author: JUSTICE DUNN

text:
    BRUCE HAGSHENAS, Plaintiff and Counterdefendant-Appellee and Cross-Appellant, v. ROBERT GAYLORD, JR., et al., Defendants and Counterplaintiffs-Appellants and Cross-Appellees.
    Second District
    No. 2—88—0840
    Opinion filed June 27, 1990.

      William E. Gottfred, of Reese & Reese, of Rockford (Bernard P. Reese, Jr., of counsel), for appellants.
    Roberta L. Holzwarth, of Holmstrom & Green, P.C., of Rockford (Richard D. Gaines, of counsel), for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Robert and Virginia Gaylord, and Imperial Travel, Ltd. (Imperial), appeal from the lower court’s determination of damages in their successful suit against Bruce Hagshenas for breach of fiduciary duty. The lower court found that damages were too uncertain and, therefore, ordered an equitable remedy requiring Hagshenas to forfeit his shares of Imperial stock to Imperial and pay court costs. The Gaylords argue that damages were not too uncertain to be awarded. Hagshenas has filed a cross-appeal contesting liability. He contends the court erred in finding he breached a fiduciary duty in establishing a competing business even though he had resigned as an officer and director of Imperial. For the reasons stated below, we affirm the finding of liability and reverse and remand the damage award.

This case was initiated on April 29, 1982, when Bruce Hagshenas (Bruce) sued for dissolution of Imperial based on the dissension and corporate deadlock between himself, a 50% shareholder, and Robert Gaylord (Robert) and Virginia Gaylord (Virginia), the other 50% shareholders. The Gaylords filed a counterclaim alleging breach of fiduciary duties and sought damages. The Gaylords filed on August 6, 1982, a motion for a temporary restraining order regarding the day-to-day operations of Imperial and for appointment of a receiver. On August 9, 1982, the trial court entered an order that enjoined the parties from interfering with each other in the business operation, entitled the parties to access to business records, required all checks to be signed by a Gaylord and a Hagshenas, and made procedures for handling the mail.

On October 2, 1982, Bruce and his wife, Barbara, resigned from Imperial as officers and directors. The following day they purchased a new agency and began competing with Imperial. On November 1, 1982, the Gaylords moved for a preliminary injunction to stop Bruce from competing with Imperial. On February 16, 1983, the court entered a preliminary injunction that ordered Bruce to deliver an irrevocable voting proxy of his stock and barred him from personally soliciting travel business from Imperial for one year.

In April 1983, the cause proceeded on Bruce’s amended complaint for dissolution and on the Gaylords’ amended complaint for damages for breach of fiduciary duty. On October 1, 1987, the trial court ruled Bruce failed to prove his case and found in favor of the Gaylords on their complaint for breach of fiduciary duty. The court found that damages were too inexact to be determined and therefore fashioned an equitable remedy, ordering Bruce to transfer his Imperial stock to Imperial to be held in constructive trust as treasury stock and voted on by the Gaylords. Bruce was also ordered to pay court costs.

The facts considered by the trial court consisted of evidence from the preliminary injunction hearing, the trial on the merits, and several written stipulations. Below is a summary of the relevant stipulations listed by the parties followed by other evidence relevant to Bruce’s appeal of liability. We will address the damage evidence later in the context of discussing the Gaylords’ appeal.

STIPULATIONS

(1) Imperial, an Illinois corporation, was purchased January 25, 1980, with all the outstanding shares divided equally between Bruce Hagshenas and Robert Gaylord. Robert later conveyed one-half of his shares to his wife, Virginia. The board of directors was as follows: Virginia, president; Bruce, vice-president and assistant secretary; Barbara Hagshenas (Bruce’s wife), secretary; and Robert, treasurer.

(2) Sales revenues for the 10 months ending July 31, 1982, were substantial, approximating $2 million.

(3) Imperial has been engaged in the travel agency business, a highly competitive industry where salespersons frequently establish and maintain personalized relationships with clients.

(4) Prior to October 2, 1982, Robert and Virginia were duly notified of a special meeting of the board of directors to be held on October 2, 1982, for the purpose of filling vacancies on the board, but they did not attend the meeting. Bruce and Barbara attended the meeting and submitted resignations from the board of directors to be effective immediately. Bruce also resigned as vice-president and assistant secretary.

(5) From prior to October 2, 1982, through the date of the execution of the stipulation, Bruce and Barbara have retained in their possession a key to the business office of Imperial.

(6) As of October 4, 1982, the following Imperial employees were engaged exclusively in sales: Cathy Detlof, Mary Jo Buthe, Michele Kling and Denise Oliver. Pamela Detlof was the office manager and had some sales responsibility. Gladys Lindsay was employed for bus tours only, and Rosemary Cleary was employed as a bookkeeper.

(7) On October 9, 1982, Pam Detlof resigned. Mary Jo Buthe submitted her resignation October 13, 1982, effective October 27, 1982. Cathy Detlof submitted her resignation October 15, 1982, effective October 29, 1982, and on October 26, 1982, Michele Kling submitted her resignation effective November 10,1982.

(8) On October 6, 1982, Bruce and Barbara Hagshenas placed a blind “help wanted” ad that ran October 8 through 11 seeking travel agents with corporate and pleasure travel experience.

(9) On October 12, 1982, Bruce and Barbara held a meeting with their attorney and Pamela Detlof, Mary Jo Buthe, and Cathy Detlof, in which Bruce announced that he and Barbara had acquired Fare-Way Travel Agency, Inc. They soon after changed the name to Superior Travel, Inc. (Superior). Bruce told them that Pamela Detlof had been hired to work for them and then offered work to Cathy Detlof and Mary Jo Buthe.

(10) Michele Kling has been hired by Superior. Denise Oliver submitted her resignation November 1, 1982, effective November 15, 1982. She was fired by Virginia Gaylord at noon November 4, 1982.

(11) Since resigning from Imperial, Bruce has solicited customers of Imperial and has secured enough of Imperial’s commercial customers to have a significant negative impact on Imperial’s sales and profitability now and within the immediate future. In connection with his solicitation of Imperial’s customers, Bruce made some or all of the following representations to some of the clients whose business he was soliciting on behalf of Superior: he was no longer involved in the direction of Imperial; he and his wife, Barbara, had opened a new travel agency; they had purchased new equipment; he could service their travel needs as cheap or cheaper than his competitors, including Imperial; Superior had hired the sales representatives who had serviced their accounts at Imperial; and he still retained an ownership interest in Imperial, but his partners or fellow shareholders were operating and managing its business.

(12) Bruce’s attorney, Richard Gaines, wrote the Gaylords’ attorney, Mike O’Brien, on October 1, 1982, and stated his client would agree to Imperial’s purchase of another travel agency if it would be used to allow the parties to each take separate offices. In the absence of a vote by the Gaylords for Imperial to acquire a new agency, his client would feel free to acquire the agency personally. That day, O’Brien wrote Gaines to state that his clients objected to Bruce obtaining personally any competing travel agency and would pursue a cause of action for breach of fiduciary duty. On October 4, 1982, Gaines wrote to O’Brien and stated that his clients resigned after the Gaylords did not come to the October 2, 1982, meeting in which his clients had hoped to work out the parties’ differences by discussing having Imperial purchase another travel agency. He also stated that his client, as a 50% shareholder of Imperial, opposed Imperial’s purchase of another travel agency. In a letter written October 6, 1982, by Bruce to the Gaylords’ attorneys, Bruce stated that, as he continued to own 50% of Imperial, he had a continued interest in its success. He outlined five specific areas of Imperial business and briefly stated how to service these areas.

TESTIMONY

The day-to-day oversight of the business was handled primarily by Barbara and Virginia. Barbara testified that she and Virginia were in the office from January to November 1980. She said Bruce worked on outside corporate sales. By May 1981, she and Virginia had many differences, and the husbands took over the day-to-day operations. She came back to the office in the fall 1981, and Virginia came back in February 1982. By March, everyone’s temper was flaring.

The parties produced a great deal of testimony covering the disputes that had developed between them. It is safe to say that, by spring 1982, the parties did not get along and did not trust each other. Below is an outline summary of the main disputes between the parties.

DISPUTES

(1) Mail Procedure — For a substantial period of time after the purchase of Imperial, Virginia was solely responsible for mail coming to the company. She opened a post office box and only she had the combination. Bruce testified he told the Gaylords he wanted an end to this procedure. He and his wife complained that the mail had not been received for a couple weeks. Bruce had the post office box combination changed without Virginia’s knowledge on two occasions.

(2) Company Records — Bruce testified Virginia was sensitive to questions about the company’s records and would not let anyone see records pertaining to commission checks. Virginia testified that the Hagshenases stopped sending them the weekly owners’ reports that had been routinely sent. Bruce and Barbara testified that these records were unnecessary because they merely reiterated already existing records.

(3) Access to Office — In March 1982, Virginia and Robert went to the office to look at some records and were ordered out of the office by Bruce. Bruce contends they were bothering employees and customers. Bruce called the police to remove them for trespassing. Bruce’s attorney came and apologized to the Gaylords. Bruce had the locks on the office changed twice without the Gaylords’ knowledge or approval. Barbara testified this was done to keep Virginia from taking records from the office.

(4) Bruce’s purchase of a pickup truck — Robert testified he told Bruce he disapproved of his idea to buy a pickup truck to replace the old car they were using to deliver tickets to customers. He said Bruce told him he wanted to get a pickup truck so he could use it for his own personal use. Bruce denied saying this, but the truck was purchased over the Gaylords’ objection.

(5) Motor Coach Business — The Gaylords disapproved of getting into the motor coach business, but Bruce went ahead and hired an employee to handle motor coach business exclusively.

(6) Employee Raises, Advertising, Reimbursement Expenses to Owners — Bruce testified he and his wife disagreed with the Gaylords on these subjects. Virginia stated she did not approve of employee raises.

(7) Threat by Bruce — Virginia testified that in February 1982 Bruce threatened that, if she and her husband did not sell their interest to them, he would sue for dissolution. Bruce denied this but admitted they had many disagreements.

(8) Cash Skim Operation — Barbara testified that all four directors were involved in a cash-skim operation involving commission checks and incoming cash. She stated Virginia would take large amounts of cash home with her. She saw Virginia give Bruce an amount of cash in Reno. She and Bruce testified they told the Gaylords they wanted to stop the operation on several occasions, and it was eventually stopped sometime in 1982. When Bruce was first asked about this by the Gaylords at trial, he was evasive and stated he did not know what was going on, but he had suspicions Virginia was skimming cash. In later testimony he admitted full knowledge and stated he was evasive earlier because he was surprised it was brought out. The Gaylords denied there was ever a cash-skim operation. Virginia stated she took cash to her home as part of an ongoing study of the cash receipts that was initiated after she discovered their first manager had been embezzling.

OTHER TESTIMONY

Bruce and Barbara testified they did not seek out a new agency until October 3, 1982, and they made an informal agreement on that day, a Sunday, to buy the agency. The sales representatives who left Imperial testified they learned of the Hagshenases’ resignations and purchase of a new agency after October 2, 1982. They were told not to transfer any accounts from Imperial to Superior. They were also told to give proper notice to Imperial and to offer to train any new personnel. Some of the sales employees testified they took with them to Superior their personal records they had kept on clients, including information of travel preferences and credit card numbers, but they did not take information stored on the company computer. Cathy Detlof stated she believed all the corporate clients the employees serviced at Imperial had come with them to Superior. Some of the sales employees stated they would not have stayed at Imperial after the Hagshenases resigned because they did not get along with Virginia.

Herman Johnson testified he was a commercial customer of Imperial’s when he was contacted by Bruce, who told him Superior had been formed to handle commercial accounts exclusively and Imperial would still handle pleasure trips. Bruce never said the two companies were competing; Johnson believed they were both part of the same company. Bruce also told him he had made a special effort to get almost an identical phone number for Superior. Jan Marty, Pauline Finkbiner, and Lorraine Prell, who also represented Rockford companies that did business with Imperial, testified Bruce made essentially the same representations to them.

Shirley Crocks testified as a former commercial client of Imperial’s. She stated Bruce told her he and his wife were resigning from Imperial and starting their own business. Theodore Klint and Charles Eck, also former clients of Imperial, testified Bruce told them he was starting his own separate business to compete with Imperial.

The Gaylords did not hire any replacements immediately after the Hagshenases resigned, nor did they attempt to solicit any business immediately after the resignations. Virginia explained that, with the employees gone, she did not have proper personnel to service clients and she did not think it would be fair to hire new employees while the dissolution suit was pending. By April 1983, the Gaylords had hired one qualified agent and had asked two close friends to work informally on sales.

BRUCE HAGSHENAS’ CROSS-APPEAL

Bruce argues the court erred in finding he owed a fiduciary duty to the Gaylords after he resigned as a director and officer of Imperial. He contends he was free to compete with Imperial once he resigned. Ordinarily, after a director or officer resigns from a corporation, he or she owes no fiduciary duty to that corporation. (Dangeles v. Muhlenfeld (1989), 191 Ill. App. 3d 791, 795-96; Voss Engineering, Inc. v. Voss Industries, Inc. (1985), 134 Ill. App. 3d 632, 638.) The Gaylords contend, however, that Bruce continued to owe a fiduciary duty similar to that of a partner since he continued to own half the stock of Imperial, a company that was essentially a close corporation.

In general, a mere owner of stock in a company does not owe a fiduciary duty to that company. The Business Corporation Act provides that “[a] holder of or subscriber to shares of a corporation shall be under no obligation to the corporation or its creditors with respect to such shares other than the obligation to pay the corporation the full consideration for which said shares were issued or to be issued.” (Ill. Rev. Stat. 1981, ch. 32, par. 157.23.) In contrast to the Business Corporation Act, the Close Corporation Act provides that, where the articles of incorporation provide that the business of the corporation shall be managed by the shareholders of the corporation rather than by a board of directors, shareholders shall be deemed to be directors for purposes of the Business Corporation Act, and shareholders shall be subject to all liabilities of directors. (Ill. Rev. Stat. 1981, ch. 32, pars. 1212(a)(2), (a)(3).) Bruce asserts that Imperial was not organized under the Close Corporation Act and does not fall under the Close Corporation Act definitions. The Gaylords have not argued otherwise. The record does not include the articles of incorporation or the shares of stock. Thus, we accept the assertion that Imperial is not a close corporation under the Close Corporation Act, and we do not apply this act to this case.

This conclusion does not, however, end our inquiry on the subject of a fiduciary duty owed by a 50% shareholder in a small corporation such as Imperial. The Close Corporation Act provides that its provisions “shall not be deemed to repeal, amend or modify any statute or rule of common law which is or would be applicable to any corporation which is not a close corporation as herein defined.” (Ill. Rev. Stat. 1981, ch. 32, par. 1216.) We believe that, though Imperial was not organized or registered as a close corporation under the Close Corporation Act, for all practical purposes it acted as a close corporation. In Galler v. Galler (1964), 32 Ill. 2d 16, 27, the supreme court defined a close corporation as “one in which the stock is held in a few hands, or in a few families, and wherein it is not at all, or only rarely, dealt in by buying or selling.” Imperial meets this test. Its stock was equally split between Bruce and the Gaylords, and there was no buying or selling of this stock. We also find it significant that the shareholders elected themselves directors and officers and participated in the day-to-day operations.

Therefore, though we do not apply the Close Corporation Act to this case, we will consider this case under common-law principles which have been applied to closely held corporations. In Illinois Rockford Corp. v. Kulp (1968), 41 Ill. 2d 215, the supreme court found that 50% shareholders of a company owed a fiduciary duty to each other similar to that of partners. In this case, plaintiff and defendant were each 50% shareholders of a small furniture company. The company fell on hard times, and defendant negotiated a sale of the company. He assured plaintiff they were both getting the same amount for their shares. It was clear, however, that defendant had negotiated a better deal for himself and had intentionally left plaintiff with the impression he was getting the same deal as defendant. (Kulp, 41 Ill. 2d at 218-21.) In finding defendant breached a fiduciary duty, the court first stated that it has consistently refused to set out the precise boundaries of whether a fiduciary duty exists. (41 Ill. 2d at 222.) It then stated:

“A fiduciary relation exists in all cases in which a confidential relationship has been acquired. The origin of the confidence is immaterial. It may be moral, social, domestic, or purely personal. [Citation.] In Tilley v. Shippee, 12 Ill. 2d 616, at page 624, we said: ‘Their decision to form and operate as a corporation rather than a partnership does not change the fact that they were embarking on a joint enterprise, and their mutual obligations were similar to those of partners.’ See also Helms v. Duckworth (D.C. Cir.), 249 F.2d 482; Sher v. Sandler, 325 Mass. 348, 90 N.E.2d 536.” (41 Ill. 2d at 222.)

Kulp demonstrates that, in a closely held corporation, the mere fact that a business is run as a corporation rather than a partnership does not shield the business venturers from a fiduciary duty similar to that of true partners.

Kulp cited Helms v. Duckworth (D.C. Cir. 1957), 249 F.2d 482, a case that explicitly held that shareholders in a closely held corporation owe a fiduciary duty to the other shareholders. In Helms, the court found that defendant, a 49% shareholder who had equal voting rights in a close corporation, misrepresented himself in negotiating an agreement with plaintiff, a 51% shareholder in the corporation. The court held that, in an intimate business venture such as this, the stockholders of a close corporation occupy a position similar to joint adventurers and partners. (Helms, 249 F.2d at 486.) The court continued:

“While courts have sometimes declared stockholders ‘do not bear toward each other that same relation of trust and confidence which prevails in partnerships,’ this view ignores the practical realities of the organization and functioning of a small ‘two man’ corporation organized to carry on a small business enterprise in which the stockholders, directors and managers are the same persons. A distinguishing characteristic of such a corporation is the absence of a division between the stockholder-owners and the director-managers, for the former either personally manage and direct the business or so dominate the directors as to render the latter agents. Yet the fiduciary capacity of directors and dominant or controlling shareholders is unquestioned. Pepper v. Litten, 1939, 308 U.S. 295, 306, 60 S. Ct. 238, 84 L. Ed. 281. We believe that the holders of closely held stock in a corporation such as shown here owe a fiduciary duty to deal fairly, honestly, and openly with their fellow stockholders and to make disclosure of all essential information. 249 F.2d at 486-87.

The supreme court of Massachusetts has also held that shareholders in a closely held corporation owe a fiduciary duty toward each other similar to that of partners. (Donahue v. Rodd Electrotype Co. of New England, Inc. (1975), 367 Mass. 578, 328 N.E.2d 505; see also Farnsworth, Recent Developments, Close Corporations: Donahue v. Rodd Electrotype Co. of New England, Inc., 367 Mass. 578, 328 N.E.2d 505 (1975), 61 Cornell L. Rev. 986 (1976).) The court stated in Donahue:

“Because of the fundamental resemblance of the close corporation to the partnership, the trust and confidence which are essential to this scale and manner of enterprise, and the inherent danger to minority interests in the close corporation, we hold that stockholders in the close corporation owe one another substantially the same fiduciary duty in the operation of the enterprise that partners owe to one another. In our previous discussions, we have defined the standard of duty owed by partners to one another as the ‘utmost good faith and loyalty.’ [Citations.] Stockholders in close corporations must discharge their management and stockholder responsibilities in conformity with this strict good faith standard. They may not act out of avarice, expediency or self-interest in derogation of their duty of loyalty to the other stockholders and to the corporation.” Donahue, 367 Mass, at 592-93, 328 N.E.2d at 515.

We find the positions stated in Kulp, Helms and Donahue persuasive in this case. In this case the facts demonstrate that, though Imperial was purchased as a corporation, it clearly was an enterprise closely resembling a partnership. Hagshenas and the Gaylords were not only equal 50% shareholders; they were the directors and officers of the company; they oversaw the day-to-day operations. A partner owes a duty to exercise the highest degree of honesty and good faith in the dealings and in handling of business assets, thereby prohibiting enhancement of personal interests at the expense of the interests of the enterprise. Jaffe Commercial Finance Co. v. Harris (1983), 119 Ill. App. 3d 136, 143.

We find Bruce, as a 50% shareholder in this closely held corporation, owed a fiduciary duty similar to a partner to Imperial and its shareholders. He violated his fiduciary duty when he opened a competing business and hired away all of Imperial’s employees. The sales employees were of great significance to Imperial’s success. It was obvious Imperial would lose the majority of its customers if the sales people left. This action clearly benefited Bruce at the expense of Imperial.

We are not persuaded that Bruce’s resignation as an officer and director relieved him of his fiduciary duty. We recognize that, after his resignation, Bruce was not involved in sales, management, or other Imperial day-to-day operations. By maintaining his 50% ownership interest, however, Bruce retained significant control over Imperial. Though the record does not contain the articles of incorporation or the bylaws, we presume Bruce maintained half the voting power of the corporation up until the time the court ordered him to file a voting proxy. He did not purport to give up this control when he resigned. After his resignation, he objected to Imperial buying a new agency, and, moreover, he continued his suit for dissolution.

In finding Bruce owed a fiduciary duty as a 50% shareholder in this closely held corporation, we recognize a significant difference between a shareholder of a closely held corporation and a shareholder of public stock. Unlike the holders of public stock, who can sell their stock when disagreements over management arise, shareholders in a small corporation do not usually have an available market to sell their shares. (Galler, 32 Ill. 2d at 27.) We find it implicit that people who enter into a small business enterprise, as in this case, place their trust and confidence in each other. Thus, we find support for finding a fiduciary duty from Kulp (41 Ill. 2d at 215), which held that a fiduciary relation exists in all cases in which a confidential relationship has been acquired. Bruce argues there can be no finding of trust and confidence in this case because the parties were openly hostile to each other by the time he resigned. The important point in time is not the time at which the parties’ differences became irreconcilable but, rather, the time in which they entered into the business relationship. We find no evidence of hostility or mistrust between the parties when they entered this business.

The fact that the parties were in disagreement when Bruce began competing with Imperial does not excuse his conduct. The parties, being equal shareholders, were at each other’s mercy. If there were problems that could not be resolved, then the proper course of action would have been to negotiate a sale or buy out of the shares or file for dissolution. We are aware that Bruce made an attempt to sell his shares and filed for dissolution. Until a final sale or order of dissolution, however, Bruce owed a fiduciary duty to Imperial. We also recognize the lower court denied Bruce’s suit for dissolution. We offer no opinion as to whether the trial court properly denied this relief since Bruce has not appealed this decision.

Finally, we have reviewed the other cases cited by the trial court and the parties in their briefs. Though these cases involve factual patterns similar to the instant case, we find that they are inapplicable to this issue because they either do not address or fail to address adequately the issue of whether a shareholder in a closely held corporation owes a fiduciary duty. For instance, in Zokoych v. Spalding (1976), 36 Ill. App. 3d 654, cited by the trial court, the court stated that equal 50% shareholders in a company were in effect engaged in a partnership and thereby owed each other a duty of good faith. (Zokoych, 36 Ill. App. 3d at 664.) The court also found, however, that defendant was an officer and thus owed a fiduciary duty to the corporation and to plaintiff as its shareholder. (36 Ill. App. 3d at 664.) Thus, Zokoych is significantly distinguished from the instant case. Likewise in Patient Care Services, S.C. v. Segal (1975), 32 Ill. App. 3d 1021, cited by the Gaylords, the court found a breach of fiduciary duty based on defendant’s status as an officer and did not address the fiduciary duty owed by a shareholder. In Smith-Schrader Co. v. Smith (1985), 136 Ill. App. 3d 571, cited by the Gaylords at oral argument, the court found liability for solicitation of employees based on the principle that an officer will be liable to the corporation after resignation for transactions completed after termination if they were founded on information acquired during the relationship. (Smith-Schrader Co., 136 Ill. App. 3d at 578.) The court held that since the officer’s relationship with the employees was established prior to resignation, the officer was liable for soliciting those employees. (Smith-Schrader Co., 136 Ill. App. 3d at 578.) The Gaylords did not raise this argument below. Thus, it is waived. Moreover, this court rejected the holding in Smith-Schrader Co. in Dangeles v. Muhlenfeld (1989), 191 Ill. App. 3d 791, 796. Finally, in Ellis & Marshall Associates, Inc. v. Marshall (1973), 16 Ill. App. 3d 398, cited by Bruce, in which the court found no liability against an officer and 35% shareholder of a small corporation who resigned and competed with his former company, the court did not address the issue of whether the former officer owed a duty as a shareholder.

In his next issue, Bruce contests the court’s findings that he breached his fiduciary duty as an officer and director prior to his resignation. The other findings found Bruce guilty of the following: (1) purchasing a pickup truck over the objection and without authorization of the Gaylords; (2) hiring employees without authorization; (3) failing to provide the Gaylords with the weekly owners’ reports; (4) changing locks on the business twice and the post office box without the knowledge or consent of the Gaylords; and (5) transferring bank deposits without the Gaylords’ approval.

We find no merit to Bruce’s challenge that these findings are against the manifest weight of the evidence. A reviewing court will not reverse the findings of the lower court unless they are against the manifest weight of the evidence. (Jaffe Commercial Fi nance Co. v. Harris (1983), 119 Ill. App. 3d 136, 142.) There was sufficient evidence to prove all the above facts. Nor is there merit to Bruce’s argument that these findings do not demonstrate a breach of fiduciary duty. Clearly, these acts do not demonstrate conduct of good faith and honesty.

Bruce also argues that his conduct is defensible given the conduct of the Gaylords and their ongoing disputes. We are not persuaded. We find no defensible reason for Bruce to purchase a pickup truck over the Gaylords’ objection when the business had no need for a pickup truck. There is no defensible reason for twice changing the locks on the office. Barbara testified this was done because Virginia was taking files out of the office after work. Yet, there is no evidence that Virginia, as president of the company, should not have been taking these files. We find no defensible reason for failing to send weekly reports to the Gaylords. We find the fact that Virginia had sole control of the mail does not excuse Bruce’s conduct of changing the post office box twice without the knowledge of the Gaylords. Finally, we find no defensible explanation for Bruce transferring the Rock River Savings account, an account that only Virginia signed on, into a certificate of deposit at a higher interest rate without Virginia’s knowledge. That the account gained higher interest does not mitigate the fact that it was done without the knowledge or approval of the person who had signed on to the account.

Arguing that the doctrine of clean hands applies, Bruce also contends that the Gaylords cannot complain of his conduct because the Gaylords were involved in skimming cash from the company. We find it unnecessary to consider this contention because, assuming arguendo that a cash-skimming operation did exist, it is not in any way connected to the issues litigated. The doctrine of clean hands will only be applied where the alleged misconduct is connected to the matter in litigation. (Patient Care Services v. Segal (1975), 32 Ill. App. 3d 1021, 1033.) The Hagshenases stated that they had full knowledge of the scheme and participated in it. Though they stated they at times voiced their objection, they also testified that the scheme was stopped. They did not relate in their testimony how this concluded scheme had anything to do with the other conduct that occurred. Thus, it is not relevant to the litigation.

Since we have found that Bruce is also liable for breaching a fiduciary duty as a shareholder, we need not consider his argument that the above conduct does not alone support the relief ordered by the trial court.

GAYLORDS’ APPEAL

The Gaylords contend the trial court erred in only awarding them Bruce’s shares in the company. The trial court found damages were too uncertain to be awarded and devised an equitable remedy, ordering Hagshenas to turn over his shares and pay court costs. The Gay-lords contend the evidence was sufficient to prove Imperial’s worth on October 2, 1982, and, thus, damages were not too uncertain to be awarded.

Each party presented expert testimony to prove the worth of Imperial on October 2, 1982. Milton Miegs, a chartered financial analyst who has valued approximately 60 businesses, testified for the Gay-lords that the company had a value of $438,100 on or about October 2, 1982. Douglas Koch, a financial appraiser who has appraised 30 to 35 businesses, testified for Hagshenas that the company had a cash-flow value of $80,300 but had a liquidation value of $101,000 on October 2, 1982. Both analysts testified they used a similar cash-flow method of valuation. The other two accepted methods of valuation, comparison of similar public market companies and comparison of a similar agency recently sold, could not be used in this case. Miegs and Koch explained the cash-flow method involves looking to the past performance of the company and the perception of the industry as a whole to arrive at a reasonable projection of future income. This amount is factored against a discount value, a value designated to reflect the perceived risk of the business, to arrive at present value. Koch explained the cash method determines a rate of return which a prudent investor would require to invest in the business.

Both analysts looked to the company’s financial statements to determine its past history. Below is a chart of Miegs’ tabulations from the financial statements. Koch’s tabulations were similar. (Koch’s minor deviations are not relevant to the analysts’ differences).

Sales Gross Profit Pretax Profit

1980 $1,343,600 $157,300 $40,600

1981 $2,783,100 $249,000 $110,300

1982 $2,421,900 $235,600 $35,000

The analysts differed greatly on how they perceived the past history of the company. Miegs said since the company had experienced such a large increase in earnings from 1980 to 1981, the average of the three years would provide an accurate account of the past history. Koch, on the other hand, said that because the last three years were so inconsistently up and down, one should only look to the earnings from 1982. The average earnings over the three years were higher than the earnings for 1982. Thus, Miegs determined a higher history of earnings than Koch.

The analysts also differed strongly on their estimation of future income. Miegs decided the most reasonable projection of future growth showed the company’s income would grow equal to inflation estimated at 5% a year. Koch, to the contrary, did not estimate future growth because he felt it was too uncertain. Thus, Miegs’ calculation used an income figure equal to 5% growth in five years, while Koch’s calculation used only the income figure for 1982. Furthermore, Koch adjusted the 1982 income figure by subtracting $17,000. He stated this was necessary to reflect the sales work done by Bruce, who did not receive compensation for his work. Miegs disagreed with this. He stated if someone had been hired at a salary to do Bruce’s work, one could assume sales would have been higher.

Next, the analysts vastly disagreed on the appropriate discount factor, which is the factor equivalent to the riskiness of the company. They both agreed that deregulation of the airline industry would make the travel agency industry more competitive and thus more risky. They also agreed that Imperial was a significant force in the Rockford market. Miegs stated it had 10% of the market. Koch estimated it was one of the top 10 agencies out of 30. They differed greatly, however, on whether Imperial would be able to withstand the competition. Miegs stated Imperial was well situated because it was well automated with computers and had experienced travel agents. Koch thought Imperial’s future was much less certain. Koch noted the depressed Rockford area and also found significant that Imperial had lost its biggest corporate account in 1981, as well as two other significant corporate accounts in 1982. Koch found that the recent presence of two large Chicago agencies would pose greater difficulties for Imperial.

The analysts also differed on the use of a study that determined the risk of investing in small corporations. Koch believed that Miegs had failed to add a factor that reflected the added riskiness of smaller enterprises. Miegs did not understand how Koch arrived at this added factor. As a result, Miegs used a discount factor of 15% while Koch used a discount factor of 25%. The significance of these numbers is that the higher the number, the lower the estimated value of the company, hence, Miegs’ opinion that Imperial had an October 2 value of $438,100 and Koch’s opinion that it had a value of $80,300 at this time.

Though disagreeing as to its value on October 2, 1982, both analysts agreed that Imperial’s value as of February 28, 1983, was only liquidation value because sales had dropped substantially. Miegs estimated this value to be between $50,000 and $70,000. Koch estimated the value at $128,000. He stated the liquidation value went up since October 2, 1982, because the company had paid off some significant debts.

A trial court’s determination of damages will not be reversed unless it is contrary to the manifest weight of the evidence. (Zokoych v. Spalding (1980), 84 Ill. App. 3d 661, 668.) The evidence the Gaylords presented goes to the fair-market value Imperial would have sold for before Hagshenas resigned. The Gaylords did not offer evidence to prove damages strictly on Imperial’s lost profits. There was no testimony about Superior’s profits after October 2, 1982. The Gaylords’ expert, Miegs, however, took estimated future profits into account in arriving at Imperial’s cash value on October 2. Thus, in our analysis we look to the standard our supreme court set out for awarding lost profit damages in Midland Hotel Corp. v. Reuben H. Donnelley Corp. (1987), 118 Ill. 2d 306, 315-16:

“In order to recover lost profits, it is not necessary that the amount of loss be proven with absolute certainty. (Vendo Co. v. Stoner (1974), 58 Ill. 2d 289, 310.) Being merely prospective, such profits will, to some extent, be uncertain and incapable of calculation with mathematical precision. As such, ‘[a] recovery may be had for prospective profits when there are any criteria by which the probable profits can be estimated with reasonable certainty.’ (Barnett v. Caldwell Furniture Co. (1917), 277 Ill. 286, 289.) However, recovery of lost profits cannot be based upon conjecture or sheer speculation. (Weiland Tool & Manufacturing Co. v. Whitney (1969), 44 Ill. 2d 105, 118.) It is necessary that the evidence afford a reasonable basis for the computation of damages; the defendant’s breach must be plainly traceable to specific damages. Unless plaintiff can prove that the breach was the cause of lost profits, he is entitled to nominal damages only. (See Harman v. Washington Fuel Co. (1907), 228 Ill. 298, 301; 11 S. Williston, Contracts sec. 1345 (3d ed. 1968).) And since lost profits are frequently the result of several intersecting causes, it must be shown with a reasonable degree of certainty that the defendant’s breach caused a specific portion of the lost profits.”

The trial court had before it the vastly different opinions of two financial analysts. We do not find, however, that this fact makes the evidence too uncertain. We believe the trial court’s decision that the evidence was too uncertain is against the manifest weight of the evidence. Both experts gave an opinion that was made according to accepted financial practice. While their opinions have some uncertainty, we do not find that they are sheer speculation. Their opinions are based on sound criteria. They reviewed Imperial’s past history for three years. They reviewed the local market and the national market for travel agencies, and they reviewed the riskiness of the small corporation market. We find the evidence of Imperial’s value on October 2, 1982, and the evidence of Imperial’s reduction in value by February 28, 1983, provided a reasonable basis for the trial court to award damages. The conclusion of the trial court that damages were too uncertain was error.

Bruce argues that damage to Imperial cannot be attributed to Superior. This is without merit. The evidence clearly shows that Imperial lost most of its customers to Superior as a result of the Imperial sales people going to Superior.

We reverse the trial court’s decision ordering Bruce to turn over his shares and pay court costs and remand for a new decision on damages based on the evidence presented. We add that we find damages based on the reduction in Imperial’s value to be an adequate remedy at law in this case. Therefore, we need not consider the Gaylords’ argument for a constructive trust on Superior’s profits. A constructive trust is an equitable remedy, and an equitable remedy will not be imposed when there is an adequate remedy at law. Graham v. Mimms (1982), 111 Ill. App. 3d 751, 769.

The Gaylords next argue the trial court erred in not awarding attorney fees for vexatious pleading. The Gaylords contend that Bruce’s action for dissolution lacked good faith. We disagree. The parties’ disagreements are well established. In light of these disagreements, we find the suit was made in good faith.

The Gaylords also argue the court erred in not imposing punitive damages. Punitive damages may be awarded where the defendant’s actions are accompanied by aggravated circumstances such as wantonness, wilfulness, malice, fraud, oppression, violence and recklessness. (Zokoych v. Spalding (1976), 36 Ill. App. 3d 654, 671.) A trial court’s decision as to whether to award punitive damages will not be reversed absent an abuse of discretion. (Zokoych, 36 Ill. App. 3d at 671.) The trial court’s decision not to award punitive damages was not an abuse of discretion. Though Bruce’s conduct is not condoned, it does not warrant punitive damages in this case. We note that Bruce first made an effort through his attorney to resolve the problems between the parties before deciding to resign and open a competing business.

In summary, we affirm the trial court’s decision on liability, and we reverse the trial court’s award of equitable damages and remand the cause for a determination of damages based on the evidence.

Affirmed in part; reversed in part and remanded.

UNVERZAGT, P.J., and McLAREN, J., concur.


source: Caselaw Access Project

author: JUSTICE INGLIS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT C. THOMAS, Defendant-Appellant.
    Second District
    No. 2—89—0856
    Opinion filed June 26, 1990.

      William P. O’Connor, of Orland Park, and James J. Flynn, of George Patrick Lynch, Ltd., and Edwin C. Thomas III and David M. Novak, both of Bell, Boyd & Lloyd, both of Chicago (George P. Lynch, of counsel), for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Robert Thomas, was charged by complaint with driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501(a)(2)) and driving in the wrong lane (Ill. Rev. Stat. 1987, ch. 95½, par. 11—701). Following a jury trial, defendant was found guilty of both offenses and was sentenced to one year’s probation and 60 days in the county jail, and was fined $550 plus court costs. Defendant filed a timely notice of appeal.

On appeal, defendant contends that: (1) the jury was improperly allowed to consider material which had not been admitted into evidence; (2) the denial of his motion for a substitution of judge deprived him of a fair trial; (3) his motion to suppress should have been granted because his arrest was without probable cause; (4) his fifth and sixth amendment rights were violated when he was deprived of his right to consult with his attorney; (5) the trial court erred in limiting cross-examination of a police officer and in allowing hearsay and irrelevant testimony into evidence; (6) the jury instructions were improper; and (7) the State’s Attorney’s comments at trial were improper. We reverse and remand.

The following facts were adduced at defendant’s trial. Officer Mark Keller of the Hinsdale police department was the State’s first witness. Officer Keller testified that he received a radio dispatch on December 23, 1987, at approximately 12:07 a.m., that an intoxicated driver was driving a black Cadillac with license plate number JTL 2359 (we note here that the plate number was also referred to as JBL 2359 at other times during the trial). A few minutes later, Officer Keller observed the vehicle in question in a residential neighborhood in Hinsdale. Keller began to follow the vehicle and noticed that it was being driven down the center of the street. The automobile also “cut the corner” when making a left turn and continued to drive down the center of the street. Officer Keller stated that there were no cars parked on either side of the street and no obstructions which would require the vehicle to be driven in the center of the street.

Shortly thereafter, Officer Keller activated his overhead lights to stop the Cadillac. Officer Keller followed the vehicle, and both automobiles pulled into a private driveway. Keller later identified defendant as the driver of the automobile. Keller stated that defendant used the top of the car door frame to “pull himself up and steady himself” as he got out of the car. Keller noticed “a strong odor of alcoholic beverage” on defendant’s breath and requested defendant’s driver’s license three times before receiving it. Officer Keller then requested defendant to recite the alphabet as a part of a field sobriety test. Defendant’s response contained only 14 letters. Defendant then refused to perform any other tests and attempted to get his driver’s license out of Officer Keller’s hand. Defendant was then placed under arrest, handcuffed, placed in the squad car, and transported to the police station.

At the station, defendant was read a “warning to motorist” and was requested seven different times to take a breathalyzer test. Defendant refused to take a breathalyzer test. Officer Keller stated that defendant called each of the officers at the station several vulgar and insulting names, and he described defendant as “cocky.” Defendant also asked to speak with his brother, an attorney, on several occasions. Officer Keller further testified that a videotape was taken of defendant during his stay at the police station. The tape was admitted into evidence and played for the jury.

On cross-examination, Officer Keller described the residential streets in question as “approximately 30 feet wide” without a painted line in the center to divide the street. He stated that the streets could accommodate up to three cars, including any parked cars. It was Officer Keller’s opinion that two cars moving in opposite directions could not pass each other if there were cars parked on each side of the street. In addition, Officer Keller stated that there was snow on the ground from two previous snowfalls, but the roads had been cleared and were dry on the night in question.

Officer Keller also indicated that it was standard procedure to remove car keys from a person in custody, but the procedure was not complied with in this case. Furthermore, Officer Keller stated that he had previously arrested 50 persons for DUI, with 40 of them agreeing to take a breathalyzer test. On redirect examination, Keller stated that 38 of the 40 arrestees who took the test failed the test in that they “blew .10 or more.”

Officer Mark Mandarino of the Hinsdale police department testified that he assisted Officer Keller in arresting and handcuffing defendant on the night in question. Officer Mandarino stated that defendant was not cooperating with Keller and told the officers “[l]et’s be civilized about this.” Mandarino further stated that he smelled a “strong odor of alcohol” on defendant’s breath during the arrest. Officer Mandarino then returned to the Hinsdale police station and observed defendant in the “booking room.” It was Mandarine’s opinion that defendant was under the influence of alcohol. He based his opinion on defendant’s “slurred and confused” speech, the odor of alcohol, and by the derogatory comments defendant made to the police officers.

On cross-examination, Officer Mandarino testified that he could not tell how much defendant had to drink based on the odor of alcohol. In addition, he did not see defendant stagger or sway on the night in question. He also stated that there was “deep snow” on the ground around the driveway where defendant’s car was parked.

Officer Richard Birdsong of the Hinsdale police department testified that he was the supervising officer on the night in question. Officer Birdsong stated that he received a phone call from defendant’s brother, an attorney, requesting the police to come and remove defendant’s car from the driveway so that he could come down to the station and represent defendant. Officer Birdsong asked defendant for the car keys, but defendant refused to give them to him, stating that he didn’t trust the police officers. During this conversation, Birdsong noticed a “strong odor” of alcohol on defendant’s breath. Following another phone call from defendant’s brother; defendant gave Officer Birdsong the keys to the car so that it could be moved. It was Officer Birdsong’s opinion that, based on defendant’s slurred speech, abusive language, and odor of alcohol on his breath, defendant was under the influence of alcohol.

Following Officer Birdsong’s testimony, the State rested. Defendant’s motion for a directed verdict was denied.

Defendant then testified that he was a licensed attorney who no longer practiced law but instead was the chief executive officer and president of a steel company. Defendant stated that he arrived at work at approximately 8 a.m. on December 22, 1987, and worked the entire day. At approximately 4 p.m., defendant had a meeting with Bob Wasz, a marketing consultant to the steel company. The meeting lasted until approximately 8 p.m., and defendant and Wasz drove, in separate cars, to a restaurant to meet with defendant’s brother for a dinner meeting. Defendant stated that his brother was a partner in the Chicago law firm of Bell, Boyd and Lloyd and acted as corporate counsel for the steel company. After his brother arrived at the restaurant, the three men ate large dinners and shared a bottle of white wine. Defendant stated that he left the restaurant around 11:30 p.m. and had no other alcoholic beverages to drink other than two glasses of wine.

Defendant further testified that he drove his brother to the train station in Hinsdale to get his brother’s car. Defendant stated that he then drove to his brother’s house in Hinsdale, following his brother. Defendant recalled snow being piled up on the curbs of the streets, although the roads themselves were plowed. However, there were cars parked on both sides of the streets, forcing defendant to drive down the center of the street. As defendant got close to his brother’s house, he noticed a Hinsdale police department squad car proceeding directly behind him. As defendant began to pull into his brother’s driveway, the police car activated its overhead lights. Defendant stated that he stopped at all stop signs and used his directional signals when making any turns. In addition, defendant was observing the speed limits at all times.

After entering the driveway, defendant stopped his car, turned off the motor, and got out of the car. Defendant stated that he did not have any trouble getting out of the car or walking on the driveway. Defendant met Officer Keller in the driveway and asked why he was being stopped, but Officer Keller refused to tell him and only requested to see his driver’s license. Defendant gave his license to Officer Keller and was later placed under arrest. Defendant stated that he did not perform any tests and did not recite the alphabet to Officer Keller. Defendant was searched, and the officer attempted to handcuff him, at which defendant replied, “[l]et’s be civilized about this.” Officer Keller then grabbed defendant’s arm and twisted it behind his back, causing defendant pain. After being handcuffed, defendant was thrown into the squad car headfirst. Officer Keller then removed the keys to defendant’s car and transported defendant to the police station.

On cross-examination, defendant agreed with the State’s Attorney that he previously testified, at a suppression hearing on August 22, 1988, that he had “several” glasses of wine to drink on the evening in question. In addition, defendant again denied using his car door to balance himself as he got out of the car and also denied trying to take his driver’s license out of Officer Keller’s hand. Defendant also admitted to having a speech impediment and using “insulting” language on the night in question.

On redirect examination, defendant testified that he used the “uncomplimentary” language because he was very upset at the way the police officers treated him. In addition, defendant stated that he was “nervous” and “scared.”

Edwin Thomas (Thomas), defendant’s brother, testified that he was an attorney who represented defendant personally and also served as corporate counsel for the steel company. Thomas stated that he met with defendant and Wasz on December 22, 1987, at approximately 9 p.m. for a dinner meeting. The three men ate dinner, shared a bottle of wine, and discussed business matters. Thomas left the restaurant with defendant at approximately 11:30 p.m., and defendant drove them to the Hinsdale train station to pick up Thomas’ car. Thomas stated that he drove home after picking up his car, with defendant following right behind him in his own car.

Thomas described the road conditions as clear of snow, although there was snow piled up on the curbs. There were cars parked on both sides of the streets, thus causing both Thomas and defendant to drive down the center of the street. There was no other traffic on the streets at that time.

Thomas testified that he noticed a squad car with its headlights “blinking” immediately behind defendant’s car as they pulled into Thomas’ driveway. Thomas approached defendant and Officer Keller and told Keller that defendant was one of Thomas’ clients. Keller then placed handcuffs on defendant and threw him into the squad car face first. Thomas “got excited” and started to shout at Keller. However, Keller ignored Thomas, removed the keys from defendant’s automobile, and transported defendant to the police station. Thomas testified that he asked Keller to move defendant’s car so that he could get out of his driveway, but Keller refused to do so.

Thomas further testified that he made several telephone calls to the Hinsdale police department in an attempt to get defendant’s car removed from the driveway. The car was removed approximately one hour after the initial telephone call. Thomas stated that he then went to the police station to converse with defendant. It was Thomas’ opinion that defendant was not intoxicated on the night in question.

On cross-examination, Thomas testified that he did not hear the conversation between defendant and Officer Keller and thus did not know if Keller asked defendant to recite the alphabet. Thomas also stated that defendant had “several” glasses of wine to drink that night.

Robert Wasz testified that he was a consultant for defendant’s steel company and met with defendant and defendant’s brother on December 22, 1987, for a dinner meeting. Wasz stated that the three men ordered a bottle of wine to go along with their dinner. Wasz left the restaurant around 11:15 p.m. It was his opinion that defendant was not under the influence of alcohol on the night in question.

The defense rested following Wasz’s testimony. The State recalled Officer Mandarino, who testified that neither he nor Officer Keller struck defendant or pushed him into the hood or trunk of any vehicle. In addition, he stated that defendant was not thrown into the squad car “face down.”

The State also recalled Officer Birdsong, who testified that defendant never complained about the way Officer Keller physically handled defendant during the arrest. The State then rested its case.

Following closing arguments, the jury returned guilty verdicts on both charges. Defendant was sentenced to one-year probation, 60 days’ in the Du Page County jail, 100 hours of public service, and was fined $500 plus court costs on the DUI conviction. He also received a $50 fine on the improper lane usage charge. Defendant filed a timely notice of appeal.

VIDEOTAPE EVIDENCE

On appeal, defendant first contends that the jury was improperly allowed to consider material during its deliberations even though the material was never admitted into evidence at trial. During its deliberations, the jury was permitted to view a videotape of defendant made at the Hinsdale police station. However, the tape, which is a part of the record on appeal, also contained two other DUI arrests at the Hinsdale police station, with neither arrest involving defendant nor in any way associated with the events of the case at bar.

Defendant argues that he was “gravely prejudiced” by these two unrelated incidents in that both of the other persons on the videotape took performance and breathalyzer tests, while defendant did neither. Defendant notes that both the State’s Attorney and Officer Keller were aware of the other episodes on the tape, while defendant was not. Defendant argues that the effect of the prejudice in this case requires reversal. We agree.

Defendant correctly points out that it is a well-established rule that it is error to permit a jury to take exhibits into the jury room if they have not been introduced into evidence. (People v. Holcomb (1938), 370 Ill. 299, 300; People v. Hanson (1980), 83 Ill. App. 3d 1108, 1111.) The State argues that the trial court is permitted to allow exhibits to go into the jury room if they have been admitted into evidence and are relevant to any material issue in the case. (People v. Arnold (1985), 139 Ill. App. 3d 429, 435; People v. Watson (1982), 107 Ill. App. 3d 691, 696.) We agree with the State that the trial court properly allowed the jury to view the videotape episode of defendant at the police station because it was properly admitted into evidence and was relevant to the material issue in the case. However, the two other episodes on the tape had not been introduced into evidence at trial and were not relevant to any issue in the case. Thus, it was error for the jury to view the videotape of the two unrelated arrests.

Having determined that it was error, we must next decide whether the error resulted in substantial prejudice to defendant to warrant a new trial. We note that not every instance in which unauthorized information reaches the jury results in reversible error. (People v. Holmes (1978), 69 Ill. 2d 507, 519.) Only when a defendant is prejudiced is reversal required. People v. Palmer (1984), 125 Ill. App. 3d 703, 711.

We agree with defendant’s contention that he was prejudiced by the two unrelated episodes contained on the videotape. Episode one on the videotape shows a woman who appears to be intoxicated (she failed the “fínger-to-nose” test and also failed to properly recite the alphabet, with approximately 10 to 14 letters being audible) and was obviously nervous. She cooperated fully with the police officers, took the breathalyzer, and recorded a .22 reading. The woman told the officers that she had two or three “lite” beers to drink, after which much laughter could be heard in the background.

Episode two involved a young man (approximately 20 years old) who also cooperated with the police, agreeing to take sobriety and breathalyzer tests (with a .12 reading). The officer told the man that the offense was not very serious and that he would probably receive court supervision as a result. Thereafter, the taping of defendant began. The jury was able to see defendant not cooperating with the police and using several derogatory terms to describe the officers. In addition, defendant did not perform any sobriety tests and did not take a breathalyzer.

We find that defendant was prejudiced by the jury viewing these two unrelated episodes for several reasons. Both of the other arrestees took performance and breathalyzer tests, while defendant did not. Both arrestees were cooperative with the officers, while defendant was not. Most importantly, the jury was given the impression, based on the comments made during the second nonrelated arrest, that a DUI arrest was not very serious. This minimization of a DUI arrest, which is what defendant was also charged with, worked to defendant’s detriment in that the seriousness of the offense was called into question.

It is our opinion that the submission of the videotape to the jury, which contained material not introduced into evidence at trial, resulted in reversible error in this case. We therefore reverse defendant’s convictions and remand the cause for a new trial. Since we have determined that this case must be retried, we will address defendant’s other contentions on appeal as they may arise again upon retrial of this case.

SUBSTITUTION OF JUDGE

Defendant next contends that his motion for a substitution of judge should have been granted and the denial of the motion deprived him of a fair trial. Defendant filed the motion nearly 15 months after the commencement of the case and seven months after the trial court ruled in favor of the State on defendant’s motion to suppress. The motion was filed pursuant to section 114—5(d) of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 114—5(d)). Section 114—5(d) of the Code provides, in pertinent part:

“In addition to the provisions of subsections (a), (b) and (c) of this Section the State or any defendant may move at any time for substitution of judge for cause, supported by affidavit. Upon the filing of such motion a hearing shall be conducted as soon as possible after its filing by a judge not named in the motion; provided, however, that the judge named in the motion need not testify, but may submit an affidavit if the judge wishes.” (Ill. Rev. Stat. 1987, ch. 38, par. 114—5(d).)

Given that defendant alleged the actual prejudice of the trial judge, the motion was based on “cause” and was thus timely filed under this section of the Code.

In the motion, defendant alleged that Judge Telander had been the chief of the criminal division of the Du Page County State’s Attorney’s office and had supervisory authority over the prosecution of defendant’s case. Defendant indicated that he was unaware of Judge Telander’s previous relationship with the State’s Attorney’s office. In addition, defendant stated that Judge Telander had “serious questions” about the veracity and credibility of defendant and defendant’s brother after denying defendant’s motion to suppress evidence. Judge Telander then transferred defendant’s motion for substitution of judge to Judge Galium for a hearing.

On May 22, 1989, a hearing was held on the motion, at which the State stipulated to the above statements and also added that Judge Telander’s supervisory authority over defendant’s case lasted for approximately six months. After hearing arguments on the motion, Judge Galium denied the motion. Judge Callum determined that Judge Telander had no actual involvement in the prosecution of defendant’s case, and, hence, there had been no showing of actual prejudice.

Defendant argues that Supreme Court Rule 63(C)(1)(b) (113 Ill. 2d R. 63(C)(1)(b)) required Judge Telander to recuse himself from presiding over the trial in this case. We disagree. Rule 63(C)(1)(b) provides:

“C. Disqualification.
(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where * * *
(b) he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it.” 113 Ill. 2d R. 63(C)(1)(b).

Other courts in this State have been faced with similar questions concerning the propriety of a trial judge presiding over a trial in which he or she had some role in the prosecution or defense of the case. Recently, our supreme court determined, in People v. Del Vecchio (1989), 129 Ill. 2d 265, that a judge is not required to recuse himself anytime he has “knowledge of, contact with, or an interest” in the case over which he is presiding. (Del Vecchio, 129 Ill. 2d at 277.) In Del Vecchio, the court noted that the trial judge was a State’s Attorney during a previous case involving the defendant. The involvement was limited to assigning the case to another attorney and agreeing with the defendant’s request to expedite the indictment. The court stated that the trial judge never acted “as counsel” in the defendant’s case and that the defendant failed to show sufficient prejudice or bias of the judge. Thus, recusal was not required. 129 Ill. 2d at 276-78.

Several appellate court opinions have also dealt with this issue. In People v. Lopez (1989), 187 Ill. App. 3d 999, the defendant alleged that the trial judge was associated with a law firm which represented the defendant in a different case. However, the trial judge did not actually represent the defendant, but instead a partner in the law firm did so. The appellate court determined that this relationship did not suggest any actual involvement in the defendant’s previous case such that recusal would be necessary. Lopez, 187 Ill. App. 3d at 1009-10.

Furthermore, in People v. Lipa (1982), 109 Ill. App. 3d 610, the court noted that the trial judge was not required to recuse himself in the case even though he approved a subpoena in his role as a supervising State’s Attorney in connection with the offense over which he was presiding. (Lipa, 109 Ill. App. 3d at 612-13.) The court noted that the judge did not actively participate in the case. (109 Ill. App. 3d at 612.) Likewise, in People v. Burnett (1979), 73 Ill. App. 3d 750, the court determined that the trial judge’s former role as a supervising State’s Attorney, without any actual involvement in the prosecution of the case, would not require him to recuse himself from the case because he did not act “as counsel” in the case. Burnett, 73 Ill. App. 3d at 754-55.

Defendant correctly points out that this court, in People v. Austin (1983), 116 Ill. App. 3d 95, vacated the trial court’s order because the trial judge “acted as counsel” in the case. The judge in Austin represented the defendant at her preliminary hearing and had thus established an attorney-client relationship vis-a-vis the case at issue. (Austin, 116 Ill. App. 3d at 99.) The court noted that the mere representation of the defendant, even though brief, was sufficient to require the trial judge to recuse himself from the case. 116 Ill. App. 3d at 100.

We find Austin distinguishable from the case at bar in that Austin involved the trial judge’s actual representation of the defendant. In the present case, the trial judge’s prior relationship to the case, if any, came as a result of his supervisory position in the State’s Attorney’s office. We find this distinction to be crucial in this case and believe that Lopez, Lipa, and Burnett support our decision that Judge Telander was not required to recuse himself from this case.

We further reject defendant’s contention that Judge Telander had a “personal bias or prejudice” against him in this case. Defendant argues that Judge Telander stated that he had “serious questions” about the credibility and the veracity of defendant and defendant’s brother after denying defendant’s motion to suppress. Defendant claims that People v. Chatman (1967), 36 Ill. 2d 305, supports his claim.

In Chatman, the supreme court granted the defendant a new trial based on an “ineffective assistance of counsel” argument. The defendant was charged by two indictments for rape. The defendant was convicted, in a bench trial, based on the charge in the first indictment. The trial judge stated that he had “no doubt in [his] mind” concerning the defendant’s guilt, noting “[h]ow could there be with that kind of feeble, putrid alibi?” (Chatman, 36 Ill. 2d at 307.) The same judge, again without a jury, found the defendant guilty of a similar rape in the second trial. At no time did defense counsel move for a change of venue before the second trial, even though the defendant had an “absolute right” based on the trial judge’s prejudice against him. (36 Ill. 2d at 309.) The supreme court ruled that the defendant did not receive a fair trial based on his attorney’s inadequate representation. 36 Ill. 2d at 309.

We disagree with defendant’s argument that Chatman controls the disposition of this issue in our case. Unlike Chatman, our case involved the trial court’s ruling on defendant’s motion to suppress and did not involve a complete trial with a verdict. Were we to agree with defendant’s argument, a trial judge would rarely, if ever, be able to preside over a trial in a case in which the judge ruled against the defendant on a motion to suppress. Furthermore, both trials in Chat-man were conducted without a jury, while defendant in the present case was tried by a jury. We note that in the case at bar the trial court’s comments were limited to credibility and not defendant’s guilt or innocence. We fail to find any actual prejudice in this case, unlike that found in Chatman, and thus hold that Judge Telander was not required to recuse himself from presiding over defendant’s trial.

MOTION TO SUPPRESS EVIDENCE

Defendant next contends that his motion to suppress evidence should have been granted because his arrest was without probable cause. Defendant argues that he was observing all traffic laws before he was stopped and thus Officer Keller had no probable cause to pull him over.

At the suppression hearing, Officer Keller testified that he received a radio dispatch indicating that a Cadillac with license JBL 2359 was being driven recklessly. Keller located the Cadillac approximately four minutes later and began to follow it through the streets of Hinsdale. The Cadillac, later identified as defendant’s automobile, proceeded down the center of the street, even though there were not any cars parked on the road. Keller then saw defendant make a left turn, nearly hitting the left-hand curb with the automobile’s tires. Shortly thereafter, Keller activated the overhead lights on his squad car and stopped defendant.

Defendant testified at the hearing that he observed all traffic laws on the night in question. Defendant admitted driving his car in the center of the street, but stated that he was forced to do so due to the parked cars on the street. Defendant denied that he almost hit the curb on any left turns. Defendant’s brother substantiated defendant’s testimony regarding defendant’s driving during the period of time immediately before Officer Keller activated the overhead lights.

Thus, the trial court had to consider conflicting versions of what transpired immediately prior to the stop and subsequent arrest. The trial court found in favor of the State. Unless the trial court’s decision on a motion to suppress is manifestly erroneous, a reviewing court will not disturb it. (People v. Tisler (1984), 103 Ill. 2d 226, 248; People v. Starks (1989), 190 Ill. App. 3d 503, 510.) We find no reason to disturb the trial court’s ruling here because it was not manifestly erroneous.

We make this determination after reviewing the information available to Officer Keller prior to the arrest. As our supreme court has stated, the question is “[w]ould a reasonable person in that officer’s position believe that a crime was being or had been committed?” People v. Adams (1989), 131 Ill. 2d 387, 398; Tisler, 103 Ill. 2d at 237.

As we stated above, the police were initially alerted to defendant’s alleged reckless driving by a citizen informant. In general, courts have found citizen informants credible because they have witnessed criminal activity and acted with the intent to aid the police. (Adams, 131 Ill. 2d at 397.) In addition to the informant’s telephone call, we must also consider Officer Keller’s personal observations concerning defendant’s driving on the night in question. While Keller’s testimony differs sharply from that of defendant and defendant’s brother, it was the trial court’s responsibility to assess the credibility of the witnesses and the weight to be given their testimony. (People v. Jaffe (1986), 145 Ill. App. 3d 840, 846.) We see no reason to disturb the trial court’s finding of probable cause in this case because a reasonable person in Officer Keller’s position could certainly believe that defendant was committing a crime in that he was operating a motor vehicle while under the influence of alcohol.

RIGHT TO COUNSEL

Defendant next contends that his fifth and sixth amendment rights were violated when he was deprived of his right to consult with his attorney. Defendant argues that the police effectively prevented his attorney (Edwin Thomas) from coming to the police station by using defendant’s car to block Thomas’ driveway. As a result of this situation, defendant asserts that his statements made to the police were in violation of the fifth amendment and should not have been used as evidence against him at trial.

Initially, we note that the policies underlying the constitutional protections found in the fifth and sixth amendments are distinct. (Rhode Island v. Innis (1980), 446 U.S. 291, 300 n.4, 64 L. Ed. 2d 297, 307 n.4, 100 S. Ct. 1682, 1689 n.4.) The purpose of the sixth amendment is to provide legal assistance to the defendant during the “critical stages” of the criminal process. (Brewer v. Williams (1977), 430 U.S. 387, 398, 51 L. Ed. 2d 424, 436, 97 S. Ct. 1232, 1239.) The critical stages are reached after a “ ‘formal charge, preliminary hearing, indictment, information, or arraignment’ ” has been initiated against the defendant. (Brewer, 430 U.S. at 398, 51 L. Ed. 2d at 436, 97 S. Ct. at 1239, quoting Kirby v. Illinois (1972), 406 U.S. 682, 689, 32 L. Ed. 2d 411, 417, 92 S. Ct. 1877, 1882.) As Kirby pointed out, a defendant’s sixth amendment right to counsel attaches only after “adversary judicial criminal proceedings” have been initiated against him. (Kirby, 406 U.S. at 689, 32 L. Ed. 2d at 417, 92 S. Ct. at 1882.) An arrest, in and of itself, does not involve an “adversary judicial criminal proceeding” such that the sixth amendment right to counsel would attach. (United States v. Gouveia (1984), 467 U.S. 180, 189-90, 81 L. Ed. 2d 146, 155-56, 104 S. Ct. 2292, 2298; People v. Wilson (1987), 116 Ill. 2d 29, 50.) The complained-of conduct in the present case occurred after defendant was arrested, but before any “formal” charges were brought against him. Consequently, we will review defendant’s contention under a fifth amendment analysis.

Defendant primarily relies upon Escobedo v. Illinois (1964), 378 U.S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758, and Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, to support his position that his constitutional rights were violated in this case.

In Escobedo, the Court held that when an accused is a suspect in a criminal investigation and “has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution *** and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.” (Escobedo, 378 U.S. at 491, 12 L. Ed. 2d at 986, 84 S. Ct. at 1765.) In Miranda, the Court determined that the prosecution may not use any statements of the defendant which stem from custodial interrogation as evidence at trial unless the defendant is apprised of his constitutional right to remain silent and consult with an attorney. (Miranda, 384 U.S. at 444, 16 L. Ed. 2d at 707, 86 S. Ct. at 1612.) The Court noted that there can be no questioning if the defendant indicates that he does not want to be interrogated or wishes to consult with an attorney before speaking. 384 U.S. at 444-45, 16 L. Ed. 2d at 707, 86 S. Ct. at 1612.

The State disagrees with defendant’s contention that his constitutional rights were violated in this case, arguing instead that Moran v. Burbine (1986), 475 U.S. 412, 89 L. Ed. 2d 410, 106 S. Ct. 1135, controls this issue. In Moran, the defendant waived his right to remain silent and to speak with an attorney after being fully informed of his Miranda rights. The defendant was not aware, however, that his sister was attempting to secure counsel to represent him. He was also unaware that an assistant public defender had called the police station and was informed that the defendant would not be questioned that evening. The Supreme Court determined that the events occurring outside of the defendant’s presence had no bearing on his waiver of his Miranda rights. (Moran, 475 U.S. at 422, 89 L. Ed. 2d at 421, 106 S. Ct. at 1141.) The Court noted that, while the police officers’ conduct in the case was “highly inappropriate,” the “deliberate misleading” of an attorney was irrelevant in determining whether the defendant’s fifth amendment rights were violated. (475 U.S. at 423-25, 89 L. Ed. 2d at 422-23, 106 S. Ct. at 1142-43.) The Court stated, in a footnote, that the result would have been different had the defendant requested the presence of counsel during the interrogation. 475 U.S. at 423 n.1, 89 L. Ed. 2d at 422 n.1, 106 S. Ct. at 1141-42 n.1, citing Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880.

We agree with the State that Moran supports the proposition that the alleged police frustration of defendant’s brother’s attempts, as an attorney, to speak with defendant, was irrelevant in determining whether defendant’s statements were in violation of his fifth amendment rights. However, we do not believe that Moran controls the disposition of this issue due to the fact that defendant, in our case, requested to speak with his attorney after he arrived at the police station, unlike the situation found in Moran. Notwithstanding this distinction, defendant’s argument must still fail.

Defendant apparently argues that Miranda requires the suppression of all statements made after a defendant has been arrested, unless the defendant is first warned of his right to remain silent and to have counsel present during questioning. However, Miranda simply requires all interrogation to cease after a defendant invokes his right to speak with an attorney. (Edwards v. Arizona (1981), 451 U.S. 477, 484-85, 68 L. Ed. 2d 378, 386, 101 S. Ct. 1880, 1885; Miranda, 384 U.S. at 474, 16 L. Ed. 2d at 723, 86 S. Ct. at 1627.) In Edwards, the Court stated that an exception to the Miranda rule exists if the defendant “himself initiates further communication, exchanges, or conversations with the police.” Edwards, 451 U.S. at 485, 68 L. Ed. 2d at 386, 101 S. Ct. at 1885.

Applying these Supreme Court cases to the facts in the present case leads us to conclude that defendant’s fifth amendment rights were not violated. It does not appear that the police interrogated defendant after he was arrested. The only question defendant was asked was whether he wished to take a breathalyzer test. Defendant’s response to this question, which in this case was a refusal, was not constitutionally protected under the fifth amendment. (South Dakota v. Neville (1983), 459 U.S. 553, 564, 74 L. Ed. 2d 748, 759, 103 S. Ct. 916, 923; People v. Rolfingsmeyer (1984), 101 Ill. 2d 137, 142.) The Neville Court specifically stated that a police officer’s inquiry as to whether a defendant will take a blood-alcohol test is not an interrogation within the context of Miranda. (Neville, 459 U.S. at 564 n.15, 74 L. Ed. 2d at 759 n.15, 103 S. Ct. at 923 n.15.) Instead, the Court equated the question with a request for the accused to submit to fingerprinting or having a photograph taken.

We also agree with the State that defendant’s responses to the questions concerning whether he would take a breathalyzer test in no way violated his right to counsel in this case, even though defendant requested to speak with his attorney before deciding whether to take the test. We have previously held that defendant did not have a right to consult with an attorney before deciding whether to submit to the test. People v. Graziano (1986), 151 Ill. App. 3d 475, 479; People v. Gaddi (1986), 145 Ill. App. 3d 227, 230.

We therefore find that defendant’s constitutional rights were not violated.

ALLEGED ERRORS DURING TRIAL

Defendant next contends that the trial court erred in limiting the cross-examination of Officer Keller and in allowing hearsay and irrelevant testimony into evidence at trial. We will address each contention in turn.

Defendant’s first argument concerns the attempted cross-examination of Officer Keller regarding the “alphabet” field sobriety test. On direct examination, Keller testified that defendant failed to properly recite the alphabet in that he mentioned only 14 letters. Keller stated that he wrote the 14 letters into the police report two to three hours after the alphabet test was administered and relied on his memory to do so. On cross-examination, defense counsel attempted to test Officer Keller’s memory by staging a simulation of the test. The trial court sustained the State’s objection to the demonstration. The court stated:

“You are free to cross examine him. *** [B]ut I am not going to allow any tests in court, any little demonstrations.
I understand your position, but it is not the same. Conditions are not the same. He is in court. He can be nervous.
I don’t think it’s a proper question and a proper thing to do in front of a jury in a criminal case.
I am convinced it’s within my discretion and I am exercising my discretion and I am not allowing it. *** I am not going to allow you to request that he memorize certain letters now and then ask him at a later time during the trial if he remembers them.”

Defendant correctly points out that the confrontation clause of the sixth amendment guarantees him the right to cross-examine a witness testifying against him. (Delaware v. Van Arsdall (1986), 475 U.S. 673, 678, 89 L. Ed. 2d 674, 683, 106 S. Ct. 1431, 1435; Davis v. Alaska (1974), 415 U.S. 308, 315-16, 39 L. Ed. 2d 347, 353, 94 S. Ct. 1105, 1110.) However, this right does not prevent a trial court from imposing some limitations on defense counsel’s cross-examination of a prosecution witness. (Van Arsdall, 475 U.S. at 678, 89 L. Ed. 2d at 683, 106 S. Ct. at 1435; People v. Harris (1988), 123 Ill. 2d 113, 144.) Instead, a trial court has wide discretion in imposing reasonable limitations concerning the cross-examination of a witness. (Harris, 123 Ill. 2d at 144.) A defendant seeking reversal of a trial court’s decision to limit cross-examination must show that the court clearly abused its discretion and, as a result, “manifest prejudice” resulted. People v. Smith (1988), 172 Ill. App. 3d 94, 109; People v. Hinton (1984), 122 Ill. App. 3d 89, 95.

We disagree with defendant’s contention that the trial court abused its discretion in this case. The trial court allowed defendant to cross-examine Officer Keller concerning the “alphabet” field sobriety test, including the problems associated with relying on his memory to write down the sequence of letters defendant allegedly recited on the night in question. Thus, the jury was aware of the method Officer Keller used to place the letters into the police report. The trial court was well within its discretion in refusing to allow defendant to engage Officer Keller into a courtroom demonstration vis-a-vis the field sobriety test.

Defendant next argues that he was deprived of a fair trial due to hearsay testimony admitted at trial. On direct examination, Officer Keller testified that he received a radio dispatch informing him of an “intoxicated driver” in a Cadillac with a license plate number JTL 2359. The trial court overruled defendant’s hearsay objection, stating that the evidence was admissible for the limited purpose of explaining why Officer Keller took the particular course of action on the night in question. The court then immediately instructed the jury, stating:

“Ladies and Gentlemen, that testimony is offered strictly for the purpose of showing why Officer Keller took a certain course of action after he received that broadcast.
It is not offered to show what was in the broadcast was, in fact, true, but in order that you understand why Officer Keller did what he did.
That limited testimony is offered strictly to show his course of action and not for the truth of that broadcast.”

Defendant argues that the court erred in admitting this testimony because there was no issue in this case as to why Officer Keller began his search for an intoxicated driver on the night in question. The State disagrees, arguing instead that People v. Gacho (1988), 122 Ill. 2d 221, cert. denied (1988), 488 U.S. 910, 102 L. Ed. 2d 252, 109 S. Ct. 264, supports the trial court’s ruling in this case.

In Gacho, our supreme court stated that it was not error to admit evidence which explained a police officer’s investigatory procedure as long as the substance of the conversation was not revealed. (Gacho, 122 Ill. 2d at 248.) Such testimony is proper because it is within the officer’s personal knowledge and is competent to explain investigatory procedure. (People v. Pryor (1989), 181 Ill. App. 3d 865, 870; People v. White (1985), 134 Ill. App. 3d 262, 282, cert. denied (1986), 475 U.S. 1126, 90 L. Ed. 2d 194, 106 S. Ct. 1650.) However, the testimony is inadmissible hearsay if it recounts the substance of the conversation. Pryor, 181 Ill. App. 3d at 870.

In the present case, the testimony of Officer Keller went beyond his investigatory procedure and included the content of the radio dispatch regarding the telephone call informing the police of an intoxicated driver. The State’s Attorney asked Officer Keller if “[tjhe content of this dispatch was that an intoxicated subject was heading westbound on Fourth from County Line Road; yes or no?” (emphasis added), “[djescription of this vehicle was a Cadillac?,” and “[ljicense plate of this vehicle was JTL 2359?” Each of these questions involves the substance of the conversation and, as such, was inadmissible hearsay. On retrial, the officer may state that a citizen complaint was received and acted upon but may not recount the substance of the conversation concerning the complaint.

Defendant also contends that the trial court allowed irrelevant testimony, which was highly prejudicial to his defense, into evidence at trial. In particular, defendant argues that it was improper for Officer Keller to testify as to the number of arrestees other than defendant who took the breathalyzer test and failed it. At trial, Keller testified on direct examination that he had previously made approximately 50 arrests for DUI. On cross-examination, Keller stated that of the 50 arrestees, approximately 10 refused to take a breathalyzer. On redirect examination, Keller stated that 38 of the 40 arrestees who took the test “failed” the test in that they “blew .10 or more.”

Defendant argues that the jury could infer from this testimony that most arrestees routinely took the breathalyzer test, even though defendant refused to do so. In addition, the jury could also infer that Keller was a “walking breathalyzer machine” given his “exceptionally accurate” field appraisals of drivers as being under the influence of alcohol.

We agree with defendant that it was generally improper for Officer Keller to testify as to the number of DUI arrestees who “failed” the breathalyzer test. However, this testimony was elicited only after defendant “opened the door” when he cross-examined Officer Keller concerning the number of arrestees who refused to take the test. As such, the State contends that the redirect examination was proper in this case.

The general rule is that a party who “opens the door” on a particular subject is precluded from objecting on the same subject, unless the objection is based on grounds not violated by the party’s first admission of the evidence. (People v. Griffiths (1983), 112 Ill. App. 3d 322, 328.) The reason for this rale is that the party who is now objecting to the testimony actually invited the testimony and thus is not permitted to claim that the testimony deprived him of a fair trial. (People v. Wadley (1988), 169 Ill. App. 3d 1036, 1045.) By questioning Officer Keller regarding the number of persons who refused to take the test, defendant opened the door to the State’s redirect examination concerning the number of persons who failed the test. Thus, it was proper to admit this testimony given that defendant “opened the door” during cross-examination. Such testimony shoiild not be admitted on retrial unless defendant again questions Officer Keller concerning the number of other arrestees who refused to take the breathalyzer test.

JURY INSTRUCTIONS

Defendant next argues that he was prejudiced by a jury instruction in this case. The jury was instructed, over defendant’s objection, that:

“A defendant does not have a right to consult an attorney prior to taking a breathalyzer test.”

Defendant contends that the instruction was erroneous in that it was “totally at odds” with Escobedo and Miranda.

Defendant correctly asserts that a jury instruction should not be given if it does not accurately state the law or if it is confusing or misleading. (People v. Jones (1986), 145 Ill. App. 3d 835, 838; People v. Dixon (1982), 105 Ill. App. 3d 340, 348.) In the present case, defendant never took a breathalyzer test. In addition,.this was a criminal case (DUI) and was not concerned with the statutory summary suspension civil proceedings. With these differences in mind, it is our opinion that this instruction is confusing and misleading and should not be given on retrial.

ALLEGED IMPROPER ARGUMENTS

Defendant’s last contention on appeal is the State’s Attorney made several improper comments during closing argument which resulted in prejudice to defendant. Defendant first asserts that it was improper for the State’s Attorney to refer to defense counsel’s attempt to have Officer Keller test his memory in court as “unfair.” Defendant’s objection was sustained, and the jury was told not to consider the remark. We believe that any prejudice which may have occurred as a result of this comment was cured when the trial court sustained the objection and instructed the jury to disregard the remark. People v. Baptist (1979), 76 Ill. 2d 19, 30; People v. Wright (1989), 186 Ill. App. 3d 159, 166.

Defendant also claims that it was improper for the State’s Attorney to refer to his defense as a “smoke screen.” Other courts have determined that the use of “smoke screen,” “dropping a smoke bomb,” and “veil of smoke,” while generally improper and better left unsaid, did not involve prejudice of a sufficient magnitude to require a new trial. (See People v. Burnett (1963), 27 Ill. 2d 510, 517-18; People v. Williams (1984), 127 Ill. App. 3d 231, 234; People v. Brown (1977), 47 Ill. App. 3d 920, 930-31.) On retrial, the State’s Attorney should refrain from using such a characterization of defendant’s defense.

Defendant also contends that it was improper for the State’s Attorney to argue that defendant’s brother, Edwin Thomas, was also under the influence of alcohol on the night in question. Defendant argues that the comment was improper because there was no evidence to support the claim. We disagree. As the State correctly points out, a prosecutor may draw legitimate inferences from the facts in evidence. (People v. Alvarez (1981), 93 Ill. App. 3d 111, 116; People v. Lewis (1979), 75 Ill. App. 3d 259, 288.) At trial, defendant’s brother testified that he shared a bottle of wine with defendant and Wasz on the night in question. In addition, the testimony of Officers Birdsong and Mandarino indicated that Edwin was belligerent, rude, and used obscene language during his phone calls to the police station and in their in-person conversations. This evidence leads us to the conclusion that the State’s Attorney’s comment concerning Edwin’s impairment was proper because it was supported by the evidence.

We also disagree with defendant’s last contention that it was improper for the State’s Attorney to refer to defendant’s refusal to “take additional field sobriety tests.” This comment was proper because it was based upon the evidence at trial and, furthermore, in no way violated defendant’s privilege against self-incrimination as guaranteed by the fifth amendment. See People v. Saturday (1985), 135 Ill. App. 3d 1052, 1054 (evidence of the defendant’s refusal to submit to a field sobriety test is proper and does not violate any constitutional or statutory rights); People v. Roberts (1983), 115 Ill. App. 3d 384, 387-88.

For the above stated reasons, the judgment of the circuit court of Du Page County is reversed, and this cause is remanded for a new trial.

Reversed and remanded.

DUNN and McLAREN, JJ., concur.