{ "id": 2608816, "name": "BERNARD J. CALLAHAN, Plaintiff-Appellant, v. L.G. BALFOUR et al., Defendants-Appellees", "name_abbreviation": "Callahan v. Balfour", "decision_date": "1989-02-03", "docket_number": "No. 86\u20142138", "first_page": "372", "last_page": "387", "citations": [ { "type": "official", "cite": "179 Ill. App. 3d 372" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "429 N.E.2d 1267", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "102 Ill. App. 3d 483", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3071957 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/102/0483-01" ] }, { "cite": "242 N.E.2d 67", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "101 Ill. App. 2d 59", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2902623 ], "pin_cites": [ { "page": "68" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/101/0059-01" ] }, { "cite": "400 Ill. 55", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5306597 ], "year": 1968, "pin_cites": [ { "page": "59" } ], "opinion_index": 0, "case_paths": [ "/ill/400/0055-01" ] }, { "cite": "441 N.E.2d 81", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "109 Ill. App. 3d 755", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5449050 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/109/0755-01" ] }, { "cite": "364 N.E.2d 420", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "49 Ill. App. 3d 415", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5638811 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/49/0415-01" ] }, { "cite": "425 N.E.2d 1034", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "99 Ill. App. 3d 353", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3099644 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/99/0353-01" ] }, { "cite": "390 N.E.2d 68", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "71 Ill. App. 3d 710", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5582688 ], "year": 1981, "pin_cites": [ { "page": "713" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/71/0710-01" ] }, { "cite": "8 Ill. 2d 351", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2716618 ], "pin_cites": [ { "page": "359" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/8/0351-01" ] }, { "cite": "314 N.E.2d 704", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "21 Ill. App. 3d 139", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5379866 ], "weight": 2, "pin_cites": [ { "page": "148" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/21/0139-01" ] }, { "cite": "508 N.E.2d 1252", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 2 }, { "cite": "155 Ill. App. 3d 1083", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3465355 ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/155/1083-01" ] }, { "cite": "448 N.E.2d 538", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 2 }, { "cite": "114 Ill. App. 3d 66", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3590925 ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/114/0066-01" ] }, { "cite": "367 N.E.2d 678", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 2 }, { "cite": "67 Ill. 2d 296", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5811150 ], "opinion_index": 2, "case_paths": [ "/ill-2d/67/0296-01" ] } ], "analysis": { "cardinality": 1113, "char_count": 33868, "ocr_confidence": 0.79, "pagerank": { "raw": 2.448736730181066e-07, "percentile": 0.8038321925332327 }, "sha256": "fbceebe6a7d0f241a5ce25873eb22ecb3de253999cbbc775b28d386f9ff286b3", "simhash": "1:95edb46075c44c84", "word_count": 5501 }, "last_updated": "2023-07-14T20:22:52.001106+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "BERNARD J. CALLAHAN, Plaintiff-Appellant, v. L.G. BALFOUR et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE PINCHAM\ndelivered the opinion of the court:\nPlaintiff, Bernard Callahan (Callahan), brought this action against defendant, L.G. Balfour company (Balfour), for breach of contract and fraud. Balfour filed a counterclaim against Callahan for breach of contract. The trial court granted Balfour summary judgment on Callahan\u2019s breach of contract claim against Balfour. Callahan\u2019s claim against Balfour for fraud and Balfour\u2019s counterclaim against Callahan for breach of contract were jointly tried before a jury. The jury rendered a verdict against Callahan on his fraud claim and a verdict on behalf of Balfour on its counterclaim against Callahan for breach of contract. The trial court denied Callahan\u2019s motions for judgment notwithstanding the verdict and a new trial. Callahan appeals. We reverse.\nCallahan\u2019s breach of contract claim against Balfour alleged that Balfour, a manufacturer of high school rings, diplomas and other school items, wrongfully terminated Callahan\u2019s employment with Balfour as a sales representative and that Balfour owed Callahan $186,686 in commissions and equity payments that Callahan earned as a sales representative. Balfour defended on the grounds that Calla-ban\u2019s employment contract was terminable at will, that Callahan accepted employment with Balfour\u2019s competitors within two years after he was discharged from Balfour, that a covenant not to compete in Callahan\u2019s employment contract prohibited him from doing so, and that a clause in the covenant not to compete allowed Balfour to retain Callahan\u2019s commissions and equity payments as liquidated damages for Callahan\u2019s breach of his employment contract.\nCallahan\u2019s fraud claim against Balfour alleged that Balfour induced Callahan to continue working as a Balfour sales representative by promising Callahan that none of his accounts would be reassigned to other salesmen without his consent when Balfour knew at that time it made the promise to Callahan that Balfour had already reassigned three of Callahan\u2019s major accounts to two new sales representatives.\nBalfour\u2019s breach of contract counterclaim against Callahan alleged that Callahan owed Balfour $36,431 for school rings and other school items which were advanced to Callahan by. Balfour.\nThe trial court granted summary judgment on behalf of Balfour on Callahan\u2019s breach of contract claim based on the covenant not to compete in Callahan\u2019s employment contract.\nThe pertinent facts adduced at trial on Callahan\u2019s fraud claim against Balfour and Balfour\u2019s breach of contract counterclaim against Callahan follow. In 1955, Callahan began working as a regional sales representative in Chicago for Balfour. In 1979, Balfour negotiated tentative employment contracts with prospective regional representatives Thomas Young and James Coleman. As a condition of accepting employment at Balfour, Young required the assignment to him of two accounts, the Morton East and Morton West High Schools, which were then assigned to Callahan. As a condition of accepting employment at Balfour, Coleman insisted that the Carl Sandberg High School account, which was also then assigned to Callahan, be assigned to him.\nBalfour maintained at all times that it would not seek to reassign any of Callahan\u2019s active accounts or the inactive accounts upon which Callahan was \u201caggressively calling.\u201d On July 16, 1979, and September 15, 1979, and numerous other occasions, Balfour assured Callahan that none of his accounts would be reassigned without his consent. However, prior to September 15, 1979, Balfour reassigned Callahan\u2019s Morton East and Morton West accounts to Young and Callahan\u2019s Sandberg account to Coleman. Callahan had constantly called upon these schools in recent years, but had lost bids to sell rings to them. Balfour complained that Callahan\u2019s coverage of these schools was inadequate, but only after Balfour terminated Callahan\u2019s employment in March 1980. Within two years of his discharge from Balfour, Callahan worked for two of Balfour\u2019s competitors.\nI\nCallahan first contends on appeal that the trial court erred in granting summary judgment on behalf of Balfour on counts II through V of Callahan\u2019s complaint. Counts II through V stated a claim of breach of the employment contract and sought damages totalling $186,686, which Callahan alleged he earned in commissions and equity payments. Balfour argued that Balfour was not liable to Callahan for the commissions and equity payments because Callahan breached a covenant in his employment contract not to compete by working for two of Balfour\u2019s competitors within two years after his discharge from Balfour, and therefore, by reason of a liquidated damages provision contained in the covenant not to compete, Balfour contended that Callahan forfeited his commissions and equity payments.\nThe covenant not to compete in Callahan\u2019s employment contract states:\n\u201cIn the event of the termination of this Contract for any reason, the Regional Representative agrees that for a period of two (2) years after such termination, he will not directly or indirectly, for himself, or as an agent of, or in behalf of, or in conjunction with any person, firm association, or corporation, sell or solicit orders for any other merchandise of the kind or character manufactured, or sold by Balfour within the territory that had been assigned to the Regional Representative. In addition to any equitable remedies to which Balfour may be entitled, Balfour may withhold as liquidated damages any sums that may be due from Balfour to the Regional Representative.\u201d\nIn Donow v. Board of Trustees (1974), 21 Ill. App. 3d 139, 314 N.E.2d 704, the court considered whether the defendant was entitled to withhold plaintiff\u2019s paychecks as liquidated damages. The defendant argued that the money withheld from the plaintiff\u2019s paychecks was liquidated damages. The defendant argued that the money withheld from plaintiff\u2019s paychecks represented a penalty for the plaintiff\u2019s violations of the university\u2019s traffic rules. The court stated:\n\u201cFirst, there is no sum certain stipulated for specific offenses. *** Liquidated damages must generally be for a sum certain for a specified breach. [Citation.] Secondly, liquidated damages are usually considered to be paid in lieu of performance and are not specifically intended to secure performance of the provisions. ***\nUnder the circumstances *** the assessments section is the equivalent to a penalty clause. The courts of Illinois lean toward this construction of provisions of this sort *** and rather treat such clauses as penalties which will not be enforced, the aggrieved party being able to recover actual damages only.\u201d Donow v. Board of Directors (1974), 21 Ill. App. 3d 139, 148, 314 N.E.2d 704.\nThe aforementioned covenant not to compete in the case at bar provides that Balfour \u201cmay withhold as liquidated damages any sums that may be due\u201d to Balfour if the regional representative, Callahan, breaches the covenant. Callahan earned commissions on orders for rings which he sold for Balfour. Callahan also earned equity payments under a program which provided for the orderly transfer of territory from a retiring regional representative to a new regional representative with a percentage of the successor representative\u2019s commissions credited to the retiring representative\u2019s commissions. The commissions and equity payments could vary significantly depending on the number of orders the regional representative placed and the date the accounts were reassigned. Thus, the liquidated damages provision failed to state a sum certain to be forfeited. Additionally, the liquidated damages were not assessed in lieu of Callahan\u2019s performance, but were specifically intended to prevent Callahan from accepting employment with Balfour\u2019s competitors.\nFor a liquidated damages provision of a covenant not to compete to be enforceable, the damages resulting from breach of the covenant not to compete must be difficult to calculate and the amount of the fixed damages must be a reasonable forecast of the damage likely to occur. Both elements must be present. Otherwise, the provision will be construed as a penalty. Bauer v. Sawyer (1956), 8 Ill. 2d 351, 359.\nThe amount of commissions and equity payments Balfour owed to Callahan varied with the number of orders Callahan and his successor placed, rendering the damages difficult to determine. However, for the liquidated damages provision of the covenant not to compete to be enforceable, the amount of fixed damages which Balfour set forth in the covenant not to compete must also be a reasonable forecast of the damages likely to occur from Callahan\u2019s employment with Balfour\u2019s competitors.\nIn Bauer, the partnership agreement provided that when a physician left the partnership the remaining partners would purchase the departing physician\u2019s interest at a certain rate, which rate would vary according to whether the physician\u2019s departure was voluntary or involuntary. The agreement further provided that a physician who breached the covenant not to compete would forfeit, as liquidated damages, any forthcoming sums due him. The court held that this liquidated damages provision was a penalty and therefore unenforceable. The medical partnership was required to remit to the departing physician his remaining interest in the partnership.\nLikewise, in the instant case the variation in the amount of commission and equity payments which could enure to Balfour as damages rendered the liquidated damages provision ineffective as a reasonable forecast of the actual damages Balfour would suffer from Callahan\u2019s breach of the covenant not to compete.\nIllinois courts encourage fair competition in business and abhor restraints on trade, and covenants in employment contracts not to compete are carefully scrutinized. A restrictive covenant may be held enforceable if the time limit and geographical scope are reasonable, if confidential information or trade secrets are involved, and if the restriction is reasonably necessary for the protection of a legitimate business interest. (Image Supplies, Inc. v. Hilmert (1979), 71 Ill. App. 3d 710, 713, 390 N.E.2d 68.) Only two such business interests have been recognized by the courts, a near permanent customer relationship and confidential information. Lincoln Towers Insurance Agency v. Farrell (1981), 99 Ill. App. 3d 353, 425 N.E.2d 1034.\nNeither interest is present in the instant case. The evidence established that many salesmen competed to sell rings to schools that were assigned to Callahan and that a salesman who won at a school one year could lose the bid to a competitor at that school the next year. Balfour, therefore, cannot persuasively claim that it enjoyed a near permanent customer relationship with any school that was assigned to Callahan.\nBalfour\u2019s claim that Callahan possessed confidential information for which Balfour required the protection of a restrictive covenant is fallacious. The names and addresses of Balfour\u2019s high school customers were generally known and readily ascertainable by Balfour\u2019s competitors and therefore certainly were not confidential. Neither were Balfour\u2019s prices confidential, since they were determined by the regional representative and could be obtained by anyone who contacted and asked the schools.\nNeither can Balfour be said to have a protectable business interest in Callahan\u2019s familiarity with the high schools assigned to Callahan. A salesman\u2019s knowledge of or familiarity with customers is very similar to his personal skills and therefore cannot be considered the property or protectable interest of his employer. Lincoln Towers Insurance Agency v. Farrell (1981), 99 Ill. App. 3d 353, 425 N.E.2d 1034.\nCallahan contends that the covenant not to compete is overly restrictive and unduly burdensome. We agree. The geographic scope of the covenant, Chicago and seven surrounding counties, if enforced, would force Callahan to find a new home beyond the geographical area or forfeit his commissions in order to continue in the only profession he has known for 30 years. Such a result does not involve a minor inconvenience for Callahan, especially when balanced against the minuscule benefit attendant to Balfour. McCormick v. Empire Accounts Service, Inc. (1977), 49 Ill. App. 3d 415, 364 N.E.2d 420.\nFor the foregoing reasons, we conclude that the trial court erred in granting Balfour summary judgment on Callahan's breach of contract claim on the basis of the covenant not to compete in the employment contract. We therefore reverse the summary judgment.\nII\nCallahan next contends that the jury\u2019s verdict against Callahan on Balfour\u2019s counterclaim must be reversed because it is not supported by the evidence. We agree.\nGenerally, a jury verdict is entitled to great weight. A jury verdict must be reversed, however, if it is not supported by the evidence or if it is against the manifest weight of the evidence. (Smith v. Chicago Limousine Service, Inc. (1982), 109 Ill. App. 3d 755, 441 N.E.2d 81.) Moreover, when the facts are not controverted, they do not present an issue for the jury, and therefore, such a verdict is not conclusive. (France v. Citizens Casualty Co. (1948), 400 Ill. 55, 59.) If the jury verdict is based on a mistake or a failure to understand the evidence, then it must be reversed. Illinois Building Authority v. Dembinsky (1968), 101 Ill. App. 2d 59, 68, 242 N.E.2d 67.\nCount II of Balfour\u2019s counterclaim alleged that Callahan owed Balfour $36,431 for rings and other items which Balfour advanced to Callahan. However, the record indicates that Balfour owed Callahan $17,561 in commissions. David Schlothauer, a witness for Balfour, testified that Callahan\u2019s accounts were designated \u201cpaid\u201d for income tax reasons only and had been written off. Schlothauer did not work in Balfour\u2019s accounting department, however, and could not personally testify whether Callahan had not paid Balfour for allegedly outstanding invoices. Callahan\u2019s emphatic claim that he paid Balfour for all his invoices was undisputed and wholly supported by the evidence. We conclude that the jury verdict in favor of Balfour on its counterclaim against Callahan was against the manifest weight of the evidence, and the judgment entered thereon is therefore reversed.\nIll\nCallahan lastly contends that the jury verdict on his claim of fraud against Balfour was also against the manifest weight of the evidence. We agree.\nThe elements necessary to prove a claim of fraud are a false representation of a material fact made by the defendant when he knew that the representation was false and reliance on the misrepresentation by the plaintiff. (Duhl v. Nash Realty Inc. (1981), 102 Ill. App. 3d 483, 429 N.E.2d 1267.) The record reveals that Balfour represented to Callahan that Callahan would not have to give up any of his accounts without his consent. On July 16, 1979, Balfour told Callahan that he could retain all of his active accounts and all of his inactive accounts upon which he was \u201caggressively calling.\u201d Callahan confirmed his understanding of this agreement by certified mail. Balfour did not dispute this evidence. These representations made by Balfour to Callahan were material and Callahan relied on them. Callahan reassigned a number of his accounts to other representatives, but retained Morton East, Morton West and Sandberg, all large accounts. Callahan testified that he would not have continued in Balfour\u2019s employ if he could not retain these three schools. The importance of these three accounts was further established by the testimony of Coleman and Young that they would not have accepted employment at Balfour if these accounts were not assigned to them.\nThe record reveals that Balfour knew that it had already reassigned Morton East, Morton West and Sandberg to Coleman and Young at the time that it promised not to reassign Callahan\u2019s accounts without his consent. Coleman testified that he received the Sandberg reassignment in the summer of 1979. Young testified that he negotiated an employment contract with Balfour in May or June 1979. Young also testified that he attempted to sell rings to Morton East and Morton West in early September 1979. On September 15, 1979, Young refused to sign an agreement which stated that no other accounts would be taken from Callahan because Young knew that he had been promised the reassignment of Callahan\u2019s Morton East and Morton West accounts. Balfour offered no evidence to contradict these facts, but instead defended on the ground that it had the right to reassign Callahan\u2019s inactive accounts upon which he was not \u201caggressively calling.\u201d The evidence clearly showed, however, that Callahan had aggressively called on Morton East, Morton West and Sand-berg and submitted bids annually in their ring competitions.\nWe conclude that the facts adduced at trial on Callahan\u2019s claim of fraud against Balfour entitled Callahan to a verdict and that the trial court erred in denying Callahan\u2019s motion for judgment notwithstanding the verdict.\nBalfour contended in its breach of contract counterclaim that Callahan owed Balfour $36,431. The jury, although finding in favor of Balfour on its counterclaim, awarded Balfour only $1,692. This fraction of the damages sought by Balfour indicates that the jury allowed Callahan a setoff for the money that Callahan alleged Balfour owed him. If a setoff was allowed, as is indicated by the amount of the award, then the jury apparently found for Callahan on his complaint. These contradictory and ambiguous findings by the jury indicate that the verdict was based on an error or mistake by the jury, and we therefore reverse the judgment entered thereon.\nThe appellee, Balfour, in this court asserts that the appellant, Callahan, has deliberately fabricated exhibits in the record on appeal. These assertions by the appellee are without substance.\nAfter the record on appeal and Callahan\u2019s brief were filed in this court, Balfour filed an extensive motion to \u201cstrike plaintiff\u2019s fabricated exhibits\u201d and to \u201ccorrect the record on appeal.\u201d Callahan responded to Balfour\u2019s motion and stated, inter alia, that Callahan\u2019s present appellate counsel was not Callahan\u2019s trial attorney; that Callahan\u2019s appellate counsel had been hired to represent Callahan on appeal; that the exhibits which Callahan\u2019s appellate counsel incorporated into the record on appeal were furnished by Callahan\u2019s trial counsel; that Callahan\u2019s appellate counsel had no knowledge that the 80 exhibits which were furnished by trial counsel were not numbered the same as those exhibits which were introduced at trial; and that Callahan\u2019s appellate counsel emphatically denied any intent to deceive and apologized for the misunderstanding. Callahan\u2019s appellate counsel added that he made no objections to Balfour\u2019s motion to strike the inaccurate exhibits from the record on appeal since, with the exception of exhibit No. 73, he did not refer to them or rely on them in his brief on appeal. Callahan\u2019s appellate counsel explained that he mistakenly referred to an erroneously labeled exhibit No. 73 in Callahan\u2019s appellate brief and was therefore withdrawing all reference to it on appeal; and that exhibit No. 76, to which Callahan referred in his brief and which Balfour alleged was fabricated, is the true and accurate exhibit No. 76 used at trial, which Balfour\u2019s counsel did not dispute.\nAppended hereto are the pertinent portions of the oral arguments of this cause during which Callahan\u2019s appellate counsel again explained the mistake of the misnumbered exhibits and reiterated that Callahan was not in any way relying for reversal upon any of these misnumbered exhibits.\nThe briefs and oral arguments centered on 15 exhibits, No. 52, No. 53 and No. 75 through No. 85. Although appellee\u2019s counsel urged that they were made part of the record on appeal, they were never actually admitted at trial. Appellant\u2019s counsel acknowledged during oral argument that the problem arose because he accepted the word of trial counsel that the exhibits had been properly admitted. As a consequence, we have carefully reviewed the complete record on appeal and the record\u2019s index (volume II, page 1), which shows when each exhibit was tendered and received. Accordingly, we have been able to sort out those exhibits properly before us.\nExhibits No. 52 and No. 53 were never received into evidence. Exhibits No. 73 through No. 76 were admitted and no complaint has been made that these documents were not genuine or properly a part of the record on appeal. It would appear that they are properly included in the record on appeal. Exhibit No. 76 was the last exhibit received into evidence as an exhibit of the plaintiff. There is no confusion as to exhibits No. 77 through No. 85 because they were not made part of the record.\nFor the foregoing reasons, it is apparent that Balfour\u2019s assertions that Callahan fabricated the exhibits upon which he relies on this appeal are utterly without merit.\nFor the reasons above stated we reverse the summary judgment in favor of Balfour and against Callahan on Callahan\u2019s breach of contract claim against Balfour and remand the cause for a new trial or other proceedings thereon. We reverse the judgment on the jury\u2019s verdict in favor of Balfour and against Callahan on Balfour\u2019s breach of contract claim against Callahan and remand with directions to the trial court to enter judgment on Balfour\u2019s breach of contract claim against Callahan in favor of Callahan notwithstanding the verdict. We reverse the judgment on the jury\u2019s verdict in favor of Balfour and against Callahan on Callahan\u2019s fraud claim against Balfour and remand Callahan\u2019s fraud claim against Balfour for a new trial and other proceedings thereon.\nReversed and remanded.", "type": "majority", "author": "JUSTICE PINCHAM" }, { "text": "LORENZ, J.,\nconcurs.\nAPPENDIX\n\u201c[A JUSTICE]: Counsel, I\u2019m disturbed by a statement made in the appellee\u2019s brief *** and in your reply brief you do not respond to it at all. And her statement is that your record and your brief are replete with evidentiary fabrications and distortions of the record, and then she goes on to indicate that there are some fabricated trial exhibits, and many other things. And in your reply brief I would have thought that you would have responded to those charges, because they go to the heart of this case. Do they not?\n[APPELLANT\u2019S COUNSEL]: No, Your Honor.\n[A JUSTICE]: And, why not? We go by what the record shows. And, if the record has been distorted, what opportunity do we have to uphold your theory of the issues?\n[APPELLANT\u2019S COUNSEL]: Well, I disagree that the record was distorted ***\n[A JUSTICE]: Why didn\u2019t you say so in the reply brief?\n[APPELLANT\u2019S COUNSEL]: I had responded, Your Honor, in previous motions by the appellee\u2019s counsel, motions to strike parts of the record and to make certain corrections, and now that the motion that was made by the appellee regarding the issue of fabricated trial exhibits ***. As I explained in my response, I\u2019d gotten all trial exhibits, or what I thought to have been the trial exhibits, from the trial attorney himself. There are over 80 exhibits involved here. I did not go through the exhibits, since I believed that what the other attorney gave me were in fact the exhibits for trial and those were the exhibits I gave to the clerk to put in the record on appeal. When the motion was filed and I filed my response to the motion as to making amendments, I saw he didn\u2019t object to it, although he did make response to the idea of fabrication. So, I did address that issue. Number two, there are only two exhibits out of all these allegedly fabricated exhibits which were cited, which were claimed to have been cited to, by myself in my brief. One, I believe was Exhibit Number 73, which I acknowledge in my motion, that I will not, of course, not hold this court to be bound to look at. The second point was Exhibit Number 76. Now, although the Exhibit 76 which I submitted to the clerk, which had been handed to me by the trial counsel, was not the correct exhibit, the Exhibit 76, which I refer to in my brief, was the true and accurate exhibit that was used at trial.\n[A JUSTICE]: In this reply brief, the only thing, the only mistake you acknowledge making is the name of the school, and of course, that\u2019s a minor matter, but the school, the cite of those schools is separated by about 15 miles, so, but the name is Morton instead of Morton Grove and so on, but that\u2019s the only thing that you acknowledge. Why didn\u2019t you, in your reply brief ***?\n[APPELLANT\u2019S COUNSEL]: Because I had done so previously in a response motion, which I could show Your Honors.\n* * *\nI didn\u2019t want to belabor the issue once again in my brief because I, in motions and responses and in supplementary responses, I addressed those issues. That\u2019s why. It was raised again by counsel although I already responded to those charges in prior responses, prior motions as opposed to the brief itself. Have I cleared that up? I mean I understand what you\u2019re trying to say. I agree that the charges were serious, however, I don\u2019t believe the charges were true. I hope that\u2019s cleared up.\n[A JUSTICE]: *** So then we have to go to the record and it\u2019s when we go to the record and we find that there are distortions in the record as distinguished from the briefs that makes us very unhappy. *** Hopefully, you can help us out this morning.\n[APPELLANT\u2019S ATTORNEY]: Well, if I could, as far as the exhibits which were true and accurate and which was not, there are only two exhibits which counsel claims were incorrect which I submitted which were actually cited in my brief. One was I believe was Exhibit 73, which I responded to in my response. Naturally, I\u2019m not going to use that argument since it\u2019s not the correct one. Exhibit 76, while I submitted a different Exhibit 76, the Exhibit 76 I actually referred in my brief was in fact the true and accurate Exhibit 76. There is no problem with the exhibits.\n[A JUSTICE]: It [Exhibit 76] was admitted.\n[APPELLANT\u2019S ATTORNEY]: The actual 76 Exhibit that I respond to in my brief was the one that was actually admitted. Okay, the one that I submitted to the record originally was not the correct one, it was not the one I was referring to in my brief.\n[A JUSTICE]: Okay.\n[APPELLANT\u2019S ATTORNEY]: Those were the only two which were allegedly fabricated and I went ahead and cited to those in my briefs. And the only factual argument involved was confusing Morton with Morton Grove. However, there was no Morton Grove referred to, it was simply the Morton Schools. As I indicated *** Morton East or Morton West.\n* * *\n[APPELLEE\u2019S ATTORNEY]: I should address first the accusations I have made in my brief and my motion regarding fabrications of the record. But, in two respects ***\n[A JUSTICE]: That\u2019s a serious charge.\n[APPELLEE\u2019S ATTORNEY]: I know it is. That\u2019s why I thought I should address it first. There are 15 exhibits that are a part of that record that is in front of the court that were never identified in the trial court, not even identified, let alone admitted into evidence. The numbers are 52, 53, and 73 through 85. And the only way I found those exhibits is when I started going through plaintiff\u2019s brief and saw that he had evidentiary citations for things that I did not remember any proof at trial. We came and checked off the record *** we started going through it and realized that plaintiff had documents which apparently trial counsel had once marked for himself with the intention of admitting, but never did introduce them or identify them at trial. *** I have the advantage in this case of having been trial counsel and being before you and knowing the record. I\u2019m not accusing Mr. Erhlich [sic] of any malice. He came to this as an appellate matter and I have no reason to disbelieve what he says that the trial counsel was the one who gave him the wrong exhibits, but they are wrong nonetheless. *** The other point which the court is *** in this case you have appellate counsel who had nothing to do with the trial, but he takes the record as he finds it, and I would hope that he would present a true and correct record to the court.\n* * *\n[A JUSTICE]: What of these charges, Counsel? That\u2019s a very, very serious charge, falsifying records.\n[APPELLANT\u2019S ATTORNEY]: There are two responses to the defendant\u2019s motion.\n[A JUSTICE]: Forget the responses. Does it prove that they were never in the record?\n[APPELLANT\u2019S ATTORNEY]: Yes. The exhibits that counsel referred to in her motion were not in the record. I acknowledged those points in my two responses.\n[A JUSTICE]: How can we reverse when you have put 20 exhibits in the record which were never permitted * * *\n[APPELLANT\u2019S ATTORNEY]: Because my arguments are not in any way based on any of those exhibits which were not admitted to the trial. Only two exhibits of all the exhibits that counsel said were not admitted at trial came from somewhere else. Only two of those that I cited to in my brief. One was Exhibit 73. And my response ***. The other was Exhibit 76, I submitted to the clerk, the record was not correct, the Exhibit 76 that I refer to in my argument was the true and accurate exhibit as admitted and ruled on at the trial court. So, there\u2019s absolutely nothing I\u2019m citing to or relying on that was not admitted at the court as an exhibit. My argument still stands with or without those exhibits. *** Judge, I\u2019m trying to explain the mistake as to the evidence that was submitted. The mistake was that I took the other counsel\u2019s word and asked for the trial exhibits ***. I believed him to say that these were the trial exhibits. I didn\u2019t go through every single exhibit and take the transcript and go through all 800 pages of transcript.\n[A JUSTICE]: Who prepared the record for appeal, you or the other counsel?\n[APPELLANT\u2019S ATTORNEY]: The record was there. The exhibits that I added to the record were trial exhibits or what I thought to have been missing trial exhibits.\n[A JUSTICE]: The fellow who tried it downstairs said these are your trial exhibits.\n[APPELLANT\u2019S ATTORNEY]: No, I believe that they had some exhibits, they did not have all the exhibits. I went to get the missing exhibits from the other attorney who did the trial. I asked him for the exhibits. He said, \u2018Yes, Counsel. Here are the trial exhibits.\u2019\n[A JUSTICE]: More importantly, you\u2019re not relying on those in this appeal. It won\u2019t make a bit of difference.\n[APPELLANT\u2019S ATTORNEY]: Exactly.\n[A JUSTICE]: *** When you found out that they were never in evidence, did you move this court to strike those exhibits?\n[APPELLANT\u2019S ATTORNEY]: They were already moved to be stricken by counsel.\n[A JUSTICE]: Well, why didn\u2019t you do it?\n[APPELLANT\u2019S ATTORNEY]: Because I didn\u2019t know about it until counsel made her motion to strike. If I'd known earlier I would have done that. Once counsel made her motion and drew it to my attention I responded and I said, \u201cYou\u2019re right, these aren\u2019t the right exhibits. Disregard them.\n[A JUSTICE]: This is nothing. but an inadvertence on which you\u2019re not relying on on this appeal?\n[APPELLANT\u2019S ATTORNEY]: Exactly. I don\u2019t need any of those exhibits ***\n[A JUSTICE]: *** I\u2019m just wondering how it happens, that\u2019s all. What you\u2019re suggesting is that it was due to the negligence of your trial counsel?\n[APPELLANT\u2019S ATTORNEY]: Yes.\u201d", "type": "concurrence", "author": "LORENZ, J.," }, { "text": "PRESIDING JUSTICE MURRAY,\ndissenting:\n(1.) The trial court was entitled to have its decisions granting summary judgment of Callahan\u2019s breach of contract claim on a record untainted by exhibits not introduced by Callahan. The jury\u2019s verdict on Callahan\u2019s counterclaim should not be reversed in my judgment on a record containing exhibits not introduced at the trial. In fairness to the trial court, jury and counsel, the trial court, not this appellate court, should have had the opportunity to amend the record and decide Balfour\u2019s charges of fabrication.\n(2.) The majority opinion does not adequately explain its conclusion that the jury\u2019s verdict on the fraud charge was against the manifest weight of the evidence. The standard of proof in a case based on charges of fraud is \u201cclear and convincing.\u201d (Ray v. Winter (1977), 67 Ill. 2d 296, 367 N.E.2d 678.) Even if one of the elements referred to in the majority opinion was proved by clear and convincing evidence, in order to sustain an action based on fraud, plaintiff must prove each element by such a standard. (Cole v. Ignatius (1983), 114 Ill. App. 3d 66, 448 N.E.2d 538.) Even with the record amended sua sponte by the majority, plaintiff\u2019s proof falls short of the well-settled standard in a fraud action. If the covenant not to compete was not enforceable or made moot by the jury\u2019s verdict, I believe plaintiff\u2019s contract claims may be barred by the jury\u2019s verdict on the fraud count. Albers v. Community Consolidated No. ZOU School (1987), 155 Ill. App. 3d 1083, 508 N.E.2d 1252 (res judicata effect of jury verdict).\n(3.) The court\u2019s ultimate remandment for further proceedings consistent with the views expressed in the opinion leaves the trial court and attorneys for both parties twirling in the air. Is the trial court to grant summary judgment on all issues decided by this court in favor of defendant and hold a hearing only on Callahan\u2019s alleged damages? Is the trial court to hold further hearings on the summary judgment? Should a new trial on all issues be held? If not, on what issues? At the very least the majority should have instructed the trial court and the parties as to what further proceeding would be consistent with its opinion.", "type": "dissent", "author": "PRESIDING JUSTICE MURRAY," } ], "attorneys": [ "Arthur R. Ehrlich, of Goldman & Marcus, of Chicago, for appellant.", "Arlene C. Erlebacher and Georgia L. Vlamis, both of Sidley & Austin, of Chicago, for appellees." ], "corrections": "", "head_matter": "BERNARD J. CALLAHAN, Plaintiff-Appellant, v. L.G. BALFOUR et al., Defendants-Appellees.\nFirst District (5th Division)\nNo. 86\u20142138\nOpinion filed February 3, 1989.\nRehearing denied March 2, 1989.\nMURRAY, P.J., dissenting.\nArthur R. Ehrlich, of Goldman & Marcus, of Chicago, for appellant.\nArlene C. Erlebacher and Georgia L. Vlamis, both of Sidley & Austin, of Chicago, for appellees." }, "file_name": "0372-01", "first_page_order": 394, "last_page_order": 409 }