author: JUSTICE CAMPBELL

text:
    PHILIP I. MAPPA INTERESTS, LTD., Plaintiff-Appellant, v. JAMES R. KENDLE et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—88—1350
    Opinion filed March 30, 1990.

      Pitler & Mandell, of Chicago (Barry A. Pitler and Sigi M. Offenbach, of counsel), for appellant.
    Rathje, Woodward, Dyer & Burt, of WTieaton, and David J. Santori and Siemon, Larsen & Purdy, both of Chicago (Reese J. Peck and Stephen E. Smith, of counsel), for appellees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Philip I. Mappa Interests, Ltd., appeals from the dismissal of its amended complaint against defendants James R. Kendle; Lois M. Kendle; Save Trees and Residences Today, Inc. (“START”); and Susan L. Hotz, Lura Marie Kiesa, Sandra L. Wegner-Richards, Robert L. Whipple, Robert E Sullivan, Herbert Tenney, and Ronald Mitori, individually and as officers and directors of START. Mappa’s complaint alleged intentional interference with contractual relations (count I) and tortious interference with prospective economic advantage (count II). On appeal, Mappa contends that: (1) it had alleged all the necessary elements for a valid cause of action for both intentional interference with contractual relations and tortious interference with prospective economic advantage; (2) the trial court should not have considered the defense of privilege and justification on a section 2—615 motion (Ill. Rev. Stat. 1985, ch. 110, par. 2—615); (3) alternatively, if the trial court could properly consider these defenses, it erred in not obtaining necessary facts to balance the competing interests of the parties; and (4) Mappa had a reasonable expectation that the zoning was final. For the following reasons, the judgment of the trial court is affirmed.

The pleadings set forth the following facts. In fall 1984, Mappa commenced plans to build a commercial office park on a 43-acre plus parcel of real estate, zoned for residential use and located in Du Page County (the Parcel). Over a two-year period, Mappa entered into option purchase contracts with owners of 29 of the 31 single-family residences located in the Parcel and retained various professionals to effectuate the purchase of the Parcel and the construction of the office park. In addition, Mappa sought to have the Parcel annexed to the Village of Downers Grove, to have the Parcel rezoned to permit an office park, and to have a preliminary planned development plan approved.

Following numerous studies and hearings, on November 4, 1985, the Village of Downers Grove passed ordinance number 2950, which annexed the Parcel and rezoned the Parcel to “O-R Office/Research District.” In addition, the Village passed ordinance number 2951, which designated the Parcel as a business planned development. Shortly thereafter, Mappa exercised its option to purchase the 29 properties and entered into residential sales contracts with the 29 homeowners. In addition, on December 17, 1985, Mappa entered into loan agreements with American National Bank and Trust Company of Chicago (ANB&T) and Westinghouse Credit Corp. (WCC), whereby ANB&T and WCC committed to finance the purchase of the 29 properties.

On December 26, 1985, defendants James and Lois Kendle, owners of a single-family residence located on the Parcel, filed a lawsuit against the Village of Downers Grove, Mappa and the 29 homeowners. The Kendles alleged, inter alia, that: (1) Mappa, a developer, had proposed a business planned development which included plans for eight office buildings ranging from 5 to 15 stories and for an eight-story hotel; (2) the proposed development site is a heavily wooded area consisting of 31 single-family residences situated on lots ranging from one to six acres and that Mappa had executed options to purchase with the owners of 29 of the 31 individual properties; (3) the Parcel is surrounded by residential properties and had been zoned residential by Du Page County, but was annexed by the Village and the zoning changed to “Office/Research District, Planned Unit Development” on November 4, 1985; and (4) the proposed development would entirely surround their property, would require them to rely on private driveways as their means of access to and from their property, and would increase the rate of storm water runoff and divert the flow of runoff onto their property, causing a substantial loss of trees. The complaint requested: (1) a declaration that the ordinances of the Village annexing and changing the zoning of the Parcel are invalid and void, and (2) an injunction restraining the Village from enforcing the ordinances and restraining Mappa from proceeding with the development of the Parcel.

On January 24, 1986, Mappa filed a motion to set the trial date, alleging, inter alia, that the Kendles’ lawsuit had created a cloud on the title to the individual properties preventing their acquisition and forestalling construction of the proposed development. The motion requested that the court set trial for the earliest convenient date due to the substantial harm which may accrue to the individual property owners, to the Village, and to Mappa by further delay. On January 28, 1986, the court entered an order, stating that the defendants had seven days to file their answer and appearance, discovery cutoff would be March 31, 1986, and trial would commence in April or May 1986.

On April 3, 1986, Mappa filed a motion for an expedited trial alleging irreparable harm due to the continuation of the lawsuit. Following a hearing on the motion, the trial court set the trial date for June 4, 1986. Thereafter, the trial date was continued twice on the Kendles’ motions to June 30.

On June 25, 1986, the Kendles filed a motion for voluntary dismissal pursuant to section 2—1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2—1009), stating that the motion was being made prior to the beginning of trial, that no counterclaim had been filed, and that costs incurred by all defendants as shown by the official court file and clerk’s records were being tendered. Following a hearing, the trial court denied the Kendles’ motion for voluntary dismissal and dismissed the case with prejudice on the ground that the Kendles had refused to proceed to trial on the date assigned. Subsequently, the trial court denied the Kendles’ motion for reconsideration and the Kendles appealed. The reviewing court reversed the trial court’s judgment on the ground that the Kendles had met the requirements of section 2 — 1009. Therefore, the trial court was without discretion to deny their motion for voluntary dismissal.

During the trial court proceedings, the Kendles distributed a circular to the citizens of the Village seeking donations to fund the lawsuit. In addition, while the appeal was pending, the Kendles allegedly distributed a newsletter which stated that they were winning the lawsuit when, in fact, the lawsuit had been dismissed with prejudice and the appeal was pending.

As a result of the delay precipitated by the Kendles’ lawsuit, Map-pa’s contracts with the 29 homeowners and Mappa’s commitments from AMB&T and WCC expired. Mappa then had to renegotiate the contracts with the homeowners at higher purchase prices. As a result of these losses, Mappa filed the underlying lawsuit against the Kendles, START and the officers and directors of START from which the present appeal is taken.

Mappa’s original complaint, filed November 10, 1986, alleged abuse of process (count I), tortious interference with contracts (count II) and tortious interference with a business expectancy (count III). The trial court granted defendants’ motion to dismiss count I with prejudice for failure to state a cause of action and struck counts I and II, granting Mappa leave to file amended counts II and III. On January 13, 1988, Mappa filed its amended complaint alleging intentional interference with contractual relations (count I) and tortious interference with prospective economic advantage (count II). Defendants again moved to dismiss the complaint pursuant to section 2 — 615, alleging that Mappa had failed to state a cause of action.

Following a hearing, the trial court dismissed Mappa’s complaint on the ground that because the complaint raised the issue of justification on behalf of the defendants, Mappa was required to allege actual malice, which it failed to do. Mappa’s timely appeal followed.

Where the issue before the reviewing court is whether the trial court properly dismissed a complaint, all well-pleaded facts and all reasonable inferences that could be drawn from those facts are construed as true and correct (Krasinski v. United Parcel Service, Inc. (1988), 124 Ill. 2d 483, 530 N.E.2d 468), and if they demonstrate any possibility of recovery under the theories alleged, the order dismissing the complaint will be reversed. (Venturini v. Affatato (1980), 84 Ill. App. 3d 547, 405 N.E.2d 1093.) Although pleadings are to be construed liberally, plaintiff remains obligated to plead facts necessary for recovery. Liberal construction cannot cure a complaint which lacks sufficient factual averments. A complaint fails to state a cause of action if it does not contain factual allegations in support of every element of the particular cause of action. Madonna v. Giacobbe (1989), 190 Ill. App. 3d 859, 546 N.E.2d 1145.

The torts of interference with contractual relations and interference with prospective economic advantage are closely related. (Kurtz v. Illinois National Bank (1989), 179 Ill. App. 3d 719, 534 N.E.2d 1007.) Both torts recognize that a person’s business relationships constitute a property interest and are entitled to protection from unjustified tampering by another. (Kurtz v. Illinois National Bank (1989), 179 Ill. App. 3d 719, 534 N.E.2d 1007.) The elements of tortious interference with contractual relations are: (1) the existence of a valid and enforceable contract between plaintiff and another; (2) the defendant’s awareness of this contractual relation; (3) the defendant’s intentional and unjustified inducement of a breach of the contract; (4) a subsequent breach by the other caused by the defendant’s wrongful conduct; and (5) damages. (HPI Health Care Services, Inc. v. Mt. Vernon Hospital, Inc. (1989), 131 Ill. 2d 145, 545 N.E.2d 672.) The elements of tortious interference with prospective economic advantage are: (1) plaintiff’s reasonable expectation of entering a valid relationship; (2) defendant’s purposeful interference and defeat of plaintiff’s legitimate expectancy; and (3) damages. (Kurtz v. Illinois National Bank (1989), 179 Ill. App. 3d 719, 534 N.E.2d 1007.) If the pleadings allege that defendant acted under a qualified privilege or that defendant’s acts were justified, plaintiff must allege that defendant had acted with actual malice. (Genelco, Inc. v. Bowers (1989), 181 Ill. App. 3d 1, 536 N.E.2d 783.) The term “actual malice” is defined as a positive desire and intention to annoy or to injure another. However, more than ill will must be shown. The evidence must establish that defendant had acted with a desire to harm which was unrelated to the interest he was presumably seeking to protect by bringing about the breach. (Certified Mechanical Contractors, Inc. v. Wight & Co. (1987), 162 Ill. App. 3d 391, 515 N.E.2d 1047.) Bare allegations of. actual malice, unsupported by facts, are not sufficient to negate the protections of privilege or unjustified conduct. Genelco, Inc. v. Bowers (1989), 181 Ill. App. 3d 1, 536 N.E.2d 783.

In the present case, the trial court found that paragraph 10 of Mappa’s amended complaint affirmatively raised the issue of whether defendants’ conduct was justified. Paragraph 10 states:

“10. There is a prior existing relationship between the Plaintiff and the Defendants in that since 1984 the Plaintiff sought to develop the Parcel into an office park development and that since that time, the Defendants have actively sought to maintain the Parcel and preserve its characteristics as a residential area.”

Because justification had been raised in the pleadings, the trial court held that it was incumbent upon Mappa to allege actual malice on the part of defendants, which Mappa had failed to do. As a result, the trial court dismissed Mappa’s complaint for failure to state a cause of action.

On appeal, Mappa argues that the trial court erroneously found that it had alleged justification in its complaint because justification is an affirmative defense which must be raised by defendant. Contrary to Mappa’s contention, justification can be raised by either plaintiff or by defendant. (See HPI Health Care Services, Inc. v. Mt. Vernon Hospital, Inc. (1989), 131 Ill. 2d 145, 545 N.E.2d 672.) Courts recognize justified conduct when the defendant was acting to protect an interest which the law considers to be of equal or greater value than plaintiff’s interest. (HPI Health Care Services, Inc. v. Mt. Vernon Hospital, Inc. (1989), 131 Ill. 2d 145, 545 N.E.2d 672.) It is well established that actions to protect rights under a contract and actions necessary to protect rights in real estate are equally necessary and equally substantial. (Insurance Company of North America v. J.L. Hubbard Co. (1974), 23 Ill. App. 3d 254, 318 N.E.2d 289.) In the present case, paragraph 10 of Mappa’s amended complaint specifically alleges that defendants’ actions were taken to protect the residential character of their property. Thus, justification appears on the face of the complaint and was properly considered on the motion to dismiss. Zamouski v. Gerrard (1971), 1 Ill. App. 3d 890, 275 N.E.2d 429.

Mappa further argues that the trial court’s determination that he had alleged justification was “premature” because defendants’ “acts included illegal acts and were beyond the scope of reasonableness.” The facts do not support this argument. First, the original lawsuit filed by the Kendles cannot be construed as an illegal act. (See Lyddon v. Shaw (1978), 56 Ill. App. 3d 815, 372 N.E.2d 685.) Efforts to seek redress through the judicial process are protected by the first amendment right to petition the government for redress of grievanees. (California Motor Transport Co. v. Trucking Unlimited (1972), 404 U.S. 508, 30 L. Ed. 2d 642, 92 S. Ct. 609; King v. Levin (1989), 184 Ill. App. 3d 557, 540 N.E.2d 492.) Further, aside from allegations that the Kendles had distributed a circular and a newsletter soliciting financial support for their legal action against Mappa, Mappa’s complaint contains merely speculative allegations of misconduct based upon information and belief which are insufficient to withstand a motion to dismiss. (Venturini v. Affatato (1980), 84 Ill. App. 3d 547, 405 N.E.2d 1093.) As to the circular and newsletter, the Kendles’ statement in the newsletter that they were winning the case when, in fact, the case was pending on appeal may have been an exaggeration, but it does not rise to the level of an illegal act. Accordingly, we find no factual support in the record for Mappa’s contention that the trial court had acted prematurely in finding that justification had been alleged.

As previously stated, a plaintiff can state a cause of action for tortious interference with contractual relations or tortious interference with prospective economic advantage against a party whose conduct is justified as the result of a qualified privilege if the plaintiff can set forth factual allegations from which actual malice can be inferred. (King v. Levin (1989), 184 Ill. App. 3d 557, 540 N.E.2d 492; Certified Mechanical Contractors, Inc. v. Wight & Co. (1987), 162 Ill. App. 3d 391, 515 N.E.2d 1047.) However, to raise this inference, plaintiff must allege that the defendant had acted with an intent unrelated to the defense of the property interest that he was trying to protect. (Arlington Heights National Bank v. Arlington Heights Federal Savings & Loan Association (1967), 37 Ill. 2d 546, 229 N.E.2d 514.) In the present case, Mappa has failed to satisfy this pleading requirement. The facts indicate that every action taken by defendants was directly related to their efforts to protect their real estate property interests. Therefore, we conclude that the trial court properly dismissed Mappa’s amended complaint for failure to state a cause of action predicated on Mappa’s failure to sufficiently allege that defendants had acted with actual malice. This decision obviates the need to discuss the remaining issues.

For the aforementioned reasons, the judgment of the trial court is affirmed.

Affirmed.

BUCKLEY, P.J., and O’CONNOR, J.,'concur.


source: Caselaw Access Project

author: JUSTICE MANNING

license: Public Domain

text:
    MICHAEL S. WILSON, Plaintiff-Appellee, v. THE DEPARTMENT OF EMPLOYMENT SECURITY et al., Defendants-Appellants (John Fluke Manufacturing Company, Defendant).
    First District (1st Division)
    No. 1—89—0536
    Opinion filed March 30, 1990.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Rosalyn B. Kaplan, Assistant Attorney General, of Chicago, of counsel), for appellants.
    Michael S. Wilson, of Des Plaines, appellee pro se.

   JUSTICE MANNING

delivered the opinion of the court:

Defendant, the Illinois Department of Employment Security, appeals from the judgment of the circuit court of Cook County which reversed its decision and found plaintiff, Michael Wilson, eligible for unemployment insurance benefits. Defendant contends that plaintiff was terminated for misconduct connected with his employment and is therefore ineligible for benefits.

Plaintiff was employed as a technician at the John Fluke Manufacturing Company (Fluke) from June 27, 1983, until his resignation on May 18, 1988. After resigning, he applied for unemployment insurance benefits stating that he had resigned to avoid being fired. Fluke contested plaintiff's eligibility. After interviewing plaintiff and the personnel manager of Fluke, a claims adjudicator determined that plaintiff had actually been terminated for poor performance instead of voluntarily leaving and was therefore eligible for benefits. Fluke sought a reconsideration, submitting a letter stating that plaintiff would have been fired if he had not resigned because he had been absent 386.25 hours in the past year and only 176 hours were taken as medical leave. Further, his work efficiency average for the last six months had dropped to 36% of what was expected. The claims adjudicator upon reconsideration did not change his prior decision and found that plaintiff had been discharged for poor work performance and absenteeism, but the situation was beyond plaintiff’s ability or control.

On July 6, 1988, at a hearing before a referee, Fluke’s personnel director testified that plaintiff had been absent from work on May 12, 13, 16, 17 and 18 of that year. Plaintiff had telephoned Fluke May 12 to request time off for both that day and the following day. Duane Smith, Fluke’s service manager, testified that plaintiff did not call in on May 16, 17 or 18, but on May 18 he had telephoned plaintiff to find out where he was. Smith advised plaintiff he was going to be terminated, and plaintiff requested to resign instead. Plaintiff testified that he did not telephone his employer because he was too sick. However, he later testified that he had telephoned his doctor within the same three-day period.

The record indicates that Fluke’s policy regarding days off requires an employee to notify the company of the intended absence by 9 a.m. that day. If the employee does not comply with the policy for three consecutive working days, he may be automatically terminated. The record also indicates that on May 9, 1988, plaintiff received a letter from Fluke warning him that his performance during the month of April was substandard and that his performance would have to improve or he might be terminated.

The referee ruled that the claimant’s final absence was without notification to the employer and circumstances beyond his control did not exist to warrant such conduct. Accordingly, he ruled that plaintiff was discharged because of misconduct connected with his employment and was ineligible for unemployment insurance benefits.

The Board of Review (Board) affirmed the decision of the referee, although plaintiff had submitted a copy of an itemized telephone bill indicating that one-minute calls had been made to the employer in the afternoon of May 16 and May 17. The Board stated that plaintiff did not testify at the hearing that he telephoned the employer to notify him of his absence and that the evidence given at the hearing prevails.

On administrative review the circuit court of Cook County reversed the Board’s decision as being contrary to the manifest weight of the evidence.

Defendant contends that plaintiff’s unauthorized absences from work constituted misconduct connected with his work and plaintiff is therefore ineligible to receive unemployment insurance benefits.

In Illinois, the findings and conclusions of an administrative agency on questions of fact are to be held as prima facie true and correct (Ill. Rev. Stat. 1987, ch. 110, par. 3—110), and should not be disturbed on review unless they are contrary to the manifest weight of the evidence. (Popoff v. Department of Labor (1986), 144 Ill. App. 3d 575, 576-77, 494 N.E.2d 1266.) A reviewing court will not substitute its judgment for that of the administrative agency, and where it appears that there is evidence to support the administrative findings, the findings should be affirmed. Komarec v. Illinois Department of Labor (1986), 144 Ill. App. 3d 1105,1108, 494 N.E.2d 1257.

Section 602A of the Unemployment Insurance Act states in part:

“For purposes of this subsection, the term ‘misconduct’ means the deliberate and willful violation of a reasonable rule or policy of the employing unit, governing the individual’s behavior in performance of his work, provided such violation has harmed the employing unit or other employees or has been repeated by the individual despite a warning or other explicit instructions from the employing unit.” Ill. Rev. Stat. 1987, ch. 48, par. 432A.

Here the record indicates that in his final five-day absence plaintiff did not telephone Fluke to report his absence for the last three days. Although plaintiff stated that he had been too sick to telephone, he also testified that he had telephoned his doctor on those same days. We find that plaintiff’s failure to telephone his employer to report his absence falls within the definition of the term “misconduct” as found in section 602A of the Unemployment Insurance Act. Ill. Rev. Stat. 1987, ch. 48, par. 432A; see also Bochenek v. Department of Employment Security (1988), 169 Ill. App. 3d 507, 525 N.E.2d 893.

We therefore find that the administrative decision of the Board of Review was not against the manifest weight of the evidence. Accordingly, the judgment of the circuit court of Cook County is reversed.

Reversed.

CAMPBELL and O’CONNOR, JJ., concur.


author: JUSTICE BILANDIC

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MIGUEL CRUZ, Defendant-Appellant.
    First District (2nd Division)
    No. 1—88—0002
    Opinion filed March 30, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Thomas N. Switel, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, William D. Carroll, and John M. Donnelly, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE BILANDIC

delivered the opinion of the court:

After a bench trial, defendant Miguel Cruz was convicted of delivery of a controlled substance and was subsequently sentenced to a 12-year term of imprisonment. On appeal he contends that he was not proved guilty beyond a reasonable doubt and that the trial court improperly admitted hearsay evidence.

At trial Chicago police detective Michael Bobko testified that on January 27, 1987, he was working in the narcotics section. During the afternoon he had three or four telephone conversations with Judy Torres and made arrangements to purchase two ounces of cocaine.

Around 7 p.m., Bobko drove his unmarked police car to 4877 N. Kenmore, Chicago. He honked his horn twice, and two females entered his car. A confidential informant sat in the rear seat, and Torres sat in the front passenger seat.

The assistant State’s Attorney asked Bobko to testify about the conversation he had with Torres while they were in his car. Defendant entered a continuing objection that the testimony should be excluded because it is hearsay, violated defendant’s confrontation right and the State had not shown by independent evidence that a conspiracy existed between defendant and Judy Torres. The trial court reserved ruling on defendant’s objection.

Torres told Bobko that they were going to meet Mikey. Bobko had never heard of this supplier before. Torres explained that her usual supplier was not available, but this person had instructed her to contact Mikey. She told him that the cocaine cost $1,500 an ounce, Mikey was from the same family and had the same cocaine as her usual supplier, he would be happy with the cocaine and that she had transacted business with Mikey several times in the past. As they drove north on Clark Street, Torres told Bobko to pull into the parking lot of a Zayre Department Store. Torres said that she had to call Mikey to arrange the delivery. She got out of the car and walked to the foyer of the store. She was out of Bobko’s sight for about 15 minutes.

When Torres returned to the car, she said that she had to make some telephone calls from a gas station mini-mart down the block. As Bobko pulled into the gas station, he noticed a large blue Oldsmobile, with black-tinted windows and a louvered rear windshield cover, parked near the pay phone. Torres said that the car belonged to Mikey, but Bobko should not go near it. Bobko parked on the opposite side of the gas station.

Torres got out of the car and told Bobko to wait while she went to talk to Mikey. She went over and leaned into the passenger window of the blue Oldsmobile for about V-k minutes. As she was walking back to Bobko’s car, the blue Oldsmobile pulled alongside Bobko’s car and stopped. The passenger window was down and Bobko saw a person, identified as defendant, looking at him and the confidential informant for about 15 to 20 seconds. Defendant looked straight at Bobko from a distance of about five feet. The Oldsmobile then pulled out of the gas station.

Torres entered the car and said that Mikey was in the Oldsmobile. Mikey told her that he was checking out Bobko; the package had already been weighed; he lived about one block away; and his wife was waiting with the package so he could make the deal. Bobko, Torres and the informant waited in the parking lot of the gas station.

Ten to fifteen minutes later, Bobko saw defendant enter the gas station parking lot, on foot, from the alley behind the gas station. Bobko asked Torres if that was Mikey. She said that it was and told him to wait in the car. Defendant and Torres walked into the mini-mart and walked out of Bobko’s view.

One or two minutes later, Torres left the mini-mart and quickly walked to Bobko’s car. Defendant was inside the mini-mart standing by the glass doors and facing Bobko.

Torres got into the car and handed Bobko a clear plastic bag con-taming a white powder. He opened the bag and noticed a strong cocaine smell. He counted and gave Torres $1,500. She said that she would be right back with the second bag and left the car. She reentered the mini-mart and walked out of his view. Bobko also noticed that Chicago police officer Alfred Pappalito, one of the members of his undercover surveillance team, was in the mini-mart. About one minute later Torres reappeared at the door of the mini-mart, walked directly to Bobko’s car and entered it. She handed him a second clear plastic bag containing a white powder and said “[h]ere is number two.” Bobko counted and then handed her another $1,500. She said that she would be right back, walked into the mini-mart and out of his view. Officer Pappalito was leaving the store as Torres was reentering it. Defendant was still inside the mini-mart.

Bobko gave cab fare to the confidential informant and instructed her to tell Torres that he was in a hurry and they should take a cab back to the Kenmore address. She left the car. Bobko then drove around past the door of the mini-mart, looked into the window and saw defendant and Torres talking face to face. Bobko honked his horn and waved.

On cross-examination, Bobko testified that neither he, nor any officer, strip searched Torres before she entered the mini-mart to ascertain whether she was concealing the cocaine. Torres told him that she did not have any cocaine on her before the transaction. In fact, she told Bobko that she expected him to give her some cocaine once the transaction was completed. On redirect, Bobko testified that when Torres left the vehicle the first time, he radioed the Illinois license plate number of the Oldsmobile and used that as a tentative identifier of defendant.

The trial court then ruled that Torres’ statements were admissible under the coconspirator exception to the rule against hearsay.

Chicago police detective Alfred Pappalito’s testimony generally corroborated Bobko’s. When Torres left the mini-mart for the first time, Pappalito went inside the mini-mart. Defendant was already inside the mini-mart. Defendant was holding something in a closed fist by the side of his body. Torres reentered the mini-mart, gave defendant some money and he handed her a plastic bag containing a white substance. Torres then left the mini-mart and went back to Bobko’s car. Pappalito then left the mini-mart because he felt that he had been there too long.

On cross-examination, Pappalito testified that he could not identify which of the two clear plastic bags was the one he saw in defendant’s hands. He did not strip search Torres before she entered the mini-mart.

The parties stipulated the two clear plastic bags Bobko recovered and inventoried on January 27, 1987, contain 28.39 and 28.91 grams of cocaine, respectively.

The State rested. Defendant’s motion for a directed verdict was denied. The defense then rested.

Defendant was found guilty of delivering more than 30 grams of cocaine. After a hearing on defendant’s post-trial motion, the court overruled his objection to the use of Torres’ out-of-court statements and modified its original verdict finding defendant guilty of delivery of between 10 and 30 grams of cocaine. (Ill. Rev. Stat. 1985, ch. 561/2 par. 1401(b)(2).) After hearing evidence in aggravation and mitigation, defendant was sentenced to a 12-year-term of imprisonment. Defendant appeals.

I

Defendant contends that without the erroneous admission of the alleged hearsay testimony of Torres, the State failed to prove defendant guilty beyond a reasonable doubt. We disagree.

A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, cert. denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267.) When presented with a challenge to the sufficiency of the evidence, it is not the function of this court to retry the defendant. (106 Ill. 2d 237, 478 N.E.2d 267.) Rather, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 453.

Defendant cites several cases to support his proposition that the State did not establish that defendant delivered a controlled substance to Bobko. (See People v. Davis (1958), 13 Ill. 2d 211, 148 N.E.2d 771; People v. Sullivan (1962), 23 Ill. 2d 582, 179 N.E.2d 634; People v. Bueno (1966), 35 Ill. 2d 545, 221 N.E.2d 270.) Those cases are inapposite, since in those cases there was no independent eyewitness evidence to establish that the defendant was at the scene of the drug transaction or that he shared the common illegal purpose of the codefendant. In the case at bar, the defendant was at the scene and performed affirmative acts to accomplish the illegal delivery. Bobko testified that defendant checked him out before going on with the deal. This implicated defendant in the drug transaction. Pappalito saw defendant hand a clear plastic bag containing cocaine to Torres, who then gave the bag to Bobko.

Although defendant concedes that Torres delivered two bags of cocaine to detective Bobko on the night of January 27, 1987, he contends that the record does not show beyond a reasonable doubt that the defendant supplied Torres with the cocaine in question. Specifically, defendant asserts that because the police did not search Torres prior to her delivery of the cocaine and Detective Pappalito could not identify which particular bag of cocaine he saw defendant hand Torres in the mini-mart, the trial court failed to exclude every reasonable hypothesis of defendant’s innocence.

This argument is without merit because it ignores the proper standard of review. In People v. Pintos (1989), 133 Ill. 2d 286, 549 N.E.2d 344, our supreme court held that the standard of review of sufficiency of the evidence on appeal is “beyond a reasonable doubt” and not whether every “reasonable hypothesis of innocence” has been excluded. (133 Ill. 2d at 290-91.) Defendant was clearly guilty beyond a reasonable doubt of the crime of delivery of a controlled substance. Torres identified defendant as her supplier. The police saw defendant exchanging cocaine for money with Torres. Furthermore, defendant was at the scene of both drug transactions, had watched Torres deliver cocaine to Bobko and thus knew that Bobko was the ultimate purchaser of his cocaine. Moreover, Pappalito testified that he identified one of the bags that Bobko purchased from Torres as the one he saw defendant hand to Torres.

Defendant’s argument also fails to consider what would have happened to the police undercover operation if the police had searched Torres before she delivered the cocaine. If the police had searched Torres prior to her meeting with defendant, the entire undercover operation would have been ruined. Torres would have undoubtedly suspected that Bobko was a police officer and never arranged the drug purchase.

Therefore, when viewing the evidence in the light most favorable to the prosecution, it can be said that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Young, 128 Ill. 2d 1.) Bobko’s and Pappalito’s testimony, exclusive of the alleged hearsay conversation with Torres, sufficiently established defendant’s guilt. Therefore, defendant’s conviction for delivery of a controlled substance is affirmed.

Since defendant’s guilt was established without reference to Torres’ statements, it is not necessary for us to consider the assignment of error regarding the alleged hearsay.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

HARTMAN and SCARIANO, JJ., concur.


author: JUSTICE HARTMAN

text:
    DUDEK, INC., Plaintiff and Counterdefendant-Appellee, v. SHRED PAX CORPORATION, Defendant and Counterplaintiff-Appellant.
    First District (2nd Division)
    No. 1—88—3728
    Opinion filed March 30, 1990.

      Wildman, Harrold, Allen & Dixon, of Chicago (Michael Dockterman and Michael Bolton, of counsel), for appellant.
    Bell, Boyd & Lloyd, of Chicago (Edwin Thomas, Fredrick Bates, and Cathy Furda, of counsel), for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

From the circuit court’s granting of plaintiff/counterdefendant’s (plaintiff’s) section 2—1401 (Ill. Rev. Stat. 1985, ch. 110, par. 2—1401) (section 2—1401) petition to vacate an order of dismissal for want of prosecution, defendant/counterplaintiff (defendant) appeals, claiming abuse of discretion in the vacatur.

In August of 1985, plaintiff filed a complaint alleging a breach of warranty against defendant, involving an industrial metal-shredding machine plaintiff purchased from defendant. When the complaint was filed, plaintiff was represented by the law firm Goldstein, Simon, Briskman, Briskman, Trinley & Lamb (Goldstein-Simon). Specifically, attorney Thomas Trinley was assigned to the case. Defendant’s subsequent motion to strike and dismiss the complaint was granted, but plaintiff was given leave to and did file an amended complaint. After its motion to dismiss the first amended complaint was denied, defendant filed its answer and additionally brought a counterclaim against plaintiff for breach of contract, seeking the unpaid balance owed on the shredding machine.

Trinley left the Goldstein-Simon firm in early February, 1987. Patrick Lamb, another member of Goldstein-Simon, averred by affidavit that after Trinley’s departure, plaintiff’s file “was not formally reassigned to any other member” of the firm. On March 25, 1987, the case appeared on the court-generated calendar call; notice had been published in the Chicago Daily Law Bulletin one day earlier. Neither party appeared in court on that date. Both complaint and counterclaim were dismissed for want of prosecution. On April 23, 1987, with notice to plaintiff, defendant moved to vacate the dismissal of its counterclaim only, which the circuit court granted on May 15, 1987. Neither plaintiff nor its counsel appeared at that proceeding.

Goldstein-Simon then dissolved on October 1, 1987. Lamb and another partner from that firm formed Goldstein & Lamb, which continued to represent plaintiff in the instant case. Lamb swore that he was unaware of the March 25, 1987, dismissal of plaintiff’s cause for want of prosecution at the time that order was entered.

At another calendar call, scheduled for March 29, 1988, and published in the Chicago Daily Law Bulletin on the previous day, plaintiff again failed to appear. Defendant informed the court of the status of the case as well as of the dismissal of plaintiff’s action for want of prosecution a year earlier. Defendant then moved for default judgment on its counterclaim, asserting plaintiff had not filed any responsive pleadings thereto. The record indicates plaintiff had been served with notice of defendant’s motion for default judgment.

On April 12, 1988, at the hearing on defendant’s motion for default judgment on its counterclaim, Lamb appeared on behalf of plaintiff. According to Lamb’s affidavit, he first discovered at this proceeding that plaintiff’s action had been dismissed for want of prosecution. In response to defendant’s counterclaim, plaintiff was allowed to file an answer, affirmative defenses, and set-offs. It enumerated six “affirmative defense and/or setoff” claims which essentially alleged the same facts as previously raised in its first amended complaint.

Around August 2, 1988, Edwin C. Thomas of Bell, Boyd & Lloyd agreed to represent plaintiff, and on September 12, 1988, the court granted plaintiff’s motion for substitution of attorneys. Also on September 12, Thomas filed a section 2 — 1401 petition to vacate the court’s March 25, 1987, dismissal of plaintiff’s claim for want of prosecution. The petition was supported by the affidavits of attorneys Lamb and Thomas, which chronicled the legal representation of plaintiff to that point. In response, defendant moved to dismiss plaintiff’s petition.

At a hearing held November 22, 1988, on the section 2 — 1401 petition and related motion to dismiss, the circuit court repeatedly questioned plaintiff’s counsel for facts demonstrating “excusable neglect” to support a finding of due diligence, but did not deem satisfactory any of the reasons provided. The court nevertheless invoked its equitable powers and granted plaintiff’s petition, based on the existence and viability of defendant’s counterclaim, reasoning:

“[T]he fundamental issue here is the fact there is ongoing litigation. I look at what they have done. They have dropped the ball, so to speak. But the point is in a case that’s an ongoing piece of litigation in terms of fundamental fairness, they are picking up the ball in a case that already has a ball in it. It’s just a question of whether you call it an affirmative defense or ’ a complaint.
* * *
Based upon the pleadings and the peculiar circumstances of this particular case, the Court pursuant to the motion to vacate the dismissal for want of prosecution under [section] 2 — 1401 grants the motion to vacate.”

From that ruling, defendant appeals.

Defendant’s sole contention on appeal is that the circuit court abused its discretion in granting plaintiff’s section 2 — 1401 petition to vacate the dismissal of the first amended complaint for want of prosecution.

To warrant relief under section 2 — 1401, the petitioner must “affirmatively set forth specific factual allegations” demonstrating the existence of the following elements: (1) a meritorious defense or claim; (2) due diligence in presenting this defense or claim in the original action; and (3) due diligence in filing the petition for relief. (Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 220-21, 499 N.E.2d 1381 (Airoom).) To be entitled to relief, the petitioner must show that, through no fault or negligence of its own, an error of fact or a valid claim was not raised in the circuit court at the time the order or judgment was entered. (Kaput v. Hoey (1988), 124 Ill. 2d 370, 378, 530 N.E.2d 230.) Further, the question of whether a section 2 — 1401 petition should be granted lies within the sound discretion of the circuit court, which can be disturbed on review only upon a showing of abuse thereof. Airoom, 114 Ill. 2d at 221.

To establish due diligence, a petitioner must have a reasonable excuse for its failure to act within an appropriate time. (Airoom, 114 Ill. 2d at 222; First National Bank v. Mattoon Federal Savings & Loan Association (1988), 175 Ill. App. 3d 956, 960, 530 N.E.2d 666.) Here, plaintiff’s allegations of due diligence, contained in its section 2 — 1401 petition and supporting affidavits, state it originally was represented by Trinley of Goldstein-Simon; Trinley later “left the employ” of that firm; Goldstein-Simon failed to reassign the case to another member of the firm; shortly after Trinley’s departure, the dismissal order was entered against plaintiff; and the firm dissolved without knowledge of the dismissal against plaintiff. According to Lamb’s affidavit, the dismissal was entered against plaintiff due to inadvertence and not his negligence or that of Goldstein-Simon.

The foregoing presents neither a reasonable excuse for plaintiff’s failure to act within an appropriate time, nor evidence of due diligence. Goldstein-Simon never assigned plaintiff’s case to another attorney when Trinley left the firm, which then dissolved, apparently without any further consideration of the matter. Nor did plaintiff’s new counsel after the dissolution actively pursue the matter. Lamb’s affidavit states that the firm of Goldstein & Lamb, which assumed the representation of plaintiff after the dissolution, did not learn of the dismissal until April 1988, more than one year after its entry. Despite Lamb’s undisputed knowledge of the dismissal by April 12, 1988, the section 2 — 1401 petition was not filed until September 12, 1988, five months later, when plaintiff was represented by Bell, Boyd & Lloyd. Due diligence is absent in both presenting plaintiff’s claim in the original action and in filing the section 2 — 1401 petition. Responsibility of plaintiff’s attorneys for the dismissal does not alter this conclusion; plaintiff should have followed the progress of its case. Section 2 — 1401 will not operate to relieve plaintiff of the consequences of its counsel’s negligence. See Kaput v. Hoey, 124 Ill. 2d at 383; Dassion v. Homan (1987), 161 Ill. App. 3d 141,145, 514 N.E.2d 41.

• 4 Even if it was not diligent, plaintiff claims entitlement to equitable relief, because section 2 — 1401 engenders equitable powers of the circuit court, which ought to prevent enforcement of default judgments when unfair, unjust, or unconscionable. (Airoom, 114 Ill. 2d at 225.) Where required by justice and good conscience, a default judgment may be vacated under section 2 — 1401 although the due diligence requirement has not been satisfied. Airoom, 114 Ill. 2d at 225; First National Bank of Mattoon, 175 Ill. App. 3d at 961.

Acknowledging former counsel’s errors, plaintiff nevertheless contends that granting its petition would achieve a just result. As in Airoom, there is no suggestion in the instant case of deception, fraud or unconscionable behavior by defendant entitling plaintiff to equitable relief (Airoom, 114 Ill. 2d at 228-29); rather, plaintiff’s position is the result of its own inexcusable mistake. (Falcon Manufacturing Co. v. Nationwide Brokers, Inc. (1984), 123 Ill. App. 3d 496, 500, 462 N.E.2d 562.) None of the recognized equitable principles are implicated in the case at bar.

Plaintiff’s inability to demonstrate due diligence or entitlement to equitable relief required denial of its section 2 — 1401 petition to vacate the dismissal. (See Falcon Manufacturing Co., 123 Ill. App. 3d 496.) The circuit court mentioned what it thought to be a seemingly minor consequence of denying the petition under the circumstances — plaintiff instead would be a counterdefendant with “affirmative defenses” rather than a “complaint” — and made its ruling on that basis alone. The equitable powers of the circuit court are not unlimited; the scope of section 2 — 1401 relief must not be overbroadened to such an extent as to dilute the principles of equity and an ordered concept of justice. Airoom, 114 Ill. 2d at 227; First National Bank, 175 Ill. App. 3d at 962.

Plaintiff’s final contention is that a section 2 — 1401 petition to vacate a judgment should be allowed when it is not unreasonable to compel the litigants to go to trial on the merits. (Uptown Federal Savings & Loan Association v. Kotsiopoulos (1982), 105 Ill. App. 3d 444, 434 N.E.2d 476.) It suggests that a “just result” is achieved by allowing “the possibility of affirmative recovery for the prevailing party,” whether plaintiff or defendant, since the issues will have to be litigated anyway. Its argument, however, that fundamental fairness demands the petition for relief be allowed “yields more easily to the proposition that courts cannot be indifferent to litigants’ disregard for procedural rules.” (See Chovan v. Floor Covering Associates, Inc. (1987), 159 Ill. App. 3d 447, 450, 512 N.E.2d 801.) Here, plaintiff’s problems resulted from its inexcusable failure to exercise due diligence in presenting its original claim and in filing its section 2 — 1401 petition; whether the ultimate effect on future proceedings will be great or small, plaintiff is not entitled to relief under section 2-1401.

Plaintiff claims “it would not be fair to *** [plaintiff] to have to defend *** [defendant’s] counterclaim without the possibility of affirmative relief and it would not be unfair to *** [defendant] to have to defend *** [plaintiff’s] claims at the risk of a money judgment in favor of *** [plaintiff because] *** a full-blown trial on the merits is going to take place *** [by virtue of plaintiff’s] affirmative defenses and its claim for set-offs.” If plaintiff is correct, its claim for setoffs may exceed the amount sought by the counterclaim, which, if proven, would provide for all the affirmative relief it may be entitled to receive. See Ill. Rev. Stat. 1987, ch. 110, par. 2—608; Ill. Ann. Stat., ch. 110, par. 2—608, Historical and Practice Notes, at 181-84 (Smith-Hurd 1983).

For the foregoing reasons, we find an abuse of discretion in the circuit court’s vacatur of the dismissal herein and we reverse and remand for proceedings in consonance with the views expressed in this opinion.

Reversed and remanded.

DiVITO, P.J., and SCARIANO, J., concur.

      Defendant’s counterclaim against plaintiff requests $73,280 plus interest; plaintiff’s “setoff” against defendant asks for $270,450.


text:
    MICHAEL SCHAFFER, Plaintiff-Appellant, v. PAM ZEKMAN et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—89—0238
    Opinion filed March 30, 1990.

      Rooks, Pitts & Poust, and Robert Maloney, both of Chicago (Lee Hettinger, of counsel), for appellant.
    Jenner & Block, of Chicago (Linda Lindstrom and Susan Theiss, of counsel), for appellees.
   JUSTICE HARTMAN

delivered the opinion of the court:

Dr. Michael Schaffer (Schaffer), plaintiff, brought an action against defendants Pam Zekman (Zekman), Gary Cummings (Cummings), and CBS, Inc. (CBS) (sometimes jointly, defendants), alleging defamation and false-light invasion of privacy. Defendants’ motion to dismiss Schaffer’s second amended complaint (complaint), pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—615) (section 2—615), was granted with prejudice by the circuit court, from which Schaffer appeals.

Schaffer is chief toxicologist employed by the Cook County medical examiner. Defendant Zekman is an investigative reporter for WBBMTV, a television station owned and operated by defendant CBS. Defendant Cummings, formerly the vice-president and general manager of WBBM-TV, died on October 31,1987.

Schaffer’s actions for defamation (libel) and invasion of privacy (false-light) stem from a WBBM-TV broadcast aired February 28, 1985, wherein Cummings, in an editorial entitled “Clean Up the Medical Examiner’s Office,” referred to a series of reports previously broadcast by Zekman that described “how evidence was mishandled by the Medical Examiner’s Office.” Nine months earlier, in May of 1984, in the second of a four-part series, Zekman had disclosed that toxicologists, unnamed, in the medical examiner’s office “made two mistakes” while handling evidence in the infamous Tylenol-cyanide murder cases: in testing for the presence of cyanide in the Tylenol capsules recovered after the deaths, they failed to retain a portion of the specimen in its original form in the event retesting became necessary, and they used contaminated water in analyzing the samples. Zekman then stated:

“The Medical Examiner’s Chief Toxicologist Michael Schaefer [sic] would not agree to an on-camera interview. But he defended his lab’s actions during the Tylenol crisis. He said that at the time, he was not aware of the FDA’s ability to analyze the samples. And he said he thought there was enough residue in the empty capsules for the FDA to use. Schaefer [sic] said the water used in his tests was as chemically pure as needed. And he accused law enforcement agencies of using the Medical Examiner's Office as a scapegoat.”

Accompanying Schaffer’s above-quoted comments, CBS displayed in the video portion a close-up image of Schaffer to the viewing audience. Also during the report, a former assistant Attorney General characterized the handling of the evidence as “unprofessional” and “slipshod,” and suggested it “hopelessly crippled part of” any subsequent prosecution.

In the 1985 editorial, Cummings expressed concern that the Cook County Board of Commissioners was not taking steps to correct the “scandal” in the medical examiner’s office, “apparently” in the hope that “everybody will forget” the problem. Cummings concluded the editorial by calling upon the Board of Commissioners to fire Dr. Robert Stein, the chief medical examiner. In the course of the entire broadcast, Cummings never mentioned Schaffer by name, nor identified him or the position of “toxicologist”; neither did he explicitly refer to the Tylenol murder investigation.

Schaffer brought an action against defendants, alleging defamation (count I) and invasion of privacy (count II). According to count I, on February 28, 1985, CBS broadcast Cummings’ editorial, in which he remarked, “It was nine months ago *** that Pam Zekman and the Channel 2 investigative team told how evidence was mishandled by the Medical Examiner’s Office.” The complaint further alleged Cummings’ statement was “of and concerning” Schaffer; at the time the statement was published, the medical examiner’s office employed only two toxicologists, including Schaffer, who was chief toxicologist; a substantial portion of the television audience reasonably understood the statement to refer to Schaffer; Schaffer’s professional reputation was disgraced and injured; the statement was false; and defendants published the statement knowing it was false or with reckless disregard for its truthfulness.

Count I then asserted Cummings’ statement made reference to, and was understood by a substantial portion of the television audience to whom it was published to refer to, the second segment of the four-part series presented in 1984 by Zekman which described the notorious Tylenol murders. According to Schaffer, Zekman therein claimed no prosecution would occur in those deaths “because the Medical Examiner’s Office ruined samples of the poison.”

Schaffer, in paragraph 5 of count I, alleged the following:

“Because the February 1985 broadcast referred specifically to the May 1984 broadcasts and because the only person identified in the May 1984 broadcasts as ‘mishandling evidence’ was Dr. Schaffer, and because Dr. Schaffer was the only one identified in the May 1984 broadcast as handling the evidence or performing the tests in the Tylenol case, a substantial portion of the television audience to whom the February 1985 broadcast was published reasonably understood the statement ‘evidence was mishandled by the Medical Examiner’s Office’ to refer to Dr. Schaffer and to no one else.”

At the time of Cummings’ 1985 editorial, continued Schaffer, defendants knew the statements concerning the “mishandling” of evidence were false. He then prayed for monetary damages for emotional distress and public humiliation. In a second count, Schaffer alleged the broadcast invaded his privacy by placing him in a false light.

At the hearing on defendants’ section 2 — 615 motion, argument focused on the sufficiency of the colloquium pleaded in the complaint. Finding it lacking, the circuit court granted defendants’ motion. Schaffer appeals.

I

Dr. Schaffer first contends the circuit court improperly dismissed his claim for defamation, arguing count I of the complaint sufficiently alleged that the purportedly defamatory remarks were “of and concerning” him. In reviewing the circuit court’s dismissal, this court must accept as true all well-pléaded facts in the complaint and all reasonable inferences which can be drawn therefrom to determine, as a matter of law, whether the pleadings state a cause of action. (Harris Trust & Savings Bank v. Phillips (1987), 154 Ill. App. 3d 574, 579, 506 N.E.2d 1370.) Conclusions of law or conclusions of fact not supported by allegations of specific facts will not be considered. Davis v. Keystone Printing Service, Inc. (1982), 111 Ill. App. 3d 427, 433, 444 N.E.2d 253.

Defamatory statements may be actionable per se or actionable per quod. A publication is defamatory per se if it is “so obviously and naturally harmful to the person to whom it refers that a showing of special damages is unnecessary” (Owen v. Carr (1986), 113 Ill. 2d 273, 277, 497 N.E.2d 1145); the defamatory character of the statement is apparent on its face, and extrinsic facts are not necessary to explain. (Brown & Williamson Tobacco Corp. v. Jacobson (7th Cir. 1983), 713 F.2d 262, 267.) Statements are actionable per quod if they necessitate extrinsic facts or innuendo to explain their defamatory meaning, and require evidence demonstrating, as a matter of fact, that some substantial injury resulted to the aggrieved person from their use. Heerey v. Berke (1989), 188 Ill. App. 3d 527, 532, 544 N.E.2d 1037.

A

According to Schaffer, his complaint seeks recovery for defamation per se. Statements are defamatory per se if they impute, among other things, an inability to perform or lack of integrity in the discharge of duties of office or employment; or a lack of ability in a person’s trade, business, or profession. (Costello v. Capital Cities Communications, Inc. (1988), 125 Ill. 2d 402, 414, 532 N.E.2d 790.) Here, the allegedly defamatory statement, “evidence was mishandled by the Medical Examiner’s Office,” implicates these categories.

The statement at issue, however, does not mention Schaffer by name, cannot be injurious to him on its face (Moore v. Streit (1989), 181 Ill. App. 3d 587, 597-98, 537 N.E.2d 408), and is not defamatory per se as to him (Colucci v. Chicago Crime Comm’n (1975), 31 Ill. App. 3d 802, 810-11, 334 N.E.2d 461). Extrinsic facts and circumstances must be pleaded to establish that the publication was defamatory as to him (colloquium), and special damages must be alleged with particularity. (Colucci, 31 Ill. App. 3d at 810-11.) In light of Moore and Colucei, the statement “evidence was mishandled by the Medical Examiner’s Office” cannot be said to be defamatory per se as to Schaffer. Not only is he not named therein, but the statement does not refer to him or mention toxicologists or the “chief toxicologist,” nor does it allude to specific investigations conducted solely by Schaffer. At most, it refers to a group of which Schaffer is a member, the Cook County medical examiner’s office. Without more, the statement is not so obviously and naturally harmful to Schaffer that a showing of special damages is unnecessary. Moore, 181 Ill. App. 3d 587, 537 N.E.2d 408.

Schaffer, himself, found it impossible to rest his claim on Cummings’ editorial alone and was forced to look outside the complete text of the editorial and refer to a series of reports aired nine months earlier, pleading extrinsic facts in paragraph 5 of the complaint to explain how Cummings’ statement in fact referred to him. Accordingly, the statement is not actionable per se (See Harris Trust, 154 Ill. App. 3d at 581; Richardson v. Dunbar (1981), 95 Ill. App. 3d 254, 419 N.E.2d 1205.) Schaffer’s simple allegation that the editorial was “of and concerning” him is a conclusion and, therefore, insufficient to support an action for defamation per se. See Coffey v. MacKay (1972), 2 Ill. App. 3d 802, 807-08, 277 N.E.2d 748.

Schaffer nevertheless insists the circuit court had authority to consider the colloquium set out in paragraph 5 in determining whether the statement was defamatory per se. He relies on dictum from Hambric v. Field Enterprises, Inc. (1964), 46 Ill. App. 2d 355, 359, 196 N.E.2d 489, which suggested that a “prohibition against considering colloquium in ascertaining if an article is libelous per se [citation] seems to us to be unduly restrictive and illogical.” No other Illinois cases have adopted such rationale; to the contrary, the most recent case to have considered the issue has drawn the opposite conclusion. (Moore v. Streit, 181 Ill. App. 3d at 597-98.) As Moore explained, “the injurious character of the statement *** cannot be considered so obvious as to justify dispensing with proof of actual damages” where additional explanation is required to establish a person's identification with the publication. 181 Ill. App. 3d at 598.

The 1985 editorial was not actionable per se. Since Schaffer relies on extrinsic facts to establish the defamatory meaning of the editorial as to him, we next consider whether he sufficiently pleaded a cause of action for defamation per quod.

B

An action for defamation per quod is established where words not defamatory on their face are rendered so by extrinsic facts or innuendo, which must be alleged (Harris Trust, 154 Ill. App. 3d at 582), and special damages set forth with particularity. (Bruck v. Cincotta (1977), 56 Ill. App. 3d 260, 266, 371 N.E.2d 874.) General allegations, such as damage to an individual’s health or reputation, economic loss, and emotional distress, are insufficient to support an action per quod (Heerey v. Berke, 188 Ill. App. 3d at 532-33), for example; plaintiff was exposed to “public hatred, contempt and ridicule and tended to deprive *** [plaintiff] of public confidence and injured it in its business reputation” (Harris Trust, 154 Ill. App. 3d at 585-86); plaintiff “suffered ill health, emotional distress and damage to his reputation and medical practice” (von Solbrig Memorial Hospital v. Licata (1973), 15 Ill. App. 3d 1025, 1028, 305 N.E.2d 252); damage to plaintiff’s “good name, reputation and business,” exposure to public hatred, obloquy, and constant harassment by the police department, and subjection “to derision, insults and indecent proposals, which cause her to become ill” (Hambric, 46 Ill. App. 2d at 357).

In the instant case, Schaffer alleges he was disgraced and injured in his profession, and “has suffered extreme emotional distress, has needed to take medication to treat the nervous distress which has resulted from his public humiliation, has incurred medical expenses in relation to his nervous condition, and as a result has been unable to participate in normal activities.” In light of the above authority, these allegations must be characterized as descriptive of general damages and insufficient to plead special damages with particularity. Heerey, 188 Ill. App. 3d 527, 544 N.E.2d 1037.

Schaffer has not adequately stated a cause of action either for defamation per se or per quod. Dismissal of count I therefore was proper.

II

Schaffer next contends that count II of the complaint sufficiently pleaded a cause of action for invasion of privacy by placing him in a false light. Count II reasserted the allegations set forth in count I, then added that Cummings’ 1985 editorial, in conjunction with the 1984 Zekman report, invaded Schaffer’s privacy by placing him “in the false light of an incompetent mishandler of evidence, derelict in his duty, and unfit to hold his office of Chief Toxicologist in the Medical Examiner’s Office.” The circuit court also dismissed count II with prejudice.

The necessary elements for a false-light invasion of privacy claim were outlined in Lovgren v. Citizens First National Bank (1989), 126 Ill. 2d 411, 418, 534 N.E.2d 987, quoting Restatement (Second) of Torts section 652E (1977):

“One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if
(a) the false light in which the other was placed would be highly offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.”

Alleged false-light invasion of privacy, although closely related to defamation, protects one’s interest in being let alone from offensive publicity. (Lovgren, 126 Ill. 2d at 418-19; W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser & Keeton on the Law of Torts §117, at 864 (5th ed. 1984) (Prosser & Keeton).) It has been suggested that all defamation actions can be analyzed as false-light claims, but not all false-light claims support defamation actions (Lovgren, 126 Ill. 2d at 421); it is not necessary that a plaintiff be defamed to support a false-light invasion of privacy claim. (Restatement (Second) of Torts §652E, comment b, at 395.) Due to the similarities between these torts, certain restrictions and limitations on actions for defamation may be equally pertinent to claims for false-light invasion of privacy. See W. Prosser, Privacy, 48 Calif. L. Rev. 383, 400-01 (1960) (Privacy).

Although existing authority is not extensive concerning the applicability of the special damages requirement to false-light actions, we conclude that Schaffer’s failure to plead special damages here is fatal to his false-light invasion of privacy claim under the circumstances presented. (McCabe v. Village Voice, Inc. (E.D. Pa. 1982), 550 F Supp. 525, 529 n.9; Fogel v. Forbes, Inc. (E.D. Pa. 1980), 500 F Supp. 1081, 1088; Restatement (Second) of Torts §652E, comment e, at 399.) In Fellows v. National Enquirer, Inc. (1986), 42 Cal. 3d 234, 251, 721 P.2d 97, 108, 228 Cal. Rptr. 215, 227, the supreme court of California held that, whenever a claim for false-light invasion of privacy was based on language that was defamatory only by reference to extrinsic facts, pleading and proof of special damages were required. In considering the applicability of the special damages requirement to a false-light claim, the Fellows court acknowledged the evolution of restrictions and limitations on liability for defamatory speech as courts and legislatures attempted to balance the interest in a person’s reputation against the interests in freedom of speech and press. (42 Cal. 3d at 248, 721 P.2d at 106, 228 Cal. Rptr. at 225.) It suggested the requirement of special damages in a per quod action represented a legislative determination that the imposition of liability for a publication which afforded no warning of its defamatory nature, and did not cause actual pecuniary injury, placed too great a burden on the editorial process and interfered with the free dissemination of news. (42 Cal. 3d at 249, 721 P.2d at 107, 228 Cal. Rptr. at 226.) The court also recognized that privacy suits threaten the freedoms of speech and press in the same manner as defamation actions. 42 Cal. 3d at 241, 721 P.2d at 101, 228 Cal. Rptr. at 220.

Finding the policy behind the requirement of special damages in a per quod action equally applicable to a false-light claim based on a defamatory publication, the Fellows court concluded (42 Cal. 3d at 251, 721 P.2d at 108, 228 Cal. Rptr. at 227):

“Since virtually every published defamation would support an action for false light invasion of privacy, exempting such actions from the requirement of proving special damages would render the statute a nullity. Permitting a plaintiff to circumvent the statutory requirement by labeling the action as one for false light invasion of privacy would defeat the legislative purpose of providing a zone of protection for the operation of a free press.”

We find the Fellows rationale persuasive.

At common law, one of the purposes of the special damages requirement in a per quod action for defamation was to discourage trivial and extortionate claims. (See Privacy, 48 Calif. L. Rev. at 401.) Also, as noted in Fellows, a requirement of special damages helps protect first amendment interests when the dissemination of news is involved. (43 Cal. 3d at 249, 721 P.2d at 107, 228 Cal. Rptr. at 226.) These significant policies, protected in the law of defamation, are equally implicated where, as here, a false-light action is based upon a defamatory publication.

Accordingly, we hold that a claim for false-light invasion of privacy based on language, the defamatory meaning of which can be established only by reference to extrinsic facts, requires the pleading of special damages with particularity. Schaffer’s false-light count here merely realleges the damages set forth in the defamation count, which we previously found insufficient to set forth special damages with particularity. Cf. Lovgren, 126 Ill. 2d 411, 534 N.E.2d 987.

For the above reasons, the dismissal of both counts of the complaint must be affirmed.

Affirmed.

DiVITO, P.J., and SCARIANO, J., concur.

      The four-part series, entitled “Dead Wrong,” appeared on four successive nights, from May 6 - 9, 1984, during WBBM-TV’s 10 p.m. newscast, and described what it characterized as “major problems” in the medical examiner’s office. Part 1, “Homicides,” criticized several autopsies performed by that office which failed to classify the deaths as homicides; Part 2, “Toxicology,” denounced the toxicologists’ testing of samples in the Tylenol-cyanide murder investigation, as well as in other inquiries involving drug overdoses; Part 3, “Dr. Beamer,” highlighted the “mistakes” of one pathologist in the medical examiner’s office; and Part 4, “Child Abuse,” found fault with several investigations by the medical examiner’s office in cases of suspected child abuse, and in particular, focused on one autopsy performed by Dr. Robert Stein.

      Many of the restrictions on defamation actions have been applied to false-light invasion of privacy claims: the actual malice standard of liability for public (Time, Inc. v. Hill (1967), 385 U.S. 374, 17 L. Ed. 2d 456, 87 S. Ct. 534) and private figures (Lovgren, 126 Ill. 2d 411); the defenses of opinion (Cibenko v. Worth Publishers, Inc. (D.N.J. 1981), 510 F. Supp. 761) and truth (Rinsley v. Brandt (10th Cir. 1983), 700 F. 2d 1304); and the statement must be “of and concerning” the individual plaintiff (Michigan United Conservation Clubs v. CBS News, a Division of CBS, Inc. (W.D. Mich. 1980), 485 F. Supp. 893, aff'd (6th Cir. 1981), 665 F.2d 110). In Illinois, the common law fair report privilege might be applicable under appropriate circumstances (see Berkos v. National Broadcasting Co. (1987), 161 Ill. App. 3d 476, 496, 515 N.E.2d 668); also, the statute of limitations is the same for both defamation and privacy actions (Ill. Rev. Stat. 1985, ch. 110, par. 13—201), and the uniform single publication act limitations apply equally to both (Ill. Rev. Stat. 1985, ch. 126, par. 11).

      By statute, California requires allegations and proof of special damages for a libel per quod claim to be actionable. Cal. Civil Code §45a (Deering 1989).


author: JUSTICE SCARIANO

text:
    EDWARD R. JORDAN, Petitioner-Appellee, v. MICHAEL A. GLAUB et al., Respondents-Appellants.
    First District (2nd Division)
    No. 1—90—0342
    Opinion filed March 30, 1990.

      Paul Stralka and James R. Stopka, both of Chicago, for appellant.
    Edward R. Jordan, of Wheeling, appellee pro se.

   JUSTICE SCARIANO

delivered the opinion of the court:

Respondent appeals from an order of the circuit court which reversed a decision of the Cook County Officers Electoral Board sustaining respondent’s objections to the nominating papers of petitioner as a candidate for judge of the circuit court of Cook County in the March 20, 1990, primary election.

Petitioner is seeking to place his name on the ballot for the March 20, 1990, primary election to fill the vacancy in the office of resident circuit judge created by the resignation of the Honorable Dean Trafelet, who had been elected from the suburban portion of the Cook County judicial circuit. Respondent maintains that petitioner’s nominating petitions for this position are legally insufficient, because some of the signers and circulators of the petitions reside inside the City of Chicago and not in its Cook County suburbs. We affirm.

To be placed on the primary election ballot, prospective judicial candidates must collect the signatures of at least 500 qualified voters. Petitioner collected the signatures of 506 voters, of which approximately 116 reside within the corporate limits of Chicago and the balance in the suburban portion of the Cook County judicial circuit. Thirty signatures were obtained on a petition circulated by a resident of Chicago.

Respondent filed a timely objection to petitioner’s nominating papers with the Cook County Officers Electoral Board (Board), alleging that the signatures were insufficient. The Board found the papers invalid and ordered petitioner’s name to be omitted from the ballot. Petitioner appealed to the circuit court of Cook County, which reversed the Board’s decision and made the following findings: (1) Cook County comprises one judicial circuit; (2) the statute controlling this dispute is section 7 — 10(h) of the Election Code (Ill. Rev. Stat. 1987, ch. 46, par. 7—10(h)), as written before the enactment of Public Act 86 — 786; and (3) Kozel v. State Board of Elections (1988), 168 Ill. App. 3d 501, 522 N.E.2d 908, vacated and appeal dismissed on procedural grounds (1988), 126 Ill. 2d 58, 533 N.E.2d 796, although lacking precedential value, is persuasive authority.

Respondent filed a timely notice of appeal to this court on January 22, 1990, and on February 13, 1990, we granted his motion to place his appeal on an accelerated docket. On March 13, 1990, we heard and decided this case from the bench and entered an appropriate order citing that our opinion would follow.

Article VI of the Illinois Constitution provides in pertinent part as follows:

“§2. JUDICIAL DISTRICTS
*** The First Judicial District consists of Cook County. ***
* * *
§7. JUDICIAL CIRCUITS
(a) The State shall be divided into Judicial Circuits consisting of one or more counties. The First Judicial District shall constitute a Judicial Circuit. * * * The General Assembly by law may provide for the division of a circuit for the purpose of selection of Circuit Judges and for the selection of Circuit Judges from the circuit at large.
(b) *** In the First Judicial District, unless otherwise provided by law, Cook County, Chicago, and the area outside Chicago shall be separate units for the selection of Circuit Judges ***.” Ill. Const. 1970, art. VI, §§2, 7.

Section 1 of “An Act relating to the circuit courts” (Ill. Rev. Stat. 1987, ch. 37, par. 72.1) states that “[t]he county of Cook shall be one judicial circuit.” Exercising its constitutional authority to divide the judicial circuits into political units for the selection of circuit judges, in 1978 the Illinois legislature provided that a vacancy in the office of a resident circuit judge, as defined in section 1.1 of “An Act relating to vacancies in the office of judge” (Ill. Rev. Stat. 1987, ch. 37, par. 72.41—1) (hereinafter Judicial Vacancies Act), shall be filled in the following manner:

“(4) The County of Cook shall have 83 resident judges. Twenty-seven of those resident judges shall be elected from the unit comprised of the territory of the Circuit Court of Cook County outside the corporate limits of Chicago and 56 resident judges shall be elected from the unit within the corporate limits of Chicago. A vacancy in the office of resident judge of the Circuit Court of Cook County shall be filled from the unit in which it occurs.” (Ill. Rev. Stat. 1987, ch. 37, par. 72.42(4).)

Furthermore, “[w]hen a vacancy in the office of resident circuit judge is filled by election, the election shall be for the appropriate county or unit, and not for the entire circuit.” Ill. Rev. Stat. 1987, ch. 37, par. 72.42-1.

In 1989, the legislature mandated the division of the Cook County judicial circuit into 15 subcircuits, which the “General Assembly shall create *** by law on or before July 1, 1991, using population data as determined by the 1990 Federal census.” (Pub. Act 86 — 786, §2, eff. Sept. 6, 1989 (amending Ill. Rev. Stat. 1987, ch. 37, by adding par. 72.2e).) Preserving the old city/suburban division for the interim period, the legislature stated further that “[a] vacancy in the office of resident judge of the Circuit of Cook County occurring before the date the subcircuits are created by law *** shall be filled from the unit within Chicago or the unit outside Chicago, as the case may be, in which the vacancy occurs.” Pub. Act 86 — 786, §3 (amending Ill. Rev. Stat. 1987, ch. 37, par. 72.42).

In the present case, because the Honorable Dean Trafelet was a resident circuit judge elected from the suburban unit of the Cook County judicial circuit, his successor must be elected- by qualified voters residing in that same unit.

As noted above, respondent's crucial contention on appeal is that the circulators and signers of the nominating petitions of a prospective candidate for this suburban judicial vacancy must also reside in that portion of Cook County which lies outside the corporate limits of Chicago. The Illinois General Assembly recently divided Cook County into smaller election units for the purpose of selecting judges for the courts of that circuit and district. (See Pub. Act 86 — 786 (amending Ill. Rev. Stat. 1987, ch. 37, pars. 25, 72.2, 72.42, 160.2; ch. 46, par. 7 — 10; and adding ch. 37, par. 72.2e).) However, until the new “subcircuits” are created, the statute governing judicial nominating petitions (Pub. Act 86 — 786, §5 (amending Ill. Rev. Stat. 1987, ch. 46, par. 7—10(h)) (the Election Code)) clearly and unambiguously provides that the entire Cook County judicial circuit is fair territory for collecting signatures for all types of judicial vacancies occurring within the circuit.

The newly amended section 7 — 10 of the Election Code provides as follows:

“[A] petition [for nomination] shall be signed by qualified primary electors residing in the political division for which the nomination is sought ***. *** At the bottom of each sheet of such petition shall be added a statement signed by a registered voter of the political division for which the candidate is seeking a nomination ***. * * *
* * *
Such petitions for nominations shall be signed:
* * *
(h) If for a candidate for judicial office, by at least 500 qualified primary electors of his or her judicial district, subdistrict, circuit, or subcircuit, as the case may be.” (Emphasis added.) Pub. Act 86—786, §5 (amending Ill. Rev. Stat. 1987, ch. 46, par. 7—10).

The only change in the amended version of section 7 — 10 is the addition of the words “subdistrict” and “subcircuit” in subsection (h) thereof. Respondent attaches undue significance to these terms, arguing that “subcircuit” refers to the old division of the Cook County judicial circuit into city and suburban political units. Such an interpretation is clearly unwarranted in view of the legislative mandate to divide Cook County into five “subdistricts” for appellate court elections and 15 “subcircuits” for circuit court elections after the 1990 census. (See Pub. Act 86 — 786, §§1, 2.) Although for the purposes of this appeal the result would be the same whether we applied the old or the amended version of subsection 7 — 10(h), the amended version took effect on September 6, 1989 (Pub. Act 86 — 786, §6), before the circulation period for nomination petitions began (see Pub. Act 86— 786, §5 (amending Ill. Rev. Stat. 1987, ch. 46, par. 7 — 10); Ill. Rev. Stat. 1987, ch. 46, par. 7 — 12(1)); therefore, contrary to the finding of the circuit court, the amended version controls this case.

The circuit court relied on the reasoning of Kozel v. State Board of Elections (1988), 168 Ill. App. 3d 501, 522 N.E.2d 908, vacated and appeal dismissed on procedural grounds (1988), 126 Ill. 2d 58, 533 N.E.2d 796, wherein the Fourth District Appellate Court ruled that subsection 7 — 10(h) of the Election Code (Ill. Rev. Stat. 1987, ch. 46, par. 7 — 10(h)) was unambiguous and allowed a prospective candidate for La Salle County resident judgeship to collect signatures for his nomination from the entire judicial circuit embracing three counties. The court reasoned that by permitting circuit-wide circulation the statute “allows less populated counties to have multiple candidates in primaries where the 500-signature requirement would otherwise preclude it, or to have a candidate at all in counties where one or the other of the parties is predominant.” (168 Ill. App. 3d at 503, 522 N.E.2d at 909.) Although both aspects of this rationale lose their force in a judicial circuit as densely populated as Cook County, the court’s reasoning does not strip subsection 7 — 10(h) of its plain meaning. Indeed, as the supreme court stated in Kozel, “with respect to circuit court judgeships, the statute makes no distinction between candidates for resident positions, who run only within their county, and candidates for at-large positions, who must run throughout their circuit.” (126 Ill. 2d at 62, 533 N.E.2d at 798.) Similarly, the statute makes no distinction between the Cook County judicial circuit and other circuits; accordingly, we agree with the circuit court that the appellate opinion in Kozel is persuasive in the present case.

Respondent also maintains that the term “political division” as it is used in section 7 — 10 with respect to the residency requirements for signers and circulators of nominating petitions refers to the city and suburban election units of Cook County. A thorough reading of the section, however, makes it clear that “political division” is a general term which embraces all of the various types of specifically identified electoral enclaves enumerated in subsections 7 — 10(a) through 7 — 10(k), such as congressional districts, county board districts, municipalities, townships, wards, sanitary districts, precincts, counties, etc. (See Pub. Act 86 — 786, §5.) Thus, when subsection 7— 10(h), which governs all judicial elections, requires the signatures of “at least 500 qualified primary electors of his or her judicial *** circuit,” it means just that. (Emphasis added.) (Pub. Act 86 — 786, §5 (amending Ill. Rev. Stat. 1987, ch. 46, par. 7 — 10(h)).) Moreover, if the legislature had meant to refer to the city and suburban election units in subsection 7 — 10(h), it would have used the term “unit” as it did in sections 72.41 — 1, 72.42 — 1, and amended section 72.42 of the Judicial Vacancies Act. (See Ill. Rev. Stat. 1987, ch. 37, pars. 72.41 — 1, 72.42 — 1; Pub. Act 86 — 786, §3 (amending Ill. Rev. Stat. 1987, ch. 37, par. 72.42).) Although section 7 — 10 is part of the Election Code, both that section and section 72.42 of the Judicial Vacancies Act were amended together with Public Act 86 — 786.

Respondent finally contends that the circulators of petitioner’s judicial nominating petitions must also be residents of the suburban portion of the Cook County judicial district. As noted above, 30 of petitioner’s 506 nominating signatures were obtained by a resident of the City of Chicago. As we read section 7 — 10, the residency qualifications of both signers and circulators are substantially the same: signers must be “qualified primary electors residing in the political division for which the nomination is sought,” and circulators must be “registered voter[s] of the political division for which the candidate is seeking nomination.” (Emphasis added.) (Pub. Act 86 — 786, §5 (amending Ill. Rev. Stat. 1987, ch. 46, par. 7 — 10).) We determined above that the relevant political division for signers of judicial nominating petitions is the appropriate judicial “circuit.” Although the statute does not specifically identify the corresponding electoral enclave for circulators, since the general term “political division” is used in the statute for both signers and circulators, we hold that the relevant political division with respect to petition circulators is also the appropriate judicial “circuit;” accordingly, we find that petition circulators for candidates for resident judgeships in the Cook County judicial circuit may reside anywhere within the circuit.

For all of the above reasons, we hold that petitioner’s nomination papers are legally sufficient and affirm the order of the circuit court.

Affirmed.

DiVITO, P.J., and HARTMAN, J., concur.


author: JUSTICE RIZZI

text:
    ANNE RUSSELL, Plaintiff-Appellant, v. COOK COUNTY SHERIFF’S MERIT BOARD et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—88—2085
    Opinion filed March 30, 1990.

      Richard E McPartlin, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Joan S. Cherry, Myra J. Brown, and M. Anne Gavagan, Assistant State’s Attorneys, of counsel), for appellees.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff-appellant, Anne Russell (Russell), brought an administrative review and declaratory judgment action in the circuit court. Herein, Russell appeals the circuit court’s affirmance of her demotion and suspension and its ruling that the sheriff of Cook County had the power and authority to suspend her from September 26, 1986, until the disposition of the charges before the merit board and that she was not entitled to recover her salary from September 26, 1986, until December 10,1987.

The facts revealed during the administrative hearing were as follows. On September 19, 1978, Russell was appointed as an employee of the Cook County Department of Corrections. A November 4, 1985, incident precipitated the filing of the original complaint on September 11, 1986, ten months after the incident. The sheriff of Cook County, Richard J. Elrod, suspended Russell commencing September 26, 1986, until disposition of her case before the merit board. The charges in the original complaint allege that Russell was indicted on two counts of battery and two counts of official misconduct.

The matter was called for hearing on October 15, 1986, and on the State’s Attorney’s motion, the hearing was continued generally, pending the outcome of the aggravated battery charge filed against Russell in the criminal court of Cook County. On March 12, 1987, Russell was found not guilty in the criminal matter. On April 2, 1987, Russell filed a motion to dismiss the complaint. The amended complaint filed on April 8, 1987, states that on November 4, 1985, Russell participated with others in the beating of an inmate. The hearing before the merit board commenced September 22, 1987.

On December 10, 1987, the merit board issued its order reducing Russell’s rank from correctional lieutenant to sergeant and suspending her for six months until May 23, 1988. As of September 26, 1986, Russell earned $2,064 per month as correctional lieutenant.

Russell first asserts that the merit board had no authority to impose both a demotion and suspension and that the trial court erred in affirming that decision. We find that the merit board has the authority to impose both a suspension and a demotion.

The relevant statutory provisions of “An Act in relation to the Cook County Sheriff’s Merit Board” provide as follows:

“61. Disciplinary measures
§11. Disciplinary measures prescribed by the Board may be taken by the sheriff for the punishment of infractions of the rules and regulations promulgated by the Board. Such disciplinary measures may include suspension of any deputy sheriff in the County Police Department, any full-time deputy sheriff not employed as a county police officer or county corrections officer and any employee in the County Department of Corrections for a reasonable period, not exceeding 30 days, without complying with the provisions of Section 12 hereof.” Ill. Rev. Stat. 1987, ch. 125, par. 61.
“62. Removal, demotion or suspension — Procedure §12. Except as is otherwise provided in this Act, no deputy sheriff in the County Police Department, no full-time deputy sheriff not employed as a county police officer or county corrections officer and no employee in the County Department of Corrections shall be removed, demoted or suspended except for cause, upon written charges filed with the Board by the Sheriff and a hearing before the Board thereon upon not less than 10 days’ notice at a place to be designated by the chairman thereof. *** If the charges against an accused deputy sheriff are established by a preponderance of evidence, the Board shall make a finding of guilty and order either removal, demotion, suspension for a period of not more than 180 days, or such other disciplinary punishment as may be prescribed by the rules and regulations of the Board which, in the opinion of the members thereof, the offense merits.” Ill. Rev. Stat. 1987, ch. 125, par. 62.
“56. Rules, regulations and procedures — Rank
§6. Pursuant to recognized merit principles of public employment, the Board shall formulate, adopt, and put into effect rules, regulations and procedures for its operation and the transaction of its business.” Ill. Rev. Stat. 1987, ch. 125, par. 56.

Rules and Regulations, article VIII, paragraphs A(2) and B, provide:

“A(2) The Sheriff or his designated representative may suspend for a period of time in excess of thirty days any Police Officer of the Cook County Sheriff’s Police Department, any employee of the Department of Corrections or any full-time Deputy sheriff who has completed his probation, provided charges against that person have been filed with the Board and pending the decision of the Board on those charges. Such suspension may be ordered only if the employee has had an opportunity to respond to the Sheriffs decision.
B. The Board, after the hearing upon written charges as prescribed by Illinois Revised Statutes, Chapter 125, if it shall make a finding of guilty, may order any of the following disciplinary measures which, in the opinion of the Board the offense merits:
1. Discharge and removal.
2. Reduction in rank.
3. Suspension for a period not to exceed a total of 180 days in any twelve-month period.”

Section 12 provides, in pertinent part, that if the charges against an accused deputy sheriff are established by a preponderance of evidence, the board shall make a finding of guilty and order either removal, demotion, suspension for a period of not more than 180 days, or such other disciplinary punishment as may be prescribed by the rules and regulations of the board which, in the opinion of the members thereof, the offense merits. This language does not limit the board’s disciplinary powers to either removal, demotion or suspension. Rather, this provision specifically provides for the imposition of such other disciplinary measures as may be prescribed by the board’s rules and regulations. Importantly, the statute specifies that the rules and regulations may provide for disciplinary measures which in the opinion of the members of the offense merits. Clearly this language enables the board to address certain offenses with other measures in addition to merely suspension, demotion and removal.

The board’s rules, regulations and procedures provide in pertinent part that, after hearing and if the board enters a finding of guilty, it may order any of the following disciplinary measures which in the board’s opinion the offense merits: (1) discharge and removal; (2) reduction in rank; (3) suspension for a period not to exceed a total of 180 days in any 12-month period.

The operative terms here are that the board may order any of the following measures which in the board’s opinion the offense merits. The language grants the board the-flexibility to fashion the appropriate punishment which an offense merits. Parenthetically, we note that this interpretation serves to benefit the more serious deputy sheriff offender, so that instead of being removed from the position, he or she may be demoted and suspended.

Accordingly, we affirm the trial court’s interpretation that the merit board has the authority to order a suspension and demotion when in the opinion of the board the offense merits it. While we hold that the merit board has this authority, we find for the reasons outlined below, that the length of suspension imposed was improper.

Russell argues that her 439-day suspension, from September 26, 1986, until December 10, 1987, was impermissible given the-provisions of section 12, which limit the period of suspension to not more than 180 days. The pertinent statutory language provides that “the Board shall make a finding of guilty and order either removal, demotion, suspension for a period of not more than 180 days, or such other disciplinary punishment as may be prescribed by the rules and regulations.” Ill. Rev. Stat. 1987, ch. 125, par. 62.

We strictly construe this language and interpret it to mean that after a finding of guilt, a suspension for a period of not more than 180 days may be imposed. Accordingly, we find that the suspension of Russell from September 26, 1986, until May 23, 1988, violates and circumvents the statute. (Sier v. Board of Fire & Police Commissioners (1987), 157 Ill. App. 3d 1097, 1101, 510 N.E.2d 633, 635.) Moreover, the imposition of the demotion and the lengthy suspension was unreasonable. Sier, 157 Ill. App. 3d 1097, 510 N.E.2d 633.

This interpretation is consistent with the board's regulation which requires that the period of suspension not exceed a total of 180 days in any 12-month period. Beginning September 26, 1986, to September 26, 1987, Russell was suspended for 12 months of the 12-month period. Deference must be given to the agency’s interpretation of its own rules; the reviewing court will not overrule the agency’s construction unless it is unreasonable. (Brown v. Sexner (1980), 85 Ill. App. 3d 139, 148, 405 N.E.2d 1032, 1089.) Here, the interpretation of the statute and regulations as authorization of the 439-day suspension from September 1986 until December 1987 is unreasonable given the limitation of one 180-day suspension per 12-month period. Moreover, the punishment of demotion and suspension from September 1986 until May 1988 is unreasonable under Sier. 157 Ill. App. 3d 1097, 510 N.E.2d 633.

The merit board’s order stated that the inmate, Keriena Kyles, was hit and abused while in the care and custody of certain Department of Corrections officers, including Russell, but that the “testimony was contradictory and inconsistent with regard to who *** actually hit and struck Keriena Kyles and whether such blows were retaliatory or initiated by Department of Corrections personnel.” The merit board further found that Russell was the senior officer in charge and the supervisor of all of the officers present and failed to properly control her personnel, report the incident and prevent physical abuse to Kyles. In addition, the merit board found that Kyles clearly provoked and incited the Department of Corrections personnel, including Russell, by verbal abuse and physical acts of resistance and abuse on the officers and Russell, but that such provocation did not excuse or justify the improper physical abuse inflicted by the Department. In conclusion, the board found that Russell struck Kyles but made no finding as to whether the striking was initiated by Russell or retaliatory in nature.

In Sier, two eyewitnesses, both police officers, testified that the prisoner was unconscious throughout the incident and that Sier dropped the inmate to the ramp, causing him to strike his head, kicked him three or four times, and picked the inmate up by his hair. (Sier, 157 Ill. App. 3d at 1099.) Sier received a 30-day pre-hearing and a 30-day post-hearing suspension, rather than discharge.

Nonetheless, where an officer is partially or primarily responsible for the delay or consents to a delay in the proceedings, delay so occasioned cannot be relied on as error. (Brown v. Sexner (1980), 85 Ill. App. 3d 139, 151, 405 N.E.2d 1082, 1091.) Russell not only acquiesced in the continuance of the merit board hearing pending the outcome of the criminal charges, but also endeavored to benefit from the delay with the filing of the motion to dismiss based upon the finding of not guilty of the criminal charges.

The State, however, made motions for continuances from June 8, 1987, until August 10, 1987. The hearing officer ordered that the complaint would be dismissed and an order entered directing Russell to return to work if the State did not comply with discovery and set a hearing date on or before August 24, 1987.

Given the aforementioned delay attributable to both parties and the 180-day statutory limitation, we modify the suspension order such that the period of suspension extends 180 days from June 9, 1987, until December 10, 1987. We affirm the trial court's order upholding the suspension and demotion. We modify the trial court’s ruling that the sheriff of Cook County had the power and authority to suspend Russell pending the merit board hearing to state that the power and authority to suspend is limited to 180 days. Additionally, we affirm the ruling that Russell was not entitled to recover her salary from September 26, 1986, to December 10, 1987. We find that the suspension from December 10, 1987, until May 23, 1988, was in violation of State statute and should be revoked. The matter is remanded to the trial court for further proceedings consistent with this opinion.

Affirmed in part; reversed in part, modified and remanded.

WHITE and FREEMAN, JJ., concur.