delivered the opinion of the court:
This оpinion encompasses three related appeals involving defendants Yehuda and Miriam Draiman and plaintiff Multiut Corporation (Multiut), an energy consulting and energy management services company based in Skokie. Central to defendants’ appeals are case Nos. 1 — 03—0857 and 1 — 03—2855, in which defendants challenge the trial court’s rulings in favor of Multiut and its award of more than $1 million in attorney fees. Defendants have separately appealed the trial court’s order of indirect civil contempt and sanctions against Yehuda and an injunction prohibiting Yehuda from competing against Multiut. We have consolidated these appeals sua sponte. For the reasons set forth in this opinion, we affirm the judgments of the trial court in case Nos. 1 — 03—0857, 1 — 03—2855 and 1 — 04—1192. Defendants’ appeal in case No. 1 — 04—2377 is dismissed.
BACKGROUND
The voluminous record on appeal can be distilled to these relevant facts. Yehuda and Miriam Draiman are husband and wife, and Nachshon Draiman, Yehuda’s brother, is the president of Multiut. Multiut was founded in the mid-1980s after the deregulation of the energy industry and negotiates contracts with natural gas and electricity suppliers to provide those utilities to businesses. Multiut employs independent Multiut associates (IMAs) on commission who offer gas and electrical auditing services and advise its customers about possible energy savings.
The following testimony was offered at a hearing on Multiut’s motion for a preliminary injunction against defendants and at a trial on the merits. 1 Nachshon testified that he hired Yehuda in 1989 at the behest of their father. Miriam had already executed an IMA agreement and was receiving commissions, which were being paid to M. Draiman Corporation. Nachshon testified that Yehuda asked to be placed in a salaried position with Multiut and that Yehuda did not want to receive wages that could be garnished because he was being pursued by creditors.
In February 1991, Yehuda and Nachshon executed a written IMA agreement, which included a covenant not to compete and a confidentiality provision as to Multiut’s methods of operation. Several handwritten lines above Yehuda’s signature indicated
Nachshon testified that in 1998 or 1999, he and Yehuda discussed the continuing deregulation of the electricity business and Multiut’s potential growth in the electrical auditing market. Yehuda expressed an interest in exploring those opportunities and Nachshon encouraged him to do so. In December 2000, Nachshon learned that Yehuda had represented to Multiut’s customers that Multiut was affiliated with various companies that Yehuda and Miriam had formed. Nachshon also learned that Yehuda had opened a bank account in the name of Multiut Electric and had executed contracts to take customers away from Multiut. Nachshon testified that two Multiut employees told him they had worked on Multiut Electric’s accounts with the belief that Multiut Electric was affiliated with Multiut.
Nachshon said he was aware that Yehuda had marketed his own telecommunications business via the Multiut website; however, he denied allowing Yehuda to use the Multiut name. Nachshon testified that he was concerned that Yehuda would take business away from Multiut. He stated that access to the company’s customer list was limited to himself and two computer programmers. Nachshon testified that Yehuda removed a computer from his (Yehuda’s) Multiut office; the computer was returned a few months later, after the beginning of litigation between the parties, with the hard drive erased.
On December 5, 2000, Nachshon wrote a letter to Yehuda and Miriam recounting a litany of family issues and concluding as follows:
“[I]n lieu of any other alternative, I am going to ask you to resign from your employment at Multiut [C]orp. Absent the resignation, consider this a notice of termination. You may continue as an independent contractor subject to following all the rules set forth by the company and the same privileges as any other IMA. This will give you the ability to do other business as you wish.
I want to remind you and reiterate that involvement in any gas, electric or other related ventures of Multiut [C]orp. are direct violation of the agreements [szc].”
An April 2001 letter from Nachshon, addressed to Yehuda, Miriam and the various defendant companies, further stated, in relevant part:
“I will continue to regard your involvement with the company as a regular [IMA], and аny funds, commissions or advances that you have received and will receive will be adjusted accordingly. I ask that any accounts that you are going to contact be first submitted in writing to me and approved by me before contact is made. You may not contact company customers, either yours and certainly other salesman’s and or company accounts without the explicit written authorization of the company.”
On June 28, 2001, the trial court entered an agreed order prohibiting Yehuda, Miriam and the defendant companies from using Multiut’s “business plans, pricing methods, customer lists, marketing materials and customer specifications” for 14 days. The temporary restraining order permitted defendants to contaсt customers during the two-week period after providing written notice to Multiut’s counsel. The order barred defendants from spending or transferring funds derived from Multiut clients and also prohibited them from entering Multiut’s offices or contacting Multiut employees. That order was extended through May 2002 via Multiut’s additional requests for injunctive relief.
Bostic testified that in April 2001, he met with Yehuda and Gershon Draiman, who is Yehuda and Nachshon’s nephew. 2 Yehuda sought Bostic’s involvement in establishing an independent auditing company named U.S. Utilities under Gershon’s direction because Yehuda was concerned about his noncompetition agreement with Multiut. Bostic informed Nachshon of Yehuda’s plan. At the time of his testimony, Bostic continued to work with Nachshon and Multiut.
Testifying as an adverse witness, Yehuda stated that he and Miriam formed various companies, including M. Draiman Corporation (formed in 1991), U.S. Gas, Electric & Telecommunications Corporation (formed in 1999 from a company named D&D Medical Supply), Multiut Electric (formed in 1999 from SGG Diamond, Inc.), and U.S. Gas & Energy Corporation (formed in 2000). Yehuda testified that he opened an account for Multiut Electric at Success National Bank, where Multiut had several accounts. Yehuda stated that Nachshon agreed to his use of the Multiut name.
In its second amended complaint, Multiut alleged that Yehuda, Miriam, Gershon and David (one of Yehuda and Miriam’s two sons) formed the defendant companies to divert business and revenue away from Multiut. Multiut alleged that the defendant companies were “alter egos” or fictional fronts for Yehuda and Miriam’s actions and that Yehuda interfered with Multiut’s business relationship with Bostic’s company, LBE, and further interfered with Multiut business by using the name Multiut Electric. The complaint includеd counts of replevin, breach of fiduciary duty, breach of contract, tortious interference with contract, civil conspiracy, common law trademark infringement and violations of the Illinois Trade Secrets Act (765 ILCS 1065/1 et seq. (West 2000)), the Trademark Registration and Protection Act (765 ILCS 1036/1 et seq. (West 2000)), the Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 2000)), and the Uniform Deceptive Trade Practices Act (815 ILCS 510/1 et seq. (West 2000)).
Defendants raised several affirmative defenses, including unclean hands, waiver, estoppel and laches. Defendants asserted, inter alia, that Nachshon unilaterally altered portions of the February 1991 IMA agreement. In addition, defendants filed a counterclaim against Multiut, contending that Multiut breached its contract with Yehuda, that Yehuda was owed damages for commissions he earned and that Multiut was unjustly enriched by retaining the benefits of Yehuda’s labor.
On January 17, 2003, in a 15-page written opinion, the trial court found that the various corporate defendants were alter egos of Yehuda and held in Multiut’s favor on its claims of breach of fiduciary duty,
On August 26, 2003, in a separate order, the court awarded Multiut $1,002,046 in attorney fees. On October 14, 2003, the trial court found Yehuda in indirect civil contempt for violating various court orders and imposed $45,000 in fines against him for three separate acts. Upon Yehuda’s motion to reconsider, the trial court vacated $25,000 of that amount.
ANALYSIS
As an introductory matter, we observe that case Nos. 1 — 03—0857 and 1 — 03—2855 have been consolidated on Multiut’s motion. Since that appeal was placed on our docket, defendants have brought two additional appeals (No. 1 — 04—1192 and No. 1 — 04—2377) that arise from the complaint in case No. 1 — 03—0857. We have consolidated all three of these appeals sua sponte to allow us to consider the entirety of defendants’ contentions in this opinion.
Multiut asserts that this court has received briefs only from Yehuda and Miriam Draiman and that the defendant companies have failed to submit arguments in support of their appeal. The evidence presented at trial established that the aforementioned companies were alter egos of Yehuda and Miriam. Therefore, this appeal considers only the points raised in the briefs filed by Yehuda and Miriam.
We next note that although defendants were represented by counsel in the trial court, Yehuda and Miriam have chosen to represent themselves in each case at bar and have filed separate pro se briefs in each of these appeals. Yehuda repeatedly laments his pro se status and depleted financial resources while complaining of his unfamiliarity with the legal process. Although Yehuda and Miriam have the right to appear as pro se appellants, they are held to the same rules as any other litigant represented by counsel (seе Athens v. Prousis,
Lastly, in each of the three appeals here, Multiut has brought a motion to strike the documents attached to defendants’ briefs as exhibits, contending that those materials were not served on it or made part of the record on appeal. Multiut asks this court to impose sanctions against defendants pursuant to Supreme Court Rule 375(a) (155 Ill. 2d R. 375(a)). As to case Nos. 1 — 04—1192 and 1 — 04—2377, Multiut asserts that defendants should be sanctioned for filing appeals that are frivolous and in bad faith. We have ordered that Multiut’s motions and the defendants’ responses be taken with the case.
All matters reviewed оn appeal must be made part of the official court record, and a copy of an item attached to a brief cannot be considered by this court. Illinois Bell Telephone Co. v. Illinois
1. Case Nos. 1 — 03—0857 and 1 — 03—2855 (consolidated)
In challenging the trial court’s ruling on Multiut’s complaint, Yehuda has filed an appellate brief laden with ad hominem attacks. His initial brief fails to argue specific legal issues to this court on which he requests relief. Although Yehuda’s reply brief also contains numerous asides, it is slightly more directed. As a general rule, points not argued in an appellant’s brief are waived and may not be raised in the reply brief. 177 Ill. 2d R. 341(e)(7); see also Gunn v. Sobucki,
The trial court’s decision following a bench trial should be overturned only if it is against the manifest weight of the evidence, meaning that the opposite conclusion is apparent or the ruling is unreasonably arbitrary. In re Marriage of Kendra,
a. Trade Secrets Act
Yehuda asserts that although the court’s basis for finding that he violated the Trade Secrets Act is unclear, his use of Multiut’s customer lists did not breach the Act. To establish a violation of the Act, a plaintiff must prove that the information at issue was: (1) a trade secret (2) that was misappropriated and (3) used in the defendant’s business. Delta Medical Systems v. Mid-America Medical Systems, Inc.,
To claim protection as a trade secret, a plaintiff must show that: (1) the information was sufficiently secret to give it a competitive advantage; and (2) affirmative measures were taken to рrevent others from acquiring or using the information. 765 ILCS 1065/2(d)(1), (d)(2) (West 2000). As was noted in Delta Medical Systems v. Mid-America Medical Systems, Inc.,
“The protection afforded trade secrets reflects a balancing of conflicting social and economic interests. Where an employer has invested substantial time, money, and effort to obtain a secret advantage, the secret should be protected from an employee who obtains it through improper means. [Citation.] Nevertheless, in a competitive market, an employee must be entitled to utilize the general knowledge and skills acquired through experience in pursuing his chosen occupation.”
Customer lists and pricing information have been recognized as trаde secrets, although such determinations have hinged on the facts of a case. In Liebert Corp. v. Mazur,
Here, Multiut presented testimony that it attempted tо safeguard its customer data by limiting access to both printed and computer-stored copies of the information and by requiring employees to sign confidentiality agreements. Multiut therefore took steps to protect the customer information from competitors. The trial court’s ruling that defendants violated the Trade Secrets Act was not against the manifest weight of the evidence. 3
Yehuda argues that no evidence was presented that he “sold or otherwise disseminated” the Multiut customer or marketing information. However, the Act does not require proof of those activities; it only requires that the Multiut information be used in Yehuda’s business. Yehuda does not contest that point. Because we have conсluded that Multiut’s customer lists were trade secrets and that Yehuda misappropriated and used the information in his own businesses, thus violating the
b. Uniform Deceptive Trade Practices Act
Yehuda also challenges the trial court’s finding that he engaged in deceptive trade practices. As with many of his pro se contentions, the legal basis of his argument is difficult to ascertain. The Uniform Deceptive Trade Practices Act (815 ILCS 510/2(2), (3) (West 2000)) provides that when a party, in the course of his or her business or occupation, engages in any conduct that creates a likelihood of confusion or misunderstanding, a deceptive trade practice occurs. Eshaghi v. Hanley Dawson Cadillac Co.,
In his reply brief, Yehuda directs this court’s attention to documents that he attached to that brief as exhibits. As we have noted previously, all matters reviewed on appeal must be made part of the official court record, and a copy of an item attached to a brief cannot be considered by this court. Illinois Bell Telephone Co.,
c. Conspiracy
Yehuda next contends that the conspiracy in this case took place not between himself and his wife, but rather when he and Nachshon agreed to Yehuda’s role as an independent contractor. In a separate brief, Miriam more comprehensively addresses the conspiracy count, desсribing herself as a “compliant spouse” and arguing that she is not a proper party to this litigation. Essentially pleading ignorance, Miriam asserts that the actions of her husband and Nachshon involved her in the defendant companies in name only.
A civil conspiracy occurs when two or more people combine to accomplish, through concerted action, either an unlawful act or a lawful act in an unlawful manner. Rodgers v. Peoples Gas, Light & Coke Co.,
The evidence presented at trial established that the defendant companies, including Multiut Electric and M. Draiman Corporation, were alter egos of Yehuda and Miriam, who both acknowledged forming the entities. Miriam testified that although she was the nominal president, secretary and sole shareholder of the four defendant companies, she performed no duties and Yehuda, in her words, “took care of all the day-to-day things.” She
Miriam contends that her passive actions do not constitute proof that she knowingly agreed to conspire with her husband. Noting Multiut’s citation of the Illinois Supreme Court’s opinion in McClure v. Owens Corning Fiberglas Corp.,
However, Miriam neglects to acknowledge the supreme court’s further statements in McClure that although accidental or inadvertent participation does not amount to conspiracy, a defendant “ ‘who understands the general objectives of the cоnspiratorial scheme, accepts them, and agrees, either explicitly or implicitly to do its part to further those objectives *** is liable as a conspirator.’ ” McClure,
“A conspiracy is almost never susceptible to direct proof. [Citation.] Usually, it must be established ‘from circumstantial evidence and inferences drawn from evidence, coupled with common-sense knowledge of the behavior of persons in similar circumstances.’ [Citation.]” McClure,188 Ill. 2d at 134 ,720 N.E.2d at 258 .
If a civil conspiracy is shown by circumstantial evidence, that evidence must be clear and convincing, which is the level of proof that lies between a “preponderance of the evidence” standard and the “reasonable doubt” critеrion required for a criminal conviction. McClure,
Although the evidence presented as to a conspiracy between Yehuda and Miriam was partially circumstantial (since, as noted in McClure, it is difficult to obtain explicit testimony to that effect), Multiut also presented direct evidence that the couple acted together to form companies, including one company with “Multiut” in its name. Miriam’s “innocent spouse” defense is belied by her prior affiliation with Multiut, which began in 1989 when she was an IMA and continuеd when she assisted Yehuda in his work for Multiut. The evidence established that Miriam understood and accepted the general objectives of the conspiratorial scheme. We conclude that Multiut demonstrated by clear and convincing evidence that Yehuda and Miriam engaged in a civil conspiracy that enabled Yehuda to breach his contract with and his fiduciary duty to Multiut.
d. Award of Attorney Fees in Case No. 1 — 03—2855
Following the trial court’s January 2003 order granting judgment for Multiut on the complaint, Multiut sought more than $1 million in attorney fees. On August 26, 2003, the trial court entered a judgment of $1,002,046 for Multiut and against defendants.
Yehuda now contends that amount is unreasonable, arguing that three law firms are listed on Multiut’s brief аnd that the fee award equals a legal expense of about $30,000 per trial day for the approximately 35-day bench trial. Multiut responds that Yehuda did not challenge the fee award in his initial brief to this court (the above assertions were made in Yehuda’s reply brief) and that he has thereby waived his opposition to the judgment. Issues raised in the notice of appeal but not raised or argued to this court are generally deemed waived. In re Marriage of King,
As to Miriam’s liability for the fee award, she makes no argument other than remarking in the conclusion of her appellate brief that this court “reversed the assеssment of *** attorney fees.” Miriam presumably refers to the sua sponte order entered on January 30, 2004, and signed by one justice of this court that stated, inter alia, that Miriam was not named as a defendant in the count that resulted in the judgment of $1,002,046 and is not liable for that portion of the judgment.
Multiut argues that although Miriam apparently refers to the January 2004 order in contending that this court has reversed the fee award, that order has no effect on this appeal. Multiut asserts that an order signed by one appellate court justice has no operative effect, and it has appealed that issue to the Illinois Supreme Court (petition for leave to appeal No. 98015, filed March 5, 2004) 4
Multiut contends that Yehuda and Miriam, in thеir joint answer to Multiut’s petition in support of the fee award, did not argue that Miriam was not liable for the fees. Multiut points out that Miriam was represented by counsel at the hearing on the fee petition who did not contest her liability, and that although Miriam later argued in a motion to clarify the fee award that her liability should be reduced because of her lower degree of culpability, she did not assert that she bore no liability for the fee award.
Miriam does not respond to those contentions and offers no legal argument that would free her from the judgment against her and the other defendants. We therefore conclude that Miriam has waived any contention before this court that she is not hable for a portion of the fee award, though we note the supreme court has yet to rule on Multiut’s appeal of the January 2004 order. Because both Yehuda and Miriam have waived their arguments regarding the award of attorney fees in case No. 1 — 03—2855, the trial court’s judgment on that point is affirmed.
2. Case No. 1 — 04—1192
In a separate appeal, Yehuda raises two contentions as to the June 28, 2001, temporary restraining order. Yehuda first argues that the purpose of such an order is to preserve the status quo until a hearing can be held, and he asserts that after the expiration of the 14-day period in the order, the trial court failed to hold a hearing
Multiut responds that the trial cоurt began to hear testimony on Multiut’s motion for a preliminary injunction in March 2002 and that upon agreement of the parties, the court converted the matter to a trial on the merits of Multiut’s complaint (case No. 1 — 03—0857).
Multiut further contends that Yehuda never appealed the temporary restraining order and that he therefore has waived his right to challenge that injunctive relief. Multiut cites Supreme Court Rule 307(d) (188 Ill. 2d R. 307(d)), which requires appeals from the granting or denial of a temporary restraining order to be filed within two days of the entry or denial of the order. See Goodwin v. Puccini,
Yehuda’s second assertion is that the trial court judgments reflect a finding of dirеct criminal contempt, as opposed to indirect civil contempt, because the court ordered monetary fines for his past conduct. Yehuda argues that he was denied the constitutional protections that are required in a criminal contempt proceeding. 5 Multiut responds that Yehuda’s counsel raised this issue in the trial court, at which time the court clarified that the contempt proceedings against Yehuda were civil.
Contempt can be either criminal or civil and either direct or indirect; indirect contempt arises from conduct that occurred outside of the judge’s presence. In re Marriage of Morreale,
The record reveals that at the October 14, 2003, hearing on Multiut’s motion for sanctions and the pending rules to show cause, the trial court noted at one point, “I don’t think that there is any question that the petition before me is for indirect civil contempt.” Later in the hearing, Multiut’s attorney asked the court to consider a substantial monetary sanction against Yehuda fоr his continued failure to comply with the court’s orders, stating that the court could “convert this to criminal contempt and impose some kind of a criminal sanction.” Yehuda’s attorney replied that his impression was that the court was considering indirect civil contempt and not a form of criminal contempt. The court responded to Yehuda’s counsel that he was “correct” and that the proceeding was for indirect civil contempt. Multiut’s attorney and the court had a similar exchange later, with the court stating, “In today’s proceedings I indicated — I thought it was clear — that we are proceeding on indirect civil contempt.”
As demonstrated from that record, the court announced several times that it wаs considering civil contempt, not
3. Case No. 1 — 04—2377
Beginning in June 2001, the trial court entered a number of temporary restraining orders prohibiting defendants from, inter alia, using Multiut’s business plans and other materials or entering Multiut’s offices. Those orders extended through May 2002 via Multiut’s additional requests for injunctive relief.
In the trial court’s January 17, 2003, ruling on Multiut’s complaint, the court granted Multiut permanent injunctive relief, preventing Yehuda from engaging in the electronic аuditing and/or alternative sourcing business for electricity or gas for a period of 16 months. In January 2004, Multiut filed a petition for rule to show cause regarding Yehuda’s alleged violation of the order. After various hearings, the court extended the injunction to June 30, 2004. On that date, the trial court heard evidence on Multiut’s petition for rule to show cause and held that Yehuda had violated the January 2003 ruling and extended the injunction to October 17, 2004.
Yehuda now challenges the January 2003 ruling and the court’s June 30, 2004, order. Although the legal bases of his arguments are again difficult to decipher, Yehuda appears to argue that the court’s extensions of the original injunction were improper and that the injunction constituted a restraint on his speеch and his ability to do business.
Multiut responds that Yehuda’s notice of appeal was filed on August 18, 2004, which was more than 30 days beyond the entry of the June 30, 2004, order, and that this court therefore lacks jurisdiction. As a further ground for dismissal, Multiut contends that the appeal is moot because the injunction that originated in the January 2003 order (and was extended via the June 2004 order) expired on October 17, 2004. Multiut further asserts that even if Yehuda’s appeal was not mooted by the expiration of the injunctive relief, the trial court correctly found that Yehuda violated the injunction.
“It is a well-established proposition that jurisdiction only arises in the appellate court when a party timely files a notice of appeal.” Steinbrecher v. Stеinbrecher,
CONCLUSION
As to Multiut’s motion for sanctions against defendants for the filing of frivolous appeals, we note the continuous appeals that have been brought before this court, and we see little utility in ordering monetary sanctions against Yehuda and Miriam at this stage given the multitude and amount of money judgments that they already face. Multiut’s request for sanctions is therefore denied without prejudice.
For all of the aforementioned reasons, the judgments in case Nos. 1 — 03—0857, 1 — 03—2855 and 1 — 04—1192 are affirmed. Defendants’ appeal in case No. 1 — 04—2377 is dismissed.
Nos. 1 — 03—0857, 1 — 03—2855, 1 — 04—1192, Affirmed.
No. 1 — 04—2377, Dismissed.
CAMPBELL, EJ., and NEVILLE, J., concur.
Notes
Additional testimony will be discussed later in this order as it pertains to a particular issue.
Although Gershon was named as a defendant at one time, he was dismissed prior to trial on Multiut’s motion.
Multiut farther contends that circumstantial evidence, such as spoliation of evidence by a defendant, can support a finding of misappropriation. See Liebert,
That petition for leave to appeal remains pending before the supreme court; however, this court is not stripped of the ability to address the issue. See Whitcanock v. Nelson,
Yehuda again voices his frustration with the judicial system and argues that his pro se status places him at a disadvantage. We repeat our previous comment that Yehuda’s decision to represent himself does not require this court to apply a more lenient standard when considering the substance of his contentions.