author: JUSTICE McNAMARA

text:
    ARTHUR STEPHENS, Plaintiff-Appellant, v. METROPOLITAN WATER RECLAMATION DISTRICT OF GREATER CHICAGO et al., Defendants-Appellees.
    First District (6th Division)
    No. 1-90-2883
    Opinion filed August 16, 1991.
    Stanley H. Jakala, of Berwyn, for appellant.
    James B. Murray, of Metropolitan Water Reclamation District of Greater Chicago, of Chicago (Marya T. Nega and Ronald M. Hill, of counsel), for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Arthur Stephens, filed a complaint for a writ of certio-rari to review a decision which denied his promotion to police lieutenant. Defendants are the Metropolitan Water Reclamation District (district), F.D. O’Brien, director of personnel; Frank Dolton, general superintendent; John C. Farnan, director of administrative services; Wes Scanlon, safety and security manager; Clifton L. Thomas, police chief; and Lieutenant William G. Fitzgerald.

On December 4, 1989, the district gave a civil service promotional examination for the position of police lieutenant. On December 19, 1989, the district posted a final eligible list for the position which ranked three certified persons and their respective test scores. Plaintiff received the highest score, 91.88; William G. Fitzgerald scored 89.95. One week later, the district promoted Fitzgerald to the lieutenant position.

On February 23, 1990, plaintiff filed a complaint for a writ of cer-tiorari to review the district’s decision, requesting the court to vacate Fitzgerald’s appointment and appoint plaintiff to the rank of lieutenant. Plaintiff contended that the district should have promoted him instead of Fitzgerald because he ranked first on the police lieutenant’s promotional list. Additionally, plaintiff alleged that he ranked higher than Fitzgerald in the patrol officers class, on the initial hiring eligible list, and as a sergeant. Plaintiff’s complaint did not contest the examination or its results, but only the district’s decision as to the appointment. After hearing argument, the circuit court concluded that plaintiff failed to state a cause of action for a writ of certiorari and accordingly granted defendants’ motion to dismiss.

On appeal, plaintiff admits that the district’s appointment did not violate the relevant statute. Plaintiff claims, however, that the appointment was contrary to law because there was a custom and practice to promote by rank order from the eligible list which superseded the statute. Plaintiff argues that the district established a custom and practice in 1985 when it promoted two officers to police lieutenant in rank order and that such custom and practice required plaintiff’s promotion. Plaintiff argues that the district’s failure to appoint plaintiff in accordance with this alleged custom and practice was contrary to law and thereby constituted a proper cause of action .under State law.

The relevant civil service statute provides in pertinent part:

“Whenever a position classified under this Act is to be filled, *** the Director shall certify *** from the register of eligibles for the position the names and addresses (a) of the five candidates standing highest upon the register of eligibles for the position ***. The appointing officer shall notify the Director of each position to be filled separately and shall fill the position by appointment of one of the persons certified to him by the Director.” Ill. Rev. Stat. 1989, ch. 42, par. 323.11.

Plaintiff relies on Hermes v. Hein (7th Cir. 1984), 742 F.2d 350, in support of his argument that custom and practice can supersede this statute. In Hermes, plaintiffs, village police officers, alleged that defendants’ “unwavering custom” was to promote in exact rank order from the eligibility roster, despite a statute which gave the board of commissioners unrestricted discretion to fill vacancies from among the top three eligible candidates for the position. The district court denied defendants’ motion to dismiss, finding that plaintiffs were entitled to prove the existence of a promotional policy. (Hermes v. Hein (N.D. Ill. 1980), 511 F. Supp. 123.) On appeal, however, the court of appeals reversed the trial court on the ground that plaintiff failed to establish custom and practice, stating:

“We need not decide whether Illinois law would allow the defendants to adopt a policy of promoting only the highest ranked candidate because, even if it would, there is no evidence from which we can reasonably infer that this alleged policy was ever promulgated throughout the police department or stated to any of the plaintiffs.” Hermes, 742 F.2d at 355.

Plaintiff maintains that under Hermes, a civil service employee has a vested right to be promoted by rank and order in accordance with custom and practice. However, the above-quoted language indicates that the court specifically refused to decide whether Illinois law allowed defendant to promote based upon custom and practice instead of following the statute. We therefore conclude that Hermes does not support plaintiff’s position.

Even assuming that a promotional practice could supersede the hiring statute, we find that plaintiff here failed to establish custom and practice. Plaintiff’s amended complaint alleges:

“That it is the custom and practice of the defendant, *** to promote police lieutenants by rank order, and that custom and practice was observed in the promotions' of police sergeants to the rank of police lieutenant from the 1985 police lieutenant’s promotional list, wherein Clifton L. Thomas, number one (No. 1), and Fred Gaffney, were promoted to the rank of police lieutenant by rank order.”

The trial court here explicitly found that alleging “a single instance of appointing persons from the top of the list would not constitute, as a matter of law, custom or practice,” finding the cases cited by plaintiff “inapposite and distinguishable.” We agree.

Penbaur v. Cincinnati (1986), 475 U.S. 469, 89 L. Ed. 2d 452, 106 S. Ct. 1292, Jungels v. Pierce (7th Cir. 1987), 825 F.2d 1127, and Webb v. Chester (7th Cir. 1987), 813 F.2d 824, cited by plaintiff, each involves a cause of action for violation of civil rights under title 42, section 1983 of the U.S. Code. (42 U.S.C §1983 (1988).) In Penbaur, petitioner sought damages under section 1983, alleging that county and city police violated his rights under the fourth and fourteenth amendments. The court held that a municipality may be liable under section 1983 based upon a single decision because such decision “unquestionably constitutes an act of official government policy.” (Penbaur, 475 U.S. at 480, 89 L. Ed. 2d at 463, 106 S. Ct. at 1298.) The court noted that the “official policy” requirement under section 1983 was “intended to distinguish acts of the municipality from acts of employees of the municipality.” (Emphasis in original.) (Penbaur, 475 U.S. at 479-80, 89 L. Ed. 2d at 463, 106 S. Ct. at 1298.) The Webb court, citing Penbaur, similarly held that the city’s single decision to fire an officer “is sufficient evidence of [defendants’] official municipal policy to convince us that defendants acted under color of state law.” Webb, 813 F.2d at 829.

The Penbaur and Webb courts were concerned with whether the municipal officials acted pursuant to an official municipal policy, an essential prerequisite to a section 1983 action. (Monell v. Department of Social Services (1978), 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018.) It is in this context that the courts found a single act sufficient to demonstrate official policy. Moreover, in these cases, the single act of the municipal agent, if proved, would constitute a violation of section 1983, even in the absence of a course of conduct. For these reasons, the section 1983 analysis is inapplicable to this case.

Because this case does not involve alleged section 1983 violations, the cited cases fail to support plaintiff’s argument. Plaintiff does not cite, nor do we find, an Illinois decision which has construed the statute as plaintiff suggests. In the absence of such authority, we do not believe that the district’s 1985 decision to appoint a candidate from the highest rank controlled future appointments and obligated it to appoint the highest ranking candidate to every subsequent opening. Indeed, section 4.11 unambiguously gives the district discretion to appoint from among the five highest ranking candidates. Ill. Rev. Stat. 1989, ch. 42, par. 323.11.

We are also persuaded by the amendment to the statute in 1983 which deleted the following provision:

“In making such appointments the candidate standing highest on the register of eligibles shall not be passed over more than once and the next highest candidate shall not be passed over more than twice.” Ill. Rev. Stat. 1981, ch. 42, par. 323.11.

We believe that in deleting such limitation, the legislature intended to broaden the appointing authority’s discretion, allowing him to appoint any candidate among the highest ranking. We find plaintiff’s argument, which seeks to limit the director’s discretion based upon a single promotion decision made five years earlier, contrary to the statute and the legislative intent.

We conclude that the district’s appointment was not contrary to law and that the trial court therefore properly granted defendants’ motion to dismiss the amended complaint for a writ of certiorari. In view of this conclusion, we need not consider whether a writ of certio-rari was the proper vehicle for review of the district’s appointment decision.

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

Judgment affirmed.

RAKOWSKI, P.J., and EGAN, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    W. GARY DOLL et al., Plaintiffs-Appellants, v. DAVID A. BERNARD et al., Defendants-Appellees.
    First District (6th Division)
    No. 1-90-3452
    Opinion filed August 16, 1991.

      Beeler, Schad & Diamon, P.C., Fishman & Merrick, P.C., and Joyce & Kubasiak, all of Chicago (Stephen B. Diamon, Lawrence W. Schad, David J. Philipps, William H. London, David A. Genelly, and Ed T. Joyce, of counsel), for appellants.
    Sachnoff & Weaver, Ltd., of Chicago (Jack L. Block and Joan L. Feder, of counsel), for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiffs, W. Gary Doll and Richard C. Swanson, filed this action seeking rescission of the sale of limited partnership interests against defendants David A. Bernard as general partner, Corsicana Plaza Associates and Royal Plaza Associates. Plaintiffs’ interests were sold by an unregistered broker in violation of the Illinois Securities Law of 1953 (Ill. Rev. Stat. 1985, ch. 1211/2, par. 137.8) (Act). Plaintiffs’ three-count complaint sought damages for alleged violations of the Act, breach of fiduciary duty, and violations of the Illinois Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1985, ch. 121V2, par. 261 et seq.) (Consumer Fraud Act). The court granted defendants’ motion to dismiss count I because the action was not commenced within the period of the statute of limitations, and counts II and III for failure to state a cause of action. Plaintiffs appeal the dismissal of all three counts.

The relevant facts are as follows. Limited partnership interests in Corsicana Plaza and Royal Plaza were offered to plaintiffs during 1985 and 1986 by Earl Dean Gordon, Kenneth F. Boula and two companies owned and controlled by Gordon and Boula, KFB Securities, Inc., and Financial Concepts, Ltd. (collectively referred to as Gordon-Boula). Defendants, through their sponsoring company, Concord Assets Group, Inc. (Concord), participated in and financed sales seminars coordinated and promoted by Gordon-Boula. (Gordon-Boula is not a party in this action.)

On November 11, 1985, Doll submitted to Gordon-Boula subscription papers for a limited partnership interest in the amount of $76,950 in Corsicana Plaza. On November 19, 1985, Swanson submitted his subscription papers for a limited partnership interest in the amount of $76,825 in Royal Plaza Associates. Plaintiffs contracted to buy these interests through a series of installment notes. In December 1985, plaintiffs were approved and accepted as limited partners in their respective partnerships, and made their first installment payments in January 1986. (To date, Doll has paid $56,500 and Swanson has paid $56,750 toward their interests.)

In July 1986, the Illinois Secretary of State brought an action against Gordon-Boula for illegally selling interests in another real estate limited partnership sponsored by Concord. Defendants ceased doing business with Gordon-Boula after learning that it was not licensed to act as dealers or salespersons in accordance with section 8 of the Act; however, defendants did not notify plaintiffs about Gordon-Boula’s status as an unregistered broker.

In May 1989 plaintiffs learned that Gordon-Boula was unregistered. On June 1, 1989, Doll gave notice pursuant to section 13 of the Act of its election to rescind, followed on September 5, 1989, by Swanson’s notice to rescind.

On March 6, 1990, plaintiff filed this three-count complaint against defendants. In count I, plaintiffs sought rescission of their investments based upon defendants’ failure to inform plaintiffs that Gordon-Boula was an unregistered broker. Counts II and III sought damages for breach of fiduciary duty and alleged violations of the Consumer Fraud Act, respectively. The trial court granted defendants’ motion to dismiss all three counts.

On appeal, plaintiffs argue that their securities claims were filed within the statutory time period because defendants never made an absolute transfer of rights. Plaintiffs further argue that defendants’ failure to disclose the illegal nature of the sales constituted a breach of fiduciary duty, and nondisclosure of their use of an unregistered broker violated the Consumer Fraud Act.

We turn first to plaintiffs’ contention that a sale for purposes of the Act has not occurred because defendants never made an absolute transfer of the rights to plaintiffs. Plaintiffs maintain that they never received an absolute and unqualified right in the subject securities because defendants held a security interest to secure the payment of future promissory notes and controlled the transferability of the securities.

The trial court concluded that count I was barred by the statute of limitations, as it was not commenced until four years after the date of sale. Section 13 of the Act provides in relevant part:

“D. No action shall be brought for relief under this Section or upon or because of any of the matters for which relief is granted by this Section after 3 years from the date of sale ***.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 121V2, par. 137.13(D).

Relying upon Frantzve v. Joseph (1986), 150 Ill. App. 3d 850, 502 N.E.2d 396, the trial court found that plaintiffs were entitled to all rights and benefits of the limited partnerships in January 1986, the time they were accepted as limited partners and made their first payments.

We are unpersuaded by plaintiffs’ argument that defendants never made an absolute transfer of rights. The contract provides that subscriber is

“granting the Partnership a security interest in his Unit to secure the payment of future installments of his capital contribution and his related promissory notes.” (Emphasis added.)

The security interest that plaintiffs granted to seller was for the express purpose of securing financing on the promissory notes. As such, plaintiffs’ grant of the security interest cannot be construed as precluding defendants from making an absolute transfer of rights.

Plaintiffs’ claim that an absolute transfer of rights had not occurred because the general partners’ consent was required for the sale or assignment of the limited partnership interests fares no better. A limited partner whose property interest in the partnership originates with a general partner may be regarded as the true owner of that property, notwithstanding that the general partner retains substantial powers over it, provided that the powers retained are such as are normally incident to that type of partnership and the agreement does not contain substantial restrictions. (Leeb v. Jarecki (N.D. Ill. 1957), 156 E Supp. 6.) Plaintiffs do not contend, nor do we find after review of the proviso at issue, that it contains restrictions that can be characterized as substantial or unduly burdensome.

Illinois courts have interpreted the “date of sale” for purposes of determining the date upon which the limitations period is triggered for claims under the Act. (See Frantzve v. Joseph (1986), 150 Ill. App. 3d 850; James v. Erlinder Manufacturing Co. (1979), 80 Ill. App. 3d 4, 398 N.E.2d 1225; Levine v. Unruh (1968), 99 Ill. App. 2d 94, 240 N.E.2d 521; Silverman v. Chicago Ramada Inn, Inc. (1965), 63 Ill. App. 2d 96, 211 N.E.2d 596.) In order to determine the date of sale, the court has focused upon the date on which the plaintiff acquires a legal interest in the securities and the date when the rights of the parties to the transaction are fixed. Frantzve v. Joseph, 150 Ill. App. 3d at 852, 502 N.E.2d at 398.

Both parties signed their subscription agreements in November 1985 and were accepted into the limited partnership in December 1985. The payment of the first installment of the purchase price, which provided consideration for the subscription agreement, occurred during January 1986. As members of a limited partnership, plaintiffs acquired a legal interest at that time which entitled them to share in the profits and losses of the partnership. Allen v. Amber Manor Apartments Partnership (1981), 95 Ill. App. 3d 541, 420 N.E.2d 440.

The complaint was not filed until March 6, 1990, well beyond the three-year statutory period of limitations set forth in section 13 of the Act. Thus, we conclude that the judge properly ruled that count I is barred by the statute of limitations.

Plaintiffs next argue that defendants owed a fiduciary duty to disclose any material information with potential contingent liability for claims of rescission to the limited partners. Plaintiffs contend that any other purchasers of the limited partnerships through the unregistered broker had a right to rescind those agreements. The trial court dismissed count II, finding that plaintiffs did not specifically allege a breach of fiduciary duty by the defendants, nor did they allege that as a general partner, defendants had a duty to disclose information unrelated to the management of the limited partnership investment.

Plaintiffs cite Labovitz v. Dolan (1989), 189 Ill. App. 3d 403, 545 N.E.2d 304, for the proposition that the fiduciary duty owed by a general partner to a limited partner necessarily encompasses the duty of exercising good faith, honesty, and fairness in his dealings with them and the funds of the partnership. The fiduciary relationship embraces all matters reasonably relating to the partnership. (Bakalis v. Bressler (1953), 1 Ill. 2d 72, 79, 115 N.E.2d 323, 327.) A limited partnership is in the nature of an investment; thus, when the limited partner makes a contribution, he is placing that amount at risk. Kramer v. McDonald’s System, Inc. (1979), 77 Ill. 2d 323, 396 N.E.2d 504.

Defendants were unaware of Gordon-Boula’s status as an unregistered broker at the time plaintiffs purchased their limited partnership interests. Upon learning that the State had brought an action against Gordon-Boula for illegally selling securities in another venture in 1986, defendants immediately ceased doing business with them. Thus, defendants acted properly and in the best interests of the limited partners when they discontinued using Gordon-Boula as their broker. There was no showing that defendants did not meet their duty of using good faith, honesty and fairness in their dealings with plaintiffs.

The inquiry on appeal from a section 2 — 615 (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615) motion to strike and dismiss is limited to accepting all well-pleaded facts and reasonable inferences that could be drawn therefrom, and to examine whether a cause of action was stated. (Moreno v. Joe Perillo Pontiac, Inc. (1983), 112 Ill. App. 3d 670, 445 N.E.2d 1184.) Upon review of the facts in this case as set forth in the pleadings, we agree with the trial court’s determination that plaintiffs have not demonstrated a breach of fiduciary duty on the part of defendants.

Plaintiffs’ final argument posits that defendants misrepresented that Gordon-Boula was registered to sell limited partnership interests in Corsicana Plaza and Royal Plaza. According to plaintiffs, this misrepresentation of Gordon-Boula’s registration status was a material factor in the sale of the subject securities and constitutes a violation of the Consumer Fraud Act. Plaintiffs again argue that as a result of defendants’ material misrepresentations, contingent liabilities arose because plaintiffs and other investors could demand rescission of their agreements.

While plaintiffs correctly assert that a plaintiff can recover under the Consumer Fraud Act for innocent misrepresentations, such misrepresentations must be material. (Duhl v. Nash Realty Inc. (1981), 102 Ill. App. 3d 483, 429 N.E.2d 1267.) At the outset, we note that plaintiffs do not allege that the securities were fraudulent, or that their nature or value was misrepresented.

It is undisputed that at the time the sale was made, defendants were unaware of Gordon-Boula’s status as an unregistered broker. The record is devoid of any evidence that defendants attempted to trick plaintiffs or conduct any secret dealings in order to entice them into becoming limited partners. We find that plaintiffs’ allegations concerning potential contingent liabilities arising out of a purchaser’s ability to rescind the agreement do not rise to the level of a material misrepresentation. Accordingly, plaintiffs’ claim for violation of the Consumer Fraud Act was properly dismissed by the court.

Finally, we find that plaintiffs have not sufficiently established in counts II and III the nature of the damages sustained as a result of defendants’ failure to disclose Gordon-Boula’s status as an unregistered broker, other than its nebulous assertion that this investment has declined in value and/or performed below the rate of return available to plaintiffs in other lawful investments. The purpose of compensatory damages is to compensate the plaintiff for damages sustained, and not to punish the defendant or to award a windfall to the plaintiff. (McLane v. Russell (1989), 131 Ill. 2d 509, 546 N.E.2d 499.) Since damages cannot be awarded on the basis of speculation or conjecture, plaintiffs’ claims on these two counts must fail. Schoeneweis v. Herrin (1982), 110 Ill. App. 3d 800, 443 N.E.2d 36.

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

Judgment affirmed.

RAKOWSKI, P.J., and LaPORTA, J., concur.


text:
    CULLEN ELECTRIC COMPANY, Plaintiff-Appellant, v. WILLIAM J. CULLEN, JR., et al., Indiv. and d/b/a Cullen Electrical Contracting Company, et al., Defendants-Appellees.
    First District (6th Division)
    No. 1-91-0562
    Opinion filed August 16, 1991.

      Groble & Groble, Ltd., of Chicago (Donald G. Groble, Terence E. Coughlan, and George W. Groble, of counsel), for appellant. :
    Richard J. Troy, of Chicago (William G. Hutul and Peter J. Troy, of j counsel), for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Cullen Electric Company, filed a petition for preliminary injunction on September 17, 1990, against defendants, William J. Cullen, Jr. (William), Sharon Cullen, his wife, and Cullen Electrical Contracting Company (defendant), seeking to enjoin defendants from contacting or performing work for plaintiff’s customers; from interfering with plaintiff’s relationships with its customers; and from using the name “Cullen” in defendant’s electrical contracting business. After hearing more than 15 witnesses testify over 13 days, the circuit court granted that portion of plaintiff’s motion which restrained defendant’s use of plaintiff’s records and bids or estimates developed by any person while in plaintiff’s employ. In this interlocutory appeal pursuant to Supreme Court Rule 307(a) (134 Ill. 2d R. 307(a)), plaintiff appeals from those portions of the order which denied plaintiff’s request to enjoin defendants from contracting or doing business with plaintiff’s former or current customers, and from using the name “Cullen” in their business name.

Plaintiff was established in the early 1960’s. Prior to June 1, 1990, defendant William had served as president and member of the board of directors for more than five years, after succeeding to the office upon his father’s death. William’s father, William Cullen, Sr., Thomas Maloney and Joseph Mahoney were the original shareholders and incorporators of the company. George Cullen, an attorney, also sat on the board of directors. As of June 1, 1990, Maloney, plaintiff’s vice-president, and Mahoney each owned 371/2% of plaintiff’s stock while William owned 25% of the stock. No covenant not to compete existed between William and plaintiff.

Prior to June 1990, plaintiff also employed Michael Simon, general superintendent, for 14 years, who worked closely with 12 regular customers; Joseph Ryan, an estimator, for 13 years; Timothy Harvey, an estimator; Michael Márchese, a foreman/electrician; Maureen Bú-fano, an office worker; Timothy Gallagher and Joseph Harvey, truck drivers; and O.R. Graf, an electrician.

Before June 1990, plaintiff had established long-term relationships with many of its customers, including the following: the White Sox for 27 years (1989 gross receipts from this account totalling more than $335,000); Floyd M. Philips Realty since the early 1960’s; Richmond Development Corporation for 15 years; Chicago Building Maintenance Company for 15 to 18 years (gross receipts of about $335,000 between October 1989 and April 1990); Calumet Federal and Gannett Outdoor of Chicago as regular customers for three to four years (1988 Gannett billings exceeding $133,000); and Capitol Development Corporation for 15 years (1989 gross sales receipts totalling $506,278).

The record reveals the following occurrences in June 1990.

On about June 10, 1990, William discussed setting up a separate minority-type corporation that would bid on contracts, then subcontract the jobs to plaintiff. The shares of Cullen Trucking Company, a subsidiary of plaintiff, were assigned to Sharon Cullen, William’s wife, to effectuate this purpose. The subsidiary’s name was changed to Cullen Electrical Contracting Company, and was approved by the Secretary of State on June 25, 1990. William testified that he chose the site for his new office on June 19 or 20 and ordered phone service on June 20. According to George Cullen, William informed him on June 20 that he was forming a new company to compete with plaintiff.

William testified that on June 19 he told Mahoney that he intended to leave the company. William told Mahoney that he had brought the company from $700,000 to $1,200,000 and would not continue to make it grow to the point where he could not buy out Maho-ney. Mahoney testified that this conversation took place on June 14.

On June 19, William wrote a check for $1,064 from plaintiff’s account for office supplies, not purchased for plaintiff’s operations. William wrote several checks around June 22 in the amounts of $18,930, $2,464 and $6,265 for tools and supplies. On June 19, Sharon issued herself a check for $1,037.60 representing 40 hours of work at $25.94 per hour for the period ending June 10. Fran Gutierrez, plaintiff’s office manager, testified that Sharon worked “two, maybe three [days], tops” per week during this month; Maloney testified that Sharon worked one day per week at the most, for about six hours. William issued severance slips on June 21 for O.R. Graf and on June 22, for Simon and several other employees. Simon received a $3,000 bonus check and regular paycheck, although he had never before received a bonus in his 14-year employment with plaintiff. Simon continued after June 22 to use plaintiff’s car phone to contact at least six current customers of defendant company. He also telephoned William 21 times that week from the car phone. On June 23, William and Sharon opened a business checking account for defendant company. Sharon typed a proposal letter, dated June 24, on defendant’s stationery to Capitol Construction for the Brooks Brothers/Rookery building job. She did not recall whether William dictated and signed the letter on June 25 or 26.

William testified that “sometime after the 17th [of June],” he first told Don Esposito, White Sox operations manager, about his intention to form his own company in what William characterized as a “very quick passing conversation.” According to William, Esposito responded, “When you do it, give me a call, maybe we can get something together.” The record reveals that William made numerous telephone calls from his car phone to the White Sox on June 19 and 20, although William did not know to what they related. William testified that he went to Esposito’s office on June 27 to discuss his new company taking over the White Sox electrical maintenance work. In July 1990, Esposito informed plaintiff that it could not bid on the new White Sox scoreboard. This $351,000 contract was subsequently awarded to defendant in August 1990.

A memo dated June 25, from Esposito to White Sox employees, stated:

“Because of circumstances beyond our control we have contracted to use a new electrical contractor. Joe Mahoney, who spent 30 years with the Chicago White Sox in the capacity of head electrician will be leaving us to pursue other avenues with Cullen Electric. *** Ron Graf will be our new electrician here effective June 29, 1990, here at Comisky Park. Please welcome Ron to the White Sox family with open arms ***.”

Richard Devine of Capitol Construction Company testified that he informed William on June 25 that plaintiff’s bid on the Brooks Brothers job was inadequate. William subsequently told Devine that he was leaving plaintiff company. On the following day, Devine’s supervisor told Devine to request William to rebid the job. William did not know on what date he faxed the bid on behalf of defendant to Brooks Brothers, although William admitted that defendant company’s records indicated fax transmissions from defendant to Brooks Brothers in New York on June 26.

On June 26, William issued a bonus check for $97,904 to himself and bonus checks to six or seven other employees, only one of whom did not join defendant. He also issued paychecks from plaintiff’s account to himself and Sharon and 12 or 13 employees. Maloney testified that he did not know these bonus checks were being issued and that the paychecks should not have been issued until June 28, the regular payday. Plaintiff’s corporate minutes, dated June 11, approved bonuses to officers and key employees payable July 27,1990.

On the morning of June 27, William gave Maloney his formal resignation and informed Maloney that he was leaving to operate a competing business. Maloney learned on that same day that several employees were leaving plaintiff to join defendant company. Mahoney learned on the morning of June 27 that plaintiff lost the White Sox account.

On June 28, Maloney and Mahoney learned that large checks were coming in to plaintiff’s bank and that the account was nearly overdrawn. They requested a loan and a stop payment order on William’s $97,000 bonus check, although the order came too late. On July 26, Maloney and Mahoney received bonus checks, as authorized by the June 11 minutes, but redeposited them into plaintiff’s account. On August 1, Mahoney loaned plaintiff $70,000 to meet payroll expenses.

Since June 27, 1990, plaintiff has not been awarded any contracts from Gannett, Richmond Development, or Capitol Construction, despite Maloney’s efforts to solicit business.

Maloney testified that several jobs originally awarded to plaintiff were reawarded to defendant after June 27, and the documents relating to these and other jobs were later discovered missing from plaintiff’s offices. Joe Ryan admitted that when he left to join defendant company, he took documents from plaintiff’s offices.

Plaintiff’s sales decreased from $1,456,333 to $819,772 from the last quarter of 1989 to the last quarter of 1990. Payroll also dropped from about $27,000 to $11,000 monthly from July 1989 to July 1990. In January 1991, plaintiff had 20 employees in the field and office, as compared to 46 prior to William’s resignation.

Plaintiff introduced the following evidence purporting to show confusion between the two companies’ names. Plaintiff has used the name “Cullen Electric Company” since 1960. Defendant assumed the name “Cullen Electrical Contracting Company” after obtaining approval from the Secretary of State on June 25 to do business under that name. Both companies are electrical contractors and maintain offices within 12 city blocks of each other. Gutierrez testified that plaintiff received numerous phone calls and pieces of mail for William and defendant company from September 1990 to the present time. Maloney indicated that plaintiff received invoices, bills and correspondence in October and November 1990 intended for defendant. Robert Devine of Capital Construction testified that his company sent several letters to plaintiff in November 1990 which were intended for defendant. Devine testified that William told him that he was leaving on the day prior to his resignation.

On appeal, plaintiff maintains that the trial court erred in denying those portions of plaintiff’s preliminary injunction which sought to enjoin defendants from contacting or doing business with customers served by plaintiff prior to William’s resignation and from performing ongoing work with customers defendant obtained from plaintiff through this unlawful conduct. Additionally, plaintiff urges on appeal that the trial court erred in refusing to enjoin defendants from using the name “Cullen” in their business name.

We first consider whether the trial court abused its discretion in refusing to enjoin defendants from contacting or servicing plaintiff’s former customers pending a full trial on the merits. Under general principles of equity, a party seeking preliminary injunctive relief must establish: a lawful right needing protection; that irreparable harm will be suffered without the protection sought; an inadequate remedy at law; and a substantial likelihood of success on the merits. (American National Bank & Trust Co. v. Carroll (1984), 122 Ill. App. 3d 868, 462 N.E.2d 586.) A preliminary injunction is an extraordinary remedy which should be used sparingly, with due restraint, and only when the circumstances clearly require it. (Hannan v. Watt (1986), 147 Ill. App. 3d 456, 497 N.E.2d 1307.) Finally, because the decision to grant or deny such relief lies in the trial court’s sound discretion and its findings may not be disturbed absent an abuse thereof (The Instrumentalist Co. v. Band, Inc. (1985), 134 Ill. App. 3d 884, 480 N.E.2d 1273), our role on review is limited to considering whether the trial court abused its discretion. Hough v. Weber (1990), 202 Ill. App. 3d 674, 560 N.E.2d 5.

The trial court here found that William breached his fiduciary duty to and unfairly competed with plaintiff (and this finding appears proper), that plaintiff suffered irreparable harm to a protectable right, had no adequate remedy at law and showed a substantial likelihood of success on the merits. The trial judge, however, refused to grant plaintiff the requested relief because of the passage of time and the court’s inability to effectively fashion an order to maintain the status quo, finding that it was not “possible” or “practical” to fashion an appropriate order that would transfer defendant’s business to plaintiff.

We cannot find that the trial court abused its discretion in finding that it could not maintain the status quo. The purpose of a preliminary injunction is to preserve the status quo pending a decision on the merits of the case in order to maintain the last, uncontested status which preceded the controversy. (Shodeen v. Chicago Title & Trust Co. (1987), 162 Ill. App. 3d 667, 515 N.E.2d 1339.) In our opinion, the trial judge properly decided within the bounds of his broad discretion that he could not fashion an appropriate remedy nearly six months after William resigned and formed his competing company. Although William resigned on June 27, plaintiff did not seek injunc-tive relief until September 1990, and the motion was not heard until January 18, 1991. By that time, defendant company’s operations were in full force, bids with customers had been accepted and work was in progress. A judgment that would require defendants, six months after formation, to cease contact with plaintiff’s former customers would penalize the customers.

Relying on ABC Trans National Transport, Inc. v. Aeronautics Forwarders, Inc. (1978), 62 Ill. App. 3d 671, 379 N.E.2d 1228, plaintiff also maintains that the trial court abused its discretion by balancing the equities and considering the passage of time. It is well established that the equitable doctrine of balancing the equities does not apply when defendant acts with full knowledge of plaintiff’s rights and an understanding of the potential consequences. (Gold v. Ziff Communications Co. (1989), 196 Ill. App. 3d 425, 553 N.E.2d 404.) A court balances equities when it determines whether the burden on defendant outweighs the benefit to plaintiff if the injunction issued. (ABC Trans National Transport, 62 Ill. App. 3d 671, 379 N.E.2d 1228.) The trial judge here stated that William breached his fiduciary duty and impliedly recognized that William acted with full knowledge of plaintiff’s rights and with an understanding of the consequences that would follow. If the trial court balanced the equities, such analysis was an abuse of discretion. However, in our opinion, the record does not indicate that the court considered whether defendant’s burden would outweigh plaintiff’s benefit. Plaintiff suggests that the following language by the court shows that it balanced the equities: “[T]o enjoin [defendant] now would make a bad situation worse and would probably wind up hurting the plaintiff, as I said, indirectly by not being able to have a recovery.” The court here did not refer to defendant’s burden, but rather to plaintiff’s potential harm. The record simply does not indicate that the trial court balanced the equities or that its decision rested on such factor. Rather, the record unambiguously points to the passage of time and the impracticality of fashioning an appropriate order. ABC Trans National Transport does not preclude the court from considering the passage of time or its ability to make an effective order in its analysis, and we conclude that such analysis here was a proper exercise of discretion.

While we find that the trial court did not err in denying the request for a preliminary injunction, we believe that the court erred in holding that there was not an adequate remedy at law. If there is an adequate legal or equitable remedy that will make plaintiff whole after trial, a preliminary injunction should not issue. (Schwartz v. Coldwell Banker Title Services, Inc. (1989), 178 Ill. App. 3d 971, 533 N.E.2d 1161.) A legal remedy is adequate when it is clear, complete, and is as practical and efficient in achieving the prompt administration of justice as is the equitable remedy. (Shodeen v. Chicago Title & Trust Co. (1987), 162 Ill. App. 3d 667, 515 N.E.2d 1339.) We believe that the injury plaintiff complains of, William’s breach of fiduciary duty, would be capable of being measured and corrected by money damages, and, therefore, plaintiff’s remedy at law is adequate. After a trial on the merits, plaintiff will be entitled to recover as damages the loss of profits which plaintiff suffered as a result of William’s actions. (Henry’s Drive-In, Inc. v. Anderson (1962), 37 Ill. App. 2d 113, 185 N.E.2d 103.) If the loss of future profits is also proved, there is no evidence that these could not be estimated with reasonable certainty by relying on plaintiff’s many years of successful operation. (Henry’s Drive-In v. Anderson, 37 Ill. App. 2d 113, 185 N.E.2d 103.) Finally, the court may consider other readily quantifiable elements of damage which were demonstrated by plaintiff in the trial court.

Moreover, although the court appeared to find the necessary elements present for injunctive relief, its findings are equivocal regarding the adequacy of the legal remedy. While the court found that no adequate remedy at law existed, the court also found:

“The defendant is going to be allowed to compete but he may be responsible and liable for damages for the breach that the Court found to a lesser degree, and if there is a breach proven to the degree that is acceptable, as I said before, the solution lies in money damages ***.” (Emphasis added.)

Therefore, although the court indicated that no legal remedy existed, the court also envisioned money damages as plaintiff’s relief. We conclude that damages here could be calculated with reasonable certainty, and that plaintiff’s injury could be adequately corrected by an award of money damages. Because we find that an adequate legal remedy existed, we conclude that the trial court’s refusal to enjoin defendants from contacting or servicing plaintiff’s former customers through the extraordinary remedy of a preliminary injunction was a proper exercise of discretion.

We next consider plaintiff’s claim on appeal that the trial court abused its discretion in refusing to enjoin defendants from using the name “Cullen” in their electrical contracting business. Plaintiff claims that defendant’s use of such name deceives customers in violation of the Illinois Uniform Deceptive Trade Practices Act, which provides for injunctive relief when a party’s trade practice creates a likelihood of confusion or misunderstanding. Ill. Rev. Stat. 1989, ch. 121V2, par. 312.

During the pendency of the proceedings below, defendant voluntarily changed its name from “Cullen Electrical Contracting Company” to “Bill Cullen Electrical Contracting Company.” In refusing to enjoin defendant’s use of the name “Cullen,” the trial court wrote:

“In the opinion of the Court, although confusing, there was testimony concerning it. *** I think that to refuse to allow the use of the name Cullen in the business of the defendant would be an abuse in its new, modified form. Prior to the modification, I would agree that the names, notwithstanding it is a family name, were too similar to allow because of the length of time the plaintiffs had used the name, so because of the modification and the insertion of the Bill Cullen Electric, whatever, the relief in 5 will be denied.”

Initially, we reject plaintiff’s suggestion that the record shows that the trial judge found actual confusion by defendant’s use of the name. Contrary to plaintiff’s assertions, we believe that the court refers to “confusing” testimony, not to confusion resulting from use of the names. Read in context, the court indicated its belief that defendant’s name, as modified, was not sufficiently confusing to award the injunctive relief requested by plaintiff.

Under Illinois law, a plaintiff may seek injunctive relief under the theories of trademark or trade name infringement, or under the Uniform Deceptive Trade Practices Act. The test for trademark infringement in Illinois is likelihood of confusion, and such infringement is found where the evidence indicates a likelihood of confusion, deception or mistake by ordinary purchasers. (Thompson v. Spring-Green Lawn Care Corp. (1984), 126 Ill. App. 3d 99, 466 N.E.2d 1004.) Moreover, the term “likelihood of confusion” has the same meaning under the Uniform Deceptive Trade Practices Act as in trademark infringement cases. (M-F-G Corp. v. EMRA Corp. (N.D. Ill. 1985), 626 F. Supp. 699.) Evidence of actual confusion is not necessary to support injunctive relief, although such evidence weighs in favor of such relief. Thompson v. Spring-Green Lawn Care Corp., 126 Ill. App. 3d 99, 466 N.E.2d 1004.

We conclude that the trial court here properly refused to enjoin defendants from using the name “Cullen.” Hazelton Boiler Co. v. Hazelton Tripod Boiler Co. (1892), 142 Ill. 494, 30 N.E. 339, supports our conclusion. In that case, defendant Milton Hazleton sold his interest in plaintiff company, “Hazelton Boiler Company,” in New York and subsequently opened a competing business, “Hazelton Tripod Boiler Company” in Chicago. Our supreme court found that the trial court properly refused to grant injunctive relief, focusing on the minimal potential of confusion when companies deal directly with their customers. The Hazelton court wrote: “In this way the liability of intending purchasers to be deceived into mistaking boilers of the defendant’s manufacture for those of the complainant, if not wholly obviated, is reduced to the minimum.” Hazelton Boiler Co. v. Hazelton Tripod Boiler Co., 142 Ill. at 508, 30 N.E. at 345.

As in Hazelton, both plaintiff’s and defendant’s principals here deal directly with their customers, rather than working through retailers or middlemen. Nor is this a situation where a potential buyer might be confused by a product that is on a store shelf. As such, under Hazelton, it is unlikely that the parties’ customers will be misled into confusing the two companies based upon the similar names. Further, as in Hazelton, the evidence here does not suggest that defendants intended or calculated to deceive plaintiff’s customers into believing that they were dealing with plaintiff. Conversely, the record reveals that William told several customers that he was leaving plaintiff and forming a new company. Such evidence belies plaintiff’s argument that William tried to mislead plaintiff’s customers. Nor was evidence presented to suggest that any customers dealt with defendant believing it to be plaintiff. The mail sent to plaintiff for defendant or William does not necessarily prove actual confusion, but rather is a natural incident of moving.

Furthermore, we do not believe that the right to injunctive relief here is supported by the applicable, general principles of law, as recognized by this court (Unichem Corp. v. Gurtler (1986), 148 Ill. App. 3d 284, 498 N.E.2d 724), and as first acknowledged in Mossler v. Jacobs (1896), 66 Ill. App. 571, in which the court wrote: We find that defendant’s use of the name “Bill Cullen Electrical Contracting Company” does not constitute an “unfair appropriation” of plaintiff’s name “calculated to deceive the public.” (Mossler v. Jacobs, 66 Ill. App. 3d at 574.) We recognize that the two companies are rivals and that the competition between them is intense, especially given William’s former affiliation with plaintiff and his conduct. However, fair competition without intent to deceive does not give rise to injunctive relief. (Hazelton Boiler Co. v. Hazelton Tripod Boiler Co. (1892), 142 Ill. 494, 30 N.E. 339.) For the foregoing reasons, we conclude that the trial court did not abuse its discretion in refusing to enjoin defendant’s use of the name. “Cullen.”

“[N]o person is by the law permitted to use any mark, sign, symbol, name, device or other means, whereby he makes a false representation, or deceives as to his own goods, or as to the goods of another. ***
*** Fair competition in business is legitimate and promotes the public good, but an unfair appropriation of another’s business by using his name or trade mark, or an imitation thereof calculated to deceive the public, is not permissible and will be enjoined by a court of equity.” (Emphasis added.) (Mossler v. Jacobs, 66 Ill. App. at 574-75.)

In summary, the trial court did not abuse its discretion in denying plaintiff’s request to enjoin defendants from contracting or doing business with plaintiff’s former or current customers, and from using the name “Cullen.”

Accordingly, the judgment of the circuit court of Cook County is affirmed and the cause is remanded for further proceedings consistent with these holdings.

Judgment affirmed and cause remanded.

RAKOWSKI, P.J., and EGAN, J., concur.


author: JUSTICE LEWIS

text:
    AMOCO OIL COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Robert J. Kampert, Appellee).
    First District (Industrial Commission Division)
    No. 1-90-3437WC
    Opinion filed August 16, 1991.

      Rooks, Pitts & Poust, of Chicago (Daniel Socha and Susan Clancy Boles, of counsel), for appellant.
    Van Duzer, Gershon, Jordan, Petersen & Loeffler, of Chicago (Warren G. Petersen, of counsel), for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

Claimant, Robert J. Kampert, filed an application for adjustment of claim pursuant to the Workers’ Compensation Act (HI. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.) (the Act) for an injury to his lower back and for psychological injury resulting from a work-related accident on March 4, 1981, while in the course of his employment with the respondent, Amoco Oil Company. After a hearing before an arbitrator, the claimant was awarded benefits for permanent and total disability and medical benefits of $25. On review, the arbitrator’s decision was affirmed by the Industrial Commission (Commission) and confirmed by the circuit court. The respondent appeals.

On appeal, the respondent contends that the Commission’s decision that the claimant’s condition of ill-being was causally connected to his work accident of March 4, 1981, and the Commission’s award of permanent and total disability were against the manifest weight of the evidence. Alternatively, the respondent argues that the Commission’s decision of permanent and total disability was premature given the arbitrator’s finding, which was adopted by the Commission, that the claimant needed psychiatric treatment and vocational rehabilitation, and that this cause should be remanded to the Commission for proceedings on this finding. Before considering these issues, a statement of the facts is necessary.

The claimant testified that he had not graduated, but he had completed IV2 years of high school. His work history consisted of being a construction laborer, and for the last 17 years, he had driven a gasoline delivery truck for the respondent. At the time of his accident, he was 43 years of age.

The claimant stated that he had urological problems since 1974 for which he had extensively sought treatment. In August 1976, the claimant was involved in a car accident in which he was rear-ended by another car while stopped at a train crossing. As a result of the car accident, he injured his neck and back. Following the car accident, the claimant was off work from June 1978 through December 1980, at which time the respondent’s doctor released him to return to work.

When the claimant returned to work on January 5, 1981, he worked at his regular job for the next two months, until March 4, 1981. On that date, the claimant was delivering gasoline as his job required. While delivering gasoline at a new location, he had to move some 50-gallon barrels, which were filled with sand or gravel, that were in his way. When moving one of the barrels, the claimant slipped, and he immediately felt a sharp pain in his back, in his neck, and down his legs. The claimant finished his delivery, returned the truck to the respondent’s place of business, and went home. Approximately a week later, the claimant saw the respondent’s doctor, Dr. Massarik. Dr. Massarik sent him to an orthopedic doctor. Since his accident on March 4, 1981, the claimant had not returned to work for the respondent or sought other employment. However, he admitted he did tasks around his home, such as mowing the lawn, washing dishes, and painting the house. At the time of the arbitration hearing, the claimant continued to complain of pain in both legs, of numbness in his legs, and discomfort in his neck and back.

On cross-examination, the claimant testified that he had served only nine months in the Army. A month after he saw a psychiatrist or psychologist in the service, he was discharged. According to the claimant, he had initially seen the Army doctor for stomach complaints. In a history given by the claimant to Dr. Young at Northwest Community Hospital following his car accident in 1976, the claimant told of having suffered from depression and irritability for two years prior to the accident.

The claimant’s wife testified that prior to the claimant’s car accident of 1976, he worked at his job approximately 10 hours a day, five days a week. She described the claimant as hardworking and conscientious about his work. After the 1976 car accident, the claimant was in pain, which slowed the claimant down in doing the tasks he normally did. According to Mrs. Kampert, when the claimant returned to work in January 1981, he was almost completely “back to normal,” and the claimant again worked 8 to 10 hours a day, five days a week. Mrs. Kampert stated that after the work accident of March 4, 1981, the claimant became very agitated, short-tempered with people, and bitter. She testified that prior to 1976, the claimant had not been depressed.

Dr. Massarik, respondent’s company physician, testified in his evidence deposition that he first saw the claimant in the spring of 1977. At that time, the claimant complained of back problems, which prevented the claimant from returning to work. The next time Dr. Massarik saw the claimant was on December 23, 1980, to determine if the claimant was able to return to work. Dr. Massarik stated that he considers a person’s emotional state as part of his evaluation of a person. Dr. Massarik was aware that the claimant had seen other doctors between 1977 and 1980, and he had seen their reports. He was aware that the doctors had found the claimant physically normal but that the doctors had felt the claimant was depressed, nervous, anxious, angry, and hostile. At his December 1980 examination of the claimant, Dr. Massarik determined that the claimant was normal and that he was able to return to his regular duties.

Dr. Massarik saw the claimant again on March 10, 1981, following the claimant’s work-related accident. At that visit, the doctor found that the claimant walked with a stiff, halting gait and that he was unable to bend over and touch his toes. The claimant also complained of pain in his back. The doctor stated that the claimant’s gait was one of a person in pain. Dr. Massarik’s impression of the claimant’s condition was that the claimant had a questionable lumbar sprain, but he referred the claimant to an orthopedic surgeon, Dr. Proctor Anderson.

After March 10, 1981, Dr. Massarik talked to the claimant on the telephone from time to time. He next saw the claimant on July 21, 1981. Dr. Massarik found that the claimant’s back sprain had subsided but that the claimant still complained of back pain. In addition, the claimant was nervous and agitated. On each occasion that the doctor talked to the claimant following the March 1981 accident, either by telephone or in person, the claimant was very upset, angry, and hostile. The claimant could not understand why none of the doctors he had seen were able to relieve his pain. At the July 1981 visit, Dr. Massarik decided that the claimant could not safely return to work as a truck driver because of his emotional instability. However, Dr. Massarik testified that he believed the claimant was capable of working at a job which was not potentially hazardous to himself or others, such as physical work.

Dr. Massarik again saw the claimant on February 4, 1982, and in his opinion, the claimant continued to be unable to work due to his emotional instability. Dr. Massarik had no opinion as to whether the claimant’s psychological condition was causally related to his work-related accident of March 4, 1981; however, Dr. Massarik agreed that muscular aching can be a symptom of depression and that pain can precipitate or aggravate a depressive condition.

A letter from Dr. Proctor Anderson,, an orthopedic surgeon, established that he had seen the claimant on March 19, 1981. Based upon his examination of the claimant, it was his impression that the claimant suffered from degenerative lumbar disc disease but that the claimant did not have a herniated disc. His recommended treatment for the claimant was bed rest for two weeks, prescribed medication, and no lifting of heavy objects in the future.

Various medical reports were admitted into evidence regarding claimant’s mental and physical status from the time of the 1976 car accident until the claimant’s work-related accident of March 1981. The discharge summary from Northwest Community Hospital dated December 14, 1976, disclosed that the claimant had no evidence of neurological deficiency but that there was mild scoliosis and some anterior spurring at the L4-L5 vertebrae. A history taken at Northwest Community Hospital stated that the claimant had stress over his job and his accident and that the claimant was quite nervous. It was reported that the claimant had some irritability and depression for the past two years. The doctor’s final diagnosis and impression at the time of the claimant’s discharge from Northwest Community Hospital was low back strain related to trauma and life stress, peripheral neuropathy, chronic depression, and chronic bronchitis.

Dr. William Kemahan, Jr., stated in a letter report that he had seen the claimant on August 1, 1977. His examination of the claimant revealed a very angry person with considerable rigidity throughout his spine. Dr. Kemahan found that the claimant had paranoid ideas, and he advised the claimant to seek psychiatric help, but the claimant refused. Dr. Kemahan did not doubt that the claimant had back pain, but he found that the claimant also had other severe problems of an emotional nature which required psychiatric help. Dr. Kemahan’s diagnosis of the claimant’s condition was degenerative disc disease of the lumbosacral spine with anxiety state.

A report from the Chicago Rehabilitation Institute dated March 1978 disclosed that the claimant’s affect was mildly agitated and depressed. The claimant complained at his visit that he had pain in his neck, shoulders, and back since August 1976, and that he had difficulty sleeping. The claimant was unsure if he could continue with his job. The claimant was also angry about his past medical treatment for his physical complaints. The claimant was given the Minnesota Multiphasic Personality Inventory (MMPI) test, the results of which indicated the claimant had a significant level of depression and a tendency towards self-doubt and anxiety. The impression of the doctor at the Chicago Rehabilitation Institute was that the claimant had marked anxiety syndrome plus subjective low back pain and mid-back pain. The report recommended that the claimant seek psychological services.

In 1979, the claimant went to Mayo Clinic. Reports from Mayo Clinic revealed that the claimant’s history was suggestive of a thinking disorder. The clinic doctors found that the claimant tended to exaggerate his symptoms and complaints and that he had a poor self-concept. The claimant was observed to be angry, dissatisfied with his family life, restless or agitated, severely depressed, worrying and pessimistic, immature, egocentric, suggestible and demanding, and prone to develop circumscribed functional complaints such as headaches and backaches. The doctors stated that the claimant lacked insight and probably was unlikely to accept a psychological explanation of his symptoms.

Progress notes from the Hines Veteran’s Administration Hospital (Hines) from 1980 indicated that the claimant reported that he was feeling depressed. During his hospitalization at Hines in February 1980, the claimant was given an MMPI, the results of which suggested hypochon-driacao, autonomic nervous system overreactivity, lack of stamina, and oppression with paranoid traits.

In addition to these medical reports of the claimant’s mental and physical status prior to his March 1981 accident, numerous depositions and reports completed after March 1981 were admitted. A medical report done by Dr. Scarff at Foster McGaw Hospital in June 1981 gave Dr. Scarff’s final diagnosis of the claimant’s condition as low back pain, etiology undetermined.

Ellen Grant Calderini, a psychotherapist, testified in her evidence deposition that she had seen the claimant on April 15, 1982, at Dr. Lauer’s request. As a psychotherapist, it was her job to assess an individual’s personality structure. She found the claimant uncooperative, defensive, negative, and a narcissistically injured man, i.e., a person who feels the world owes him a living. At the claimant’s interview, he had “shaky” hands and some agitation. She also conducted various tests, some of which were refused by the claimant. One test, the Wechsler Adult Intelligence Scale (WAIS), placed the claimant’s intelligence on the bright-to-normal scale. Some subtests of the "WAIS indicated that the claimant had very good mechanical ability.

Calderini stated that the claimant blamed his accident of 1976 for his problems. She determined that the claimant’s condition developed prior to the age of five, that he was very fearful and anxious about what might happen, and that he clung to a very rigid kind of moralistic code. She further found that he had a lifelong condition and that the claimant did not have the ego strength to make his way through life. She testified that the smallest incident which would be mildly upsetting to a healthy person was absolutely devastating to the claimant. It was her opinion that the claimant’s condition was not causally connected to or aggravated by his work-related accident on March 4,1981.

Calderini agreed that the claimant’s accident in 1976, which disabled him for a long period of time, could have had a material effect on an existing narcissistic personality, and similarly, so could the accident in 1981. Calderini determined that the claimant was unable to work as a truck driver in 1982 due to his emotional state; however, she believed he was capable of performing some type of work involving mechanical skills. She agreed with Dr. Garrón that the claimant’s multiple physical complaints were a manifestation of his emotional disturbance. It was also her opinion that the claimant was malingering.

Dr. John Lauer, a psychiatrist, testified in his evidence deposition that he saw the claimant, at the respondent’s request, on April 15, 1982, and on May 4, 1982. He found that the claimant’s thought processes were intact, and that there was no evidence of organic brain pathology. His diagnosis of the claimant’s condition was dysthymic disorder, i.e., a tendency to be depressed, a low-grade chronic condition that was present at all times but varied in degree of severity, and that the claimant also suffered anxiety which also varied in severity. Dr. Lauer believed that the claimant had this condition prior to 1981. It was Dr. Lauer’s opinion that the claimant could not drive a truck because of his psychological condition but that the claimant could do something mechanical. It was also Dr. Lauer’s opinion that the claimant’s condition was not causally connected to his accident of 1981. On cross-examination, the doctor agreed that the 1981 accident “might” have aggravated the claimant’s emotional state by reason of the pain that he suffered from the accident.

The claimant again saw Dr. Lauer of his own accord on April 18, 1983, and April 27, 1983. At these visits, the claimant complained about his neck, his lower back, his testicles, and his abdomen. Dr. Lauer’s opinion of the claimant’s condition in 1983 was the same as it was in 1982.

Dr. Kysar, another psychiatrist, testified in his evidence deposition that he had seen the claimant on March 1, 1984. He found the claimant to be intensely despondent, irritable, angry, and without much variation in his affect. In addition, the claimant was preoccupied with various physical symptoms. He testified that the claimant considered himself useless and inadequate, had a loss of self-esteem and self-respect, and did not see an end to his problems. His diagnosis of the claimant’s condition was depressive neurosis (another name for dysthymic disorder), chronic and severe. In his opinion, the claimant’s accident of 1981 contributed to or aggravated the claimant’s psychiatric illness, and the claimant’s condition was probably permanent.

Dr. Kysar found that the claimant’s condition had been present for a long time, that “apparently [claimant] had some psychiatric problems going on for quite a while, they were made worse in 1976, apparently they got somewhat better in 1980 to ’81 *** then they were made worse again by the incident in March, 1981.” Dr. Kysar based his opinion on the fact that the claimant returned to work. He stated that if the claimant returned to work in 1981 there must have been a considerable improvement emotionally as well as physically, otherwise the claimant could not have done so. He found that there was a similarity to the claimant’s problems before and after the 1981 accident, but that the claimant was much worse after the 1981 accident. Because of the longstanding nature of the claimant’s condition, it was his opinion that treatment would not produce a significant improvement. He did not believe the claimant could return to work as a truck driver or that the claimant could return to any type of work due to his psychological condition.

A letter report from Dr. Matz dated July 18, 1984, indicated that he had seen the claimant on that date. At the claimant’s visit, his complaints were diffuse and not well-localized. Dr. Matz reported that the claimant’s long-standing subjective complaints were devoid of findings of physical impairment, and from a physical standpoint, the claimant was employable. Dr. Matz determined the claimant’s condition to be a temporary aggravation of a preexisting degenerative disc disease.

A medical report dated January 16, 1985, from Northwest Community Hospital indicated that the claimant had come to the emergency room very nervous and depressed. Dr. Moskovic, a consulting doctor at the hospital, found the claimant to be angry, to have an embittered affect, and to be frustrated with his medical treatment over the years. Dr. Moskovic reported that there were no physical explanations for the claimant’s symptoms but that the claimant’s association and thought processes were impaired and his judgment highly questionable. The doctor did not believe the claimant to be malingering. His diagnosis of the claimant’s condition was that the claimant had a major affective disorder, nonspecific in nature; a possible somitization or psychophysiological disorder; and chronic pain syndrome. Dr. Moskovic found the claimant’s situation to be complex with qualified psychological and physical problems. He determined that he was dealing with a psychogenic process and that the claimant’s denial was extreme. Furthermore, the doctor determined that it would be difficult to reverse the process that had been there for such a long time.

Dr. David Garrón, a psychologist, saw the claimant on April 26, 1985, at the respondent’s request. He reviewed the claimant’s records and gave the claimant the Peabody Picture Vocabulary test, the results of which indicated that the claimant’s intelligence was below average to average. Dr. Garron’s review of the claimant’s records indicated that the claimant was suffering a psychiatric disorder before March 1981. Dr. Garrón gave the claimant a back pain classification scale, and this test reflected that the claimant’s physical illness was a reflection of his psychological disturbance and that the disorder was chronic and long-standing. He stated the claimant’s condition went back to late adolescence or early adulthood.

Dr. Garrón disagreed with the diagnosis of depressive neurosis. In his opinion, the claimant had a moderate-severe personality disorder. He did not believe that the claimant’s accident of 1981 caused or aggravated his psychological condition. However, Dr. Garrón admitted that the 1981 accident did play a role in that the claimant’s psychological makeup was such that he is chronically vulnerable to decompensations and, episodically, the claimant fastens onto events which justify other wrongs in his life. He believed that the claimant was just as capable to work now as he ever was, from a psychological point of view, and that the claimant was capable of driving a truck. Dr. Garrón agreed that physical trauma can aggravate a preexisting emotional condition.

Lastly, the medical records from Humana Hospital of June 21, 1985, indicated that the claimant was admitted to the hospital with complaints of a severe state of agitation, restlessness, loss of appetite, and difficulty with concentration. It was found that “[f]rom an emotional standpoint, the patient is markedly deteriorated.” The diagnostic impressions given were depression associated with anxiety with multiple somatic complaints, and chronic long-standing cervical and lumbosacral myoliga-mentous pain with significant psychological overlay.

After considering this evidence, the arbitrator found that the claimant had a long-standing emotional problem of depression and that various doctors had recommended psychiatric treatment to the claimant throughout the years, but that the claimant had never followed those recommendations. Further, in spite of this condition, the claimant had married, had children and had fulfilled his responsibilities to his wife, children, and employer. The arbitrator found that, in 1976, the claimant had a car accident in which he received injuries to his upper and lower back. The claimant was off work for these injuries, and during this time, the doctors again recommended psychiatric treatment, but the claimant did not follow the recommendations. The arbitrator found that the claimant returned to work in 1981, at which time the claimant was well motivated and physically able to return to work. However, following his work-related accident on March 4, 1981, the depressive neurosis from which the claimant had suffered now completely disabled him. The arbitrator determined that no market existed for a person in the claimant’s physical and emotional condition and with the claimant’s lack of skills. The arbitrator held that the claimant’s condition of ill-being was causally connected to his work-related accident of March 4, 1981, and found the claimant to be permanently and totally disabled. As was noted previously, the Commission affirmed the arbitrator’s decision and the circuit court confirmed the Commission.

The first issue raised by the respondent is that the Commission’s finding that the claimant’s psychological condition was causally connected to his accident of March 4, 1981, was against the manifest weight of the evidence. The respondent argues that the claimant’s mental condition was long-standing, and thus, his condition of ill-being was not causally related to his employment. The respondent’s argument rests upon Dr. Lauer’s, Dr. Garron’s, and Ellen Calderini’s opinions that his psychological condition was not caused by his work accident.

It is well settled that it is the province of the Industrial Commission to determine witness credibility, to resolve conflicts in the medical evidence, and to determine causal connection between a claimant’s disability and the work-related accident. (McDaniel v. Industrial Comm’n (1990), 197 Ill. App. 3d 981, 557 N.E.2d 212; May v. Industrial Comm’n (1990), 195 Ill. App. 3d 468, 552 N.E.2d 258.) In addition, a disability caused by a neurosis is compensable if it resulted from an accidental injury. (Veritone Co. v. Industrial Comm’n (1980), 81 Ill. 2d 97, 405 N.E.2d 758; Smith v. Industrial Comm’n (1987), 161 Ill. App. 3d 383, 512 N.E.2d 712.) The work-related accident need not be the sole causative factor of the neurosis but need be only a causative factor of the condition. (Smith, 161 Ill. App. 3d 383, 512 N.E.2d 712.) Further, even where the psychological condition was a preexisting one, if the work-related accident aggravated the condition, it is compensable. (Smith, 161 Ill. App. 3d 383, 512 N.E.2d 712.) Because it is the province of the Commission to determine causal connection, a reviewing court will not overturn a Commission’s determination if the Commission’s decision is not against the manifest weight of the evidence. McDaniel, 197 Ill. App. 3d 981, 557 N.E.2d 212.

In the case sub judice, the evidence established that the claimant did have a preexisting psychological condition of depression; however, the claimant never underwent psychiatric treatment, and his condition was not so disabling as to prevent him from working for the respondent for 17 years. Although the claimant’s accident in 1976 may have exacerbated his psychological condition, the evidence demonstrated that the claimant’s condition had improved and that he was capable of returning to his work in January 1981. The claimant worked his normal job for two months without problems, either psychologically or physically, until his accident of March 4, 1981, but, after this accident, the claimant deteriorated mentally.

The evidence is not disputed that the claimant did suffer a physical injury on March 4, 1981. However, the medical evidence of whether the claimant’s psychological injury resulted from this accident is clearly conflicting. Ellen Calderini found that the claimant’s condition had existed since he was very young and that the smallest incident which was mildly upsetting to a healthy person was devastating to the claimant. It was her opinion that the claimant’s condition was not caused or aggravated by his work-related accident of 1981 and that the claimant was malingering. Dr. Garrón, a psychologist, found the claimant to be suffering from a long-standing personality disorder, and in his opinion, the claimant’s work-related accident did not cause or aggravate the claimant’s mental condition. He admitted that the claimant was emotionally chronically vulnerable and that a physical trauma can aggravate a preexisting emotional condition. Dr. Lauer, respondent’s psychiatrist, found the claimant’s dysthymic disorder to be a long-standing condition. It was also Dr. Lauer’s opinion that the claimant’s condition was not causally connected to his work-related accident, but he agreed that the claimant’s accident of 1981 might have aggravated his emotional state because of the pain the claimant suffered from the injury. Dr. Kysar’s diagnosis of the claimant’s condition was the same as Dr. Lauer’s; however, Dr. Kysar determined that the claimant’s condition was causally connected to his work-related accident. Dr. Matz, whose specialty was undisclosed, found the claimant employable from a physical standpoint but expressed no opinion regarding the claimant’s psychological condition. Lastly, the respondent’s physician, Dr. Massarik, gave no opinion on causal connection, but he determined that the claimant’s emotional condition following his work-related accident prevented the claimant from returning to work. Dr. Massarik had not found the claimant incapable of working because of his emotional condition prior to that time. Thus, the medical evidence on causal connection was conflicting, but there was evidence that the claimant’s accident of March 4, 1981, was a causative factor in aggravating his preexisting emotional condition, and we cannot conclude that the Commission’s determination was against the manifest weight of the evidence.

The respondent also contends on appeal that the Commission’s finding that the claimant was permanently and totally disabled was against the manifest weight of the evidence. The respondent argues that the medical evidence presented in this case established that the claimant was physically able to work. Further, the respondent asserts that the testimony of Dr. Garrón, Dr. Lauer, and Ellen Calderini was that the claimant was capable of gainful employment from a psychological standpoint as well. Therefore, the respondent contends that the claimant failed to sustain his burden of proof that he was permanently and totally disabled.

The determination of the extent or permanency of an employee’s disability is a question of fact to be made by the Commission, and on review, the Commission’s decision will not be overturned unless it is against the manifest weight of the evidence. (Esposito v. Industrial Comm’n (1989), 186 Ill. App. 3d 728, 542 N.E.2d 843.) It is the claimant’s burden to prove by a preponderance of the evidence the extent and permanency of his disability. (Esposito, 186 Ill. App. 3d 728, 542 N.E.2d 843.) To prove that a claimant is permanently and totally disabled, he must show that he cannot perform any services except those for which no reasonably stable labor market exists. (Illinois-Iowa Blacktop, Inc. v. Industrial Comm’n (1989), 180 Ill. App. 3d 885, 536 N.E.2d 1008.) Factors to be considered in making a determination of permanency include a claimant’s age, training, education, and experience. (Illinois-Iowa Blacktop, Inc., 180 Ill. App. 3d 885, 536 N.E.2d 1008.) Once a claimant has met this burden, the burden then shifts to the respondent to show that some kind of competitive market work is regularly and continuously available to the claimant. Esposito, 186 Ill. App. 3d 728, 542 N.E.2d 843.

In the case sub judice, the record contains sufficient evidence that the claimant is unemployable. The arbitrator, in her decision, stated that “[b]ased upon the Petitioner’s age, limited verbal skills, lack of vocational mechanical knowledge and experience, as well as his physical and emotional condition, the Arbitrator finds his state of ill-being permanent.” The record established that the claimant was 43 years of age at the time of the accident, that at most he had a tenth-grade education, and that he had worked for the respondent as a truck driver for the past 17 years. His prior work history was as a construction laborer. Dr. Mas-sarik, the respondent’s doctor, testified that the claimant could not safely return to work as a truck driver because of his emotional instability. Although Dr. Massarik stated that it was his opinion the claimant could work, he did not specify what job the claimant could do. Dr. Mas-sarik concluded simply that the claimant could do work that was not potentially hazardous to himself or others. Both Ellen Calderini and Dr. Lauer testified that the claimant was unable to return to work as a truck driver, but both believed the claimant could do something “mechanical.” Their opinions regarding the claimant’s ability to do mechanical work were based upon test results which showed the claimant had an aptitude in this area and were not based upon any training the claimant had. Dr. Garrón alone expressed the opinion that the claimant was capable of returning to his employment as a truck driver. Dr. Matz found the claimant employable from a physical standpoint, but he expressed no opinion regarding the claimant’s employability from a psychological standpoint. Dr. Kysar’s opinion was that the claimant was permanently disabled because of his psychological condition and that he was unable to work because of his disability. It was also Dr. Kysar’s opinion that because of the long-standing nature of the claimant’s condition, treatment would not produce a significant improvement. We do not find that the Commission’s award of permanent and total disability benefits was against the manifest weight of the evidence given the claimant’s emotional condition, age, and lack of education and training.

The last issue raised by the respondent is that the arbitrator made a finding that the claimant needed vocational rehabilitation but that the arbitrator failed to enter an order consistent with this finding. Subsequently, the Commission adopted the arbitrator’s findings, and it, too, failed to enter an order regarding vocational rehabilitation. The respondent argues that, because of this finding, the determination of permanent and total disability was premature as there was no order for vocational rehabilitation and that this cause must be remanded for proceedings on this finding. Further, the respondent asserts that because the claimant refused to be evaluated for vocational rehabilitation or to receive necessary psychiatric treatment and because the arbitrator found the claimant needed such in her findings, the claimant should not be allowed to refuse vocational rehabilitation, and the appropriate sanction is a suspension of compensation benefits.

The respondent also contends that section 8(a) of the Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.8(a)) mandates vocational rehabilitation. We find that the respondent’s argument is rather tortured in its reasoning. First, we find that section 8(a) does not mandate vocational rehabilitation. Section 8(a) states in pertinent part as follows:

“The employer shall provide and pay for all the necessary first aid, medical and surgical services, and all necessary medical, surgical and hospital services thereafter incurred, limited, however, to that which is reasonably required to cure or relieve from the effects of the accidental injury. The employer shall also pay for treatment, instruction and training necessary for the physical, mental and vocational rehabilitation of the employee, including all maintenance costs and expenses incidental thereto.” (Ill. Rev. Stat. 1981, ch. 48, par. 138.8(a).)

From the language of the statute, it is clear that section 8(a) does not require vocational rehabilitation per se, but the statute provides that if vocational rehabilitation is ordered, the respondent is liable for the payment of the vocational rehabilitation.

In the instant case, although a finding was made by the arbitrator that the petitioner needed vocational rehabilitation, an order for rehabilitation was not entered. In the various cases cited by the respondent, either an order for rehabilitation was entered by the Commission, or the Commission, after hearing evidence on the matter, found that vocational rehabilitation was not necessary. Therefore, none of the cases cited by the respondent are dispositive of the issue presented here. Further, our research has not revealed any case where this precise issue has been raised.

We find that the Commission did not err in failing to enter an order for vocational rehabilitation under the circumstances presented here. Before entering an order for rehabilitation, the evidence must show that rehabilitation is appropriate. In making the determination of whether rehabilitation is appropriate, certain factors must be considered. The factors favoring rehabilitation include (1) that the employee’s injury caused a reduction in earning power and there is evidence rehabilitation will increase his earning capacity, (2) that the employee is likely to lose job security due to his injury, and (3) that the employee is likely to obtain employment upon completion of rehabilitation training. (Phillips Getschow Co. v. Industrial Comm’n (1988), 172 Ill. App. 3d 769, 527 N.E.2d 114; Connell v. Industrial Comm’n (1988), 170 Ill. App. 3d 49, 523 N.E.2d 1265.) Additional factors to be considered are the costs and benefits to be derived from the program; the employee’s work-life expectancy; his ability and motivation to undertake the program; and his prospects for recovering work capacity through medical rehabilitation or other means. (Phillips Getschow Co., 172 Ill. App. 3d 769, 527 N.E.2d 114; Connell, 170 Ill. App. 3d 49, 523 N.E.2d 1265.) The evidence presented here does not support that vocational rehabilitation would have been appropriate, as the record reveals the claimant was not amenable to rehabiliation. Additionally, there is no evidence that the claimant’s mental disability would permit him to be gainfully employed even if he were retrained in a new occupation, and in fact, the evidence presented mitigates against such a finding. Dr. Kysar testified that the claimant’s condition was of such a long-standing nature that it was doubtful that treatment would benefit the claimant. Therefore, while the claimant may be physically qualified to receive vocational rehabilitation, it is far from certain that his mental disability would allow him to return to gainful employment even with vocational rehabilitation.

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

Affirmed.

McCULLOUGH, P.J., and McNAMARA, WOODWARD, and STOUDER, JJ., concur.