommendation that the plaintiff continue physical therapy and the use of anti-inflammatory medications. Dr. Penn told the plaintiff to come back as needed. The plaintiff did not return for further examinations. However, she stayed in contact by telephone with Dr. Penn from December 1988 through February 1991.

Dr. Penn stated that, in his opinion to a reasonable degree of medical certainty, the plaintiff had suffered a contusion in her left knee and that the preexisting arthritis in her knee had become painful as a result of the accident. He conceded on cross-examination that the complaints the plaintiff made in the fall of 1988 could have been associated with the plaintiff’s age and build and not caused by the accident. Dr. Penn also conceded that, in his deposition of March 15, 1991, he stated his opinion that the plaintiff did not need any further surgery in her left knee. At the time of trial, Dr. Penn had no current diagnosis regarding the plaintiff’s knee condition or other problems. He had no opinion as to any possible triggering cause, other than the accident, of the plaintiff’s conditions.

The defendant’s expert witness was Dr. Robert Stone, an orthopedic surgeon who reviewed the emergency room records and the report of the arthroscopic surgery and also examined the plaintiff on November 29, 1991. The plaintiff told Dr. Stone that arthroscopic surgery had helped lessen the plaintiff’s knee pain, but that the pain and swelling had returned and that her knee condition interfered with walking and weight bearing. She reported neck pains that she had not felt before May 1988.

Dr. Stone found that the plaintiff’s gait was normal, that there was no atrophy in her quadriceps muscle, and that there was no swelling in the knee or fluid inside the knee joint itself. The plaintiff could extend her knee fully and stability in the knee was normal. The plaintiff’s neck had very good flexion and range of motion, and the condition of her cervical spine was what Dr. Stone would expect considering her age. Dr. Penn’s notes implied that the plaintiff had recovered from any injury to her cervical spine. The degenerative arthritis revealed by the X rays predated the accident.

Dr. Stone believed to a reasonable degree of medical certainty that, by the time he examined the plaintiff, she had fully recovered from any injuries she may have suffered to her neck and cervical spine; that the plaintiff’s complaints to him of pain were not related to the injury; that there was no residual functional impairment of the plaintiff’s left knee; that the accident did not cause any impairment to the plaintiff’s right wrist; that there was no injury or damage to the knee joint itself; and that the plaintiff did not need further medical care for any injuries caused by the accident.

Dr. Stone stated that the accident could have caused the sprain in her left shoulder. Although the accident could have aggravated preexisting arthritis of the plaintiff’s neck, the medical records Dr. Stone reviewed showed that the plaintiff experienced neck pain for only about a month and a half after the accident.

Although he conceded that the ecchymosis in the plaintiff’s thigh was caused by the accident, Dr. Stone did not believe that the plaintiff’s reports of pain in the back of her knee were consistent with her having struck her knee on a car dashboard. Dr. Stone believed that the plaintiff had contusions to the tissue around the knee, though not to the knee joint itself. Although trauma to the knee could make an asymptomatic condition such as arthritis painful, Dr. Stone did not believe that the accident aggravated the arthritis in the plaintiff’s knee. Had the plaintiff struck her knee on the dashboard, the pain would have been in the front of her knee rather than the back. Even if she did strike her knee on the dashboard, Dr. Stone found no objective evidence of any traumatic aggravation of her arthritis. Dr. Stone’s expert opinion, based in part on Dr. Penn’s arthroscopic examination of the plaintiff, was that, far more probably than not, the accident did not aggravate the arthritis in the plaintiff’s knee or in her neck.

The plaintiff introduced evidence of the following accident-related expenses: $950 for automobile repair; $71.40 for storage of her car; $547 for emergency room care; $396 for physical therapy; $791 for treatment by Dr. Penn; $1,937.05 for arthroscopic surgery; $380 for anesthesiology; $17.31 for X rays taken July 27, 1988; $82 for radiology at Victory Memorial Hospital; $91.54 for prescription medications; $1,042.50 for a membership in the Chicago Health Club, where she regularly visited to treat her injuries with whirlpools, swimming and other means; and $35 for a June 3, 1988, visit to Dr. Silverio Agujar, Jr. Dr. Agujar testified that, in February 1988, he performed gallbladder surgery on the plaintiff, but that he never treated her for any injuries she received in her accident.

After closing arguments, the jury returned a verdict for the plaintiff in the amount of $8,300. The plaintiff filed a post-trial motion, which, after a hearing, the court denied. The plaintiff timely appealed.

On appeal, the plaintiff does not maintain that the damage award was unreasonably low or against the weight of the evidence. She argues only that there must be a new trial on damages because the defendant’s attorney, in his closing argument, (1) improperly told the jury that the plaintiff’s expert witness, Dr. Penn, testified that by June 14, 1988, the discoloration about the plaintiff’s left knee “was gone”; (2) stated that Dr. Penn testified that the mild degenerative changes in the plaintiff’s left knee were not caused by the accident, but did not mention Dr. Penn’s further statement that the plaintiff had no pain in her left knee until after the accident; and (3) stated that Dr. Penn testified that arthroscopic surgery revealed “nothing wrong” with the plaintiff’s knee joint. For several reasons, we decline to order a new trial on damages.

First, the plaintiff waived all of the alleged errors by failing to raise them with specificity in her post-trial motion. Supreme Court Rule 366(b)(2)(iii) (134 Ill. 2d R. 366(b)(2)(iii)) states that, on review of a judgment in a civil jury case, a party may not urge as error any point not specified in the post-trial motion. The purposes of this rule are (1) to allow the trial judge to review his decisions without the pressure of an ongoing trial; (2) to allow the reviewing court to determine whether the trial court had an adequate opportunity to correct any alleged error; and (3) to prevent litigants from stating mere general objections and then raising on appeal arguments that the trial judge was not given an adequate opportunity to consider. (Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 349-50.) A party seeking to preserve an issue for review must raise the issue with enough specificity and clarity to serve the purposes of Rule 366(b)(2)(iii). Andersen v. Resource Economics Corp. (1990), 133 Ill. 2d 342, 347; Williamson v. Opsahl (1981), 92 Ill. App. 3d 1087, 1090.

The plaintiff’s post-trial motion states only that “[defendant's attorney made highly improper and prejudicial arguments to the jury.” The plaintiff did not raise this issue at the hearing on her motion. We conclude that she has waived the issue on appeal.

There is an additional reason to find that the plaintiff has waived any challenge to two of the three allegedly improper remarks. Only the first of the above-noted remarks met with the plaintiff’s timely objection at trial. By failing to object to allegedly improper closing argument, a party waives any later claim of error on this score. Oakleaf of Illinois v. Oakleaf & Associates, Inc. (1988), 173 Ill. App. 3d 637, 652-53; Cahill v. Boury (1986), 144 Ill. App. 3d 413, 415.

Although we may disregard the waiver rule in the interests of justice (Riley v. Fair & Co., Realtors (1986), 150 Ill. App. 3d 597, 600), we will not do so unless defense counsel’s improprieties deprived the plaintiff of a fair trial. (See Oakleaf, 173 Ill. App. 3d at 652-53.) Even where a party has preserved the issue, counsel's improper arguments will not warrant reversal absent a showing of substantial prejudice. (Bresland v. Ideal Roller & Graphics Co. (1986), 150 Ill. App. 3d 445, 453-54; Nunley v. Mares (1983), 114 Ill. App. 3d 779, 790.) There is no such showing here.

The plaintiff maintains first that the defendant’s counsel improperly stated that Dr. Penn testified that by June 14, 1988, the plaintiff’s knee discoloration was “gone,” whereas Dr. Penn actually testified that, by June 14, 1988, the discoloration had “largely faded away.” Even if this minuscule variance placed defense counsel’s remark outside the broad latitude given counsel in closing argument (see Bresland, 150 Ill. App. 3d at 454), any prejudice is speculative at best.

The plaintiff maintains next that the defendant’s attorney reminded the jury that, even before the accident, the plaintiff had arthritis in her knee, but that the defendant’s attorney improperly failed to add that there was pain only after the accident. The plaintiff does not argue that the defendant’s attorney misstated the evidence, but only that he emphasized that part of the evidence most favorable to his client. We do not believe that this is improper. Also, the plaintiff’s counsel had ample opportunity to remind the jury of those facts that the defendant’s attorney chose not to emphasize. The plaintiff has established neither impropriety nor prejudice.

The plaintiff asserts finally that defense counsel improperly stated that Dr. Penn testified on cross-examination that arthroscopic surgery revealed “nothing wrong” with the left knee joint. However, on cross-examination, Dr. Penn admitted that, after arthroscopy, he did no treatment inside the plaintiff’s knee, even though he would have done so if necessary. The defendant’s counsel next asked Dr. Penn if it would be fair to say “that after you were actually in the knee and looking inside the knee you saw nothing wrong with the left knee joint?” Dr. Penn answered, “[tjhat is correct.” The challenged remark was properly based on the evidence.

Taken separately or collectively, the alleged improprieties in the defendant’s closing argument do not warrant a new trial on damages. Any misstatements of the evidence were slight and came in the context of a reasonably lengthy closing argument addressing all the evidence. Testimony on damages included not only Dr. Penn’s medical opinions but also those of the defendant’s expert witness, Dr. Stone. This medical evidence was conflicting on how much knee damage the plaintiff sustained from the accident. The jury also heard testimony on damages from the plaintiff and her husband. We cannot determine the relative weight the jury gave each witness’ testimony. The court instructed the jury that counsel’s arguments were not evidence. Any improper statements in the defendant’s closing argument did not deprive the plaintiff of a fair trial.

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

Affirmed.

WOODWARD and DOYLE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BOWMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DOMINGO LUNA, Defendant-Appellant.
    Second District
    No. 2—91—1047
    Opinion filed September 23, 1992.

      Michael Mclnerney, Public Defender, of Geneva (Judith M. Kullenberg, Assistant Public Defender, of counsel), for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

Following a jury trial in the circuit court of Kane County, defendant, Domingo Luna, was convicted of battery, a Class A misdemeanor (Ill. Rev. Stat. 1989, ch. 38, par. 12—3(a)). The trial court sentenced defendant to 52 weeks’ probation, 10 consecutive weekends at Kane County Correctional Center, and 50 hours’ community service. Defendant appeals, contending that the trial court erred in imposing defendant’s sentence by improperly emphasizing defendant’s sexual irresponsibility and failing to consider mitigating factors.

Defendant and the victim, Guillermia Cruz, were husband and wife and living together in March 1990, the time of the offense. At trial, Cruz testified that she arrived home from work at 11:30 p.m. on March 16. Defendant arrived five minutes later and appeared to be drunk. Defendant told Cruz he wanted to talk to her. She replied “later” and then put the couple’s baby to bed. Defendant repeated his desire to talk to Cruz, but she refused because it was too late. Defendant then grabbed Cruz by her hair and took her into their bedroom. Defendant hit her with his open hand in and around her face five or more times and accused her of cheating on him. When Cruz denied cheating on him, defendant threw her against a table, injuring her foot. Defendant then threw her facedown to the floor, sat on her back, and asked if she had a boyfriend. When she did not answer, defendant grabbed her hair, pulled her head back and slapped her again in the face. Defendant then grabbed her neck and threatened to kill her. Cruz eluded defendant’s grasp momentarily, but defendant threw her on the bed, got on top of her and threatened to rape her. After eluding defendant’s grasp again, Cruz ran into the baby’s room and phoned a neighbor, who subsequently called the police. After she signed a complaint against defendant, Cruz went to Sherman Hospital for treatment for injuries to her head, face, and foot.

Officer Daniel Keen testified that he arrived at the couple’s home at 12:48 a.m. in response to a police call regarding a domestic disturbance. He noticed five fresh bruises on Cruz’ face and cheek, that her hair was messed, and that she appeared frightened. Cruz told Officer Keen that defendant had struck her face with his fist and showed the officer a ball of approximately 20 to 30 hairs which she stated defendant had pulled off her head. Officer Keen noticed defendant’s eyes were bloodshot and that defendant appeared highly intoxicated. After Cruz stated she wanted to press charges, Officer Keen placed defendant under arrest.

Defendant testified that he was a diabetic requiring insulin injections three times a day. Defendant had been working as a machine operator for the past three years. He had been unable to purchase any insulin for four days prior to the incident because he had not yet been paid that week. After he got paid on March 16, he took an insulin injection at 5 p.m. He drank two beers between 7 p.m. and 8 p.m. and then went home. He watched television the remainder of the evening and did not consume any more alcohol. At midnight, he went to pick up Guillermia Cruz from her work, but returned home when her foreman told him Cruz had already left. Defendant went back home, which took approximately four minutes, and waited for Cruz. Defendant was feeling sick from his previous lack of insulin, causing drowsiness and slurred speech, which defendant stated gives the impression of being intoxicated. Cruz arrived 10 to 15 minutes later, and defendant asked her where she had been. When she replied “None of your business,” defendant grabbed her arm and said “Let’s talk.” Cruz then began swinging her arms at defendant. Defendant put his hands in front of his face to protect himself, and his hand brushed against Cruz’ face. Cruz then ran into the bedroom, but defendant remained in the living room, where he fell asleep until the police arrived.

The jury found defendant guilty of battery (Ill. Rev. Stat. 1989, ch. 38, par. 12—3(a)). The presentence report states, inter alia, that the 42-year-old defendant has been employed since 1989 as a laborer at Flexonics, Inc., in Bartlett, Illinois, making $8.74 per hour, and that defendant had three various convictions from 1967 through 1975. The report also listed defendant as having the following children:

Mary Ann Luna, age 23, Indianapolis, Indiana;
Jennifer R. Lima, age 20, Truman, Arkansas;
Stella Alicia Maria Luna, age 11, Elgin, Illinois;
Carlos Martinez, age 10, Elgin, Illinois;
Donna Luna, age 5, Elgin, Illinois;
David Luna, age 3, Elgin, Illinois; and
Eleana Martinez, age 2, Elgin, Illinois.

The report also listed defendant’s debts, including “Child Support— $300.00 — $500.00,” $745.10 owed to Sherman Hospital, and $4,000 owed to Childrens Memorial Hospital.

At the sentencing hearing, defendant testified that he had missed a lot of work because of going to court and could have been making $2 more per hour if not for this lost time. After Cruz had obtained an emergency protective order, defendant gave his baby daughter to his mother because he had no place to take her. Defendant’s subsequent girlfriend had also left him. Defendant also stated that the doctors who treated Cruz at the hospital did not state that she had been injured in the incident.

During the sentencing hearing, defendant’s attorney stressed that defendant had been employed at his current job continuously for the past three years, that defendant had not been arrested on any violent charge for over 20 years, and his last charge was for DUI in 1984. She also mentioned that defendant and the victim were divorced after the incident, that the only contact they have is when they exchange children on visitation, and that there had been no problems between them since the incident. Defendant’s attorney also stated:

“He also supports his children. In fact, he’s got six children in the area, Your Honor, and he is supporting them. His girlfriend is pregnant at this time and is expecting her child any time this month.”

After the State’s Attorney presented his recommendations, which included weekend service at Kane County Correctional Center, defendant’s attorney replied:

“As far as weekends, Mr. Lima and his girlfriend are expecting the imminent birth of his child, and to ask him to serve weekends in the Kane County Jail, given the fact that he’s not been arrested for anything even similar to this, Judge, since this trial, and we would be respectfully requesting a period of supervision with some type of community service.”

Immediately following defense counsel’s remarks, the court made the following comments:

“THE COURT: Well, we would do a great deal for the population explosion if we put Mr. Luna away for a very long time. He can’t seem to treat his sexual activities with any responsibility, even as with people to whom he’s not married.
He certainly does not demonstrate any suggestion of responsibility with regard to this woman that he has impregnated, there has been no indication he’s going to marry her, that there’s going to be any provision made for the care of that child along with the rest of the children he’s created, apparently, without regard to anybody’s needs.
What’s the debt to Children’s Memorial Hospital? Is that one of the children you created?
THE DEFENDANT: How’s that?
THE COURT: This $4,000 you say you owe Children’s Memorial.
THE DEFENDANT: My son was born with a tumor in his neck.
THE COURT: How about Sherman Hospital, who’s that for?
THE DEFENDANT: David. Your Honor, all children — most of them are stepchildren. Like she had two children. But my daughter, I’m paying child support, but it’s not my daughter. In other words, I claim her, but it’s not my daughter.
THE COURT: Stella is not your child?
THE DEFENDANT: No, Stella is, but Carlos and—
THE COURT: How about Donna?
THE DEFENDANT: Not my daughter.
THE COURT: She goes by the name of Luna?
THE DEFENDANT: Yes, because at the time she was born I was dating her mother, she put my last name.
THE COURT: She could have been your daughter?
THE DEFENDANT: No way, no, because I met her in January of ’86 and Donna was born in May of ’86.
THE COURT: How about David?
THE DEFENDANT: David is my son.
THE COURT: So, so far we — oh, no, one child is a stepchild?
THE DEFENDANT: Yes.
THE COURT: Carlos?
THE DEFENDANT: Stepchild.
THE COURT: And Elaina (phonetic)?
THE DEFENDANT: Stepchild.
THE COURT: So, you have no obligation to support them?
THE DEFENDANT: But I do support ’em.
THE COURT: But you’re paying 50 or $60 a month in child—
THE DEFENDANT: No, 60 a week in child support for David and Donna, also paying their insurance, Your Honor, and that is—
THE COURT: How about Stella?
THE DEFENDANT: I support her also, Your Honor. She’s with my mother. Those are my three children.
THE COURT: This is three children. You should be paying 32 percent of your net income as child support. Apparently you’re not paying anything near that.
THE DEFENDANT: Other than paying, Your Honor, a — I also buy their clothes.
THE COURT: Under the law that’s not a credit. Is there a divorce?
THE DEFENDANT: Yes, we got divorced.
THE COURT: Is there a support order in that divorce?
THE DEFENDANT: Yes.
THE COURT: What are you ordered to pay under that divorce settlement?
THE DEFENDANT: 60 a week and keep up their insurance, and I am. I believe I even have a check stub.
THE COURT: How many children do you have by your girlfriend?
THE DEFENDANT: We have none yet. She has two children.
THE COURT: This is the first one?
THE DEFENDANT: Yes. She has two. And her pregnancy was a mistake, because she has a diaphragm. Looks like she still got pregnant.
THE COURT: What days of the week do you work, sir?
THE DEFENDANT: Monday through Friday. Right now working Saturdays.
THE COURT: How long do you expect that to go on?
THE DEFENDANT: Overtime will stop around November.
THE COURT: All right. There has been a finding of guilty, judgment has been entered on that finding of guilty. Based thereon, the defendant is sentenced to serve twelve months probation, ten weekends in the Kane County Adult Correctional Center, which are to commence January 3rd, 1992.
He’s to pay the costs to the Sheriff of those weekend stays. I don’t know what that amount is off the top of my head.
MR. ZICK [assistant State’s Attorney]: I believe it’s $12 a day.
THE COURT: Perform 50 hours of community service, pay costs in the amount of $48.
Give me an order to that effect.”

On appeal, defendant contends that in imposing this sentence the trial court violated defendant’s constitutional right to privacy and procreation by improperly focusing upon defendant’s fathering of several children by different women. Defendant further contends that the court failed to consider mitigating factors such as defendant’s rehabilitative propensities, the probability of defendant’s ability to become a useful member of society, defendant’s steady employment, his support of his children and the ability to have contact with the victim to exchange children for visitation without incident.

The State first argues that defendant failed to challenge his sentence below at the sentencing hearing or by way of a motion to reconsider and, therefore, these sentencing issues are waived on appeal. We agree. See People v. Bolden (1991), 210 Ill. App. 3d 940, 947, citing People v. Szabo (1986), 113 Ill. 2d 83, 93; People v. Davis (1982), 93 Ill. 2d 155, 163; People v. Murray (1990), 201 Ill. App. 3d 573, 580; People v. Craddock (1987), 163 Ill. App. 3d 1039, 1048; People v. Killings (1986), 150 Ill. App. 3d 900, 909.

Defendant nevertheless urges us to review this cause on the basis of plain error (134 Ill. 2d R. 615(a)). Based on the record before us, we do not find that plain error has occurred. Defendant was convicted of a battery, a Class A misdemeanor (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 3(a)). The possible sentence range for a Class A misdemeanor is a term of imprisonment less than one year. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—3(a)(l).) A sentence of periodic imprisonment is also permissible for one convicted of a Class A misdemeanor. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 7—1.) A probationary term not in excess of two years is also available for one convicted of a Class A misdemeanor. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 6—2(b)(3).) Community sendee may also be ordered. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.) Consequently, defendant’s sentence was within the permissible range.

A trial court’s sentencing decision is entitled to great deference and weight, and the standard of review is whether the trial court abused its discretion in imposing the sentence. (People v. Streit (1991), 142 Ill. 2d 13, 18-19; People v. Perruquet (1977), 68 Ill. 2d 149, 154.) For a reviewing court to modify a sentence within the statutory limits, it must appear to the reviewing court that the sentence imposed is a clear departure from the spirit and purpose of the fundamental law and the constitutional requirement that the sentence be proportionate to the nature of the offense and that the possibilities for rehabilitation be taken into account. (People v. Bolden (1991), 210 Ill. App. 3d 940, 947.) A sentence is presumptively correct, and only where such a presumption has been rebutted by an affirmative showing of error will a reviewing court find that the trial court has abused its discretion. People v. Plantinga (1985), 132 Ill. App. 3d 512, 522.

It is true that when a record does not provide us the means to determine on what basis the court fixed a particular sentence we may find an abuse of discretion. (People v. Bergman (1984), 121 Ill. App. 3d 100, 109.) Here, however, the court allowed defendant to explain those children for whom he was genetically and financially responsible, notwithstanding the court’s gratuitous comments regarding defendant’s sexual irresponsibility. Apparently in an effort to accommodate defendant’s weekends, the court also inquired into defendant’s current and prospective work schedules. Thus, contrary to defendant’s contentions, the trial court did not rely solely on defendant’s “lifestyle and lack of consideration to the defendant’s current situation and background,” as cited in defendant’s brief.

We also note that it was defendant’s attorney who, in attempting to illustrate defendant’s responsibilities, twice brought defendant’s procreative history and imminent fatherhood to the court’s attention. The court’s gratuitous remarks came immediately after defense counsel requested no weekend incarceration, due to defendant and his girlfriend “expecting the imminent birth of his child.” It is quite likely that the court’s comments were in response to, or at least invited by, defense counsel’s statements concerning defendant’s sexual history. However, because defendant did not challenge his sentence at the hearing, or through a motion to reconsider or reduce his sentence, the trial court did not have any further opportunity to explain the basis for its comments.

The judgment of the trial court in imposing sentence depends on many factors, including the defendant’s credibility, demeanor, general moral character, mentality, social environment, habits, and age; the court is to consider all matters reflecting upon the defendant’s personality, propensities, tendencies, and indeed every aspect of his life relevant to the sentencing proceeding. (People v. Gutirrez (1990), 205 Ill. App. 3d 231, 268.) We find no implication of defendant’s constitutional right of privacy or procreation. (But cf. People v. McCumber (1985), 132 Ill. App. 3d 339 (majority held that court improperly considered defendant’s prior abortions in determining sentence; constitutional right of privacy implicated).) We believe a defendant’s moral character, including the tendency to be irresponsible, is a legitimate factor for the court to consider, and we do not find that the court exceeded the bounds of decency or relevancy. (See People v. Adkins (1968), 41 Ill. 2d 297, 301.) Considering the nature of the offense, the range of possible sentences, and the opportunity given to defendant to explain his genetic and financial responsibilities, we find no error, plain or otherwise, on the basis of the court’s initial remarks. See McCumber, 132 Ill. App. 3d at 347 (Heiple, J., dissenting).

Having found no error requiring reversal, we nevertheless feel compelled to once again comment on the recurring tendency of trial judges’ use of ill-considered comments which have only a tangential relationship to the fixing of a sentence, thereby inviting arguments of prejudicial error even where none truly exist. This court recently addressed this growing problem in People v. Fort (1992), 229 Ill. App. 3d 336, and our comments bear repeating here:

“Trial judges should be the exemplars of dignity and impartiality. They should exercise restraint over their conduct and utterances. They should suppress their personal predilections and control their tempers and emotions, limiting their comments and rulings to what is reasonably required for the orderly progress of the proceeding and refraining from the unnecessary disparagement of persons or issues. See ABA Standards Relating to the Administration of Criminal Justice, Function of the Trial Judge §6.4 (1974).
We strongly urge trial judges to be circumspect and limit their comments to the factors directly relevant to the sentencing issues and to make clear and unambiguous records from which we may determine the appropriateness of sentences. To do otherwise risks the reversal of the court’s judgment, a remand to the trial court for a new sentencing hearing and the concomitant waste of judicial resources.” Fort, 229 Ill. App. 3d at 342.

The judgment of the circuit court is affirmed.

Affirmed.

DOYLE and DUNN, JJ., concur.


author: JUSTICE McCUSKEY

text:
    NATALIE LEONARD, Petitioner-Appellant, v. KARL KURTZ et al., Respondents-Appellees.
    Third District
    No. 3—91—0948
    Opinion filed September 22, 1992.
    Laird M. Ozmon, of Laird M. Ozmon, Ltd., of Joliet (James P. Stevenson, of counsel), for appellant.
    Matyas & Norris, of Chicago (Patrick Norris, of counsel), for appellee Park Crematory, Inc.
    Stefanich, McGarry, Wols & Okrei, of Joliet (Roman R. Okrei, of counsel), for appellee Gerald Dames.
    Miles P. Cahill, of Modesto, Reynolds & McDermott, of Wheaton, for other appellees.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The trial court dismissed various negligence counts alleged in plaintiff’s amended complaint. We granted leave to appeal pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308) to consider the following two questions of law:

“1. In a wrongful cremation cause of action, is the surviving spouse (or relatives) a bystander pursuant to Rickey v. Chicago Transit Authority (1983), 98 Ill. 2d 546, 457 N.E.2d 1 and therefore subject to the zone of danger rule for resulting emotional distress?
2. In a wrongful cremation cause of action, is the surviving spouse (or relatives) a direct victim and thus an exception to the Rickey zone of danger rule as was the patient in Corgan v. Muehling (1991), 143 Ill. 2d 296, 574 N.E.2d 602 and thus not subject to the Rickey zone of danger rule for resulting emotional distress?”

In plaintiff’s lawsuit for wrongful cremation of her husband’s remains, we find the plaintiff was not a bystander or a direct victim of defendants’ alleged negligence. Therefore, we affirm the trial court.

Plaintiff alleged in her amended complaint that she was the surviving spouse of Wilfred Leonard. As the lawful custodian of his remains, she employed defendants Karl Kurtz, Kurtz Memorial Chapel, Ltd., Kurtz Ambulance Service, Inc., and Kurtz Paramedic Service, Inc., to transport her husband’s remains to defendants Gerald Dames and Gerald Dames and Sons Funeral Home.

The defendant Park Crematory, Inc., obtained possession of Mr. Leonard’s remains and cremated them. Plaintiff did not authorize or desire the cremation of her husband’s remains. Plaintiff was 70 years old and was raised and schooled in the Roman Catholic faith. She is a deeply religious person who believes that cremation is not a proper religious means for disposing of the remains of a human body.

Plaintiff alleged that defendants owed her a duty to use ordinary care to safeguard her husband’s remains against unauthorized cremation. Plaintiff further alleged that the defendants were negligent in: (1) permitting the remains to be cremated without her approval; (2) failing to perform a proper identification of decedent’s remains prior to cremation; and (3) failing to safeguard decedent’s remains to prevent unauthorized cremation.

Plaintiff additionally alleged in her amended complaints that defendants Kurtz and Dames, who are licensed funeral directors, attempted to coerce her into signing a cremation consent form by threatening to keep her husband’s cremated remains. Plaintiff also claimed that they offered her free funeral services for his remains if she would sign the cremation consent form.

Plaintiff alleged that as a result of all of the defendants’ acts, she “sustained severe injuries in that she suffered great pain and anguish and severe emotional distress.”

Prior to 1983, Illinois courts applied the “impact rule” in cases of negligent infliction of emotional distress. Our supreme court in Braun v. Craven (1898), 175 Ill. 401, 51 N.E. 657, ruled that a plaintiff could not recover for physical injury that developed because of emotional distress unless he received either physical injury or some impact to his person at the occurrence of the tort. (Braun, 175 Ill. at 413, 51 N.E. at 661-62.) Under this rule, recovery for negligently caused emotional distress suffered by a direct victim or bystander who witnessed the injury of another was consistently denied unless accompanied by a contemporaneous physical injury or impact to the plaintiff. Hayes v. Illinois Power Co. (1992), 225 Ill. App. 3d 819, 823, 587 N.E.2d 559, 561.

In 1983, our supreme court adopted the zone of physical danger rule as an exception to the physical impact requirement. The zone of physical danger rule allows a bystander to an accident to plead a cause of action for negligent infliction of emotional distress. (Rickey, 98 Ill. 2d at 555, 457 N.E.2d at 5.) The zone of physical danger rule requires that a plaintiff must have been endangered by the defendant’s negligence and must have suffered physical injury or illness as a result of the emotional distress caused by the negligence. Siemieniec v. Lutheran General Hospital (1987), 117 Ill. 2d 230, 261, 512 N.E.2d 691, 707.

We note that under the supreme court’s analysis in Rickey, Illinois courts have not previously allowed a cause of action for emotional distress based on the negligent mishandling of a corpse. Koeller v. Cook County (1989), 180 Ill. App. 3d 425, 535 N.E .2d 1118; Courtney v. St. Joseph Hospital (1986), 149 Ill. App. 3d 397, 500 N.E.2d 703.

We find that the allegations of defendants’ negligence in plaintiff’s amended complaints clearly fail to meet the requirements of Rickey. Plaintiff does not allege that she suffered any physical injury or illness. Plaintiff’s complaints allege that she “sustained severe injuries in that she suffered great pain and anguish and severe emotional distress.” Plaintiff’s allegation merely concludes that she suffered emotional distress. Rickey requires an allegation that plaintiff suffered physical injury or illness as a result of the emotional distress. It is not enough to simply equate physical injury or illness with emotional distress. Plaintiff must allege the causation between her physical injury or illness and the emotional distress which was caused by defendants’ negligence. Even if the plaintiff could demonstrate that she suffered “physical injury or illness resulting from emotional distress” (Rickey, 98 Ill. 2d at 555, 457 N.E.2d at 5), she failed to allege that she was “in a zone of physical danger and *** [defendants’ negligence put her in] reasonable fear for [her] own safety.” Rickey, 98 Ill. 2d at 555, 457 N.E.2d at 5.

Here, plaintiff did not allege that she witnessed any of defendants’ alleged acts or omissions, or that she was placed in a zone of physical danger which caused her to fear for her own personal safety. Therefore, we find the plaintiff’s allegations are insufficient to establish that she was a bystander within the zone of physical danger.

The second question which we are asked to address is whether the surviving spouse in a wrongful cremation action is a direct victim trader Corgan v. Muehling (1991), 143 Ill. 2d 296, 574 N.E.2d 602. Plaintiff argues that she was a direct victim of defendants’ alleged negligence. We disagree.

The plaintiff in Corgan sought damages for emotional distress caused by her therapist’s exploitation when he convinced her to engage in sexual relations under the guise of therapy. Our supreme court in Corgan found that the plaintiff had stated a cause of action for negligence. (Corgan, 143 Ill. 2d at 308, 574 N.E.2d at 607.) The plaintiff correctly notes that the supreme court in Corgan clarified Rickey when it determined that the zone of physical danger rule applied only to bystanders and not to direct victims. (Corgan, 143 Ill. 2d at 304-06, 574 N.E.2d at 605-06; Hayes, 225 Ill. App. 3d at 824, 587 N.E.2d at 562.) Plaintiff argues that she is a direct victim of defendants’ negligence just like the plaintiff in Corgan. Therefore, plaintiff argues that the zone of physical danger rule pertaining to bystanders does not apply in this appeal.

Plaintiff contends that she is a direct victim because the mishandling of her husband’s remains constituted a tort committed directly upon her. We disagree. We find that there is no contemporaneous physical injury to the plaintiff which is sufficient to make her a direct victim. Plaintiff also argues that for no other reason than that she is the surviving spouse, she must be a direct victim of a wrongful cremation. We also disagree.

We find that the facts in the instant appeal are dramatically different from the facts in Corgan. In Corgan, the plaintiff sued the defendant because of the malpractice which he performed directly upon her. Here, the plaintiff can only claim that her emotional distress was a derivative consequence of the allegedly negligent acts performed upon her deceased husband’s remains. We note that the alleged acts of negligence clearly were not performed by the defendants directly upon the plaintiff. There was no direct contact between the plaintiff and defendants. Therefore, we find the plaintiff’s reliance on Corgan is misplaced.

For the reasons indicated, the judgment of the circuit court of Will County which dismissed various negligence counts alleged in plaintiff’s amended complaint is affirmed.

Affirmed.

SLATER and STOUDER, JJ., concur.


author: PRESIDING JUSTICE BUCKLEY

text:
    OFFICE MATES 5, NORTH SHORE, INC., Plaintiff-Appellant, v. ANNE HAZEN et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—91—0284
    Opinion filed August 3, 1992.
    Rehearing denied September 30, 1992.

      Hamman & Benn, of Chicago (Dawn M. Cassie, of counsel), for appellant.

      Sheldon Schwartz, of Buffalo Grove, for appellee Anne Hazen.
    Beermann, Swerdlove, Woloshin & Barezky, of Chicago (Alvin R. Becker and Timothy M. Kelly, of counsel), for appellee Deborah Greenberg.
    No brief filed for other appellee.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

On December 24, 1990, plaintiff Office Mates 5, North Shore, Inc., an office support personnel placement agency, filed suit against defendants Anne Hazen (Hazen) and Deborah Greenberg (Greenberg), two of its previous employees, and defendant Premier Personnel, Inc. (Premier), a competing placement agency and current employer of Hazen and Greenberg. Plaintiff’s suit alleges that Hazen’s and Green-berg’s employment with Premier violates restrictive covenants contained in employment agreements which Hazen and Greenberg executed as a condition to their employment; that all defendants are in violation of the Illinois Trade Secrets Act (the Act) (Ill. Rev. Stat. 1989, ch. 140, par. 351 et seq.); and that defendant Premier has intentionally interfered with plaintiff’s contractual relations.

Plaintiff subsequently obtained a temporary restraining order against defendants and moved for preliminary injunctive relief on all grounds alleged in the complaint. Following a hearing, the circuit court entered an order which denied plaintiff’s request for preliminary injunctive relief and dissolved the temporary restraining order. On appeal, plaintiff alleges that its evidence raised a prima facie case demonstrating a fair question as to the near-permanency of its client relationships and confidentiality of its customer information. Plaintiff accordingly argues that the circuit court abused its discretion in denying it preliminary injunctive relief. We affirm.

Plaintiff is an Illinois corporation with its principal place of business located in suburban Northfield. Plaintiff is part of a nationwide franchise headquartered in Cleveland, Ohio. Plaintiff and its predecessor, Office Mates 5, Northfield, Inc., which plaintiff purchased in October 1988, have been in the personnel placement business since 1985.

Plaintiff’s business consists of locating and placing office support personnel (candidates) with Chicagoland businesses (clients) having such a need. Plaintiff receives a fee for its services. The industry is highly competitive, as there are 100 similar agencies within a 50-mile radius of plaintiff’s business.

Plaintiff principally conducts its business through individuals holding the title of account executive. An account executive’s primary goal is to match a qualified candidate with the particular hiring needs of a client. An account executive’s day-to-day duties are directed at achieving this goal. Plaintiff pays its account executives a commission for successful placements.

Defendants Hazen and Greenberg were employed as account executives with plaintiff from October 1986 through October 1990 and from July 1988 through October 1990, respectively. Neither Hazen nor Greenberg had worked for a placement agency prior to her job with plaintiff. On November 7, 1990, Hazen and Greenberg began working for defendant Premier in a similar capacity. Premier is in direct competition with plaintiff and is located approximately seven miles away.

As a prerequisite to employment with plaintiff’s predecessor, Ha-zen and Greenberg were required to enter employment agreements containing restrictive covenants which individually required Hazen and Greenberg to: (1) refrain for one year after termination from providing placement services to, or communicating with, candidates or customers, wherever located, with whom she either had contact, knowledge, or access during a 12-month period prior to termination; (2) not engage in the personal placement business in any capacity for one year following termination within a 50-mile radius of plaintiff’s business; and (3) never disclose following termination “any information of any kind, nature or description whatsoever concerning any matters affecting or relating to plaintiff’s personnel placement business.”

Following plaintiff’s commencement of this action, the circuit court on December 28, 1991, temporarily restrained defendants Hazen and Greenberg from using or disclosing any records obtained by them in the course of their employment with plaintiff. On January 2, 1991, the court ordered further that Hazen and Greenberg return plaintiff’s confidential materials and that all defendants refrain from initiating contacts with customers of plaintiff “with whom Hazen or Greenberg had contact, knowledge of, or access to during the twelve months immediately preceding their termination *** and with whom plaintiff claims a ‘near-permanent’ relationship.” Plaintiff attached a list of 260 companies to the order which plaintiff claimed satisfied the language of the order.

Defendants subsequently filed their verified answer to plaintiff’s complaint and moved to dissolve the temporary restraining order. While defendants admitted executing their respective employment agreements, they denied the enforceability of the restrictive covenants and any breach thereof.

On January 16, 1991, the court held a hearing on the parties’ respective motions. During this hearing, the court received testimonial and documentary evidence and, over defense objection, various affidavits. What follows is a summary of the evidence produced.

Lynne Goldberg, plaintiff’s president and owner, testified at the hearing and by way of sworn affidavit that the process involved in placing a qualified candidate with a client first requires plaintiff to develop a ready supply of candidates. To accomplish this goal, plaintiff principally relies on newspaper and directory assistance advertisement to attract candidates although candidates also learn about plaintiff through referrals and cold calls. Goldberg reviewed records reflecting that plaintiff spent about $52,000 on advertising in 1989 and about $39,000 through the end of October 1990. Plaintiff also pays referral fees if a referred candidate is successfully placed.

Candidates who reply to plaintiff’s advertisement are interviewed by plaintiff’s account executives. Information from the candidate, such as employment and education history, references and desired position, are taken down onto a candidate’s application form. When plaintiff receives a job order matching a candidate’s qualifications, the account executives arrange interviews, prepare the candidate for the interview, debrief them afterward, relay and negotiate any offers, and then finalize the placement. Information learned in the process relative to the candidate and client is transferred into plaintiff’s files.

Regarding client development, plaintiff requires its account executives to place 40 telephone calls a day. Plaintiff requires its account executives to place any information learned by the calls onto “pump” and “lead” cards. An initial call rarely results in a job order; rather, the majority of job orders require that additional contact be made through personal visits to the business and additional telephone calls. Most placements take six months to a year to occur.

Plaintiff bears the costs associated with client development. When plaintiff purchased its predecessor, part of the purchase price was apportioned to client goodwill and client information contained within the predecessor’s files. To maintain and develop its clients, plaintiff pays for Christmas cards, lunches, gifts, telephone bills, brochures and literature. Plaintiff must also pay a national franchise fee.

Once a client decides to place a job order, the account executive completes a job order form. This form includes, inter alia, data about the job duties, the skills required and salary requirements. Additional time is taken to assure that the information within the order remains current. Every Monday, Wednesday and Friday, plaintiff holds office meetings during which account executives share job orders and candidate information to obtain a successful match.

Upon a successful placement, a job placement form is completed. Plaintiff pays a split commission to the account executives who supplied the successful candidate and obtained the job order. After placement, account executives make additional contact with the client to promote a positive relationship and goodwill. Over one-third of plaintiff’s clients have used plaintiff’s services for three years or more and 50% of plaintiff’s revenues stems from customers who use plaintiff’s services for multiple job placements.

Plaintiff considers confidential the information it acquires regarding its customers and candidates. Plaintiff maintains the confidentiality of this information as well as any customer lists by restricting access to its account executives on a “need to know” basis. Master copies of job orders and candidate applications are stored in a locked filing cabinet to which only plaintiff’s president and her assistant have access. Additionally, plaintiff requires its account executives to execute confidentiality agreements and advises account executives of this confidentiality through training manuals and video tapes. A security guard protects plaintiff’s premises after closing.

In addition to expenses associated with candidate and client development, plaintiff also incurs expenses when training its newly hired account executives. Upon an account executive’s hire, the executive views a series of videotapes purchased from the franchise office. Initial training of account executives requires a two- to three-week period. Such training teaches techniques regarding marketing, sales, closing a placement, telephone use, personal visits to client offices and office procedures. Plaintiff also purchases from franchise headquarters videos updating industry practice which its account executives view. Account executives attend regional meetings annually at plaintiff’s expense where guest speakers conduct skill-oriented seminars.

Each account executive keeps a job order book, which categorizes job orders from clients according to the nature of the work. Goldberg found Greenberg’s book after she had left plaintiff’s employ but was unable to locate Hazen’s. Following Hazen’s and Greenberg’s resignations, certain confidential information — originals of candidate applications, client lists, job order forms, and other paperwork — were missing. Both Greenberg and Hazen had access to this information.

Goldberg identified a print-out of telephone calls for plaintiff’s business which included calls from plaintiff to defendant Premier during October 1990. Hazen and Greenberg had taken extensive time off in the second half of October, and plaintiff’s photocopying bill for October demonstrated a marked increase. Hazen and Greenberg possessed keys to plaintiff’s office.

Although plaintiff’s revenues have increased substantially over the last two years, plaintiff’s November 1990 revenues suffered a marked decrease in comparison to its revenues during 1989. Account executives with plaintiff have also suffered losses of commissions.

During the hearing, Goldberg identified a list of companies attached to the temporary restraining order in which she claimed that plaintiff had a protectable interest. She based this assertion on the fact that all the companies there listed had paid a fee to plaintiff within the last three years as well as the time, effort and expense involved in acquiring that fee. Goldberg admitted that the list could include companies which had paid only one fee three years ago as well as companies which perhaps had gone out of business. Regarding one company on her list, Goldberg acknowledged that the company had two locations in Chicago and was listed on the New York Stock Exchange. The company employs hundreds of office personnel and plaintiff does not place all the personnel needs of that company.

Goldberg testified that clients would sometimes give her an exclusive to fill a particular job opening. Such exclusives, however, would never be in writing and would only apply to the opening which the client sought filled.

Goldberg testified about a client called Household International, with whom plaintiff has successfully placed many candidates. While plaintiff had accepted job orders from it prior to Greenberg’s hire, it was Greenberg who placed a candidate which thereby procured them as a “client.”

Plaintiff called Hazen as an adverse witness. Hazen testified that she primarily worked on candidate development during her first year. After this period, Hazen acted principally as a telephone solicitor. Her goal was to find local companies having office and other support personnel. Hazen testified that her main sources of customer names were the telephone directory and directories available at public libraries which focus on a particular industry.. Hazen would then make “cold calls” to these companies to determine the person in charge of hiring personnel and to solicit job orders.

Hazen testified that, although plaintiff maintained a central file of “lead cards” in the president’s office, Hazen found them unhelpful. Hazen testified that she would frequently plan her next day of calls at home and would use a directory to target a particular industry or a geographic location. Plaintiff’s lead cards could not be taken out of the office and generally included only a company name, address and telephone number. These cards would not, therefore, allow Hazen to efficiently market plaintiff’s services as would the directories she used. Hazen noted that the lead cards were sometimes outdated and sometimes included businesses such as gas stations and restaurants. On the other hand, Hazen could learn a lot about a company through a directory and a telephone call.

Hazen testified that she generally would obtain the lead card on a potential customer only after she had first independently established contact with the company. Plaintiff required that all information gathered on a company be placed on the lead card. Thus, to the extent Hazen’s handwriting appeared on a lead card, the entry was made after she learned of the company through her own efforts. Hazen testified she turned a lead card into a client only twice during her four-year tenure with plaintiff.

Hazen prepared and identified a list of 20 companies with whom she claimed she had found herself, personally cultivated a relationship and earned a commission. Hazen claimed these companies to be her “clients.” Hazen explained that she initially found these companies on her own by using either a directory, canvassing or viewing a newspaper advertisement. Hazen admitted that some of these companies had been contacted by plaintiff’s other account executives prior to Hazen’s initial contact with that company. She further admitted that plaintiff’s other account executives had in fact written job orders with some of these companies prior to Hazen’s first job placement with that company. Hazen explained that there were a lot of account executives going after the same client. Hazen acknowledged that, after starting with Premier, she contacted some of the same companies with which she had previously cultivated relationships. Hazen denied taking any records with her when she left plaintiff’s employ.

Plaintiff also called Greenberg as an adverse witness. Greenberg testified that she too would plan her next day’s calls the night before and would also plan such calls by principally using telephone books and directories such as the Illinois service and manufacturing directory. Greenberg conceded that there existed no single directory which listed companies needing office workers as such, but stated that every telephone book and directory was a source of potential clients. Some weeding out was always required.

As for plaintiff’s lead cards, Greenberg testified that they contained nothing more than the name, address and telephone number of the company. Greenberg would, therefore, still have to place a cold call to the company to determine the name of the contact person and develop a rapport with that person.

Greenberg testified that repeat business depended more on the relationship of the account executive and the customer than it did on a particular successful placement. Greenberg noted that companies with whom she had a relationship would make placements with other agencies. The companies would frequently come back to Greenberg for another placement even though the company had accepted a previous placement from another placement agency. No business hired office workers on a regular or predictable basis.

Greenberg denied taking any records with her when she left plaintiff. After starting for Premier, Greenberg contacted and wrote job orders for some of the same customers with whom she had cultivated relationships while working for plaintiff. Greenberg, like Hazen, prepared and identified a list of companies with which she had developed a personal relationship and which she considered to be her clients. As with Hazen, plaintiff established that some of these same companies were contacted by and placed job orders with plaintiff prior to Green-berg’s initial contact. Greenberg explained that files relative to a particular company would lie dormant until an account executive contacted the company again.

Maijorie Krantz testified at the hearing and by way of affidavit that she has been an account executive with plaintiff for six years. It was plaintiff’s policy to have all account executives participate in finding acceptable candidates for the job orders written by another account executive.

Krantz stated that she had personally worked with Hazen and Greenberg in placing candidates with clients which Hazen and Green-berg claim to be their personal clients. On many occasions, Krantz supplied the successful candidate for a Hazen or Greenberg job order for companies which Hazen and Greenberg claim to be their clients. Her duties during such placements included preparing the candidates for the interview, debriefing them afterwards, negotiating their salaries and terms of employment and preparing a job placement form upon acceptance. Krantz also had personal contact with many of Ha-zen’s and Greenberg’s claimed clients.

At the close of the evidence, the circuit court found that plaintiff failed to establish a protectable interest to justify enforcement of the restrictive covenants. The court believed that plaintiff's clients were more the product of the account executives' good luck and personal efforts on plaintiff’s behalf rather than the product of plaintiff’s good will and long-term relationship with the client. The court further believed that plaintiff’s customer information was not sufficiently confidential to warrant protection. For these reasons, the court denied plaintiff’s motion for preliminary injunctive relief and dissolved the temporary restraining order.

This appeal is taken from the denial of a preliminary injunction (see 134 Ill. 2d R. 307). A preliminary injunction is a provisional remedy granted to preserve the status quo, i.e., the last, peaceable uncontested status which preceded the litigation, pending a hearing on the merits of the case. (Label Printers v. Pflug (1991), 206 Ill. App. 3d 483, 564 N.E.2d 1382; The Instrumentalist Co. v. Band, Inc. (1985), 134 Ill. App. 3d 884, 480 N.E.2d 1273; Hydroaire, Inc. v. Sager (1981), 98 Ill. App. 3d 758, 424 N.E.2d 719.) A party seeking a preliminary injunction must show: (1) he possesses a clear right or interest needing protection; (2) an inadequate remedy at law; (3) irreparable harm will result if it is not granted; and (4) there is a reasonable likelihood of success on the merits. Tyler Enterprises of Elwood, Inc. v. Shafer (1991), 214 Ill. App. 3d 145, 573 N.E.2d 863; Millard Maintenance Service Co. v. Bernero (1990), 207 Ill. App. 3d 736, 566 N.E.2d 379; Preferred Meal Systems, Inc. v. Guse (1990), 199 Ill. App. 3d 710, 557 N.E.2d 506; Agrimerica, Inc. v. Mathes (1988), 170 Ill. App. 3d 1025, 524 N.E.2d 947; A.B. Dick Co. v. American Pro-Tech (1987), 159 Ill. App. 3d 786, 514 N.E.2d 45.

The decision to grant or deny preliminary injunctive relief lies within the sound discretion of the trial court, and a reviewing court’s role is limited to determining only whether the trial court abused that discretion. (Hamer Holding Group, Inc. v. Elmore (1990), 202 Ill. App. 3d 994, 560 N.E.2d 907.) In Dixon Association for Retarded Citizens v. Thompson (1982), 91 Ill. 2d 518, 524-25, 440 N.E.2d 117, 120, our supreme court quoting from City of Chicago v. Airline Canteen Service, Inc. (1978), 64 Ill. App. 3d 417, 432-33, 380 N.E.2d 1106, 1118, elaborated as follows on the applicable standard of review:

“ ‘It is well established that a hearing on a motion for a preliminary injunction does not determine any factual issue. A preliminary injunction is issued to preserve the status quo until the trial court may consider the merits of the case. In ruling on a motion for such relief, controverted facts or the merits of the case are not decided. In reviewing the discretion exercised by the trial court, an appellate court may decide only whether the petitioner had demonstrated a prima facie case that there is a fair question as to the existence of the rights claimed; that the circumstances lead to a reasonable belief that they probably will be entitled to the relief sought, if the evidence sustains the allegations of the petition; and that matters should be kept in status quo until the case can be decided on its merits. In sum, the only question before us is whether there was sufficient showing to sustain the order of the trial court.’ ” (Emphasis in original.)

See also Office Electronics, Inc. v. Adell (1992), 228 Ill. App. 3d 814, 818-19; Hamer Holding Group, Inc., 202 Ill. App. 3d 994, 560 N.E.2d 907; Preferred Meal Systems, Inc. v. Guse (1990), 199 Ill. App. 3d 710, 557 N.E.2d 506; Witter v. Buchanan (1985), 132 Ill. App. 3d 273, 476 N.E.2d 1123.

In the present case, plaintiff predicates its request for preliminary injunctive relief against defendants on the restrictive covenants contained in Hazen’s and Greenberg’s respective employment contracts and on the existence of trade secrets under the Act. We first address the covenants in question.

The propriety of injunctive relief relative to a restrictive covenant turns on the enforceability of that covenant, and this determination presents a question of law. (E.g., Tyler Enterprises of Elwood, Inc. v. Shafer (1991), 214 Ill. App. 3d 145, 573 N.E.2d 863; Capsonic Group v. Swick (1989), 181 Ill. App. 3d 988, 537 N.E.2d 1378; Corroon & Black, Inc. v. Magner (1986), 145 Ill. App. 3d 151, 494 N.E.2d 785; The Instrumentalist Co. v. Band, Inc. (1985), 134 Ill. App. 3d 884, 480 N.E.2d 1273; Tower Oil & Technology Co. v. Buckley (1981), 99 Ill. App. 3d 637, 425 N.E.2d 1060; Image Supplies, Inc. v. Hilmert (1979), 71 Ill. App. 3d 710, 390 N.E.2d 68.) Covenants not to compete are, in effect, restraints on trade and will be carefully scrutinized to ensure that their intended effect is not to prevent competition per se. (E.g., Tyler Enterprises of Elwood, Inc., 214 Ill. App. 3d at 149, 573 N.E.2d at 865; Capsonic Group, 181 Ill. App. 3d at 992, 537 N.E.2d at 1382; Corroon & Black, 145 Ill. App. 3d at 162, 494 N.E.2d at 791; The Instrumentalist Co., 134 Ill. App. 3d at 891, 480 N.E.2d at 1279; Image Supplies, Inc., 71 Ill. App. 3d at 713, 390 N.E.2d at 70.) The basic test applied by Illinois courts in determining the enforceability of restrictive covenants is whether the terms of the agreement are reasonable and necessary to protect a legitimate business interest of the employer, a determination which necessarily turns on the facts and circumstances of each case. Label Printers v. Pflug (1991), 206 Ill. App. 3d 483, 491, 564 N.E.2d 1382, 1387; Shapiro v. Regent Printing Co. (1989), 192 Ill. App. 3d 1005, 1010, 549 N.E.2d 793, 795; Southern Illinois Medical Business Associates v. Camillo (1989), 190 Ill. App. 3d 664, 672, 546 N.E.2d 1059, 1064-65; P C x Corp. v. Ross (1988), 168 Ill. App. 3d 1047, 1057, 522 N.E.2d 1333, 1339; Corroan & Black, 145 Ill. App. 3d at 162, 494 N.E.2d at 791.

Our courts have long recognized two situations in which an employer has a legitimate business interest to justify enforcement of a covenant not to compete: (1) where, “by the nature of the business, the customer relationship is near-permanent and but for [her] association with plaintiff, defendant would never have had contact with the clients in question”; and (2) where the former employee “acquired confidential information through his employment and subsequently attempted to use it for his own benefit.” Nationwide Advertising Service, Inc. v. Kolar (1975), 28 Ill. App. 3d 671, 673, 329 N.E.2d 300, 302; see also Label Printers, 206 Ill. App. 3d 483, 564 N.E.2d 1382; The Instrumentalist Co., 134 Ill. App. 3d 884, 480 N.E.2d 1273; The Packaging House, Inc., 114 Ill. App. 3d 284, 448 N.E.2d 947; Hayden’s Sport Center, Inc. v. Johnson (1982), 109 Ill. App. 3d 1140, 441 N.E.2d 927; Morrison Metalweld Process Corp. v. Valent (1981), 97 Ill. App. 3d 373, 422 N.E.2d 1034.

In this case, plaintiff alleges that the circuit court abused its discretion in finding that plaintiff failed to raise a prima facie case demonstrating a fair question that it had a protectable interest in its clients under either of the above situations. Upon our review of Illinois law and the record evidence, we believe the court acted within its discretion.

To support its argument that it established a near-permanent relationship with its clients, plaintiff directs this court to our decisions which have developed and applied a seven-factor test to determine whether a near-permanent relationship exists. (See e.g., Agrimerica, Inc., 170 Ill. App. 3d 1025, 524 N.E.2d 947; A.B. Dick Co., 159 Ill. App. 3d 786, 514 N.E.2d 45; McRand, Inc. v. Van Beelen (1985), 138 Ill. App. 3d 1045, 486 N.E.2d 1306.) For each factor, plaintiff cites to record evidence to support the factor. Plaintiff thereafter argues that because evidence exists to support each factor, it has raised a fair question of near-permanency, thereby entitling it to preliminary injunctive relief.

In denying plaintiff relief under the near-permanency test, the circuit court believed the evidence did not support plaintiff’s argument that it had a near-permanent relationship with its clientele. Rather, the court found that the key to plaintiff’s success was more the good luck, timing and personality of the account executives, and not the customer data in plaintiff’s files, its good will or the training imparted to its employees. Although the court was sympathetic with the amount of money plaintiff spent to develop its candidates and clients, this sum of money did not change the lack of near permanency in plaintiff’s relationship with its clients.

The near-permanency test has as its origin the supreme court cases of Canfield v. Spear (1969), 44 Ill. 2d 49, 254 N.E.2d 433, and Cockerill v. Wilson (1972), 51 Ill. 2d 179, 281 N.E.2d 648. In Can-field, defendants were a group of medical doctors practicing in Rockford, Illinois, who accepted the plaintiff, a dermatologist, into their association. Defendant had never lived in the Rockford area and brought no clients with him. Defendant executed a restrictive covenant upon his employment, which our supreme court enforced. In Cockerill, plaintiff and defendant were veterinarians who formed an association together. Plaintiff, an established veterinarian, employed the younger defendant and guaranteed him an annual salary. Defendant was a stranger to the area of practice and brought no clients with him. Our supreme court enforced a restrictive covenant against defendant to which he agreed upon beginning his association with plaintiff.

In Nationwide Advertising Service, Inc. v. Kolar (1973), 14 Ill. App. 3d 522, 528, 302 N.E.2d 734, 738, we observed of Canfield and Cockerill:

“In both Cockerill and Canfield the defendants were brought into contact with clients upon which the plaintiffs in those cases had spent considerable time and effort to attract. The defendants, newcomers to the area of their practice, had contact with clients because of their association with the longer established plaintiffs. The very nature of the professions in which those plaintiffs were engaged indicates that they could justifiably anticipate a permanent or near-permanent relationship with their clientele. The defendants undoubtedly would never have had contact with these clients had it not been for their association with the plaintiffs. This is quite different from the nature of the customer contact in the personnel advertising business as it was described by Brauer [a competitor’s vice-president].”

In the Kolar case, quoted above, plaintiff’s business consisted of soliciting and placing in local newspapers recruitment advertisements for jobs or positions available in private industry. Defendant was plaintiff’s regional manager upon his separation with plaintiff and thereafter a sales representative for one of plaintiff’s competitors. Plaintiff sought preliminary injunctive relief against defendant to enforce the terms of a restrictive covenant. The evidence at the hearing showed the industry to be competitive; that it was no secret which customers used which advertising company; that the nature of the industry was that 20% to 25% of a given year’s business would not be repeated the following year; and that “[a] fair characterization of Brauer’s testimony would be that as a general rule an advertising agency’s relationship with its customers is transitory and not permanent.” Kolar, 14 Ill. App. 3d at 525-26, 302 N.E.2d at 736.

The distinction which Kolar drew between the “nature of the business” in Kolar and in Cockerill and Canfield is evident throughout this State’s case law on the subject. Generally, the near-permanency test turns in large degree on the nature of the business involved, and certain businesses are just more amenable to success under it. For example, plaintiffs engaged in a professional or psuedoprofessional practice enjoy a relatively high degree of success under the test (see Frank B. Hall & Co. v. Payseur (1979), 78 Ill. App. 3d 230, 396 N.E.2d 1246 (insurance brokerage); Booth v. Greber (1977), 48 Ill. App. 3d 213, 363 N.E.2d 6 (electrolysis); Wolf & Co. v. Waldron (1977), 51 Ill. App. 3d 239, 366 N.E.2d 603 (certified public accountants), as do plaintiffs who sell their customers a unique product or service (Arpac Corp. v. Murray (1992), 226 Ill. App. 3d 65, 589 N.E.2d 640 (manufacturer of sophisticated and complicated shrink or plastic wrap packaging machinery); Agrimerica, Inc., 170 Ill. App. 3d 1025, 524 N.E.2d 947 (manufacturer and seller of flavoring ingredients, mold inhibitors and surfactants to large-scale animal feed producers); A.B. Dick Co., 159 Ill. App. 3d 786, 514 N.E.2d 45 (maintenance and repair services for copiers, microfiche and offset printing equipment); McRand, Inc., 138 Ill. App. 3d 1045, 486 N.E.2d 1306 (designing and coordinating management and incentive award programs for major corporations and business); The Instrumentalist Co., 134 Ill. App. 3d 884, 480 N.E.2d 1273 (publisher of monthly magazine directed toward school band and orchestra directors and music teachers). Plaintiffs under contract with customers also achieve success under the test. See A.B. Dick Co., 159 Ill. App. 3d 786, 514 N.E.2d 45 (customers signed one-year contract which renewed automatically unless cancelled); J.D. Marshall International, Inc. v. Fradkin (1980), 87 Ill. App. 3d 118, 409 N.E.2d 4 (exclusive exporter of domestic manufacturers).

On the other hand, where the nature of the plaintiff’s business does not engender customer loyalty as with a unique product or personal service, and customers utilize many suppliers simultaneously to meet their needs, plaintiffs in such business achieve a lesser degree of success under the near-permanency test. (See Label Printers v. Pflug (1991), 206 Ill. App. 3d 483, 564 N.E.2d 1382; Southern Illinois Medi cal Business Associates v. Camillo (1989), 190 Ill. App. 3d 664, 546 N.E.2d 1059; Reinhardt Printing Co. v. Feld (1986), 142 Ill. App. 3d 9, 490 N.E.2d 1302; Iroquois Industries Corp. v. Popik (1980), 91 Ill. App. 3d 505, 415 N.E.2d 4.) The fact pattern typifying these latter cases is the existence of a highly competitive industry in which customers, through cross-purchasing, satisfy their buying needs. Plaintiffs in these businesses rely heavily on their sales force, who utilize basic sales techniques such as cold calls to make sales. The identity of customers or clients is known by all in the industry. We described in Reinhardt the nature of the business in these cases as follows:

“[S]hort-term, impermanent customers whose business [the salesperson/defendant] was able to solicit not because of her association with plaintiff, but rather, through her own efforts on plaintiff’s behalf and in furtherance of her association with it.” (Emphasis in original.) Reinhardt Printing Co., 142 Ill. App. 3d at 17, 490 N.E.2d at 1308.

The trial court’s conclusion regarding the nature of plaintiff’s business and the lack of permanency of its clientele is in accord with the above principles and the record evidence. This evidence shows plaintiff to supply qualified candidates to Chicagoland businesses having office support personnel openings. Businesses likely to have such needs are not secret; rather, their names, addresses and nature of business are readily available to all in the industry by way of canvassing, cold calling and the use of telephone and specialized directories. Information about the company, personnel openings, rate of pay, and qualifications required is only a telephone call away. These businesses do not fill their hiring needs from one placement agency; rather, they pay a fee to the agency which supplied the accepted candidate. Plaintiff may not be this agency every time. Based on the record evidence, the court’s findings regarding the nature of plaintiff’s business, and plaintiff’s failure to meet the near-permanency test, were within the court’s discretion.

We reach the same result even if we were to apply the seven-factor test which this court has developed and which plaintiff urges us to apply. Summarily, these factors are: (1) the number of years required to develop the clientele; (2) the amount of money invested to acquire clients; (3) the degree of difficulty in acquiring clients; (4) the extent to personal customer contact by the employee; (5) the extent of the employer’s knowledge of its clients; (6) the duration of the customers’ association with the employer; and (7) the continuity of employer-customer relationships. Agrimerica, Inc., 170 Ill. App. 3d 1025, 524 N.E.2d 947; A.B. Dick Co., 159 Ill. App. 3d 786, 514 N.E.2d 45; McRand, Inc., 138 Ill. App. 3d 1045, 486 N.E.2d 1306.

While the first and third factor can be viewed to weigh in plaintiff’s favor, as the evidence reflects that an initial and any subsequent placements require time and effort, the evidence on the other factors does not support plaintiff’s case. The most telling of these are the last two factors, duration and continuity.

In its brief, plaintiff directs this court to the evidence that approximately 50% of its clients use plaintiff’s services for multiple placements and that one-third of its clients have been plaintiff’s clients for three years or longer. By plaintiff’s own evidence, approximately 50% of its clients never return and two-thirds have less than a three-year relationship with plaintiff. Although our cases do not require a customer relationship to be both long-term and exclusive or that plaintiff show near permanency with each customer (Preferred Meal Systems, Inc. v. Guse (1990), 199 Ill. App. 3d 710, 723-24, 557 N.E.2d 506, 514), our cases require more than that shown by plaintiff. See Millard Maintenance Service Co. v. Bernero (1990), 207 Ill. App. 3d 736, 566 N.E.2d 379 (four of Millard’s customers were clients in excess of 15 years; Millard’s seven largest customers composed 70% of its business); Preferred Meal Systems, Inc., 199 Ill. App. 3d at 723-24 (70% of business received from only 20 customers; of 120 customers, 55 have been clients since Preferred opened in the 1970’s and over 85 have been customers in excess of five years); Agrimerica, Inc., 170 Ill. App. 3d 1025, 524 N.E.2d 947 (several customers had relationship in excess of 30 years; 75% of sales to customers in excess of five years); The Instrumentalist Co., 134 Ill. App. 3d 884, 480 N.E.2d 1273 (majority of plaintiff’s top advertisers have advertised for at least 15 years); McRand, Inc., 138 Ill. App. 3d 1045, 486 N.E.2d 1306 (McRand’s major customers went to it on regular basis, not a “one-shot” deal).

Relative to these same two factors, we are further directed by plaintiff to the evidence that Household International accepted placements from plaintiff 24 times between May 1989 and August 1990. Other documentary evidence shows that many companies submit job orders to plaintiff on a regular basis.

We are not persuaded that this evidence evinces an abuse of discretion. Plaintiff’s president testified on cross-examination that Household International first paid a fee to plaintiff because of defendant Greenberg’s efforts on plaintiff’s behalf. Prior to this time, Household International was only a prospect. Regarding companies submitting job orders on a regular basis, near permanency is not established merely by accepting job orders for goods or services on a regular basis; rather, filling those orders is what counts under the test.

Plaintiff also emphasizes the second factor to this court, namely, how much money it spends to attract clients. The evidence reflects, however, that much of plaintiff’s expenditures are for advertisements for candidates, not clients. Similarly, plaintiff’s other big-ticket expenditure, account executive training, is not directly spent on any one client in particular. Finally, although plaintiff takes its clients out to lunch, sends gifts and cards, and produces brochures of its services, these funds are insufficient to render permanent that which is not. See Preferred Meal Systems, 199 Ill. App. 3d 710, 557 N.E.2d 506 ($1 million/year spent to develop clients and service existing ones); Agrimerica, Inc., 170 Ill. App. 3d 1025, 524 N.E.2d 947 ($300,000 spent in 1985 for research to attract customers; $400,000 in 1986); McRand, Inc., 138 Ill. App. 3d 1045, 486 N.E.2d 1306 ($200,000 to develop first sale to customer).

In summary, the circuit court acted within its discretion when it determined that plaintiff failed to raise a fair question demonstrating a near-permanent relationship with its clients. In light of our conclusion, we need not address whether plaintiff raised a fair question that, but for her employment with plaintiff, neither Hazen nor Green-berg would have had contact with plaintiff’s clients.

Having affirmed the circuit court relative to the near-permanency test, we must nevertheless address whether plaintiff has a proprietary interest in its customers on the independent ground that during Ha-zen’s and Greenberg’s employ, they acquired confidential information and are now attempting to use it for their own benefit. With respect to enforcement of restrictive covenants on this ground, we have specifically rejected the notion that “ ‘only trade secrets — as distinct from confidential information — are entitled to legal protection.’ ” (Millard Maintenance Service Co., 207 Ill. App. 3d at 746, 566 N.E.2d at 385, quoting Shapiro v. Regent Printing Co., 192 Ill. App. 3d at 1011.) A restrictive covenant will be enforced “ ‘where the former employee learned trade secrets or acquired other confidential information while in plaintiff’s employ and subsequently attempted to use it for his or her own benefit [citation].’ ” (Emphasis in original.) Millard Maintenance Service Co., 207 Ill. App. 3d at 746, 566 N.E.2d at 385, quoting Shapiro, 192 Ill. App. 3d at 1011.

In Illinois, customer lists and other customer information will be deemed a protectable trade secret only where the information has been developed by the employer over a number of years at great expense and kept under tight security. However, the same type of infermation is not protectable where it has not been treated as confidential and secret by the employer, was generally available to other employees and known by persons in the trade, could be easily duplicated by reference to telephone directories or industry publications, and where the customers on such lists did business with more than one company or otherwise changed businesses frequently so that their identities were known to the employer’s competitors. (Reinhardt Printing Co., 142 Ill. App. 3d at 1148, 490 N.E.2d at 1309 (and cases cited therein).) The protection afforded under the Illinois Trade Secrets Act (Ill. Rev. Stat. 1989, ch. 140, par. 351 et seq.) is in accord with these principles. See Carbonic Fire Extinguishers, Inc. v. Heath (1989), 190 Ill. App. 3d 948, 952, 547 N.E.2d 675, 677 (“The focus of the Act and the common law is on the secrecy of the information sought to be protected”).

In this case, plaintiff’s claimed confidential information encompasses three categories: (1) candidate information; (2) client information; and (3) a list of clients which have actually paid plaintiff a fee.

Regarding plaintiff’s candidate information, plaintiff directs this court to the evidence that Hazen and Greenberg, during their employment, had exposure to candidate information compiled in candidate application forms. Plaintiff, however, presented no evidence that any of the defendants have contacted plaintiff’s candidates or are otherwise using the candidate information in competition with plaintiff. Accordingly, the court acted within its discretion relative to this information.

Regarding plaintiff’s client information, plaintiff details this information as follows: the client’s name, address and key contact person; the client’s benefit package; type of word-processing equipment used; its products and services; number of employees; fee the client is willing to pay for placement; and history of placements.

We again believe the circuit court properly exercised its discretion with respect to this information. The court could properly find that the above information was readily available to anyone in the business capable of canvassing or finding a directory, whether it be the Yellow Pages or a specialized directory, placing a cold call to that business, and asking specific questions designed to elicit the information above. Indeed, it was the account executives in this case who developed most of the information in question. (I L G Industries, Inc. v. Scott (1971), 49 Ill. 2d 88, 93-94, 273 N.E.2d 393, 396 (“One who has worked in a particular field cannot be compelled to erase from his mind all of the general skills, knowledge and expertise acquired through his experience”).) Further, our cases have found that where customer information is readily available to competitors through normal competitive means, no protectable interest exists. Compare Donald McElroy, Inc. v. Delaney (1979), 72 Ill. App. 3d 285, 389 N.E.2d 1300 (protectable interest found where plaintiff business was recovering silver from other business’ photographic materials, and where employee was exposed to plaintiff’s recovery equipment capabilities, yield figures and bid calculation methodology); Tower Oil & Technology Co. v. Buckley (1981), 99 Ill. App. 3d 637, 425 N.E.2d 1060 (protectable interest found in technological data concerning lubrication business and past customer needs), with Hayden’s Sport Center, Inc. v. Johnson (1982), 109 Ill. App. 3d 1140, 441 N.E.2d 927 (no protectable interest in information pertaining to sporting goods customers’ buying habits where such information was relatively more generalized and easy to ascertain); Image Supplies, Inc. v. Hilmert (1979), 71 Ill. App. 3d 710, 390 N.E.2d 68 (no protectable interest exists relative to customer information readily available to competitors or in public sources).

Finally, as for plaintiff’s customer list, which includes the name of clients having paid a fee to plaintiff, the court did not abuse its discretion in finding that plaintiff had no protectable interest in the list. The record shows that Chicagoland businesses in need of office support personnel can be ascertained quite readily by canvassing and using various directories. In Carbonic Fire Extinguishers, Inc. v. Heath (1989), 190 Ill. App. 3d 948, 953, 547 N.E.2d 675, 677-78, a case arising under the Act, we recently commented on similar evidence:

“[H]ere, plaintiff is engaged in the restaurant-hood-cleaning business, a service commonly utilized by restaurants. As such, although the actual customers using plaintiff’s services are not readily apparent from the telephone directory, anyone seeking to compete with plaintiff, including defendant, could very likely encounter plaintiff’s customers by simply contacting restaurants through the telephone directory. Thus, plaintiff has failed to establish the secrecy of the customer list. Further, other persons would not obtain economic value from disclosure or use of plaintiff’s customer list as identification of potential customers who might use a restaurant-hood-cleaning service would entail little, if any, expense beyond that ordinarily required to establish a customer relationship. [Citation.] Consequently, plaintiff has not shown that its customer list is sufficiently secret to derive economic value from not being generally known to other persons who could obtain economic value from its disclosure or use.” (Emphasis added.)

While plaintiff in this case seeks to distinguish Carbonic Fire Extinguishers on the ground that all the businesses there were restaurants, whereas in this case many different businesses have office support personnel needs, we believe this distinction ignores the evidence common to both cases, namely, the relative ease with which plaintiff’s clients can be ascertained.

Gillis Associated Industries, Inc. v. Cari-All, Inc. (1990), 206 Ill. App. 3d 184, 564 N.E.2d 881, a case upon which plaintiff heavily relies, is distinguishable. In Gillis, plaintiff was the exclusive distributor of defendant’s wire shelving products for the United States. The parties were under contract for six years. During this period, plaintiff developed a customer list containing the names of over 3,000 customers across the entire nation who had purchased the wire shelving product. In its complaint, plaintiff alleged that its prior employee had misappropriated the customer list and was using it in competition with plaintiff as an employee of defendant.

In this case, plaintiff has not shown that Hazen and Greenberg took its customer list and are now using it to compete against plaintiff. Also, plaintiff’s list in this case is much shorter, and covers companies having a more general need, all of which can be found in local public directories or through canvassing.

Also distinguishable is Courtesy Temporary Service, Inc. v. Camacho (1990), 222 Cal. App. 3d 1278, 272 Cal. Rptr. 352, another case upon which plaintiff relies. In Camacho, plaintiff was engaged in the temporary employment business since 1969, providing temporary workers to various companies. Defendants there admitted scheming while employed by plaintiff to form a competitive business. Their conduct evinced an extreme disregard of fiduciary duty, including their admissions that they compiled a list of plaintiff’s major customers while still employed by plaintiff, and handing plaintiff’s other employees letters intending to misrepresent that plaintiff was relocating to the address of defendants’ new company or was being taken over by the defendants. No evidence of such extreme scheming exists in this case.

For the foregoing reasons, the order of the circuit court of Cook County denying plaintiff preliminary injunctive relief and dissolving the temporary restraining order is affirmed.

Affirmed.

CAMPBELL and O’CONNOR, JJ., concur.