text:
    GERALD F. MANNION, JR., Plaintiff and Counterdefendant-Appellant, v. STALLINGS & COMPANY, INC., Defendant and Counterplaintiff and Third-Party Plaintiff-Appellee (Mannion Mechanical Services, Inc., Third-Party Defendant-Appellant).
    First District (1st Division)
    No. 1 — 89—0941
    Opinion filed September 24, 1990.

      Donald L. Johnson, of Chicago, for appellants.
    Burke & Burke, Ltd., of Chicago (John M. Burke, of counsel), for appellee.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

This appeal arises from an action brought by Gerald F. Mannion (Mannion) against Stallings & Company, Inc. (Stallings), to recover commissions under an oral employment agreement and Stallings’ counterclaim against Mannion and third-party complaint against' Mannion Mechanical Services, Inc. (Mechanical Services), for tortious interference with contractual relations or business expectancy. Mannion appeals from the circuit court’s order directing a verdict against him on his breach of contract action, and Mannion and Mechanical Services appeal from the judgment entered against them in the amount of $50,948 on Stallings’ tortious interference action. We affirm.

Stallings, an Illinois corporation with offices in the City of Glen-wood, Illinois, is engaged in the business of manufacturing and marketing industrial controls systems. Mannion, together with his brother James R. Mannion and Mechanical Services, own certain patents relating to energy management systems, known as the “BRDG-TNDR” systems, which control water flow in large chilled and/or hot-water systems.

On January 1, 1979, Mechanical Services, to which Mannion and his brother had granted the exclusive license to the BRDG-TNDR patent, entered into a written agreement with Stallings whereby Stallings was granted the exclusive license under the patent to manufacture, use and sell BRDG-TNDR products and Stallings, in turn, agreed to pay certain flat fees and share net profits pursuant to a specified formula. From August 1977 to March 1983, Stallings employed Mannion as a salesman to work on jobs involving BRDG-TNDR systems and non-BRDG-TNDR systems.

In his breach of contract action before the circuit court, Mannion sought to recover past-due commissions for work performed on nonBRDG-TNDR jobs under an oral employment agreement. In its counterclaim and third-party claim, Stallings sought to recover damages for Mannion’s and Mechanical Services’ interference with its contractual relations or prospective business relations with a third party pursuant to its rights under the BRDG-TNDR patent.

At trial, the following evidence was presented in Mannion’s breach of contract action. Mannion testified that around the time he accepted his employment with Stallings, he had a conversation with Thomas Stallings, Stallings’ president, wherein they discussed that Mannion would “come to work for Mr. Stallings *** and that [they] would share fifty-fifty in the proceeds from the work that [Mannion] developed *** in the expansion of these present products and new system-oriented products.” Mannion testified that they agreed that he would receive a $20,000 annual salary plus necessary sales expenses and the use of an automobile. He also testified that during his employ with Stallings, he received commissions on non-BRDG-TNDR items, which were computed under a formula using a 30% discount from the job profit to account for overhead, leaving a residual of 70% of the job profit to be divided on an equal basis between Stallings and himself.

On cross-examination, Mannion responded affirmatively to whether it was his understanding that he would receive a commission on every job he “touched” at Stallings, but later clarified his answer to be “it was our agreement that any job that I matured to order as my input *** in my particular area, I would get commission on.” Upon further questioning, Mannion responded “[m]y agreement with Stallings *** was that we would share in the work we did, and as defined between the two of us, which followed a basic product type line. I also had the responsibility to handle some of Mr. Stallings’ lines without any commission.”

On redirect examination, Mannion expounded further upon his understanding of the agreement:

“[A]ny job that incorporated a specific system concept with, where we would build up a system, an engineer system, or sell product that was of the Brant manufacture, OCI, Hume, so forth, the lines that I brought, and also the lines that I was to develop with Mr. Stallings, it was under these logos *** I was entitled to a commission arrangement.”

Mannion offered into evidence computations prepared by Stallings’ bookkeeper on two non-BRDG-TNDR jobs on which he was paid commissions and charts prepared by himself listing commissions paid to him and those due him on non-BRDG-TNDR jobs, the latter of which Thomas Stallings identified as jobs for which Stallings had received compensation. Mannion testified that between 1977 and the end of 1982, he was paid $48,374 on non-BRDG-TNDR jobs. He admitted on cross-examination that his suit sought reimbursement only for commissions accruing on non-BRDG-TNDR jobs in 1982 and 1983 and stated that, although he “worked on” numerous other non-BRDGTNDR jobs during the years 1977-81, he received one commission check in 1977-78, probably five commission checks in 1979, one commission check in 1980, and no commission checks in 1981.

Mannion also introduced into evidence letters Stallings sent to him in 1980, 1982 and 1983 which explained the money and benefits which had been paid to him during each year. Stallings’ bookkeeper testified that Mannion never complained about not receiving all the commissions due him after Stallings sent these letters.

After the court directed the verdict in favor of Stallings on Mannion’s breach of contract claim, evidence was introduced on Stallings’ counterclaim and third-party claim. On adverse examination, Mannion testified as follows. While he was employed by Stallings in 1982, he contacted Honeywell, Inc., located in Orlando, Florida, to sell BRDG-TNDR systems on behalf of Stallings. He traveled to Miami various times in connection with this business and was reimbursed for his expenses. Thomas Stallings and employees Ray Putzi and Julie Fink also worked on the Honeywell project. By the summer of 1982, the Honeywell job was “possibly in the bid stage.” Mannion received a letter dated November 4, 1982, from Honeywell’s sales representative informing him “that there are some drawings coming and that there’s an additional item to be bid.” The letter also referred to specifications for the Honeywell project, which indicated that the “Mannion I-S system” would be manufactured by Honeywell.

Stallings introduced into evidence a purchase order “subcontract agreement” in the amount of $171,000, which was signed by Honeywell and dated January 7, 1983. Stallings also adduced a letter sent by Honeywell to Stallings on January 20, 1983, informing it of its intent to enter into a contract for an additional $40,000 item.

Thomas Stallings testified that the Honeywell job was entered into the Stallings’ computer on January 12, 1983. He could not recall having seen a signed acceptance of the Honeywell purchase order. Thereafter, Mannion and Fink began to prepare drawings for the Honeywell job.

The following was further disclosed by Mannion’s testimony. Man- . nion believed Stallings breached the patent license agreement in October 1982 and was aware that the patent agreement contained a provision requiring a 90-day notice to the breaching party and giving the breaching party the right to cure any alleged default within the 90-day period. Mannion adduced a letter, dated January 6, 1983, and marked “received January 11, 1983,” sent by James Mannion to Stallings informing it that Stallings and Mechanical Services were in breach of the patent agreement and that “[bjoth have been given the full 90 days to cure the breach.” Mannion testified that Thomas Stallings informed him in early January 1983 that he had received this notice.

Mannion testified that he sent a telegram on March 1, 1983, notifying Stallings that it was in default of the patent license agreement and that he was terminating the agreement “as of January 1, 1983.” Mannion also sent Honeywell a telegram on March 1, informing it that Stallings had been put on notice for patent infringement of the Mannion BRDG-TNDR patent. The telegram further stated that “to cause minimum delay Mannion Mechanical will honor the current job price and supply material and services for systems, price, cone, D $40,000 bag claim FIS $171,000.”

On March 11, 1983, Mannion directed a letter to Honeywell which he understood would “hold Honeywell harmless” for any claims made by Stallings. On that date, he also submitted a bid quotation to Honeywell. Mechanical Services ultimately received the Honeywell job and was paid $211,000 upon its completion. Mannion testified that Mechanical Services received between a $5,000 and $5,500 profit on the job.

Herbert L. Dean, Stallings’ accountant since 1977, testified over Mannion’s objection that had Stallings performed the Honeywell job, it would have made a gross profit of $111,973, a net profit of $78,381, and, after deducting Mannion’s share, a profit of $50,948. Dean further testified that Stallings incurred $33,592 in overhead even though it was not awarded the Honeywell project. Dean calculated the interest on the $84,540 total loss to be $21,125 from early 1983 through the end of 1988 at a 5% interest rate.

On Mannion’s appeal from the judgment entered against him on his breach of contract action, he contends that the circuit court erred in directing the verdict against him at the close of his case in chief. When ruling on a motion for judgment at the close of a plaintiffs case in a nonjury trial, the court must first determine whether the plaintiff has made a prima facie case by presenting at least some evidence on every essential element of his cause of action, and then, if he has made out a prima facie case, the trial judge must weigh the plaintiff’s evidence to determine if he has met his burden of proof by a preponderance of the evidence. (Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 154-55, 407 N.E.2d 43, 44-45.) In considering the weight and quality of the evidence, the court must consider all of the evidence, including evidence favorable to the defendant, pass on the credibility of witnesses, and draw reasonable inferences from the testimony. (Kokinis, 81 Ill. 2d at 154, 417 N.E.2d at 44-45; Vandevier v. Mulay Plastics, Inc. (1985), 135 Ill. App. 3d 787, 790, 482 N.E.2d 377, 380.) If, after the weighing process, the result is the negation of some of the evidence necessary to the plaintiff’s prima facie case, the court should enter judgment in the defendant’s favor; if sufficient evidence necessary to establish plaintiff’s prima facie case remains, the court should deny the defendant’s motion. Kokinis, 81 Ill. 2d at 155, 407 N.E.2d at 45.

In directing the verdict for Stallings, the circuit court here incorrectly applied the standard set forth in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504, when it found that “in viewing the evidence in the light most favorable to [Mannion], [Mannion] has failed to sustain his burden of proof.” No prejudice resulted to Mannion, however, because the court, in finding that Mannion did not satisfy his burden under the more lenient Pedrick standard, necessarily found that Mannion did not satisfy his burden under the standard set forth above.

To meet his burden in a breach of contract action, the plaintiff must establish an offer and acceptance, consideration, definite and certain terms of the contract, plaintiff’s performance of all required contractual conditions, the defendant’s breach of the terms of the contract, and damages resulting from the breach. (Vandevier, 135 Ill. App. 3d at 791, 482 N.E.2d at 380; O’Neil & Santa Claus, Ltd. v. Xtra Value Imports, Inc. (1977), 51 Ill. App. 3d 11, 14, 365 N.E.2d 316, 318.) In reviewing the circuit court’s finding that plaintiff did not sustain his burden of proof as to these elements by a preponderance of the evidence, we are mindful that a reviewing court will not reverse its decision unless it is contrary to the manifest weight of the evidence. (Vandevier, 135 Ill. App. 3d 787, 482 N.E.2d 377.) Mannion argues that the circuit court’s finding is against the manifest weight of the evidence because he presented sufficient evidence as to each of the above-mentioned elements. Stallings, on the other hand, argues that there is insufficient evidence to show a meeting of the minds between the parties, definite and certain terms of the contract, or valid consideration.

The record discloses conflicting and vague evidence regarding the terms of the contract. Mannion first testified that his understanding of the oral agreement was that he would receive a commission on every job he “touched” at Stallings, then testified that he would receive a commission on “any job that [he] matured to order,” and subsequently admitted that he had responsibility to handle some lines without any commission. He submitted only two computations prepared by Stallings’ bookkeeper reflecting commissions he received on non-BRDG-TNDR jobs and admitted that he received only one or no commission checks in four of the five years previous to the years in which he alleges commissions are due.

The record further reveals little evidence to show a meeting of the minds of the parties. What,is required to establish a “meeting of the minds” is “ ‘a common definite meeting of intent of two parties, in selecting or accepting *** those items essential to a complete contract, as their contract. *** It must be shown that those parties selected and concurred in the terms of contract ***.’ ” (Richton v. Farina (1973), 14 Ill. App. 3d 697, 704, 303 N.E.2d 218, 223, quoting Bartlett v. Lauff (1933), 271 Ill. App. 551, 554.) While Mannion testified to his understanding of the agreement concerning the “sharing” of the work performed through the commission arrangement, he never testified to specific representations made by Thomas Stallings during their discussions at the time they entered into the oral employment agreement.

In light of the insufficient and vague evidence as to the terms of the oral contract and the parties’ mutual assent to the terms, we cannot conclude that the circuit court’s finding that Mannion failed to sustain his burden as to the essential elements of his breach of contract claim is against the manifest weight of the evidence.

We turn now to Mannion’s and Mechanical Services’ appeal of the judgment entered against them on Stallings’ action for intentional interference with contract or business expectancy. The elements of the tort of intentional interference with contractual rights include (1) the existence of a valid and enforceable contract between the plaintiff and another, (2) the defendant’s awareness of this contractual relation, (3) the defendant’s intentional and unjustified inducement of a breach of the contract which causes a subsequent breach by the other, and (4) damages. (HPI Health Care Services, Inc. v. Mt. Vernon Hospital, Inc. (1989), 131 Ill. 2d 145, 545 N.E.2d 672.) The elements of the tort of intentional interference with a business expectancy include (1) the existence of a valid business expectancy by plaintiff, (2) the defendant’s knowledge of the expectancy, (3) the defendant’s intentional and unjustified interference which prevents the realization of the business expectancy, and (4) damages. Madonna v. Giacobbe (1989), 190 Ill. App. 3d 859, 546 N.E.2d 1145; Heying v. Simonaitis (1984), 126 Ill. App. 3d 157, 466 N.E.2d 1137.

Mannion and Mechanical Services initially argue that insufficient evidence was presented to prove the existence of a valid contract or business expectancy. They point out that Stallings did not adduce a signed contract between Stallings and Honeywell regarding the Honeywell job.

In an action for tortious interference with business expectancy, the plaintiff need not prove the existence of a valid contract, but must demonstrate his reasonable expectancy of entering into a valid business relationship. (Malatesta v. Leichter (1989), 186 Ill. App. 3d 602, 542 N.E.2d 768; Heying, 126 Ill. App. 3d 157, 466 N.E.2d 1137.) The record discloses that Stallings had the exclusive right under terms of the patent license agreement to manufacture and market the BRDG-TNDR products and that it possessed this right at the time of Mannion’s interference. Even accepting that Stallings was effectively notified of a possible breach as early as January 1983, the license agreement’s provision providing Stallings with 90 days to cure any breach had not expired at the time of Mannion’s interference on March 1, 1983. The record further discloses that in the summer of 1982, the Honeywell job was in the “bid stage,” that in November 1982 Stallings received a letter from Honeywell outlining specifications for the job which indicated that the “Mannion I-S system” would be manufactured by Honeywell, and that in January 1983 Stallings received a purchase order subcontract agreement signed by Honeywell specifying the amount of compensation to be given to Stallings. We believe this evidence amply supports the circuit court’s finding that Stallings had a reasonable expectancy of entering into a valid business relationship.

Sufficient evidence was also presented to support the circuit court’s finding that Mannion had knowledge of the business expectancy and that Mannion’s interference prevented the realization of the expectancy. Mannion acknowledged that he worked on the Honeywell project for Stallings throughout the stages mentioned above, that Stallings was in the “bid stage” with the Honeywell project in the summer of 1982, and that he received the November 1982 letter containing job specifications which indicated that the “Mannion I-S system” would be included in Honeywell’s manufacture of its product. Mannion also admitted that he submitted a bid quotation to Honeywell 10 days after he informed it that Stallings had been notified of patent infringement and that Mechanical Services ultimately entered into an identical purchase agreement with Honeywell.

As to the element that the defendant’s actions be intentional and unjustified, no dispute exists here that Mannion’s interference was intentional. In dispute, however, is whether Mannion’s conduct was justified or privileged and who bore the burden of pleading and proving the justification or lack of justification. Mannion claims that he was conditionally privileged to interfere in Stallings’ contractual relations and that Stallings bore the burden of overcoming the privilege. Stallings, on the other hand, denies the existence of a privilege and argues that Mannion has waived any claim of privilege by failing to raise it in his pleadings or at trial.

Our supreme court has recently dispelled any confusion regarding the parties’ burden as to pleading and proving a justification or lack of justification in actions for tortious interference with contractual relations or business expectancies. Where the conduct of a defendant is privileged, the plaintiff is required to plead and prove that the defendant’s actions were done without justification or with actual malice. (HPI, 131 Ill. 2d 145, 545 N.E.2d 672; Mittelman v. Witous (1989), 135 Ill. 2d 220, 552 N.E.2d 973.) The court, however, has offered little guidance regarding the determination of the existence of a privilege. Illinois courts generally recognize privileges in instances where the defendant has acted to protect an interest which the law deems to be of equal or greater value than the plaintiff’s contractual rights. (HPI, 131 Ill. 2d at 157, 545 N.E.2d at 677.) Courts have found the following actions to involve such interests: acts involving the first amendment right to petition government for redress of grievances (Arlington Heights National Bank v. Arlington Heights Federal Savings & Loan Association (1967), 37 Ill. 2d 546, 229 N.E.2d 514; King v. Levin (1989), 184 Ill. App. 3d 557, 540 N.E.2d 492); the reporting of the unauthorized practice of medicine by a veterinary member (American Pet Motels, Inc. v. Chicago Veterinary Medical Association (1982), 106 Ill. App. 3d 626, 435 N.E.2d 1297); evaluations by hired professional consultants (Genelco, Inc. v. Bowers (1989), 181 Ill. App. 3d 1, 536 N.E.2d 783); an attorney’s rendering advice to his client (Schott v. Glover (1982), 109 Ill. App. 3d 230, 440 N.E.2d 376); and a corporate officer acting to influence the actions of his corporation (Mittelman, 135 Ill. 2d 220, 552 N.E. 2d 973; HPI, 131 Ill. 2d 145, 545 N.E.2d 672; Swager v. Couri (1979), 77 Ill. 2d 173, 395 N.E.2d 921). These courts, in granting the defendant a qualified privilege and placing the difficult burden on the plaintiff to overcome the privilege, have carefully balanced the defendant’s interests with the plaintiff’s interests and found significant policy reasons for granting a qualified privilege.

Mannion and Mechanical Services assert that their property interest in the BRDG-TNDR patent gave rise to a conditional privilege to interfere in Stallings’ prospective business relationship with Honeywell, despite Stallings’ undisputed allegations and proof that it had the exclusive right under the BRDG-TNDR patent to manufacture and sell the BRDG-TNDR products. They have cited no case law in their brief which has found a defendant’s mere property or economic interest to be an equal or greater interest than the plaintiff’s contractual rights or valid business expectancies. The case relied on by Mannion and Mechanical Services at oral argument, HPI Health Care Services, Inc. v. Mt. Vernon Hospital, Inc. (1989), 131 Ill. 2d 145, 545 N.E.2d 672, does not support their contention. HPI involved the well-recognized “corporate officer privilege.” The duty of corporate officers to their corporations’ shareholders to use their business judgment and discretion on behalf of the corporation has been deemed by courts to take precedence over any duty they may have towards parties contracting with the corporation. (See Swager, 77 Ill. 2d at 187-92, 395 N.E.2d at 927-28; Mittelman, 135 Ill. 2d 220, 552 N.E.2d 973.) Since this privilege arises from an officer or employee’s inducement of his own corporation’s breach of contractual or prospective business relations with other parties, it is inapplicable to the instant circumstances.

We note that our research has disclosed an appellate court case, Belden Corp. v. Internorth, Inc. (1980), 90 Ill. App. 3d 547, 552, 413 N.E.2d 98, 102, which recognized the societal value of free enterprise in granting a privilege of lawful economic competition where the defendant is interfering with a competitor’s prospective business relationship rather than an existing contract. This “competitor’s privilege” arises when the business relation concerns a matter involving competition between the actor and the competitor. (See Candalaus Chicago, Inc. v. Evans Mill Supply Co. (1977), 51 Ill. App. 3d 38, 48, 366 N.E.2d 319, 326-27, citing Restatement of Torts §768 (1934).) In contrast, Stallings here alleged and proved that it had the exclusive right under the patent to manufacture and sell the BRDG-TNDR products and that Mannion’s relation to the Honeywell project arose from his employment relationship with Stallings.

Accordingly, because defendant has provided no basis upon which to invoke the existence of a privilege here, we hold that plaintiff was not required to allege facts from which actual malice may be inferred.

Mannion and Mechanical Services next argue that they should be granted a new trial because the trial court committed reversible error in allowing Stallings’ damage expert to testify despite his failure to comply with the order excluding witnesses from the courtroom during other witnesses’ testimony. While Mannion concedes that it is not reversible error to allow a witness to testify despite a violation of an order excluding witnesses unless there is a showing of prejudice (People v. Fiorito (1952), 413 Ill. 123, 108 N.E.2d 455), he has not made any showing of prejudice to justify a reversal here. As noted by the circuit court, Stallings’ accountant testified to accounting procedures as applied to the Honeywell project, not as to factual or credibility matters. Under these circumstances, the circuit court’s decision to permit the accountant to testify was not an abuse of its discretion.

Finally, we address Mannion’s contention that he may not be held personally liable for Mechanical Services’ tortious interference with Stallings’ business expectancy due to his status as a corporate officer of Mechanical Services. It is established that, although corporate officers generally are not liable for the obligations of the corporation, they are personally liable to a victim of a tort for damages resulting from their personal participation in the tort. (National Acceptance Co. of America v. Pintura Corp. (1981), 94 Ill. App. 3d 703, 418 N.E.2d 1114; McDonald v. Frontier Lanes, Inc. (1971), 1 Ill. App. 3d 345, 272 N.E.2d 369; Miller v. Simon (1968), 100 Ill. App. 2d 6, 241 N.E.2d 697.) Mannion’s reliance on Motsch v. Pine Roofing Co. (1988), 178 Ill. App. 3d 169, 533 N.E.2d 1, as recognizing a contrary rule is misplaced. Motsch acknowledged the rule that a corporate officer may be held liable for torts in which he participates, but noted that the statutory cause of action in issue there expressly limited liability to persons serving in the specific capacity of an “employer.” (Motsch, 178 Ill. App. 3d at 176, 533 N.E.2d at 6.) Because no dispute exists that Mannion personally participated in the common law tort present here, we find that Mannion may be held personally liable.

In summary, we affirm the circuit court’s order directing the verdict against Mannion on his breach of contract action and the judgment entered against Mannion and Mechanical Services on Stallings’ action for tortious interference with business expectancy.

Affirmed.

CAMPBELL and MANNING, JJ., concur.

      The court distinguished between interference with an existing contract and interference with a prospective economic advantage because “[w]hen a business relationship affords the parties no enforceable expectations, but only the hope of continued benefits, the parties must allow for the rights of others.” It further explained “as the degree of enforceability of a business relationship decreases, the extent of permissible interference by an outsider increases.” Belden, 90 Ill. App. 3d at 552, 413 N.E.2d at 102.


source: Caselaw Access Project

author: PRESIDING JUSTICE BUCKLEY

license: Public Domain

text:
    GLORIA A. BANDEMER, Plaintiff-Appellant, v. THE DEPARTMENT OF EMPLOYMENT SECURITY et al., Defendants-Appellees.
    First District (1st Division)
    No. 1 — 90—0441
    Opinion filed September 24, 1990.

      Schultz & Winick, of Chicago (Barry A. Schultz, of counsel), for appellant.
    Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Daniel N. Malato, Assistant Attorney General, of Chicago, of counsel), for appellees.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

The circuit court of Cook County affirmed an administrative order by defendant, the Board of Review of the Illinois Department of Employment Security (Board), denying plaintiff’s right to unemployment benefits because of her work-related misconduct. (Ill. Rev. Stat. 1989, ch. 48, par. 432(A).) On appeal plaintiff argues that the circuit court erred in affirming the administrative order because her actions did not constitute misconduct.

Plaintiff, Gloria Bandemer, was employed from April 5, 1976, to April 3, 1989, as a sales manager for Stella’s, a lingerie and sportswear store in Chicago. Bandemer had been given the keys and was responsible for opening the store at 9:30 a.m. on April 3,1989.

Plaintiff claimed that she felt sick and attempted to call Mr. Michael, the store manager, at his home about 9:15 a.m. on that date. She testified that she placed a second call to the store about 11 a.m. that day, but that the line was busy. Plaintiff testified that after these two attempts to reach Mr. Michael, she fell asleep.

About 4:30 p.m. that day Mr. Michael called plaintiff at her home. Plaintiff testified that she told Mr. Michael that she had a sore throat, was feeling ill and that she had attempted to contact him at home and at the store. Mr. Michael testified, however, that plaintiff told him that she had a hangover and a headache that day. Mr. Michael told plaintiff not to return to the store.

Plaintiff filed a claim for unemployment benefits which was denied by the claims adjudicator on May 11, 1989. The adjudicator determined that plaintiff was ineligible for unemployment benefits because she left work voluntarily without good cause attributable to Stella’s. Plaintiff appealed this decision.

A hearing was held on June 29, 1989, and both the plaintiff and Mr. Michael appeared. The referee determined that plaintiff’s separation was due to discharge and not voluntary leaving. Because plaintiff had not received proper notice of the discharge issue the referee postponed the hearing until August 7,1989.

At the second hearing plaintiff appeared in person and Mr. Michael requested permission to testify by telephone, but the referee was unable to reach him. The referee then conducted the hearing with only the plaintiff present and determined that plaintiff’s absence from the employer and her failure to contact the employer on April 3, 1989, were misconduct related to work. The referee found that plaintiff had the responsibility to open the store for business at 9:30 a.m. and that the employer had a right to expect to be notified by plaintiff if she would be absent from work. The Board adopted these conclusions, and the circuit court confirmed that decision.

Plaintiff argues that there was insufficient evidence in the record to establish that her conduct constituted misconduct pursuant to the statute. Specifically, plaintiff argues that not all five statutory elements were established by the employer.

“Misconduct” is defined by the statute as:

“[T]he deliberate and willful violation of a reasonable rule or policy of the employing unit, governing the individual’s behavior in performance of his work, provided such violation has harmed the employing unit or other employees or has been repeated by the individual despite a warning or other explicit instruction from the employing unit.” (Ill. Rev. Stat. 1989, ch. 48, par. 432(A).)

Further, standards of behavior which an employer has a right to expect constitute a reasonable company rule or order governing conduct and performance of an employee that directly concerns the employment. Jackson v. Board of Review of the Department of Labor (1985), 105 Ill. 2d 501, 475 N.E.2d 879.

In the instant case, the facts show that plaintiff was discharged for failing to contact her employer and for refusing to carry out her responsibility to open the store on April 3, 1989. When asked whether the employer had a rule requiring employees to call into work when sick, plaintiff responded, “you normally do.” Further, plaintiff testified that she attempted to call the employer twice and did not deny that she had a duty to call. It could be properly inferred from these facts that the employer had a reasonable policy requiring an employee to call when the employee was sick. Moreover, rules regarding absences from work without notifying the employer are reasonably related to employment and satisfy an element of misconduct. Medvid v. Department of Employment Security (1989), 186 Ill. App. 3d 747, 542 N.E.2d 852.

Plaintiff testified that she attempted to contact the employer on two occasions, at 9:15 a.m. and 11 a.m. on the date of the incident. Plaintiff made no further attempts to reach the employer to inform him that she was sick and would be absent from work. This conduct was deliberate and willful. Although the plaintiff attempted to notify the employer of her absence, she failed to reach him.

Because of plaintiff’s absence, the employer was unable to open the store at 9:30 a.m. on April 3, 1989. Potential customers were therefore unable to shop at the employer resulting in financial loss to it. The threat of future financial loss caused by the conduct of an employee is harmful to an employer. See, e.g., Winklmeier v. Board of Review of the Department of Labor (1983), 115 Ill. App. 3d 154, 450 N.E.2d 353.

Here, the evidence is clear that plaintiff’s failure to contact the employer regarding her absence and to carry out her responsibilities of opening the store fulfilled each of the statutory elements and constituted misconduct. Therefore, the circuit court did not err in affirming the order of the Board denying unemployment benefits to plaintiff.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

CAMPBELL and O’CONNOR, JJ., concur.


author: JUSTICE BILANDIC

text:
    ANTHONY ARDAGH CASSIDY, Plaintiff-Appellee, v. FORUM INSURANCE COMPANY, Defendant-Appellant (Will Darrah and Associates, Inc., et al., Defendants).
    First District (2nd Division)
    No. 1 — 89—2397
    Opinion filed September 25, 1990.
    Bernard Harrold, James D. Fiffer, and James T. Nyeste, all of Wildman, Harrold, Allen & Dixon, of Chicago, for appellant.
    Thomas S. White, Gregory D. Hopp, and Helen Ryan Savaiano, all of Peterson, Ross, Schloerb & Seidel, of Chicago, for appellee.
   JUSTICE BILANDIC

delivered the opinion of the court:

Defendant, Forum Insurance Company (Forum), brings this interlocutory appeal pursuant to Illinois Supreme Court Rule 308 (134 Ill. 2d R. 308). Plaintiff, Anthony Ardagh Cassidy (Cassidy), filed a complaint against Forum and certain other defendants not involved in this appeal, alleging breach of certain contracts of reinsurance and breach of fiduciary duty. In his complaint, Cassidy attempted to bring suit in both an individual and representative capacity. Forum filed a motion to dismiss the representative claims on the basis that Cassidy did not have the requisite capacity to bring them. The trial court denied Forum’s motion to dismiss and thereafter granted Forum’s motion for a Rule 308(a) finding. The trial court certified the following question for review:

“Can a person who is an underwriter at Lloyd’s, London and a subscriber appear as a plaintiff on his own behalf and as the authorized representative of other persons who as Names subscribed to the very contractual undertakings at issue?”

This court granted Forum’s petition for leave to review this question.

Cassidy is an individual member (referred to as a Name) of Lloyd’s, London (Lloyd’s) Syndicate 582. Cassidy is also the active underwriter of that syndicate and the lead underwriter of the reinsurance program that motivates this appeal.

The Lloyd’s corporation does not operate in the same manner as a United States’ corporation. Lloyd’s provides a physical site for its members to conduct the buying and selling of insurance risks. None of these risks falls upon the corporation but upon its individual members.

The members or Names are individual investors that do not actively participate in the Lloyd’s business. Rather, upon applying for a membership with Lloyd’s, the Names invest a sum of money and delegate complete authority to conduct the Lloyd’s affairs to a member’s agent. The member’s agent in turn contracts with a managing agency to place the new member in a group comprised of two to several hundred other individual Names. The group is referred to as a syndicate. An employee of the managing agency conducts the affairs of the syndicate on behalf of the individual members of the syndicate. This employee is referred to as the active underwriter for the syndicate.

A syndicate’s active underwriter, such as Cassidy, acts on behalf of his syndicate in the buying and selling of insurance risks. The active underwriter is approached by a Lloyd’s broker with potential contracts of insurance or reinsurance. The active underwriter evaluates, negotiates and ultimately places insurance by signing his name to the contract presented to him by the Lloyd’s broker. He negotiates and contracts with the Lloyd’s broker for the portion of risk that his syndicate will assume. In this manner, he has the authority to and does bind the individual members of his syndicate to assume the negotiated risk and receive the negotiated premiums.

The Lloyd’s brokers act as agents of clients who want to have their insurance programs underwritten by Lloyd’s members. The brokers approach various active underwriters and attempt to contract with them for their syndicates to bear a certain percentage of the risk. In this manner, the underwriters of a particular insurance policy may consist of a number of Lloyd’s syndicates, each bearing a certain percentage of the total risk involved in the insurance policy. However, the first active underwriter that the broker approaches and with whom he contracts becomes the lead underwriter on that policy. When problems develop with respect to that policy or it becomes necessary to enforce the terms of the policy, it is the lead underwriter that deals with the Lloyd’s broker and his client. Should litigation become necessary, the lead underwriter, acting on behalf of the other syndicates, designates the individual in whose name a lawsuit will be brought. See Travelers Indemnity Co. v. Booker (D.D.C. 1987), 657 F. Supp. 280; Syndicate 420 at Lloyd’s London v. Early American Insurance Co. (5th Cir. 1986), 796 F.2d 821; Honey v. George Hyman Construction Co. (D.D.C. 1974), 63 F.R.D. 443; Edinburgh Assurance Co. v. R.L. Burns Corp. (C.D. Cal. 1979), 479 F. Supp. 138.

In the case at bar, a Lloyd’s broker, acting in an agency capacity for Forum, approached Cassidy seeking the participation of his syndicate in a reinsurance program. Forum, an American insurance company, sought to have Lloyd’s underwrite a nationwide program of commercial automobile and general liability insurance that it was conducting (the program). Cassidy, on behalf of his syndicate, agreed to reinsure Forum for a percentage of the risk involved in the program. Thereafter, the broker contracted with various other, active underwriters, on behalf of their syndicates, to accept the remaining percentage of the risk. Cassidy was the lead underwriter on this program.

The program ultimately generated large losses, and Cassidy filed the complaint involved in the case at bar against Forum and various other defendants, alleging breach of the insurance contracts involved in the program and breach of fiduciary duty. Cassidy brought these causes of action “individually and on behalf of all those Underwriters at Lloyd’s, London” subscribing to the insurance policies that comprised the reinsurance program. The complaint further alleged that “Underwriters from all the other syndicates that subscribed to the contracts at issue have elected to pursue this litigation on behalf of their respective syndicates. Each has, in turn, designated Cassidy as his syndicate’s representative in this litigation, and each has authorized Cassidy to take any actions he deems proper.” Attached to the complaint was an affidavit reciting this allegation,, signed by the active underwriters of each syndicate subscribing to the policies involved in the program.

Forum answered the complaint and counterclaimed against Cassidy and other defendants. The counts against Cassidy alleged breach of fiduciary duty, fraud and breaches of various contracts. Additionally, Forum filed a motion to dismiss the representative claims of Cassidy’s complaint on the basis that Cassidy does not have the capacity to bring such claims. After hearing arguments, the court denied Forum’s motion to dismiss. Thereafter, the court granted Forum’s motion for a Rule 308(a) finding and certified the above question for review.

It is undisputed that Cassidy has standing to conduct this litigation, being an individual Name member of his syndicate. What is in dispute is whether Cassidy has the capacity to sue as a representative of the other individual Names which comprise both his syndicate and those other syndicates subscribing to the policies at issue.

Forum argues that Cassidy lacks this capacity. The thrust of Forum’s argument is that Cassidy must proceed by way of a class action (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 801) or joinder (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 404).

Cassidy denies this allegation and cites case law permitting stockholder derivative suits and unincorporated associations to proceed in equity without proceeding by way of a class action or joinder. (See Gaffney v. Shell Oil Co. (1974), 19 Ill. App. 3d 987, 989, 312 N.E.2d 753.) Cassidy contends that courts permit Lloyd’s active and lead underwriters to sue and be sued in a representative capacity because of the design of the Lloyd’s system. See New Amsterdam Casualty Co. v. Certain Underwriters at Lloyd’s, London (1966), 34 Ill. 2d 424, 216 N.E.2d 665; Stone v. Those Certain Underwriters at Lloyd’s, London, Subscribing to Cover Note No. SL 10001 (1980), 81 Ill. App. 3d 333, 401 N.E.2d 622, appeal denied (1980), 81 Ill. 2d 587; Carey v. East Detroit Jaycees, Inc. (E.D. Mich. 1987), 660 F. Supp. 1577; Sharp v. Federal Savings & Loan Insurance Corp. (5th Cir. 1988), 858 F.2d 1042; R.H.R. Rokeby-Johnson v. Aquatronics International, Inc. (1984), 159 Cal. App. 3d 1076, 206 Cal. Rptr. 232.

The issue of whether or not a Lloyd’s active underwriter may sue in a representative capacity has been addressed by the Federal courts in Austin v. Koch Truck Lines, Inc., No. 84—4076, (D. Kan. May 13, 1986), and Honey v. George Hyman Construction Co. (D.D.C. 1974), 63 F.R.D. 443. In both cases, the courts concluded that the plaintiffs had the capacity to proceed as a representative of the other underwriters participating in policies of insurance. Austin, slip op. at 4; Honey, 63 F.R.D. at 448.

In Honey, the Lloyd’s underwriter plaintiff attached to his complaint an exhibit almost identical to that presented by Cassidy in the case at bar. This exhibit was an authorization to sue, signed by the active underwriters of each syndicate involved in the policy of insurance. The court concluded that this exhibit sufficiently signified each individual Name’s consent to the commencement of the action by Honey. 63 F.R.D. at 448.

Based upon the contractual and agency relationships upon which the Lloyd’s system is built, we conclude that Cassidy has the authority to commence litigation on behalf of the individual members of his syndicate. As a condition of membership at Lloyd’s, the Name delegates to a member’s agent the complete authority to conduct his Lloyd’s affairs. The individual member does not and may not actively participate in these affairs. Acting on the Name’s behalf, the member’s agent places him in a syndicate. Once a member of the syndicate, the active underwriter has the complete authority to conduct the Name’s affairs. It is the active underwriter that negotiates and signs the contracts of insurance to which the individual members of his syndicate are legally bound. Having the authority to contractually bind the individual members of his syndicate, we find that the active underwriter also has the authority to commence litigation on their behalf.

Like Cassidy, the active underwriters of the other syndicates participating in the program to reinsure Forum also have the authority to represent the individual members of their syndicates. They, in turn, have delegated this authority to Cassidy, as evidenced by the authorization to sue attached to Cassidy’s complaint. Cassidy, being the lead underwriter of the program from which this litigation stems, has the authority to designate himself as the individual in whose name suit will be brought. (Honey, 63 F.R.D. at 446.) For these reasons, we conclude that Cassidy may properly proceed with this litigation as the representative of the individual Names subscribing to the program of reinsurance.

Accordingly, we answer the certified question in the affirmative.

Certified question answered.

HARTMAN and SCARIANO, JJ., concur.


author: PRESIDING JUSTICE CERDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEVOYD LEVY, Defendant-Appellant.
    First District (3rd Division)
    No. 1 — 87—1299
    Opinion filed September 26, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Alvin A. Stokes, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and James Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

Defendant, Levoyd Levy, was convicted of possession of a controlled substance with intent to deliver. (Ill. Rev. Stat. 1985, ch. 56V2, par. 1401(a)(2).) He argues on appeal that: (1) the trial court erred in denying his motion to quash arrest and suppress evidence because a false affidavit supported the warrant; (2) the expert testimony of a detective concerning the street value of the drugs was prejudicial; and (3) defendant was denied a fair trial when the judge commented on the nature of the testimony of a defense witness.

Defendant alleged in an amended motion to quash the search warrant that he was arrested on January 16, 1985, following the execution of a search warrant issued pursuant to a complaint sworn to by Chicago police officer R.O. O’Neill. Defendant alleged that the officer stated in his complaint that he had a conversation with an informant on January 15, 1985, who related that he had gone to 9427 South May Street, where a person named “Bo Honkey” showed him cocaine. Defendant alleged that the allegations of the informant were false and that the police officer either swore falsely in the affidavit as to the conversation with the informant or that the officer could not in good faith have had reason to believe the informant’s account because: (1) he knew or should have known that had the informant actually been to the address he would have seen the prominently displayed name Levy on the front door; and (2) he barely knew his informant and did not know his true reliability. Defendant referred to the officer’s statement in the complaint for the search warrant that he had known the informant for at least three months and that on two occasions the informant’s information led to the seizure of drugs. Defendant argued that the description of the informant’s reliability was boilerplate at best and lacked “the ring of truth.”

Defendant filed a supporting affidavit in which he stated that on January 15, 1985, he slept at 9427 South May Street, that no one visited him that day, and that he did not inform anyone that day that he possessed cocaine. Defendant also swore that the informant never existed and that the allegations made by the police officer were false and known to be false when he prepared the complaint for the search warrant. Defendant’s parents and sister swore in affidavits that no one other than family members entered the home on January 15, 1985.

Robert O’Neill stated in the complaint for the search warrant that he had a conversation with a “cooperating individual” on January 15, 1985, whom he had known for at least three months. During the last month, this informant had supplied the officer with information on criminal violations on two separate occasions that resulted in at least one arrest and the seizure of drugs. The informant related that on January 15, 1985, he went to 9427 South May and purchased cocaine from a man he knew as “Bo Honkey.”

The motion to quash and a motion to disclose the identity of the informant were denied.

Sergeant Carl Edenfield testified at trial for the State that on January 16, 1985, he executed a search warrant at 9427 South May in Chicago. Defendant was in a bedroom in which were recovered a scale, $9,100, packets containing a white powder believed to be cocaine, a tinfoil packet of a white substance, and a plastic bag containing a white rock substance. Defendant stated during the search that the items belonged to him.

Chicago police detective Joseph Carone testified for the State that also recovered in the search were a bottle marked White Lady Manitol, strainers, a metal mixing bowl, a metal spoon, white paper packets, and manilla envelopes.

Arlene Koszyk, a criminalist for the Chicago police department, testified for the State that she weighed and tested the recovered substances and concluded they were cocaine.

Detective George Graham testified for the State over defendant’s objection that the estimated street value of a gram of cocaine was $168. The approximate street value of the 35-gram chunk of cocaine recovered in the search was $20,000. Manitol is an adulterant used in mixing cocaine to create larger quantities for sale. Gram scales similar to the one recovered from defendant have been recovered by Graham in other searches for cocaine. Strainers are used to mix the hard rock form of cocaine with Manitol to create a powder. Mixing bowls and measuring spoons were normal cocaine paraphernalia.

Defendant’s cousin Aaron Stuckey testified for defendant as to his social activities with defendant on the weekend prior to the search. The State objected several times on relevancy grounds, and the trial court overruled on the basis that defendant was to tie up the evidence. The court finally stated after another State objection that “[njinety percent of this was not necessary. Get to the point.” Testimony was later elicited that another person left a bag at defendant’s house.

Defendant’s motion for a new trial was denied.

Defendant first argues that the trial court erred in denying his motion to quash arrest and suppress evidence because he made a substantial preliminary showing that the affidavit which supported the application for a search warrant was false. Defendant argues that his affidavits demonstrated that no one came to his home on January 15, 1985, the date when the informant allegedly purchased cocaine from defendant.

There is a presumption of validity of an affidavit supporting a search warrant. (People v. Martine (1985), 106 Ill. 2d 429, 435, 478 N.E.2d 262.) To obtain an evidentiary hearing on a challenge to the affidavit, defendant must make allegations of the affiant’s deliberate falsehood or reckless disregard for the truth. (Martine, 106 Ill. 2d at 435, citing Franks v. Delaware (1978), 438 U.S. 154, 171, 57 L. Ed. 2d 667, 682, 98 S. Ct. 2674, 2684.) In Martine, defendant swore in an affidavit that the informant did not purchase cocaine from her on a particular date, and two persons who worked in defendant’s home swore in affidavits that they were in and out of the premises on that date. The court held that the affidavits did not negate the possibility that the purchase occurred while the workers were gone. (Martine, 106 Ill. 2d at 435.) Therefore, defendant did not demonstrate the falsehood of the statements in the affidavit supporting the search warrant.

In a case similar to the instant case, an informant told a police officer that he purchased cocaine at defendants’ apartment. (People v. George (1984), 126 Ill. App. 3d 1, 466 N.E.2d 1242.) Defendants claimed that the informant could not have purchased cocaine because neither was at their apartment that day. The court emphasized that it was the veracity of the affiant and not of the informant that could be challenged. (George, 126 Ill. App. 3d at 4.) The court held that even if the informant had given incorrect information, there was no indication that the affiant police officer knew or had reason to believe that the information was false or that he acted in reckless disregard of the truth. (George, 126 Ill. App. 3d at 4.) On this basis, the order quashing the search warrant and suppressing the seized evidence was reversed.

Defendant has likewise only presented evidence bearing on the veracity of the informant and has not made a showing that the affiant made deliberate falsehoods or was in reckless disregard of the truth. The trial court properly denied defendant’s motion to quash and to suppress.

Defendant next argues that the testimony of Detective Graham as to the street value of the cocaine was irrelevant to the issue whether defendant was in possession of a controlled substance with intent to deliver, was prejudicial, and outweighed any probative value.

Street value would be relevant because it provides circumstantial evidence of the intent to deliver. It could be inferred from defendant’s possession of a large quantity of cocaine with a high street value that he was not intending to use it personally. (See People v. Sadaka (1988), 174 Ill. App. 3d 260, 265, 528 N.E.2d 283 (high street value of heroin is probative of intent to sell).) Defendant does not argue how the evidence of street value was prejudicial, and no prejudice is indicated in the record. Furthermore, any error in admitting testimony of the street value of the cocaine was harmless in light of the evidence of the large quantity of drugs and drug-selling paraphernalia seized in defendant’s room.

Defendant finally argues that the trial judge denied him a fair trial by commenting on the nature of the testimony of a defense witness in the presence of the jury. This argument was waived by defendant’s failure to include it in his post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124.) Even if the error was not waived, defendant was not denied a fair trial. The judge’s comment was directed to the lawyer’s unnecessarily lengthy direct examination which brought out irrelevant testimony concerning the social activities of defendant and his cousin preceding the search. The judge did not thereby comment on the credibility of the witness which would have been improper. People v. Cobbins (1987), 162 Ill. App. 3d 1010, 1028, 516 N.E.2d 382.

The judgment of the circuit court is affirmed.

Affirmed.

RIZZI and FREEMAN, JJ., concur.


text:
    KENNETH E. KAWA, Plaintiff-Appellant, v. HARNISCHFEGER CORPORATION, Defendant and Counterdefendant and Counterplaintiff-Appellee (Nabisco, Inc., Defendant and Counterplaintiff and Third-Party Plaintiff-Appellee; Wisconsin Bridge & Iron Co., Third-Party Defendant; St. Onge Ruff Construction Managers, Inc., et al., Third-Party Defendants and Counterdefendants).
    First District (3rd Division)
    Nos. 1 — 88—1841, 1 — 88—3325 cons.
    Opinion filed September 26, 1990.
    Rehearing denied October 30, 1990.

      Tom Leahy and Stephen Phalen, both of Leahy & Donovan, of Chicago, for appellant.
    James P. DeNardo, Royce Glenn Rowe, and Christine L. Olson, all of McKenna, Storer, Rowe, White & Farrug, of Chicago, for appellee Nabisco, Inc.
    Thomas H. Fegan, of Johnson, Cusack & Bell, Ltd., of Chicago, for appellee Harnischfeger Corporation.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

Plaintiff, Kenneth E. Kawa, is appellant in two consolidated appeals from the entry of summary judgment on his negligence count against defendants, Harnischfeger Corporation (Harnischfeger) and Nabisco Brands, Inc. (Nabisco). Harnischfeger moved to dismiss the appeal in which it is appellee on the ground that plaintiff filed his notice of appeal late; the motion has been taken with the case. Nabisco has not moved to dismiss the appeal in which it is appellee, but the issue of this court’s jurisdiction over this appeal is also addressed.

I. JURISDICTION OVER APPEAL FROM SUMMARY JUDGMENT ENTERED IN FAVOR OF HARNISCHFEGER: NO. 1-88-1841

Plaintiff filed a complaint alleging Structural Work Act (Ill. Rev. Stat. 1989, ch. 48, par. 60 et seq.) violations. Defendants’ motions for summary judgment on count I of the first amended complaint alleging the statutory violations was granted. The negligence count of plaintiff’s first amended complaint remained, and Nabisco and Harnischfeger thereafter filed separate motions for summary judgment on this count.

On October 2, 1986, Harnischfeger filed a motion for summary judgment on the negligence count. Summary judgment was entered in its favor on November 6, 1987. Plaintiff filed a motion to reconsider, apparently on December 7, 1987; the motion in the record does not include a date stamp. Plaintiff’s motion was denied on May 16, 1988, but the order stated in handwriting: “Non [sic] Pro Tunc 5/13/88.” The order also granted plaintiff’s motion for leave to file a second amended complaint; the motion had been filed after the entry of summary judgment. The order also stated: “[I]t is further ordered that the court further finds that its order denying the motion to reconsider final and appealable, and that there is no just reason for delay or enforcement of same.”

On June 9, 1988, plaintiff filed a notice of appeal from the November 6, 1987, and May 16, 1988, orders. No notice of filing of this notice of appeal appears in the record. On June 16, 1988, plaintiff filed a second notice of appeal from the same orders; a notice of filing stated that plaintiff had filed a notice of appeal on June 16, 1988. The second notice of appeal appeared to be a xeroxed copy of the first notice of appeal.

In support of its argument that the second notice of appeal was filed late, Harnischfeger contends that the latest date for appeal, even calculating from May 16, 1988 (and thereby ignoring the nunc pro tunc language relating the order back to May 13, 1988), was June 15, 1988, and that according to the notice of filing served on it, the notice of appeal was filed June 16, 1988. Harnischfeger ignores the notice of appeal that was filed June 9, 1988, although it refers to it in its jurisdictional statement.

The first issue raised is whether the timely June 9 notice of appeal was sufficient to vest jurisdiction because no notice of filing the notice of appeal appears in the record.

Supreme Court Rule 303(a) provides that a notice of appeal must be filed within 30 days after the entry of the final judgment appealed from. (134 Ill. 2d R. 303(a).) A notice of appeal filed later than 30 days is insufficient to vest the appellate court with jurisdiction. (Fairfax Family Fund, Inc. v. Couch (1982), 103 Ill. App. 3d 492, 497, 431 N.E.2d 461.) Supreme Court Rule 303(d) provides that the appellant should serve a copy of the notice of appeal and notice of the date of filing upon every other party. (134 Ill. 2d R. 303(d).) But the failure to serve a copy of the notice of appeal upon an opposing party does not deprive the appellate court of jurisdiction because the only jurisdictional step in appealing a final judgment is the filing of the notice of appeal. (Echols v. Olsen (1976), 63 Ill. 2d 270, 274-75, 347 N.E.2d 720; see 134 Ill. 2d R. 301.) An appeal will not be dismissed on the basis that the opposing party was not served with a copy of the notice of appeal if there was no evidence of prejudice to that party. (Echols, 63 Ill. 2d at 275.) A party is not prejudiced by the failure to serve on him a copy of the notice of appeal if the party could file appellate briefs and argue orally. Echols, 63 Ill. 2d at 275; Lachona v. Industrial Comm’n (1981), 87 Ill. 2d 208, 212, 429 N.E.2d 858.

In the instant case, appellee Harnischfeger was not prejudiced by the failure to serve upon it a copy of the June 9 notice of appeal: it received a copy of the second notice of appeal, although it was a nullity (First Finance Co. v. Ross (1965), 64 Ill. App. 2d 474, 479, 211 N.E.2d 588); it filed a brief in this appeal; and it would have had an opportunity to orally argue its position if the case had been scheduled for oral argument. Harnischfeger filed a motion to dismiss the case on the basis that the second notice of appeal was late, but it did not argue that the appeal should be dismissed on the basis that it was not served with a copy of the first notice of appeal. In fact, its motion ignored the first notice of appeal. The June 9 notice of appeal was timely and vested this court with jurisdiction.

But another issue raised concerning this court’s jurisdiction is whether the order appealed from was final because, although the entry of summary judgment was upheld, plaintiff filed a second amended complaint with the court’s permission. Amendment of pleadings in general is governed by section 2 — 616 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 616), and amendments after summary judgment are authorized by section 2 — 1005(g) of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(g)).

The addition of Supreme Court Rule 304(a) language does not render a nonfinal order final (Zimmerman v. 1660 Condominium Association (1984), 126 Ill. App. 3d 71, 73, 466 N.E.2d 1158); the rule merely provides that the language permits a party to appeal from an order that finally disposes of one claim or one party when other issues or claims are still pending (134 Ill. 2d R. 304(a)). A final order either terminates the litigation between the parties on the merits or disposes of the rights of the parties in regard to the entire controversy or some definite part thereof. (In re Marriage of Zymali (1981), 94 Ill. App. 3d 1145, 1147-48, 419 N.E.2d 487.) In the case of a dismissed action, if plaintiff is granted leave to file an amended complaint, the order of dismissal is not final because the cause is still pending and undecided. Zimmerman, 126 Ill. App. 3d at 73.

The same reasoning dictates that an order entering summary judgment is not final if leave is granted to file an amended complaint because the cause is still pending. The second amended complaint was similar to the first amended complaint except that it now was alleged that defendants were negligent for failing to: (1) clear a reasonably safe passageway free of snow- and ice-obscured anchor bolts; and (2) warn plaintiff of the unreasonably dangerous condition of snow- and ice-obscured anchor bolts protruding from the concrete floor. In addition, certain allegations were omitted: (1) defendants allowed snow and ice to accumulate and remain upon the foundation, thereby creating an unreasonably dangerous condition; and (2) defendants failed to remove this snow and ice. The controversy over defendants’ negligence was not finally resolved because the second amended complaint was pending and, therefore, the order appealed from was not final. On this basis, the appeal from the denial of the motion to reconsider and from the entry of summary judgment in favor of Harnischfeger shall be dismissed for lack of jurisdiction.

II. JURISDICTION OVER APPEAL FROM SUMMARY JUDGMENT ENTERED IN FAVOR OF NABISCO: NO. 1-88-3325

Nabisco’s amended motion for summary judgment was granted on October 11, 1988, and the order stated “there is no just reason for delay or enforcement of the order.” A notice of appeal from that order was timely filed on November 9, 1988. Nabisco does not contend that this court has no jurisdiction over this appeal, but the issue is raised because the order did not contain the requisite Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) language.

In Hamer v. Lentz (1987), 155 Ill. App. 3d 692, 695, 508 N.E.2d 324, the order stated only that “[tjhis is a final and appealable order.” The court held that the word final was not the equivalent of the word enforceable in Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) and that, therefore, the order was not appealable. In First National Bank v. Lewis (1987), 163 Ill. App. 3d 160, 162, 516 N.E.2d 552, the following language was also held to be insufficient for an appeal under Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) because it lacked language of finality and appealability: “[t]here is no just reason to delay enforcement of this order.”

In contrast, the order in Lawyers Title Insurance Corp. v. Kneller (1988), 172 Ill. App. 3d 210, 213, 525 N.E.2d 1155, was held to confer appellate jurisdiction even though it did not include the exact Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) language and omitted language of enforceability. The order there stated that “pursuant to Supreme Court Rule, being section 304(a) *** there is no just cause for delaying an appeal from the order.” (172 Ill. App. 3d at 212.) The court held that the order’s citation to the rule constructively fulfilled the technical language requirement.

The order entering summary judgment in favor of Nabisco did not refer to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), finality, or appealability. For this reason, this case is similar to First National, and this court finds that no jurisdiction was conferred on it for this appeal.

Both appeals are dismissed for lack of jurisdiction.

Appeals dismissed.

RIZZI and WHITE, JJ., concur.


author: JUSTICE RIZZI

text:
    DEBBIE LaMANNA et al., Plaintiffs-Appellants, v. G.D. SEARLE AND COMPANY, Defendant-Appellee.
    First District (3rd Division)
    No. 1 — 88—2717
    Opinion filed September 26, 1990.

      Robert F. Lisco, of Lisco & Field, of Chicago (Sidney Z. Karasik, of counsel), for appellants.
    Arlen C. Erlebacher and Barbara M. DeCoster, both of Sidley & Austin, of Chicago, for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff Debbie LaManna (plaintiff), brought a product liability-action against defendant G.D. Searle & Company (defendant). The suit charges that plaintiff was injured and became infertile as a result of an infection caused by a CU-7 Intrauterine Copper contraceptive device (IUD), manufactured by defendant. Plaintiff’s husband, Tom LaManna, joined in the suit as a plaintiff in a separate count for loss of consortium. The trial court applied the discovery rule for determining when the two-year limitation period for filing the action began to run, and entered summary judgment in favor of defendant on the ground that the action was time barred when filed. We reverse and remand.

On August 14, 1981, Dr. Jeffrey Johnson, a gynecologist, fitted plaintiff with the IUD. Prior to the insertion of the IUD, plaintiff was required to and did sign a consent form which stated: “Pelvic infection is reported more frequently among IUD users than non-users. In some cases this can result in infertility.” Plaintiff did not discuss the consent form with Dr. Johnson and was not given any additional information relating to the consent form.

Approximately one year after the insertion of the IUD, plaintiff wished to become pregnant, and in August 1982, the IUD was removed by Dr. Johnson. During the one year or so that the IUD was used, plaintiff experienced no unusual symptoms other than somewhat heavier menstrual bleeding and cramps.

After the IUD was removed, plaintiff had discussions with some of her acquaintances who said that they were having trouble becoming pregnant and they believed that it was because they had used an IUD. Plaintiff was never told what kind of IUD her acquaintances had used. Several months after her IUD had been removed, plaintiff went to see Dr. Jeffrey Lerch, a gynecologist and partner of Dr. Johnson, regarding her inability to become pregnant. Dr. Lerch told the plaintiff that he “felt that there was nothing to be concerned about; he felt that in most cases it takes a year, six months to a year for a woman to become pregnant; that there was nothing to be alarmed about.”

During August 1983, plaintiff and her husband asked Dr. Lerch why she was still unable to become pregnant. Also, plaintiff mentioned to Dr. Lerch that some of her acquaintances who had used an IUD were experiencing problems conceiving, and she asked Dr. Lerch if her use of the IUD may have been responsible for her infertility. Dr. Lerch responded that “every case is different.” At that time, plaintiff had no knowledge of anyone who had suffered permanent injury or infertility due to using an IUD.

At their meeting in August 1983, Dr. Lerch proposed a series of fertility tests. Also, a sperm test was taken and it was determined that plaintiff’s husband was not the reason that plaintiff did not become pregnant. In October 1983, Dr. Lerch performed a test which showed that plaintiff’s Fallopian tubes were blocked. On November 1, 1983, Dr. Lerch performed a laparoscopy to ascertain the extent of the blockage of the Fallopian tubes.

On November 22, 1983, plaintiff and her husband met with Dr. Lerch to discuss the results of the laparoscopy. At her deposition, plaintiff testified:

“Q. What did Dr. Lerch tell you about the results?
A. That the tubes were definitely blocked, they were crimped. That there was an infection, inflammatory infection. That if we left it like this, my chances of getting pregnant were really low. That if we did surgery, I would have a 50 percent chance.
Q. When he said low, did he give you a figure?
A. 20 percent.
Q. And was it your understanding that even if surgery was performed, it would still be just a 50/50 chance?
A. Yes.
Q. Did he tell you what had caused your tubes to become blocked?
A. Possibility the IUD had caused an infection. There was an infection.
Q. You also talked about in addition to them being blocked that they were crimped I think you said?
A. That would be like the same thing. They’re blocked, they’re crimped.
Q. So that was part of the same process?
A. Right.
Q. At this November 22, 1983 visit, did you discuss with Dr. Lerch how an IUD might have caused your tubes to be blocked?
A. No, just an infection. It causes an infection.”

At his deposition, plaintiff’s husband stated that Dr. Lerch said “the IUD could cause an infection.” Plaintiff’s husband further stated as follows:

“Q. Did he give you any information about how an IUD would cause an infection?
A. No, he did not.”

Plaintiff underwent surgery on December 7, 1983, and the scar tissue was removed from her Fallopian tubes. After the surgery, Dr. Lerch told plaintiff that the surgery had gone well and that her chances of becoming pregnant had increased to 60% to 65%. Plaintiff, however, still did not become pregnant. As a result, in September 1985, plaintiff decided to consult a fertility specialist, Dr. Mariano Perez-Pelaez. At her deposition, plaintiff testified:

“Q. Have you had any conversations with Dr. Perez-Pelaez about the possibility that your infertility is caused by the IUD?
A. Yes.
Q. When do you recall the first such discussion?
A. The time we went to go see him and he had reviewed the records and stuff like that and he just came out and said that’s why you are not getting pregnant, the IUD. You had an IUD.
Q. Was that the first visit with Dr. Perez-Pelaez?
A. First or second.”

Dr. Perez-Pelaez performed surgery on the plaintiff in October 1985. When plaintiff was asked at her deposition if Dr. Perez-Pelaez told her what he found after the surgery, she stated:

“A. Yes, there was scar tissue still and I don’t know the technical words, but there was a hard thing around the ovaries that he took, put holes in and it was draining, and he did that.
Q. Was this additional scar tissue that had built up since the last surgery, do you know?
A. Yes.
Q. Did you have any discussion with Dr. Perez-Pelaez about what was causing the problem with the ovaries, what was causing this hard cover to form?
A. No. He felt it was the IUD.
Q. Was that interfering with ovulation, was that your understanding?
A. Yes.
Q. Are you still seeing Dr. Perez-Pelaez today?
A. No.
Q. Are you seeing Dr. Miller?
A. Not at this time, no.
Q. For what period of time did you treat with Dr. Perez-Pelaez?
A. Five months, six months, something like that.
Q. After the surgery, what did Dr. Perez-Pelaez recommend that you do?
A. Go home and get pregnant.
Q. Did he prescribe any medication of any kind?
A. I don’t think so. I don’t really recall.
Q. Did he suggest that you take your temperature or do anything like that?
A. No.
Q. Why did you stop going to Dr. Perez-Pelaez?
A. He built my hopes up so high that I just didn’t believe in him any more.
Q. Was that after the surgery you mean?
A. Right. After surgery he came up to me and said 100 percent. He said just go home and get pregnant. I don’t even worry about you no [sic] more.
Q. How did you come to start seeing Dr. Miller, were you referred to him by somebody?
A. My husband knew about him.
Q. Do you know how your husband learned of him?
A. I think a friend had been to school with him and said that he was really good.
Q. When did you first start seeing Dr. Miller?
A. Some time in late ’85.
PLAINTIFF’S ATTORNEY: No. Last visit with Perez-Pelaez would have been in ’85, so probably ’86.
A. ’86, I’m sorry.
* * *
Q. Has Dr. Miller indicated to you why he thinks you have been unable to become pregnant?
A. He speculated, you know, the IUD.”

On February 13, 1986, plaintiff filed the present lawsuit, and her husband filed a count for loss of consortium. Defendant filed a motion for summary judgment on the ground that the action was time barred because it was not filed within two years after the plaintiff knew or reasonably should have known that she was injured and that the injury was wrongfully caused.

When it entered summary judgment in favor of the defendant, the trial court stated:

“THE COURT: All right. The parties do not dispute that this suit is governed by the statute of limitations in section[s] 13— 202 and 13 — 203, providing for a two-year statute of limitations for the personal injury. Plaintiffs’ cause of action for loss of consortium obviously must be commenced within the same period of time as the action as to the injury under 13 — 203. The real question here is whether the Court can state as a matter of law when the statute had commenced running. The implication of this motion, obviously, is to the discovery rule. The statute of limitations under a discovery rule concept begins to run when the plaintiff knows or reasonably should know of the injury and also knows or reasonably should know that it was wrongfully eause[d].
* * *
*** [Tjhere isn’t any question of fact in that Debbie La-Manna was certainly possessed of sufficient information concerning her injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct was involved on and possibljy] before November 22nd, 1983.
It was the whole purpose for her going to see Dr. Lerch to inquire, and she did inquire. On that date, Dr. Lerch informed her of the possible connection between the IUD and the infection that she suffered.
The statute of limitations at the very latest commenced running on that day as a matter of law. That means that the action filed by her is time barred. The defendant’s motion for summary judgment is granted.”

We disagree with the entry of summary judgment in favor of the defendant. Product liability actions must be filed within two years after “a party knows or reasonably should know both that an injury has occurred and that it was wrongfully caused.” (Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 171, 421 N.E.2d 864, 868; Ill. Rev. Stat. 1989, ch. 110, par. 13 — 202.) Here, the critical issues are (1) when the plaintiff reasonably should have known that her injury was wrongfully caused and (2) whether there is only one conclusion that can be drawn from the undisputed facts. The injury, for our purposes, is either the infection or the infertility.

Infections and infertility are commonplace. Neither has to be wrongfully caused. Moreover, a foreign object, such as an IUD, in the body may cause an infection without there being anything wrong with the foreign object. Indeed, in the present case, prior to the insertion of the IUD, plaintiff was required to and did sign a consent form which warned that pelvic infections were a possible consequence of its use and that such infections could result in infertility. It was therefore made clear to the plaintiff that infection and infertility could be caused by the use of the IUD without being wrongfully caused. Moreover, in view of the consent form, it is a reasonable assumption that the position of the defendant is that an infection and infertility could be caused by the use of the IUD without being wrongfully caused.

Under the circumstances, Dr. Lerch’s statement to the plaintiff on November 22, 1983, that there was a “[possibility the IUD had caused the infection,” would not have imparted to the plaintiff knowledge that the infection was wrongfully caused. Plaintiff may very well have believed that the IUD may have possibly caused an infection but that the infection was idiosyncratic rather than wrongfully caused.

In addition, we believe that plaintiffs actions prior to the November 22, 1983, meeting with Dr. Lerch merely indicate that plaintiff was attempting to discover the cause of her condition, without reasonably knowing that her condition was wrongfully caused. When one merely seeks to discover the cause of a condition, it does not mean that the person reasonably knows or reasonably should know that the condition was wrongfully caused.

In reaching our conclusion, we do not suggest that the limitation statute is not triggered until a plaintiff gains actual knowledge of an actionable wrong or negligent conduct. (See Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 416, 430 N.E.2d 976, 980.) It is obvious, however, that “when a party knows or reasonably should know that her injury was wrongfully caused” does not mean, “when a party is suspicious that her injury was wrongfully caused.” Plainly, suspicion is not the same as reasonably knowing. Thus, the limitation statute is not triggered during the period that a party is attempting to discover whether her injury is wrongfully caused, but rather, it is triggered at the point when the party reasonably should have known that her injury was wrongfully caused.

The point at which a party reasonably should have known that an injury was wrongfully caused is a question of fact, unless only one conclusion can be drawn at some particular point from undisputed facts. (Nolan v. Johns-Manville Asbestos, 85 Ill. 2d at 171, 421 N.E.2d at 868-69.) In determining if there is some point when a party reasonably should have known that her injury was wrongfully caused as matter of law, a court should not merely focus on a single statement. Rather, the determination must be made by considering all the circumstances that existed and occurred with respect to the statement, including the plaintiff’s reaction or response and what the plaintiff did after hearing the statement. This is especially true when the transcript or document that is perused does not adequately reflect either the vein in which the statement was made or the reaction of the listener so that it is not clear what message was imparted. In addition, courts must bear in mind that unless a clear definitive diagnosis is given by a doctor, in many instances it is a compilation or a series of statements, events or circumstances and thoughts that changes mere suspicion to reasonably knowing that a patient’s condition was wrongfully caused. This is especially true when the subject matter involves sensitive and delicate types of physical impairments such as female pelvic infections and infertility.

Also, in determining if there is some point when a party reasonably should have known that her injury was wrongfully caused as a matter of law, the court should bear in mind that it cannot presume that the plaintiff would sit on her rights. Rather, the pleadings, depositions and affidavits must be construed by the court most liberally in favor of the conclusion that the plaintiff did not sit on her rights. See Aspegren v. Howmedica, Inc. (1984), 129 Ill. App. 3d 402, 403-04, 472 N.E.2d 822, 824 (holding: “Summary judgment is appropriate only where the pleadings, depositions and affidavits, when construed most strongly against the movant and most liberally in favor of the opponent, show that judgment should be granted as a matter of law”).

Moreover, the whole record must be considered to determine whether at some particular point the plaintiff reasonably should have known that her injury was wrongfully caused as a matter of law.Here, the record plainly shows that as late as October 1985, a fertility doctor, Dr. Perez-Pelaez, believed that plaintiff was not infertile, wrongfully caused or otherwise. In October 1985, Dr. Perez-Pelaez told the plaintiff: “Go home and get pregnant.” He also said: “100 percent. *** [Jjust go home and get pregnant.” Surely, as of that point in time we cannot say that plaintiff reasonably should have known that she was infertile if the fertility doctor believed that she was not infertile.

In the present case, since the action was filed on February 13, 1986, summary judgment should not have been entered unless the only conclusion that could be reached is that plaintiff knew or should have reasonably known that her injury was wrongfully caused more than two years prior to February 13, 1986. Based upon a review of the record as a whole, we believe it is reasonable to conclude the plaintiff did not know and should not have reasonably known that her injury was wrongfully caused until sometime after her meeting with Dr. Perez-Pelaez in October of 1985. This conclusion is just as reasonable as the hypothesized conclusion that she knew or reasonably should have known that her injury was wrongfully caused on November 22, 1983, or sooner, as defendant claims and as found by the trial court as a matter of law. Since more than one conclusion may be drawn, the issue is one of fact to be determined by the trier of fact. Summary judgment, therefore, should not have been entered. Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 171-72, 421 N.E.2d 864, 869; Ravin v. A.H. Robins Co. (1989), 182 Ill. App. 3d 46, 57, 538 N.E.2d 164, 171.

Accordingly, the summary judgment in favor of the defendant is reversed and the case is remanded for further proceedings.

Reversed and remanded.

WHITE and FREEMAN, JJ., concur.