text:
      In re MARRIAGE OF PHILLIP A. MEYER, Petitioner-Appellant, and LEANNE V. MEYER, Respondent-Appellee.
    First District (6th Division)
    No. 1—89—2630
    Opinion filed April 27, 1990.

      Massucci, Blomquist, Brown & Judson, of Arlington Heights (Raymond R. Massucci and Jonathan N. Sherwell, of counsel), for appellant.
    Schuyler, Roche & Zwirner, of Chicago (Thomas J. Dillon, David M. Giangrossi, and Michael F. Braun, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Phillip A. Meyer, petitioner and counterrespondent in a marriage dissolution proceeding, appeals from an interlocutory order permitting his wife, Leanne V. Meyer, respondent and counterpetitioner, to use $510,000 of the marital assets to purchase a home. Respondent counters that this court has no jurisdiction to hear the appeal under Supreme Court Rule 307(a) (107 Ill. 2d R. 307(a)). We agree with respondent.

The parties were married on August 3, 1963. They have eight children, four of whom are still minors and reside with respondent, along with two college-age children. On February 17, 1988, petitioner filed this dissolution of marriage action.

On July 27, 1989, respondent sought emergency relief, asking the court to enter an order, pursuant to section 501(a)(3) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 501(a)(3)), directing that the proceeds of the sale of the parties’ real estate be made available to her for the purchase of a certain residence for her and the children, and for such further relief as the court deemed just and equitable.

The motion alleged that the parties had acquired three parcels of real estate in or near Barrington Hills. One house had been sold for $300,000 in cash. A 10-acre parcel of vacant land had been sold for $255,000 in cash. The marital residence was up for sale for $1.1 million. All three pieces of property were unmortgaged.

The motion stated further that in October 1988, the 46-year-old respondent was diagnosed as suffering from a muscle degenerative illness. The disease is called amytrophic lateral sclerosis (ALS), and is commonly known as Lou Gehrig’s Disease. The motion attached an affidavit of respondent’s physician, Dr. Scott Heller, stating that her disease had progressed quickly and that the deterioration in muscle strength and function would continue.

The motion listed the physical difficulties respondent experienced in being confined to a wheel chair in a two-story home where the minor children, including a 7-year-old and 10-year-old, had bedrooms upstairs. Respondent asked that she be permitted to use the cash from the sale of the two pieces of real estate, which constituted approximately 30% to 40% of the value of the marital estate, to buy a $510,000 ranch home in Inverness. That home could accommodate her physical needs.

On August 1, 1989, the petitioner moved to strike the motion for temporary relief, arguing that it was a request for “an allocation of marital assets prior to any hearing determining the respective rights and interests of the parties in and to any property in either of the parties’ names.”

On August 1, 1989, a hearing was held on the motion for temporary relief. Respondent testified that in the past 30 days her condition had deteriorated rapidly. She no longer had complete use of her right hand, right arm, or either leg. She could not stand, turn over in bed, go to the bathroom, or perform other daily functions without significant help. The physical layout of the marital residence further impaired her ability to move from room to room, to get into the bathroom, or even to get out of the house if a fire should occur. The Inverness home which she wished to purchase could accommodate all the necessary physical changes, and the younger children’s bedrooms would be on the same level as the master bedroom.

On August 15, 1989, after considering briefs and memoranda, the court orally announced its findings and rulings, and on September 6, 1989, it entered a written order. The court found that respondent “possesses a clearly ascertainable right to the use of the marital estate” along with petitioner; that in view of respondent’s severe physical disability, she and the two youngest children would suffer “irreparable harm” in the absence of the relief she requested; that she had “no adequate remedy at law”; that she was “likely to be successful on the merits in a trial of this action” because she would likely be awarded at least 38% of the marital estate, which included real estate valued at $1,340,000; and that respondent’s need for the relief “far outweighs any possible prejudice that [petitioner] may suffer as a result of granting the relief requested.”

The court denied petitioner’s motion to strike and granted respondent’s motion for temporary relief. It ordered that “$510,000 of the proceeds of the sale of the real estate owned by the parties shall be applied to the purchase of the real estate and improvements thereon located” in Inverness. It also ordered that the balar" of the proceeds would be held in escrow pending the trial of this cause, and that the Inverness home was to be “titled jointly in the names” of both parties pending further order of the court. This interlocutory appeal followed.

Respondent contends that this court does not have jurisdiction to hear petitioner’s interlocutory appeal. Petitioner counters that the order was in fact an injunction, from which an interlocutory appeal can be taken under Supreme Court Rule 307(a) (107 Ill. 2d R. 307(a)).

The threshold issue, then, is to determine whether the order appealed from may be properly characterized as an injunction. (See JFS v. ABMJ (1983), 120 Ill. App. 2d 261, 458 N.E.2d 76; Bullard v. Bullard (1978), 66 Ill. App. 3d 132, 383 N.E.2d 684.) Tests and definitions regarding which orders are interlocutory or appealable must be considered in light of the facts and relief sought in each case. In re Organization of Fox Valley Community Airport Authority (1974), 23 Ill. App. 3d 168, 318 N.E.2d 496.

In marital dissolution proceedings, the court may grant temporary relief in the nature of (1) temporary maintenance or child support; (2) preliminary injunction; or (3) “other appropriate temporary relief.” (Ill. Rev. Stat. 1987, ch. 40, par. 501(a).) Section 501(a)(3) is an all-inclusive provision which allows a party to move for any other appropriate temporary relief, such as temporary custody; exclusive possession of the marital residence; sequestration of assets; and temporary attorney fees. (Ill. Ann. Stat., ch. 40, par. 501, Historical and Practice Notes, at 377 (Smith-Hurd 1980).) Temporary relief afforded under section 501 is often in the form of neither a temporary restraining order nor a preliminary injunction. Ill. Ann. Stat., ch. 40, par. 501, Supplement to Historical and Practice Notes, at 39 (Smith-Hurd Supp. 1989).

In a dissolution of marriage case, issues concerning property disposition or division are not separate claims. Instead, they are related, ancillary parts of the single petition for dissolution. (In re Marriage of Leopando (1983), 96 Ill. 2d 114, 449 N.E.2d 137.) “In fact, it is difficult to conceive of a situation in which the issues are more interrelated than those involved in a dissolution proceeding.” (In re Marriage of Leopando, 96 Ill. 2d at 119, 449 N.E.2d at 140.) Consequently, the Illinois Marriage and Dissolution of Marriage Act discourages piecemeal appeals in the absence of some compelling reason. In re Marriage of Leopando, 96 Ill. 2d 114, 449 N.E.2d 137; In re Marriage of Lentz (1980), 79 Ill. 2d 400, 403 N.E.2d 1036; In re Marriage of Ryan (1989), 188 Ill. App. 3d 679, 544 N.E.2d 454.

The order here merely permits respondent to use marital assets to purchase another marital asset. The order is not injunctive in nature and cannot be appealed under Supreme Court Rule 307(a). Similar to other types of temporary relief which the trial court is required to grant in marital dissolution cases, the order merely permits the parties and their children to continue to function, taking into consideration the changing needs of the family in the face of serious illness.

Petitioner admits that the marital residence was for sale, with an asking price of $1.1 million, prior to respondent’s illness. Thus, the family would be moving to a new home upon the sale of that home. Respondent testified that the new home, half the price of the present residence, would accommodate the needs of the large family and her handicap. The court was permitted to grant this temporary relief without entering an injunction.

The court did not adjudicate the property rights and claims of the parties prior to entry of the decree of dissolution. The court expressly stated that title to the new home would be held in the name of both parties. The balance of the proceeds would be held in escrow pending the trial of the cause. If there is any inequity in this temporary order it can be addressed in the trial court at the hearing for permanent maintenance and division of marital property and debts. In re Marriage of Ryan, 188 Ill. App. 3d 679, 544 N.E.2d 454; In re Marriage of Meyer (1986), 146 Ill. App. 3d 83, 496 N.E.2d 1193.

We find it significant that at the trial level, neither party treated the motion for temporary relief as a petition for injunctive relief. The motion itself contains no language indicating that respondent sought an injunction. The testimony at the hearing did not indicate an injunction was sought. The arguments of the attorneys following the hearing did not indicate the relief sought was injunctive. Nor did the briefs submitted by the parties following the hearing suggest that an injunction was sought. In petitioner’s post-hearing brief he made one reference to injunctions when he commented that “[i]f the court exercises its injunctive powers, it is bound by the law regarding preliminary injunctions.”

We acknowledge that the trial court used language which would be relevant to the issuance of a preliminary injunction. However, it is the substance, not the form, of an order which determines whether or not the order is appealable under Rule 307(a). (See Lake Shore Racquet Club, Inc. v. Fireman’s Fund Insurance Cos. (1980), 91 Ill. App. 3d 1118, 415 N.E.2d 625.) Moreover, even if the standards used by the trial court to determine whether or not to grant the temporary relief were equivalent to those applied in granting injunctive relief, it did not transform the order into an injunction. See Gorr v. Board of Fire & Police Commissioners (1984), 129 Ill. App. 3d 327, 472 N.E.2d 587.

In addition, if jurisdiction existed, we would go on to find that, in view of the facts cited here and the testimony contained in the record, the trial court’s order granting respondent’s motion for temporary relief was not an abuse of discretion. Petitioner has failed to meet his burden of proving that the court abused its discretion in granting temporary relief. (See In re Marriage of Thornqvist (1979), 79 Ill. App. 3d 791, 399 N.E.2d 176.) Significantly, the legal characterization of the $510,000 escrow fund as a marital asset has not been altered by the order for temporary relief. Petitioner and respondent benefit equally from the court’s direction that title to the Inverness house be placed in both of their names. Moreover, at oral argument, the parties agreed that petitioner agreed to sell the house prior to the discovery of respondent’s illness. Petitioner offered no evidence as to why the health diagnosis should alter that plan.

All the evidence showed that the new home served respondent’s medical needs, facilitating her ability to continue to function on a day-to-day basis in a home with her family. The new home also served the needs of the children and was located in the same community and same school district as the marital residence. The trial court was certainly not required to adopt petitioner’s suggestions to remodel or rearrange the marital residence, e.g., by having the two youngest children sleep in the dining room so they would be near their mother, or by tearing down walls to accommodate the wheel chair. This is true particularly in light of the fact that the house was on the market and being shown to potential purchasers. The evidence strongly supported the trial court order granting respondent’s request for temporary relief.

For the foregoing reasons, the interlocutory appeal from the order of the circuit court of Cook County is dismissed for lack of jurisdiction.

Appeal dismissed.

LaPORTA, P.J., and EGAN, J., concur.


source: Caselaw Access Project

author: JUSTICE LEWIS

license: Public Domain

text:
    EVA McDANIEL, Appellant, v. THE INDUSTRIAL COMMISSION et al. (The County of Cook, Appellee).
    First District (Industrial Commission Division)
    No. 1—89—1425WC
    Opinion filed April 27, 1990.
    Rehearing denied June 6, 1990.
    Wittenberg & Dougherty, Ltd., of Chicago (David M. Wittenberg, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Joan S. Cherry, Myra J. Brown, and LaBrenda E. White, Assistant State’s Attorneys, of counsel), for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

The claimant, Eva McDaniel, filed an application for adjustment of claim pursuant to the Workers’ Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.) for an injury to her knee which she sustained during the course of her employment with the respondent, Oak Forest Hospital. (We note that there is no evidence presented in the record of the relationship of Oak Forest Hospital to the County of Cook; however, we presume that Oak Forest Hospital is a county hospital, and therefore, any reference to the “respondent” shall be understood to mean both Oak Forest Hospital and County of Cook.) At the hearing before the arbitrator, the claimant presented medical evidence of her knee injury and of her psychological condition. Ultimately, the arbitrator found that the claimant’s knee injury arose out of and in the course of her employment, and awarded her temporary total disability (TTD) for 306/? weeks, her related medical expenses for her knee, and permanent partial disability (PPD) for a 10% loss of the use of her left leg. The arbitrator also held that the claimant had failed to prove there was a causal connection between her current mental condition and her work accident of December 24, 1980, and denied her benefits for her mental disability.

On appeal to the Industrial Commission (Commission), the Commission modified the arbitrator’s decision by increasing the claimant’s PPD from a 10% to 15% loss of the use of her left leg and by entering the specific dollar amount of the medical expenses that the claimant was entitled to receive for her left knee injury, but in all other respects, the Commission affirmed the arbitrator’s decision. Subsequently, the circuit court of Cook County confirmed the Industrial Commission’s decision, and the claimant appeals. On appeal, the sole issue raised by the claimant is whether the Industrial Commission’s determination that the claimant failed to prove there was a causal connection between her psychological disability and her work-related accident was against the manifest weight of the evidence.

Two hearings in which testimony was presented were held before the arbitrator. The first hearing was held on February 27, 1985, and the second hearing was conducted on April 24, 1985. At the first hearing, the claimant testified that she was employed in the dietary department of the respondent on December 24, 1980. Her duties consisted of fixing trays for patients, loading the trays onto a motorized cart, pushing the cart full of trays to the ward, distributing the food trays to the patients, and collecting the trays after the patients had eaten. The motorized cart used in these tasks carried approximately 30 trays of food.

On December 24, 1980, the claimant was operating her motorized cart when the cart hit her and pinned her left knee against the wall. This accident occurred at about 2:15 p.m., 15 minutes prior to the end of the claimant’s work shift. The claimant reported her accident, but because her workday was nearing the end, she did not go to the respondent’s Employee’s Health Services until the following day. At that time, her knee was examined, and subsequently, the claimant’s left leg was placed in a cast which came to mid-thigh. When her cast was removed, she received physical therapy for her knee.

In addition to her treatment from the respondent’s services, the claimant also saw Dr. Haskell, whom the claimant described as a “bone specialist.” She first saw Dr. Haskell in February of 1981, and she continued to see Dr. Haskell once a month until July of 1981. Dr. Haskell diagnosed her condition as torn ligaments of the left knee and knee sprain. On May 1, 1981, Dr. Haskell hospitalized the claimant at Michael Reese Hospital for what the claimant termed a “blood clot” in her left leg. She was discharged on May 7, 1981. After her discharge, the claimant saw Dr. Haskell for the last time on July 7, 1981. At her last visit, Dr. Haskell told the claimant she would always have problems with her knee, but that further treatment was unnecessary.

The claimant testified that prior to her accident, the claimant was a “busy” person, and in addition to her working, she bowled, kept house, and socialized. After her accident, she visited with her friends, watched television, and tried to do her housework. When the claimant was released from Michael Reese Hospital, her knee bothered her, she sometimes had trouble with her back, and she “felt anxious to go back to work.” Additionally, she was unable to keep busy all day long, which made her feel irritable, tense and nervous, and sitting around made her feel depressed.

Subsequently, on May 24, 1981, the claimant was admitted to Our Lady of Mercy Hospital for what the claimant termed was a “nervous breakdown.” During her stay at the hospital, the claimant was treated by Dr. Frieske. She was discharged from Our Lady of Mercy on June 22,1981.

The claimant further testified that she did not work after her accident of December 24, 1980, until she returned to her employment in the dietary department on August 29, 1981. Upon her return to work, she felt tired and weak, and she could not stand very long because her knee bothered her; however, she was feeling good psychologically. Wlien the claimant returned to work, her work duties had changed and she did “assembly line” work, wherein the claimant did different tasks from day to day. According to the claimant, her new work tasks required more of her physically than before since she had to stand and “push and pull things” more often. She attempted to do the work, but the new work detail made her “feel bad” because she could not keep up the pace.

The claimant worked from August 29, 1981, until April 17, 1982. During that time, the claimant found the work to be a strain physically on her, and made her feel nervous, and “like I couldn’t hold up during eight-hour pressure.” Subsequently, on April 20, 1982, Dr. Frieske admitted the claimant to Southlake Mental Health Center (Southlake). Dr. Kim, Dr. Frieske’s associate, who treated her while she was in the hospital, placed the claimant on medication at this time. The claimant was discharged on April 28, 1982.

Subsequent to her hospitalization on April 20, 1982, the claimant had numerous other hospitalizations for her mental condition. The claimant testified that she was hospitalized on the following dates in the following hospitals for her psychological problems: September 25, 1982, to October 1, 1982, at Our Lady of Mercy Hospital; December 22, 1982, to January 1, 1983, at Our Lady of Mercy Hospital; March 3, 1983, to March 14, 1983, at Tinley Park Mental Health Center (Tinley Park); and on September 10, 1984, to September 27, 1984, at Christ Hospital. In addition to her hospitalizations, the claimant received outpatient treatment from Family Service and Mental Health Center of South Cook County (Family Services) commencing on June 10, 1983. When she was in Our Lady of Mercy Hospital, the claimant was treated by Dr. Frieske and Dr. Kim, but when she was treated as an out-patient with Family Services and was hospitalized at Christ Hospital, she was treated by Dr. Vivar. The claimant had continued her therapy with Family Services and was still being treated by Dr. Vivar. The claimant stated that since her hospitalization of April 20, 1982, she had not been released for work by a psychiatrist, and she remained on a leave of absence from her employment.

The claimant had worked for the respondent in the dietary department since 1967. Prior to her accident on December 24, 1980, the claimant had two other injuries to her lower back while at work, one on April 20, 1979, and one on March 22, 1980. The claimant filed workers’ compensation claims and received compensation for these two previous accidents. After her back injuries, the claimant returned to the same work duties as before her injuries.

According to the claimant, before her accident of December 24, 1980, she had never received treatment for a psychological problem. She admitted that the records of Our Lady of Mercy Hospital indicated that her mother suffered from mental illness. The claimant stated that she and her husband had not had any marital difficulties prior to her accident, but a couple of years after her accident of December 24, 1980, she and her husband separated. At the time of this hearing, she and her husband were reunited and had been back together for the past year and a half.

The claimant testified that she continued to feel nervous and that she was on medication. Dr. Vivar had prescribed lithium, Prolixin and Cogentin for her. The claimant stated that she does not have her strength back, either physically or mentally. Since April of 1982, the claimant has not been as active as she likes to be, which upsets her. With regard to her left knee, the claimant admitted that she does not use crutches, a cane or a brace for walking; she takes Tylenol for her pain; and she has not received any medical treatment for her knee injury since 1981. At her attorney’s request, the claimant saw Dr. Garrón in July 1984, and at the respondent’s request, she saw Dr. Scuderi and Dr. Blackman at that time.

The claimant stated that she had graduated from high school. She further stated that since April 1982, she had looked for lighter work. Her efforts to seek other employment consisted of applying for a job as a transporter at Ingalls Hospital and as a security guard.

The claimant’s husband, Darnell McDaniel, testified that he and the claimant had been married for 16 years. During their marriage, the claimant worked full time until her accident of December 24, 1980. Darnell described his wife as a very active person who always worked, kept house and was “on top of things.” He stated she was a happy individual, and that the claimant had a strong constitution.

After the claimant’s injury of December 24, 1980, Darnell noted that the claimant was not as busy as she used to be. Additionally, the claimant’s attitude also changed. When the claimant went back to work in August of 1981, the claimant did not sleep well, she would get up in the middle of the night, and she worried considerably. The claimant also complained about her legs and limped around the house.

Darnell admitted that the claimant had started to change before her accident of December 24, 1980. The claimant had been off work for her back injuries prior to the accident in December, and it was then he first began to notice a difference in her. In Darnell’s opinion, the claimant’s mental outlook was influenced by how busy she was or was not.

Darnell denied that he and the claimant had marital difficulties prior to December 24, 1980. However, he admitted that he and the claimant had separated in 1983 for approximately two years. He corroborated the claimant’s testimony that they were now reunited.

No other testimony was presented at this hearing, but numerous medical records of the claimant were introduced into evidence. The medical records of Oak Forest Hospital indicated that the claimant was seen for her knee injury on December 26, 1980, and was found to have echymosis (essentially a bruise) of the left knee. On December 29, 1980, the claimant saw an orthopedist at Oak Forest Hospital, and a leg cast was applied. The X-ray examination done on the claimant’s left knee at Oak Forest Hospital revealed that the claimant had no evidence of a fracture, a dislocation or a gross bone abnormality of her left knee. Ultimately, the claimant was diagnosed as having a partial tear of the lateral collateral ligament of her left knee.

Dr. Vittel’s notes of April 27, 1981, from Oak Forest Hospital, indicated that the claimant had superficial thrombophlebitis (inflammation of the wall of a vein and the formation of clots) in her left leg, which was confirmed in Dr. Gaffud’s consultation report. Subsequently, the claimant’s medical records confirmed that she was admitted to Michael Reese Hospital by Dr. Haskell for treatment of the superficial thrombophlebitis on May 1, 1981, and was discharged from there on May 7, 1981. On June 21, 1981, the claimant was released to return to work orthopedically by Oak Forest Hospital, but the record indicated that she also needed clearance with regard to the thrombophlebitis. On July 27, 1981, the claimant was found to have full range of motion in her left knee, that she had no instability in standing, that she was able to squat well, and that she was able to return to work.

The medical records of the claimant’s hospitalization at Our Lady of Mercy Hospital on May 24, 1981, were admitted. These records indicated that Dr. Frieske was her attending physician. The claimant’s discharge summary gave her diagnosis as “[a]cute agitated depression.” The reason given for her admittance was that the claimant attempted to set fire to her home, whereupon her husband brought her to the hospital, and she was involuntarily committed. In the claimant’s history and physical report it was stated that she was admitted “because of bizarre and disorganized behavior over the past two weeks,” and her behavior was described as fluctuating, i.e., “very severe disturbance interspersed with feeling fairly good.” The claimant’s history revealed that her mother had had psychiatric treatments, was on medication, and had been hospitalized for mental problems in the past. Dr. Frieske reported that the claimant had recently been drinking heavily.

The psychosocial history report of the claimant of June 8, 1981, prepared by Jesse Munoz, a social worker, stated that according to the claimant’s husband, the claimant had always found it necessary to keep busy or she would become “hyper.” The claimant’s husband reported to Munoz that the claimant had not worked since her accident to her knee, and that the claimant had been on “pain killers.” The claimant’s husband had noted that the claimant had been becoming gradually overactive, which immediately preceded the claimant’s psychotic behavior. Munoz described the claimant, from the information he had received of her, as compulsive and obsessive, and he noted that she had difficulty tolerating inactivity. Munoz’ report stated that in addition to the claimant’s use of pain killers since January, she had also been drinking during this time.

The claimant was discharged from Our Lady of Mercy Hospital on June 22, 1981. On August 8, 1981, Dr. Frieske released the claimant for work as of August 10, 1981. The records also indicated that after her hospitalization for her mental problems the claimant was placed on the following medications: lithium, Navane, Cogentin and Benalyn expectorant.

The claimant’s discharge summary of her hospitalization at Southlake revealed that the claimant had been hospitalized there from April 20, 1982, through May 4, 1982. The final diagnosis of the claimant’s condition at that time was given as “major affective disorder (depression).” The claimant was admitted on the recommendation of Dr. Frieske, because she was nervous, tense and depressed. The records of this hospitalization stated that the claimant “felt unable to cope with her responsibilities, especially at work. Her mother has also been a problem[,] currently under psychiatric treatment, but doing fairly well.” It was noted that the claimant had been on lithium and Navane in the past because of her high level of excitement. At the time of the claimant’s discharge on May 4, 1982, Dr. Frieske completed a disability form for the claimant, where he indicated by checking a box on the form that the claimant’s sickness arose out of the claimant’s employment.

A consultation report done on May 24, 1982, by Dr. Sherman Kaplitz, at Dr. Vittel’s request, indicated that Dr. Kaplitz had contacted Dr. Frieske with regard to the disability form completed by Dr. Frieske on May 4, 1982. Dr. Kaplitz reported that Dr. Frieske did not recall stating that the claimant’s depression was work related. Dr. Kaplitz went on to state that, at the present time, he did not find evidence that the claimant had a true major depression, but he felt that her depression was reactive, and that the claimant was reacting in this manner to avoid returning to work. He believed that the claimant would benefit by returning to work as soon as possible. An orthopedic progress note of this same date, submitted to Dr. Vittel, stated that the claimant’s knee was not swollen and that she had full range of motion, and that the claimant was orthopedically able to return to work.

Another discharge summary disclosed that the claimant was again hospitalized at Our Lady of Mercy Hospital from July 8, 1982, through September 2, 1982. The diagnosis of her condition at this time was “acute paranoid disorder.” She was admitted to the hospital for “violent acting out, behaving strangely, and [because she] had been trying to burn her own house.” The claimant was brought to the hospital by her husband, and at the time of her admittance, the claimant was belligerent and combative. This record also stated that the claimant’s mother suffered from mental illness.

The claimant’s next hospitalization was from September 25,1982, until October 1, 1982, at Our Lady of Mercy Hospital. The diagnosis of the claimant’s condition given in the discharge summary of this hospitalization was “acute paranoid disorder.” The claimant was admitted on this occasion for depression, difficulty in sleeping, increasing agitation, wandering around at night, and paranoia against her husband. The report noted that the precipitating event for this hospitalization was that the claimant’s husband recently filed for a divorce. It was also noted that the claimant had stopped taking her medication.

The claimant was again hospitalized at Our Lady of Mercy Hospital on December 22, 1982, and was discharged on January 1, 1983. The diagnosis of the claimant’s condition in the discharge summary of this hospitalization was “residual schizophrenia with acute exacerbation.” The claimant was hospitalized because of confusion, wandering away from home, trouble sleeping, and exposing herself to people by disrobing. The claimant left the hospital on an overnight pass and failed to return; therefore, she was discharged.

The medical records of Tinley Park disclosed that the claimant was admitted there on March 3, 1983, and was discharged on March 14, 1983. The claimant was diagnosed as having “[sjchizophrenia, undifferentiated type, chronic.” The discharge summary from Tinley Park stated that the claimant was currently separated from her husband. The claimant had been brought to Tinley Park by the Harvey police on a writ of detention because the claimant had been physically aggressive, hostile, and easily agitated. Additionally, she had been exhibiting bizarre behavior, wherein she had removed food from the refrigerator and had covered it with sheets, and she had walked around the house nude and had attempted to leave the house naked. It was noted that the claimant had not been taking her medication for the past three months.

The records of the claimant’s outpatient treatment with Family Services, which commenced on June 10, 1983, revealed that the claimant’s mother was also an aftercare patient. The records reported that the claimant had been stressed for the past year because of her unemployment. The claimant was found to be confused and evasive when she was questioned about her history of psychiatric hospitalizations, but she spoke often of her knee injury. The records noted that the claimant “state[d] symptoms [of her mental illness] began after knee injury but evasiveness suggests possibility of prior difficulty.” The Family Services records indicated that the claimant stated that she “can’t talk to mother who ‘keeps things in,’ ” and that the claimant’s mother had atypical psychosis since 1977. It was stated in the records that the claimant was separated from her husband, that she had a son 16 years of age, and that the claimant said she was “not going back to no bad marriage.” The records from Family Services indicated that the claimant had conflicts with her parents and her “abusive” husband. In her treatment at Family Services, the claimant was under the care of Dr. Vivar.

The notes of Family Services dated October 4, 1984, indicated that the claimant was now living with her husband, but that she was having problems with this. Additionally, it was noted that the claimant was also having difficulty with her son, who had been picked up for shoplifting; that she had her lawsuit for her work injury pending; and that she had conflicts with her husband, which was making her depressed.

On September 10, 1984, the claimant was again hospitalized at Christ Hospital under Dr. Vivar’s care. The claimant was diagnosed as having a “[schizophrenic disorder.” The claimant’s problems, upon her admission, were depression and thought process disorders including hallucinations, delusions, thought blocking, and confusion. The records of Christ Hospital revealed that the claimant was still separated from her husband, and that she had been separated from him for the past year and a half to two years. The claimant was discharged from Christ Hospital on September 27,1984.

Lastly, Dr. Garron’s psychological evaluation report of the claimant of July 14, 1984, was admitted. Dr. Garron’s report stated that in addition to his clinical interview with the claimant, he had also administered the following psychological tests to the claimant: Peabody Picture Vocabulary Test-Revised Form L; Thematic Apperception Test; and Rorschach Test. The results of the psychological testing did not presently indicate a schizophrenic, major affective, paranoid, anxiety, somatoform, or dysthymic disorder. However, he noted that the claimant had several characteristic traits of “Atypical or Other Personality Disorders,” specifically an Inadequate Personality Disorder. Dr. Garrón stated that “[i]n view of these specific characteristics, it is likely that any stress causing anxiety, or even unusual excitement, may result in personal disorganization.” Dr. Garrón thought it possible that the claimant’s injury of December 24, 1980, or her extended period of time away from work, had contributed to her decompensation. This concluded the evidence presented at the February hearing before the arbitrator.

At the second hearing before the arbitrator on April 24, 1985, the testimony of two psychiatrists was presented. The claimant’s psychiatrist, Dr. Marvin Ziporyn, testified that he had reviewed the claimant’s testimony at the previous hearing before the arbitrator, and the claimant’s attorney’s abstract of the claimant’s various hospitalizations following her accident of December 24, 1980. Additionally, he had reviewed Dr. Garrón’s, Dr. Blackman’s and Dr. Scuderi’s reports. However, Dr. Ziporyn had not interviewed the claimant. Based upon the information he reviewed, it was Dr. Ziporyn’s opinion that the claimant’s mental condition was either caused or aggravated by her work-related accident of December 24, 1980. The doctor placed importance upon the timing of the claimant’s first mental hospitalization and stated that there seldom was an immediate cause and effect in a situation such as the claimant’s. He believed that the claimant’s two prior back injuries were of crucial importance, as the first trauma “prepares the soil,” and after the second and third trauma, a patient’s ability to cope is broken down and the symptoms of mental illness occur.

Dr. Ziporyn explained the reason for the variability of the different diagnoses of the claimant’s condition. According to the doctor, these diagnoses were technical questions of labelling, and that depression and paranoia were two sides to the same coin. The different terms used to describe the claimant’s condition were just different ways of looking at the same issue. He stated that the claimant basically went into a state of psychosis, which is a departure from reality.

The doctor further explained that psychosis can have “key-like scopic variables of presentation.” Dr. Ziporyn stated that initially, a situation is inaugurated by anxiety, which at some point becomes overwhelming and the person decompensates or disintegrates. The doctor found that in the claimant’s case, she was angry in response to her feelings of vulnerability.

Dr. Ziporyn interpreted the claimant’s husband’s testimony of the claimant’s hyperactivity as a description of her basic personality structure, which was “an anxious individual and consequently hypersensitive to any stress that would cause an exacerbation of her anxiety.” He stated that one of the claimant’s basic stress elements was still present, i.e., the atrophy of her knee, and that her knee will always represent a stress element to her. Dr. Ziporyn testified that any stress, any situation which makes the claimant feel inadequate physically or mentally, could precipitate another acute exacerbation of her condition.

Dr. Ziporyn differed with Dr. Garrón’s opinion that the claimant’s mental condition was caused by the time of unemployment after her injury; however, he agreed with Dr. Garrón in that the claimant’s condition was caused by the claimant’s accident. Dr. Ziporyn was of the opinion that the claimant’s subsequent mental breakdowns were also related to her work accident of December 24, 1980. His reasoning was that because the claimant had reached the point of decompensation, she would always be prone to breakdowns under any kind of stress, particularly work-related stress.

On cross-examination, Dr. Ziporyn stated that the severity of the claimant’s injury was not an issue with regard to her mental condition, and that any kind of trauma (physical) may be sufficient to trigger her condition. Dr. Ziporyn admitted it was possible that if the claimant had a stressful situation at home, that could create the onset of her problem, but he felt that to be highly unlikely. According to Dr. Ziporyn, the real issue, outside of the causation element of the claimant’s mental problems, was her feelings of inadequacy and vulnerability.

Dr. Benjamin Blackman, a psychiatrist for 30 years, testified on behalf of the respondent. He testified that he had reviewed the medical records of the claimant from Our Lady of Mercy Hospital, Dr. Haskell’s records, Oak Forest Hospital’s records, and the records of Family Services, and that he had interviewed the claimant. He admitted that he had not reviewed the records of Southlake, Tinley Park, or Christ Hospital. Likewise, he had not seen Dr. Scuderi’s or Dr. Garron’s reports. Dr. Blackman gave as his opinion that the claimant’s mental condition was not caused by her work-related accident involving her left knee, but that the underlying basis for her psychological disorder was her personal problems. The personal problems of the claimant to which he referred were the claimant’s bad marriage and her conflicts with her husband, her son, and her parents. During his interview with the claimant, she would “glaze” over these difficulties.

Dr. Blackman stated that ordinarily a soft tissue injury, such as the claimant’s, does not trigger psychological disorders. The doctor believed that the claimant’s mental problems predated her injury of December 24, 1980. The basis for his opinion was the claimant’s condition upon her first admission to Our Lady of Mercy Hospital and the chronic nature of her mental decompensation. Additionally, the information contained in the records he had, plus his knowledge of the course of mental decompensation, gave support to his opinion that the claimant was emotionally disturbed long before December of 1980. It was his opinion that the claimant’s injury occurred while she had the schizophrenia, that the schizophrenia was in “nascent form,” and that the claimant’s injury was not known to produce schizophrenia. The doctor stated that it was possible that the claimant’s injury and the activity brought on by the injury could have aggravated her deep-seated condition; however, he also noted that her domestic problems and parental problems existed at that time as well. Dr. Blackman further stated that if the claimant had a good home life and was well-adjusted, her inactivity of over five months after her injury would have had no adverse effect on the claimant.

A third hearing, at which neither the claimant nor the attorneys were present, was conducted by the arbitrator on May 31, 1985. At that time, the arbitrator admitted into evidence two letters from Dr. Blackman, one dated August 30, 1984, and the other dated September 28, 1984; the results of the claimant’s Minnesota Multiphasic Personality Inventory (MMPI); and a letter from Dr. Scuderi dated July 25, 1984, on behalf of the respondent.

Dr. Blackman’s letter of August 30, 1984, stated that he had seen the claimant on July 25, 1984, at which time the claimant took an MMPI. Dr. Blackman indicated in his letter that he had determined, from the records he reviewed, that the claimant had a “[sjchizoaffective disorder,” that she had a bad marriage, and that she had conflicts with her parents as well as her husband. The letter revealed that the doctor found the claimant’s descriptions of her knee injury to be very vague, and her description of her mental illness unsatisfactory. The doctor found the claimant’s statements were sometimes inconsistent in that the claimant had reported to the doctor that she and her husband got along well, but then the claimant had told him that her relationship with her husband could be better. She also told the doctor that she got along fine with her parents; however, the claimant’s records indicated she had conflicts with them.

Dr. Blackman’s letter of September 28, 1984, simply stated that his initial impression of the claimant, that she suffered a severe mental impairment which was far advanced and deep-seated, was confirmed by the claimant’s medical records. His conclusions as to the claimant’s mental condition were also confirmed by his interview with the claimant.

The results of the MMPI, which was given to the claimant by Dr. Blackman, were as follows:

“The client has responded to the MMPI items in an exaggerated manner, endorsing a wide variety of inconsistent symptoms and attitudes. These results may stem from a number of factors that include random responding; falsely claiming psychological problems; low reading level; a ‘plea for help’; or a confused state. The resulting MMPI profile is not a valid indication of the individual’s personality and symptoms.”

Dr. Scuderi’s letter of July 25, 1984, stated that he examined the claimant on that date, at which time the claimant complained of occasional pain and swelling in her left knee, and that her knee bothered her when the weather changed or when she stood or walked for long periods of time. Dr. Scuderi’s physical examination of the claimant revealed that she had maximum discomfort over the medial femoral condyle of her left knee; that she had a slight amount of creaking on forced flexion and extension of her knee; that the claimant had a little difficulty with complete extension of her knee; that there was a small amount of swelling present; that there was a slight atrophy of her left knee; and that the claimant walked with a rather careful gait and a slight limp on her left leg. Dr. Scuderi’s diagnosis of the claimant’s knee was that she had a soft tissue injury to the medial femoral condyle from which she had made a good recovery. Dr. Scuderi found there was no need for further treatment of the claimant’s knee and stated that she was able to return to some form of work.

At the review hearing before the Commission, the claimant testified that she had attempted to return to her employment with the respondent. However, Dr. Vivar, her treating psychiatrist, had talked with the claimant’s supervisors, and Dr. Vivar was told by her supervisors that the claimant could not return to work in the dietary department as the work would be too much strain on the claimant. The claimant’s supervisors referred the claimant to personnel, who in turn referred her to human relations. The claimant was told by the woman in human relations that the respondent had not yet found work for her, but that there might be a possibility of employment. The claimant stated that she had also sought work at the Harvey police department, but that she was told they were not hiring.

The claimant testified that she is currently on the following medications: lithium, Prolixin and Cogentin. These medications were prescribed by Dr. Vivar, from whom she still received treatment for her psychiatric problems.

As we noted previously, the sole issue raised by the claimant on appeal is whether the Commission’s determination that her failure to prove her psychological disability was causally connected to her work accident of December 24, 1980, was against the manifest weight of the evidence. The claimant contends that the medical evidence of Dr. Ziporyn that the claimant’s mental problems were caused or aggravated by her work-related injury to her knee was unrefuted; therefore, the Commission’s decision was against the manifest weight of the evidence. We disagree.

It is well established that the claimant has the burden of proving, by a preponderance of the evidence, the elements of his claim, including a showing of causal connection between an employee’s disability and his work-related injury; and that it is the province of the Industrial Commission to decide factual questions, to judge the credibility of the witnesses, and to resolve conflicts in the medical evidence. (Horath v. Industrial Comm’n (1983), 96 Ill. 2d 349, 449 N.E.2d 1345; Vestal v. Industrial Comm’n (1981), 84 Ill. 2d 469, 419 N.E.2d 897; International Harvester Co. v. Industrial Comm’n (1970), 46 Ill. 2d 238, 263 N.E.2d 49.) The Commission’s findings on medical causation will not be disturbed on review unless it is determined that the Commission’s decision is against the manifest weight of the evidence. (Horath, 96 Ill. 2d 349, 449 N.E.2d 1345; International Harvester Co., 46 Ill. 2d 238, 263 N.E.2d 49.) In this case, Dr. Ziporyn testified that the claimant’s knee injury had caused her mental disability, while Dr. Blackman testified that a soft tissue injury, such as the claimant suffered here, was not known to cause such psychological disability. Clearly, the testimony of the two psychiatrists on whether the claimant’s knee injury had caused her mental disability was conflicting. The arbitrator, in her decision, accepted the testimony of Dr. Blackman and determined that the claimant’s mental disability was not causally connected to her work accident. Likewise, the Commission, in its determination, held that the evidence was conflicting, adopted the arbitrator’s findings wherein the arbitrator accepted Dr. Blackman’s testimony and rejected Dr. Ziporyn’s testimony on medical causation, and affirmed the arbitrator’s decision. As we noted previously, the determination of medical causation and resolving conflicting medical evidence are the province of the Commission, and we conclude that the Commission’s decision in this case was not against the manifest weight of the evidence.

We also note that the claimant raised a brief alternative argument that, at the least, the claimant’s work-related accident of December 24, 1980, aggravated her preexisting condition. The only evidence presented at her hearings by the claimant in this regard was a brief statement by Dr. Ziporyn that her injury either caused or aggravated her mental disability. The remainder of Dr. Ziporyn’s testimony was concerned with the aspect that the claimant’s injury caused her disability. Dr. Ziporyn gave no basis for an opinion that the claimant’s psychological condition was aggravated by her knee injury. The claimant had the burden of proving her claim by a preponderance of the evidence, and we do not find that the claimant met her burden of proving that her accident aggravated her preexisting mental condition. Vestal, 84 Ill. 2d 469, 419 N.E.2d 897.

For the foregoing reasons, the judgment of the circuit court of Cook County, confirming the Industrial Commission’s decision, is affirmed.

Affirmed.

BARRY, P.J., and McNAMARA, WOODWARD, and McCullough, jj., concur.


author: PRESIDING JUSTICE BUCKLEY

text:
    HAROLD CHAPMAN, Counterplaintiff-Appellee and Cross-Appellant, v. CROWN GLASS CORPORATION et al., Counterdefendants-Appellants and Cross-Appellees.
    First District (1st Division)
    No. 1—88—3351
    Opinion filed April 30, 1990.
    Rehearing denied May 30, 1990.
    Modified opinion filed June 4, 1990.

      Harvey J. Barnett & Associates, of Chicago (Harvey J. Barnett and Michelle F. Kantor, of counsel), for appellant Morton Blitstein.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Michael J. Leech and Kearney W. Kilens, of counsel), for appellee.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Harold Chapman (plaintiff) brought an action in the circuit court of Cook County against Crown Glass Corporation (Crown), Morton Blitstein (defendant), and M.A.B., Inc., alleging intentional interference with contract, intentional interference with prospective economic advantage-, and retaliatory discharge in connection with the termination of his employment with Crown. Following a jury trial on plaintiff’s third-amended complaint, the jury returned a verdict in favor of defendant, Crown and M.A.B., Inc. on the retaliatory discharge count and a verdict against defendant on the intentional interference counts in the amount of $150,000. Defendant appeals from the judgment entered on the intentional interference counts, and plaintiff cross-appeals on the issue of punitive damages.

At trial, the following evidence was adduced concerning Crown and the events preceding plaintiff’s employment termination. Crown, a glass products distributing business, was founded in 1947 by defendant and Harold Serlin. At its inception, Crown was owned by defendant, Harold, and Harold’s brother, Robert Serlin. Plaintiff was hired as Crown’s comptroller in 1962, elected to its board of directors in 1963, and elected its first vice-president in 1969. In the 1970’s, defendant’s son Berle and Harold’s son-in-law, Richard Wasserberg, were brought into the business.

In 1975, Robert filed a lawsuit against Crown, defendant and Harold, seeking an accounting and injunctive relief, alleging, inter alia, that they appropriated business opportunities for their own financial benefit. Plaintiff testified that during the pendency of the lawsuit, Berle instructed plaintiff and Ancel Schmidt, who was the president of Crown’s subsidiary company, to perjure themselves to protect Crown and defendant. Berle was upset that plaintiff had spoken to Harold about the matter, and he questioned plaintiff’s loyalty during a heated argument over the matter. In issue were certain travel and entertainment expenses of Berle’s which were entered on the subsidiary’s books instead of Crown’s books. Plaintiff testified that defendant eventually agreed to transfer the expenses from the subsidiary’s books to Crown’s books after plaintiff discussed the matter with him.

Robert’s lawsuit was settled in August 1977. Crown repurchased his stock, leaving defendant and Harold the sole shareholders of Crown. Plaintiff testified that around this period of time, defendant discussed Crown’s future plans with him, including the plan to have plaintiff, Berle, and Richard form a committee to run Crown in the contingency that defendant and Harold were incapacitated.

In 1976, while plaintiff was absent due to his recuperation from a heart attack, defendant arranged to have Sid Weingard, an employee under plaintiff’s supervision, report directly to him. Defendant testified that Weingard thereafter continued to report to him. Defendant further testified that he instructed Weingard in 1976, despite a prior oral agreement with Harold that Berle and Richard were to be equally compensated, to give Berle a raise without discussing the matter with Harold or plaintiff.

Plaintiff testified that defendant “docked” him for a week’s pay in October 1977, even though he knew plaintiff was in the hospital for internal bleeding as a result of an automobile accident. Plaintiff further testified that defendant requested that plaintiff give him the Crown bylaws books on November 9, 1977, when he had previously examined the books in plaintiff’s presence. Berle made a similar request on November 17, 1977.

Marshall Burman, an attorney from Arvey, Hodes, Costello and Burman who represented Crown, testified that he discussed the perils of small closely held corporations with defendant, including the risk that there could be a deadlock on the board of directors (the Board). He could not remember the particular time he discussed these matters, but assumed it was around the time Crown repurchased Robert’s interest.

In November 1977, Crown hired Touche Ross & Co. (Touche Ross), an outside accounting firm. On November 18, 1977, Berle Blitstein met with Edward Goldstein and other members of Touche Ross and arranged to have them search for a new comptroller.

On December 2, 1977, defendant requested plaintiff to resign from the Board and informed him that Harold concurred in the request. Defendant testified that he and Harold agreed that only family members should be officers and directors of Crown, while Harold testified that defendant discussed plaintiff’s resignation from the Board with him, but he opposed it.

Plaintiff adduced a letter dated December 7, 1977, in which plaintiff related to defendant the content of their December 2 conversation, including defendant’s desire to have only family members serve on the Board and his assurances that plaintiff’s resignation would not affect his relationship, or his position as an officer, with Crown. Plaintiff testified that after defendant received the letter, he denied having made the statements and wrote “Not Accepted” on the resignation.

At the annual Board meeting on February 21, 1978, the Board took action to elect the five directors. The minutes of the meeting indicated that only four nominations were made and four directors were elected — defendant, Berle, Harold, and Richard. Harold testified that he mentioned plaintiff’s name at the meeting, although he later stated that he did not remember if he nominated plaintiff. Harold further stated that defendant proposed attorney Burman for the position as the fifth director, but he rejected the proposal. The minutes of the February 21 meeting also indicated that defendant made two proposals, one to increase his salary above that of Harold and one to create a new position of executive vice-president for Berle. The Board was stalemated by a 2 to 2 vote as to both proposals, with Harold and Richard on the one side and the Blitsteins on the other.

Berle’s personal friend from the country club, Edward Goldstein of Touche Ross, testified to a March 14, 1978, letter Touche Ross issued regarding the 1977 audit it performed, which listed numerous criticisms of the accounting department. Goldstein testified that when he attended the February 1978 Board meeting and reported the same matters as related in the letter, both Harold and defendant expressed their concern. Melvin Strauss, Crown’s outside auditor for the previous 16 years, testified that there was a continual problem with obtaining year-end financial statements on a timely basis and that these statements are an extremely valuable management tool to a company.

On June 29, 1978, defendant sent a letter warning all the directors that “injunctive relief, damage suits or dismissal” would be pursued for violations of their duties of confidentiality in connection with trade secrets and customer lists. Defendant testified that the letter was directed towards Richard because he believed he was “blabbering” confidential company information.

On July 5, 1978, defendant fired plaintiff. The following evidence was presented as to the reasons for plaintiffs employment termination and the events succeeding his termination.

Defendant testified that he intended to end plaintiff’s employment relationship and that he discussed his intention to fire plaintiff with Harold on the morning of July 5 before he fired plaintiff. Harold testified that he consulted his own counsel, Earle Rappaport, when he learned of plaintiff’s employment termination through a third person. Harold also testified that no directors or officers were previously terminated without both defendant’s and his agreement. In a July 5, 1978, letter to defendant, Rappaport noted the considerable activity conducted in the corporation without Harold’s authority, including plaintiff’s employment termination, and advised defendant that further actions without consultation with Harold would not be tolerated.

Plaintiff testified that defendant and Harold shared duties at the same time each one had duties he handled exclusively. Plaintiff introduced the corporate bylaws into evidence, which set forth the duties of the president and chairman of the board:

“The president and chairman of the board of directors shall be the principal executive officers of the corporation and shall, in general, supervise and control all of the business and affairs of the corporation. The president in general shall perform all duties incident to the office of president and such other duties as may be prescribed by the board of directors from time to time. The chairman of the board of directors *** in general shall perform all duties incident to the office of president and such other duties as may be prescribed by the board of directors from time to time. ’ ’ - __

Over defendants’ objection, the circuit court allowed Harold’s testimony as to the reasons plaintiff was terminated:

“Because [defendant] was trying to isolate me, and he was trying to get the people that were friendly with me, that worked together with me and the company, that’s the reason for that thing, and he had a pattern that he was going down the line one by one to do the same thing with everybody that was in the organization. Everybody in the organization, he fired. He fired everybody. He was firing everybody.”

Harold further testified that defendant had fired Max Holtzman and Robert Serlin and “a couple of gals” in the office whose names he could not recall. Holtzman testified that he voluntarily resigned in April 1979.

Over objection of defendant’s counsel, plaintiff elicited testimony from defendant as to the reasons he fired plaintiff. Defendant testified that he had been dissatisfied with plaintiff’s work habits and his performance with their subsidiary, plaintiff’s failure to automate Crown’s bookkeeping and accounting systems, the four-to-five-month period plaintiff took to issue the audit reports, and plaintiff’s absence from the office. Plaintiff denied these performance inadequacies. He testified that he missed work only on doctor’s orders and that defendant was not in a position to observe his hours; that no complaint was ever made about his performance at the subsidiary; that at no time did he receive a directive to install a computer system and defendant refused his proposals to arrange for computer time through a service bureau; and that no complaint was ever made in his 17-year employment as to the time he took to complete the audit.

Harold testified that he and defendant had some problems after July 1978. He stated that, with plaintiff’s absence, defendant “took over the whole reins” and “a lot of things that was [sic] going on there that [defendant] was doing, without the consent of Harold Serlin as a co-officer, co-owner, whatever you want to call it, with him.” He further stated, “after [plaintiff] was fired, then I saw the handwriting on the wall, all the way down. The next was going to try to be me or [Wasserberg], Like they were trying to buy my stock at a ridiculous price, and that’s the way they worked.”

Ancel Schmidt testified at some time defendant directed him not to give information to Harold.

In August 1978, defendant and Harold discussed a buyout of each other’s interest in Crown. Rappaport testified that when negotiations had “bogged down” in September 1978, he discovered a loophole in the Crown bylaws’ requirement of five directors, indicating the continuation of plaintiff as the fifth director. He testified that he informed plaintiff of this situation in a meeting attended by plaintiff, Harold and himself and admitted that his motive was to gain a strategic and tactical advantage for Harold over defendant by having Harold gain control over the Board and placing defendant in a position where he would have to sell his interest. Rappaport also referred to a plan among the three as to the future of the company which would include plaintiff’s employ in the company.

Plaintiff testified that he agreed to Rappaport’s and Harold’s request that he join them in calling a Board meeting because he desired to return to Crown’s employ, but stated “[o]ne of the things we discussed, if I signed that call, I would be free to vote as I saw fit to vote.” Rappaport sent out the notice dated September 13, 1978, notifying the directors of the Board meeting, indicating that plaintiff continued to serve as a director in accordance with the bylaws. The notice also stated that the purpose of the meeting was to consider certain resolutions, including the refunding of Berle’s unauthorized $10,000 salary increase and the Board’s reviewing all contracts that defendant or Berle had entered into the previous two years. Defendant admitted that a contract existed at this time with a customer, Mo-gen-David, in which Mogen-David conditioned the contract on defendant’s remaining president of Crown.

Before the Board meeting, Crown’s counsel filed an action in the chancery division to enjoin the Board meeting. A temporary restraining order was granted and later extended. In April 1979, plaintiff filed this action. Plaintiff wrote a letter to Rappaport in September 1979, stating “it seems to me [the continuances in the injunction action] have been closely tied to [Harold’s] negotiations with [defendant] on a buy/sell agreement.”

In October 1979, defendant and Harold entered into an agreement under which defendant purchased Harold’s interest in Crown and became the sole shareholder of Crown. Defendant testified that the purchase was a personal gain for him as well as the welfare of the company.

Plaintiff testified that following his termination from Crown, he lost his annual salary of $39,000, annual year-end bonuses of $5,000, Crown’s profit-sharing contribution, and insurance benefits. He received his profit-sharing distribution of $83,000, but testified he was unable to invest the sum for retirement because he needed it to support his family. Plaintiff found only per diem accounting work until he rejoined his former accounting firm in 1983.

On appeal, defendant contends that the circuit court erred in denying his motion for a judgment notwithstanding the verdict because there was insufficient evidence to support the jury’s verdict. He alternatively contends that the circuit court erred in denying his motion for a new trial based upon prejudicial trial errors.

The torts of intentional interference with contractual rights and intentional interference with a business expectancy are closely allied with each other, both stemming from the recognition that a person’s business relationships constitute a property interest which should be protected from unjustified interference. (Madonna v. Giacobbe (1989), 190 Ill. App. 3d 859, 546 N.E.2d 1145; Belden Corp. v. Internorth, Inc. (1980), 90 Ill. App. 3d 547, 413 N.E.2d 98.) The elements of the former include (1) the existence of a valid and enforceable contract between the plaintiff and another, (2) the defendant’s awareness of this contractual relation, (3) the defendant’s intentional and unjustified inducement of a breach of the contract which causes a subsequent breach by the other, and (4) damages (HPI Health Care Services, Inc. v. Mt. Vernon Hospital, Inc. (1989), 131 Ill. 2d 145, 545 N.E.2d 672); while the elements of the latter tort include (1) the existence of a valid business expectancy by plaintiff, (2) the defendant’s knowledge of the expectancy, (3) the defendant’s intentional and unjustified interference which prevents the realization of the business expectancy, and (4) damages (Madonna, 190 Ill. App. 3d 859, 546 N.E.2d 1145; Heying v. Simonaitis (1984), 126 Ill. App. 3d 157, 466 N.E.2d 1137).

In considering defendant’s contention as to the sufficiency of the evidence that his conduct in terminating plaintiff's employment with Crown was unjustified, we note that courts have recognized a qualified privilege to interfere with a contractual or prospective business relationship in instances where the defendant has acted to protect an interest which the law deems to be of equal or of greater value than the plaintiff’s contractual rights. (HPI, 131 Ill. 2d 145, 545 N.E.2d 672; Madonna, 190 Ill. App. 3d 859, 546 N.E.2d 1145.) The parties here do not dispute that such an interest is involved. Illinois courts have deemed the duty of corporate officers and directors to their corporations’ shareholders outweighs any duty they may have toward other contractual parties and thus have recognized a privilege for corporate officers and directors to use their business judgment and discretion on behalf of their corporations. (Mittelman v. Witous (1989), 135 Ill. 2d 220, 249; HPI, 131 Ill. 2d at 157, 545 N.E.2d at 677; Swager v. Couri (1979), 77 Ill. 2d 173, 190-91, 395 N.E.2d 921, 927-28.) This qualified privilege applies to situations involving a corporate officer’s or employee’s “interference” with the corporation’s contractual relation between the corporation and an employee that results in the termination of the employee’s at-will employment. Mittelman, 135 Ill. 2d 220; Worrick v. Flora (1971), 133 Ill. App. 2d 755, 272 N.E.2d 708.

While the parties here do not dispute that plaintiff bore the burden of overcoming defendant’s qualified privilege to terminate plaintiff’s employment (see HPI, 131 Ill. 2d 145, 545 N.E.2d 672; Swager, 77 Ill. 2d 173, 395 N.E.2d 921), they disagree as to the proof required to overcome the privilege. Defendant claims that the circuit court improperly instructed the jury that he could be found liable for tortiously interfering with the corporation’s contractual relationships only “if he acted for his own personal interest and contrary to the best interests of the corporation.” Citing Langer v. Becker (1988), 176 Ill. App. 3d 745, 531 N.E.2d 830, and Arlington Heights National Bank v. Arlington Heights Federal Savings & Loan Association (1967), 37 Ill. 2d 546, 229 N.E.2d 514, defendant asserts that plaintiff must prove, and the jury should have been instructed, that defendant had actual malice, which is a positive desire and intention to injure another person.

Since the filing of appellate briefs here, the Illinois Supreme Court has expounded upon the “actual malice” standard set forth in Arlington Heights. In HPI, the supreme court explained that actual malice, or an unjustified conduct, would be proven by showing conduct “which is totally unrelated or even antagonistic to the interest which gave rise to defendant’s privilege.” (HPI, 131 Ill. 2d at 158, 545 N.E.2d at 678.) In applying the standard to the corporate privilege, the court explained that conduct would not be justified where the interference is solely for the person’s own gain or is solely for the purpose of harming the plaintiff since such conduct would not have been done to further the corporation’s interests. (HPI, 131 Ill. 2d at 158, 545 N.E.2d at 678; see also Mittelman, 135 Ill. 2d at 249.) The circuit court’s instruction here was consistent with supreme court case law and reflected plaintiff’s theory at trial that defendant’s decision to terminate plaintiff was not justified because it was made to further his plan to isolate Harold, which plan was part of a broader scheme to force Harold to sell his interest in Crown.

We turn now to whether plaintiff has presented a sufficient theory of liability to meet his burden of proving that defendant acted for his own personal interest and contrary to the best interests of the corporation. The recent supreme court decision in Mittelman demonstrates that plaintiff has presented such a theory. In Mittelman, our supreme court found that a fired law firm associate’s allegations that his supervisor had made false statements to the firm in order to preserve his own reputation were sufficient not only to demonstrate that the supervisor acted for his personal gain but also to prove that the conduct was contrary to the best interests of the corporation. It reasoned that, even if the employee was responsible for a major corporate loss, it was not in the best interests of the corporation to receive false information regarding one of its employees, nor was it in the best interests of the corporation for the supervisor to vindicate himself by unjustly imputing fault to another. (Mittelman, 135 Ill. 2d at 250.) Similarly, plaintiff here, if successful in proving his theory, would demonstrate a personal gain for defendant and conduct which was against the best interests of the corporation, as it would not be in the best interests of the corporation to have a key employee fired in order to force out a major shareholder, even if the evidence would demonstrate his work was in some respects inadequate.

In reviewing whether plaintiff produced sufficient evidence to prove the above theory, we are mindful that to be entitled to a judgment notwithstanding the verdict, defendant must demonstrate that all the evidence, when viewed in aspects most favorable to plaintiff, so overwhelmingly favors defendant that no contrary verdict based upon that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513.) We will first analyze the evidence as it relates to defendant’s overall scheme to force Harold to sell his corporate shares and then as it relates to plaintiff’s termination as part of a subplot to isolate Harold.

When viewing the evidence of defendant’s overall scheme in a light most favorable to plaintiff, it indicates the following: Defendant attempted and succeeded in a buyout of Harold’s shares in August 1978. Defendant and Harold were having problems as early as the February 1978 annual meeting, and the problems escalated. The jury could infer that defendant intended to create a deadlock or a swing vote on the Board from evidence that defendant’s attorney discussed the perils of a deadlock with defendant and evidence that defendant nominated his attorney for the Board position when he purportedly removed plaintiff from the Board to limit the Board to family members. The jury could also infer that defendant sought to make the corporation less valuable to Harold in a buyout situation than to himself from evidence that defendant had executed a contract with a eustomer which contained a condition that the customer could terminate the contract if defendant did not remain Crown’s president. In light of the above evidence, defendant has not demonstrated that the evidence so overwhelmingly favors him that the jury could not conclude that defendant had a scheme to force Harold to sell his interest in Crown.

When viewing the evidence relating to defendant’s plan to “isolate” Harold in a light most favorable to plaintiff, the jury could find such a plan from evidence that defendant informed the president of Crown’s subsidiary to withhold information from Harold, that defendant was not consulting Harold before taking certain actions such as granting a pay raise in contravention of an earlier agreement, and that defendant had issued a letter admittedly directed to Harold’s son-in-law threatening dismissal.

As to the evidence that defendant fired plaintiff to further this isolation plan, plaintiff offered evidence from which the jury could find that defendant was concerned with plaintiff’s loyalty to Harold and plaintiff’s lack of loyalty to defendant. Defendant’s son Eerie expressed his dissatisfaction with plaintiff’s loyalty to defendant and the fact that plaintiff apprised Harold of Berle’s financial dealings. Harold indicated to defendant his desire to keep plaintiff on the Board, and defendant had taken actions to remove plaintiff from the Board in an attempt to replace him with a swing vote. This evidence, together with testimony that defendant examined the bylaws and the next day arranged to have Touche Ross search for plaintiff’s replacement, that defendant discharged plaintiff without the consent of Harold, that defendant lied to plaintiff about Harold’s concurrence in the decision, and evidence from which a trier of fact could conclude that defendant’s reasons for discharging plaintiff were a pretext for defendant’s true motive, is sufficient for the jury to conclude that defendant fired plaintiff to further his isolation plan.

Accordingly, viewing the evidence offered to support plaintiff’s theory that defendant acted solely for his own personal gain and contrary to the best interests of the corporation in a light most favorable to plaintiff, we hold that defendant failed to demonstrate that the evidence so overwhelmingly favors him that no contrary verdict based upon that evidence could ever stand.

Before turning to the evidence relating to the other elements of plaintiff’s cause of action, we will first address defendant’s contention that he should be granted a new trial due to the admission of certain testimony relating to the issue of his qualified privilege. Defendant argues that Harold’s deposition testimony that defendant was trying to isolate him by firing everyone close to him at Crown was highly prejudicial to him because it was conclusory, speculative and reached an ultimate issue in the case. Plaintiff argues that the testimony was proper because defendant put in issue whether Harold’s objections to plaintiff’s discharge were genuine and whether he was actually affected by plaintiff’s discharge. The record demonstrates that defendant sought to show that Harold agreed with defendant’s grievances and that Harold’s objections were solely to gain leverage to force the issue of a buyout with defendant. We believe that Harold’s testimony was properly admitted to rebut these contentions. In any event, in light of the evidence previously set forth, we believe that any error in the admission of this testimony was not so prejudicial as to warrant a new trial.

Defendant next contends that plaintiff failed to present sufficient evidence on the element of the existence of a valid contractual relationship or the reasonable expectancy of entering into a valid business relationship. He asserts that Crown was not willing and desirous of continuing plaintiff’s employment relationship and therefore plaintiff could not prevail as a matter of law.

The fact that the employment relationship or prospective employment relationship is at will is immaterial to whether there exists a valid contractual relationship or prospective business relationship in tortious interference actions. (TAD, Inc. v. Siebert (1978), 63 Ill. App. 3d 1001, 1006, 380 N.E.2d 963, 967.) Plaintiff need show only that both parties would have been willing and desirous of continuing the employment relationship for an indefinite period of time. TAD, 63 Ill. App. 3d at 1006, 380 N.E.2d at 967.

Although defendant presented some evidence to show that defendant was dissatisfied with plaintiff’s work performance, he has not demonstrated that, when viewed in aspects most favorably to plaintiff, the evidence so overwhelmingly favors him that no jury would find that Crown would have been willing and desirous of continuing plaintiff’s employment relationship for an indefinite period of time. In its function to determine the credibility of the witnesses, the jury could have rejected defendant’s testimony as it related to plaintiff’s job performance. Plaintiff also presented evidence showing that he was a key employee with a 17-year relationship with Crown at the time of his discharge, that defendant had assured him that his relationship and position with Crown would continue shortly before his discharge, and evidence from which the jury could find that Harold was content with his work performance.

Addressing now the other alleged trial errors which defendant contends require a new trial, defendant first refers to the trial judge’s refusal to submit certain jury instructions tendered by defendant. Defendant asserts that he was entitled to certain jury instructions on the issue of the corporate bylaws and defendant’s authority to terminate plaintiff. We find that the trial judge did not err in refusing these instructions where plaintiff’s theory that defendant was not privileged to fire plaintiff based upon the bylaws had been rejected by the trial judge. Furthermore, where the jury is fully instructed upon the law, it is not reversible error to refuse further instructions even though they set forth correct principles of law. (Crosby v. DeLand Special Drainage District (1937), 367 Ill. 462, 470, 11 N.E.2d 937, 941-42.) By instructing the jury as to defendant’s privilege and the proper standard to apply in determining whether plaintiff overcame the privilege, the jury was correctly and fully instructed upon the law in the case. Finally, any instructions on the bylaws would have improperly emphasized a portion of the evidence.

Defendant also argues that he was entitled to certain instructions relating to plaintiff’s employment relationship or prospective employment expectancy. Defendant’s tendered instruction that, in interference with at-will employment contract cases, both parties must be willing and desirous of continuing the relationship was substantially the same as the instruction tendered by the trial judge. The trial judge also instructed the jury that plaintiff had the burden of proving that he had an expectancy of future economic benefit in his employment relationship with Crown. Thus, while the other instruction tendered by defendant, that “one who is claiming a tortious interference with prospective employment must establish proof of a reasonable expectancy of that employment, and the mere hope of continued employment, without more, will not suffice,” sets forth correct principles of law, we find that the tendered instructions fully and correctly instructed the jury on the law.

We next address the trial errors claimed by defendant on the issue of damages. He contends that the jury was impermissibly allowed to speculate that plaintiff would have remained at Crown through the date of trial where the evidence indicated that defendant was dissatisfied with plaintiff’s performance and had been searching for a possible replacement for plaintiff since November 1977. As plaintiff urges, defendant’s tortious actions should not preclude plaintiff from asserting that but for those actions his employment with Crown would have continued beyond October 1979. Furthermore, under the principle that damages must be proven to be the proximate result of the complained wrong and may not be awarded on the basis of conjecture or speculation (Callier v. Callier (1986), 142 Ill. App. 3d 407, 418, 491 N.E.2d 505, 512), it was not unduly speculative for the jury to find that plaintiff’s 17-year employment as a key employee with Crown would have continued for an indefinite period of time but for defendant’s tortious actions.

Defendant also contends that the jury was impermissibly allowed to speculate as to the amount of plaintiff’s annual bonus and earnings in the profit-sharing plan. Plaintiff produced evidence to show that every year, except those in which he was hospitalized, he received a bonus. He also presented evidence that every year Crown’s profit-sharing contribution on his behalf increased. He further testified that, based upon his past investment experience as a trustee for the profit-sharing plan, interest would have accumulated annually at an average of approximately 10%. This evidence is sufficient to present the issue of plaintiff’s annual bonus and profit-sharing earnings to the jury. The fact that plaintiff’s bonuses and profit-sharing could not be calculated with mathematical precision does not render the damages unduly speculative. See Midland Hotel Corp. v. Reuben H. Donnelly Corp. (1987), 118 Ill. 2d 306, 315-16, 515 N.E.2d 61, 66.

Defendant’s last contention regarding damages is that the court’s allowance of the “investment value” in the profit-sharing calculations permitted the jury to award plaintiff “double recovery” because plaintiff could have invested his lump-sum distribution and earned interest thereon. Defendant misplaces his reliance on National Wrecking Co. v. Coleman (1985), 139 Ill. App. 3d 979, 487 N.E.2d 1164, to support this contention. In National Wrecking, the court found that the plaintiff, in seeking “lost investment value” on the $82,100 loss from the defendant’s breach of contract, in effect was improperly seeking interest on its damages. (National Wrecking, 139 Ill. App. 3d at 984, 487 N.E.2d at 1167.) Here, however, plaintiff is not seeking interest on his damages, but seeking his entitlement to employment benefits in the form of his employer’s contributions and earnings on the contributions under a profit-sharing plan. He subtracted the lump sum he received as his “vested” interest on his discharge, and he testified that he was unable to reinvest the lump sum because he needed it to support his family due to his lost wages. Under these circumstances, an award of damages based upon lost earnings would not be tantamount to double recovery.

Finally, we consider plaintiff’s contention on his cross-appeal that he should be awarded a new trial on the issue of punitive damages. Plaintiff first asserts that the trial judge committed prejudicial error in excluding evidence of additional promises made by defendant and Harold as to plaintiff’s job security because the evidence was relevant to the issue of punitive damages. Plaintiff has waived this argument by failing to object on this basis in the circuit court.

Plaintiff also contends that the trial judge committed prejudicial error in submitting the punitive damages instruction tendered by defendant, which included the requirement of “actual malice,” defined as “a positive desire and intention to injure,” instead of his tendered instruction which included “wantonness *** oppression and circumstances of aggravation.” The case cited by plaintiff in support of his assertion, Getschow v. Commonwealth Edison Co. (1982), 111 Ill. App. 3d 522, 534, 444 N.E.2d 579, 587, involves different factual circumstances and did not address the appropriate instruction to be tendered in this regard. We hold that plaintiff was not prejudiced by the tendered instruction.

In summary, on defendant’s appeal from the jury verdict entered against him in plaintiff’s intentional interference action, defendant has failed to demonstrate that he is entitled to a judgment notwithstanding the verdict or that he is entitled to a new trial as a result of prejudicial trial errors. On plaintiff’s cross-appeal, plaintiff has not advanced any trial errors which would entitle him to a new trial on the issue of punitive damages. Accordingly, we affirm the judgment of the circuit court of Cook County.

Affirmed.

CAMPBELL and O’CONNOR, JJ., concur.

       Chapman’s action was originally filed as a counterclaim to Crown Glass Corporation’s complaint against Chapman, Richard Wassenberg and Harold Serlin, which sought to enjoin a meeting of Crown’s board of directors. Crown’s complaint was subsequently dismissed by agreed order, and Chapman’s counterclaim continued as an independent cause of action.

       We note the confusion expressed by defendant on appeal as to the theory presented to the jury. Defendant asserts that three theories were presented to the jury: that defendant lacked corporate authority pursuant to the bylaws to terminate plaintiff, that defendant terminated plaintiff’s employment to further a deadlock on the Board, and that defendant terminated plaintiff’s employment to “isolate” Harold. We agree with plaintiff that the record demonstrates a single theory of liability was presented to the jury.

       Evidence was also introduced at trial as to defendant’s authority to fire plaintiff under the corporate bylaws. Defendant has devoted much of his argument on appeal to this issue. Plaintiff argues that he presented the evidence of the corporate bylaws to demonstrate that plaintiff’s termination was not in the best interests of the corporation. Because we find, under Mittelman, that the alleged conduct would be contrary to the best interests of the corporation regardless of whether defendant had authority under the corporate bylaws, we need not determine this issue.


author: JUSTICE SCARIANO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFREY ROBINSON, Defendant-Appellant.
    First District (2nd Division)
    No. 1—88—2188
    Opinion filed May 1, 1990.

      Randolph N. Stone, Public Defender, of Cook County (Ira Churgin, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Walter P. Hehner, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

Following a bench trial, defendant was convicted of residential burglary and sentenced to five years’ imprisonment. He now appeals his conviction and sentence, alleging that the trial judge’s finding of guilt was based in part on inadmissible hearsay evidence and was therefore a product of prejudicial error. We affirm.

Defendant was charged by information with one count of residential burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19 — 3) and convicted on June 7, 1988. At trial, the State presented three witnesses: the victim, Laura Smart; her boyfriend, Darrius Thomas; and Chicago police officer Thomas McCann. Defendant testified on his own behalf. The parties stipulated for the purpose of impeachment that on August 28, 1986, defendant had been convicted of possession of a stolen motor vehicle (Ill. Rev. Stat. 1987, ch. 95^2, par. 4 — 103) and sentenced to two years’ probation.

Smart testified that at about 10:30 p.m. on January 30, 1988, she left her apartment at 13333 South Greenwood in Chicago, locking her door and leaving no one inside. When she returned at about 2:30 p.m. the following day, she noticed that her back door was open and that a panel on the door had been kicked in. Four items were missing from her apartment: a stereo, a color television, a video cassette recorder and a gold watch. Smart reported the burglary to the police and also enlisted the aid of her boyfriend, Thomas, to help locate her property.

Thomas testified that he questioned various people in the neighborhood about the stolen property. On February 4, 1988, he had a telephone conversation with- defendant, who admitted having the stereo and video cassette recorder. They arranged to meet immediately afterward, at which time defendant personally handed over the stereo to Thomas and directed a juvenile to give him the video cassette recorder. During the exchange, defendant told Thomas that he would have never burglarized Smart’s apartment had he known to whom it belonged. The items that defendant returned were those stolen from Smart’s apartment.

Officer McCann testified that he and two other police officers arrested defendant pursuant to the information Thomas had given them and that, after being advised of his rights, defendant admitted participating in the burglary. He told the officers that he and two juveniles, Kevin Gloster and Mark Gregory, entered Smart’s apartment after one of the juveniles kicked out a door panel and reached in to unlock the door. Defendant admitted removing a video cassette recorder and watch from the apartment. During cross-examination, Officer McCann stated that defendant confessed a second time at the police station, but that McCann never reduced the confession to writing. Gloster had also admitted participating in the burglary.

During his own testimony in chief, defendant denied any complicity in the burglary, but acknowledged having received a telephone call from Thomas on February 4, 1988. According to defendant:

“[Thomas] called my house and told me his house had been broken in, and that a VCR, portable radio, stereo, [sic] and that Kevin and some other guy told him I had broke into the house.”

Although defendant then admitted that he returned a portable radio and a video cassette recorder to Thomas, he said that he never confessed participating in the burglary to Officer McCann. In fact, he testified that he told both Thomas and the officer that he had bought the items for $70 from Gloster.

After hearing arguments, the circuit judge found defendant guilty and made the following finding:

“You have an admission or confession, you have corroboration, and the property itself. The defendant was fingered by one of the juvenile offenders of this offense and that’s how he got involved.”

Defendant contends that the trial court committed reversible error by considering incompetent hearsay testimony that he “was fingered by one of the juvenile offenders of this offense.” Thus, the issue focuses on defendant’s own testimony, quoted above, that Thomas heard from two other individuals that defendant was involved in the burglary.

The State argues that defendant waived his alleged error for the reason that he neither objected to the testimony at trial nor raised the error in his post-trial motion. To preserve an error for review, a defendant must do both. (People v. Enoch (1988), 122 Ill. 2d 176, 185-90, 522 N.E.2d 1124, 1129-31.) In the present case, however, defense counsel was hardly in a position to object to the admission of the offending testimony because it came from defendant himself in response to a question during direct examination. In an attempt to explain how and why Thomas’ investigative trail led to defendant, his trial attorney questioned him about his telephone conversation with Thomas on February 4, 1988. Among the questions he asked were “And what was [the conversation] concerning? What was it about that you talked to Mr. Thomas?” It was in response to these questions that defendant repeated the incriminating hearsay.

A defendant may not complain of improper evidence if he “procures, invites or acquiesces” in its admission. (People v. Burage (1961), 23 Ill. 2d 280, 283, 178 N.E.2d 389, 391, cert. denied (1962), 369 U.S. 808, 7 L. Ed. 2d 555, 82 S. Ct. 651; People v. Bell (1972), 53 Ill. 2d 122, 290 N.E.2d 214.) Significantly, in all of the cases addressing this issue, the incriminating evidence emanated from a State witness during cross-examination. (See, e.g., Bell, 53 Ill. 2d 122, 290 N.E.2d 214; Burage, 23 Ill. 2d 280, 178 N.E.2d 389; People v. Chanath (1989), 184 Ill. App. 3d 521, 540 N.E.2d 468; People v. Tribett (1977), 54 Ill. App. 3d 777, 370 N.E.2d 115.) Here, defense counsel asked an open-ended question of his own witness, who provided a responsive answer. Consequently, defendant’s only complaint can be with the question posed and not the answer given. We hold, therefore, that defendant was estopped both from objecting to his own testimony, if he had been so inclined, and later from raising the court’s reliance on the testimony as prejudicial error. See Burage, 23 Ill. 2d 280, 178 N.E.2d 389.

It is presumed that in a bench trial a judge has considered only competent evidence in arriving at his verdict. (People v. Gilbert (1977), 68 Ill. 2d 252, 369 N.E.2d 849; People v. Alford (1982), 111 Ill. App. 3d 741, 444 N.E.2d 576; People v. Barbour (1982), 106 Ill. App. 3d 993, 436 N.E.2d 667.) If the record affirmatively shows the contrary, however, this presumption may be rebutted. (Gilbert, 68 Ill. 2d 252, 369 N.E.2d 849; Alford, 111 Ill. App. 3d 741, 444 N.E.2d 576; Barbour, 106 Ill. App. 3d 993, 436 N.E.2d 667.) We note, however, that if hearsay evidence is admitted without objection, it must be given its "natural probative effect” (People v. Akis (1976), 63 Ill. 2d 296, 299, 347 N.E.2d 733, 735; People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267, cert. denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267); and in light of our conclusion that the hearsay evidence implicating defendant in the burglary was competent ab initio, we find that the record is not only devoid of such a contrary showing, but reinforces the presumption. (See Gilbert, 68 Ill. 2d at 258-59, 369 N.E .2d at 852-53.) Accordingly, we affirm.

Affirmed.

DiVITO, P.J., and BILANDIC, J., concur.