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08/06/96 CHARLES A. HARPER v. MISSOURI PACIFIC

August 6, 1996

CHARLES A. HARPER, PLAINTIFF-APPELLEE,
v.
MISSOURI PACIFIC RAILROAD COMPANY AND UNION PACIFIC RAILROAD COMPANY, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Madison County. No. 93-L-1209. Honorable Daniel J. Stack, Judge, presiding.

The Honorable Justice Goldenhersh delivered the opinion of the court: Hopkins, P.j., and Kuehn, J., concur.

The opinion of the court was delivered by: Goldenhersh

JUSTICE GOLDENHERSH delivered the opinion of the court:

A preliminary injunction was entered in August 1993, after defendants instituted a policy concerning the investigation of claims of injured employees brought pursuant to the Federal Employers' Liability Act (the Act) (45 U.S.C. §§ 51 through 60 (1993)). In Harper v. Missouri Pacific R.R. Co., 264 Ill. App. 3d 238, 636 N.E.2d 1192, 201 Ill. Dec. 760 (1994) (hereinafter Harper I), we upheld in all respects the entry of the trial court's preliminary injunction enjoining defendants' policy of requiring notice of and prior consent to interviews with railroad employees who had information concerning claims under the Act, except we did not allow for ex parte interviews of defendants' employees when on defendants' property during the working hours of such employees. Defendants now appeal from the order entering a permanent injunction and from the trial court's entry of an order of contempt against defendants for an alleged violation of the preliminary injunction order. Defendants raise the following issues: (1) whether the trial court erred in admitting former testimony, given at the preliminary injunction hearing, as evidence at the trial for the permanent injunction, (2) whether the Act gives plaintiff's attorneys the right to communicate ex parte with defendants' employees, (3) whether plaintiff sustained his burden of proving he would suffer irreparable harm if his attorneys could not interview, ex parte, managerial, supervisory, or office employees, (4) whether the trial court's finding that defendants engaged in affirmative conduct which had the effect of inhibiting employees with knowledge of facts incident to plaintiff's claim from furnishing information to his attorneys was against the manifest weight of the evidence, (5) whether the scope of the permanent injunction is overbroad, (6) whether the trial court erred in holding defendants in contempt, (7) whether the trial court's finding that the revision of a work rule violated the preliminary injunction order was against the manifest weight of the evidence, (8) whether the trial court's finding that the rule was revised in wilful violation of the preliminary injunction order was against the manifest weight of the evidence, (9) whether the trial court erred in ordering defendants to pay plaintiff $150 per day from April 10, 1994, through the day the rule was rescinded or revised, and (10) whether the letters required by the contempt order are unnecessary and prejudicial to defendants. We affirm in part, reverse in part, and remand with directions.

Since we have previously set forth the facts pertaining to the entry of the preliminary injunction order (see Harper I) we need not repeat those facts here. Instead, we choose to recite only the additional facts necessary for an understanding of the instant matter. Please refer to Harper I for the history of the instant case. [The following material is nonpublishable under Supreme Court Rule 23 and MR No. 10343 (Official Reports Advance Sheet No. 15 (July 20, 1994), eff. July 1, 1994).]

[The preceding material is nonpublishable under Supreme Court Rule 23].

ISSUES

The first issue we are asked to consider is whether the trial court erred in admitting former testimony, given at the preliminary injunction hearing, as evidence at the trial for a permanent injunction. Defendants assert that the testimony of a witness at a former trial is not admissible in a subsequent proceeding of the same action where there is no showing (1) that the witness is unavailable in a legal sense, and (2) why the witness's evidence deposition could not have been taken if the proponent of the testimony exercised due diligence. Defendants argue severe prejudice by the admission of the former testimony because, defendants claim, such testimony was given before they had an opportunity to conduct discovery and to prepare for a meaningful cross-examination. Plaintiff responds that in the instant case evidence from a prior hearing of the same proceeding was simply incorporated by the trial court acting as a factfinder. Plaintiff insists that this requires no citation because what was done here is no different from what occurs daily in bench-tried cases wherein judges take testimony in intervals separated by time.

Plaintiff is correct that the cases cited by defendants are distinguishable from the case at bar because none deal with the incorporation of evidence from a preliminary injunction into a hearing on a permanent injunction. Plaintiff, on the other hand, does provide us with cases in which the evidence from a preliminary injunction hearing was incorporated into evidence at the hearing for a permanent injunction. See Hess v. Clarcor, Inc., 237 Ill. App. 3d 434, 603 N.E.2d 1262, 177 Ill. Dec. 888 (1992). However, in Hess, the parties stipulated to the incorporation of such evidence. Hess, 237 Ill. App. 3d at 446, 603 N.E.2d at 1271. Peoples Energy Corp. v. Illinois Commerce Comm'n, 142 Ill. App. 3d 917, 492 N.E.2d 551, 97 Ill. Dec. 115 (1986), also allowed for the incorporation of testimony and exhibits from the preliminary injunction hearing into the hearing for a permanent injunction. In that case, the City of Chicago was permitted to intervene in the action as a defendant-counterplaintiff after the conclusion of the preliminary hearing. The city argued on appeal that the testimony and exhibits from the preliminary injunction hearing should not have been admitted at the hearing for the permanent injunction. However, since none of the original parties objected and because the city's intervention was subject to the express condition that it be bound by all prior orders or judgments and all evidence previously received, our colleagues on the First District Appellate Court rejected the city's argument. Peoples Energy Corp., 142 Ill. App. 3d at 935-36, 492 N.E.2d at 565. The court also noted that its decision was based upon the facts that the city was given the opportunity to cross-examine the plaintiff's witnesses and that the city made no specific claims of actual prejudice. Peoples Energy Corp., 142 Ill. App. 3d at 936, 492 N.E.2d at 565.

Here, defendants did specifically object to the incorporation of evidence from the preliminary injunction hearing into the permanent injunction hearing. However, we find that because the trial judge was the same in both hearings, no error was committed in allowing evidence from the preliminary injunction hearing to be incorporated into the hearing on the permanent injunction. While defendants claim prejudice due to the fact that such cross-examination occurred prior to conducting discovery, the record and briefs contain no explanation as to how defendants were actually prejudiced. Defendants were allowed to cross-examine plaintiff's witnesses at the preliminary injunction. Moreover, defendants were certainly within their right to recall any witnesses from the preliminary injunction hearing, but they chose not to do so. Defendants would obviously like this case to drag on interminably, but the trial court rightly chose not to hear repetitive evidence.

The second issue raised by defendants is whether the Act gives plaintiff's attorneys the right to communicate ex parte with defendants' employees. See 45 U.S.C. § 60 (1993). Defendants argue that we did not sufficiently address this issue in Harper I but only considered it at a preliminary stage. We cannot agree. See Harper I for a complete discussion of this issue. Harper I, 264 Ill. App. 3d at 251, 636 N.E.2d at 1201-02.

We note that the standards of review in cases involving preliminary injunction and permanent injunction are indeed different, as defendants contend, and thus, Harper I cannot be said to be the law of the case in the instant matter. In ruling on a preliminary injunction, we must determine whether the trial court abused its discretion in finding that the petitioner demonstrated a prima facie case that there is a fair question as to the existence of the rights claimed; that the circumstances lead to a reasonable belief that the petitioner will probably be entitled to the relief sought if evidence sustains the allegations in the petition; and that the status quo should be maintained until the case can be decided on the merits. Dixon Ass'n For Retarded Citizens v. Thompson, 91 Ill. 2d 518, 524-25, 440 N.E.2d 117, 120, 64 Ill. Dec. 565 (1982). In order for the issuance of a permanent injunction to be upheld on appeal, the trial court's determination is reviewed by a stricter standard. The question is whether a trial court's decision is contrary to the manifest weight of the evidence. A trial court's judgment is against the manifest weight of the evidence only if the opposite result is clearly evident. Gerber v. Hamilton, 213 Ill. Dec. 527, 276 Ill. App. 3d 1091, 659 N.E.2d 443 (1995); see also Hamer Holding Group, Inc. v. Elmore, 244 Ill. App. 3d 1069, 1075-77, 613 N.E.2d 1190, 1195-96, 184 Ill. Dec. 598 (1993). Here, we find defendants' tactic of ignoring our decision in Harper I disingenuous, as there is nothing in the record from the hearing on the permanent injunction which indicates we were mistaken in Harper I. The witnesses who testified for defendants simply did not provide strong enough testimony to overcome the evidence produced by plaintiff that among railroad employees an atmosphere of intimidation prevailed.

The third issue raised by defendants is whether plaintiff sustained his burden of proving he would suffer irreparable harm if his attorneys could not interview, ex parte, managerial, supervisory, or office employees. Again, we previously addressed this issue sufficiently in Harper I and need not address it herein. See Harper I, 264 Ill. App. 3d at 251-52, 636 N.E.2d at 1202-03. After reviewing the evidence presented by defendants at the hearing on the permanent injunction, we find it insufficient to change our previous determination of this issue in Harper I.

The fourth issue raised by defendants is whether there was sufficient evidence to establish that defendants engaged in any affirmative conduct which had the effect of inhibiting employees with knowledge of facts incident to plaintiff's claim from furnishing information to plaintiff's attorneys. Likewise, we believe we sufficiently addressed this issue in Harper I when we discussed the fact that plaintiff's attorney, Roger Denton, testified that his law firm stopped their usual and customary practice of interviewing all railroad employees regarding claims under the Act because of the letters it received from defendants threatening ethical charges. Harper I, 264 Ill. App. 3d at 251, 636 N.E.2d at 1202. Moreover, in Harper I we found that plaintiff had, in fact, already established, by a preponderance of the evidence, that the general atmosphere of the railroad intimidates railroad employees from furnishing evidence in cases brought under the Act ( Harper I, 264 Ill. App. 3d at 252-53, 636 N.E.2d at ...


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