No. 2--01--1350

	_________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

_________________________________________________________________

DONALD L. CRESS,		)	Appeal from the Circuit

		)	Court of Du Page County.

	Plaintiff-Appellee and     	)

     Cross-Appellant,		)	 

		)	

v.           	                        )    No. 97--L--703

             				  	)

RECREATION SERVICES, INC.,      	)

LARRY M. DONOVAN, and RECREATION	)

SERVICES, INC., DEFERRED        	)

COMPENSATION PLAN,		)	

                                	)    Honorable

     Defendants-Appellants and 		)	Hollis L. Webster,

	Cross-Appellees.		)	Judge, Presiding.	  

_________________________________________________________________

	JUSTICE O'MALLEY delivered the opinion of the court: 

	Defendants, Recreation Services, Inc. (RSI), Larry Donovan,

and Recreational Services, Inc., Deferred Compensation Plan (Plan),

appeal from a judgment entered in favor of plaintiff, Donald Cress,

on his claims for breach of contract and tortious interference with

contract, which were tried to a jury, and his claim for declaratory

relief under the Employment Retirement Income Security Act (ERISA)

(29 U.S.C. §1001 et seq. (1994)), which was tried to the bench.  Defendants appeal on various grounds.  Plaintiff cross-appeals.  We

affirm in part and reverse in part and remand for further

proceedings consistent with this opinion.                

BACKGROUND

	In his complaint, plaintiff alleged that he had been an

employee of RSI for 30 years until he was terminated on May 8, 1997, in contravention of a deferred compensation agreement

(Agreement), which, he claimed, contained a guarantee of employment

until he reached age 65 as well as a provision for retirement

benefits.  Plaintiff further alleged that Donovan, as president of

RSI, knowingly and unjustifiably induced RSI to breach the

contract.  Plaintiff averred that Donovan thereby acted outside the

scope of his limited privilege as a corporate officer to influence

the actions of RSI and was liable for tortious interference with

contract.  Plaintiff claimed he was terminated at age 61 and was

owed approximately four years of compensation.  Plaintiff alleged

that his compensation each year included salary, a bonus, health

insurance premiums, and car allowances.  Plaintiff also claimed

that he was owed back wages and vacation pay.  Finally, plaintiff

claimed RSI owed him retirement benefits under the Agreement.    

	Plaintiff brought the following six counts in his complaint:

count I (claim against RSI for breach of contract); count II (claim

against RSI for violating the Illinois Wage Payment and Collection

Act (Wage Payment Act) (820 ILCS 115/1 et seq. (West 2000))); count III (claim against Donovan for violating the Wage Payment Act);

count IV (claim against Donovan for tortious interference with

plaintiff's contract with RSI); count V (claim against Donovan for

tortious interference with plaintiff's prospective economic

advantage); and count VI (claim against the Plan for a judgment

declaring plaintiff’s right to receive retirement benefits under

the Agreement).   Plaintiff sought punitive damages on counts IV

and V.  Counts II, III, and V were dismissed before trial.      

	Before trial, plaintiff moved under section 2--1005(d) of the

Code of Civil Procedure (735 ILCS 5/2--1005(d) (West 2000)) for a

summary determination of whether the Agreement contained an

enforceable promise that RSI would employ plaintiff until age 65

provided he was capable of performing in his position as general

manager for RSI.  The trial court granted plaintiff's motion,

relying on excerpts from the parties' depositions that were quoted

in the pleadings.

	Defendants subsequently filed a motion to dismiss plaintiff's

contract and tort claims as preempted by section 514(a) of ERISA

(29 U.S.C. §1144(a) (1994)).  The trial court denied the motion.

	The trial court ordered a bifurcated trial on the remaining

counts; counts I and IV would be tried to the jury and count VI to

the bench.  Before trial, the court granted defendants' motion in limine barring plaintiff from introducing evidence to the jury of the value of the retirement benefits allegedly owed plaintiff under

the Agreement as well as evidence of whether defendants had paid

plaintiff any of those benefits.  Defendants also moved to redact

all provisions related to retirement benefits from the copy of the

Agreement admitted into evidence.  Reasoning that the redactions

would render the Agreement incomprehensible, the court denied the

motion. 

	The following facts are undisputed.  Donovan established RSI

in 1962 and has been its president since that time.  Initially, RSI

owned and operated a single bowling center located in Kankakee.  By

the late 1970s, RSI owned and operated three entertainment centers,

located in Kankakee, Naperville, and Carol Stream, each of which offered bowling, billiards, arcade games, and food and alcohol.  At

its peak, RSI had as many as 250 employees.  Since 1967, Donovan

and his wife have been RSI's only shareholders.    

	Plaintiff began working part time for RSI at the Kankakee

center in 1964 and the next year became a full-time employee.  He

became the manager of the Kankakee center in 1967 and manager of

all three centers in 1976.  Plaintiff was promoted to vice-

president and general manager in 1978 or 1979 and in that capacity

reported directly to Donovan.  Plaintiff was responsible for

managing the workforce and maintaining the facilities and hard

assets of RSI while Donovan handled the financial affairs of the

business. 

	In 1993, RSI terminated its qualified pension plan for its

employees, whereupon plaintiff received a lump-sum payment from the

plan of $264,000, which he rolled over into an individual

retirement account (IRA).  In 1994, when Donovan was 65 and

plaintiff was 58, RSI and plaintiff entered into the Agreement. 

The Agreement provided that if the funds in the IRA were not

sufficient to provide plaintiff a monthly payment of $7,083.33

after his retirement, RSI would supply the difference.  The

Agreement stated in relevant part:

"RECITALS

		WHEREAS, [plaintiff] has been a key employee of RSI for

approximately the last 30 years and is now its Vice-President,

	and

		WHEREAS, RSI wishes to retain the services of [plaintiff] 

	until his retirement at age sixty-five, and 

		WHEREAS, RSI wants to provide [plaintiff] with Additional

	Compensation to the extent the Qualified Plan Benefits

provided to [plaintiff] as a result employment [sic] by RSI are less than a monthly benefit of Seven Thousand Eighty Three

and 33/100 dollars ($7,083.33) at attained age 65. 

		THEREFORE, in consideration of the mutual promises and

	covenants contained in this Agreement, the parties agree as

follows:

AGREEMENT

	1.	Definitions.  The following words shall have the following meanings when used in this Agreement.

		ADDITIONAL COMPENSATION: Deferred compensation or

	pre-retirement death benefits over and above the amount

normally paid or payable as Qualified Plan Benefits to the

extent the actuarial equivalent of the Qualified Plan

Benefits, computed at attained age 65, is less than a monthly

benefit of Seven Thousand Eighty Three and 33/100 dollars

($7,083.33).  In the event [plaintiff] retires prior to age 65

said Additional Compensation shall be $7,083.33 multiplied by

the quotient of the Actuarially Equivalent value of a monthly

life annuity payable at age 65 divided by the Actuarially

Equivalent Value of a life annuity payable at early

retirement. 

		ACTUARIAL EQUIVALENT: A form of benefit differing in 

	time, period, or manner of payment from a specific benefit

provided under RSI's past, present, or future Qualified Plan

or Plans but having the same value when computed using One Hundred and Twenty (120) percent of the applicable interest

rate and the UP-84 Mortality Table.  (Unisex Pension Mortality

table of 1984) used by the Pension Benefit Guaranty

Corporation. 

		APPLICABLE INTEREST RATE: The interest rate which is 

	used, determined as of the first day of the month of the

earlier of [plaintiff's] retirement prior to age 65 or the

date [plaintiff] reaches attained age 65, by the Pension

Benefit Guaranty Corporation for the purpose of determining

the present value of a lump-sum distribution on a plan's

termination.

		QUALIFIED PLAN BENEFITS: (1) All funds contributed to a

	trust, created or organized by RSI and forming part of RSI's

stock bonus, pension, or profit-sharing plan or plans for the

exclusive use of its employees or their beneficiaries, that

were PAID to [plaintiff] prior to his retirement plus an

investment return, computed from date paid through date of

retirement, on said paid funds of not less than (6) percent or

the actual amount earned, whichever is greater, AND (2) all

funds contributed to a trust, created or organized by RSI and

forming part of RSI's stock bonus, pension, or profit-sharing

plan or plans for the exclusive use of its employees or their

beneficiaries, that are PAYABLE to [plaintiff] at retirement

under any of RSI's past, present, or future stock bonus,

pension, or profit sharing plans, excluding employee

contributions and earnings on amounts employees contribute to

such plans, if any.  Should Qualified Plan Benefits include funds under which [plaintiff] managed or participated in the

choice of investment activity for his own account, it is

assumed for purposes of computing the amount of Additional

Compensation under this Agreement that employer contributions

earned an annual investment return of not less than six (6)

percent or the actual amount earned, whichever is greater.

		2.	To the extent that [plaintiff's] Actuarial

	Equivalent of his Qualified Plan Benefits is less than a

monthly benefit of $7,083.33, RSI will pay on a monthly basis,

or fund for such payments should RSI so choose, the amount of

Additional Compensation needed to provide [plaintiff] with a

combined monthly benefit of $7,083.33.

		3.	Commencing the month after [plaintiff] attains age

	65, (March 1, 2001), and whether or not [plaintiff] chooses to retire, RSI will commence paying to [plaintiff] said

Additional Compensation on a monthly basis for the remainder

of his life.

		4.	On [plaintiff's] retirement earlier than age 65,

	due to total disability, or his early retirement prior to age

65 with the written consent of RSI, RSI will pay to

[plaintiff] said Additional Compensation for a period of 120

months following the month of [plaintiff's] retirement.

* * *

		9.   Should both Larry M. and Patricia B. Donovan die 

	prior to March 1, 2001, the number of hours worked by

[plaintiff] will not Exceed [sic] Fifty (50) hours per week unless he elects to work additional hours.

		10.  It is further agreed that [plaintiff's] compensation

	cannot be substantially reduced prior to his retirement

provided he is capable of performing as General Manager for

Recreational Services, Inc."

	On February 10, 1997, Donovan sent a letter to Brunswick

Corporation expressing his intent to sell RSI's operating assets to

Brunswick.  One of the conditions of the sale was: 

	"[T]hat a same compensation agreement, through March 1, 2001,

be offered by Brunswick to [plaintiff], presently the general

manager and Vice-President of RSI, with the provisions that if

he rejects the employment offer, or his employment is

terminated early, or he decides to terminate early, Brunswick 

will pay fifty percent of his present salary and benefits from

date of separation through March 1, 2001."  

	In a February 14, 1997, letter to Brunswick, John Ridge, RSI's

attorney, wrote: "Fifty (50%) percent of [plaintiff's] compensation

is $300,000--this includes salary, bonus, health insurance,

automobile, employer FICA--said amount to be paid over four years." 

	On April 2, 1997, RSI sold all of its assets, excluding the

real estate on which the entertainment centers were located, to

Brunswick.  RSI leased the real estate to Brunswick.  The leases

were still in effect at the time of trial.  RSI retained a small

number of employees after the sale, including plaintiff.  On April

2, 1997, RSI and Brunswick executed a consulting agreement, which

provided that plaintiff would remain an employee of RSI and, in

that capacity, would provide consulting services to Brunswick for a one-year period commencing April 3, 1997, for which Brunswick

would pay RSI $150,000.  

	On April 15, 1997, RSI removed plaintiff from his position as

vice-president and general manager, although plaintiff remained an

employee of RSI.  In an April 30, 1997, letter to Ridge, Larry

Cassano, plaintiff's attorney, stated: 

	"I understand that [plaintiff's] compensation--which includes

payments by RSI for health insurance and an automobile--was

substantially reduced by RSI after its recent sale of three of

its locations to Brunswick. *** We ask that [plaintiff's]

compensation be immediately returned to its former level." 

On May 8, 1997, Ridge informed Cassano that RSI terminated

plaintiff's employment.  In a May 12, 1997, letter to Cassano,

Ridge stated: 

	"RSI would like to continue to pay [plaintiff] as a consultant

for consulting work that he would do for Brunswick if

[plaintiff] agrees to perform this function.  As RSI would not

control his activities he would be a third party contractor

and not an employee.  As yet, I have not heard any response to

this offer.  As a benefit to [plaintiff] and at great cost to

RSI, the company procured a one year contract to benefit

[plaintiff]. [Plaintiff's] behavior regarding this consulting

contract is a mystery to us.  The contract was for $150,000

for a one year period."  

	Cassano replied as follows on May 16, 1997:

		"I have received your letter dated May 12, 1997, and

believe that it lacks certain important and necessary information.  For instance, what is RSI's position concerning

[plaintiff's] deferred compensation and pension benefits? 

When will payment be initiated in the event your offer of a

one-year consulting contract is accepted?  When will payments

pursuant to the Agreement *** be initiated if your offer is

rejected?"  

	Replying on May 28, 1997, Ridge wrote: "We suggest that

[plaintiff] file a claim with [RSI] *** for any benefits he

believes he is entitled to under the [Agreement]." 

	Plaintiff was 61 years old when RSI fired him.  Brunswick had

made only one quarterly payment under the consulting agreement

before RSI fired plaintiff.  When it learned that plaintiff had

been fired, Brunswick made no further payments.  In a July 21,

1997, letter to Ridge, Jeffrey Paulson, vice-president and general

counsel for Brunswick, wrote:  

	"[RSI] has breached its agreement with [Brunswick].  It is

clear within [the consulting agreement] that the intent of the

parties was that payment of the $150,000 was in consideration

of [plaintiff's] services.  Since these services are no longer 

	available, payment will not be forthcoming."

	Plaintiff testified that Donovan informed him in February 1997

that he (Donovan) had Parkinson's disease and that he was

negotiating with Brunswick for the sale of RSI.  Donovan assured

plaintiff that Donovan "would not forget" plaintiff's years of

service at RSI and would "take very good care" of him.  Following

the sale, Donovan informed plaintiff of RSI's agreement with

Brunswick whereby plaintiff would provide consulting services to Brunswick for one year at $150,000, or $12,500 a month.  Donovan

told plaintiff that the consulting would involve "nothing more than

what [plaintiff] was doing now" as general manager of RSI.  Donovan

told plaintiff to "do what [Brunswick] ask[s] and satisfy them." 

Plaintiff testified that he agreed to the consulting arrangement.

Plaintiff denied that Donovan ever told him to submit written or 

oral reports to RSI concerning his consultation work with

Brunswick.    

	Plaintiff testified that he was hospitalized in March 1997 for

colon surgery.  Upon his release, he followed Donovan's

instructions and began consulting for Brunswick.  He was available

to provide in-person assistance to Brunswick at all times from 

April 3, 1997, through May 8, 1997, with the exception of a four-

day trip he took to Arizona to assist his mother-in-law.  He

received advance permission for the trip from Rick Barbera,

regional manager for Brunswick.  Plaintiff left a phone number

where he could be contacted and phoned Brunswick each day while he

was away to "touch base."  

	Plaintiff testified that while he was in Arizona, Ridge left

a message on plaintiff's answering machine asking where plaintiff

had been and demanding that plaintiff call Ridge or "something

serious is going to happen."  Plaintiff returned the call and left

a message for Ridge.  Ridge subsequently phoned plaintiff six

times. Plaintiff testified that the calls were "berating" and

"demeaning" and left him feeling "harassed and hassled."  Plaintiff

was not specific about the content of the conversations.  Plaintiff

testified that he received a check in April 1997 for $11,500.  When he asked John Ridge why he received $11,500 instead of the $12,500

promised by Donovan, Ridge said that the difference represented

"the employer's share of FICA."

	Plaintiff testified that his attorney phoned him on May 8,

1997, and said that RSI had faxed him a notice that plaintiff's

employment was terminated.  RSI also terminated plaintiff's health

insurance effective June 30, 1997.  Plaintiff testified that he has

received no income or benefits from RSI since his termination. 

Plaintiff testified that, although RSI's policy was to issue a

warning notice before terminating an employee, he received no

notice prior to his termination on May 8, 1997.  

	Plaintiff testified that he spoke to Donovan only three times

by phone between the sale of RSI and his termination.  On the first

occasion, Donovan phoned him and asked why RSI's accountants had

quit despite their agreement to remain with RSI for a few weeks

after the sale.  Plaintiff did not recall how he responded. 

Plaintiff testified that he subsequently phoned Donovan on two

occasions to ask work-related questions.  On cross-examination,

plaintiff acknowledged that during discovery he stated in writing

that he did not speak to Donovan at all after the sale to

Brunswick.    

	Plaintiff testified that the termination was "traumatic" and

"humiliating."  He became depressed, and the antidepressants he

took caused drowsiness and reduced his sex drive.  He suffered four

or five anxiety attacks.  Plaintiff attempted unsuccessfully to

find employment.  The loss of income forced him to live on savings and to sell his house in Naperville and his condominium in Florida. 

Eventually, he was forced to draw on his IRA. 

	On cross-examination, plaintiff admitted that he did not 

pursue the consulting opportunity offered in Ridge's letter of May

12, 1997; he had assumed that his termination entailed that he

could no longer consult for Brunswick.  He admitted, however, that

RSI never told him he could not consult with Brunswick after his

termination. 

	Michael Davito testified that in 1997 he was Brunswick's

director of real estate development and negotiated on behalf of

Brunswick for the purchase of RSI's assets.  During meetings with

Donovan and Ridge, Davito was told that plaintiff was the only RSI

employee who was under contract.  Davito testified that his

understanding of the February 10, 1997, letter of intent from

Donovan to Brunswick was that plaintiff had a four-year employment

contract with RSI.  Davito testified that Brunswick ceased paying

RSI under the consulting agreement once plaintiff was fired by RSI. 

	Kurt Harz, director of sales for Brunswick, testified that

during Brunswick's negotiations with RSI, Donovan asked Harz if he

thought Brunswick would assume half of RSI's employment contract

with plaintiff as part of the sale.  

	Richard Barbera, regional manager for Brunswick, testified

that plaintiff provided valuable consultation to Brunswick after

the sale.  Plaintiff was readily available for phone or in-site

consultation.  Barbera testified that after plaintiff was fired by 

RSI, he continued to assist Brunswick free of charge for two years.

	Donovan testified that, in his opinion, the purpose of the

Agreement was to provide plaintiff with retirement benefits, not to 

promise him employment.  Donovan testified that when he signed the

Agreement with plaintiff, his intention was to work "almost

forever, if health would allow it."  Donovan was diagnosed with

Parkinson's disease in October 1996 and thereafter began to

consider selling RSI.  While Donovan and plaintiff were discussing

the proposed consulting arrangement, plaintiff asked if he would be

provided health insurance under the agreement.  As of the date of

the sale, there were no employees left on RSI's health insurance

plan; Donovan and his wife were on Medicare.  RSI's insurance agent

told Donovan that the RSI policy could be continued only if at

least four people were insured under it.  The agent also told

Donovan that plaintiff would have difficulty procuring insurance

from a new carrier because of his health problems.  After "crossing

some loopholes," Donovan and his wife enrolled in the RSI plan and,

together with plaintiff and his wife, comprised the minimum of four

insurers needed to continue the plan. 

	Donovan testified that he feared that the morale of RSI

employees would diminish when they learned of the sale.  Donovan

asked plaintiff to "represent" him vis-a-vis the employees and "allay any misapprehensions."  The two decided on a particular date

on which to inform the employees of the sale.  Sometime later, but

prior to the date of the announcement, plaintiff told Donovan that

Donovan had "erred grievously" by not informing the employees of

the sale earlier.  Subsequently, news of the sale was leaked by a

Brunswick employee in South Dakota and then spread quickly to RSI.  Donovan testified that RSI employees became "very cool" toward him

and manifested "almost a dislike, hatred" for him.  Donovan felt

that plaintiff "was personally responsible for not correcting

that."  Donovan was "very upset" with plaintiff because he felt

plaintiff "betrayed a confidence and a trust."  Donovan expressed

his displeasure to plaintiff over the phone but never submitted any

written reprimand.  Because Donovan felt that plaintiff had not

represented Donovan's interests in dealing with the other

employees, Donovan demoted plaintiff from general manager and vice-

president to a regular employee on April 15, 1997.  Donovan did not

himself communicate this to plaintiff, but did so through Ridge.  

Donovan testified that there was no need to retain plaintiff as an

officer of RSI after the sale because there was nothing left for

him to do.  Donovan testified that, in his interpretation, the

statement in paragraph 10 of the Agreement that plaintiff's salary

could not be substantially reduced provided he was capable of

performing as general manager for RSI was contingent on there being

work available for plaintiff to perform, which there was not after

the sale.

	Donovan testified that on May 8, 1997, Donovan, through Ridge,

informed plaintiff that his employment with RSI was terminated. 

Asked what reason he had for demoting and then terminating

plaintiff other than his belief that plaintiff had been disloyal,

Donovan testified that plaintiff failed to submit to RSI written

reports concerning his consultations with Brunswick, as was

required.  Donovan admitted, however, that plaintiff was not

informed of the requirement of written updates until the May 12, 1997, letter from Ridge to Cassano, which was after plaintiff was

fired.  Still, Donovan testified, he expected from the beginning of

plaintiff's consulting with Brunswick that plaintiff would submit

some sort of updates, which plaintiff failed to do.  Donovan also

testified that he was displeased because plaintiff traveled to

Arizona in April without Donovan's permission.  

	Donovan testified that he believed plaintiff had already

abandoned his employment before he was officially terminated

because he had failed to communicate with RSI about his consulting. 

Donovan admitted, however, that he disagreed with nothing in

Davito's assessment of the quality of plaintiff's consulting. 

	On cross-examination, Donovan testified plaintiff had been a

"key employee" and a "critical asset" who contributed highly to

RSI's profitability.  Donovan testified that any money that RSI

does not disburse belongs to him and his wife as sole shareholders

of RSI.  Donovan admitted that RSI's failure to pay plaintiff

"leaves just that much more for" Donovan and his wife.  Donovan

testified that he was aware of plaintiff's health problems and his

March 1997 hospitalization when he fired plaintiff. 

	Over defendants' objection, plaintiff introduced evidence that

Donovan sold RSI's assets to Brunswick for $3 million and that the

real estate leases between RSI and Brunswick each required annual

payments ranging from $100,000 to $675,000 over 15 years.  In

response, Donovan testified that the sale proceeds were entirely

absorbed by RSI's debts.  Donovan also testified that there are

outstanding mortgages on the real estate leased to Brunswick. 

Asked what he invested in the entertainment centers, Donovan testified that the Carol Stream center and the land it occupies

have a combined value of $8 million compared with the annual lease

payment of $425,000 for Brunswick's use of the land--which yields

a rate of return of 5.3% per year.  

	Plaintiff's and Donovan's testimony established that, prior to

the sale of RSI to Brunswick, plaintiff's yearly compensation was

$151,521.76, which consisted of salary ($140,601.76), car allowance

($6,300), and health insurance ($4,620).  

	During Donovan's testimony, plaintiff asked the court to

reconsider its ruling barring evidence of the value of the

retirement benefits provided for in the Agreement.  The court held

that plaintiff could introduce evidence of the value of the

retirement benefits for the purpose of disputing the likelihood

that plaintiff, as Donovan claimed, elected to relinquish his

retirement benefits by abandoning his employment with RSI before

age 65.  The court, however, adhered to its previous ruling that

plaintiff could not introduce evidence that RSI had not paid the

retirement benefits. 

	Later, the following colloquy occurred during the examination

of Donovan by plaintiff's attorney:

		"Q.  Turning to the retirement income, the deferred

compensation, that was to commence after age 65, correct? 

		A.	Yes.

		Q.	That was a substantial amount of money promised to

	him, right? 

		A.	Yes.

		Q.	Now, we're not going to go into whether [plaintiff]

	is entitled to any deferred compensation.  That's for another

day.

		But is it not a fact, Mr. Donovan, that RSI has

	refused to pay the retirement income as well, and that's going

to be resolved another day?

		MR. RIDGE.  Objection, your Honor.

		THE COURT.  Sustained.  I'd ask the jury to disregard

	that."

The court then instructed the jury as follows:

		"THE COURT.  Ladies and gentlemen, at this time I'm 

	going to give you a preliminary instruction with respect to

the deferred compensation element of the agreement that has

been discussed by the witnesses in this case.

		And that instruction is, any compliance or lack thereof

	with the deferred compensation or payment after age 65 to

[plaintiff] is not an issue that you'll be deciding.  That's

an issue that will be decided in a separate forum.  So, that

is not an issue that's relevant to your consideration of the

other issues that you're deciding."

Defendants moved for a mistrial, and the trial court denied the

motion.

	Thomas Doherty, an actuary, testified that, assuming plaintiff

would have remained at RSI until age 65 and taking into account

plaintiff's life expectancy, plaintiff would have lived to collect

$391,574 in additional compensation.  Therefore, Doherty concluded,

the total value of the retirement benefits under the Agreement was

$391,574 on February 7, 2001, the date plaintiff reached age 65 and would have been eligible to receive the benefits had he remained at

RSI. 

	During closing arguments, plaintiff's attorney remarked that 

Donovan is a "wealthy man" and that he "sold RSI for about

$22,000,000 and *** gets to keep the land."  Defendants objected

without stating their grounds.  The court sustained the objection

and instructed the jury to disregard the remark.  Shortly

thereafter, plaintiff's attorney commented that Donovan and

plaintiff "[t]ogether built [RSI] into a $22,000,000 company." 

Defendants again objected but stated no grounds.  The court

sustained the objection.  Plaintiff's attorney then made the

following remarks:

		"MR. CASSANO.  Let me make a suggestion regarding

punitive damages.  

		The assets of RSI were sold to Brunswick for about 

	$22,000,000, three million up front and then the rent.

		[Plaintiff] and [Donovan] built that business as a team.

	And I submit to you that punitive damages in this case should

be half of the value of the assets, or $11,000,000."

Defendants objected, claiming the evidence did not support the

figures plaintiff proposed.  The court overruled the objection.

	During deliberations, the jury submitted the following written

question to the court: "In the subject regarding the tort count in

proving malice, is Mr. Donovan acting as a private individual or as

a corporate officer?  We need clarification."  The trial court

replied that the jury should rely on the instructions given.

	The jury returned a verdict in favor of plaintiff on counts I

and IV.  On count I (breach of contract), the jury awarded

plaintiff $580,833.41 in damages (representing approximately four

years of plaintiff's compensation at $151,521.76 per year).  On

count IV (tortious interference with contract), the jury awarded

plaintiff $2,500,000 in damages, which included $400,000 for loss

of a normal life, $400,000 for emotional distress, $700,000 for

lost compensation, and $1 million in punitive damages.  The court

also awarded attorney fees and costs in the amount of $354,575

under section 502(g)(1) of ERISA (29 U.S.C. §1132(g)(1) (1994)). 

The court further awarded prejudgment interest on the breach of

contract claim.  The court denied plaintiff's request for attorney

fees under the Attorneys Fees in Wage Actions Act (the Wage Actions

Act) (705 ILCS 225/0.01 et seq. (West 2000)).   

	Following the bench trial, the court found for plaintiff on

count VI.  The court found that RSI owed plaintiff $391,574 in

retirement benefits and awarded it paid in a lump sum. 

	Defendants filed a posttrial motion arguing several grounds

for relief.  The trial court accepted defendants' claim that the 

damages awarded under count IV for lost compensation duplicated the

damages awarded on count I.  The court therefore reduced

plaintiff's damages by $580,833.41 and denied defendants' posttrial

motion in all other respects.  Defendants appeal.  Plaintiff cross-

appeals, contesting the trial court's reduction of his damages and

the court's refusal to award fees under the Wage Actions Act.     

ANALYSIS

	I.  The Deferred Compensation Agreement 

	We address first defendants' challenge to the trial court's

summary determination that the Agreement contains an enforceable

promise of employment.  Defendants first argue that the trial court

erred in using extrinsic evidence to interpret the Agreement.  A

trial court may not employ extrinsic evidence in construing a

contract unless it is necessary to resolve an ambiguity in the

contractual terms.  Air Safety, Inc. v. Teachers Realty Corp., 185 Ill. 2d 457, 462 (1999).  We agree with defendants that the

relevant portions of the Agreement are not ambiguous.  However, we

may affirm a trial court's ruling on any basis in the record. 

People v. Everette, 141 Ill. 2d 147, 158-59 (1990).  We find in the plain language of the Agreement an alternative and sufficient basis

for concluding that the Agreement contains a binding promise of

employment.  

	The primary goal in construing a contract is to give effect to

the intent of the parties.  Omnitrus Merging Corp. v. Illinois Tool Works, Inc., 256 Ill. App. 3d 31, 34 (1993).  Paragraph 10 of the agreement provides: "It is *** agreed that [plaintiff's]

compensation may not be substantially reduced prior to his

retirement provided he is capable of performing as General Manager

for Recreational Services, Inc."  Defendants argue that this

provision merely reinforces that the "Additional Compensation" (the

difference between the monthly payment available from the IRA and

the $7,083.33 monthly payment guaranteed under the Agreement) would

be paid by RSI, not subtracted from plaintiff's salary.  In our

view this is not a reasonable construction of the contract.  The

source of the additional compensation is unequivocally identified elsewhere in the contract; paragraph 2 states that "RSI will pay 

on a monthly basis, or fund for such payments should RSI so choose,

the amount of Additional Compensation needed to provide Cress with

a combined monthly benefit of $7,083.33."  Defendants would have us

view paragraph 10 as superfluous.  We decline.  It is presumed that

all provisions in a contract were inserted for a purpose.  Magnuson v. Schaider, 183 Ill. App. 3d 344, 358 (1989).  If paragraph 10 was included merely to underscore that RSI was obligated to supply all

of the additional compensation, then the parties certainly would

have stressed that plaintiff's compensation could not be reduced at all.  They did not, however, but instead provided that plaintiff's salary could not be substantially reduced.  Thus, defendants fail to persuade us that the parties inserted paragraph 10 for the sake

of redundancy. 

	Paragraph 10, we note, does not define "retirement" or

otherwise indicate how long RSI is obligated not to substantially

reduce plaintiff's salary.  Plaintiff directs us to the second of

the contract's recitals: "WHEREAS, RSI wishes to retain the

services of [plaintiff] until his retirement at age sixty-five." 

Reading this recital in concert with paragraph 10, plaintiff

concludes that the Agreement guaranteed that his salary would not

be substantially reduced prior to his reaching age 65.  Defendants

argue that this recital is a "[a] statement of expectation" that

"does not amount to a binding promise of employment."  Defendants

are correct that recitals generally are considered nonbinding

explanations of the circumstances surrounding the execution of a

contract.  See McMahon v. Hines, 298 Ill. App. 3d 231, 237 (1998).  Plaintiff, however, asks us to view the recital not as a statement

of obligation in itself but as an aid to construing an obligation

elsewhere in the contract.  "Resort will be had to the recitals of

a contract if necessary to determine the intention of the parties

and of the operative provisions of the agreement."  In re Estate of Anderson, 195 Ill. App. 3d 644, 649 (1990).  When interpreting a contract, a court must consider the document as a whole, rather

than focus upon isolated portions.  Spectramed Inc. v. Gould Inc., 304 Ill. App. 3d 762, 770 (1998).  The recital, which expresses

RSI's wish to retain plaintiff until "his retirement at age sixty-

five," indicates the duration and scope of RSI's obligation in

paragraph 10 to maintain plaintiff's salary.  We agree with

plaintiff that paragraph 10, read in light of the recital, evinces

the parties' intent that RSI not substantially reduce plaintiff's

salary prior to his reaching age 65.  The promise entails,

logically, that RSI cannot terminate plaintiff prior to his

reaching age 65.   

	We recognize that paragraph 3 of the Agreement provides that

RSI will pay plaintiff the additional compensation upon his

reaching age 65, "whether or not he chooses to retire."  We agree

with defendants that paragraph 3 clearly indicates that plaintiff

need not retire from RSI at age 65 whereas the recital apparently

contemplates plaintiff retiring at age 65.  Nonetheless, we do not

believe that paragraph 3 undercuts plaintiff's construction of

paragraph 10.  Given that plaintiff was to receive the additional

compensation upon reaching 65, we believe it is reasonable to infer

that the parties' intention in drafting the recital was not to fix a precise termination date for the employment relationship but to

assure plaintiff that RSI would employ him at least until age 65,

when he would begin receiving the additional compensation.  We

accept this inference notwithstanding the implication in the

recital that plaintiff would retire at age 65, because the

obligations and promises of the parties in the operative portion of

a contract prevail over a preliminary recital or preamble (Brookens v. Peabody Coal Co., 11 Ill. 2d 322, 325 (1957)).  Thus, we conclude that paragraph 10, taken together with the recital,

established an enforceable promise on the part of RSI to employ

plaintiff at least until he reached age 65. 

	Defendants next contend that an agreement to employ plaintiff

at least until age 65 is of indefinite duration and therefore not

binding.  Illinois is an employment-at-will state.  Harris v. Eckersall, 331 Ill. App. 3d 930, 934 (2002).  Absent a specific contract to the contrary, an employment relationship may be

terminated at any time and for any reason by either party (with

limited exceptions not relevant here).  Harris, 331 Ill. App. 3d at 934.  An employment agreement that provides for employment of

indefinite duration is terminable at will.  Jesperson v. Minnesota Mining & Manufacturing Co., 183 Ill. 2d 290, 293 (1998).  One manner in which parties may alter the at-will relationship is to

provide a specific temporal duration of employment.  See, e.g., Berutti v. Dierks Foods, Inc., 145 Ill. App. 3d 931, 933 (1986) (statement, " 'Guaranteed salary for twelve months of $750.00 per

week,' " created  employment contract).  However, a specific

temporal duration of employment need not be provided to overcome the presumption of at-will employment.  An employment agreement

articulating cognizable events upon which termination may occur is

not perpetual and terminable at will and will be upheld even in the

absence of a specified termination date.  Peters v. Health & Hospitals Governing Comm'n, 91 Ill. App. 3d 1104, 1107 (1980), rev'd on other grounds, 88 Ill. 2d 163 (1981); Dawson v. W.&H. Voortman, Ltd., 853 F. Supp. 1038, 1042 (N.D. Ill. 1994) ("Under Illinois law, a contract provision that fails to specify the length

of the term of employment, but that does set forth conditions upon

which termination may be based, is not terminable at will, but is

terminable upon the existence of those conditions"); see also

Donahue v. Rockford Showcase & Fixture Co., 87 Ill. App. 2d 47, 54 (1967) (provision that plaintiff's position as salesman " 'would be

automatically cancelled' " if sales were less than $25,000 per year

created a binding contract because it set "a condition, upon the

happening of which, the contract would have been terminated"). 

Paragraph 10 of the Agreement conditions the salary guarantee on

plaintiff's capacity to perform his duties as general manager of

RSI and, therefore, creates a binding employment agreement.  See

Dawson, 853 F. Supp. at 1042 (provision that plaintiff's position as salesman would continue as long as he "is willing and able to

conduct his business according to the policies and procedures"

contained in an employee handbook created binding employment

contract).

	Defendants next argue that any enforceable contract for

employment in the Agreement is so intertwined with the provisions

relating to  retirement compensation that plaintiff's contract and tort claims based on the employment contract are preempted by

ERISA.  Before reaching the merits of defendants' preemption

argument, we address defendants' claim that plaintiff waived his

argument against preemption because he argued the very opposite

earlier in this case.  In his motion to remand this case to state

court after defendants had removed it to federal court, plaintiff

argued that removal was improper because defendants did not file

their notice of removal within the time allowed by statute after

they received a pleading from plaintiff that reflected a basis for

removal.  Plaintiff stated that the basis for removal evident in

the allegations of his complaint was that ERISA preempted

plaintiff's state law claims.  Defendants claim that "[t]he law

does not permit parties to take one position at one stage of a case

and a diametrically opposite position in another case.  Parties are

bound by their earlier position."  Defendants claim to have derived

this proposition from Holzer v. Motorola Lighting, Inc., 295 Ill. App. 3d 963 (1998), but we read Holzer much differently.  In Holzer, the appellate court held that the appellants waived their argument because they failed to raise it in the court below. 

Holzer, 295 Ill. App. 3d at 978.  Defendants rely on the court's incidental remark that the appellants not only failed to raise the

argument previously but in fact pressed the "diametric opposite" of

the argument in the court below.  See Holzer, 295 Ill. App. 3d at 978.  This remark, in our view, was nonbinding obiter dictum.  See Cates v. Cates, 156 Ill. 2d 76, 80  (1993) (obiter dictum is "a remark or opinion uttered by the way," which is "not binding as

authority or precedent within the stare decisis rule").  Although defendants do not label it as such, the proposition they claim to

derive from Holzer sounds much like the doctrine of judicial estoppel, which provides that, when a party assumes a certain

position in a legal proceeding, that party is estopped from

assuming a contrary position in a subsequent legal proceeding.  See

People v. Coffin, 305 Ill. App. 3d 595, 598 (1999).  However, as Holzer itself acknowledges, judicial estoppel does not apply to legal positions (Holzer, 295 Ill. App. 3d at 977) and therefore cannot be raised against plaintiff's legal position that his

contract and tort claims are not preempted by ERISA.  

	Reaching the merits of defendants' preemption argument, we

note that section 514(a) of ERISA preempts "any and all State laws

insofar as they may now or hereafter relate to any employee benefit

plan" falling within ERISA's scope.  29 U.S.C. §1144(a) (1994). 

"Employee benefit plan" includes "an employee welfare benefit plan

or an employee pension benefit plan or a plan which is both an

employee welfare benefit plan and an employee pension benefit

plan."  29 U.S.C. §1002(3) (1994).  An "employee pension benefit

plan" is "any plan fund, or program" that "provides retirement

income to employees."  29 U.S.C. §1002(2)(A)(i) (1994).  An

"employee welfare benefit plan" is:

	"any plan, fund, or program *** established or maintained by

an employer or by an employee organization, or by both, to the

extent that such plan, fund, or program was established or is

maintained for the purpose of providing for its participants

or their beneficiaries, through the purchase of insurance or

otherwise, *** medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident,

disability, death or unemployment, or vacation benefits,

apprenticeship or other training programs, or day care

centers, scholarship funds or prepaid legal services."  29

U.S.C. §1002(1)(A) (1994).     

"State law," for purposes of ERISA preemption under section 514(a),

includes "all laws, decisions, rules, regulations or  other State

action having the effect of law."  29 U.S.C. §1144(c) (1994).  A

state law "relates to" a covered employee benefit plan for purposes of section 514(a) of ERISA if it has a "connection with" or

"reference to" such a plan.  California Division of Labor Standards Enforcement v. Dillingham Construction, N.A., Inc., 519 U.S. 316, 324, 136 L. Ed. 2d 791, 799, 117 S. Ct. 832,  837 (1997).  A state law has a "reference to" an ERISA plan if the law acts immediately

and exclusively upon ERISA plans or where the existence of ERISA

plans is essential to the law's operation.  Dillingham, 519 U.S. at 325, 136 L. Ed. 2d at 799, 117 S. Ct. at 838.  In determining

whether a state law has a "connection with" an ERISA plan, the

court must examine the objectives of ERISA and the nature of the

effect of the particular state law on ERISA plans.  Dillingham, 519 U.S. at 325, 136 L. Ed. 2d at 799-800, 117 S. Ct. at 838.  The

party claiming preemption of state common law claims (such as

plaintiff's common law and tort claims) bears "the considerable

burden of overcoming 'the starting presumption that Congress does

not intend to supplant state law.' " De Buono v. NYSA-ILA Medical & Clinical Services Fund, 520 U.S. 806, 814, 138 L. Ed. 2d 21, 29, 117 S. Ct. 1747, 1752 (1997), quoting  New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co., 514 U.S. 645, 654, 131 L. Ed. 2d 695, 704, 115 S. Ct. 1671, 1676 (1995). 

Whether a federal law preempts a state law is a question of law;

the trial court's determination of that issue is reviewed de novo.  Kernats v. Smith Industries Medical Systems, Inc., 283 Ill. App. 3d 455, 458-59 (1996).   	

	Defendants' argument for the preemption of plaintiff's

contract and tort claims is that the provisions in the Agreement

relating to employment compensation "cannot sensibly be divorced

from the parts that deal with payments upon retirement."  We

rejected this argument above in holding that the provisions in the

Agreement relating to plaintiff's preretirement compensation

operate entirely independently of the provisions relating to

retirement income.  

	Defendants cite several cases to support their preemption

argument, all of which we find inapposite.  The first two, Arnold v. Babcock & Wilcox Co., 123 Ill. 2d 67 (1988), and Dranchak v. Akzo Nobel, Inc., 88 F.3d 457 (7th Cir. 1996), are easily distinguishable because the employment benefits at issue in both

cases were all retirement benefits.  See Arnold, 123 Ill. 2d at 71- 72 (claim for severance benefits); Dranchak, 88 F.3d at 459 (claim for "extra pension credits, unreduced payments in the event of

early retirement (or discharge), the continuation of health

benefits under the firm's welfare plan, and similar emoluments"). 

Neither Arnold nor Dranchak concerned preretirement compensation and neither, therefore, has any bearing on how we should view the relation between the provisions in the Agreement dealing with

preretirement compensation and retirement income. 

	Defendants also cite Ferrer v. Banco Central Hispano-Puerto Rico, Inc., 142 F. Supp. 2d 190 (D. P.R. 2001).  In Ferrer,  the plaintiff challenged the removal of his action to federal court. 

According to the court, the complaint sought "specific compliance

and damages related to a contract under the Banco Central Hispano

Employees' Pension Plan."  Ferrer, 142 F. Supp. 2d at 192.  The court noted that the plaintiff stated in his complaint that his

claim concerned "a salary and certain fringe benefits, among which

was included a pension plan."  Ferrer, 142 F. Supp. 2d at 193.  The district court held that the removal was proper because the

plaintiff's claim, although styled purely as a state law claim, was

preempted by ERISA because the "claim not only is connected to the

pension plan; rather, the plan is the basis for [p]laintiff's

claim."  Ferrer, 142 F. Supp. 2d at 194.

	Ferrer is unhelpful in the case before us.  The Ferrer court did not indicate at all the relation between the plaintiff's salary

claim and his claim for pension benefits.  There was no reference,

for instance, to whether plaintiff's pension benefits were tied in

any way to his salary.  Without this factual background, Ferrer provides no guidance in a case such as this where an argument for

preemption is based on the claim that provisions in the same

contract relating to employment compensation and retirement

benefits are inextricably related.  

	Since plaintiff's claim for employment compensation is not

related to his claim for retirement benefits, we hold that there is

no preemption in this case. 

II.	 Issues Concerning Pleading and Proof of Tortious

 Interference With Contract  

	Defendants advance several arguments related to plaintiff's

pleading and proof of his claim for tortious interference with

contract.  To succeed in proving that the defendant committed

tortious interference with contract, the plaintiff must plead and

prove: (1) the existence of a valid and enforceable contract

between the plaintiff and another; (2) the defendant's awareness of

the contractual relationship between the plaintiff and another; (3)

the defendant's intentional and unjustifiable inducement of a

breach of the contract; (4) a breach of contract by the other

caused by the defendant's wrongful acts; and (5) damage to the

plaintiff.  Grund v. Donegan, 298 Ill. App. 3d 1034, 1038 (1998).

	In addition, where the plaintiff alleges that the  defendant,

in his capacity as a corporate officer, tortiously interfered with

a contract between the plaintiff and that corporation, the

plaintiff must plead that the defendant acted outside the qualified

privilege he enjoys as a corporate officer to influence the actions

of the corporation.  HPI Health Care Services, Inc. v. Mt. Vernon Hospital, Inc., 131 Ill. 2d 145, 156 (1989); Mittelman v. Witous, 135 Ill. 2d 220, 249 (1989).  "This qualified privilege does not

apply where officers act solely for their own gain or solely for the purpose of harming [the] plaintiff since such conduct is not

undertaken to further the corporation's interest."  (Emphasis in original.)  Mittelman, 135 Ill.2d at 249.  The rule in Mittelman is derived from a statement in HPI.  See Mittelman, 135 Ill. 2d at 249; HPI, 131 Ill. 2d at 158-59 ("[A] hospital management company, whose privilege is based upon the management company's role in

exercising business judgment on behalf of the company's hospital,

would not be justified in inducing a breach of contract solely for

the management company's gain, or solely for the purpose of harming

the plaintiff, since such conduct would not have been done to

further the hospital's interests").  HPI's statement in turn is derived from remarks in an appellate court case.  See HPI, 131 Ill. 2d at 159, citing Certified Mechanical Contractors, Inc. v. Wight & Co., 162 Ill. App. 3d 391, 401 (1987) ("If an architect induces a breach of contract, not to further its principal's best interest,

but with the intent to harm the other party to its principal's

contract or to further its personal goals, the architect is liable

for tortious interference with contract").

	Defendants argue first that plaintiff's claim for tortious

interference with contract was deficient as a matter of law because

"there simply was no allegation [in the complaint] *** claiming ***

that [Donovan's] conduct harmed RSI."  This is false.  Plaintiff

alleged in his complaint that plaintiff's termination as an

employee of RSI led Brunswick to cease its payments to RSI under

the consulting payment.  Plaintiff further alleged that these

payments "would have defrayed part of RSI's cost of honoring its

obligations to plaintiff under RSI's contract with plaintiff." 

Therefore, plaintiff averred, "Donovan, in inducing RSI to

terminate plaintiff, was clearly acting against the best interest of RSI and instead acting to annoy and injure plaintiff."  These

clearly are allegations that Donovan harmed RSI. 

	At any rate, we conclude from Mittelman, HPI, and Wight that a plaintiff who claims that the defendant's conduct exceeded the

qualified privilege for corporate officers need not plead and prove

that the defendant's conduct actually harmed the corporation.  The

quotations from these cases show that Illinois law forbids a

corporate officer from interfering with a contract between his

corporation and the plaintiff solely out of self-interest or solely 

from a desire to harm the plaintiff because such action done with

such motives is ipso facto not in the corporation's interest.  Specific harm to the corporation need not be pleaded or proved. 

Therefore, we reject defendants' argument that plaintiff

inadequately pleaded tortious interference with contract by failing

to indicate specifically how Donovan harmed RSI.  

	Defendants next argue that, as a matter of law, Donovan cannot

be held liable for tortious interference with contract because

plaintiff's allegation is that Donovan induced RSI to breach the

Agreement in his capacity as president of RSI.  Acting in that

capacity, Donovan was, defendants argue, indistinguishable from

RSI.  Because a defendant cannot tortiously interfere with a

contract to which he is a party (Fiumetto v. Garrett Enterprises, Inc., 321 Ill. App. 3d 946, 957 (2001)), defendants conclude that plaintiff's claim fails as a matter of law.       	

	We disagree.  The mere fact that the defendant was acting as

a corporate officer in inducing a breach of his corporation's 

contract will not render the defendant and the corporation identical for purposes of tortious interference with contract.

Under Mittelman, 135 Ill. 2d 220, the question of whether a corporate officer is identical with a corporation for purposes of

tortious interference with contract is the same question as whether

the officer acted within the qualified privilege in inducing the

breach of the contract between the plaintiff and the officer's

corporation.  In Mittelman, the plaintiff sued defendant for tortious interference with a business advantage, claiming that

defendant, as the president of the plaintiff's law firm, wrongfully

induced the firm to fire the plaintiff.  The defendant asserted in

response that he was not a "third party" to the plaintiff's

contract with the law firm and, as a matter of law, could not be

held liable for tortious interference with a business advantage. 

The court considered the issue of identity the same as whether the

defendant's conduct fell within the "qualified privilege" doctrine,

which holds that "[a] corporate officer may, for a proper business

purpose and in good faith, influence the actions of the

corporation."  Mittelman, 135 Ill. 2d at 249.  The court noted that if the defendant failed to act in the corporate interest in firing

the plaintiff, then "he and the corporation are not one and the

same for purposes of tortious interference analysis."  Mittelman, 135 Ill. 2d at 250.  Therefore, contrary to defendants' position,

a corporate officer's claim that he is not distinguishable from the

corporation for purposes of tortious interference with contract

hinges, as does the question of whether the qualified privilege

applies, on whether the officer was acting in the corporation's

interest or in his own interest in inducing the breach of the corporation's contract.  We address below whether the evidence  at

trial satisfied the elements of tortious interference with

contract, including whether the qualified privilege applied to

Donovan's actions.   

	Fiumetto, upon which defendants rely, is a recent case from this district.  In Fiumetto, Garrett, president and sole shareholder of Garrett Enterprises, terminated the plaintiff's

employment with Garrett Enterprises.  The plaintiff brought a claim

against Garrett individually for tortious interference with a

business advantage.  The appellate court held that the claim was

insufficient as a matter of law:  

	"[P]laintiff has alleged that Garrett was acting in her

official capacity when she discharged plaintiff.  It is well

established that a party cannot tortiously interfere with a

contract to which he is a party. [Citation.]  Since Garrett

was acting in her official capacity, she was acting on behalf

of the corporation.  Thus, plaintiff's claim amounts to an

assertion that the corporation tortiously interfered with a

contract to which it was a party.  This claim must be

rejected."  Fiumetto, 321 Ill. App. 3d at 957.

	Fiumetto did not apply the qualified privilege analysis set forth in Mittelman.  The sole allegation alluded to in Fiumetto was that Garrett was acting in her official capacity in terminating the

plaintiff.  As noted above, the burden is on the plaintiff to plead

facts demonstrating that the defendant acted outside the scope of

his or her qualified privilege in order to benefit from the

doctrine set forth in Mittelman.  HPI Health Care, 131 Ill. 2d at 156.  There is no indication that the plaintiff in Fiumetto pleaded that Garrett acted outside the qualified privilege in terminating

the plaintiff.  Hence, the Fiumetto court did not reach the issue of whether Garrett's termination was not in the interest of Garrett

Enterprises.  Fiumetto does not hold, as defendants suggest, that a corporate officer may never be found to have tortiously

interfered with a contract between the corporation and a third

party because corporate officers are always indistinguishable from

their corporations for purposes of the tort.  Rather, Fiumetto simply had no occasion to determine whether the exception to the

default rule of indistinguishability applied in that case. 

	Defendants next argue that the jury instructions on tortious

interference with contract were, at best, "confusing" and, at

worst, contrary to law.  First, defendants argue that the

instructions were misleading because (1) the general issues

instruction that stated the factual contentions of the parties

relating to the tort count contained no reference that Donovan

enjoyed a qualified privilege in acting as a corporate officer and

(2) the instruction setting forth the elements of tortious

interference with contract did not refer to a "qualified" or

"conditional" privilege but stated merely that plaintiff must prove

that Donovan acted with "malice."  

	We see no prejudicial irregularity in the jury instructions. 

In addition to the above instructions, the jury received an

instruction that discussed in detail the parameters of a corporate

officer's qualified privilege and unequivocally conveyed that a

finding that Donovan's actions were not clothed with the qualified privilege was equivalent to a finding that Donovan acted with the

"malice" referenced in the elements instruction.  The manifest

import of this definitional instruction was that the jury could not

find in favor of plaintiff on the tort count without first finding

that the qualified privilege did not apply to Donovan's actions. 

The failure of the issues instruction to mention the qualified

privilege did not introduce confusion and does not warrant

reversal.  See King v. Clemons, 264 Ill. App. 3d 138, 143 (1994) ("A reviewing court will not reverse a cause on the basis of an

improper instruction unless it is able to conclude that the

instruction clearly misled the jury").       

	Defendants further claim that the following portion of the

definitional instruction on qualified privilege contains a

misstatement of the law:

		"The Plaintiff may prove 'malice' by showing that the 

	defendant Donovan's interference with Plaintiff's employment

contract with RSI was unjustified, which means Donovan acted

solely for his own gain or solely for the purpose of harming

the Plaintiff, and acted contrary to the best interest of the corporation."  (Emphasis added.)    

	Defendants contend that the highlighted clause is contrary to

the law.  We agree.  As noted above, a plaintiff wishing to prove

that the qualified privilege did not apply to a corporate officer's

inducement of a breach of contract need only show that the officer

acted solely out of self-interest or solely to harm the plaintiff. 

The plaintiff need not plead or prove any specific detriment to the

corporation.  Defendants fail to convince us, however, that they were harmed by the inclusion of the additional element in the jury

instructions.  Their argument, after all, is that the instructions

inappropriately augmented, not diminished, plaintiff's burden of

proof.  Plaintiff prevailed on his tort claim despite this heavier

burden; we can assume, safely, that he would have prevailed had the

unnecessary element not been included.  Therefore, we see no

prejudice to defendants.  See People v. Alvine, 173 Ill. 2d 273, 290 (1996) ("An error in a jury instruction is harmless if the

result of the trial would not have been different if a proper

instruction had been given").

	Next, defendants argue that the trial court erred in refusing

to redact from the jury's copy of the Agreement the portions

relating to retirement benefits.  Defendants argue that the

"Agreement's terms regarding the deferred retirement compensation

were irrelevant to the matters before the jury and inevitably would

lead the jury to infer that the defendants had breached the

contract."  We disagree.  The admissibility of evidence is a matter

within the sound discretion of the trial judge, whose decision will

not be reversed absent a clear abuse of discretion.  Hilgenberg v. Kazan, 305 Ill. App. 3d 197, 204 (1999).  We see no abuse of discretion here.  The trial court reasoned, soundly, that the

redactions would render the Agreement virtually incomprehensible. 

Additionally, the trial court gave clear instructions that the jury

was not to consider whether defendants breached the portions of the

Agreement pertaining to retirement benefits.  

	Next, defendants argue that the court erred in declining to

answer the question posed by the jury as to whether Donovan was acting in his official capacity as president of RSI in terminating

plaintiff.  Generally, a trial court has a duty to answer a

question from the jury that seeks "clarification on a point of law

arising from facts about which there is doubt or confusion." 

People v. Millsap, 189 Ill. 2d 155, 160 (2000).  However, a trial court has discretion not to answer such a question "when the

instructions are readily understandable and sufficiently explain

the relevant law, where further instructions would serve no useful

purpose or would potentially mislead the jury, when the jury's

inquiry involves a question of fact, or where the giving of an

answer would cause the court to express an opinion that would

likely direct a verdict one way or another."  Millsap, 189 Ill. 2d at 161.  

	The instructions on tortious interference with contract were

clear and left no margin for doubt as to how plaintiff could prove

that Donovan had acted with "malice."  The trial court, therefore,

did not abuse its discretion in refusing to answer the jury's

question.  

	Next, defendants assert that the trial court did not

adequately instruct the jury following plaintiff's attorney's

remark during his examination of Donovan that RSI had not yet paid

plaintiff any retirement compensation under the Agreement. 

Defendants contend that the court's instructions merely

"parrot[ed]" the improper remark and "exacerbated" its prejudicial

effect when it instructed the jury that the retirement aspects of

the Agreement were not relevant to the issues before the jury.  We

disagree with this characterization; the trial court did not  remotely parrot or exacerbate any ill effects from counsel's

remark.  Rather, the court not only instructed the jury to

disregard the comment but also emphasized in clear terms that the

issue of whether RSI had failed to pay plaintiff the retirement

benefits under the Agreement was not relevant to the issues before

the jury.  The admonition and cautionary instruction combined to

convey unequivocally that the jury was not to infer from any of the

facts in evidence that RSI failed to pay plaintiff his retirement

benefits.  See In re Estate of Kline, 245 Ill. App. 3d 413, 431 (1993) (immediate cautionary instruction cured any prejudice from

improper remark).  

	Next, defendants assert that the trial court erred in denying

their motion for judgment notwithstanding the verdict.  Defendants

claim there was insufficient evidence to support the jury's finding

that Donovan tortiously interfered with plaintiff's contract with

RSI.  Defendants argue that the "record amply reflects that

[Donovan's] age, health, and his belief that [plaintiff] was

disloyal, as well as his belief that the [Agreement] was not an

employment contract, were the motivating factors for his actions

rather than any specific intent to harm [plaintiff]." 

Significantly, defendants do not argue that Donovan did not breach

the Agreement.  (In the court below they argued that plaintiff

abandoned his employment with RSI, but they have not reasserted

that position on appeal.)  They argue, rather, that Donovan was not

aware that the Agreement was a contract.  They contend,

alternatively, that Donovan was clothed with the qualified privilege in terminating plaintiff because Donovan acted out of

neither self-interest nor ill will.  

	Plaintiff claims that Donovan acted solely in his self-

interest in terminating plaintiff because Donovan and his wife are

the sole shareholders of RSI and thus Donovan stood to gain

personally from depriving plaintiff of compensation and retirement

benefits.  Plaintiff argues in the alternative that Donovan acted

solely to harm plaintiff.  Plaintiff claims that Donovan

demonstrated ill will in (1) concluding without evidence that

plaintiff was responsible for not abating employee discontent that

developed after news of the sale leaked; (2) firing plaintiff

despite knowing of plaintiff's health problem; and (3) avoiding

plaintiff after the sale to Brunswick and using Ridge as a

mouthpiece to communicate the demotion and termination. 

	A judgment notwithstanding the verdict should not be granted

unless the evidence, when viewed in the light most favorable to the

opponent, so overwhelmingly favors the movant that no contrary

verdict could possibly stand.  Kamp v. Preis, 332 Ill. App. 3d 1115, 1120 (2002).  A judgment notwithstanding the verdict is

inappropriate in situations where  reasonable minds might differ as

to inferences or conclusions to be drawn from the facts presented. 

Kamp, 332 Ill. App. 3d at 1120.  A reviewing court must not substitute its judgment for the jury's or reweigh the evidence or

determine the credibility of the witnesses.  Rios v. City of Chicago, 331 Ill. App. 3d 763, 769 (2002).  A trial court's denial of a motion for judgment notwithstanding the verdict is reviewed de novo.  Kamp, 332 Ill. App. 3d at 1120.  

	The evidence at trial supports the jury's finding in favor of

plaintiff on the tort claim.  While Donovan emphatically denied at

trial that he ever believed that the Agreement contained an

employment contract, there was evidence that he thought the very

opposite when he and plaintiff negotiated the Agreement and, later,

when RSI and Brunswick negotiated over whether Brunswick would

assume RSI's contractual obligations to plaintiff.  The jury

reasonably could have found that Donovan was aware that the

Agreement constituted an employment contract.  As to whether

Donovan was protected by the qualified privilege in inducing RSI to

breach the Agreement (which, as noted above, is the same question

as whether Donovan was indistinguishable from RSI for purposes of

the tort), Donovan offered two reasons for terminating plaintiff:

(1) he considered plaintiff disloyal because plaintiff failed to

improve employee morale at RSI after news of the sale leaked; and

(2) plaintiff failed to report to RSI on his consulting activities

as required and also traveled to Arizona without Donovan's

permission.  Donovan, however, never testified that he told

plaintiff of the reporting requirement before plaintiff was fired. 

Nor was Donovan specific as to how plaintiff failed to curb the

poor morale at RSI; he offered only very general attributions of

blame. 

  	Plaintiff offered evidence challenging Donovan's position. Plaintiff testified that Donovan, in describing to plaintiff the

nature of plaintiff's duties under the consulting agreement, stated

that plaintiff should do whatever Brunswick asked and "satisfy" 

Brunswick.  Plaintiff testified that he was given no further instruction.  Plaintiff specifically denied that he was ever told

to report to RSI about his consulting activities.  Plaintiff also

testified that his termination was without notice.  Barbera,

regional manager for Brunswick, testified that plaintiff was

readily available to Brunswick for consulting and provided valuable 

advice.  Donovan accepted Barbera's positive assessment of

plaintiff's consulting and affirmed that plaintiff was a "critical

asset" of RSI.  

	The jury reasonably could find, based on this evidence, that

plaintiff was a valuable RSI employee whom Donovan fired for no

credible reason other than to harm plaintiff.  Therefore, the trial

court was correct in denying defendants' motion for judgment

notwithstanding the verdict.

	    		III. Issues Concerning the Award of Punitive Damages

	Defendants challenge the award of punitive damages on various

grounds.  Plaintiff argues that defendants waived their challenge

to the punitive damages award by failing to raise it in their

posttrial motion.  We disagree; defendants clearly preserved the

issue in their posttrial motion. 

	We address first defendants' argument that Donovan's conduct

did not warrant an award of punitive damages.  Punitive damages may

be awarded "when torts are committed with fraud, actual malice,

deliberate violence or oppression, or when the defendant acts

willfully, or with such gross negligence as to indicate a wanton

disregard of the rights of others."  Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 186 (1978). Three factors are relevant in assessing an

award of punitive damages: (1) the nature and enormity of the wrongdoing by the defendant, (2) the potential liability of the

defendant for multiple claims by numerous persons affected by the

wrongful conduct, and (3) the financial status of the defendant.  Hollowell v. Wilder Corp. of Delaware, 318 Ill. App. 3d 984, 990 (2001). "If the character of the conduct is of the sort that calls

for deterrence and punishment over and above that provided by a

compensatory award, then it is appropriate to allow a jury to

assess punitive damages, subject to the limitation that such an

award is not founded on the mere prejudice of the jury."  Winters v. Greeley, 189 Ill. App. 3d 590, 599 (1989).  "[P]unitive damages are not favored in the law, and the courts must take caution to see

that punitive damages are not improperly or unwisely awarded."

Kelsay, 74 Ill. 2d at 188.  An award of punitive damages will not be overturned on appeal unless it is clearly the result of passion,

partiality, or corruption.  Ford v. Herman, 316 Ill. App. 3d 726, 733 (2000).    

	Although the evidence supports a finding that Donovan

tortiously interfered with plaintiff's contract, there was no

support for a finding that Donovan's conduct was so egregious as to

warrant punitive damages.  In other words, plaintiff did not prove

any acts of Donovan that exceeded what was necessary to establish

the tort itself.  See Kritzen v. Flender Corp., 226 Ill. App. 3d 541, 554 (1992) ("[C]ourts should award punitive damages only if

the defendant's misconduct is above and beyond the conduct needed

for the basis of the action").  Plaintiff claims that Donovan's

conduct had, in addition to what was necessary to establish the

tort, the "flavor of extortion."  Plaintiff suggests that Donovan offered plaintiff the consulting agreement to force him  into the

dilemma of either (1) accepting a contract less appealing than the

Agreement, or (2) repudiating that offer, thus giving Donovan

grounds for claiming that plaintiff abandoned his employment with

RSI.  This assertion is purely speculative, as there was no

evidence at trial as to how Donovan would have acted had plaintiff

declined the consulting arrangement.  Contravening the claim that

Donovan employed the consulting agreement to force plaintiff out of

RSI was Donovan's testimony, unrebutted by plaintiff, that Donovan

went to some lengths to secure health insurance for plaintiff while

he consulted with Brunswick.  We vacate the award of punitive

damages because the evidence did not warrant any award of punitive

damages.

	Because we hold that Donovan's conduct did not warrant any

award of punitive damages, we do not reach defendants' contention

that plaintiff's actuarial evidence concerning the value of the

retirement benefits under the Agreement "improperly suggest[ed]

that the loss of that value was an item for which the jury should

punish the defendants."  Nor do we reach defendants' argument that

the trial court erred in admitting evidence and allowing statements

at closing argument that inaccurately reflected RSI's financial

condition.      

  			IV. The Trial Court's Award of Pension Benefits Under the

Agreement

 	The Agreement guaranteed that, if plaintiff remained in RSI's employ until age 65, he would receive upon his retirement a monthly

payment of $7,083.83 for the remainder of his life.  The Agreement provided that if the value of the IRA, projected actuarially from

the date of plaintiff's retirement at age 65, was insufficient to

provide plaintiff a monthly payment of $7,083.83 for the remainder

of his life, then RSI would supply the difference each month.  At

the bench trial on the ERISA count, plaintiff called Thomas

Doherty, an actuary, to testify as to what amount the IRA would

supply each month according to actuarial computations.  According

to Doherty, the Agreement provided that the IRA's monthly output is

to be projected based on the value of the qualified plan benefits, i.e., the value of the IRA when plaintiff reached age 65.  The Agreement prescribed the actuarial calculations by which the value 

of the qualified plan benefits is translated into the actuarial

equivalent value, or the monthly yield.  Doherty explained that the

actuarial equivalent value of the IRA is to be computed using the

1994 Male Uninsured Pensioner Mortality Table and 120% of the

"applicable interest rate," defined in the Agreement as the

interest rate as of the first day of the month that plaintiff

reached age 65 (February 2001).  Doherty noted that 120% of the

applicable interest rate as of February 1, 2001, was 5.70%.  The

IRA's value as of February 28, 2001, was $229,547.  However,

Doherty did not calculate the actuarial equivalent value using this

figure.  Doherty testified that, because plaintiff had withdrawn

certain amounts from the IRA beginning in 1995 following his

termination, Doherty thought it appropriate to add these

withdrawals back into the IRA for purposes of calculating the

actuarial equivalent value.  The withdrawals  were in the following

amounts:

Calendar Year					IRA Withdrawal 

	1995							$2,415 

	1996							 1,771 

	1997							 3,797

	1998							 4,622

	1999							 5,362

	2000							 235,000

	2001 (YTD: 1/31/01)				 50,000.

Doherty testified that he also added back the interest on these

withdrawals per the yearly rates of return from 1996 through

January of 2001.  The rates were as follows:

	Calendar Year					Rate of Return

	1996							  8.63%

	1997							 35.12

	1998							 15.75

	1999							 12.88

	2000							-13.16

	2001 (YTD: 1/31/01)				  3.85.

Using these rates of return, Doherty calculated a total of $300,893

in add-backs, which, added to $229,547 (the value of the IRA as of

February 28, 2001), equaled $530,440.  This figure was the value of

the qualified plan benefits, Doherty explained.  To calculate the

actuarial equivalent value, or the projected monthly payment

afforded by the IRA, Doherty used the applicable interest rate,

5.70%, and the Unisex Mortality Table of 1984.  This calculation

yielded a projected monthly payment of $4,223.25 over plaintiff's lifetime.  Doherty concluded that RSI owed plaintiff a monthly

payment of $2,860.58 over his lifetime to meet the Agreement's

guarantee of a monthly payment of $7,083.33.  Next, using a

mortality table and further actuarial assumptions, Doherty

calculated the total amount of additional compensation that

plaintiff would receive over his lifetime.  Doherty calculated this

figure to be $391,574.  The trial court awarded plaintiff a lump

sum in that amount.  	

	Defendants challenge Doherty's calculation of the monthly

payment on two grounds.  First, they argue that the trial court

should not have accepted Doherty's use of add-backs because the

Agreement is silent as to add-backs.  A reviewing court will not

disturb a trial court's finding as to damages unless its measure of 

damages was erroneous as a matter of law or the trial court ignored

the evidence.  First Baptist Church of Lombard v. Toll Highway Authority, 301 Ill. App. 3d 533, 543 (1998).  In a breach of contract action, the proper measure of damages is the amount of

money that will place the injured party in as satisfactory a

position as he would have been in had the contract been performed. 

Equity Insurance Managers of Illinois, L.L.C. v. McNichols, 324 Ill. App. 3d 830, 837 (2001).  

	The add-backs represented amounts that plaintiff testified he

withdrew from the IRA to sustain himself and his wife after RSI

terminated his employment.  Therefore, they were part of the proper

measure of damages.  "In Illinois, parties can limit remedies and

damages for breach if their agreement so states and no public

policy bar exists" (Rayner Covering Systems, Inc. v. Danvers Farm Elevator Co., 226 Ill. App. 3d 507, 512 (1992)), but here the contract is entirely silent as to the measure of damages available

to a party upon breach.  The rights of parties to a contract are

limited by the terms expressed in the contract.  Klemp v. Hergott Group, Inc., 267 Ill. App. 3d 574, 581 (1994).  A court will not rewrite a contract to suit one of the parties, but will enforce the

terms as written.  Klemp, 267 Ill. App. 3d at 581.  There is a strong presumption against provisions that easily could have been

included in the contract but were not.  Klemp, 267 Ill. App. 3d at 581.  A court will not add another term about which an agreement is

silent.  Klemp, 267 Ill. App. 3d at 581.  Defendants' argument fails because the Agreement contains no limitation on damages.

	Defendants alternatively argue that Doherty improperly

calculated interest on the add-backs.  Defendants note that the

Agreement defines "qualified plan benefits" as including: 

		"(1) All funds contributed to a trust, created or

organized by RSI and forming part of RSI's stock bonus,

pension, or profit-sharing plan or plans for the exclusive use

of its employees or their beneficiaries, that were PAID to Cress prior to his retirement plus an investment return,

computed from date paid through date of retirement, on said

paid funds of not less than six (6) percent or the actual

amount earned, whichever is greater, AND (2) all funds contributed to a trust, created or organized by RSI and

forming part of RSI's stock bonus, pension, or profit-sharing

plan or plans for the exclusive use of its employees or their

beneficiaries, that are PAYABLE to Cress at retirement under any of RSI's past, present, or future stock bonus, pension, or

profit sharing plans, excluding employee contributions or

earnings on amounts employees contribute to such plans, if

any.  Should Qualified plan benefits include funds under which

Cress managed or participated in the choice of investment

activity for his own account, it is assumed for purposes of

computing the amount of Additional Compensation under this

Agreement that employer contributions earned an annual

investment return of not less than six (6) percent or the

actual amount earned, whichever is greater."  (Emphasis in

original.) 

Subsection (1) controls here because the benefits at issue were

paid to Cress prior to his retirement.  Defendants do not contest 

Doherty's calculating the interest on the add-backs by computing

each add-back by the corresponding year's rate of return rather

than simply totaling the add-backs and multiplying the sum by the

average of the rates of return.  Rather, defendants claim that

Doherty disregarded the Agreement when he calculated the interest

on the add-backs using the actual rates of return for each calendar

year that the funds were withdrawn.  Defendants claim that because

the Agreement requires that the benefits be calculated with an

investment return of "not less than six (6) percent or the actual

amount earned, whichever is greater," Doherty erred in not using a

rate of return of 6% for 2000 and 2001 where the actual rates of

return were less than 6%.  Thus, defendants claim, Doherty

understated the value of the IRA and correspondingly overstated

defendants' obligation under the Agreement.

	Plaintiff argues that the Agreement's requirement of a minimum

growth of 6% requires not that each individual year have a rate of

return of no less than 6% but that the "overall growth" over the

relevant period be no less than 6% per year.  We agree with this

interpretation.  The controlling clause  of the Agreement provides

that the value of the qualified plan benefits must be calculated

with an "investment return *** of not less than six (6) percent or

the actual amount earned, whichever is greater."  To determine the

intent of this phrase we look to similar phrases elsewhere in the

contract, for "[a] contract is to be construed as a whole, giving

meaning and effect to every portion thereof, if possible, and not

resorting to detached portions thereof standing alone."  Coles- Moultrie Electric Cooperative v. City of Sullivan, 304 Ill. App. 3d  153, 159 (1999).  Later in the portion of the Agreement quoted

above is a provision requiring that certain of plaintiff's

qualified plan benefits be computed with "an annual investment return of not less than six (6) percent or the actual amount

earned, whichever is greater."  (Emphasis added.)  This provision

does not control the IRA, but is nonetheless relevant.  In

interpreting a contract, a court must give meaning and effect to

every part of the contract , including all its terms and provisions,

so no part is rendered meaningless or surplusage unless absolutely

necessary.  Coles-Moultrie, 304 Ill. App. 3d at 159.  We conclude that the word "annual" was included in this later phrase to

emphasize that the qualified plan benefits contemplated there are

to be calculated separately for each year using that year's actual

rate of return, or 6%, whichever is greater, rather than simply adding the benefits together and multiplying the sum by the average

of the annual rates of return, or 6%, whichever is greater.  By

contrast, because "rate of return" is not qualified by the word

"annual" in the provision governing the IRA, we conclude that the

latter manner of calculation was intended.  Therefore, under the

Agreement, interest on the add-backs is to be calculated by

multiplying the sum of the add-backs by the average of the rates of

return for years 1996 through 2001 (Yyear to date: January 31,

2001), or 6%, whichever is greater. 

	Plaintiff defends Doherty's analysis, but it is not clear to

us that Doherty employed the methodology plaintiff espouses.  While

Doherty properly construed the Agreement as not requiring that each

individual year have a rate of return of not less than 6%, it is

not apparent that Doherty multiplied the sum of the add-backs by

the average of the rates of return (or 6%, whichever is greater). 

He seems instead to have calculated the interest year by year.  We

remand this case to the trial court for calculation of the monthly

payment owed plaintiff under the Agreement, in accordance with the

methodology set forth here.   

	Defendants next argue that the trial court's lump-sum award

was unauthorized by the Agreement and prohibited under law.  We

agree.  The Agreement provides for monthly payments of additional

compensation.  There is no provision for a lump-sum payment.  It is

well established that where the terms of a contract are clear and

unambiguous, they must be enforced as written, and no court can

rewrite a contract to provide a better bargain to suit one of the

parties.  Frederick v. Professional Truck Driver Training School, Inc., 328 Ill. App. 3d  472, 481 (2002).  Where a  contract implicates an ERISA plan, there is another reason for strictly

construing the contract, for to rewrite its terms would be to

undermine Congress's aim of ensuring uniformity in the treatment of

ERISA plans.  See Trujillo v. Cyprus Amax Minerals Co. Retirement Plan Committee, 203 F.3d 733, 738 (10th Cir. 2000).  Thus, federal courts have maintained that a court is not at liberty to alter the

terms of an ERISA plan.  See, e.g.,  Henglein v. Colt Industries Operating Corp., 260 F.2d 201, 215 (3d Cir. 2001)  Trujillo, 203 F.3d at 738.  

	Plaintiff cites no helpful cases.  He relies primarily on

Burgard v. Mascoutah Lumber Co., 6 Ill. App. 2d 210 (1955), which, in fact, was the sole authority the trial court cited to support

the lump-sum award.  In Burgard,  the defendant had contracted with the plaintiff to furnish supplies for houses built by the

plaintiff.  The plaintiff sought a declaratory judgment of his

rights under his account with the defendant.  He alleged that he

had overpaid on the account and that defendant had claimed that he

had underpaid.  The defendant filed a motion to dismiss the

complaint accompanied by an affidavit stating that the parties'

agents had already agreed that the defendant was owed $10,536.97. 

At the plaintiff's request, the case was tried by a jury, who found

for the defendant.  The defendant thereafter filed a petition for

further relief and requested that the plaintiff be ordered to show

cause why judgment should not be entered against the plaintiff.  In

reply, the plaintiff claimed that the trial court had no authority

to enter a money judgment because the defendant had never filed a counterclaim for such judgment.  The plaintiff argued that the only

relief the defendant could seek was a dismissal of the plaintiff's

suit.  The trial court disagreed and entered a judgment for the

defendant for $10,536.97.  Burgard, 6 Ill. App. 2d at 212-13.    

	Affirming the judgment, the appellate court stated that "[i]t

is generally held that it is proper to award coercive relief after

declaring the rights of the parties, including the entry of a money

judgment."  Burgard, 6 Ill. App. 2d at 218.  As for the specific issue of whether the money judgment was appropriate despite

defendant not having filed a counterclaim for such judgment, the

court asserted that a counterclaim need not be filed before a

declaratory judgment is entered if the "complaint disclose[s] an

actual controversy, i.e., that defendant opposes the position asserted by plaintiff."  Burgard, 6 Ill. App. 2d at 218-19.  

	Burgard clearly bears little relation to this case.   The trial court cited Burgard only for the rule that a trial court may order coercive relief, including a money judgment, in granting a

declaratory judgment.  But none of the parties claims that the

trial court had no authority to enter any money judgment on the plaintiff's claim for declaratory judgment.  Defendants' claims go

to the substantive fairness of the money judgment and the means by

which it was computed.  Such issues were not raised in Burgard.     	In light of the foregoing, we hold that the trial court erred in awarding a lump-sum payment of retirement compensation.  Since

plaintiff turned age 65 on February 7, 2001, and on that date would

have become eligible to receive the additional compensation under

the Agreement had he remained at RSI, we remand this case to the trial court for an order (1) requiring a lump-sum payment of the

total amount of monthly payments of additional compensation that

plaintiff has been owed since February 7, 2001, and (2)

establishing a schedule for prospective payments of additional

compensation per the terms of the Agreement.    

V.  Attorney Fees and Costs; Prejudgment Interest 

A. Attorney Fees

 	Plaintiff was awarded $354,575 for attorney fees and costs pursuant to section 502(g)(1) of ERISA (29 U.S.C. §1132(g)(1) (1994)), which permits a court to award "a reasonable attorney's fee and costs of action to either party."  On appeal, defendants

raise numerous arguments attacking this award.  They argue that the

trial court erred by (1) granting the fee award because, under

state law, the evidentiary basis for the attorney fees was

inadequate; (2) including attorney fees for work done before an

ERISA claim was officially alleged in plaintiff's complaint; (3)

accepting plaintiff's vague descriptions of the attorney's work;

(4) including time billed by attorney Clifford Yuknis, who worked

on the case only before the ERISA claim was added in an amended

complaint; and (5) awarding plaintiff attorney fees for enforcing

the judgment when the defendants had filed a postjudgment motion. 

Defendants also dispute whether certain items should have been

taxed as costs and claim that the prejudgment interest award was

improper. 

	After plaintiff moved for attorney fees, defendants requested,

and the trial court ultimately ordered, that plaintiff produce his 

attorneys' original time records.  In response, plaintiff's attorney Lawrence Cassano averred in an affidavit that he was

unable to produce his original time records, which were described

as "preliminary notes on scraps of paper," because they had been

destroyed.  He stated that he kept a daily, handwritten time log of

the work he performed that was then inputted into a computer that

used software to generate a bill for each client.  Plaintiff

submitted copies of these bills along with his fees petition as

evidence of his attorney fees.

	The parties dispute whether the trial court applied the

correct evidentiary standard of proof for the attorney fees awarded

under ERISA.  Defendants contend that because the state court

presided over the attorney fees issue, it should apply Illinois

evidentiary standards.  Defendants further maintain that

plaintiff's proof of his attorney fees was inadequate under In re Marriage of DeLarco, 313 Ill. App. 3d 107, 116 (2000), which held that the proper admission of computer-generated documents

summarizing the originals, such as time slips, required that the

original documents either be presented in court or made available

to the opposing party.  Plaintiff disagrees, arguing that the

attorney fees award was based on a federal statute and, thus,

federal law governs the evidentiary decision.

	We agree with plaintiff.  We acknowledge the well-established

principle that where, as here, an action is based solely upon a

federal statute, it must be determined in accordance with federal

law.  Local 174 v. Lucas Flour Co., 369 U.S. 95, 102-03, 7 L. Ed. 2d 593, 598-99, 82 S. Ct. 571, 576 (1962).  Moreover, although this

court may generally apply Illinois practice and procedure under such circumstances (Minneapolis & Saint Louis R.R. Co. v. Bombolis, 241 U.S. 211, 222-23, 60 L. Ed. 961, 965, 36 S. Ct. 595, 598-99

(1916)), state rules must defer to federal law when the local

practice would prevent the uniform application of a federal statute

(Local 174, 369 U.S. at 102, 7 L. Ed. 2d at 598, 82 S. Ct. at 576).

	"ERISA, by its explicit language, evinces a strong

congressional mandate to preempt State law and regulation of

employee benefit plans falling under its purview, and to

substitute in its place a uniform Federal common law to govern

the administration of such plans.  [Citation.]  This Federal

common law would be applicable to all suits brought under

ERISA, whether in State or Federal court."  Solivan v. Commonwealth Edison Mutual Benefit Ass'n, 146 Ill. App. 3d 285, 289 (1986).  

	The federal common law concerning the proper evidentiary

foundation to support an attorney fees award instructs us that, in

some instances, contemporaneous time records may be required. 

Calhoun  v. ACME Cleveland Corp., 801 F.2d 558, 560-61 (1st Cir. 1986).  However, contemporaneous records are not required where the

court finds that noncontemporaneous records accurately reflect the

amount of time actually expended by counsel.  Dennis v. Warren, 779 F.2d 245, 249 (5th Cir. 1985).  For example, an award of attorney

fees may be based solely on affidavits in the record.  Norman v. Housing Authority, 836 F.2d 1292, 1303 (11th Cir. 1988).  The absence of detailed contemporaneous records is, in an egregious

case, grounds for disallowance of an award.  Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 952 (1st Cir. 1984).

	In the present case, the trial court examined plaintiff's

documentation submitted with the fee petition, which included

affidavits from counsel, heard testimony at an evidentiary hearing

on the petition, and ultimately determined that the evidence

submitted by plaintiff was sufficient to support the fees award. 

A trial court's decision to award attorney fees pursuant to ERISA

will not be disturbed on appeal absent an abuse of discretion. 

Solivan, 146 Ill. App. 3d at 295.  Here, defendants fail to present facts showing that an abuse of discretion occurred under the

governing federal common law.  We, therefore, cannot find an abuse

of discretion and affirm the trial court's decision to award the

fees. 

	Defendants also maintain that the trial court erred by

granting plaintiff his full request for attorney fees because

plaintiff did not amend his complaint to allege an ERISA cause of

action until May 2000, three years after the litigation commenced. 

The Supreme Court has held that, when multiple claims for relief

are alleged in one lawsuit and the prevailing party is entitled to

attorney fees under a federal fee-shifting statute, the court will

award all fees spent on claims involving a "common core of facts." 

Hensley v. Eckerhart, 461 U.S. 424, 435, 76 L. Ed. 2d 40, 51, 103 S. Ct. 1933, 1940 (1983).  Plaintiffs may allege multiple claims

for relief but, in most cases, the claims "will involve a common

core of facts or will be based on related legal theories." 

Hensley, 461 U.S. at 435, 76 L. Ed. 2d at 51, 103 S. Ct. at 1940.  Therefore, "[m]uch of counsel's time will be devoted generally to

the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis."  Hensley, 461 U.S. at 435, 76 L. Ed. 2d at 51, 103 S. Ct. at 1940.   

	In the present case, plaintiff asserted several claims against

defendants.  Although plaintiff sought relief under state and

federal law, all of his claims were based on the deferred

compensation agreement.  This is precisely the type of lawsuit

discussed in Hensley, one that involves multiple claims for relief involving a "common core of facts."  As a result, we conclude that

the trial court did not err by including in the fees award

attorneys' time that was billed prior to the ERISA claim's

inclusion in the amended complaint.

	We stress that our resolution of this issue does not conflict

with our holding that plaintiff's contract and tort claims are not

preempted by ERISA.  All of plaintiff's claims rest on the

Agreement and, hence, on a common core of facts.  This commonality

is not defeated by our holding that the provisions in the Agreement

concerning employment compensation operate independently of those

pertaining to retirement benefits.    

	Our determination of this issue also resolves a related

argument raised by defendants.  Defendants assert that the fees

billed by Yuknis, one of plaintiff's attorneys, should be

disallowed because his work was performed exclusively before the

ERISA claim was alleged.  We see no error by the trial court in

including Yuknis's time in the fee award.

	Defendants challenge the fee award on the additional basis

that the "time entries are imprecisely described."  In support of

this contention, defendants point to the 46.7 hours billed over a two-month period that Cassano spent performing work described as

"trial preparation."  Among the many factors of consideration for

the trial court when determining the reasonableness of the number

of hours claimed for the litigation is the specificity with which

the attorney has described the tasks accomplished during the time

charged.  Trustees of the Four Joint Boards Health & Welfare & Pension Funds v. Penn Plastics, Inc., 864 F. Supp. 342, 349 (S.D. N.Y. 1994).  The reasonableness of the fees requested and the

amount of the fees to be awarded are decisions left to the trial

court's discretion.  Solivan, 146 Ill. App. 3d at 295.  

	While Cassano's fee records are somewhat vague, we cannot

conclude that the trial court erred by including these specific

46.7 hours in the fee award.  Defendants argue that awarding these

fees would be improper because on the dates Cassano billed these

hours "there had been no firm trial date set."  We do not believe

this reason alone is significant enough to upset the trial court's

determination that the fees were reasonable.  

	Defendants also object to the trial court including in the

fees award 1.5 hours of Cassano's postjudgment time that was spent

filing citations to discover defendants' assets.  Defendants

characterize Cassano's time as "work in attempting to enforce the

judgments after the defendants had filed a post-trial motion."  Defendants do not cite any authority to support their claim that

these 1.5 hours should be disallowed.  We find, however, that Free v. Briody, 793 F.2d 807 (7th Cir. 1986), is directly on point.  In holding that ERISA authorizes an award of attorney fees expended to

collect a judgment, the Free court indicated that "[i]t would make no more sense to deny attorney's fees for efforts to collect a

judgment than it would to deny them for efforts to defend a

judgment on appeal."  Free, 793 F.2d at 809.  We agree and find no error in the court's award of fees related to Cassano's time.

B.  Costs

	Defendants also challenge the trial court's order awarding

plaintiff $20,566 in costs pursuant to ERISA.  Defendants attack

the award on grounds that $9,340.95 of the costs do not have any

supporting documentation, costs in the sum of $9,007 were

impermissibly awarded for expert witness fees, and $797.79 of the

costs were for court reporter fees and medical report copies that

plaintiff did not prove were necessarily obtained for use in the

case.  

	Section 502(g)(1) of ERISA (29 U.S.C. §1132(g)(1) (1994)) authorizes the trial court to allow "reasonable attorney's fee and

costs of action to either party" in its discretion.  Taxable costs

include the following:

		"(2) Fees of the court reporter for all or any part of

the stenographic transcript necessarily obtained for use in

the case;

		(3) Fees and disbursements for printing and witnesses;

		(4) Fees for exemplification and copies of papers

necessarily obtained for use in the case."  28 U.S.C. §1920(2)

through (4) (1994). 

	The trial court has broad discretion when making factual

evaluations concerning whether an expense is a taxable cost. 

Illinois v. Sangamo Construction Co., 657 F.2d 855, 864 (7th Cir. 1981).  If an expense is an allowable cost item, the court's

determination that the cost was reasonably necessary to the conduct

of the litigation and that the amount of the cost is reasonable

will not be upset unless there is a clear abuse of discretion. 

Sangamo, 657 F.2d at 864.  " 'The losing party must satisfy a heavy burden when asserting that he should be excused from paying costs

and affirmatively establish that the costs either fall outside the

parameters of [28 U.S.C. §1920 (1994)], were not reasonably

necessary to the litigation, or that the losing party is unable to

pay. [Citation.]' [Citation.]"  Gordon v. Castle Oldsmobile & Honda, Inc., 157 F.R.D. 438, 440 (N.D. Ill. 1994).

	The trial court's costs award included $9,007 for expert fees

plaintiff paid to Larimer & O'Connor, who provided actuarial

services for plaintiff and whose employee, Thomas Doherty,

testified at the bench trial on the ERISA claim.  Defendants argue

that plaintiff was not entitled to these costs. 

	Absent an applicable statutory provision specifically

permitting an award of expert fees, such an award cannot exceed the

amount allowed for fact witnesses under 28 U.S.C. §1821 (1994) and

28 U.S.C. §1920 (1994).  Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445, 96 L. Ed. 2d 385, 393, 107 S. Ct. 2494, 2499 (1987).  ERISA does not expressly permit the taxation of

expert fees.  See 29 U.S.C. §1132(g)(1) (1994); Holland v. Valhi Inc., 22 F.3d 968, 979-80 (10th Cir. 1994).  Therefore, expert fees in ERISA cases cannot be taxed in excess of what is permitted under

28 U.S.C. §1821 (1994) and 28 U.S.C. §1920 (1994).  Under 28 U.S.C.

§1920(3) (1994), a party may be awarded "[f]ees and disbursements for the printing and witnesses."  The amount of taxable fees for

witnesses is limited by 28 U.S.C. §1821(b) (1994) (West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83, 86, 113 L. Ed. 2d 68, 75, 111 S. Ct. 1138, 1140 (1991)), which provides, "A witness shall be paid an attendance fee of $40 per day for each day's

attendance. A witness shall also be paid the attendance fee for the

time necessarily occupied in going to and returning from the place

of attendance at the beginning and end of such attendance or at any

time during such attendance."  It is improper for a court to assess compensation paid to expert witnesses in excess of these statutory

allowances unless exceptional circumstances are present.  United States v. City of Twin Falls, 806 F.2d 862, 879 (9th Cir. 1986).  

	Plaintiff does not claim that exceptional circumstances are

present in this case.  Therefore, we remand this case to the trial

court for a determination of an appropriate expert fee in light of

28 U.S.C. §1821 (1994) and 28 U.S.C. §1920 (1994).  

	As part of the costs taxed against defendants, plaintiff was

reimbursed $479.80 for court reporter fees from motion hearings and

two depositions and $77.84 for the cost of copying medical reports. 

Defendants argue, despite the trial court's conclusion to the

contrary, that these expenses do not qualify as taxable costs

pursuant to 28 U.S.C. §1920 (1994) because plaintiff did not

demonstrate that the expenses were "necessarily obtained for use in

the case" as required.  Plaintiff does not argue that these

expenses were necessary for the case.  Instead, relying on

Emmenegger v. Bull Moose Tube Co., 33 F. Supp. 2d 1127 (E.D. Mo. 1998), plaintiff maintains that the phrase "reasonable attorney's fee" in section 502(g)(1) of ERISA (29 U.S.C. §1132(g)(1) (1994)), ERISA's fee-shifting provision, includes the costs he seeks against defendants.

	While acknowledging that the term "costs" in section 502(g)(1)

of ERISA is limited to the costs detailed in 28 U.S.C. §1920

(1994), the Emmenegger court determined that certain out-of-pocket expenses that are not taxable as costs may be recoverable as part

of the "reasonable attorney's fee" allowed by ERISA.  Emmenegger, 33 F. Supp. 2d at 1133.  It held that, even though the prevailing

party included photocopying expenses in the bill of costs, these

charges were legitimate out-of-pocket expenses, not taxable as

costs, but eligible to be included as part of a  reasonable

attorney fee.  Emmenegger, 33 F. Supp. 2d at 1134.  We agree with Emmenegger and determine that plaintiff's $77.84 expense for copying medical reports should be included as part of the

reasonable attorney fees of the action.

	Defendants also object to the $479.80 for court reporter fees

from motion hearings and two depositions that were taxed as costs. 

Under 28 U.S.C. §1920 (1994), court reporter fees for all or any

part of a stenographic transcript "necessarily obtained" for use in

the case are taxable as costs.  "If at the time it was taken, a

deposition could reasonably be expected to be used for trial,

rather than merely for discovery, it may be included in the costs

of the prevailing party."  Emmenegger, 33 F. Supp. 2d at 1134.  The evaluation of whether this expense is a taxable cost is a factual

determination left to the trial court's discretion.  Sangamo, 657 F.2d at 864.  When the trial court determines that a cost was reasonably necessary to the conduct of the litigation and that the

amount of the cost is reasonable, we will not disturb that decision

unless there is a clear abuse of discretion.  Sangamo, 657 F.2d at 864.

	The Emmenegger court did not address whether court reporter fees for depositions and motion hearings may be considered out-of-

pocket expenses includable as the attorney fees.  See Emmenegger, 33 F. Supp. 2d at 1134.  Nevertheless, in allowing the court

reporter fees to be taxed as costs, the trial court found that

these expenses were reasonable and necessary to the case. 

Defendants do not cite any authority or facts that suggest that the

trial court abused its discretion in making this determination.  On

this basis, we find no error for the taxation of the court reporter

fees.

	Defendants next argue that the majority of the costs taxed,

$9,340.95, were improperly awarded because plaintiff did not

provide sufficient documentation to substantiate his request. 

However, defendants failed to raise an objection on these grounds

before the trial court and, thus, are prevented from doing so for

the first time on appeal.  Gradmann & Holler GMBH v. Continental Lines, S.A., 679 F.2d 272, 275 (1st Cir. 1982).  As a result, defendants have waived this argument. 

C.  Prejudgment Interest

	 In response to defendants' amended posttrial motion, the

trial court found that the jury awarded plaintiff for his lost

compensation twice, once as damages for the breach of contract and

again for the tortious interference with contract.  In its November 8, 2001, order, the court then reduced the jury's award by the

amount of lost compensation to avoid a double recovery for

plaintiff. 

	The Illinois Interest Act (815 ILCS 205/2 (West 2000))

provides for the award of interest when money is withheld by an

unreasonable and vexatious delay of payment.  After judgment was

entered in his favor, plaintiff moved the court to award him

prejudgment interest on his breach of contract, tortious

interference with contract, and ERISA claims.  On May 31, 2001, the

trial court awarded plaintiff prejudgment interest on all his

claims except for the ERISA claim.  Defendants moved the court to

vacate its order granting prejudgment interest after it modified

the jury verdict.  The trial court denied the motion.

	On appeal, defendants contend that the trial court erred by

denying their motion to vacate the prejudgment interest award. 

Defendants assert that, when the trial court reduced the jury award

to eliminate any double recovery, it vacated the judgment awarding

the breach of contract damages but retained the full damages

awarded for the tortious interference with contract.  The tortious

interference damages were not money owed to a creditor, defendants

claim, and, thus, are not subject to prejudgment interest pursuant

to the Interest Act.

	To recover prejudgment interest under the Interest Act, there

must be a fixed and easily calculated amount due from a debtor-

creditor relationship that has come into existence by virtue of a

written instrument.  Moody v. First National Bank of Moline, 239 Ill. App. 3d 986, 990 (1993).  As a general rule, the Interest Act does not allow prejudgment interest for lawsuits based on tort

claims.  Westchester Fire Insurance Co. v. General Star Indemnity Co., 183 F.3d 578, 585-86 (7th Cir. 1999); Wilson v. Cherry, 244 Ill. App. 3d 632, 640 (1993).  A trial court's decision to allow

prejudgment interest is discretionary and will not be reversed on

appeal absent abuse.  Greenberger, Krauss & Tenenbaum v. Catalfo, 293 Ill. App. 3d 88, 99 (1997).

	Defendants contend that the award of prejudgment interest is

improper because it rests exclusively on a tort claim.  They

premise their argument on the assumption that the trial court

"vacated" the judgment awarding breach of contract damages when it 

modified the jury award.  The court's order, however, states

otherwise.

	In its November 8, 2001, order, the trial court found that

"the Jury Verdict on Form A on Count I (Breach of Contract) in the

amount of $580,833.41 unlawfully duplicates the jury award of

$700,000 on Verdict Form C (Tortious Interference Count) for the

value of compensation Mr. Cress lost.  Accordingly, this Court

reduces the Jury Verdict by $580,833.41."  Despite defendants'

attempt to characterize it otherwise, the court's order states that

the jury award was reduced by the amount of plaintiff's lost

compensation, not that the court vacated the judgment on the

contract claim.  Therefore, the judgment for plaintiff was based on

both a contract and a tort claim.  As a result, defendants'

argument is without merit, and the trial court did not err by

refusing to grant defendants' motion to vacate the award of

prejudgment interest.

VI.  Plaintiff's Cross-Appeal

A.  Reduction of the Damages Award

	In his cross-appeal, plaintiff contends that the trial court erred by reducing the jury verdict in its November 8, 2001, order. 

On verdict form A, the jury assessed damages in the amount of

$580,833.41 against RSI for the breach of plaintiff's contract. 

Verdict form C concerned plaintiff's tortious interference with

contract count against Donovan.  Finding for plaintiff, the jury

awarded a total of $2,500,000 in damages.  The jury then itemized

the damages and assessed $700,000 for "[t]he value of compensation

[plaintiff] lost."  After defendants objected to the verdicts in

their amended posttrial motion, arguing that plaintiff received

damages for his lost compensation twice, the trial court reduced

the jury verdict. 

	The determination of damages is generally left to the trier of

fact, and a reviewing court will not lightly substitute its opinion

for that of the trier of fact.  Barton v. Chicago & North Western Transportation Co., 325 Ill. App. 3d 1005, 1042 (2001).  Although  plaintiffs may plead and prove multiple causes of action, they may

obtain only one recovery for an injury.  Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 486 (1998).

	Plaintiff asserts that the breach of contract and tortious

interference claims were separate and distinct because they were

alleged against different defendants and the breach of contract

count only sought lost compensation for a particular four-year

period.  Even though plaintiff may allege multiple theories of

recovery, he is limited to a single recovery for a particular injury.  Dowd & Dowd, Ltd., 181 Ill. 2d at 486.  In this case, plaintiff's allegations concern a single contract, his employment

agreement with RSI.  He was injured, he claimed, because he did not

receive the wages promised in the employment agreement.  The jury's

verdicts compensated him for these wages twice.  We agree with the

trial court that the jury verdict was duplicative in this regard

and that defendants were entitled to the setoff against the

judgment in the amount of the lost compensation.

B.  Fees Under the Wage Actions Act

	Plaintiff additionally contends that the trial court erred by

denying him attorney fees pursuant to the Attorneys Fees in Wage

Actions Act (Wage Actions Act) (705 ILCS 225/1 (West 2000)).  The

Wage Actions Act allows for the recovery of attorney fees in wage

actions when the amount ultimately recovered is no less than the

sum the plaintiff demanded in writing at least three days before

bringing the lawsuit.  705 ILCS 225/1 (West 2000).  "The statute

must be complied with in every particular to entitle the plaintiff

to recover attorney fees."  Caruso v. Board of Trustees of the Public School Teachers' Pension & Retirement Fund, 129 Ill. App. 3d 1083, 1087 (1984).

	After defendants confessed to judgment for violating the

Illinois Wage Payment and Collection Act (820 ILCS 115/1 et seq. (West 2000)), the court entered judgment in plaintiff's favor for

$16,223.28 plus costs.  The parties do not dispute that plaintiff

brought the wage action against defendants in his September 2,

1998, second amended complaint.  However, plaintiff argues that he

complied with the Wage Actions Act's requirements in 1997 through an April 30, 1997, letter and during plaintiff's proceedings before

the Illinois Department of Labor (IDOL). 

	In the April 30, 1997, letter, plaintiff's attorney wrote to

defendants' attorney and requested that "[plaintiff's] compensation

be immediately returned to its former level" and that "any and all

accrued outstanding compensation owing now be paid by RSI, as

well."  Contrary to plaintiff's assertion, this letter does not

comply with the Wage Actions Act's requirements because it is not

a demand for a specific sum from RSI.

	Plaintiff also argues that, when he submitted a claim to IDOL

for wages due and owing in the amount of $17,223.28, he complied

with the Wage Actions Act's requirements.  As support for his

argument, he relies on Shackleton v. Federal Signal Corp., 196 Ill. App. 3d 437 (1989).  In Shackleton, the plaintiff filed a written wage claim with IDOL and the defendant received notice of this

claim from  IDOL.  Shackleton, 196 Ill. App. 3d at 447.  The Shackleton court held that the plaintiff sufficiently complied with the Wage Actions Act's statutory notice requirement because

"[p]laintiff's compliance with the statutory procedures for

collection of wages, in effect, gave notice and demand of the wages

due him."  Shackleton, 196 Ill. App. 3d at 447.

	This same issue was revisited in Swanson v. Village of Lake in the Hills, 233 Ill. App. 3d 58 (1992).  The Swanson court chose not to follow Shackleton, holding that "[w]e believe a better interpretation of the Attorneys Fees in Wage Actions Act is that it

requires the employee to make a written demand directly to the employer at least three days prior to filing suit for a sum not exceeding the amount found due and owing."  (Emphasis in original.) 

Swanson, 233 Ill. App. 3d at 68-69.  We agree with the Swanson court.  The Wage Actions Act should be strictly construed because

statutory provisions allowing the recovery of attorney fees are in

derogation of the common law.  Dallis v. Don Cunningham & Associates, 796 F. Supp. 1127, 1128 (N.D. Ill. 1992).  Therefore, before a plaintiff may recover under the Wage Actions Act, he or

she must comply with "every particular" of the statute.  Caruso, 129 Ill. App. 3d at 1088.  In the present case, plaintiff did not

submit a written demand for a specific sum directly to RSI before

he commenced his lawsuit.  As a result, we affirm the trial court's

denial of attorney fees pursuant to the Wage Actions Act.

CONCLUSION

	In summary, we affirm the trial court's judgment entered on

the jury verdict in favor of plaintiff on his claims for breach of

contract and tortious interference with contract.  We also affirm

the trial court's reduction of the amount of lost compensation

awarded plaintiff by $580,833.41.  However, we vacate the award of

punitive damages.  We also vacate the trial court's judgment

requiring a lump-sum payment representing the total value of

additional compensation under the deferred compensation agreement

as of February 7, 2001, the date of plaintiff's retirement.  As the

Agreement allows only for monthly payments, we remand for an order

requiring RSI's deferred compensation plan to pay plaintiff a lump-

sum payment representing the total amount of monthly payments owed

since February 7, 2001, and establishing a schedule for prospective

monthly payments of additional compensation per the terms of the Agreement.  We direct the trial court to determine the amount of

the monthly payment owed plaintiff under the Agreement according to

the methodology outlined above.     

 	We affirm the trial court's award of attorney fees to plaintiff pursuant to ERISA (29 U.S.C. §1132(g)(1) (2000)). 

Regarding which costs were properly taxable under 28 U.S.C. §1920

(1994), we affirm the trial court's determination except for the

expenses for the copying of medical records, which were nonetheless 

includable as attorney fees, and except for expert witness fees in

excess of the fees allowable under 28 U.S.C. §1821 (1994).  We

direct the trial court to determine on remand the amount of costs

for expert witness fees in accordance with 28 U.S.C. §1821 (1994). 

In addition, we conclude that the trial court did not err in

denying defendants' motion to vacate the prejudgment interest award

or in denying plaintiff attorney fees pursuant to the Wage Actions

Act (705 ILCS 225/1 (West 2000)).  

	Plaintiff has moved this court for an order directing the

trial court to consider his request under ERISA (29 U.S.C.

§1132(g)(1) (2000)) for attorney fees and costs incurred after May 17, 2001.  The trial court previously ordered fees and costs 

through May 17, 2001, the date of its order.  We hereby grant

plaintiff's motion and direct the trial court to consider

plaintiff's request for attorney fees and costs incurred on the

ERISA-related part of this litigation after May 17, 2001.

	For the foregoing reasons, we affirm in part and reverse in

part and remand this cause for further proceedings consistent with

this opinion. 

	Affirmed in part and reversed in part; cause remanded.

	GROMETER and CALLUM, JJ., concur.