author: JUSTICE LINDBERG

text:
      In re MARRIAGE OF VIVIANITA BINGHAM, Petitioner-Appellant, and RICHARD W. BINGHAM, Respondent-Appellee.
    Second District
    No. 2—88—0823
    Opinion filed April 27, 1989.
    Gary C. Flanders, of Alexander & Cicero, P.C., of Rockford, for appellant.

      Stephen C. Pemberton, of Williams & McCarthy, P.C., of Oregon, for ap-pellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

Petitioner, Vivianita Bingham, appeals the trial court’s dismissal of her petition for modification which sought 50% of respondent’s future military retirement benefits, as well as 50% of all such benefits received from February 1, 1983, to the present time. On appeal, petitioner contends that the trial court erroneously found that the judgment of dissolution, dated November 10, 1981, was not final and appealable as it reserved the issue of maintenance to a future date. Petitioner further argues that the trial court’s finding that section 510.1 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1987, ch. 40, par. 510.1) was not applicable was error. We agree with petitioner’s contentions, reverse the judgment of the trial court and remand the cause.

Respondent, Richard W. Bingham, joined the armed forces . in 1951. The parties were married on December 5, 1953. In March 1974, respondent retired from the armed forces after approximately 23 years of service.

On May 28, 1981, petitioner filed a petition for dissolution of marriage which was granted on November 6, 1981. On November 10, 1981, the trial court entered its judgment of dissolution and ordered the distribution of the parties’ property and the payment of the marital debts and attorney fees. The trial court further awarded custody of the couple’s remaining minor child, Debra, to petitioner and ordered respondent to make monthly child support payments in the amount of $200. Petitioner was not awarded monthly maintenance payments at the time of the dissolution, and the order specifically reserved the issue “until the minor child reaches 18, or until he [sic] finishes high school, whichever is later.” At the time of the dissolution, Debra was 16 years old.

Shortly before Debra graduated from high school, petitioner filed a petition for modification seeking maintenance. The trial court granted the petition on August 6, 1984, and ordered respondent to make monthly maintenance payments of $100 to petitioner for 18 months.

On March 5, 1986, petitioner filed a petition for modification seeking an award of 50% of respondent’s future military retirement benefits as well as 50% of all such benefits received by respondent from February 1, 1983, to the filing of the petition herein. Respondent resisted the petitioner’s request for modification on the ground that the dissolution order of November 10, 1981, was not “final” within the meaning of section 510.1 of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 510.1). This statute provides for the reopening of dissolution orders, judgments or agreements that became final between June 26, 1981, and February 1, 1983, for the purpose of reconsidering the distribution of military retirement benefits. (Ill. Rev. Stat. 1987, ch. 40, par. 510.1.) Respondent argued that the dissolution order did not become final until the trial court issued its modification order which awarded petitioner maintenance payments on August 6, 1984, a date which fell outside the window of opportunity provided by the statute.

In an order filed August 1, 1988, the trial court found that the dissolution judgment of November 1981 did not become final and ap-pealable until August 6, 1984, with the entry of the court’s maintenance order; thus, section 510.1 was not applicable, and petitioner’s petition to modify filed March 5,1986, was dismissed.

Some months prior to the dissolution of the parties’ marriage, the United States Supreme Court issued its decision in McCarty v. McCarty (1981), 453 U.S. 210, 69 L. Ed. 2d 589, 101 S. Ct. 2728, in which it declared that Federal law precluded State courts from dividing military nondisability retirement pay pursuant to State property distribution laws in a dissolution of marriage proceeding. We note that on the date of dissolution in the instant case, neither party presented any testimony whatsoever regarding respondent’s receipt of military retirement benefits, nor did petitioner make any request for an award of a portion of such benefits.

On February 1, 1983, Congress enacted the Uniformed Services Former Spouses Protection Act (10 U.S.C.A. §1408(c)(l) (West 1983)), which provides:

“Subject to the limitations of this section, a court may treat disposable retired or retainer pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court.” (10 U.S.C.A. § 1408(c)(1) (West 1983).)

The legislative history of this Act reveals Congress’ purpose as follows:

“ ‘The provision is intended to remove the federal pre-emption found to exist by the United States Supreme Court [in McCarty] and permit State and other courts of competent jurisdiction to apply pertinent State or other laws in determining whether military retired or retainer pay should be divisible. Nothing in this provision requires any division; it leaves that issue up to the courts applying community property, equitable distribution or other principles of marital property determination and distribution. This power is returned to the courts retroactive to June 26, 1981. This retroactive application will at least afford individuals who were divorced (or had decrees modified) during the interim period between June 26, 1981 and the effective date of this legislation the opportunity to return to the courts to take advantage of this provision.’ ” In re Marriage of Korper (1985), 131 Ill. App. 3d 753, 756-57, 475 N.E.2d 1333, 1335-36, quoting S. Rep. No. 502, 97th Cong., 2d Sess. 16, reprinted in 1982 U.S. Code Cong. & Admin. News 1596, 1611.

Thus, by the enactment of the Uniformed Services Former Spouses Protection Act, Congress abrogated the application of the McCarty decision to all dissolutions of marriage retroactive to the issuance of the McCarty decision.

The State of Illinois thereafter enacted section 510.1 of the Illinois Marriage and Dissolution of Marriage Act, which provides, in pertinent part:

“Sec. 510.1. Division of military retirement benefits.
(a) Agreements, judgments or orders that became final on or after June 26, 1981, and before February 1, 1983, may be modified to include a division of military retirement benefits payable on or after February 1, 1983, in a manner consistent with federal law and the law of this State as it existed before June 26, 1981, and as it has existed since February 1, 1983. (Ill. Rev. Stat. 1987, ch. 40, par. 510.1(a).)

Section 510.1 became effective September 23, 1987, and provides an exception to the two-year limitation on the reopening of judgments set forth in section 2 — 1401(c) the Code of Civil Procedure (see Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401(c)).

The issue before us centers on the meaning of the word “final” as stated in section 510.1 of the Act. As we noted above, this section provides an opportunity for a party to a dissolution of marriage to seek distribution of military retirement benefits which were previously exempted by virtue of the McCarty decision. The application of section 510.1 is limited to dissolution judgments, orders or agreements which became “final” between June 25, 1981, and February 1, 1983, exclusive. Respondent argues that this section is not applicable because the parties’ dissolution did not become final within this period, as the issue of maintenance was reserved and acted upon at a later date. He relies principally upon In re Marriage of Leopando (1983), 96 Ill. 2d 114, 449 N.E.2d 137, in which the supreme court held that the myriad issues involved in a petition for dissolution advance but a single claim and until all such issues are resolved, a petition for dissolution is not fully adjudicated. (96 Ill. 2d at 119, 449 N.E.2d at 140.) The Leopando holding advances the policy underlying Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) which discourages piecemeal appeals and the fragmentation of litigation. See Leopando, 96 Ill. 2d at 119-20, 449 N.E.2d at 140.

Petitioner urges that the dissolution order entered by the trial court on November 10, 1981, was final because it was enforceable immediately without further action. In this respect, petitioner compares the instant facts to those presented in In re Marriage of Cannon (1986), 112 Ill. 2d 552, 494 N.E.2d 490, and we find the comparison appropriate. In Cannon, the trial court’s dissolution order distributed the parties’ property and ordered temporary maintenance, while reserving the right to review the maintenance order within two years. The husband appealed the maintenance order, claiming that it was excessive, and the appellate court dismissed his appeal on the basis of Leopando. Cannon, 112 Ill. 2d at 554, 494 N.E.2d at 491.

Upon review, the supreme court distinguished Leopando, where it noted the trial court had entered a custody order only and had reserved all other issues, while in the facts before the Cannon court, all issues had been decided. The supreme court stated:

“ ‘A judgment is final if it determines the litigation on the merits so that, if affirmed, the only thing remaining is to proceed with the execution of the judgment. ***’ [Citation.] *** The order was enforceable without further action and was, therefore, final and appealable.” 112 Ill. 2d at 556, 494 N.E.2d at 492.

This court considered a similar situation in In re Marriage of Lord (1984), 125 Ill. App. 3d 1, 465 N.E.2d 151, in which the trial court’s dissolution order resolved all issues and did not award the wife maintenance, reserving that question for two years. We concluded that the trial court’s reservation on the issue of maintenance contained an implicit finding that maintenance was not justified under the circumstances attendant at the time of the dissolution. We held that the trial court had appropriately reserved jurisdiction on one issue alone, and the policy against fragmented litigation enunciated in Leopando was not severely undercut. Thus, the trial court’s dissolution judgment in Lord was final and appealable. Our decision in Lord distinguished both the factual circumstances and the policy considerations faced by the supreme court in Leopando. See also In re Mar riage of Parks (1984), 122 Ill. App. 3d 905, 461 N.E.2d 681 (where we concluded that the public policy considerations underlying Leopando discouraging piecemeal appeals and fragmented litigation would not be served by denying the dissolution judgment at issue finality).

The appellate court, relying upon the supreme court’s decision in Cannon, reached a similar conclusion to the holdings set forth in Lord and Parks, discussed above, in In re Marriage of Lawrence (1986), 146 Ill. App. 3d 307, 496 N.E.2d 538. In Lawrence, the husband appealed the trial court’s award of $800 monthly maintenance payments which was to be reviewed within three years. The appellate court determined that the maintenance award in question, like that considered in Cannon, was permanent and enforceable in spite of the fact that it was reviewable in three years. (146 Ill. App. 3d at 310, 496 N.E.2d at 541.) The court stated, “We see no justification for precluding appellate review of the excessiveness or inadequacy of an award of maintenance for a three-year period ***. Accordingly, we deem the trial court’s maintenance award to be ‘final,’ but subject to the trial court’s later review.” Lawrence, 146 Ill. App. 3d at 310, 494 N.E.2d at 541.

The situation before us closely parallels that presented in the Lord case in that at the time of the dissolution, the trial court decided all issues, including the need for maintenance payments to the wife. In November 1981, the trial court discerned a lack of necessity and thus did not award maintenance payments to petitioner. Thus, a determination on the issue of maintenance was made at that time. The judgment, was enforceable immediately and, therefore, final. See Cannon, 112 Ill. 2d at 552, 494 N.E.2d at 492; see also Lord, 125 Ill. App. 3d at 4, 465 N.E.2d at 153.

Respondent argues that the unique facts presented in Lord distinguish it from those presented in the instant case. We agree that the facts differ; the instant case does present truly unique circumstances. At the time of the dissolution order, petitioner was precluded from requesting the trial court to consider distribution of respondent’s military retirement benefits as marital property and thereby include such benefits within the order of distribution. Petitioner belongs to a discrete and finite group of divorced persons affected by this peculiar disability to whom the Illinois General Assembly has granted a onetime opportunity to relitigate the issue of property distribution with regard to military pension benefits only. This special right provided in section 510.1 of the Act places petitioner and other similarly situated litigants on the same footing as persons who were divorced prior to the Supreme Court’s decision in McCarty or after Congress enacted the Uniformed Services Former Spouses Protection Act on February 1, 1983. Further, the special opportunity provided in section 510.1 was automatically repealed as of January 1,1989.

We conclude that it was the intention of the legislature that the word “final” refers to a judgment where the litigation has been determined on its merits, so that, if affirmed, the only thing remaining is to proceed with the execution of the judgment. Such is the case here. The court decided that maintenance was denied but reserved jurisdiction to consider maintenance at a future date. As in Lord, the trial court’s November 10, 1981, judgment was a final determination on the then present lack of need of maintenance and the retention of jurisdiction to modify the order and to award maintenance later if circumstances warranted. See Lord, 125 Ill. App. 3d at 4, 465 N.E.2d at 153.

The judgment of the circuit court is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

REINHARD and INGLIS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McLAREN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARRETT GAROFALO, Defendant-Appellant.
    Second District
    No. 2—87—1110
    Opinion filed April 27, 1989.

      Michael D. Ettinger, of Ettinger & Pechter, Ltd., of Oak Lawn (Barry S. Pechter, of counsel), for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Garrett Garofalo, was charged by indictment with reckless homicide (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 3(a)), driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501(a)(2)), driving while license revoked (Ill. Rev. Stat. 1987, ch. 951/2, par. 6 — 303(a)), and failure to report an accident involving personal injury or death (Ill. Rev. Stat. 1987, ch. 951/2, par. 11— 401(b)). Following a bench trial, defendant was found guilty on all four counts. Defendant filed a timely notice of appeal. We affirm.

On March 27, 1987, at approximately 1 a.m., Marc Cohen was hit by an automobile and killed. Shortly thereafter, Officer Kurt Rutz of the Vernon Hills police department saw a gray Thunderbird being driven with its right headlight out. The car was being driven erratically. Before Officer Rutz had a chance to investigate, he received a report of a man down in the roadway. Officer Rutz indicated that it was approximately 1.8 miles from where the Thunderbird was parked outside defendant’s apartment to the scene of the accident. Officer Rutz never saw who was driving the Thunderbird.

Officer Rutz testified that he returned to the Thunderbird after investigating the report of the man down in the roadway. The Thunderbird was parked in front of the apartment building where defendant lived. He observed damage to the front side of the car. He also noticed bloodstains on the right front fender. Rutz then set up surveillance of the automobile. Around 2 a.m., a car drove up, and three individuals got out. These individuals were later identified as James Constantine, Mike Gienko, and Daniel Wells. Officer Rutz approached the three individuals and brought them into the police station for questioning. Rutz later found out that the Thunderbird belonged to defendant’s family and that defendant used the car to go to and from work.

Officer Rutz, along with two other officers, went to defendant’s apartment to question defendant. However, the officers were unable to gain access to defendant’s apartment, despite repeated knockings and telephone calls to the apartment. Around 6 a.m., Ralph Garofalo, defendant’s father, came to the apartment and began to knock on the door. Defendant answered the door and was subsequently issued three traffic citations. Defendant stated, “You’re going to have a hard time proving that,” after receiving a citation for DUI.

Defendant retrieved his car keys from the kitchen table and was taken to the Vernon Hills police department for questioning. It was later determined that the car keys fit the gray Thunderbird’s ignition. The questioning session was tape-recorded, and the tape was admitted as evidence during the trial. Defendant stated that he had been drinking at a bar for a few hours, and then left the bar to go home. He did not know who drove the car home, which route the car took, or why there was damage to the front of his car. Defendant did not testify at trial.

James Constantine, a friend of defendant, testified at the trial. Constantine testified that he, along with two other friends, arrived at the bar around 1:15 a.m. Constantine stated that he saw defendant at the bar. It was his opinion that defendant was drunk. Constantine talked to defendant for a short period of time, and then defendant left the bar. Constantine followed defendant out of the bar in an attempt to prevent defendant from driving the car. Defendant refused to give his car keys to Constantine, stating, “I am driving.” Constantine attempted to get the keys from defendant, but was unsuccessful. However, Constantine did manage to prevent defendant from entering the driver’s side of the vehicle. Defendant went around the car and got in on the passenger’s side. Constantine walked back towards the bar, whereupon he noticed a woman walking towards defendant’s automobile. Constantine stated that this woman offered to drive defendant home several times when defendant and the woman were inside the bar. Constantine further stated that the car stayed in the parking lot for 15 to 20 minutes and then left. He did not see who was driving the car when it left the parking lot.

Constantine stated that he, along with two friends, left the bar around 1:45 a.m. As they drove home, Constantine saw police cars blocking the road. Constantine stated that he became concerned about defendant and decided to see if defendant made it home safely. Constantine testified that he drove his car to defendant’s Thunderbird, which was parked in front of the apartment building where defendant resided. Constantine observed the damage to the right front of the Thunderbird. It was at this time that Officer Rutz approached and questioned the three men.

The other two men in the car with Constantine, Mike Gienko and Daniel Wells, also testified at the trial. It was the opinion of each of them that defendant was intoxicated when he was at the bar. Both offered to drive defendant home, but defendant refused. However, neither man saw who actually drove the gray Thunderbird out of the bar’s parking lot.

Officer Merritt McPhee of the Vernon Hills police department also testified. Officer McPhee stated that he was called to the accident scene to locate and collect physical evidence. Officer McPhee recovered gray paint chips and pieces of gray plastic near the body of the victim. The paint chips and plastic were apparently from defendant’s Thunderbird. McPhee also noticed faint tire and foot impressions in the gravel on the side of the road. However, no attempt to match the impressions was made.

After closing arguments, the trial judge made the following findings:

“I take it it’s obvious that I have no doubt defendant was under the influence of alcohol to a degree which rendered him incapable of safely driving, and that Mark Cohn [sic] was killed by an automobile, the automobile being the one which the defendant had been driving, and the only question in my mind — I take it the intoxication is recklessness, and Mr. Cohn [sic] is dead because of the reckless operation of an automobile — and the only question this Court has before it is whether or not the circumstances are such that I can draw inferences from the facts in evidence which would lead me to conclude beyond a reasonable doubt that the defendant was driving that automobile. I think they do.
I think the hypothesis or theory of innocence that this mystery lady who had apparently been rebuffed in her efforts to— everyone was rebuffed in their efforts to drive this defendant home somehow, you know — we don’t know where she came from. She wasn’t seen by Mr. Constantine who got in a physical confrontation over who was going to drive the automobile. I think the theory that somehow she drove the defendant home, parked the car at his apartment complex and presumably disappeared or walked home is not a reasonable theory of innocence *** y>

Defendant was sentenced to four years’ imprisonment for reckless homicide, three years for DUI, three years for failure to report an accident involving personal injury or death, and 364 days for driving with his driver’s license suspended. All sentences were to run concurrently. Defendant filed a timely notice of appeal.

On appeal, defendant contends that: (1) defendant was not proved guilty beyond a reasonable doubt; (2) defendant was denied due process of law when the State was not required to prove every element of the reckless homicide offense beyond a reasonable doubt; (3) the trial court erred in admitting prior acts of defendant’s driving; and (4) the trial court abused its discretion in sentencing defendant.

Defendant first contends that the State did not prove him guilty beyond a reasonable doubt. In a criminal trial, the prosecution has the burden of proving all elements of the offense beyond a reasonable doubt. (People v. Lynch (1987), 151 Ill. App. 3d 987, 990.) We will not set aside a criminal conviction unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of defendant’s guilt. People v. Bartlett (1988), 175 Ill. App. 3d 686, 691.

Defendant argues that his conviction must be reversed because the State presented no evidence that defendant was actually driving the car or even behind the wheel of the car on the night in question. Defendant contends, and the State agrees, that defendant’s convictions were based solely on circumstantial evidence. It is well established that the commission of an offense may be established entirely by circumstantial evidence. (People v. Williams (1977), 66 Ill. 2d 478, 484; People v. Marino (1970), 44 Ill. 2d 562, 580; People v. Hanna (1983), 120 Ill. App. 3d 602, 612.) However, in order to sustain defendant’s convictions, his guilt must be so thoroughly established as to exclude every reasonable hypothesis of innocence. People v. Branion (1970), 47 Ill. 2d 70, 77, cert. denied (1971), 403 U.S. 907, 29 L. Ed. 2d 683, 91 S. Ct. 2213; People v. Schulz (1987), 154 Ill. App. 3d 358, 373.

' Defendant contends that the State’s own witnesses presented a reasonable hypothesis of defendant’s innocence. Specifically, defendant points out that James Constantine testified that a woman offered to drive defendant home several times, and the same woman was seen walking towards defendant when Constantine walked back to the bar. Defendant argues that a reasonable hypothesis exists in that it could have been the woman who actually drove the Thunderbird that killed Marc Cohen. Defendant states that the State failed to exclude this reasonable hypothesis, and as such, defendant’s conviction must be reversed.

The State contends that the circumstantial evidence was more than sufficient to prove defendant guilty beyond a reasonable doubt. The State points out that defendant refused to allow any of his friends to drive him home. He also affirmatively stated that he would drive himself home. The State also discounts defendant’s theory that a woman who met defendant at the bar may have been the one who actually drove the automobile. The State points out that Constantine never mentioned the existence of this woman at any time before the trial. As a final point, the State notes that defendant was in possession of the car keys to the Thunderbird when the police contacted him at 6 a.m. at his apartment.

We do not find a reasonable hypothesis arising from the evidence in this record which is consistent with defendant’s innocence. While several witnesses testified that a woman offered to drive defendant home, there was no evidence that defendant ever accepted the offer. In addition, none of the witnesses actually saw this woman drive the vehicle, or even get into the automobile. The record indicates that defendant was very adamant about driving his car home. He refused offers from each of his friends at the bar to drive him home. Defendant physically attacked Constantine when he would not let defendant into the driver’s side of the automobile. Furthermore, defendant never informed the police that some unknown woman actually drove the car. We believe the evidence of defendant’s driving, although circumstantial, was sufficient to exclude every reasonable hypothesis of his innocence.

Defendant next contends that the State was not required to prove every element of the reckless homicide offense beyond a reasonable doubt, thus violating defendant’s due process rights. Specifically, defendant argues that section 9 — 3(b) of the Criminal Code of 1961 creates a mandatory conclusive presumption, or a burden-shifting presumption, such that the State was not required to prove each element of the offense. Section 9 — 3(b) provides:

“In cases involving reckless homicide, being under the influence of alcohol or any other drug or drugs at the time of the alleged violation shall be prima facie evidence of a reckless act.” Ill. Rev. Stat. 1987, ch. 38, par. 9 — 3(b).

The Illinois Supreme Court has ruled that a conviction for DUI does not conclusively establish that the person also drove recklessly. In People v. Jackson (1987), 118 Ill. 2d 179, the court stated that “such a conviction is prima facie evidence, but it is not conclusive.” (Emphasis added.) (118 Ill. 2d at 191.) The court noted that even though a person may be operating a vehicle under the influence of alcohol, the person may not be driving recklessly. (118 Ill. 2d at 192.) We find the reasoning in Jackson to be controlling in the case at bar. Thus, we do not believe that section 9 — 3(b) creates a mandatory presumption or that it improperly shifts the burden of proof to defendant.

Defendant also asserts that the trial court improperly admitted evidence of prior acts of defendant’s driving. Defendant argues that the following testimony was irrelevant and prejudicial:

“Q. [Assistant State’s Attorney] Now, prior to that night had you ever seen that car before?
A. [James Constantine] Sure.
Q. Had you ever seen the defendant in that car before?
A. Yes.
Q. How many times?
A. A lot of times. Twenty.
Q. What was he doing when he was in the car before?
[Defense counsel] Objection. If we are going to get into the fact maybe the defendant was driving that car on prior occasions, certainly could not prove anything at this time.
[Assistant State’s Attorney]. It’s probative.
THE COURT: He can answer.
Q. What was the defendant doing on these other occasions when you saw him inside this same car?
A. I believe driving to work or back from work.”

Defendant contends that the evidence that defendant allegedly drove the Thunderbird on 20 prior occasions led the trier of fact to believe that defendant drove the vehicle on the night of the accident. We disagree. It is clear from a reading of the record that the evidence was considered only for the limited purpose of connecting defendant with the automobile. During the hearing on defendant’s post-trial motion, the trial court stated:

“I think the evidence that the Defendant on some other occasion was driving this car — it never occurred to me that this was an attempt to show other illegal acts.”

Furthermore, there was no evidence to show that any of the prior acts of driving involved any criminal activity. We agree with the trial comí; and find that such evidence was proper to connect defendant to the automobile and was not used to show defendant had a propensity to commit criminal acts.

Defendant last contends that the trial court abused its discretion in sentencing him to four years’ imprisonment. In particular, defendant notes that he should have been given probation and ordered to enter a treatment program for his alcoholism. In addition, defendant points out that he was 23 years old, had no prior felony convictions, resided with his parents, and was employed full time at the time of the offense.

The State responds by noting that defendant was previously convicted of two separate DUIs, one count of reckless driving, and had six speeding tickets. In addition, defendant attended a DUI school two previous times in an attempt to rehabilitate himself. The State concludes by noting that defendant’s sentence was similar to other sentences affirmed on appeal for similar crimes. See People v. Leonora (1985), 133 Ill. App. 3d 74 (three-year sentence for reckless homicide); People v. Rohman (1983), 117 Ill. App. 3d 55 (three years’ imprisonment for reckless homicide and 364 days for DUI, each sentence to run concurrently).

The trial court considered factors in mitigation and aggravation and concluded:

“My problem is that this is not his first offense.
He was placed on supervision for the same offense in ‘83. He then had a chance to rehabilitate himself. He was placed on conditional discharge for the same offense in 1984. And he had an opportunity to rehabilitate himself. ***
He, notwithstanding those convictions, continued to drive without a license. ***
Rehabilitation, I think, requires the Defendant to want to be rehabilitated. And he has had these years with this problem and he has done nothing about it. And it is a tragedy. *** I think that I have considered all the factors in aggravation and mitigation, including the fact that his license is revoked; he continues to drive, and the testimony of the officer that says he tried to lie about his identity back in November.
And I think it would be a mockery of justice — and considering the factors in aggravation and mitigation, I think it would disparage the seriousness of this offense to sentence the Defendant to anything other than the Department of Corrections.”

The imposition of a criminal sentence is a matter of judicial discretion, and the sentence may not be altered upon review unless there is an abuse of discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 153; People v. Katsigiannis (1988), 171 Ill. App. 3d 1090, 1102.) The trial judge is normally in the best position to determine the appropriate sentence based on such diverse factors as the defendant’s age, credibility, moral character, social environment, demeanor, and habits. (Perruquet, 68 Ill. 2d at 154.) The trial judge is certainly in the best position to consider the unique circumstances of each individual ease. Thus, the trial court’s decision with respect to sentencing is entitled to great weight and deference. People v. Younger (1986), 112 Ill. 2d 422, 427-28.

After examining the factors in aggravation and mitigation, we cannot say that the court’s sentence was excessive and an abuse of discretion. Accordingly, for the above-stated reasons, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

NASH and WOODWARD, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. THOMAS M. GRANGE, Defendant-Appellee.
    Second District
    No. 2—88—0323
    Opinion filed April 27, 1989.

      James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    No brief filed for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

The State appeals pursuant to Supreme Court Rule 301 (107 Ill. 2d R. 301) from a final judgment of the circuit court of DuPage County granting defendant’s, Thomas M. Grange’s, petition to rescind the statutory summary suspension of defendant’s license. The final judgment rescinding the summary suspension was entered March 7, 1988. No post-trial motion was filed. Notice of appeal was timely filed on April 5, 1988, within 30 days of the court’s entry of the final judgment. (107 Ill. 2d R. 303(a)(1).) Defendant has not filed a brief with this court. We proceed to address the merits of the State’s appeal. Haeflinger v. City of Wood Dale (1984), 129 Ill. App. 3d 674, 472 N.E.2d 1228.

On January 28, 1988, defendant was arrested and charged by a verified complaint with two counts of driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1987, ch. 951/2, pars. 11-501(a)(1), (a)(2)). A blood-alcohol test was requested by the arresting officer pursuant to section 11 — 501.1(a) of the Illinois Vehicle Code (the Code) (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501.1(a)). Defendant submitted to the test, which revealed a blood-alcohol content of 0.22. On January 28, 1988, defendant was given immediate notice by the arresting officer of the statutory summary suspension of his driving privileges. (Ill. Rev. Stat. 1987, ch. 95xk, par. 11 — 501.1(f).) Confirmation of statutory summary suspension of driving privileges was sent to defendant by the Secretary of State confirming that defendant’s suspension would begin as of March 14, 1988. Ill. Rev. Stat. 1987, ch. 95V2, par. 11— 501.1®.

On February 3, 1988, defendant filed a petition for a summary suspension hearing (rescission hearing) with the circuit court clerk. The petition was filed pursuant to section 2 — 118.1 of the Code (Ill. Rev. Stat. 1987, ch. 95x/2, par. 2 — 118.1) and sought a rescission of the suspension on all four issues permitted at such a hearing. (See Ill. Rev. Stat. 1987, ch. 95x/2, par. 2 — 118.1(b).) The petition requested a hearing date of March 4, 1988. The petition also stated defendant's belief that the State would be ready for such a hearing on the arraignment date of March 4, 1988. However, the actual arraignment date appearing on the complaint was March 7,1988.

On March 7, 1988, defendant filed a motion to dismiss the statutory summary suspension based on a failure to hold a rescission hearing on or before March 4, 1988, within 30 days of defendant’s February 3, 1988, request for a hearing, as required under section 2 — 118.1 of the Code (Ill. Rev. Stat. 1987, ch. 95x/2, par. 2 — 118.1). The motion was heard on March 7, 1988. The State argued that section 2 — 118.1 alternatively authorized the hearing to be held on the first appearance date, which was March 7, 1988, and, therefore, defendant’s motion to dismiss should be denied and a full hearing under section 2 — 118.1 be held. Relying on In re Trainor (1987), 156 Ill. App. 3d 918, 510 N.E.2d 614, the trial court granted defendant’s motion to dismiss the statutory summary suspension ruling that failure to hold a hearing within 30 days of defendant’s request mandated rescission of defendant’s statutory summary suspension.

On appeal, the State argues that section 2 — 118.1(b) of the Code does not mandate that a hearing be conducted within 30 days of defendant’s request but that the judge has limited discretion to conduct the hearing either (1) within 30 days of defendant’s request to the court, or (2) on the first appearance date appearing on the uniform traffic ticket. (Ill. Rev. Stat. 1987, ch. 951/2, par. 2—118.1(b); People v. Gerke (1988), 123 Ill. 2d 85, 525 N.E.2d 68.) Thus, the State argues, the trial court erred when it rescinded defendant’s summary suspension for failure to hold a hearing within 30 days when the State was ready to proceed on the rescission hearing on the first appearance date. We agree. Section 2 — 118.1(b) of the Code provides in relevant part:

“Upon the notice of statutory summary suspension served under Section 11 — 501.1, the person may make a written request for a judicial hearing in the circuit court of venue. The request to the circuit court shall state the grounds upon which the person seeks to have the statutory summary suspension rescinded. Within 30 days after receipt of the written request or the first appearance date on the Uniform Traffic Ticket issued pursuant to a violation of Section 11 — 501, or a similar provision of a local ordinance, the hearing shall be conducted by the circuit court having jurisdiction. This judicial hearing, request or process shall not stay or delay the statutory summary suspension. Such hearings shall proceed in the court in the same manner as in other civil proceedings.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 951/2, par. 2-118.1(b).)

The State argues that the trial court erred in its reliance on In re Trainor (1987), 156 Ill. App. 3d 918, 510 N.E.2d 614. The State argues that the facts in Trainor show that the first appearance date had already passed prior to defendant’s request, and the trial court never had the option of holding the rescission hearing on the first appearance date, and, therefore, the appellate court in Trainor had no need to address the alternative hearing date authorized in the language of section 2 — 118.1(b). We agree that Trainor does not directly address the facts of the instant case. Unlike Trainor, the instant case raises the issue of whether a hearing must be conducted within 30 days of a request to the court where the 30-day limit expires before the first appearance date on the uniform traffic ticket.

A plain reading of section 2—118.1(b) of the Code (Ill. Rev. Stat. 1987, ch. 951/2. par. 2 — 118.1(b)) indicates that the use of the language “the hearing shall be conducted by the circuit court having jurisdiction” is a mandate to the trial court to conduct a rescission hearing. (See People v. Gerke (1988), 123 Ill. 2d 85, 94, 525 N.E.2d 68 (unless context of statute indicates otherwise, “shall” indicates a mandatory obligation).) However, the mandate to conduct a rescission hearing is only triggered by a request from an affected driver to the court for a rescission hearing. (Ill. Rev. Stat. 1987, ch. 951/2, par. 2 — 118.1(b).) Once properly requested, the rescission hearing is to be held “[w]ithin 30 days after receipt of the written request or the first appearance date on the Uniform Traffic Ticket.” (Ill. Rev. Stat. 1987, ch. 95V2, par. 2 — 118.1(b).) The language quoted above has been interpreted by our supreme court to mean within 30 days after receipt of the written request or on the first appearance date. (People v. Gerke (1988), 123 Ill. 2d 85, 91, 525 N.E.2d 68, 71 (held timing of rescission hearing under statutory summary suspension scheme did not violate due process).) Where, as here, the 30 days elapsed before the first appearance date on the DUI offense, section 2 — 118.1(b), although requiring the trial court to conduct a hearing, does not require the trial court to conduct a hearing within 30 days of the request for a rescission hearing. In such a situation, section 2 — 118.1(b) gives the court limited discretion in choosing the time at which to conduct a rescission hearing. (Ill. Rev. Stat. 1987, ch. 951/2, par. 2 — 118.1(b).) To hold otherwise would require us to narrowly interpret a statute, which, it has been long established, is to be liberally construed by the courts. (People v. Doty (1987), 164 Ill. App. 3d 53, 517 N.E.2d 338.) The trial court erroneously believed it had no choice but to order rescission of defendant’s summary suspension of driving privileges. The trial court on March 7, 1988, “the first appearance date,” should have conducted a full hearing on all four issues properly raised by defendant under section 2 — 118.1(b). (Ill. Rev. Stat. 1987, ch. 951/2, par. 2 — 118.1(b).) Accordingly, we reverse and remand to the trial court for a full hearing on defendant’s petition to rescind.

Additionally, we note that defendant was not charged with DUI by the issuance of a uniform traffic ticket. Although defendant was arrested and charged with two counts of DUI on January 28, 1988, he was charged by a verified complaint. Defendant was also given a uniform traffic ticket on January 28, 1988, citing him for an improper turn in violation of section 11 — 801(a) of the Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 801(a)). There was no court date on that part of the uniform traffic ticket set aside to inform a violator of an appearance date. The first appearance date of March 7, 1988, appeared on defendant’s January 28, 1988, bail bond which referenced both DUI charges and the improper turn violation. Under the liberal interpretation of statutes implementing the implied consent scheme, it has been held that the issuance of a uniform traffic ticket is merely directory and not mandatory. (See People v. Ellerbusch (1983), 118 Ill. App. 3d 500, 454 N.E.2d 1166 (implied consent statute operates upon arrest of defendant, and fact of arrest is not limited to proof as evidenced by the issuance of a uniform traffic ticket under section 11— 501.1(a)).) Likewise, we do not interpret the language of section 2— 118.1(b), which is similar to section 11 — 501.1(a) in its reference to a uniform traffic ticket, to require that the first appearance date appear on a uniform traffic ticket before the court is allowed the discretion to conduct a rescission hearing on the first appearance date. Ill. Rev. Stat. 1987, ch. 951/2, par. 2-118.1(b).

Although not raised by the State, we choose to exercise our appellate discretion and address an additional ground appearing in the record upon which a reversal of the trial court is warranted. (Duncavage v. Allen (1986), 147 Ill. App. 3d 88, 497 N.E.2d 433 (waiver is limitation upon the parties, not the courts, and a reviewing court may ignore waiver in order to achieve a just result).) Our review of the record leads us to raise the question of whether or at what point in the proceedings did defendant make a sufficient request to the court for a hearing under section 2—118.1(b) of the Code (Ill. Rev. Stat. 1987, ch. 95V2, par. 2 — 118.1(b)). Section 2 — 118.1, as part of the legislature’s summary suspension scheme, should be liberally construed to accomplish its purpose of protecting the citizens of Illinois upon the highways. (People v. Doty (1987), 164 Ill. App. 3d 53, 517 N.E.2d 33.) We believe that section 2 — 118.1(b) requires more than the mere filing with the circuit court clerk of a petition for a rescission hearing before defendant’s statutory right to a hearing within 30 days begins to run. (Ill. Rev. Stat. 1987, ch. 951/2, par. 2 — 118.1(b).) Under section 2 — 118.1, the burden to proceed and the burden of proof in a rescission hearing are placed upon defendant. (People v. Blythe (1987), 153 Ill. App. 3d 292, 505 N.E.2d 402.) Defendant’s petition for a rescission hearing, stating the grounds upon which rescission is sought, is to be made “to the circuit court.” (Ill. Rev. Stat. 1987, ch. 95V2, par. 2 — 118.1(b).) Such hearings are to proceed in the court in the same manner as in other civil proceedings. (Ill. Rev. Stat. 1987, ch. 951/2, par. 2 — 118.1(b).) Unless a motion is brought to the attention of the court and the court is asked to rule on it, the motion is not effectively made. People v. Beardsley (1985), 139 Ill. App. 3d 819, 487 N.E.2d 731 (motion is an application to the court, which must be brought to the attention of the court, and the mere filing of a motion with the circuit court clerk is not a sufficient application); City National Bank v. Langley (1987), 161 Ill. App. 3d 266, 514 N.E.2d 508 (unless it appears otherwise, where no ruling appears to have been made on a motion, the presumption is that the motion was waived or abandoned).

We hold that defendant’s request for a hearing was insufficient under the statute. In the instant case, defendant never sought a hearing date before the court. Defendant did not attempt to bring his petition before the court for a ruling in any manner prior to the March 7, 1988, appearance date on the criminal complaint. The mere filing in the clerk’s office of a petition for a rescission hearing with no attempt by defendant to obtain from the court a hearing date does not meet the burden placed upon defendant to proceed in obtaining a rescission hearing under section 2—118.1(b) of the Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 2—118.1(b)). Our holding finds support in the very case defendant relied upon in the trial court. (See In re Trainor (1987), 156 Ill. App. 3d 918, 510 N.E.2d 614.) The court in Trainor held that failure to hold a rescission hearing within 30 days of the defendant’s request required the statutory summary suspension to be rescinded. However, the court in Trainor also held that where the defendant requested a substitution of judges after initially requesting a rescission hearing, the 30-day time limit for holding the hearing began to run anew from the time the new judge was furnished with a request for a rescission hearing. In re Trainor (1987), 156 Ill. App. 3d 918, 923, 510 N.E.2d 614, 617-18 (unless the delay was occasioned by the defendant, failure to hold section 2 — 118.1 hearing within 30 days of defendant’s request required rescission of suspension).

A similar result was reached in the recent case of People v. Joiner (1988), 174 Ill. App. 3d 927, 529 N.E.2d 268.) In Joiner, the defendant filed a petition for a rescission hearing on May 19, 1987. The petition was set for a hearing on June 11, 1987. On June 1, the defendant filed a motion for a substitution of judges which was granted on June 9, 1987. On June 12, 1987, the defendant filed a notice calling for a hearing before the new judge. After several continuances, the hearing on the defendant’s petition was held on June 24, 1987. The trial court rescinded the suspension due to the fact more than 30 days had elapsed since the defendant’s May 19, 1987, filing of the petition. The court in Joiner, relying on Trainor, reversed, holding that the 30-day time limit began to run anew from the June 12, 1987, notice calling for a hearing on the petition, because it was on June 12, 1987, that the new judge received the defendant’s request for a rescission hearing. (People v. Joiner (1988), 174 Ill. App. 3d 927, 929, 529 N.E.2d 268, 270.) We hold that the mere filing with the circuit court clerk of a petition requesting a hearing does not start the running of the 30-day time period in which a hearing is to be held but that, to be sufficient, such a request for a hearing must be brought to the attention of the court so that a hearing date can be set. (Ill. Rev. Stat. 1987, ch. 951/2, par. 2 — 118.1(b).) The trial court erred in ordering defendant’s statutory summary suspension to be rescinded for failure to hold a hearing within 30 days because the 30-day period did not begin to run until defendant made a request to the court for such a hearing which did not occur until March 7,1988.

We reverse the judgment of the circuit court and remand the cause for further proceedings.

Reversed and remanded.

DUNN and McLAREN, JJ., concur.


text:
    CAPSONIC GROUP, a division of Gabriel, Inc., Plaintiff-Appellant, v. ANDREW C. SWICK, Defendant-Appellee.
    Second District
    No. 2—89—0027
    Opinion filed May 1, 1989.

      James L. Poznak, of Siegel & Wille, of Oakbrook Terrace, and Sperling, Slater & Spitz, of Chicago (Bruce S. Sperling, of counsel), for appellant.
    Willard B. Widerberg and Brady, McQueen, Martin, Collins & Jensen, both of Elgin (Alfred Y. Kirkland, Jr., of counsel), for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff appeals from the interlocutory order entered by the circuit court of Kane County on December 14, 1988. That order denied plaintiff’s request for a preliminary injunction. The court held that it would not enforce a post-employment restrictive covenant in an employment agreement because the plaintiff failed to establish the existence of trade secrets or confidential information that would constitute a protectable interest. We affirm.

Plaintiff, Capsonic Group (Capsonic), is a division of Gabriel, Inc., a privately owned corporation located in Elgin, Illinois. Capsonic was formed in 1968 and is in the business of designing and manufacturing composite plastic/metal parts. Capsonic uses a process known as insert molding. Insert molding is a relatively new technology whereby metal inserts are molded directly into plastic bodies to create one solid piece. Capsonic’s emphasis is in the development of customized automated systems for the manufacture of insert-molded parts. Cap-sonic uses standard components wherever possible so that it can concentrate its design efforts on the overall automated process. Capsonic has approximately 30 to 40 systems in operation, about one-half of which are automated.

An automated production system involves a number of areas or stations where a particular function is performed and different mechanisms which move the products and materials from station to station. One type of station involves a mold that actually forms the product. The other type of station consists of various operations which precede and follow the formation of the molded part. Examples of this type of station are probes to detect defective parts, ejectors to remove defective parts, stampers to imprint the parts, cleaning stations, stations to trim excess plastic or metal, testing stations, and packaging stations. Each station requires a machine or “component” to perform these particular tasks. There are a number of ways to accomplish each task, and, therefore, each station and movement involves a design choice.

Defendant, Andrew Swick, became employed by Capsonic as an automation engineer in December 1985. Swick had not worked with insert molding or in the design of automation systems to manufacture insert-molded products previously. Prior to beginning his employment, Swick was required to sign an employment agreement. The agreement included a clause stating that Swick would not disclose any confidential information. The agreement also contained the following non-competition clauses:

“2. That during the period of his employment by CAPSONIC he will not, without the express written consent of CAPSONIC, engage at any time in any business or activity which competes directly or indirectly with the proper business of CAPSONIC or which is in any other way destructive of or harmful to any of the reasonable business interests of CAPSONIC.
3. After the termination of his employment with CAP-SONIC, for any reason whatsoever, he will, when such information should remain confidential in order to protect the reasonable business interests of CAPSONIC, refrain from disclosing at any time the names or addresses of any CAPSONIC customers or CAPSONIC’S past or prospective dealings with its customers, the parties, dates or terms of any of CAPSONIC contracts or the nature of CAPSONIC’S trade secrets, systems, processes or methods or any other information obtained by Employee in the course of this employment with CAPSONIC when such information should remain confidential in order to protect the reasonable business interests of CAPSONIC.
4. After the termination of his employment with CAP-SONIC regardless of the nature of or reason for termination, except with the written consent of CAPSONIC, Employee will, to protect the reasonable business interests of CAPSONIC, refrain for a period of two (2) years from entering into direct competition with CAPSONIC in connection with any customer or known prospective customer of CAPSONIC by engaging in or in any way advising, aiding or assisting in any business of manufacturing or selling or otherwise dealing with insert molding products and/or the machines for constructing same, and supplies therefor either as an individual on his own account, or as a partner or joint venturer, or as an employee, agent or salesman of any person or corporation or as a stockholder of any corporation, or in any other manner.”

In January 1988, Capsonic revised Swick’s employment agreement. This revision did not alter Swick's confidentiality or noncompetition obligations but included a cover letter which outlined certain aspects of these obligations. Swick signed the agreement.

Swick’s initial position with Capsonic was as a maintenance engineer. His duties centered on maintaining Capsonic’s automated production systems in operation. This included monitoring, testing, repairing, and fine-tuning each system. In 1987, Swick became the manager of Capsonic’s automation department. As manager, Swick was responsible for designing the automated production systems as new products were developed and sold by Capsonic. Swick designed three automated systems while at Capsonic and was working on a fourth when his employment was terminated.

In addition to design work, Swick’s responsibilities required substantial customer contact. Swick would make formal presentations to customers, participate in progress meetings, and formulate and revise design ideas to meet customers’ requirements. Swick was also involved in constructing bids to submit to prospective customers.

In August 1988, Swick was approached by an employment agency representing Altair, a competitor of Capsonic. Swick pursued this employment prospect and, in October 1988, accepted a job with Altair. Capsonic learned of Swick’s intent to work for Altair and on November 11,1988, fired him.

On November 14, 1988, Capsonic filed a verified complaint for injunction against Swick alleging breach of contract, violation of implied duty of loyalty, violation of the Trade Secrets Act, breach of common law trade secrets, and unfair competition. Capsonic also filed a motion for a temporary restraining order (TRO). On November 15, 1988, the court granted Capsonic’s motion for a TRO preventing Swick from working for Altair or revealing any information regarding Capsonic’s business. The court also set a hearing on a preliminary injunction for November 21, 1988. On November 21, the court entered an order continuing the TRO and continuing the hearing on the preliminary injunction to November 30, 1988. The court heard testimony on November 30, December 1, 13 and 14. At the conclusion of the testimony, the court heard arguments from both counsel. These arguments were presented off the record. The court concluded that Capsonic had not established a protectable interest and, therefore, a preliminary injunction could not lie. The court entered an order denying Capsonic’s request for a preliminary injunction and dissolved the TRO. Capsonic appeals from this order.

The sole issue presented in this case is whether the trial court erred in finding thqt Capsonic did not establish a protectable interest.

Initially, we note that the appeal is based on the denial of a motion for a preliminary injunction. However, we cannot find in the record that such a motion was ever filed. The pleadings as presented to this court include a complaint and a motion for a temporary restraining order. The motion for a TRO was granted. The complaint will be considered and disposed of at trial. The hearing on the nonexistent motion lasted SVz days. The legal arguments based on the testimony presented during the hearing were made off the record.

The appellant has the burden of presenting a sufficiently complete record of the proceedings of the trial court to support a claim of error. (Pecora Oil Co. v. Johnson (1987), 156 Ill. App. 3d 521, 523.) If such a record is not presented, the reviewing court will presume that the trial court’s ruling was in conformity with the law and had a sufficient factual basis. (Pecora, 156 Ill. App. 3d at 523, citing Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 391-92.) Any doubt arising as a result of the incompleteness of the record will be resolved against the appellant. (Foutch, 99 Ill. 2d at 392.) We will address the merits of the appeal in the context of the above principles.

The denial of a request for a preliminary injunction rests with the sound discretion of the trial court, and this court will not disturb that ruling unless the trial court abused its discretion. (Chicago Health Clubs, Inc. v. Picur (1988), 124 Ill. 2d 1, 7-8.) However, in the case at bar, the propriety of a preliminary injunction is dependent upon the enforceability of the restrictive covenant contained in Swick’s employment agreement. A post-employment restrictive covenant will be enforced only if reasonable, and that determination is a question of law. (Barrington Trucking Co. v. Casey (1969), 117 Ill. App. 2d 151, 156.) Covenants not to compete are, in effect, restraints on trade and will be carefully scrutinized to ensure that their intended effect is not the preclusion of competition per se. The Instrumentalist Co. v. Band, Inc. (1985), 134 Ill. App. 3d 884, 891.

In determining the enforceability of a restrictive covenant in an employment setting, the test applied by Illinois courts is whether the terms of the agreement are reasonable and necessary to protect a legitimate business interest of the employer. (PCx Corp. v. Ross (1988), 168 Ill. App. 3d 1047, 1056, citing McRand, Inc. v. van Beelen (1985), 138 Ill. App. 3d 1045; Reinhardt Printing Co. v. Feld (1986), 142 Ill. App. 3d 9.) There are two general situations in which a legitimate business interest will exist: (1) where the customer relationships are near, permanent “and, but for his association with [plaintiff, [defendant] would not have had contact with the customers”; and (2) where the former employee acquired trade secrets or other confidential information through his employment and subsequently tried to use it for his own benefit. (PCx Corp., 168 Ill. App. 3d at 1057.) Capsonic contends that both of these situations exist in this case.

We find that Capsonic has waived the issue of whether it has near permanent customer relationships. After an exhaustive search of the record, we find that Capsonic never advanced this argument below. It is clear from the record that the only legitimate business interest presented to the trial court was the existence of trade secrets or confidential information. The argument relating to permanent customer relationships, therefore, must be resolved against the appellant. The issue of near permanent customer relationships is deemed waived.

We now turn to the issue of whether it was against the manifest weight of the evidence to determine that Capsonic did not establish a trade secret or confidential information.

A trade secret is a plan or process, tool, mechanism, compound, or informational data utilized by a person in his business operations and known only to him and such other persons to whom it may be necessary to confide. Hayden’s Sport Center, Inc. v. Johnson (1982), 109 Ill. App. 3d 1140, 1146, citing ILG Industries, Inc. v. Scott (1971), 49 Ill. 2d 88, 92.

Our supreme court has stated:

“It is clear that an employee may take with him, at the termination of his employment, general skills and knowledge acquired during his tenure with the former employer. It is equally clear that the same employee may not take with him confidential particularized plans or processes developed by his employer and disclosed to him while the employer-employee relationship exists, which are unknown to others in the industry and which give the employer advantage over his competitors.” (Schulenburg v. Signatrol, Inc. (1965), 33 Ill. 2d 379, 387.)

An individual’s right to pursue a particular occupation for which he is trained is fundamental. (ILG, 49 Ill. 2d at 93.)

“One who has worked in a particular field cannot be compelled to erase from his mind all of the general skills, knowledge and expertise acquired through his experience.” ILG, 49 Ill. 2d at 93-94.

Capsonic relies solely on this court’s recent decision in Televation Telecommunication Systems, Inc. v. Saindon (1988), 169 Ill. App. 3d 8, to establish the existence of trade secrets. In Televation, the defendant memorized a specific schematic of an analog circuitry used to produce a specific product. He then began his own company and produced a similar and competitive product using the exact same circuitry. The court held that the design of the circuity was a trade secret and enjoined the defendant from using or disclosing it to others.

In Smith Oil Corp. v. Viking Chemical Co. (1984), 127 Ill. App. 3d 423, this court reviewed a similar case. In Smith, the plaintiff/employer was in the business of producing industrial lubricants. Three of the plaintiff’s employees went to work for a competitor. We held that the employees could be prohibited from using the exact formulas developed while employed by the plaintiff, but the employees could “develop particular formulas from the use of their own general blending or chemistry skills and may develop comparable or equivalent products even though the ability to do so is from general skills and general experience acquired” while working for the plaintiff. Smith, 127 Ill. App. 3d at 430.

The case at bar differs from the situation in Televation, in that Capsonic is not complaining that Swick has taken a particular design or automated process with him and used it to Capsonic’s detriment. There is no specific tangible product here. Additionally, there is no identifiable process that Capsonic claims is secret or confidential. Instead, Capsonic claims its overall expertise in the designing of automated systems is a trade secret. Capsonic alleges that during Swick’s tenure at Capsonic, he learned how to choose a particular standard component and combine it with other components to construct an automated production process — a skill that, but for his employment with Capsonic, Swick would not possess. This is exactly the generalized knowledge and expertise our supreme court recognized in ILG, and we acknowledged in Smith, as not subject to restriction. The manifest weight of the evidence presented at the hearing supports the trial court’s conclusion that Capsonic’s theory of automated processes is not a trade secret.

Capsonic also contends that, even if it has not established protectable trade secrets, it has a protectable interest in its confidential information pertaining to production capability and manufacturing processes, business practices, and customer information. Capsonic’s argument is a factual one with no citation to applicable authority. Capsonic does cite several cases that involve situations where former employees attempted to solicit customers of, or directly compete with, the employer. Those cases involve products that are available in the market place and sold by several or even many distributors. Each distributor has a direct interest in protecting its customer base. See Donald McElroy, Inc. v. Delaney (1979), 72 Ill. App. 3d 285 (employer engaged in recovering silver from photographic waste material; ex-employee works for competitor and solicits employer’s suppliers); Office Electronics, Inc. v. Grafic Forms, Inc. (1978), 56 Ill. App. 3d 395 (employer manufactures and sells paper forms used in business; ex-employee forms company to sell similar products); Wessel Co. v. Busa (1975), 28 Ill. App. 3d 686 (employer engaged in the printing business; ex-employee solicits and sells printing services to employer’s customers).

The case at bar is vastly different from the cases cited above. The testimony elicited at the hearing establishes that Capsonic’s business is project oriented. Capsonic enters into contracts with companies who need a particular part produced. Capsonic receives this business by convincing the companies that it can manufacture this part more efficiently than is currently being done. These contracts tend to be long-term and Capsonic charges a substantial “pull charge” for a company backing out of the contract before the project is completed. Therefore, it appears that it would be very difficult for another company to come in and “steal” Capsonic’s current business. Capsonic’s concern appears to be that now another company in the industry may become more adept at automated production and cause competition in the future. This is an attempt to restrict competition per se and will not be encouraged by the courts. The manifest weight of the evidence supports the trial court’s conclusion that Capsonic’s theory of automated processes is not confidential information.

For the reasons stated above, we affirm the judgment of the circuit court of Kane County.

Affirmed.

DUNN and INGLIS, JJ., concur.


author: JUSTICE INGLIS JUSTICE REINHARD,

text:
    COMMUNITY CONVALESCENT CENTER OF NAPERVILLE, INC., Plaintiff-Appellant, v. FIRST INTERSTATE MORTGAGE COMPANY OF ILLINOIS et al., Defendants-Appellees.
    Second District
    No. 2—88—0570
    Opinion filed April 27, 1989.

      Ronald E. Shadle, of Cappetta & Shadle, of Oakbrook Terrace, for appellant.
    George N. Gilkerson, Jr., of Rooks, Pitts & Poust, of Wheaton, and Robert S. Minetz, of Cowan & Minetz, and Francis J. Pendergast, of Garvey & Novy, Ltd., both of Chicago, for appellees.
   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Community Convalescent Center of Naperville, Inc., appeals from the order of the circuit court granting summary judgment in favor of defendants, First Interstate Mortgage Company of Illinois (First Interstate), Household Bank, Cragin Federal Savings and Loan Association (Cragin), Regency Savings Bank (Regency), Olympic Federal Savings and Loan Association (Olympic), Gibson Federal Savings and Loan Association (Gibson), and Champion Federal Savings and Loan Association (Champion). The issue raised on appeal is whether the court erred in finding that plaintiff was not entitled to recover for 30 days’ interest it paid under an installment note and mortgage. We reverse and remand this cause for further proceedings.

On April 15, 1981, the parties entered into an agreement for an installment note and mortgage to plaintiff in the sum of $2,036,379.90. First Interstate acted as the collection agent for defendants. Under the terms of the note, plaintiff was entitled to prepay the balance due at any time on 30 days’ prior written notice to defendants. The note further provided that plaintiff would be required to pay 90 days’ interest if it exercised its right to prepay the note.

Prior to May 2, 1986, plaintiff orally notified defendants that plaintiff was exercising its right to prepay the balance. On May 2, 1986, plaintiff requested a payoff letter to memorialize the payment. On or about May 5, 1986, plaintiff received the payoff letter from First Interstate stating the amount required for payment in full of the loan. That letter included a prepayment penalty of 120 days’ interest on the balance due on the note. On May 6, 1986, plaintiff notified First Interstate that it objected to the amount represented as prepayment penalty and was therefore paying the entire amount requested by defendants under protest. Plaintiff paid the entire amount on that date.

Plaintiff filed suit in the circuit court of Du Page County seeking return of 30 days’ interest, which amounted to $19,924.50. Defendants answered, and the parties subsequently made oral motions for summary judgment. Plaintiff argued that the note provided for only 90 days’ interest as a condition of prepayment while defendants charged plaintiff 120 days’ interest. Plaintiff also argued that defendants’ acceptance of the prepayment constituted a waiver of their right to require 30 days’ written notice. Defendants responded that they were entitled to the additional 30 days’ interest on the basis that had plaintiff given 30 days’ written notice as required by the note, defendants would have collected the interest accrued on the note during that 30 days. Defendants argued that they should not suffer any loss as a result of plaintiff breaching the contract by violating the notice provision. Defendants also argued that plaintiff could not recover because it voluntarily paid the sum.

In its letter of opinion, the trial court found that the note was unambiguous and, for the privilege of prepaying the entire note at any time, plaintiff was “required to give 30 days notice and pay 90 days interest; therefore, Defendants were entitled as their part of the bargain to 120 days interest.” The trial court entered an order granting defendants’ motion for summary judgment, and plaintiff brought this timely appeal.

Initially, we note that the brief of defendants First Interstate, Household Bank, Olympic, Gibson, and Champion is not in conformity with Supreme Court Rule 341(e)(7) in that it is devoid of any citation to the record. (See 113 Ill. 2d R. 341(e)(7).) This court is distressed by the increased frequency with which our supreme court rules have been ignored. We note these violations of our supreme court rules as part of an on-going process to alert the bar that future violations will be met with appropriate sanctions.

This cause was disposed of in defendants’ favor on cross-motions for summary judgment. Summary judgment should be granted only when the pleadings, depositions, admissions on file, and affidavits present no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c).) Summary judgment is an expeditious method of disposing of a lawsuit and should only be granted when the right of the moving party is clear and free from doubt. Kelman v. University of Chicago (1988), 166 Ill. App. 3d 137, 141.

Before addressing the issues raised by plaintiff, we first consider defendants’ contention that the trial court’s interpretation of the note is irrelevant since plaintiff voluntarily paid the sum, and, under Illinois Merchants Trust Co. v. Harvey (1929), 335 Ill. 284, plaintiff cannot recover. Defendants also cite Kanter & Eisenberg v. Madison Associates (1987), 116 Ill. 2d 506, 512, for the proposition that under the voluntary-payment doctrine, any payment made with knowledge of the relevant facts cannot be recovered unless the payment was made under duress or compulsion.

Defendants’ reliance on Kanter and Illinois Merchants Trust Co. is misplaced. In Kanter, the court stated that “there [was] no reason to extend the concept of voluntariness, as the court in Illinois Merchants apparently did, to encompass any payment not preceded by a formalistic demand for equitable relief.” (Kanter, 116 Ill. 2d at 514.) Thus, the court in Kanter recognized that involuntariness was a broader concept than the Elinois Merchants Trust Co. court held it to be. Indeed, our supreme court has stated that “protest is the best evidence of an unwillingness to pay” and therefore “precludes a finding of voluntariness, which is a prerequisite to the application of [the voluntary-payment] doctrine.” (Isenstein v. Rosewell (1985), 106 Ill. 2d 301, 309.) We conclude that since plaintiff paid the 30 days’ interest “under protest,” plaintiff is not barred from recovery under the voluntary-payment doctrine.

Turning to plaintiff’s first argument, plaintiff contends that the trial court erred by granting summary judgment in defendants’ favor since defendants waived the advance notice requirement by accepting the prepayment. We agree.

In construing a contract, the primary objective is to give effect to the intent of the parties at the time they entered into the contract. (Gardner v. Padro (1987), 164 Ill. App. 3d 449, 453.) When the terms of a contract or note are clear and unambiguous, the intent of the parties may only be discerned from the language used in the instrument. 164 Ill. App. 3d at 453.

The relevant section of the note in the instant action provides:

“The undersigned shall have the privilege to prepay the entire principal balance of the indebtedness evidenced by this Note, together with accrued interest thereon to date of payment, *** upon giving thirty (30) days written notice to the legal holder hereof of intention to make such prepayment, on condition that the undersigned shall also pay *** a premium equal toninety [sic] (90) days interest *** on the amount so prepaid.”

The language “upon giving thirty (30) days written notice” indicates an intention to have advance notice as a condition precedent to prepayment. A condition precedent must be performed by one party before the other party is obligated to perform. (Lyntel Products, Inc. v. Alcan Aluminum Corp. (1981), 107 Ill. App. 3d 176, 180.) Thus, plaintiff’s failure to provide 30 days’ notice negated defendants’ obligation to accept prepayment.

However, it is well established that the parties to a contract have the power to waive a provision placed in the contract for their benefit. (Whalen v. K mart Corp. (1988), 166 Ill. App. 3d 339, 343; Harrington v. Kay (1985), 136 Ill. App. 3d 561, 563-64.) Waiver is an express or implied voluntary and intentional relinquishment of a known and existing right. (Whalen, 166 Ill. App. 3d at 343.) Waiver of a contractual provision may be established by conduct indicating that strict compliance with the provision will not be required. (Whalen, 166 Ill. App. 3d at 343; Harrington, 136 Ill. App. 3d at 564.) The sufficiency of facts necessary to constitute waiver of a contractual provision is a question of law. Whalen, 166 Ill. App. 3d at 343.

In the instant action, defendants accepted the prepayment with the knowledge that plaintiff had violated the notice provision. Defendants could have rejected the prepayment and demanded that plaintiff wait 30 days before it prepaid the entire balance owed. However, accepting the prepayment was inconsistent with their right to require 30 days’ advance notice. In addition, nothing in the note allows for defendants to increase the prepayment penalty in response to plaintiff’s violation of the notice provision. We conclude that defendants’ actions constituted a waiver of the notice provision and defendants were not entitled to 30 days’ additional interest in place of that waiver.

Accordingly, the trial court erred in granting summary judgment in favor of defendants. The order of the circuit court is reversed, and this cause is remanded with directions that the trial court enter judgment in favor of plaintiff.

Reversed and remanded.

UNVERZAGT, P.J., concurs.

JUSTICE REINHARD,

dissenting:

I respectfully dissent from the majority’s conclusion that, by accepting prepayment of the balance defendants claimed was due on the note, defendants waived any rights under the terms of the note. No pertinent authority is cited by the majority, except cases generally expressing the waiver principle, to support this holding. In fact, it is clear from the actions of both parties that defendants, rather than intentionally waiving the right to collect all the interest they claimed was due, demanded the full 120 days’ interest which they asserted was due upon prepayment. Plaintiff paid what was demanded, albeit “under protest.” No cases are cited by the majority for the proposition that paying a debt “under protest” causes the person accepting the payment to lose any rights.

Waiver principles are inapplicable to the instant case as the doctrine is properly invoked in defense against the enforcement of the contractual right claimed to be waived. Whalen v. K mart Corp. (1988), 166 Ill. App. 3d 339, 519 N.E.2d 991, cited by the majority, states that “[if a party] has intentionally relinquished a known right, either expressly or by conduct inconsistent with an intent to enforce that right, he has waived it and may not thereafter seek judicial enforcement.” (Emphasis added.) (166 Ill. App. 3d at 843, 519 N.E.2d at 994.) The underlying rationale is that “[a] party to a contract may not lull another into a false assurance that strict compliance with a contractual duty will not be required and then sue for noncompliance.” (166 Ill. App. 3d at 343, 519 N.E.2d at 994.) In the instant case, defendant has not sought enforcement of the notice provision, and I find no authority that would allow a party to offensively assert waiver to recover amounts already paid under the contract, as plaintiff seeks to do here.

As I view the transaction, it appears that plaintiff expressed its desire to prepay the note and defendants, seeking to accommodate plaintiff without sacrificing the 30 days’ interest they would receive if they enforced the 30-day notice provision, offered plaintiff the option of discharging the debt immediately by including the 30 days’ interest. Therefore, defendants sent a payoff letter to plaintiff stating that an immediate prepayment would result in a total of 120 days’ interest. Plaintiff notified defendants that it objected to inclusion of the 30-day interest calculation, but, thereafter, paid the total amount demanded by defendants as a full payoff, apparently wishing to sell the property immediately.

I believe the parties, in effect, modified the contract by their conduct. An existing contract may be modified with the assent of both parties (see MAJS Investment, Inc. v. Albany Bank & Trust Co. (1988), 175 Ill. App. 3d 478, 480, 529 N.E.2d 1035; 17 Am. Jur. 2d Contracts §465 (1964)), and such a modification by subsequent agreement is subject to the rules governing all contracts. (Scutt v. La Salle County Board (1981), 97 Ill. App. 3d 181, 185, 423 N.E.2d 213.) Here, defendants offered plaintiff the option of an immediate prepayment payoff which included the 30-day period of interest which defendant would have been entitled to if notice had been given as provided under the contract. Even though plaintiff objected to that amount, it paid it in full, in effect accepting defendant’s offer, in order to sell the property at that time. The modification was supported by consideration on both sides in that defendants were not required under the original contract to accept the prepayment without notice, and plaintiff was under no obligation to prepay. Thus, rather than finding a waiver against defendants, I would conclude that defendants properly received the 30 days’ interest pursuant to the contract as modified, and plaintiff has established no basis for the return of this amount.

For the foregoing reasons, I would affirm the judgment of the circuit court.