text:
    STEEL CITY BANK, as Trustee, et al., Plaintiffs and Counterdefendants-Appellees, v. THE VILLAGE OF ORLAND HILLS et al., Defendants and Counterplaintiffs-Appellants.
    First District (1st Division)
    No. 1—90—0059
    Opinion filed December 30, 1991.

      Odelson & Sterk, Ltd., of Evergreen Park (Burton S. Odelson and Mark H. Sterk, of counsel), for appellants.
    Callahan, Fitzpatrick, Lakoma & McGlynn, of Oak Lawn (William F. Fitzpatrick and Ronald V. Hirst, of counsel), for appellees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Defendants-counterplaintiffs Village of Orland Hills, village president Lorin Schab and village building commissioner Ronald Zaylik appeal the judgment of the circuit court of Cook County ordering them to issue building and occupancy permits to plaintiffs Hartz Construction Company (Hartz) and Steel City National Bank.

Plaintiff Steel City National Bank, as the trustee of trust number 2955, is the fee simple owner of a tract of land in Orland Hills, Illinois. The sole beneficiary of the trust is Hartz, a construction and real estate development company, which has subdivided the tract into units known as Ridgegate Units I through VII. According to plaintiffs’ brief, Hartz has already developed most of Ridgegate Units I through IV with single-family homes and is in the process of developing Ridgegate Unit VII.

In February 1989, plaintiffs filed a complaint against defendants seeking injunctive and monetary relief from Orland Hills’ refusal to issue building and occupancy permits to Hartz. Orland Hills answered, stating that the permits were not issued because one of Hartz’s purchasers stopped payment on a $1,000 check tendered to Orland Hills for a temporary occupancy permit. On February 15, 1989, Hartz moved for a temporary restraining order (TRO) and preliminary injunction based on the complaint and answer. Following a hearing that same day, the trial court issued a TRO restraining defendants from refusing to issue building permits to Hartz and from refusing to inspect Hartz’s completed work.

The TRO was continued by agreement of the parties until September 25, 1989. At this time, the court granted Orland Hills leave to file a counterclaim and a motion for a preliminary injunction seeking to prevent Hartz from further construction until Hartz posted letters of credit with Orland Hills insuring the completion of public improvements in Ridgegate. Orland Hills alleged that letters of credit previously posted by Hartz for Ridgegate Units I through IV had expired. In the same order, the trial court limited the TRO to permits regarding grass and landscaping matters and granted plaintiffs leave to amend their complaint.

On October 23, 1989, plaintiffs filed a four-count amended complaint. Count I repeated the allegations regarding the refusal to issue permits contained in the initial complaint. Count II sought mandamus and declaratory and monetary relief regarding the alleged refusal of Orland Hills to approve a plat of subdivision for Ridgegate Unit VII. Count III alleged that Orland Hills had violated Hartz’s right to due process guaranteed by the fourteenth amendment to the United States Constitution and sought relief under 42 U.S.C. §1983 (1988). Count IV sought to invalidate ordinances adopted by Orland Hills which allegedly violated an agreement between Orland Hills and Hartz that Orland Hills was required to seek input from Hartz before amending ordinances relating to Hartz’s subdivisions.

According to defendants’ brief, Hartz served Orland Hills with an amended motion for a TRO in November 1989. The amended motion, attached to defendants’ brief, requested permanent relief in addition to temporary and preliminary relief. The record indicates that the trial court ordered Orland Hills to issue a temporary occupancy permit for 17007 S. 92nd Avenue, Orland Hills, Illinois, on November 25, 1989.

The trial court continued its hearing on the motion on December 4, 1989. Orland Hills objected, arguing that equitable relief was unavailable because Hartz could seek the legal remedy of mandamus. The trial court did not rule on this objection and proceeded to hear argument on a number of issues in the case.

The trial court first heard Hartz’s claim that Orland Hills wrongfully refused to approve the plat of subdivision for Ridgegate Unit VII. Orland Hills argued that its refusal was based on Hartz’s failure to: (1) finish and seeding and grading water detention basins; (2) post letters of credit guaranteeing completion of the detention basins and other public improvements; and (3) transfer property in Ridgegate Unit V to Orland Hills for the purpose of creating a park. Hartz indicated that it could obtain and transfer the deed for the property in Ridgegate Unit V and tendered letters of credit to Orland Hills in court.

The trial court then heard argument and testimony regarding Or-land Hills’ failure to issue building and occupancy permits. Hartz identified four properties for which building permits had not yet been issued. Orland Hills responded that the permits had not been issued due to Hartz’s prior failure to post letters of credit, but because the letters had been tendered in court, the permits could be issued within 14 or 15 days.

Next, Hartz identified four different homes for which it sought occupancy permits: 9013 Westwood Drive, 9207 W. 170th Place, 9209 W. 170th Street and 9007 Westwood Drive. Orland Hills indicated that 9013 Westwood had been inspected and that a permit could be issued after payment of a $45 fee; the question of whether the fee was required was reserved for a future hearing. Orland Hills’ village engineer testified that final grading of 9207 W. 170th Place and 9209 W. 170th Street had not been approved and recommended that Hartz post a cash bond to ensure that the grading would be satisfactorily completed. Defendant Schab testified that the home owners had been posting escrows in similar situations because Hartz had refused to do so. Finally, Orland Hills asked that it be given seven days to inspect and issue an occupancy permit for 9007 Westwood.

At the close of the December 4, 1989, hearing, the trial court issued an order providing:

“1. Upon deposit of letters of credit for Units 2, 3, 4 & 7 in Ridgegate with the Clerk of Court the Village of Orland Hills shall execute the Plat of Subdivision for Ridgegate VII within 10 days and permit plaintiff to immediately secure building permits simultaneously with the construction of public improvements in said Unit VII.
2. Plaintiff shall deliver a deed to Orland Hills to the retention pond area in Unit 5 in Ridgegate subdivision within 30 days of the date of this order.
3. Defendant Village of Orland Hills shall issue building permits for the following addresses within 14 calendar days of the date of this order: 9200 W. 170th St., 16933 S. 92nd Ave., 9124 W. 169th PI., 9133 W. 170th St.
4. Defendant Village of Orland Hills shall issue occupancy permits within 7 calendar days of the date of this order with respect to the following addresses (except 9013): 9207 W. 170th PI., [9013 Westwood Dr. to be issued immediately], 9007 Westwood Dr., 9209 170th St.
5. Escrows for final grade, if required, shall be posted by the purchasers, and shall not be required of plaintiff Hartz Construction. Said escrows shall not exceed $200.00
6. Cause continued for status to 12/20/89 at 10:00 a.m.”

On January 3, 1990, Defendants filed a notice of interlocutory appeal. Defendants did not move for a stay pending their appeal. On January 22, 1990, the trial court entered an order acknowledging that Hartz delivered to Orland Hills the deed referred to by paragraph two of the December 4, 1989, order.

The first issue raised by this appeal, though not by the parties, is whether this court has jurisdiction. The question of jurisdiction of the appellate court must be determined prior to deciding the merits of an appeal. (Servio v. Paul Roberts Auto Sales, Inc. (1991), 211 Ill. App. 3d 751, 755, 570 N.E.2d 662, 664; Mar Cement, Inc. v. Diorio Builders, Inc. (1987), 153 Ill. App. 3d 798, 800, 506 N.E.2d 381, 383.) Indeed, it is the duty of this court to consider even matters dehors the record in deciding this issue. (Kohan v. Rimland School for Autistic Children (1981), 102 Ill. App. 3d 524, 430 N.E.2d 139.) Where this court lacks jurisdiction, we must dismiss the appeal; as noted in other contexts, our courts do not sit to render advisory opinions on abstract questions of law to guide potential future litigation. Cf. La Salle National Bank v. City of Chicago (1954), 3 Ill. 2d 375, 121 N.E.2d 486 (discussing mootness).

Defendants’ brief states that the appeal is brought pursuant to Illinois Supreme Court Rule 307 (134 Ill. 2d R. 307). Rule 307(a)(1) provides that appeal may be taken from an interlocutory order “granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction.” (134 Ill. 2d R. 307(a)(1).) An interlocutory injunction is granted to preserve the status quo pending a decision on the merits and concludes no rights. (See Spunar v. Clark Oil & Refining Corp. (1977), 53 Ill. App. 3d 477, 481, 368 N.E.2d 990, 993; Grillo v. Sidney Wanzer & Sons, Inc. (1975), 26 Ill. App. 3d 1007, 1011, 326 N.E.2d 180, 183.) Such orders are either preliminary injunctions or temporary restraining orders, which are limited in duration and in no case extending beyond the conclusion of the action. Smith v. Goldstick (1982), 110 Ill. App. 3d 431, 438, 442 N.E.2d 551, 557.

Whether an order falls within the scope of Rule 307 is determined by its substance rather than its form or language. (See In re Marriage of Meyer (1990), 197 Ill. App. 3d 975, 979, 557 N.E.2d 242, 245; Lake Shore Racquet Club, Inc. v. Fireman’s Fund Insurance Cos. (1980), 91 Ill. App. 3d 1118, 1121, 415 N.E.2d 625, 627.) Because the rule is addressed only to interlocutory orders, the order appealed from must not be in the nature of a permanent injunction. (See Betts v. Ray (1982), 104 Ill. App. 3d 168, 170, 432 N.E.2d 1222, 1224.) If an injunction is permanent in nature, it is a final order appealable only-under Rule 301 or 304(a), if those rules are otherwise applicable. (Goldstick, 110 Ill. App. 3d at 438, 442 N.E.2d at 556.) Whether the injunction disposes of the entire litigation is not determinative of its permanent or preliminary nature. (See Statistical Tabulating Corp. v. Hauck (1972), 5 Ill. App. 3d 50, 51, 282 N.E.2d 524, 525.) Orders which are not limited in duration and which alter the status quo are permanent in nature. See Goldstick, 110 Ill. App. 3d at 438, 442 N.E.2dat 557.

Defendants contend that the December 4, 1989, order is a mandatory preliminary injunction. Generally, mandatory preliminary injunctions are properly granted only to preserve the status quo where to do otherwise may cause irreparable harm to the party seeking the injunction. (Martin v. Eggert (1988), 174 Ill. App. 3d 71, 77, 528 N.E.2d 386, 390.) The status quo is defined as “the last actual, peaceable, uncontested status which [preceded] the pending controversy.” (Martin, 174 Ill. App. 3d at 77, 528 N.E.2d at 390.) A party may not obtain such injunctive relief where a legal remedy, such as mandamus, is available. Lyle v. City of Chicago (1934), 357 Ill. 41, 45, 191 N.E. 255, 257.

Defendants argue that the order at issue did not preserve the status quo; their brief states:

“The last actual, peaceable, uncontested status in this case was that Hartz had four houses for which it had no occupancy permits and four lots for which it had no building permits.
Now, of course, the four lots are probably under construction and the four houses have occupants. The status quo *** can be fully restored only by evicting the occupants of the four houses.”

The passage of two years from the entry of the order without a stay and the statements of counsel at oral argument suggest that this characterization of the situation is accurate.

The record indicates that the December 4, 1989, order is not limited in duration. The order requires that building and occupancy permits be issued, unlike the temporary occupancy permit previously ordered by the trial court. It requires Hartz to deed property over to defendants. The order excuses Hartz from paying escrows, placing that obligation on purchasers. Defendants have failed to point to anything in the record, aside from prefatory language in the order, which indicates that these portions of the order were intended as temporary measures.

In sum, the record indicates that the substance of the order is a permanent mandatory injunction which cannot be appealed under Rule 307(a)(1). The order continues the cause, rendering it unappealable under Rule 301. The order does not contain a Rule 304(a) finding. Thus, we lack jurisdiction over this appeal. Goldstick, 110 Ill. App. 3d at 438, 442 N.E.2d at 557.

For the aforementioned reasons, this appeal is dismissed for want of jurisdiction.

Dismissed.

BUCKLEY and O’CONNOR, JJ., concur.

      As the counterclaims are not before this court, defendants-counterplaintiffs and plaintiffs-counterdefendants are hereinafter referred to respectively as defendants and plaintiffs, for the sake of brevity.


source: Caselaw Access Project

author: JUSTICE HARTMAN

license: Public Domain

text:
    JEANNE ROGNANT, Plaintiff-Appellant, v. CARLOS PALACIOS, Defendant-Appellee.
    First District (2nd Division)
    No. 1—90—3376
    Opinion filed December 31, 1991.
    Rehearing denied February 5, 1992.

      Law Offices of Frederic F. Brace, Jr., of Chicago (David L. Lee, of counsel), for appellant.
    William H. Farley, Jr., of Chicago Transit Authority, and Flynn, Murphy & Ryan, both of Chicago (Richard T. Ryan, of counsel), for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiff appeals the circuit court order which terminated her personal injury action against defendant. She raises as issues whether (1) a recently decided case was properly applied, and (2) defendant waived the statute of limitations defense.

On September 10, 1986, plaintiff, Jeanne Rognant, was injured while riding a Chicago Transit Authority (CTA) bus driven by defendant, Carlos Palacios. She filed a complaint against defendant on September 8,1988. CTA was not named as a defendant.

On June 27, 1990, defendant filed a motion for summary judgment, based upon the one-year statute of limitations for civil injury actions against CTA. (Ill. Rev. Stat. 1985, ch. 111⅔, par. 341 (section 41).) The circuit court granted the motion, expressly finding that Medina v. Taylor (1989), 185 Ill. App. 3d 808, 542 N.E.2d 33 (Medina), which specifically applied section 41 to employees of CTA, should be retroactively applied to the present situation. In so holding, the circuit court found plaintiff filed this action after the one-year statute of limitations expired. Plaintiff appeals.

I

Plaintiff first contends Medina should not have been applied retroactively to shorten the statute of limitations because she filed suit within the two-year statute of limitations for personal injury actions (Ill. Rev. Stat. 1985, ch. 110, par. 13—202), and Medina was decided while this case was pending. The Medina court found the one-year statute of limitations for personal injury actions against CTA applied to suits against CTA employees as well relying, in part, upon Muscare v. Voltz (1982), 107 Ill. App. 3d 841, 438 N.E.2d 620 (Muscare), and Penkava v. Kasbohm (1987), 117 Ill. 2d 149, 510 N.E.2d 883 (Penkava).

Plaintiff argues that the circuit court’s retroactive application of Medina was inequitable, based upon Chevron Oil Co. v. Huson (1971), 404 U.S. 97, 30 L. Ed. 2d 296, 92 S. Ct. 349. Contrary to the circuit court’s conclusion, however, we find no retroactivity in the application of this rule. Judgment may be sustained upon any ground warranted, regardless of whether it was relied upon by the circuit court or whether the reason given by the circuit court was correct. (Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387, 457 N.E.2d 9; Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 502, 520 N.E.2d 37.) Rather than a change in the law, we find Medina to be a logical interpretation of existing law; no precedent was overruled; and clearly it was foreshadowed. In Muscare, plaintiff was injured as a result of a collision between her car, a CTA bus, and another car. The court applied the one-year statute of limitations in section 41 to the CTA employee and dismissed the case on res judicata grounds, based upon application of section 41. The court found that because CTA had been dismissed from the case upon application of section 41, the CTA employee also must be dismissed. (Muscare, 107 Ill. App. 3d at 843-44.) The court reasoned that all liability of CTA was based upon the actions of the employee; CTA and the employee were one tortfeasor. (Muscare, 107 Ill. App. 3d at 844.) The employee clearly was acting as an agent of CTA; a judgment adjudicating CTA not liable would mean the driver was not liable, for the driver was the sole actor. (Muscare, 107 Ill. App. 3d at 844, citing Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 382 N.E.2d 1217.) Therefore, the Muscare decision already had established that the section 41 one-year statute of limitations applied to CTA employees.

The Penkava opinion presents an analogous situation. There, employees of a hospital were protected by a statute of limitations, which applied to the hospital (Ill. Rev. Stat. 1981, ch. 83, par. 22.1 (now Ill. Rev. Stat. 1989, ch. 110, par. 13—212)). The supreme court found that the hospital was more than just a building; it was composed of employees who act on behalf of the hospital in providing treatment for patients. (Penkava, 117 Ill. 2d at 156.) Therefore, Muscare and Penkava foreshadowed that such a limitation, as applied to CTA, would apply to its employees, which is not just a collection of buses and trains, but requires drivers to provide the public transportation to be furnished. Accordingly, plaintiff should have known section 41 would apply to CTA employees such as defendant driver.

II

Plaintiff next argues that defendant waived the statute of limitations defense, citing Searcy v. Chicago Transit Authority (1986), 146 Ill. App. 3d 779, 497 N.E.2d 410. The court in Searcy found estoppel and waiver of the statute because plaintiff there was allegedly lulled by CTA into a false sense of security which induced plaintiff to delay the timely filing of her suit. (See Serafini v. Chicago Transit Authority (1979), 74 Ill. App. 3d 738, 742, 393 N.E.2d 1120.) Nothing in the present record suggests that defendant caused plaintiff to file after the statute of limitations lapsed or did anything to affect the date of plaintiff’s filing.

Plaintiff asserts defendant did not articulate the defense of the statute of limitations in his answer, and it was not for 23U years after plaintiff filed suit that defendant asserted the statute had passed, relying on section 2 — 613(d) of the Civil Practice Law (Ill. Rev. Stat. 1985, ch. 110, par. 2—613(d) (section 2—613(d))). Although section 2 — 613(d) requires that defenses such as the statute of limitations be set forth plainly in the answer, failure to plead an affirmative defense in the initial answer is not necessarily a waiver. The circuit court may allow a defendant to file an amended answer containing affirmative matter at any time prior to final judgment. Behr v. Club Med, Inc. (1989), 190 Ill. App. 3d 396, 407, 546 N.E.2d 751.

In the case sub judice, plaintiff had adequate time to respond to defendant’s assertion of the statute of limitations. It was pled properly in defendant’s motion for summary judgment (Florsheim v. Travelers Indemnity Co. (1979), 75 Ill. App. 3d 298, 393 N.E.2d 1223), and plaintiff addressed it in her reply. No waiver can be said to have occurred.

Ill

Plaintiff urges that Medina should not apply to the current situation, first, because Medina is distinguishable on its facts; and, second, because Medina is contrary to Illinois law.

Plaintiff claims Medina should only apply to cases where CTA is being sued either directly or under the doctrine of respondeat superior. The stated purposes of section 41 are to allow CTA an opportunity to make timely investigations, to determine its budget in advance, and to limit the number of suits against it. (Medina, 185 Ill. App. 3d at 812.) These purposes would be thwarted if plaintiff was allowed to sue a CTA employee after the one-year limitations period had passed, because the employee could bring a subsequent contribution or indemnification action against CTA, thereby allowing plaintiff to circumvent the statute. Medina, 185 Ill. App. 3d at 812.

Plaintiff contends these concerns are inapplicable here because there is no threat that defendant desires, or will be permitted, to sue CTA. Plaintiff cites Hayes v. Mercy Hospital & Medical Center (1990), 136 Ill. 2d 450, 557 N.E.2d 873 (Hayes), and Vogt v. Corbett (1990), 138 Ill. 2d 482, 563 N.E.2d 447 (Vogt), which hold that the medical malpractice statute of repose (Ill. Rev. Stat. 1989, ch. 110, par. 13—212) applies to third-party actions for contribution. Plaintiff interprets these holdings to mandate that the limitations of section 41 will apply to contribution actions brought against CTA by an employee; this would bar defendant from seeking contribution from CTA; therefore, the fear of subsequent action against CTA by way of contribution is inapplicable in the current situation. With the possibility of contribution removed, plaintiff reasons, there would be no reason to apply Medina; CTA could not be sued by way of contribution after the one-year statute of limitations was over.

As previously stated, the purpose of section 41 is to allow CTA the opportunity to make timely investigations, to determine its budget in advance for taxing purposes, and to limit the number of suits against it. These purposes are different than those of the medical malpractice statute of repose as discussed in Hayes and Vogt. Specifically, a statute of repose prevents a cause of action from arising after the prescribed lapse of time, no matter whether the putative plaintiff seeks to file his action within the statute of limitation permitted time span, or not. The statute of limitations, however, governs the time within which lawsuits may be filed in an otherwise viable cause of action, e.g., not barred by a statute of repose. See Thornton v. Mono Manufacturing Co. (1981), 99 Ill. App. 3d 722, 726, 425 N.E.2d 522; Geeting v. Prizant (N.D. Ill. 1987), 664 F. Supp. 343, 348-49.

The purpose of section 41 is more analogous to that of the notice requirement of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1979, ch. 85, par. 8—102 (repealed by Pub. Act 84—1431, art. 1, §3, eff. Nov. 25, 1986)). (Stephens v. McBride (1983), 97 Ill. 2d 515, 522, 455 N.E.2d 54 (McBride).) A recognized purpose of the Tort Immunity Act was to allow the government time to investigate the scene of occurrence and preserve evidence (McBride, 97 Ill. 2d at 522), a purpose not thwarted by allowing actions for contribution after the time period for notice expired. (McBride, 97 Ill. 2d at 525.) Vogt harmonized Hayes and McBride by pointing out that the statutes those cases interpret had different purposes. Although Hayes found contribution was limited by the statute of repose and McBride found contribution was not limited by the statute of limitations, both were consistent in that they merely recognized and enforced different legislative intents. Vogt, 138 Ill. 2d at 486.

The similarity between the purposes of section 41 and the Tort Immunity Act, which did not limit contribution actions, demonstrates section 41 may not bar defendant’s possible subsequent contribution action against CTA. This is in accord with the finding of Medina which implies that such an action is possible. Medina, 185 Ill. App. 3d at 812-13.

Plaintiff insists that shortening a plaintiff’s statute of limitations for fear of an action that a defendant might bring is against Illinois law. Plaintiff attempts to demonstrate that McBride diminishes the importance of a limitation requirement in light of a plaintiff’s right to sue. (McBride, 97 Ill. 2d at 523-24.) McBride diminishes the importance of the limitation requirement in regard to a defendant’s right to contribution, however, not a plaintiff’s right to sue.

The reasoning of Medina, as well as Muscare and Penkava, applies to the current situation, and those authorities are not contrary to Illinois law.

IV

Finally, plaintiff contends that the application of Medina denies plaintiff’s due process rights, because a person cannot be deprived of a cause of action by retroactive application of a statute of limitations. This argument assumes that plaintiff filed a timely complaint. The one-year statute of limitations already was in effect prior to the Medina ruling, however.

Due process is violated if a person is deprived of all existing remedies to enforce an existing right. (Brinkerhoff-Faris Trust & Savings Co. v. Hill (1930), 281 U.S. 673, 681-82, 74 L. Ed. 1107, 1114, 50 S. Ct. 451, 454.) In Illinois a cause of action is such a right. Illinois follows the rule that an amendment shortening the period in which a lawsuit may be filed will not be retroactively applied to terminate a claim unless the party has a reasonable amount of time after the amendment’s effective date in which to file the action. (Bailey v. State of Illinois (N.D. Ill. 1985), 622 F. Supp. 504, 510; Hupp v. Gray (1978), 73 Ill. 2d 78, 382 N.E.2d 1211; Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223, 230, 447 N.E.2d 408; People v. Robinson (1986), 140 Ill. App. 3d 29, 33, 487 N.E.2d 1264.) This rule is derived from a line of United States Supreme Court cases which found statutes of limitations affecting existing rights are not unconstitutional if a reasonable time is given for commencement of an action before the bar takes effect. Texaco, Inc. v. Short (1982), 454 U.S. 516, 70 L. Ed. 2d 738, 102 S. Ct. 781.

In the present situation, Muscare and Penkava, upon which Medina relied, had already decided that corporate employees and the corporations were one for purposes of statutes of limitations before plaintiff filed her cause of action. Plaintiff had ample time within which to file her complaint in conformity with the law as interpreted by those cases. Accordingly, we find no due process violation.

The foregoing considerations demonstrate that the ultimate decision of the circuit court was correct and must be affirmed.

Affirmed.

DiVTTO and McCORMICK, JJ., concur.


author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD CRUZ, Defendant-Appellant.
    First District (3rd Division)
    No. 1—89—1652
    Opinion filed December 31, 1991.
    David C. Thomas, of Chicago, for appellant.
    John M. O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kathleen F. Howlett, and Lisa Goldsand, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendant Edward Cruz was convicted of aggravated criminal sexual abuse (Ill. Rev. Stat. 1987, ch. 38, par. 12—16) in a bench trial and sentenced to 60 days’ imprisonment and three years’ conditional discharge. On appeal, defendant contends that (1) the trial court committed reversible error when it elicited hearsay testimony which it had previously ruled was inadmissible; (2) he was denied a fair trial because the trial court abandoned its impartial role and assumed the role of prosecutor; and (3) the State failed to prove him guilty beyond a reasonable doubt. We affirm.

Defendant was living with his cousin, Giovanni Hernandez, and his family in a four-bedroom house in Roselle, Illinois. Hernandez’s stepdaughter G.S., who was seven years old at the time of the occurrences, testified that defendant touched and placed his mouth on her vagina on several occasions commencing in October 1987 and continuing through the Christmas season. Defendant denies the allegations. The trial court found defendant guilty of one count of aggravated criminal sexual abuse (Ill. Rev. Stat. 1987, ch. 38, par. 12—16) and sentenced him to 60 days’ imprisonment and three years’ conditional discharge, conditioned upon defendant obtaining psychological testing and treatment. This appeal followed.

Defendant contends that the trial court committed reversible error when it elicited hearsay testimony which it had previously ruled was inadmissible. Defendant argues that the trial court violated its own ruling made pursuant to section 115 — 10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 115—10) and subsequently relied upon inadmissible testimony when it found defendant guilty of aggravated criminal sexual abuse. We disagree.

The State sought to introduce hearsay statements made by G.S. to her friends, mother and teacher concerning the incidents of sexual abuse. Defense counsel objected to the introduction of these out-of-court statements on the basis that the State failed to comply with the notice and hearing requirements set forth in section 115 — 10 of the Code of Criminal Procedure for the introduction of hearsay statements involving sexual acts committed upon a child under the age of 13 years old. (Ill. Rev. Stat. 1987, ch. 38, par. 115—10 (applying the statute as revised January 1, 1988).) The trial court sustained defense counsel’s objection and ruled that G.S.’s statements would be stricken. The trial court, however, during its own questioning, subsequently elicited from G.S. the content of the statements she had made to her teacher concerning the incidents of sexual abuse.

It is well established that the trial court, as a trier of fact, is presumed to have considered only admissible evidence in reaching its determination. (People v. Roy (1990), 201 Ill. App. 3d 166, 183, 558 N.E.2d 1208, 1220.) We, therefore, conclude that responses to questions elicited by the trial court concerning statements made by G.S. to her teacher were harmless beyond a reasonable doubt. See People v. Hart (1991), 214 Ill. App. 3d 512, 524-25, 573 N.E.2d 1288, 1296-97; People v. Pinta (1991), 210 Ill. App. 3d 1071, 1076, 569 N.E.2d 1255, 1259.

Defendant next contends that he was denied a fair trial because the trial court abandoned its impartial role and assumed the role of prosecutor. We disagree. Our review of the record reveals that the trial court did not abandon its impartial role by assuming the role of prosecutor, but rather that the questions elicited by the trial court were fair, reasonable and unbiased.

Defendant’s reliance on People v. McGrath (1967), 80 Ill. App. 2d 229, 224 N.E.2d 660, is misplaced. While it is true that the reviewing court in McGrath found that the judge assumed the role of prosecutor and that defendant McGrath was prejudiced by the attitude and actions of the trial judge, a close reading of the case reveals Mc-Grath’s conviction was reversed on the basis that the trial court had convicted the defendant primarily upon inadmissible hearsay. (Mc-Grath., 80 Ill. App. 2d at 233-36, 224 N.E.2d at 662-64.) Accordingly, we conclude that the trial court did not abuse its discretion when it elicited material evidence from the complaining witness.

Defendant’s final argument is that the State failed to prove him guilty beyond a reasonable doubt. We disagree.

The reviewing court must determine, after viewing the evidence in a light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Schott (1991), 145 Ill. 2d 188, 202 (applying the same standard for reviewing the sufficiency of the evidence in sex-offense cases as in all other criminal cases).) On review, the trial court’s judgment will not be set aside unless the proof is so unsatisfactory, improbable or implausible as to justify a reasonable doubt as to the defendant’s guilt. (People v. Slim (1989), 127 Ill. 2d 302, 307, 537 N.E.2d 317, 319.) We conclude, after reviewing the record in its entirety, that a rational trier of fact could have found defendant guilty of aggravated criminal sexual abuse beyond a reasonable doubt. Ill. Rev. Stat. 1987, ch. 38, par. 12—16.

G.S. testified in explicit detail of the incidents of sexual abuse. While it is true, as defendant contends, that there were minor contradictions as to the actual time and dates of the incidents of sexual abuse, we find that G.S.’s testimony was clear, unwavering and consistent throughout. G.S. testified that she was cognizant of what a lie was, that she was told by the prosecutor “to tell the truth,” and that she understood that somebody could be unnecessarily hurt if she did not tell the truth. Additionally, G.S.’s mother testified that her daughter’s behavior changed around the time of the occurrences, including G.S.’s insistence that she not remain alone in her bedroom or alone in the house with defendant. After viewing the record in its entirety, we conclude that the State proved defendant guilty beyond a reasonable doubt of aggravated criminal sexual abuse.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

CERDA, P.J., and GREIMAN, J., concur.


text:
    TIM LeFEVOUR, Plaintiff-Appellee, v. RICHARD HOWORKA, d/b/a Howorka and Associates, Defendant-Appellant.
    First District (3rd Division)
    No. 1—89—1743
    Opinion filed December 31, 1991.

      George E. Downs, of Palatine, for appellant.
    Terrence P. LeFevour, of Chicago, for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff Tim LeFevour brought this action to recover damages incurred as a result of an alleged breach of contract by defendant Richard Howorka, d/b/a Howorka and Associates, in connection with a contract to make a structural inspection of a house purchased by plaintiff. Following a bench trial, the trial judge rendered a verdict in favor of plaintiff, and awarded damages in the amount of $5,000. On appeal, defendant contends that (1) plaintiff did not prove by a preponderance of the evidence that defendant breached his duty to plaintiff under the contract; and (2) the damages awarded in this case have no basis in proof. We affirm.

In February 1987, plaintiff signed a sales contract to purchase a 130-year-old house known by plaintiff to have been moved from a previous location sometime in the 1920’s. The sales contract contained an express provision that allowed plaintiff to unilaterally rescind the contract if the house failed to receive a satisfactory report following an inspection by a structural engineer.

Defendant was hired by one of the real estate brokers to make the structural inspection of the house. Defendant performed the inspection of the house and presented his report dated February 19, 1987, to plaintiff on that date or a short time thereafter. The report stated that “[t]his old two story house is in good condition.” Relying upon defendant’s inspection and report, plaintiff completed the purchase of the house.

Upon moving into the house, plaintiff decided to remodel the second floor. Plaintiff hired Thomas Geraghty, a structural engineer, to do the remodeling. In his preparation for the remodeling, Mr. Geraghty looked into the attic and discovered what he described as “very serious defects” in the roof. A subsequent investigation of the attic and roof revealed that two-thirds of the rafters were either split, spliced, rotten or detached from the walls.

On November 17, 1987, plaintiff filed a complaint in the circuit court of Cook County alleging breach of contract in connection with defendant’s structural inspection of plaintiff’s house. Following a bench trial, the trial judge rendered a verdict in favor of plaintiff and awarded damages in the amount of $5,000. This appeal followed.

Defendant first contends that plaintiff did not prove by a preponderance of the evidence that defendant breached his duty to plaintiff under the contract. We disagree. It is undisputed that defendant inserted his head, shoulders, and top of his torso into the attic area where the defects existed, used a flashlight to inspect the attic area, but failed to discover the defects or problems then existing in the attic or roof. Furthermore, Mr. Geraghty testified that a ground inspection of the roof would have disclosed a “sway,” which would indicate a problem with the rafters in the roof.

We hold that the trial court’s ruling that defendant breached his duty under the contract by failing to alert plaintiff that serious structural defects existed in the house at the time of the inspection was not contrary to the manifest weight of the evidence. The defects were present when defendant made his inspection. Plaintiff relied upon defendant’s inspection report which stated that the house was in satisfactory structural condition. Therefore, it was not unreasonable for a trier of fact to conclude that a more careful inspection would have revealed those defects.

Additionally, it is clear that plaintiff would not have sustained damages had defendant discovered the defects and alerted plaintiff as to their existence. Plaintiff could have rescinded the sales contract with the seller if the house did not receive a satisfactory structural report or negotiated a decrease in the purchase price by the amount of the cost of the repairs. Accordingly, we will not disturb the conclusion of the trial court.

Defendant’s second contention is that the damages in this case have no basis in proof. Defendant alleges that the damages in this case are “imaginary and speculative.” We disagree. The measure of damages for breach of contract is the amount which will compensate the injured party for the loss which either fulfillment of the contract would have prevented or which the breach of it has entailed. (Litwin v. Timbercrest Estates, Inc. (1976), 37 Ill. App. 3d 956, 959, 347 N.E.2d 378, 380.) Absolute certainty concerning the amount of damages is not necessary to justify recovery where the existence of damage is established. (Shaw v. Bridges-Gallagher, Inc. (1988), 174 Ill. App. 3d 680, 684, 528 N.E.2d 1349, 1352.) Rather, evidence need only tend to show a basis for the computation of damages with a fair degree of probability. (Shaw, 174 Ill. App. 3d at 684, 528 N.E.2d at 1352.) Thus, because the sale was consummated, the only possible remedy that would put plaintiff into the position he would have been in if not for defendant’s breach is money damages equal to the cost of repairs.

Plaintiff presented an estimate from Mr. Geraghty, a contractor with many years experience, for $7,560 to completely and properly repair the rafters. Defendant presented evidence that all the repairs sought by plaintiff did not need to be made and that the problem rafters could be remedied for only $500 by splicing rather than replacing the rafters. The trial court awarded $5,000 as a sum that would be sufficient to effectuate the repairs, stating that “some of the defects [were] minor and some [were] serious.” Our review of the record leads us to conclude that the $5,000 judgment awarded in the case at bar falls within the range of estimates given by expert witnesses and well within the reasonable bounds for damages. Therefore, we hold that the trial court’s determination of the amount of damages in this case was not without basis in proof and not contrary to the manifest weight of the evidence.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

CERDA, P.J., and GREIMAN, J., concur.


text:
    KATIE BRADLEY, Plaintiff-Appellant, v. ALPINE CONSTRUCTION COMPANY, Defendant-Appellee.
    First District (3rd Division)
    No. 1—89—1977
    Opinion filed December 31, 1991.

      MaNina M. Harper and Velma R. Jackson, both of Chicago, for appellant.
    Thomas D. Nissen, of Chicago, for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff Katie Bradley appeals from an order of the circuit court of Cook County which dismissed both counts of her amended complaint with prejudice. The amended complaint alleged breach of contract and consumer fraud in connection with a contract with defendant Alpine Construction Company to make certain repairs to plaintiff’s home. The trial court dismissed both counts of the amended complaint pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—619) on the basis that the action was barred by the applicable statutes of limitation. We reverse and remand.

In May 1982, defendant entered into a retail installment contract with plaintiff to install a steel horizontal I-beam under the second-floor balcony of plaintiff’s three-flat building located at 7307 S. Emerald Avenue, Chicago, Illinois. Defendant completed construction on August 27, 1982. In August 1987, plaintiff was informed that the second-floor balcony of her three-flat building was sagging and on the verge of collapse. She employed Vemell Bums, a general contractor, to make the repairs to the porch. Bums recommended the installation of a horizontal I-beam under the porch. Plaintiff told Burns that defendant had installed a horizontal I-beam several years earlier. After making a further inspection, Bums told plaintiff that a horizontal beam had not been installed under the porch.

Plaintiff contacted defendant to discuss defendant’s apparent failure to install a horizontal I-beam pursuant to the May 1982 contract. Plaintiff received a letter from defendant in January 1988 disclaiming any responsibility for dissatisfaction with the work performed because the one-year warranty on the work had expired. On May 27, 1988, plaintiff filed a complaint in the circuit court of Cook County alleging defendant breached the parties’ contract. Plaintiff subsequently amended her complaint alleging consumer fraud in connection with the contract.

Count I of the complaint involved a claim under section 13 — 214 of the Code of Civil Procedure, which requires litigants to commence an action within four years from the date that they knew or should reasonably have known of the wrongful act or omission. (Ill. Rev. Stat. 1987, ch. 110, par. 13—214.) This section encompasses all actions against persons involved in construction-related activities. (See American National Bank & Trust Co. v. Booth/Hansen Associates, Ltd. (1989), 186 Ill. App. 3d 865, 542 N.E.2d 925.) Count II involved a claim under the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act), which requires litigants to commence an action within three years after the cause of action accrued. Ill. Rev. Stat. 1987, ch. 121½, par. 270a.

Defendant filed a motion to dismiss plaintiff’s amended complaint pursuant to section 2 — 619(5) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—619), arguing that plaintiff became aware that defendant failed to install a horizontal I-beam on August 27, 1982, the date of the completion of construction, and that the statutes of limitation for plaintiff’s cause of actions had lapsed before she commenced her action on May 27, 1988. The trial court, relying on plaintiff’s deposition, entered an order granting defendant’s motion to dismiss. It is from this order that plaintiff appeals.

Where a section 2 — 619 motion has been filed and there is no jury issue or demand involved, and genuine issues of fact are present, the reviewing court may hear and determine the merits of the dispute and may reverse the trial court’s order if it is incorrect as a matter of law or against the manifest weight of the evidence. Kirby v. Jarrett (1989), 190 Ill. App. 3d 8, 13, 545 N.E.2d 965, 968.

When properly installed, a steel I-beam is placed horizontally atop the vertical support posts and concealed inside the outer wall of the construction. Its presence or lack thereof would not be visible to an inexperienced observer such as plaintiff. The trial court’s reliance on plaintiff’s deposition is misplaced, and its conclusion that plaintiff knew or should have known of defendant’s breach of contract on August 27, 1982, is erroneous. No conclusion can be drawn other than plaintiff became aware of any potential breach of the parties’ contract in August 1987, when informed by the subsequent contractor hired to make repairs to her porch that a horizontal I-beam had not been previously installed. Therefore, we hold that plaintiff knew or should have known of defendant’s alleged breach of contract in August 1987. Accordingly, the statutes of limitation in plaintiff’s cause of actions commenced in August 1987.

Plaintiff filed her initial complaint on May 27, 1988, well within the four-year limitation period set by section 13 — 214 of the Code of Civil Procedure and the three-year limitation period set by section 10a(e) of the Consumer Fraud Act. (Ill. Rev. Stat. 1987, ch. 110, par. 13—214; Ill. Rev. Stat. 1987, ch. 121½, par. 270a(e).) Accordingly, we reverse the trial court’s order granting defendant’s motion to dismiss both counts of plaintiff’s amended complaint.

Defendant contends that plaintiff never properly pled the “discovery rule” and therefore should not be allowed to argue it on appeal. The “discovery rule,” which is incorporated directly into the language of section 13 — 214, provides that the statute of limitations in a breach of contract action begins to run at the time when the plaintiff knows or reasonably should know of the injury and knows or reasonably should know that the injury was wrongfully caused. (County of Du Page v. Graham, Anderson, Probst & White, Inc. (1985), 109 Ill. 2d 143, 153-54, 485 N.E.2d 1076, 1080; see also Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 430 N.E.2d 976.) Several Blinois courts have applied the “discovery rule” to cause of actions brought trader the Consumer Fraud Act. See Van Gessel v. Folds (1991), 210 Ill. App. 3d 403, 569 N.E.2d 141; Sommer v. United Savings Life Insurance Co. (1984), 128 Ill. App. 3d 808, 471 N.E.2d 606.

Defendant relies on Freeport Memorial Hospital v. Lankton, Ziegele, Terry & Associates, Inc. (1988), 170 Ill. App. 3d 531, 537, 525 N.E.2d 194, 199, where this court held that a complaint filed beyond the limitations period based on section 13 — 214 must allege facts explaining why the cause of action was not and could not have been discovered prior to the lapse of the statute of limitations through the exercise of due diligence.

The court in Freeport, however, also stated: “[T]he purpose of the statute of limitations is not to shield the wrongdoer but to discourage stale claims and encourage diligence in the bringing of actions.” (Freeport, 170 Ill. App. 3d at 537, 525 N.E.2d at 198.) To preclude plaintiff from bringing this action because she failed to allege the “discovery rule” in her complaint would be allowing defendant to be shielded by the law from its wrongdoing. Plaintiff hired defendant specifically to install a horizontal I-beam and had no reason to believe that one was not installed. Plaintiff commenced this action no more than nine months after she discovered that defendant may have breached its duty under the contract. Logic, reason, fairness and justice require that plaintiff be given her day in court to prove that defendant breached the contract to install a horizontal beam under her porch.

We remand this matter to the trial court so that plaintiff can be granted leave to file a second amended complaint that conforms with the requirements of the “discovery rule.”

Accordingly, the order of the trial court is reversed and the case is remanded for further proceedings consistent with what we have stated in this opinion.

Reversed and remanded.

CERDA, RJ., and GREIMAN, J., concur.


text:
    THE PEOPLE ex rel. JIM EDGAR, Secretary of State, Plaintiff-Appellant, v. WALTER G. WARNER, Defendant-Appellee.
    First District (3rd Division)
    No. 1—89—2990
    Opinion filed December 31, 1991.

      Neil F. Hartigan, Attorney General, of Springfield (Jerald S. Post, Assistant Attorney General, of Chicago, of counsel), for appellant.
    No brief filed for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff, Jim Edgar, Secretary of State (the Secretary), appeals from an order of the trial court to issue defendant, Walter G. Warner, a judicial driving permit (JDP). (Ill. Rev. Stat. 1987, ch. 95½, par. 6—106.1.) We reverse.

On January 26, 1983, defendant was arrested for driving while under the influence of alcohol (DUI). (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501.) On February 6, 1984, defendant was placed under court supervision.

On December 24, 1988, defendant was arrested again for DUI. Defendant was served immediate notice of summary suspension of his driving privileges pursuant to section 11 — 501.1 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 95½, par. 110—501.1). Defendant’s driver’s license was suspended effective February 8, 1989.

Defendant requested a JDP alleging, inter alia, that he was a “first offender” pursuant to section 11 — 500 of the Code. (Ill. Rev. Stat. 1987, ch. 95½, par. 11—500.) Defendant also petitioned the court to rescind the suspension of his driver’s license, and he filed a motion for consideration of supervision stating that he had “never been arrested in this or any other jurisdiction for any alcohol or drug related driving offense.”

On June 2, 1989, the trial court ordered the Secretary to issue a JDP to defendant. On June 12, 1989, the Secretary wrote a letter to the clerk of the circuit court stating that he had no authority to issue said permit because defendant was not a “first offender” within the meaning of the Code. On October 6, 1989, the trial court reconsidered the matter and again ordered the Secretary to issue a JDP to defendant. On November 3, 1989, the Secretary filed a notice of appeal seeking to reverse the trial court’s order of October 6,1989. This appeal ensued.

The sole issue on appeal is whether defendant was a “first offender” as defined in section 11 — 500 of the Code (Ill. Rev. Stat. 1987, ch. 95½, par. 11—500) and was therefore eligible for a JDR

Individuals who are arrested for DUI have their driving privileges summarily suspended. (Ill. Rev. Stat. 1987, ch. 95½, par. 6—206.1(B).) Defendants who are first offenders may seek limited driving privileges in the form of a JDP. (Ill. Rev. Stat. 1987, ch. 95½, par. 6—206.1(B)(a); People ex rel. Edgar v. Pence (1989), 191 Ill. App. 3d 96, 99, 546 N.E.2d 1182, 1184.) For the purpose of interpreting section 6 — 206.1 of the Code, a “first offender” is “any person who has not had a previous conviction or court assigned supervision for violating Section 11 — 501, or a similar provision of a local ordinance *** within the last 5 years.” (Ill. Rev. Stat. 1987, ch. 95½, par. 11—500; see Pence, 191 Ill. App. 3d at 98, 546 N.E.2d at 1183-84.) “[T]he dispositive question is whether the second DUI arrest occurs within five years of the disposition of the offender’s previous DUI arrest.” Pence, 191 Ill. App. 3d at 99, 546 N.E.2d at 1184.

The record shows that defendant was placed under court assigned supervision on February 6, 1984, and that he was arrested again on December 24, 1988, less than five years after his supervision began on February 6, 1984. Therefore, defendant is not a “first offender” within the meaning of sections 11 — 500 and 6— 201.1(B)(a) of the Code (Ill. Rev. Stat. 1987, ch. 95½, pars. 6—206.1(B)(a), 11—500), and he was not entitled to a JDP. The trial court erred when it ordered the Secretary to issue a JDP to defendant.

Accordingly, the order of the circuit court is reversed.

Reversed.

CERDA, P.J., and GREIMAN, J., concur.


author: JUSTICE GREIMAN

text:
    ZENAIDA ABREU, suing derivatively on behalf of Ebro Foods, Inc., Plaintiff-Appellee, v. UNICA INDUSTRIAL SALES, INC., et al., Defendants-Appellants.
    First District (3rd Division)
    Nos. 1—90—0042, 1—90—0901, 1—90—1543 cons.
    Opinion filed December 31, 1991.

      Kevin M. Forde, Ltd., of Chicago (Kevin M. Forde and Mary Anne Mason, of counsel), for appellants.
    Craig D. Tobin, of Craig D. Tobin & Associates, of Chicago, for appellee.
   JUSTICE GREIMAN

delivered the opinion of the court:

Defendants appeal from an adverse decision in a shareholder’s derivative action where the trial court found defendants had breached fiduciary obligations by usurping corporate opportunities and repeatedly attempting to acquire secret product formulas. The trial court awarded plaintiff monetary and injunctive relief, attorney fees, and appointed a provisional director to oversee the new board of directors and to break any deadlock between directors.

Defendants raise five issues on appeal: (1) whether the appointment of plaintiff’s son-in-law, the general manager of operations of the company, as provisional director violates the statute authorizing such appointment; (2) even if such appointment was appropriate under the statute, whether the trial court erred in refusing to remove the provisional director for allegedly failing to carry out the trial court’s instructions and follow statutory guidelines; (3) whether the trial court properly awarded attorney fees to plaintiff separate from the damages award; (4) whether the trial court’s injunction protecting the company’s product formulas is overly broad; and (5) whether damages were properly awarded.

Plaintiff Zenaida Abreu’s husband, Manuel (Manny) Abreu was co-founder and 50% owner of Ebro Foods, Inc. (Ebro), a company that develops and manufactures food products. Manny ran the company as its president until his death in November 1987. Plaintiff succeeded to her husband’s stock interests and is currently president of Ebro. Defendants Ralph and William Steinbarth (Ralph and William) are co-owners and the only directors of defendant La Preferida, Inc., the other 50% shareholder in Ebro and a company that distributed Ebro’s products.

In a thoughtful 42-page opinion, the trial judge carefully and explicitly set out his findings. The trial court found that Ralph created Ebro Industrial Sales, Inc., as a minority-owned business (later renamed Unica Industrial Sales, Inc.) to directly compete with Ebro Foods, Inc., in securing the business of Kraft Foods and awarded damages of $211,269 to Ebro for the lost Kraft business. The trial court also found that defendants repeatedly tried to obtain the master formulas for Ebro’s products so that they might have the product made elsewhere and sell it themselves without going through Ebro. The court determined that ownership of the formulas is exclusive to Ebro and that all shareholders are enjoined from disclosing the formulas or data from which the formulas may be ascertained. The court also removed Ralph as director and five other people from employment at Ebro, finding that there had been oppressive and fraudulent self-dealing conduct that threatened the viability of Ebro as a solvent corporation.

Since Ebro was left with only two directors, plaintiff and La Preferida’s candidate, Emil Smider, the trial court appointed a provisional director to stabilize the two hostile factions in the best interest of Ebro, pursuant to section 12.55(b) of the Illinois Business Corporation Act (IBCA) (Ill. Rev. Stat. 1989, ch. 32, par. 12.55(b)). Finally, the trial court awarded $173,030.80 in attorney fees and costs against all defendants in addition to damages.

Defendants first contend the trial court erred in appointing Silvio Vega (Vega), general manager of operations at Ebro and plaintiff’s son-in-law, to serve as provisional director because the IBCA (Ill. Rev. Stat. 1989, ch. 32, par. 12.55) implicitly requires the provisional director to be an impartial third party. While the statute does not explicitly require the provisional director be impartial, defendants argue that because 11 of 16 States’ statutes enacting the remedy of provisional directors expressly require impartiality, the rest of the statutes assume impartiality. Defendant also relies on the fact that the trial court acknowledged that Vega could not be characterized as impartial in the “traditional” sense, and, in oral arguments, defendants observed that there is “no such thing as an impartial son-in-law.”

We disagree that there is a strict requirement of impartiality in appointing a provisional director. Defendant’s presumptive reading of legislative intent overlooks the fact that when the legislature enacted the IBCA in 1983, it was well aware of other States’ statutes expressly requiring some degree of impartiality and chose to bypass that language and place reliance on the trial court’s discretion. Section 12.55(b) states:

“A provisional director may be appointed in the discretion of the court if it appears that such action by the court will remedy the grounds alleged by the complaining shareholder ***.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 32. par. 12.55(b).

A provisional director is appointed as an alternative remedy to judicial dissolution in times of corporate strife to help guide the company through crisis toward the goal of stabilization and prosperity. When appointing a provisional director, the trial court considers only the best interests of the corporation, and not those of any warring factions. If the trial court, based upon the particular situation, finds that there is no traditionally independent third party with the skills and abilities necessary to fulfill the position within an urgent time frame, it may use its discretion to appoint a provisional director in the best interest of the corporation, whether or not that person has been aligned or appears to have been aligned with a particular group of shareholders.

To impose a strict requirement that the court find and appoint a traditionally impartial independent third party, and allow that person time to familiarize himself with the history and goals of the company and its current crisis situation, regardless of the urgency of the situation or the availability of highly competent people who may not be traditionally impartial, is to ignore the mission of section 12.55.

In this case, we find the appointment of Vega was made in the best interest of the corporation and that even though he could not be described as traditionally impartial, the trial court properly exercised discretion, given the circumstances of the case and Vega’s background.

We reject the trial judge’s reasoning that his right to appoint Vega is founded in the misdeeds of the defendants. The statute imposes upon the court a more goal-oriented approach.

Factors that a trial court may balance in evaluating candidates for provisional director include: degree and quality of past involvement in the corporation; an understanding of the corporation’s history and current situation; experience and abilities in providing a cooperative and unifying element; need for immediate appointment; degree of impartiality; and, above all, a true interest in the viability and advancement of the corporation as an entity and not allegiance to one of the deadlocked factions.

Defendants argue that Vega is merely a parrot or handmaiden of plaintiff, voting with plaintiff on matters simply because he is her son-in-law. We uphold the trial court’s finding that this is an inaccurate and unfair description of Vega, given his experience, knowledge and involvement in the corporation.

Vega has worked for Ebro for over 17 years and is familiar with every aspect of the corporation; he holds a CPA degree that enables him to understand the financial complexities of the business; he has complete knowledge of the history of Ebro’s relationship with La Pre-ferida and the Steinbarths, and the symbiosis between the two companies.

While defendants recognize that the remedy is for the benefit of the corporation whose viability is threatened by the intershareholder dispute, they state that the intent of the statute is not to create an imbalance on the board in favor of the complaining shareholder. Defendants are correct in this interpretation, but overlook the fact that they have retained all of the shareholder rights that they had prior to the appointment of the provisional director.

Defendants cite Gidwitz v. Lanzit Corrugated Box Co. (1960), 20 Ill. 2d 208, 170 N.E.2d 131, to support its argument that Vega should be removed because defendants are effectively prohibited from participating in major corporate decisions because Vega creates a de facto majority in favor of plaintiff. In Gidwitz, dissident factions arose among shareholders of a corporation and the court dissolved the corporation because it found that the president, with the support of other family members owning one-half of the shares, ran the company oppressively. The court stated that the business was run by the president almost as a sole proprietorship with no regard for the views of the other one-half of the shareholders and directors.

We find this case differs from Gidwitz in that the trial court made no findings that any of Vega’s actions were “oppressive,” nor did it find that La Preferida was excluded from participating in the management of Ebro.

We agree with the trial court’s findings in this case that a simple split in votes, however consistent, does not create a de facto majority, nor does it disenfranchise a shareholder. Corporation law does not guarantee shareholders the outcome of a vote, merely a right to vote. Given the trial court’s findings in the underlying derivative suit, it is to be expected that a provisional director, bound by duty to act in the best interests of the corporation, might be wary of votes cast by the offending shareholder in the suit. Simply because the provisional director does not agree with a voting shareholder does not automatically evidence improper impartiality.

We find Vega’s appointment was properly within the discretion of the trial court and posed no infringement on defendants’ shareholder rights.

Defendants next contend that even if the appointment of Vega is valid, he should be removed from office because he performed certain acts that are inconsistent with his statutory and court-imposed duties and responsibilities. Defendants argue that Vega failed his responsibilities as provisional director when he:

(1) submitted a proposal to Kraft for the sale of jalepeno peppers which entailed additional expenses for Ebro of approximately $300,000 without prior review by or approval of the board of directors;

(2) terminated La Preferida’s 25-year role as the exclusive distributor of the “El Ebro” line of food products without presenting a cost-benefit analysis to or seeking the approval of the board of directors;

(3) hired a new auditor to prepare a certified audit for 1990 without the approval of the board of directors;

(4) voted against a proposal limiting management’s ability to make financial and operational commitments on behalf of the corporation;

(5) voted in favor of reimbursing plaintiff for attorney fees and costs and to pay directly the attorney fees and costs on appeal even though there was no deadlock on the issue and even though defendant’s director asked that the vote be postponed so he could further consider the issue;

(6) failed to attempt to reach any compromise prior to voting on disputed proposals;

(7) failed to ensure the preparation of complete and accurate minutes of board meetings; and

(8) failed to provide defendant’s director an agenda for a meeting until the start of the meeting.

Because a provisional director is an officer of the court, it is the trial court’s duty to oversee the provisional director’s actions. Upon reviewing the evidence and the parties’ arguments, the trial court found that even though technical inaccuracies may have occurred regarding board procedure, none of the oversights, either separately or cumulatively, were enough to justify removal of Vega. The court found that the provisional director breached no duty to the corporation and remains committed to the best interests of Ebro.

We find the record upholds the trial court’s determinations, and we affirm, with the exception of the charges involving the unilateral management decision to hire a new certified auditor and the mode of approval of attorney fees for Zenaida, which we reverse as inconsistent with the duties of a provisional director.

We partially reverse the trial court’s order pursuant to Supreme Court Rule 366, which allows a reviewing court to enter any judgment and make any order that ought to have been given or made, and make further orders and grant any relief, including a partial reversal, that a case may require. 134 Ill. 2d R. 366.

It is generally accepted, unless corporate bylaws provide otherwise, that it is improper for management of a corporation to directly hire the auditors whose mission it is to evaluate management’s performance. Auditors are often selected by a committee of independent nonmanagement directors or by a full board of directors. (Knepper, Liability of Corporate Officers & Directors §1.03, at 5-6 (4th ed. 1988); Brodsky & Adamski, Corporate Officers & Directors §8.05, at 8 (1984); Farrell, The Audit Committee—A Lawyer’s View, 28 Bus. Law. 1089, 1091 (1973).) While there is no Illinois law directly addressing this issue, we find that in the instant case, any decision regarding the selection of a new auditor should have been reserved for the full board of directors and not made unilaterally by management, absent any contrary corporate bylaws. We find invalid Vega’s unilateral appointment of an auditor and order the full board of directors to vote on selection of an auditor.

We also hold invalid the board of directors’ vote to reimburse plaintiff and order that the proposal be put to a vote that incorporates proper procedure. In that decision, plaintiff and Vega voted in favor of reimbursing plaintiff for attorney fees while Smider abstained, stating he needed more time to study the proposal. The trial court determined that all relief for plaintiff’s attorney fees be considered by the corporation directly and that the board must find a way to “filter” it down to plaintiff. From the record it appears that the process used to reach the outcome of the vote was deficient in that Vega and plaintiff improperly voted.

Provisional directors appointed under section 12.55 are officers of the court and serve at the discretion and direction of the court. The trial court specifically instructed Vega to vote only upon deadlocked matters. We do not find Smider’s abstention on the vote created a deadlock. Smider stated that he abstained from the vote because he had received the proposal only a short while before the meeting. Smi-der requested that the decision be postponed so he could vote on the matter cognizant of all relevant information. The trial court had instructed Vega, as provisional director, to ensure that the board of directors operated in a “very formal fashion — the board of directors meetings would be set meetings; people would know when they would be; agendas would be prepared, agendas would be kept; [and] that a record of the board of directors meeting would be kept *** that there be some record so that people can validate what was said.”

We do not find it unreasonable under the circumstances for Smi-der to ask that the vote be postponed until he could thoroughly review the proposal for reimbursement; to vote without doing so would be an abdication of his duty as director to vote only when fully informed. Because there was no deadlock, we find Vega improperly voted on this issue.

We now examine plaintiff’s vote to reimburse herself attorney fees. The Illinois Business Corporation Act addresses the issue of a director’s potential conflict of interest. Ill. Rev. Stat. 1989, ch. 32, par. 8.60.

Section 8.60 of the statute states:

“Director conflict of interest, (a) If a transaction is fair to a corporation at the time it is authorized, approved, or ratified, the fact that a director of the corporation is directly or indirectly a party to the transaction is not grounds for invalidating the transaction.
(b) In a proceeding contesting the validity of a transaction described in subsection (a), the person asserting validity has the burden of proving fairness unless:
(1) the material facts of the transaction and the director’s interest or relationship were disclosed or known to the board of directors or a committee of the board and the board or committee authorized, approved or ratified the transaction by the affirmative votes of a majority of disinterested directors, even though the disinterested directors be less than a quorum; ***. ***
The presence of the director, who is directly or indirectly a party to the transaction described in subsection (a), or a director who is otherwise not disinterested, may be counted in determining whether a quorum is present but may not be counted when the board of directors or a committee of the board takes action on the transaction.
For purposes of this Section, a director is ‘indirectly’ a party to a transaction if the other party to the transaction is an entity in which the director has a material financial interest or of which the director is an officer, director or general partner.” Ill. Rev. Stat. 1989, ch. 32, par. 8.60.

Since defendants have challenged the validity of the transaction pursuant to subsection (b) by questioning the legality of the voting process, the statute states that plaintiff carries the burden of showing the transaction to be fair unless a majority of disinterested directors know of plaintiff’s interest and vote in favor of the transaction.

We first find that plaintiff is an interested party directly or indirectly benefited by the board’s decision since plaintiff would gain reimbursement of monies from Ebro for her pursuit of the action against defendants. Also, the section clearly states that while an interested director’s presence may be counted toward a quorum of the board, that director may not vote when the board takes action on the transaction. While the presence of all three directors at the meeting met a quorum, we find plaintiff improperly voted on the transaction to reimburse herself attorney fees. Ill. Rev. Stat. 1989, ch. 32, par. 8.60(b)(1).

We note that while this situation is not identical to a classic conflict of interest case involving a director, the need for a vote untainted by personal interest remains, regardless of the underlying reason for the vote. Plaintiff might have feared Smider would not vote to reimburse her, but that fear appears unfounded since defendants admit in their reply brief that they do not appeal that portion of the order authorizing Ebro to reimburse plaintiff for her expenses in litigating the case. Defendants specifically state that they decline to appeal the order authorizing reimbursement for fees out of the damages recovered.

It appears that defendants desire only to assure a vote by valid process and raise no other issue regarding plaintiff’s full and fair reimbursement of attorney fees and costs in connection with the trial. Since the trial court ordered a stay upon the reimbursement of attorney fees on March 30, 1990, pending appeal, we remand so the decision to reimburse plaintiff is put to a proper vote by the board of directors in accordance with the views here expressed.

While the appointment of a provisional director is made pursuant to an authorizing statute, the trial court making the appointment retains discretion to limit and control a provisional director’s powers since he serves as an officer of the court in the best interests of the corporation. Therefore, we recognize that the trial court upon remand may be required to amend the role of the provisional director to require him to vote on this issue since plaintiff’s presence may only be counted toward a quorum. If the current restrictions remain in place, only Smider will be allowed to vote, which will amount to only 50% of the disinterested director vote. Since the issue must receive a majority of votes from disinterested directors, the trial judge may wish to instruct Vega to cast a vote upon this issue.

At this point, we reiterate the trial court’s admonition that in a uniquely structured corporate situation such as this, it is highly prudent to retain outside counsel to avoid further complications in the decision-making process. Complex issues regarding legality of votes and the division of corporate responsibility between management and the board need to be examined carefully in order to adhere to corporate bylaws and corporation law.

Defendants next take issue with the trial court’s award of attorney fees to Ebro separate from damages, to be paid by all defendants, except the nominal defendant Ebro. (Damages were set at $211,000, while plaintiff’s attorney fees were approximately $170,000.) The court stated that the fees were not to be paid directly to plaintiff, who paid the expenses out of her own pocket, but to Ebro, the corporation benefitted by the suit. While the trial judge recognized that plaintiff paid the expenses, he stated that the board of directors would have to find some way to “filter it down to her,” but noted that she is “clearly” entitled to be reimbursed.

The trial court stated that its separate award of attorney fees is based upon IBCA section 12.55(h), common law and general equitable authority vested in a chancery court.

Defendant argues that this action by the trial court is directly contrary to the “American Rule” under which the prevailing party is not entitled to recover attorney fees as costs or otherwise. (See Alyeska Pipeline Service Co. v. Wilderness Society (1975), 421 U.S. 240, 245, 44 L. Ed. 2d 141, 146, 95 S. Ct. 1612, 1615.) Illinois common law adopts the American Rule, and absent specific statutory authority or other agreement or stipulation specifically authorizing them, attorney fees and other ordinary expenses and burdens of litigation may not be awarded. Ritter v. Ritter (1943), 381 Ill. 549, 553, 46 N.E.2d 41; Sanelli v. Glenview State Bank (1984), 126 Ill. App. 3d 411, 415, 466 N.E.2d 1119.

One of the judicially created exceptions to the requirement that attorney fees be specifically authorized by statute or agreement has been recognized in the context of shareholder derivative suits. In those suits, attorney fees and costs may be recovered by the successful shareholder-litigant, but only out of the “common fund” awarded as damages in the litigation. Hallmark Personnel, Inc. v. Pickens-Kane Moving & Storage Co. (1980), 82 Ill. App. 3d 18, 401 N.E.2d 1049; Bingham v. Ditzler (1943), 320 Ill. App. 88, 89, 99, 49 N.E.2d 812; see Maynard v. Parker (1977), 54 Ill. App. 3d 141, 143, 369 N.E.2d 352; Mid-West National Bank v. Metcoff (1974), 23 Ill. App. 3d 607, 614, 319 N.E.2d 336.

Although the trial court relied in part upon Bingham for the proposition that attorney fees could be awarded separate from damages, we must disagree with that determination. The Bingham court stated that the issue was “whether or not in a minority stockholder suit a plaintiff is entitled to be paid out of the recovery her reasonable attorneys’ fees where she has successfully compelled the restoration to the corporation of moneys unlawfully appropriated by its officers and directors.” (Emphasis added.) Bingham, 320 Ill. App. at 89.

The Bingham court then remanded so the trial court could award fees, with directions to determine the amount of reasonable attorney fees and to “make allowance therefor of and from all moneys thereafter received by the defendant” (Bingham, 320 Ill. at 98-99), thus indicating an intention to provide recovery of attorney fees from the whole of the common litigation fund, and not separately.

We conclude, therefore, that absent specific statutory authority or agreement, the trial court is precluded from awarding attorney fees.

Plaintiff cites Ross v. 311 North Central Avenue Building Corp. (1970), 130 Ill. App. 2d 336, 264 N.E.2d 406, in which the court ruled that defendants could be ordered to pay attorney fees and costs separately, pursuant to Lee v. Retirement Board of the Policeman’s Annuity & Benefit Fund (1964), 31 Ill. 2d 252, 256, 201 N.E.2d 361, and equitable principles. However, we believe that the Ross court’s reliance upon Lee is apparently misplaced. Lee pertained not to attorney fees, but to a master’s fee which was included in an award of costs under section 18 of “An Act to revise the law in relation to costs” (Ill. Rev. Stat. 1975, ch. 33, par. 18) (the predecessor of Ill. Rev. Stat. 1989, ch. 110, par. 5—118). Neither of these two statutes ever in-eluded attorney fees as part of costs allowable absent a statutory provision or other agreement to that effect. See, e.g., Hamer v. Kirk (1976), 64 Ill. 2d 434, 437, 444, 356 N.E.2d 524; Sanelli v. Glenview State Bank (1984), 126 Ill. App. 3d 411, 466 N.E.2d 1119.

We further find the Ross case creates no precedent because no cases since Ross describe it as authority for an award of attorney fees against a losing party in a derivative suit. As defendant argues and we agree, it has been cited only as an example of the “common fund” exception to the general rule that attorney fees are not recoverable. Hallmark Personnel, Inc. v. Pickens-Kane Moving & Storage Co. (1980), 82 Ill. App. 3d 18, 24, 401 N.E.2d 1049; Mid-West National Bank v. Metcoff(1974), 23 Ill. App. 3d 607, 614, 319 N.E.2d 336.

The trial court stated that it relied, in part, upon the IBCA, presumably section 12.55(h), in assessing attorney fees against defendants. That section provides:

“If the court determines that any party in an action commenced under Section 12.50 has acted arbitrarily, vexatiously, or not in good faith in such action or in connection with any alternative relief provided in this Section, the court may, in its discretion, award attorneys’ fees and other reasonable expenses to the other parties to the action who have been affected adversely thereby.” (Emphasis added). Ill. Rev. Stat. 1989, ch. 32, par. 12.55(h).

The language of section 12.55(h) reveals that the authority to award fees is limited to situations in which the court determines that a party in a case commenced under section 12.50 has acted arbitrarily, vexatiously or not in good faith “in such action.” While the trial court stated that it found defendants were guilty of “self-serving misdeeds and breaches of fiduciary duty,” within the context of the evidence presented during the case, it did not properly base its award of attorney fees upon defendants’ actions within the course of the litigation process itself (“in such action”). Because the trial court did not find that defendants acted arbitrarily, vexatiously or in bad faith within the course of the litigation as section 12.55(h) requires, the award of attorney fees above and beyond the damages awarded must be reversed.

In addition, the trial court specifically stated that it did not rely upon section 2 — 611 of the Illinois Code of Civil Procedure or upon Supreme Court Rule 137, both of which relate to sanctions regarding pleadings, motions and other papers.

Plaintiff argues that defendants have acted arbitrarily, vexatiously and in bad faith “in connection with alternative relief” provided by section 12.55 (i.e., appointment of a provisional director). Plaintiff cites the trial court’s litany of misconduct by the defendants as represented by the evidence in the case. While we agree that the evidence shows defendants’ misconduct to be the underlying cause of the litigation, there has been no finding by the trial court that defendants have acted arbitrarily, vexatiously or in bad faith after the provisional director was appointed. Again, the language of 12.55(h) refers to conduct during the course of the litigation process itself, not to those acts giving rise to a cause of action. Given the trial court’s explicit basis for its ruling, we find that attorney fees must be paid out of the common fund, in this case, damages.

Further, while the trial court stated that it partially relied upon its equitable powers in awarding attorney fees, we can find no substantial support for the idea that a court may award attorney fees according to its view of the egregiousness of the defendants’ actions.

An examination of legislative amendments and debates regarding the 1983 Business Corporation Act establishes that the legislature did not intend to deviate from the American Rule that parties pay their own attorney fees. In fact, any intended deviation from that standard, or any possible confusion on that point, was generally made clear. For example, in legislative debate regarding section 11.70(h), procedure for dissenting shareholders, the pending bill was amended so that “in the area of fees and derivative actions, *** it restores the current law [American Rule] with regard to fees and derivative actions.” (83d Ill. Gen. Assem., House Proceedings, October 19, 1983, at 185 (statements of Representative Cullerton).) Prior to the amendment, the bill had proposed allowance of judicial discretion in awarding attorney fees in a dissenting shareholder’s appraisal proceeding. See Ill. Rev. Stat. 1989, ch. 32, par. 11.70(h).

This excerpt exemplifies the legislature’s view that unless a specific section provides otherwise, the American Rule remains in place. Therefore we must find that section 12.55 does not provide a trial judge with discretion to award attorney fees absent a finding of vexa-tiousness during the course of the remedial proceeding, and not during the rise of the cause of action.

As for the issue of the injunction, defendants do not challenge a permanent prohibition against disclosure of Ebro’s product formulas, but contend that the breadth of the injunction on its face prohibits lawful, judicially recognized means of reproducing products that are publicly available. The portion of the trial court’s order regarding the injunction provides:

“(2) Shareholders in Ebro Foods, both corporate and individual, and anyone acting for and on behalf of shareholders are hereby prohibited and enjoined from disclosing the product formulas or from disseminating any data from which the formula may be ascertained to anyone not employed by Ebro Foods without a confidentiality agreement first having been executed between the recipient and Ebro Foods. Shareholders are further enjoined from using the name ‘Ebro’ on any product or service without the express written consent of the corporation Ebro Foods. Inc.”

Defendants ask this court to vacate the injunction or to limit it so that they may independently develop products without the use of the formulas or with other confidential information. Defendants contend that the phrase “or from disseminating any data from which the formula may be ascertained” enjoins them from engaging in lawful and appropriate means of replicating the product formulas. Defendants argue that since the plain language of the injunction perpetually enjoins them from disseminating any “data” from which the formula may be derived, such data could be construed to include the ingredient label.

While we affirm the order imposing the injunction itself, we find that, on its face, it may be interpreted too broadly.

The Illinois Supreme Court has stated that the exact nature and duration of an injunctive remedy must be tailored to fit the facts of the case (Brunswick Corp. v. Outboard Marine Corp. (1980), 79 Ill. 2d 475, 479, 404 N.E.2d 205) and that an injunction should generally be only as broad as is necessary to protect the rights of the plaintiff. (Village of Wilsonville v. S C A Services, Inc. (1981), 86 Ill. 2d 1, 29, 426 N.E.2d 824.) While all parties involved in this dispute recognize that the product formulas are trade secrets entitled to protection, we point out that trade secrets are not protected against discovery by fair and honest means, such as by independent invention, accidental disclosure, or reverse engineering. I L G Industries, Inc. v. Scott (1971), 49 Ill. 2d 88, 92, 273 N.E.2d 393.

The Brunswick court noted that the two fundamental policies underlying trade secret protection, encouragement of invention and maintenance of that oxymoron — commercial morality, are joined by a third element in shaping a remedy: a public interest in having free competition in the sale and manufacture of goods not protected by a valid patent. Brunswick, 79 Ill. 2d at 478.

When a trade secret is incorporated in a product available to the general public, any person may obtain the item and discover the trade secret through reverse engineering. In this situation, the trial court will generally hold the length of the injunction to be, where ascertainable, the period of time necessary for the defendant to copy or develop the trade secret by lawful means. (Brunswick, 79 Ill. 2d at 478; I L G Industries, Inc. v. Scott (1971), 49 Ill. 2d 88, 97-98; Schulenburg v. Signatrol, Inc. (1965), 33 Ill. 2d 379, 387-88, 212 N.E.2d 865.) The Brunswick court stated that if a trade secret were lawfully discoverable, a permanent injunction could provide a plaintiff windfall protection and would subvert the public interest in fostering competition.

In the present case, the products which defendants seek to replicate are available to the public and anyone may attempt to duplicate the products through reverse engineering using any information available to the public, including an ingredient label on the product itself. However, the trial court held, and we affirm, that the product formulas are the property of the Ebro corporation and shall not be released to defendants or anyone else seeking to copy the products, absent a valid written agreement prepared under the proper corporate procedures.

We find therefore, that the form of the injunction is overbroad, so we remand this issue to the trial court to delete the language “or from disseminating any data from which the formula may be ascertained” to make clear that defendants or any other person seeking to replicate the products may make use of any information available to the public. The present case is similar to Tsuetaki v. Novicky (1983), 158 Ill. App. 3d 505, 509 N.E.2d 1019, in which this court found that an injunction entered following the breach of an employment contract was overly broad where the trial court essentially enjoined all information relating to plaintiff’s manufacture of contact lenses, and remanded to give the trial court an opportunity to specifically delineate what information was to remain confidential. Tsuetaki, 158 Ill. App. 3d at 514.

Finally, defendants argue that the method used to calculate damages is incorrect and the trial court’s award is too high because it considered “gross profits” rather than “net profits.” Defendants argue that the trial court failed to require plaintiff to assess the costs involved in selling the product. We affirm the damages award.

We first find that defendants have waived this issue since they failed to raise it in the trial court. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 475 N.E.2d 872.) A court may allow exceptions to the waiver rule when there is an issue of public importance presented or when enforcement of the rule will achieve an unjust result. (In re Marriage of Rodriguez (1989), 131 Ill. 2d 273, 279, 545 N.E.2d 731.) However, the waiver rule should not be ignored if the opposing party could have introduced evidence to contest or refute the assertions made on appeal, had he the opportunity to do so in the trial court. (Rodriguez, 131 Ill. 2d at 279.) We find this last statement applies to the present case, since defendants’ failure to raise the issue of the proper measure of lost profits deprived plaintiff of a chance to respond with her own information on that subject, and deprived the trial court of a chance to consider both arguments.

We find that since both parties used the same standard (gross profits) for measuring lost profits, and either was free to raise the issue of which standard was to be employed, both acquiesced to the use of the gross profits standard by failing to assert in the trial court that net profits were the proper standard.

Vega testified that the La Preferida profit on the misappropriated Kraft business was 35% above costs, while defendant Ralph Stein-barth testified that he thought the markup was only 27%. The trial court found, however, that defendants could provide no documentation as to the correct net profit margin. Further, the trial court expressed surprise when La Preferida’s comptroller Gelabart testified that he did not know the profit margin either. The court stated that absent documentation or a credible explanation of net profits, it would accept the 35% figure, noting that there is no requirement of absolute certainty as to the amount of loss, but rather that there be a fair assessment of damages based upon the evidence.

We recognize that the general standard for determining lost profit is net profit, that is, gross profits minus costs. (Madigan Brothers, Inc. v. Melrose Shopping Center Co. (1990), 198 Ill. App. 3d 1083, 1090, 556 N.E.2d 730; S.A. Maxwell Co. v. De Soto, Inc. (1979), 73 Ill. App. 3d 844, 850, 392 N.E.2d 33.) In recovering lost profits, it is not necessary that the amount of loss be proven with absolute certainty. (Midland Hotel Corp. v. The Reuben H. Donnelley Corp. (1987), 118 Ill. 2d 306, 315-16, 515 N.E.2d 61.) Rather, a court may determine damages upon a reasonable degree of certainty or a fair degree of probability as to the amount of such damages, given the evidence available. (Hagshenas v. Gaylord (1990), 199 Ill. App. 3d 60, 77-78, 557 N.E.2d 316; Madigan Brothers, 198 Ill. App. 3d 1083, 556 N.E.2d 730.) Standards for reversing a determination of damages are stringent and a trial court’s award will not be set aside unless it is contrary to the manifest weight of the evidence. Schatz v. Abbott Laboratories, Inc. (1972), 51 Ill. 2d 143, 281 N.E.2d 323; Hagshenas, 199 Ill. App. 3d at 77; Harris v. Faultfinders, Inc. (1981), 103 Ill. App. 3d 785, 431 N.E.2d 1205.

For all of the foregoing reasons, we affirm in part and reverse and remand in part in accordance with this opinion.

Affirmed in part; affirmed as modified in part; vacated in part and remanded.

RIZZI and TULLY, JJ., concur.

      Ga. Code Ann. §14—2—941 (1989); Ill. Rev. Stat. 1989, ch. 32, par. 12—55(b); Ohio Rev. Code Ann. §1701.911 (Baldwin 1986); S.C. Code Ann. §33—18—410 (Law. Co-Op. 1990); Wyo. Stat. §17-17-141 (1977).

        We do not intend to place the corporation, the board or the trial court in a “catch 22” situation by disqualifying plaintiff. The court may make the ultimate decision as to these attorney fees in an action by plaintiff against Ebro which might be heard in this case since all of the parties are already of record. Plaintiff’s cause of action would be satisfied only from funds received in the damage award.