text:
    STRO-WOLD FARMS et al., Plaintiffs-Appellants, v. JAMES H. FINNELL, d/b/a Hay, Finnell and Schleef Veterinary Clinic, Defendant-Appellee.
    Fourth District
    No. 4—90—0648
    Opinion filed March 28, 1991.

      Fellheimer, Travers & Engelman, Ltd., of Pontiac (Robert M. Travers and David J. Babb, of counsel), for appellants.
    Strong, Blakeman & Schrock, Ltd., of Pontiac (C. Thomas Blakeman, of counsel), for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Plaintiffs, Stro-Wold International Livestock Services, Ltd., and Stro-Wold Farms, a partnership (Stro-Wold), appeal from a dismissal of their action for contribution against defendant, Dr. James H. Finnell, a veterinarian. We conclude that plaintiffs are barred under Illinois law from seeking contribution from defendant, and we affirm.

I. Facts

In March 1980, Gary and Patrice Ott of Brillion, Wisconsin, contracted to purchase 83 hogs from Stro-Wold. Stro-Wold, organized under the laws of the State of Missouri, had its headquarters in Bowling Green, Missouri.

In March and April 1980, Stro-Wold purchased some hogs for eventual resale from Dale Zimmerman (Zimmerman), d/b/a PBZ Hog Farm, of Forrest, Illinois. Defendant, a veterinarian licensed to practice in the State of Illinois, was a member of Hay, Finnell & Schleef Veterinary Clinic, a partnership, with offices in Ford County, Illinois. In April 1980, defendant executed an Illinois Department of Agriculture official health certificate, which certified that he had inspected the hogs sold by Zimmerman to Stro-Wold and found them to be free of any infectious, contagious, or communicable diseases. The hogs supplied by Zimmerman were then sold by Stro-Wold and delivered in April 1980 to the Otts in Wisconsin. After the hogs were delivered to the Ott farm, Ott’s entire hog inventory was stricken with swine dysentery, resulting in a complete loss.

In May 1982, the Otts filed suit in Wisconsin State court against Stro-Wold. Farm Bureau Town and Country Insurance Company (Farm Bureau), as insurer of Stro-Wold, was added as an additional party defendant to the Wisconsin action. In March 1985, the Wisconsin action was dismissed and the case was removed to the United States District Court for the Eastern District of Wisconsin. Stro-Wold, as defendants in the Federal case, filed third-party claims against various third-party defendants, including Zimmerman, his insurer, American States Insurance Company (American States), defendant, and defendant’s insurer, AVMA Professional Liability Insurance Trust (ÁVMA). Defendant was dismissed from the Federal action in February 1986, for lack of personal jurisdiction.

In March 1986, the Otts instituted an action against defendant and AVMA in the United States District Court for the Northern District of Illinois. In July 1986, a stipulation of dismissal without prejudice was entered in the case, granting leave to reinstate within 90 days.

In October 1986, the Wisconsin Federal litigation was dismissed by settlement. In exchange for $100,000, the Otts executed a release discharging Zimmerman, Stro-Wold, other inconsequential parties, and “their heirs, agents, servants, successors, executors, administrators, and all other persons, corporations, firms, associations or partnerships of and from any and all claims, actions, causes of action, demands, rights, damages, costs, loss of service, expenses, and compensation whatsoever.” In this settlement, $41,375 was paid by Farm Bureau on behalf of its insured, Stro-Wold, and $48,625 was paid by American States on behalf of its insured, Zimmerman. American States assigned its interest for contribution in any causes of action it may have had against defendant to Stro-Wold. An additional $10,000 was paid to the Otts by StroWold.

In August 1987, Stro-Wold and Farm Bureau brought an action in the circuit court of Livingston County, Illinois, against defendant pursuant to the provisions of the Contribution Act (Ill. Rev. Stat. 1987, ch. 70, par. 301 et seq.). Plaintiffs’ original complaint and a subsequent amended complaint were dismissed with leave to file amended pleadings. A third-amended complaint was filed in August 1989. In June 1990, defendant filed a motion to dismiss the third-amended complaint. Both parties supplied written arguments regarding the motion to dismiss.

In August 1990, the trial court granted with prejudice defendant’s motion to dismiss the third-amended complaint, finding that plaintiffs had no right under Illinois law to contribution from defendant.

II. Analysis

In this appeal, we are concerned with the effect of a release on a claim for contribution among alleged joint tortfeasors. Prior to passage of the Contribution Act, Illinois courts followed the common law rule that the release of one joint tortfeasor released all joint tortfeasors. Thus, the effect of a release prior to the passage of the Contribution Act was to discharge all joint tortfeasors, even those not a party to the release, from any claims by the victim. (W. Keeton, Prosser & Keeton on Torts §49, at 332 (5th ed. 1984) (hereinafter Prosser & Keeton).) The legislature intended to abolish the common law rule that produced an involuntary discharge of joint tortfeasors by passing the Contribution Act. (See Alswp v. Firestone Tire & Rubber Co. (1984), 101 Ill. 2d 196, 201, 461 N.E.2d 361, 364.) Now, a release does not discharge a non-settling party unless that party is specifically named in the release. Alswp, 101 Ill. 2d at 202, 461 N.E.2d at 364.

The common law prohibited contribution among joint tortfeasors when any of the joint tortfeasors had discharged the claim of the injured party. (Prosser & Keeton §50, at 336.) However, many statutes have now been passed that permit contribution among joint tortfeasors. (Prosser & Keeton §50, at 336.) In Hlinois, contribution is limited to those parties whose liability is extinguished by a release; a tortfeasor who settles with a claimant is not entitled to contribution from another tortfeasor whose liability is not extinguished by the settlement. Ill. Rev. Stat. 1987, ch. 70, par. 302(e).

In the present case, plaintiffs argue that the language in the Wisconsin settlement, releasing Zimmerman and his “agents,” effectively releases defendant because he was an agent of Zimmerman. Accordingly, plaintiffs contend that they can seek contribution from defendant because he is one of the parties to the release. In Alswp, the supreme court held “that a release must specifically identify the other tortfeasors [released] in order to discharge their liability.” (Alswp, 101 Ill. 2d at 202, 461 N.E.2d at 364.) We conclude that the use of the word “agent” in the settlement agreement is not adequate under Alswp to include defendant as a party to the release.

In so concluding, we find the present case to be similar to an earlier decision of this court in Pearson Brothers Co. v. Allen (1985), 131 Ill. App. 3d 699, 476 N.E.2d 73. In Pearson Brothers, this court was concerned with the application of section 2(e) of the Contribution Act, which states as follows:

“A tortfeasor who settles -with a claimant pursuant to paragraph (c) is not entitled to recover contribution from another tortfeasor whose liability is not extinguished by the settlement.” (Ill. Rev. Stat. 1987, ch. 70, par. 302(e).)

The pertinent facts in that case are as follows. Evelyn Allen, executor of the estate of Gerald Allen, brought suit against Pearson Brothers and VCV Engineering. The complaint alleged that Gerald’s death was caused by a farm implement manufactured by Pearson Brothers and distributed by VCV. Pearson Brothers and VCV brought third-party contribution actions against Stephen Allen, the owner of the implement. The trial court severed the contribution actions from the underlying case. (Pearson Brothers, 131 Ill. App. 3d at 700, 476 N.E.2d at 73-74.) The underlying case was settled, and plaintiff executed a release in favor of Pearson Brothers and VCV that also purported to release “any and all other persons and entities” from liability. Stephen filed a motion to dismiss the complaints against him for contribution, which the trial court granted. Pearson Brothers, 131 Ill. App. 3d at 700, 476 N.E.2d at 74.

On appeal, this court disagreed with Pearson Brothers’ and VCV’s claim that they could seek contribution from a nonsettling alleged tortfeasor. In doing so, we rejected plaintiffs’ request for an “equitable,” rather than a literal, interpretation of section 2(e) of the Contribution Act. (Pearson Brothers, 131 Ill. App. 3d at 701, 476 N.E.2d at 74.) In so holding, this court wrote the following:

“An obvious purpose of the Act is to reduce the amount of litigation. A limitation on the right to obtain contribution ought to reduce the amount of litigation. The situation where the statute of limitations runs on a joint tortfeasor or where a plaintiff chooses not to sue such a person is a rather rare occasion. We do not choose to torture the language of section 2(e) to permit the seeking of contribution here even though it might- seem fair to do so. To disregard the limitation of section 2(e) each time it might seem fair to do so would cause intolerable confusion.” Pearson Brothers, 131 Ill. App. 3d at 702, 476 N.E.2d at 75.

In the present case, the trial court stated it would “welcome a further review by the Appellate Court for the Fourth District to determine whether their holding in Pearson should in fact be applied to all circumstances, including the circumstances herein.” Having reviewed Pearson Brothers, we now reaffirm that opinion and the interpretation of section 2(e) contained therein. To do otherwise (as plaintiff’s counsel conceded at oral arguments) would make every release subject to an ad hoe determination as to which, if any, alleged joint tortfeasors come within its terms. Such uncertainty and confusion is precisely what the legislature intended to avoid by enacting section 2(e) of the Contribution Act. We believe the “bright-line rule” stated in Pearson Brothers is in furtherance of that legislative goal. Stated more directly, that “bright-line rule” is that a tortfeasor who settles a claim is not entitled to contribution from another tortfeasor whose liability is not explicitly extinguished by name in the settlement.

In attempting to avoid Pearson Brothers, plaintiffs claim a conflict of law issue that would prohibit the trial court from applying Illinois law to plaintiffs’ claims for contribution. Defendant argues that because this issue is being raised for the first time on appeal and because plaintiffs filed their complaint “pursuant to” Illinois law, Pearson Brothers should apply. In their response to defendant’s motion to dismiss, plaintiffs suggested that law other than Illinois law might apply, but did not state what that other law was.

A similar issue arose in O’Brien v. Rautenbush (1956), 10 Ill. 2d 167, 139 N.E.2d 222, where a car accident occurred in Wisconsin and the possible applicability of Wisconsin law was not raised until the appeal. In O’Brien, the court wrote as follows:

“When a litigant relies upon the laws of another State as the basis for his claim, he must plead and prove such laws, for the broad rule prevails that, in the absence of a showing to the contrary, such laws will be presumed to be the same as the laws of the forum. [Citations.] This point of application of Wisconsin law to the case, therefore, not having been raised in the trial court, will not now be considered upon review.” O’Brien, 10 Ill. 2d at 169, 139 N.E.2d at 224, overruled on other grounds in Rylander v. Chicago Short Line Ry. Co. (1959), 17 Ill. 2d 618, 161 N.E.2d 812.

In the present case, plaintiffs did not specifically argue at the trial level that Wisconsin law would apply. Plaintiffs cited neither a Wisconsin case nor a Wisconsin statute as being applicable in the present case. Applying O’Brien, we conclude that the issue of conflict of laws was not properly raised at the trial level; accordingly, that issue has been waived.

For the reasons stated, the judgment of the trial court dismissing with prejudice plaintiffs' third-amended complaint is affirmed.

Affirmed.

LUND, P.J., and SPITZ, J., concur.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH

license: Public Domain

text:
    JULIE A. MANNING, Plaintiff, v. KAREN A. HAZEKAMP et al., Defendants and Third-Party Plaintiffs-Appellants (The City of Champaign et al., Third-Party Defendants-Appellees.).
    Fourth District
    No. 4—90—0585
    Opinion filed March 28, 1991.

      Sheldon A. Brenner, of Bresler, Brenner, Moltzen & Harvick, of Chicago, for appellant Bryan A. Malis.
    Tressler, Soderstrom, Maloney & Priess, of Chicago (Francis A. Spina, of counsel), for appellants Karen A. Hazekamp and Advertising Products International, Inc.
    Thomas, Mamer & Haughey, of Champaign (Richard R. Harden, of counsel), for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Julie Manning (Manning) was thrown from a motorcycle driven by defendant Bryan Malis (Malis) and sustained severe personal injuries when the motorcycle collided with a car driven by defendant Karen Hazekamp (Hazekamp). Subsequently, Manning filed suit to recover for these injuries naming Hazekamp, Advertising Products International, Inc. (API), as the owner of the car, and Malis as defendants. Thereafter, Hazekamp, API, and Malis (third-party plaintiffs) filed third-party actions for contribution against the City of Champaign (City). The circuit court granted summary judgment in favor of the City on July 20, 1990. Third-party plaintiffs appeal that order, contending the circuit court erred in granting summary judgment to the City by determining that, as a matter of law, the City owed no duty to them. We affirm.

On September 30, 1984, there was an automobile-motorcycle accident at the intersection of Gregory and Arbor Streets in Champaign, Illinois. These streets form a “T” intersection. Gregory Street runs east-west while Arbor Street runs north-south. There is a stop sign on Arbor Street, but there are no traffic-control signals for traffic on Gregory Street. Gregory has one lane for each direction of traffic and has a dashed line down the center. There is parking available on the north side of Gregory and there were cars parked there on the day of the accident. The police report from the accident indicated the front of the car parked east of Arbor Street, closest to the intersection of Arbor and Gregory, was 36 feet from the comer while there was a “no parking” sign approximately 30.7 feet from the corner. Arbor Street had no traffic other than the car driven by Hazekamp. Malis stated he could not remember if there was traffic in front of him on Gregory Street, but if there was, it was only light traffic. Malis also stated his maximum speed on Gregory that day was 35 miles per hour.

Hazekamp was traveling southbound on Arbor Street when she reached the intersection. As she came to the intersection, she wished to make a left-hand turn onto Gregory. Hazekamp made a complete stop at the stop sign, which was located approximately two feet north of the intersection. Hazekamp looked both ways to check the oncoming traffic. The view to the right was unobstructed but the parked cars to her left blocked her view of westbound traffic on Gregory. Thus, in order to get a better view of the westbound traffic, she released the brake and proceeded to inch out into the intersection. The front end of Hazekamp’s car was approximately at the centerline of Gregory by the time she inched out far enough to see past the parked cars. It was at this point that the collision occurred. Hazekamp stated the first time she saw the motorcycle was when her car was even with the centerline of Gregory. Malis stated the first time he saw Hazekamp’s car was when it was already into the intersection and the reason he did not see the car before was because the parked cars blocked his line of sight.

Hazekamp retained an expert to analyze this intersection in terms of the ability of a driver of an automobile on Arbor Street to see approaching traffic on Gregory. Assuming the distance between the intersection and the car parked closest to it was 36 feet (as it was the day of this accident), the expert made three separate calculations to determine the distance a driver on Arbor Street could see up Gregory to judge the approaching traffic. Depending upon where the car on Arbor stopped to view the oncoming traffic, the expert concluded that a driver would be able to see up Gregory anywhere from 77 feet to 106 feet. The expert stated certain manuals relied upon by persons in this industry, although never adopted by the City or the State of Illinois, recommended a sight distance of 300 feet for this type of intersection. This sight distance would give the driver on Arbor an adequate view of oncoming traffic to determine if it was safe to proceed with a left turn.

The expert concluded that in order to provide this 300-foot sight distance, parking should be prohibited for 60 feet from the corner of Arbor. This would mean the elimination of approximately two parking spaces on Gregory. Having a “no parking zone” beginning 60 feet from the corner would give a sight distance of 255 feet up Gregory to a driver on Arbor, which the expert believed to be adequate for drivers attempting a left turn. This gap of 60 feet would be the absolute minimum on a practical basis that would be acceptable in order to give a driver on Arbor Street a sufficient view of the oncoming traffic.

Third-party plaintiffs contend the circuit court erred in determining the City owed no duty to them. Third-party plaintiffs argue the City’s duty to maintain its roads in a reasonably safe condition (Ill. Rev. Stat. 1987, ch. 85, par. 3—102) includes the duty to maintain adequate sight distances at intersections such that drivers have a sufficient view of oncoming traffic. Third-party plaintiffs allege the City breached this duty and its negligence proximately caused Manning’s injuries.

The City contends, first, it owes no duty to third-party plaintiffs to maintain the sight distances recommended by third-party plaintiffs’ expert witness. The City argues it fulfilled its duty to maintain its roads in a reasonably safe condition by placing the stop sign at the corner of Arbor and Gregory Streets. Since the stop sign was clearly visible, the City argues it satisfied its duty to maintain its roads in a reasonably safe condition. Furthermore, since Hazekamp knew she had to yield the right-of-way to oncoming traffic, any negligence on the part of the City was not a proximate cause of the accident but merely a condition of the accident.

Summary judgment should only be granted if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(c).) Summary judgment is proper when only a question of law is involved. Barnes v. Washington (1973), 56 Ill. 2d 22, 305 N.E.2d 535.

The elements for a negligence cause of action are (1) the existence of a duty of care owed by the defendant to the plaintiff; (2) a breach of that duty; and (3) an injury proximately resulting from that breach. The questions of breach and proximate cause are questions of fact to be determined by a jury while the existence of a duty must be determined by the court as a matter of law. (Curtis v. County of Cook (1983), 98 Ill. 2d 158, 162-63, 456 N.E.2d 116, 118-19.) To determine if a duty exists, it is necessary to inquire whether the parties stood in such a relationship to one another that the law imposes an obligation on the defendant to act reasonably for the protection of the plaintiff. (Mieher v. Brown (1973), 54 Ill. 2d 539, 301 N.E.2d 307.) The foreseeability that the defendant’s conduct will result in injury to another as well as the likelihood of an injury occurring, the burden on the defendant by imposition of a duty, and the consequences of imposing this burden must all be considered in determining that a duty exists. Lance v. Senior (1967), 36 Ill. 2d 516, 224 N.E.2d 231.

There is no question that a local governmental unit has the duty to exercise ordinary care to maintain its streets in a reasonably safe condition. (Janssen v. City of Springfield (1980), 79 Ill. 2d 435, 450, 404 N.E.2d 213, 220.) Section 3—102 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) codifies this duty. (Ill. Rev. Stat. 1987, ch. 85, par. 3—102.) There is no authority which stands for the proposition that a public entity breaches its duty by allowing an area adjacent to an intersection to pose visual obstructions of traffic to oncoming drivers although there was a clearly visible, properly maintained traffic signal plainly observable to all drivers concerned. (Boylan v. Martindale (1982), 103 Ill. App. 3d 335, 431 N.E.2d 62.) The exception to this rule is where there is a statutory directive requiring a public entity to remove any visual obstructions. (See First National Bank v. City of Aurora (1978), 71 Ill. 2d 1, 373 N.E.2d 1326.) It would be entirely reasonable for a city to believe it has satisfied its duty to maintain a reasonably safe intersection by providing clearly visible and functional traffic signals when taking into account the rule that motorists who have a green light may assume that intersecting traffic will obey their traffic signals. Boylan, 103 Ill. App. 3d at 341, 431 N.E.2d at 67.

Third-party plaintiffs argue this court’s decision in West v. Kirkham (1990), 201 Ill. App. 3d 1051, 560 N.E.2d 632, supports their position. In West, plaintiff was involved in an automobile accident in Urbana, Illinois. The intersection in question was a four-way intersection with traffic signals for northbound and southbound traffic. The northbound traffic lanes had a separate left-turn lane and left-turn arrow on the control light, while the southbound traffic lanes had neither. Plaintiff argued, among other things, that the City of Urbana was guilty of negligence for failing to provide southbound traffic with a left-turn arrow. The City of Urbana moved for summary judgment alleging plaintiff’s complaint failed to state a cause of action. The trial court granted summary judgment in favor of the City of Urbana.

We reversed, holding there, was a genuine issue of material fact as to whether the City of Urbana’s failure to provide a left-turn arrow for southbound traffic after providing a left-turn arrow for northbound traffic made the roadway dangerous at the intersection. (West, 201 Ill. App. 3d at 1054, 560 N.E.2d at 634.) Plaintiff argued the trial court erred in citing section 3 — 104 of the Act (Ill. Rev. Stat. 1987, ch. 85, par. 3—104) as controlling. That section provides a municipality with immunity from tort liability for the initial failure to provide traffic control signals. (Smith v. County of White (1989), 191 Ill. App. 3d 569, 548 N.E.2d 19.) In West, the City of Urbana chose to provide a left-turn arrow for one direction of traffic but not for the other direction of traffic on the same road. Thus, we stated this precluded the City of Urbana from tort liability immunity under the Act. Therefore, there was a genuine issue of material fact as to whether this asymmetrical regulation made the intersection dangerous and summary judgment was thus improper.

Several distinctions between West and the present case can be drawn. First, West was premised on the interpretation of section 3— 104 of the Act, while the issue of the present case involves the scope of the common law duty of a local governmental unit to maintain its property in a reasonably safe condition. This common law duty has subsequently been codified as section 3 — 102(a) of the Act. (Ill. Rev. Stat. 1987, ch. 85, par. 3—102(a).) Thus, the issue in West involved the section of the Act providing a municipality with tort liability immunity, while the present case addresses the scope of the common law duty imposed upon a municipality. The second distinction between West and the present case is a factual one. In West, plaintiff argued that a question of material fact existed because the City of Urbana chose to regulate traffic at the intersection in an asymmetrical fashion. Thus, a question of fact existed as to whether this asymmetrical regulation made the roadway dangerous. Here, third-party plaintiffs do not argue because the City chose to place a stop sign on Arbor Street but not on Gregory Street, the intersection has been made dangerous. Rather, it is third-party plaintiffs’ position that the placement of the parked cars and the creation of the “no-parking” zone on Gregory which blocked the Arbor Street driver’s line of sight made the intersection dangerous. The placement or absence of the stop sign is not the issue in the present case. For these reasons, we find our decision in West is not controlling here.

In Ziemba v. Mierzwa (1991), 142 Ill. 2d 42, plaintiff was injured when his bicycle collided with a dump truck that had exited defendant’s driveway which driveway was not visible from the roadway due to foliage growth on defendant’s property. The supreme court held that under the facts of the case, defendant could not have reasonably foreseen that the driver would exit the driveway without first ascertaining whether there was any oncoming traffic. (Ziemba, 142 Ill. 2d at 52.) The court found defendant did not have a duty to maintain his property so that the plaintiff could see the driveway from the adjacent roadway. Ziemba, 142 Ill. 2d at 52.

The court noted the foliage alone was not dangerous, but it and the driveway only became dangerous by the addition of the dump truck exiting onto the road. The court reasoned the driver of the truck violated his statutorily imposed standard of care when he exited the driveway without yielding the right-of-way to traffic on the adjacent road. (Ziemba, 142 Ill. 2d at 50.) The court stated defendant had a right to expect the driver to check for oncoming traffic before entering the roadway. Since the condition on defendant’s land posed no danger to the plaintiff without the independent negligent act of the driver, the court found the accident in this case was not a reasonably foreseeable result of the condition on defendant’s land. Ziemba, 142 Ill. 2d at 51-52.

The court reasoned that the imposition of this duty on defendant to maintain his property so that his driveway would be visible to travelers on an adjacent roadway would amount to imposing a duty on him to guard against injuries occurring off his land. But since the condition on defendant’s land was not dangerous without the driver’s negligent act, this would be imposing a duty on defendant to guard against the negligence of others. “ ‘[[T]he] imposition of a general duty to anticipate and guard against the negligence of others would place an intolerable burden on society.’ ” Ziemba, 142 Ill. 2d at 52, quoting Dunn v. Baltimore & Ohio R.R. Co. (1989), 127 Ill. 2d 350, 366, 537 N.E.2d 738, 745.

The parked cars here were not dangerous by themselves but only became dangerous when drivers attempted to see around them to make a left-hand turn. Furthermore, the City had a right to expect that Hazekamp would not violate her statutory duty to yield the right-of-way to oncoming traffic and that she would check for oncoming traffic before attempting her left-hand turn. Since the parked cars alone posed no danger, the condition created by the City only became dangerous by the intervening negligent act of Hazekamp. Thus, this accident cannot be viewed as a reasonably foreseeable result of the condition created by the City. But for the negligence of Hazekamp, the accident would not have occurred. In addition, the imposition of this duty on the City would amount to imposing a duty to guard against the negligence of others. The City had the right to expect Hazekamp would obey the rules of the road and, thus, it should not have to guard against her negligence when she disobeys them.

Third-party plaintiffs maintain Ziemba is distinguishable because the obstruction created by the City in this case was on a public street while the obstruction created by the defendant in Ziemba was on a private driveway. We decline to draw such a distinction.

First, the decision in Ziemba was not premised on the status of the defendant as a private landowner. Rather, the decision focused on the reasonable foreseeability of this type of accident occurring, regardless of whether the obstruction in question was on public or private property. There is no indication in the court’s opinion that it would have reached a different result had the driveway in question been from a public parking lot rather than a private homeowner’s property.

Furthermore, our research has revealed no cases which have imposed the duty urged by third-party plaintiffs on a municipality solely because the obstruction in question was on public property. In fact, this court has specifically found the question of who owns the land containing the obstruction is immaterial to the duty issue. (Esworthy v. Norfolk & Western Ry. Co. (1988), 166 Ill. App. 3d 876, 520 N.E.2d 1044.) In Esworthy, the court stated:

“[T]he various third parties have argued extensively over who actually owns the land containing the trees in question. We find that question is immaterial. There is no duty owed in Illinois for trees obstructing visibility of motorists on an adjoining highway by either a municipal landowner or a private one at a controlled intersection and the visibility of the traffic controls has not been obstructed.” (Esworthy, 166 Ill. App. 3d at 879, 520 N.E.2d at 1046.)

As previously noted, the only exception to this rule is where there is a statutory directive requiring a city to remove the visual obstructions. Therefore, we reject third-party plaintiffs’ suggestion that Ziemba is not controlling because of the difference in location of the obstruction.

In further support of our conclusion that Ziemba is controlling, we note the facts in the present case are analogous to those in Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 508 N.E.2d 1201. In Lindenmier, plaintiff attempted a left turn across traffic on a full green light (as opposed to a green arrow). Plaintiff thought it was safe to go through the intersection and execute the turn; however, it was not and she collided with another car traveling in the opposite direction. In plaintiff’s deposition, she admitted she knew that a full green light meant she must yield the right-of-way to oncoming traffic. Plaintiff testified she believed she could execute the turn without incident because of a mistaken belief that the oncoming traffic had a red light. The court upheld summary judgment in favor of the city, stating it was not reasonably foreseeable as a matter of law that plaintiff would believe she could make this left turn safely on a solid green light in the absence of green turn arrows or other indicia of traffic regulation. (.Lindenmier, 156 Ill. App. 3d at 91, 508 N.E.2d at 1212.) The court further stated the city could not reasonably anticipate plaintiff would disregard the acknowledged, statutorily prescribed response to the display of full, circular green traffic lights and proceed on her mistaken belief that a left turn could be safely executed because a car on the other side of the intersection was stopped. Lindenmier, 156 Ill. App. 3d at 91-92, 508 N.E.2d at 1212.

Hazekamp admitted that she knew she had a statutory duty to yield the right-of-way to oncoming traffic on Gregory Street. This admission is identical to that by the plaintiff in Lindenmier. We agree with the court’s reasoning in Lindenmier and in Ziemba and conclude the City could not reasonably anticipate Hazekamp would disregard her acknowledged, statutory duty to yield the right-of-way to oncoming traffic.

In Pyne v. Witmer (1987), 159 Ill. App. 3d 254, 512 N.E.2d 993, aff’d (1989), 129 Ill. 2d 351, 543 N.E.2d 1304, the court rejected plaintiff’s argument that defendants breached their common law duty to maintain their property in such a condition that motorists approaching the intersection could see other approaching traffic by allowing a hedge to obstruct a driver’s view of oncoming cross-traffic. The court noted plaintiff failed to cite any authority which stood for the proposition that a property owner had such a duty. The court held:

“[I]n the absence of a statutory directive to the contrary, that there is no duty in Illinois on a landowner to remove foliage on his property so that motorists approaching an intersection can see other intersecting motorists. Considering the burden such a duty would impose on private property owners, we leave the imposition of such duty to the legislature.” Pyne, 159 Ill. App. 3d at 262, 512 N.E.2d at 997.

This court recently reiterated that conclusion, holding:

“[A] landowner owes no duty not to erect or to create an artificial condition at an intersection that obstructs an approaching motorist’s view of cross-traffic. The imposition of such a duty would likely have wide-ranging and possibly adverse consequences. We believe that a balancing of the policy considerations in favor of and against the imposition of such a duty is better left to the legislative branch of our government.” Cross v. Moehring (1989), 188 Ill. App. 3d 830, 833, 544 N.E.2d 1259, 1261.

In the instant case, the legislature has chosen to act. Section 11—1303(a)(2)(c) of the Illinois Vehicle Code (Vehicle Code) (Ill. Rev. Stat. 1987, ch. 95½, par. 11—1303(a)(2)(c)) provides that there shall be no parking within 20 feet of a crosswalk at an intersection. Section 33—53(a)(6) of the Champaign City Code (City Code) is in accordance with this section of the Vehicle Code in prohibiting parking within 20 feet of a crosswalk at an intersection. Although the evidence was unclear as to whether there was a crosswalk at this intersection, this does not preclude the above sections from applying in this instance. An unmarked crosswalk may exist at an intersection where that portion of the street which corresponds to the statutory definition of a sidewalk is unimproved. (Glendinning v. Formatter (1973), 14 Ill. App. 3d 291, 302 N.E.2d 408 (abstract of opinion).) Section 1—113(a) of the Vehicle Code (Ill. Rev. Stat. 1987, ch. 95½, par. 1—113(a)) states a crosswalk is “[t]hat part of a roadway at an intersection included within the connections of the lateral lines of the sidewalks on opposite sides of the highway measured from the curbs.” Furthermore, section 11—1304(d) of the Vehicle Code (Ill. Rev. Stat. 1987, ch. 95½, par. 11—1304(d)) allows the Department of Transportation to prohibit parking in other places where, in its opinion, it is dangerous to park or where parking would unduly interfere with the free flow of traffic.

The evidence established that the “no parking” sign itself was 30.7 feet from the intersection while the first car was parked 36 feet from the intersection. This demonstrates a legislative determination that prohibiting parking 30.7 feet from an intersection gives an approaching driver a sufficient sight distance in which to view the oncoming cross-traffic. Since the legislature has made a determination as to the distance “no parking zones” should be from an intersection, we are foreclosed from making our own determination.

In conclusion, we hold the City has fulfilled its duty to maintain its roads in a reasonably safe condition by placing a stop sign on the corner of Arbor and Gregory Streets. There is no dispute that the stop sign was unobstructed and that Hazekamp saw it and obeyed it. The legislature has made a determination as to what the adequate sight distance is at this intersection and we will not challenge that determination. Furthermore, we find this accident was not reasonably foreseeable to the City and that to find otherwise would be imposing a duty on the City to guard against the negligence of others.

For the foregoing reasons, we affirm the trial court’s entry of summary judgment in favor of the City of Champaign.

Affirmed.

LUND, P.J., and SPITZ, J., concur.


author: JUSTICE McLAREN

text:
    CENTRAL TERRACE CO-OPERATIVE, Plaintiff-Appellee, v. DAVID MARTIN, Defendant-Appellant.
    Second District
    No. 2—90—0856
    Opinion filed March 21, 1991.
    Rehearing denied April 29, 1991.
    David F. Black, of UAW-Chrysler Legal Services Plan, of Belvidere, for appellant.
    Nancy Hyzer, of Hyzer Law Firm, of Rockford, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, David Martin, appeals from an order of the trial court granting plaintiff, Central Terrace Co-Operative (CTC), the relief it sought in its complaint for forcible entry and detainer. Defendant raises three issues on appeal: (1) whether the forcible entry and detainer statute applies to this case; (2) whether the co-op’s board of directors followed proper procedures in bringing its complaint and terminating defendant’s contractual rights; and (3) whether the trial court used the proper standard in determining the merits of plaintiff’s complaint. We reverse.

On March 1, 1965, Martin and CTC executed an agreement entitled, “Mutual Ownership Contract.” Pursuant to this agreement, Martin was entitled to perpetual use of 1212 Cypress Terrace in exchange for payment of $3,640. Martin has completely paid the purchase price. Martin initially occupied his unit with his wife. Martin’s wife died in 1984.

In 1989, Martin sent a letter to CTC’s board stating that his daughter was moving out of the unit and his niece was moving in to act as his cook and housekeeper. The board responded by asking Martin to have his niece fill out a “sublease application” for a period not to exceed six months. Apparently, Martin did not reply to this request.

On June 9, 1990, the board voted to “follow through with a 5 Day Notice, then a Forcible Entry.” Thereafter, Martin received a “Notice of Termination and Intention to Institute Forcible Entry and Detainer.” The notice alleged Martin had failed to occupy his unit and had sublet the unit without approval. Martin was given until March 3 to either personally occupy the premises or obtain approval to sublet.

On March 2, one day before the deadline given to Martin, CTC filed a complaint for forcible detainer. On May 1, after the complaint had been filed, CTC’s board met pursuant to a request by Martin. The board’s president and three other people gave their opinion that Martin did not reside at 1212 Cypress Terrace. The board voted to terminate Martin’s membership in the co-op.

On May 11, a bench trial was conducted by the court. The trial court’s order was filed on July 17, 1990. The court found “this cause was properly brought under the Forcible Entry and Detainer Statute in that a landlord tenant relationship was created by the Cooperative lease agreement.” The court also stated “the standard of review for the court is one of determining reasonableness and not conducting a trial de novo.” Additionally, the court found “That the Board of Directors followed proper procedures in bringing the Complaint against the defendant and in terminating the contract. The plaintiff has shown, by a preponderance of the evidence, that the Board’s decision that the defendant was not occupying the dwelling was a reasonable and non-arbitrary finding.”

The court ordered possession of the premises be restored to CTC.

Defendant first contends the forcible entry and detainer statute is not applicable to the case at bar. The trial court found the statute applied because “a landlord tenant relationship was created by the Cooperative lease agreement.”

The forcible entry and detainer statute (statute) (Ill. Rev. Stat. 1989, ch. 110, par. 9—101 et seq.) is in derogation of common law, and recovery under the statute is confined to cases clearly within its provisions. (Heritage Pullman Bank v. American National Bank & Trust Co. (1987), 164 Ill. App. 3d 680, 686.) However, if a case falls within the parameters of the statute, the court should liberally construe its provisions to effectuate the remedy it provides. (Heritage, 164 Ill. App. 3d at 686:) The statute sets forth eight circumstances in which an action may be maintained for forcible entry and detainer. (See Ill. Rev. Stat. 1989, ch. 110, par. 9—102(a).) A situation concerning a leasehold is specifically provided for in the statute (Ill. Rev. Stat. 1989, ch. 110, par. 9—102(a)(4)). Additionally, it is clear that condominiums and common interest communities fall within the parameters of the statute. (Ill. Rev. Stat. 1989, ch. 110, pars. 9—102(a)(7), (a)(8).) However, it is also clear that cooperatives are expressly excluded from the definition of common interest communities. Ill. Rev. Stat. 1989, ch. 110, par. 9—102(c).

In its letter opinion, the trial court cited this court’s decision in Sinnissippi Apartments, Inc. v. Hubbard (1983), 114 Ill. App. 3d 151, in support of its finding that a leasehold arrangement was established by the “Cooperative lease agreement.” In Sinnissippi, the plaintiff was a corporation organized to operate a cooperative apartment complex. The defendant was a shareholder of the corporation and also a lessee pursuant to a lease agreement with the plaintiff/corporation. The plaintiff filed a complaint seeking monies allegedly due and owing for increased maintenance charges. In discussing the relationship of the parties in a co-op, this court quoted the following language set forth in 1 American Law of Property, §3.10, at 199-200 (1952):

“ ‘Shares of stock *** are sold to persons who will occupy the housing units, the number of shares *** depending on the value of the particular apartment or unit. “Proprietary” leases are issued by the corporation to the shareholders. These leases contain provisions common to other leases. *** Rent, which is sub-
ject to being increased or decreased, is based upon estimates of amounts necessary to pay operational costs and interest and installments of principal on any capital indebtedness. Other provisions include covenants against assignment without the consent of the board of directors of the corporation, that the tenant will make inside repairs but no structural changes, and that the corporation may forfeit the lease for breach of various of the covenants or violation of the rules of conduct established by the corporation.
* * *
It would seem clear that the lease in the usual cooperative apartment organization creates the relation of landlord and tenant between the corporation and the shareholder-occupant. Of course, the purpose of the organization is to approach individual home ownership as nearly as is possible in a situation where the only practical solution is common operation and management of many features, and the number of the occupant’s shares are determined by the value of the apartment he occupies. But in legal theory the corporation is.distinct from its shareholders, no one of whom has a right to receive legal title to any specific property of the corporation under the better-drawn plans, and it is necessary that this distinction be observed in order to carry out the purposes of the cooperative. The courts have recognized that the relation is that of landlord and tenant in allowing the corporation the usual remedies of a landlord against a tenant.’ ” {Sinnissippi, 114 Ill. App. 3d at 156.)

We also noted that the relationship between the tenant/shareholder and the owner/corporation is determined by reviewing, in totality, the certificate of incorporation, stock offering perspectives, stock subscription agreement and the proprietary lease. Sinnissippi, 114 Ill. App. 3d at 157.

The case at bar is distinguishable from Sinnissippi in that this situation does not appear to be the “usual” cooperative organization. The court called the agreement executed by the parties a “Cooperative lease agreement” while the parties titled it a “Mutual Ownership Contract.” Defendant did not sign a lease. The only document executed was entitled “Mutual Ownership Contract.” In the agreement, defendant was referred to as a “member” not a lessee. The agreement further provided that “perpetual use of each particular dwelling shall be delivered by the corporation to the member in the form of a membership certificate.” Additionally, the bylaws of CTC state the corporation was “formed for the purpose of owning residential property on a cooperative basis.” The stated purpose did not include leasing property. Contra Moss v. Elofsson (1990), 194 Ill. App. 3d 256.

We determine that, after a review of the documents presented to the trial court, the trial court’s finding that a landlord/ tenant relationship existed was against the manifest weight of the evidence. CTC elected to give possessory rights to members based upon ownership interests not lease agreements.

We also note that, in the case at bar, the trial court found the contract was properly terminated. In so doing, the court was not only adjudicating defendant’s possessory rights but also defendant’s ownership rights. A forcible entry and detainer action is summary in nature, and the litigation is limited to the issue of who is entitled to possession of the property. (Continental Illinois National Bank & Trust Co. v. Wilson (1982), 103 Ill. App. 3d 357, 360.) The question of title cannot be litigated. Kitzer v. Rice (1967), 90 Ill. App. 2d 72, 77.

Since there was no landlord/tenant relationship created in this case, no other provision of the statute would bring this particular cooperative within the parameters of the statute, and CTC’s suit sought to terminate ownership rights, the trial court erred by finding this case was properly brought under the forcible entry and detainer statute.

Due to our resolution of the above issue, the remaining issues need not be addressed.

For the above stated reasons, the judgment of the circuit court of Winnebago County is reversed.

Reversed.

BOWMAN and GEIGER, JJ., concur.


author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LONNIE D. LAWRENCE, Defendant-Appellant.
    Fourth District
    No. 4—90—0611
    Opinion filed March 28, 1991.
    Daniel D. Yuhas and John Anthony Palombi, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

The defendant appeals the McLean County circuit court’s dismissal of his post-conviction petition, filed pursuant to the Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1989, ch. 38, par. 122—1 et seq.). The court dismissed the petition, concluding the constitutional right the defendant claimed had been violated did not exist. We affirm.

The defendant was indicted for attempt to commit first-degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 8—4) and two counts of first-degree murder (Ill. Rev. Stat. 1987, ch. 38, pars. 9—1(a)(1), (a)(2)). He originaHy entered not guilty pleas but later entered a plea agreement and pleaded guilty to attempt to commit first-degree murder and to second-degree murder. The circuit court sentenced the defendant in accordance with the terms of the plea agreement: 10 years' imprisonment on the attempt charge and 14 years’ imprisonment for second-degree murder, the sentences to run concurrently. At the conclusion of the sentencing hearing, the trial judge made the following statements to the defendant:

“Mr. Lawrence, I’ve made certain findings and entered certain orders in this case. You have a right to appeal, to ask the justices that sit on the Fourth District Appellate Court to review the findings and orders of the Court to determine whether in any manner your rights have been violated. In this matter, because you have entered a plea of guilty, you first have to file in writing a Motion asking me to allow you to withdraw your plea of guilty and asking me further to vacate the judgment I have entered thereon. You have to file that Motion in writing, within 30 days, and that Motion must list all of the errors you believe the Court has made because any errors not listed would be waived for further appeal purposes. We would have a hearing on that Motion. If I allowed the Motion, this case would be reinstated, all three counts. If I denied the Motion, you’d have 30 days from that date within which to appeal to the Appellate Court; that is, to file a notice of appeal -with the Circuit Clerk here in McLean County. You have the right to be represented by an attorney ***.”

The defendant subsequently filed a post-conviction petition alleging, in part:

“2. The right to Post-Conviction appeal under ch. 110A par. 651 (Supreme Court Rule 651 A & B) having been denied Petitioner by Counsel’s failure to advise or implement said right[.]
3. This Petitioner was never explained [sic], nor [sic] offered the right to seek reconsideration of the sentence imposed; without having to attempt to reverse his acknowledgement of guilt.
3. Without the benifit [sic] of knowledge or understanding of an appeal for sentence reconsideration;
Petitioner was incapable of asserting that right. Thus, the burden of seeing this right explored must lie upon counsel for defense.
4. Petitioner’s counsel’s failure to advise defendant of this appeal right, is a direct violation of his Constitutional rights under the United States Constitution’s 5th Amendment, 6th Amendment, and the 14th Amendment of the Constitution, guarenteeing [sic] equal rights of effective assistance of counsel and due process of the Law.
5. While not raising the issue’s [sic] of Due Process, or Ineffective assistance of Counsel in Light of such case’s [sic] as:
Strickland v. Washington, 104 S.CT. 2052 (1984)
U.S. v. Decoster, 624 F2d 196 (1976)
People v. Gross, 116 Ill. Dec. 828, 519 N.E.2d 1043;
Petitioner asks this Honorable Court to acknowledge that his right to appeal should not be deemed waived due to failure to seek such, in accordance to Court proceedure [sic] and protocal [sic].”

The court denied the defendant’s petition stating, in part:

“8. [T]here is no constitutional or statutory right of the Defendant herein, which requires the sentencing Judge to apprise the Defendant of his right to seek reconsideration of any sentence imposed with or without the Defendant acknowledging or seeking to reverse this acknowledgment of guilt, and;
9. The Court further finds that the Defendant herein has suffered no substantial denial of his rights under the Constitution of the United States or of the State of Illinois or both.”

This appeal followed.

The defendant contends the trial court erred in dismissing his post-conviction petition without appointing counsel, because the petition sufficiently alleged a constitutional claim. The Act provides a three-step process for adjudication of petitions for post-conviction relief. (People v. Dredge (1986), 148 Ill. App. 3d 911, 912-13, 500 N.E.2d 445, 446.) The first step requires the trial court consider the petition to determine whether it is frivolous or patently without merit. If so, the petition is dismissed (Ill. Rev. Stat. 1989, ch. 38, par. 122—2.1). If the court decides the petition is not frivolous and patently without merit, the court must appoint counsel to represent the defendant, if indigent. (Ill. Rev. Stat. 1989, ch. 38, par. 122—4; see generally People v. Porter (1988), 122 Ill. 2d 64, 521 N.E.2d 1158, cert. denied (1988), 488 U.S. 837, 102 L. Ed. 2d 77, 109 S. Ct. 102; People v. Cooper (1986), 148 Ill. App. 3d 412, 499 N.E.2d 599.) The court was not required to appoint counsel to represent the defendant before determining whether his petition was frivolous or patently without merit.

To survive dismissal at the first stage of a post-conviction proceeding, the petition need only contain a statement which presents the gist of a meritorious constitutional claim. People v. Jones (1988), 168 Ill. App. 3d 925, 936, 522 N.E.2d 1325, 1332; People v. Potter (1988), 174 Ill. App. 3d 217, 218, 528 N.E.2d 373, 374; Dredge, 148 Ill. App. 3d at 913, 500 N.E.2d at 446.

The defendant’s post-conviction petition specifically states the defendant was not alleging an ineffective assistance of counsel claim. Instead the defendant apparently sought new relief under the constitution. The trial court was correct in concluding there is no such constitutional right.

The trial court properly dismissed the post-conviction petition for failing to allege the gist of a constitutional claim. As the State correctly notes, post-conviction petitions are to raise only constitutional claims, not violations of statutes or rules of procedure, which should be made on direct appeal. People v. Strait (1982), 110 Ill. App. 3d 514, 442 N.E.2d 641; People v. Holvey (1974), 17 Ill. App. 3d 809, 308 N.E.2d 622; People v. Gardner (1972), 8 Ill. App. 3d 588, 289 N.E.2d 638.

Finally, we note the allegations of a post-conviction petition must be supported by the record in the case or by accompanying affidavits. (People v. Gaines (1984), 105 Ill. 2d 79, 91-92, 473 N.E.2d 868, 875; People v. Gacy (1988), 125 Ill. 2d 117, 124, 530 N.E.2d 1340, 1342, cert. denied (1989), 490 U.S. 1085, 104 L. Ed. 2d 671, 109 S. Ct. 2111.) The defendant’s petition was not supported by the record in the case or by an accompanying affidavit. For this reason alone, the trial court properly dismissed the defendant’s post-conviction petition.

Defendant next contends he was denied his right to a direct appeal because the trial court failed to inform him he could appeal his sentences without withdrawing his guilty plea. The defendant bases arguments for this issue and the previous issue on People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218. In Wilk, the supreme court consolidated several unrelated cases for review. Defendants Wilk and Wright filed notices of appeal with the appellate court following their convictions. The appeals were dismissed for failure to comply with Supreme Court Rule 604(d) (107 Ill. 2d R. 604(d)), which requires a defendant, who pleaded guilty and seeks to appeal his conviction, to file a motion to withdraw his guilty plea within 30 days of imposition of sentence. The defendants alleged their attorneys’ failure to comply with Rule 604(d) constituted ineffective assistance of counsel, as the appellate court dismissed their appeals for lack of jurisdiction.

The supreme court reaffirmed that Rule 604(d) “establishes a condition precedent for an appeal from a defendant’s plea of guilty.” (Wilk, 124 Ill. 2d at 105, 529 N.E.2d at 222.) The court noted the practice of not filing a Rule 604(d) motion had become widespread in several divisions of the appellate court. These divisions routinely allowed motions to remand to file a motion to withdraw the plea, or decided the merits without the Rule 604(d) motion. The court’s opinion in Wilk clearly sought to end these practices.

The supreme court concluded the appellate court properly dismissed the appeals by Wilk and Wright, but went on to state:

“This holding, however, does not leave these defendants without a remedy.
The appropriate remedy for these defendants lies in our Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122-1 et seq.).” Wilk, 124 Ill. 2d at 107, 529 N.E.2d at 223.

Also involved in Wilk were defendants Brown and Erickson, who filed motions to reconsider their sentences without filing Rule 604(b) motions. The trial courts denied the motions to reconsider and the appellate court dismissed the appeals. The supreme court held a Rule 604(d) motion is unnecessary when a defendant seeks only reconsideration of the sentence, so long as a motion to reconsider the sentence is filed. (Wilk, 124 Ill. 2d at 110, 529 N.E.2d at 224; see also People v. Easley (1990), 199 Ill. App. 3d 179, 182, 556 N.E.2d 802, 804.) “And since Rule 605(b) [(107 Ill. 2d R. 605(b))] does not require an admonishment concerning the filing of a motion to reconsider the sentence, the trial court’s failure to admonish pursuant to Rule 605(b) cannot form the basis for preserving the issues in the instant appeal.” (People v. Gerdes (1990), 196 Ill. App. 3d 133, 134, 553 N.E.2d 108, 109.) Thus, the trial court’s failure to admonish the defendant that he could seek reconsideration of the sentences without withdrawing his guilty plea did not deny the defendant his right to a direct appeal.

The judgment of the McLean County circuit court is affirmed.

Affirmed.

SPITZ and GREEN, JJ., concur.


author: PRESIDING JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SARAH JEAN ANDERSON, Defendant-Appellant.
    Fourth District
    No. 4—90—0500
    Opinion filed March 28, 1991.
    Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.

      Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and Peter C. Drummond, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

Following a jury trial in the circuit court of McLean County, defendant Sarah Jean Anderson was found guilty of subsequent-offense retail theft. (Ill. Rev. Stat. 1989, ch. 38, pars. 16A—3, 16A—10.) She was sentenced to an extended term of six years’ imprisonment, to be served consecutively to previously imposed consecutive terms of four years’ imprisonment and two years’ imprisonment. Defendant appeals from and we affirm her sentence.

The evidence adduced at defendant’s trial establishes that on September 13, 1989, defendant left the Limited store located in the East-land Mall in Bloomington, Illinois, carrying a purse which she had not purchased. Out of the presence of the jury, the parties stipulated that the defendant had been previously convicted of retail theft.

Lorabell Davis, the defendant’s mother, testified that the defendant had a cancerous brain tumor, which was removed some time before the date she was arrested. Defendant was undergoing radiation therapy at the time of the offense and was taking medication.

Following the finding of guilty, the matter was continued for the presentence report. The report indicated that the defendant is 33 years old. Her prior record consists of one juvenile adjudication, one traffic violation, a burglary conviction, a misdemeanor-theft conviction, and five retail-theft convictions. Five of the defendant’s prior offenses are felonies. The defendant informed the author of the report that she has been treated for mental and emotional problems. Defendant also stated that her cocaine habit caused her to steal.

At the sentencing hearing, the parties stipulated that the defendant was free on bond for a prior felony retail-theft conviction when she committed the instant offense. At the time of the sentencing hearing, defendant was serving consecutive terms of four years’ and two years’ imprisonment for retail theft. The State recommended that the court sentence defendant to an extended term of six years’ imprisonment on the basis of her prior record.

Defense counsel asked the court to consider the trial testimony regarding defendant’s state of mind and physical condition at the time of the offense. Counsel also noted that all of the defendant’s prior crimes had been crimes against property which did not involve violence.

The defendant stated that after her surgery, she did not know what was going to happen from day to day and “just didn’t care.” She added, “I was on drugs very heavily and what I was doing I didn’t think was wrong because I was trying to support my habit of doing drugs.” Defendant emphasized that she began to seek counseling for her drug problem before she went to prison.

In imposing sentence, the court ordered the defendant’s sentence to run consecutively to the two sentences she was serving because she committed the instant offense while free on bond for another felony. (See Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—4(i).) The court also found that defendant qualified for an extended-term sentence. See Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—3.2(b)(1).

On appeal, defendant first contends that the trial court abused its discretion by ordering her sentence be served consecutively to her prior sentences for retail theft. Defendant reasons that the trial court failed to comply with terms of section 5—8—4(b) of the Unified Code of Corrections (Code) by failing to specifically state that a consecutive sentence was necessary to protect the public from further criminal conduct by the defendant. Section 5—8—4(b) provides, in relevant part, that a court shall not impose a consecutive sentence unless “it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.” Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—4(b).

In People v. Hicks (1984), 101 Ill. 2d 366, 462 N.E.2d 473, the Illinois Supreme Court was presented with an argument identical to that of the defendant. The court held that mandatory language of the statute must be read as permissive in order to preserve constitutionality of the statute in light of the separation-of-powers clause of the Illinois Constitution. (Hicks, 101 Ill. 2d at 374, 462 N.E.2d at 476.) Because the statutory requirement is permissive rather than mandatory, the court reasoned that it is subject to waiver by defendant’s failure to request a statement of the court’s rationale for a particular sentence. (Hicks, 101 Ill. 2d at 374, 462 N.E.2d at 476.) In the instant case, as in Hicks, defendant failed to request such a statement. Accordingly, the argument that the trial court failed to state its rationale for imposing a consecutive sentence is waived on appeal.

Although the trial court did not state that a consecutive term is required to protect the public from further criminal conduct, the court noted that defendant was free on bond with respect to a February 1989 conviction for felony retail theft. Section 5 — 8—4(i) of the Code specifically authorizes the imposition of a consecutive sentence in such cases.

Defendant next contends that the trial court abused its discretion in sentencing her to an extended term for retail theft because her conviction was enhanced from a misdemeanor based upon a prior retail theft conviction. In People v. Roby (1988), 172 Ill. App. 3d 1060, 527 N.E.2d 623, appeal denied (1988), 122 Ill. 2d 589, 530 N.E.2d 259, this court held that a misdemeanor conviction may be enhanced to a felony and then become the subject of an extended sentence when separate prior convictions are used for each step. (Roby, 172 Ill. App. 3d at 1065, 527 N.E.2d at 627.) As the defendant notes in her brief, her conviction for retail theft was enhanced to a Class 4 felony based upon a 1983 retail-theft conviction. (See Ill. Rev. Stat. 1989, ch. 38, par. 16A—10.) The record reveals that the defendant was convicted of subsequent-offense retail theft in 1989 (a Class 4 felony) and of retail theft of property with a value of over $150 in 1988 (a Class 3 felony). Either of the foregoing convictions would provide the basis for an extended sentence pursuant to section 5—5—3.2(b)(1) without running afoul of Roby. The enhancement of the defendant’s offense and the trial court's imposition of an extended sentence were properly based upon separate convictions.

Defendant asks this court to reconsider Roby in light of the fact that it stands in conflict with the decisions of the First, Second, and Third District Appellate courts. To illustrate this conflict, defendant cites People v. Grayson (1983), 119 Ill. App. 3d 252, 456 N.E.2d 664, People v. Natty (1985), 134 Ill. App. 3d 865, 480 N.E.2d 1373, appeal denied (1985), 108 Ill. 2d 582, and People v. Spearman (1982), 108 Ill. App. 3d 237, 438 N.E.2d 1320, appeal denied (1982), 92 Ill. 2d 571, decided by the First, Second, and Third District Appellate courts, respectively. When Roby was decided, the defendant urged this court to follow Grayson, Natty, and Spearman. The Roby opinion adequately expresses our disagreement with the reasoning in the foregoing cases. (Roby, 172 Ill. App. 3d at 1064-65, 527 N.E.2d at 626.) We decline defendant’s invitation to reconsider Roby.

Defendant also contends that her sentence was doubly enhanced because her 1983 retail-theft conviction, which enhanced her current offense to a felony, was also considered by the court in deciding the length of the extended-term sentence imposed.

This court addressed a similar argument in People v. Govan (1988), 169 Ill. App. 3d 329, 523 N.E.2d 581, appeal denied (1988), 122 Ill. 2d 584, 530 N.E.2d 255. In Govan, the defendant’s misdemeanor weapons offense was enhanced to a Class 3 felony because of a prior felony conviction. As the weapons offense was committed while the defendant was in prison, the offense was enhanced from a Class 3 felony to a Class 1 felony. The trial court also considered the defendant’s prior felony conviction as part of his criminal record in imposing sentence. Defendant argued that to allow the trial court to further consider his criminal record as an aggravating factor for sentencing purposes constituted an improper double enhancement. This court held it was not improper for the trial court to consider the defendant’s prior felony conviction as part of his criminal history. (Govan, 169 Ill. App. 3d at 341, 523 N.E.2d at 588.) Govan supports our finding that a prior conviction used to enhance an offense may be considered as an aggravating factor in sentencing. Similarly, we find that a prior conviction used to impose an extended sentence may also be considered as an aggravating factor. In summary, we conclude that the trial court properly considered one prior conviction to enhance the defendant’s offense to a felony, another prior conviction to impose an extended-term sentence, and both prior convictions as aggravating factors in determining the length of the extended term.

Finally, the defendant contends that in imposing the maximum extended term, the trial court failed to give adequate consideration to her severe medical and emotional problems and her drug dependency.

A reviewing court should not substitute its judgment or preference as to punishment for that of the sentencing court. The trial court is ordinarily best situated to tailor a sentence to the needs of the case. It balances the appropriate factors in imposing sentence, and the exercise of this discretion should not be altered upon review absent abuse of that discretion. People v. Steppan (1985), 105 Ill. 2d 310, 323, 473 N.E.2d 1300,1307.

In imposing sentence, the trial court recognized the defendant’s severe health and emotional problems. The court also noted that, because the purse was recovered, there was no loss to the merchant. However, the court reasoned that these considerations would carry more weight but for the defendant’s extensive prior record, which suggests that the defendant’s recent health problems have little to do with her conduct. The court also stated it was aware of the defendant's drug problem, but noted this problem had not been addressed by the defendant in any meaningful way. These conclusions are supported by the defendant’s record and her testimony. The defendant’s record reflects the commission of numerous crimes prior to her current malaise. Further, although the defendant testified that she sought drug-abuse counseling prior to her incarceration, she did not state that she had stopped or even decreased her drug use. The trial court did not abuse its discretion in giving the defendant’s mental and physical health and substance-abuse problems little weight in comparison to her extensive criminal record.

Affirmed.

GREEN and STEIGMANN, JJ., concur.


text:
    CINDY MILLER, Plaintiff-Appellant, v. DANVILLE ELKS LODGE 332, B.P.O.E., et al., Defendants-Appellees (Cathy Jacobs, Defendant).
    Fourth District
    No. 4—90—0525
    Opinion filed March 28, 1991.

      Michael R. Cornyn, of Thomas, Mamer & Haughey, of Champaign, for appellant.
    Sebat, Swanson, Banks, Carman & Townsley, of Danville (Robert J. Banks, Jr., of counsel), for appellees Danville Elks Lodge 332 and Hal Hedges.
    Steven M. Helm, of Dukes, Martin, Helm & Ryan, Ltd., of Danville, for appellee Carol Shaw.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff, Cindy Miller, brought a defamation action against three co-workers and her employer, Danville Elks Lodge 332 (Elks). She appeals from an order of summary judgment in favor of defendants Elks, Hal Hedges, and Carol Shaw. Defendant Cathy Jacobs is not a party to this appeal.

Plaintiff was employed by the Elks from January 1982 to March 17, 1986. At the time the alleged defamation occurred, plaintiff acted as comptroller for the Elks and was paid $18,000 per year. Defendants Cathy Jacobs and Carol Shaw worked under plaintiff in the accounting department; Carol Shaw was responsible for accounts payable, and Cathy Jacobs was responsible for, among other things, the petty cash fund. This fund, containing between $1,500 and $2,000, insured there was adequate cash for the Elks’ clubhouse, bar, and pool facilities.

This case began as defendant Cathy Jacobs approached Ron Cole, an officer of the Elks, telling him of allegedly improper practices in the accounting department. An informal meeting was then held at Cole’s house, attended by Cathy Jacobs and Carol Shaw, and officers Monte Goodwin, Sam Shank, Ron Cole, Frank Young, Murray Jordan, and Bob Hoskinson. Shaw had been laid off one week prior to the meeting, apparently for financial reasons.

At this meeting, Jacobs and Shaw alleged plaintiff (1) borrowed money from the petty cash fund, (2) made long-distance personal phone calls without reimbursing the Elks for all the calls, and (3) paid herself an extra paycheck. Plaintiff extensively discusses the allegations concerning the personal long-distance calls and the extra paycheck. However, these allegations are not complained of in plaintiff’s cause of action and are irrelevant to the issues in this appeal.

Jacobs brought three IOU slips to the meeting, all signed “Cindy,” for $10, $15, and $265. A photocopy of these slips was shown to plaintiff, Ron Cole, Carol Shaw, and Cathy Jacobs at their depositions. Plaintiff first denied she signed any of the slips, then upon reviewing her deposition testimony, changed her answer to “yes.” Plaintiff explained she amended her answer because she “may have signed it for purchases of store goods, or something of that nature.” She denied ever borrowing funds from petty cash for personal purposes.

At her deposition, Shaw identified three slips as those Jacobs brought to the meeting, but could only identify one of the slips, for $15, as being in plaintiff’s handwriting. Shaw testified she had seen other slips signed “Cindy,” in addition to those three. Jacobs also identified the three slips, and denied she signed them “Cindy.” She testified sometimes she signed “Cindy” on IOU slips at plaintiff’s request. Jacobs testified plaintiff borrowed money from the petty cash fund, and her highest balance owed the fund was over $1,000. Jacobs knew this because she had to figure in the IOU slips to make the petty cash fund balance. When Jacobs left the Elks, a few days after plaintiff left, she believed plaintiff owed no money to the petty cash fund.

After the meeting at Ron Cole’s house, Frank Young and Bob Hoskinson investigated the allegations. In the search for records of the petty cash fund, they found voucher slips signed “Cindy.” Frank Young testified he could not remember whether they found the slips at the Elks, or if they were given to him at the meeting.

A second meeting was scheduled to report the findings of this investigation. Before this meeting, plaintiff told Shank that Jacobs was borrowing the money from petty cash, and that plaintiff would pay for the phone calls. Shank testified that when he told her of the second meeting, plaintiff offered to attend if he wanted her to. Plaintiff testified she asked to attend the meeting to rebut the allegations, and Shank said he would call her about the meeting, which he never did.

After the second meeting, Sam Shank, Frank Young, and Bob Hoskinson were delegated to speak to plaintiff the next day, Monday, March 17. Shank testified the group was to ask for plaintiff’s resignation or fire her. A few hours before they were to speak with plaintiff on Monday, Jim Benford, secretary of the Elks and secretary of the management committee, asked Hal Hedges, “Well what the hell is going on around here?” Hal Hedges replied, “Cindy has been taking money from petty cash.” Cindy then denied this, and Hedges said, “I didn’t mean it that way.” Hedges explained, “That’s what I heard.”

When the three met with plaintiff on Monday, she denied borrowing from petty cash, and again alleged it was not her but Jacobs. There is some dispute whether plaintiff was fired or resigned that Monday afternoon. Sam Shank told plaintiff because she allowed the borrowing from the petty cash fund to occur, allowed the unauthorized use of the phone, and wrote herself the extra check, they would accept the offer of resignation she had made the previous Friday. When she asked Shank if he was asking for her keys, he replied, “Yes.” She handed him her keys and believed she had been terminated. In her deposition testimony, plaintiff denied ever offering to resign.

Plaintiff later applied for unemployment benefits, which the Elks contested on the basis that she had resigned. Carolyn Hamilton, an Illinois Department of Employment Security (Department) adjudicator, spoke by telephone with Bill Young, the immediate past chairman of the board of trustees of the Elks. Hamilton’s handwritten notes of the conversation, although not a verbatim transcript, reported Bill Young as stating, “Cindy misused funds from the club. We feel she took the funds, not the [other] person. *** We haven’t pressed any charges.” Bill Young said plaintiff resigned. From her investigation, Hamilton determined the Elks discharged plaintiff because they believed she was responsible for accounting discrepancies. While Hamilton found plaintiff’s actions were “ill-thought,” no misconduct or wilful disregard of the employer’s interests was shown.

Plaintiff filed a four-count complaint alleging defendants Elks, Hedges, Shaw, and Jacobs made the following defamatory statements:

Count I alleged the Elks, through agent Bill Young, told Carolyn Hamilton, “Cindy misused funds from the club.” And, “We feel she took the funds, not the [other] person.”

Count II alleged Hal Hedges said “ ‘Cindy has been taking money from petty cash,’ ” to Jim Benford, meaning that “Plaintiff was stealing money from” the Elks.

Count III alleged Carol Shaw told the Elks’ board or officers plaintiff was taking sums of money from petty cash without authority.

Count IV alleged Cathy Jacobs told the Elks’ board or officers plaintiff was taking sums of money from the petty cash fund without authority.

Defendants Carol Shaw, the Elks, and Hal Hedges moved for summary judgment. The court granted summary judgment for these defendants, and made a Rule 304(a) finding (107 Ill. 2d R. 304(a)); count IV against Cathy Jacobs remained pending before the trial court.

A court appropriately grants summary judgment only when the pleadings, depositions, admissions on file, and affidavits present no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. The court should interpret this material in the record in favor of the party opposing summary judgment. (Kolalcowski v. Voris (1980), 83 Ill. 2d 388, 398, 415 N.E.2d 397, 402; Harrison v. Sears, Roebuck & Co. (1989), 189 Ill. App. 3d 980, 986-87, 546 N.E.2d 248, 252.) A motion for summary judgment does not require the party opposing it to prove his or her case, but that party must present some factual basis arguably entitling him or her to judgment. Harrison, 189 Ill. App. 3d at 987, 546 N.E.2d at 252.

The trial court found the remarks made by all defendants defamatory per se. The court further found the statements incapable of an innocent construction which would render them nonactionable as a matter of law. Statements are defamatory per se when, by their nature, they so obviously and naturally harm plaintiff that damages are presumed. (Owen v. Carr (1986), 113 Ill. 2d 273, 277, 497 N.E.2d 1145, 1147.) False statements which (1) impute a lack of integrity in discharging the duties of an office or employment, (2) prejudice a party in his or her profession, or (3) impute plaintiff committed a criminal offense are all defamatory per se. (Owen, 113 Ill. 2d at 277, 497 N.E.2d at 1147.) Whether a statement constitutes defamation per se is a question of law. Suhadolnik v. City of Springfield (1989), 184 Ill. App. 3d 155, 186, 540 N.E.2d 895, 913.

When analyzing whether the statements at issue constitute defamation per se, we must consider them in light of the innocent construction rule. (Owen, 113 Ill. 2d at 278, 497 N.E.2d at 1147.) This rule holds if a statement may reasonably be given an innocent interpretation, then it cannot be actionable per se. Remarks must be examined in context, and we must give the words and implications their natural and obvious meanings. Chapski v. Copley Press (1982), 92 Ill. 2d 344, 352, 442 N.E.2d 195,199.

Our supreme court recently discussed the innocent construction rule at length in Mittelman v. Witous (1989), 135 Ill. 2d 220, 552 N.E.2d 973. There, an attorney spent three years pursuing a case that was eventually dismissed when the opposing party successfully raised the statute of limitations. His supervising attorney, under fire from the law firm’s board of directors, responded the loss was not his fault, but that of plaintiff, who “sat on the statute of limitations defense” with knowledge of dispositive adverse authority for three years. (Mittelman, 135 Ill. 2d at 229, 552 N.E.2d at 977.) This allegation constituted defamation per se because it charged legal malpractice and would prejudice an attorney in his profession, so much so that damages were presumed. The court held there was no possible innocent construction of the statement because it could not be interpreted as anything but a charge of professional negligence. Mittelman, 135 Ill. 2d at 245-48, 552 N.E.2d at 985-86.

The importance of examining allegedly defamatory remarks in context was illustrated by Owen. In that case, plaintiff, an attorney, filed a complaint with the Illinois Judicial Inquiry Board against a circuit judge. The judge then sued the attorney, alleging the complaint contained defamatory statements. The judge’s attorney stated in a newspaper article that Owen had not filed the complaint against the judge in the interest of justice, but was trying to “ ‘deliberately *** intimidate Judge Starnes and other judges in future cases involving [Owen’s client].’ ” (Owen, 113 Ill. 2d at 276, 497 N.E.2d at 1146.) The court rejected plaintiff’s argument that the claim he attempted to “intimidate” the judge constituted defamation per se, i.e., harmed his professional reputation. Examining the statements in context, as required by the innocent construction rule, revealed them to be “ ‘an attorney’s biased presentation of his client’s view.’ ” (Owen, 113 Ill. 2d at 280, 497 N.E.2d at 1148.) As such, they were not actionable per se.

In the instant case, the trial court held the statements by defendants Elks, Hedges, and Shaw constituted defamation per se because they “allege improprieties in Plaintiff’s conduct in her position of comptroller,” and were incapable of an innocent construction. Plaintiff claims the statements alleged either the commission of a crime or they impugned her integrity or ability in her job as comptroller. Defendants Elks and Hedges press for an innocent construction that the statements meant she was improperly borrowing money from the petty cash fund or improperly supervising its use. Shaw argues her statement was subject to the innocent construction that borrowing from petty cash could be interpreted as proper because it was done with the intention to repay the amount borrowed.

We conclude the trial court correctly held the remarks by the Elks and Hedges constituted defamation per se. Bill Young’s statement that the Elks believed Cindy took and misused club funds was immediately followed with the statement, “We haven’t pressed any charges.” This implies plaintiff stole money from the Elks. If it merely referred to plaintiff’s borrowing from petty cash, the qualifier about pressing charges would not have been added, since the Elks could not have pressed charges for the offense of “borrowing.” The count against Hal Hedges likewise constitutes defamation per se because it alleges the commission of a crime. The complaint alleges Hedges said “ ‘Cindy has been taking money from petty cash’ *** meaning that plaintiff was stealing money from the Elks.”

However, the count against Carol Shaw does not state a cause of action because it appears from the record Shaw only reported that plaintiff was borrowing funds from petty cash. Nowhere in the complaint does plaintiff claim this statement was an allegation of theft. Additionally, the count alleges Shaw said plaintiff was taking “money from petty cash without authority.” (Emphasis added.) Applying the innocent construction rule to Shaw’s statements, we find they can be interpreted as allegations that plaintiff merely borrowed money from petty cash, and are thus not defamatory per se. As such, it does not impute plaintiff committed a crime, or even that she lacks integrity in discharging the duties of comptroller. Borrowing from petty cash without authority may not be a standard accounting practice, but it implies a lack of rigor in following proper procedures, rather than a lack of integrity in carrying out the duties of comptroller. We thus hold Carol Shaw’s statement does not constitute defamation per se.

We now turn to the question of whether defendants were protected by a qualified privilege in making their statements. A statement is privileged when made by a defendant (1) in good faith; (2) with an interest or duty to uphold; (3) limited in scope to that purpose; (4) on a proper occasion; and (5) published only to a proper party. (Zeinfeld v. Hayes Freight Lines, Inc. (1968), 41 Ill. 2d 345, 243 N.E.2d 217.) The privilege exists if these conditions are met, even if the statement is false and alleges a crime. Whether the privilege exists is a question of law. (Ashe v. Hatfield (1973), 13 Ill. App. 3d 214, 218, 300 N.E.2d 545, 548.) The trial court held all of defendants’ alleged defamatory statements were entitled to a qualified privilege.

Statements motivated by a legitimate business or employment interest may be protected by a qualified privilege. (Edwards v. University of Chicago Hospitals & Clinics (1985), 137 Ill. App. 3d 485, 489-90, 484 N.E.2d 1100, 1104 (qualified privilege exists for alleged defamatory diagnosis published in standard insurance form, prepared in the normal course of business); Zeinfeld, 41 Ill. 2d at 348-49, 243 N.E.2d 220-21 (qualified privilege exists for defamatory response in a mortgagor’s questionnaire completed by plaintiff’s former employer).) The interest to be upheld must not necessarily be a legal one, as it may be sufficient if the speaker has a good-faith belief he or she has a moral or social duty to uphold. Judge v. Rockford Memorial Hospital (1958), 17 Ill. App. 2d 365, 376-77,150 N.E.2d 202, 207.

In the instant case, plaintiff concedes defendants Elks’ and Shaw’s statements are protected by a qualified privilege, because they were motivated by a legitimate business interest. Plaintiff challenges, however, the trial court’s ruling that a qualified privilege exists for defendant Hal Hedges as a matter of law. Plaintiff argues Hedges failed to show three elements of the privilege: (1) Hedges had an interest or duty to uphold; (2) the statement was made to a proper person; and (3) the statement was made at the proper time.

Plaintiff’s contentions are without merit, and it is clear Hedges was entitled to a qualified privilege as he properly established all its elements. First, under Rockford Memorial Hospital, Hedges had an interest to uphold as club manager. Responsible for insuring the club operated properly, Hedges was certainly entitled to respond to a question from the secretary of the Elks and of the management committee about “what *** [was] going on” at the Elks. An employee’s use of the petty cash fund is within the range of interests the club manager is privileged to speak freely on and, indeed, may be expected to discuss. Plaintiff makes much of the fact that Hedges apparently was her equal in terms of management level at the Elks and, having no supervisory authority over her, was not privileged in his statement. We find no authority and no sound reason for this proposition.

Second, we reject plaintiff’s argument that Jim Benford was an improper party to speak to. As noted above, Benford was the secretary of the Elks, an officer’s position, and also secretary to the management committee. As such, Benford clearly had similar interest in ensuring the club and its employees, including plaintiff, operated properly. Finally, Hedges’ statement was made during business hours, at the Elks’ place of business, apparently with plaintiff being the only other person in earshot. We find absolutely no reason why such a statement could be held to have been made at an improper time. The facts supporting a qualified privilege for Hedges’ statement are undisputed and sufficiently establish Hedges was entitled to a qualified privilege as a matter of law.

A defendant who has established a qualified privilege will lose the protection of that privilege only if he or she spoke with actual malice, i.e., (1) defendant knew the statement was false; or (2) the statement was made with reckless disregard as to its truth. (Ashe, 13 Ill. App. 3d at 218, 300 N.E.2d at 548; Mittelman, 135 Ill. 2d at 237, 552 N.E.2d at 981.) Reckless disregard occurs when defendant publishes a statement with a “high degree of awareness of [its] probable falsity or entertain[s] serious doubts as to its truth.” (Mittelman, 135 Ill. 2d at 238, 552 N.E.2d at 981, citing Harte-Hanks Communications, Inc. v. Connaughton (1989), 491 U.S. 657, 667, 105 L. Ed. 2d 562, 576, 109 S. Ct. 2678, 2685.) The burden is on plaintiff to show defendants spoke with actual malice. Ashe, 13 Ill. App. 3d at 218, 300 N.E.2d at 548.

Defendants cannot defeat allegations of malice simply by testifying they believed their statements true — the fact finder must independently determine whether they made them in good faith. (Costello v. Capital Cities Communications, Inc. (1988), 125 Ill. 2d 402, 420-21, 532 N.E.2d 790, 798.) However, when there is no evidence supporting a finding of actual malice, the “mere hope” of attacking defendant’s credibility is insufficient to oppose summary judgment. Weber v. Woods (1975), 31 Ill. App. 3d 122, 131, 334 N.E.2d 857, 863.

The trial court held Hedges did not speak with malice when he told Jim Benford “Cindy has been taking money from petty cash.” Plaintiff argues malice exists because there is no evidence in the record showing Hedges had a “reasonable belief in the truth of a statement.” She misstates the law this court should apply, urging it to apply a negligence standard and find malice if Hedges cannot show he had a reasonable basis for believing the truth of his statement. However, the supreme court expressly overruled this negligence standard in the case plaintiff cites, Mittelman. Instead, malice will be found only if Hedges spoke knowing his statement was false, or with reckless disregard as to its truth. Mittelman, 135 Ill. 2d at 237, 552 N.E.2d at 981.

Plaintiff stresses Hedges was not part of the investigatory process, and no evidence explained how he learned of the allegations against plaintiff. However, how Hedges learned of the allegations is irrelevant to the court’s determination. It does not necessarily matter how he came upon the information, as long as when he made the statement he did not in good faith know it was false, have a high degree of awareness of its probable falsity, or otherwise entertain serious doubts as to its truth. The court should focus on defendant’s subjective state of mind, not the background investigation, if any, he conducted. As the supreme court stated in Costello, “[ajctual malice is not measured by what a reasonably prudent person would have published or should have investigated before publishing. [Citation.] Failure to investigate does not itself establish actual malice if the defendants did not seriously doubt the truth of their assertions.” (Costello, 125 Ill. 2d at 421, 532 N.E.2d at 798.) The supreme court concluded, “actual malice may not be found if the defendants subjectively believed that their accusations were true.” (Costello, 125 Ill. 2d at 426, 532 N.E.2d at 800.) Since no evidence indicates Hedges believed his statement was false, or made it with a reckless disregard as to its truth, plaintiff has raised no genuine issue of material fact over whether Hedges spoke with malice.

As to Shaw, in light of our finding that her statements did not constitute defamation per se, we need not discuss whether she spoke with malice. However, we note the trial court correctly found no evidence of malice when she told the Elks’ officers plaintiff borrowed money from petty cash. Shaw testified she believed it was plaintiff, and not Cathy Jacobs, who borrowed money from petty cash because Shaw saw the IOUs in the petty cash box signed “Cindy.” Plaintiff incorrectly argues Shaw had “no reasonable basis for her belief that Cindy misused funds from petty cash,” since Shaw was unable to positively identify all three IOU slips at her deposition, and that this constitutes evidence of malice. However, Shaw had seen other petty cash slips with plaintiff’s name on them, in addition to the three which were exhibits at the deposition. More importantly, plaintiff continues to urge this court to erroneously apply a negligence standard in determining whether malice existed, when she must instead show defendant knew the statement was false, or spoke it with reckless disregard as to its truth. Defendant does not meet this burden as she points to no evidence in the record Shaw believed her statement false, or had any doubts as to its truth.

Plaintiff also argues Shaw’s statement at the officers’ meeting that plaintiff “overpaid” herself by writing an extra check constitutes evidence of malice in her statement about the petty cash. This statement is irrelevant because, when determining whether malice exists, the court should examine the defamatory statement made, and not rely on other unrelated statements made by the defendant. Powers v. Delnor Hospital (1986), 148 Ill. App. 3d 844, 848, 499 N.E.2d 666, 669.

As to the Elks, plaintiff argues they had a financial reason for accusing her of theft (they were able to hire her replacement for $6,000 per year less, and theft by an employee provided a defense to her unemployment claim), and this motive constitutes evidence of malice. However, motive does not constitute malice. Furthermore, the Elks did not need to slander plaintiff in order to fire her since she was an at-will employee, and could be fired for any reason or no reason; nor did they need to slander her as a defense to her unemployment claim (i.e., misconduct (Ill. Rev. Stat. 1989, ch. 48, par. 432)) since their position that she resigned amounted to a defense (Ill. Rev. Stat. 1989, ch. 48, par. 431).

Instead, the proper focus is on Bill Young’s subjective state of mind when determining whether he spoke with malice. (Costello, 125 Ill. 2d at 419, 532 N.E.2d at 797.) While Bill Young testified he believed the truth of his allegation, he cannot insure malice will not be found merely by so testifying. We must independently review the record for any evidence supporting plaintiff’s allegation of malice. We find there is some evidence in the record from which a trier of fact could infer that Bill Young spoke with malice. Plaintiff testified in her deposition that she confronted Bill Young over the allegations of her borrowing money from petty cash and denied them. Plaintiff testified Bill Young responded, “Well I don’t believe it anyway since I know your family, and this is your livelihood we’re talking about.” (Emphasis added.) There is hardly any clearer evidence of malice than Bill Young stating he does not believe the truth of the allegations against plaintiff. At this stage of the proceedings, it is not necessary that plaintiff prove she would prevail at trial on this count. This alleged statement by Bill Young, interpreted in favor of plaintiff, does present a genuine issue of material fact properly resolved by the trier of fact. This evidence presents a factual basis arguably entitling plaintiff to judgment, and thus makes summary judgment on this count inappropriate. Harrison, 189 Ill. App. 3d at 986-87, 546 N.E.2d at 252.

For the above reasons, we affirm the summary judgment granted to defendants Hedges and Shaw. We reverse and remand the count against the Elks on the basis there is some evidence indicating Bill Young spoke with malice.

Affirmed in part; reversed in part and remanded.

SPITZ and KNECHT, JJ., concur.