author: JUSTICE WHITE

text:
    PARRILLO, WEISS & MOSS, Plaintiff-Appellant, v. JOHN BERNARD CASHION, Defendant-Appellee.
    First District (3rd Division)
    No. 1—88—0507
    Opinion filed March 29, 1989.

      Parrillo, Weiss & Moss, of Chicago (John D. Moss, of counsel), appellant pro se.

    John Bernard Cashion, of Chicago, appellee pro se.

   JUSTICE WHITE

delivered the opinion of the court:

Plaintiff, Parrillo, Weiss & Moss, a law firm, appeals from an order of the circuit court of Cook County dismissing its complaint at law with prejudice. We affirm.

The complaint at law (hereinafter the Complaint), is in two counts. In count I, plaintiff alleged that defendant, John Bernard Cashion, is the president of the Illinois Trial Lawyers Association. On or about February 18, 1987, defendant composed and sent a letter to the Director of the Department of Insurance of the State of Illinois. Plaintiff alleged that this letter contained false and defamatory statements concerning plaintiff. In particular, plaintiff alleged that the letter contained the following statements:

“(1) [plaintiff has a stake in maintaining the volume of suits it defends;
(2) [plaintiff’s] manner of defending lawsuits constitutes a blatant and ongoing scandal;
(3) as of January 26, 1987 there were 4,166 cases pending in the Law Division of the Circuit Court of Cook County in which the defense attorney listed was Parrillo, Weiss & Moss; and
(4) [plaintiff] is house counsel for Safeway Insurance Company.”

Plaintiff alleged that it has been injured in its good name and reputation and sought damages in excess of $15,000.

In count II of the Complaint, plaintiff restated the allegations in count I. In addition, plaintiff alleged that the defamatory statements were made with reckless disregard as to their truth or falsity and with malice. Plaintiff sought punitive damages in the amount of $1 million.

Prior to discussing the sufficiency of the Complaint, it will be helpful to discuss the principles that apply to a motion to dismiss. Plaintiff’s Complaint was dismissed pursuant to a motion filed under section 2 — 615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615). Such a motion admits all well-pleaded facts in the complaint, and they must be taken as true. (Payne v. Mill Race Inn (1987), 152 Ill. App. 3d 269, 273, 504 N.E.2d 193; Perlin v. Board of Education (1980), 86 Ill. App. 3d 108, 111, 407 N.E.2d 792.) Conclusions of law or conclusions of fact unsupported by allegations of specific fact are not admitted. (Payne, 152 Ill. App. 3d at 273; Yardley v. Yardley (1985), 137 Ill. App. 3d 747, 751, 484 N.E.2d 873.) The complaint should not be dismissed unless the pleadings disclose that no set of facts could be proved that would entitle the plaintiff to relief. (Yardley, 137 Ill. App. 3d at 752; Richardson v. Dunbar (1981), 95 Ill. App. 3d 254, 256, 419 N.E.2d 1205.) On review, the allegations of the complaint are to be interpreted in the light most favorable to the plaintiff. (Richardson, 95 Ill. App. 3d at 256; Perlin, 86 Ill. App. 3d at 111.) With these principles in mind, we turn to the allegations of the Complaint filed by plaintiff.

Plaintiff asserts that the statements published by defendant in the letter to the Department of Insurance impute a dishonest or improper practice to plaintiff in the performance of its duties as a law firm. Consequently, plaintiff maintains that counts I and II of the Complaint state a cause of action for defamation based on libel per se.

An action for defamation based on libel per se requires that the words used by the defendant are in and of themselves so obviously and naturally harmful to the plaintiff that a showing of special damages is unnecessary. (Owen v. Carr (1986), 113 Ill. 2d 273, 277, 497 N.E.2d 1145; Fried v. Jacobson (1983), 99 Ill. 2d 24, 27, 457 N.E.2d 392.) Under common law, language which falsely imputes a lack of integrity in the discharge of duties of office of employment, which prejudices a party in his profession, which imputes the commission of a criminal offense, or which imputes infection with a communicable disease of any kind which, if true, would exclude a party from society is actionable for defamation without proof of special damages. Owen, 113 Ill. 2d at 277; Allen v. Ali (1982), 105 Ill. App. 3d 887, 889, 435 N.E.2d 167; Richardson, 95 Ill. App. 3d at 259.

The rule of innocent construction is employed to determine whether the language used by a party constitutes libel per se. In Chapski v. Copley Press (1982), 92 Ill. 2d 344, 442 N.E.2d 195, our supreme court explained the rule:

“[A] written or oral statement is to be considered in context, with the words and the implications therefrom given their natural and obvious meaning; if, as so construed, the statement may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff it cannot be actionable per se. This preliminary determination is properly a question of law to be resolved by the court in the first instance; whether the publication was in fact understood to be defamatory or to refer to the plaintiff is a question for the jury should the initial determination be resolved in favor of the plaintiff.” Chapski, 92 Ill. 2d at 352.

Applying the rule of innocent construction to the instant case, we are of the opinion that the statements in the letter to the Department of Insurance are either not defamatory or may reasonably be interpreted as referring to another party. Defendant addressed his letter to the Director of the Department of Insurance and called upon the Department to initiate an investigation of Safeway Insurance Company. In the letter, defendant voiced concern that Safeway Insurance Company was the defendant in 4,166 cases pending before the circuit court. Defendant suggested that Safeway Insurance Company might be insolvent and that it might be using the court system to delay payment of insurance claims. Defendant concluded that Safeway Insurance Company’s manner of defending lawsuits constitutes a blatant and ongoing scandal. It is thus clear from a review of the letter that defendant’s remark regarding the “blatant and ongoing scandal” referred to Safeway Insurance Company and not to plaintiff. The statement that plaintiff “has a stake in maintaining the volume of suits it defends” is not defamatory. Surely every law firm has a financial interest in the number of cases that it prosecutes or defends. Likewise, the statements identifying plaintiff as the attorney of record in 4,166 cases pending in the circuit court and as house counsel for Safeway Insurance Company are not defamatory.

Plaintiff maintains that, since a corporation may not practice law, the references in the letter to Safeway Insurance Company’s “manner of defending lawsuits” are, in reality, references to plaintiff. Plaintiff ignores the fact that the number of lawsuits involving Safeway Insurance Company (or any other insurance carrier) is a direct result of the insurance company’s decision to contest liability or the amount of damage in claims filed against its insureds. Moreover, the policy to vigorously defend lawsuits or to settle lawsuits is one usually made by the client rather than its attorneys. Lastly, plaintiff ignores the fact that it has filed an action for libel per se. In such an action, the defendant’s statements must be “obviously and naturally harmful” to the plaintiff. The references in the letter to the Department of Insurance cannot be “obviously and naturally harmful” to plaintiff if they must be “explained” by assertions that corporations cannot practice law and have no control over the “manner of defending lawsuits.” (See Richardson, 95 Ill. App. 3d at 260.) We conclude that plaintiff has failed to state a cause of action for defamation based on libel per se.

Even assuming, however, that the statements in the letter are defamatory, we are of the opinion that plaintiff cannot maintain a cause of action for libel per se because the statements are absolutely privileged.

It is the established law of Illinois that statements made during quasi-judicial proceedings are absolutely privileged (Kalisk v. Illinois Education Association (1987), 157 Ill. App. 3d 969, 971, 510 N.E.2d 1103; Thomas v. Petrulis (1984), 125 Ill. App. 3d 415, 417, 465 N.E.2d 1059; Richardson, 95 Ill. App. 3d at 256), and such protection encompasses testimony given before administrative agencies, as well as communications to administrative agencies, when these agencies are performing a judicial function. (Kalish, 157 Ill. App. 3d 969; Starnes v. International Harvester Co. (1986), 141 Ill. App. 3d 652, 490 N.E.2d 1062; Allen, 105 Ill. App. 3d at 891; Parker v. Kirkland (1939), 298 Ill. App. 340, 346-47, 18 N.E.2d 709.) Whether any given proceeding by an administrative body is quasi-judicial depends upon the powers and duties of the body conducting the proceeding and upon the nature of the proceeding. (Kalish, 157 Ill. App. 3d at 971; Allen, 105 Ill. App. 3d at 890; Richardson, 95 Ill. App. 3d at 257.) An entity with quasi-judicial powers is not, as a matter of law, a quasi-judicial body at all times. At those times when it is not performing its quasi-judicial functions, or at those times when, purporting to perform those functions, it nevertheless fails to follow judicial procedures, it can be said that it is not acting as a quasi-judicial body. Richardson, 95 Ill. App. 3d at 257.

The Illinois courts have identified six powers that differentiate a quasi-judicial body from a body that is performing merely an administrative function. These are:

“(1) the power to exercise judgment and discretion;
(2) the power to hear and determine or to ascertain facts and decide;
(3) the power to make binding orders and judgments;
(4) the power to affect the personal or property rights of private persons;
(5) the power to examine witnesses, to compel the attendance of witnesses, and to hear the litigation of issues on a hearing; and
(6) the power to enforce decisions or impose penalties.” (Kalish, 157 Ill. App. 3d at 971-72.)

(See also Starnes, 141 Ill. App. 3d at 655; Thomas, 125 Ill. App. 3d at 419-20.) A quasi-judicial body need not possess all six powers; however, the more powers it possesses, the more likely the body is acting in a quasi-judicial manner. Kalish, 157 Ill. App. 3d at 972; Thomas, 125 Ill. App. 3d at 420.

In the case at bar, defendant’s letter was addressed to the Director of the Department of Insurance of the State of Illinois. Section 401 of the Insurance Code (Ill. Rev. Stat. 1987, ch. 73, par. 1013) lists the general powers of the Director of the Department of Insurance:

“The Director is charged with the rights, powers and duties appertaining to the enforcement and execution of all the insurance laws of this State. He shall have the power
(a) to make reasonable mies and regulations as may be necessary for making effective such laws;
(b) to conduct such investigations as may be necessary to determine whether any person has violated any provision of such insurance laws;
(c) to conduct such examinations, investigations and hearings in addition to those specifically provided for, as may be necessary and proper for the efficient administration of the insurance laws of this State; and
(d) to institute such actions or other lawful proceedings as he may deem necessary for the enforcement of the Illinois Insurance Code or of any Order or action made or taken by him under this Code. The Attorney General, upon request of the Director, may proceed in the courts of this State to enforce an Order or decision in any court proceeding or in any administrative proceeding before the Director.”

In addition, section 401.1 of the Insurance Code (Ill. Rev. Stat. 1987, ch. 73, par. 1013.1) provides that the Director may issue and cause to be served upon companies and persons subject to examination by the Director, or purporting to do insurance business in Illinois, orders requiring such persons or companies to cease and desist from engaging in acts, practices or transactions which are hazardous to their policyholders, creditors or the public, or which threaten to render these persons or companies insolvent. The Director is empowered to make such orders as may be reasonably necessary to correct, eliminate or remedy the deleterious conditions and to impose fines of up to $100 per day for each day that the persons or companies violate or fail to comply with its orders. The Director may enforce the liability of any person or company for fines that it imposes by prosecuting an action in any court of competent jurisdiction. Lastly, section 403 of the Insurance Code (Ill. Rev. Stat. 1987, ch. 73, par. 1015) provides that the Director shall have the power to compel attendance of any person by subpoena, to administer oaths and to examine any person under oath concerning the business, conduct or affairs of any company or person subject to the provisions of the Insurance Code, and to require the production of any books, records or papers relevant to the Director’s inquiry.

We are of the opinion that the Department of Insurance possesses most of the powers that distinguish a quasi-judicial body from a body that is performing merely administrative functions. The Director of the Department of Insurance has the power to exercise judgment and discretion; to hear and determine or to ascertain facts and decide; to make binding orders; to examine witnesses, to compel the attendance of witnesses, and to hear the litigation of issues on a hearing; and to enforce decisions or impose penalties. The Director does not have the power to affect the personal or property rights of private persons. However, it is not essential that an administrative agency have this power to be considered a quasi-judicial body. See Thomas, 125 Ill. App. 3d 415 (holding that the Equal Employment Opportunity Commission is a quasi-judicial body even though it does not have the power to resolve conclusively the claim of discrimination).

We are also of the opinion that defendant’s letter to the Department of Insurance was a preliminary step to a quasi-judicial proceeding and, as such, was absolutely privileged. The absolute privilege embraces actions required or permitted by law in the course of judicial or quasi-judicial proceedings as well as actions “necessarily preliminary” to judicial or quasi-judicial proceedings. (Tiedemann v. Superior Court (1978), 83 Cal. App. 3d 918, 148 Cal. Rptr. 242 (letter to Internal Revenue Service designed to prompt regulatory enforcement action must be considered a part of the official proceeding itself and is cloaked with absolute immunity); S.A. Robertson v. Industrial Insurance Co. (Fla. 1954), 75 So. 2d 198 (letter to Insurance Commissioner requesting a hearing with regard to the activities of plaintiff was necessarily preliminary to a quasi-judicial proceeding and absolutely privileged); Wiener v. Weintraub (1968), 22 N.Y.2d 330, 292 N.Y.S.2d 667, 239 N.E.2d 540 (letter to Grievance Committee of Association of the Bar of the City of New York initiated a judicial proceeding and was absolutely privileged); Moore v. West Lawn Memorial Park, Inc. (1973), 266 Or. 244, 512 P.2d 1344 (letter to State Board of Funeral Directors and Embalmers was absolutely privileged).) In the instant case, defendant’s letter was addressed to the Department of Insurance, an agency charged with the “rights, powers and duties appertaining to the enforcement and execution of all the insurance laws of this State.’’ (Ill. Rev. Stat. 1987, ch. 73, par. 1013.) The Department of Insurance is required to “conduct such investigations as may be necessary to determine whether any person has violated any provision of” the Insurance Code (Ill. Rev. Stat. 1987, ch. 73, par. 1013(b).) Defendant requested that the Department of Insurance initiate an investigation of Safeway Insurance Company because of the number of lawsuits pending against Safeway Insurance Company. Defendant’s letter was designed to prompt an investigation of Safeway Insurance Company. The letter was a preliminary step to the investigation of Safeway Insurance Company and to the Department of Insurance’s exercise of its quasi-judicial powers. Consequently, the letter was absolutely privileged. Ramstead v. Morgan (1959), 219 Or. 383, 347 P.2d 594; Reagan v. Guardian Life Insurance Co. (1942), 140 Tex. 105, 166 S.W.2d 909.

Plaintiff maintains that the “defamatory” statements in the letter to the Department of Insurance are not privileged because the letter was not solicited by the Department of Insurance. Plaintiff, however, has not cited any Illinois cases in support of this proposition. We note that in Starnes (141 Ill. App. 3d at 659), this court held that letters presented by defendant to the Judicial Inquiry Board were absolutely privileged against claims of defamation so as to preclude actions for libel or slander based thereon. In Allen (105 Ill. App. 3d at 890-91), this court observed that the Attorney Registration and Disciplinary Commission is a quasi-judicial body created to administer attorney discipline and communications with that body are absolutely privileged. See also Tiedemann, 83 Cal. App. 3d 918; Robertson, 75 So. 2d 198; Wiener, 22 N.Y.2d 330, 292 N.Y.S.2d 667, 239 N.E.2d 540; Ramstead, 219 Or. 383, 347 P.2d 594; Putter v. Anderson (Tex. Civ. App. 1980), 601 S.W.2d 73.

We also note that the Department of Insurance has been entrusted with the responsibility to enforce the insurance laws of this State and to conduct investigations to determine whether any person has violated any provisions of the Insurance Code. The task of the Department of Insurance would be difficult if parties could not freely communicate with the Department. Moreover, a substantial segment of the public is affected by the activities of insurance companies. The citizens of this State should have the right to appeal to the Department of Insurance for redress without fear of an action for defamation. Consequently, we refuse to restrict the privilege to letters solicited by the Department of Insurance.

Next, plaintiff maintains that the statements in the letter are not absolutely privileged because the letter “was not confidential.” Plaintiff has not explained to this court why he believes the letter “was not confidential.” The letter was addressed to, and received by, the Director of the Department of Insurance. Plaintiff did not allege in his Complaint that the letter or copies thereof were sent to third parties, nor does the letter so indicate. Moreover, plaintiff did not allege in his Complaint that the Department of Insurance has divulged, or is required to divulge, the contents of the letter to third parties. We cannot find any basis for plaintiff’s contention.

Lastly, plaintiff maintains that the Department of Insurance does not have jurisdiction over attorneys, and consequently, the statements in the letter to the Department of Insurance are not absolutely privileged. Defendant addressed the letter to the Department of Insurance and called upon the Department to initiate an investigation of Safeway Insurance Company. In the letter, defendant stated that Safeway Insurance Company is defending 6 to 10 times as many lawsuits, when compared to policies issued, as Allstate Insurance Company or State Farm Insurance Company. Defendant suggested that Safeway Insurance Company might be insolvent and might be using the court system to delay payment of insurance claims. The letter does contain references to plaintiff. However, these references are all related to plaintiff’s relationship with Safeway Insurance Company. As observed by the circuit court, “the thrust of defendant’s letter is to ask the Director to compel Safeway to take action about the handling of its caseload, not to take action” against plaintiff.

We note that pursuant to section 144.1 of the Insurance Code (Ill. Rev. Stat. 1987, ch. 73, par. 756.1), insolvent insurance companies are prohibited from issuing insurance policies. Also, it is an improper claims practice for an insurance company to engage in “activity which results in a disproportionate number of lawsuits to be filed against the insurer or its insureds by claimants.” (Ill. Rev. Stat. 1987, ch. 73, par. 766.6(g).) The Department of Insurance clearly has jurisdiction over Safeway Insurance Company and would be concerned about the alleged problems noted in the letter. We are of the opinion that the references to plaintiff in the letter were pertinent to the issues raised by defendant and are absolutely privileged. See Weiler v. Stern (1978), 67 Ill. App. 3d 179, 384 N.E.2d 762; Macie v. Clark Equipment Co. (1972), 8 Ill. App. 3d 613, 290 N.E.2d 912 (a party is not answerable for statements which have any bearing on the subject at issue); see also Defend v. Lascelles (1986), 149 Ill. App. 3d 630, 500 N.E.2d 712 (otherwise defamatory statements made in a pleading filed in a judicial proceeding enjoy an absolute privilege if they are relevant, pertinent, or bear some relation to the subject in controversy).

We conclude that the statements in the letter are not defamatory. However, even assuming that the statements are defamatory, they are absolutely privileged against claims of defamation. Accordingly, we affirm the order of the circuit court of Cook County dismissing the Complaint for failure to state a cause of action.

Affirmed.

McNAMARA and RIZZI, JJ., concur.

      The Illinois legislature has enlarged the categories of defamatory statements by providing that false accusations of fornication, adultery and false swearing are actionable as a matter of law. Ill. Rev. Stat. 1987, ch. 126, pars. 1, 2.

      The Complaint alleged that defendant stated “the law firm’s manner of defending lawsuits constitutes a blatant and ongoing scandal.” This allegation is contradicted by the letter to the Department of Insurance. It is well settled that where there is a discrepancy or contradiction between allegations in a complaint and facts as shown in an exhibit attached to and made a part of the complaint, the exhibit will control. (First National Bank v. Shape Magnetronics, Inc. (1985), 135 Ill. App. 3d 288, 293, 481 N.E.2d 953; Outboard Marine Corp. v. James Chisholm & Sons, Inc. (1985), 133 Ill. App. 3d 238, 245, 478 N.E.2d 651.) The letter to the Department of Insurance, which was attached to the Complaint as an exhibit, negates the allegation in the Complaint.


source: Caselaw Access Project

author: PRESIDING JUSTICE FREEMAN

license: Public Domain

text:
    WILLIAMSBURG VILLAGE OWNERS’ ASSOCIATION, INC., Plaintiff-Appellee, v. LAUDER ASSOCIATES, Defendant-Appellant.
    First District (3rd Division)
    No. 1—88—1053
    Opinion filed March 29, 1989.

      Nancy Tordai O’Shaughnessy and James A. Blazina, both of James A. Blazina, Chartered, of Chicago, for appellant.
    Arnold Pagniucci, of Sachnoff, Weaver & Rubenstein, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

Defendant, Lauder Associates (Lauder), appeals from an order of the trial court in a forcible entry and detainer action which granted judgment in favor of plaintiff, Williamsburg Village Owners’ Association, Inc. (Williamsburg), for possession of certain commercial condominium property located in Inverness, Illinois. The order also awarded plaintiff damages in the amount of $8,385.72 for unpaid common expenses regarding the property and granted plaintiff attorney fees in the amount of $585. On appeal defendant characterizes the trial court order as an ex parte default order, the entry of which, defendant asserts, constituted a substantial injustice. Defendant also contends that the court erred in denying its motion to vacate the order.

For the reasons stated below, we reverse the judgment of the circuit court and remand this matter for further proceedings.

The record indicates that on December 2, 1987, plaintiff filed its forcible entry and detainer action against Lauder, seeking recovery of $8,385.72 in unpaid common expenses for the subject property, in addition to attorney fees and costs. On January 29, 1988, plaintiff filed an amended complaint, naming Lauder in addition to several other defendants and seeking $12,210.71 in unpaid common expenses plus costs and fees.

Lauder was served with summons by publication on February 4, 1988. The return date was March 14, 1988. On March 3, 1988, the case was dismissed for want of prosecution. On March 14, 1988, the court vacated the dismissal for want of prosecution. A special and limited appearance was filed on behalf of Irwin Lipka, a codefendant not named in this appeal. Lipka was represented in court by the same attorneys as was defendant Lauder. On that date, the trial court indicated that Lipka and Lauder would be allowed to file motions to quash in support of a special and limited appearance. No special and limited appearance, however, was filed on behalf of defendant Lauder on that date. Counsel for Lauder indicated that he had appeared on behalf of Lauder in order to see if the case had been dismissed for want of prosecution and to discover the status of the case. Subsequently, a motion to quash service of summons was filed on behalf of the codefendant Lipka.

On March 24, 1988, counsel tendered a special and limited appearance on behalf of defendant Lauder. The trial court denied Lauder’s request for leave to file a motion to quash service of summons in support of a special and limited appearance, stating that such a motion could be filed at any time, without leave of court. It is indicated in defendant’s post-trial motion to vacate that counsel for Lauder then asserted the “equitable defense” that the statutory assessment procedures were not properly followed. The court stated that the defense asserted was “not germane” to the issue of possession, pursuant to the forcible entry and detainer statute. The trial court granted the motion to quash service of summons on the code-fendant Lipka and stated that the case was ready for trial. Counsel for Lauder requested a continuance of the trial, and the court continued trial to March 31,1988.

On March 31, 1988, counsel for Lauder indicated that he was not prepared to cross-examine any witness called by plaintiff, since he had just received a new schedule from plaintiff regarding the recovery amount sought. Counsel for plaintiff responded that he would “take away” the new schedule if necessary. Plaintiff’s counsel also stated that Lauder had failed to make any discovery requests. The court indicated that the trial would proceed. The court thereafter entered judgment in favor of plaintiff. On April 4, 1988, defendant Lauder filed a motion to vacate the judgment, which was denied.

Defendant Lauder initially asserts on appeal that its participation in the proceedings in the trial court constituted a general appearance. Defendant filed a special and limited appearance on March 24, 1988, and then sought a continuance of the trial. The court continued the case to March 31, 1988, on which date defendant moved for leave to file a general appearance instanter.

It is well established in Illinois that a special appearance is waived when a party raises a defense, makes a motion, files a pleading, or takes any other action over which the court would have no power to dispose of without having personal jurisdiction over the party. (Greene v. Board of Election Commissioners (1983), 112 Ill. App. 3d 862, 445 N.E.2d 1337.) Any action by a party, except to object to the jurisdiction of the court, which “invokes the court’s power to adjudicate an issue” (Greene, 112 Ill. App. 3d at 868) amounts to a submission to the jurisdiction of the court, and therefore, constitutes a general appearance. (People v. Estep (1955), 6 Ill. 2d 127, 126 N.E.2d 637.) A stipulation for a continuance amounts to a general appearance. (Estep, 6 Ill. 2d at 128.) In the instant case, therefore, defendant’s request on March 24, 1988, for a continuance of the trial of the matter constituted a general appearance.

Defendant also contends that since its conduct constituted a general appearance, the court erred in refusing to allow it to file a written general appearance instanter on March 31, 1988. The only support in the record on appeal that defendant tendered a written general appearance to the court on March 31, 1988, appears in defendant’s post-trial motion, filed on April 4, 1988. Plaintiff asserts that, therefore, there is insufficient support in the record for defendant’s assertion. We have found, however, that defendant’s conduct before the court on March 24, 1988, constituted a general appearance. Regardless of whether defendant tendered a written general appearance on March 31, 1988, does not change that result. Plaintiff apparently asserts, however, that defendant’s alleged failure to file such an appearance, or to tender a written appearance as of record, supports plaintiff’s assertion that defendant was not diligent in defending this matter. We shall address plaintiff’s contention of lack of diligence below when we discuss the denial of defendant’s final request for a continuance, and its motion to vacate the judgment order.

Defendant characterizes the trial court order entered on March 31, 1988, as an ex parte default order. Defendant points to the half-sheet of record, which contains “XP” next to the entry for March 31, 1988, apparently indicating that the order was entered ex parte. Further, defendant asserts that the judgment order was a default judgment, since any judgment entered when the defendant has failed to answer constitutes a default judgment. (Columbus Savings & Loan Association v. Century Tile Co. (1977), 45 Ill. App. 3d 550, 359 N.E.2d 1151.) Plaintiff responds that the order was not an ex parte order, since counsel for defendant was present in court on March 31, 1988. Further, plaintiff asserts that nothing in the record indicates that a default order was entered.

We find that the order entered was in effect a default order, since defendant did not answer plaintiff’s complaint. Defendant asserts that the trial court’s refusal to vacate the default order was erroneous and violated fundamental fairness. Further, defendant asserts, its motion to vacate the judgment, while entitled a section 2 — 1401 motion, is actually a section 2 — 1301(e) motion, since it was filed within 30 days after entry of the judgment. (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 1301(e), 2 — 1401.) Further, defendant asserts that no prejudice would result to plaintiff if the default judgment were vacated. Defendant asserts that trial of the matter was continued only once, from March 24, to March 31, 1988. Further, defendant notes that plaintiff’s counsel appeared in court regarding the suit only three times over 17 days, and that plaintiff’s counsel did not present a motion to default defendant.

Section 2 — 1401 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401) provides for relief from judgments after 30 days from the entry of the judgment. On the other hand, section 2 — 1301 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1301(e)) provides:

“The court may in its discretion, before final order or judgment, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable.”

Defendant’s post-trial motion in the instant case, filed within four days of the entry of the judgment order, is properly characterized as a section 2 — 1301 motion. Under the provisions of section 2 — 1301, we find that defendant presented sufficient grounds for vacating the trial court’s March 31, 1988, order. Further, regardless of whether the March 31, 1988, order constituted a default order, we believe that the trial court abused its discretion in denying defendant’s request for a continuance of the trial on March 31, 1988. Therefore, we find that the motion to vacate should have been granted.

The trial court abused its discretion in refusing to grant defendant’s request for a continuance on March 31, 1988. (See Mireles v. Indiana Harbor Belt R.R. Corp. (1987), 154 Ill. App. 3d 547, 507 N.E.2d 129.) Counsel for defendant contended on that date that he was not prepared to conduct meaningful cross-examination of plaintiff’s witnesses, since he had just received from plaintiff a new schedule of damages. We find that plaintiff would not be unduly prejudiced by a continuance of trial of the matter. Plaintiff attempted to show hardship resulting from a delay in the proceedings, by stating that the cause had already been continued for trial and that plaintiff was ready with its witnesses and evidence to proceed to trial. However, defendant had requested only one other continuance of the trial, on March 24, 1988. In view of plaintiff’s tendering to defendant a new amount of damages, we believe that defendant’s request for a continuance on March 31, 1988, should have been granted. We are not unmindful of the summary nature of forcible entry and detainer proceedings and the desire of the courts to ensure the parties a prompt trial. (Rodriguez v. Owaynat (1985), 137 Ill. App. 3d 1017, 485 N.E.2d 438.) However, we do not believe that the granting of a continuance of the trial would frustrate the efficient administration of this proceeding.

Defendant cites a number of cases which support the conclusion that his motion to vacate was improperly denied. In Widicus v. Southwestern Electric Cooperative, Inc. (1960), 26 Ill. App. 2d 102, 167 N.E.2d 799, the court stated that in reviewing the denial of a motion to vacate a default judgment, a court of review must determine whether the trial court abused its discretion. In determining whether an abuse of discretion occurred, the court should consider whether the trial court’s decision was “exercised for the prevention of injury and the furtherance of justice.” (Widicus, 26 Ill. App. 2d at 108.) The court further stated:

“The question of whether or not a court should set aside a default should be so resolved as to do substantial justice between the parties and with the idea in mind of carrying out, insofar as it is possible, the determination of matters upon their merits. *** [A] court may well consider whether or not a defendant has a meritorious defense, and whether or not defendant’s delay in responding to the court’s command actually jeopardizes plaintiff’s basic position. But this should not be the only, nor necessarily, the determining factor. *** Justice will not be done if hurried defaults are allowed any more than if continuing delays are permitted. But justice might, at times, require a default or a delay. What is just and proper must be determined by the facts of each case ***.
*** [A] default should only be condoned when, as a last resort, it is necessary to give the plaintiff his just demand. It should be set aside when it will not cause a hardship upon the plaintiff to go to trial on the merits.” Widicus, 26 Ill. App. 2d at 108-09.

Three other cases cited by defendant cite Widicus. In Doss v. Field Enterprises, Inc. (1973), 15 Ill. App. 3d 875, 305 N.E.2d 431, the court reversed the trial court’s entry of a default judgment and order denying the defendant’s motion to vacate the default judgment. The defendant had filed a special and limited appearance and motion to transfer from Madison County to Cook County. The matter was transferred to Cook County, and the plaintiff paid the transfer fees without notifying the defendant. At a hearing on the matter, the defendant was not present and the court ordered the plaintiff to prepare an order of default. Before the default order was entered, counsel for the defendant appeared and offered to file a general appearance. The court stated that a motion to vacate the default was necessary before the defendant could file an appearance. The court then entered the default judgment. Thereafter, the defendant filed three separate motions to vacate the default judgment.

Citing the standard set forth in Widicus, the appellate court found an abuse of discretion by the trial court in its entry of the default order and refusal to vacate the order. The appellate court stated that the defendant’s counsel had sought leave to file a general appearance before the order was entered. Further, the plaintiff showed no prejudice by the defendant’s failure to plead, and the plaintiff did not request the default. Doss, 15 Ill. App. 3d at 878.

In Karaskiewicz v. Karaskiewicz (1976), 38 Ill. App. 3d 509, 348 N.E.2d 184, the court reversed the trial court’s denial of the defendant’s motion to vacate a default decree in a dissolution of marriage proceeding. The court looked to the Widicus standard of whether substantial justice was served in denying the motion to vacate. After considering all of the circumstances surrounding the entry of the default judgment, the court determined that any minor hardship to the plaintiff in requiring a full trial on the merits was outweighed by the need to protect the defendant’s “day in court.” Karaskiewicz, 38 Ill. App. 3d at 512.

In Satcher v. Inland Real Estate Corp. (1983), 116 Ill. App. 3d 685, 452 N.E.2d 126, the court reversed the trial court’s denial of the defendant’s motion to vacate a default order entered after the defendant failed to appear at a hearing in the small claims action. While considering the defendant’s excuse for failing to appear and its assertion that a meritorious defense to the plaintiff’s action existed, the court stated that those factors alone do not determine whether the motion to vacate was properly denied. The court stated that an important factor in determining that the motion to vacate was improperly denied was that the record failed to support a finding that the plaintiff would be prejudiced by a granting of the motion. Satcher, 116 Ill. App. 3d at 688.

Two other cases cited by defendant are Ingersoll Aluminum Products Co. v. Busse (1977), 49 Ill. App. 3d 1015, 364 N.E.2d 1001, and Panko v. Advanced Appliance Service (1977), 55 Ill. App. 3d 301, 371 N.E.2d 3. In Panko, the appellate court held that the trial court properly granted the defendant additional time after the 30-day return date to file his appearance. The plaintiff asserted that the trial court should have entered a default judgment. The appellate court disagreed, stating that, particularly in a case where the issues are uncomplicated, it is not an abuse of discretion for a court to allow a defendant to file his answer instanter and then to proceed to trial. The court stated that justice is better served by trial on the merits than by default judgments. Panko, 55 Ill. App. 3d at 305.

Busse is the only cited case that does not deal particularly with a default judgment. In Busse, the plaintiff appealed from an order which vacated a final judgment in a garnishment proceeding. The court looked to the statute which provides for relief from judgments within 30 days of entry of the order (Ill. Rev. Stat. 1975, ch. 110, par. 50(5) (now Ill. Rev. Stat. 1987, ch. 110, par. 2—1301(e))) and stated that the “overriding consideration in vacating judgments” pursuant to the statute is “whether or not substantial justice is being done” between the parties. (Busse, 49 Ill. App. 3d at 1017.) This factor determines the resolution of the issue to a greater extent than other considerations, such as a meritorious defense and whether or not there is a reasonable excuse for the delay in asserting such a defense. (Busse, 49 Ill. App. 3d at 1017.) The court held that the trial court properly vacated the default judgment against the defendant where the defendant did not show a lack of diligence, the petition to vacate was filed within 16 days after entry of the judgment, and where the court order vacating the judgment was entered within 30 days of entry of the judgment order. In addition, no hardship to the plaintiff was shown. (Busse, 49 Ill. App. 3d at 1017.) Each of the cited cases supports the conclusion in the instant case that defendant’s request for a continuance and motion to vacate the judgment order were improperly denied.

For the foregoing reasons, we reverse the judgment of the circuit court and remand this matter to the trial court for further proceedings.

Reversed and remanded.

McNAMARA and WHITE, JJ., concur.


text:
    TRANSAMERICA INSURANCE COMPANY, Plaintiff, v. JAMES R. VASSILOS, Defendant-Appellant (American National Bank & Trust Company of Chicago, Citation-Respondent; Teller, Levit & Silvertrust, P.C., Appellant).
    First District (3rd Division)
    Nos. 1—88—1791, 1—88—1793, 1—88—1794 cons.
    Opinion filed March 29, 1989.

      Collins & Bertelle, of Chicago, for appellant.
    No brief filed for appellee.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

Appellant, the law firm of Teller, Levit & Silvertrust, P.C., appeals three orders of the circuit court of Cook County removing it as the attorney of three different plaintiffs in three different actions against three different defendants. In the first action, No. 87 — M1— 153427, appellant obtained the issuance of a garnishment summons to the American National Bank & Trust Company of Chicago (ANB) as garnishee. In the second action, No. 87 — M1—149707, appellant obtained the issuance of a citation to discover assets of the defendant in the possession of ANB as land trustee. In the third action, No. 87— M1 — 169488, appellant obtained the issuance of a citation to discover assets, specifically, funds, of the defendant, in the possession of ANB.

The trial court before which all three actions were heard sua sponte removed appellant as the plaintiff’s attorney after finding appellant chargeable with a conflict of interest in violation of Canons 4 and 9 of the Code of Professional Responsibility (107 Ill. 2d Canons 4, 9) in that appellant had regularly appeared and represented ANB in garnishment and citation proceedings before the court. The trial court subsequently denied appellant’s motions to vacate its prior orders. In so doing, the trial court found that there was no just reason to delay enforcement or appeal of the denial orders. This finding was obviously made to allow appeals of the orders under Supreme Court Rule 304(a), providing for appeals from final judgments as to less than all the parties or claims in multiple party or multiple claim actions. 107 Ill. 2d R. 304(a).

We cannot reach the merits of appellant’s claim that the trial court erred in removing it as plaintiff’s counsel in each of the three actions involved. In asserting the appealability of those orders, appellant relies on Leckrone v. City of Salem (1987), 152 Ill. App. 3d 126, 503 N.E.2d 1093, and the rule in Federal courts (see, e.g., Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp. (2d Cir. 1974), 496 F.2d 800; Schloetter v. Railoc of Indiana, Inc. (7th Cir. 1976), 546 F.2d 706).

Leckrone held that an order on a motion to disqualify an attorney for a party to the action was final and appealable under Supreme Court Rule 301 (107 Ill. 2d R. 301). Because the movant had not appealed the order denying the motion within 30 days of its entry, the court concluded that the issue had been waived. (Leckrone, 152 Ill. App. 3d at 131-33.) Notwithstanding Leckrone, the rule in Illinois is that an attorney disqualification order is neither an interlocutory order appealable before a final judgment in the case nor a final order appealable independently of such final judgment by one other than the party represented by the disqualified attorney.

In Almon v. American Carloading Corp. (1942), 380 Ill. 524, 44 N.E.2d 592, the supreme court held that a trial court’s order removing an attorney was not in the nature of an appealable interlocutory order under section 78 of the Civil Practice Act (Ill. Rev. Stat. 1941, ch. 110, par. 202) on a petition for an injunction or the appointment of a receiver. It further held that the disqualified attorney’s interest in continued representation of the defendants was insufficient to support his right to appeal the trial court’s order as one not a party to the record. Rather, the court stated, only an interest attached to the judgment or decree entered on the merits of the case would support a right to appeal. Finally, the court stated that the order removing defendants’ attorney was not final and appealable. In so concluding, the court noted that the order had no bearing on the defendants’ rights as to the matters involved in the litigation, that defendants were not deprived of the right to be represented by counsel and the order involved a matter collateral to the main issue in the case. As such, the court ruled that the appellate court had no jurisdiction to dispose of the appeal on its merits. Almon, 380 Ill. at 528-31.

In National Wrecking Co. v. Midwest Terminal Corp. (1987), 164 Ill. App. 3d 621, 518 N.E.2d 193, this court recognized the continuing validity of Almon to dismiss an appeal by the defendant and its attorney from an interlocutory order disqualifying the attorney from representing the defendant. In so doing, we distinguished Lavaja v. Carter (1987), 153 Ill. App. 3d 317, 505 N.E.2d 694, and Hannan v. Watt (1986), 147 Ill. App. 3d 456, 497 N.E.2d 1307, upon which the appellants relied. We noted that Lavaja involved an appeal of a disqualification order within the context of an appeal of a default judgment. In Hannan, pilots for one airline sought to enjoin the defendants, two attorneys and their law firm, from representing pilots of another airline in union proceedings resulting from the merger of the two airlines. We noted that the plaintiffs in Hannan had appealed from a final order denying their petition for injunctive relief. Finally, we noted that Leckrone was contrary to the rule in Almon and thus without proper authority. National Wrecking Co., 164 Ill. App. 3d at 623-25.

In Matsunaga v. Worrell (1988), 169 Ill. App. 3d 681, 523 N.E.2d 1042, the court dismissed appeals from disqualification orders in two related actions pending in the circuit court. In doing so, the court noted that, because a disqualification order is not a final order, no appeal may be taken therefrom prior to the disposition of the litigants’ substantive claims. It also held that, because it was not a final order, the inclusion of a finding that there was no just reason to delay enforcement or appeal pursuant to Supreme Court Rule 304(a) did not make the order appealable. Finally, the court noted that no supreme court rule specifically permits an interlocutory appeal from a disqualification order. Matsunaga, 169 Ill. App. 3d at 682-83.

This case differs from National Wrecking Co. and Matsunaga in that final judgments have been entered in each of the cases in which the trial court disqualified appellant as plaintiffs counsel. However, appellant has no more right to appeal from those orders than the appellants in National Wrecking Co. and Matsunaga. Whether or not a trial court has entered a final judgment disposing of a case on its merits, under Almon, an attorney has an insufficient interest in his representation of a party to the case to entitle him to appeal an order disqualifying him from representing the party. Rather, under Almon, the right to appeal such an order belongs to the party the attorney represented, who must raise the issue in an appeal from the disposition on the merits. No plaintiff in any of the three actions in which appellant was removed as counsel has appealed the final judgment in those actions. For that reason and because the order appealed from is neither an appealable interlocutory order nor an independently final, and thus appealable, order, we are without jurisdiction to entertain the instant appeals.

For all of the foregoing reasons, we dismiss the appeals from the three orders of the circuit court removing appellant as plaintiffs counsel in the three actions involved.

Appeal dismissed.

McNAMARA and WHITE, JJ., concur.


author: JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. DERRICK HEARD, Petitioner-Appellant.
    First District (4th Division)
    No. 1—86—3007
    Opinion filed March 30, 1989.

      Michael J. Pelletier and Donna Finch, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Judy L. Groeneveld, and Lauren A. Freeman, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Petitioner, Derrick Heard, was convicted of murder and sentenced to 68 years in prison. The appellate court affirmed his conviction and sentence in April 1984. He then filed a pro se petition for post-conviction relief, alleging that he was denied effective assistance of counsel because his trial attorney failed to file a motion to quash arrest and suppress statements and that his appellate attorney failed to raise any meaningful issues on appeal. The court denied the post-conviction petition. Heard retained a private attorney, who filed a motion for reconsideration of the dismissal of his pro se petition. Because no trial judge had actually reviewed the motion for reconsideration, the appellate court remanded the cause back to the circuit court with the direction that it consider defendant’s amended post-conviction petition. Another judge reviewed the amended petition and dismissed it on October 2,1986.

Heard appeals from this dismissal. He argues that the trial court erred in deciding the petition without appointing an attorney for Heard, particularly since the petition was based on sixth amendment issues concerning the effective assistance of counsel at the trial and appellate levels. He further argues that indigent pro se defendants seeking post-conviction relief are entitled to appointment of counsel before the court decides the petition; the cause should be remanded because the court failed to enter its order within 30 days of the filing of the petition, as required by statute; and that the cause should be remanded because the trial court failed to comply with the requirement that summary dismissal of post-conviction petitions must be by written order specifying findings of fact and conclusions of law.

We affirm.

Background

Following Heard’s conviction of murder and 68-year-sentence, an assistant public defender was assigned to represent him on appeal. According to Heard, the only issue that the attorney raised was the trial court’s failure to impose a sentence in “a thoughtful manner.” The appellate court affirmed Heard’s conviction and sentence on April 13,1984.

On April 11, 1984, Heard filed a pro se petition for post-conviction relief, alleging ineffective assistance of both trial and appellate counsel. Judge R. Eugene Pincham summarily dismissed this petition on May 1, 1984, without providing written findings of fact and conclusions of law.

The clerk’s office did not notify Heard of the disposition of his petition until July 2, 1984. Before receiving this notice, Heard had retained a private attorney to represent him during the post-conviction proceedings. This attorney filed a motion for reconsideration of the dismissal of the pro se petition, which was denied.

On January 16, 1986, the appellate court found that the appeal should be dismissed and the matter remanded because no circuit court judge had reviewed the motion to reconsider on its merits.

On April 10, 1986, the case was assigned to Judge Arthur J. Cieslik. On May 1, 1986, Heard asked that a bar association attorney be appointed to represent him. The judge apparently believed at first that the case was on remand for reconsideration of Heard’s sentence and granted the motion allowing Heard to be represented by counsel. However, the court subsequently realized that the case had been remanded for reconsideration of the post-conviction petition. Accordingly, after continuing the cause until he could fully review the relevant papers, the trial judge on October 2, 1986, dismissed Heard’s petition. He did not make specific written findings of fact or conclusions of law. Heard appeals from that order.

Opinion

I

Heard first contends that Judge Cieslik erred in dismissing his post-conviction petition because it alleged sufficient facts that were not patently frivolous or without merit. Since the truth of the allegations must be assumed in evaluating the legal sufficiency of a post-conviction petition, the court should have allowed the further investigation and research needed to prove them.

The State argues that Heard waived the allegation that trial counsel was ineffective because his appellate counsel failed to raise that issue during the direct appeal from his conviction and sentence.

We agree with the State that, generally, a defendant waives the issue of trial counsel’s incompetence if he has different counsel on appeal and fails to raise it. (People v. Bland (1979), 67 Ill. App. 3d 716, 384 N.E.2d 68.) Moreover, even though waiver may not be appropriate if it stems from the incompetence of appointed counsel on appeal, appellate counsel is not required to raise issues that in his judgment are without merit, unless his appraisal is patently wrong. People v. Frank (1971), 48 Ill. 2d 500, 505, 272 N.E.2d 25.

One of Heard’s allegations of ineffective assistance is that his trial attorney failed to file a motion to quash arrest and suppress statements. However, the guidelines for establishing ineffective assistance of counsel require a showing that the errors were “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,” and that the alleged errors were in fact prejudicial to his defense, resulting in the denial of a fair trial. Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064; accord People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.

In application, the courts generally hold that the decision of whether or not to file a motion to suppress is largely a matter of trial tactics under the circumstances, unrelated to the issue of competency. (E.g., People v. Atkins (1987), 161 Ill. App. 3d 600, 609, 515 N.E.2d 272.) The competency of counsel is determined by the totality of counsel’s trial conduct (People v. Eddmonds (1984), 101 Ill. 2d 44, 461 N.E.2d 347), and if the jury’s verdict would not have been different even if the allegations were true, ineffective assistance of counsel has not been established. People v. Albanese (1988), 125 Ill. 2d 100, 531 N.E.2d 17.

In the pending case Heard had filed a complaint with the Attorney Registration and Disciplinary Commission against his trial attorney and obtained different counsel to handle the appeal. The record contains the trial counsel’s written response to Heard’s charge and includes facts to support his opinion that Heard had no basis for a motion to quash arrest or suppress evidence. We do not regard this as evidence or lack of evidence that the attorney’s conduct may have been incompetent. Nevertheless, it does establish that Heard had knowledge of his attorney’s alleged incompetence before the appeal. The record also contains Heard’s statement that he communicated with his appointed appellate counsel regarding the case. The appellate attorney could have raised an issue on direct appeal had she believed the trial attorney’s conduct, based on the record and Heard’s statements. She did not raise any such issue, nor was she required to do so under People v. Frank if she found the issue lacking in merit. For this reason, we find that further review of the matter has been waived.

Heard also contends that his appellate counsel was incompetent for raising only an issue that the sentence was excessive because the trial court had imposed the term without calm deliberation. We hold that, based on Strickland and People v. Frank, appellate counsel’s failure to raise additional issues does not constitute ineffective assistance. As we have noted, an attorney is not required to raise issues that he does not believe are meritorious, and that includes the alleged incompetence of trial counsel.

Moreover, we are unpersuaded after reviewing the petition and record that the outcome of Heard’s trial or appeal would have been different had his attorneys not committed the acts of alleged incompetence with which they are charged.

“A Post-Conviction Hearing Act proceeding is not an appeal per se, but a collateral attack on a judgment.” (People v. Albanese (1988), 125 Ill. 2d 100, 104, 531 N.E.2d 17, 18.) The defendant’s guilt or innocence is not in issue; rather, the proceeding is meant to delve into the constitutional defects claimed to have occurred during the original trial. The burden is on the defendant to establish a substantial constitutional deprivation and the defendant is not entitled to an evidentiary hearing on his post-conviction petition as a matter of right, “but only when the allegation of a substantial violation of constitutional rights is supported by the record or by accompanying affidavits.” (People v. Albanese (1988), 125 Ill. 2d 100, 104-05, 531 N.E.2d 17, 18.) On review of Heard’s petition and the record before us, we find that Heard has failed to establish a substantial constitutional deprivation.

II

Heard next argues that section 122 — 2.1 of the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122 — 2.1) unconstitutionally permits the trial court to dismiss an indigent’s petition without appointment of counsel, in conflict with Illinois Supreme Court Rule 651(c) (107 Ill. 2d R. 651(c)). Rule 651(c) requires the appointment of counsel for indigents who appeal from the denial or dismissal of their post-conviction petitions.

The Illinois Supreme Court has recently determined this and other issues germane to the construction of the Post-Conviction Hearing Act. (People v. Porter (1988), 122 Ill. 2d 64, 521 N.E.2d 1158.) In Porter, the court held that indigents who file post-conviction petitions for relief are not entitled to the appointment of counsel before the court determines the threshold issue of whether the petition states a claim that is not frivolous or patently without merit. (See Ill. Rev. Stat. 1985, ch. 38, par. 122 — 2.1.) If the petition is not dismissed, the indigent is entitled to appointment of counsel. The court in Porter concluded that there was no conflict with section 122 — 2.1 of the Post-Conviction Hearing Act and Supreme Court Rule 651(c) “because these provisions provide for appointment of counsel at different stages of the post-conviction process,” at trial and on appeal, respectively. People v. Porter, 122 Ill. 2d at 72, 521 N.E.2d at 1160.

We have no choice on this issue but to follow the Illinois Supreme Court’s interpretation. Accordingly, we must reject Heard’s position.

Ill

Heard next argues that the trial court was required to enter a dismissal of the petition within 30 days, by written order containing specific findings of facts and conclusions of law which form the basis of the frivolousness determination. (Ill. Rev. Stat. 1985, ch. 38, par. 122 — 2.1(a).) He claims that since the trial court failed to fulfil these requirements, the cause must be remanded for further consideration under other sections of the Act.

Initially we note that People v. Porter has found mandatory the 30-day period for dismissing a post-conviction petition. In the pending case, however, the original pro se petition was dismissed within 30 days. Subsequently, Heard’s counsel filed an “amended motion for reconsideration,” which was denied. The appellate court reversed, directing that the trial court consider the motion for reconsideration. This reconsideration was not resolved within 30 days.

We agree with the trial judge that the 30-day period does not specifically apply to motions for reconsideration, following an appeal and remand. The better practice may be to adhere to a 30-day disposition anyway, but we do not read it as a requirement under the statute. (Cf. People v. Crete (1986), 113 Ill. 2d 156, 497 N.E.2d 751 (motion to reconsider a sentence must, by statute, be ruled upon within 30 days of sentencing).) A motion for reconsideration is not the same proceeding as that triggered by the initial petition. We do not find, in any event, that prejudice has resulted from the failure of the court to rule upon the motion to reconsider within 30 days. In fact, the record indicates that the trial judge continued the matter so that he could carefully review it instead of ruling on it the first time it was before him, when he had not read it. See People v. Churchill (1985), 136 Ill. App. 3d 123, 482 N.E.2d 355 (harmless error).

Heard further contends that the cause must be remanded because the trial court failed to give written findings of fact and legal conclusions, as required in section 122 — 1.

The Illinois Supreme Court in People v. Porter has decided this issue also, holding that although it considered such findings and conclusions “advisable,” the requirement is not mandatory. (122 Ill. 2d at 82, 521 N.E.2d at 1165.) In line with the Porter decision, we conclude that the lack of written findings and conclusions does not void the dismissal.

For the foregoing reasons, we affirm the trial court’s order denying Heard’s motion to reconsider the dismissal of his post-conviction petition.

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALBERT FERGUSON, Defendant-Appellant.
    First District (4th Division)
    No. 1—87—2172
    Opinion filed March 30, 1989.

      Paul P. Biebel, Jr., Public Defender, of Chicago (Millicent Willis and Alison Edwards, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, La-Coulton Walls, and Mary Jo Montgomery Lydikson, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Following a bench trial in the circuit court of Cook County defendant was found guilty of assault (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 1) and placed on supervision for one year. In this appeal defendant contends that his conviction should be reversed because the State failed to prove that he placed the complaining witness in reasonable apprehension of receiving a battery.

The incident giving rise to the charge against defendant occurred on July 26, 1986, at the gate of the South Shore Country Club in Chicago. A Gospelfest program was underway there that afternoon, and the complaining witness, Robert Norwood, was employed as a security guard for the event by the mayor’s office of special events. In that capacity, Norwood was positioned at the gate of the parking lot which had been divided for the use of Gospelfest patrons and those wishing to play golf at the club.

Defendant drove up to the gate about 5 p.m. seeking admission to play golf. When Norwood informed him that he could not enter and would have to park his car on the street, defendant jumped out of his car and stood within three inches of Norwood’s face, cursing at him and telling him that he was going to drive his car into the lot regardless of what Norwood said. Defendant then got back into his car and began to drive it, but Norwood would not move. Defendant pushed his car into Norwood, got out again, then ran to his trunk, telling Nor-wood that if he would not move, defendant had something to move him. Defendant opened his trunk, then came back to where Norwood was standing, and within striking distance, told Norwood that he was going to “kick his ass.” At trial, Norwood stated that he thought defendant was going to hit him at that point.

During cross-examination, Norwood stated that two Chicago police officers were on duty in the same area that afternoon and were standing about eight feet away from him when defendant approached. He further stated that when defendant got out of his car, his attitude changed dramatically from that exhibited when he first explained to Norwood that he wanted to enter the area to play golf. Norwood later stated that when defendant got out of his car, he was raging, and cursing, and threatened to “kick his ass” in an angry tone of voice. Norwood further stated that he eventually called the police officers over, but because a traffic jam had developed behind defendant, they did not arrest defendant at that moment, but did so later for a sticker violation.

Defendant testified that he was 48 years of age and before the current strike had been employed at United States Steel for 17 years. On the evening in question, defendant went to the country club to play golf but was stopped at the gate by Norwood, who was not wearing a uniform. Defendant explained why he was at the club, but Nor-wood would not let him enter, although he saw Norwood allow a woman enter the lot who had arrived after him.

After his unsuccessful attempt to gain entry, defendant got back into his car and Norwood put his knee on the front of it. Defendant then stepped out of his car again, and Norwood summoned the two uniformed police officers. When the officers learned that Norwood was not a police officer, however, they dismissed his protestations and walked away. Defendant got back into his car once again, leaned out of the window and told Norwood that it would be better for him to get his knee off his car. Norwood, however, continued to stand there, and at this point a police officer told defendant to turn his car around and get out. Defendant refused to leave and was placed under arrest because of an illegal car sticker.

During cross-examination, defendant acknowledged that he may have screamed at Norwood, but stated that Norwood had also swore at him. He denied saying that he was going to “kick his ass” and pointed out that Norwood was a much younger man. Defendant also acknowledged, however, that he is 6 feet V-k inches tall and at the time of the incident weighed about 230 pounds. He admitted that he was upset when Norwood permitted a woman to enter the lot behind him after he had been denied entry, but insisted that he did not threaten Norwood.

At the close of evidence and argument, the court stated that the determinative issue in the case was that of credibility and that it found the testimony of Norwood clear and convincing and sufficient to establish defendant’s guilt of the offense beyond a reasonable doubt. Judgment was entered on this finding and defendant was sentenced to one year of supervision. This appeal follows in which defendant contests the sufficiency of the evidence to sustain his conviction asserting specifically that the State failed to prove that defendant placed Norwood in reasonable apprehension of receiving a battery.

By statute, an assault occurs when a person engages in conduct which places another in reasonable apprehension of receiving a battery (Ill. Rev. Stat. 1985, ch. 38, par. 12—1(a)), and the determination as to whether this situation exists in a given case is to be made by the trier of fact. (People v. Harkey (1979), 69 Ill. App. 3d 94, 386 N.E.2d 1151.) To establish this element the victim need not testify expressly that he was in apprehension of receiving a battery; it is sufficient if the trier of fact may reasonably infer from the facts and circumstances that this was the case. (People v. Chrisopulos (1980), 82 Ill. App. 3d 581, 402 N.E.2d 912; see also People v. Smith (1977), 52 Ill. App. 3d 53, 367 N.E.2d 84.) Where the evidence is conflicting, it is the province of the trier of fact to resolve the conflict and determine which witnesses are to be believed. (People v. Rynberk (1980), 92 Ill. App. 3d 112, 415 N.E.2d 1087.) The decision reached by the trier of fact will not be disturbed on review unless it is contrary to the manifest weight of the evidence. People v. Holverson (1975), 32 Ill. App. 3d 459, 336 N.E.2d 88.

In the case at bar, the trial court resolved the credibility and testimonial conflict issues in favor of the complaining witness, and we find no reason to upset that determination. Although we recognize that words alone are insufficient to establish the offense of assault, we believe that the words and conduct attributed to defendant under the circumstances in this case were sufficient to support the judgment entered by the trial court.

In announcing its findings at the close of evidence and again in denying defendant’s motion for a new trial, the court referred to the credibility issue and in the latter instance elaborated on the observations which prompted its ultimate determination. The court first noted that both witnesses, although separated in age by about 20 years, were large men and physically strong. In addition, the court found that Norwood’s testimony had been delivered in a calm, direct manner in which temper and hostility played no part. On the other hand, the court found that defendant had not just presented his testimony in a loud manner, as asserted by defense counsel, but that he had also become easily agitated and hostile and had behaved in a manner which was consistent with the testimony given by Norwood. Accordingly, the court found that the words attributed to defendant, together with his conduct, established the offense of assault in that they reflected the immediate possibility of his committing a battery against Norwood. We agree with this assessment. In our opinion, the evidence of defendant’s verbal threat to kick Norwood, which was delivered at close range, the hostility and anger evident in his remarks to Norwood (see People v. Harkey (1979), 69 Ill. App. 3d 94, 386 N.E.2d 1151) and the temperament he displayed toward him during the incident (see People v. Chrisopulos (1980), 82 Ill. App. 3d 581, 402 N.E.2d 912), support the trial court’s conclusion that Norwood was placed in reasonable apprehension of receiving a battery by defendant, and that defendant was therefore proved guilty of assault as charged. People v. Holverson (1975), 32 Ill. App. 3d 459, 336 N.E.2d 88.

The judgment of the circuit court of Cook County is affirmed.

Affirmed.

JOHNSON and McMORROW, JJ., concur.


author: PRESIDING JUSTICE JIGANTI

text:
    HARRY S. MILLER, as Trustee for the Estate of Sharon S. Graziani, Plaintiff-Appellant, v. THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, Defendant-Appellee.
    First District (4th Division)
    No. 1—88—1497
    Opinion filed March 30, 1989.

      Deborah M. Jervis and George B. Collins, both of Collins & Bertelle, of Chicago, for appellant.
    John D. Lien and Darlene C. Goring, both of Foley & Lardner, of Chicago, for appellee.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiff, Harry S. Miller, as trustee for the estate of Sharon S. Graziani, appeals from an order of the circuit court dismissing count IV of the plaintiffs second amended complaint pursuant to section 2— 615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615). The basis for the dismissal was the failure to allege sufficient facts to state a claim for intentional infliction of emotional distress.

Sharon Graziani was employed by the defendant, Equitable Life Assurance Society of the United States, as an insurance sales representative from approximately March 1982 until September 1985. In count IV of her amended complaint, Graziani alleged that supervisors and co-workers at Equitable participated in a course of conduct which created a hostile and emotionally disturbing working environment. In this regard, Graziani alleged that her repeated requests for training and assistance in soliciting and selling insurance policies were either ignored or met with disparaging remarks and insults by Equitable supervisors; her job performance was often the subject of ridicule; she was deliberately ignored by co-workers and supervisors; she was frequently called a “white racist” by co-workers and threatened with physical harm; her sense of job security was undermined by Equitable's practice of firing insurance agents as soon as they exhausted their friends, relatives and acquaintances for the sale of insurance policies; she was continuously threatened with the loss of her job if she did not produce new business; her request for a job transfer was denied; employees of Equitable regularly yelled, screamed and slammed doors; when client files and a valuable coin collection were stolen from Gra-ziani, supervisors refused to cooperate in recovering them; when Gra-ziani was recovering from an automobile accident in 1983, Equitable refused to forward her mail and informed clients that she no longer worked there; when a secretary hit Graziani and threw coffee at her, Graziani was not allowed to get police assistance.

In addition to this recitation of events, Graziani also alleged that she was subject to sexual harassment and retaliatory discharge. With regard to the sexual harassment, Graziani alleged that an insurance agent of Equitable touched her breast, shoulders and head and that another agent stated that he wanted her. Graziani further alleged that such conduct continued, despite her protests, at the encouragement of an Equitable district manager who frequently stated that she should use sex to make insurance sales. With regard to the retaliatory discharge, Graziani alleged that she was fired because she reported a fraudulent insurance application and reported the practice of kickbacks which was allegedly prevalent among Equitable’s employees. Finally, Graziani alleged that as a result of the above, she suffered great physical pain and severe mental anguish which, since February of 1985, has required psychiatric treatment.

In order to state a cause of action for intentional infliction of emotional distress, the plaintiff must allege facts which establish: (1) the defendant’s conduct was extreme and outrageous; (2) the emotional distress suffered by the plaintiff was severe; and (3) the defendant knew that severe emotional distress was certain or substantially certain to result from such conduct. McGrath v. Fahey (1988), 126 Ill. 2d 78, 86, 533 N.E.2d 806, 809; Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 90, 360 N.E.2d 765, 767.

With respect to the first requirement, the defendant’s conduct must be “ ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.’ ” (Public Finance Corp., 66 Ill. 2d at 90, 360 N.E.2d at 767, quoting Restatement (Second) of Torts §46, comment d (1965).) Recovery under this theory does not extend to conduct which merely involves insults, indignities, threats, annoyances, petty oppressions, or other trivialities. (McGrath, 126 Ill. 2d at 86, 533 N.E.2d at 809; Public Finance Corp., 66 Ill. 2d at 89, 360 N.E.2d at 767.) With respect to the severity of the plaintiff’s distress, “ ‘[t]he law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it.’ ” Public Finance Corp., 66 Ill. 2d at 90, 360 N.E.2d at 767, quoting Restatement (Second) of Torts §46, comment j (1965).

These matters should be decided on the pleadings because, as the supreme court admonished in Knierim v. Izzo (1961), 22 Ill. 2d 73, 174 N.E.2d 157, the seminal ease permitting this theory of recovery, “[indiscriminate allowance of actions for mental anguish would encourage neurotic overreactions to trivial hurts.” (Knierim, 22 Ill. 2d at 85, 174 N.E.2d at 164.) Determining whether a complaint states a cause of action essentially involves drawing a line “between the slight hurts which are the price of a complex society and the severe mental disturbances inflicted by intentional actions wholly lacking in social utility.” (Knierim, 22 Ill. 2d at 85, 174 N.E.2d at 164.) We recognize that our decision as to where that line should be drawn is based in large part on common sense and intuition more “subtle than any articulate major premise.” Lochner v. New York (1905), 198 U.S. 45, 76, 49 L. Ed. 937, 949, 25 S. Ct. 539, 547 (Holmes, J., dissenting); see generally Consolino v. Thompson (1984), 127 Ill. App. 3d 31, 468 N.E.2d 422.

With this background, we turn to the complaint. Stripped of all its conclusions, and accepting all well-pleaded facts as true (Burgess v. Chicago Sun-Times (1985), 132 Ill. App. 3d 181, 187, 476 N.E.2d 1284, 1289), count IV of the complaint essentially alleges that for approximately 32/2 years Graziani was surrounded by supervisors and coworkers who were inconsiderate, rude, vulgar, uncooperative, unprofessional and unfair. While we do not condone such behavior, we do not believe that the conduct alleged is so outrageous in character and so extreme in degree as to go beyond all bounds of human decency. Nor do we believe that the distress is so severe that no reasonable person could be expected to endure it. The fact that Graziani alleges that she was a victim of sexual harassment, battery, and retaliatory discharge does not necessarily mean that she has a cause of action for intentional infliction of emotional distress.

In employment situations, personality conflicts, job performance evaluations, or job transfers are unavoidable and often result in stress. However, if such stress formed the basis for the tort of intentional infliction of emotional distress, virtually every employee would have a cause of action. Grey v. First National Bank (1988), 169 Ill. App. 3d 936, 945, 523 N.E.2d 1138, 1144. See generally Pudil v. Smart Buy, Inc. (N.D. Ill. 1985), 607 F. Supp. 440; Vitkauskas v. State Farm Mutual Automobile Insurance Co. (1987), 157 Ill. App. 3d 317, 509 N.E.2d 1385; Gibson v. Chemical Card Services Corp. (1987), 157 Ill. App. 3d 211, 510 N.E.2d 37; Harris v. First Federal Savings & Loan Association (1984), 129 Ill. App. 3d 978, 473 N.E.2d 457; Heying v. Simonaitis (1984), 126 Ill. App. 3d 157, 466 N.E.2d 1137; Witkowski v. St. Anne’s Hospital of Chicago, Inc. (1983), 113 Ill. App. 3d 745, 447 N.E.2d 1016; Morrison v. Sandell (1983), 112 Ill. App. 3d 1057, 446 N.E.2d 290; Plocar v. Dunkin’ Donuts of America, Inc. (1981), 103 Ill. App. 3d 740, 431 N.E.2d 1175.

Graziani argues that the instant case is analogous to Milton v. Illinois Bell Telephone Co. (1981), 101 Ill. App. 3d 75, 427 N.E.2d 829, and Clay v. Quartet Manufacturing Co. (N.D. Ill. 1986), 644 F. Supp. 56. In both cases, the court allowed a cause of action for intentional infliction of emotional distress in an employment situation. In Milton, the plaintiff’s complaint alleged that the defendant employer engaged in a course of harassing conduct in an attempt to coerce the plaintiff employee to falsify certain work reports and, when the plaintiff refused, the defendant engaged in a course of harassing conduct to retaliate against the employee. In allowing a cause of action, the court focused on the fact that the defendant was attempting to coerce the plaintiff to do something illegal. Milton, 101 Ill. App. 3d at 79-80, 427 N.E.2d at 832-33.

Milton can be distinguished from the instant case, where Graziani merely alleges that the practice of kickbacks was prevalent. Graziani does not allege Equitable engaged in a course of conduct in an attempt to coerce her into the illegal activity.

In Clay, which is a Federal district court case and therefore not controlling, the complaint alleged that the defendant employer intentionally coerced the plaintiff employee into a sexual relationship, subjected her to sex-based remarks and offensive touchings after the conclusion of the coerced sexual relationship, and discriminated against her because of her sex. The court, offended by the allegation that the employer continued to sexually harass the employee even after she terminated a coerced sexual relationship, allowed the cause of action. Clay, 644 F. Supp. at 62.

In the instant case, Graziani never alleged that during her employment with Equitable she was coerced into a sexual relationship. Gra-ziani’s complaint merely states that she was subject to an offensive touching by one Equitable employee, subject to vulgar remarks and encouraged by a district manager to use sex to sell insurance policies.

Because the complaint fails to allege extreme and outrageous conduct or severe emotional distress, we hold that Graziani has failed to allege a cause of action for intentional infliction of emotional distress.

For the foregoing reasons, the decision of the trial court is affirmed.

Affirmed.

JOHNSON and McMORROW, JJ., concur.


author: JUSTICE WOODWARD

text:
    RONALD KNIEF, Indiv. and as Special Adm’r of the Estate of Christopher L. Knief, Plaintiff-Appellant, v. GEORGE SOTOS et al., Defendants-Appellees.
    Second District
    No. 2—88—0475
    Opinion filed February 9, 1989.
    — Rehearing denied May 24, 1989.

      Josette Skelnik, of Robinson & Skelnik, of Elgin, for appellant.
    Thomas P. Scherschel, Michael Resis, and Victor J. Piekarski, all of Querrey & Harrow, Ltd., of Chicago, for appellees.
   JUSTICE WOODWARD

delivered the opinion of the court:

Plaintiff, Ronald Knief, appeals from an order of the circuit court of Kane County granting a motion for summary judgment in favor of defendants, George Sotos and Andrew Booras, and the Blue Moon Ballroom and Lounge, Inc. (Blue Moon). Plaintiff also appeals from the circuit court’s order partially denying his motion to compel discovery. Plaintiff raises two issues on appeal: (1) whether summary judgment is proper in an action under section 6 — 12 of the Liquor Control Act of 1934 (Ill. Rev. Stat. 1985, ch. 43, par. 135) when the pleadings showed that the driver had consumed alcohol at the defendants’ establishment and affidavits attested to unusual behavior on the part of the driver; and (2) whether the statements of a head manager and a head waitress of a restaurant bar are privileged from disclosure under the attorney-client privilege.

On July 17, 1987, plaintiff, individually and as special administrator for the estate of Christopher Knief, filed a complaint under section 6 — 21 of the Liquor Control Act of 1934 (Ill. Rev. Stat. 1985, ch. 43, par. 135) and section 27 — 6 of the Probate Act of 1975 (Ill. Rev. Stat. 1985, ch. IIOV2, par. 27 — 6) against defendants Sotos and Booras individually and doing business as the Blue Moon. The complaint alleged that on September 13, 1986, at approximately 10 p.m., Doreen Service, a waitress employed by defendants, was served an alcoholic beverage at the Blue Moon; that she left the Blue Moon with another Blue Moon employee, Debra Patel, in Service’s car; and that the Blue Moon is located at 1900 Larkin Court, Elgin, Illinois. Plaintiff further alleged that Service was driving the car neár 1500 Larkin Court at approximately 10:45 p.m. and that she struck and killed plaintiff’s decedent, Christopher Knief, as he lay with his bicycle in the road.

In their answer, defendants admitted that on September 13, 1986, Service was served an alcoholic drink, a tequila sunrise, at defendants’ restaurant bar. Blue Moon denied that Service became intoxicated as a result of the one drink. In ah answer to one of plaintiff’s interrogatories, Blue Moon stated that Service was given a tequila sunrise at approximately 10 p.m. and that Patel did not have anything to drink.

On January 19, 1888, defendants filed a motion for summary judgment. On March 23, 1988, plaintiff filed a. motion to compel compliance with his discovery requests. Plaintiff sought statements taken from employees of Blue Moon who would have knowledge of the sale or gift of alcohol to Service. Defendants had taken the statements of Service, Patel, Rita Price, Mary Leffler, the head waitress, and Kenneth Comelissen, the head manager. Defendants refused to provide these statements to plaintiff, claiming that they were privileged statements of agents of Blue Moon. The court granted plaintiff’s motion as to the statements of Service and Patel but denied it as to the statements of Comelissen and Leffler; because the court decided that they were members of the corporate control group.

At the hearing on the motion for summary judgment, plaintiff presented the affidavit of Dr. William Hillman, an expert in substance abuse. Dr. Hillman’s affidavit averred that a person could become intoxicated after consuming only one alcoholic drink.

Plaintiff also presented the affidavit of Timothy Daniels. In his affidavit, Daniels stated that he was driving his car on Larkin Court at approximately 10:45 p.m. on September 13, 1986. He had two passengers in his car. He stated that when he reached the 1500 block of Larkin Court, he saw Christopher lying in the road with his bicycle. Daniels averred that he had to swerve his car in a broad arc to avoid hitting the boy. Daniels turned his car around and returned to where Christopher lay. Before Daniels could reach him, the car that was traveling behind Daniels hit Christopher. In Daniels’ opinion, the driver of the other car should have been able to avoid hitting the boy, especially since Daniels swerved his car broadly so that the car behind his should have noticed that there was some hazard in the road.

Plaintiff also introduced the affidavit of one of Daniels’ passengers, Becky Paulus. Paulus stated that she felt the car swerve “real hard” to avoid hitting something. She turned around to see what it was. Paulus asserted that she saw Christopher lying in the road. She also saw the car that was traveling behind them hit Christopher. Paulus averred that the car did not stop or slow down to avoid hitting Christopher. It was Paulus’ opinion that she guessed that the other driver did not see the boy and his bicycle lying in the road.

Plaintiff next introduced the affidavit of William Mallette. Mal-lette stated that he was driving on Larkin Court shortly after the accident. He stopped his car because he recognized Christopher. Mal-lette averred that he approached a white Chevrolet when the police were opening the door of the car. Mallette asserted that he smelled a very strong odor of alcohol coming from inside the car. In Mal-lette’s opinion, the police officers were being evasive and trying to “cover something up” when he asked whether the driver would be charged with drunk driving. Mallette later learned that the driver of the white Chevrolet was Service.

Plaintiff argued that the affidavits and defendants’ admissions established evidence of Service’s intoxication. The trial court found that parts of the affidavits of Daniels, Paulus, and Mallette consisted only of conjecture or inferences. Despite evidence that tended to establish that Service did not exercise ordinary care, the court decided that there was no evidence of intoxication. The trial court found that a jury could conclude that Service was negligent. When plaintiff asked whether the evidence tended to establish that Service’s behavior was unusual, the court responded that the evidence “does not sustain any indication of any intoxication. It might be unusual behavior, but that can be pled as negligence of [Service] rather than intoxication.” Consequently, the court granted defendants’ motion for summary judgment.

Plaintiff’s first contention on appeal is that he presented enough evidence of Service’s intoxication to survive a summary judgment motion. Summary judgment should be granted only when the pleadings, depositions, admissions on file, and affidavits present no genuine issue of material fact. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c).) On a summary judgment motion, the court must construe the pleadings, depositions, and affidavits strictly against the movant and liberally in favor of the opponent. (In re Estate of Whittington (1985), 107 Ill. 2d 169, 177.) Summary judgment is an expeditious method of disposing of a lawsuit and should only be allowed when the right of the party moving for summary judgment is free from doubt. (Kelman v. University of Chicago (1988), 166 Ill. App. 3d 137, 141.) While the plaintiff has an affirmative duty to present facts and evidence sufficient to show the existence of a cognizable cause of action when the defendant moves for summary judgment (McCormick v. Maplehurst Winter Sports, Ltd. (1988), 166 Ill. App. 3d 93, 98), the plaintiff is not required to prove his case at the summary judgment stage (Certified Mechanical Contractors, Inc. v. Wight & Co. (1987), 162 Ill. App. 3d 391, 399). When responding to a defendant’s summary judgment motion, the plaintiff has the burden to bring forth facts which raise an alternate inference. (Blonder v. Watts (1988), 166 Ill. App. 3d 633, 636.) The court must draw all reasonable inferences from the evidence in favor of the opponent of the motion. Bank of Waukegan v. Epilepsy Foundation (1987), 163 Ill. App. 3d 901, 906.

Liability under the Liquor Control Act of 1934 is predicated on causing the intoxication of a person who injures another. (Ill. Rev. Stat. 1985, ch. 43, par. 135.) “ ‘A person is “intoxicated” when as a result of drinking alcoholic liquor there is an impairment of his mental or physical faculties so as to diminish his ability to think and act with ordinary care.’ ” (Navarro v. Lerman (1964), 48 Ill. App. 2d 27, 31, quoting Illinois Pattern Jury Instructions, Civil, No. 150.15 (1965).) A person may become intoxicated after drinking only one alcoholic beverage. Navarro, 48 Ill. App. 2d at 35.

Plaintiff presented evidence that Service injured Christopher; that the injuries caused by Service resulted in his death; that Service was not using ordinary care at the time of the accident; that Service consumed at least one drink at the Blue Moon; and that the odor of alcohol emanated from Service’s car after the accident.

Both plaintiff and defendant have cited several dramshop cases in support of their arguments; however, all of those cases except one are appeals from a directed verdict. Since the standard applicable here is the standard for determining whether summary judgment is proper, these cases are not helpful in resolving the present issue. The only case cited concerning an appeal from an order of summary judgment in a dramshop case is Reed v. Fleming (1985), 132 Ill. App. 3d 722. The court in Reed reversed an order of summary judgment granted in favor of the defendants. The issue in that case was not whether the decedent was intoxicated at the time of the accident, but, rather, whether the decedent’s intoxication proximately caused the accident. (Reed, 132 Ill. App. 3d at 730.) Since proximate cause is not the issue in the present case, Reed is not helpful.

Whether a person is intoxicated is a question of fact for the jury to decide. (Mason v. Mundelein Lanes, Inc. (1979) 72 Ill. App. 3d 990, 997.) Plaintiff argues that the facts presented are evidence that Service was intoxicated at the time of the accident, because she admittedly had a drink, she had alcohol on her breath, because the odor of alcohol coming from the car could not have come from her passenger who had nothing to drink, and that Service’s behavior was not normal for a person who was not intoxicated. The evidence showing that Daniels’ car swerved broadly could lead to the inference that if Service was not intoxicated, she would have seen the car in front of her swerve, and she too would have swerved or slowed down.

Drawing all reasonable inferences in favor of plaintiff, we conclude that where the evidence shows that the driver had consumed at least one drink, negligently caused an accident less than one hour later, and emitted the odor of alcohol immediately after the accident, a genuine issue of material fact exists as to whether the driver was intoxicated at the time of the accident. Therefore, a genuine issue of material fact exists, and the order for summary judgment was improper.

Plaintiff’s second contention is that the court abused its discretion by finding that the head manager and the head waitress were part of the corporate control group, and, therefore, any statements made by them to defendants’ attorney were protected by the attorney-client privilege. The attorney-client privilege bars discovery of statements made to one’s attorney so that a client will feel secure in making a full and frank consultation with his or her attorney. (Consolidation Coal Co. v. Bucyrus-Erie Co. (1982), 89 Ill. 2d 103, 117-18.) This absolute bar to the discovery of relevant and material evidentiary facts is incompatible with our broad discovery policies designed to uncover the truth. (Monier v. Chamberlain (1966), 35 Ill. 2d 351, 359-60.) Consequently, the burden of showing facts which give rise to the privilege rests on the proponent. (Consolidation Coal, 89 Ill. 2d at 119.) To assert the privilege, the proponent must show that the communication was made with an understanding that it would not be disclosed, that it has remained confidential, and was made to an attorney for the purpose of securing legal advice or service. 89 Ill. 2d at 119.

In the corporate setting, the only privileged communications are those made by top management whose positions permit them to make final decisions, or a member of the corporate control group. (89 Ill. 2d at 120.) Our supreme court has defined a member of the control group as:

“[A]n employee whose advisory role to top management in a particular area is such that a decision would not normally be made without his advice or opinion, and whose opinion in fact forms the basis of any final decision by those with actual authority ***. *** Thus, if an employee of the status described is consulted for the purpose of determining what legal action the corporation will pursue, his communication is protected from disclosure.” (89 Ill. 2d at 120.)

Thus, defendants would need to prove that no final decision as to this litigation would be made without first consulting the head manager and head waitress.

Defendants have presented no evidence of the conditions under which Leffler and Cornelissen made the statements. In addition, defendants have not presented any evidence that the head manager or the head waitress was normally consulted for his or her opinion as to what legal action the corporation should pursue. Defendants did nothing more than list job titles, and the record offers no evidence of what the duties of head manager or head waitress entail. Thus, defendants have failed to meet their burden of establishing the existence of a privilege as to the statements given by these two individuals.

The orders of the circuit court are reversed, and this cause is remanded for further proceedings consistent with the views expressed in this opinion.

Reversed and remanded.

McLAREN and LINDBERG, JJ., concur.