author: JUSTICE MURRAY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY ELAM, Defendant-Appellant.
    First District (5th Division)
    No. 1—87—3251
    Opinion filed April 20, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Callie Baird and Vicki Rogers, Assistant Public Defenders, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Kenneth T. McCurry, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MURRAY

On December 2, 1986, Chicago police officers executed a search warrant for the premises at 1223 West Washbourne in Chicago. As a result of this search, certain contraband was recovered and defendant was arrested and charged with possession of a controlled substance with the intent to deliver and unlawful use of a weapon by a felon. (Ill. Rev. Stat. 1985, ch. 56V2, par. 1401; ch. 38, par. 24-1.1.) After a jury trial in the circuit court of Cook County, defendant was acquitted of the charge for possession of a controlled substance, but was found guilty on the weapons charge and sentenced to a term of four years’ imprisonment in the Illinois Department of Corrections. Defendant now brings this appeal, and the sole issue is whether he was proved guilty of the offense for which he was convicted beyond a reasonable doubt.

It was uncontested at trial that defendant had a prior felony conviction. The basis of defendant’s claim is that the State failed to present the jury with sufficient evidence that he constructively possessed the weapons which were found during the search of the premises where defendant was arrested.

The pertinent facts are as follows.

On November 30, 1986, after a conversation with a confidential informant, Chicago police officer John Hennis commenced an investigation for possible drug trafficking at 1223 West Washbourne in Chicago. At about 11 a.m. on December 1, 1986, Officer Hennis and his partner set up a surveillance of the premises and during the next hour observed several persons approach the residence, which was a single-family, two-story row house maintained by the Chicago Housing Authority. In each instance the person did not enter the residence, but rather appeared to engage in a “hand transaction” at the door of the residence. The officers were unable to identify the person inside the residence who was entering into these transactions. However, based upon these observations, in conjunction with information from the confidential informant, Hennis obtained a search warrant, which he executed about 10:55 a.m. on December 2, 1986, with the assistance of seven other Chicago police officers.

According to Officer Hennis’ testimony, he knocked at the door of the residence, announced his office and stated that he had a search warrant. When no one responded, he forcibly entered the residence using a sledge hammer. Defendant was found standing on the staircase leading to the second floor. He was alone in the residence and dressed only in underpants and a T-shirt. Hennis asked whether he was “Tony,” and defendant answered in the affirmative. Defendant was then shown the search warrant, handcuffed and searched.

Based upon information in his possession, Hennis immediately checked the refrigerator in the kitchen, where he found a fake beer can. Inside the beer can Hennis found 13 packets of a tan powder, which later proved to be a substance containing heroin. Defendant was shown the beer can and the packets, advised of his rights under Miranda and then asked whether any other contraband, large amounts of cash or weapons were inside the residence. Defendant then reportedly told police that there were two guns inside a shoebox in the bedroom upstairs. Officer Hennis relayed this information to Officer Fitzmaurice, who was conducting a search of the second floor. Then Fitzmaurice, in the presence of Hennis, discovered two loaded handguns in 1 of 15 or more shoeboxes that were stacked inside the upstairs bedroom. Hennis continued to search the bedroom and found a third gun, a .22 caliber “Saturday Night Special,” between the mattresses of the bed. When defendant was asked about this gun, he reportedly stated that he had been unaware of this gun, which belonged to his girl friend, who lived at the residence.

Officer Hennis also testified that in the same room where the guns were found, there were men’s clothing and shoes, and two letters which were addressed to defendant at the West Washbourne address. Furthermore, when defendant was arrested he donned clothing he obtained from this bedroom and, upon questioning, he stated that he had been living at the residence for the past three months. Although much of this information was not included within the police report, Officer Fitzmaurice testified in corroboration of Hennis’ testimony.

At trial defendant denied that he had resided at the Washbourne address. He testified that the residence was occupied by Diane Winham, the mother of his six-year-old daughter, and her four children. Defendant stated that he did not own a key to the premises and that he arrived there at 8:30 a.m. that morning, at Winham’s request, to take his daughter to school. He claimed that he only stayed at the residence so that he could pick his daughter up from school later that morning and he merely removed his pants when he laid down on the couch to watch television. Defendant produced several documents which indicated that his residence was, in fact, 856 North Mayfield, where he lived with his grandmother and his cousin. Defendant acknowledged that he received two letters addressed to him at the Washbourne address. However, he explained that these letters were sent by a friend who only knew him through his relationship with Winham.

With respect to the search, defendant claimed that the officers never knocked prior to forcibly entering the residence. He further claimed that he was immediately asked “where’s the cocaine?” and that he was slapped by an officer when he did not respond. He denied that he ever told the police the whereabouts of any guns or discussed the ownership of any weapons that were recovered by police.

On cross-examination defendant admitted that he visited his daughter at the Washbourne residence as often as three times each week. He also admitted that he would, in fact, sleep overnight at the residence as often as three nights per week, as well. However, he denied that he kept any clothing or belongings at the residence.

Based on the above evidence, the jury found defendant guilty of unlawful use of a weapon by a felon. Defendant now challenges this finding.

Section 24 — 1.1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 24 — 1.1) states:

“It is unlawful for a person to knowingly possess on or about his person or on his land or in his abode or fixed place of business any weapon prohibited under Section 24 — 1 of this Act or any firearm or any firearm ammunition if the person has been convicted of a felony under the laws of this State or any other jurisdiction ***.”

In order to sustain a conviction for this offense under this section, the State was required to prove defendant’s knowing possession of a prohibited firearm and his prior felony conviction. (People v. Rangel (1987), 163 Ill. App. 3d 730, 516 N.E.2d 936.) Here, as in Rangel, the only issue is whether the State established defendant’s knowing possession of the weapon. The State argues that although it did not prove actual possession, sufficient evidence was presented to show that defendant constructively possessed the prohibited weapons. We agree.

To prove constructive possession of contraband, one must show that: (1) defendant had knowledge of the presence of the prohibited weapon, and (2) that he exercised immediate and exclusive control over the area where the weapons were found. (Rangel, 163 Ill. App. 3d at 739.) In this case Officer Hennis, who obtained and executed the search warrant, testified that defendant supplied him with information regarding the whereabouts of two weapons for which he claimed ownership. Further, Hennis corroborated defendant’s statement by testifying that the prohibited weapons were discovered in the exact location that defendant had earlier provided. In addition, both Hennis and Fitzmaurice presented evidence that contradicted defendant’s testimony that he did not reside at the Washbourne address. The totality of the evidence, if believed by the jury, whose duty it was to assess credibility, weigh the evidence and resolve conflicts (People v. Akis (1976), 63 Ill. 2d 296, 347 N.E.2d 733), was sufficient to support defendant’s conviction.

We are not unmindful of the case of People v. Pugh (1967), 36 Ill. 2d 435, 223 N.E.2d 115, which defendant cites in his appeal. While we acknowledge that the facts of that case are similar to those in the case at bar, we find Pugh to be distinguishable. In Pugh the Illinois Supreme Court reversed a conviction for unlawful possession of a narcotic drug based upon a determination that there was insufficient evidence that the premises where the narcotics were found was under the control of the defendant. However, in that case the police entered the residence pursuant to a search warrant that charged that narcotics were being sold from the premises by “Patricia Plunkett.” Defendant Pugh, who was found inside the residence when the warrant was executed, claimed that he did not reside at the address and had entered the residence only six hours earlier. Although the police officers testified that defendant had indicated to them that he had been living at the apartment for the past two months, no corroborative evidence of this fact was presented at trial. In light of this evidence, the court stated:

“It would seem the People could have produced some evidence that the defendant paid the rent or that he was in the apartment frequently if such were the case.” (36 Ill. 2d at 437-38.)

In the present case, defendant, by his own admission frequented the apartment, sometimes sleeping there as well. Furthermore, the State presented evidence that defendant received two letters addressed to him at the Washbourne address. The jury could have concluded from this evidence that defendant was residing at the Washbourne address and so we find the holding in Pugh not to be controlling.

We note, too, that our review is limited to a determination of whether, when viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found defendant guilty. (People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 461.) Since we cannot say that the evidence was so unsatisfactory that we are left with a reasonable doubt of defendant’s guilt (People v. Collins (1985), 105 Ill. 2d 237, 478 N.E.2d 267), we affirm the judgment of the circuit court.

Affirmed.

LORENZ and GORDON, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE LaPORTA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. SHAWN G. FLYNN, Defendant-Appellee.
    First District (6th Division)
    No. 1—87—3660
    Opinion filed April 20, 1990.

      Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Linda Woloshin, and Patrick M. Brady, Assistant State’s Attorneys, of counsel), for the People.
    Nealis & Bradley, Ltd., of Chicago (Thomas V. Gainer, Jr., of counsel), for appellee.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

This is an appeal by the State from an order of the circuit court granting the motion of defendant to suppress the results of his breathalyzer test in his trial for driving under the influence of alcohol (DUI). The issue on appeal is whether the trial court erred when it ruled that in the DUI prosecution the doctrine of collateral estoppel precluded the relitigation of an issue that was ruled on at the prior hearing to rescind defendant’s statutory summary license suspension.

On February 23, 1987, defendant was arrested and charged with DUI, improper lane usage and failure to signal. On July 22, 1987, a hearing was conducted on defendant’s petition to rescind the statutory summary license suspension. The arresting officer testified that after observing defendant’s vehicle weaving between lanes, he stopped defendant and asked him if he had been drinking. Defendant replied that he had “a couple.” The officer then administered three field-sobriety tests that defendant failed. Defendant was arrested and taken to the police station for a breathalyzer test. At the conclusion of the testimony, the trial court rescinded the summary suspension of defendant’s driver’s license because the officer was unable to produce a valid license to operate the breathalyzer machine and because the evidence presented indicated the possibility that there might have been a break in the required 20-minute observation period before defendant was given the breathalyzer test.

On October 29, 1987, defendant filed a motion to exclude the results of the breathalyzer test at the DUI prosecution. Defendant argued that since there had been a full hearing and determination that the results of the test were inadmissible, the State was collaterally estopped from relitigating their admissibility. At the hearing, the State indicated that it was prepared to present evidence that the arresting officer had a valid operating license at the time the test was administered and that there had been compliance with the 20-minute waiting period. The trial court granted defendant’s motion, finding that since a full and complete consideration of these matters occurred at the hearing on defendant’s petition to rescind the summary suspension of his license, the State was collaterally estopped from any further consideration at the DUI prosecution.

The State argues that it was error for the trial court to have applied the doctrine of collateral estoppel at the DUI trial to preclude the litigation of a ruling made at the previous summary suspension hearing. Defendant contends that the trial court acted properly in barring the relitigation of the admissibility of breathalyzer test results where that evidence had previously been found inadmissible at a summary suspension rescission hearing. In considering this issue we note that our appellate decisions are divided concerning whether a trial court’s determination at a summary suspension hearing should apply to the later criminal case pursuant to the doctrine of collateral estoppel.

In People v. Slice (1988), 168 Ill. App. 3d 662, 523 N.E.2d 1054, appeal denied (1988), 122 Ill. 2d 590, 530 N.E.2d 259, the fourth district determined that an analysis of the difference between a rescission hearing and a criminal trial for DUI established that the doctrine of collateral estoppel did not apply. The court reasoned that a rescission hearing, although conducted in the circuit court, is in reality a type of administrative hearing, the purpose of which is to grant prompt post-suspension review so as to comply with due process requirements. (Stice, 168 Ill. App. 3d at 664, 523 N.E.2d at 1055.) As such, the hearing is designed to be expeditious and, if the doctrine of collateral estoppel applied, then the desire for expeditious resolution would be defeated. Slice, 168 Ill. App. 3d at 664-65, 523 N.E.2d at 1055-56.

In People v. Filitti (1989), 190 Ill. App. 3d 884, 546 N.E.2d 1142, the second district noted that the exceptions to the doctrine of collateral estoppel include situations where there are differences in the quality or extensiveness of the procedures followed in the two courts (Filitti, 190 Ill. App. 3d at 886, 546 N.E.2d at 1144; Restatement (Second) of Judgments §28(3) (1982)), and although Slice did not mention this exception, it apparently relied on a similar rationale in deciding the issue (Filitti, 190 Ill. App. 3d at 886-87, 546 N.E.2d at 1144). The Filitti court followed the Slice decision and held that the doctrine of collateral estoppel did not apply to prohibit the State, which was contesting a motion to dismiss in a DUI case, from relitigating an issue (whether the arresting officer had reasonable ground to believe that the defendant had been driving under the influence of alcohol) that had already been decided at a summary suspension hearing.

Yet, in People v. Moore (1989), 184 Ill. App. 3d 102, 539 N.E.2d 1380, appeal allowed (1989), 127 Ill. 2d 632, 545 N.E.2d 123, the fifth district declined to follow the holding in Slice, ruling that the finding at a license suspension hearing of no probable cause to arrest a defendant for DUI precludes the State from relitigating that issue in a criminal prosecution for DUI, absent an appeal by the State from the court’s finding at the rescission hearing. The court reasoned that the function of a preliminary hearing in a criminal prosecution is to insure a prompt determination of whether the crime charged was committed and, if so, whether probable cause exists to believe that the defendant was the perpetrator. (Moore, 184 Ill. App. 3d at 106, 539 N.E.2d at 1382.) If the defendant files a pretrial motion to suppress evidence which is heard and granted at the preliminary hearing, that ruling is res judicata of the issues raised by the motion. (Moore, 184 Ill. App. 3d at 106, 539 N.E.2d at 1382.) Consequently, the court explained, there is no reason to deny the use of collateral estoppel in a criminal prosecution for DUI when lack of probable cause has been determined in a rescission hearing. Moore, 184 Ill. App. 3d at 106, 539 N.E.2d at 1383.

In Stice and in Filitti, the courts’ rulings were reached by analogizing a rescission hearing to an administrative hearing. In Moore, the court’s position was reached by analogizing a rescission hearing to a preliminary hearing in a criminal prosecution.

Defendant urges this court to adopt the holding in Moore, claiming that because the determination of whether the required observation period had been complied with was a question of ultimate fact (People v. Malloy (1979), 76 Ill. 2d 513, 395 N.E.2d 381; People v. Borchers (1977), 67 Ill. 2d 578, 367 N.E.2d 955), the doctrine of collateral estoppel should apply. We find the cases relied upon by defendant to be factually distinguishable from the case at bar, and we decline to follow the reasoning employed in Moore because we find the decisions in Stice and in Filitti to be persuasive.

A statutory summary suspension is an administrative function of the Secretary of State designed to protect persons who travel on the highways. (Koss v. Slater (1987), 116 Ill. 2d 389, 395, 507 N.E.2d 826, 829.) In Slater, the court determined that the issues involved in an implied-consent hearing were not so similar to the underlying charge of DUI that they became a part of the criminal process and that it is the decision on the merits of the DUI criminal proceeding that determines whether the defendant’s license should be suspended or revoked. Slater, 116 Ill. 2d at 395, 507 N.E.2d at 829.

Recognizing the difference in the nature of the proceedings, we hold that although the results of a breathalyzer test have been found inadmissible at a summary suspension hearing, the doctrine of collateral estoppel does not apply to preclude the State from litigating the validity of the breathalyzer test at the subsequent criminal trial of defendant for DUI.

In rejecting the holding of Moore, we note that the trial court there had determined at the rescission hearing that there was no probable cause to arrest the defendant for DUI. In the instant case, the trial court stated that the summary suspension was rescinded because the court was not satisfied that there was sufficient evidence that the officer who administered the breathalyzer test was certified at the time.

For the foregoing reasons, the order of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

McNAMARA and EGAN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH GROGAN, Defendant-Appellant.
    First District (6th Division)
    No. 1—88—0165
    Opinion filed April 20, 1990.

      Michael J. Pelletier and Marc Davidson, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, David Butzen, and Joseph Brent, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

Following a bench trial, defendant, Kenneth Grogan, was convicted of violation of bail bond and sentenced to one year’s probation and a $500 fine. Defendant raises three issues on appeal: (1) whether the indictment was fatally defective because it failed to allege that the violation of bail bond occurred within the period fixed by the statute of limitations; (2) whether defendant was denied effective assistance of counsel because his attorney failed to file a motion to dismiss the indictment on the ground that the charge was barred by the statute of limitations; and (3) whether defendant was proven guilty beyond a reasonable doubt that his failure to surrender was willful.

On October 15, 1987, defendant was indicted on one count of violation of bail bond pertaining to an offense defendant allegedly committed in 1981. The evidence established that on July 16, 1981, defendant was arrested and subsequently charged with theft. Evelyn Skowronek testified that on December 29, 1981, she was deputy court clerk working in Judge Michael Toomin’s courtroom in Evanston, Illinois, and she called defendant’s name to appear for his case. Defendant did not appear. The judge then issued a bond forfeiture and an arrest warrant for defendant dated December 29. Notice of the bond forfeiture was mailed to defendant. On January 29, 1982, judgment was entered on defendant’s bond forfeiture.

Dr. Amado Salas testified that on December 18, 1981, he treated defendant for injuries sustained in an automobile accident that occurred on December 16. Defendant complained of amnesia, but the doctor’s diagnosis was that defendant suffered from a contusion to the scalp and a brain concussion. Dr. Salas testified that a brain concussion could effect a person’s memory for a very brief time, usually a few hours or days. The doctor stated that an electroencephalogram and brain scan were performed on defendant and that the results revealed that defendant was normal as to any organic brain damage. No other tests were conducted to determine if defendant suffered from any memory loss. Defendant was hospitalized from December 18 to December 21. The doctor next saw defendant in his office on December 29, the day on which defendant was to appear in court. His medical record of the visit indicated that defendant was improving and that he was excused from court and work. The doctor could not recall how he came to know that defendant had a court date.

Defendant testified that he did not appear in court on December 29, 1981, because he was not aware of the court date, but that he “had an idea that [he] might have missed something.” He indicated that in December 1981, he was represented by an attorney, but that he did not know whether he ever called his attorney to ask when the next court date was scheduled. He further testified that in January 1982, he called the Des Plaines police department to see if he had missed a court date and that he was told that his record was clear. Defendant stated that he called the Des Plaines police department because he lived in that town, despite his knowledge that he was to appear in an Evanston court. According to defendant, he never received notice from the court of his bond forfeiture and that he was required to appear in court on January 29, 1982.

Robert DeMeo testified that in December 1981, he represented defendant. He stated that his standard procedure when clients failed to appear in court was to notify the client by telephone and, if he was unable to reach the client, he would then send the client a registered letter. Further, if a client was unable to appear in court, Mr. DeMeo would ask that the bond forfeiture warrant be continued. If he had a bond forfeiture and warrant entered and continued on one of his clients, Mr. DeMeo’s standard procedure would be to call the client and, if the client could not be reached, Mr. DeMeo would send the client a registered letter informing him of the next court date. Mr. DeMeo could not recall whether he did in fact attempt to contact defendant to notify him that on the date defendant failed to appear in court in December the court continued the matter to January.

We first consider defendant’s contention that defense counsel’s failure to raise the statute of limitations constituted ineffective assistance of counsel. Ineffective assistance of counsel is established by a showing of actual incompetence on the part of an attorney in carrying out his duties at trial which resulted in substantial prejudice to the defendant without which the outcome would probably have been different. (People v. Staton (1987), 154 Ill. App. 3d 230, 231, 507 N.E.2d 62.) In order to determine whether plaintiff was denied effective assistance of counsel, we must first determine the applicable statute of limitations for the offense involved. In the instant case, defendant committed the offense in 1982, but he was not indicted until 1987. Generally, the statute of limitations for violation of bail bond is three years. (Ill. Rev. Stat. 1987, ch. 38, par. 3 — 5.) However, the State contends that the three-year statute of limitations does not apply because the violation of bail bond is a continuing offense. Section 3 — 8 of the Criminal Code of 1961 provides that when an offense is based on a series of acts performed at different times, the period of limitation starts at the time when the last such act is committed. (Ill. Rev. Stat. 1987, ch. 38, par. 3 — 8.) The State contends that violation of bail bond should be characterized as a continuing offense so as to fall within the parameters of this statute. The State relies on Toussie v. United States (1970), 397 U.S. 112, 25 L. Ed. 2d 156, 90 S. Ct. 858, and People v. Miller (1987), 157 Ill. App. 3d 43, to support its claim. In Toussie the Supreme Court found that under Federal law a continuous offense results where the nature of the crime involved is such that Congress must assuredly have intended it to be a continuing one. (Toussie v. United States, 397 U.S. at 115, 25 L. Ed. 2d at 161, 90 S. Ct. at 860.) Applying that reasoning in People v. Miller, the court determined that, because an escaped prisoner poses a continuing threat to society, it can be inferred from the nature of that crime that the Illinois legislature, like Congress, must have intended it to be a continuing offense. (People v. Miller, 157 Ill. App. 3d at 46.) The State reasons that because the purpose of the violation of bail bond statute is to impose a duty on defendant to appear in court, each day that defendant fails to surrender must be thought of as a breach of that duty and that this breach continues until defendant appears in court. We do not adopt the State’s position. The offense of violation of bail bond, unlike the offense of escape of a convicted felon, is pot the kind of offense that poses a continuing threat to society, nor can it be defined as a series of related acts constituting a single cause of conduct, such as conspiracy or embezzlement. In the absence of sound rationale or pertinent case law, we cannot find that violation of bail bond constitutes a continuing offense.

Having determined that the appropriate statute of limitations was three years, we must determine whether counsel’s failure to raise the statute of limitations constituted ineffective assistance of counsel. Defense counsel’s failure to move to dismiss the indictment resulted in substantial prejudice to defendant culminating in his conviction for the offense. Since the statute of limitations has been raised for the first time on appeal, we are unable to determine whether circumstances existed which would toll the running of the statute. If such circumstances exist, the State should be given an opportunity to prove that the statute had been tolled. Consequently, defendant’s conviction must be reversed and the cause remanded for a new trial.

When an appellate court reverses a criminal conviction and remands the case for a new trial and defendant has contended that the evidence at trial was insufficient, the reviewing court must consider defendant’s claim or else risk subjecting defendant to double jeopardy. (People v. Taylor (1979), 76 Ill. 2d 289, 391 N.E.2d 366.) Consequently, we next consider whether defendant was proven guilty beyond a reasonable doubt that his failure to surrender was willful. Willfulness may be established by circumstantial evidence. (People v. Lynn (1980), 89 Ill. App. 3d 712, 714, 412 N.E.2d 15.) The evidence presented in the instant case was sufficient to establish beyond a reasonable doubt that defendant incurred a forfeiture of his bail bond and that he willfully failed to surrender himself to the court within 30 days following the date of forfeiture. Defendant was scheduled to appear in court on December 29, 1981. He failed to appear on this date, and the court ordered a bond forfeiture and issued a warrant for defendant’s arrest. Defendant failed to surrender himself within 30 days thereafter and, on January 29, 1982, judgment was entered on defendant’s bond forfeiture. Defendant testified that he “had an idea that [he] might have missed something.” Yet, even though he had an attorney who was representing him on the charge, defendant failed to contact him regarding a possible missed court date. Moreover, defendant’s physician testified that on the day defendant was to appear in court, he saw defendant in his office and the defendant’s medical record contained a notation from the doctor that defendant was excused from court and work. We conclude that this evidence was sufficient to find defendant guilty beyond a reasonable doubt of the offense of violation of bail bond.

Finally, we consider whether the indictment was fatally defective because it failed to allege that the offense was committed within the period fixed by statute. An indictment attacked, as here, for the first time on appeal is to be reviewed under a different standard than if challenged either in a pretrial or post-trial motion. (People v. Caliendo (1980), 84 Ill. App. 3d 987, 994, 405 N.E.2d 1133.) When attacked for the first time on appeal, an indictment is sufficient if it apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecutions arising out of the same conduct. (People v. Caliendo, 84 Ill. App. 3d at 994.) The indictment in question charged that defendant, on or about December 29, 1981, committed the offense of violation of bail bond in that he failed to appear in court, thereby forfeiting bail which was given defendant in connection with the offense of theft, and that defendant willfully failed to surrender himself within 30 days following the date of that forfeiture. Defendant does not argue that the indictment lacked necessary specificity, and we find that it sufficiently complied with the standard set out above.

For the reasons stated, the judgment of the circuit court is reversed and the cause is remanded to the circuit court for a new trial.

Judgment reversed and cause remanded.

EGAN and McNAMAEA, JJ., concur.


author: JUSTICE RAKOWSKI

text:
    BRENDA DOLATOWSKI, Plaintiff-Appellant, v. LIFE PRINTING AND PUBLISHING COMPANY, INC., et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—88—3269
    Opinion filed April 20, 1990.

      James A. Kamide & Associates, of River Grove, for appellant.
    Winston & Strawn, Daniel S. Hafter & Associates, Ltd., and W. Robert Blair, all of Chicago, and Dennis E. Both, of Cicero (Don H. Reuben, Timothy J. Rivelli, Jennifer G. Brown, Daniel S. Hefter, John R. Wylie, and Darcy L. Dulbis, of counsel), for appellees.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

Plaintiff appeals from an order entered by the circuit court of Cook County granting defendants’ motion to dismiss her amended complaint pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619). The issues presented on appeal are: (1) whether the fair reporting privilege protects Life Printing and Publishing Co., Inc. (Life Printing), and Vincent Iaccino from liability for a newspaper article which contained allegedly defamatory statements about plaintiff and (2) whether Emil Schullo is protected from liability by absolute privilege for allegedly defamatory statements he made concerning the plaintiff.

At around two o’clock on the morning of February 14, 1987, plaintiff was arrested by officers from the Cicero police department for “hitchhiking” pursuant to section 11 — 1006 of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 951/2, par. 11 — 1006). Four days later an article appeared in the Cicero Berwyn Stickney Forest View Life, a newspaper published by defendant Life Printing. The article was written by defendant Vincent Iaccino, an employee of the newspaper. According to Iaccino’s affidavit, he obtained information for the article from the police department “General Report Form,” which contained information concerning plaintiff’s arrest, and his interview with defendant Emil Schullo, the deputy police superintendent. The headline and text of the article stated:

“15 Ciceronians charged with soliciting rides
Fifteen Cicero women were arrested in separate incidents Saturday and Sunday in the 4800 block of 14th Street and charged with the unlawful solicitation of rides along a roadway.
Those arrested were Brenda Kay Dolatowski of 2822 South 50th Court; ***.
Bond for each was set at $1,000, and they were given a March 9 Cicero court date.
Said Emil Schullo, Cicero police deputy superintendent, ‘This is the largest number of Cicero women we have ever arrested for soliciting rides. To be honest, it is a bit of a shock. I am going to check my records for the past three years, and I would venture that in at least one of those years we did not have 15 Cicero women arrested for ride solicitation arrested [sic] for the entire year, let along [sic] two nights.
‘Yes, we are continuing our crackdown on prostitutes, as we have always done, and we will continue to do so,’ Schullo continued. ‘Pretty soon these ladies are going to get tired of paying their bonds and going to court and might move their business elsewhere.’ ”

On August 18, 1987, plaintiff filed a complaint against defendants Emil Schullo, the Town of Cicero and Life Printing, contending that they composed, wrote and printed or caused the composition, writing and printing of an article containing defamatory matter. Defendants joined in the filing of a motion to dismiss on December 1, 1987. An affidavit filed with the motion disclosed the identity of Vincent Iaccino as the author of the article. Plaintiff filed her amended complaint on March 4, 1988, adding Vincent Iaccino as a defendant, and defendants again jointly filed a motion to dismiss plaintiff’s amended complaint pursuant to section 2 — 619 of the Code of Civil Procedure. The trial court granted defendants’ motion, finding that the Town of Cicero was protected from liability by the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1987, ch. 85, par. 1 — 101 et seq.), that Emil Schullo was protected from liability by absolute privilege, and that both Life Printing and Vincent Iaccino were protected by the reporting privilege.

Plaintiff appeals the dismissal of Life Printing, Vincent Iaccino and Emil Schullo but does not appeal the dismissal of her claim against the Town of Cicero.

Plaintiff contends that the fair reporting privilege does not apply to the statements made concerning plaintiff in the newspaper story authorized by Vincent Iaccino and published by Life Printing. The newspaper article at issue includes information concerning plaintiff’s arrest for hitchhiking which was taken from the arrest record as well as the quoted statements of Deputy Police Superintendent Schullo regarding the large number of arrests for hitchhiking and his continued “crackdown” on prostitution. Plaintiff claims that Life Printing and Iaccino are not protected under the fair reporting privilege because the article creates a false connection between her arrest for hitchhiking and the crackdown on prostitution.

“[T]here is a special privilege that protects the news media from libel actions when it publishes information obtained from governmental and public proceedings that deal with matters of public concern.” (O’Donnell v. Field Enterprises, Inc. (1986), 145 Ill. App. 3d 1032, 1035, 491 N.E.2d 1212, 1214; Cox Broadcasting Corp. v. Cohn (1975), 420 U.S. 469, 495-96, 43 L. Ed. 2d 328, 349-50, 95 S. Ct. 1029, 1046-47.) This privilege was recognized by the Illinois Supreme Court in Lulay v. Peoria Journal-Star, Inc. (1966), 34 Ill. 2d 112, 114, 214 N.E.2d 746, 747-48. The Lulay court stated that “[T]he right to speak and print about such actions of government is well established; denial of this right would be a serious infringement of both State and Federal constitutional guarantees of free speech and press.” (Lulay, 34 Ill. 2d at 114, 214 N.E.2d at 747-48.) A news media account which is not a complete report of the proceedings remains under the aegis of the privilege if it is a fair abridgement of the proceedings. (O’Donnell, 145 Ill. App. 3d at 1036, 491 N.E.2d at 1216.) This determination is made by comparing the official reports with the news media account. If the gist or sting of the defamation in the official report is the same as the gist or sting in the news account, then the news item is a fair abridgement of the proceedings and is covered by the reporting privilege. O’Donnell, 145 Ill. App. 3d at 1037-38, 491 N.E.2d at 1216.

In the instant case, plaintiff claims that Iaccino and Life Printing are not protected by the fair reporting privilege because the newspaper article made a false connection between her arrest for hitchhiking and the crackdown on prostitution, and that there was nothing in the record to support this connection. Plaintiff cites Berkos v. National Broadcasting Co. (1987), 161 Ill. App. 3d 476, 515 N.E.2d 668, in support of her argument. In Berkos, the court held that the causal link between the plaintiff and the defamatory material was supplied by the defendant television station and not by any official records or proceedings. However, in this case any causal link between the plaintiff’s arrest for hitchhiking and the police department’s crackdown on prostitution was supplied by the deputy police superintendent and not by Iaccino and Life Printing. The newspaper article at issue consists of the names and addresses of 15 women who were arrested for hitchhiking on two consecutive nights and the quoted statements of Police Superintendent Schullo in two separate paragraphs. The first quoted paragraph contains Schullo’s comments regarding the number of women arrested for ride solicitation, and the second quoted paragraph contains his comments regarding the crackdown on prostitution. Although plaintiff argues that the connection between her arrest and the crackdown on prostitution was supplied by Iaccino and Life Printing, the contents of the article illustrate that any such connection arose from plaintiff’s arrest record and the quoted statements of Schullo. Furthermore, at the hearing on the motion to dismiss plaintiff’s amended complaint, the affidavits of Schullo and Iaccino were presented. Schullo’s affidavit stated that he believed the statements in the article attributed to him were true, and Iaccino’s affidavit stated that the statements in the article attributed to Schullo were obtained from an interview with the deputy police superintendent and were a direct quotation of what he said. The record contains no counter-affidavit contradicting these facts. Therefore, the facts must be taken as true.

Plaintiff also claims that the facts set forth in the affidavits contained conflicting inferences which required the trial court to submit to the jury the issue of whether the newspaper account was a fair and accurate summary of the information Iaccino obtained from the police. However, based on our discussion above, the issue of whether the newspaper account was a fair and accurate summary of information Iaccino obtained from the police was determined by the contents of the article as well as the affidavits of Iaccino and Schullo. Although plaintiff presented her own as well as several other affidavits, the statements in plaintiff’s affidavits do not contain conflicting inferences, as plaintiff alleges, as to whether the newspaper article was an accurate report of Schullo’s statements. We also conclude, contrary to plaintiff’s argument, that any defamatory gist or sting in the article is attributable to Schullo’s statements, which were accurately reported by Iaccino. (O’Donnell, 145 Ill. App. 3d at 1037-38, 491 N.E.2d at 1216.) For these reasons, we conclude that the newspaper article authored by Iaccino and published by Life Printing is covered by the common law fair report privilege, and the trial court’s dismissal of plaintiff’s cause of action against these defendants was proper.

Plaintiff next contends that Schullo is not protected from liability by absolute privilege for the defamatory statements he made concerning the plaintiff. At the time that Schullo made the statements quoted in the newspaper article, he was the deputy police superintendent of Cicero. Courts have held that an official of the executive branch of the Federal, State or local government cannot be held liable for statements made within the scope of his official duties. (Barr v. Matteo (1959), 360 U.S. 564, 3 L. Ed. 2d 1434, 79 S. Ct. 1335; Blair v. Walker (1976), 64 Ill. 2d 1, 349 N.E.2d 385; Morton v. Hartigan (1986), 145 Ill. App. 3d 417, 495 N.E.2d 1159.) In Blair, the court statéd the policy concerns mandating such a privilege for government officials:

“This restriction is justified by the countervailing policy that officials of government should be free to exercise their duties without fear of potential civil liability.” Blair, 64 Ill. 2d at 6, 349 N.E.2d at 387, citing Matteo, 360 U.S. 564, 3 L. Ed. 2d 1434, 79 S. Ct. 1335.

Plaintiff raises two arguments, both without merit, in support of her contention that Schullo is not protected from liability by absolute privilege for statements he made in an interview with the newspaper reporter. Plaintiff first claims that Schullo was not acting in an official capacity and the statements were not within the scope of his responsibilities. However, Schullo’s affidavit stated that his “duties as Deputy Policy [sic] Superintendent include overseeing all anti-vice operations of the Cicero Police Department *** and communicating, on behalf of the department, with the public and the press with respect to Department’s efforts in this area.” Although the affidavit of Dallas Keller contradicted Schullo’s affidavit regarding Schullo’s responsibilities, Keller’s statements related to the policies and procedures of the Village of Maywood, rather than the Town of Cicero. Therefore, it was not relevant to Schullo’s responsibilities as deputy police superintendent of Cicero. Plaintiff also contends that Schullo’s statements were not covered by absolute privilege because they were oral statements made during an interview with Iaccino rather than during an official press release. However, plaintiff’s argument is unsupported by authority and contradicted by the holding in Morton (145 Ill. App. 3d 417, 495 N.E.2d 1159), that letters as well as oral statements of the plaintiff’s superiors were protected by absolute privilege. “[T]he only consideration is whether the statements made were reasonably related to one’s duties.” Morton, 145 Ill. App. 3d at 426, 495 N.E.2d at 1165.

For these reasons, we conclude that Schullo was protected from liability by absolute privilege regarding the statements he made in the interview with Iaccino, and the dismissal of plaintiff’s cause of action against Schullo was proper.

Accordingly, the order of the circuit court dismissing plaintiff’s amended complaint is affirmed.

Judgment affirmed.

LaPORTA, P.J., and EGAN, J., concur.


author: JUSTICE McNAMARA

text:
    ARTHUR YOUNG AND COMPANY et al., Plaintiffs-Appellants and Cross-Appellees, v. CHRISTOPHER D. BREMER et al., Defendants-Appellees and Cross-Appellants.
    First District (6th Division)
    No. 1—89—0748
    Opinion filed April 20, 1990.

      McCullough, Campbell & Lane, of Chicago, and Arthur Young & Company, of New York, New York (Carl D. Liggio, Dennis L. Frostic, Michael C. Cook, and Steven R. Smith, of counsel), for appellants.
    Grippo & Elden, of Chicago (Gary M. Elden, John R. McCambridge, and Katherine R. Rakowsky, of counsel), for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

This appeal arises out of an action for declaratory and injunctive relief and for damages, brought in the circuit court of Cook County by plaintiffs, Arthur Young & Company and Arthur Young United States (collectively plaintiff) against 12 former employees. The trial court dismissed the action against eight of the defendants, Gary R. Kerslake, Phillip J. Mihok, Raymond B. Jones, James D. Read, Randall E. Smith, Alvin Larry Thomas, William K. Whaling and Nicholas H. Yoo, for lack of personal jurisdiction, and dismissed the action against the remaining four defendants, Christopher B. Bremer, David W. Glogowski, William R. Muns and John L. Knapp, under section 2— 619(a)(3) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(3)). Bremer, Glogowski, Knapp and Muns additionally moved to dismiss on forum non conveniens grounds, but this motion was denied. Plaintiff appeals, contending that the trial court’s orders of dismissal were improper. Bremer, Knapp, Glogowski and Muns cross-appeal, alleging that the trial court’s denial of their motion to dismiss on forum non conveniens grounds was error.

Defendants are all former employees of plaintiff, a national partnership headquartered in New York. Upon accepting employment with plaintiff, some of the defendants signed an employment agreement with plaintiff. These agreements contained a restrictive covenant purporting to bar them, for a period of two years after their termination, from

“directly or indirectly soliciting] or providing], without the consent of the firm, any professional services such as those provided by the firm for anyone who was a client of the firm anytime during the 12 months prior to your leaving the firm and for whom you provided any service as an employee of the firm during the prior five years.”

During their employment, each defendant provided management consulting services to one or more of plaintiff’s clients. While employed by plaintiff, defendants worked almost exclusively at their clients’ places of business, which for the most part were outside of Illinois. Each defendant was assigned to one of plaintiff’s operating groups known as Midwest Management Consulting Group (MMCG). MMCG was based in Illinois. During their employment, defendants’ residences were as follows:

Smith California
Whaling California
Jones Texas
Read Texas
Thomas Texas
Muns Texas
Mihok Arizona
Kerslake Wisconsin
Yoo Michigan
Bremer Illinois
Glogowski Illinois
Knapp Illinois

Most of the defendants spent a significant portion of their time working on a project in California for Northrop Corporation’s B-2 Division. Northrop is an aerospace and defense contractor which operates through eight independent divisions. The B-2 Division is headquartered in Pico Rivera, California. Defendants’ work for Northrop involved an information systems consulting project.

Each of the defendants resigned from plaintiff between May and December 1988. After defendants resigned, plaintiff assigned Richard Van Kirk, a partner in its Los Angeles office, to supervise the completion of the B-2 project. Plaintiff initially insisted that Northrop could not ask any defendant to continue working on the B-2 project after he left plaintiff’s employ. Northrop B-2 employees, however, advised plaintiff that it was imperative to keep the team intact in order to insure success. Plaintiff, through its Los Angeles office, entered into subcontracting arrangements with Read, Thomas, Whaling and Jones. The subcontracting arrangements expired on December 31, 1988.

Each of the defendants began to work for Technology Solutions Company (TSC), a Chicago-based firm. In October 1988, TSC responded to Northrop Electronics Division’s request for proposals for certain management consulting services by submitting a bid. Plaintiff, through its Los Angeles office, also bid on the Northrop project. In late December, Northrop awarded the contract to TSC. All Northrop employees having knowledge of the bidding process, contract negotiations and the work performed to date are located in California.

On January 4, 1989, defendants filed a suit against plaintiff in California State court. The complaint was served on plaintiff later that day. Defendants sought a declaratory judgment that plaintiff’s restrictive covenants could not be enforced to stop them from working in California for Northrop. Plaintiff answered the complaint and filed a counterclaim. A discovery supervision and scheduling order was entered, and defendants have deposed three witnesses pursuant to it. Subsequently, defendants and TSC filed an amended complaint. Plaintiff has moved to dismiss the amended complaint in favor of New York litigation which it filed against TSC.

Also on January 4, 1989, plaintiff filed a suit against Muns in Illinois. Plaintiff did not serve the complaint. Rather, after receiving notice of the California suit, plaintiff filed its first amended complaint, naming as defendants the 12 California plaintiffs. Plaintiff’s action seeks an injunction preventing defendants from working in California for Northrop. Plaintiff subsequently filed second, third and fourth amended complaints, each adding new claims which either modified or deleted old ones.

Plaintiff appeals the trial court’s orders of dismissal. We first will address the propriety of the order dismissing 8 of the 12 defendants for lack of personal jurisdiction.

. Plaintiff contends that each of the eight defendants who raised jurisdictional objections engaged in significant activity in Illinois while under the employ of plaintiff and, subsequently, while under the employ of TSC. Plaintiff maintains that an analysis of the contracts between Illinois and each of these defendants discloses conduct that is more than sufficient to subject the defendants to personal jurisdiction in Illinois under the long-arm statute. Ill. Rev. Stat. 1987, ch. 110, par. 2 — 209.

The Illinois long-arm statute provides in relevant part as follows:

“(a) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his or her personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any such acts:
(1) The transaction of any business within this State;
(2) The commission of a tortious act within this State.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 209(a).)

The long-arm statute is applicable only when the cause of action arises from the activity which serves as the basis of jurisdiction. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 209(c).) The purpose of the Illinois long-arm statute is to assert jurisdiction over nonresidents to the extent permitted by the due process clause. (Green v. Advance Ross Electronics Corf. (1981), 86 Ill. 2d 431, 427 N.E.2d 1203.) Thus, the reach of the long-arm statute may lie within or may touch, but cannot extend outside, the fence marked out by due process requirements as defined in International Shoe Co. v. Washington (1945), 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154. If a party’s actions are not embraced by the long-arm statute, application of the tests the Supreme Court has fashioned to determine whether the assertion of jurisdiction by a State over a nonresident is prohibited by due process safeguards is unnecessary. (Green v. Advance Ross Electronics Corf. (1981), 86 Ill. 2d 431, 427 N.E.2d 1023) Accordingly, our analysis first will consider whether each defendant falls within the ambit of the long-arm statute.

Initially, we note that when a defendant contests personal jurisdiction, the party asserting it has the burden of demonstrating a prima facie case that jurisdiction exists under the long-arm statute. (People v. Parsons Co. (1984), 122 Ill. App. 3d 590, 461 N.E.2d 658.) Here, plaintiff alleges that each defendant either transacted business or committed tortious acts in Illinois within the meaning of the long-arm statute.

Generally, “transaction of business” within the meaning of the long-arm statute means business in the commercial sense. (Carlson v. Carlson (1986), 147 Ill. App. 3d 610, 498 N.E.2d 708.) Thus, plaintiff’s claim must be one which lies in the wake of commercial activities by which defendants submitted to the jurisdiction of Illinois courts. (See, e.g., Financial Management Services, Inc. v. Sibilsky & Sibilsky, Inc. (1985), 130 Ill. App. 3d 826, 474 N.E.2d 1297; Loggans v. Jewish Community Center (1983), 113 Ill. App. 3d 549, 447 N.E.2d 919.) Further, plaintiff must allege that some definite act by defendants occurred in Illinois. See Mott Corp. v. Montanya (1986), 141 Ill. App. 3d 943, 491 N.E.2d 98.

A defendant transacts business in Illinois when substantial performance of contractual duties is to be rendered in Illinois or when a defendant invokes the benefits and protections of Illinois law in the contractual relationship. (Carlson v. Carlson (1986), 147 Ill. App. 3d 610, 498 N.E.2d 708; First National Bank v. Boelcskevy (1984), 126 Ill. App. 3d 271, 466 N.E.2d 1182.) When a contract which is the basis of the plaintiff’s claim was entered into in Illinois, the defendant’s Illinois activities can suffice to sustain jurisdiction. (Financial Management Services, Inc. v. Sibilsky & Sibilsky, Inc. (1985), 130 Ill. App. 3d 826, 474 N.E.2d 1297.) Nonetheless, the determination of whether a defendant sufficiently transacted business in Illinois requires consideration of several factors, including who initiated the transaction; where the contract was entered into; and where the performance of the contract was to take place. While none of these factors has been held to be controlling, each of them has been held to be significant. Gordon v. Tow (1986), 148 Ill. App. 3d 275, 498 N.E.2d 718.

In order to sustain jurisdiction based on the commission of a tortious act in Illinois, the plaintiff must allege that the defendant performed an act or omission which caused an injury in Illinois and that the act or omission was tortious in nature. (Green v. Advance Ross Electronics Corp. (1981), 86 Ill. 2d 431, 427 N.E.2d 1203.) Alternatively, the requirements of the tortious act provision of the long-arm statute may be met if plaintiff demonstrates an economic injury in Illinois coupled with activity indicating an intent to affect Illinois interests. (Club Assistance Program, Inc. v. Zukerman (1984), 594 F. Supp. 341.) For purposes of the tort provision of the long-arm statute, the place of the wrong is the place where the last event necessary to hold the actor liable takes place. Gray v. American Radiator & Standard Sanitary Corp. (1961), 22 Ill. 2d 432, 176 N.E.2d 761.

With these general principles in mind, we find that the trial court properly dismissed the complaints. We will, however, examine the activities of each defendant in order to demonstrate that these activities do not permit jurisdiction to lie against him in Illinois.

Plaintiff alleges that defendant William Whaling committed tortious acts in Illinois by aiding and abetting Woodrow Chamberlain, a former partner with plaintiff, in violation of his obligations under a partnership agreement. (In its fourth amended complaint, plaintiff also alleged that Whaling had transacted business in Illinois. The trial court found that Whaling had not transacted business in Illinois, and plaintiff did not contest this finding on appeal.) Plaintiff argues that various telephone calls which Whaling made to Chamberlain in Illinois support “tortious act” jurisdiction.

Whaling testified that he contacted Chamberlain in Illinois by telephone regarding possible employment with TSC. The two men did not discuss salary or job responsibilities. Plaintiff maintains that this discussion of job opportunities with TSC played an integral role in the “aiding and abetting” of Chamberlain’s violations of his obligations under his partnership agreement with plaintiff. Even assuming “aiding and abetting” is an independent cause .of action grounded in tort and assuming Chamberlain’s actions violated his partnership agreement with plaintiff, we nonetheless do not view an inquiry by Whaling regarding a job as encouragement to Chamberlain to breach a preexisting employment agreement. Our review of the record reveals no indication that Whaling attempted to aid or abet Chamberlain in violating any duty owed plaintiff. Thus, no contact which Whaling had with Illinois is related to the alleged tortious conduct. Accordingly, we find no basis for jurisdiction based on the commission of a tortious act in Illinois.

As to Randall Smith, plaintiff alleged jurisdiction based on transaction of business in Illinois and on commission of a tortious act in Illinois, but on appeal, contends only that jurisdiction based on the commission of a tortious act applies. Specifically, plaintiff contends that Smith engaged in activities in Illinois which resulted in tortious interference with prospective business advantage and in aiding and abetting.

Smith’s employment with plaintiff was the result of negotiations which took place in plaintiff’s Los Angeles office. Except for one three-day engagement in Illinois, Smith worked in California on various Northrop projects the entire year he was employed by plaintiff. Plaintiff maintains, however, that Smith’s continued employment on the Northrop project, coupled with phone calls which Smith made to Chamberlain in Illinois, amount to tortious interference with prospective business opportunity.

An action for interference with prospective economic advantage requires existence of a valid business relationship or expectancy, knowledge of relationship or expectancy on the part of the interferor, intentional interference inducing or causing a breach or termination of the relationship or expectancy, and resultant damage to the party whose relationship or expectancy has been disrupted. (Galinski v. Kessler (1985), 134 Ill. App. 3d 602, 480 N.E.2d 1176.) We do not believe that any actions on the part of Smith in Illinois give rise to interference with prospective economic advantage. As the trial court noted, “Here, the statement they [Smith] made in Illinois is not the tort. The tort is going to work for these people [Northrop] *** [a]nd that didn’t take place in Illinois.” We agree with the trial court’s analysis. The tortious act of which plaintiff complains occurred in California, not in Illinois.

Plaintiff nonetheless suggests that it need not meet the literal requirement of the statute if it can satisfy an alternative, two-pronged test: economic injury in Illinois and activity indicating an intent to affect Illinois interests. (See Club Assistance Program, Inc. v. Zukerman (1984), 594 E Supp. 341.) Plaintiff, however, fails to meet this alternative, two-pronged test.

First, plaintiff is a national partnership with headquarters in New York. MMCG is a profit center of plaintiff, but is not a separate legal entity. Thus, MMCG did not, and indeed cannot, suffer any legally cognizable injury. Significantly, plaintiff brought suit in the name of the partnership, not in the name of its midwest profit center, MMCG. Any economic injury suffered by plaintiff occurred in New York.

Additionally, plaintiff fails to meet the requirements of the second prong of the Club Assistance test. That is, plaintiff failed to demonstrate an intent on the part of Smith to affect Illinois interests. Although plaintiff accurately notes that Smith contacted Chamberlain by telephone several times in Illinois, this fact, absent more, cannot operate to confer jurisdiction in Illinois. Smith was unable to recall the substance of several of the phone calls which he had with Chamberlain. He testified, however, that his conversations with Chamberlain prior to Smith’s leaving plaintiff were regarding his general unhappiness working for plaintiff. Subsequent to leaving plaintiff’s employ, Smith’s conversations with Chamberlain focused on his employment with TSC, but did not include any discussion of Smith’s clients. These conversations can in no way be construed as designed to affect plaintiff’s Illinois interests. Rather, these discussions can be construed only as mere contacts and not the tortious acts necessary to support plaintiff’s claims of conversion and contractual interference. See Turnock v. Cope (1987), 816 F.2d 332.

In our view, plaintiff has failed to establish tortious acts sufficient to permit Illinois to exercise jurisdiction over Smith based on tortious interference with prospective business advantage. Similarly, plaintiff has failed to establish that Smith’s phone calls to Chamberlain from California in any way aided and abetted Chamberlain in breaching his agreement with plaintiff. Our review of the record reveals no indication that these conversations ever focused on Chamberlain’s position with plaintiff. Thus plaintiff cannot satisfy its burden of proving personal jurisdiction on either of its tort theories against Smith.

Plaintiff contends that Illinois has jurisdiction over Raymond Jones based on transaction of business in Illinois and on the commission of a tortious act in Illinois.

Plaintiff contacted Jones in Texas concerning possible employment. Plaintiff again contacted Jones in Texas to set up a meeting in Los Angeles to further discuss possible employment. At that meeting, the parties discussed a “broad range” of potential salary figures. Plaintiff then called Jones in Texas and asked him to come to Chicago for interviews. Jones agreed to come for the day, and plaintiff reimbursed him for all expenses of this trip. In Chicago, Jones and plaintiff discussed salary figures, but did not reach an agreement. When Jones left that day, Plaintiff had not yet extended him an offer of employment. Subsequently, Jones received a written offer and contract from plaintiff at his home in Texas. The contract included an annual salary figure which was less than Jones had sought during his interview. Jones signed the contract in Texas, conditioning his acceptance on not being required to move his residence from Texas. While employed by plaintiff, Jones worked exclusively in California. Since resigning from plaintiff, Jones has made numerous business calls from California to TSC in Illinois.

Jones’ activities, insofar as they relate to the negotiation of his employment contract with plaintiff, do not rise to the level of activity needed to permit Illinois to exercise jurisdiction over him. The substance of the transaction is centered outside of Illinois, and the mere fact that he negotiated a portion of his contract in Illinois does not alter the fact that the contract was most directly related to another forum.

This court stated in United Air Lines, Inc. v. Conductron Corp. (1979), 69 Ill. App. 3d 847, 387 N.E.2d 1272, that several factors, including the nature of the business transaction, the applicability of Illinois law, the contemplation of the parties, and the availability of witnesses, all should be considered when determining where jurisdiction properly lies. If jurisdiction is to lie in Illinois, there must be a substantial connection between Illinois and the act or transaction that gives rise to jurisdiction. (United Air Lines, Inc. v. Conductron Corp. (1979), 69 Ill. App. 3d 847, 387 N.E.2d 1272. We find no such substantial connection here.

It is true that a single act may be sufficient to find that business was transacted within this State. However, that single act must be the act which forms the basis of plaintiff’s claim. (Financial Management Services, Inc. v. Sibilisky & Sibilisky, Inc. (1985), 130 Ill. App. 3d 826, 474 N.E.2d 1297. Moreover, the quality of the act must be substantial, “most intimately connected” with the controversy, and not de minimis. United Air Lines, Inc. v. Conductron Corp. (1979), 69 Ill. App. 3d 847, 387 N.E.2d 1272; Mandalay Associates Limited Partnership v. Hoffman (1986), 141 Ill. App. 3d 891, 491 N.E.2d 39; First National Bank v. Boelcskevy (1984), 126 Ill. App. 3d 271, 466 N.E.2d 1182.

Here, Jones’ act in Illinois was de minimis. His salary negotiations do not form any part of the basis of plaintiff’s claim, the restrictive covenant. As the trial court noted, there is no evidence in the record as to where Jones’ restrictive covenant was negotiated. Moreover, Jones’ salary negotiations with plaintiff in Chicago were neither extensive nor substantial. In fact, Illinois was neither the exclusive nor the conclusive site of Jones’ salary negotiations. Finally, Jones’ salary negotiations do not evidence an intent on his part to purposely avail himself of the privilege of conducting activities within Illinois. (See Gordon v. Tow (1986), 148 Ill. App. 3d 275, 498 N.E.2d 718.) Rather, Jones’ salary and other negotiations evidence an intent to avail himself of the privilege of conducting activities in California.

We find that the trial court properly found it did not have jurisdiction over Jones based on transaction of business. Jones’ activities in Illinois were minimal and were not related to the cause of action which plaintiff asserts against him.

Nor did the trial court have jurisdiction over Jones based on the commission of a tortious act in Illinois. There is no evidence in the record which would suggest that Jones’ telephone conversations with Chamberlain were regarding any design on the part of Jones and Chamberlain to interfere with plaintiff’s preexisting or prospective business relationship with Northrop. And, although Jones’ continued work on the Northrop project while employed by TSC may amount to interference with prospective business advantage, that work takes place in California, and not in Illinois. Accordingly, this actual work on the Northrop project cannot be considered for purposes of analyzing the jurisdictional issue. Moreover, Jones testified that since beginning employment with TSC, he has made several telephone calls into Illinois, but that he cannot recall the substance of those telephone calls. Thus, those calls cannot serve as a jurisdictional basis for haling Jones into the Illinois courts, and we find that there is no proper basis for asserting jurisdiction over Jones.

Similarly, we find that there is no proper basis for asserting jurisdiction over Larry Thomas. Plaintiff alleges that Thomas transacted business in Illinois and that Thomas committed a tortious act in Illinois. Plaintiff maintains that these actions are sufficient to permit the Illinois courts to exercise jurisdiction over Thomas.

Thomas is a resident of Texas. Plaintiff contacted Thomas in Texas concerning possible employment, specifically in regard to the Northrop project. In that initial conversation, plaintiff and Thomas discussed salary range and various other aspects of the position. Plaintiff contacted Thomas approximately two weeks later and asked him to come to Chicago for interviews. Thomas came to Chicago for one afternoon of interviews. At that time, Thomas informed plaintiff that he would be unwilling to relocate to Chicago. Chamberlain contacted Thomas in Texas and offered Thomas a job with plaintiff. Salary was negotiated and agreed upon during this telephone call, and at the end of the conversation, Thomas accepted the offer. A written offer subsequently was sent to Thomas in Texas. Thomas signed the offer in Texas. Except for a one-day visit to Chicago to complete certain forms and to process in as an employee, Thomas spent his entire period of employment with plaintiff working in California on the Northrop project.

Plaintiff alleges that Thomas’ contacts with Illinois are sufficient to establish jurisdiction in Illinois under a transaction of business theory. A review of the record, however, reveals no evidence that any contact which Thomas had with Illinois was in any way related to the restrictive covenant which is the subject of this suit. There is no indication that the pertinent parts of Thomas’ employment contract were negotiated in Illinois. Significantly, the only evidence of any negotiations is that of the salary negotiation which occurred during Chamberlain’s telephone call to Thomas. (See City of East Moline v. Bracke, Hayes & Miller (1985), 133 Ill. App. 3d 136, 478 N.E.2d 637 (unilateral acts of the plaintiff may not confer jurisdiction over the defendant to the State).) Moreover, there is no showing that the restrictive covenant was negotiated during Thomas’ interview in Chicago, nor that it was discussed during his processing. Further, Thomas recalled no telephone conversations with anybody in Illinois regarding the Northrop project either while he was employed by plaintiff or by TSC. He testified that he discussed Northrop with other defendants, but only in response to a query regarding what project he was working on. He recalled no discussion of TSC taking over the Northrop work from plaintiff. In view of the fact that Thomas’ contacts with Illinois were in no way related to the restrictive covenant at issue here, we find that the trial court correctly found that it did not have jurisdiction over Thomas based on the transaction of business.

Plaintiff additionally alleges that Illinois can properly exercise jurisdiction over Thomas-based on his commission of a tort in Illinois. Specifically, plaintiff alleges that Thomas committed the tort of fraudulent inducement in Illinois by telling Chamberlain about his subcontract agreement. Further, plaintiff alleges that Thomas’ telephone calls into Illinois constitute tortious interference with prospective business relations.

Thomas did not engage in fraudulent inducement in Illinois when he told Chamberlain about his subcontract agreement. In order to establish the tort of fraud, a plaintiff must allege that the wrongdoer knowingly misrepresented a material fact for the purpose of inducing the plaintiff to act, that the plaintiff reasonably believed the misrepresentation to be true, and that the plaintiff detrimentally relied upon the misrepresentation. (Northwest Federal Savings & Loan Association v. Weisberg (1981), 97 Ill. App. 3d 470, 422 N.E.2d 1101.) Here, plaintiff alleges that it was fraudulently induced into entering the subcontract agreement due to Thomas’ undisclosed intention of diverting to TSC the monies received under the subcontract agreement.

Thomas did discuss the terms of the subcontract with Chamberlain, but this conversation occurred after he signed the subcontract agreement. Thomas specifically stated that he did not remember talking to Chamberlain before he put his signature on the subcontract agreement. Moreover, Thomas at no time indicated that any conversation which he had with Chamberlain was in regard to Thomas’ use of the monies earned under the subcontract agreement. In light of this testimony, we cannot find a basis to infer that in any Illinois contact, Thomas knowingly failed to disclose his intention to sign over to TSC the payments he received under the subcontract with the purpose of inducing plaintiff to act. Further, we find no basis to infer that plaintiff relied on Thomas’ failure to disclose this intention as evidence of his intent not to turn the monies over to TSC. That is, there is no indication that plaintiff sought to prohibit payments by Thomas to TSC at the time it entered into the subcontract with Thomas. (In contrast, when plaintiff renewed other subcontract agreements, it inserted a provision prohibiting any direct or indirect payment to TSC of amounts received under the subcontract.) Finally, any reliance which plaintiff may have placed on Thomas’ omission was unreasonable in light of the surrounding circumstances. That is, plaintiff was aware that Thomas was employed by TSC and thus should have been on notice that Thomas and TSC likely had a collateral agreement. (See Brainerd v. Balish (1987), 164 Ill. App. 3d 836, 518 N.E.2d 317 (fraud count could be disregarded for jurisdictional purposes when it was clear that reliance was unreasonable).) Most significantly, we note that plaintiff asserts only one connection with Illinois with regard to its fraudulent inducement count, the telephone call in which Thomas informed Chamberlain of the terms of his already executed subcontract. In view of the foregoing analysis, this telephone call alone cannot establish contacts sufficient to permit Illinois to exercise jurisdiction over Thomas on a fraudulent inducement theory.

Similarly, we find that Thomas’ telephone calls to Chamberlain do not establish contacts sufficient to confer jurisdiction to Illinois on a tortious interference with prospective business advantage theory. Thomas stated that he never discussed in Illinois the possibility of TSC taking over the Northrop work from plaintiff. Thus, any tort concerning interference with plaintiff’s business did not take place in this forum and, accordingly, cannot serve as a basis of jurisdiction.

Plaintiff next contends that Illinois properly may exercise jurisdiction over defendant Nicholas Yoo based on both the transaction of business and the commission of a tortious act.

Yoo is a resident of Michigan. Yoo contacted plaintiff at its Detroit office regarding possible employment. His interview took place in Detroit. Plaintiff extended its offer of employment by letter to Yoo in Michigan, and Yoo accepted by telephone. Yoo never signed an employment contract. Yoo initially reported to plaintiff’s MMCG in Detroit. After consolidation of plaintiff’s Chicago and Detroit offices, Yoo reported to the Chicago office, but retained his office and secretary in Detroit. Yoo worked on a prospective client in Illinois for two months and spent the balance of his employment with plaintiff in California working on the Northrop project. Shortly before he resigned from plaintiff, Yoo contacted Chamberlain in Illinois and asked for a job with TSC. Yoo and Chamberlain did not discuss the specifics of the position, and at the time Yoo resigned from plaintiff, he did not know what he would be doing at TSC. Yoo acknowledged that he made several telephone calls to Chamberlain in Illinois, but stated that Northrop was not discussed.

With regard to plaintiff’s transaction of business theory, we note that although it is true that Yoo spent two months in Illinois during his 30-month period of employment with plaintiff, the work which Yoo did during this time period is in no way related to the cause of action under consideration. (See Carlson v. Carlson (1986), 147 Ill. App. 3d 610, 498 N.E.2d 708 (to constitute the transaction of business, the activity must be of a commercial nature and the cause of action must be directly connected with that activity).) That is, this suit concerns the alleged breach of a restrictive covenant, and plaintiff has failed to demonstrate that it, or any other contract term, was negotiated in Illinois or was otherwise related to Illinois. Moreover, the fact remains that the overwhelming majority of Yoo’s work for plaintiff was conducted in California on the Northrop project. Yoo’s other work for plaintiff is not the subject of this suit, and we decline to consider it the type of substantial connection required to find an Illinois transaction.

The tortious conduct which plaintiff attributes to Yoo consists of telephone conversations which Yoo had with Chamberlain and which plaintiff maintains were designed to aid and abet Chamberlain’s breach of his partnership agreement with plaintiff. A review of Yoo’s testimony reveals no substantiation for plaintiff’s claim. Yoo did contact Chamberlain several times in Illinois; nonetheless, there is no indication that during these conversations Yoo and Chamberlain discussed Chamberlain’s agreement with plaintiff, or that Yoo attempted to assist Chamberlain in breaking that agreement. The trial court properly determined that it did not have jurisdiction over Yoo.

Plaintiff next claims that Illinois has jurisdiction over James Read based on four theories: transaction of business, tortious interference with prospective business advantage, fraudulent inducement, and aiding and abetting. We find that none of these theories operate to permit Illinois to exercise jurisdiction over Read.

Read is a resident of Texas. Read contacted plaintiff regarding possible employment, and three to four months after this initial contact, plaintiff’s Los Angeles office extended him an offer. (Read had interviewed for the position in Chicago. This interview resulted in an offer which was rescinded by plaintiff prior to Read’s acceptance.) Read telephoned plaintiff’s Los Angeles office to accept. Except for a three-day project in Illinois, Read spent the entire 18 months of his employment with plaintiff working outside Illinois.

Read had but two contacts with Illinois. The first was a one-day interview which led to an offer that subsequently was rescinded. (See Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190, 429 N.E.2d 847 (negotiations that led to offer which was rejected did not establish jurisdiction for purposes of claim arising out of later offer that was accepted).) The second contact was a three-day work project on a client unrelated to Northrop. These two brief contacts with Illinois, unrelated to the cause of action under our consideration, simply do not rise to the level of activity necessary to establish the transaction of business and, accordingly, cannot serve to confer jurisdiction to the Illinois courts.

Moreover, we find that Read did not commit a tort in Illinois and thus cannot be haled into the Illinois courts under the tortious conduct provision of the long-arm statute. We find no basis for plaintiff’s assertion that Read’s telephone conversations with Chamberlain were related to TSC taking over the Northrop project from plaintiff. Thus, plaintiff has failed to demonstrate that Read engaged in tortious interference with prospective business advantage in Illinois. Moreover, there is no indication that any of these conversations was designed to encourage Chamberlain to breach his partnership agreement, or to facilitate that breach in any way. Thus, plaintiff has failed to demonstrate that Read aided and abetted Chamberlain. Finally, there is no indication that any of these conversations was in regard to an attempt to fraudulently induce plaintiff into entering into the subcontract agreements. Specifically, there is no indication that Read purposefully failed to disclose his intention of signing over to TSC all payments which he received under the subcontracts. As noted previously, the record does not reveal any attempt on plaintiff’s part to prohibit these payments over to TSC. Thus, plaintiff has failed to demonstrate that any action by Read in Illinois fraudulently induced plaintiff to enter into the subcontract agreements.

Plaintiff asserts that Illinois properly may exercise jurisdiction over Philip J. Mihok based on the transaction of business in Illinois and on the commission of tortious conduct in Illinois.

Mihok is a resident of Arizona. He contacted Chamberlain from Arizona concerning employment with plaintiff. Mihok interviewed in Chicago with Chamberlain, and an employment offer was sent to him in Arizona. Mihok accepted the offer by letter to Chamberlain from Arizona. He was processed at the Chicago office and was given a draft employment agreement, which contained a restrictive covenant that Mihok modified. Mihok recalled having more than one discussion with Chamberlain regarding the restrictive covenant provision of the proposed employment agreement. He stated that these discussions were face to face and all took place in California. Chamberlain advised Mihok either in Arizona or California that plaintiff rejected Mihok’s modifications. Plaintiff subsequently sent an employment contract to Mihok in Arizona, where he signed it. While employed by plaintiff, Mihok worked on the Northrop project in California except for a one-day assignment in Illinois.

Although Mihok discussed compensation in Chicago, the negotiations over his restrictive covenant, the contract term at issue in this litigation, all took place outside Illinois. Further, Mihok’s contacts with Illinois were not substantial, and he performed his contract primarily in California. Thus, he cannot be said to have transacted business in Illinois in connection with this lawsuit. Additionally, Mihok cannot be said to have committed a tort in Illinois. Mihok stated that he did have several conversations with Chamberlain, but at no time recalled discussing Northrop or discussing Chamberlain’s employment with plaintiff. Thus, plaintiff has failed to demonstrate that any contact which Mihok had with Illinois was related to aiding and abetting Chamberlain to breach his partnership agreement with plaintiff.

Plaintiff lastly contends Illinois has jurisdiction over Gary Kerslake. Plaintiff maintains that Kerslake both transacted business in Illinois and committed a tortious act in Illinois.

Kerslake is a resident of Wisconsin. Plaintiff contacted Kerslake in Wisconsin with regard to employment. During this initial contact, Kerslake and Chamberlain arrived at an agreement concerning potential salary. The interview was conducted in Wisconsin. Chamberlain called Kerslake in Wisconsin to extend an offer and subsequently sent a letter confirming the terms of employment. Kerslake signed the contract in Wisconsin. While employed by plaintiff, Kerslake spent three months in Illinois working on various projects unrelated to Northrop. The balance of his 25-month employment was spent in California working on the Northrop project.

Kerslake’s contacts with Illinois are insufficient to establish the transaction of business within the meaning of the long-arm statute. The record reveals that Kerslake negotiated the terms of his contract in the initial telephone contact which plaintiff made to him in Wisconsin. (See City of East Moline v. Bracke, Hayes & Miller (1985), 133 Ill. App. 3d 136, 478 N.E.2d 637.) The record, however, is bare of any reference to negotiation of the restrictive covenant. The majority of Kerslake’s employment was spent in California, and the time which he spent in Illinois was unrelated to the cause of action before us. That is, Kerslake’s contact with Illinois was de minimis insofar as this lawsuit is concerned. Although he spent three months in Illinois, the work which he did during those three months is not sufficiently related to the alleged breach of restrictive covenant caused by Kerslake’s affiliation with the Northrop project while employed by TSC. Kerslake’s contacts with Illinois do not rise to the level of transaction of business.

Furthermore, Kerslake’s contacts with Illinois do not establish the commission of a tort in Illinois. Kerslake stated that he spoke by telephone with Chamberlain several times, but that he never had any discussions regarding Northrop or regarding how plaintiff would handle the Northrop account after he and the other consultants left. Plaintiff has failed to demonstrate that any conversation which Kerslake had with Chamberlain aided and abetted Chamberlain in breaching his partnership agreement.

In sum, we find that the trial court properly found that plaintiff failed to establish a prima facie case that jurisdiction exists as to Whaling, Smith, Jones, Thomas, Yoo, Read, Mihok and Kerslake. We affirm the court’s order granting those defendants’ motions to quash service and to dismiss for lack of personal jurisdiction.

Plaintiff next contends that the trial court erred in granting the motions of defendants Muns, Bremer, Knapp and Glogowski to dismiss pursuant to section 2 — 619(a)(3) of the Illinois Code of Civil Procedure. Plaintiff maintains that Illinois has a legitimate and substantial relation to the present litigation. Plaintiff argues that in filing their motions to dismiss, Muns, Bremer, Knapp and Glogowski were engaged in forum shopping.

Section 2 — 619(a)(3) provides that a defendant may file a motion for dismissal of an action on the basis that there is another action pending between the same parties for the same cause. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(3).) One of the purposes of section 2— 619(a)(3) is to avoid duplicative litigation. (A.E. Staley Manufacturing Co. v. Swift & Co. (1980), 84 Ill. 2d 245, 419 N.E.2d 23.) A dismissal pursuant to section 2 — 619(a)(3) is discretionary with the trial court (A.E. Staley Manufacturing Co. v. Swift & Co. (1980), 84 Ill. 2d 245, 419 N.E.2d 23), and in exercising this discretion, the court is to weigh the prejudice that would result to a nonmovant if the motion is granted against the policy of avoiding duplicative litigation. (Kellerman v. MCI Telecommunications Corp. (1986), 112 Ill. 2d 428, 493 N.E.2d 1045.) A trial court’s decision on a motion to dismiss will not be disturbed absent an abuse of discretion. Kellerman v. MCI Telecommunications Corp. (1986), 112 Ill. 2d 428, 493 N.E.2d 1045.

We find that here, the trial court did not abuse its discretion in granting defendants’ section 2 — 619(a)(3) motion. It is clear that the Illinois litigation involves the same parties and the same cause as the California action. Each of plaintiff’s claims against each defendant is interrelated to the core issue regarding the alleged breach of the restrictive covenant. Plaintiff nonetheless urges this court to find that Illinois has a legitimate and substantial relation to this lawsuit sufficient to outweigh the benefits of avoiding a multiplicity of actions. Plaintiff cites to numerous contacts between this State and Muns, Bremer, Knapp and Glogowski.

Plaintiff relies on our supreme court’s decision in A.E. Staley Manufacturing Co. v. Swift & Co. in support of its contention that in some circumstances, it is appropriate to permit an Illinois action to proceed simultaneously with litigation in another State between the same parties. Plaintiff correctly interprets the Staley decision as standing for that proposition. More specifically, however, the Staley court noted that multiple actions involving the same operative facts may be maintained when the trial court, in a sound exercise of its discretion, determines that both actions should proceed. The Staley court examined a situation in which the trial court determined it had no discretion and therefore failed to conduct the proper analysis. Thus, when analyzing the propriety of granting the section 2 — 619(a)(3) motion, the Staley court had no need to defer to the conclusions of the trial court and was able to review the situation de novo.

This court is not similarly situated. That is, the trial court here conducted a thorough analysis of the propriety of granting defendants’ section 2 — 619(a)(3) motion. Our review of the record reveals that the trial court continuously noted the substantial connection between the cause of action and the competing forum. Further, the trial court noted that the possibility of completely resolving the controversy was not only greater in the competing forum, but that it was likely that the competing forum was the only forum in which the controversy could be completely resolved. Moreover, the trial court properly found it did not have jurisdiction over 8 of the 12 defendants. The court therefore concluded that the action necessarily would be litigated in California, at least as to those eight defendants. Finally, the trial court specifically stated that it was balancing two competing interests, but that the interest of Illinois was not so great as to allow two actions, between the same parties, over the same issue, to proceed to verdict.

In view of the trial court’s analysis, involving careful consideration of the relevant factors, we cannot find an abuse of that court’s discretion. Accordingly, we will not disturb the decision to grant defendants’ section 2 — 619(a)(3) motion.

Because we have determined that the trial court’s orders granting the motion to dismiss for lack of personal jurisdiction and on the basis of section 2 — 619(a)(3) were proper, we need not address defendants’ cross-appeal regarding the propriety of the trial court’s order denying their motion to dismiss on forum non conveniens.

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

Judgment affirmed.

LaPORTA, P.J., and EGAN, J., concur.


text:
    THE VILLAGE OF SOUTH HOLLAND, Plaintiff-Appellant, v. CALUMET AUTO TRUCK PLAZA, Defendant-Appellee.
    First District (6th Division)
    No. 1—89—2880
    Opinion filed April 20, 1990.
    Buikema, Hiskes, Dillner, O’Donnell & Marovich, Ltd., of South Holland (Michael J. Marovich and Ronald Buikema, of counsel), for appellant.
    Law Offices of Bruce M. Bozich, of South Holland (Bruce M. Bozich and Clifford Lee Gunter, of counsel), for appellee.
   PRESIDING JUSTICE LaPORTA

Plaintiff, the Village of South Holland, brought this action to recover a fine against defendant, Calumet Auto Truck Plaza, alleging that defendant had violated a village ordinance which prohibited the sale of merchandise on Sunday. Defendant filed a motion to dismiss the action, asserting that the plaintiff was precluded from prosecuting the instant claim under the doctrine of estoppel by judgment. The trial court granted defendant’s motion to dismiss the action, finding that defendant’s conduct did not fall within the purview of the village ordinance. Plaintiff appeals, contending that the trial court erred in granting defendant’s motion to dismiss.

In its complaint, plaintiff asserted that defendant’s sale of a six-pack of cola and an eight-ounce bag of potato chips on February 5, 1989, violated a village ordinance prohibiting the sale of merchandise on Sunday.

The village ordinance in effect on February 5, 1989, provided, in relevant part:

“(a) Wholesale and retail mercantile and merchandising establishments. It shall be unlawful for any person to engage in the business of selling, dispensing, renting or distributing, at wholesale or retail, goods, wares or merchandise of any kind or description from an established place of business on the first day of the week commonly called Sunday within the village, provided that this subsection shall not be applicable to works of charity or to the sale of drugs or medicine, the sale or dispensing of articles of food and drink for human consumption from vending machines, the sale or dispensing of articles of food and drink for human consumption from premises whose sole purpose is the daily preparation of food and drink for retail sale to the public, and intent being to allow food and drink dispensing from retail establishments that are commonly known as restaurants, provided further that the sale of said food and drink shall not be allowed from a drive-through facility on Sunday and all drive-through facilities dispensing food and drink shall remain closed, the sale and distribution of newspapers and magazines the sale of milk, ice cream, ice, gasoline, lubricating oil, or the sale of articles and products necessary to meet the emergency needs of the public on Sunday in the village.” South Holland, Ill., Code ch. 9, art. I, §9 — 3(a) (1988).

Defendant brought a motion to dismiss the action, asserting that plaintiff was precluded from prosecuting the instant claim under the doctrine of estoppel by judgment. Defendant’s motion alleged that on September 15, 1989, the trial court had presided over a trial in which defendant had been charged with violating the ordinance cited above. The motion alleged further that at the conclusion of that trial, the court found defendant not guilty of violating the village ordinance at issue, basing its ruling upon the “unique and multi-faceted nature” of the defendant’s business. Defendant argued that the court’s prior ruling on September 15, 1989, prevented the plaintiff from bringing subsequent actions alleging similar conduct by defendant.

At the hearing on the motion to dismiss, the trial court disregarded defendant’s argument predicated upon the doctrine of estoppel by judgment but granted the motion, finding that the sale of the six-pack of cola and the eight-ounce bag of potato chips did not fall within the purview of the village ordinance.

On appeal, the plaintiff has conceded that the trial court’s ruling regarding the eight-ounce bag of potato chips was appropriate, but challenges the decision regarding the six-pack of cola. Plaintiff contends that the trial court erred in granting defendant’s motion to dismiss because defendant failed to establish that the doctrine of estoppel by judgment applied and because a genuine issue of material fact existed as to whether the conduct of the defendant fell within the established exceptions to the village ordinance prohibiting the sale of merchandise on Sunday.

Initially, we note that although defendant’s motion to dismiss was predicated upon the doctrine of estoppel by judgment, the trial court disregarded this argument in ruling on the motion. The record reflects that no objection was raised by counsel for either party. Consequently, both parties acquiesced to the court’s approach to the motion and waived any possible objection to the procedure followed by the court below. (Lemke v. Kenilworth Insurance Co. (1985), 109 Ill. 2d 350, 354-55, 487 N.E.2d 943, 945-46.) Therefore, plaintiff cannot now claim that the court’s ruling should be reversed because defendant failed to establish that the doctrine of estoppel by judgment applied.

In addition, we find that plaintiff has waived the right to object to the trial court’s failure to hold an evidentiary hearing. Plaintiff contends that a genuine question of fact existed as to whether a six-pack of cola would normally be sold at a restaurant and argues that the court erred in deciding this issue without allowing plaintiff to submit evidence thereon. Yet, careful review of the record reveals that plaintiff never requested an opportunity to present evidence on this issue, did not object to the court’s ruling on the basis that an evidentiary hearing had not been held, and declined the court’s invitation to make a motion for reconsideration.

Because plaintiff did not request the opportunity to submit evidence and did not object to the trial court’s failure to hold an evidentiary hearing, review of this issue has been waived on appeal, and we need not address it here. (Lemke, 109 Ill. 2d at 354-55, 487 N.E.2d at 945-46.) We find, however, that on the record before us, the trial judge could rule on the question of whether the items sold by defendant fell within the restaurant exception in the village ordinance and that his doing so does not constitute reversible error.

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

Affirmed.

McNAMARA and EGAN, JJ., concur.