Cress v. Recreation Services, Inc. (341 Ill. App. 3d 149, 2003)

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 Employee 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 plaintiffs prospective economic advantage); and count VI (claim against the Plan for a judgment declaring plaintiffs 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 plaintiffs 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 preretirement 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 [plaintiffs] 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 [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 [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 [plaintiffs] 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 [plaintiffs] 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 [plaintiffs] 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 [plaintiffs] 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, plaintiffs attorney, stated:

“I understand that [plaintiffs] 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 [plaintiffs] compensation be immediately returned to its former level.”

On May 8, 1997, Ridge informed Cassano that RSI terminated plaintiffs 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], [Plaintiffs] 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 [plaintiffs] 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 [plaintiffs] 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” plaintiffs 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 plaintiffs 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 plaintiffs employment was terminated. RSI also terminated plaintiffs 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 plaintiffs 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 plaintiffs 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 plaintiffs 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 plaintiffs 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.

Plaintiffs 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 plaintiffs 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 plaintiffs 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, plaintiffs 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, plaintiffs attorney commented that Donovan and plaintiff “[tjogether built [RSI] into a $22,000,000 company.” Defendants again objected but stated no grounds. The court sustained the objection. Plaintiffs 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 plaintiffs 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 plaintiffs 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 plaintiffs 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 [plaintiffs] 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 plaintiffs 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 [plaintiff] 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 plaintiffs compensation could not be reduced at all. They did not, however, but instead provided that plaintiffs 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 plaintiffs 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 plaintiffs salary. We agree with plaintiff that paragraph 10, read in light of the recital, evinces the parties’ intent that RSI not substantially reduce plaintiffs 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 plaintiffs 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 plaintiffs 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 plaintiffs 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 plaintiffs 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 plaintiffs 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 plaintiffs 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 plaintiffs 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 plaintiffs 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’ Fension Flan.” 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 plaintiffs 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 [pjlaintiffs 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 plaintiffs salary claim and his claim for pension benefits. There was no reference, for instance, to whether plaintiffs 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 plaintiffs 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”). HPFs 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 plaintiffs 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 plaintiffs 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 plaintiffs 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 plaintiffs 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 plaintiffs 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, plaintiffs 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 Plaintiffs 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, plaintiffs 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 p