text:
    AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, as Trustee, et al., Plaintiffs-Appellees, v. RANDALL BUS et al., Defendants-Appellants (The Village of Glendale Heights et al., Defendants).
    Second District
    No. 2—90—0840
    Opinion filed April 10, 1991.

      Eugene J. Berkes, of Cisar & Mrofka, Ltd., of Oak Brook (Thomas J. Cisar, of counsel), for appellants.
    James L. Thompson, of Jenner & Block, and Sidney M. Kaplan, of Baker & McKenzie, both of Chicago, and Robert C. Liston, of Liston & Mauter, P.C., of Wheaton (Joel J. Africk, of counsel), for appellees.
   JUSTICE DUNN

delivered the opinion of the court:

Defendants, Cemcon, Ltd., and Randall Bus, appeal from an order denying their motion pursuant to section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—611) for sanctions against defendants, American National Bank and Trust Company of Chicago as trustee under trust No. 45137 et al. The motion was denied because defendants did not call it for a hearing within 60 days as required by a local circuit court rule. On appeal, defendants argue that: (1) the circuit court lacked jurisdiction at the time it denied the motion; (2) the rule did not authorize the court to deny the motion because it was not a post-trial motion; (3) plaintiffs were not prejudiced by the delay in calling the motion for a hearing; (4) reversal is required because the trial court made no written findings; and (5) the trial court was required to consider the merits of the motion even if defendants failed to comply with the local rule. We reverse.

Plaintiffs filed suit against Cemcon, Ltd. (Cemcon), Bus, the Village of Glendale Heights, and the County of Du Page (County) on December 21, 1988. Cemcon and Bus filed a motion for summary judgment on March 1, 1989. Plaintiffs settled the case against the Village and County on April 14, 1989, and the circuit court entered an order dismissing these parties from the case with prejudice. The circuit court issued an order granting the motion for summary judgment on December 22, 1989. This order states that there is no just reason for delaying enforcement or appeal.

Defendants filed their motion pursuant to section 2—611 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2—611) for sanctions against plaintiffs and their attorneys on January 19, 1990. Defendants stated in the petition that the allegations in plaintiffs’ complaint directed against them were baseless, and plaintiffs refused to dismiss them from the suit even though they should have known in February 1989 that the allegations were false.

On January 22, 1990, plaintiffs filed a notice of appeal from the order granting summary judgment to defendants. Plaintiffs filed a motion on April 4, 1990, for automatic denial of the section 2 — 611 motion because defendants had not called it for a hearing within 60 days as required by Rule 6.04(f) of the Eighteenth Judicial Circuit. The rule states in relevant part as follows:

“The burden of calling for hearing any motion previously filed is on the party making the motion. Any motion not called for hearing within sixty (60) days from the date it is filed may be stricken without notice. Any post-trial motion shall be denied if not called for hearing within sixty (60) days from the date the motion was filed.” 18th Jud. Cir. R. 6.04(f) (1987).

• After holding a hearing concerning plaintiffs’ motion on May 14, 1990, the trial court entered an order denying the section 2 — 611 motion. Defendants filed a motion to reconsider this order, and the trial court denied the motion. Defendants now appeal.

Initially, defendants contend that plaintiffs’ filing of a notice of appeal from the summary judgment order divested the circuit court of jurisdiction to consider the section 2 — 611 motion. In 1986, the following language was added to section 2 — 611:

“All proceedings under this Section shall be within, and part of the civil action in which the pleading, motion or other paper referred to herein has been filed, and no violation or alleged violation of this Section shall give rise to a separate cause of action, or another cause of action within the civil action in question ***.” Ill. Rev. Stat. 1989, ch. 110, par. 2—611.

Because of the above language, our supreme court has held that no appeal may be taken from an otherwise final judgment on the underlying claim in a lawsuit if a section 2 — 611 claim is pending without a finding pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) that no just reason exists to delay enforcement or appeal. (Marsh v. Evangelical Covenant Church of Hinsdale (1990), 138 Ill. 2d 458, 468.) In the case at bar, the above Rule 304(a) finding was made in the order granting summary judgment. Therefore, this court had jurisdiction to entertain the appeal from that order at the time the notice of appeal was filed.

This does not mean that the circuit court lacked jurisdiction to consider the section 2 — 611 motion. An appellate court only gains jurisdiction over matters raised in the notice of appeal. (Predny v. Village of Park Forest (1987), 164 Ill. App. 3d 688, 693.) The filing of a notice of appeal only serves to deprive the circuit court of jurisdiction to modify the judgment appealed from or rule on matters of substance which are the subject of the appeal. (Montgomery Ward & Co. v. Wetzel (1981), 98 Ill. App. 3d 243, 249.) Thus, in Predny, the court determined that earlier appeals filed pursuant to Rule 304(a) did not affect the trial court’s jurisdiction to consider a post-trial motion regarding the liability of a certain defendant when the prior appeals did not concern that issue. Predny, 164 Ill. App. 3d at 693.

In Chicago Title & Trust Co. v. Czubak (1978), 67 Ill. App. 3d 184, the court determined that the filing.of a notice of appeal from the underlying judgment did not deprive the circuit court of jurisdiction to consider a motion for attorney fees and costs pursuant to section 41 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 41), the predecessor to section 2 — 611 of the Code. (Czubak, 67 Ill. App. 3d at 185.) In so holding, the court stated, “[T]he order for attorney’s fees and costs *** relates to a matter not affected in anyway by the appeal and is not dependent in any respect on the final outcome of the suit.” (67 Ill. App. 3d at 185.) We further note that in Marsh our supreme court stated, “[t]he question of whether section 2 — 611 sanctions were appropriate required an independent determination, entirely distinct from the judgment previously entered.” (Marsh, 138 Ill. 2d at 462.) In light of these authorities, we conclude that the plaintiffs’ appeal from the summary judgment order did not deprive the circuit court of jurisdiction to consider the section 2 — 611 motion.

Defendants also argue that the denial of their motion was improper because, under Marsh, a section 2 — 611 motion is not a post-trial motion, and Rule 6.04(f) only authorizes denial of post-trial motions. We agree. Our supreme court stated in Marsh that it would “consider whether the defendant’s section 2 — 611 motion for attorney fees qualifies as a post-trial motion.” (138 Ill. 2d at 461.) The court went on to state, “[sjection 2 — 1203 of the Civil Practice Law authorizes the filing of post-trial motions” and, “[f]or a motion to qualify as a ‘post-trial motion,’ one or more of the types of relief specified in section 2 — 1203 must be specifically requested.” 138 Ill. 2d at 461.

Section 2 — 1203 of the Code, which applies in nonjury cases, allows any party within 30 days of the date on which judgment is entered to “file a motion for a rehearing, or a retrial, or modification of the judgment or to vacate the judgment or for other relief.” (Ill. Rev. Stat. 1989, ch. 110, par. 2—1203.) The “other relief” mentioned in section 2 — 1203 must be similar to the types of relief specified in the provision. (Marsh, 138 Ill. 2d at 461-62.) The court pointed out in Marsh that a section 2 — 611 motion does not seek a rehearing, retrial, or vacation of the underlying judgment. (138 Ill. 2d at 461.) The court also noted that section 2 — 611 motions are not post-trial motions within the meaning of Supreme Court Rule 303(a) (134 Ill. 2d R. 303(a)) because they are not directed against the underlying judgments. (138 Ill. 2d at 463-64.) The court therefore concluded that section 2 — 611 motions are not post-trial motions. 138 Ill. 2d at 464.

As we have seen, Rule 6.04(f) states that post-trial motions which are not caUed for hearing within 60 days “shall be denied,” while other motions not called for hearing within this deadline “may be stricken without notice.” Plaintiffs contend that even if a section 2 — 611 motion is not a post-trial motion, the trial court’s action was appropriate under the local rule and should be affirmed.

We must, however, reject plaintiffs’ argument that the trial court’s action was appropriate under the rule and should be affirmed even if the section 2 — 611 motion was not a post-trial motion. At the hearing on plaintiffs’ motion for denial of the section 2 — 611 motion, counsel for plaintiffs stated that it was a post-trial motion, and counsel for defendants did not dispute this contention. Since the hearing was held prior to Marsh, and because this court had stated in Herman v. Fitzgerald (1989), 178 Ill. App. 3d 865, that a section 2 — 611 motion is a post-trial motion (Herman, 178 Ill. App. 3d at 869), defendants’ failure to dispute this contention is understandable. Because the word “shall” generally connotes a mandatory obligation (People ex rel. Village of Buffalo Grove v. Village of Long Grove (1990), 199 Ill. App. 3d 395, 418), the trial judge may have felt he was compelled to deny the section 2 — 611 petition when this was not the case, since the portion of the local rule dealing with post-trial motions was not applicable.

Plaintiffs contend, however, that the trial court had the authority under Rule 6.04(f) to strike the section 2 — 611 motion if it was not a post-trial motion. They argue further that, since section 2 — 611 motions must be filed within 30 days of judgment on the underlying claim or while the trial court still has jurisdiction over the underlying claim (Marsh, 138 Ill. 2d at 468), defendants could not have refiled their section 2 — 611 motion had it been stricken.

We agree with plaintiffs that, under the circumstances of this case, striking defendants’ section 2 — 611 motion would have been tantamount to denying it. We conclude, however, that striking the motion would have been an abuse of discretion. Since Rule 6.04(f) states that post-trial motions not called for hearing within 60 days “shall be denied,” it is evident that the authors of the rule intended to allow, or even require, trial judges to effectively make a ruling on the merits by denying the motion in the event of noncompliance. By contrast, the authors of the rule only authorized trial judges to strike other motions for noncompliance, thus exhibiting a contrary intention which would not prevent the movant from subsequently seeking a ruling on the merits of the motion.

Therefore, since the motion in this case was not a post-trial motion, it would have been an abuse of discretion for the trial court to strike the motion since this would have denied defendants a future opportunity to be heard on the motion, contrary to the intent of Rule 6.04. Under the unique circumstances of this case, defendants’ section 2 — 611 motion should not have been denied or stricken. Accordingly, we reverse the circuit court’s order denying the section 2 — 611 motion and remand the cause to that court with instructions to set a hearing date on the motion.

As a final note, we are aware that defendants did not argue in the trial court that their section 2 — 611 motion was not a post-trial motion, nor did they raise the argument in this court until they filed their reply brief. Ordinarily, this would result in waiver of the issue. (134 Ill. 2d R. 341(e)(7).) The rule of waiver, however, is a limitation on the parties and not on the reviewing court. (In re Marriage of Rodriguez (1989), 131 Ill. 2d 273, 279.) A reviewing court may ignore the waiver rule if necessary to achieve a just result or to ensure the maintenance of a sound and uniform body of precedent. (Hux v. Raben (1967), 38 Ill. 2d 223, 225.) In light of the confusion surrounding whether a section 2 — 611 motion is a post-trial motion, confusion which was caused in part by our opinion in Herman, and which was only recently resolved by our supreme court in Marsh, both of the above considerations justify departing from the waiver rule in this case. The waiver rule should not be applied to deprive a party of a chance to present argument (Hux, 38 Ill. 2d at 225) or if proof might have been offered at trial to refute the new theory. In the case at bar, the question of whether a section 2 — 611 motion is a post-trial motion is entirely a legal, rather than a factual, question. Moreover, plaintiffs did discuss Marsh in their brief, apparently anticipating that defendants would raise it in their reply brief. We therefore choose to ignore the waiver rule here.

For the above reasons, the order of the circuit court of Du Page County is reversed, and the cause is remanded for further proceedings.

Reversed and remanded with instructions.

UNVERZAGT and GEIGER, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE REINHARD

license: Public Domain

text:
    JOSEPH FRAZIER, D.D.S., AND GEORGE D. DALLAS, D.D.S., et al., Plaintiffs-Appellants, v. GARY DETTMAN, Defendant-Appellee.
    Second District
    Nos. 2—90—1271, 2—90—1272 cons.
    Opinion filed April 10, 1991.

      Michael T. Caldwell, of Caldwell, Berner & Caldwell, of Woodstock, and Regas, Frezados & Harp, of Chicago (William D. Dallas, of counsel), for appellants.
    Daniel S. Hefter & Associates, Ltd., and Steven M. Harris, of Malk, Harris & Miller, both of Chicago, and W.M. Carroll, Jr., of Steffen & Carroll, of Crystal Lake (Daniel Slack Hefter, of counsel), for appellee.
   PRESIDING JUSTICE REINHARD

delivered the opinion of the court:

George D. Dallas, D.D.S., brought the instant action, individually and on behalf of the dissolved partnership of Joseph Frazier, D.D.S., and George D. Dallas, D.D.S. (the partnership), in the circuit court of McHenry County against defendant, Gary Dettman, D.D.S., a former employee of the partnership. Plaintiffs sought, inter alia, to enforce a restrictive covenant contained in defendant’s employment contract with the partnership and a preliminary injunction. The circuit court refused to issue the preliminary injunction and, finding the restrictive covenant unenforceable, granted defendant’s motion to dismiss those counts of plaintiffs’ complaint based on the covenant. Plaintiffs brought separate appeals from these two orders, and the two appeals have been consolidated for review.

Plaintiffs raise three issues on appeal: (1) whether a restrictive covenant in an employment contract is enforceable by a dissolved partnership in the process of winding up its affairs; (2) whether a partner of the dissolved partnership, acting individually and not on behalf of the partnership, can enforce such a restrictive covenant; and (3) whether an injunction should have been issued against defendant even in the absence of an enforceable restrictive covenant.

The following facts can be adduced from the record. Doctors Frazier and Dallas entered into a partnership agreement in 1985 to engage in the practice of dentistry under the name “Joseph I. Frazier, D.D.S. and George D. Dallas, D.D.S.” Their practice was conducted at two offices in McHenry County, one in Woodstock and the other in Marengo.

Defendant, also a dentist, was hired by the partnership to perform dental services. Defendant had never practiced in McHenry County before being employed by the partnership. An employment contract dated August 1, 1987, was entered into between defendant and “Joseph Frazier, D.D.S. and George Dallas, D.D.S., a partnership.” The contract notes that the partnership is also referred to in the document as the “partners.” The contract contains the following pertinent provisions:

“6. Employee agrees that he will be treating Partners’ patients and will have access to lists of patients and their addresses, and that he will learn dental techniques and processes from the Partners, and therefore agrees that during the term of this Agreement, and for 2 years after the termination of this Agreement, he will not engage or become associated with, directly or indirectly, any business or other activity, as a stockholder, partner, investor, sole proprietor, agent, employee or consultant, which is in any way competitive with the business of the Partners, or perform any act which may confer a competitive benefit or advantage to any enterprise competing with the Partners in McHenry County.
The Partners are actively engaged in the business of providing dental care, treatment and services in McHenry County, and it is therefore agreed that the foregoing restrictions shall be operative for the above time period only in that territory. *** The parties agree that the remedy at law for any breach of this provision will be inadequate and the Partners shall be entitled to injunctive relief together with attorney’s fees and costs.
8. All patient records, files, x-rays and other work papers used and/or produced by Employee shall belong to and remain the property of the Partners.”

The employment contract does not provide that any of the rights thereunder are assignable, and any modification of the agreement required the consent of both parties.

Frazier and Dallas decided to dissolve the partnership effective September 17, 1990. The dissolution agreement provided, inter alia, that either Frazier or Dallas could hire any partnership employee who would agree to be so employed. The dissolution agreement also provided that each partner would facilitate the “good faith transfer and referral of patients and patients’ records” in accordance with each patient’s choice of dentist. The agreement did not provide for either the sale of patient lists or the transfer of such lists to either partner upon dissolution.

As a result of the dissolution of the partnership, defendant’s employment was terminated effective September 22, 1990. Plaintiffs alleged that defendant indicated that he would accept, but then declined, Dr. Dallas’ offer of employment under similar terms as his former employment with the partnership. Instead of working for either of the two partners, defendant began practicing dentistry at his own office in Woodstock. Plaintiffs alleged that defendant contacted plaintiffs’ patients and arranged to treat them in his office. Plaintiffs further alleged, on information and belief, that defendant removed patient lists and records without authority and in direct breach of his contract.

Plaintiffs’ verified complaint was filed on October 3, 1990. Though the complaint was filed on behalf of “JOSEPH FRAZIER, D.D.S., and GEORGE DALLAS, D.D.S, a partnership” as well Dallas individually, Frazier is not, individually, a party to the action. It was alleged that the partnership was currently in the process of winding up its affairs. Count I of the complaint sought a permanent injunction against defendant to enforce the restrictive covenant. Count I also sought to recover the profits defendant gained as a result of his breach and to compel return of the patient lists. Count II sought the issuance of a temporary restraining order (TRO) or a preliminary injunction pending resolution of the cause. Count III sought money damages for breach of the employment contract. Count IV alleged that defendant tortiously removed the patient lists, and count V alleged tortious interference with plaintiffs’ contractual relations.

Defendant filed a motion under section 2—619 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2—619) to dismiss plaintiffs’ complaint. The motion contended, inter alia, that counts I, II and III of the complaint were based on a restrictive covenant which could not be enforced either by the dissolved partnership or by a partner individually. The trial court entered a TRO on October 3, 1990, preventing defendant from soliciting or treating plaintiffs’ patients and from practicing dentistry in McHenry County. Defendant filed an interlocutory appeal from the TRO in appeal No. 2—90—1104, and this court, pursuant to Supreme Court Rule 307(d) (134 Ill. 2d R. 307(d)), ordered that the TRO be vacated.

Plaintiffs subsequently asked the circuit court to issue a preliminary injunction. Plaintiffs contended that the terms of defendant’s employment contract indicate that it could be enforced by either the partnership or the partners individually. Plaintiffs additionally contended that the restrictive covenant was an asset of the partnership which a winding-up partner could sue to protect. After a hearing on October 12, 1990, the circuit court denied plaintiffs’ request for a preliminary injunction. The court also granted defendant’s motion to dismiss counts I, II, and III of plaintiffs’ complaint, holding that “the restrictive covenant sought to be enforced is, as a matter of law, unenforceable.” Although the order did not dispose of counts IV and V, the court made a finding, pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), that there was no just reason to delay enforcement or appeal of its order.

In No. 2—90—1271 of this consolidated appeal, plaintiffs appeal from the trial court’s order denying the preliminary injunction pursuant to Supreme Court Rule 307(a)(1) (134 Ill. 2d R. 307(a)(1)). In No. 2—90—1272, plaintiffs appeal from the trial court’s order dismissing counts I, II, and III of the complaint pursuant to Supreme Court Rule 304(a).

Plaintiffs’ first contention on appeal is that the partnership, acting through Dr. Dallas, may enforce the restrictive covenant even though the partnership is dissolved and in the process of winding up its affairs. An initial inquiry in this regard is whether Dr. Dallas, as a winding-up partner, has the authority to file suit on behalf of the partnership as a part of the process of winding up the partnership’s affairs.

Section 30 of the Uniform Partnership Act (the Act) (Ill. Rev. Stat. 1989, ch. 106½, par. 30) provides that, upon dissolution, a partnership is not terminated, but continues in existence until the winding up of partnership affairs is completed. Dissolution terminates the authority of a partner to act on behalf of the partnership except so far as may be necessary to wind up partnership affairs. (Ill. Rev. Stat. 1989, ch. 106½, par. 33.) There is support for the proposition that “[i]ncluded in the powers of a liquidating partner winding up partnership affairs is the power to maintain an action on [the] partnership debts for the benefit of the partnership.” (59A Am. Jur. 2d Partnership §1111, at 782 (1987).) Moreover, the dissolution of the partnership does not terminate its contractual relationships with other parties. See Ellerby v. Spiezer (1985), 138 Ill. App. 3d 77, 81, 485 N.E.2d 413.

Nevertheless, the propriety of a winding-up partner bringing a suit to enforce a restrictive covenant which will only affect future conduct, when the partnership will presumably be nonexistent, is troublesome. We need not answer this question here because defendant concedes in his brief that “dissolved partnerships may bring suit to enforce their rights as part of the winding up process.” Thus, we assume, arguendo, that Dr. Dallas had the authority to bring the instant action on behalf of the partnership.

We next examine the question of whether the dissolved partnership can enforce the particular legal obligation at issue here, namely, the restrictive covenant. Plaintiffs contend that the trial court erroneously determined that the restrictive covenant was unenforceable by the dissolved partnership.

In Illinois, contracts in general restraint of trade are ordinarily held to be void. However, where the limitations as to time and territory are not unreasonable, the covenant is valid and may be enforced by injunction. (Canfield v. Spear (1969), 44 Ill. 2d 49, 50-51, 254 N.E.2d 433.) This rule applies to a restrictive covenant in an employment contract for professional services. (Cockerill v. Wilson (1972), 51 Ill. 2d 179, 183-84, 281 N.E.2d 648; Canfield, 44 Ill. 2d at 51, 254 N.E.2d at 434.) A restrictive covenant is generally held to be enforceable if it is reasonable in its geographic and temporal scope and if it is necessary to protect a legitimate business interest. (Shapiro v. Regent Printing Co. (1989), 192 Ill. App. 3d 1005, 1010, 549 N.E.2d 793.) Although enforceability is a question of law, the reasonableness of any restrictive covenant is determined by the facts of the particular case. Shapiro, 192 Ill. App. 3d at 1010, 549 N.E.2d at 795-96.

The reasonableness of the geographic and temporal scope of the restrictive covenant in the instant case is not at issue on appeal. However, the parties disagree as to whether the dissolved partnership has a legitimate business interest sufficient to support the restrictive covenant. In the case of a restrictive covenant contained in an employment contract, the covenantee must show special circumstances to demonstrate a legitimate business interest. Such circumstances would be the employer’s near-permanent relationship with customers with whom the former employee would not have had contact but for his association with the employer, or the existence of customer lists, trade secrets, or other confidential information. Hamer Holding Group, Inc. v. Elmore (1990), 202 Ill. App. 3d 994, 1007, 560 N.E.2d 907.

Plaintiffs correctly contend that a professional’s medical practice is a protectable business interest. (Retina Services, Ltd. v. Garoon (1989), 182 Ill. App. 3d 851, 856, 538 N.E.2d 651.) Because an employee of a professional may be brought into contact with the employer’s clientele, the employer may utilize a restrictive covenant in the employment contract to guard against the loss of clients to the employee. (Cockerill, 51 Ill. 2d at 184, 281 N.E.2d at 651.) In the instant case, however, the partnership, which is dissolved and in the process of winding up its affairs, no longer has an ongoing dental practice. It makes no sense to protect the partnership’s relationship with its patients when they are no longer serviced by the partnership.

Defendant asserts that this case presents a similar issue to that in Dr. Allison, Dentist, Inc. v. Allison (1935), 360 Ill. 638, 196 N.E. 799. In that case, the supreme court refused to allow a corporation to enforce a restrictive covenant against a dentist because the corporation itself could not engage in the practice of dentistry. (Allison, 360 Ill. at 642, 196 N.E. at 800-01.) Here, the same might be said of a partnership on the brink of terminating its existence. As the partnership has no dentistry practice of its own which would constitute a legitimate business interest, there is nothing against which defendant’s practice could impermissibly compete.

Plaintiffs further contend, however, that, although the partnership dental practice is no longer ongoing, it is proper for a partnership in the process of winding up its affairs to protect the value of partnership assets. This statement is correct, as the winding-up process can involve the sale of assets to pay partnership debt or to distribute the proceeds to the partners. (See 59A Am. Jur. 2d Partnership §1100 (1987).) Plaintiffs maintain that enforcement of the restrictive covenant operates to protect the value of goodwill which will pass to the partners upon termination of the partnership.

The reputation of a professional partnership, such as partnerships of attorneys or physicians, depends upon individual skill of its members, and there is generally no goodwill to be distributed as an asset upon the dissolution of such a firm. (Cook v. Lauten (1954), 1 Ill. App. 2d 255, 260, 117 N.E.2d 414; see also 59A Am. Jur. 2d Partnership §338 (1987) (same rule applied to partnerships of dentists).) Therefore, because no goodwill will pass to the members of the partnership, and because no goodwill is here being sold to a third party (see, e.g., Hamer, 202 Ill. App. 3d at 1008-09, 560 N.E.2d at 915-16), the dissolved partnership has no legitimate business interest in enforcement of the restrictive covenant to protect the value of its goodwill.

Because the partnership has no legitimate business interest to justify enforcement of the restrictive covenant, we hold that, on the particular facts of this case, the covenant is unenforceable in an action brought on behalf of the dissolved partnership.

Plaintiffs’ second contention is that, even if the restrictive covenant is not enforceable by the partnership itself, it may be enforced by the individual partners. It does not appear that plaintiffs are arguing that the partnership assigned its rights in the covenant to the individual partners. Thus, we need not determine whether such an assignment of rights under a contract for personal services would be valid. (See generally 53 Am. Jur. 2d Master & Servant §14 (1970).) Instead, plaintiffs argue that the terms of defendant’s employment contract allow either of the partners to enforce the restrictive covenant.

The employment contract specifically notes that the parties thereto are defendant and the partnership, not the individual partners. Plaintiffs argue, however, that the restrictive covenant prohibits defendant from competing with “the business of the Partners.” Thus, plaintiffs construe the contract as creating rights in favor of the individual partners which can be enforced by the individual partners.

We note that, by its exact terms, the contract states that the employer is, “Joseph Frazier, D.D.S. and George Dallas, D.D.S., a partnership (herein ‘partners’).” (Emphasis added.) Thus, the contract itself specifies that the term, “partners,” adds nothing to the definition of the employer in whom the rights of the contract were created. The contract is one between defendant and the partnership, not the individual partners, and there is no basis upon which to allow the individual partners to enforce a contract to which they are not, individually, parties.

We conclude that the restrictive covenant is not enforceable by either the dissolved partnership or by Dr. Dallas acting individually. Where it has been determined that a party will not ultimately succeed on the merits of his claim, it is proper to deny a preliminary injunction. (See Mister v. A.R.K. Partnership (1990), 197 Ill. App. 3d 105, 118-19, 553 N.E.2d 1152.) Therefore, the trial court was correct in denying the issuance of a preliminary injunction and in granting defendant’s motion to dismiss counts I, II and III of plaintiffs’ complaint insofar as they were based upon the restrictive covenant.

Plaintiffs’ third argument, which is cursorily raised in their brief, is that, even in the absence of a restrictive covenant, the customer lists purportedly stolen by defendant constitute a protectable interest sufficient to support the issuance of the preliminary injunction. We note that plaintiffs did not present this argument in support of the preliminary injunction below. The failure to raise an issue in the trial court constitutes a waiver of the issue for purposes of appeal. People ex rel. Hartigan v. Illinois Commerce Comm’n (1987), 117 Ill. 2d 120,131, 510 N.E.2d 865.

Even if we were to consider this argument, we note that the record is not sufficient to support it. It is true that, where no answer has been filed, the well-pleaded allegations of a complaint for preliminary injunction will be taken as true. (Interstate Material Corp. v. City of Chicago (1986), 150 Ill. App. 3d 944, 948, 501 N.E.2d 910.) Here, however, plaintiffs’ verified complaint alleged only “[o]n information and belief” that defendant removed patient records without authorization. A complaint for preliminary injunction must plead facts which clearly establish a right to injunctive relief, and allegations consisting of mere opinion, conclusion or belief, rather than personal knowledge, are not sufficient. (Village of Lake in the Hills v. Laidlaw Waste Systems, Inc. (1986), 143 Ill. App. 3d 285, 291, 492 N.E.2d 969; Maas v. Cohen Associates, Inc. (1983), 112 Ill. App. 3d 191, 195-96, 445 N.E.2d 517.) Additionally, plaintiffs’ complaint does not allege that the customer lists were kept confidential. See Prentice Medical Corp. v. Todd (1986), 145 Ill. App. 3d 692, 699, 495 N.E.2d 1044.

Our conclusion for the above reasons makes it unnecessary for us to consider defendant’s additional arguments that this court’s prior dissolution of the TRO constitutes the law of the case and that the restrictive covenant is an unenforceable contract of adhesion unsupported by consideration.

The judgments of the circuit court of McHenry County are affirmed.

Affirmed.

BOWMAN and McLAREN, JJ., concur.


author: JUSTICE DUNN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL J. REYES, Defendant-Appellant.
    Second District
    No. 2—89—0636
    Opinion filed April 10, 1991.

      Daniel D. Yuhas and M. Jeffrey Bergschneider, both of State Appellate Defender’s Office, of Springfield, and G. Joseph Weller and Thomas A. Li-lien, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers, Robert J. Biderman, and Gwendolyn W. Klingler, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

Defendant, Michael Reyes, after a bench trial, was convicted of armed robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18—2) and sentenced to an eight-year term of imprisonment. On appeal, he contends that: (1) the provision in the Juvenile Court Act of 1987 (Act) (Ill. Rev. Stat. 1989, ch. 37, par. 805—4(6)(a)) pursuant to which he was tried as an adult is unconstitutionally vague with regard to alleged armed robbery perpetrators; (2) it was error to try him as an adult under that provision; and (3) evidence of prior criminal activity was erroneously admitted at his trial. We affirm.

On October 26, 1988, a Du Page County grand jury issued an indictment charging defendant with committing an armed robbery one week earlier while armed with a firearm. Defendant was 15 years old at the time. Despite defendant’s age, he was to be tried as an adult pursuant to section 5 — 4(b)(a) of the Act, which states in relevant part as follows:

“The definition of delinquent minor under Section 5 — 3 of this Act shall not apply to any minor who at the time of an offense was at least 15 years of age and who is charged with first degree murder, aggravated criminal sexual assault, armed robbery when the armed robbery was committed with a firearm, or violation of the provisions of subsection 24 — l(a)(12) of the Criminal Code of 1961, as amended. These charges *** shall be prosecuted pursuant to the Criminal Code of 1961, as amended.” Ill. Rev. Stat. 1989, ch. 37, par. 805—4(6)(a).

Defendant filed a motion to dismiss the indictment, asserting that he could only be tried as a juvenile. Defendant argued in the motion that section 5 — 4(6)(a) of the Act is unconstitutionally vague with respect to alleged armed robbery perpetrators and that, even if it is constitutional, he should not be tried as an adult pursuant to that provision because he did not use the firearm to take the money from the victim. The trial court denied the motion, and defendant was tried as an adult.

At trial, Tony Palma testified that he was employed by a Popeye’s Restaurant in Aurora. On October 19, 1988, at about 4:45 in the afternoon, he began walking to a nearby bank to make the daily deposit for the restaurant. Shortly after Palma left the restaurant, defendant approached him from behind, pushed him to the ground, grabbed the bank deposit bag, and ran away. Palma began to run after him, but defendant pulled out a gun and pointed it at Palma, who ducked behind a car.

Palma then yelled for help. Another man tackled defendant, and a struggle ensued. Palma heard a sound that seemed like a gunshot. The other man eventually subdued defendant. Palma called the police, who arrived at the scene shortly thereafter and apprehended defendant.

Robert Warner testified that he was the man who tackled and subdued defendant. Warner stated that after he tackled defendant, defendant fired a shot at him. After Warner subdued defendant, he asked why defendant had tried to take the money. Defendant said that he needed money because his girlfriend was pregnant. Defendant also stated that he was on probation and could not afford to be caught.

Raymond Parks, an Aurora police officer, testified that he received a radio dispatch concerning the above incident at about 4:45 p.m. on October 19, 1988. He arrived at the scene about 20 to 30 seconds later. Officer Parks saw defendant down on the ground with Warner holding him down. Palma was standing nearby. There was a gun on the ground next to Palma. Parks then apprehended defendant and called for a van to transport him to the Aurora police station.

Defendant presented no evidence. The trial court found him guilty of armed robbery and sentenced him to an eight-year term of imprisonment. Defendant now appeals.

Initially, defendant contends that section 5 — 4(6)(a) is unconstitutionally vague in violation of the due process clause of the fourteenth amendment with respect to persons charged with committing armed robbery while armed with a firearm. A statute is unconstitutionally vague and violative of due process if its meaning cannot be readily ascertained by an individual of ordinary intelligence. (People v. Gurell (1983), 98 Ill. 2d 194, 207.) Among the dangers resulting from vague statutes are the possibility of trapping innocent persons who do not have fair warning that their conduct is prohibited and the potential for arbitrary and discriminatory enforcement. Grayned v. City of Rockford (1972), 408 U.S. 104, 108-09, 33 L. Ed. 2d 222, 227-28, 92 S. Ct. 2294, 2298-99.

Defendant points out that a person is guilty of armed robbery if that individual commits a robbery “while he or she carries on or about his or her person, or is otherwise armed with a dangerous weapon.” (Ill. Rev. Stat. 1989, ch. 38, par. 18—2(a).) Therefore, a person can be guilty of armed robbery even if the weapon is not displayed during the commission of the offense. (People v. Downey (1987), 162 Ill. App. 3d 322, 332.) Defendant notes that the language of section 5 — 4(6)(a) of the Act differs from that of the armed robbery statute in that the former provision applies if the charged armed robbery “was committed with a firearm.” (Ill. Rev. Stat. 1989, ch. 37, par. 805—4(6)(a).) Defendant argues that this creates uncertainty as to whether the provision applies to a defendant who merely possesses a firearm without displaying it during the commission of the offense. Defendant argues that the legislature may have only intended to require trial as an adult for more serious offenders who actually display a weapon and use it to threaten the victim. Because the language of the provision is unclear with regard to the above matter, defendant contends it is unconstitutionally vague and subject to arbitrary enforcement.

We disagree with defendant and conclude that section 5— 4(6)(a) of the Act unambiguously requires that all individuals 15 years of age or older who are charged -with armed robberies in which they were armed with a firearm must be tried as adults regardless of whether the weapon was displayed during the commission of the offense. A person who violates the robbery statute while armed with a dangerous weapon has committed an armed robbery regardless of whether the weapon is displayed. (People v. Downey (1987), 162 Ill. App. 3d 322, 333.) Thus, a person who is armed with a firearm but does not display it during the course of a robbery has committed armed robbery, and the weapon the crime has been committed with is a firearm. The offense is therefore an armed robbery committed with a firearm regardless of whether the weapon was displayed during the commission of the offense, and the accused perpetrator must be tried as an adult under section 5 — 4(6)(a) if he or she was 15 years of age or older at the time of the offense. The statute is not ambiguous with regard to this issue, and it is not unconstitutionally vague.

We also reject defendant’s contention that section 5 — 4(6)(a) was only meant to apply to purportedly more serious offenders who actually display firearms during the course of armed robberies. It is a fundamental rule of statutory construction that the intention of the legislature should be ascertained and given effect. (People v. Robinson (1982), 89 Ill. 2d 469, 475.) Since the statutory language itself best reflects the intent of the drafters, if that intent can be derived from the language of the provision it will be given effect without resort to other aids for construction. (Robinson, 89 Ill. 2d at 475-76.) Here, we have determined that section 5 — 4(6)(a) unambiguously requires that if an individual accused of armed robbery was 15 years of age or older at the time of the alleged offense and was armed with a firearm, the individual must be tried as an adult regardless of whether the weapon was displayed while the offense was committed. Just as the legislature recognized with regard to the armed robbery statute that the mere presence of a weapon poses a danger of serious injury or death if the victim offers resistance (People v. Downey (1987), 162 Ill. App. 3d 322, 333), we believe the legislature recognized the same danger in enacting section 5 — 4(6Xa) of the Act. Defendant was correctly tried as an adult pursuant to that provision.

Defendant next contends that testimony concerning his alleged statements to Robert Warner and to Aurora police officer Karen Krass to the effect that defendant was on probation at the time of the armed robbery should not have been admitted into evidence because they constituted evidence of prior offenses. Defendant’s alleged statement to Krass was suppressed by the trial court; therefore, we shall only consider the alleged statement to Warner.

Even if error occurs at trial, a defendant’s conviction may be affirmed on appeal if a review of the record demonstrates that the error is harmless beyond a reasonable doubt. (People v. Arman (1989), 131 Ill. 2d 115, 127.) Error will be considered harmless beyond a reasonable doubt if the properly admitted evidence is so overwhelming that no fair-minded trier of fact could have reasonably voted to acquit the defendant. (People v. Carlson (1982), 92 Ill. 2d 440, 449.) In the case at bar, any error in admitting the above testimony was clearly harmless in light of the overwhelming evidence of defendant’s guilt. Tony Palma identified defendant as the person who tackled him and ran away with the bank deposit bag. Robert Warner identified defendant as the individual he tackled and subdued after Palma cried for help. The police then came on the scene and arrested defendant. Palma recovered the bank bag at the scene. It is clear that defendant was armed with a gun when he committed the offense as the evidence shows that he pointed the gun at Palma during the chase and fired a shot from it while struggling with Warner.

The above evidence was undisputed and inevitably leads to the conclusion that defendant was guilty of armed robbery as it even negates the possibility of mistaken identity. Accordingly, any error in admitting the testimony in question was harmless.

Defendant alternatively argues that he received ineffective assistance of counsel because his attorney failed to object to the testimony that defendaht stated he was on probation. In order to establish ineffective assistance of counsel, a defendant must demonstrate that his attorney’s performance “fell below an objective standard of reasonableness” (Strickland v. Washington (1984), 466 U.S. 668, 688, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064) and a reasonable probability exists that, were it not for counsel’s errors, the result of the proceeding would have been different (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068). In light of our prior harmless error analysis, there is no possibility counsel’s failure to object to the above testimony affected the result at trial. Defendant’s ineffective assistance of counsel claim must therefore fail.

For the above reasons, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

REINHARD, P.J., and UNVERZAGT, J., concur.


author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LOUIS BELPEDIO, Defendant-Appellant.
    Second District
    No. 2—90—0140
    Opinion filed April 10, 1991.

      Louis B. Garippo and Susan G. Fiebus, both of Louis B. Garippo, Ltd., of Chicago, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, and Anthony Peraica, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, Louis Belpedio, was charged by indictment with two counts of aggravated battery (Ill. Rev. Stat. 1989, ch. 38, pars. 12—4(a), (b)(4)). The charges stemmed from an incident in which defendant punched Luke Massar in the face at the end of a touch-football game at Jewett Park in Deerfield, Illinois, on September 5, 1989. Following a bench trial on December 13, 1989, defendant was found guilty of aggravated battery as charged in the indictment. On January 31, 1990, following the denial of defendant’s post-trial motion, the trial court sentenced defendant to terms of six months’ incarceration in the county jail and 30 months’ probation. The court also ordered defendant to perform 200 hours of community service, to undergo psychiatric counseling as directed by court services, and to make restitution to Massar in the amount of $924.37. Defendant appeals, contending that he was not proved guilty of aggravated battery beyond a reasonable doubt. We affirm.

On September 5, 1989, defendant and Massar were participants in an organized touch-football league game. The game was played according to the basic rules of flag football, although it was nevertheless a touch-football game. There was to be no blocking below the waist, no blocking on kickoffs, and 20-yard markers were used for first downs. It was refereed by two officials. Touching was allowed anywhere on the body with one hand, and such contact would end a play.

According to Edward C. Gozdecki, who officiated as a linesman at the game on September 5, the game was marred by unnecessary roughness, and one player had been ejected. About 10 minutes before the end of the game, Gozdecki and the other official, James Pinas, the backfield referee, warned both team captains that any more provocative conversation or physical conduct would result in a double forfeit of the game, that is, a loss for both teams.

Luke Massar, a 26-year-old accountant, testified at trial. Massar was 6 feet tall and weighed 210 pounds. Massar’s team was losing, 21 to 6. Massar was a player for the offensive team and his primary task was blocking. When the game was nearly over, Massar ran toward the right boundary line to receive a pass. As he was running forward, he was looking backward, over his right shoulder, toward the quarterback; he was unable to see downfield in front of him. Upon receiving the ball, Massar turned in order to get across the first down marker. As he turned, Massar came into contact with defendant, whom Massar was surprised to find there.

Massar further testified that, after the initial contact, defendant grabbed Massar’s shirt with both hands and was pushing against Massar’s throat, using foul language. As defendant pushed Massar back, Massar pushed defendant by hitting defendant’s shoulders solidly with both hands so that the players became separated. Then they began to walk towards each other. There was a referee a few yards away. Massar raised both his hands in an upward direction and looked at the referee inquisitively, as if to say, “What’s going on?” Massar then only recalled that he lost consciousness. He denied ever having hit defendant with his elbow.

Other testimony reveals that, at this point, Massar had been hit by defendant. Massar’s injuries required medical treatment at Highland Park Hospital, where he received stitches to the left side of his lip, his nose and his eye. Massar suffered a broken nose which required corrective surgery and which remained permanently altered.

Massar’s brother-in-law and teammate, 32-year-old Scott Beinlich, testified that he was also playing on Massar’s team on the date in question. Beinlich observed from the sideline that, when Massar caught the ball, defendant grabbed him in the upper chest, up by the neck. Massar broke free by pushing defendant away. Massar then stood in place and defendant came toward him. Massar put his hands up in the air and looked toward the referee. Defendant then struck Massar twice in the face: once in the jaw or mouth and once in the nose. Massar was knocked to the ground; he was “knocked out” and was temporarily disoriented as he got back up. His lip and his nose were split open. Prior to this incident, Beinlich had not observed any other contact between Massar and defendant. He did not see defendant swing and miss Massar.

Edward C. Gozdecki, a paid referee who was also employed as a schoolteacher, provided referee services to the Deerfield Park District. He officiated as a linesman, and his fellow referee, James Pinas, acted as the backfield judge. Gozdecki characterized the game as an “emotional contest” where there was a lot of bantering and “cheap shots.” There was some pushing and shoving which was fairly normal in this kind of game. About 10 minutes before this incident, he and Pinas had warned the two teams of a possible double forfeit for impermissible conversation or roughness. Gozdecki was about 25 yards away to the left of Massar, while Pinas was about two yards to Massar’s right at the time of the play.

When the quarterback released the ball, Gozdecki looked back toward him. On hearing a whistle blown by Pinas signalling the end of the play, Gozdecki then drew his attention to where the ball had been thrown; the ball was on the ground. He saw both Massar and defendant “jabbering.” Gozdecki saw Massar throw an elbow but could not tell if contact had been made. He then threw down a flag, which indicated he was going to penalize both teams. Gozdecki ran toward the players. He observed Massar pushing defendant away from him with open palms. Gozdecki described the pushing as a “get out of my face type of thing.” After a “pregnant pause,” he observed defendant throw three punches, “left, right, left.” Gozdecki thought the first punch missed Massar. The other two punches hit Massar’s face, and he fell to the ground. Then the referees called the game. Massar, in a dazed condition, was led to the sideline.

James Pinas testified that, at the time of the incident, he was about six feet from Massar. Defendant was playing for the defense. He observed both Massar and defendant jump up for the ball. As they came down, Massar’s elbow hit defendant’s head. The elbow contact was a continuation of the attempt to catch the ball. After they both came down to the ground, both players attempted to get the ball. Defendant asked Massar what he thought he was doing. After some words were exchanged, the players began some “minor” pushing and shoving at each other with their hands. Both referees threw their flags. Pinas had just previously blown the whistle to signal the end of the play.

Pinas attempted to break up the altercation by going between the players and spreading them apart. Defendant threw a punch which did not make contact. Pinas then backed away. Then defendant punched Massar twice in the face, causing Massar to fall to the ground.

On cross-examination, Pinas stated that, although Massar’s elbow hit defendant, it was not “thrown.” Massar did not throw a punch at defendant during the exchange of words. Pinas said that Massar walked toward defendant, who was standing his ground. As Massar walked toward defendant, defendant punched Massar.

The 26-year-old defendant testified in his own behalf. He was 5 feet 10 inches tall and weighed 225 pounds. The incident occurred with just about a minute of play left, and defendant’s team was winning. After the quarterback released the ball, defendant went toward Massar to tag him. As Massar caught the ball, defendant tagged him with his left hand on Massar’s chest and his right hand on Massar’s back. According to defendant, as Massar turned around, Massar hit defendant in the face with his elbow. As soon as defendant had touched Massar, the whistle was blown, indicating the play was dead. Defendant grabbed Massar by the shirt, saying, “Was that necessary?” Then Massar turned around and threw his right elbow against the side of defendant’s head. Thereafter, defendant became “scared” and believed Massar was going to hit him. Massar pushed defendant and threw a left punch. Defendant was standing his ground. Massar’s punch missed defendant. Defendant then punched Massar, but defendant believed the first punch might have missed Massar. Defendant said he punched Massar only once more. Defendant denied that any official came up to the two players to intervene.

Defendant also presented the testimony of two of his teammates: Anthony Belmonte, a lifelong friend of defendant, and William T. Hogan III. Their testimony agreed almost exactly with defendant’s as to the essential points of the physical contact and the absence of an intervening referee.

After hearing closing arguments and after noting that the two referees were the most credible witnesses, the trial court found defendant guilty of two counts of aggravated battery.

On appeal, defendant challenges the sufficiency of the evidence and argues that he raised a claim of self-defense; that the State failed to establish beyond a reasonable doubt that Massar was not the aggressor and that he had not, in good faith, withdrawn from physical contact and communicated such withdrawal to defendant. Defendant acknowledges that there was conflicting evidence. The State argues that defendant failed to establish his affirmative defense and that the State proved beyond a reasonable doubt that it was defendant who was the aggressor.

This case presents a unique set of facts; we have found no Illinois case discussing a claim of self-defense in the context of an aggravated battery occurring during a football game, or, more precisely here, at the end of a football game. However, our traditional rules of law concerning aggravated battery and self-defense remain applicable.

A person is justified in using force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force; furthermore, a person is justified in using force intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death

or great bodily harm to himself or another. See Ill. Rev. Stat. 1989, ch. 38, par. 7—1.

To establish a defense of self-defense, the defendant must show that: (1) unlawful force was threatened against him; (2) he was not the aggressor; (3) he believed the danger of harm was imminent; (4) force was necessary to avert that danger; and (5) the amount of force was necessary. (People v. Alcazar (1988), 173 Ill. App. 3d 344, 349.) Once these elements are established, the burden of proof shifts to the State (Alcazar, 173 Ill. App. 3d at 349) to prove the defendant’s guilt beyond a reasonable doubt as to that issue, together with all the other elements of the offense (People v. Woods (1980), 81 Ill. 2d 537, 542). The validity of a claim of self-defense depends on the reasonableness of defendant’s belief in using force under the circumstances. (See People v. McGrath (1989), 193 Ill. App. 3d 12, 26-27; Alcazar, 173 Ill. App. 3d at 349.) Whether there was a justifiable use of force is an issue to be determined by the trier of fact, who must consider whether the State has negated beyond a reasonable doubt any one of the elements justifying the use of force. If the State has negated any one of the elements justifying the use of force, then the State has carried its burden of proof as to that issue. People v. Tucker (1988) , 176 Ill. App. 3d 209, 216.

The right of self-defense does not justify a person in committing an act of retaliation and revenge (Woods, 81 Ill. 2d at 543), nor does it permit one to pursue and inflict injury upon even an initial aggressor after the aggressor abandons the quarrel (People v. Huddleston (1988), 176 Ill. App, 3d 18, 34; People v. Easter (1981), 102 Ill. App. 3d 974, 980). If one responds to a confrontation with such excessive force that one is no longer acting in self-defense but in retaliation, the excessive use of force renders one the protagonist; a nonaggressor has a duty not to become the aggressor. People v. Nunn (1989) , 184 Ill. App. 3d 253, 269.

A criminal conviction will not be set aside on review unless the evidence is so improbable or unsatisfactory that there remains a reasonable doubt of the defendant’s guilt. (People v. Jimerson (1989), 127 Ill. 2d 12, 43.) It is not the function of the reviewing court to retry the defendant; rather, the determination of the credibEity of the witnesses, the weight to be given their testimony, and the reasonable inferences to be drawn from the evidence are the responsibEities of the trier of fact. (Jimerson, 127 Ill. 2d at 43.) The trier of fact need not accept as true testimony concerning self-defense presented by the accused. (People v. Holtz (1974), 19 Ill. App. 3d 781, 790.) The relevant inquiry on review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jimerson, 127 Ill. 2d at 44.

Applying the above principles, we find that the evidence does not support defendant’s claim of self-defense, but, rather, it supports the State’s case. Pinas, a credible and neutral observer who was closest to the play, testified that, after Massar attempted to catch the ball and defendant “tagged” him, Massar’s elbow hit defendant as a continuation of the action of catching the ball as Massar was coming back down. Pinas saw neither an elbow “thrown” nor a punch by Massar. There was then an exchange of words and some pushing and shoving between the players. The testimony shows that defendant grabbed Massar by the shirt. It is clear that Massar did push defendant away from him. However, at this point, Pinas attempted to break up the confrontation by moving between the players. Then, defendant threw a punch that missed. Pinas withdrew, and defendant punched Massar in the face twice, injuring him. While it was Gozdecki’s testimony that he saw Massar throw an elbow apparently after the players were “jabbering,” he could not state unequivocally that the elbow had made contact. He did testify that, after a pause in the confrontation, defendant threw three punches at Massar. This testimony is consistent with that of Pinas. Neither referee saw Massar throw a punch at defendant.

Massar’s and Beinlich’s testimony can be viewed as consistent in showing that Massar’s initial contact with defendant, as Massar came down from catching the ball, was unintentional or was at least within the bounds of ordinary play. Defendant’s testimony admits that, after Massar purportedly threw out his elbow at him, defendant grabbed Massar by the shirt. While defendant’s testimony indicates that Massar elbowed him twice and also punched defendant with his left hand and it was only then that defendant punched Massar, this version is contrary to the testimony of the four State witnesses, two of whom were disinterested observers. There is no evidence from those witnesses that Massar ever punched defendant. Rather, the weight of the evidence is that Massar, who pushed defendant away with open palms after the play and initial contact, was acting in a defensive, rather than an aggressive posture even if he was standing his ground. It is clear from the testimony of both referees that it was after a pause in the confrontation and an attempted intervention by one of the referees that defendant punched Massar. Two of the three punches landed in Massar’s face. Under the circumstances presented, the trial court could reasonably conclude that it was defendant who was the aggressor rather than Massar. The totality of the evidence does not support this element of defendant’s claim of self-defense, and the State’s evidence was sufficient to show beyond a reasonable doubt that it was defendant who was the aggressor.

Even assuming arguendo that the physical contact was initiated by Massar’s elbowing or pushing of defendant, we are forced to conclude that defendant responded by using an amount of force that was unnecessary and excessive under the circumstances. Defendant presented no persuasive evidence that he was seriously injured or that he was about to be seriously injured. Defendant’s use of excessive force in punching Massar in the face at least twice, splitting his lip, breaking his nose, cutting his eye, and rendering him unconscious does not describe the actions of a person defending himself from an elbowing or a shove. Rather, these are the actions of a person seeking revenge or retaliation. The brutality of the defendant’s attack upon the victim belies any argument that defendant was acting to defend himself. In using such brutal and excessive force, defendant clearly became the aggressor even if it could be said that Massar initiated the contact. See, e.g., People v. Woods, 81 Ill. 2d at 543-44; People v. Nunn, 184 Ill. App. 3d at 270.

The trial court was not required to accept as true the testimony presented by the accused concerning his claim of self-defense. Rather, in weighing such evidence, it was to consider the probability or improbability of the testimony under the circumstances and the testimony of the witnesses other than the accused. (See People v. Holtz (1974), 19 Ill. App. 3d 781, 790.) Obviously, the trial court did not believe the version presented by the defense. The trial court found defendant’s conduct clearly outside the bounds of acceptable or justifiable conduct even in the context of a touch-football game. We concur.

The totality of the evidence provided no basis upon which the court could find that defendant reasonably believed the use of such excessive force was necessary to prevent great bodily harm to himself. (See Woods, 81 Ill. 2d at 544.) In viewing the evidence in the light most favorable to the prosecution, we conclude that the trial court, as the trier of fact, properly found that all of the essential elements of the crime were proved beyond a reasonable doubt.

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

Affirmed.

REINHARD, P.J., and DUNN, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. KRESS M. STEIN, Defendant-Appellee.
    Second District
    No. 2—90—0172
    Opinion filed April 12, 1991.

      James E. Ryan, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and William L. Browers and Marshall M. Stevens, both of State's Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    George J. Bakalis and Stephen J. Culliton, both of Civinelli, Bakalis & Culliton, of Bloomingdale, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

The State appeals from an order of the circuit court of Du Page County rescinding the statutory summary suspension of the driver’s license of defendant, Kress M. Stein, and an order granting defendant’s motion in limine to exclude the results of defendant’s breathalyzer test from evidence at trial.

On December 7, 1989, defendant was arrested and charged with driving while under the influence of alcohol (DUI) (Ill. Rev. Stat. 1989, ch. 95½, pars. 11—501(a)(l), (a)(2)) and speeding (Ill. Rev. Stat. 1989, ch. 95½, par. 11—601(b)). He was transported to the Elmhurst police station, where he was given a breathalyzer test; the test disclosed that he had a breath-alcohol concentration of .10. He was notified of the statutory summary suspension of his driver’s license, and he filed a petition for a hearing seeking rescission of the suspension.

At the hearing, defendant sought to establish that the alcohol test was not performed according to the standards promulgated by the Department of Public Health (the Department). Specifically, he sought to prove that the breathalyzer machine was not properly certified. To this end, certain pages of the breathalyzer logbook were entered into evidence. The November 17, 1989, entry in the logbook states that on that date the machine was tested with a .10 simulator solution and that the machine reading was .09; the inspector certified the machine as accurate. The logbook entry for December 13, 1989, also contains an inspector’s certification that the machine was accurate; however, while the entry states that the machine was tested with a .10 simulator solution, it does not mention the actual results of the test run that day. The trial court found that defendant’s test was not in compliance with Department regulations because the machine inspector did not enter the certification test results in the logbook on December 13; defendant’s motion to rescind the suspension was granted.

Prior to the trial, defendant filed a motion in limine seeking to exclude the breathalyzer results from admission into evidence at the trial. The trial court granted this motion as well. The State filed a certificate of impairment and now appeals from the order granting the petition to rescind and the order granting the motion in limine. We reverse and remand.

The State initially contends that the trial court erred in rescinding defendant’s summary suspension based on the inspector’s failure to record the results of the subsequent certification test. We agree.

Section 11—501.2 of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 95½, par. 11—501.2) provides that the results of a breath- or blood-alcohol test will not be admissible at trial, or any other proceeding arising out of an arrest for DUI, unless the test was performed according to standards promulgated by the Department of Public Health. As relevant here, the Department regulations state:

“[A breath analysis] instrument must be accurate within ± 0.01% W/V to be certified. To determine accuracy of instruments, an inspector shall perform two (2) analyses on a certified controlled reference sample at least once a month at intervals not to exceed 45 days. The inspector shall record test results of his certification in the instrument log book. The original certification tests results will be retained by the inspector.” 77 Ill. Adm. Code §510.100(a) (1985).

The breathalyzer in question had been inspected and certified as accurate on November 17; there was no evidence or argument that that certification was not in accord with the regulations. Defendant’s test was performed on December 7, well within the 45-day certification period. There was no evidence or argument that improper procedures were employed by the testing officer at the time of defendant’s test. The burden of proof at the summary suspension hearing was on defendant (People v. Orth (1988), 124 Ill. 2d 326, 337-38), and defendant presented no evidence that his test was not performed in accordance with the Department regulations.

The evidence of noncompliance with the regulations relates exclusively to the breathalyzer inspector’s failure to “record test results of his [December 13] certification in the instrument log book.” Even assuming that failure to record the certification test results constitutes a failure to perform the certification test “according to standards,” this subsequent failure to comply will not transform an earlier test that was performed according to Department standards into one which was not.

We admit, however, that the results of a subsequent certification test might be relevant to the issue of the breathalyzer’s accuracy at the time defendant was tested. At a suspension hearing, the petitioner may establish a prima facie case for rescission, on grounds of the test’s unreliability, by presenting evidence of any circumstances which would tend to cast doubt on the test’s accuracy. (Orth, 124 Ill. 2d at 341.) Prima facie evidence is that evidence sufficient to establish a fact and which, if unrebutted, will remain sufficient. (People v. Sanders (1987), 155 Ill. App. 3d 759, 764.) The question, then, is whether the inspector’s failure to enter the results of the December 13 certification test in the logbook is sufficient to establish the unreliability of the December 7 test. We do not believe that it is.

The inspector’s failure to comply with the regulations and enter the certification test results in the logbook was merely procedural or administrative and did not have a substantial effect on the test itself. Additionally, the December 13 entry in the logbook bears the inspector’s certification. It states, “I hereby certify that the Breath Testing Instrument bearing serial number 20399 is accurate and precise to within limits as prescribed by the Rules and Regulations promulgated by the Illinois Department of Health.” The certification is signed and dated. Even if the failure to enter the results was sufficient to support an inference that the machine was unreliable on December 13, evidence of the inspector’s certification would rebut that inference. If the evidence of the December 13 noncompliance is insufficient to establish the unreliability of the December 13 test, it is certainly insufficient to establish the unreliability of defendant’s December 7 test.

We conclude that the trial court’s decision to rescind defendant’s summary suspension was against the manifest weight of the evidence and must be reversed.

The State also challenges the trial court’s ruling on defendant’s motion in limine. Defendant’s motion sought to exclude the breathalyzer results from trial on the same ground asserted at the rescission hearing, that is, that the test was not performed in accordance with the regulations, and the trial court granted the motion on that ground. As set forth above, however, there was no evidence of noncompliance presented at the rescission hearing, and defendant has made no new allegations of noncompliance in the motion. We conclude, therefore, that the trial court erred in granting defendant’s motion in limine on that ground.

The orders of the circuit court rescinding defendant’s statutory summary suspension and granting defendant’s motion in limine are reversed. The cause is remanded for the reinstatement of the suspension and for trial.

Reversed and remanded.

REINHARD, P.J., and UNVERZAGT, J., concur.


author: JUSTICE BOWMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GREGORY DICKERSON, Defendant-Appellant.
    Second District
    No. 2—89—1096
    Opinion filed April 19, 1991.
    Rehearing denied May 15, 1991.

      G. Joseph Weller and David W. Devinger, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

Defendant, Gregory Dickerson, pleaded guilty to the offense of intimidation (Ill. Rev. Stat. 1987, ch. 38, par. 12—6(a)(1)) and was sentenced to 30 months’ probation, 12 months’ periodic imprisonment and 100 hours’ community service. The trial court denied defendant’s motion to withdraw his guilty plea, and defendant appeals. Defendant contends that (1) the trial court’s order denying his motion to withdraw his guilty plea should be reversed and the cause remanded for a rehearing because defense counsel failed to comply with Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)), and (2) the trial court erred in imposing a consecutive sentence.

Pursuant to negotiations with the State that he would not be sentenced to the penitentiary, defendant pleaded guilty. At the guilty plea hearing, the trial court admonished defendant of various constitutional rights; the assistant State’s Attorney recited a factual basis for the plea, and defense counsel stipulated to the factual basis. The stipulated facts establish that sometime prior to February 23, 1989, Morris Gray obtained cocaine from defendant but failed to pay for it. Thereafter, defendant contacted Morris Gray’s father, Elmer Gray, and told him that if defendant did not get his money, Elmer or a member of his family could get hurt. The court found that there was a sufficient factual basis for the plea and that there had been a knowing and voluntary waiver of the right to trial. The court conditionally accepted the guilty plea and ordered a presentence report.

Following a sentencing hearing, the trial court sentenced defendant to 30 months’ probation, 12 months’ periodic imprisonment and 100 hours’ community service. Subsequently, defendant filed a motion to withdraw his guilty plea, and the trial court denied the motion.

On appeal, defendant first contends that the cause must be remanded for a rehearing on his motion to withdraw his guilty plea because defense counsel failed to file a Rule 604(d) certificate. The rule, which sets forth the requirements for a motion to withdraw a guilty plea, states in pertinent part:

“The defendant’s attorney shall file with the trial court a certificate stating that the attorney has consulted with the defendant *** to ascertain his contentions of error in the entry of the plea of guilty, has examined the trial court file and report of the proceedings of the plea of guilty, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings.” (134 Ill. 2d R. 604(d).)

In this case, no such certificate was filed.

Defendant contends that the trial court’s failure to ascertain whether a Rule 604(d) certificate had been filed denied him a full and fair hearing on the motion. The State responds that substantial compliance with the rule is sufficient and that the record establishes that defense counsel performed the functions contemplated by the rule, that is, consulted with defendant, examined the court file and the report of the proceedings and amended the motion as necessary. The State’s position cannot be sustained.

Suffice it to say, first of all, that we have carefully reviewed the record and do not find it nearly so clear as the State would have us believe that defense counsel took the actions called for in the rule. While it is debatable that he may have consulted with defendant, it is highly unlikely he examined the report of proceedings of the guilty plea since a transcript of those proceedings was not filed until two months after the hearing on defendant’s motion to withdraw his plea. Second, and far more importantly, the rules adopted by the supreme court concerning criminal defendants and guilty pleas are rules of procedure and not suggestions; it is incumbent upon counsel and the courts alike to follow them. (People v. Wilk (1988), 124 Ill. 2d 93, 103.) Although Wilk involved Rule 604(d)’s requirement of the timely filing of motions to withdraw guilty pleas, the supreme court directed its comments to the entire rule. (See Wilk, 124 Ill. 2d at 103-04.) It now appears that, pursuant to Wilk, strict compliance with the dictates of Rule 604(d) is required.

In People v. Hayes (1990), 195 Ill. App. 3d 957, the fifth district, after discussing the various earlier interpretations of the rule, focused heavily on Wilk and concluded that a relaxed standard of compliance was not acceptable. The court indicated it no longer approached cases involving failure to comply with Rule 604(d) in terms of whether the error was harmless or prejudicial, but instead applied a rule of strict compliance. We concur with the Hayes court’s interpretation of the principles set forth in Wilk.

Because of the strict waiver requirements of Rule 604(d) (any issue not raised by the defendant in his motion to withdraw his guilty plea is deemed waived), fundamental fairness requires that the defendant have the assistance of counsel in preparing and presenting his motion. (See People v. Ledbetter (1988), 174 Ill. App. 3d 234, 237-38.) Rule 604(d) sets forth defense counsel’s duties in this regard and provides a simple, straightforward and mandatory procedure designed to insure that those duties are performed and, thus, that defendant’s due process rights are protected. (See Wilk, 124 Ill. 2d at 103-04.) Adherence to a rule of strict compliance with the certificate requirement will not place an onerous burden on defense counsel, and, significantly, it will eliminate unnecessary appeals. Accordingly, we hold that where defendant has not waived counsel, the filing of the defense attorney’s Rule 604(d) certificate is a condition precedent to a hearing on defendant’s motion to withdraw his plea of guilty and to vacate the judgment.

In view of the relatively high frequency with which trial counsel and trial courts have in the past ignored the principles enunciated in Wilk by failing to comply with the requirements of Rule 604(d), we no longer adhere to the harmless error analysis of Rule 604(d) violations as set forth in People v. Steinmetz (1982), 110 Ill. App. 3d 439, and People v. Hopson (1981), 101 Ill. App. 3d 564, and similar second district opinions.

In light of the conclusion we have reached above, the trial court’s order denying defendant’s motion to withdraw his guilty plea must be reversed and the cause remanded to the circuit court for a rehearing on the motion. We note that the position we take today is consistent with that adopted by other appellate districts in cases decided subsequent to Wilk and Hayes. Strict compliance with Rule 604(d) was required in People v. Hancock (1991), 208 Ill. App. 3d 1092 (fourth district), People v. Vickery (1991), 207 Ill. App. 3d 574 (third district), and People v. Johnson (1990), 207 Ill. App. 3d 122 (fourth district).

Although defendant did not specifically raise a sentencing issue in his post-trial motion at the trial level, such issue was raised on appeal under the substantial error doctrine (134 Ill. 2d R. 615(a)) premised on the imposition of an unauthorized sentence (the effect of a sentence of probation to be served consecutively to a sentence of imprisonment) affecting substantial rights. In light of the supreme court’s recent decision in People v. Wallace (1991), 143 Ill. 2d 59, which discussed the rule relating to the appeal of sentencing orders in criminal cases, we elect not to address the sentencing issue at this time because the principles set forth in Wallace may possibly be applied on remand.

The judgment of the circuit court of Lake County denying defendant’s motion to withdraw the plea of guilty and vacate the judgment is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

REINHARD, RJ., and DUNN, J., concur.