author: JUSTICE JIGANTI

text:
    BUCKTOWN PARTNERS, Plaintiff-Appellees, v. SANIAH JOHNSON, Defendant-Appellant—(Main Bank of Chicago, Garnishee-Defendant).
    First District (4th Division)
    No. 82—2801
    Opinion filed November 10, 1983.

      Les Jin and Alan Alop, both of 18th Street Legal Services, and James 0. Latturner, of Uptown Legal Services, both of Chicago, for appellant.
    Margaret Scanlan Brown, of Epstein, Crosby & Adler, Ltd., of Chicago, for appellee.
   JUSTICE JIGANTI

delivered the opinion of the court:

This action challenges the authority of the trial court to disregard the allegedly uncontradicted testimony of a party witness. The plaintiff, Bucktown Partners, brought a forcible entry and detainer action against the defendant, Saniah Johnson, for nonpayment of rent. The trial court entered judgment against the defendant in the amount of $560. A garnishment proceeding was subsequently initiated against the defendant’s bank to collect the judgment. The defendant moved to quash the garnishment because the funds in her account were allegedly public assistance payments that were exempt from garnishment under article IV of the Illinois Public Aid Code. (Ill. Rev. Stat. 1981, ch. 23, par. 11 — 3.) The trial court denied the defendant’s motion, and this appeal followed.

The substance of this appeal revolves around the fact that the defendant was the sole witness to testify during the hearing on the motion to quash the garnishment. She stated that she received $368 per month in public assistance benefits and $168 per month in food stamps to support herself and her three children. She further testified that public assistance was her sole source of income and that all of the funds in her bank account came from public assistance benefits. The defendant’s bank ledger card was introduced into evidence and it reflected the following transactions:

The ledger card thus reflected five deposits which were completed by the defendant. Other than the defendant’s representation that all of the money in the account came from aid payments, the source of the initial deposit of $502.56 was not referred to at the hearing by either party. Regarding the three deposits of $280 each, the defendant testified that she did not pay her $280 rent to the plaintiff for three months and that she deposited the $280 into her bank account during each of those months. The remaining deposit of $620 was explained by the defendant to be a partial redeposit of thé $630 that was withdrawn the previous day. Specifically, the defendant testified that she withdrew the $630 to pay the rent and security deposit on a new apartment and that the new landlord refused to accept the certified check offered by the defendant. Therefore, the defendant allegedly redeposited the money into her account. Other relevant facts that were elicited at trial shall be discussed later in this opinion.

The plaintiff offered no evidence to the effect that the funds in the defendant’s bank account stemmed from a source other than the defendant’s aid payments. Rather, the plaintiff contends that the defendant’s testimony was contradictory and confused and was therefore unworthy of belief. The trial court found it “hard to fathom how a woman with three children getting $368 from the public aid agency and is paying $280 [in rent] can have over $1000 in the bank ***.” Consequently, the trial court denied the defendant’s motion to quash the garnishment.

In essence, the trial court chose simply to discount the defendant’s testimony and concluded, contrary to her representations, that the funds in her account came from a source other than public assistance payments. On appeal, our sole concern is whether the trial court has the authority under Illinois law to disbelieve the testimony of a witness, that is uncontradicted on a material issue. Specifically, the defendant remained totally uncontradicted and unimpeached regarding her statement that all of the money in her account came from assistance payments. While she may have been contradicted on matters other than the source of these funds, as we shall discuss later, the record is devoid of any evidence which contradicts the defendant’s statement that the source of the money in her account was her assistance payments.

During the course of our examination of this issue, we have surveyed the case law of a number of States. Several jurisdictions simply hold that the trier of fact is not bound to believe uncontroverted testimony. (Cragin v. Woollett (1962), 104 N.H. 202, 182 A.2d 457; Carl v. Kurtz (1978), 255 Pa. Super. 198, 386 A. 2d 577; Gee v. Gee (Mo. App. 1980), 605 S.W.2d 815; Moser v. Brown (Iowa 1977), 249 N.W.2d 612; McPhaul v. Sewell (1978), 36 N.C. App. 312, 244 S.E.2d 158; Morphew v. Morphew (Ind. App. 1981), 419 N.E.2d 770; Piemonte v. New Boston Garden Corp. (1979), 377 Mass. 719, 387 N.E.2d 1145; Baliulis v. Campbell Soup Co. (1979), 204 Neb. 739, 285 N.W.2d 227; see also 7 Wigmore, Evidence sec. 2034, at 260-61 (3d ed. 1940).) The rationale often given for allowing the rejection of uncontradicted testimony is that the trier of fact is generally in the best position to measure the persuasiveness of evidence and the credibility of witnesses. (See, e.g., 93 Clearing House, Inc. v. Khoury (1980), 120 N.H. 346, 415 A.2d 671; Gee v. Gee (Mo. App. 1980), 605 S.W.2d 815.) Similarly, other courts observe that the trier of fact is the sole judge of a witness’ credibility (McPhaul v. Sewell (1978), 36 N.C. App. 312, 244 S.E.2d 158), or that it is the trier of fact’s prerogative to disbelieve a witness’ testimony (Carl v. Kurtz (1978), 255 Pa. Super. 198, 386 A.2d 577).

A number of other States also allow the trier of fact to disregard a witness’ uncontradicted testimony, but only if the witness is either a party or someone else who has an interest in the outcome of the suit. (Rowe v. Goldberg Film Delivery LInes, Inc. (1937), 50 Ariz. 349, 72 P.2d 432; Smith v. Edward M. Rude Carrier Corp. (1966), 151 W. Va. 322, 151 S.E.2d 738; Belinskey v. Hansen (N.D. 1977), 261 N.W.2d 390; see also Rea v. Rea (1978), 19 Wash. App. 496, 576 P.2d 84; City of St. Petersburg v. Vanoy Park Hotel Co. (Fla. App. 1977), 352 So. 2d 149.) One court phrased this approach in a different manner, stating that the uncontradicted testimony of an interested witness only raises an issue of fact. (Purser v. Purser (Tex. Civ. App. 1980), 604 S.W.2d 411.) The rationale for allowing the rejection of the testimony of an interested witness is that his personal interest in the result may lead him to testify contrary to the facts of the case. See Rowe v. Goldberg Film Delivery Lines, Inc. (1937), 50 Ariz. 349, 72 P.2d 432.

Many of the jurisdictions we have surveyed, however, find that the positive uncontradicted testimony of a witness is either conclusive upon the trier of fact or may not be disregarded by the fact finder unless certain exceptions are satisfied. Most of the States hold that such testimony may be disregarded if it is “inherently improbable” (Laganiere v. Bonte Spinning Co. (1967), 103 R.I. 191, 236 A.2d 256; Dinneen v. Finch (1979), 100 Idaho 620, 603 P.2d 575; Auto Sales & Finance Co. v. Seavey (Me. 1979), 401 A.2d 648; Lopez v. Maes (1970), 81 N.M. 693, 472 P.2d 658; Thomas v. Thomas (Okla. App. 1976), 565 P.2d 722; Douglas Reservoirs Water Users Association v. Cross (Wyo. 1977), 569 P.2d 1280), if it is contradictory or otherwise impeached (Laganiere v. Bonte Spinning Co. (1967), 103 R.I. 191, 236 A.2d 256; Dinneen v. Finch (1979), 100 Idaho 620, 603 P.2d 575; Frey v. Montgomery Ward & Co. (Minn. 1977), 258 N.W.2d 782; City of St. Petersburg v. Vinoy Park Hotel Co. (Fla. App. 1977), 352 So. 2d 149; Lopez v. Maes (1970), 81 N.M. 693, 472 P.2d 658; Spillers v. Colby (Okla. 1964), 391 P.2d 895), if it lacks credence or is unworthy of belief (Laganiere v. Bonte Spinning Co. (1967), 103 R.I. 191, 236 A.2d 256; McGuire v. American Honda Co. (1977), 173 Mont. 171, 566 P.2d 1124), if it is surrounded by suspicious circumstances (Lopez v. Maes (1970) , 81 N.M. 693, 472 P.2d 658), if it is evasive, impossible and equivocal (Douglas Reservoirs Water Users Association v. Cross (Wyo. 1977), 569 P.2d 1280), if it is made improbable by direct or circumstantial evidence (In re New England Telephone & Telegraph Co. (1977), 135 Vt. 527, 382 A.2d 826, appeal after rem. sub nom., Petition of New England Telephone & Telegraph Co. (1981), 139 Vt. 578, 433 A.2d 263; Frey v. Montgomery Ward & Co. (Minn. 1977), 258 N.W.2d 782; Spillers v. Colby (Okla. 1964), 391 P.2d 895), or if legitimate inferences cast a reasonable doubt upon the truth or accuracy of the testimony (Lopez v. Maes (1970), 81 N.M. 693, 472 P.2d 658). A few States even require that the basis for recognizing an exception must be specifically stated in the record or else the uncontradicted evidence is conclusive upon the trier of fact. (Laganiere v. Bonte Spinning Co. (1967), 103 R.I. 191, 236 A.2d 256; State v. A. Capuano Brothers (1978), 120 R.I. 58, 384 A.2d 610; O’Leary v. Wangensteen (1928), 175 Minn. 368, 221 N.W. 430.) Of the exceptions, the most widely recognized is that which allows the trier of fact to disregard “inherently improbable” testimony. However, few guidelines are provided to determine whether testimony meets the inherent improbability standard. At least one court has found that in order to reject testimony as inherently improbable, there must exist either a physical impossibility of the evidence being true, or its falsity must be apparent without any resort to inferences or deductions. Dinneen v. Finch (1979), 100 Idaho 620, 603 P.2d 575; Arundel v. Turk (1936), 16 Cal. App. 2d 293, 60 P.2d 486; but see Foreman & Clark Corp. v. Fallon (1971) , 3 Cal. 3d 875, 479 P.2d 362, 92 Cal. Rptr. 962.

Many of the States which recognize one or more of the above exceptions note that the trial court does not have the authority to arbitrarily or capriciously disregard the uncontroverted testimony of a witness. Laganiere v. Bonte Spinning Co. (1967), 103 R.I. 191, 236 A.2d 256; Frey v. Montgomery Ward & Co. (Minn. 1977), 258 N.W.2d 782; Smith v. Edward M. Rude Carrier Corp. (1966), 151 W. Va. 322, 151 S.E.2d 738; Douglas Reservoirs Water Users Association v. Cross (Wyo. 1977), 569 P.2d 1280; Foreman & Clark Corp. v. Fallon (1971), 3 Cal. 3d 875, 479 P.2d 362, 92 Cal. Rptr. 962.

A disinterested witness’ uncontradicted testimony may not be disregarded in certain jurisdictions unless an exception is present. (See, e.g., Fleitz v. Van Westrienen (1977), 114 Ariz. 246, 560 P.2d 430; Rowe v. Goldberg Film Delivery Lines, Inc. (1937), 50 Ariz. 349, 72 P.2d 432.) However, most courts hold that the uncontradicted testimony of any witness, including a party or interested witness, cannot be disregarded unless an exception is satisfied. See, e.g., Dinneen v. Finch (1979), 100 Idaho 620, 603 P.2d 575; O’Leary v. Wangensteen (1928), 175 Minn. 368, 221 N.W. 430.

It is against this backdrop of diverse case law that we examine the current state of the law in Illinois. The Illinois Supreme Court recently reiterated that “[w]here the testimony of a witness is neither contradicted, either by positive testimony or by circumstances, nor inherently improbable, and the witness has not been impeached, that testimony cannot be disregarded even by a jury.” (People ex rel. Brown v. Baker (1981), 88 Ill. 2d 81, 85, 430 N.E.2d 1126, 1127; accord, Larson v. Glos (1908), 235 Ill. 584, 85 N.E. 926; Dill v. Widman (1952), 413 Ill. 448, 109 N.E.2d 765; Kelly v. Jones (1919), 290 Ill. 375, 125 N.E. 334.) People ex rel. Brown v. Baker was a paternity action where the child’s mother testified without contradiction that the defendant was the child’s father. The defendant testified that he had frequently had intercourse with the mother during the time period in question. He further testified that another man was a personal friend of the mother who had dated the mother’s sister in the past. This male friend testified at trial and stated that he had never had intercourse with the mother. A jury subsequently returned a verdict of not guilty. The trial judge denied the mother’s motion for judgment n.o.v., stating that while he may have returned a verdict different than that of the jury, he thought the mother was “a little flakey” and the male friend was a “wouldn’t look anybody in the eye type.” The supreme court affirmed the appellate court’s reversal of the case, observing that, “[w]hile we agree that the credibility of witnesses and the weight to be accorded their testimony are typically jury considerations [citations], a jury cannot arbitrarily or capriciously reject the testimony of an unimpeached witness [citations].” People ex rel. Brown v. Baker (1981), 88 Ill. 2d 81, 85, 430 N.E.2d 1126,1127.

Furthermore, earlier Illinois decisions have held that an uncontradicted witness’, testimony may be disregarded if it contains so many omissions as to discredit it. (Mannen v. Norris (1930), 338 Ill. 322, 170 N.E. 273; People v. Davis (1915), 269 Ill. 256, 110 N.E. 9.) While Illinois recognizes no presumption that an .unimpeached witness has testified truthfully for purposes of jury instructions (Hauser v. People (1904), 210 Ill. 253, 71 N.E. 416; Chicago Union Traction Co. v. O’Brien (1905), 219 Ill. 303, 76 N.E. 341), we think that the above line of supreme court cases establishes that the unimpeached testimony of a witness must be taken as established unless one of the recognized exceptions is present.

We have also encountered a line of Illinois Appellate Court criminal cases which contain language tending to suggest that the finder of fact is to be accorded a greater degree of discretion in accepting or rejecting the uncontradicted testimony of a witness. However, upon close scrutiny we find that those cases also support the holdings of the Illinois Supreme Court that we have cited. Thus, in People v. Lester (1981), 102 Ill. App. 3d 761, 766, 430 N.E.2d 358, 362, the court made the broad statement that “Where a defendant’s out of court statement is the only direct evidence of what occurred at the time of the killing, the trier of fact is not required to believe the defendant’s version of what transpired even if it is the only account given,” citing People v. Liddell (1975), 32 Ill. App. 3d 828, 336 N.E.2d 815. But the court in Lester then went on to state:

“In weighing the defendant’s version of an incident, the trier of fact should consider the probability or improbability of the defendant’s account, the circumstances surrounding the killing and the relevant testimony of other witnesses. [Citations.] There need not be actual rebuttal of the defendant’s statements, but only a sufficient showing of circumstances from which defendant’s guilt might be concluded by probable deduction. Liddell, 32 Ill. App. 3d 828, 830, 336 N.E.2d 815, 817.” 102 Ill. App. 3d 761, 766.

The court then noted evidence which tended to contradict the defendant’s claim of self-defense and thus supported his conviction of voluntary manslaughter. That evidence included the defendant’s conflicting accounts of the incident and his flight from the scene. In Liddell, the court had reversed the defendant’s voluntary manslaughter conviction because it found that the defendant’s claim of self-defense, the only version of the incident presented at trial, was neither improbable nor contradicted by other evidence. In so holding, however, the court noted that a defendant’s version of an occurrence need not be believed even though it is the only one presented where other facts and circumstances in the record tend to contradict that version or render it highly improbable. People v. Schaefer (1980), 87 Ill. App. 3d 192, 194, 409 N.E.2d 129, 131, does contain the statement that “A jury is not compelled to accept a defendant’s exculpatory statement as true even in the absence of directly contradicting evidence by other witnesses.” But in Schaefer the court also pointed to other facts in evidence which tended to greatly damage the defendant’s credibility and it affirmed the defendant’s convictions on that basis despite his contention that no witness had contradicted his exculpatory testimony. Furthermore in the case cited by Schaefer as authority for the broad proposition we have quoted, People v. Bell (1977), 49 Ill. App. 3d 140, 363 N.E.2d 1202, the defendant’s convictions were affirmed on the basis of testimony and circumstances which the appellate court found tended to contradict the defendant’s exculpatory account.

People v. Younge (1980), 83 Ill. App. 3d 305, 309, 404 N.E.2d 415, 418, also contains dictum stating that the defendant’s testimony, even if unrebutted, need not be believed by the trier of fact, citing People v. Lahori (1973), 13 Ill. App. 3d 572, 577, 300 N.E.2d 761, 764. However, in Younge there was testimony which directly contradicted the defendant’s testimony. Lahori also involved directly conflicting testimony but it too in dictum stated that a defendant’s unrebutted testimony need not be believed, citing People v. Wilkes (1971), 2 Ill. App. 3d 626, 276 N.E.2d 761, and People v. Herron (1970), 125 Ill. App. 2d 18, 260 N.E.2d 428. However both those cases held that a trier of fact need not believe a defendant’s statement even though not directly contradicted by other eyewitnesses where the statement is contradicted by facts and circumstances in evidence.

In summary, it appears that upon close scrutiny of this line of Illinois Appellate Court criminal cases, it too supports the Illinois Supreme Court’s holding that absent certain exceptions already specified in this opinion, the unimpeached and uncontradicted testimony of a witness cannot be arbitrarily disregarded by a finder of fact.

We must therefore address the facts of the instant case to determine whether the trial judge was justified in disregarding the defendant’s testimony. Under the standard set forth in People ex rel. Brown, the judge could not discount the defendant’s testimony unless it was impeached, contradicted by positive testimony or by circumstances, or found to be inherently improbable. We find first that the defendant’s testimony regarding the source of the money in her account was not contradicted by positive testimony or circumstances and was not impeached. The defendant was the only witness to testify and she clearly stated that she had no income other than public assistance and food stamps and that all of the money in her account came from public assistance payments. The plaintiff offered no testimony or other evidence to rebut the defendant’s testimony. While the defendant at one point showed confusion over the amount of money she had amassed in her account, this was a collateral issue that had nothing to do with the source of her funds. Her positive testimony regarding the source of her funds was never contradicted and she was never impeached on this matter.

We also find that the defendant’s testimony was not inherently improbable. She testified that she had withheld rental payments “about *** five months” over the previous two years and that during three of those months she withheld $280 in rent from the plaintiff. Her bank ledger card reflects a corresponding $280 deposit into her account during each of the three months she represented that she had not paid her rent to the plaintiff. While there was no testimony directly concerning the defendant’s initial deposit of $502.56, she testified that she had withheld her rent payments a total of five times in the previous two years and that only three of those occasions concerned her rental agreement with the plaintiff. It is conceivable that she withheld her rent from another landlord for two months or saved the money prior to opening her account, especially where the defendant testified that all of the funds deposited “in any bank” account over the past five years came from public assistance payments. The record also establishes, without contradiction, that the defendant’s final deposit of $620 was only a partial redeposit of the $630 that was withdrawn the previous day.

Under Illinois law, a witness’ testimony is inherently improbable if it is “contradictory of the laws of nature or universal human experience, so as to be incredible and beyond the limits of human belief, or if facts stated by the witness demonstrate the falsity of the testimony ***.” (Kelly v. Jones (1919), 290 Ill. 375, 378, 125 N.E. 334, 335; accord, Mannen v. Norris (1930), 338 Ill. 322, 170 N.E. 273.) In the instant case, we do not think that this standard for inherent improbability was demonstrated, and we believe that the trial judge improperly disregarded the defendant’s uncontradicted testimony. The plaintiff argues in part that it would be inherently improbable that a family of four could live on $88 per month and $168 in food stamps after paying $280 per month into a bank account each month. However, the plaintiff fails to mention that the defendant and her three children survived on the same amount of money each month when the $280 was paid in rent rather than being deposited in the bank. While it may be inconceivable to some that a public assistance recipient could survive on his public assistance grant, thousands of people throughout Illinois manage every year despite the seeming inadequacy of the amount received. (See generally Estep v. Department of Public Aid (1983), 115 Ill. App. 3d 644, 450 N.E.2d 1281.) We therefore do not think that the defendant’s testimony was “contradictory of the laws of nature or universal human experience, so as to be incredible and beyond the limits of human belief ***.” Consequently, we think that the trial court acted improperly when it disregarded the defendant’s uncontradicted testimony.

For the foregoing reasons, we reverse the trial court’s denial of the defendant’s motion to quash garnishment.

ROMITI, RJ., and JOHNSON, J., concur.


source: Caselaw Access Project

author: JUSTICE STAMOS

license: Public Domain

text:
    SCHEDULING CORPORATION OF AMERICA, Plaintiff and Counterdefendant-Appellant, v. MICHAEL F. MASSELLO, Defendant and Counterplaintiff-Appellee — (National Business Consultants, Defendant-Appellee).
    First District (2nd Division)
    No. 82—1429
    Opinion filed November 8, 1983.
    Rehearing denied December 7, 1983.

      Robert E. Neiman and William J. Harte, both of Chicago, for appellant.
    Erbacci, Syracuse & Cerone, Ltd., of Chicago (Sidney Z. Karasik, of counsel), for appellees.
   JUSTICE STAMOS

delivered the opinion of the court:

Scheduling Corporation of America (SCA) sought to enjoin defendant Michael F. Massello from using SCA sales information and from breaching his covenant not to accept employment from present and former SCA clients within a year after leaving SCA’s employ. SCA amended its complaint to include Massello’s corporation, National Business Consultants (NBC), as a defendant and to drop all claims for relief except for money damages. Massello counterclaimed for compensation allegedly due him by SCA. Following a bench -trial, judgment was entered against SCA and for Massello in the amount of $165,619.50. SCA appeals.

Plaintiff SCA provides management efficiency services which include scheduling systems to improve a business’ efficiency and to allow monitoring by management. Hereinafter, the services provided by SCA will be referred to collectively as “scheduling” services.

Defendant Massello began working for SCA in 1974. Massello moved into sales in 1976 and soon took over the primary sales responsibilities for the company. As part of his sales efforts, Massello kept certain records which consisted of index cards, “hot lists,” and correspondence files. The index cards contained the names of about 200 prospective clients. These cards, which were prepared by Massello, also contained the names of key contacts and personal observations regarding the best means of “selling” the prospect and as to the prospect’s “temperature” (receptivity). The hot lists were prepared periodically by Massello for George Stout, SCA’s president, to inform him which clients were interested in SCA’s services. The information on the hot lists was gleaned from the index cards. The correspondence files contained written communications between Massello and the prospective clients. Massello also had in his possession client lists which were prepared by SCA’s office staff.

In January of 1974, all SCA employees, including Massello, entered into an “Agreement” with SCA which was terminable at will by either party with notice and without cause. The agreement stated that the list of SCA’s clients is an important and valuable asset and contained a promise that the employee will not disclose to outsiders either the client list or information learned about clients.

Upon moving into sales in 1977, Massello and SCA entered into a “Compensation Agreement for 1977” which provided for a base salary of $26,000 a year plus two commission plans, one for 5% and the other for 272%. Massello was to receive 5% on what may generally be referred to as “cold sales,” i.e., sales without introduction from another source and all referrals from 5% clients which resulted in a sale. He was to receive 272% on all other sales which included extensions of work within the same project and sales resulting from referrals from 272% clients. Both the 272% and 5% commissions were to be paid when SCA received payment from the client.

Massello received compensation as set forth under the 1977 agreement up through February 1979. In 1977, Massello received between $70,000 and $80,000 including salary. In 1978, Massello was paid $135,000 including salary. Up to March 23, 1979, Massello received between $40,000 and $50,000.

On March 23, 1979, Massello received his paycheck for the preceding four-week period. The check did not include the 272% commissions for that period which came to approximately $9,000. Massello asked Stout’s secretary to explain the omission and she stated that Stout informed her that he (Massello) would no longer receive the 272% commission. Massello contacted Stout in Florida but apparently received no satisfactory explanation for Stout’s change in Massello’s compensation arrangement. Massello continued to perform his duties until April 5,1979, when he tendered his letter of resignation.

At the time of his resignation, Massello took with him the sales information in his possession, including the index cards. On April 9, four days after the resignation, Stout made a written demand for the return of the sales information taken by Massello. Massello returned the index cards immediately, but not before deleting comments regarding his personal opinion of certain contacts. He testified that he did not want those comments revealed to his contacts. Massello returned the hot lists and client lists to SCA in November 1979, pursuant to a discovery order. The hot lists were several months or years old at the time of Massello’s resignation and the client lists were copies of lists produced by the SCA staff.

Following his resignation, Massello formed his own scheduling firm, National Business Consultants. As part of NBC’s sales force, Massello hired James Conklin, Harry Wilkins, Dwight Gressel, and Daniel Schreiber, all former SCA employees. Massello spoke to Con-klin about coming to work for NBC in August or September of 1979 and Conklin began to work for NBC on September 21, 1979. Conklin, in turn, talked to Wilkins, Gressel, and Schreiber in November 1979 about coming to NBC, which they did.

In the year following Massello’s resignation, Massello and the former SCA employees solicited the employment of several of SCA’s prospective, present, and former clients, including several Blue Cross/ Blue Shield plans. There are 110 such plans nationwide and, up to 1979, SCA had sold its services to eight of them, which accounted for between 50% to 60% of SCA’s business. During Massello’s employment with SCA, he contacted approximately 75 Blue Cross plans. He contacted 17 of these plans within the year after he left SCA, but none of them bought NBC’s services. Massello and his employees also contacted several other SCA prospects, but none of them hired NBC.

SCA filed suit to enjoin Massello from soliciting their present and former clients. Massello counterclaimed for compensation allegedly due him. SCA thereafter amended their complaint to join NBC as a defendant and to drop all claims for relief except damages. Following a bench trial, the court ruled against SCA and in favor of Massello, who was awarded the $165,619.50 sought in his counterclaim. SCA then instituted this appeal.

SCA first contends that Massello’s retention of SCA sales information after his resignation constituted a wrongful conversion of SCA property. The subject of the alleged conversion was sales information consisting of the index cards, hot lists and client lists kept by Mas-sello. The index cards were returned upon demand but not before certain deletions were made. The client lists were returned in November of 1979 pursuant to a discovery order. At that time, the hot lists which Massello had not disposed of were also returned. SCA contends that Massello’s retention of these lists and cards injured its sales efforts.

The elements of an action for conversion are (1) an unauthorized and wrongful assumption of control, dominion, or ownership by a person over the personalty of another; (2) his right in the property; (3) his right to immediate possession of the property; and (4) a demand for possession thereof. (Farns Associates Inc. v. Sternback (1979), 77 Ill. App. 3d 249, 252, 395 N.E.2d 1103.) A conversion can occur when property is wrongfully acquired or wrongfully retained. (See Hobson’s Truck Sales, Inc. v. Carroll Trucking, Inc. (1971), 2 Ill. App. 3d 978, 981-82, 276 N.E.2d 89.) The fact that the property has no market value does not restrict the recoverable damages if they are attainable in some rational way. See Long v. Arthur Rubloff & Co. (1975), 27 Ill. App. 3d 1013,1025, 327 N.E.2d 346.

In the instant case, Massello admitted that when he took the lists and cards he was aware that they were property to which SCA was entitled. SCA demanded the return of the sales information four days after Massello’s resignation. Thus, an action for conversion was clearly established.

The question raised regarding the conversion count is the sufficiency of proof as to damages. SCA claims to have suffered $24,000 in damages from Massello’s conversion. Where, as here, the property converted has no market value, the proper basis for determining compensatory damages is an examination of its actual value to plaintiff. (See Long v. Arthur Rubloff & Co. (1975), 27 Ill. App. 3d 1013, 1025, 327 N.E.2d 346.) The burden of proof is on plaintiff and the evidence must afford some reasonable and proper basis for ascertaining value. (27 Ill. App. 3d 1013, 1025.) “At a minimum, [the evidence] must rise to the dignity of proof, and supply such elements of standards for measuring value to enable the trier of fact to exercise its judgment.” 27 Ill. App. 3d 1013, 1026.

The only evidence of conversion damages cited by SCA is Stout’s testimony that SCA averaged $60,000 per week in receipts from its sales efforts with a low of $35,000. No other evidence of conversion damages was produced. In Long, the only evidence of conversion damages was plaintiff’s testimony that the leasing data involved was worth $25,000. (27 Ill. App. 3d 1013, 1026.) The court in Long held that that testimony alone was an insufficient basis for establishing damages.

Here too plaintiff’s claim for damages is supported by the testimony of a single witness. Stout, SCA’s president, testified simply that SCA suffered $24,000 in damages from Massello’s conversion. There was no testimony as to what the value of the sales information was or whether the average weekly sales receipts dropped as a result of Massello’s conversion. (See 27 Ill. App. 3d 1013, 1026.) Absent such evidence, we find that SCA failed to prove that it was damaged as a result of Massello’s conversion.

SCA next contends that Massello breached a covenant contained in his employment contract. The covenant provides that:

“Employee covenants and agrees that during the term of this Agreement and for a period of one year after termination of this Agreement, the Employee will not directly or indirectly accept employment either as an employee, independent contractor, associate, partner, joint venturer, of in any direct or indirect capacity, with any client, former client or corporation controlling or controlled by any client or former client, or subsidiary of any client or former client. It is understood and agreed that by definition, ‘Client’ includes referred companies and companies solicited during the period of Employee’s employment.” (Emphasis added.)

SCA maintains that Massello breached this covenant when he solicited several of SCA’s prospective clients within a year after leaving SCA’s employ.

Although both parties address the reasonableness and enforceability of the restrictive covenant the initial issue is whether a breach of the covenant occurred under the facts of this case. SCA contends that the covenant prohibits solicitation of present and former clients whereas Massello contends that acceptance of employment is the only prohibited conduct. The fact that Massello solicited present and former clients of SCA within a year after leaving SCA is undisputed. The issue thus turns on the proper construction to be given the negative covenant.

The digests are replete with general rules on construction of contracts which serve to support both parties’ positions. SCA emphasizes the rule that the court should adopt a reasonable construction rather than one which will produce an absurd result. (See Business Development Services, Inc. v. Field Container Corp. (1981), 96 Ill. App. 3d 834, 839, 422 N.E.2d 86.) SCA asserts that to interpret the negative covenant to allow Massello to actively solicit present and former SCA clients so long as they do not employ him is an absurd interpretation. Under this interpretation, Massello could actively solicit SCA clients for himself, during and after his employment with SCA, so long as he waited until the 367th day after leaving SCA before entering into an employment contract. SCA maintains that, upon examining the contract as a whole, such a construction is obviously contrary to the intent of the parties.

But where the contract is clear and unambiguous, the parties’ intent is to be drawn only from the words used. (See Ricke v. Ricke (1980), 83 Ill. App. 3d 1115, 1118, 405 N.E.2d 351.) Here, the covenant provides that the employee shall not “accept employment” from present and former SCA clients. The plain meaning of the phrase “accept employment” does not encompass solicitation, and we do not construe the covenant as prohibiting solicitation. Our interpretation is consistent with the maxim that contract language should be construed mostly strongly against the maker since he chose the words and is responsible for any ambiguity. (83 Ill. App. 3d 1115, 1118.) Moreover, where as here, a negative employment covenant is involved, it should be strictly construed because it operates as a limitation on the right to pursue an employment opportunity. (See Hagerty, Lockenvitz, Ginzkey & Associates v. Ginzkey (1980), 85 Ill. App. 3d 640, 643-44, 406 N.E.2d 1145.) We find that the negative covenant prohibited Mas-sello only from accepting employment from present and former SCA clients and that under this construction, no breach occurred.

SCA also contends that Massello and NBC tortiously interfered with SCA’s contractual relations and business expectations. These torts, though closely related, are distinct and will be addressed separately.

The elements of the tort of interference with contractual relations are: (1) the existence of a valid and enforceable contract between the plaintiff and another; (2) the defendant’s awareness of this contractual relation; (3) the defendant’s intentional and unjustified inducement of a breach of the contract; (4) a subsequent breach by the other, caused by the defendant’s wrongful conduct; and (5) damages. (Belden Corp. v. InterNorth, Inc. (1980), 90 Ill. App. 3d 547, 551, 413 N.E.2d 98.) The contractual relations which Massello and NBC allegedly interfered with were between SCA and Conklin, Wilkins, Gressel, and Schreiber, all former SCA employees who went to work for NBC. The breach allegedly occurred when these employees solicited present and former SCA clients after leaving SCA’s employ. The contractual provision which was allegedly breached is the same negative covenant which was discussed above with respect to Massello, and the analysis used there is applicable here and is dispositive of this issue.

SCA contends that its former employees breached the covenant in their contracts by soliciting, for NBC, present and former SCA clients. Massello and NBC contend that mere solicitation does not violate the restrictive covenant. The covenant prohibited the former SCA employees from “accepting employment” with present and former SCA clients for a period of one year after leaving SCA. Upon leaving SCA, the employees went to work for NBC and began soliciting, among others, present and former SCA clients. The former SCA employees did not accept employment from these clients and did not, therefore, breach the negative covenant entered into with SCA. Absent a showing that the covenant was breached, no action exists for inducing its breach. See Haag Brothers, Inc. v. Artex International, Inc. (1978), 60 Ill. App. 3d 141, 146, 376 N.E.2d 636.

SCA also contends that Massello and NBC tortiously interfered with SCA’s reasonable business expectations. We discussed this tort in Belden Corp. v. InterNorth, Inc. (1980), 90 Ill. App. 3d 547, 413 N.E.2d 98, and our analysis there is particularly instructive in the case at bar. A key consideration with respect to this tort is the matter of expectancies.

“An individual with a prospective business relationship has a mere expectancy of future economic gain; a party to a contract has a certain and enforceable expectation of receiving the benefits of the contract. When a business relationship affords the parties no enforceable expectations, but only the hope of continued benefits, the parties must allow for the rights of others. They therefore have no cause of action against a bona fide competitor unless the circumstances indicate unfair competition, that is, an unprivileged interference with prospective advantage. In sum, as the degree of enforceability of a business relationship decreases, the extent of permissible interference by an outsider increases.” 90 Ill. App. 3d 547, 552.

Here, there is no evidence indicating that NBC interfered with any of SCA’s contractual relations. In the one instance in which NBC solicited a prospect who was under contract with SCA, the solicitation was directed toward an area of service different than that which was covered by SCA’s contract. The remainder of NBC’s efforts were directed toward prospective clients who had no contractual relations with SCA. Under these circumstances, it is apparent that NBC was acting as a bona fide competitor and that in order to sustain its cause of action, SCA was obliged to prove that NBC competed unfairly. We fail, however, to find evidence of unfair competition.

SCA points to representations by NBC employees to prospective clients regarding their prior affiliation with SCA. NBC salespeople also informed prospects of specific projects which they worked on while at SCA. It is certainly not unusual or improper for a sales person to inform a prospective client about his previous employment and work experience in the field which is the subject of the sale. And upon examining the record, we fail to find evidence that, in communicating their background information to prospects, NBC salespeople made any misrepresentations or that they purposely created any misconceptions regarding any supposed identity between SCA and NBC. We find that NBC did not engage in conduct amounting to unfair competition and was therefore not guilty of tortiously interfering with SCA’s business expectations.

SCA’s next contention concerns the trial court’s judgment for Massello on his counterclaim in the amount of $165,619.50. SCA contends that Massello failed to sustain his burden of proving his entitlement to the post-resignation commissions which constituted most of the judgment award.

As to Massello’s counterclaim, the trial court’s judgment order states:

“4. That judgment for commissions earned be and is hereby entered against the Plaintiff, SCHEDULING CORPORATION OF AMERICA, and in favor of the Counter-Plaintiff, MICHAEL E MASSELLO, in the sum of $165,619.50.”

This order fails to set forth the findings of fact and conclusions of law upon which the judgment is based. It is true that a court need not recite its findings and conclusions in a case heard without a jury (87 Ill. 2d R. 366(b)(3)(i)), but in their absence, a reviewing court is left to conjecture as to the basis of the judgment below.

Regarding the counterclaim, the first issue addressed by the parties is whether Massello’s yearly salary of $26,000 was properly included in the judgment award. The parties’ arguments appear to presume that the salary was included in the award, but, upon examining the award, we conclude otherwise. The judgment award of $165,619.50 is exactly the amount listed in Massello’s exhibit which itemizes only commissions allegedly due. Thus it is apparent that the trial court adopted the figures contained in Massello’s exhibit in rendering judgment and that the judgment award excluded Massello’s yearly salary. We feel that the trial court was correct in omitting the salary from its award because our examination of the 1974 and 1977 agreements and the evidence produced at trial leads us to conclude that the yearly salary provision in the 1977 agreement did not modify the terminable at will nature of the 1974 agreement. The two agreements at issue are unambiguous, and the proper interpretation to be placed on them is to be determined as a matter of law.

The supposed modification of the 1974 agreement was allegedly effected by the inclusion in the 1977 agreement of a yearly salary provision which states: “1. Base Salary. $26,000.” Massello offered no evidence at trial that the parties intended that this provision should convert the 1974 agreement into a binding yearly contract. Furthermore, the 1977 agreement, which establishes Massello’s compensation scheme, is consistent with the 1974 agreement which implicitly provides that Massello’s compensation shall be determined under a separate instrument. We believe that, had the parties intended to modify the terminable at will nature of Massello’s contract, they would have made their intentions explicitly clear and would not, as Massello contends, have implemented the modification by merely reciting a yearly salary figure. We find that Massello’s contract with SCA was terminable at will at the time of his resignation and that therefore, the contract terminated when Massello resigned.

Our ruling as to the termination date of the contract raises questions as to Massello’s entitlement to post-resignation commissions. It may be that Massello should receive some or all of the commissions he claims. He is clearly entitled to commissions on sales which occurred prior to resignation, and, as to post-resignation sales, a commission is in order if it is established that Massello was the procuring cause of the sale. (See Technical Representatives, Inc. v. Richardson-Merrell, Inc. (1982), 107 Ill. App. 3d 830, 833, 438 N.E.2d 599.) In the absence of express findings by the trial court, we are unable to say that these factors received sufficient consideration in the court’s decision. We also feel that Massello’s evidence on these points was inadequate.

In support of his claimed commissions, Massello submitted an exhibit listing 114 separate items of commission. All but two of the commissions listed were drawn from a stipulation entered into between the parties. The stipulation categorized the sales on the basis of two criteria: when gross billing dollars were received and when SCA performed the work. The categories are entitled as follows:

“SCHEDULE A -Gross Billing Dollars Received by SCA between February 22 and March 23, 1979.
SCHEDULE B -Gross Billing Dollars Received by SCA between February 22 and April 5,1979.
SCHEDULE C -Gross Billing Dollars received by SCA after April 5, 1979, and within 1979 for work performed by SCA on or prior to April 5,1979.
SCHEDULE D -Gross Billing Dollars received by SCA after April 5, 1979, and within 1979 for work performed by SCA after April 5,1979.
SCHEDULE E -Gross Billing Dollars received in 1980 by SCA for work performed by SCA in 1980 for clients of SCA prior to 1980.”

The stipulation does not indicate when the sales to each client were made or who the procuring causes of those sales were. The testimony at trial was equally unrevealing in this regard.1 Massello testified that of the 114 clients listed, he “sold” two of them, was “responsible” for the sales to 16 others, and had “some input” as to another 17. He conceded that another 10 clients were either “sold” or “started” after he resigned and that he merely had “contact with” another nine. Furthermore, two of the commissions listed on the exhibit amounting to $57,800 were not drawn from the stipulation and there was no evidence in the record as to what involvement Massello had with these sales which were “sold” by SCA in 1980, well after Massello’s resignation. There was no testimony regarding the remaining 58 sales.

The trial court awarded Massello every item of commission claimed in his exhibit. Upon admitting the exhibit into evidence over SCA’s objection, the court stated that:

“[Massello] testified emphatically and descriptively as to the amount of money that is due and owing, and it’s in the record.”

We believe that the court was mistaken on this point. As evidenced by the foregoing review, it is apparent that Massello’s evidence as to his entitlement to commissions was vague and incomplete. Massello bore the burden of proving his damages and the record fails to show that he met this burden. On remand, it will be necessary for Massello to come forward with evidence, as to each item of claimed commission, that the sales were made prior to his resignation or that his involvement with the post-resignation sales was such as to entitle him to commissions.

For the reasons expressed herein, we affirm the circuit court’s judgment in the action by SCA against Massello. As to the judgment for Massello on his counterclaim, we reverse and remand to the circuit court with directions to proceed in accordance with the views expressed herein.

Affirmed in part; reversed in part and remanded with directions.

DOWNING and HARTMAN, JJ., concur.


author: JUSTICE HOPE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. CARL HOLDER, Defendant-Appellant.
    Second District
    No. 80—382
    Opinion filed November 3, 1983.

      William W. Reedy and Frank P. Vella, Jr., both of Rockford, and Carmell, Chrone & Widmer, of Chicago, for appellant.
    Daniel Doyle, State’s Attorney, of Rockford (Phyllis J. Perko and Cynthia N. Schneider, both of State’s Attorneys Appellate Service "Commission, of counsel), for the People.
   JUSTICE HOPE

delivered the opinion of the court:

The defendant, Carl Holder, was found guilty of intimidation (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 6) after a jury trial in the circuit court of Winnebago County. He was sentenced to 18 months’ probation and fined $1,000. He appealed to this court and contested, inter alia, the constitutionality of the section of the intimidation statute under which he was charged. This court declared section 12 — 6(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 12— 6(a)(3)) to be unconstitutionally overbroad and reversed Holder’s conviction. (People v. Holder (1982), 103 Ill. App. 3d 353, 431 N.E.2d 427.) Subsequently the State appealed to the supreme court.

The State’s petition for leave to appeal was granted by the supreme court and the finding of this court was reversed insofar as we determined section 12 — 6(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 6(a)(3)) to be unconstitutionally overbroad. The cause was remanded to this court for consideration of the other issues raised by the parties. People v. Holder (1983), 96 Ill. 2d 444, 454, 451 N.E.2d 831.

The facts underlying this case have been described at length in previous opinions and only a summary will be presented here. In July of 1979 several cement truck drivers for the Rockford Redi-Mix Company, Inc. signed cards which authorized Carl Holder, the defendant, to act as their representative for purposes of collective bargaining. Holder was business representative for Teamsters Local 325. The drivers, dissatisfied with their wages and working conditions, arranged for Holder to present the authorization cards and a collective bargaining agreement to their employer, Rockford Redi-Mix.

The drivers made an agreement with Holder that they would report to work the following morning as scheduled, load their trucks with cement and proceed to a meeting spot on the way to their assigned job site. When the last truck left, the defendant, who would be parked near the plant, would enter the office and demand that the employer recognize the union and sign the union’s contract. The defendant suggested that the drivers accompany him in presenting the contract, but the employees agreed to meet him after he had presented the Redi-Mix contract. The drivers hoped that Holder’s unannounced appearance and presentation of the contract would provide them with sufficient leverage so that the union would be recognized and the contract signed.

At 7:45 in the morning of July 25, Holder and a union secretary entered the office of the general manager of Rockford Redi-Mix, Curt Countryman. Holder told Countryman they were from the union and represented a majority of his employees. According to Countryman, Holder told him that “the trucks that had just left are sitting down the road, and the drums aren’t turning till I [Countryman] signed the contract.” Countryman looked through the contract but refused to sign it. Holder testified that he then said, “Okay, sir, you’ve got a strike on your hands.” Holder denied referring to the drums or the trucks.

The drivers and Holder then went to the job site at about 10:55 a.m. They contacted the employer by radio and left the message that they had arrived at the job site. The drivers then shut down the drums on their cement trucks. They indicated the drums had been turning up to this point. By the time an associate of Countryman’s arrived at the job site the cement was hardened in some trucks, and there were no drivers present. There was a difference of opinion as to whether the cement could have hardened as quickly as the State’s "witnesses indicated. Countryman testified that it was necessary to replace one drum and jackhammer others to remove the hardened cement.

Holder and the drivers were charged, in an amended seven-count information, with the felonies of conspiracy, criminal damage to property and intimidation. The jury convicted Holder on one count of intimidation and acquitted him, and the drivers, on all other counts.

The defendant’s initial contention on appeal was a challenge to the constitutionality of section 12 — 6(a)(3) of the Criminal Code of 1961. He contended it was overbroad and violative of his first amendment rights. The supreme court found that “the flaw in section 12— 6(a)(3) is not a ‘substantial concern’ when viewed in the context of the legitimate sweep of an intimidation statute.” (People v. Holder (1983), 96 Ill. 2d 444, 454, 451 N.E.2d 831, 835.) Thus, we turn to the remaining issues raised by Holder on. appeal.

Holder contends on appeal that section 12 — 6(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 6(a)(3)) is unconstitutional as applied to him even if it is valid on its face. Defendant relies on the case of Watts v. United States (1969), 394 U.S. 705, 22 L. Ed. 2d 664, 89 S. Ct. 1399, where the Supreme Court considered whether a statement made by an 18-year-old, in which he threatened to shoot the president if he was drafted and had to carry a rifle, was constitutionally protected. The court stated the statute prohibiting such threats on the president (18 U.S.C. sec. 871 (1976)) requires that the government prove there was a threat. The court, did not believe the “political hyperbole” indulged in by petitioner was such a threat. Rather, it stated, the language was a crude and offensive method of stating a political opposition to the president. While it is true that Watts bears some similarities to the facts of the case at bar, we believe it is fundamentally inapposite. In Watts, unlike the case at bar, the statements made were recognized as protected speech based on the principles that debate on public issues should be wide open and robust (394 U.S. 705, 708, 22 L. Ed. 2d 664, 667, 89 S. Ct. 1399, 1401). The court also recognized that speech in labor disputes can even be “vituperative, abusive and inexact.” By contrast, in the instant case Holder was not interested in any form of discussion. His statements did not advocate a theory, but rather sought to coerce the employer to sign, or face as an alternative, the consequences. In the present context the statements were designed to intimidate and coerce. This is what the intimidation statute was intended to prohibit. We do not believe the statute is unconstitutional as applied.

We turn next to Holder’s claim that his speech was protected under Federal labor law. While the federally created right to strike (29 U.S.C. sec. 157 (1976)) has been construed to protect abusive, intemperate or defamatory language which may otherwise be actionable (Old Dominion Branch No. 4-96 v. Austin (1974), 418 U.S. 264, 41 L. Ed. 2d 745, 94 S. Ct. 2770), we believe the statement made by Holder, that the “drums aren’t turning,” was not within the umbrella of protection afforded by the Federal law.

Defendant concedes, for purposes of this appeal, that his conversation in the Redi-Mix office was as Countryman testified; i.e., that he stated the drums were not going to turn unless the contract was signed. The implication of this statement was that the concrete would harden in the trucks, and repairs to those trucks would have to be made by the employer unless he signed the contract. Holder’s position is that it was within his authority, as union representative, to make such a statement. We disagree. While Holder had clear authority to put economic pressure on the employer, he also had a duty to bargain collectively with the goal of reaching an agreement. (NLRB v. Insurance Agents’ International Union, AFL-CIO (1960), 361 U.S. 477, 484, 4 L. Ed. 2d 454, 461, 80 S. Ct. 419, 424.) While it is clearly not our role to ascertain if or when Holder violated his duty to bargain collectively, the cases which discuss that issue have significance in our determination of whether Holder’s conduct was protected by Federal labor policy. In the above-cited NLRB case the employees engaged in harassing tactics which, the employer contended before the National Labor Relations Board (NLRB), amounted to a refusal to bargain collectively. The court found that the union had not breached its duty to bargain in good faith, and could use economic pressure and still be considered to have been bargaining in good faith. The case considered the scope of section 8(b)(3) of the National Labor Relations Act (NLRA) (29 U.S.C. sec. 158(b)(3) (1976)), which makes it an unfair labor practice for a labor organization to refuse to bargain collectively with an employer. In discussing what types of conduct may be protected Justice Frankfurter stated in his separate opinion:

“Moreover, conduct designed to exert and exerting ‘economic pressure’ may not have the shelter of sec. 8(b)(3) even in isolation. Unlawful violence, whether to person or livelihood, to secure acceptance of an offer, is as much a withdrawal of included statutory subjects from bargaining as the ‘take it or leave it’ attitude which the statute clearly condemns. One need not romanticize the community of interest between employers and employees, or be unmindful of the conflict between them, to recognize that utilization of what in one set of circumstances may only signify resort to the traditional weapons of labor may in another and relevant context offend the attitude toward bargaining commanded by the statute. Section 8(b)(3) is not a specific direction, but an expression of a governing viewpoint or policy to which, by the process of specific application, the Board and the courts must give concrete, not doctrinaire content.” NLRB v. Insurance Agents’ International Union, AFL-CIO (1960), 361 U.S. 477, 506, 4 L. Ed. 2d 454, 474, 80 S. Ct. 419, 436.

Thus, under judicial interpretations of the NLRA, the right to strike is not an unqualified right. Further, we do not believe Holder’s conduct in the instant case was protected by the national labor policy.

The defendant’s next claim on appeal is that he was not proved guilty of intimidation beyond a reasonable doubt. He contends his statement was not a threat made without “lawful authority” under the statute. (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 6(a)(3).) However, as previously discussed, we believe the statement concerning the drums not turning was not protected by the right to strike provisions of the NLRA. Thus, Holder exceeded his authority. Holder also urges his statement was not a threat. However, the record belies this assertion.

On appeal, Holder concedes that he entered Countryman’s office and told Countryman the “drums aren’t turning” unless Countryman signed the contract. Holder interprets this statement as meaning the employees were going on strike rather than that they intended to criminally damage the cement trucks. We believe the statement was an unequivocal threat by Holder, and there was ample evidence for the jury to have found that Holder intended to make Countryman sign the contract by threatening him with damaging the trucks which were parked down the road.

The gravamen of the offense of intimidation is the exercise of improper influence, the making of a threat with the intent to coerce another. (People v. Hubble (1980), 81 Ill. App. 3d 560, 563-64, 401 N.E.2d 1282, 1285.) It has also been held that implicit in the word “threat” as it is used in the intimidation statute, is the requirement “ ‘that the expression in its context have a reasonable tendency to create apprehension that its originator will act according to its tenor.’ ” (People v. Gallo (1973), 54 Ill. 2d 343, 352, 297 N.E.2d 569, quoting from Landry v. Daley (N.D. Ill. 1968), 280 F. Supp. 938, 961.) Holder contends that Countryman’s response to the statement regarding the drums not turning was not one of apprehension. We believe Holder’s statement did have the reasonable tendency to make one believe the truck would be damaged — in context, the statement “the drums aren’t turning until ***” indicates they were stationary and would not move unless the contract was signed. There was evidence that all concerned were aware that if the drums did not turn then the cement would harden, resulting in damage to the trucks. There was ample evidence that Holder had, and would, act according to the tenor of his threat. Gallo need not be interpreted to mean the State has the burden of showing Countryman’s subjective response to Holder’s statement. In context, the threat made was clearly one which would create apprehension. Holder’s statement indicated an intent to act and had a reasonable tendency to coerce. (54 Ill. 2d 343, 353, 297 N.E.2d 569.) The State met its burden of proof beyond a reasonable doubt.

Holder also contends his conviction is inconsistent with the verdicts of acquittal rendered by the jury. Because the drivers were acquitted on all charges and Holder was acquitted on charges of conspiracy and damage to property, he urges that his communication did not constitute a threat to criminally damage the trucks. Holder contends that, where the jury found there was no agreement to communicate a threat of a crime, and there was no criminal damage to property, the verdicts are inconsistent.

While it could be argued that there is some logical inconsistency to being convicted of threatening to commit a crime and acquitted of the commission, we do not believe there is a legal inconsistency in the verdicts. The jury may have believed that Holder had the intent to communicate a threat to commit a criminal act under 12 — 6(a)(3), but he did not succeed in carrying out the threat to damage the trucks. There was conflicting evidence concerning the extent of damage caused to the trucks. Viewed in this manner the verdicts are consistent, both legally and logically.

The rule in Illinois is that consistency in verdicts is not necessary. (People v. Dawson (1975), 60 Ill. 2d 278, 326 N.E.2d 755; People v. Worsham (1979), 79 Ill. App. 3d 1061, 1064, 398 N.E.2d 1068.) Further, legal inconsistency generally involves a situation where the essential elements of a crime are said to both exist and not exist at the same time. (People v. Murray (1975), 34 Ill. App. 3d 521, 340 N.E.2d 186.) Here, the elements of intimidation differ widely from the elements of conspiracy and criminal damage to property. It has been held that a conviction for intimidation is not legally inconsistent with the acquittal of the underlying charge. People v. Hairston (1970), 46 Ill. 2d 348, 361-62, 263 N.E.2d 840.

Holder also contends that he only said what the drivers told him to say, inferring he was not responsible for his own actions. Holder cites no authority for this line of reasoning and we believe it is without merit. We see no cause for reversal in this issue.

The next contention of error concerns the admission of certain evidence at trial. Holder contends he was prejudiced by the admission of the amount of monetary damages. While the State need not prove the exact amount of damages in a criminal damage to property case, it does have to prove the minimum amount necessary to justify a felony conviction. (People v. Carraro (1979), 77 Ill. 2d 75, 79-80, 394 N.E.2d 1194.) Thus, the evidence was properly allowed by the trial court.

Holder also contends that the State sought to prejudice him by referring to the “Central States, Southeast and Southwest Areas Pension Fund.” The State urges that this reference was intended to show the complexity of the contract Holder had presented for Countryman’s signature. We see no basis for presuming that this evidence was prejudicial, or even if it was, it should warrant reversal.

Holder’s next claim is that the jury was improperly instructed. He objected to Illinois Pattern Jury Instruction (IPI), Criminal, No. 2.01 (1968), given by the State. The instruction to the jury was given without modification, but Holder urges it should have been modified to add the word “felony” before the word “crimes.” This, he urges, was necessary to let the jury know the seriousness of the offense. However, where an IPI instruction is applicable, it should be modified only where the facts make the uniform instruction inadequate. (People v. Pates (1980), 80 Ill. App. 3d 1062, 1067, 400 N.E.2d 553, 556.) We see no prejudicial error in this regard.

Holder also claims he was prejudiced by the court’s failure to allow certain of his instructions. However, these instructions would likely have only confused the jury inasmuch as they were argumentative, and this alone is sufficient reason to reject an instruction. Any non-IPI instruction given is required to be “simple, brief, impartial, and free from argument.” (73 Ill. 2d R. 451(a).) The trial court properly refused these. We note that the jury was instructed that defendants had a right to strike and that a “strike” was defined. Holder’s contention that the jury should have been further instructed about “self-help allowed as pressure in the bargaining process” was, we believe, too argumentative to be included in jury instructions.

There is no dispute that when certain union related activity is arguably subject to section 7 or section 8 of the NLRA (29 U.S.C. secs. 157, 158 (1976)) both State and Federal courts must defer to the NLRB. (San Diego Building Trades Council v. Garmon (1959), 359 U.S. 236, 3 L. Ed. 2d 775, 79 S. Ct. 773.) While defendant has not specifically challenged the jurisdiction of the State courts, the Illinois Supreme Court has directed that we “make a preliminary finding as to any labor law preemption question under the National Labor Relations Act (29 U.S.C. sec. 157) that may arise in prosecuting this defendant under section 12 — 6(a)(3) of the Illinois intimidation statute.” (People v. Holder (1983), 96 Ill. 2d 444, 454, 451 N.E.2d 831.) The NLRA was designed to protect the rights of employees who choose to bargain collectively. However, Federal preemption is not total, and as the court recognized in Garmon, compelling State interests can arise that allow the States to enjoin violence and imminent-threats to the public order. “ ‘[Ijntimidation and threats of violence’ ” were specifically recognized as compelling State interests in Garmon. (359 U.S. 236, 248, 3 L. Ed. 2d 775, 785, 79 S. Ct. 773, 781.) A compelling State interest has also been recognized in order to “deal with unlawful coercion which does not significantly conflict with the purposes of federal law.” (American Federation of Musicians v. Reno’s Riverside Hotel, Inc. (1970), 86 Nev. 695, 699, 475 P.2d 220, 222.) Similarly, we do not believe the NLRA preempts the State from enforcing the criminal provision in issue here. There is no public policy more important or more fundamental than that which favors the effective protection of the lives and property of citizens. (Marbury v. Madison (1803), 5 U.S. (1 Cranch) 137, 163, 2 L. Ed. 60, 69.) On a preliminary basis, we believe the intimidation charges in the instant case give rise to a compelling State interest which allow this court to consider the issues raised by the parties.

It has also been held that State jurisdiction is not preempted where the alleged misconduct of a union is only arguably protected under national labor law. In Sears, Roebuck & Co. v. San Diego County District Council (1978), 436 U.S. 180, 56 L. Ed. 2d 209, 98 S. Ct. 1745, it was held that where the assertion of State jurisdiction did not create a significant risk of prohibition of protected union conduct, there was no reason to presume that the California State courts should be deprived of jurisdiction to entertain a trespass action brought by Sears for trespassory picketing. In the instant case, the intimidation charge is separable from the Federal issues that may exist here. It is quite possible that the State or Federal courts are the only forum in which Holder’s claims could be resolved. Further, Holder never presented the issue to the NLRB. See 436 U.S. 180, 202-03, 56 L. Ed. 2d 209, 228-29, 98 S. Ct. 1745,1760.

While the NLRA is a pervasive Federal scheme of regulation, we do not believe that its operation is inconsistent with State enforcement of a State criminal law in the instant case.

For the reasons stated, we are of the opinion that the judgment of the circuit court of Winnebago County be affirmed.

Affirmed.

SEIDENFELD, P.J., and VAN DEUSEN, J., concur.


author: JUSTICE NASH

text:
    PALATINE NATIONAL BANK, Trustee, et al., Plaintiffs-Appellants, v. CHARLES W. GREENGARD ASSOCIATES, INC., Defendant-Appellee.
    Second District
    No. 82—474
    Opinion filed November 3, 1983.

      Harold E. Collins and Bruce L. Goldman, both of Chicago, for appellants.
    James T. Ferrini, Henry R. Daar, Lisa D. Marco, and Stephen D. Marcus, all of Clausen, Miller, Gorman, Caffrey & Witous, of Chicago, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

Plaintiffs, George Dunn, Henry Hop, Larry Brelsford, Benjamin Falk and Roger Wahlin, doing business as Investco, an Illinois partnership (Investco), appeal from an order of the circuit court of Mc-Henry County dismissing counts I through III and striking portions of count IV of their second amended complaint at law filed against defendant, Charles W. Greengard Associates, Inc. (Greengard).

Investco’s second amended complaint against Greengard consisted of four counts, the first three of which sounded in negligence and the fourth count in contract. All of the counts alleged the same factual background of the dispute between the parties. In 1973, Investco was formed for the purpose of purchasing, developing and selling real estate known as Loch Wood Acres. Towards that end, Investco retained Greengard for the preparation of preliminary engineering studies with respect to the property. The complaint alleges that Investco informed Greengard that it intended to annex Loch Wood Acres to the city of Crystal Lake; that the development was to occur in three phases over a seven-year period; that the real estate was being purchased pursuant to a land contract which was financed through various banks; and, that Investco intended to develop and sell the improved lots as they were completed. In 1975, Investco entered into a written agreement "with Greengard for professional engineering services which included the design of a system to dispose of storm and surface water from the real estate as well as to calculate the grading requirements for the different phases of the project. Investco alleged that it then became the duty of Greengard to use that degree of care and skill usually and customarily followed by other engineers under similar circumstances in the performance of these services. Greengard did design a system as contemplated by the written agreement and in 1976 Loch Wood Acres was annexed to the city of Crystal Lake.

The complaint further alleges that in June 1977, certain of the plaintiffs entered into a written agreement to sell portions of Phase I of Loch Wood Acres; that in February 1978, the storm water drainage system had been constructed, but it was contrary to the specifications and designs submitted by Greengard and water began to accumulate in the retention ponds. During the spring thaw of 1979, the retention ponds filled and overflowed resulting in the inundation of the undeveloped parts of the real estate. Because of the flooding, the city of Crystal Lake refused to permit further development of Loch Wood Acres and Investco was prevented from continuing its development of Phases II and III. In May 1979, Investco discharged Greengard for its failure to design an acceptable storm water drainage system. As a result of the delay caused by the flooding, various banks foreclosed on the real estate, forcing Investco to convey all of its rights in the property to the mortgage holders.

Count I of Investco’s complaint alleged also that Greengard breached its duty to Investco by designing an inadequate storm and surface water drainage system and sought damages for expenses and lost profits as well as for attorney fees incurred by Investco in actions and negotiations outside of this litigation. Count II of the complaint sought damages for Greengard’s failure to adequately plan the landscape grading for the preparation of Phase I of Loch Wood Acres. Count III of the complaint sought punitive damages for Greengard’s reckless, wilful and wanton conduct with respect to its negligence as specified in counts I and II. Count IV was for breach of warranty premised upon the written agreement entered into between the parties.

Upon the motion of Greengard, the circuit court dismissed counts I through III (sounding in negligence) in their entirety as contrary to the economic loss doctrine established by our supreme court in Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443. Although it did not dismiss count IV, the trial court struck portions which sought damages for lost profits and attorney fees incurred in actions outside of this litigation. Investco appeals.

Initially, we note that for the purposes of ruling on a motion to dismiss all well-pleaded facts contained in a complaint must be taken as true and all inferences therefrom must be drawn in favor of the nonmovant. (Burks Drywall, Inc. v. Washington Bank & Trust Co. (1982), 110 Ill. App. 3d 569, 572, 442 N.E.2d 648, 651; Album Graphics, Inc. v. Beatrice Foods Co. (1980), 87 Ill. App. 3d 338, 344, 408 N.E.2d 1041, 1046.) A complaint should not be dismissed for failure to state a cause of action unless it clearly appears that no set of facts could be proven under the pleadings which would entitle plaintiff to relief. (Burks Drywall, Inc. v. Washington Bank & Trust Co. (1982), 110 Ill. App. 3d 569, 572, 442 N.E.2d 648, 651-52; Felbinger & Co. v. Traiforos (1979), 76 Ill. App. 3d 725, 731, 394 N.E.2d 1283, 1289.) Although Illinois requires fact rather than notice pleading (Ill. Rev. Stat. 1981, ch. 110, pars. 2—603(b), 2— 612(c); Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 17, 440 N.E.2d 96, 98), a complaint will not be dismissed if facts essential to its claim appear by reasonable implication and it reasonably informs the defendants of a valid claim under a general class of cases. Magana v. Elie (1982), 108 Ill. App. 3d 1028, 1031, 439 N.E.2d 1319, 1321; Central States, Southeast & Southwest Areas Pension Fund v. Gaylur Products, Inc. (1978), 66 Ill. App. 3d 709, 713, 384 N.E.2d 123, 126.

Investco initially contends that the dismissal of counts I, II and III of its second amended complaint was erroneous in that the economic loss doctrine as set forth in Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443, does not apply to the case at bar. We do not agree. It is now settled in Illinois that when a defect of a product is of a qualitative nature and the alleged harm relates to the consumer’s expectation that the product is of a particular quality resulting in solely economic injury, without personal injury or other property damage, the appropriate remedy lies in contract, and not in tort. (Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 81-85, 435 N.E.2d 443, 448-53; Redarowicz v. Ohlendorf (1982), 92 Ill. 2d 171, 176-77, 441 N.E.2d 324, 326-27; Foxcroft Townhome Owners Association v. Hoffman Rosner Corp. (1983) , 96 Ill. 2d 150, 156, 449 N.E.2d 125, 127.) This doctrine applies regardless of whether the tort theory involved is in strict liability or simple negligence. (Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 85, 435 N.E.2d 443, 451.) The doctrine has been applied to deny recovery in tort in a variety of factual settings including: sale of a defective grain storage tank (Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443); the sale of a home (Redarowicz v. Ohlendorf (1982), 92 Ill. 2d 171, 441 N.E.2d 324); latent construction defects (Foxcroft Townhome Owners Association v. Hoffman Rosner Corp. (1983), 96 Ill. 2d 150, 449 N.E.2d 125); sales of computer software (Black, Jackson & Simmons Insurance Brokerage, Inc. v. International Business Machines Corp. (1982), 109 Ill. App. 3d 132, 440 N.E.2d 282); and the design and assembly of a traveling ship unloader (Flintkote Co. v. Dravo Corp. (11th Cir. 1982), 678 F.2d 942).

Even prior to the definitive Moorman decision in 1982, the Illinois courts have recognized that purely economic loss caused by the failure to perform contractual duties is not recoverable under tort theories when the parties to the litigation are in privity of contract. Heat Exchangers, Inc. v. Aaron Friedman, Inc. (1981), 96 Ill. App. 3d 376, 421 N.E.2d 336 (sale of heat pumps); Fireman’s Fund American Insurance Cos. v. Burns Electronic Services, Inc. (1980), 93 Ill. App. 3d 298, 417 N.E.2d 131 (sale of defective fire alarm); Album Graphics, Inc. v. Beatrice Foods Co. (1980), 87 Ill. App. 3d 338, 408 N.E.2d 1041 (sale of glue with warranty); Alfred N. Koplin & Co. v. Chrysler Corp. (1977), 49 Ill. App. 3d 194, 364 N.E.2d 100, appeal denied (1977), 66 Ill. 2d 628 (sale of air conditioner).

We conclude the trial court correctly dismissed counts I, II and III of the second amended complaint. The product sold in this case consisted of the design and construction of a storm and surface water removal system to be constructed on Loch Wood Acres. The only defect alleged in the complaint was that the system failed to perform its function as represented. Moreover, the only damages sought relate essentially to lost profits, expenses incurred to cure the problem, depreciation of the value of the premises, and attorney fees incurred in other litigation arising from the fact that the project could not be completed on schedule. There are no allegations of personal injury or property damage contained in the complaint. The only possible allegation of property damage is that contained in portions of paragraph 29(d) of counts I and III which allege, in part, damage as a result of “the clean up and restoration of the premises due to the flood.” However, such an allegation is insufficient in that the damage relates to the natural accumulation of water on the premises and not to the “type of sudden and dangerous occurrence best served by the policy of tort law.” (Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 85, 435 N.E.2d 443, 450.) All of the cases relied upon by Investco to support its recovery in tort predate the Moorman decision and appear to conflict with the current trend of authority.

Because of our resolution of this issue we need not consider other error asserted directed to counts I through III of the complaint.

Investco has also sought to appeal from count IV of the complaint from which the trial court struck certain claims for damages. It contends that in this contract action the court erred in denying recovery of damages for loss of profits (see, e.g., F. E. Holmes & Son Construction Co. v. Gualdoni Electric Service, Inc. (1982), 105 Ill. App. 3d 1135, 1141, 435 N.E.2d 724), and for attorney fees incurred by Investco in seeking to mitigate damages with third parties (see, e.g., Sorenson v. Fio Rito (1980), 90 Ill. App. 3d 368, 372, 413 N.E.2d 47).

Greengard has not addressed the merits of these issues in its brief, contending they are not properly before the court for review on this appeal as the striking of only portions of count IV of the complaint is not a final order. Prado v. Evanston Hospital (1979), 72 Ill. App. 3d 622, 624, 390 N.E.2d 1270; Messenger v. Rutherford (1967), 80 Ill. App. 2d 25, 225 N.E.2d 94, appeal denied (1967), 36 Ill. 2d 629; Messenger v. Rutherford (1970), 130 Ill. App. 2d 407, 264 N.E.2d 775.

Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)) governs appeals from judgments in a case which do not dispose of the entire proceeding. It provides that “if multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal.” To be final and appealable, the order appealed from must terminate and dispose of the parties rights regarding issues in the suit (Nemanich v. Dollar Rent-A-Car Services, Inc. (1980), 90 Ill. App. 3d 484, 488, 413 N.E.2d 178). The inclusion in the order appealed from of the special finding of Rule 304(a) will not confer appellate jurisdiction if the order is not in fact final (Crane Paper Stock Co. v. Chicago & Northwestern Ry. Co. (1976), 63 Ill. 2d 61, 66, 344 N.E.2d 461).

In the present case the trial court made the requisite special finding as to all four counts of the complaint. Greengard does not dispute that the judgment dismissing counts I, II and III, in which Investco sought to assert its cause of action in negligence, is final and appealable. It argues, however, that as the order striking only portions of the elements of damages sought by Investco in count IV did not fully dispose of that contract action, it is not an appealable order, although the trial judge made the findings required by Rule 304(a) (87 Ill. 2d R. 304(a)).

It is clear that had Investco sought to appeal only from the dismissal of the portions of the allegations of count IV, it could not properly do so. That order left the cause of action stated in count IV still pending and undecided by the trial court under that theory of recovery and it was not a final order. (See Village of Niles v. Szczesny (1958), 13 Ill. 2d 45, 48, 147 N.E.2d 371; Gutenkauf v. Gutenkauf (1979), 69 Ill. App. 3d 871, 873, 387 N.E.2d 918; Prado v. Evanston Hospital (1979), 72 Ill. App. 3d 622, 624-25, 390 N.E.2d 1270.) As presented in this case, however, the question is whether appellate jurisdiction attaches to this court to consider the issues relating to count IV of the complaint in light of the fact Investco is properly here on appeal from the dismissal of the other counts.

That question has been resolved adversely to Investco in Messenger v. Rutherford (1967), 80 Ill. App. 2d 25, 31, 225 N.E.2d 94, appeal denied (1967), 36 Ill. 2d 629. There the trial court entered an order which dismissed defendant’s counterclaim and also struck portions of defendant’s answer to the complaint. Although the trial court made the requisite findings, the reviewing court determined that only the part of the order striking defendant’s counterclaim was appealable and declined to consider the other issues. (See also Messenger v. Rutherford (1970), 130 Ill. App. 2d 407, 413, 264 N.E.2d 775.) We conclude that the order striking portions of count IV of the complaint is not final and appealable and that portion of this appeal must be dismissed.

Accordingly, the judgment dismissing counts I, II and III of the complaint is affirmed and the appeal directed to count IV is dismissed.

Affirmed in part, appeal dismissed in part, cause remanded.

SEIDENFELD, P.J., and YAN DEUSEN, J., concur.


author: PRESIDING JUSTICE SEIDENFELD

text:
    JOLENE NUGENT et al., Plaintiffs-Appellees, v. JEFFREY C. MILLER, Director, Department of Public Aid, et al., Defendants-Appellants.
    Second District
    No. 82—937
    Opinion filed November 3, 1983.
    — Rehearing denied December 12, 1983.

      Neil F. Hartigan, Attorney General, of Springfield (Katherine M. Marshall and Patrice P. Suberlak, Special Assistant Attorneys General, and Karen Konieczny and Leslie J. Rosen, Assistant Attorneys General, of counsel), for appellants.
    Katherine Bissell and William P. Janulis, both of Prairie State Legal Services, of Geneva, for appellees.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

The plaintiffs sought a writ of mandamus to issue against the Illinois Department of Public Aid (IDPA), its director, and the Kane County Administrator of Public Aid, to compel continuing payment of interim assistance following a finding by the Federal Social Security Administration (SSA) that each of them was not disabled. The trial court issued the writ on the pleadings and the defendants appealed.

The amended complaint alleges that each of the plaintiffs had certain disabilities which each claims to be permanent; that each applied to the IDPA for financial and medical assistance under the Aid to the Aged, Blind and Disabled (AABD) program; that the defendants approved each application for AABD on a presumptive eligibility basis pending a decision on the claim of disability; that thereafter each plaintiff received a notice with the information that the application of AABD had been denied because the party had been determined not disabled by the Social Security Administration; that within 10 days of the denial notice each appealed the decision to the IDPA; that the IDPA refused to continue assistance to each during the processing of the appeal although they allegedly had a clear legal duty to continue assistance under a provision in the IDPA’s policy manual, PO — -235.4 and under Rule 7.03 of the IDPA.

We first note that similar issues have been ruled upon in other divisions of the Illinois Appellate Court and adversely to the IDPA: Waterson v. Miller (1983), 117 Ill. App. 3d 1054; Carroll v. Miller (1983), 116 Ill. App. 3d 311. A trial court decision also adverse to the IDPA presently on appeal is Feldman v. IDPA (Docket No. 83—533, 1st Dist.). Carroll and Waterson relied on Johnson v. Quern (1980), 90 Ill. App. 3d 151, as dispositive.

For reasons which we will state, we do not find that Johnson v. Quern is applicable on its facts. Since the record presented in Johnson was purely an AABD application, to the extent various conclusions are drawn in the opinion as to the effect of seeking assistance through the Social Security Administration and the mandatory State supplementary payments (SSP), we respectfully disagree.

Johnson v. Quern was an administrative review of the decision of the IDPA denying plaintiff’s request for disability “under the Illinois program for Aid to the Aged, Blind and Disabled (AABD),” and the court based its decision solely on the application for AABD (90 Ill. App. 3d 151, 152-53). While the court found no explicit record, it said that “every indication” was that Johnson also filed an application with the SSA for supplemental security income (SSI) (42 U.S.C. sec. 1381 (1976)). The Johnson court found that the State’s AABD program functioned parallel to yet distinct from the Federal SSP or SSI programs. It appears that this result was reached basically because it was conceded by the IDPA that “*** there are people in Illinois who are receiving AABD who are not eligible for one reason or another for either SSP or SSI” (90 Ill. App. 3d, 151, 157). There was no analysis as to whether Johnson was entitled to continuing assistance on a presumptive eligibility status pursuant to Federal statutes.

IDPA concedes here, also, that there are cases in which an applicant does not meet Federal eligibility requirements and is entitled only to AABD relief assistance. It is also clear that AABD regulations provide for continued assistance even after the finding of no disability until the appeal decision is reached. (AABD Categorical Assistance Manual PO — 235.4, enacted pursuant to Rule 7.03 of the IDPA.) The IDPA argues, however, that where an applicant meets Federal standards, the application, although it still may be labeled “AABD,” is actually to the Social Security Administration for supplemental security income as well as for supplemental security payments from the county public aid department. Thus, IDPA argues, having applied for SSI with Social Security and SSP with the Kane County Department of Public Aid, the plaintiffs were entitled to interim assistance from the State on a presumptive eligibility basis, without a finding of disability, but only until SSA made its initial determination respecting disability.

We are impelled to agree with the defendant’s analysis of the legislative scheme. Prior to 1974, State programs were administered and financed by the respective States and supported in part by Federal grants. (Ill. Rev. Stat. 1971, ch. 23, par. 3—1 et seq.) Effective in 1974 the Social Security Insurance Program replaced existing State programs of aid to the disabled with a comprehensive Federal system through the SSA (42 U.S.C. sec. 1381 et seq. (1976)). To promote uniformity, the Federal SSI program, where applicable, replaced State programs such as AABD. The State did not repeal the statute which created the former AABD program (Ill. Rev. Stat. 1975, ch. 23, pars. 3—13, 3—14, 3—15) and which remained applicable where only the State assistance was sought. We agree, however, with the IDEA that the legislative intent, in those cases in which Federal money was to be received, was that the SSI program amounted to a “take over” of the program by the Federal government and not the creation of a parallel program. The legislative history as stated by Senator Moore:

“This bill is implementing legislation which is needed when the Federal government takes over the Old Age, Blind and Disabled category from the State of Illinois on January 1, 1974. Under the bill that was passed there is a basic federal grant that will be payable through the Social Security Administration to all aged, blind and disabled. It provides that a mandatory State supplement insuring to those eligible under the present Aged, Blind and Disabled program shall be paid in January of 1974 at the same rate that they were receiving in December, ‘73.” (Emphasis added.) October 30, 1973, 3rd Special Session, 78th General Assembly, Verbatim Transcript, at 17.

This was reiterated by Representative Campbell when he said that the sections

“set[s] forth the machinery for the Department of Public Aid to work in relationship with the Federal Government in the take over of the aid to blind and disabled and also provide[s] for the state to pay supplemental income *** to those recipients ***.” (Emphasis added.) November 16, 1973, 2d Special Session, 78th General Assembly, Verbatim Transcript, at 7.

The intention was that the Federal government would “take over” the previous responsibility for providing aid to the aged, blind and disabled to the extent that they were entitled to receive assist-anee under the Federal program where supplemental State programs (SSP) were mandated under sections 3—13 and 3—15 of the Illinois Public Aid Code (Ill. Rev. Stat. 1975, ch. 23, pars. 3—13, 3—15). See Dixon v. Quern (N.D. Ill. 1982), 537 F. Supp. 983, 987.

While participation in SSP is optional with the States, Illinois, of course, participates in SSP, and it has made the legislative statement that “the Federal Government should meet its obligation to provide financial aid to those aged, blind or disabled persons eligible under Article III hereof so as to assure those persons a standard of living compatible with health and well-being, ***. The Illinois Department shall institute a State program to fully supplement the Federal Supplemental Security Income grants of all persons in the aged, blind, or disabled categories ***.” Ill. Rev. Stat. 1981, ch. 23, par. 3—13.

The State provides interim assistance presuming eligibility without requiring a finding of disability. The Federal government reimburses the State for one-half the interim funds when the SSA finds the individual eligible for SSI benefits. (42 U.S.C. sec. 1383(g)(1) (1976).) An applicant found “not disabled” may request Social Security to reconsider its decision (20 C.F.R. secs. 416.1408). An applicant who receives an adverse ruling on reconsideration may request a full evidentiary hearing before an administrative law judge (20 C.F.R. secs. 416.1425-416.1429). Social Security provides a hearing de novo on the merits of the applicant’s disability (20 C.F.R. secs. 416.1441-416.1458). When the finding of nondisability is affirmed, a discretionary appeal may be taken to the Social Security Administration Appeals Council (20 C.F.R. secs. 416.1461-416.1487). The final decision may be judicially reviewed (42 U.S.C. sec. 1383(c)(3) (1976)), and if an administrative law judge reverses the finding of nondisability, the applicant is given SSI retroactively to the date of the application. However, there is apparently nothing in the Federal legislation which gives an SSP applicant presumptive eligibility status when Social Security makes its initial determination of nondisability (IDEA, AABD Categorical Assistance Manual PO — 710.1).

Plaintiffs argue that the Federal program is “primary” but not “exclusive,” and thus that there are two parallel systems, each of which presumably an applicant could pursue and thus either choose between review before the IDEA, and thereafter presumably administrative review under Illinois law, and a similar review under the Federal administrative procedures. This does not appear to us to be a sensible result, nor can we infer that the legislature intended uncertain consequences. The plaintiffs’ argument that because the Federal review apparently takes considerable time, they are therefore entitled to a State review of the decision finding no disability does not appear persuasive to us.

Plaintiffs have acknowledged that the Johnson v. Quern court declined to examine the claims of constitutional rights to a hearing and continuing assistance. The plaintiffs then state that the fourteenth amendment to the United States Constitution and article I, section 2, of the Illinois Constitution of 1970 also support the result. The reasoning is based on the holding that public assistance benefits are property within the meaning of the protection of due process clauses. Goldberg v. Kelly (1970), 397 U.S. 254, 261-62, 25 L. Ed. 2d 287, 295-96, 90 S. Ct. 1011, 1017-19.

However, as defendants note, the constitutional issues were not urged in the trial court and the amended complaint does not allege that defendants are constitutionally required to furnish interim assistance. A point not raised in the trial court cannot be urged on appeal. In re Claudia K. (1982), 91 Ill. 2d 469, 476; Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147.

For reasons which we have already stated, we do not agree with the plaintiffs’ further argument that defendants are collaterally es-topped from relitigating a question which has already been decided against them as parties to Johnson v. Quern. A collateral estoppel requires an identity of issues between the prior and present suit. Morris v. Union Oil Co. (1981), 96 Ill. App. 3d 148, 154. See also Parklane Hosiery Co. v. Shore (1979), 439 U.S. 322, 330, 58 L. Ed. 2d 552, 561, 99 S. Ct. 645, 651; Illinois State Chamber of Commerce v. Pollution Control Board (1979), 78 Ill. 2d 1, 7.

Mandamus is an extraordinary remedy to compel the performance of ministerial duties, and the duty resting upon the party must be clear. (Retail Liquor Dealers Protective Association v. Schreiber (1943), 382 Ill. 454, 460-61.) Where discretion is permitted mandamus cannot be used to compel the method or manner by which a party implements the statutory requirements. (Chicago Association of Commerce & Industry v. Regional Transportation Authority (1981), 86 Ill. 2d 179, 185.) We conclude that the right to the writ of mandamus is not clear and undeniable and therefore that it was improperly issued.

The judgment of the Circuit Court of Kane County is reversed.

Reversed.

REINHARD and HOPE, JJ., concur.

      Publie Act 83 — 0193, effective August 31, 1983, not directly applicable to these proceedings, amends sections 3 — 1, 3 — 1.2, and 3 — 4 of the Illinois Public Aid Code (Ill. Rev. Stat. 1981, ch. 23, pars. 3 — 1, 3 — 1.2, 3 — 4). The amendments unify the program and authorize acceptance of the Federal governments’ finding of disability. (See Waterson v. Miller (1983), 117 Ill. App. 3d 1054.) If an amendment to a statute is enacted shortly after a court’s interpretation of a statute “it is logical and reasonable to regard the amendment as a legislative interpretation of the statute it amends.” People v. Rink (1983), 97 Ill. 2d 533, 541.