author: JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MOZELL BROWN, Defendant-Appellee.
    Second District
    No. 2—88—0906
    Opinion filed October 27, 1989.

      James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s Offices, of counsel), for the People.
    James A. McCarron, of Law Office, of James A. McCarron, of Chicago, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

The State appeals from an order of the circuit court which suppressed evidence seized from the person of defendant, Mozell Brown, in a search conducted after defendant was stopped for traffic offenses. The State contends that the arresting officer was justified in stopping defendant’s vehicle for traffic violations and that the search was lawful as it was provoked by defendant’s furtive movements. We affirm.

State Trooper Jeff Patterson testified at the hearing of defendant’s motion to suppress evidence that on May 12, 1988, at 11 p.m., he observed defendant driving an automobile west on Interstate 290 in Du Page County and paced defendant’s vehicle at 85 miles per hour in a 55-miles-per-hour speed zone. The vehicle began to exit the highway, without signaling, then suddenly returned to it, narrowly missing the officer’s patrol car. Patterson activated his Mars light and siren, and defendant pulled over and stopped in an area along the highway which had lights on each side. As the officer approached the vehicle, he saw defendant was behind the steering wheel and another person was in the front passenger seat. Defendant reached up toward the dashboard with his right hand and then down to the floor on the passenger’s side. The officer did not see any object in defendant’s hand.

Officer Patterson further testified that defendant remained seated in the car with the window rolled down. The officer advised defendant why he had stopped him, and defendant responded, “Yes, I was speeding.” The officer requested identification, and defendant produced his driver’s license, which the officer examined, then told defendant to step out of the car. The passenger remained in the front seat.

Outside of the car, the officer directed defendant to turn and face the vehicle and conducted a pat-down search of his body, outside of his clothes. He felt a hard object in the front pocket of defendant’s jacket and, at that time, defendant turned and moved to put his hand in the pocket. The officer pushed defendant back against the car and directed him to place his hands upon it, but defendant again reached for his jacket pocket. The officer thereupon drew his revolver, pointed it at defendant and called on his hand radio for assistance. He then grabbed defendant by the shoulder and, at gun point, walked him back to the police car and put defendant over the hood. Defendant’s hands were handcuffed behind his back, and the officer removed the contents of his pocket; he then put defendant down on the grass. In the pocket, the officer found a set of keys, pair of sunglasses, matches and two rolled cigarettes. Other officers arrived, and a search of the car revealed a radar detector on the floor by the passenger’s seat.

When asked whether he had observed anything unusual about defendant prior to conducting the pat-down search, the officer referred only to the movement defendant made with his hand from the car dash to the floor when he was first stopped for the traffic offenses. The officer stated he saw nothing in defendant’s hand at that "time.

As relevant to our inquiry, defendant’s testimony was essentially parallel to that of the officer except defendant stated that when the officer was searching him and felt a hard object, the officer asked what it was and defendant started to reach into the pocket to remove the sunglasses and wallet he carried there. At that point, the officer drew his weapon and defendant was handcuffed.

Defendant’s passenger, Eworth Dickerson, testified that defendant cooperated with the officer and that at the time they were pulled over, defendant moved a radar detector from the dashboard to the floor of the car.

Officer Patterson charged defendant "with speeding, improper lane usage, unlawful possession of a controlled substance and possession of cannabis. The trial court found that the officer had no lawful basis to search defendant and suppressed the evidence seized from his person.

There is no question in this case that Officer Patterson had a basis for the initial stop of the vehicle for traffic offenses, as an officer may briefly detain an individual where there are articulable facts that there is a substantial possibility that an individual has committed, is committing, or is about to commit a criminal offense. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) At issue is whether defendant’s movement within the vehicle as the officer approached provided a sufficient basis for a pat-down search of his person.

The decision to suppress evidence will not be reversed unless the ruling is manifestly erroneous. (People v. Rodriguez (1987), 154 Ill. App. 3d 401, 402, 506 N.E.2d 1064, 1065.) The fact that an officer has reason to stop a citizen does not necessarily justify the further intrusion of a search, and the officer may conduct a pat-down search only if he has a reasonable belief that he is dealing with an armed and dangerous individual and that his safety, or the safety of others, is in danger. (People v. Franklin (1985), 131 Ill. App. 3d 479, 483, 475 N.E.2d 933, 936.) However, in determining the validity of the search, the courts should not set the test of sufficient suspicion that the defendant is armed and presently dangerous too high when the protection of the investigating officer is at stake. People v. Kantowski (1983), 98 Ill. 2d 75, 81, 455 N.E.2d 1379, 1382.

“In the course of the investigatory stop, the officer may, in the interest of his own protection, conduct a reasonable search for weapons where he has reason to believe that he is dealing with a person who is armed and dangerous. The officer need not be certain that the person is armed. It is sufficient if a reasonably prudent man under the circumstances would be warranted in believing that his safety or the safety of others was in danger. Because the justification for the search is the protection of the officer, the scope of the search must be limited to an intrusion that is designed to discover instruments endangering the officer, such as guns, knives or clubs.” (Emphasis added.) 98 Ill. 2d at 80, 455 N.E.2d at 1381.

The State cites People v. Rodriguez (1987), 154 Ill. App. 3d 401, 506 N.E.2d 1064, and People v. Houldridge (1983), 117 Ill. App. 3d 1059, 454 N.E.2d 769, for the proposition that defendant’s movements as the officer approached his vehicle would justify a reasonably prudent officer in believing his safety was in danger, and that the vehicle’s passenger may have had access to a weapon, thereby justifying the pat-down search of defendant. However, in Rodriguez and Houldridge, while passengers made furtive movements in the car, this was coupled with other factors which justified the search of defendants. In Rodriguez, the defendant was loitering late at night in an area where several garage burglaries had recently occurred and was consuming alcohol in a public place. (Rodriguez, 154 Ill. App. 3d at 403, 506 N.E.2d at 1066.) In Houldridge, the police relied on information acquired over the police radio that the registration of the vehicle was expired or invalid, and the subsequent search was based in part on the officer smelling the odor of marijuana, and defendant dropping a marijuana cigarette as the officer approached. Houldridge, 117 Ill. App. 3d at 1063-64, 454 N.E.2d at 772.

In the present case the officer properly stopped defendant for traffic violations, but had no reasonable basis which he could articulate to conduct the search after ordering defendant out of the car. When requested, the defendant did produce his driver’s license in a manner which caused no alarm to the officer, who examined it and then ordered defendant out of his car and searched him. There is no evidence that the license was improper in any way or alerted the officer to the possibility of personal risk. No authority has been offered by the State, or seen in our research, which would permit even a limited search of a defendant’s person simply because he has been stopped for a traffic violation for which, ordinarily, a citation would be issued for a later court appearance.

The State here relies upon the “movement” made by defendant when stopping the vehicle on signal by the officer. The fact that the movement of defendant’s hand from the dash to the floor of the car was later disclosed as a harmless effort to get his radar detector out of sight does not affect the issue we consider. The question remains whether a reasonably prudent man would, under the circumstances, be warranted in believing his safety was in danger solely because of the movement. We think not.

In our view it was not reasonable for the officer to place defendant against his car and search him under the facts then known to the officer. If vague movements within a traffic violator’s vehicle are considered sufficient, without other facts suggesting possible danger to the officer, to conduct even a limited search of the violator’s person, similar unwarranted police intrusions of this nature would surely be generated. (People v. Collins (1977), 53 Ill. App. 3d 253, 368 N.E.2d 1007; People v. Myers (1978), 66 Ill. App. 3d 934, 384 N.E.2d 516.) As, in the present case, the “hard” object in defendant’s jacket pocket (sunglasses) was noted only by reason of the improper search, that fact cannot be considered as support for the reasonableness of the initial search.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

UNVERZAGT, P.J., and REINHARD, J, concur.


source: Caselaw Access Project

author: JUSTICE REINHARD

license: Public Domain

text:
    BARBARA G. BARTH, Plaintiff-Appellee, v. JAMES J. REAGAN, Defendant-Appellant.
    Second District
    No. 2—89—0075
    Opinion filed October 27, 1989.

      Snyder, Clarke, Dalziel & Johnson, of Waukegan (Julian Johnson, of counsel), for appellant.
    Rita Farrell, of Early, Collison, Tousey, Regan & Farrell, of Elgin (John F. Early, of counsel), for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, Barbara G. Barth, filed suit in the circuit court of Lake County against defendant, James J. Reagan, seeking recovery, under a theory of attorney malpractice, for the loss of equity in certain real estate properties allegedly resulting from defendant’s negligence in the defense of foreclosure actions on the properties. Plaintiff’s second amended complaint contained counts against Northbrook Trust & Savings Bank, but the circuit court dismissed these counts, and its judgment was affirmed by this court in Barth v. Reagan (1986), 146 Ill. App. 3d 1058, 497 N.E.2d 519. The cause proceeded to a jury trial on plaintiff’s fourth amended complaint, and, following a jury verdict for plaintiff, judgment was entered on the verdict in the amount of $48,604.90, representing $69,435.57 total damages reduced by 30% representing plaintiff’s contributory negligence.

The issues raised by defendant on appeal are: (1) whether the circuit court erred in submitting the issue of attorney malpractice to the jury without the expert testimony of an attorney witness; (2) whether the circuit court erred in permitting plaintiff to use an expert real estate appraiser as a witness who had not been disclosed; and (3) whether the circuit court erred in allowing damages in the nature of economic loss to stand in this action based on negligence.

Plaintiff’s fourth amended complaint alleged, in pertinent part, that defendant owed plaintiff a duty to notify her and keep her fully informed of the status of litigation involving her property; that defendant owed plaintiff a duty to advise her of her rights and obligations with respect to such actions; and that defendant negligently failed to inform plaintiff of the pendency of foreclosure actions against her property, or to advise her of her right to cure defaults or redeem the property. The complaint also alleged that defendant breached a duty to plaintiff in that certain of his employees notarized documents purporting to bear plaintiff’s signature which were not signed in their presence, and in doing so prevented plaintiff from learning of pending foreclosure actions against her property.

Evidence adduced at trial establishes the following facts. Plaintiff is a licensed real estate agent and broker currently living in Arizona. Plaintiff was first licensed as an agent in 1970. Prior to 1986, plaintiff lived in Glenview, Illinois, where she had been employed as a realtor.

In the summer of 1976, plaintiff and her husband at that time, Edward Barth, consulted defendant about purchasing rental properties for investment purposes. They informed defendant that they intended for Edward to manage the property, to collect rent, and to make mortgage payments. Defendant suggested that the properties and the Barths’ residence, purchased by plaintiff prior to her marriage to Edward, be placed into land trusts, with plaintiff holding the beneficial interests. Defendant stated that he would direct that inquiries regarding the trusts be sent to him. Later in 1976, the Barths purchased two investment properties, located at 1128 and 1130 Inverrary in Deer-field, Illinois. These properties and the Barths’ residence were placed into land trusts in which plaintiff held the entire beneficial interests and Edward Barth was given the power of direction. The trust agreements were prepared by defendant. In 1977, the Barths purchased a third investment property located at 1420 Wilshire Drive in Vernon Hills, Illinois.

Subsequently, foreclosure actions were instituted with respect to all the properties. Defendant testified that he became "aware of the foreclosure proceedings when Edward Barth brought the summonses in those actions into his office. Defendant entered appearances on behalf of plaintiff and her husband in three foreclosure actions in Lake County and filed answers in certain of the actions. Two of the answers bore signatures purporting to be plaintiff’s and were notarized by employees of defendant. The evidence does not disclose the circumstances under which the employees notarized the signature.

Plaintiff testified that she was unaware that any foreclosure action had been instituted until June 1, 1981, when her husband told her “the properties are all gone.” Plaintiff telephoned defendant, who also told her the properties were “gone.” Plaintiff met with defendant the following day at his office. Plaintiff testified that she asked defendant why he did not inform her of the foreclosure proceedings. Defendant responded that “he couldn’t” without further explanation. According to plaintiff’s daughter, also present at the meeting, defendant said Mr. Barth had told him not to inform plaintiff. Plaintiff testified that she did not sign the answers in the foreclosure actions purporting to bear her signature and that defendant had never personally consulted or spoken with her in connection with the foreclosures prior to June 2, 1981. Plaintiff further testified that she had not been served with summons in any of the foreclosure proceedings. In at least one of the foreclosures, the summons was apparently served on plaintiff by substitute service on her husband.

Plaintiff and Edward Barth were divorced in April 1982, and Edward’s whereabouts at the time of trial were unknown.

Defendant, called by plaintiff as an adverse witness, testified that he never personally met with plaintiff nor did he telephone her to advise her of the foreclosure proceedings or any right she might have to cure the defaults. However, defendant sent letters concerning the foreclosures which were addressed jointly to plaintiff and her husband. One of the letters dated October 9, 1980, indicated that a sheriff’s sale of the marital residence located at 1817B Wildberry had been conducted and Mr. and Mrs. Barth had 90 days within which to redeem the property. Another letter dated October 15, 1980, referred to “various litigation matters” and indicated that the property at 1130 Inverrary Lane had been sold and the redemption period would expire on November 1, 1980. The letter also indicated that a sheriff’s sale of the property at 1128 Inverrary was imminent. Defendant testified that he set up a series of appointments with Mr. Barth to bring plaintiff in, but they never came in. Defendant denied telling plaintiff at the June 2, 1981, meeting that he “couldn’t” tell her about the foreclosures previously. Rather, defendant testified that he told plaintiff that he had sent her numerous letters.

Stephen Tennant, an attorney and defendant’s associate during the period in question, testified that he was assigned to handle two of the foreclosure actions against the Barths. Tennant met with Edward Barth on at least one occasion and had seen him in the office three or four times between 1979 and 1981. Tennant never saw plaintiff in the office during this period of time. On the occasions when Tennant saw Mr. Barth, he appeared intoxicated. According to Tennant, defendant also represented the Barths in connection with criminal charges of failure to file tax returns and represented Mr. Barth in a traffic matter. Tennant testified that the checks Mr. Barth tendered to pay his bill from defendant were returned N.S.E, and Barth eventually settled his account in cash. Tennant admitted that he notarized one of the answers purporting to bear plaintiff’s signature although he did not observe her signing it.

During trial, defendant moved to bar Samuel Levine, an attorney, and Darwin J. Dietrick, a real estate appraiser, from testifying as experts, because of plaintiff’s failure to disclose them pursuant to Supreme Court Rule 220(b) (107 Ill. 2d R. 220(b)). Defendant asserted that plaintiff first disclosed these witnesses by a letter dated August 22, 1988, less than 60 days prior to the start of trial. During argument on the motion, it was established that in 1984, plaintiff had furnished defendant’s attorney with real estate appraisal reports prepared by Dietrick and had sent a letter indicating that plaintiff planned to call a real estate appraiser as an expert witness. The trial court granted defendant’s motion as to Levine, but allowed Dietrick to testify.

Dietrick testified that he appraised the properties located at 1128 and 1130 Inverrary and 1420 Wilshire in February 1984. According to Dietrick, 1128 Inverrary was worth $56,500 on July 8, 1980, and May 16, 1981, 1130 Inverrary was worth $58,580 on May 23, 1980, and 1420 Wilshire was worth $69,000 on June 18, 1980, and May 24, 1981. Loan amortization tables showing the monthly outstanding principal balances on the loans were admitted into evidence.

Plaintiff testified that she was financially able to pay the arrearages on the properties and would have done so had she been aware of the foreclosures. Following the foreclosure on her residence, plaintiff was able to repurchase the residence. In order to do so, plaintiff borrowed $72,000 at 16% interest. Plaintiff had paid 6SA% on the original loan.

Following the denial of defendant’s motions for a directed verdict at the close of plaintiff’s case in chief and at the close of all evidence, the jury returned a verdict in favor of plaintiff in the amount of $48,604.90 ($69,435.57 total damages reduced by 30% representing plaintiff’s contributory negligence).

Defendant initially contends that the circuit court erred in submitting the issue of attorney malpractice to the jury without the expert testimony of an attorney witness. Defendant’s motions for a directed verdict at the close of plaintiff’s case and at the close of all the evidence based on the lack of such expert testimony were denied. Defendant argues that Illinois case law requires expert testimony to establish the standard of care in a legal malpractice action except under the “common knowledge” exception, where the attorney’s negligence is so grossly apparent that a layman would have no difficulty in recognizing it without such expert testimony. He maintains that the exception is inapplicable under the evidence in this case.

Plaintiff responds that the evidence presented shows an absolute lack of communication between defendant and plaintiff concerning the four mortgage foreclosure actions brought against the land trusts in which plaintiff was the sole beneficiary. She contends that an attorney has the duty to communicate with a client concerning the progress of a legal matter so that the client can make fully informed choices and take proper steps to protect one’s interest. She further argues that defendant’s failure to communicate with her, the client, was so clearly and obviously a breach of duty that a lay person could appraise it without expert testimony.

In an action for legal malpractice, the plaintiff must prove that the defendant attorney owed plaintiff a duty of due care arising from the attorney-client relationship, that the defendant breached that duty, and that, as a proximate result, the plaintiff sustained injury. (Sexton v. Smith (1986), 112 Ill. 2d 187, 193, 492 N.E.2d 1284.) Only when an attorney fails to exercise a reasonable degree of professional care and skill will he be liable to his client. (Sexton, 112 Ill. 2d at 193, 492 N.E.2d at 1286-87.) Illinois Appellate Court decisions have held that, as a general rule, expert testimony is required to establish the standard of care and its breach in legal malpractice cases; but where the attorney’s negligence is so grossly apparent that a layman would have no difficulty in recognizing it, expert testimony is not required. (Gray v. Hallett (1988), 170 Ill. App. 3d 660, 663, 525 N.E.2d 89; Schmidt v. Hinshaw, Culbertson, Moelmann, Hoban & Fuller (1979), 75 Ill. App. 3d 516, 522, 394 N.E.2d 559; House v. Maddox (1977), 46 Ill. App. 3d 68, 71-73, 360 N.E.2d 580.) Expert testimony has been held to be unnecessary in Illinois only in cases where the attorney has failed to comply with the statute of limitations (House v. Maddox (1977), 46 Ill. App. 3d 68, 360 N.E.2d 580), where the attorney failed to obtain service on a defendant before the statute of limitations ran (Gray v. Hallett (1988), 170 Ill. App. 3d 660, 525 N.E.2d 89), and where the attorney failed to take any action whatsoever in connection with estate matters entrusted to him (Sorenson v. Fio Rito (1980), 90 Ill. App. 3d 368, 413 N.E.2d 47).

Illinois follows the generally accepted rule from other jurisdictions that expert evidence is required in a legal malpractice case to establish the attorney’s breach of his duty of care except in cases where the breach or lack thereof is so obvious that it may be determined by the court as a matter of law, or is within the ordinary knowledge and experience of laymen. (Annot., 14 A.L.R.4th 170 (1982); 2 R. Hallen & J. Smith, Legal Malpractice §27.15 (3d ed. 1989).) The most common reason for producing expert testimony is to establish both the standard of care and a deviation therefrom. (2 R. Hallen & J. Smith, Legal Malpractice §27.16, at 676 (3d ed. 1989).) There are, however, three reasonably well-defined exceptions to this rule: (1) where the area of the alleged negligence is within the common knowledge of a lay person; (2) where the claimed error was the failure to follow the client’s instructions; and (3) where the attorney concedes that the charged misconduct constitutes malpractice, but denied that the conduct took place. (2 R. Hallen & J. Smith, Legal Malpractice §27.15, at 671-73 (3d ed. 1989).) Here, we are concerned only with the “common knowledge” exception.

The most typical example of the “common knowledge” exception to the requirement of expert testimony is the attorney allowing the statute of limitations to run against his client, as occurred in House v. Maddox (1977), 46 Ill. App. 3d 68, 360 N.E.2d 580. Another line of cases applying this exception in other jurisdictions involves an unexcused failure of the attorney to communicate material matters to the client. (2 R. Hallen & J. Smith, Legal Malpractice §27.15, at 672 (3d ed. 1989).) It is in this context that plaintiff contends the total failure of defendant, her attorney, to communicate with her concerning the foreclosure suits was negligence so grossly apparent that the experience and common sense of lay persons would suffice to establish the standard of care. We disagree.

While defendant did not communicate directly with plaintiff following the filing of the foreclosure suits, the evidence shows that plaintiff’s husband, Edward Barth, who was designated in the trust agreements to direct the trustee in dealings with the properties, brought the summonses on the foreclosure suits to defendant for legal representation of plaintiff and himself. Defendant, who had drawn up the trust agreements on the subject properties at the direction of plaintiff and her husband, knew that the husband was managing the rental properties. Thus, he filed answers or appearances in the foreclosure suits at the direction of the husband whom he knew was the managing agent for the properties and the spouse of the beneficial owner, plaintiff. Plaintiff’s husband met thereafter with defendant and his associate concerning the lawsuits. Defendant testified that he attempted to set up meetings with both plaintiff and her husband but was unsuccessful.

Further, during the course of the litigation at least two letters were sent to plaintiff’s home addressed to her and her husband explaining the progress on the foreclosure suits and the time period for redemption. Plaintiff testified she never received the letters. It is apparent from the record that her husband did not inform her about the delinquencies in the mortgage payments which led to the foreclosure suits and kept from her any knowledge of the lawsuits. She was not personally served with the summons on these suits. Rather, it appears there was substitute service on her by serving a copy on her husband at their abode.

Under the circumstances set forth above, defendant did communicate with plaintiff’s spouse, who managed the properties at issue, concerning the lawsuits and did write two letters addressed to plaintiff and her husband concerning the suits and the redemption period. Whether defendant’s conduct in representing plaintiff through communication with her husband on the properties the husband managed for them and in filing verified answers to the suit without observing plaintiff sign the answers was a deviation from the applicable standard of care must be established by the expert testimony of an attorney. On these facts, we cannot say that the failure to actually personally communicate with plaintiff constituted negligence so grossly apparent that a layman would have no difficulty in recognizing it. The factual matters present here are such that the issue of negligence is not sufficiently clear so as to be determined by layman under the “common knowledge” exception, but falls within the well-recognized general rule that expert testimony is necessary to establish the standard of care owed by an attorney.

As the evidence was submitted by plaintiff without the required expert testimony, the circuit court erred in not granting defendant’s motion for a directed verdict at the close of plaintiff’s case. Accordingly, the judgment for plaintiff is reversed. We, therefore, need not resolve the other two issues raised on appeal by defendant.

Reversed.

UNVERZAGT, P.J., and WOODWARD, J., concur.


author: JUSTICE DUNN

text:
    DOWNERS GROVE VOLKSWAGEN, INC., d/b/a Downers Grove Saab, Plaintiff-Appellant, v. WIGGLESWORTH IMPORTS, INC., Defendant-Appellee.
    Second District
    No. 2—88—1266
    Opinion filed October 23, 1989.

      Maurice P. Raizes and Cornelius P. Brown, both of Cohon, Raizes & Regal, of Chicago (Carol L. Johnson, of counsel), for appellant.
    Gregory A. Rode, of Sheridan & Associates, of Wheaton (Gerald M. Sheridan, Jr., of counsel), for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, Downers Grove Volkswagen, Inc., sued defendant, Wigglesworth Imports, Inc., over a brochure published by defendant that plaintiff alleges reported false information about plaintiff’s services. All three counts of plaintiff’s amended complaint were dismissed pursuant to defendant’s section 2 — 615 motion. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615.) Plaintiff elected to stand on its amended complaint and timely filed this appeal.

Plaintiff raises the following issues: (1) whether the trial court erred in dismissing count I because plaintiff failed to allege a reasonable business expectancy and whether plaintiff sufficiently pleaded damages; (2) whether the trial court erred in dismissing count II because plaintiff failed to allege special damages; and (3) whether the trial court erred in dismissing count III because plaintiff was not a consumer under the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1987, ch. 1211k, par. 261 et seq.). We affirm in part and reverse and remand in part.

In count I of its complaint, plaintiff alleged tortious interference with its business, alleging that defendant sent to numerous owners of Saab automobiles, including customers of plaintiff, a brochure which falsely reported the prices plaintiff charged for service inspections. Plaintiff alleged that the price it charged for a 15,000-mile inspection was approximately $123 less than that stated in the brochure, and the price listed in the brochure could not have been verified as the brochure stated. Plaintiff alleged defendant should have known that the prices in the brochure were false and that defendant’s acts were motivated by malice with the express intention of maliciously hindering plaintiff’s business. Plaintiff alleged it suffered damage to its standing, reputation, prestige, good will, and business.

In count II plaintiff sued defendant for libel. Plaintiff alleged defendant intended to convey to customers that plaintiff was gouging its customers with its prices, and at least one customer intended to stop transacting business with plaintiff because of the brochure.

In count III plaintiff sued for damages under the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1987, ch. 1211/2, par. 261 et seq.). Plaintiff alleged that the brochure disparaged plaintiff’s services, thus violating section 2(8) of the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1987, ch. 121V2, par. 312), which is incorporated in the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1987, ch. I2IV2, par. 262). Plaintiff alleged the same damages as count I.

Defendant moved to dismiss plaintiff’s amended complaint under section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615). Defendant contended count I was deficient because it failed to allege a reasonable expectancy where it failed to allege an enforceable contract, and it failed to allege facts to prove the elements of tortious interference with prospective business, especially damages. The trial court ruled that count I failed to state a cause of action because it failed to allege a reasonable business expectancy.

Defendant moved to dismiss count II because it failed to allege facts to constitute libel per se or libel per quod. The court dismissed this count because plaintiff failed to allege special damages.

Defendant moved to dismiss count III because plaintiff failed to allege actual damages. The trial court ruled that plaintiff could not sue under the Consumer Fraud and Deceptive Business Practices Act because plaintiff was not a consumer under the Act.

Plaintiff contends the trial court erred in dismissing all three counts of its complaint under section 2 — 615 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615). A cause of action will not be dismissed under section 2 — 615 unless it clearly appears that no set of facts can be proved which entitle plaintiff to recover. (Century Universal Enterprises, Inc. v. Triana Development Corp. (1987), 158 Ill. App. 3d 182, 187.) All facts which are well pleaded are to be construed as true, as well as all reasonable inferences favorable to the nonmoving party which can be drawn from those facts. 158 Ill. App. 3d at 187.

Plaintiff first contends the trial court erred in dismissing count I, which alleged tortious interference with prospective business expectancies. To plead a cause of action for tortious interference with prospective business expectancies, plaintiff must allege (1) a reasonable expectation of entering into a valid business relationship; (2) defendant’s knowledge of the expectancy; (3) defendant’s intentional and malicious interference to defeat the expectancy; and (4) injury. (Resudek v. Sberna (1985), 132 Ill. App. 3d 783, 790; see also Restatement (Second) of Torts §766B (1979).) The trial court held plaintiff failed to plead that it had a reasonable business expectancy. Plaintiff’s complaint alleged that it had good relations with its customers and that approximately 80% of the people who bought Saab automobiles from plaintiff returned for inspection services, and it expected to continue to provide inspection services to its customers. The trial court ruled that plaintiff’s expectancy was not reasonable because “[tjaken to its logical conclusion, such an expectation would result in making anyone who induces prior customers of the plaintiff to get work done at a competitor liable for a business tort against the plaintiff.”

The trial court’s analysis is flawed. The trial court is correct that one may not simply sue any competitor who lures away customers; however, the privilege of competition is not available to those who use wrongful means to interfere. (See Restatement (Second) of Torts §768 (1979).) Neither party has raised the issue of whether plaintiff has adequately pleaded wrongful conduct in this case, but to resolve the trial court’s ruling, we must address it. Plaintiff has alleged that defendant published false information about its prices for services and that defendant could not have verified these prices as it stated in the brochure. Plaintiff alleged defendant should have known the prices were false and defendant’s conduct was done with malice to deliberately hinder plaintiff’s business. The reasonable inference from these allegations is that defendant published information about plaintiff’s prices without knowing whether the prices were accurate. Thus, plaintiff essentially alleges that defendant published the information with reckless disregard for its truth. These pleadings fall short of alleging the clearly improper conduct of fraudulent misrepresentation, a representation which to the knowledge or belief of its utterer is false (Restatement (Second) Torts §767 comment c (1979)). In our opinion, however, an allegation that a party essentially printed information with a reckless disregard for the truth is sufficient to allege improper conduct. In the Restatement (Second) of Torts section 767 (1979), the following factors are listed for considering whether conduct is improper:

“(a) the nature of the actor’s conduct,
(b) the actor’s motive,
(c) the interests of the other with which the actor’s conduct interferes,
(d) the interests sought to be advanced by the actor,
(e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other,
(f) the proximity or remoteness of the actor’s conduct to the interference and,
(g) the relations between the parties.”

Consideration of these factors shows that plaintiff has sufficiently alleged wrongful conduct. The alleged nature of the defendant’s conduct in this case is a reckless disregard for the truth. The defendant’s motive and interest may be to compete, but there are no social interests in protecting defendant’s right to publish pricing information about a competitor when it does not know whether that information is true. To the contrary, there is a great social interest to discourage a party from printing pricing information about a competitor when it has no knowledge of its truth or falsity.

The trial court confused the issue of competition with the issue of whether plaintiff alleged a reasonable business expectancy. Plaintiff must plead facts to show interference of a business relationship with specific third parties or an identifiable prospective class of third persons. (Parkway Bank & Trust Co. v. City of Darien (1976), 43 Ill. App. 3d 400.) This does not mean, however, that plaintiff must allege the identity of the third party or parties by name. (Crinkley v. Dow Jones & Co. (1978), 67 Ill. App. 3d 869, 878.) In Crinkley, the court aptly pointed out that the reason for the rule stated in Parkway was that the plaintiff had failed to allege the existence of any third party. (Crinkley, 67 Ill. App. 3d at 878-79.) Plaintiff’s allegation that approximately 80% of the people that bought Saabs from its dealership return for inspection services and that it expected to continue to provide service to its customers is sufficient to allege a reasonable expectancy of a prospective business relationship with an identifiable class of third persons. Here, unlike Parkway, a class of identifiable third persons, past and future customers, has been alleged. (See O’Brien v. State Street Bank & Trust (1980), 82 Ill. App. 3d 83, 85 (allegation of numerous customers and suppliers sufficiently alleged an identifiable third party).) Furthermore, this expectancy is reasonable. As North Broadway Motors, Inc. v. Fiat Motors of North America, Inc. (N.D. Ill. 1984), 622 F. Supp. 466, 469, held, the opportunity to obtain customers is an expectancy protected by the tort of interference with a business expectancy. See also Knapp v. McCoy (N.D. Ill. 1982), 548 F. Supp. 1115, 1117, citing Prosser, Torts §130, at 950 (4th ed. 1971).

Defendant also contends count I is deficient for failure to allege actual damages. Though this contention was not ruled upon by the lower court, an appellate court may sustain the trial court’s dismissal of a complaint upon any basis found in the record. (Goldberg v. Goldberg (1981), 103 Ill. App. 3d 584, 587.) Plaintiff alleged that its “standing, reputation, prestige, good will, and business has [sic] been greatly damaged and shall in the future be damaged.” Defendant does not contend that plaintiff was required to plead special damages but argues that plaintiff has failed to plead actual damages. Defendant does not define what it means by actual damages, but cites in support of its position: O’Brien (82 Ill. App. 3d at 85), where plaintiff alleged bankruptcy; La Rocco v. Bakwin (1982), 108 Ill. App. 3d 723, where plaintiff sought damages for a dissolved law practice; North Broadway Motors, Inc. (622 F. Supp. 466), where plaintiff alleged its dealership had to be sold at a loss; and Knapp (548 F. Supp. 1115), where plaintiff alleged lost profits. These cases may provide examples of damage pleading in more specific terms than the complaint in this case; however, nothing in these cases suggests that this degree of particularity is required as a rule. Defendant has not cited one case where a pleading has been dismissed for failure to plead general damages.

“It is an established rule of pleading that general damages, as distinguished from special damages, need not be specifically pleaded. This rule applies whether the action is in contract or tort, and for personal injuries as well as property damage. The reason for the rule is that the defendant should not be surprised by a proffer of proof of the item of damage, since it is the natural and necessary consequence of the compensable injury alleged.” 22 Am. Jur. 2d Damages §825, at 870-71 (1988).

See also City of Chicago v. McLean (1890), 133 Ill. 148.

In this case, though plaintiff’s allegation of damages is far from an exemplary model of Illinois pleading, it appears sufficient to plead general damages. The reasonable inference from the facts alleged is that plaintiff lost customers.

In his second issue, plaintiff contends the trial court erred in dismissing count II for libel on the basis that it failed to plead the required special damages for libel per quod. Plaintiff does not dispute the trial court’s determination that the action was libel per quod, but contends that it pleaded special damages.

To state an action for libel per quod, special damages must be alleged with particularity, and general allegations as to damages are insufficient. (Bruch v. Cincotta (1977), 56 Ill. App. 3d 260, 266.) In count II, plaintiff alleged:

“At least one regular customer of [pjlaintiff received the [bjrochure and intended to stop transacting business with [pjlaintiff because of the false prices listed on the [bjrochure.”

Citing Halpern v. News-Sun Broadcasting Co. (1977), 53 Ill. App. 3d 644, plaintiff contends this allegation is sufficient to plead special damages. In Halpern, the court held that an allegation that plaintiff lost income and continues to lose income as a result of patients leaving the home and other patients removing their applications was a sufficient allegation of special damages. (Halpern, 53 Ill. App. 3d at 653; but see Bruch v. Cincotta, 56 Ill. App. 3d at 267-68.) Defendant argues that plaintiff’s allegation is distinguished from Halpern because plaintiff’s allegation that a customer “intended” to no longer do business does not allege actual damage. Defendant’s argument is convincing. Though one may have intended to stop doing business with plaintiff, there is no damage if that person did not actually stop doing business with plaintiff. Since plaintiff does not allege that a customer stopped doing business, plaintiff’s complaint fails to allege special damages.

Though it is not necessary to address defendant’s other argument in support of dismissal of the complaint, it is noted that defendant’s argument that plaintiff’s complaint fails to allege a cause of action for libel is correct. Words which reflect on a business’s integrity or reputation may give rise to a defamation action. (Crinkley, 67 Ill. App. 3d 869.) Here, false prices do not impugn the integrity of the plaintiff.

Lastly, plaintiff contends the trial court erred in dismissing count III, which alleged violation of the Consumer Fraud and Deceptive Business Practices Act (the Act) (Ill. Rev. Stat. 1987, ch. 121V2, par. 261 et seq.). The trial court ruled that the Act applied only to consumers and plaintiff was not a consumer under the Act.

Section 2 of the Act provides:

“Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the ‘Uniform Deceptive Trade Practices Act,’ approved August 5, 1965, in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby.” Ill. Rev. Stat. 1987, ch. I2IV2, par. 262.

Section 270a of the Act provides that any person who suffers damage as a result of the Act may bring an action against such person and the court may in its discretion award damages. (Ill. Rev. Stat. 1987, ch. I2IV2, par. 270a.) The preamble to the Act states that it is “to protect consumers and borrowers and businessmen against fraud, unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” Ill. Rev. Stat. 1987, ch. I2IV2, preamble to the Consumer Fraud and Deceptive Business Practices Act.

Plaintiff contends that the Act clearly does not limit its protection strictly to consumers. The case law interpreting whether the Act is limited to consumers is conflicting. Plaintiff relies on a fourth district case with facts very similar to the instant case in which the court upheld liability under the Act. (M & W Gear Co. v. AW Dynamometer, Inc. (1981), 97 Ill. App. 3d 904.) In M & W, defendant was found liable under the Act for publishing misleading advertising about plaintiff’s product. (97 Ill. App. 3d at 913.) The court rejected defendant’s argument that plaintiff was required to prove and allege that defendant’s conduct had an adverse affect on the public. (97 Ill. App. 3d at 914.) Another case cited by plaintiff is Pain Prevention Lab, Inc. v. Electronic Waveform Labs, Inc. (N.D. Ill. 1987), 657 F. Supp. 1486. In this case, plaintiff alleged defendant made misrepresentations to prospective customers that its product was patented and approved by the United States Food and Drug Administration. (657 F. Supp. at 1493.) Interpreting Illinois law, the court stated:

“[Deceptive conduct is not actionable under the Consumer Fraud Act unless the conduct involves trade practices addressed to the market generally or otherwise implicates consumer protection concerns. See, e.g., Heritage Ins. Co. v. Bank of Cicero, 629 F. Supp. 1412, 1419 (N.D. Ill. 1986). However, businesses have standing to sue under the Consumer Fraud Act to redress competitive injury they suffer when other businesses deceive customers. Newman-Green Inc. v. Alfonzo-Larrain, 590 F. Supp. 1083, 1087 & n.6 (N.D. Ill. 1984). According to the complaint EWL made the alleged misrepresentations ‘in the marketplace and to actual and/or prospective customers.’ Count III states a claim for damages under the Consumer Fraud Act.” 657 F. Supp. at 1493.

Defendant counters that two recent cases from the first and second districts have held that the Act does not apply to businesses which are not suing as consumers. In Allcare, Inc. v. Bork (1988), 176 Ill. App. 3d 993, 1003, the Appellate Court for the First District held the Act was “intended to provide redress only to consumers generally, not to businesses injured by other businesses where they are not consumers of each other’s goods or services.” It is noted that the statement in Allcare is dicta. The court made this statement after holding that the cause of action was barred for other reasons. (176 Ill. App. 3d at 1003.) In Century Universal Enterprises, Inc. v. Triana Development Corp. (1987), 158 Ill. App. 3d 182, 199, this court held that the disputes of businessmen over a contract were not covered under the Act where the businessmen were not consumers of each other’s goods or services. (Century Universal Enterprises, 158 Ill. App. 3d at 199.) Defendant contends that this second district case takes precedence over M & W Gear Co. A closer look at Century Universal Enterprises, Inc., however, reveals that the holding was limited to the facts of that case, and it may not apply to the instant case.

In Century Universal Enterprises, Inc., a financier and developer were disputing a contract. In discussing the Act, Century Universal referred often to Newman-Green, Inc., a Federal district court case that interpreted Illinois cases covering the Act. (Newman-Green, Inc. v. Alfonzo-Larrain (N.D. Ill. 1984), 590 F. Supp. 1083.) In Newman-Green, Inc., the court found that the case law in Illinois has been in agreement that, in breach of contract cases involving businesses, the Act does not provide for recovery. (590 F. Supp. at 1086.) The courts have based this rule on the belief that the legislature, in creating a private cause of action under the Act, did not intend to replace Illinois’ common law of contracts and fraud. (Century Universal, 158 Ill. App. 3d at 199, citing Newman-Green, Inc., 590 F. Supp. at 1086.) Thus, in Century Universal Enterprises, Inc., the Act clearly did not apply because the parties were businesses, not consumers of each other’s product, who were suing over a contract.

Century Universal Enterprises, Inc. should not be read, however, to hold that all disputes between businesses which are not consumers of each other’s goods or services are not covered under the Act. In Newman-Green, Inc. the court found that Illinois courts have not allowed recovery for all common-law contract and fraud actions, and the question was to determine whether the action has characteristics which bring it within the Act. (590 F. Supp. at 1086.) The court found that Illinois courts have, restricted the Act’s application by requiring either that defendant’s conduct cause- a public injury (Frahm v. Urkovich (1983), 113 Ill. App. 3d 580; Exchange National Bank v. Farm Bureau Life Insurance Co. (1982), 108 Ill. App. 3d 212), or that the alleged conduct have an affect on consumers generally. (Newman-Green, Inc., 590 F. Supp. at 1086-87.) The court found that the public injury requirement was not uniform. This is demonstrated by M & W Gear Co. and also Century Universal Enterprises, Inc., where this court held that it accepted plaintiff’s contention that one does not need to allege a public injury to recover under the Act. (Century Universal Enterprises, Inc., 158 Ill. App. 3d at 198.) Newman-Green, Inc., did not decide whether a public injury should be required because it found that the requirement that the alleged conduct have an effect on consumers generally was uniformly applied in Illinois, and the alleged conduct in Newman-Green, Inc. failed to meet this requirement. (Newman-Green, Inc., 590 F. Supp. at 1087.) The court then went on to state: “Certainly a fair reading of the amendment [which expanded standing to businessmen in 1973] is that the General Assembly simply intended to grant businessmen standing to sue to redress competitive injury they suffer when other businessmen deceive customers.” 590 F. Supp. at 1087.

With the exception of the statement in Allcare, Inc., which was dicta, no cases have held that the Act protects only consumers. The Act is to be liberally construed. (Century Universal Enterprises, 158 Ill. App. 3d at 198.) “There is a clear mandate from the Illinois legislature that the courts of this State utilize the Act to the utmost degree in eradicating all forms of deceptive and unfair business practices and grant appropriate remedies to injured parties.” (Duhl v. Nash Realty, Inc. (1981), 102 Ill. App. 3d 483, 495.) The analysis in Newman-Green, Inc. accurately poses the issue as a question of whether the alleged conduct has characteristics which bring it within the Act. Thus, where the dispute involves two businesses who are not consumers, the proper test is as stated in Pain Prevention Lab, whether the alleged conduct involves trade practices addressed to the market generally or otherwise implicates consumer protection concerns. (Pain Prevention Lab, Inc., 657 F. Supp. at 1493.) Here, where plaintiff has alleged defendant published false information about its prices for services, plaintiff has alleged conduct which implicates consumer-protection concerns. Thus, plaintiff has standing to sue under the Act.

Defendant also contends that plaintiffs allegation of damages is deficient under this count. This argument is without merit. Plaintiff alleged that its “standing, reputation, prestige, good will and business has been greatly damaged and shall in the future be damaged.” There is no language in the Act which requires a plaintiff to plead special damages. (See Unique Concepts, Inc. v. Manuel (N.D. Ill. 1987), 669 F. Supp. 185, 190.) As already discussed, plaintiff’s allegation is sufficient to allege general damages.

Accordingly, we affirm the judgment of the circuit court dismissing count II, and we reverse the judgment of the circuit court dismissing counts I and III and remand for proceedings consistent with the views expressed herein.

Reversed and remanded.

UNVERZAGT, P.J., and WOODWARD, J., concur.


author: JUSTICE McLAREN

text:
    AMERICAN ANTENNA CORPORATION, Plaintiff-Appellant, v. AMPEREX ELECTRONIC CORPORATION, Defendant-Appellee.
    Second District
    No. 2—89—0131
    Opinion filed October 24, 1989.
    Anthony S. DiVincenzo, of Campbell & DiVincenzo, of Chicago, for appellant.
    Spencer J. Marks and Robert Marks, both of Marks, Marks & Kaplan, of Chicago, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, American Antenna Corporation (American), appeals from an order of the circuit court of Kane County granting partial summary judgment in favor of defendant, Amperex Electronic Corporation (Amperex), on counts III and IV of plaintiff’s complaint. In its order, the trial court granted summary judgment on the tort claims raised in counts III and IV and limited plaintiff to breach of contract actions on those counts. On appeal, plaintiff contends that (1) a tort claim for misappropriation of trade secrets may lie even though a contract governs the relationship between the parties, and (2) monetary and punitive damages are available in a misappropriation of trade secrets case. We affirm.

The facts in this case are largely undisputed. On May 20, 1982, Amperex entered into an agreement with AudioMobile Corporation (Audio) whereby Audio would develop and design car stereo components for Amperex and would manufacture a specific quantity of the components for sale by Amperex; Amperex would pay a specific sum for development and design and would pay a per-unit price for each component manufactured. The contract also provided that after Audio manufactured the components specified in the initial purchase order, Amperex could manufacture the components itself or could contract with a third party to manufacture the components using Audio’s designs. If Amperex chose to take over the manufacturing, Audio would deliver the designs to Amperex and would assist Amperex in establishing a manufacturing process; Amperex would pay Audio a royalty of 4% of the net price of each component sold.

In September 1982 plaintiff, American Antenna Corporation (American), purchased the assets of Audio at a credit manager’s sale. After discussions between the parties, it was determined that American would continue production of the components for Amperex. By this time, the component designs were completed and had been turned over to Amperex, and a certain quantity of the components had been manufactured. Amperex issued new purchase orders reflecting the negotiations between Amperex and American. The new purchase orders contained a provision that American was “not responsible for any agreement signed by AudioMobile.” After American encountered problems with production deadlines, the parties agreed that Amperex would pay an “expediting charge” for an accelerated production schedule and the per-unit price of the components would be changed. New purchase orders were issued reflecting these new agreements. Plaintiff apparently completed production of the components required under the modified purchase orders. During March 1983, Amperex began manufacturing the stereo components at its own facility.

The major disputed fact in this case is whether the parties agreed that the royalty provision which was part of the contract between Amperex and Audio was also made part of the agreement between Amperex and American. American contends that Amperex agreed to include an addendum to the November 1982 purchase orders reciting the royalty provision of the original contract; Amperex denies that it so agreed. It is undisputed that after Amperex began manufacturing the components, it did not pay American any royalties.

In July 1983 American filed suit against Amperex, alleging that American had fully performed its part of the purchase orders and that Amperex owed American $47,302.56. In its answer, Amperex denied that American had fully performed and denied that it owed American any money.

Amperex filed a counterclaim against American alleging, among other things, that American was using the plans and designs which resulted from the contract with Amperex to manufacture stereo components to compete with Amperex, and, therefore, American was breaching its fiduciary relationship with Amperex. Amperex sought, among other things, a declaration that Amperex had the sole proprietary right to use the designs and plans.

Thereafter, American filed its first amended complaint. Count I alleges that Amperex breached its contract with American by failing to pay royalties. Count II alleges that Amperex breached its contract by failing to pay the full amount due for development, design and manufacture of the components. Count III alleges that Amperex’s right to use the plaintiff’s designs arose from the May 20, 1982, agreement; that this agreement is no longer in effect, having been modified by subsequent purchase and change orders; that Amperex no longer has a legal right to use the designs; and that:

“[B]y the sales of electronic components incorporating the particular and wholly unique trade secrets, proprietary and confidential information, technology and know-how of plaintiff, American Antenna, while purporting to be the designers and ' owner of the designs and trade secrets incorporated therein, defendant, Amperex, has knowingly breached the agreements with the plaintiff, misappropriated plaintiff’s trade secrets, misrepresented the origin of the products and committed acts of unfair competition against the plaintiff.”

Count IV alleges a violation of section 2 of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1987, ch. 121V2, par. 262) and a violation of section 2 of the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1987, ch. 121V2, par. 312). Plaintiff sought injunctive relief and monetary damages.

Amperex filed a motion for summary judgment on count III; in the alternative, Amperex requested “partial summary judgment that the damages available under Count III *** are limited to those damages arising out of the breach of the contracts between the parties.” Amperex contended that the facts could not support causes of action for misappropriation of trade secrets, misrepresentation of the origin of the products, or unfair competition and that, at most, plaintiff had stated a cause of action for breach of contract. The parties later stipulated that the motion for summary judgment would apply to count IV as well.

In deciding the motion for summary judgment, the trial court found that, although there may be a factual dispute about whether the products involved did include trade secrets, by using the alleged secrets defendant did only what it was contractually permitted to do and did not breach a confidential relationship with the plaintiff or otherwise misappropriate or misuse plaintiffs trade secrets or confidential information; that plaintiff was limited to a cause of action for breach of contract; and that, even if a misappropriation of trade secrets action were to lie in this case, plaintiffs only remedy would be in equity for injunctive relief. The trial court denied the motion for summary judgment but granted the alternative partial summary judgment motion on the tort claims and limited plaintiff to a cause of action for breach of contract.

On appeal, plaintiff first contends that the trial court misapplied the law and the existence of an express contract between the parties does not necessarily preclude a tort claim for misappropriation of trade secrets. Based upon the undisputed facts in this particular case, we determine the tort claim is precluded by the express contract.

A trade secret is defined as “a secret plan or process, tool, mechanism or compound known only to its owner and those *** to whom it is necessary to confide it.” (Emphasis in original.) (Schulenburg v. Signatrol, Inc. (1965), 33 Ill. 2d 379, 385.) A misappropriation of trade secrets occurs when a person acquires or discovers a trade secret by improper means or discloses or uses a trade secret in breach of a duty of confidentiality imposed on him by the nature of his relationship -with the owner of the trade secret or reposed in him by the owner in disclosing the information, and the owner of the trade secret is damaged by this improper acquisition, disclosure or use. See Schulenburg, 33 Ill. 2d 379; Syntex Ophthalmics, Inc. v. Novicky (F. Cir. 1984), 745 F.2d 1423.

In this case, the parties dispute whether the designs are trade secrets and whether there was a duty of confidentiality between the parties. However, even if we accept plaintiffs position that there were trade secrets and there was a duty of confidentiality, we conclude that, as a matter of law, no misappropriation of trade secrets has occurred. First, there is no allegation that defendant acquired the trade secrets improperly. In the plaintiff’s own words, “[Amperex] received plaintiff’s trade secrets as part of a contractual arrangement which granted defendant the right to manufacture the stereo components.”

Further, even assuming that a duty of confidentiality existed between the parties, none of defendant’s acts constitute a breach of that confidentiality. Plaintiff has not alleged that defendant disclosed the trade secrets to a third party or that defendant’s manner of using the trade secrets to manufacture the components was inconsistent with the terms of the contract. Defendant’s use of the trade secrets was the use specifically contemplated by the contract.

It is apparently plaintiff’s position that defendant’s breach of contract amounts to a breach of their confidential relationship and, thus, constitutes a misappropriation of trade secrets. We disagree. In a trade secret case, it is not the product or the process that is protected, but the secrecy of it. (ILG Industries, Inc. v. Scott (1971), 49 Ill. 2d 88, 97.) The alleged breach of contract here is the failure to pay royalties and fees. The failure to pay royalties and fees does not have any impact on the secrecy of the plans and designs and does not constitute a breach of confidentiality. Plaintiff has failed to establish an essential element of a trade secret case, and summary judgment was properly entered on that claim. Taylor v. Hocker (1981), 101 Ill. App. 3d 639, 641.

Essentially, plaintiff is complaining that it did not receive the benefit of its bargain — a harm which is appropriately remedied by bringing an action for breach of contract. (See Morrow v. L.A. Goldschmidt Associates, Inc. (1986), 112 Ill. 2d 87, 98.) A party’s desire to enjoy the benefit of its bargain is not an interest that tort law traditionally protects. (Redarowicz v. Ohlendorf (1982), 92 Ill. 2d 171, 177.) We conclude, therefore, that the trial court was correct in limiting defendant’s cause of action on counts III and IV to breach of contract.

In light of our determination that defendant has failed to establish a misappropriation of trade secrets, it is unnecessary to determine what damages might be available in such an action.

For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.

Affirmed.

INGLIS and DUNN, JJ., concur.


author: PRESIDING JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHRISTOPHER R. LYDA, Defendant-Appellant.
    Second District
    No. 2—88—0242
    Opinion filed October 23, 1989.
    G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, Christopher Lyda, was charged by complaint in the circuit court of Du Page County, with battery (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 3(a)(1)) and resisting a police officer (Ill. Rev. Stat. 1985, ch. 38, par. 31 — 1). Following a jury trial, defendant was found not guilty of battery, guilty of resisting a police officer, and sentenced to six months’ incarceration in the county jail. On appeal, defendant contends that it was error for the trial court to refuse defendant’s tendered jury instruction regarding the affirmative defense of justifiable use of force in the defense of another (Illinois Pattern Jury Instructions, Criminal, No. 24 — 25.06 (2d ed. 1981) (hereinafter IPI Criminal 2d)). Since we agree that there was sufficient evidence adduced at trial to raise this affirmative defense, we reverse the judgment of conviction and remand the cause for a new trial.

The charges in this case stemmed from an altercation that took place in the neighborhood of Harwarden and Wood Streets in Wheaton, Illinois, on the evening of June 11, 1986. Officer McGinley responded to the call. When he arrived, he saw a crowd of about 30 people milling around. He also saw Officer Meeger placing Gary Lyda under arrest. Gary, a large, muscular man, was resisting the arrest. As other police officers arrived, McGinley assisted Meeger. McGinley testified that Gary was handcuffed but was still kicking and thrashing. The officers placed Gary into the squad car head first with his feet facing the left rear door. They then shut the door and turned to disperse the crowd. Inside the car, Gary began kicking the door and window “so hard that it appeared the window or door was going to bust open,” according to McGinley. The officers returned to the car, opened the rear door, removed Gary, and placed him on the ground to place restraints on his legs.

Officer Volpe testified that, when he arrived at the scene, he observed two officers attempting to arrest Gary Lyda. Gary’s brother, Chris, was in the crowd watching the arrest. Volpe observed Chris approaching the scene and attempted to stop Chris from becoming involved in the situation. Volpe then assisted Officers Meeger and McGinley in placing Gary in the back of the squad car. Gary kicked the door of the squad car, whereupon several officers took Gary out of the squad car. He observed Chris become more agitated at the officers who were trying to restrain Gary. Chris was yelling, “You [obscenity] don’t have any right to be here. Get the [obscenity] out of here. Leave my brother alone. He didn’t do anything wrong.” Volpe placed himself between Chris and the activities involving Gary. McGinley was shoulder to shoulder next to Volpe. The officers were facing Chris, who was watching his brother’s arrest behind them.

Gary was thrashing about, kicking, and yelling obscenities at the officers. Chris became very agitated and elbowed Volpe as he tried to push between Volpe and McGinley. Chris said “This ain’t [obscenity] right” as he pushed past Volpe. Volpe informed Chris that he was under arrest, but Chris continued to struggle with the officers to get to the area where Gary was. Using force, Volpe eventually handcuffed Chris and placed him in the squad car. The struggle took two to three minutes. Gary was taken to the hospital following his arrest because of the abrasions to his "wrists and ankles.

Officer Sandkam testified that Gary resisted having his legs restrained. Several officers were attempting to hold him down on the ground. Gary was kicking, yelling and thrashing about. Sandkam testified that he attempted to apply a “chokehold” on Gary; he had read about the procedure in various police materials. The hold blocks off the arteries of the neck, cutting off blood circulation. On cross-examination, Sandkam testified that the intended effect of this maneuver is to cause the subject to pass out. Sandkam tried the maneuver for about 10 seconds, and it did not work. He went to his squad car and got a flexcuff to secure Gary’s ankles together. He got some rope and tied Gary’s ankles to his wrists behind him. Gary was then put into the squad car.

According to the testimony of Officer Hackert, Gary was on his stomach, and the ropes were used to tie his wrists and legs together in a “hog-tie formation.” According to Hackert, Gary’s arrest was a difficult and tense one.

Alfred Tinsley, a commercial account clerk for Commonwealth Edison and neighborhood resident, testified for the defense. When he arrived on the scene, he observed an argument taking place between Gary Lyda and Greg Freeman concerning some money that Greg owed Gary. Tinsley estimated that there were 11 police cars at the scene. The police put Gary into a chokehold. Gary tried to move away. The officers grabbed him and threw him down on the ground into a puddle of water. They handcuffed his hands behind his back and were “standing in the middle of his back.” They then grabbed him by the handcuffs, picked him up, and carried him to the police car. Gary kept yelling, “What are you arresting me for?” The police replied, “Shut the [obscenity] up. We’ll think of the charge later, but now get in the damn car.” They threw him head first into the backseat of the car. Tinsley heard Gary’s head hit the other side of the car. Gary then yelled and began to kick the door of the squad car. The police ran to the car and pulled Gary out by the feet. Gary’s face and chest hit the concrete street; he could not break his fall since his hands were tied behind him. Tinsley then heard Chris yelling, “Why did you do that? You didn’t have to do that.” The police then got some rope, pulled Gary’s cuffs up into a “chicken wing position,” bringing his feet up to the cuffs, and they “bowed” him. He was yelling at the time and was in considerable pain. They put a second set of cuffs on him. Blood began to run down Gary’s wrists. Then they started “hog-tying” him with the rope.

According to Tinsley, Chris then approached his brother, put his hands on his neck and said “Calm down, man. Don’t fight it. There’s nothing you can do by it.” Gary replied, “It’s hurting. It’s hurting.” Chris asked the police, “Why are you doing this?” He was told, “Shut up and get out of here.” Chris yelled, “You shouldn’t be doing that to my brother. You’re hurting him. You have no reason to do that.” At that point, the police threw Chris on the ground and arrested him.

William Simmons, a detective with the Du Page County sheriff’s office, testified that he stopped at the scene on his way home. He was talking to Gary when Chris approached to try to calm Gary down. According to Simmons, Chris told Gary to cooperate with the police. Detective Simmons said he did not see Chris interfere with Gary’s arrest. Simmons characterized the scene as “chaos.” On redirect examination, he testified that Gary was thrown into the squad car handcuffed.

The final witness for the defense was Harriet Steele, a resident of the neighborhood for 58 years. She was a secretary for the Du Page County board. She was in a prayer meeting at a neighborhood church when the lights and noise from the incident attracted her attention. She left the church to investigate. When she arrived, she saw Gary with his hands cuffed behind his back; he was in the custody of two police officers. It was raining at the time. She observed the police throw Gary into the backseat of the squad car. His head hit the other side of the door. Gary then kicked the door of the squad car. The police pulled him back out of the car, and Gary’s face hit the cement. Chris kept trying to tell them to leave Gary alone. She testified that she saw the police hitting both Gary and Chris. When asked if she saw Chris trying to stop the arrest of his brother Gary, she replied affirmatively.

During the jury instruction conference, the prosecution tendered the following instruction:

“A person is not authorized to use force to resist an arrest which he knows is being made by a peace officer, even if he believes that the arrest is unlawful and the arrest in fact is unlawful.” See IPI Criminal 2d No. 24 — 25.20.

Defense counsel objected and offered the following alternative instruction:

“A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend another against the imminent use of unlawful force.
However, a person is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent death or great bodily harm to himself or another.” (See IPI Criminal 2d No. 24 — 25.06.)

The court refused defendant’s instruction and submitted the State’s instruction to the jury.

On appeal, defendant first contends that the State’s evidence sufficiently raised the possibility that, even assuming that Chris resisted arrest, he was justified in his conduct on the ground that he was acting reasonably in defense of his brother. Therefore, he concludes that the trial court erred in refusing to instruct the jury regarding the affirmative defense of justifiable use of force in the defense of another. We agree that defendant’s instruction should have been given to the jury to consider and that it was reversible error to prevent defendant from presenting this defense by means of the tendered instruction.

Both the State and defendant are entitled to appropriate instructions which present their theories of the case to the jury when the evidence supports such theories. (People v. Janik (1989), 127 Ill. 2d 390, 398.) Furthermore, a defendant is entitled to the benefit of any defense shown by the entire evidence, even if the facts on which the defense is based are inconsistent with a defendant’s own testimony. (Janik, 127 Ill. 2d at 398; People v. Bratcher (1976), 63 Ill. 2d 534, 540; People v. Veatch (1986), 145 Ill. App. 3d 23, 28.) Very slight evidence upon a given theory of a case will justify the giving of an instruction. Bratcher, 63 Ill. 2d at 540; Veatch, 145 Ill. App. 3d at 28,

Where there is some evidence in the record which, if found credible by the jury, would support a claim in the nature of self-defense or defense of another, the trial court may not weigh the evidence in deciding whether an issue has been raised entitling defendant to the instruction. (People v. Graves (1985), 133 Ill. App. 3d 546, 548-49; People v. McGee (1982), 110 Ill. App. 3d 766, 771.) A defendant is entitled to present his theory of defense even if the trial court believes that the evidence offered in support of that defense is inconsistent or of doubtful credibility. People v. Rodriguez (1981), 96 Ill. App. 3d 431, 436.

An affirmative defense may be raised by the State’s evidence, and, if that does not do so, a defendant must present some evidence thereon to raise the defense. (Ill. Rev. Stat. 1987, ch. 38, par. 3 — 2(a); Veatch, 145 Ill. App. 3d at 29.) The quantum of proof necessary to raise an affirmative defense is evidence sufficient to raise a reasonable doubt of defendant’s guilt. (People v. Larry (1986), 144 Ill. App. 3d 669, 676.) Stated otherwise, unless the evidence before the trial court is so clear and convincing as to permit the court to find as a matter of law that there is no affirmative defense, the issue of whether a defendant should be relieved of criminal liability by reason of his affirmative defense must be determined by the jury with proper instruction as to the applicable law. Larry, 144 Ill. App. 3d at 676.

A defendant may be entitled to an instruction related to the justifiable use of force in the defense of another where it is contended that police officers used excessive force in effecting an arrest and defendant is charged with resisting arrest. (Veatch, 145 Ill. App. 3d at 29.) In the case at bar, the State’s evidence alone was sufficient to raise the issue of defendant’s justifiable use of force in resisting the officers in the course of their arrest of defendant’s brother. It is clear that defendant forcibly tried to get past Officer Volpe to come to the assistance of defendant’s brother Gary. Defendant became very agitated as the officers used increasingly more forceful measures to restrain Gary after Gary had been dragged to the squad car and subsequently taken out of the squad car. Defendant exclaimed, “Leave my brother alone,” and “This ain’t [obscenity] right.” Sandkam’s application of a chokehold on Gary and his hog-tying him with a rope while several others officers held him facedown on the wet ground may have given defendant cause to believe that excessive force was being used. Officer Volpe acknowledged that, subsequent to the arrest, Gary was taken to the hospital because of the abrasions to his wrists and ankles.

The evidence presented by the State was sufficient to bring the issue to the jury- by means of a proper instruction; it was for the jury to consider whether the defendant’s conduct in struggling with the officers was justified by a reasonable belief on his part that his conduct was necessary to protect his brother from the use of excessive force. (Veatch, 145 Ill. App. 3d at 29.) Once the affirmative defense is raised, the State must sustain the burden of proving the defendant guilty beyond a reasonable doubt as to that issue together with all the other elements of the offense. People v. Pegram (1988), 124 Ill. 2d 166, 173.

Additionally, the defense presented testimony showing that Chris was not initially the aggressor and that he was entitled to the affirmative defense. Defendant first tried to calm Gary down, according to Detective Simmons. Three competent witnesses testified that Gary was pushed or thrown into the squad car. Two witnesses said that Gary’s head hit the other side of the car as a result. Tinsley testified that, when Gary was pulled out of the car, he was thrown on the wet ground face first; after the chokehold had been applied, he was bowed backward and hog-tied, and blood began to run down his wrists. Chris was heard to say, “Why did you do that? You didn’t have to do that.” Harriet Steele’s testimony was generally consistent with that of Tinsley. She testified that Chris attempted to calm Gary down. At the conclusion of her testimony, she appears to have assented when asked whether Chris had ever tried to stop Gary’s arrest.

We conclude that defendant was entitled to the benefit of his defense as shown by the entire evidence in the record. It was for the jury to determine whether defendant’s conduct was justified by a reasonable belief on his part that it was necessary to protect his brother from the use of excessive force. Absent defendant’s tendered instruction, the jury lacked the necessary tools to analyze the evidence fully and to reach a verdict based on those facts. People v. Pietryzk (1987), 153 Ill. App. 3d 428, 435.

Accordingly, the judgment of conviction is reversed because of the error in instructing the jury, and the cause is remanded for a new trial.

Reversed and remanded.

REINHARD and WOODWARD, JJ., concur.