author: JUSTICE ROMITI

text:
    THE PEOPLE ex rel. DORISTEEN JOHNSON, Plaintiff-Appellee, v. JOHN PAYNE, Defendant-Appellant.
    First District (4th Division)
    No. 82—1416
    Opinion filed September 13, 1984.

      Harry P. Bush, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Glen E. Carr and Frank J. Marek, Assistant State’s Attorneys, of counsel), for appellee.
   JUSTICE ROMITI

delivered the opinion of the court:

Defendant John Payne appeals from an order of the circuit court of Cook County denying his section 72 petition (Ill. Rev. Stat. 1981, ch. 110, par. 72), now section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2—1401), in which he sought to vacate a judgment for paternity and support entered against him almost three years earlier. Defendant also seeks to appeal directly from that initial judgment as well as from the denial of an amended section 72 petition and a petition to vacate the original judgment, both latter petitions having been filed after the denial of the section 72 petition. (We will use the section 72 terminology because it was applicable at the time in question.)

We dismiss defendant’s attempted direct appeal from the initial judgment for paternity and support, and we affirm the judgment of the trial court denying defendant’s other petitions.

On October 10, 1974, relatrix Doristeen Johnson initiated a paternity action against the defendant, alleging in a verified complaint that he was the father of a minor child born to her out of wedlock on November 30, 1973. Defendant was initially represented by the public defender. On September 1, 1976 (after the matter had twice been postponed on defendant’s motions on March 10, 1976, and April 14, 1976), the public defender moved to withdraw as defendant’s counsel. The matter received 11 additional continuances (all either by agreement, on the State’s own motion, or on the court’s order) until June 25, 1979. On that date, with the defendant present in court, the public defender renewed his motion to withdraw and informed the court that defendant had retained private counsel. The court granted the motion but passed the matter because defendant’s counsel had not arrived. Later that day the following colloquy took place:

“THE CLERK: John Payne.
MR. O’GARA: The State, at this time, your Honor, is making a motion for default. The case has been on call since—
THE DEFENDANT: He's suppose to be on his way.
THE COURT: This court starts at 11:00, sir, and he should be here by then. See this file? This is you.
MR. O’GARA: Judge, this case has been on call since October of ’75. The parties have had their blood test- and every kind of interrogatories. The State would ask for a finding, in default, of paternity.
Are you working, Mr. Payne?
THE DEFENDANT: Yes, I am.
MR. O’GARA: How much do you take home per week?
THE DEFENDANT: About a hundred and thirty dollars per week.
MR. O’GARA: Is this one child?
THE CLERK: Yes.
MR. O’GARA: Do you have any other children to support?
THE DEFENDANT: No, none.
MR. O’GARA: I would ask for a sixty dollar a month order of support, Judge, at this time. We’re not asking that it be nunc pro tunc.
THE COURT: Default. You’re ordered to pay sixty dollars a month. Transfer to Br. 33. First payment, 7-25-79. See the young lady to your right.” •

Defendant did not move to vacate the order within 30 days, nor did he file any notice of appeal in that time period. On November 30, 1981, relatrix petitioned the court for a modification of the support and on January 12, 1982, an order was entered increasing her support payments to $125 per month. Ten days later defendant filed a petition for relief under section 72, but that petition was stricken on February 5, 1982, because of defendant’s failure to properly serve notice on the State as attorney for relatrix.

Defendant refiled his petition on May 20, 1982, and a hearing was held on May 24, 1982. In the petition, defendant asserted that he had been unaware of any order of paternity until relatrix filed her petition to modify the support order. Defendant also asserted that he was not the father of the child. At the hearing defendant was represented by new counsel, although his prior private counsel had prepared the petition. Counsel for defendant asserted that because there had not been a trial on the merits or a guilty plea the original judgment could not stand. When the court inquired about the two-year limitation for bringing section 72 petitions, defense counsel asserted that the defendant had not understood what had occurred in court at the time of the original judgment and that he only became aware that he was to pay support when he received notice of the petition for modification. Defendant conceded that at the time of the original hearing he had been represented by private counsel who did not appear for the hearing. Counsel .for defendant also told the court: “I would presume that after the court date of June 25, 1979 [the original hearing date] that there was no longer any contact between the attorney’s office and the parties.” The court denied the petition, finding that it was not timely filed.

On June 9, 1982, defendant filed an amended section 72 petition. In that petition, defendant conceded that he was present in court when the default judgment was entered and that his private counsel did not appear. However, he also contended that because he was not specifically advised that he had been found to be the father of the child and was not given a copy of the order, he did not make any payments and heard nothing from relatrix until November of 1981 when he received the petition for modification. He contended that he first became aware that an order of paternity had been entered against him on the date of the hearing for the modification petition, January 12, 1982. Defendant also stated in the petition that the judgment entered against him was not valid because, contrary to the provisions of section 2 of the Paternity Act (Ill. Rev. Stat. 1983, ch. 40, par. 1352), the paternity of the child was not determined at the hearing, defendant was not advised of his right to counsel, to a complete transcript, to plead not guilty, to have a jury trial, and to appeal. At the hearing, counsel for defendant indicated that the amended petition was in the nature of a petition for rehearing. Counsel also apparently filed a petition to vacate the original judgment as void, but that petition has not been included in the record on appeal. The court ruled that its original denial of section 72 relief was conclusive and refused to grant defendant a full hearing on the two petitions. On June 11, 1982, defendant filed a notice of appeal, purporting to appeal from the judgment for paternity and support entered June 25, 1979, the May 24, 1982, denial of the section 72 petition, and the June 9, 1982, denial of the final two petitions.

I

We first consider defendant’s contention that the trial court erred in denying his section 72 petition as untimely. Former section 72 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 72), now section 2—1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2—1401)), provides in pertinent part:

“Relief from judgments. (1) Relief from final orders and judgments, after 30 days from the entry thereof, may be had upon petition as provided in this Section.
* * *
(2) The petition must be filed in the same proceeding in which the order or judgment was entered but is not a continuation thereof. The petition must be supported by affidavit or other appropriate showing as to matters not of record. All parties to the petition shall be notified as provided by rule.
(3) The petition must be filed not later than 2 years after the entry of the order or judgment. Time during which the person seeking relief is under legal disability or duress or the ground for relief is fraudulently concealed shall be excluded in computing the period of 2 years.
(4) The filing of a petition under this Section does not affect the order or judgment, or suspend its operation.
* * *
(6) Nothing contained in this Section affects any existing ' right to relief from a void order or judgment, or to employ any existing method to procure that relief.”

Thus, in this cause, the defendant was required to demonstrate that the reason the petition was filed more than two years after entry of the final judgment was because for a sufficient portion of the period of delay he was under legal disability or duress or the ground for relief was fraudulently concealed from him. Defendant was also required to establish that he was acting with due diligence and that the delay was not caused by negligence attributable to him. (Diacou v. Palos State Bank (1976), 65 Ill. 2d 304, 357 N.E.2d 518; Esczuk v. Chicago Transit Authority (1968), 39 Ill. 2d 464, 236 N.E.2d 719.) Yet, defense counsel never argued below that defendant had been under any disability or that a ground for relief had been fraudulently concealed from him. Indeed, counsel suggested at the hearing that defendant’s original private counsel had simply failed to consult with the defendant after the hearing. It is for the first time on appeal that defendant has suggested that the State fraudulently concealed from him the fact that a judgment of paternity and support had been entered against him. This allegation has no foundation in the record and, in any event, cannot be raised by defendant for the first time in this court. (Brown v. Lober (1979), 75 Ill. 2d 547, 389 N.E.2d 1188.) Nor can defendant claim the exercise of due diligence when he apparently made no effort to consult his attorney after a default judgment was entered against him.

The decision to grant or deny a section 72 petition is a matter for the discretion of the trial court, and only a showing of abuse of that discretion merits interference with the trial court’s exercise of that discretion. (Sabatino v. Kozy Kottage Inn, Inc. (1981), 102 Ill. App. 3d 375, 430 N.E.2d 73.) We find no such abuse of discretion, and, accordingly, we find no basis for reversal on this ground.

II

Defendant also contends on appeal that the original judgment for paternity and support is void because it was not properly entered in accordance with certain statutory requirements and Cook County circuit court rules. We need not address the specifics of this contention, because, even assuming the court failed to comply with some of these requirements, the judgment at issue would not be void. A judgment entered in a civil proceeding is void only when the court which entered it was totally without jurisdiction, either as to the subject matter or the parties. (Johnston v. City of Bloomington (1979), 77 Ill. 2d 108, 395 N.E.2d 549.) Defendant has not contended that the trial court lacked jurisdiction on either of these grounds. Accordingly, we find no merit to this contention.

Defendant next contends that the original judgment was void because the court stamp on the original complaint indicates it was filed October 10, 1976, more than two years after the birth of the child on November 10, 1973. This, defendant contends, is in violation of a statutory two-year limitation on such actions. (Ill. Rev. Stat. 1983, ch. 40, par. 1354.) This contention has no validity because that limitation has been held to be unconstitutional. (Jude v. Morrissey (1983), 117 Ill. App. 3d 782, 454 N.E.2d 24.) The contention is also disingenuous because scrutiny of the record establishes that the complaint was in fact filed within two years of the birth of the child. The half-sheet indicates that an “information” was filed October 10, 1975, and other dates in the record which would necessarily follow the filing of the complaint all come before the date stamped on the complaint itself: the return date of service is October 21, 1975, an arrest warrant was issued January 13, 1976, the warrant was “returned executed” March 1, 1976, and the cause was continued on March 10, 1976, and April 14, 1976. Clearly, the complaint was erroneously stamped with the year 1976 instead of 1975, and thus it was filed within the two-year period.

In his reply brief before this court, defendant attempts to raise numerous issues not addressed in his initial brief. Such arguments are improper and are deemed to have been waived. (Dial v. Mihalic (1982), 107 Ill. App. 3d 855, 438 N.E.2d 546; Coons v. Wilder (1981), 93 Ill. App. 3d 127, 416 N.E.2d 785.) Several of those arguments relate to the same contention, that the original judgment of the trial court was not final when issued because it specifically reserved determination of relatrix’ right to recovery of expenses incurred during pregnancy, confinement and recovery. There is no merit to this contention. An order is final for purposes of review even though matters are left for future determination when those matters are merely incidental to ultimate rights which have been adjudicated by the judgment or decree; this has been held specifically applicable to an order for paternity and support which reserved the issue of potential increases in support should the need arise. Deckard v. Joiner (1970), 44 Ill. 2d 412, 255 N.E.2d 900, cert, denied (1970), 400 U.S. 941, 27 L. Ed. 2d 244, 91 S. Ct. 232.

Ill

We have noted that defendant also seeks to appeal directly from the original judgment of the trial court even though his notice of appeal was filed several years after the entry of that judgment. Defendant contends that because the trial court failed to advise him of his right to appeal from that judgment, he was entitled to appeal even after the expiration of the 30-day period. But the judgment at issue was a default judgment, and ordinarily the defendant would not even be present when such a judgment was entered. Thus the court was under no obligation to so advise the defendant. The pertinent section of the Paternity Act requires advising a defendant of this right following a contested hearing. (Ill. Rev. Stat. 1983, ch. 40, par. 1366.) Because defendant did not file his direct appeal within the requisite time period, we have no jurisdiction to consider it. (Deckard v. Joiner (1970), 44 Ill. 2d 412, 255 N.E.2d 900, cert, denied (1970), 400 U.S. 941, 27 L. Ed. 2d 244, 91 S. Ct. 232.) Accordingly, defendant’s attempted direct appeal from the trial court’s judgment for paternity and support must be dismissed.

The judgment of the trial court denying defendant’s petitions for section 72 and other relief is affirmed. Defendant’s appeal from the trial court’s initial judgment for paternity and support is dismissed.

Judgment affirmed in part; appeal dismissed in part.

JIGANTI and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McGILLICUDDY

license: Public Domain

text:
    THE PEOPLE ex rel. TYRONE C. FAHNER, Attorney General, et al., Plaintiffs-Appellees, v. THE CHICAGO TRANSIT AUTHORITY, Defendant-Appellant.
    First District (3rd Division)
    No. 82—934
    Opinion filed September 5, 1984.

      Burke, Griffin, Chomicz & Wienke, P.C., of Chicago (Richard W. Burke, Christopher R. Manning, and Thomas F. Winters, of counsel), for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield, pro se (James S. Montana, Jr., Assistant Attorney General, of counsel), for appellees.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

This action was brought on behalf of the people of the State of Illinois by Attorney General Tyrone C. Fahner and Edward F. Callahan, Director of the Department of Financial Institutions (the State), against the Chicago Transit Authority (CTA), for recovery of abandoned property in the CTA’s possession, pursuant to the Uniform Disposition of Unclaimed Property Act (Ill. Rev. Stat. 1981, ch. 141, par. 101 et seq.) (the Act).

In the ordinary course of its business, the CTA has accumulated in its general fund payroll, vacation, sick leave and bonus checks which have remained unclaimed by employees and former employees. To resolve this problem, the CTA on November 7, 1979, enacted Ordinance No. 79 — 131, which provides:

“WHEREAS, from time to time the Authority is obligated to pay monies and benefits to employees and to former employees who cannot be located; and
WHEREAS, it is now necessary to prescribe the steps to be taken in regard to the disposition of said monies; now therefore:
BE IT ORDAINED BY CHICAGO TRANSIT BOARD OF CHICAGO TRANSIT AUTHORITY:
SECTION 1. In the event that an employee, former employee or beneficiary designated by an employee does not claim any monies and benefits due from the Authority to said employee, former employee and beneficiary within a period of three years after the date the monies or benefits became due and payable, said employee, former employee or beneficiary so designated shall have no further claim to said benefits and the Authority shall distribute said benefits to the heirs at law, if any, of said employee or former employee. If the heirs at law of said employee or former employee do not claim said monies or benefits within a period of four years after the monies or benefits first became due and payable to the employee or former employee or designated beneficiary, the monies and benefits shall remain assets of the Authority without being subject to further claim by the employee, former employee, designated beneficiary, heirs at law of the former employee or any governmental body.
SECTION 2. This ordinance shall be in force and effect from and after its passage.” (Emphasis added.) Chicago Transit Authority Ordinance No. 79 — 131 (November 7,1979).

The State filed this action, alleging that the unclaimed property covered by CTA’s Ordinance No. 79 — 131 is abandoned personal property covered by the Act. Counts I and II of the complaint sought judgment declaring the CTA subject to the Act and declaring Ordinance No. 79 — 131 void, as well as a mandatory injunction requiring the CTA to comply with the Act. Counts III and IV, which prayed for interest on the funds subject to the Act, and a penalty, are not at issue in this appeal.

The CTA made a motion to dismiss the complaint, alleging that the property in question belonged to the CTA in accordance with its Ordinance No. 79 — 131. On March 17, 1982, the trial court denied the motion as to counts I and II, finding that the Act applied to unclaimed property held by the CTA and that Ordinance No. 79 — 131 was invalid and unenforceable as being in direct conflict with the Act. The trial court granted the motion as to counts III and IV. The CTA appeals. The issues presented for review are: (1) whether the property in the custody of the CTA representing unclaimed wages owed by the CTA to its employees, former employees and/or their beneficiaries is subject to the provisions of the Act, and (2) whether CTA Ordinance No. 79 — 131 is valid.

The CTA contends that the property in its custody does not fall within the purview of the Act. The Act provides generally that certain property be presumed abandoned after seven years and that the holder thereof must follow a procedure which ultimately places such property in the custody of the State. (People ex rel. Callahan v. Marshall Field & Co. (1980), 83 Ill. App. 3d 811, 404 N.E.2d 368.) The Act protects the rights of unknown owners and gives the benefit of the use of the unclaimed property, most of which experience shows will never be claimed, to the State rather than the holders. (See People ex rel. Callahan v. Marshall Field & Co. (1980), 83 Ill. App. 3d 811, 404 N.E.2d 368; Douglas Aircraft Co. v. Cranston (1962), 58 Cal. 2d 462, 374 P.2d 819, 24 Cal. Rptr. 851.) The Act provides, in pertinent part, as follows:

“Sec. 1. As used in this Act, unless the context otherwise requires:
* * *
(b) ‘Business association’ means any corporation (other.than a public corporation), ***.”
“Sec. 2a. Business associations shall report all property and any earnings thereon which has [sic] remained unclaimed for 7 years and is [sic] therefore presumed abandoned. This property shall consist of, but is not limited to: (1) unclaimed wages ***.”
“Sec. 8. All funds and intangible personal property held for the owner by any *** public corporation *** that has [sic] remained unclaimed by the owner for more than 7 years is [sic] presumed abandoned.” (Ill. Rev. Stat. 1981, ch. 141, pars. 1, 2a, 8.)

It is undisputed that the CTA is a public corporation. See Stine v. Chicago Transit Authority (1973), 13 Ill. App. 3d 219, 300 N.E.2d 548.

The CTA first argues that because section 2a of the Act is expressly inapplicable to the wages of employees of public corporations, the CTA is excluded from coverage thereunder. The State does not contradict this assertion. The CTA further points out that section 2a is the only portion of the Act which specifically mentions unclaimed wages. Therefore, reasons the CTA, where unclaimed wages are the issue, any other potentially applicable provision of the Act which does not specifically mention unclaimed wages should defer to section 2a. In support of its argument, the CTA relies on Sawyer Realty Group, Inc. v. Jarvis Corp. (1980), 91 Ill. App. 3d 1134, 1137, 415 N.E.2d 565, rev’d on other grounds (1982), 89 Ill. 2d 379, 432 N.E.2d 849, which recited the general rule of statutory construction that the expression of one thing in a statute implies the exclusion of all others.

We cannot agree that the mention of unclaimed wages in section 2a precludes the application of any other section of the Act to unclaimed wages. Section 2a requires business associations to report abandoned property which “shall consist of, but is not limited to” unclaimed wages and six other specific items. Other sections set the requirements regarding abandoned property for banking and financial organizations (section 2); life insurance companies (section 3); utilities (section 4); and courts, public corporations, public authorities and public officers of the State (section 8). The fact that section 2a is the only one which expressly includes unclaimed wages cannot be interpreted as indicative of an intent to exempt unclaimed wages not held by a business association from the unclaimed property rules. The exclusion of unclaimed wages not held by a business association would do nothing to further the purpose of the Act. Moreover, the fact that section 2a refers specifically to unclaimed wages while section 8 refers generally to funds and intangible property is without benefit to the CTA, since section 2a applies to business associations and section 8 applies to public corporations.

Since the CTA is a public corporation, we look to section 8 of the Act. Section 8 requires that funds and intangible personal property held for the owner by any public corporation which remain unclaimed for seven years be presumed abandoned. It is evident that the monies addressed on Ordinance No. 79 — 131 are subject to section 8.

The CTA resists this application of the Act, arguing that a construction which would render any sentence, phrase or word used in the statute superfluous, void or insignificant should be avoided. (Hazelton v. Zoning Board of Appeals (1977), 48 Ill. App. 3d 348, 363 N.E.2d 44.) The task of the reviewing court in statutory construction was aptly described in Callahan:

“The cardinal rule governing statutory construction is that we must give effect to the intention of the legislature as expressed in the statute. (Young v. Mikva (1977), 66 Ill. 2d 579, 363 N.E.2d 851; Mallin v. Najarian (1979), 76 Ill. App. 3d 441, 395 N.E.2d 172.) The intention of the legislature should be sought primarily from the language employed. (Certain Taxpayers v. Sheahen (1970), 45 Ill. 2d 75, 256 N.E.2d 758.) Where the language of the statute is clear and unambiguous, our only function is to enforce the law as enacted by the legislature. (Harvey Firemen’s Association v. City of Harvey (1979), 75 Ill. 2d 358, 389 N.E.2d 151.) Moreover, we are not authorized to depart from the plain language of a statute by reading in exceptions, limitations or conditions which conflict with the clearly expressed legislative intent. Certain Taxpayers v. Sheahen.” People ex rel. Callahan v. Marshall Field & Co. (1980), 83 Ill. App. 3d 811, 813-14.

We find the language of the Act to be clear and unambiguous. It states that business associations must report wages that have remained unclaimed for seven years and are therefore presumed abandoned. The Act also states that funds and intangible personal property held for the owner by any public corporation that have remained unclaimed for more than seven years are presumed abandoned. Our only function, then, is to enforce the plain meaning of these provisions.

The CTA contends that the use of the phrase, “held for the owner,” in section 8, as opposed to the phrase, “held or owing,” which was employed in sections 2, 3, 4 and 5, indicates legislative intent to include only property in the custody of the public entity and not unclaimed wages. We do not glean such intent from the wording of the Act.

A plain reading of section 8 reveals that it encompasses situations such as the one at bar. All funds and intangible personal property held for their owners by a public corporation, such as the CTA, that have remained unclaimed by their owners for more than seven years are presumed abandoned. We find that this language includes unclaimed wages. As such, the unclaimed wages are subject to the Act, and the CTA must comply with the procedures outlined therein.

The CTA next asserts that unclaimed wages in the hands of a public corporation are not subject to section 9 of the Act. Section 9 is the “catch-all” provision relating to unclaimed personal property not otherwise covered by the Act. In view of our determination that the property at issue here is covered by section 8, it is not necessary to address this contention.

The CTA alleges that even if the Act is applicable to the property covered by Ordinance No. 79 — 131, the ordinance is valid because it was properly enacted pursuant to the CTA’s powers. As a municipal corporation, the CTA has only those powers expressly vested therein by the legislature, and those necessarily implied from or incident to those expressly granted powers. (Stine v. Chicago Transit Authority (1973), 13 Ill. App. 3d 219, 300 N.E.2d 548.) The Metropolitan Transit Authority Act (Ill. Rev. Stat. 1981, ch. 1112/3, pars. 301 through 345) (MTAA) authorizes the CTA to acquire any property useful for its purposes (par. 308). It also grants the CTA the right to establish special funds and to provide for the custody, disbursements and application of any monies in these funds (par. 340). The MTAA further authorizes the CTA to enact ordinances to carry into effect these powers (par. 331).

Municipal authorities cannot, however, under a general grant of power, adopt ordinances which infringe on the spirit of- a State law or are repugnant to the general policy of the State. (Huszagh v. City of Oak Brook Terrace (1968), 41 Ill. 2d 387, 243 N.E.2d 831.) A municipal ordinance cannot add to, subtract from, modify or affect the provisions of the statute (Traders Development Corp. v. Zoning Board of Appeals of Peoria County (1959), 20 Ill. App. 2d 383, 156 N.E.2d 274), and if it is in conflict with a statute it is void (Huszagh v. City of Oak Brook Terrace (1968), 41 Ill. 2d 387, 243 N.E.2d 831; see Billik v. Village of Brookfield (1980), 80 Ill. App. 3d 907, 400 N.E.2d 702; People v. Perry (1975), 27 Ill. App. 3d 230, 327 N.E.2d 167). 8 Ill. L. & Prae. Cities, Villages & Other Municipal Corporations sec. 138 (1953).

Ordinance No. 79 — 131 constitutes an attempt to prevent the unclaimed property in the. general fund of the CTA from passing to the State pursuant to the Act. Because the ordinance modifies the provisions of the Act requiring public corporations to remit unclaimed property to the State, it is in conflict with the Act and is invalid.

Relying on Lustfield v. Chicago Transit Authority (1951), 408 Ill. 404, 97 N.E.2d 347, the CTA argues that the MTAA gave it full power to conduct the business of managing, regulating and operating a transportation system in Chicago. In addition, the CTA cites Stine for the proposition that Ordinance No. 79 — 131 should be examined in light of the powers granted the CTA by the MTAA. The CTA’s reliance on these cases is misplaced, as neither discusses the validity of an ordinance which conflicts with a statute.

Finally, the CTA contends that Village of Glencoe v. Jackson (1968), 102 Ill. App. 2d 65, 243 N.E.2d 865, requires a finding that an ordinance is unreasonable, arbitrary or oppressive before it is struck down. In fact, the court in Village of Glencoe stated only that it would not hesitate to invalidate an ordinance which appears unreasonable, arbitrary and oppressive. Similarly, we do not hesitate to invalidate Ordinance No. 79 — 131, as it is in contravention of the Act. Where a private agreement is in fundamental conflict with public policy as established by the legislature, the private agreement must fall. Price v. State Farm Mutual Automobile Insurance Co. (1983), 116 Ill. App. 3d 463, 452 N.E.2d 49.

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

Affirmed.

McNAMARA and WHITE, JJ., concur.


author: PRESIDING JUSTICE LINN

text:
    EARLEAN LINDSEY, Plaintiff-Appellee, v. THE BOARD OF EDUCATION OF THE CITY OF CHICAGO et al., Defendants-Appellants.
    First District (4th Division)
    No. 84—1869
    Opinion filed September 12, 1984.

      Patricia Whitten, of the Board of Education of the City of Chicago, and C. Richard Johnson, Hugh R. McCombs, Jr., Steven R. Gilford, Denise L. Jarrard, and Janice S. Loughlin, all of Isham, Lincoln and Beale, both of Chicago, for appellants.
    Patrick A. Lucansky, James P. Bartley, Terrence M. Barnicle, and Michael J. Duggan, all of Klein, Thorpe and Jenkins, Ltd., of Chicago, for appellee.
    Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey and David S. Allen, Assistant State’s Attorneys, of counsel), for intervenor-appellee People of the State of Illinois.
   PRESIDING JUSTICE LINN

delivered the opinion of the court:

Defendant ad hoc committee, created by and composed of members of defendant Board of Education of the city of Chicago (Board) for the purpose of negotiating an employment contract for the position of general superintendent of schools with Dr. Hanford Byrd, called a special meeting on July 25, 1984, to effectuate its purpose. Public notice of this meeting was posted less than 24 hours prior to the meeting, in alleged contravention of the general notice provision of the Illinois Open Meetings Act (Ill. Rev. Stat. 1983, ch. 102, par. 42.02(a)).

Plaintiff, Earlean Lindsey, filed a complaint and emergency motion for injunction, asking the court to enjoin defendants from continuing the July 25 meeting and from future violations of the Act.

The trial court issued a preliminary injunction, enjoining the Board from “appointing anyone,” and specifically Dr. Byrd, to the position of general superintendent pending a full hearing on the merits.

Defendants filed an interlocutory appeal, praying that the preliminary injunction be vacated.

We vacate the preliminary injunction.

Factual And Procedural Background

On July 23, 1984, the Board voted not to reappoint Dr. Ruth Love as general superintendent of schools but rather to negotiate with Dr. Hanford Byrd, Jr., to assume the position at the conclusion of Dr. Love’s term in March 1985. The president of the board appointed a three-member ad hoc committee for the purpose of negotiating with Dr. Byrd the terms and conditions of the proposed contract.

On July 25, 1984, the chairman of the ad hoc committee called a special meeting to convene at 3:30 p.m. on that same afternoon. Public notice of this special meeting was not posted at the Board’s office until the morning of July 25, the same day the meeting was to take place. The notice did not name Dr. Byrd as the offeree of the proposed contract but stated only that the agenda of the meeting was to consist of “discussion re Contractual Agreement/General Superintendency.” Some four hours before the meeting was scheduled to begin, telephone notice was given to select community organizations and members of the news media.

When the meeting convened at 3:30 p.m., the committee voted to go into closed session to discuss “personnel matters.” When it came out of closed session, it voted to reconvene the following day. Subsequent to the adjournment of that session, one of the committee members announced to the news media that the two members of the committee who had been present at the meeting were in substantial agreement with Dr. Byrd as to the terms of the proposed contract. •

On July 26, while the reconvened committee meeting was in progress, plaintiff, Earlean Lindsey, filed a complaint and emergency motion for injunction, alleging that the July 25 meeting was held in violation of the Open Meetings Act (Act) (Ill. Rev. Stat. 1983, ch. 102, pars. 41 through 46) and asking, inter alia, that the circuit court enjoin the Board, the ad hoc committee, and the individual committee members from continuing the July 25 meeting and from continuing to violate the Act.

A hearing on plaintiff’s complaint and motion for injunction was held before the Honorable Joseph Wosik on the afternoon of July 26. Instead of filing a verified answer, defendants filed a motion for summary judgment, asserting that the “volatile situation that was developing in the community,” based on the belief that Dr. Byrd was not being considered as Dr. Love’s successor, had given rise to an emergency such as to trigger the emergency notice provision of the Open Meetings Act, which dispenses with the 24-hour notice requirement and requires only that notice be given “as soon as practicable.” (Ill. Rev. Stat. 1983, ch. 102, par. 42.02(a).) Alleging the existence of an emergency and that the facts were undisputed, defendants moved for summary judgment in their favor.

At a hearing held on July 27, after allowing both parties an opportunity to be heard, the court found that the issue of whether an emergency had existed such as to dispense with the 24-hour notice requirement was a factual one, mandating a full hearing on the merits. So finding, the court denied defendants’ motion for summary judgment. In response to plaintiff’s complaint and motion, the court issued an order that provided in paragraph 5 the following preliminary injunction:

“5. A preliminary injunction is issued against the Board of Education enjoining them from appointing anyone to the position of General Superintendent of Schools and specifically enjoining them from appointing Manford Byrd, Jr. until the Court has had a full hearing in this matter.”

At the same hearing, the trial court granted the State’s Attorney of Cook County leave to file its motion to join as plaintiff-intervenor, denied defendants’ request to stay the order, and continued the matter for hearing to August 2,1984.

On August 1, 1983, one day before hearing of the matter was set to continue, defendants filed a verified answer stating, inter alia, that on July 31, 1984, the president of the board announced that the ad hoc committee had been dissolved and that all future discussions of the general superintendency would be conducted by the Board as a whole at meetings noticed in accordance with the nonemergency procedures of the Open Meetings Act. In its answer, defendants admitted that public notice of the July 25 meeting was not given at least 24 hours before the meeting, but denied that the notice given was not otherwise in the manner and form required by the Act. Defendants neither admitted nor denied the allegation that the July 25 meeting of the ad hoc committee was held in violation of the Open Meetings Act.

The parties next appeared before Judge Wosik on August 2, 1984, at which time defendants sought leave to file a verified motion to dissolve paragraph 5 of the July 27 order and to file a motion for judgment on the pleadings. At this same hearing, Dr. Alice Blair petitioned the court for leave to intervene and moved for a temporary restraining order to issue against defendants, alleging that they had violated the Open Meetings Act and had denied her her right to apply for the position of general superintendent, in violation of the Board’s announced policy.

Finding that the parties had not been given adequate time to consider and respond to these various motions, the court did not hear argument on the merits. In its order entered August 2, 1984, the court granted the State’s Attorney leave to intervene and granted Dr. Blair leave to file her petition for intervention. The court also granted defendants leave to file their motion to dissolve paragraph 5 of the July 27 order, their motion for judgment on the pleadings, and time to file any written objections they might have to Dr. Blair’s intervention petition. The court further granted plaintiff until August 10 to respond to defendants’ motions, left the July 27 order in full force and effect, and set the matter for a hearing on the merits on August 17,1984.

On August 3, 1984, defendants, pursuant to Supreme Court Rule 307(a)(l)(73 Ill. 2d R. 307 (a)(1)), filed this interlocutory appeal.

Subsequent to the filing of the notice of appeal, on August 7, 1984, the Board filed an emergency motion to dissolve the preliminary injunction and a motion for entry of an agreed order. The agreed order suggested an agreement between the State’s Attorney and the Board in which a judgment would be entered, stating that the ad hoc committee had been dissolved and that the Board would henceforth comply with the 24-hour notice requirement set forth in the Open Meetings Act. The trial court declined to hear either of these motions on the grounds that it lacked jurisdiction.

With this factual and procedural background before us, we consider defendants’ interlocutory appeal.

Opinion

Supreme Court Rule 307(a)(1) provides for interlocutory appeals as of right from orders “granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction.” (73 Ill. 2d R. 307(a)(1).) The purpose of this rule is to permit interlocutory review of the trial court’s exercise of its equitable discretion and to prevent the abuse of that discretion by assuring that the order issued was necessary to maintain the status quo and preserve the rights of the parties. (Lake Shore Racquet Club, Inc. v. Fireman’s Fund Insurance Cos. (1980), 91 Ill. App. 3d 1118, 415 N.E.2d 625.) An appeal allowed under Rule 307 does not open the door to a general review of all orders entered by the trial court in the underlying case (Panduit Corp. v. All States Plastic Manufacturing Co. (1980), 84 Ill. App. 3d 1144, 405 N.E.2d 1316), nor does it divest the trial court of jurisdiction to hear and determine matters in the pending litigation which arise independently of the interlocutory order at issue (Home Savings & Loan Association v. Samuel T. Isaac & Associates, Inc. (1981), 99 Ill. App. 3d 795, 425 N.E.2d 985). The effect of the filing of a notice of appeal is, however, to restrain the trial court from either changing or modifying the order as entered. Home Savings & Loan Association v. Samuel T. Isaac & Associates, Inc. (1981), 99 Ill. App. 3d 795, 425 N.E.2d 985.

Applying this law to the instant case, we note that because the July 27 order issued by Judge Wosik granted a preliminary injunction against defendants, it falls within the purview of Rule 307(a)(1), which provides for interlocutory appeals as of right. Accordingly, this appellate court has jurisdiction to review this matter. The jurisdiction of this court attached immediately upon defendants’ filing of the notice of appeal on August 3, 1984. From that time on, the trial court was without jurisdiction to take any further action in regard to the interlocutory order granting injunctive relief. All proceedings instituted in the trial court subsequent to August 3 which had as their subject the preliminary injunction were therefore improperly brought. Judge Wosik’s refusal to hear defendants’ emergency motion to dissolve the preliminary injunction and motion for entry of an agreed order, both filed several days after the notice of appeal, was therefore proper.

Having thus determined our jurisdiction to hear this interlocutory appeal, we must determine the scope of our review. The only question before a reviewing court on interlocutory appeal is whether there was a sufficient showing made to the trial court to sustain its order granting or denying the relief sought. (Kelso-Burnett Co. v. Zeus Development Corp. (1982), 107 Ill. App. 3d 34, 437 N.E.2d 26.) As an appellate court, we look to the sufficiency of the evidence, not to determine controverted rights or to decide the merits of the case, but only for the limited purpose of ascertaining whether the trial court has abused its discretion in entering the interlocutory order. (G.A. Carney, Ltd. v. Brzeczek (1983), 117 Ill. App. 3d 478, 453 N.E.2d 756.) Thus, the merits of this case, namely, whether there has been a violation of the Open Meetings Act, are not before us. The sole issue on appeal is whether the trial court, in issuing the preliminary injunction contained in paragraph 5 in the order of July 27, abused its discretion. For the reasons that follow, our judgment is that in issuing the injunctive relief, as granted, the concerned trial court erred.

A preliminary injunction is an extraordinary remedy, to be granted with the utmost care only after plaintiff has established by a preponderance of evidence (1) the existence of a protectable right, (2) irreparable harm should the injunction not be forthcoming, (3) no adequate remedy at law, and (4) a likelihood of success on the merits. (G.A. Carney, Ltd. v. Brzeczek (1983), 117 Ill. App. 3d 478, 453 N.E.2d 756.) In showing likelihood of success on the merits, the plaintiff is not required to make out a case which will in all events warrant relief at a final hearing; petitioner need only raise a fair question as to the existence of the right claimed. (MBL (USA) Corp. v. Diekman (1983), 112 Ill. App. 3d 229, 445 N.E.2d 418.) A preliminary injunction serves the purpose of preserving the status quo until the trial court can consider the case on its merits. (Hill v. Village of Pawnee (1973), 16 Ill. App. 3d 208, 305 N.E.2d 740.) The status quo is the last, actual, peaceable, uncontested status that preceded the pending controversy. Hydroaire, Inc. v. Sager (1981), 98 Ill. App. 3d 758, 424 N.E.2d 719.

At the time the trial court issued the July 27 order containing the preliminary injunction, it had before it plaintiff’s verified complaint, a copy of the notice posted at the Board’s office on July 25, defendants’ motion for summary judgment, and plaintiff’s response to defendants’ motion.

In addition to the pleadings and documents considered by the trial court in determining whether to issue the preliminary injunction, a hearing was held on July 27, 1984. The record clearly shows that at this hearing both parties had an opportunity to and did present argument regarding the issuance of the preliminary injunction as well as defendants’ motion for summary judgment. Nevertheless, the Board objects that the injunction was issued without an evidentiary hearing and that a preliminary injunction cannot be entered without reaching the merits when an answer has been filed.

In response to the Board’s contention, we note that a trial court is given wide discretion with respect to the kind and extent of hearing on a motion for preliminary injunction. (MBL (USA) Corp. v. Diekman (1983), 112 Ill. App. 3d 229, 445 N.E.2d 418.) We note that while an evidentiary hearing on an application for a preliminary injunction is generally required where a verified answer has been filed denying material allegations in the complaint (Peoples Gas Light & Coke Co. v. City of Chicago (1983), 117 Ill. App. 3d 353, 453 N.E.2d 740), here, defendants had filed no verified answer prior to the issuance of the preliminary injunction. What defendants had filed was a motion for summary judgment, clearly asserting that there were no genuine issues as to any material facts presented in plaintiff’s complaint. A prior evidentiary hearing is required only where questions of material fact exist. (Paddington Corp. v. Foremost Sales Promotions, Inc. (1973), 13 Ill. App. 3d 170, 300 N.E.2d 484.) Where, as here, the trial court has been presented not with a verified answer that denies material allegations in the complaint, but rather with a motion for summary judgment, explicitly claiming that no genuine issue of material fact exists, it is not manifestly erroneous for that court to hold some kind of hearing which is not evidentiary in nature.

Moreover, while the trial court did find that a factual issue existed, namely, whether an emergency had triggered the emergency notice provision of the Open Meeting Act such as to dispense with the necessity of 24-hour notice, the court noted that that issue was not presented as a factual denial or even as a factual defense but rather as a conclusory sentence in defendants’ summary judgment motion. Because this factual issue was at the core of the merits of the underlying dispute, the trial court set the matter for a full hearing on August 17, 1984, a specified date in the immediately foreseeable future. (Jurco v. Stuart (1982), 110 Ill. App. 3d 405, 442 N.E.2d 633.) Thus, in accordance with the prohibitions set forth in Bullard v. Bullard (1978), 66 Ill. App. 3d 132, 383 N.E.2d 684, a case relied on by defendants, the trial court did not grant the injunction for an indefinite period of time and refuse to hold hearings on the propriety of its actions. The trial court plainly set forth in its order of July 27 that the preliminary injunction would remain in place only “until the Court has had a full hearing in this matter.” And, at the August 2 hearing, when defendants’ verified answer was first presented to the court, the court set the matter for a full hearing to be held shortly thereafter. For these reasons, the trial court’s failure to hold an evidentiary hearing prior to the issuance of the preliminary injunction or upon the filing of the verified answer was not manifestly erroneous.

In addition to the pleadings and motions the trial court had before it prior to ruling on plaintiff’s complaint for injunctive relief, the court had before it the critical provisions of the Open Meetings Act (Ill. Rev. Stat. 1983, ch. 102, pars. 42 through 46), which provide in pertinent part as follows:

“Sec. 2.02(a). ***
(a) *** Public notice of any special meeting except a meeting held in the event of a bona fide emergency, or of any rescheduled regular meeting, or of any reconvened meeting, shall be given at least 24 hours before such meeting ***.”
“Sec. 3. (a) Where the provisions of this Act are not complied with, or where there is probable cause to believe that the provisions of this Act will not be complied with, any person, including the State’s Attorney of the county in which such noncomplianee may occur, may bring a civil action in the circuit court for the judicial circuit in which the alleged non-compliance has occurred or is about to occur ***
* * *
(c) The court, having due regard for orderly administration and the public interest *** may grant such relief as it deems appropriate, including *** granting an injunction against future violations of this Act, ordering the public body to make available to the public such portion of the minutes of a meeting as is not authorized to be kept confidential under this Act, or declaring null and void any final action taken at a closed meeting in violation of this Act.”

Considering these statutory provisions, the transcript of proceedings of the July 27 hearing, the pleadings, and the motions and responses to motions that the trial court had before it, we cannot find that the trial court’s determination that plaintiff made a sufficient showing to warrant issuance of the relief sought was manifestly erroneous.

The relief sought was not, however, the relief granted. Thus, while there may have been a sufficient showing to sustain the order of the trial court granting the relief sought, where, as here, there is a discrepancy between the relief sought and the relief granted, this reviewing court must determine whether the relief as granted was a proper exercise of the trial court’s discretionary power. (Home Savings & Loan Association v. Samuel T. Isaac & Associates, Inc. (1981), 99 Ill. App. 3d 795, 425 N.E.2d 985.) In this instance, we find that it was not.

Plaintiff, in her complaint for injunction, prayed as follows:

“1. That the Court may immediately enter an injunction order pursuant to Section 43 of Chapter 102 Illinois Revised Statutes, (or a preliminary injunction pursuant to 11 — 102 of the Code of Civil Procedure) commanding Defendants and each of them to Desist and Refrain from continuing the July 25th meeting of the Ad-Hoc Committee, and to cease and refrain from any future violations of the provision of the Open Meetings Act.”

Plaintiff, in her emergency motion for injunction, moved for essentially the same relief. Despite this narrow prayer, the trial court, in paragraph 5 of its July 27 order, gratuitously enjoined the Board from “appointing anyone” to the position of general superintendent of schools and specifically enjoined the appointment of Dr. Byrd.

The issuance of a preliminary injunction is not proper where it tends to alter the status quo of the parties rather than preserve it. (Baal v. McDonald’s Corp. (1981), 97 Ill. App. 3d 495, 422 N.E.2d 1166.) Courts are to exercise caution in issuing preliminary injunctions, especially where defendants seek to exercise a lawful right. (Knuppel v. Adams (1973), 12 Ill. App. 3d 708, 298 N.E.2d 767.) Accordingly, the general rule is that injunctive relief will not be granted against public officials with respect to their official acts unless such acts are either outside their authority or unlawful. Rocke v. County of Cook (1978), 60 Ill. App. 3d 874, 377 N.E.2d 287.

In the case at bar, plaintiff prayed for the trial court to generally enjoin defendants from continuing to violate the Open Meetings Act and to specifically enjoin them from continuing the July 25 meeting. Such relief would have been duly authorized under section 3(c) of the Open Meetings Act, which empowers the court to grant injunctions against future violations thereof. (Ill. Rev. Stat. 1983, ch. 102, par. 43(c).) However, rather than issuing a narrowly drawn injunction conforming to the relief authorized by the Open Meetings Act and to the general law governing the issuance of injunctive relief against public officials, the trial court issued an overly broad order, enjoining the Board not from the continuance of unauthorized or unlawful acts but rather from the lawful exercise of its statutorily delegated power. (Ill. Rev. Stat. 1983, ch. 122, par. 34—6.) In so doing, the trial court unnecessarily and impermissibly altered the status quo.

Any prior violation of the Open Meetings Act by defendants cannot prevent the Board from calling a subsequent meeting, noticed in full compliance with the requirements of the Act, and there taking identical action. Should a superintendent be appointed at such a subsequent closed meeting, and should that meeting later prove to be violative of the Act, the court would then be authorized to exercise the power granted to it under section 3(c) and void such final action. (Ill. Rev. Stat. 1983, ch. 102, par. 43(c).) We find, however, that the broad prohibition set forth in the preliminary injunction far exceeds both the letter and the intent of the Open Meetings Act.

For all of the foregoing reasons, we find that the equitable relief granted against defendants in paragraph 5 of the July 27 order was overbroad and an unwarranted encroachment on the Board’s lawful power of appointment. Accordingly, we vacate paragraph 5 of the July 27 order and return the matter to the trial court for such further proceedings as may be required.

Vacated and remanded.

JOHNSON and ROMITI, JJ., concur.


author: PRESIDING JUSTICE SEIDENFELD

text:
    SMITH OIL CORPORATION et al., Plaintiffs-Appellants and Cross-Appellees, v. VIKING CHEMICAL COMPANY et al., Defendants-Appellees, Cross-Appellants.
    Second District
    No. 2—83—1097
    Opinion filed August 30, 1984.

      Curtis D. Worden and David K.A. Shair, both of Rockford, for appellants.
    John D. Witcher, of Holmstrom & Green, and Michael K. Havrilesko, of Williams & McCarthy, both of Rockford, for appellees.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

On September 12, 1983, Rock Valley Oil & Chemical Company (Rock Valley) purchased the industrial lubricant business of Smith Oil Corporation (Smith), operating in Rockford. Three Smith employees, defendants Frank Giovingo, Richard Fedeli and Dennis Rinaldi, immediately left and were employed by a competitor, Viking Chemical Company (Viking). Rock Valley and Smith sought and were granted a temporary restraining order, without a hearing, which was later dissolved. Subsequently, after a hearing, the trial court entered a preliminary injunction granting some of the relief requested by Rock Valley and Smith but denying other requested relief. The trial court also awarded the individual defendants damages of $3,402 and Viking damages of $2,889, for damages resulting from what it found to be a wrongfully issued temporary restraining order and its dissolution. Smith and Rock Valley appeal; Viking and the individual defendants cross-appeal.

I

The complaint for injunction alleged that the defendants possessed customer lists, customer orders, pricing information, cost information, sample formulas, product formulas, customer correspondence and other special customer information and that the material was taken from Smith without authorization. Rock Valley and Smith requested that defendants be restrained from calling upon or soliciting the sale of any product sold by Giovingo and Fedeli or worked on by Rinaldi, while employed by Smith; from calling upon any customer or former customer on Smith’s customer list; from disclosing or using any information concerning Smith’s customers; from disclosing or using any information concerning the cost, pricing, formula or any other information concerning any Smith product; and from producing any product using Smith’s formulas.

We first consider the plaintiffs’ contention that it was error to deny any part of the relief requested. The order granting the preliminary injunction first provided that Smith had failed to demonstrate any irreparable harm, since it had gone out of business, and denied it injunctive relief. There is no challenge to this portion of the order.

The order further provides that the defendants may use their general blending or chemistry skills or sales skills, “even if obtained or developed at Smith,” and may develop formulas for blending industrial oil “from a source independent of the knowledge of the defendants, Giovingo, Fedeli, or Rinaldi, which knowledge was obtained on or before September 9, 1983”; and that the defendants may use individual items of information contained in Smith’s supplier book or monthly sales report which they might happen independently to recall. Rock Valley and Smith question this part of the order, contending that information regarding customers, suppliers’ prices, and costs collected over many years and at great expense and effort on the part of the employer is protectable as a trade secret without the distinction made by the court between information memorized and recalled.

At the outset it is important to distinguish between the protection afforded an employer who has entered an enforceable restrictive covenant with his employees, and that afforded in its absence. While an enforceable restrictive covenant may protect material not properly characterized as a trade secret (see Tower Oil & Technology Co. v. Buckley (1981), 99 Ill. App. 3d 637 (customer lists and generalized knowledge protected)), absent a restrictive covenant, an employer’s protection is narrower and, in this context, extends only to trade secrets.

There is no real dispute between the parties as to what may be entitled to protection under the law as a “trade secret.” Generally, an employee whose employment has terminated may not take “confidential particularized plans or processes developed by his employer,” but may take “general skills and knowledge acquired during his tenure with the former employer.” (Schulenburg v. Signatrol, Inc. (1965), 33 Ill. 2d 379, 387; Packard Instrument Co. v. Reich (1980), 89 Ill. App. 3d 908, 916-17.) A trade secret must be defined in terms of the facts of a particular case, with the following factors to be considered: (1) the extent to which the information is known outside of the employer’s business; (2) the extent to which information is known by employees and others involved in the business; (3) the extent of the measures taken by the employer to guard the secrecy of the information; (4) the value of the information to the employer and his competitors; (5) the effort or money expended by the employer in developing the information; and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. (ILG Industries, Inc. v. Scott (1971), 49 Ill. 2d 88, 93; Midwest Micro Media, Inc. v. Machotka (1979), 76 Ill. App. 3d 698, 702-03.) It is recognized, as a general rule, that the right of an individual to follow and pursue a particular occupation for which he is best trained is a fundamental right and that 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 Industries, Inc. v. Scott (1971), 49 Ill. 2d 88, 93.

First, we decide whether any of the disputed material is entitled to receive protection as a trade secret. Plaintiffs asserted a proprietary interest in the customers and- sought to enjoin defendants from soliciting the sale of any product sold or worked on by defendants while employed by Smith, and from calling on ány customer or former customer on Smith’s customer list. The trial court found that the defendants Giovingo and Fedeli, through their employment with Smith, learned the names of many industrial oil or lubricant customers and became familiar with many people to contact and with the names of those customers, but that the prior knowledge of customer needs, in and of itself, was not entitled to protection. We agree. An employer ordinarily has no proprietary interest in his customers, although he can protect confidential information by a reasonable restrictive covenant. (Compare The Packaging House, Inc. v. Hoffman (1983), 114 Ill. App. 3d 284, 28687 (confidential information protected by restrictive covenant), with Kalnitz v. Ion Exchange Products, Inc. (1971), 2 Ill. App. 3d 158, 161 (no restrictive covenant to protect confidential information).) We note that in this case no restrictive covenant is involved.

The manifest weight of the evidence adduced at the hearing supports the conclusion that the customer sales reports were not trade secrets. There was evidence that the defendants did not need the plaintiffs’ sales report because the customer would give the salesman the price he was paying previously in order to get a competitive price; that product and pricing information was routinely given out by Smith order clerks to customers over the phone; that the customer lists were not under lock and key and were available to any clerk or employee; that computer sales reports were not restricted as to access nor locked up; that the defendants knew who the major customers in the industry were from general experience and merely had to ask the customer to give him a copy of the blanket orders, price structure and names of the products he was buying in order to compete; and that customers commonly dealt with more than one supplier, depending on who made the best bid. While it is undisputed that knowing who the customers are and what their needs are is valuable business information, the trial court’s conclusion that the salesman’s knowledge comes under the category of general knowledge and not under the category of a protectable trade secret is supported by the manifest weight of the evidence. See Hayden’s Sport Center, Inc. v. Johnson (1982), 109 Ill. App. 3d 1140, 1148-49.

Tower Oil & Technology Co. v. Buckley (1981), 99 Ill. App. 3d 637, relied upon by the plaintiffs, is distinguishable. In Tower an industrial lubricants manufacturer successfully enforced its restrictive covenant against ex-employees who left to work for a competitor. The court protected the employer’s customer list and confidential customer information, not because they were trade secrets, but because they were covered by a reasonable, enforceable restrictive covenant. (99 Ill. App. 3d 637, 643-44.) That court also noted that the covenant restricted defendants from soliciting approximately 2.4% of the customers in the Chicago area, whereas here, the trial court found defendants would be prevented from soliciting the entire Rockford area market. Furthermore, in Tower the market was shown to be stable, with low customer turnover, whereas here, the evidence showed customers dealt with more than one supplier.

Next, plaintiffs assert a proprietary interest in defendants’ general knowledge and skills acquired at Smith and seek to enjoin their use in other employment. The manifest weight of the evidence adduced at the hearing supports the trial court’s holding that the defendants cannot be prevented from using their general blending or chemistry skills or sales skills even if obtained or developed at Smith; nor prohibited from making use of individual items of sales information contained in customer lists or reports which they may happen to recall from their independent recollection. See Schulenburg v. Signatrol, Inc. (1965), 33 Ill. 2d 379, 387; Midwest Micro Media, Inc. v. Machotka (1979), 76 Ill. App. 3d 698, 703.

Finally, plaintiffs assert a proprietary interest in formulas, to protect both exact duplications of Smith products and comparable or equivalent products. That portion of the trial court’s judgment order which provides that the defendants are not enjoined from developing a comparable or equivalent product to that sold by Smith or from developing a formula from a source independent of their knowledge acquired at Smith, although from skills developed there, is also supported by the manifest weight of the evidence.

The “formulas” which the plaintiffs sought to protect were presumably contained in a book used at Smith and referred to as “Exhibit 13.” While generally referred to in the evidence, the exhibit is not made a part of the record, to protect what the plaintiffs claimed were trade secrets. The book contained both Smith and Sun Oil Company (Sun) formulas.

It should be noted that prior to the sale Smith was a wholly owned subsidiary of Sun. Rock Valley purchased Smith’s business and, as a condition of the sale, became an exclusive distributor of Sun industrial lubricants in the Rockford area, but Rock Valley is not Sun’s wholly owned subsidiary and has no right to Sun formulas. It is clear that Rock Valley has no standing to protect Sun formulas.

Each witness testifying explained the formulas from a different point of view. The testimony appeared contradictory, with plaintiffs’ expert, John Frick, a lubricant product manager at Sun, emphasizing that Sun keeps its formulas secret, and defendant’s expert, J. Richard Roweton, a consultant to compounders and blenders, stating that “there aren’t too many secrets” among the oil companies because there are “only so many things you can do.” However, taken as a whole, the evidence resolves the apparent contradiction, establishing two categories of product information.

The first category comprises formulas proper, compared to recipes by Rock Valley’s president Schram. These formulas exactly specify the required base oil, the additives, their proportions, the order of and temperature for blending, and the proper type and duration of agitation. With such a formula, an experienced blender can produce the exact duplicate of the desired product quickly. Oil companies customarily closely guard their formulas because, though most companies produce equivalent products, their performance differs somewhat. At Smith, while some formulas yielded equivalents to generally available products, others yielded products specially designed to suit a particular customer’s machine.

The second category comprises unguarded descriptions of products in varying degrees of specificity. From these descriptions an experienced blender can deduce the missing information and can produce a product equivalent to a sample or desired product in time which may vary from a week to six months. Lubricant producers distribute data sheets describing their products’ characteristics. Cross-reference publications chart equivalent products produced by larger oil companies, but not smaller ones like Smith or Viking. The charts describe the products’ characteristics, list equivalent competitive products, and compare their performance to government and machinery manufacturer’s minimum requirements. Upon request, additive suppliers send a blender an analysis of a sample at no charge. The analysis includes a starting point formula which specifies, generically, the base oil, and indicates which of the supplier’s additive in what proportions will yield a product equivalent to the sample. The blender must then experiment to produce a product equivalent to the sample to meet his customer’s needs.

Applying the definition of trade secrets to the facts before us, it appears that the exact formulas are protectable trade secrets, but that the ability to produce suitable comparable equivalents is within a general technical knowledge and is not a protectable trade secret. This distinction was found by the trial court, and we conclude that it is supported by the evidence.

Thus, the trial court properly found that the defendants may 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 at Smith. See Schulenburg v. Signatrol, Inc. (1965), 33 Ill. 2d 379, 387.

II

In support of their cross-appeal, the defendants contend that no injunction should have been issued. They argue that the portion of the trial court’s order which prohibits the defendant from using or disclosing any formula contained in the “Formula Book” (defendants’ exhibit No. 13), from disclosing any “originals, copies, or permanent recordings” from the book listing suppliers (plaintiff’s exhibit No. 25) or from a monthly sales report (plaintiffs’ exhibit No. 14) or similar monthly sales reports, and from “accepting any bids, or soliciting any bids if the customer obtained an order” from Smith on or before September 9,1983, has no support in the evidence.

The plaintiffs produced some evidence to show that records were missing from the individual defendants’ offices at the time they left Smith’s employ. However, there was no proof that any of the defendants actually took or possessed any such material. They specifically deny any taking. The trial court, in fact, concluded that the plaintiffs’ evidence as to the contents of files said to be missing was “confusing,” “contradictory,” and that there was a “nominal effort” to locate the files. Giovingo, who had particular access to the files in question, testified that he did not take or copy any of the files relied on by the plaintiffs from the office. He testified that when he was advised of the imminent sale he suggested to his supervisors that if Rock Valley were not to get Sun formulas which Smith was using, the blue book containing the formulas should be shredded. His supervisor advised him that Rock Valley was not purchasing Sun formulas. Giovingo testified that the book in his possession was then shredded and he made no copies. This testimony was not controverted.

While it is apparent from the record that the trial court resolved the issue of whether any records were taken by the individual defendants in their favor, it nevertheless in its order enjoined the defendants from using them. This appears to us to be inconsistent and contrary to law.

An injunction is authorized only if the party seeking it has raised a fair question that, among other requirements, he possesses a certain and clearly ascertained right which needs protection and that he will suffer irreparable harm without the granting of an injunction. (Midwest Micro Media, Inc. v. Machotka (1979), 76 Ill. App. 3d 698, 702.) The requirement of the showing of imminent injury is not satisfied by proof of a speculative possibility of injury and “such relief will not be granted to allay unfounded fears or misapprehensions.” (Barco Manufacturing Co. v. Wright (1956), 10 Ill. 2d 157, 166.) An insufficient showing of harrn requires the reversal of an order granting an injunction. Plasti-Drum Corp. v. Ferrell (1979), 70 Ill. App. 3d 441, 453.

We conclude that the evidence supports a finding that at least some Smith formulas were protectable trade secrets. There is no evidence, however, that the defendants have taken or possess this material, and any suggestion that they do is purely speculative.

As to the supplier book, monthly sales report and the master customer list, it was improper for the trial court to enjoin any original copies or permanent recordings of them since, as the court in fact found, there was also no evidence that they were taken by the defendants. It also appears from the evidence that none of these particular items qualify as protectable trade secrets, since the same information was readily available, was used by many different people in the Smith office and was not kept secret. See Lincoln Towers Insurance Agency v. Farrell (1981), 99 Ill. App. 3d 353, 358-59.

We also find no support for that portion of the injunctive order prohibiting defendants from accepting or soliciting bids if the customer obtained an order “from Smith on a specific matter on or before September 9, 1983.” Of the orders plaintiffs indicate defendants filled improperly, only the order placed by Woodward Governor with Smith September 9, and filled on September 12 by Viking, shows some evidence that Smith may have lost an order to Viking. We find no other evidence in the record that the defendants had or threatened to accept an offer or solicit a specific order which had been placed with Smith prior to their leaving on September 9, 1983. There is evidence that several customers of Smith tried to place orders with Smith on September 9, but that Smith could not deliver on that day because of the changeover in ownership, and that Giovingo on Monday, September 12, supplied the order from Viking. There is no evidence of ongoing unfair activity. This evidence was insufficient to support the injunctive orders.

Ill

Finally, we conclude that the damages were properly awarded upon the dissolution of the temporary restraining order (TRO). The trial court entered the temporary restraining order on September 16, 1983, and dissolved it on September 26, 1983. The court found that the plaintiffs’ ex parte request on September 16 was not supported by specific facts showing immediate and irreparable harm and thus that the defendants were wrongfully restrained since the TRO without notice and without bond was improperly issued. Plaintiffs argue that damages are due only where the TRO is not entered in good faith and that where, as here, a preliminary injunction soon was entered granting the relief sought in the TRO, that the damages should not lie. However, the temporary injunction may still be wrongfully issued although the plaintiff thereafter prevails in his suit for an injunction. (See Schien v. City of Virden (1955), 5 Ill. 2d 494, 503.) As noted in Schien, damages based on the wrongful issue of a temporary injunction are determined by the dissolution of the temporary injunction before the resolution of the case on its merits. (5 Ill. 2d 494, 503.) Since there was an adjudication that the temporary restraining order had been wrongfully issued, damages were properly ordered. See Stocker Hinge Manufacturing Co. v. Darnel Industries, Inc. (1983), 94 Ill. 2d 535, 543-44.

That portion of the judgment of the circuit court of Winnebago County which denied certain injunctive relief sought by the plaintiffs is affirmed; that portion which granted certain other injunctive relief is reversed.

Affirmed in part, reversed in part.

LINDBERG and NASH, JJ., concur.


author: JUSTICE HEIPLE

text:
    WILMA WILSON, Petitioner-Appellee, v. BOARD OF EDUCATION OF LIMESTONE-WALTERS SCHOOL DISTRICT NO. 316, PEORIA COUNTY, Respondent-Appellant.
    Third District
    No. 3—84—0160
    Opinion filed August 31, 1984.

      Walter W. Winget, of Winget & Kane, of Peoria, for appellant.
    Drach & Defenbaugh, P.C., of Springfield, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

The plaintiff, Wilma Wilson, is a teacher in the Limestone-Waiters school district in Peoria County. She started as a full-time teacher in 1967 and later entered into contractual continued service commonly referred to as tenure. In 1974, the plaintiff agreed to accept a four-day-per-week part-time teaching position due to health problems.

The plaintiff continued as a part-time teacher for nine years, through the 1982-83 school year. In 1983, the plaintiff was informed that due to financial shortfalls, she would receive an honorable reduction in assignment from four days per week to two days per week. The plaintiff demanded a full-time position for the 1983-84 school term, but the board of education denied her request.

On June 21, 1983, plaintiff filed suit against the school board seeking damages and a writ of mandamus directing that she be made a full-time teacher. The trial court ordered that the plaintiff be reinstated to a full-time position and awarded damages based on the difference between a full- and part-time salary for the 1983-84 school year. The board of education appeals.

The plaintiff’s suit is based on section 24—12 of the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 24—12), which governs the removal or dismissal of teachers in contractual continued service. The board argues that the plaintiff has no standing to sue under this section because she was not removed or dismissed. This question has been settled in Caviness v. Board of Education (1978), 59 Ill. App. 3d 28, and Birk v. Board of Education (1983), 120 Ill. App. 3d 181. In both cases it was held that the terms “removed” and “dismissed” encompassed any reduction in the extent of a teacher’s employment. If this were not the case, a board could “nibble away and reduce one’s employment until economic necessity forced the tenured teacher to resign.” (Caviness v. Board of Education (1978), 59 Ill. App. 3d 28, 31.) We agree with this rule. A reduction in employment may be tantamount to dismissal or removal. If the rule were otherwise, the provisions of section 24—12 could be easily circumvented by unscrupulous school district officials. Accordingly, section 24 — 12 is applicable to the plaintiff.

Next, the board argues that by voluntarily accepting part-time teaching for nine years, the plaintiff lost her tenure rights under section 24—12. This argument is contrary to the law in Illinois. Appellate and supreme court decisions have clearly established that tenure is not lost by part-time teaching. Johnson v. Board of Education (1981), 85 Ill. 2d 338, 347: Brown v. Board of Education (1976), 38 Ill. App. 3d 403, 408.

The board’s next argument is that the plaintiff’s claim is barred by the statute of limitations, laches, waiver and equitable estoppel.

Both parties agree that the general five-year limitations period applies to this case. (Ill. Rev. Stat. 1983, ch. 110, par. 13—205.) However, the parties disagree over when the plaintiff’s cause of action accrued. The board argues that the claim accrued when the plaintiff first started teaching part time in 1974. We disagree.

A cause of action accrues when a plaintiff knows or should have known that she was injured. Here, the plaintiff agreed to accept a part-time assignment in 1974 and was not denied her rights as a tenured teacher until 1983, when the board rejected her request for reinstatement pursuant to section 24—12. (Burris v. School Board Dis trict 189 (1979), 70 Ill. App. 3d 572, 576.) Therefore, this action was filed less than one year from the time when the statute of limitations started to run.

Similarly, the equitable defense of laches is not applicable because the plaintiff had no right to seek a writ of mandamus until her rights were denied in 1983. The plaintiff filed suit immediately after her demand for full-time employment was denied. Therefore, there was no undue delay to support a claim of laches.

Waiver requires a voluntary relinquishment of a known right. The record shows only that the plaintiff voluntarily accepted a reduction from full- to part-time employment. There is no evidence that the plaintiff intended to relinquish tenure. In fact, the record shows that in response to her inquiry, the plaintiff was specifically reassured by her superior that she retained tenure and seniority while teaching part time. Therefore, the board’s waiver argument must fail.

Equitable estoppel is defined as:

“[T]he effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in chancery, from asserting rights which might otherwise have existed as against another person who has, in good faith, relied upon such conduct and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right.” 18 Ill. L. & Prac. Estoppel sec. 22 (1956).

There is no evidence in the present case that the plaintiff said or did anything which informed the board that she had no intention of ever asserting her rights as a tenured teacher by demanding a full-time position. As previously mentioned, the record shows that the plaintiff expressed her concern over retention of tenure and seniority. Thus, there was no voluntary conduct which now precludes the plaintiff from pursuing her rights.

The board argues that courts should not reverse the personnel decisions of a school board unless such decisions are political, partisan, capricious or motivated by evil intent. A teacher’s rights under section 24 — 12 are not conditioned upon whether the school board acted in good faith or not. The legislature has declared that removal of a teacher or reduction of her employment must be done in accord with section 24 — 12. Regardless of the board’s motive in reassigning the plaintiff, it had no discretion to deny the plaintiff’s statutory rights. When called upon to enforce these rights, courts cannot rewrite the statute and ignore the intent of the legislature by imposing conditions which will nullify the protection of section 24 — 12.

The board’s final argument is that the plaintiff failed to join as indispensable and necessary parties those less senior teachers who were hired while the plaintiff worked part time. The least senior of these teachers would allegedly receive a reduced assignment if the plaintiff is reinstated as a full-time teacher.

An indispensable party is one whose presence is so essential to the decision of a case that a final decree cannot be entered without materially affecting his interest. (Pliske v. Yuskis (1980), 83 Ill. App. 3d 89.) The less senior teachers are not indispensable parties because their employment is governed by separate contracts with the school board. Their rights are not dependent upon the outcome of this case. (See Betebenner v. Board of Education (1949), 336 Ill. App. 448.) Accordingly, there was no failure to join indispensable parties.

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

Affirmed.

SCOTT and STOUDER, JJ., concur.


author: PER CURIAM:

text:
    THE LEAGUE OF WOMEN VOTERS OF GREATER PEORIA et al., Plaintiffs-Appellees, v. MARY HARKRADER, Peoria County Clerk, Defendant (James E. Bartell, Intervening Defendant-Appellant).
    Third District
    No. 3—84—0543
    Opinion filed September 4, 1984.

      Phillip B. Lenzini, of Kavanagh, Scully, Sudow, White & Frederick, P.C., of Peoria, for appellant.
    David A. Benckendorf, of Benckendorf & Benckendorf, of Peoria, for appellees.
   PER CURIAM:

The appellant-intervenor appeals from an order of the circuit court allowing the plaintiffs, League of Women Voters and Frances Kepler, to withdraw, and to subsequently refile, petitions submitted under section 28 — 3 of the Election Code (Ill. Rev. Stat. 1983, ch. 46, par. 28—3) to the defendant, Mary Harkrader, clerk of Peoria County.

The plaintiffs initiated a signature drive on petitions to reduce the number of Peoria County Board members from 27 to 9. In conversations with a Peoria deputy county clerk, the plaintiffs inquired as to the number of signatures necessary in order to place their proposition on the ballot for the November 1984 ballot. The deputy clerk, after consulting a State Election Commission Handbook, mistakenly told them that the required number of signatures was statutorily established as 10% of the number of people who voted in the last election. The plaintiffs collected signatures in excess of this number and submitted their petitions to the county clerk.

The plaintiffs subsequently learned that the requisite number of signatures under section 28 — 7 was 10% of the number of people registered to vote in the last election. The plaintiffs had collected an insufficient number of signatures under the proper statutory measure. The plaintiffs, therefore, asked to withdraw their petitions. The county clerk refused. The plaintiffs filed the instant suit. The circuit court allowed the withdrawal of the petitions, which were then recirculated and refiled with additional signatures.

In their complaint, the plaintiffs alleged that the defendant clerk was equitably estopped from refusing to allow the withdrawal because the clerk’s office had negligently misrepresented the basis for computing the necessary number of signatures. The plaintiffs have cross-appealed, arguing that the intervenor’s motion to intervene was improperly granted.

We initially find that the intervenor’s motion to intervene was properly granted by the circuit court. The allowance of the motion to intervene is, therefore, affirmed.

Addressing the issues raised by the intervener, we find that the trial court was without jurisdiction to order the petitions returned in the face of the clear statutory mandate contained in section 28 — 3. We further find that the equitable estoppel principle was not properly applied in the instant case. A ministerial officer has no authority to give binding advice on legal questions which has the effect of overturning statutory pronouncements.

Therefore, the judgment of the circuit court allowing the intervenor’s motion to intervene is affirmed; in all other respects, the judgment is reversed.

Affirmed in part; reversed in part.


author: PRESIDING JUSTICE MILLS JUSTICE MILLER,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RICKY A. JUMP, Defendant-Appellee.
    Third District
    No. 3—84—0025
    Opinion filed August 31, 1984.

      MILLER, J., specially concurring.
    Joan C. Scott, State’s Attorney, of Lewistown (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Robert Agostinelli and Thomas A. Lilien, both of State Appellate Defender’s Office, of Ottawa, for appellee.
   PRESIDING JUSTICE MILLS

delivered the opinion of the court:

In custody 126 days.

No trial.

Nor will there be.

The trial court dismissed.

We affirm.

Facts

Jump was charged by information with robbery on September 13, 1983. He was arrested the same day and held in custody at the Fulton County jail. The public defender was appointed to represent him and filed a request for an immediate trial by jury.

On November 14, 1983, defendant filed a motion to suppress evidence of his identification, alleging an improper showup. He did not seek a hearing date on the motion at this time.

On November 22, 1983, defendant’s trial date was set for December 19, 1983. Pretrial conferences were scheduled for December 7. On November 23, defendant gave notice to the State’s Attorney of a hearing on his motion to suppress. The hearing date was scheduled for December 20,1983 — one day after the scheduled trial date.

The trial docket shows that the State and defendant answered ready for trial at the pretrial conference on December 7. On December 12, 1983, defendant’s case (along with 22 other cases) was set for trial on December 19, 1983. While the trial date remained unchanged, the cases were transferred from Judge Wilhelm to Judge Henderson.

On December 15, 1983, defendant filed a motion to remove his case from the December calendar. The motion states: “The defendant prays for an order of this court removing the cause from the trial calendar commencing on December 19, 1983, at 9:30 a.m. until such further time as will permit the hearing and disposition of the motion to suppress set for December 20, 1983, at 3 p.m. before the Honorable Charles Wilhelm.” The record does not indicate that this motion was ever heard or ruled on. However, defendant’s case was removed from the December calendar on December 22, 1983, and a new trial date was scheduled for January 17, 1984. Defendant’s motion to suppress was heard and denied on December 20. Both the State and defendant answered ready for trial at a pretrial conference on January 3.

On January 5, the public defender filed a motion to withdraw as counsel for defendant. The motion stated that Tony Brevell, a codefendant, had pleaded guilty to the robbery and had been listed as a State’s witness for defendant’s trial. Brevell was also being represented by the public defender and the motion to withdraw was based on a potential conflict of interest. On January 11, Judge Bath granted the motion to withdraw and appointed attorney Stewart Merdian to represent defendant.

On January 17, 1984, Merdian filed a motion to dismiss the charges against defendant on the grounds that his right to a speedy trial had been violated. After a hearing, Judge Murphy granted the motion to dismiss.

The only witness to testify at the hearing was John Clark, the assistant public defender for Fulton County. Clark testified that defendant never moved for a continuance and that the motion to remove his case from the December calendar was never heard or ruled upon. Clark testified that he would not have gone to trial on December 19 without a hearing on the motion to suppress. When asked why he answered ready for trial on December 3, Clark responded, “As I recall, it was decided informally that the Jump and Brevell trials weren’t going to happen that week. ”

Clark stated on cross-examination that through “informal conversations” between the public defender and the State’s Attorney, the State “always knew that [the public defender] wanted the hearing on the Motion to Suppress before *** a trial in this case.”

Here is a recapitulation of the relevant data:

Sept. 13, 1983 Defendant taken into custody.

Nov. 14 Defendant’s motion to suppress evidence.

Nov. 22 Court order setting trial date for 12/19/83.

Nov. 23 Defendant’s notice of hearing on motion press. to sup-

Dec. 12 Court order setting trial date for 12/19/83.

Dec. 15 Defendant’s motion to remove case from ber calendar. Decem-

Dec. 20 Hearing on motion to suppress.

Dec. 22 Court order setting trial date for 1/17/84.

Jan. 5,1984 Public defender files motion to withdraw.

Jan.11 New counsel appointed. Expiration of 120 days from date of arrest.

Jan. 17 Defendant’s motion to dismiss.

Opinion

Judge Murphy discharged defendant pursuant to sections 103 — 5(a) and 5(d) of the Code of Criminal Procedure of 1963, which provides:

“(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant ***.
* * *
(d) Every person not tried in accordance with subsections (a), (b) and (c) of this Section shall be discharged from custody or released from the obligations of his bail or recognizance.” Ill. Rev. Stat. 1983, ch. 38, pars. 103—5(a), (d).

In resolving whether a delay is attributable to the defendant, much deference must be given to the trial court’s judgment, especially where it is difficult to discern from the record which party is primarily responsible for the delay. (People v. Reimolds (1982), 92 Ill. 2d 101, 440 N.E.2d 872; People v. Snyder (1975), 32 Ill. App. 3d 1003, 337 N.E.2d 108.) The decision of the trial court as to the accountability for delay in bringing the defendant to trial should be sustained absent a clear showing of abuse of discretion. People v. Reimolds (1982), 92 Ill. 2d 101, 440 N.E.2d 872; People v. Grant (1982), 104 Ill. App. 3d 183, 432 N.E.2d 1129.

The State first argues that the defendant’s motion to suppress evidence of his identification occasioned delay chargeable to him.

It has been stated that there is no per se rule that the filing of a motion by the defendant automatically occasions delay attributable to him. (People v. Ferguson (1977), 46 Ill. App. 3d 815, 361 N.E.2d 339.) A delay in fact must occur as a direct consequence of the defendant’s action for the defendant to be chargeable. (People v. Ferguson (1977), 46 Ill. App. 3d 815, 361 N.E.2d 339.) However, a defendant will ordinarily be charged with delay caused by the filing of a motion to suppress, particularly where the defendant is aware that an evidentiary hearing will be required and the State will need time in which to prepare. People v. Manna (1981), 96 Ill. App. 3d 506, 421 N.E.2d 542; People v. Keagbine (1979), 77 Ill. App. 3d 1039, 396 N.E.2d 1341.

The cases cited by the State wherein the filing of a motion to suppress occasioned delay chargeable to the defendant aré inapposite. In Manna, the defendant’s motions to suppress evidence were heard on the same day the motions were filed, but the hearings were continued by order of the court. The appellate court held that the delay occasioned by the continuance of the hearing on the motions to suppress was attributable to the defendant. In the present case, defendant’s motion to suppress was disposed of on the same day it was heard, and there were no continuances ordered by the court. People v. Keagbine (1979), 77 Ill. App. 3d 1039, 396 N.E.2d 1341, People v. Schoeneck (1971), 1 Ill. App. 3d 395, 274 N.E.2d 483, and People v. Brown (1976), 40 Ill. App. 3d 1003, 353 N.E.2d 244, also were cases where continuances were either granted or ordered after hearings on the defendants’ motions to suppress had begun.

The State maintains that defendant’s motion to remove his case from the December calendar should be regarded as a motion for a continuance and that the time from the original trial date (December 19) to the January 17 trial date was chargeable to defendant.

Continuances which are requested or agreed to by the defendant are chargeable to him. (People v. Donalson (1976), 64 Ill. 2d 536, 356 N.E.2d 776; People v. Clay (1981), 98 Ill. App. 3d 534, 424 N.E.2d 814.) Even if we were to view defendant’s motion to remove his case from the December calendar as a motion for a continuance, the record does not show that this motion was ever heard or ruled on. While the case was in fact removed from the December calendar, the record does not establish that this removal was in response to defendant’s motion. Delay cannot be attributed to the defendant where the record is silent. People v. Reimolds (1982), 92 Ill. 2d 101, 440 N.E.2d 872; People v. Grant (1982), 104 Ill. App. 3d 183, 432 N.E.2d 1129; People v. Cunningham (1979), 77 Ill. App. 3d 949, 396 N.E.2d 876.

The State next argues that the defendant occasioned a six-day delay when the public defender filed a motion to withdraw as counsel on January 5, and his new counsel was appointed on January 11.

The record clearly shows that there was no delay in fact caused by the motion to withdraw. The January 17 trial date had been set before the public defender moved to withdraw. The trial date was still January 17 after new counsel was appointed, and the new counsel did not move to continue the trial. Therefore, the motion to withdraw had no effect on the date of the trial.

On the record before us, we cannot say that Judge Murphy abused his discretion in finding no delay chargeable to defendant.

Defendant’s motion to strike portions of the State’s reply brief has been taken with the case. The motion is allowed for the reason that the statements are not supported by the record on appeal.

Defendant’s motion to strike allowed.

Affirmed.

TRAPP, J., concurs.

JUSTICE MILLER,

specially concurring:

Because the record permits inferences that the delay could have been caused by reasons other than the defendant’s motion to remove the cause from the trial calendar for a hearing on his motion to suppress, I concur in the result reached by the majority. I would not, however, require under all circumstances that a ruling be made or entered on a motion for a continuance or for removal before attributing the delay to the defendant.