author: JUSTICE WOODWARD

text:
    MILEX PRODUCTS, INC., Plaintiff-Appellee, v. ALRA LABORATORIES, INC., Defendant-Appellant.
    Second District
    No. 2—91—1411
    Opinion filed November 13, 1992.
    Rehearing denied December 18, 1992.

      Steven M. Kowal, of Burditt, Bowles & Radzius, Ltd., of Chicago (Julian Johnson, of counsel), for appellant.
    Goble & Axelrod, of Highland Park (Roger C. Goble, of counsel), for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Plaintiff, Milex Products, Inc. (Milex), filed a complaint against the defendant, Alra Laboratories, Inc. (Alra), seeking damages for breach of contract and a declaratory judgment. Following a bench trial, the trial court entered judgment in favor of Milex in the amount of $3.27 million plus costs of suit. Alra appeals raising the following issues: whether the contract between the parties was invalid because it lacked an essential term; whether there was an obligation to negotiate price in good faith and a failure to do so by either party; whether the trial court erred in assessing damages; and whether certain evidence was properly excluded by the trial court.

By way of background, Milex, founded in 1937, originally manufactured contraceptive diaphragms and vaginal jellies. By 1985, its business had expanded to include a comprehensive line of obstetrical and gynecological specialties with a high concentration in the area of infertility. Alra opened officially as a manufacturer of prescription drugs in 1982. It also manufactures some over-the-counter drugs.

Hymen Milgrom, president of Milex, testified that around 1980 Milex became aware that the patent on the drug clomid had or was about to expire. Clomid is a medication that helps induce ovulation. The active ingredient in clomid is clomiphene citrate. Milex was interested in marketing a clomid-type drug and hired Sol Disman of S & D Associates to survey the market that clomid or other infertility drugs had which were coming off patent. Mr. Disman also recommended Alra as the manufacturer of the proposed new product.

Milgrom testified that in order to market the proposed new drug it was necessary to file an Abbreviated New Drug Application (ANDA) with the Food and Drug Administration (FDA). Unlike the innovator of a drug, who must show the effectiveness, as well as the lack of unknown ill effects, an applicant for an ANDA basically only needs to show that the new product contains the equivalent active ingredients and that the product works as well as the innovator’s product. Prior to filing for the ANDA, it was necessary to determine who was going to manufacture the product, because the ANDA required specific information as to how the product is made, where it is being made, what equipment is used, and all the controls that go into the manufacturing process.

Milgrom further testified that in the fall of 1984 he and Disman met with Baldev Raj Bhutani, president of Alra, at Alra Laboratories. Bhutani gave a brief history of Alra, and the parties then toured the facilities. Milgrom asked Bhutani if Alra had the capacity to produce two million tablets per year, which was the amount Milex estimated it could sell. Bhutani assured Milgrom that Alra was equipped to produce such an amount. However, Alra was not equipped to do the strip packaging. Milgrom assured Bhutani that there were trade shops that would perform that part of the process. The parties discussed the difficulty of determining a price at that time given the length of time the ANDA procedure took and being in the midst of an inflationary period. Bhutani told Milgrom that he was very interested in doing business with Milex.

Milgrom testified further that after the decision was made to go with the clomiphene citrate-type product another meeting was held at the Alra Laboratories in March 1985. In addition to Milgrom, Disman and Bhutani, Robert Shaw, vice-president of Milex, also attended the meeting. Again Bhutani expressed interest in doing business with Milex and stated he would prepare a letter outlining what services and at what cost he could perform the services for Milex. Although Bhutani questioned Milex’s ability to market two million tablets per year, Milgrom assured him that Milex’s marketing research confirmed that Milex had that ability and that Bhutani should not be concerned with Milex’s ability to take or pay for that amount of tablets.

Milgrom further testified that Alra’s research proposal was accepted by Milex on April 2, 1985. The proposal included a confidentiality agreement that forbade disclosure of the formulation work outside of Milex without the written consent of Alra’s president. The proposal also provided terms and conditions for Alra’s formulation of the product, as well as for the payment for Alra’s costs incurred during the formulation process. Paragraph seven provides as follows:

“7. Alra will have the exclusive right to contract manufacture this product for Milex Products Inc. (at a negotiated price) for two years from the initial marketing of this product by Milex;”

(It is useful to note at this time that although Milex originally agreed to pay Alra approximately $20,000 for 6 months’ work, Alra took 18 months and billed Milex over $60,000, which Milex did pay. Fortunately, that is not at issue in this case although it does tend to shed some light on the subsequent actions of the parties.)

Milgrom testified that by early 1987 all of the analytical work was finished and submitted to the FDA. In December 1988, Milex received certification from the FDA to manufacture milophene, a clomiphene citrate product. The certification specified Alra as the manufacturer of milophene. At this point in time, Milex had paid all of Alra’s invoices which amounted to over $70,000. Up to this point, there had been no discussion of production or pricing.

Milgrom testified further that in December 1988 he met with Bhutani at Bhutani’s office to discuss pricing of the product. Bhutani informed Milgrom that it was not economically feasible for Alra to produce two million tablets and that there was a problem of products liability insurance. According to Bhutani, the only way he would undertake production would be if Milex allowed him to sell the tablet through his own marketing setup. Milgrom assured Bhutani that the insurance was not a problem since Milex would pay for the insurance. However, according to Milgrom this was the first time Bhutani had stated that two million tablets were not enough. Milgrom told Bhutani that his proposal was unfair and asked him to reconsider. A second conversation took place on December 28, 1988, at a Chinese restaurant at the Old Orchard Shopping Center. The meeting was attended by Milgrom, Bhutani, Shaw and Disman. Milgrom explained that Milex was anxious to get the product on the market. The insurance was not an issue any more and would be handled separately. He reminded Bhutani that two million tablets was the amount mentioned in all of the previous discussions and that Bhutani had never told them two million was not adequate. Milgrom attempted to get Bhutani to name a price per piece. Bhutani stated that he would send a letter outlining his position.

The January 12, 1989, letter from Bhutani contained the following pertinent paragraphs:

“5. AS PER CONTRACT TO MANUFACTURE ARRANGEMENT, SEVERAL OPTIONS ARE AVAILABLE.
6. (a) MILEX PURCHASE AND/OR MODIFY THE MANUFACTURING EQUIPMENT AND INSTALL AT ALRA. APPROXIMATELY COST $55,000. ALRA WILL DEDUCT 10% FROM EACH INVOICE TOWARD THIS EXPENSE UNTIL ALL $55,000 IS PAID UP.
(b) COST OF MANUFACTURING WILL BE PRICED AS $45/HR. — PRODUCTION; $60/HR-QUALITY CONTROL AND $100/HR — FDA RELATED WORK. THE COST OF SUPPLIES WILL BE CHARGED AT COST PLUS 20% FOR OVERHEAD TO COVER HANDLING/ACCOUNTING ETC.
(c) ANOTHER WAY OF PRICING COULD BE $20 PER 1000 TABLETS WHICH COMES TO .60 PER PACK OF 30 TABLETS, PLUS COST OF SUPPLIES AT COST PLUS 20% FOR OVERHEAD TO COVER HANDLING/ACCOUNTING ETC.
7. ALRA WILL EXPECT A MINIMUM OF $100,000/YR FROM MILEX FOR THIS PRODUCT WHICH COMES TO APPROX. 10 WORK ORDERS PER YEAR. IF MILEX DOES NOT GENERATE THIS MINIMUM BUSINESS. THEY WILL STILL BE BILLED FOR $25,000 PER 3 MONTHS OR $16,667 PER TWO MONTHS PAYABLE IN ADVANCE.
8. THIS MINIMUM REQUIREMENT LISTED IN ITEM 7 AND EQUIPMENT EXPENSES LISTED IN ITEM 6a MAY BE WAIVED IF MILEX WILL ALLOW ALRA TO SELL TO GENERIC DISTRIBUTORS, MILOPHENE UNDER ALRA’S LABEL. ARRANGEMENTS COULD BE MADE SUCH THAT ALRA WILL NOT COMPETE DIRECTLY WITH MILEX. UNDER THIS ARRANGEMENT ALRA WILL NOT PRIVATE LABEL FOR ANYONE ELSE.
9. IF MILEX ALLOWS ALRA TO EXCLUSIVELY DISTRIBUTE MILOPHENE UNDER ALRA’S LABEL AND UNDER OTHER PRIVATE LABELS.
THEN THE MINIMUM REQUIREMENTS LISTED IN ITEM 7 AND EQUIPMENT EXPENSES LISTED IN 6a MAY BE WAIVED. IN ADDITION MILEX WILL RECEIVE UP TO 50% OF ALRA’S GROSS PROFITS FOR THIS PRODUCT. PAYABLE EVERY QUARTER.”

On cross-examination, Milgrom testified that the two million tablet figure came as a result of marketing research. Milex was aiming at $3 per tablet. Milgrom had problems with Bhutani’s proposal which called for 10 work orders per year or a minimum of $100,000 because at two cents per tablet (Item 6c), five million tablets would have to be sold, not the two million the parties had discussed. Milex never suggested a specific price. According to Milgrom, Milex is not presently marketing milophene or any other clomiphene citrate product.

Robert Shaw testified that he is vice-president and owner of 50% of Milex. He confirmed Milgrom’s testimony as to the events leading up to the signing of the research proposal from Alra. He was also present at the meeting with Bhutani at the Chinese restaurant late in December 1988. Approximately two weeks later (January 12, 1989), he received a fax from Bhutani. After speaking to Milgrom, Shaw called Bhutani and informed him that the proposal was unacceptable especially in light of the fact that it contained stipulations which he had already been told very specifically at the December meeting were unacceptable. Shaw demanded that Bhutani give Milex a price per tablet with no “hookers.” On or about March 2, 1989, he received another fax from Bhutani; however, it reflected no changes in his position. Shaw again called Bhutani and told him that unless he was willing to give Milex a piece price with no strings attached, Milex would look for another manufacturer. More letters were exchanged, but late in March or early in April 1989 Milex began to seek another manufacturer.

Shaw testified further that late in April Milex reached an agreement with Butler, another manufacturer, to manufacture milophene. However, Butler was purchased by another firm and ceased the work for Milex at the end of 1989. Milex proceeded with Medicopharma, another manufacturer in approximately May 1990. However, both Butler and Medicopharma had difficulty reproducing Alra’s results. In order to obtain another ANDA, all of the chemistry work had to be resubmitted. In addition, all of the work originally done by Alra had to be redone by the new manufacturer because they were using different equipment and they might be using different procedures. Shaw denied that Medicopharma had received any information from Alra’s master drug file.

On cross-examination, Shaw testified he did not understand Bhutani’s proposal to be a piece price because the offer specified other things that had already been rejected by Milex. On the other hand, had Bhutani proposed 10 cents per tablet (what the cost per tablet would have been if Milex had agreed to the entire proposal, which included insurance), Milex might have paid it. One of the major oppositions Milex had to the proposal was Alra’s selling the tablets to other people. Shaw understood item nine to present a different option only in that it relieved Milex of certain of the other requirements.

Shaw further testified that in January 1990 he contacted several companies as potential suppliers. One supplier, Korsch, quoted one cent per tablet, and Medicopharma quoted less than one cent per tablet.

Eileen Mele, a vice-president of Marsh McLennan, an insurance brokerage house, testified that in mid-October 1989 she was contacted by Milex to procure products liability insurance for milophene. Mr. Shaw asked her to name Alra as a named insured on the policy. She was able to obtain a company to place the insurance with and a price quote and so informed Mr. Shaw. Both Milgrom and Shaw asked her to contact Alra, but none of her calls were returned. When she did reach Bhutani, she told him that she had learned from Milex that he was having difficulty securing liability insurance and that she could assist him. However, when she informed Bhutani that she would not know the cost until the application was completed and reviewed, he told her he did not need her.

On cross-examination, Mele testified that she had been unable to obtain any co-insurance and would need to sell Alra a new policy. On redirect examination, she testified that Shaw and Milgrom had told her that Milex would pay Alra’s premium.

Over the objection of the defendant, Fredric Price, a consultant to pharmaceutical businesses, testified that he was retained by Milex to assess the damages incurred as a result of not having a clomiphene product on the market. He began by gathering market research on the two clomiphene products presently on the market to determine such things as the prices at which the products were sold, the number of prescriptions in the marketplace, and the average size of a prescription in order to determine the basic economic structure of the clomiphene citrate market. One of the sources he used was an audit put out by IMS, the largest data collection and information business in the pharmaceutical industry. An audit takes a representative sample, and assuming that the sample is done correctly and that the sample size reflects the same geographic and demographic values as the population at large, the sample size is then projected to a national average. Another source, Price Alert, published by First Data Corporation, provided him with pricing data. Price Alert is considered to be an authoritative source of information in the pharmaceutical industry. The prices in Price Alert are a mixture of manufacturers’ and wholesale prices. Price Alert also provides a direct price for 10% to 20% of the products it lists. The direct price is the price at which on an average, including all of the volume discounts that a pharmaceutical company gives to any customer, is its average price to all classes of trade.

Price further testified that in trying to determine Milex’s losses he examined what happened in the marketplace when a product loses patent status and competitors come in to the market with generic copies. He looked at a variety of products under many different kinds of scenarios over a wide period of time. According to Price, one pattern in pricing was that the innovator company almost always raised the price of its product prior to the expiration of its patent.

Using the information from a spread sheet he produced, Price testified that his figures for the two other clomiphene citrate products without Milex in the market for 1986 through one-half of 1990 were based upon audits while his figures for the second half of 1990 and 1991 through 1993 reflected a forecast. Price also determined an average wholesale price and total prescriptions. Using the same methodology and allowing three months following the approval of the ANDA to accomplish the administrative things necessary to launch a new product, Price assumed Milex’s product would be introduced on April 1, 1989. Thus, his figures for Milex would include three-quarters of 1989 plus 1990 through 1993. He then calculated the same information for the original two products singly and combined after Milex was in the market. That gave him the impact of Milex on the marketplace. He further took into consideration price discounts that were offered. and what he forecast for the other years for all three products. Price further assumed in his calculations that there would be no market growth although some data suggested there would have been. Price calculated Milex’s lost sales by taking the number of prescriptions it would have sold times the average wholesale price of a unit of sale, adjusted for the fact that a unit of sale was not in fact three times the size of the prescription. That amount is then reduced by 50% as the pretax margin, which is the cost of sales plus marketing expenses subtracted from sales. Price also added $100,000 in additional expenses (for each year except 1993) which would have been incurred as a result of not having the lost sales, such as the cost of hiring someone like Price. He calculated the loss per year and arrived at a cumulative figure for a total loss of $7,481,000 from 1989 through 1993. Based upon the different scenarios he put together, in Price’s opinion, Milex lost between $7.5 and $11.5 million. His calculations did take into consideration expenses Milex had already paid out to Alra.

On cross-examination, Price testified that his projections would change if a fourth company entered the marketplace for the years 1991, 1992 and 1993. Price arrived at Milex’s 10% of the market share as a result of looking at market share gains made by 20 to 30 other drugs with similar characteristics. He did not have statistical information on the success of Milex’s versus its competitors’ marketing plans.

Bertrand J. Laprade, director of regulatory affairs at Alra and a pharmacist, testified that he reviewed one of the scenarios put together by Mr. Price and concluded that Price’s assessment of damages was overstated. While he verified that Price’s average wholesale price was correct, he determined that in fact a pharmacist actually pays 14% less than the average wholesale price or actual acquisition cost. In addition, the distributor generally gets between 17% and 20% for its services. Using Price’s figures and the two discounts, Laprade concluded that in 1991 Milex would have sold $808,331 worth of tablets.

On cross-examination, Laprade agreed that Milex’s product would have generated sales. He admitted that if Price’s wholesale price and prescription figures were accurate, the validity of his (Laprade’s) calculations would be called into question. Laprade did not use Price Alert or IMS data. On redirect examination, Laprade testified that he did use the Annual Pharmacists Reference Book, which is a price book and is considered authoritative by pharmacists.

Baldev Raj Bhutani, president of Alra, testified that in the fall of 1984 he was contacted by Sol Disman regarding a clomiphene citrate project. In November or December 1984, Bhutani met with Milgrom and Disman in his office at Alra. According to Bhutani, Milgrom and Disman spent most of the meeting convincing him that Milex was a reliable company and wanting to involve him in the project. After a tour of the plant, Bhutani told Milgrom that he would consider getting involved. In January 1985, a proposal from Alra was sent to Dis-man. Another meeting at Alra took place late in February or in March 1985 attended by Disman, Milgrom, Shaw and Bhutani. More changes to the proposal were made. Finally, a third proposal was submitted to Milex and signed by both parties.

Bhutani testified that in November 1988 Milgrom came to his office for a meeting. They discussed how Milex wanted to market the tablets but did not discuss pricing. A second meeting was held in December 1988 attended by Milgrom, Shaw, Bhutani, Disman and Arnold Winfield, also of S & D Associates. Several matters were discussed at the meeting. According to Bhutani, two million tablets was brought up as a starting point. Bhutani expressed his concern over the insurance issue, which he had brought up several times between 1985 and 1988. Several alternatives on the insurance question were proposed by Milex.

Bhutani further testified that he faxed a proposal to Milex. His proposal contained several options because he did not know what was or was not acceptable on the basis of the December meeting. He also believed that Milex had not as yet come up with a marketing plan. Item 6c of the proposal contained a unit price. It was his understanding that he had given Milex all of the available options. The $55,000 equipment option was for an additional granulation and blending area to keep the clomiphene citrate away from other products being manufactured because of its harmful effects. After two weeks, when he had had no response from Milex, he called Milgrom, who was not available. The call was returned by Shaw, who told him that they did not like the proposal, that it was “highway robbery,” and finally hung up on Bhutani. After that telephone call, a series of letters were exchanged between the parties which culminated in Milex requesting the return of certain materials Milex had purchased from Alra and threatening legal action unless they were returned. Alra, on the other hand, questioned Milex’s knowledge of the research aspects of prescription pharmaceuticals and reminded Milex of the confidentiality agreement the parties had signed.

Bhutani further testified that the agreement Milex entered into with Butler called for a higher price for the product than he had quoted. According to Bhutani, he only charged half his normal research fee and was hoping to recoup Alra’s cost over the five-year period in the proposal.

Following closing arguments, the trial court found that the parties had entered into a valid contract on or about April 2, 1985; that Alra had an obligation to negotiate a price for the clomiphene citrate product fairly and in good faith; that Alra failed to act in good faith and failed to negotiate a price for manufacturing the product and deliberately rather than inadvertently added unreasonable terms and conditions so as to preclude a reasonable negotiation; and that Milex had acted in good faith in its negotiations with Alra. The trial court also found that Milex had been damaged substantially by Alra’s failure to negotiate in good faith and that Price was a very credible witness whose opinion was not based upon guess or conjecture but upon fact. The trial court noted that in assessing damages it had adopted the lowest figure contained in the various ranges presented. Judgment was entered for Milex as stated above. This appeal followed.

Alra contends, first, that the trial court erred in finding that the parties entered into a valid contract on April 2, 1985, since, because the contract did not provide a price, it was void and unenforceable. A contract may be enforced even though some contract terms may be missing or left to be agreed upon, but if essential terms are so uncertain that there is no basis for deciding whether the agreement has been kept or broken, there is no contract. Academy Chicago Publishers v. Cheever (1991), 144 Ill. 2d 24, 30.

Regarding price, the April 2, 1985, contract provided as follows:

“Alra will have the exclusive right to manufacture this product for Milex Products Inc. (at a negotiated price) for two years from the initial marketing of this product by Milex.” (Emphasis added.)

Section 2—305 of the Uniform Commercial Code (Ill. Rev. Stat. 1985, ch. 26, par. 2—305) provides in pertinent part as follows:

“(1) The parties if they so intend can conclude a contract for sale even though the price is not settled. In such a case the price is a reasonable price at the time for delivery if
(a) nothing is said as to price; or
(b) the price is left to be agreed by the parties and they fail to agree; or
(c) the price is to be fixed in terms of some agreed market or other standard as set or recorded by a third person or agency and it is not so set or recorded.
(2) A price to be fixed by the seller or by the buyer means a price for him to fix in good faith.
(3) When a price left to be fixed otherwise than by agreement of the parties fails to be fixed through fault of one party the other may at his option treat the contract as cancelled or himself fix a reasonable price.
(4) Where, however, the parties intend not to be bound unless the price be fixed or agreed and it is not fixed or agreed there is no contract.”

Alra argues that since price was never discussed until the ANDA was approved, the evidence established that the parties did not intend to be bound until the price was established. We disagree.

According to the testimony, the question of price had come up at the very beginning of the negotiations which led up to the contract of April 2, 1985. Both Milgrom and Shaw testified that the subject of price was discussed at the two meetings prior to the signing of the April 2, 1985, contract and that the parties agreed that it would be too difficult to set a price at that time. In particular, Shaw testified that Bhutani himself brought up the fact that it would be difficult for him to set a price at that time, to which, given the inflationary period, they had all agreed. Moreover, the contract prepared by Alra refers to a “negotiated price.” Thus, we are of the opinion that there was sufficient evidence from which the trial court could conclude that the parties did intend to conclude the contract even in the absence of a settled price.

The cases relied on by Alra are distinguishable: A/S Apothekernes Laboratorium for Specialpraeparater v. I.M.C. Chemical Group, Inc. (7th Cir. 1989), 873 F.2d 155 (letter of intent provided that it was subject to concluding an agreement of sale acceptable to the board of directors, who then refused to approve the sale); Feldman v. Allegheny International, Inc. (7th Cir. 1988), 850 F.2d 1217 (the letter of intent, sought to be enforced, stated on its face that it was not binding); Quaker State Mushroom Co. v. Dominick’s Finer Foods, Inc. (N.D. Ill. 1986), 635 F. Supp. 1281 (court determined that there was a complete failure of understanding between the buyer and seller as to the price); and Academy Chicago Publishers v. Cheever (1991), 144 Ill. 2d 24 (the agreement between the parties could not be enforced due to several critical omissions).

We conclude, therefore, that the trial court did not err in determining that there was a valid contract between the parties.

Alra contends, next, that the trial court’s finding that Alra failed to negotiate a price in good faith was against the manifest weight of the evidence.

The obligation to negotiate in good faith has been generally described as preventing one party from renouncing the deal, abandoning the negotiations or insisting on conditions that do not conform to the preliminary agreement. (A/S Apothekernes Laboratorium, 873 F.2d at 158.) For instance, a party might breach its obligation to bargain in good faith by unreasonably insisting on a condition outside of the scope of the parties’ preliminary agreement, especially where such insistence is a thinly disguised pretext for scotching the deal because of an unfavorable change in market conditions. (873 F.2d at 158.) The full extent of a party’s duty to negotiate in good faith can only be determined, however, from the terms of the letter of intent itself. 873 F.2d at 158.

Instead of a letter of intent, we are dealing with the contract between the parties. The contract made no mention of insurance, and there was testimony from both Milgrom and Shaw that the subject of insurance was never raised until the meeting in December 1988. Milgrom testified that Bhutani assured him that Alra’s facilities were adequate to manufacture the proposed product. Milgrom also testified that no amount other than two million was ever discussed as far as the number of tablets to be manufactured by Alra yearly. There was no suggestion either written or oral that Alra market the product on its own or in conjunction with Milex unless Milex ceased to do so. We agree that the duty to bargain in good faith does not prohibit a party from bargaining to its own economic advantage. (Phoenix Mutual Life Insurance Co. v. Shady Grove Plaza Limited Partnership (D. Md. 1990), 734 F. Supp. 1181, 1190.) However, it is not an unreasonable inference that with Milex “locked in” to Alra as the manufacturer, Bhutani tried to take advantage of the situation to force Milex to accept terms that had not been contemplated in the original contract and were not ecomonically feasible for Milex.

We conclude that the trial court did not err in determining that Alra failed to negotiate in good faith.

Alra contends, next, that the trial court erred in assessing Milex’s damages. Alra offers several arguments on this point.

First, Alra argues that damages should not have been awarded since the contract provided that Alra would not be responsible for consequential damages. The contract specifically provided as follows:

“Alra will complete this project within 6 months after this proposal is accepted and supplies are made available for the work to begin. Alra assumes no liability for any formula changes by Merrell Dow during this period or for any delay in completion of this project due to causes beyond its control, such as acts of God or interruption of services or supplies, and will not be responsible for any consequential damages.”

A contract must be interpreted not merely by reference to particular words or isolated phrases but by considering the contract as a whole. (Shelton v. Andres (1985), 106 Ill. 2d 153.) Alra’s sole conclusion (unsupported by authority) is that a reasonable inference from the language is that the above-quoted provision applies to the entire contract just as the confidentiality requirement applied at any time during the course of the contract. However, unlike the reference to damages, the confidentiality portion of the agreement was contained in a separate paragraph only dealing with confidentiality whereas the language as to damages was included in the paragraph dealing with the length of the research proposal. We are of the opinion that a more reasonable conclusion would be that the language pertaining to damages was limited to the subject of the paragraph in which it was included.

Secondly, Alra argues that the damages for lost profits were not within the contemplation of the parties. Lost profits will be allowed only if: their loss is proved with a reasonable degree of certainty; the court is satisfied that the wrongful act of the defendant caused the loss of profits; and the profits were reasonably within the contemplation of the defaulting party at the time the contract was entered into. (Spangler v. Holthusen (1978), 61 Ill. App. 3d 74, 81.) When the profits which are sought are those arising out of the breached contract, those profits are considered one of the elements of the contract and are presumed to have been within the contemplation of the defaulting party at the time he entered into the contract; they are recoverable if proved with reasonable certainty. (Spangler, 61 Ill. App. 3d at 81.) “ ‘However, when the profits sought are those which would have arisen only out of a collateral transaction, not only must these profits be proved with reasonable certainty, but also it must be shown that they were reasonably made within the contemplation of the defaulting party when the contract was made.’ ” 61 Ill. App. 3d at 81, quoting Rivenbark v. Finis P. Ernest, Inc. (1976), 37 Ill. App. 3d 536, 538-39.

In Spangler, Holthusen, a land developer, entered into an installment contract with the Spanglers for the purchase of a farm for $140,000. Holthusen then entered into an agreement with a third party to sell his interest in the farm for $293,250. When the initial transaction failed to be consummated, Holthusen sued the Spanglers seeking the lost profit from the second transaction. This court held that it was not sufficient that the Spanglers knew that Holthusen was in the land development business and that without knowledge of the collateral transaction the Spanglers could not be held responsible for the lost profit from that transaction.

The situation in the case at bar does not involve a “collateral” transaction. The contract entered into by the parties in this case clearly contemplated the manufacture and marketing of the clomiphene citrate product. The April 2, 1985, contract which would allow Alra to market the product if Milex chose not to do so and Bhutani’s proposal of January 12, 1989, which contemplated Alra’s marketing the product in conjunction with Milex certainly indicated that Alra was aware of the profit to be made in the manufacture and marketing of the product. We conclude that Alra has not rebutted the presumption that profits were within the contemplation of the parties.

Alra again argues that there was no valid contract and that Alra was not guilty of bad faith. We have previously addressed both arguments and will not repeat them here.

Third, Alra argues that damages here were not the result of the interruption of an existing business and were based upon the speculation and conjecture of Milex’s expert witness, Price.

The long-standing rule in Illinois is that lost profits may be a measure of damages where a business is interrupted, but the business must have been established prior to the interruption so that the evidence of lost profits is not speculative. (Drs. Sellke & Conlon, Ltd. v. Twin Oaks Realty, Inc. (1986), 143 Ill. App. 3d 168, 174.) The reasoning behind the rule is the lack of certainty in showing lost profits for a new business that has yet to show what its profits actually are. In Drs. Sellke & Conlon, the plaintiff’s orthodontic office was a new business, and his offer of proof consisted solely of profits realized after defendant’s tortious interference had ceased. This court found that the proffered evidence was insufficient to establish plaintiff’s lost profits with a reasonable degree of certainty.

In the case at bar, the trial court specifically found that Milex’s expert, Price, was very credible and that his opinion about Milex’s lost profits was based upon fact, not speculation. Price’s testimony concerning lost profits was based upon actual products in the marketplace as well as authoritative sources for the data he used. Alra’s own expert, Laprade, admitted that Milex would have had lost profits.

In Schatz v. Abbott Laboratories, Inc. (1972), 51 Ill. 2d 143, our supreme court upheld a trial court award of damages to a theatre which had lost substantial business as a result of noxious odors emitted by a nearby manufacturing plant. While discussing a case the lower court had relied on to reverse the award on the basis that the damages were speculative, the court stated:

“We do not interpret [Barnett v. Caldwell Furniture Co. (1917), 277 Ill. 286,] to hold that evidence of prior profits is the sine qua non of proof of damages suffered by a business enterprise. The significant holding found in the opinion is stated on page 289, as follows: ‘It is perhaps true that absolute certainty as to the amount of loss or damage in such cases is unattainable, but that is not required to justify a recovery. All the law requires is that it be approximated by competent proof. That proof of the exact amount of loss is impossible will not justify refusing compensation. If that were the law, contracts of the kind here involved could be violated with impunity. All the law requires in cases of this character is that the evidence shall with a fair degree of probability tend to establish a basis for the assessment of damages.’ ” (Schatz, 51 Ill. 2d at 147-48.)

In somewhat similar situations to the case at bar, courts have found that the rule that a new business’ profits are too speculative did not fit the circumstances before them. E.g., Malatesta v. Leichter (1989), 186 Ill. App. 3d 602 (plaintiff prevented from acquiring car dealership; profits of the person who operated the dealership during the time in question held not to be too speculative to prove damages); Fishman v. Estate of Wirtz (7th Cir. 1986), 807 F.2d 520 (plaintiffs who had never owned a sports franchise awarded lost profits based upon the profits made by the team owners); Rhodes v. Sigler (1976), 44 Ill. App. 3d 375 (court found evidence of profits of a person other than the plaintiff in the same period of time plaintiff was seeking damages provided required degree of certainty).

Finally, we do not believe that the case of Drs. Sellke & Cordon, Ltd. stands for the inviolate rule that a new business can never prove lost profits. That case determined that where lost profits are based solely upon speculation, such proof is inadequate to establish lost profits within a reasonable degree of certainty. However, in the case before us, while the product is a new one, the evidence showed it to have an established market. Given that fact, together with Price’s testimony, we conclude that the proof of lost profits was neither speculative nor the product of conjecture but was based upon a reasonable degree of certainty.

Fourth, Alra argues that Milex failed to mitigate damages. However, there is ample proof in the record that immediately after negotiations with Alra were halted Milex sought out other manufacturers. The fact that the product is not yet on the market is due to the necessity of redoing Alra’s work as required by the FDA. We are of the opinion that damages for lost profits were properly awarded in this case.

Finally, Alra contends that the trial court erred in excluding certain testimony as to conversations between Sol Disman and Bhutani. Disman was deceased at the time of trial.

Generally an offer of proof is necessary in order to preserve for review a question of whether the trial court improperly excluded certain evidence. (Goad v. Evans (1989), 191 Ill. App. 3d 283, 298.) In one instance, the attorney for Alra indicated that the testimony of the conversations between Bhutani and Disman was only for the purpose of establishing the fact of the conversations, and the trial court permitted the testimony. In the other instances, Alra made no offer of proof. Unlike the situation in Goad, the record does not reflect that the attitude of the trial court prevented Alra from making the appropriate offers of proof. (Goad, 191 Ill. App. 3d at 299.) Alra’s argument is waived. See Healy v. Bearco Management, Inc. (1991), 216 Ill. App. 3d 945, 957.

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

Affirmed.

UNVERZAGT and GEIGER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McLAREN

license: Public Domain

text:
      In re MARRIAGE OF MARY JANE VELLA, Petitioner-Appellee, and FRANK P. VELLA, SR., Respondent-Appellant.
    Second District
    No. 2—91—1469
    Opinion filed November 4, 1992.
    Rehearing denied December 8, 1992.

      David L. Martenson, of Martenson & Associates, of Rockford, for appellant.
    Daniel J. Cain, of Sreenan, Cain & Sullivan, P.C., of Rockford, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Petitioner, Mary Jane Vella, filed a complaint for dissolution of marriage from respondent, Frank P. Vella. Respondent filed a motion to strike those portions of petitioner’s pleadings requesting maintenance and a division of assets. Respondent alleged that a 1984 marital settlement agreement precluded the court from granting that relief. The trial court held that the parties’ marital settlement agreement was neither valid nor enforceable because it was not in compliance with the requirements of section 502 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1991, ch. 40, par. 502). Thus, the assets were allocated as if they were marital property. The court also reserved the power to award maintenance and attorney fees if respondent failed to comply with the divorce decree. Respondent timely appeals. We reverse and remand.

On September 17, 1984, petitioner filed a complaint for dissolution of marriage against respondent. In December 1984, the parties executed a marital settlement agreement. This agreement provided for the distribution of both cash and property. The divorce proceeding was subsequently dismissed for want of prosecution on May 8, 1986. Nevertheless, pursuant to the marital settlement agreement, petitioner obtained the marital home at Crestview Drive, $26,000 in cash, plus the household goods and furnishings. Respondent received a one-third interest in vacant property on Perryville Road and $10,000 in cash. The agreement also provided that each party waived maintenance on the condition that the court approved the property settlement and accepted the waivers.

In mid-1988, the Perryville property was sold for $800,000. Respondent received one-third of these proceeds after taxes. After the sale of this property, the parties attempted a reconciliation. In connection with this conciliation, respondent placed $200,000 into a certificate of deposit at the Amcore Bank in respondent’s name, with his three children as beneficiaries.

The parties’ reconciliation failed resulting in the present dissolution of marriage on appeal. On August 3, 1990, the court below granted a judgment of dissolution. The trial court denied the enforceability of the previous marital settlement agreement because no court had ever approved its terms pursuant to section 502(d) of the Act. Specifically, the court found that certain language in the agreement indicated that the agreement was made attendant to the pending dissolution matter and that the dismissal of that matter rendered the marital settlement agreement invalid. Thus, the court determined that the following existed as marital property at the time of the judgment: the Crestview marital home ($75,000), the household goods and furnishings in petitioner’s possession ($2,000), Amcore stock owned by respondent and his brother ($16,000), Continental stock ($7,734), the one-third of the remaining unsold parcel of the Perryville property ($8,833), the funds respondent withdrew from the Amcore Bank on May 31, 1990 ($354,378), and withdrawals respondent made from his checking account on June 1 through 14,1990 ($12,750).

Petitioner was awarded the Crestview marital residence, the household goods and furnishings in that residence, and her personal property. She was also awarded the Continental and Amcore Bank stocks, plus $137,497 to be paid by respondent. Respondent was awarded his share of the Perryville property, his personal property and any sum that he might have remaining.

The court reserved petitioner’s right to maintenance and attorney fees until further order of court and denied respondent’s right to the same. The reservation of these awards was made subject to respondent’s compliance with the court’s order.

On appeal, respondent asserts that (1) the trial court erred in denying the enforceability of the marital settlement agreement; (2) the trial court erroneously awarded petitioner property that was not marital and was not owned by the parties; (3) the court erred by reserving maintenance and attorney fees subject to respondent’s compliance with the court’s orders; and (4) the mathematical computations of the trial court were incorrect.

Respondent first asserts that the trial court erred in denying the enforceability of the marital settlement agreement. In this vein, respondent argues that the agreement should be treated as a contract which is binding on the parties, that the agreement’s validity has not been tainted by fraud or duress, and that the parties have complied with the terms of the agreement without rescinding it. We agree.

The trial court’s decision to invalidate the marital settlement agreement was based primarily upon section 502 of the Act, which provides in part:

“(a) To promote amicable settlement of disputes between parties to a marriage attendant upon the dissolution of their marriage, the parties may enter into a written or oral agreement containing provisions for disposition of any property owned by either of them, maintenance of either of them and support, custody and visitation of their children.
(b) The terms of the agreement, except those providing for the support, custody and visitation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the agreement is unconscionable.” (Ill. Rev. Stat. 1991, ch. 40, pars. 502(a), (b).)

The court also found that the parties had failed to make an agreement otherwise valid under section 503(a)(4), which provides in part:

“(a) For purposes of this Act, ‘marital property’ means all property acquired by either spouse subsequent to the marriage, except the following, which is known as ‘non-marital property’:
* * *
(4) property excluded by valid agreement of the parties.” Ill. Rev. Stat. 1991, ch. 40, par. 503(a)(4).

The trial court also placed much reliance on the case of Stern v. Stern (1982), 105 Ill. App. 3d 805, in reaching its decision. In Stern, the defendant argued that, since section 502 applies only to agreements attendant upon a dissolution of marriage, a marital settlement agreement entered into was a nullity because the parties’ marriage had never been dissolved. We determined, therein, that the defendant’s attempt to restrict review of the agreement pursuant to section 502 was deficient for several reasons. First, the language of the agreement itself provided that it was drawn pursuant to section 502 and section 503 of the Act. Second, the defendant testified that she had voluntarily signed the agreement after consulting her attorney, was satisfied with its terms, and wished the pending dissolution proceeding to be dismissed. Third, the designation of the statute pursuant to which the agreement was reached was not an operative provision of that agreement. Accordingly, we held that the marital settlement agreement, like any other contract, was the proper subject of judicial construction for purposes of a declaratory judgment and that its validity was not contingent upon the entry of a divorce decree. Stern, 105 Ill. App. 3d 805.

In the present case, the trial court distinguished the facts from those in Stern and found that an agreement otherwise valid under section 503 had not been entered into. Therefore, the court concluded that the marital settlement agreement could not stand because it was made pursuant to section 502 and because no court had ruled on its conscionability. We disagree. In our view, the terms of the agreement itself, combined with the actions of the parties in performing the agreement, lead us to conclude that the agreement was a valid, post-nuptial contract.

First, in addition to the agreement’s validity pursuant to general principles of contract law, the terms of the agreement satisfy the requirements necessary to form a valid contract pursuant to section 503(a)(4). In Stern, we held that the agreement was capable of falling within the ambit of section 503 because the agreement specifically stated that it was made pursuant to sections 502 and 503. Since neither provision was made an operative element of the agreement, we determined that section 503(a)(4) could apply on its own. Here, on the other hand, the agreement does not state the sections pursuant to which it was made. Admittedly, the marital settlement agreement was made at a time when the parties anticipated a dissolution of their marriage. In fact, the opening paragraphs indicate that the parties believe it to be in their best interest to settle between themselves their respective rights to property, et cetera, in light of irreconcilable differences which have led to a recent filing for dissolution of their marriage. The parties also expressed the desire that the agreement be incorporated by reference in the judgment of dissolution of their marriage.

Nevertheless, we determine that the validity of the agreement was not made expressly dependent upon the entry of a divorce decree. As in Stern, the statute pursuant to which the agreement was reached is not an operative provision of the agreement. In addition, the agreement expressly provides that it is the intention of the parties “that the property settlement provided for in [the] agreement shall constitute a complete adjustment of the property rights of the parties hereto” and that “the terms of [the] agreement shall be binding upon the parties upon the execution date above.” (Emphasis added.) Moreover, article III of the agreement provides:

“ARTICLE III. Division of Marital and Property Rights.
1. The husband shall quit claim to the wife his interest in the martial [sic] residence, legally described as follows, and the wife shall hold said property free and clear of any claim by husband:
***
2. The wife shall quit claim to the husband any interest she may have in the property legally described as follows, and the husband shall hold said property free and clear of any claim by wife:
* * *
3. Each party shall keep as [his/her] own property, free and clear of any interest held or claimed by the other, all of the bank accounts presently held or possessed by them.
4. The wife shall hold as her sole and separate property all of the household goods and furnishings presently located in the marital home.
5. The husband shall be responsible for and pay one-half of any uncovered medical bills outstanding for the wife up to the date of this agreement.
6. Any property acquired by either party after the date of this agreement shall be the separate, non-marital property of the party acquiring it.
7. Each party shall be responsible for his/her own individual expenses.
8. The husband shall vacate the marital home upon the signing of this agreement.”

These unambiguous statements clearly indicate the intent of the parties to be bound upon execution of the agreement, rather than upon approval by the court.

The trial court below relied upon the following passages from the marital settlement agreement when it determined that court approval was necessary:

“ARTICLE II. Maintenance.
1. Both husband and wife agree to waive and give up any claim for maintenance, each from the other. It has been explained to the parties that they both have the right to claim maintenance, each from the other, and that if the court approves the property settlement and accepts their respective waivers by or through their respective attorneys, said waiver shall be final and irrevocable.
* * *
ARTICLE V. General Provisions.
* * *
6. The parties desire that this agreement be incorporated by reference in the judgment of dissolution of marriage and that its terms be enforceable by all the remedies available for the enforcement of a judgment including contempt, but that the terms shall not be set forth in the court’s judgment.” (Emphasis added.)

With respect to article II, the trial court focused upon the conditional language which we have highlighted. In our view, this language merely sets forth the conditions necessary for a maintenance waiver to take effect. We cannot reasonably apply the same conditional language to the remainder of the agreement.

In addition, the language in article V expressing the parties’ desire to incorporate the agreement into the anticipated judgment of dissolution cannot, by itself, be read as an expression that the validity of the agreement is somehow contingent upon the entry of a divorce decree. While the impending divorce may have been a factor which motivated the parties to execute the agreement, it was not a condition necessary for the terms of the agreement to become effective.

Second, it is apparent that substantial performance of the contractual terms took place after its execution. It is significant that the parties did not wait for the court’s approval before they began performance on the agreement. Although the question of substantial performance is to be decided on the facts of each case, the question of whether there has been a receipt and enjoyment benefits is an important one to consider. Joray Mason Contractors, Inc. v. Four J’s Construction Corp. (1978), 61 Ill. App. 3d 410.

Here, it is uncontested that respondent, in conformance with the agreement, vacated the marital home and conveyed the specified real estate and personal property to petitioner. Respondent also transferred $26,000 to petitioner. On her part, petitioner signed a quitclaim deed conveying her interest in the Perryville property to respondent. In light of this performance, which involved a mutual enjoyment of benefits, we cannot say that the agreement never became effective. The actions of the parties in carrying out the agreement are an indication that the divorce decree was neither a controlling element of nor a condition precedent to the agreement.

We agree it is possible that an agreement made pursuant to section 502 could fail to become effective where the intent of the parties is to make the agreement contingent upon a court’s approval attendant to a subsequent divorce decree. For example, a husband and wife may wish to agree upon a division of their property, in connection with their divorce. When the divorce proceedings are abated, the parties may choose to ignore the agreement and thereby rescind it as they would any other contract. See In re Marriage of Burgess (1984), 123 Ill. App. 3d 487 (which applies this reasoning in the context of a prenuptial agreement).

Here, however, where two parties enter into a marital settlement agreement, and where performance of the agreement is carried out, notwithstanding the dismissal of the divorce proceedings, we view the agreement as a valid allocation of marital and nonmarital property rights pursuant to section 503(a)(4) of the Act. Ill. Rev. Stat. 1991, ch. 40, par. 503(a)(4).

Petitioner also claims on appeal that the agreement was invalid because it was obtained through fraud and duress. We determine that this objection lacks merit because it is raised for the first time on appeal. No similar objection to the agreement was pleaded below and, thus, the proof offered is defective. (Keno & Sons Construction Co. v. La Salle National Bank (1991), 214 Ill. App. 3d 310; Tomaso v. Plum Grove Bank (1985), 130 Ill. App. 3d 18.) Petitioner also alleges that a subsequent trust formed by the parties superseded the earlier marital settlement agreement. However, we will not entertain this position because it is insufficiently supported by argument or supportive authority. 134 Ill. 2d R. 341(e)(7).

Respondent next argues that the trial court erroneously awarded petitioner property that was neither marital nor owned by the parties. When the parties separated in May 1990, respondent withdrew over $300,000 from his bank account. Approximately $200,000 was due to the sale of the Perryville property. The rest, according to respondent, results from monies held for his mother and as a result of his own savings. Upon withdrawing these sums, respondent paid $172,000 to his brother which, respondent alleged, represented a business debt. Respondent also set aside $100,000 which he held in trust for his mother. The trial court determined that these monies were marital property and divided them accordingly. In light of our validation of the marital settlement agreement, the trial court’s decision on this issue cannot stand. Article III, paragraph 3, of the marital settlement agreement provided that each party shall keep as his/her own property all the bank accounts presently held by each of them. Therefore, the amounts respondent withdrew from his bank account were his own individual property.

Respondent next argues that the court erred by reserving maintenance and attorney fees while barring respondent’s right to maintenance. In its memorandum of decision, the court reserved the petitioner’s right to maintenance. The court ruled that it would bar maintenance if respondent complied immediately with the order. Without commenting on the propriety of reserving an award of maintenance as a means of enforcing a judgment, we reverse the trial court’s holding on this issue and remand the cause for a determination of maintenance. Article II of the marital settlement agreement specifically provides that the parties waive their respective claims for maintenance if the court approves. Since no such ruling was made, we remand for further consideration of this issue. Moreover, the issue of attorney fees is not addressed in the marital settlement agreement and, thus, should be addressed by the trial court on remand.

Finally, the issue related to the trial court’s mathematical computations in the context of its allocation of cash between the parties is moot in light of our validation of the marital settlement agreement.

For the above reasons, we reverse the trial court’s decision and hold that the marital settlement agreement is an enforceable contract. We, therefore, remand the cause for an allocation of assets consistent with this opinion and for a determination of the appropriateness, extent and nature of maintenance with respect to both parties and for the possible award of attorney fees.

Reversed and remanded.

GEIGER and BOWMAN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH HARPER, Defendant-Appellant.
    Second District
    No. 2—91—0354
    Opinion filed November 5, 1992.

      G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender’s Office, of Elgin, and David S. Morris, of Chicago, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Lisa A. Hoffman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

After a bench trial on stipulated facts, the circuit court convicted defendant of possession of less than 15 grams of a controlled substance (Ill. Rev. Stat. 1991, ch. 56½, par. 1402(b)). The court sentenced defendant to 24 months’ probation. Defendant appeals, contending that the court erred in denying his motion to "quash arrest and suppress evidence. Specifically, defendant argues that the arresting officer lacked sufficient articulable facts to justify an investigatory stop of defendant. See Ill. Rev. Stat. 1991, ch. 38, par. 107—14; Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.

On January 5, 1990, Elgin police detectives Mark Brictson and Phil Danner were conducting surveillance of a building at 271 Villa Street. They set up their surveillance at the corner of Gifford and Villa, approximately a quarter block from the building, which was a “known dope house.”

At about 8:52 p.m., the officers observed a vehicle pull into the driveway of an apartment building at the corner of Gifford and Villa. The car drove up the driveway so that the officers lost sight of it. Moments later, Brictson saw a black male walking east across front yards and heading toward 271 Villa. The building at 271 Villa contains four apartments, two on the lower floor and two on the upper floor. The man entered the side door of that building, which leads only to the upper apartments. Less than a minute later, Brictson saw a black male walking west toward the officers. Brictson believed this man was the same one he had seen recently walking toward the house. The man proved to be defendant.

As defendant approached the officers, they stepped in front of him and announced their office. Brictson noticed that defendant had his mouth closed and his lips were tight “as if there were something in his mouth.” Both officers shined flashlights into defendant’s mouth, whereupon they noticed a folded paper packet on his tongue. Brictson ordered defendant to spit it out, and defendant complied. The packet was determined later to contain cocaine.

Defendant was charged with unlawful possession of a controlled substance. He filed a motion to quash his arrest and suppress the cocaine, contending that the officers lacked specific articulable facts to justify the investigatory stop. Following a hearing at which defendant and Officer Brictson testified, the court denied the motion.

Defendant then waived a jury trial, and the court conducted a bench trial at which the parties stipulated to all the evidence. The court found defendant guilty and sentenced him to two years’ probation. Following denial of his post-trial motion, defendant appealed.

On appeal, defendant contends that the court erred in denying his motion to suppress. He maintains that the facts known to the officers did not provide a reasonable basis for a Terry stop and, even assuming the initial stop was proper, the “search” of defendant’s mouth was beyond the scope of a permissible search incident to the stop. The State responds that the officers had reasonable grounds for the initial stop. The State further contends that the removal of the cocaine from defendant’s mouth was not a “search” incident to the Terry stop, but was a voluntary act by the defendant.

A police officer may make a valid investigatory stop absent probable cause for an arrest, provided that the officer’s decision is based on specific, articulable facts which warrant the investigative stop. (Terry v. Ohio (1968), 392 U.S. 1, 21, 20 L. Ed. 2d 889, 906, 88 S. Ct. 1868, 1879-80.) An officer may properly stop a person if the officer possesses knowledge of sufficient articulable facts to create a reasonable suspicion that the person has committed, or is about to commit, a crime. Ill. Rev. Stat. 1989, ch. 38, par. 107—14; People v. Dionesotes (1992), 235 Ill. App. 3d 967, 969; Frazier, Jones, Alesia, Survey of Illinois Law: Criminal Procedure, 16 S. Ill. U. L.J. 841, 850 (1992).

At the time they stopped defendant, the officers were aware of the following facts. The building at 271 Villa was a “known dope house.” Brictson was aware that a search of the upper floor of the building conducted by officers of the Metropolitan Enforcement Group in March 1989 turned up narcotics. Brictson personally participated in a search of the premises in April 1989 which uncovered drug paraphernalia. Since that time, Brictson had arrested seven individuals near the building who possessed narcotics. He had also stopped one or two individuals at that location who did not possess narcotics. Defendant’s behavior — parking at a location near the building and walking across lawns, entering the door leading to the upper floor and remaining less than a minute — was consistent with that of others Brictson had observed at that location who were later discovered to possess narcotics.

Brictson admitted, however, that he did not know defendant and he did not see what defendant did once he entered the outer door of the building. Moreover, the record contains no evidence that Brictson observed any crime being committed or that he had received a report of any crime in the area.

The trial court’s determination on a motion to suppress will not be overturned unless it is manifestly erroneous. (People v. Galvin (1989), 127 Ill. 2d 153, 162.) On the facts of this case, we conclude that the court’s decision to deny the motion to suppress was manifestly erroneous. The facts known to the officers simply did not establish an articulable basis to believe that a crime had been, or was about to be, committed. The officers merely observed defendant leave a car parked near the subject premises, enter the building, remain for a short time, and leave. The officers did not observe any transactions within the building or hear any conversations. They did not know what defendant did while inside the building. They had not received a report of any crime or suspicious activity in the vicinity. Their decision to stop defendant was based on no more than a hunch that he might be involved in drug activity.

The facts of this case are quite similar to those of People v. Jones (1989), 181 Ill. App. 3d 576. In that case, the officers observed defendant in the vicinity of a “suspicious vehicle.” They had previously seen several people approach a vehicle similar to the one in question, remain a short time and leave. They did not, however, observe defendant violate any law. The officers nevertheless approached defendant and ordered him to lie down and submit to a search. The search revealed narcotics. This court affirmed the order suppressing the evidence.

Also similar are the facts of Sibron v. New York (1968), 392 U.S. 40, 20 L. Ed. 2d 917, 88 S. Ct. 1889, a companion case to Terry. There the officer had observed defendant talking to several “known narcotics addicts” over a period of approximately eight hours, but did not hear any conversations or see anything change hands. (392 U.S. at 64, 20 L. Ed. 2d at 935, 88 S. Ct. at 1903.) Finally, the officer approached the defendant and said, “You know what I am after.” (392 U.S. at 64, 20 L. Ed. 2d at 935, 88 S. Ct. at 1903.) The defendant then reluctantly began reaching into his pocket, but the officer reached in first and recovered an envelope containing heroin. The court reversed the conviction, stating: “The inference that persons who talk to narcotics addicts are engaged in the criminal traffic in narcotics is simply not the sort of reasonable inference required to support an intrusion by the police upon an individual’s personal security.” Sibron, 392 U.S. at 62, 20 L. Ed. 2d at 934, 88 S. Ct. at 1902.

Defendant also relies on In re F.R. (1991), 209 Ill. App. 3d 274. The State notes that in that case the court found the initial stop valid but held that the subsequent search was unwarranted. However, in that case, the facts known to the officers were more extensive than in the present case. There, the police observed the respondent approach a car at an intersection which was known to be a drug corner. The officers had previously observed youths approach cars stopped at the intersection and engage in narcotics transactions, including the exchange of packages which proved to contain narcotics.

In the instant case, the officers did not hear any conversations or observe anything which appeared to be a drug transaction. Indeed, they were completely unaware of what defendant did after he entered the building. He might well have knocked on an inner door, found no one at home, and left. The facts simply do not lead to an articulable suspicion that a crime had been committed.

Assuming arguendo that the Terry stop was justified, the search of defendant’s mouth went beyond the scope of a proper Terry search. This court has previously stated that the sole justification for a “frisk” incident to a Terry stop is the protection of the officer and others nearby, not to gather evidence. (People v. Morales (1991), 221 Ill. App. 3d 13, 17-18.) In this case, the officer testified that his primary concern when he asked defendant to spit out the package was to prevent the drugs from being destroyed. He did not conduct a pat-down search prior to that time and testified that he was not primarily concerned for his safety. He did not observe a bulge in defendant’s clothing, and defendant did not make any menacing gestures. On appeal, the State does not seriously contend that the officer believed the package in defendant’s mouth was a weapon.

The State does argue that the officer’s actions were not a “search” and that the spitting out of the package was a voluntary act of defendant. This argument lacks merit. Brictson testified that immediately upon approaching defendant he ordered him to open his mouth. Both Brictson and his partner shined flashlights into his mouth. Upon observing the packet, Brictson ordered defendant to spit it out. The officer immediately retrieved and examined it. It is disingenuous to maintain that these actions were not a “search.” (See Sibron v. New York (1968), 392 U.S. 40, 20 L. Ed. 2d 917, 88 S. Ct. 1889 (officer not justified in thrusting his hand into defendant’s coat pocket); (People v. Trice (1978), 56 Ill. App. 3d 849 (officer’s thrusting hand into pocket of coat being carried by defendant’s companion was beyond the scope of a Terry search).) Thus, on either basis, the defendant’s motion to suppress the narcotics should have been granted.

Defendant demands an outright reversal without remand. The State has not interposed a request for remand in the event of a reversal. It is apparent that the State will be unable to prove its charges unless the narcotics found on respondent were properly admitted into evidence. With the required suppression of that evidence, the State would have no opportunity to prevail on a new trial. In re F.R., 209 Ill. App. 3d at 283.

For the foregoing reasons, the defendant’s conviction is reversed.

Reversed.

GEIGER and BOWMAN, JJ., concur.


text:
    THE VILLAGE OF KILDEER, Plaintiff-Appellant, v. EDWARD C. LaROCCO, Defendant-Appellee.
    Second District
    No. 2—91—1465
    Opinion filed November 6, 1992.
    John M. Mullen, of Libertyville, for appellant.
    Douglas E. Zeit and Suzanne A. Lindsay, both of Rosing, Applehans, Smith, Ericksen & Zeit, Ltd., of Waukegan, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, the Village of Kildeer, appeals from the trial court’s directed finding for defendant, Edward C. LaRocco, and the subsequent denial of its post-judgment motion. Defendant had been charged with violating plaintiff’s municipal ordinance prohibiting overweight vehicles on its roads when he allegedly drove a truck whose tandem axles (Nos. 2 and 3) exceeded the 24,000-pound limit by 10,460 pounds. (See Kildeer, Ill., Village Code §10—2—6 (19_) (hereinafter Village Code).) The trial court granted defendant’s motion for a directed finding in response to his argument that a truck must be weighed in a single draft rather than on an axle-by-axle basis.

On appeal, plaintiff argues that the trial court’s ruling is not supported by the record; that axle-by-axle weighing was proper and the ruling should be reversed; that plaintiff made out a prima facie case; and that the cause should be remanded for further proceedings. We conclude that the court’s directed finding was contrary to established law and was inappropriate to the facts of this case. We reverse the judgment and remand the cause for further proceedings.

Local authorities and municipalities are permitted to regulate vehicle weights on the roads under their jurisdiction. (Ill. Rev. Stat. 1991, ch. 95½, pars. 15—111(g), 15—316.) The ordinance in question provides that no vehicle shall be operated on plaintiff’s roads when the “gross weight on the road surface through any axle thereof exceeds twelve thousand (12,000) pounds.” (Emphasis added.) (Village Code, §10—2—6.) The ordinance further provides that any “series of two or more single axles whose centers are more than 40 inches and not more than 96 inches apart *** shall be defined as tandem axles and the gross weight transmitted to the road surface through such series shall not exceed twenty-four thousand (24,000) pounds and no single axle of this series shall exceed the maximum weight permitted under this section for a single axle.” (Emphasis added.) Village Code, §10-2-6.

The record discloses that, on June 3, 1991, Officer Robert Zujewski was on routine patrol near the intersection of West Cuba Road and Route 12 when he observed defendant’s truck make a turn on Cuba Road. The truck was carrying a very heavy load — a big “dozer” — and the road was posted with a weight limit of six tons (12,000 pounds) per axle. Zujewski had received prior training in truck regulation and weighing from the Illinois State Police. He noticed that the truck’s tires were unusually deflected due to the weight of the load of the large bulldozer.

The officer stopped the vehicle and asked defendant, whom he identified as the driver, if he had seen the six-ton-per-axle limit sign, and defendant replied that he had. Officer Zujewski instructed defendant to take the vehicle to the nearest available scale in Buffalo Grove, where the officer proceeded to weigh the vehicle on an axle-by-axle basis. Zujewski testified that the scale “zeroed” before and after each weighing and that the scale appeared to be operating accurately at all times. The second axle was over the six-ton limit by 5,380 pounds, and the third axle exceeded the limit by 5,080 pounds, giving a total of 10,460 pounds. On the scale appeared a United States Department of Agriculture sticker dated June 1991.

The officer testified that the weighing was done in accordance with the method that he had been taught by the Illinois State Police. He stated that the distance between the second and third axles was approximately 51 inches. Plaintiff sought to introduce the computer printout from the scale over the objection of defendant, who argued that the weighing must be done in a single draft. The court ruled the printout admissible.

On cross-examination, the officer admitted that he did not weigh the vehicle in a single draft; he had weighed it on a single-axle basis as he had been instructed to do. He also noted that the scale had a sticker on it and it had “zeroed” before and after the weighing indicating that the weight was accurate.

When plaintiff rested, defendant moved for a directed finding. He argued that the Illinois Weights and Measures Act (Act) (Ill. Rev. Stat. 1991, ch. 147, par. 101 et seq.) incorporates Handbook 44 of the United States Department of Commerce National Institute of Standards and Technology (Handbook) (National Institute of Standards and Technology Handbook 44 (1991)). That handbook in turn provides that in commercial weighing a vehicle shall be weighed only as a single draft. (Handbook, par. UR.3.3.) The relevant sections of the Illinois statute were not cited, nor was the Handbook introduced into evidence or offered for judicial notice. Plaintiff countered that single-draft weighing was not required for law enforcement purposes, citing People v. Fair (1965), 61 Ill. App. 2d 360, where a similar defense objection was rejected. The trial court agreed with defendant and granted a directed finding in his favor.

Following the denial of plaintiff’s motion to reconsider, this appeal was timely filed. On appeal, plaintiff argues that (1) the trial court misapprehended the gravamen of the complaint because it concerns a per-axle weight violation rather than a gross vehicle weight violation; therefore, single-draft weighing is inapplicable; and (2) the Act does not mandate single-draft weighing for law enforcement purposes, that is, for the enforcement by police of statutes or ordinances regarding the operation of overweight vehicles on the roads of this State.

Defendant argues that (1) plaintiff failed to prove beyond a reasonable doubt the accuracy of the weighing process; and (2) the weighing process was not performed in accordance with Illinois law. We believe plaintiff’s arguments are persuasive while defendant’s arguments find no support in law or in fact.

The relevant question before us is whether, based on the evidence and the applicable law, the trial court properly made a directed finding for defendant. Additionally, because the parties have misapprehended the nature of the proof required, this court must recite the applicable standard of proof in this type of proceeding.

This proceeding involves the prosecution of a violation of a municipal ordinance for the recovery of a fine. Where the prosecution for a violation of a municipal ordinance is to recover a fine or a penalty only, although the proceeding is of a quasi-criminal nature, it is civil in form, and the cause is tried and reviewed as a civil proceeding. (Village of Mundelein v. Taylor (1985), 130 Ill. App. 3d 819, 822.) A municipality is therefore permitted to appeal from final rulings in such cases. (City of Naperville v. Bernard (1985), 139 Ill. App. 3d 784, 785.) The plaintiff’s burden of proof in such cases is that of the civil standard, a preponderance of the evidence, occasionally described as a clear preponderance of the evidence, rather than the reasonable doubt standard of criminal prosecutions. (Village of Beckmeyer v. Wheelan (1991), 212 Ill. App. 3d 287, 290, citing City of Chicago v. Joyce (1967), 38 Ill. 2d 368, 373.) To that extent, this case differs from the cases cited by the parties, such as Fair (61 Ill. App. 2d 360), and People v. Fraschetti (1966), 73 Ill. App. 2d 449, which concerned prosecutions under State statutes. The applicable standard in the present case is a clear preponderance of the evidence.

In a bench trial, when a defendant moves for a directed finding at the conclusion of the plaintiff’s case, the court must weigh the evidence, considering the credibility of the witnesses and the weight and quality of the evidence (Ill. Rev. Stat. 1991, ch. 110, par. 2—1110; Prevendar v. Thonn (1988), 166 Ill. App. 3d 30, 34), and draw reasonable inferences from the testimony (Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 154). The trial court determines, in the first instance, whether the plaintiff has made out a prima facie case, that is, whether the plaintiff has presented at least some evidence on every element necessary to his cause of action. (Kokinis, 81 Ill. 2d at 154.) The failure to introduce such evidence warrants a directed finding in favor of the defendant. (81 Ill. 2d at 155.) However, if the court determines that the plaintiff has made out a prima facie case, the court, as the finder of fact, must then weigh the plaintiff’s evidence. This weighing process may result in the negation of some of the evidence necessary to the plaintiff’s prima facie case, in which event the court should grant the defendant’s motion and enter judgment in his favor. (81 Ill. 2d at 155.) The court is not to view the evidence in the light most favorable to the plaintiff. 81 Ill. 2d at 154.

With these principles in mind, we consider whether the court erroneously entered a directed finding for defendant. Here, the question whether plaintiff made out a prima facie case depends on the propriety of the axle-by-axle weighing as it affects the competency of the evidence of overweight on the two axles involved. We point out that this was an excessive weight per axle type of violation, not a gross vehicle weight violation. The ordinance is very clear that it is the excess weight transmitted by any given axle that gives rise to the violation. The obvious purpose of the ordinance is to prevent excessive weight on road surfaces which would cause their deterioration and any consequential injury to the traveling public and to the taxpayers.

There was no objective evidence or (expert) testimony presented by defendant to show that weight was being shifted from one axle to the other because of the individual axle weighings. Defendant’s argument that the axle-by-axle method made the weighing inaccurate is speculative at best. Our courts have rejected this type of argument several times — even in gross weight violation cases. (See People v. Andrews (1967), 82 Ill. App. 2d 59, 66; People v. Hansen (1966), 74 Ill. App. 2d 49, 52; Fraschetti, 73 Ill. App. 2d at 452-53; Fair, 61 Ill. App. 2d at 367.) Indeed, this argument has been deemed “hypercritical and frivolous.” (Hansen, 74 Ill. App. 2d at 52.) In the absence of any competent evidence that axle-by-axle weighing is grossly inaccurate, these cases have continuing vitality and are applicable to the case.at bar.

Furthermore, defendant points to no explicit statutory provision that invalidates the holding of Fair and its progeny which have approved the axle-by-axle method of weighing vehicles in gross vehicle weight violation cases. We also find misplaced defendant’s reliance on the national standards (Handbook 44) incorporated into the Weights and Measures Act for the commercial weighing of vehicles in one draft. This argument has also been rejected in Fair (61 Ill. App. 2d at 367). The Fair court explained that, since the Illinois Motor Vehicle Act (Ill. Rev. Stat. 1963, ch. 95½, par. 229) then in force provided that arresting officers may weigh a truck either by portable or stationary scales, it obviously would be impractical for law enforcement to use the portable scales to weigh vehicles in one draft. This provision has been retained in the current code. (See Ill. Rev. Stat. 1991, ch. 95½, par. 15—112.) The statute was construed to permit axle-by-axle weighing for law enforcement purposes. (See Fraschetti, 73 Ill. App. 2d at 452.) We also point out that Handbook 44 specifically recognizes portable axle-load weighers “for the enforcement of traffic and highway laws.” Handbook 44 §A.2, at 2-3.

In examining the evidence adduced by plaintiff, we believe that plaintiff has established a prima facie case of the overweight violation. The officer testified that he observed an overweight vehicle with deflected tires; that he weighed the vehicle according to established procedures; that the scale had “zeroed” and was working accurately; and that it had an official sticker. The printout was admitted into evidence. The officer’s testimony was sufficient to make out a prima facie case. (See People v. Jackson (1981), 98 Ill. App. 3d 418, 422; Fair, 61 Ill. App. 2d at 366.) There was no contrary evidence presented, and the cross-examination of the officer regarding his method of weighing does not rebut or negate plaintiff’s prima facie case. The trial court improperly relied on defendant’s argument that axle-by-axle weighing was impermissible. In the absence of any evidence indicating that the weighing was inaccurate and where there is no indication that the evidence was unsatisfactory or incredible, the trial court should not have made a directed finding for defendant.

For the foregoing reasons, we reverse the judgment of the circuit court of Lake County and remand the cause for further proceedings.

Reversed and remanded.

UNVERZAGT and WOODWARD, JJ., concur.


text:
    ZEIGLER COAL COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (John Waggoner, Appellee).
    Fifth District (Industrial Commission Division)
    No. 5—91—0809WC
    Opinion filed November 25, 1992.

      Wayne R. Reynolds, of Law Offices of Wayne R. Reynolds, P.C., of Belleville, for appellant.
    Harold B. Gulley, Jr., of Raleigh, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

On April 23, 1986, claimant, John A. Waggoner, filed an application for adjustment of claim pursuant to the Workers’ Occupational Diseases Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 172.36 et seq.). He alleged impairment to his heart and lungs due to inhalation of coal and rock dust during a 40-year period of employment with respondent, Zeigler Coal Company. After a hearing held on September 14, 1989, the arbitrator found that claimant’s condition of ill being was causally related to his employment and that it arose out of and in the course of his employment. Further, the arbitrator found that claimant was totally and permanently disabled. A majority of the Industrial Commission (Commission) affirmed the arbitrator’s decision, and the circuit court confirmed the Commission’s decision. This timely appeal followed.

On appeal, respondent raises two arguments, namely, (1) the Commission’s decision regarding the extent and permanency of claimant’s disability is against the manifest weight of the evidence; and (2) claimant failed to prove he sustained disablement due to an occupational disease within the two-year period required by the Act.

At the arbitration hearing, claimant stated that he was born in 1923. He had worked for respondent a total of 40 years. For the first 35 years, he worked underground in a variety of jobs: shuttle car operator, electrician and battery maintainer. The last five years, claimant worked on the surface as a heavy equipment operator. Both underground and on the surface, he was continuously exposed to coal and rock dust. Claimant first noticed breathing problems in 1978 or 1979. Specifically, he was often short of breath, a condition which made it harder to perform his work tasks. On September 24, 1985, at the age of 62, he terminated his employment with respondent due to his continued respiratory problems. He stated that he was no longer able to do any work. After his retirement, claimant needed two pillows to sleep and also a fan to blow over his head so that he got enough air.

Claimant had smoked cigarettes since his second or third year in high school. For many years, he smoked one pack of cigarettes per day. As of the arbitration hearing, he smoked one-half a pack per day.

On cross-examination, claimant testified that he had never been hospitalized for breathing problems. He had taken an unspecified medication prescribed by Dr. Saeed Khan, but it offered no symptom relief.

On November 6, 1987, claimant was examined by Dr. Saeed Khan, board certified in internal medicine. Claimant told Dr. Khan that he could only walk one block before getting short of breath and could hardly climb one flight of stairs without becoming winded. His shortness of breath upon slight exertion had become' worse during the past five years. He also experienced a productive cough. Claimant told Dr. Khan that he retired because of his breathing difficulties.

A physical examination showed bilateral rhonchi (rattling sound) and basal crepitations. Claimant was also slightly dyspneic or short of breath and cyanosed with blue lips at rest. Cyanosis indicates that there is a decreased amount of oxygen in the tissues due to either heart disease or lung damage. Dr. Khan reviewed an X ray taken on October 27, 1987, and found bilateral interstitial fibrosis and hypertranslucency which is consistent with emphysema and coal workers’ pneumoconiosis. The pulmonary function study and blood-gas tests performed by Dr. Khan also showed a restrictive lung disease consistent with emphysema and coal workers’ pneumoconiosis.

Dr. Khan concluded that claimant had both emphysema and pneumoconiosis. In his opinion, claimant’s pneumoconiosis was caused by his work in the coal mines, while his emphysema was caused by both his smoking and coal mine employment. It was impossible to quantify how much of his emphysema was caused by smoking and how much was caused by coal mining. Dr. Khan concluded that because of claimant’s history of shortness of breath, his ability to walk only one block and his abnormal tests and X rays, it would be injurious for him to work in the coal mines or any other occupation.

On April 7, 1988, claimant was examined by Dr. William C. Houser, who is board certified in internal medicine and pulmonary disease. Claimant complained of shortness of breath at rest and upon exertion for the past seven to eight years along with a daily productive. cough. Upon physical examination, Dr. Houser noted that scattered rhonchia were present, especially on expiration. Slightly diminished breath sounds denoted decreased air movement which could imply fluid in or damage to the lung. Claimant’s pulmonary function tests suggested a small airway obstruction. A chest X ray showed opacities which indicated the presence of pneumoconiosis. In reaching his opinion, Dr. Houser considered records from Drs. Khan and Sanjabi. He concluded that the claimant had pneumoconiosis, which was caused by his 40 years of coal mining employment. Dr. Houser also testified that claimant had chronic bronchitis which was caused by both his coal mining employment and his smoking history. There was no way to quantify how much each process contributed to this disease. Dr. Houser recommended that claimant avoid further exposure to coal dust.

Dr. T.R. Marshall also testified for claimant via an evidence deposition taken on October 31, 1989. Dr. Marshall is a board-certified radiologist and B Reader whose practice consists of occupational disease cases and general radiology. At claimant’s request, Dr. Marshall reviewed chest X rays taken of claimant on April 7, 1988, and July 1, 1988. Both films revealed stage 2 pneumoconiosis in the claimant’s lungs. Dr. Marshall opined that inhalation of coal and rock dust over a long period of time caused claimant’s pneumoconiosis.

Dr. Barton Bridges testified for respondent via an evidence deposition taken on June 30, 1989. Dr. Bridges, a radiologist, examined four X rays taken of claimant’s chest. He found no evidence of pneumoconiosis in the chest X rays. On cross-examination, Dr. Bridges agreed that a person with a normal X ray can still have pneumoconiosis. The doctor also agreed that the 1988 X rays showed evidence of emphysema, which can be caused by coal mining.

On July 1, .1988, Dr. Peter Tuteur examined claimant at respondent’s request. An evidence deposition of Dr. Tuteur was taken on July 12, 1989. Claimant complained to Dr. Tuteur of extreme fatigue, breathlessness and a regular cough. Based upon the results of a physical examination, a pulmonary function study, a blood-gas study, a chest X ray and medical data from Drs. Khan and Houser, Dr. Tuteur concluded that claimant had “at worst” a trivial obstructive ventilatory defect, which was due to claimant’s cigarette smoking. Dr. Tuteur did not believe that claimant suffered from any disease caused or aggravated by his exposure to coal mine dust. He stated that his opinion lacked the benefit of any histologic data and that without such data it was impossible to rule out entirely the possibility of pneumoconiosis in claimant’s lungs.

Dr. Tuteur acknowledged that breathlessness is consistent with a diagnosis of pneumoconiosis. He further stated that it was “remotely possible” that the abnormality found on claimant’s pulmonary function study could be secondary to the inhalation of coal dust. Dr. Tuteur stated that someone with pneumoconiosis should no longer be exposed to continued inhalation of coal dust. Regarding an overall impairment, Dr. Tuteur stated that claimant’s health problems, especially his weakness, would prevent him from being gainfully employed as a coal miner. He characterized claimant’s disability as “total and permanent.”

Respondent first argues that claimant failed to prove that he sustained disablement due to an occupational disease within the two-year period as required by section 1(f) of the Act. (Ill. Rev. Stat. 1987, ch. 48, par. 172.36(f).) Respondent relies heavily on this court’s decision in Goodson v. Industrial Comm’n (1989), 190 Ill. App. 3d 16. Specifically, respondent argues that there is no evidence in the record which establishes the onset of occupational disease-related disablement within two years of September 24, 1985, when claimant was last exposed to coal dust.

In response, claimant asserts that the record contains sufficient evidence that his disablement occurred within the two-year statutory period.

Initially, we note that it is the Commission’s province to judge the credibility, to draw reasonable inferences from the testimony and to determine what weight the testimony is to be given. (Paganelis v. Industrial Comm’n (1989), 132 Ill. 2d 468.) Further, it is the Commission’s province to resolve conflicts in medical evidence. (Amoco Oil Co. v. Industrial Comm’n (1991), 218 Ill. App. 3d 737.) The Commission’s decision on a question of fact will not be disturbed unless it is contrary to the manifest weight of the evidence. Paganelis, 132 Ill. 2d at 484.

The relevant statute provides:

“No compensation shall be payable for or on account, of any occupational disease unless disablement, as herein defined, occurs within two years after the last day of the last exposure to the hazards of the disease, except in cases of occupational disease caused by berylliosis or by the inhalation of silica dust or asbestos dust and, in such cases, within 3 years after the last day of the last exposure to the hazards of such disease and except in the case of occupational disease caused by exposure to radiological materials or equipment, and in such case, within 25 years after the last day of last exposure to the hazards of such disease.” Ill. Rev. Stat. 1985, ch. 48, par. 172.36(f).

Respondent’s reliance upon Goodson v. Industrial Comm’n (1989), 190 Ill. App. 3d 16, is misplaced. In Goodson, the wife of the deceased worker did not argue that he was disabled at any time between the date of his last exposure and his death, a period of approximately seven years. Thus, Goodson provides no guidance in the appeal at bar, where claimant maintains that his disablement occurred within the two-year statutory period.

Moreover, the evidence supports the Commission’s conclusion that claimant’s disablement had occurred within the statutory period. Claimant stopped working on September 25, 1985. On November 6, 1987, Dr. Khan reviewed an X ray taken of claimant’s chest on October 27, 1987. Dr. Khan interpreted said X ray as revealing the presence of coal workers’ pneumoconiosis in claimant’s lungs. Thus, there was medical evidence that as of October 27, 1987, approximately one month after the statutory period had elapsed, claimant’s lung had the subject disease. Dr. Khan described coal workers’ pneumoconiosis as a “chronic, slowly progressive lung disease.” Given the nature of this lung disease, the Commission permissibly inferred that the chronic, slowly progressive disorder present in claimant’s lung on October 27, 1987, was also present within his lungs during the statutory period which elapsed on September 24, 1987. Supporting this inference is claimant’s testimony that since the late 1970’s he had breathing problems. Further, claimant gave each examining physician a history of respiratory symptoms, including a sputum-producing cough and shortness of breath for seven or eight years prior to his retirement. From this record, we find that the Commission’s finding regarding this issue was not against the manifest weight of the evidence.

Respondent’s other contention is that the Commission erred in finding that claimant was totally and permanently disabled. Specifically, the Commission found that claimant was “totally disabled from being gainfully employed as a coal miner or other comparable and gainful work.” Respondent contends that the Commission did not find claimant disabled from all work and that claimant never proved he was totally and permanently disabled within the meaning of the Act. Claimant maintains that the Commission’s decision is not against the manifest weight of the evidence.

A person is totally and permanently disabled for the purpose of workmen’s compensation benefits when he is unable to make some contribution to industry sufficient to justify payment of wages to him. (A.M.T.C. of Illinois, Inc., Aero Mayflower Transit Co. v. Industrial Comm’n (1979), 77 Ill. 2d 482.) However, a claimant need not be reduced to total physical incapacity or helplessness to be found totally and permanently disabled. (A.M.T.C. of Illinois, Inc., 77 Ill. 2d at 487.) A person is totally disabled when he cannot perform services except those that are so limited in quantity, dependability or quality that there is no reasonably stable market for them. Sterling Steel Casting Co. v. Industrial Comm’n (1979), 74 Ill. 2d 273.

Initially, we find that the Commission did determine that claimant was totally and permanently disabled. In this context, the Commission’s finding that claimant could not work in coal mining or in a comparable occupation was tantamount to finding that claimant could perform no gainful employment.

As to whether claimant proved his total and permanent disability, claimant testified that he was 66 years old and had worked all of his adult life in coal mines. He stated that he was unable to perform any type of work. Drs. Khan and Houser opined that claimant should not be exposed further to coal and rock dust. This prohibition coupled with claimant’s age, lack of training in any other job and his physical limitations supports the Commission’s determination that there is no reasonably stable market for his services. Thus, the Commission’s finding that claimant is totally and permanently disabled is not against the manifest weight of the evidence.

The judgment of the circuit court is affirmed.

Affirmed.

McCULLOUGH, P.J., and RAKOWSKI, STOUDER, and H. LEWIS, JJ., concur.