text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KATHLEEN BENTLEY, Defendant-Appellant.
    First District (3rd Division)
    No. 87—2016
    Opinion filed February 8, 1989.

      John T. Kelly, of Orland Park, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Jerry D. Bischoff, and David G. Fischer, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Following a bench trial, defendant Kathleen Bentley was convicted of criminal damage to property and driving under the influence of alcohol. The court sentenced defendant to one year’s court supervision with a condition of eight hours of community service and a $90 fine. In a separate hearing, the court denied defendant’s petition to rescind a statutory summary suspension of her driving privileges for refusal to submit to a breathalyzer test. Defendant appeals, contending that there was insufficient proof that she drove on a public highway; that there were insufficient grounds to believe she was drinking alcohol; that the police failed to offer her a blood test when she did not blow a sufficient air sample into the breathalyzer; and that she was not proved guilty beyond a reasonable doubt of driving while under the influence of alcohol.

Marianne Sink testified that on February 22, 1987, at about 7 p.m., she was in an apartment at 1608 Memorial Drive, Calumet City, Illinois, watching for a friend’s arrival at a surprise party, when she looked out the third-floor window and saw a car drive down the street, slow down and turn into the driveway of the apartment building. Sink testified that the vehicle then struck the rear of her car, which was parked in the driveway, and pushed her car about 15 feet up the driveway. Sink and several others went down to the driveway. Sink observed defendant at the wheel of the car, which was still moving forward. Defendant yelled that they could not park in her driveway, and she pushed Sink’s car up another 15 feet, leaving skid marks on the driveway. Defendant exited the car and had difficulty walking and maintaining her balance. She held onto the car as she walked, then staggered 20 feet to the building. She fell while walking up the stairs. Sink had difficulty understanding what defendant said because her speech was so slurred.

Timothy Barrett, a Calumet City police officer, testified that at 7:04 p.m. he received a report of an automobile accident and dispute between neighbors. He found defendant’s car with its front resting against the rear bumper of Sink’s car in the driveway. Skid marks were present. Barrett went immediately to defendant’s apartment. Defendant opened the door and said, “I screwed up. It is my driveway. They shouldn’t have parked there.” Barrett noted a strong odor of alcohol on defendant’s breath. Her speech was slurred, she swayed and staggered, and she could not even walk through the living room without support. Based on his experience as a police officer, Barrett concluded defendant was intoxicated, and he arrested her. Defendant needed assistance getting down the stairs of the apartment building.

Defendant also needed help walking from her home out to the police car and into the police station. She was informed that the failure to consent to a test of breath, blood or urine would result in the statutory summary suspension of her license. Defendant began to blow into the breathalyzer machine but suddenly threw down the mouthpiece and stated that she was a taxpayer, that she did not have to blow into the machine, and that she knew plenty of cops. Barrett testified that defendant was talking while she had the mouthpiece in her mouth and thus did not blow into the machine hard enough. After she tried the breath test, defendant informed the breathalyzer operator that she suffered from emphysema.

Defendant failed every field sobriety test she was given. She could not stand on one foot and balance, staggered when she tried to walk a straight line, and completely missed the finger to nose test with both hands. Barrett testified that defendant was asked by the breathalyzer operator what she had been doing for the last three hours. She replied, “I’d been drinking. So what?” Barrett believed the breathalyzer operator included that admission in her report. In filling out a criminal report, Barrett recorded defendant’s negative response to his question of whether she had been drinking.

Defendant testified that when she found the car blocking her driveway, she honked the horn repeatedly. She then walked through the building, knocking on doors, in an attempt to find the car’s owner. Paul Sink came out and they argued. Sink started the car, bumping defendant’s car as he did so. Defendant testified that she then pushed the other car up the driveway because she was furious. Defendant testified that she went to her apartment and had a couple of glasses of wine before Barrett arrived. She denied drinking any alcohol prior to the accident. She stated she attempted the breath test three times, and that she informed the police she had emphysema, high blood pressure, heart disease and diabetes. Defendant testified further that she had unsuccessful surgery on her feet, and she offered to show the court the scars on her feet.

Heatherlynn Bentley, defendant’s 18-year-old daughter, testified that she heard her mother honking the horn in the driveway. She looked out and saw Paul Sink back into defendant’s car and try to push it backwards into the street. Defendant then pushed Sink’s car up the driveway. When her mother came into the apartment, she consumed a glass of wine before the police arrived.

Defendant contends there was insufficient evidence to prove she drove on a public highway. Illinois’ implied consent statute provides that a driver operating a motor vehicle on a public highway is deemed to have consented to undergo testing for alcohol in the bloodstream if requested to do so, or else receive a suspension of driving privileges. (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501(aXl).) A highway is the “entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.” (Ill. Rev. Stat. 1987, ch. 951/2, par. 1 — 126.) Defendant argues that she was in a driveway, not on a highway.

Marianne Sink testified that defendant drove her car on Memorial Drive before turning into the driveway. Where evidence shows a person drove on a highway while under the influence of alcohol, such proof is sufficient under the statute, even where the driver is actually arrested on private property. (People v. Kissel (1986), 150 Ill. App. 3d 283, 501 N.E.2d 963.) There was sufficient proof here that defendant operated a motor vehicle on a public highway just prior to the accident.

Defendant next contends there were not reasonable grounds to believe she had been driving under the influence of alcohol, and therefore, the officer could not request her to take a blood-alcohol test. (See Ill. Rev. Stat. 1985, ch. 95x/2, par. 11 — 501.1(aXl).) Reasonable grounds for such a request are to be determined by the officer’s observations of the defendant, even where those observations are made after the driving occurs. People v. Wolsk (1983), 118 Ill. App. 3d 112, 454 N.E.2d 695; People v. Bafia (1983), 112 Ill. App. 3d 710, 445 N.E.2d 878.

In the present case, the arresting officer observed defendant staggering in her home, outside, and at the police station. The breathalyzer operator questioned defendant, who admitted drinking for three hours before the accident. Barrett noted an extremely strong odor of alcohol on her breath, slurred speech, and inability to walk without help. At her home, defendant argued with Barrett, initially refusing to accompany him to the station. “[S]he stated that she didn’t have to come with us, that it was her driveway, that she could do whatever she wanted to. If there was a car in the driveway she could hit” it. Barrett had reasonable grounds to believe defendant was driving under the influence of alcohol and was justified in requesting that she take the blood-alcohol test. See People v. Wolsk, 118 Ill. App. 3d 112, 454 N.E.2d 695; People v. Bafia, 112 Ill. App. 3d 710, 445 N.E.2d 878.

Defendant next contends that her driver’s license was improperly suspended because she did not refuse to take a breathalyzer test. A motorist impliedly consents to a blood-alcohol test under section 11 — 501(a). A trial court decision in an implied consent hearing will not be overturned on appeal unless it is contrary to the manifest weight of the evidence. (People v. Doherty (1986), 144 Ill. App. 3d 400, 494 N.E.2d 933.) Section 11 — 501.1 should be liberally construed to accomplish its purpose of protecting citizens of Hlinois upon the highways. People v. Doherty, 144 Ill. App. 3d 400, 494 N.E.2d 933.

Failure to comply with instructions and provide an adequate sample of air volume constitutes a refusal to take the test. (People v. Doherty, 144 Ill. App. 3d 400, 494 N.E.2d 933.) Barrett testified that defendant put the mouthpiece to her lips, but continued talking, and therefore did not blow sufficient air into the machine. Instead, she threw down the mouthpiece, protested that she was a taxpayer and did not have to blow into the machine. Several breathalyzer reports indicate defendant only blew air out of the side of her mouth. Her conduct constituted a refusal to take the test.

Defendant maintains that she had the right to be given a blood test because of her health problems. Refusal to submit to any single test constitutes a statutory refusal as to all three possible tests: breath, blood or urine. (People v. Cofer (1985), 135 Ill. App. 3d 283, 481 N.E.2d 351; People v. Kiss (1984), 122 Ill. App. 3d 1056, 462 N.E.2d 546.) Moreover, defendant failed every field sobriety test given and admitted she had been drinking for at least three hours. Such evidence of intoxication was consistent with defendant’s other behavior in throwing down the mouthpiece and protesting. The trial court’s finding that defendant refused the test is not contrary to the manifest weight of the evidence.

Defendant finally contends there was insufficient evidence that she was driving and driving under the influence of alcohol. (Ill. Rev. Stat. 1985, ch. 951/2, par. 11 — 501.1(a).) Marianne Sink testified she saw defendant’s car pull into the driveway, and immediately went downstairs, finding defendant behind the wheel. Defendant admitted to Barrett that she hit the car. There was sufficient proof that she was driving.

• 8 There was also sufficient proof of intoxication. When Barrett arrived several minutes after the accident, he noted the odor of alcohol, the inability to walk without support, and the slurred speech. Marianne Sink testified similarly. Barrett opined, based on his experience as a police officer, that defendant had been drinking most of the day. Her conduct was not consistent with someone who had consumed only one drink. Defendant admitted drinking for three hours. The trial court found the testimony regarding defendant drinking the wine not credible, and that defendant had made admissions in regard to how long she had been drinking that day.

Defendant maintains that Barrett did not observe her until half hour after the accident occurred, and after she drank some wine in her home. Sink testified that she was sure the accident occurred at about 7 p.m. because the “girl who the [surprise] party was for” was due at 7 p.m. and arrived about two minutes early. Barrett testified that the radio dispatch was at 7:04 p.m. He arrived at the scene within six minutes. On the police report he estimated that the accident occurred at 6:50 p.m. The court was entitled to reasonably infer from the evidence that defendant could not become so intoxicated after the accident by having one or two glasses of wine within the few minutes prior to Barrett’s arrival at 7:10 p.m.

The State proved beyond a reasonable doubt that defendant was guilty of driving under the influence of alcohol and of criminal damage to property.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

FREEMAN, P.J., and WHITE, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE FREEMAN

license: Public Domain

text:
    WARREN J. HANSEN, Plaintiff-Appellee, v. THE ILLINOIS RACING BOARD et al., Defendants-Appellants.
    First District (3rd Division)
    No. 88—1094
    Opinion filed February 8, 1989.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Karen Michels Caille, Assistant Attorney General, of Chicago, of counsel), for appellants.

      Lawrence Jay Weiner and Joan M. Eagle, both of Schwartz & Freeman, of Chicago, for appellee.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

Defendant, Illinois Racing Board (Board), appeals from an order of the circuit court of Cook County on administrative review which declared Illinois Racing Board Rule 25.19 (11 Ill. Adm. Code 1325.190 (1985)) unconstitutional on its face. The circuit court’s order reversed the order of the Illinois Racing Board which had suspended the occupation license of plaintiff, Warren J. Hansen, for violation of the rule, for refusing to consent to a search of a pick-up truck allegedly within Hansen’s control at the Quad Cities Downs Race Track.

On appeal defendant contends that the trial court erred in finding Rule 25.19 unconstitutional on its face, since the rule provides for a constitutionally permissible warrantless administrative search within the administrative search exception to the fourth amendment. In addition, defendant argues in the alternative that if the circuit court was correct in finding the rule unconstitutional, the trial court erred in awarding plaintiff attorney fees and costs under section 14.1(b) of the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1987, ch. 127, par. 1014.1(b)).

For the reasons stated below, we affirm the judgment of the circuit court.

The record indicates that plaintiff had been licensed by the defendant Board since 1981 as a driver, trainer, and owner of standard bred horses. Joseph Hofmann, an Illinois Department of State Police agent assigned to Quad Cities Downs Racetrack, testified before the Board that on May 24, 1987, between 11 a.m. and 1 p.m., he received a telephone call at his police office in East Moline. The phone call was from an informant who told Hofmann that Warren Hansen had two syringes on his person and that Hansen took those two syringes and put them in his pick-up truck. Hofmann knew that plaintiff had two horses to race that day at Quad Cities Downs. At around 4:30 p.m., Hofmann went to Hansen’s horse barn area on the backstretch of Quad Cities Downs. Hofmann knew that plaintiff had a horse in the eighth race and that the horse had been “specialed,” that is, that a urine sample was taken. Hansen arrived in the bam area around 4:45 p.m. Hofmann then observed a woman approach a red and white pick-up truck parked near the barn. Hofmann asked if she was Mrs. Hansen, and when she replied affirmatively, Hofmann asked her to return to the bam area. Hofmann was accompanied by the assistant steward of Quad Cities Downs Racetrack and the backstretch director of security.

When Hofmann and the others entered the barn, plaintiff and two other men were present. Hofmann identified himself as a police officer and requested permission to conduct an Illinois Racing Board administrative tack search. Plaintiff asked what an administrative search was, and Hofmann responded that it was a search of everything that was under plaintiff’s control at Quad Cities Downs. Plaintiff consented to the search and signed the Illinois State Police consent-to-search waiver form. Hofmann then searched plaintiff’s person and plaintiff’s tack boxes, feed room, and equipment. Nothing was discovered. Hofmann then requested to search the pick-up truck. Hofmann testified that he had seen plaintiff driving in the red and white truck onto the Quad Cities Downs backstretch area previously, and also that he had never seen plaintiff driving any other vehicle at Quad Cities Downs. Plaintiff refused to consent to a search of the truck, stating that he did not own it and he would not consent to a search of something he did not own. Plaintiff stated that the truck was registered to either his mother or his father. Hofmann asked plaintiff’s wife for permission to search the truck, which permission she denied.

Hofmann then went to a telephone in or near the bam and called the racetrack’s senior steward, advising him of what had happened and that plaintiff refused to consent to a search of the track. The steward asked to speak to plaintiff. The steward asked plaintiff if he would consent to the search and plaintiff responded negatively. Hofmann again spoke with the steward, who advised Hofmann that the proper procedure was not to search the truck. He advised Hofmann to return to his vehicle and run a license plate check of the truck, which Hofmann did. The check revealed that the vehicle was registered to plaintiff’s father.

On June 5, 1987, the stewards of Quad Cities Downs suspended plaintiff’s license as a driver and trainer of standard bred race horses for one year for refusing to allow the search of the truck under his control. After a hearing, the Board found that plaintiff’s refusal to consent to the search violated Rule 25.19, promulgated under the Illinois Horse Racing Act of 1975 (Ill. Rev. Stat. 1987, ch. 8, par. 37 — 1 et seq.). Plaintiff thereafter filed a complaint for administrative review in the circuit court. The circuit court reversed the order of the Board, finding the statute unconstitutional on its face. The court also awarded plaintiff $10,625 in fees and $151.80 in costs.

Initially we address defendant’s contention that the circuit court erred in holding Rule 25.19 unconstitutional on its face. Section 9(b) of the Illinois Horse Racing Act of 1975 (Ill. Rev. Stat. 1987, ch. 8, par. 37 — 9(b)) grants the Illinois Racing Board “full power to promulgate reasonable rules and regulations for the purpose of administering the provisions of this Act.” Pursuant to its authority under section 9, the Board promulgated Rule 25.19, which provides in pertinent part:

“(a) The Illinois Racing Board or the state steward investigating for violations of law or the Rules and Regulations of the Board, shall have the power, to permit persons authorized by either of them to search the person, or enter and search the stables, rooms, vehicles, or other places within the track enclosure at which a meeting is held, or other tracks or places where horses eligible to race at said race meeting are kept, of all persons licensed by the Board, and of all employees and agents of any race track operator licensed by said Board; and of all vendors who are permitted by said race track operator to sell and distribute their wares and merchandise within the race track enclosure, in order to inspect and examine the personal effects or property on such persons or kept in such stables, rooms, vehicles, or other places as aforesaid. Each of such licensees, in accepting a license, does thereby irrevocably consent to such search as aforesaid and waive and release all claims or possible actions for damages that he may have by virtue of any action taken under this rule. Each employee of a licensed operator, in accepting his employment, and each vendor who is permitted to sell and distribute his merchandise within the race track enclosure, does thereby irrevocably consent to such search as aforesaid and waive and release all claims or possible actions for damages they may have by virtue of any action taken under this rule. Any person who refuses to be searched pursuant to this rule may have his license suspended or revoked.” 11 Ill. Adm. Code 1325.190 (1985).

The Board rule must be read in view of the prohibition in the fourth amendment to the United States Constitution against unreasonable searches and seizures. This prohibition applies to commercial premises. (New York v. Burger (1987), 482 U.S. 691, 96 L. Ed. 2d 601, 107 S. Ct. 2636.) The protection afforded by the fourth amendment corresponds to the reasonable expectation of privacy of the person whose property or person is subject to a search. The Supreme Court has stated that “[a]n owner or operator of a business thus has an expectation of privacy in commercial property, which society is prepared to consider to be reasonable.” (New York v. Burger (1987), 482 U.S. 691, 699, 96 L. Ed. 2d 601, 612, 107 S. Ct. 2636, 2642, citing Katz v. United States (1967), 389 U.S. 347, 361, 19 L. Ed. 2d 576, 587, 88 S. Ct. 507, 516 (Harlan, J., concurring).) The courts have recognized that there is a reduced expectation of privacy by an owner of commercial premises in an industry that has been closely regulated by the government, such as the liquor and firearms industries. (See Colonnade Catering Corp. v. United States (1970), 397 U.S. 72, 25 L. Ed. 2d 60, 90 S. Ct. 774; United States v. Biswell (1972), 406 U.S. 311, 32 L. Ed. 2d 87, 92 S. Ct. 1593.) Specifically regarding the horse-racing industry, the Illinois Supreme Court has stated:

“Wagering or gambling is an activity which is ‘subject to regulation or to complete prohibition’ [citation] and one in which the State’s interest in protecting the public from dishonest practices and in preserving the integrity of horse racing is clear. It is a truism to say that the horse-racing industry depends upon public confidence in the sport and upon integrity and professional efficiency in its operation. A review of the Horse Racing Act and its comprehensive and detailed list of statutory requirements discloses the legislature’s interest in imposing strict controls on an industry which on occasion has been vulnerable to dishonest men and practices.” Phillips v. Graham (1981), 86 Ill. 2d 274, 286, 427 N.E.2d 550, 555.

Where, in such an area as horse racing, “the privacy interests of the owner are weakened and the government interests in regulating particular businesses are concomitantly heightened, a warrant-less inspection of commercial premises may well be reasonable within the meaning of the Fourth Amendment.” (New York, v. Burger (1987), 482 U.S. 691, 702, 96 L. Ed. 2d 601, 613-14, 107 S. Ct. 2636, 2643.) The Court in Burger further stated that, in order for a warrantless inspection, even in a highly regulated industry, to be reasonable, three criteria must be met. First, the regulation authorizing the inspection must be drawn pursuant to a substantial government interest. Second, the warrantless inspection must be “ ‘necessary to further [the] regulatory scheme’ ” (Burger, 482 U.S. at 702, 96 L. Ed. 2d at 614, 107 S. Ct. at 2644, quoting Donovan v. Dewey (1981), 452 U.S. 594, 600, 69 L. Ed. 2d 262, 101 S. Ct. 2534, 2539). Third, the statute must provide for a sufficiently regular and certain application, as an adequate substitute for a warrant. That is, the statute must “advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers.” (Burger, 482 U.S. 691, 703, 96 L. Ed. 2d 601, 614, 107 S. Ct. 2636, 2644.) The “time, place, and scope of the inspection (United States v. Biswell (1972), 406 U.S. 311, 315, 32 L. Ed. 2d 87, 92, 92 S. Ct. 1593, 1596) must be limited in order “to place appropriate restraints upon the discretion of the inspecting officers” (Burger, 482 U.S. 691, 711, 96 L. Ed. 2d 601, 619, 107 S. Ct. 2636, 2648).

Defendant asserts that Rule 25.19 is consistent with the legislature’s interest in imposing controls on the horse-racing industry. Further, defendant asserts that the rule provides a constitutionally adequate substitute for a warrant.

We find that the first constitutional requirement has been met, as there is a substantial government interest in regulating the horse-racing industry in order to protect the public. (Phillips v. Graham (1981), 86 Ill. 2d 274, 427 N.E.2d 550.) Regarding the second requirement, that the warrantless inspection must be “necessary to further [the] regulatory scheme,” we find that there is some justification for allowing for warrantless searches. The searches are intended to discover the presence of illegal substances or devices which may be used on or in horses by employees of the racetrack to obtain an advantage over other horse racers. Warrantless searches are of benefit for the immediate detection of the use or possession of impermissible substances or objects. Syringes or other illegal objects are easily disposed of, and therefore, allowing for immediate searches of employees and their property is a desirable goal. Requiring a warrant for searches of racetrack employees could seriously impair inspection officers in discovering improper procedures shortly after they occur. Therefore, the warrantless inspection is arguably necessary to carry out the purpose of the rule.

We find, however, that Rule 25.19 fails to meet the third requirement, since the rule does not properly limit the discretion of the inspecting officers. For instance, the rule fails to provide the proper procedure for the officer to follow when the employee refuses to consent to or objects to part of the search, as occurred in the instant case when plaintiff refused to consent to a search of the truck. Nor does the rule set forth the procedure for the employee to follow who decides not to consent to the requested search. In addition, the rule fails to set forth appropriate times for inspections or the frequency of inspections, or the proper method for choosing who is subject to a search at a given time. In the instant case, Hofmann telephoned the racetrack’s senior steward in order to discover the appropriate procedure upon plaintiff’s objection to the search. The action of Hofmann, therefore, depended upon the advice of the steward. We believe that, in the interest of uniformity in application, the rule should set forth what is the proper procedure in the case of a refusal to consent to such a search, and further, should provide for the proper times and frequency of searches. For these reasons, we believe that the rule fails to meet the third constitutional requirement and that the trial court was correct in finding the rule violative of the Constitution.

Defendant cites People v. Strauss (1986), 151 Ill. App. 3d 191, 502 N.E.2d 1287, in which the court found that a warrantless pat-down search of a jockey pursuant to Rule 25.19 was valid under the administrative search exception to the fourth amendment’s warrant requirement and was reasonable under the circumstances. (Strauss, 151 Ill. App. 3d at 198.) Defendant notes that the court in Strauss declined to follow the holding and reasoning of Serpas v. Schmidt (N.D. Ill. 1985), 621 F. Supp. 734, later affirmed in Serpas v. Schmidt (7th Cir. (1987), 827 F.2d 23, cert, denied (1988), 485 U.S. 904, 99 L. Ed. 2d 234, 108 S. Ct. 1075, which case was relied on by the trial court in the instant case to find Rule 25.19 unconstitutional. Defendant contends that in the instant case, we should also decline to follow the reasoning in Serpas and should instead look to the analysis and holding in Strauss in reaching our decision.

In Serpas, the Seventh Circuit court addressed, among other things, a fourth amendment constitutional challenge of warrantless searches of the on-track dormitory rooms of racetrack employees. The court found that Rule 25.19 failed to provide for searches of the dormitories. (Serpas, 827 F.2d at 28.) The court stated, “[g]iven the legal protection historically afforded the home by the Fourth Amendment [citation], we will not assume that the Illinois legislature meant to authorize warrantless residential searches unless it clearly stated this intention.” (Serpas, 827 F.2d at 29.) The court found that since the statute fails to allow for searches of residences, it fails to limit the discretion of inspecting officials who wish to search the dormitories. Serpas, 827 F.2d at 29.

We find the reasoning in Serpas to be instructive and in accord with constitutional requirements. Further, we decline to follow the analysis of Strauss, since the court in that case failed specifically to address the constitutional requirement set forth in New York v. Burger (1987), 482 U.S. 691, 96 L. Ed. 2d 601, 107 S. Ct. 2636, that the regulatory statute properly limit the discretion of the inspecting officers. In Strauss, the court declined to follow the reasoning in Serpas and instead asserted its reliance on the Third Circuit decision in Shoemaker v. Handel (3d Cir. 1986), 795 F.2d 1136, cert, denied (1986), 479 U.S. 986, 93 L. Ed. 2d 580, 107 S. Ct. 577, in which the court found that breathalyzer and urine tests of jockeys were constitutionally permissible. The court in Strauss, however, failed to recognize that the court in Shoemaker, in finding the breathalyzer and urine tests constitutional, relied to a significant extent on its finding that the regulatory statute authorizing the tests left “no discretion” in the inspecting officer who conducts the searches. The court in Shoemaker found that the jockeys were subject to daily breathalyzer tests and that the urine tests were part of a daily program at the track, which involved a random method of choosing those who were to be searched. The choice of who would be tested was made by a lottery and in no way was left to the discretion of the searching officer. (Shoemaker, 795 F.2d at 1143.) The analysis in Shoemaker, therefore, is not contrary to the analysis employed in the instant case, and we are unpersuaded by defendant’s argument that Strauss should be relied upon here.

Finally, defendant asserts in the alternative that if the circuit court was correct in finding that Rule 25.19 was unconstitutional on its face, the court erred in awarding plaintiff attorney fees and costs under section 14.1(b) of the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1987, ch. 127, par. 1014.1(b)). Section 14.1(b) provides:

“In any case in which a party has any administrative rule invalidated by a court for any reason, including but not limited to the agency’s exceeding its statutory authority or the agency’s failure to follow statutory procedures in the adoption of the rule, the court shall award the party bringing the action the reasonable expenses of the litigation, including reasonable attorney’s fees.” (Ill. Rev. Stat. 1987, ch. 127, par. 1014.1(b).)

Defendant asserts that since the court in Serpas v. Schmidt (7th Cir. (1987), 827 F.2d 23, cert, denied (1988), 485 U.S. 904, 99 ,L. Ed. 2d 234, 108 S. Ct. 1075, previously declared Rule 25.19 unconstitutional, plaintiff was not entitled to an award of costs and fees under section 14.1(b).

We disagree. Since the common law prohibited a prevailing party from recovering attorney fees, statutes which allow for such awards must be strictly construed. (Navarro v. Edgar (1986), 145 Ill. App. 3d 413, 495 N.E.2d 1085.) Section 14.1(b) allows for the recovery of attorney fees where a party has an administrative rule declared invalid. (See Gonzales-Bianco v. Clayton (1983), 120 Ill. App. 3d 848, 458 N.E.2d 1156.) However, where an administrative rule previously has been declared invalid, a subsequent case challenging the rule is not one in which section 14.1(b) authorizes an award of attorney fees. (Sutton v. Edgar (1986), 147 Ill. App. 3d 723, 498 N.E.2d 295.) The court in Serpas held that the application of Rule 25.19 to the circumstances in that case was unconstitutional. The facts of Serpas clearly are distinguishable from the circumstances of the instant case, in that Serpas involved a search of an employee’s on-track residence. The holding in Serpas, therefore, would not be controlling over the facts of the instant case. Our reading of the Serpas holding does not indicate that the court in Serpas found Rule 25.19 invalid or unconstitutional on its face. Therefore, we do not believe that the holding in Serpas precludes an award of attorney fees and costs under section 14.1(b) in the instant case.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

McNAMARA and WHITE, JJ., concur.


author: JUSTICE LINN

text:
    JOSE GONZALEZ, Petitioner, v. THE HUMAN RIGHTS COMMISSION et al., Respondents.
    First District (4th Division)
    No. 88—0600
    Opinion filed February 2, 1989.

      Stephen Stern and Brian Smith, both of Legal Assistance Foundation of Chicago, of Chicago, for petitioner.
    Vedder, Price, Kaufman & Kammholz, of Chicago (Richard H. Schnadig and Kim A. Liffert, of counsel), for respondents.
   JUSTICE LINN

delivered the opinion of the court:

■ Petitioner, Jose Gonzalez, was discharged from St. Anne’s Hospital. He filed a charge with the Illinois Department of Human Rights, alleging that the hospital had discharged him in retaliation for his previously filing discrimination charges against St. Anne’s. The Human Rights Commission (Commission) dismissed his complaint as being untimely filed and therefore did not reach the merits.

Gonzalez appeals, contending that his complaint was improperly dismissed because the 180-day period for filing charges in accordance with the Illinois Human Rights Act (Act) (Ill. Rev. Stat. 1983, ch. 68, par. 1 — 101 et seq.) is not a jurisdictional limitation, but rather a statute of limitations that can be equitably tolled and should have been tolled under the circumstances of this case. He had given his typed and signed statement of the charge to the agency within the 180-day period, but it had not been retyped on the Department’s charge form and verified until after that period. Gonzalez additionally argues that the oath and affirmation requirement of the Act is not jurisdictional in the sense that it must be satisfied at the time charges are required to be filed.

We reverse and remand.

Background

Gonzalez, a former mental health technician with St. Anne’s Hospital, was discharged on July 28, 1983. He filed charges with both the Equal Employment Opportunity Commission (EEOC) and the Illinois Department of Human Rights (Department), claiming that the discharge was discriminatory. The EEOC found no reasonable cause for the charge and therefore issued its letter dismissing the charge and notifying Gonzalez of his right to sue in the Federal district court. The Illinois Human Rights Department, however, eventually determined that Gonzalez’ charge was based on substantial evidence and filed a complaint with the Human Rights Commission, naming St. Anne’s Hospital as respondent.

The hospital filed a motion to dismiss on jurisdictional grounds. The administrative law judge (ALJ) held an evidentiary hearing on the motion because of her belief that there were factual issues relating to the timeliness of the filing of the charge.

At the hearing Gonzalez testified that he contacted his attorney on January 10 or 11, 1984, concerning a possible action under the Illinois Human Rights Act (Ill. Rev. Stat. 1983, ch. 68, par. 1 — 101 et seq.). The attorney typed up the charge using the Illinois Department of Human Right’s client information sheet (CIS), a form that provides spaces for the pertinent information and for signature, but no space for notarization or oath.

On January 20, 1984, at 12:11 p.m., Gonzalez took his signed charge (the CIS form) to the Department for filing. This was 176 days after his discharge. When he went to the Department’s office to file the charge, he was told to wait for the Department to retype it, after which he was to sign it and have it notarized. At this time, the general procedure of the Department was for the CIS form to be submitted to the receptionist for stamping, after which it was given to an intake investigator, who would interview the complaining party. Gonzalez waited two or three hours to be called. However, at 4:30 or 5 p.m. a Department representative told Gonzalez that no typist or notary was available and that he should go home. Someone would then mail him the retyped charge for his signature and for notarization. The receptionist assured Gonzalez that there would be no problem with this procedure.

Gonzalez further testified at the hearing that he called the Department three or four days later to inquire about the charge. He was told that it was on the way. On January 31, 1984, seven days after the expiration of the 180-day period, the Department mailed the charge to him. On that same day, the Department mailed a letter to St. Anne’s, notifying the hospital that Gonzalez had “filed a charge” against the hospital, which the Department “docketed *** as an unperfected charge pursuant to its Rules and Regulations,” and that the enclosed charge did not require a response at that time since it was unperfected.

On February 13, 1984, Gonzalez returned a signed and notarized copy of the charge, which the Department received on the twenty-third of the month. The Department then investigated the charge and, based upon a finding of substantial evidence of unlawful discrimination, filed its complaint with the Illinois Human Rights Commission against St. Anne’s on February 7,1986.

St. Anne’s filed a motion to dismiss the complaint on the grounds that the Department lacked jurisdiction because Gonzalez’ charge was not filed within the 180-day limitation set out in section 7 — 102(A)(1) of the Act. (Ill. Rev. Stat. 1985, ch. 68, par. 7 — 102(A)(1).) In response, the Department, on Gonzalez’ behalf, denied the untimeliness argument, stating that the requirements of the Act had been satisfied by his filing of the CIS form within the 180-day period.

The Department told the ALJ that in over 5,000 cases since July 1980, it had docketed unperfected charges. This procedure allowed aggrieved parties to file the CIS form as a charge, without the oath or affirmation, and permitted the treatment of such filings as timely once the Department received back from the claimants retyped charges that were signed and sworn. As far as the Department was concerned, the CIS form contained sufficient information to constitute a charge within the Act. The Act itself does not require any specific form of pleading. See Ill. Rev. Stat. 1987, ch. 68, pars. 1—103(C) (defining charge as “an allegation filed with the Department by an aggrieved party”), 7 — 102(A)(2) (“The charge shall be in such detail as to substantially apprise any party properly concerned as to the time, place, and facts surrounding the alleged civil rights violation”).

The ALJ’s recommended order and decision concluded that the charge should be dismissed, finding that the charge was not timely; therefore, the Department and Commission had no jurisdiction over the matter. Further, the ALJ held that the tolling doctrine was inapplicable and could not waive the jurisdictional limit imposed by section 7 — 102(A) of the Act.

The Department filed lengthy exceptions to the recommended order and decision, and the hospital filed its response, for the Commission’s review.

On January 25, 1988, the Commission entered its order and decision dismissing Gonzalez’ complaint on the ground that the 180-day period was jurisdictional and that the CIS form did not meet the oath and affirmation requirement of the Act. By its decision, the Commission rejected the Department’s contention that its administrative rule conferred jurisdiction under the Act because the rule allowed the submission of a CIS form to be treated as as valid charge, subject to being perfected by oath. Further, the Commission ruled that Gonzalez’ own conduct, not that of the Department, had prevented the timely filing of the charge.

Opinion

We note, initially, that the ALJ and Commission did not accord much weight to the Department’s admitted practices and procedures. Unless these procedures clearly violate the intent of the Human Rights Act, they cannot be considered void. The Department is the body charged with implementing a claimant’s filing under the Act; absent compelling reasons, Gonzalez should not lose the right to a hearing on his claim on the grounds that the Department’s instructions to him were incorrect.

The ultimate issue in this case, however, is whether Gonzalez satisfied the statutory requisites for filing his charge. The two related aspects of this issue that the parties raise are: (1) whether the 180-day filing period is jurisdictional (as opposed to being a statute of limitations subject to equitable doctrines, such as tolling) and (2) whether the absence of the claimant’s oath or affirmation at the time the charge is filed is fatal when the charge itself is filed within 180 days but the oath is supplied later. In our view, the case turns on whether the oath, when supplied, cured any technical defect in the charge that Gonzalez had filed within the 180-day period. If so, the filing was timely.

The provision that governs the timely filing of the charge states, “Within 180 days after the date that a civil rights violation allegedly has been committed, a charge in writing under oath or affirmation may be filed with the Department by an aggrieved party or issued by the Department itself under the signature of the Director.” Ill. Rev. Stat. 1987, ch. 68, par. 7 — 102(AX1).

St. Anne’s argues that the legislature intended the 180-day period in section 7 — 102(A)(1) to be jurisdictional because section 7 — 102(B), which sets out the 10-day period in which the Department is to give notice of the charge to the respondent, contains an express caveat that the time period in that subsection “shall not be construed to be jurisdictional.” (Ill. Rev. Stat. 1987, ch. 68, par. 7 — 102(B).) The hospital reasons that because the legislature could have put a similar provision in subsection A, but did not, the reasonable construction (by negative implication) is that the 180-day period in that section is jurisdictional.

We are not persuaded that section 7 — 102(A)(1) must be construed as jurisdictional in the sense urged by respondent simply because the legislature specifically expressed an intent in subsection B on the effect of an entirely separate time period. The legislature was silent as to the effect of the 180-day period in subsection A, when it could have included express language making that period jurisdictional. Without a divining rod, we cannot discover the legislative intent on this issue.

To determine whether a statutory time period is “jurisdictional,” rather than one that can be tolled or waived in some instances, the courts generally attempt to decide whether the right of action created by the particular act is a substantive right unknown at common law and one that also makes the time for filing the charge an inherent element of the right created. If so, it cannot be treated as a statute of limitations. (Pickering v. Human Rights Comm’n (1986), 146 Ill. App. 3d 340, 346-49, 496 N.E.2d 746; cf. Springfield-Sangamon County Regional Plan Comm’n v. Fair Employment Practices Comm’n (1978), 71 Ill. 2d 61, 373 N.E.2d 1307) (noting that under predecessor Fair Employment Practices Act, 180-day filing period, while “mandatory,” was not “jurisdictional” in the sense that it could not be waived). In other words, if meeting the time period is a condition precedent of the plaintiff’s right to seek a remedy, the given time period is jurisdictional. (See Fredman Brothers Furniture Co. v. Department of Revenue (1985), 109 Ill. 2d 202, 209-10, 486 N.E.2d 893, 895.) If the period is treated as a statute of limitations, however, the equitable tolling doctrine or other means of abatement may apply if the circumstances justify it. (E.g., Zipes v. Trans World Airlines, Inc. (1982), 455 U.S. 385, 393, 71 L. Ed. 2d 234, 243, 102 S. Ct. 1127, 1132.) The difference in treatment is that a jurisdictional limitation is considered a part of the liability or cause of action itself, while a statute of limitations operates to preclude the remedy only. Fredman Brothers Furniture Co. v. Department of Revenue (1985), 109 Ill. 2d 202, 486 N.E.2d 893.

Under the hospital’s analysis, the statute is jurisdictional and the charge that Gonzalez attempted to file within the 180-day period was insufficient because it did not contain the oath or affirmation of Gonzalez at that time. Under this theory the facts surrounding his filing of the charge and what he was told about filing procedures is irrelevant; it would only be pertinent to the application of an equitable doctrine that would abate the limitations period.

Both the ALJ and the Commission relied heavily on the Second District Appellate Court’s decision in Pickering v. Human Rights Comm’n (1986), 146 Ill. App. 3d 340, 496 N.E.2d 746. The plaintiff in that case filed a charge of age and handicap discrimination almost a year after his termination. Rejecting the argument that section 7— 102(A) of the Act should be treated as a statute of limitations, the court concluded that since “the act itself creates substantive rights unknown at common law and at the same time prescribes the time within which a party must file” the charge, “the 180-day filing requirement must be deemed to be jurisdictional.” 146 Ill. App. 3d at 346, 496 N.E.2d at 750.

In Pickering, the claimant had done nothing to pursue his claim for almost a year after the alleged discrimination, despite conferring with an attorney, and the Department dismissed the charge. The Commission sustained the dismissal, citing lack of jurisdiction over the matter. The trial court, on administrative review, reversed and remanded for a hearing on the plaintiff’s contention that tolling, waiver, or other equitable considerations applied. In reversing the trial court, the appellate court concluded that once it found the 180-day period to be jurisdictional, no equitable doctrines were available to circumvent that limit, with the narrow exception of estoppel. Citing Lee v. Human Rights Comm’n (1984), 126 Ill. App. 3d 666, 467 N.E.2d 943, the Pickering court held that the 180-day period would be extended only if the agency’s misleading conduct caused the claimant to miss the deadline. Pickering, 146 Ill. App. 3d at 349, 496 N.E.2d at 752.

Even under Pickering, Gonzalez would appear to have a good claim to estoppel as an exception to the limitation period. We do not adopt Pickering’s rationale or holding that the 180-day period is jurisdictional, however. Because of our conclusion that the filing in this case was timely, we need not decide the broader question of whether the filing period in section 7 — 102(A)(1) is jurisdictional or a statute of limitations.

We believe that the narrower, dispositive issue in this case centers on the oath and affirmation requirement of section 7 — 102(A): Does the unperfected charge, timely filed, become a nullity if the oath is supplied after the 180-day period, or does the supplying of the oath “relate back” to the original filing? The hospital argues that the absence of Gonzalez’ verified signature on the CIS form he filed with the Department is absolutely fatal to his ability to maintain his claim. Like the jurisdictional argument, this one provides for no leeway, no relaxation of rigid rules.

As an alternative argument, the hospital cites Gonzalez’ own conduct as being responsible for the dismissal of his charge. This suggests, perhaps unfairly, that one who files a defective charge toward the end of the limitation period is less diligent than one who starts the filing procedure earlier and therefore has a better chance of curing any defect within the 180-day period.

Gonzalez does not contend that the Department should act upon unsworn charges or that he was excused from furnishing his oath for the charge contained in his CIS form. Rather, he points out that the Department itself treated the unsworn CIS form as an “unperfected” charge, but a charge nonetheless, to be docketed in accordance with its rules. Section 2520.350 of the Department’s rules allows the acceptance of a charge which “complies substantially” with the requirements of the Act but “which is not notarized” or is lacking other elements. Such statement is treated as an unperfected charge, to be docketed, and the Department is to send the claimant a letter specifying which elements must be supplied to perfect the charge. The very language of this section demonstrates the validity of the unperfected charge; it is not considered void, merely inchoate. The Department, in fact, takes jurisdiction over the charge; it merely declines to proceed unless and until the missing element, such as notarization, is supplied.

This practice is consonant with another Department rule, section 2520.360, which allows “a charge or any part thereof” to be “amended by the complainant to cure technical defects or omissions, or to clarify or amplify allegations made therein ***, and such amendments shall relate back to the original filing date.” Under this rule, if the absence of the oath at the time the charge was filed is considered a technical omission, Gonzalez’ filing was not untimely. This is how the Department viewed it.

We agree with the Department’s interpretation of its own rules. Gonzalez was expressly assured by the Department that he could leave the CIS form for retyping, that it would then be mailed out for his signature and oath, and that there would be “no problem” with this procedure. The Department in fact had followed that procedure and accepted unperfected charges in thousands of cases. Following its own rules, the Department did not act on the charge until it had been perfected. The hospital was not prejudiced in any way, nor was it faced with a stale claim. Notice of the unperfected charge was sent to the hospital upon its receipt. Gonzalez supplied his notarized signature within a reasonable time after receiving the typed charge in the mail.

We do not suggest that the oath requirement is a technicality in the sense that it need never be supplied or that it is an insignificant part of the charge. Requiring a claimant to make his allegations under oath may minimize frivolous filings. However, the Department’s own rules permit the filing of charges without notarization and permit liberal amendment to cure technical omissions. Since Gonzalez filed his unperfected CIS form within the 180-day period, it was not in fact untimely because the subsequent filing of the oath or affirmation “relates back” to the initial filing.

Sound support for this interpretation is found in Choate v. Caterpillar Tractor Co. (7th Cir. 1968), 402 F.2d 357. The Seventh Circuit held that the oath requirement for a charge under Title VII was not a jurisdictional prerequisite to maintaining the claim. The court expressly cited the EEOC’s regulation which allows aggrieved parties to amend their complaints “ ‘to cure technical defects or omissions, including failure to swear to the charge.’ ” (402 F.2d at 360, quoting 29 C.F.R. §1601.11 (1968).) Amendments made under this regulation relate back to the original filing date. 402 F.2d at 360.

As long as the original charge is filed within the 180-day period, as it was here, a liberal amendment policy makes sense. The hospital received prompt notice but did not have to act on the unperfected charge. If Gonzalez had never supplied the oath, nothing more would have happened. Moreover, if Gonzalez had waited an unreasonable amount of time before furnishing the oath he may not have been entitled to proceed on his claim. Under equitable principles, a claimant attempting to benefit from a tolling or other abatement of the 180-day period might well find himself barred by laches if he failed to act expeditiously.

Here, no facts indicate that Gonzalez intended to abandon his claim. Within a reasonable time after receiving the typed charge from the Department, he furnished his oath. Whether he could or should have gotten his CIS form on file before the 176th day is a factual matter that is immaterial to the legal issues raised. The ALJ accepted Gonzalez’ unrebutted testimony as to the factual circumstances surrounding the filing. The Commission’s comments to the effect that Gonzalez’ conduct was responsible for the tardy filing are not probative on the ultimate issues in this case and may be disregarded.

Based on our reading of the statute and the pertinent authorities, we hold that the CIS charge, plus the later supplied oath, satisfied section 7 — 102 of the Act in this case. Accordingly, the charge was not untimely filed.

For the foregoing reasons, we reverse the Commission’s order and remand this cause for proceedings on the merits.

Reversed and remanded.

JOHNSON and McMORROW, JJ., concur.

       The Department’s CIS form allows the aggrieved party to set out the pertinent allegations. There is a space for signature, but not for oath or notarization. The Department then takes the CIS information and retypes it on another form. This form, entitled “Charge of Discrimination,” contains a printed block that states “I swear or affirm that I have read the above charge and that it is true to the best of my knowledge, information and belief.” There is a space for the complainant’s signature underneath, as well as a space for notarization.

         Pickering acknowledged that one of the criteria for determining whether the limitation period is jurisdictional is whether the right in question is created by the statute or whether the statute merely provides the procedural framework for redressing the right. The Illinois Human Rights Act states its aim is “to secure and guarantee the rights established by Sections 17, 18, and 19 of Article I of the Illinois Constitution of 1970.” (Ill. Rev. Stat. 1987, ch. 68, par. 1 — 102(C).) Several courts view the Act as the procedural vehicle for enforcing the constitutional right to be free from unlawful discrimination. (E.g., Thakkar v. Wilson Enterprises, Inc. (1988), 120 Ill. App. 3d 878, 458 N.E.2d 985; Dilley v. Americana Healthcare Corp. (1984), 129 Ill. App. 3d 537, 472 N.E.2d 596.) Pickering’s holding that at least some of the rights secured in the Act were of statutory, rather than constitutional, origin apparently influenced the court’s decision that the 180-day period was an inherent part of the cause of action and thus jurisdictional.
      We believe, however, that the more persuasive authority on the jurisdictional issue is the United States Supreme Court’s interpretation of the Federal counterpart to the Illinois Human Rights Act. In Zipes v. Trans World Airlines, Inc. (1982), 455 U.S. 385, 393, 71 L. Ed. 2d 234, 243, 102 S. Ct. 1127, 1132, the Court interpreted Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. (1970), holding that filing a timely charge of discrimination with the EEOC was not a jurisdictional prerequisite to suit in the Federal court but was in the nature of a statute of limitations subject to waiver, estoppel, and equitable tolling. After enumerating its considered reasons for this construction of the time period, the Court noted that employers’ right to prompt notice of claims would not be undercut by treating the period as a statute of limitations. Zipes, 455 U.S. at 398, 71 L. Ed. 2d at 246-47, 102 S. Ct. at 1135.

       The Commission stated, “Although the Department of Human Rights was taking the position that the Complainant’s CIS form was a timely charge, the Complainant, who was represented by counsel, had no right to rely on that interpretation. The Complainant’s counsel had the duty to read the statute, and comply with its plain meaning.”


author: JUSTICE PINCHAM LORENZ, J., PRESIDING JUSTICE MURRAY,

text:
    BERNARD J. CALLAHAN, Plaintiff-Appellant, v. L.G. BALFOUR et al., Defendants-Appellees.
    First District (5th Division)
    No. 86—2138
    Opinion filed February 3, 1989.
    Rehearing denied March 2, 1989.

      MURRAY, P.J., dissenting.
    Arthur R. Ehrlich, of Goldman & Marcus, of Chicago, for appellant.
    Arlene C. Erlebacher and Georgia L. Vlamis, both of Sidley & Austin, of Chicago, for appellees.
   JUSTICE PINCHAM

delivered the opinion of the court:

Plaintiff, Bernard Callahan (Callahan), brought this action against defendant, L.G. Balfour company (Balfour), for breach of contract and fraud. Balfour filed a counterclaim against Callahan for breach of contract. The trial court granted Balfour summary judgment on Callahan’s breach of contract claim against Balfour. Callahan’s claim against Balfour for fraud and Balfour’s counterclaim against Callahan for breach of contract were jointly tried before a jury. The jury rendered a verdict against Callahan on his fraud claim and a verdict on behalf of Balfour on its counterclaim against Callahan for breach of contract. The trial court denied Callahan’s motions for judgment notwithstanding the verdict and a new trial. Callahan appeals. We reverse.

Callahan’s breach of contract claim against Balfour alleged that Balfour, a manufacturer of high school rings, diplomas and other school items, wrongfully terminated Callahan’s employment with Balfour as a sales representative and that Balfour owed Callahan $186,686 in commissions and equity payments that Callahan earned as a sales representative. Balfour defended on the grounds that Calla-ban’s employment contract was terminable at will, that Callahan accepted employment with Balfour’s competitors within two years after he was discharged from Balfour, that a covenant not to compete in Callahan’s employment contract prohibited him from doing so, and that a clause in the covenant not to compete allowed Balfour to retain Callahan’s commissions and equity payments as liquidated damages for Callahan’s breach of his employment contract.

Callahan’s fraud claim against Balfour alleged that Balfour induced Callahan to continue working as a Balfour sales representative by promising Callahan that none of his accounts would be reassigned to other salesmen without his consent when Balfour knew at that time it made the promise to Callahan that Balfour had already reassigned three of Callahan’s major accounts to two new sales representatives.

Balfour’s breach of contract counterclaim against Callahan alleged that Callahan owed Balfour $36,431 for school rings and other school items which were advanced to Callahan by. Balfour.

The trial court granted summary judgment on behalf of Balfour on Callahan’s breach of contract claim based on the covenant not to compete in Callahan’s employment contract.

The pertinent facts adduced at trial on Callahan’s fraud claim against Balfour and Balfour’s breach of contract counterclaim against Callahan follow. In 1955, Callahan began working as a regional sales representative in Chicago for Balfour. In 1979, Balfour negotiated tentative employment contracts with prospective regional representatives Thomas Young and James Coleman. As a condition of accepting employment at Balfour, Young required the assignment to him of two accounts, the Morton East and Morton West High Schools, which were then assigned to Callahan. As a condition of accepting employment at Balfour, Coleman insisted that the Carl Sandberg High School account, which was also then assigned to Callahan, be assigned to him.

Balfour maintained at all times that it would not seek to reassign any of Callahan’s active accounts or the inactive accounts upon which Callahan was “aggressively calling.” On July 16, 1979, and September 15, 1979, and numerous other occasions, Balfour assured Callahan that none of his accounts would be reassigned without his consent. However, prior to September 15, 1979, Balfour reassigned Callahan’s Morton East and Morton West accounts to Young and Callahan’s Sandberg account to Coleman. Callahan had constantly called upon these schools in recent years, but had lost bids to sell rings to them. Balfour complained that Callahan’s coverage of these schools was inadequate, but only after Balfour terminated Callahan’s employment in March 1980. Within two years of his discharge from Balfour, Callahan worked for two of Balfour’s competitors.

I

Callahan first contends on appeal that the trial court erred in granting summary judgment on behalf of Balfour on counts II through V of Callahan’s complaint. Counts II through V stated a claim of breach of the employment contract and sought damages totalling $186,686, which Callahan alleged he earned in commissions and equity payments. Balfour argued that Balfour was not liable to Callahan for the commissions and equity payments because Callahan breached a covenant in his employment contract not to compete by working for two of Balfour’s competitors within two years after his discharge from Balfour, and therefore, by reason of a liquidated damages provision contained in the covenant not to compete, Balfour contended that Callahan forfeited his commissions and equity payments.

The covenant not to compete in Callahan’s employment contract states:

“In the event of the termination of this Contract for any reason, the Regional Representative agrees that for a period of two (2) years after such termination, he will not directly or indirectly, for himself, or as an agent of, or in behalf of, or in conjunction with any person, firm association, or corporation, sell or solicit orders for any other merchandise of the kind or character manufactured, or sold by Balfour within the territory that had been assigned to the Regional Representative. In addition to any equitable remedies to which Balfour may be entitled, Balfour may withhold as liquidated damages any sums that may be due from Balfour to the Regional Representative.”

In Donow v. Board of Trustees (1974), 21 Ill. App. 3d 139, 314 N.E.2d 704, the court considered whether the defendant was entitled to withhold plaintiff’s paychecks as liquidated damages. The defendant argued that the money withheld from the plaintiff’s paychecks was liquidated damages. The defendant argued that the money withheld from plaintiff’s paychecks represented a penalty for the plaintiff’s violations of the university’s traffic rules. The court stated:

“First, there is no sum certain stipulated for specific offenses. *** Liquidated damages must generally be for a sum certain for a specified breach. [Citation.] Secondly, liquidated damages are usually considered to be paid in lieu of performance and are not specifically intended to secure performance of the provisions. ***
Under the circumstances *** the assessments section is the equivalent to a penalty clause. The courts of Illinois lean toward this construction of provisions of this sort *** and rather treat such clauses as penalties which will not be enforced, the aggrieved party being able to recover actual damages only.” Donow v. Board of Directors (1974), 21 Ill. App. 3d 139, 148, 314 N.E.2d 704.

The aforementioned covenant not to compete in the case at bar provides that Balfour “may withhold as liquidated damages any sums that may be due” to Balfour if the regional representative, Callahan, breaches the covenant. Callahan earned commissions on orders for rings which he sold for Balfour. Callahan also earned equity payments under a program which provided for the orderly transfer of territory from a retiring regional representative to a new regional representative with a percentage of the successor representative’s commissions credited to the retiring representative’s commissions. The commissions and equity payments could vary significantly depending on the number of orders the regional representative placed and the date the accounts were reassigned. Thus, the liquidated damages provision failed to state a sum certain to be forfeited. Additionally, the liquidated damages were not assessed in lieu of Callahan’s performance, but were specifically intended to prevent Callahan from accepting employment with Balfour’s competitors.

For a liquidated damages provision of a covenant not to compete to be enforceable, the damages resulting from breach of the covenant not to compete must be difficult to calculate and the amount of the fixed damages must be a reasonable forecast of the damage likely to occur. Both elements must be present. Otherwise, the provision will be construed as a penalty. Bauer v. Sawyer (1956), 8 Ill. 2d 351, 359.

The amount of commissions and equity payments Balfour owed to Callahan varied with the number of orders Callahan and his successor placed, rendering the damages difficult to determine. However, for the liquidated damages provision of the covenant not to compete to be enforceable, the amount of fixed damages which Balfour set forth in the covenant not to compete must also be a reasonable forecast of the damages likely to occur from Callahan’s employment with Balfour’s competitors.

In Bauer, the partnership agreement provided that when a physician left the partnership the remaining partners would purchase the departing physician’s interest at a certain rate, which rate would vary according to whether the physician’s departure was voluntary or involuntary. The agreement further provided that a physician who breached the covenant not to compete would forfeit, as liquidated damages, any forthcoming sums due him. The court held that this liquidated damages provision was a penalty and therefore unenforceable. The medical partnership was required to remit to the departing physician his remaining interest in the partnership.

Likewise, in the instant case the variation in the amount of commission and equity payments which could enure to Balfour as damages rendered the liquidated damages provision ineffective as a reasonable forecast of the actual damages Balfour would suffer from Callahan’s breach of the covenant not to compete.

Illinois courts encourage fair competition in business and abhor restraints on trade, and covenants in employment contracts not to compete are carefully scrutinized. A restrictive covenant may be held enforceable if the time limit and geographical scope are reasonable, if confidential information or trade secrets are involved, and if the restriction is reasonably necessary for the protection of a legitimate business interest. (Image Supplies, Inc. v. Hilmert (1979), 71 Ill. App. 3d 710, 713, 390 N.E.2d 68.) Only two such business interests have been recognized by the courts, a near permanent customer relationship and confidential information. Lincoln Towers Insurance Agency v. Farrell (1981), 99 Ill. App. 3d 353, 425 N.E.2d 1034.

Neither interest is present in the instant case. The evidence established that many salesmen competed to sell rings to schools that were assigned to Callahan and that a salesman who won at a school one year could lose the bid to a competitor at that school the next year. Balfour, therefore, cannot persuasively claim that it enjoyed a near permanent customer relationship with any school that was assigned to Callahan.

Balfour’s claim that Callahan possessed confidential information for which Balfour required the protection of a restrictive covenant is fallacious. The names and addresses of Balfour’s high school customers were generally known and readily ascertainable by Balfour’s competitors and therefore certainly were not confidential. Neither were Balfour’s prices confidential, since they were determined by the regional representative and could be obtained by anyone who contacted and asked the schools.

Neither can Balfour be said to have a protectable business interest in Callahan’s familiarity with the high schools assigned to Callahan. A salesman’s knowledge of or familiarity with customers is very similar to his personal skills and therefore cannot be considered the property or protectable interest of his employer. Lincoln Towers Insurance Agency v. Farrell (1981), 99 Ill. App. 3d 353, 425 N.E.2d 1034.

Callahan contends that the covenant not to compete is overly restrictive and unduly burdensome. We agree. The geographic scope of the covenant, Chicago and seven surrounding counties, if enforced, would force Callahan to find a new home beyond the geographical area or forfeit his commissions in order to continue in the only profession he has known for 30 years. Such a result does not involve a minor inconvenience for Callahan, especially when balanced against the minuscule benefit attendant to Balfour. McCormick v. Empire Accounts Service, Inc. (1977), 49 Ill. App. 3d 415, 364 N.E.2d 420.

For the foregoing reasons, we conclude that the trial court erred in granting Balfour summary judgment on Callahan's breach of contract claim on the basis of the covenant not to compete in the employment contract. We therefore reverse the summary judgment.

II

Callahan next contends that the jury’s verdict against Callahan on Balfour’s counterclaim must be reversed because it is not supported by the evidence. We agree.

Generally, a jury verdict is entitled to great weight. A jury verdict must be reversed, however, if it is not supported by the evidence or if it is against the manifest weight of the evidence. (Smith v. Chicago Limousine Service, Inc. (1982), 109 Ill. App. 3d 755, 441 N.E.2d 81.) Moreover, when the facts are not controverted, they do not present an issue for the jury, and therefore, such a verdict is not conclusive. (France v. Citizens Casualty Co. (1948), 400 Ill. 55, 59.) If the jury verdict is based on a mistake or a failure to understand the evidence, then it must be reversed. Illinois Building Authority v. Dembinsky (1968), 101 Ill. App. 2d 59, 68, 242 N.E.2d 67.

Count II of Balfour’s counterclaim alleged that Callahan owed Balfour $36,431 for rings and other items which Balfour advanced to Callahan. However, the record indicates that Balfour owed Callahan $17,561 in commissions. David Schlothauer, a witness for Balfour, testified that Callahan’s accounts were designated “paid” for income tax reasons only and had been written off. Schlothauer did not work in Balfour’s accounting department, however, and could not personally testify whether Callahan had not paid Balfour for allegedly outstanding invoices. Callahan’s emphatic claim that he paid Balfour for all his invoices was undisputed and wholly supported by the evidence. We conclude that the jury verdict in favor of Balfour on its counterclaim against Callahan was against the manifest weight of the evidence, and the judgment entered thereon is therefore reversed.

Ill

Callahan lastly contends that the jury verdict on his claim of fraud against Balfour was also against the manifest weight of the evidence. We agree.

The elements necessary to prove a claim of fraud are a false representation of a material fact made by the defendant when he knew that the representation was false and reliance on the misrepresentation by the plaintiff. (Duhl v. Nash Realty Inc. (1981), 102 Ill. App. 3d 483, 429 N.E.2d 1267.) The record reveals that Balfour represented to Callahan that Callahan would not have to give up any of his accounts without his consent. On July 16, 1979, Balfour told Callahan that he could retain all of his active accounts and all of his inactive accounts upon which he was “aggressively calling.” Callahan confirmed his understanding of this agreement by certified mail. Balfour did not dispute this evidence. These representations made by Balfour to Callahan were material and Callahan relied on them. Callahan reassigned a number of his accounts to other representatives, but retained Morton East, Morton West and Sandberg, all large accounts. Callahan testified that he would not have continued in Balfour’s employ if he could not retain these three schools. The importance of these three accounts was further established by the testimony of Coleman and Young that they would not have accepted employment at Balfour if these accounts were not assigned to them.

The record reveals that Balfour knew that it had already reassigned Morton East, Morton West and Sandberg to Coleman and Young at the time that it promised not to reassign Callahan’s accounts without his consent. Coleman testified that he received the Sandberg reassignment in the summer of 1979. Young testified that he negotiated an employment contract with Balfour in May or June 1979. Young also testified that he attempted to sell rings to Morton East and Morton West in early September 1979. On September 15, 1979, Young refused to sign an agreement which stated that no other accounts would be taken from Callahan because Young knew that he had been promised the reassignment of Callahan’s Morton East and Morton West accounts. Balfour offered no evidence to contradict these facts, but instead defended on the ground that it had the right to reassign Callahan’s inactive accounts upon which he was not “aggressively calling.” The evidence clearly showed, however, that Callahan had aggressively called on Morton East, Morton West and Sand-berg and submitted bids annually in their ring competitions.

We conclude that the facts adduced at trial on Callahan’s claim of fraud against Balfour entitled Callahan to a verdict and that the trial court erred in denying Callahan’s motion for judgment notwithstanding the verdict.

Balfour contended in its breach of contract counterclaim that Callahan owed Balfour $36,431. The jury, although finding in favor of Balfour on its counterclaim, awarded Balfour only $1,692. This fraction of the damages sought by Balfour indicates that the jury allowed Callahan a setoff for the money that Callahan alleged Balfour owed him. If a setoff was allowed, as is indicated by the amount of the award, then the jury apparently found for Callahan on his complaint. These contradictory and ambiguous findings by the jury indicate that the verdict was based on an error or mistake by the jury, and we therefore reverse the judgment entered thereon.

The appellee, Balfour, in this court asserts that the appellant, Callahan, has deliberately fabricated exhibits in the record on appeal. These assertions by the appellee are without substance.

After the record on appeal and Callahan’s brief were filed in this court, Balfour filed an extensive motion to “strike plaintiff’s fabricated exhibits” and to “correct the record on appeal.” Callahan responded to Balfour’s motion and stated, inter alia, that Callahan’s present appellate counsel was not Callahan’s trial attorney; that Callahan’s appellate counsel had been hired to represent Callahan on appeal; that the exhibits which Callahan’s appellate counsel incorporated into the record on appeal were furnished by Callahan’s trial counsel; that Callahan’s appellate counsel had no knowledge that the 80 exhibits which were furnished by trial counsel were not numbered the same as those exhibits which were introduced at trial; and that Callahan’s appellate counsel emphatically denied any intent to deceive and apologized for the misunderstanding. Callahan’s appellate counsel added that he made no objections to Balfour’s motion to strike the inaccurate exhibits from the record on appeal since, with the exception of exhibit No. 73, he did not refer to them or rely on them in his brief on appeal. Callahan’s appellate counsel explained that he mistakenly referred to an erroneously labeled exhibit No. 73 in Callahan’s appellate brief and was therefore withdrawing all reference to it on appeal; and that exhibit No. 76, to which Callahan referred in his brief and which Balfour alleged was fabricated, is the true and accurate exhibit No. 76 used at trial, which Balfour’s counsel did not dispute.

Appended hereto are the pertinent portions of the oral arguments of this cause during which Callahan’s appellate counsel again explained the mistake of the misnumbered exhibits and reiterated that Callahan was not in any way relying for reversal upon any of these misnumbered exhibits.

The briefs and oral arguments centered on 15 exhibits, No. 52, No. 53 and No. 75 through No. 85. Although appellee’s counsel urged that they were made part of the record on appeal, they were never actually admitted at trial. Appellant’s counsel acknowledged during oral argument that the problem arose because he accepted the word of trial counsel that the exhibits had been properly admitted. As a consequence, we have carefully reviewed the complete record on appeal and the record’s index (volume II, page 1), which shows when each exhibit was tendered and received. Accordingly, we have been able to sort out those exhibits properly before us.

Exhibits No. 52 and No. 53 were never received into evidence. Exhibits No. 73 through No. 76 were admitted and no complaint has been made that these documents were not genuine or properly a part of the record on appeal. It would appear that they are properly included in the record on appeal. Exhibit No. 76 was the last exhibit received into evidence as an exhibit of the plaintiff. There is no confusion as to exhibits No. 77 through No. 85 because they were not made part of the record.

For the foregoing reasons, it is apparent that Balfour’s assertions that Callahan fabricated the exhibits upon which he relies on this appeal are utterly without merit.

For the reasons above stated we reverse the summary judgment in favor of Balfour and against Callahan on Callahan’s breach of contract claim against Balfour and remand the cause for a new trial or other proceedings thereon. We reverse the judgment on the jury’s verdict in favor of Balfour and against Callahan on Balfour’s breach of contract claim against Callahan and remand with directions to the trial court to enter judgment on Balfour’s breach of contract claim against Callahan in favor of Callahan notwithstanding the verdict. We reverse the judgment on the jury’s verdict in favor of Balfour and against Callahan on Callahan’s fraud claim against Balfour and remand Callahan’s fraud claim against Balfour for a new trial and other proceedings thereon.

Reversed and remanded.

LORENZ, J.,

concurs.

APPENDIX

“[A JUSTICE]: Counsel, I’m disturbed by a statement made in the appellee’s brief *** and in your reply brief you do not respond to it at all. And her statement is that your record and your brief are replete with evidentiary fabrications and distortions of the record, and then she goes on to indicate that there are some fabricated trial exhibits, and many other things. And in your reply brief I would have thought that you would have responded to those charges, because they go to the heart of this case. Do they not?

[APPELLANT’S COUNSEL]: No, Your Honor.

[A JUSTICE]: And, why not? We go by what the record shows. And, if the record has been distorted, what opportunity do we have to uphold your theory of the issues?

[APPELLANT’S COUNSEL]: Well, I disagree that the record was distorted ***

[A JUSTICE]: Why didn’t you say so in the reply brief?

[APPELLANT’S COUNSEL]: I had responded, Your Honor, in previous motions by the appellee’s counsel, motions to strike parts of the record and to make certain corrections, and now that the motion that was made by the appellee regarding the issue of fabricated trial exhibits ***. As I explained in my response, I’d gotten all trial exhibits, or what I thought to have been the trial exhibits, from the trial attorney himself. There are over 80 exhibits involved here. I did not go through the exhibits, since I believed that what the other attorney gave me were in fact the exhibits for trial and those were the exhibits I gave to the clerk to put in the record on appeal. When the motion was filed and I filed my response to the motion as to making amendments, I saw he didn’t object to it, although he did make response to the idea of fabrication. So, I did address that issue. Number two, there are only two exhibits out of all these allegedly fabricated exhibits which were cited, which were claimed to have been cited to, by myself in my brief. One, I believe was Exhibit Number 73, which I acknowledge in my motion, that I will not, of course, not hold this court to be bound to look at. The second point was Exhibit Number 76. Now, although the Exhibit 76 which I submitted to the clerk, which had been handed to me by the trial counsel, was not the correct exhibit, the Exhibit 76, which I refer to in my brief, was the true and accurate exhibit that was used at trial.

[A JUSTICE]: In this reply brief, the only thing, the only mistake you acknowledge making is the name of the school, and of course, that’s a minor matter, but the school, the cite of those schools is separated by about 15 miles, so, but the name is Morton instead of Morton Grove and so on, but that’s the only thing that you acknowledge. Why didn’t you, in your reply brief ***?

[APPELLANT’S COUNSEL]: Because I had done so previously in a response motion, which I could show Your Honors.

* * *

I didn’t want to belabor the issue once again in my brief because I, in motions and responses and in supplementary responses, I addressed those issues. That’s why. It was raised again by counsel although I already responded to those charges in prior responses, prior motions as opposed to the brief itself. Have I cleared that up? I mean I understand what you’re trying to say. I agree that the charges were serious, however, I don’t believe the charges were true. I hope that’s cleared up.

[A JUSTICE]: *** So then we have to go to the record and it’s when we go to the record and we find that there are distortions in the record as distinguished from the briefs that makes us very unhappy. *** Hopefully, you can help us out this morning.

[APPELLANT’S ATTORNEY]: Well, if I could, as far as the exhibits which were true and accurate and which was not, there are only two exhibits which counsel claims were incorrect which I submitted which were actually cited in my brief. One was I believe was Exhibit 73, which I responded to in my response. Naturally, I’m not going to use that argument since it’s not the correct one. Exhibit 76, while I submitted a different Exhibit 76, the Exhibit 76 I actually referred in my brief was in fact the true and accurate Exhibit 76. There is no problem with the exhibits.

[A JUSTICE]: It [Exhibit 76] was admitted.

[APPELLANT’S ATTORNEY]: The actual 76 Exhibit that I respond to in my brief was the one that was actually admitted. Okay, the one that I submitted to the record originally was not the correct one, it was not the one I was referring to in my brief.

[A JUSTICE]: Okay.

[APPELLANT’S ATTORNEY]: Those were the only two which were allegedly fabricated and I went ahead and cited to those in my briefs. And the only factual argument involved was confusing Morton with Morton Grove. However, there was no Morton Grove referred to, it was simply the Morton Schools. As I indicated *** Morton East or Morton West.

* * *

[APPELLEE’S ATTORNEY]: I should address first the accusations I have made in my brief and my motion regarding fabrications of the record. But, in two respects ***

[A JUSTICE]: That’s a serious charge.

[APPELLEE’S ATTORNEY]: I know it is. That’s why I thought I should address it first. There are 15 exhibits that are a part of that record that is in front of the court that were never identified in the trial court, not even identified, let alone admitted into evidence. The numbers are 52, 53, and 73 through 85. And the only way I found those exhibits is when I started going through plaintiff’s brief and saw that he had evidentiary citations for things that I did not remember any proof at trial. We came and checked off the record *** we started going through it and realized that plaintiff had documents which apparently trial counsel had once marked for himself with the intention of admitting, but never did introduce them or identify them at trial. *** I have the advantage in this case of having been trial counsel and being before you and knowing the record. I’m not accusing Mr. Erhlich [sic] of any malice. He came to this as an appellate matter and I have no reason to disbelieve what he says that the trial counsel was the one who gave him the wrong exhibits, but they are wrong nonetheless. *** The other point which the court is *** in this case you have appellate counsel who had nothing to do with the trial, but he takes the record as he finds it, and I would hope that he would present a true and correct record to the court.

* * *

[A JUSTICE]: What of these charges, Counsel? That’s a very, very serious charge, falsifying records.

[APPELLANT’S ATTORNEY]: There are two responses to the defendant’s motion.

[A JUSTICE]: Forget the responses. Does it prove that they were never in the record?

[APPELLANT’S ATTORNEY]: Yes. The exhibits that counsel referred to in her motion were not in the record. I acknowledged those points in my two responses.

[A JUSTICE]: How can we reverse when you have put 20 exhibits in the record which were never permitted * * *

[APPELLANT’S ATTORNEY]: Because my arguments are not in any way based on any of those exhibits which were not admitted to the trial. Only two exhibits of all the exhibits that counsel said were not admitted at trial came from somewhere else. Only two of those that I cited to in my brief. One was Exhibit 73. And my response ***. The other was Exhibit 76, I submitted to the clerk, the record was not correct, the Exhibit 76 that I refer to in my argument was the true and accurate exhibit as admitted and ruled on at the trial court. So, there’s absolutely nothing I’m citing to or relying on that was not admitted at the court as an exhibit. My argument still stands with or without those exhibits. *** Judge, I’m trying to explain the mistake as to the evidence that was submitted. The mistake was that I took the other counsel’s word and asked for the trial exhibits ***. I believed him to say that these were the trial exhibits. I didn’t go through every single exhibit and take the transcript and go through all 800 pages of transcript.

[A JUSTICE]: Who prepared the record for appeal, you or the other counsel?

[APPELLANT’S ATTORNEY]: The record was there. The exhibits that I added to the record were trial exhibits or what I thought to have been missing trial exhibits.

[A JUSTICE]: The fellow who tried it downstairs said these are your trial exhibits.

[APPELLANT’S ATTORNEY]: No, I believe that they had some exhibits, they did not have all the exhibits. I went to get the missing exhibits from the other attorney who did the trial. I asked him for the exhibits. He said, ‘Yes, Counsel. Here are the trial exhibits.’

[A JUSTICE]: More importantly, you’re not relying on those in this appeal. It won’t make a bit of difference.

[APPELLANT’S ATTORNEY]: Exactly.

[A JUSTICE]: *** When you found out that they were never in evidence, did you move this court to strike those exhibits?

[APPELLANT’S ATTORNEY]: They were already moved to be stricken by counsel.

[A JUSTICE]: Well, why didn’t you do it?

[APPELLANT’S ATTORNEY]: Because I didn’t know about it until counsel made her motion to strike. If I'd known earlier I would have done that. Once counsel made her motion and drew it to my attention I responded and I said, “You’re right, these aren’t the right exhibits. Disregard them.

[A JUSTICE]: This is nothing. but an inadvertence on which you’re not relying on on this appeal?

[APPELLANT’S ATTORNEY]: Exactly. I don’t need any of those exhibits ***

[A JUSTICE]: *** I’m just wondering how it happens, that’s all. What you’re suggesting is that it was due to the negligence of your trial counsel?

[APPELLANT’S ATTORNEY]: Yes.”

PRESIDING JUSTICE MURRAY,

dissenting:

(1.) The trial court was entitled to have its decisions granting summary judgment of Callahan’s breach of contract claim on a record untainted by exhibits not introduced by Callahan. The jury’s verdict on Callahan’s counterclaim should not be reversed in my judgment on a record containing exhibits not introduced at the trial. In fairness to the trial court, jury and counsel, the trial court, not this appellate court, should have had the opportunity to amend the record and decide Balfour’s charges of fabrication.

(2.) The majority opinion does not adequately explain its conclusion that the jury’s verdict on the fraud charge was against the manifest weight of the evidence. The standard of proof in a case based on charges of fraud is “clear and convincing.” (Ray v. Winter (1977), 67 Ill. 2d 296, 367 N.E.2d 678.) Even if one of the elements referred to in the majority opinion was proved by clear and convincing evidence, in order to sustain an action based on fraud, plaintiff must prove each element by such a standard. (Cole v. Ignatius (1983), 114 Ill. App. 3d 66, 448 N.E.2d 538.) Even with the record amended sua sponte by the majority, plaintiff’s proof falls short of the well-settled standard in a fraud action. If the covenant not to compete was not enforceable or made moot by the jury’s verdict, I believe plaintiff’s contract claims may be barred by the jury’s verdict on the fraud count. Albers v. Community Consolidated No. ZOU School (1987), 155 Ill. App. 3d 1083, 508 N.E.2d 1252 (res judicata effect of jury verdict).

(3.) The court’s ultimate remandment for further proceedings consistent with the views expressed in the opinion leaves the trial court and attorneys for both parties twirling in the air. Is the trial court to grant summary judgment on all issues decided by this court in favor of defendant and hold a hearing only on Callahan’s alleged damages? Is the trial court to hold further hearings on the summary judgment? Should a new trial on all issues be held? If not, on what issues? At the very least the majority should have instructed the trial court and the parties as to what further proceeding would be consistent with its opinion.