author: JUSTICE RIZZI

text:
    BORIS RADOVANOV et al., Plaintiffs-Appellants, v. LAND TITLE COMPANY OF AMERICA, INC., et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—87—2459
    Opinion filed September 27, 1989.

      Andrew J. Creighton, of Chicago, for appellants.
    Rosenthal & Schanfield, of Chicago (Lawrence M. Templer and Stephen P. Kikoler, of counsel), for appellees.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiffs, Boris and Mirjana Radovanov (the Radovanovs), appeal from a judgment entered in favor of defendants, Land Title Company of America, Inc., and Title Insurance Company of Minnesota (the Title Insurance Companies), at the close of plaintiffs’ case in a bench trial. On appeal, the Radovanovs argue that the trial court erred in ruling that the terms of the title insurance commitment and policy did not require the Title Insurance Companies to disclose or provide insurance coverage for damages caused by a pending housing code violation lawsuit involving their insured real estate. The pending housing code violation lawsuit predated the title insurance commitment and policy. We reverse and remand for a new trial.

The Radovanovs contracted to purchase an 88-unit apartment hotel in Chicago. Prior to closing the sale, Mr. Radovanov, who had been a maintenance man at other buildings, inspected the property two or three times. The inspection revealed some problems, including fire damage, which was repaired by the seller prior to closing. Also, prior to closing, the sellers informed the Radovanovs’ attorney that they had received notice of building code violations which included housekeeping problems such as peeling paint or lack of smoke detectors. The parties agreed that these problems would be corrected prior to sale. At closing, the Radovanovs were assured that the problems were resolved.

The Radovanovs assumed the sellers’ mortgage, which was held by the Bank of Ravenswood (the Bank). The Bank ordered a title commitment, and on September 22, 1980, the Title Insurance Companies issued a commitment to issue a policy of title insurance for the apartment hotel. The commitment did not reveal that a housing code violation lawsuit involving the apartment hotel was pending.

In October 1980, the Title Insurance Companies revised the commitment to issue title insurance and again failed to disclose the pending lawsuit. In October, when the Radovanovs completed the purchase of the property, neither they nor their attorney knew of the pending litigation. In February 1981, the Title Insurance Companies issued a title insurance policy for the apartment hotel to the Radovanovs. The title insurance policy did not disclose the pending lawsuit.

In July 1981, the Radovanovs discovered for the first time that a lawsuit regarding building code violations at the apartment hotel had been pending since February 1980. The housing code violation lawsuit alleged numerous violations and sought by way of relief, demolition and/or the appointment of a receiver for the building. The Radovanovs also discovered that prior to their purchase, the Bank, as mortgagee and trustee of the apartment hotel, appeared in court in April 1980 to answer the building code violation charges.

In October 1981, the Radovanovs filed a rescission action against the seller alleging failure to disclose the pending housing code litigation. In December 1981, the Radovanovs’ attorneys requested that the Title Insurance Companies defend the municipal housing court case and fulfill their obligations under the title insurance policy. The Title Insurance Companies denied coverage. The rescission action was later settled, but the Radovanovs’ losses were not completely satisfied.

In October 1984, the Radovanovs brought this action to recover monetary damages incurred as a result of the Title Insurance Companies’ failure to either disclose the existence of the pending housing code violation lawsuit or provide insurance coverage for the resultant financial loss. In a bench trial, following the close of the Radovanovs’ case, the court entered judgment in favor of the Title Insurance Companies and against the Radovanovs. This appeal followed.

On appeal, the Radovanovs argue that the trial court erred in ruling that the terms of the Title Insurance Companies’ commitment and policy excluded coverage for damages incurred as a result of building code violation litigation which preexisted the date of the title insurance commitment and policy. We agree.

The Radovanovs contend that the Title Insurance Companies were contractually obligated to provide insurance coverage for their failure to disclose the pending housing code violation litigation because it rendered their title to the apartment hotel unmarketable. The Title Insurance Companies respond with three defenses. They allege that (1) coverage was properly denied because under exclusion 1 of the policy, building ordinances and the effects of violations of building ordinances are not covered; (2) because the pending litigation was not the subject of a lis pendens notice recorded with the recorder of deeds, it was not a matter of public record, and they cannot be charged with constructive notice of the lawsuit; and (3) because the policy allows them to use the defenses that they have against the party in title, i.e., the trustee Bank and beneficiary sellers, against the Radovanovs, coverage is excluded because the Bank knew of the housing code violations, but failed to inform the Title Insurance Companies. After reviewing the record and documents in this case we are persuaded that the evidence, law and equities lie with the Radovanovs.

The title insurance policy provides in pertinent part:

“SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE GENERAL EXCEPTIONS CONTAINED IN SCHEDULE B AND THE PROVISIONS OF THE CONDITIONS AND STIPULATIONS HEREOF, TITLE INSURANCE COMPANY OF MINNESOTA, ***, insures ***, against loss or damage, *** sustained or incurred by the insured by reason of:
1. Title to the estate or interest * * * being vested otherwise than as stated;
2. Any defect in or lien or encumbrance on such title;
3. Lack of a right of access to and from the land; or
4. Unmarketability of such title.
* * *
The following matters are expressly excluded from the coverage of this policy:
1. Any law, ordinance or governmental regulation (including but not limited to building and zoning ordinances) restricting or regulating or prohibiting the occupancy, use or enjoyment of the land, or prohibiting a separation in ownership or a reduction in the dimensions or area of the land, or the effect of any violation of any such law, ordinance or governmental regulation.
* * *
3. Defects, liens, encumbrances, adverse claims, or other matters (a) created, suffered, assumed or agreed to by the insured claimant; (b) not known to the Company and not shown by the public records but known to the insured claimant either at Date of Policy or at the date such claimant acquired an estate or interest insured by this policy and not disclosed in writing by the insured claimant to the Company prior to the date such insured claimant became an insured hereunder; (c) resulting in loss or damage to the insured claimant; (d) attaching or created subsequent to Date of Policy; or (e) resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the estate or interest insured by this policy.
* * *
1. Definition of Terms
The following terms when used in this policy mean:
* * *
(f) ‘public records’: those records which by law impart constructive notice of matters relating to said land.”

First, we will address the issue of whether the pending housing code lawsuit rendered title to the apartment hotel unmarketable.

Initially, we note that the issue of whether or not title to real estate is merchantable is a question of law for the court. (Wilfong v. W.A. Schickedanz Agency, Inc. (1980), 85 Ill. App. 3d 333, 337, 406 N.E.2d 828, 831.) Merchantable title has been defined as not perfect, but reasonably secure against litigation or flaws decreasing market value. (Sinks v. Karleskint (1985), 130 Ill. App. 3d 527, 529, 474 N.E.2d 767, 769.) A pending municipal housing code violation lawsuit, undisclosed to the buyer prior to sale, renders the title received subject to this litigation unmarketable. Ableman v. Slader (1967), 80 Ill. App. 2d 94, 99, 224 N.E.2d 569, 571.

In the present case, the Title Insurance Companies contracted to provide the Radovanovs insurance coverage for damages resulting from the “unmarketability” of their title. Since a housing code violation lawsuit clearly renders a title unmarketable, in the absence of an applicable exclusion, the Title Insurance Companies are obligated to provide coverage for damages caused by the pending lawsuit which predated the issuance of the title commitment and policy.

Next, we address the Title Insurance Companies’ contention that insurance coverage was properly denied because under exclusion 1 of the policy, building ordinances and the effects of violations of building ordinances are not covered.

The purpose of title insurance is to protect a purchaser of real estate against title surprises. (Pohrer v. Title Insurance Co. (N.D. Ill. 1987), 652 F. Supp. 348, 352.) A prospective purchaser of real estate relies on the title insurer’s search when he decides whether or not to purchase the property. Thus, he expects the insurer to have (1) researched the applicable law, as well as the records, before issuing the commitment and (2) to provide warnings about areas in which he might find surprises. (Pohrer, 652 F. Supp. at 353.) Moreover, when a person finalizes a real estate transaction and purchases title insurance, he expects to obtain a professional title search, legal opinion on the condition of title and a guarantee. McLaughlin v. Attorneys’ Title Guaranty Fund, Inc. (1978), 61 Ill. App. 3d 911, 916, 378 N.E.2d 355, 359.

In interpreting the provisions of an insurance policy, the intent of the parties is the most significant factor, and any ambiguity should be construed in favor of the insured. (Weeks v. Aetna Insurance Co. (1986), 150 Ill. App. 3d 90, 94-95, 501 N.E.2d 349, 352.) Further, it is well settled that insurance forfeitures are disfavored. Even in doubtful cases, courts should be quick to find facts which support coverage and language of the policy should be liberally construed in favor of coverage so that the insured is not deprived of the benefit of insurance for which he paid, except where the terms of the policy clearly require a different result. Bellmer v. Charter Security Life Insurance Co. (1986), 140 Ill. App. 3d 752, 755, 488 N.E.2d 1338, 1340.

In the present case, the Title Insurance Companies urge us to construe the phrase “the effects of violations of building ordinances” in exclusion 1 of the policy to include building code violation litigation which was pending when the title insurance commitment and policy issued. This construction would relieve the Title Insurance Companies from any responsibility for failure to disclose many types of litigation which impair the marketability of title. Such a construction is in direct conflict with the Title Insurance Companies’ guarantee to insure against loss or damage sustained due to unmarketability of title. In this context, the conflict renders the phrase “the effects of violations of building ordinances” ambiguous. The purpose of title insurance would be defeated by an adoption of the statutory interpretation urged by the Title Insurance Companies. Disclosure of title surprises such as a pending lawsuit which seeks to demolish or place into receivership a parcel of real estate is just the sort of problem that a title insurance purchaser seeks to discover and/or insure against. Because ambiguities in an insurance policy are to be construed in favor of the insured, and forfeitures are disfavored, we find that exclusion 1 of the policy does not exclude from coverage damages caused by a housing code violation lawsuit which existed prior to issuance of the title commitment and policy.

The Title Insurance Companies’ contention that because the pending litigation was not the subject of a lis pendens notice filed with the recorder of deeds, it was not of public record, and thus, they cannot be charged with constructive notice of the lawsuit, is also unpersuasive.

The Illinois statute concerning lis pendens does not create an obligation to file a Us pendens notice. The statute provides that the filing of notice will serve to bind purchasers of property to the subject litigation pendente lite, as if they had been a party thereto. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1901.) The title insurance policy defines public records as “those records which by law impart constructive notice of matters relating to said land.” However, the Title Insurance Companies claim that their obligation is limited to reporting only litigation in which lis pendens notices have been filed. This construction does not comport with the plain meaning of the policy. Since the Title Insurance Companies could have specifically provided that public records meant only the records of the recorder of deeds, we decline to adopt that construction. Further, because title insurance companies customarily search court records to determine the existence of tax, probate, dissolution of marriage or other types of litigation affecting title, the lawsuit in question could and should have been discovered by a routine title search. (See Eckland v. Jankowski (1950), 407 Ill. 263, 267, 95 N.E.2d 342, 344; Abelman v. Slader (1967), 80 Ill. App. 2d 94, 96, 224 N.E.2d 569, 570.) We therefore find that the term “public records” as defined in the title insurance policy does not exclude the records of the circuit court of Cook County.

Finally, the Title Insurance Companies contend that because the policy allows them to use the defenses that they have against the title holder, i.e., the trustee Bank and its beneficiary, the seller, against the Radovanovs, insurance coverage is excluded because the Bank and seller knew of the housing code violations, but failed to inform the Title Insurance Companies.

This argument would allow the Title Insurance Companies to impute the sellers’ knowledge of the pending lawsuit to the Radovanovs. Such an interpretation would allow the sellers’ failure to disclose the pending litigation to either the Radovanovs or the Title Insurance Companies to defeat the Radovanovs’ right to recovery under the terms of the policy. This interpretation would defeat the purpose of title insurance and deny the Radovanovs insurance coverage for damages caused by an unmarketable title. We find the relationship between the sellers and the Radovanovs to be adversarial in nature, and therefore decline to impute to the Radovanovs the sellers’ knowledge of pending housing code violation litigation. We therefore find that the Radovanovs’ title insurance coverage is not excluded because of the sellers’ failure to disclose the pending housing code violation lawsuit to the Title Insurance Companies.

Accordingly, the judgment of the circuit court is reversed and this cause remanded for a new trial.

Reversed and remanded.

FREEMAN, P.J., and WHITE, J., concur.


source: Caselaw Access Project

author: JUSTICE WHITE

license: Public Domain

text:
    CHARLES SKOPP et al., Plaintiffs-Appellants, v. FIRST FEDERAL SAVINGS OF WILMETTE et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—87—3678
    Opinion filed September 27, 1989.

      Arvey, Hodes, Costello & Burman, of Chicago (Gary L. Starkman, James S. Barber, and Brian D. Vandenberg, of counsel), for appellants.
    Sonnenschein, Carlin, Nath & Rosenthal, of Chicago (Robert C. Johnson, David C. Jacobson, and Steven M. Levy, of counsel), for appellees.
   JUSTICE WHITE

delivered the opinion of the court:

Plaintiffs, Charles Skopp and James Matasso, appeal from orders of the circuit court granting defendants’ motion for summary judgment on two counts of the complaint and denying plaintiffs leave to amend the complaint by adding a sixth count.

In 1982, Charles Skopp was vice-president and chief loan officer at Glenview Guaranty Savings and Loan (Glenview). James Matasso was vice-president and chief financial officer at Glenview. In November of that year, Glenview merged with the First Federal Savings and Loan of Wilmette (First Federal). Two months later, in January 1983, plaintiffs’ employment was terminated.

In October 1983, plaintiffs filed this action against First Federal, First Federal’s president, John Gravee, and First Federal’s vice-president, Jerome Maher. In count III of their four-count complaint, plaintiffs alleged that Maher slandered them by stating to Howard Russell and Joseph Jannotta of Jannotta, Bray & Associates, a placement firm hired by First Federal to assist plaintiffs in obtaining other employment, that plaintiffs had been terminated “for cause.” Plaintiffs contended that the words “for cause” had a particular meaning in the savings and loan industry and that Russell and Jannotta understood the words to mean that plaintiffs had engaged in positive misconduct.

Count IV accused Gravee of slander in connection with a statement, made during a meeting between First Federal personnel and others. Plaintiffs alleged that during the meeting, Gravee falsely stated that a post-merger investigation had revealed “serious charges of criminal conduct in which Skopp was involved.”

Defendants filed motions for summary judgment on counts III and IV of plaintiffs’ complaint. In support of their motion for summary judgment on count III, defendants filed affidavits by Jannotta and Russell in which they stated that they did not understand the statement that plaintiffs were terminated “for cause” to mean that plaintiffs had engaged in positive misconduct or corrupt activity and that they had no specific conception of what terminated “for cause” meant, other than a general understanding that plaintiffs’ performance was unsatisfactory to First Federal. In response, Matasso filed an affidavit in which he stated that when he asked Russell what “for cause” meant, Russell asked him, “Did you do something illegal? Did you violate their policies? Were you involved in some for [sic] of chicanery?” In granting defendants’ motion for summary judgment on count I, the trial court held that Maher’s statement was not actionable because Russell and Jannotta did not understand the statement to be defamatory.

The court also granted summary judgment on count IV after defendants produced evidence that the purpose of the meeting at which Gravee allegedly made the statement about Skopp was to discuss a lawsuit filed against Glenview and after it was revealed that the only other persons present at the meeting were Richard Wilde, then president of Glenview; Dominic Cannon, a member of First Federal’s board of directors; two attorneys from Sonnenschein Carlin Nath & Rosenthal, the law firm representing First Federal in the litigation; and Jerome Maher. The court found that the statements were made in connection with pending litigation and, therefore, were absolutely privileged.

Subsequently, plaintiffs filed a motion seeking leave to amend their complaint by adding a count alleging that defendants were guilty of tortious interference with plaintiffs’ employment contracts with Glenview. The trial court denied the motion on the ground that plaintiffs had failed to allege sufficient facts to state a cause of action for tortious interference.

Plaintiffs appeal the trial court’s orders granting defendants’ motion for summary judgment ón counts III and IV and denying plaintiffs’ motion for leave to amend their complaint.

Plaintiffs contend that the trial court erred in finding that the statement that the plaintiffs were terminated “for cause” was not actionable. We disagree.

A statement is defamatory per se if it is so obviously and naturally harmful to the person to whom it refers that a showing of special damages is unnecessary. (Owen v. Carr (1986), 113 Ill. 2d 273, 497 N.E.2d 1145.) Language which falsely imputes the commission of a criminal offense, infection with a loathsome disease, unfitness or want of integrity in performing duties of employment, or which prejudices a person in his or her profession is considered defamatory per se. In determining whether language defames a plaintiff, Illinois courts apply a rule of innocent construction. (Chapski v. Copley Press (1982), 92 Ill. 2d 344, 443 N.E.2d 195.) Under this rule, a written or oral statement is to be considered in context, with the words and the implications therefrom given their natural and obvious meaning; if as so construed, the statement may reasonably be innocently interpreted, it cannot be actionable per se. (Chapski, 92 Ill. 2d at 352; Costello v. Capital Cities Media, Inc. (1982), 111 Ill. App. 3d 1009, 445 N.E.2d 13.) The preliminary determination of whether the words may be innocently construed is a question of law to be resolved by the court in the first instance; whether the publication was in fact understood to be defamatory is a question for the jury, should the initial determination be resolved in favor of the plaintiff. Chapski, 92 Ill. 2d at 352.

In the present case, the trial court granted summary judgment on the ground that the parties hearing the statement did not understand it to be defamatory. Plaintiffs argue that this was improper and that, under Chapski, the issue should have been presented to a jury for determination. Although we agree that the trial court failed to make the initial determination of whether the words used were capable of innocent construction, as required by Chapski, we believe that the trial court properly granted summary judgment on count III of the complaint.

Plaintiffs contend that an innocent construction of the words “for cause” would require the court to strain to find a possible, but unnatural meaning when a defamatory meaning is more probable. We do not agree.

We believe that a statement that an individual has been terminated “for cause” conveys little more than the obvious information that the person did not leave his or her employment voluntarily. In reaching this conclusion, we are aware that other courts have found that a statement that a party was terminated “for cause” is actionable (Vanover v. Kansas City Life Insurance Co. (1989), 438 N.W.2d 524; Carney v. Memorial Hospital & Nursing Home (1985), 64 N.Y.2d 770, 475 N.E.2d 451); however, we think that the better conclusion is that reached by the Connecticut Superior Court in Terry v. Hubbell (1960), 22 Conn. Supp. 248, 167 A.2d 919. There, it was held that the statement was not libel per se because “[tjaken in their ‘natural and ordinary meaning,’ the words ‘discharged for cause’ mean no more than that the plaintiff was released or dismissed from an office or employment for some undisclosed circumstance which operated to produce that effect.” 22 Conn. Supp. at 256, 167 A.2d at 923.

In the present case, plaintiffs argue that the words “for cause” carry a special defamatory meaning which imparts a clear and definite implication of impropriety. They cite the definition of termination “for cause” given in the Rules and Procedures of the Federal Home Loan Bank Board and the Federal Savings and Loan Insurance Corporation (12 C.F.R. §500.30 et seq. (1989)) and argue that because Russell and Jannotta were placement specialists in the savings and loan industry, they presumably were familiar with the meaning of the words “for cause” as used by savings and loans professionals.

Initially, we note that there is nothing in the record to support plaintiffs’ contention that Russell and Jannotta were specialists in the savings and loan industry and that, therefore, they should be presumed to have assigned to the words “for cause” the definition given in the banking rules and procedures. In their complaint, plaintiffs allege only that Jannotta, Bray and Associates were engaged “in the business of retraining executives and professionals and performing the basic functions of an employment agency to help them locate new positions.” There was no allegation that Russell and Jannotta had any special knowledge of the savings and loan industry or that they were familiar with the definition in question. Accordingly, we find that the trial court properly rejected plaintiffs’ contention that the words “for cause” had a special meaning to Russell and Jannotta.

Further, we find that even if the definition of “for cause” as given in the rules and procedures is applicable, this would not require a conclusion that the words cannot be innocently construed. The rules and procedures define “for cause” as “personal dishonesty, incompetence, willful misconduct, breach of fiduciary duty involving personal profit, intentional failure to perform stated duties, willful violation of any law, rule, or regulation ***, or material breach of any provision of the contract.” (12 C.F.R. §563.39 (1989).) Although this definition includes serious instances of misconduct, it also includes several reasons for termination which do not impute unfitness or want of integrity and which would not prejudice a person in his profession.

In addition, we find that because a qualified privilege existed, the statement was not actionable even if it could be considered defamatory.

The existence of a qualified privilege is a question of law for the court. (Edwards v. University of Chicago Hospitals & Clinics (1985), 137 Ill. App. 3d 485, 484 N.E.2d 1100; American Pet Motels, Inc. v. Chicago Veterinary Medical Association (1982), 106 Ill. App. 3d 626, 435 N.E.2d 1297.) The prerequisites of the privilege are: (1) good faith by the publisher; (2) an interest to be upheld; (3) a statement limited in scope to that purpose; (4) a proper occasion; and (5) publication in the proper manner. (Edwards v. University of Chicago Hospitals & Clinics, 137 Ill. App. 3d at 489; Roemer v. Zurich Insurance Co. (1975), 25 Ill. App. 3d 606, 323 N.E.2d 582.) In determining whether a defendant acted in good faith, a reviewing court may consider the statement itself, the circumstances of its publication, and the relationship of the speaker and the hearers. (American Pet Motels, 106 Ill. App. 3d at 631.) In the case before us, it is apparent that the statement in question was made to further a legitimate interest on the part of defendants and that it was made in a proper manner and on a proper occasion.

The statement that plaintiffs were terminated “for cause” was made by defendants to an employee of a placement firm hired by defendants to assist plaintiffs in finding other employment. Defendants’ purpose in making the statement was to explain why they would no longer pay for placement services provided to plaintiffs. Under the circumstances, we find that the statement was protected by a qualified privilege.

Plaintiffs next argue that the trial court erred in granting defendants’ motion for summary judgment on count IV. Again we disagree.

An absolute privilege protects anything said or written in a legal proceeding, including out-of-court communications between attorneys and their clients. (Libco Corp. v. Adams (1981), 100 Ill. App. 3d 314, 426 N.E.2d 1130; Weiler v. Stern (1978), 67 Ill. App. 3d 179, 384 N.E.2d 762.) In the present case, it is undisputed that the purpose of the meeting at which Gravee allegedly made the statement concerning criminal conduct on the part of Skopp was to discuss a pending lawsuit filed against Glenview; nor is it disputed that the only persons present at the meeting were officers and board members of Glenview and First Federal and the attorneys representing First Federal in the litigation.

Plaintiffs contend that, because Skopp was not a party to the pending lawsuit, the statement was not pertinent or relevant to the litigation and, therefore, it was not protected by the privilege. This argument is without merit.

Although there is a requirement that the communication pertain to the litigation, this requirement is not applied strictly (Weiler, 67 Ill. App. 3d at 183; Macie v. Clark Equipment Co. (1972), 8 Ill. App. 3d 613, 290 N.E.2d 912), and the communication need not be confined to the specific issues involved in the litigation. (Libco, 100 Ill. App. 3d at 317.) Further, when the question is raised, all doubts will be resolved in favor of a conclusion that the communication is pertinent or relevant. Weiler, 8 Ill. App. 3d at 615.

As we stated above, the statement at issue was made at a meeting between Glenview and First Federal officials and their attorneys at which they discussed a pending lawsuit. The lawsuit was filed by condominium purchasers who had obtained mortgage loans from Glenview. Their suit alleged that they had not received the proceeds from their loans and that their signatures had been forged on loan disbursement checks.

In his deposition, Skopp admitted that he turned over the checks in question to the condominium developer and that he was later informed that some of the signatures on the checks did not match those on the mortgage documents. Thus, in light of Skopp’s involvement in the transactions that gave rise to the pending lawsuit, we believe that the statement was both relevant and pertinent even though he was not a party to the lawsuit filed against Glenview. Accordingly, we agree with the trial court’s finding that the statement was absolutely privileged.

In their final argument, plaintiffs contend that the trial court erred in denying their motion for leave to amend their complaint to add a cause of action for tortious interference with contract. Plaintiffs argue that the trial court’s decision was based on an error of law and that, therefore, it should be reversed. Once again, we disagree with plaintiffs’ contentions.

There are five elements necessary to state a cause of action for tortious interference with contractual relations: (1) the existence of a valid and enforceable contract between plaintiff and a third person; (2) defendant’s knowledge of the existing contract; (3) defendant’s intentional and malicious inducement of the breach; (4) a subsequent breach by the third person; and (5) damage to the plaintiff. (Martin v. Federal Life Insurance Co. (1982), 109 Ill. App. 3d 596, 440 N.E.2d 998; Mitchell v. Weiger (1980), 87 Ill. App. 3d 302, 409 N.E.2d 38; Bergfeld v. Stork (1972), 7 Ill. App. 3d 486, 288 N.E.2d 15.) In the present case, plaintiffs have failed to allege facts sufficient to support a claim that defendants intentionally and maliciously induced a breach of the contract between First Federal and plaintiffs.

Inducement to breach a contract involves acts aimed at third parties other than the plaintiff which cause those parties to breach a contract held by the plaintiff. (Mitchell, 87 Ill. App. 3d at 305.) To be legally sufficient, a complaint must set forth factual aliegallons, not conclusions of law, from which it reasonably may be inferred that defendants’ actions were committed with malice and with the intent to cause plaintiff to lose his contract or allegations from which it can be inferred that defendants induced the breach intentionally and maliciously. (Arlington Heights National Bank v. Arlington Heights Federal Savings & Loan Association (1967), 37 Ill. 2d 546, 229 N.E.2d 514; Idlehour Development Co. v. City of St. Charles (1980), 88 Ill. App. 3d 47, 409 N.E.2d 544; Bergfeld, 7 Ill. App. 3d at 490.) A bare assertion that an act was done maliciously or with a certain purpose or intent is insufficient where there is no statement of facts that shows such purpose or intent. Arlington, 37 Ill. 2d at 551; Bergfeld, 7 Ill. App. 3d at 491.

In arguing that their proposed amendment was legally sufficient, plaintiffs contend that they alleged that Gravee and Maher knowingly misrepresented the results of their due diligence investigation to the First Federal board, falsely accusing plaintiffs of concealing the true value of Glenview’s assets and net worth prior to the merger. Plaintiffs’ contention is untrue.

Plaintiffs’ proposed amendment to their complaint alleges that “Maher and Gravee devised a scheme whereby they would cause [First Federal] to breach its contractual obligations and relationships with [plaintiffs] by blaming them for Glenview’s financial difficulties and accusing them of fraudulently concealing Glenview’s net worth.” After also stating that plaintiffs were subsequently informed that their services were no longer needed and that their employment contracts would not be honored, the complaint alleges that “Gravee and Maher intentionally and maliciously induced [First Federal] to breach its contractual obligations and relationships with [plaintiffs], which [First Federal] did.” Nowhere in the complaint do plaintiffs allege that defendants performed any acts aimed at First Federal or made any statements directed to First Federal which induced it to breach plaintiffs’ contracts.

In Idlehour Development Co. v. City of St. Charles, the court held that a paragraph in a complaint alleging that defendants “contrived and entered into a plan and conspiracy willfully and with malice to cause the breach of the contract” was conclusory and insufficient to state a cause of action for tortious interference. The court found, however, that when this allegation was considered together with further allegations in a later paragraph that defendants made false statements to a third party which resulted in a breach of contract, a cause of action was stated.

Unlike Idlehour, the complaint before us contains only the conclusory allegations that defendants devised a scheme to induce First Federal to breach plaintiffs’ contracts and that defendants subsequently induced First Federal to breach the contracts. These allegations clearly are insufficient to state a cause of action for tortious interference with contractual relations. Accordingly, we find that the trial court properly denied plaintiffs’ motion to amend their complaint.

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

Affirmed.

RIZZI and CERDA, JJ., concur.


author: PRESIDING JUSTICE FREEMAN JUSTICE RIZZI,

text:
    JAMES MITCHELL, Plaintiff-Appellant, v. JEWEL FOOD STORES, division of Jewel Companies, Inc., Defendant-Appellee.
    First District (3rd Division)
    No. 1—88—2900
    Opinion filed September 27, 1989.
    Rehearing denied October 25, 1989.

      RIZZI, J., dissenting.

      Lonny Ben Ogus, of Chicago, for appellant.
    Kovar, Nelson, Brittain & Sledz, of Chicago (Marcia E. Goodman, of counsel), for appellee.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

Plaintiff, James Mitchell (Mitchell), appeals from an order of the trial court granting the motion for summary judgment of defendant, Jewel Food Stores, division of Jewel Companies, Inc. (Jewel), and denying plaintiff’s motion for summary judgment. Plaintiff’s action alleged a breach of contract for defendant’s terminating plaintiff’s employment in violation of the policies set forth in an employment handbook. On appeal plaintiff contends that: (1) the employment manual formed a written contract between the parties under which plaintiff’s employment was not terminable at will; (2) a prior final and unappealed order of the circuit court on administrative review which held that plaintiff’s actions did not constitute misconduct estopped defendant from asserting in the instant action that plaintiff was guilty of misconduct sufficient for termination; and (3) the trial court erred in ruling that defendant could inconsistently and selectively enforce its employment policies.

For the reasons stated below, we affirm the judgment of the circuit court.

The record indicates that plaintiff was employed by defendant as a security guard in Jewel’s southeast Chicago area stores from November 1976 until his termination on August 8, 1983, for submission of false time records. Plaintiff worked at various stores and his hours and days of work varied weekly. Plaintiff received his weekly schedule orally from a supervisor. Plaintiff was required to sign a “sign-in log” each day stating the time he arrived at and left work. In addition, plaintiff was required to file a time card every Saturday for the week just ending. Plaintiff was paid an hourly wage based on the time cards he submitted.

On August 1, 1983, plaintiff worked from 2 p.m. to 10 p.m. at the Jewel store at 7707 South Cottage Grove. Plaintiff was scheduled to work on August 2, 1983, from 7 a.m. to 3 p.m. Plaintiff did not arrive at work on August 2, however, until around 7:30 a.m. In an affidavit plaintiff stated that he arrived late on August 2 because he was tired from having worked late the night before and because he was taking medication. Plaintiff entered an arrival time of 7 a.m. on the sign-in log and also on his time card for August 2, 1983. When defendant discovered that the time card incorrectly indicated plaintiff’s arrival time, a supervisor questioned plaintiff, who admitted he did not begin work on August 2 until 7:30 a.m. Plaintiff stated in his deposition that he filled in his time card for the week at the time he received his schedule and did not change the time on the card for August 2 after he arrived late. Plaintiff also stated that he signed the sign-in log later in the day on August 2, and not at the time he arrived. He filled in 7 a.m. on the log as the time he recalled he was scheduled to begin work.

During his employment plaintiff received from defendant a copy of Jewel’s “Benefits and Policies for Security Officers.” Plaintiff looked through the booklet and read some of it. The manual provides that “[v]iolation of any of the following policies will lead to disciplinary action, up to and including dismissal.” One of the policies states, “All time cards and sign-in log books must reflect correct dates and times worked.” The manual provides that an employee is under a probationary status for the first 90 days of employment, during which time he “may be discharged for any reason at the sole discretion of the employer.” After the probationary period, an employee “shall not be suspended, discharged or otherwise disciplined without just cause, just cause to include but not be limited to the following: *** dishonesty or other misconduct in connection with work.”

After his termination from employment with defendant, plaintiff sought unemployment compensation. The referee for the division of unemployment compensation of the Illinois Department of Labor and the Board of Review determined that plaintiff’s “misconduct” made him ineligible for compensation benefits. Plaintiff appealed the decision by filing a complaint for administrative review in the circuit court of Cook County. On October 4, 1984, Judge Marilyn R. Komosa reversed the determination of the Board of Review of the Department of Labor. No appeal has been taken from that order.

On appeal in this court plaintiff initially asserts that the Jewel employment manual constitutes an employment contract under which plaintiff was not terminable at will. Further, plaintiff asserts that as a “permanent” employee who worked for defendant for seven years, he could be terminated only upon a showing of just cause.

The general rule is that if an employment agreement does not specify a definite duration, it will last as long as is mutually satisfactory and either party can terminate the employment at will without liability for breach of contract. (Crenshaw v. DeVry, Inc. (1988), 172 Ill. App. 3d 228, 526 N.E.2d 474.) Where, however, more specific terms regarding grounds for discharge or other conditions are properly made part of the contract, then breach of those provisions may constitute a breach of contract. See Crenshaw, 172 Ill. App. 3d 228; Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 505 N.E.2d 314.

In Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 505 N.E.2d 314, the supreme court held that for an employee handbook to create an enforceable contract, the handbook must meet the traditional requirements for contract formation, namely:

“First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the employee must accept the offer by commencing or continuing to work after learning of the policy statement.” (Duldulao, 115 Ill. 2d at 490.)

Plaintiff contends that in the instant case all three requirements of Duldulao were met. Defendant responds that plaintiff failed to prove the second and third requirements, since plaintiff failed to bring evidence to show that he specifically read the part of the manual regarding discipline of permanent employees.

The record indicates that plaintiff read through the employment manual, although plaintiff believed that he did not read the manual “thoroughly.” Upon being questioned, however, plaintiff stated that he understood there was a company policy against falsifying a time card. Plaintiff stated that he knew that such falsification was improper. Further, plaintiff stated that he understood that if he broke a rule of his employer, he could be terminated.

We hold that the manual was sufficient to create a binding contract between the parties. Plaintiff understood that to falsify a time card was a breach of company policy, and that breach of a company rule could result in termination. Plaintiff was sufficiently aware that keeping proper time cards was one of his duties when he accepted employment from defendant and continued to work for defendant until his termination. Therefore, plaintiff brought sufficient evidence to show that the requirements of Duldulao were met, and that his employment could not be terminated at will insofar as the manual provided otherwise.

Plaintiff also contends that the prior decision by Judge Komosa that plaintiff did not commit “misconduct” to preclude him from receiving unemployment compensation estops defendant from asserting in the instant case that plaintiff committed misconduct sufficient for his termination. Plaintiff contends that the same standard of misconduct used in unemployment compensation cases is used by Jewel. Plaintiff asserts that misconduct in an unemployment case requires a deliberate act constituting a breach of an employee’s duties and obligations to his employer. (Wright v. Department of Labor (1988), 166 Ill. App. 3d 438, 519 N.E.2d 1054; Dotson v. Bowling (1981), 102 Ill. App. 3d 340, 430 N.E.2d 44.) Similarly, Jewel’s handbook states that an employee may be terminated for “dishonesty or other misconduct.” Jewel supervisor Roy Mertens testified in his deposition that intent to commit an act is required in order for conduct of an employee to constitute “misconduct.” Plaintiff contends, therefore, that in both an unemployment compensation case and in the instant case, “misconduct” requires that the employee intentionally commit the act which violates the rules.

We disagree. Section 602A of the Illinois Unemployment Insurance Act (Ill. Rev. Stat. 1987, ch. 48, par. 432(A)), applicable in unemployment compensation matters, defines “misconduct” as a “deliberate and willful violation of a reasonable rule or policy.” Jewel’s employment manual, on the other hand, states that a permanent employee may be discharged only for “just cause,” such as “dishonesty or other misconduct.” The manual does not provide for or require deliberate or willful conduct. Nor can it be assumed that the term “misconduct” as used in the manual has the same meaning as “misconduct” as used in the statute. The language of the employment manual does not in itself reference willful or deliberate conduct. Further, the testimony of Jewel’s supervisor that the disciplinary rules in the manual require a showing of “intent” to be enforced is not sufficient to show that such a meaning was intended by the language of the manual.

In Jackson v. Board of Review (1985), 105 Ill. 2d 501, 475 N.E.2d 879, the supreme court differentiated between the determination of “misconduct” under the Unemployment Insurance Act and the question of justifiable discharge. In Jackson, the plaintiff was discharged for drinking intoxicating liquor on the job. After the case was appealed to the lower courts, the supreme court held first that the finding of the administrative agency that the plaintiff’s conduct violated company policy was not against the manifest weight of the evidence. The court then addressed the question of whether the plaintiff’s conduct constituted “misconduct” which would disqualify her from receiving unemployment benefits (Ill. Rev. Stat. 1987, ch. 48, par. 432). The court found that the administrative decision that the plaintiff deliberately violated a reasonable rule of the employer was not against the manifest weight of the evidence. Therefore, the plaintiffs conduct also disqualified her from receiving unemployment benefits. Jackson, 105 Ill. 2d at 514.

In the instant case, unlike in Jackson, the circuit court found that plaintiff’s conduct failed to constitute “misconduct” under the Act and therefore he was not precluded from receiving unemployment benefits. Further, as stated by the court in Jackson, “[E]very justifiable discharge does not disqualify the discharged employee from receiving employment [sic] benefits under the Act. An employee’s conduct may be such that the employer may properly discharge him. However, such conduct may not constitute ‘misconduct connected with his work’ which disqualifies the employee from receiving unemployment benefits.” (Jackson, 105 Ill. 2d at 507.) We find that the instant case involved a justifiable discharge notwithstanding plaintiff’s entitlement to unemployment compensation benefits.

The circumstances of plaintiff’s employment and the nature of his position with Jewel support this result. Plaintiff was required to place his signature on a “sign-in log” each day he worked. Further, plaintiff filled out and filed a time card each week. Plaintiff was paid on an hourly wage based upon the time cards he submitted to Jewel. Under these circumstances, plaintiff would be aware that accurate and timely completion of his time records was essential. Jewel relied upon those records to pay plaintiff his hourly wage for the specific number of hours he worked. Further, the nature of plaintiff’s position with Jewel required promptness. As a security guard, plaintiff’s duties would include protecting the Jewel employees and merchandise from danger of theft or other harm. In order to be effective, such a position necessarily requires that a security guard be on duty at all relevant times. The employer would reasonably require and expect the employee to be on duty when he was assigned for duty. An employer relying on the presence of an employee could suffer great financial loss, or more importantly, physical harm to other employees, by relying on the presence of the unreported absent employee. The employer is not afforded, in this situation, the option of reassigning another employee to perform the absent employee’s duties.

Plaintiff contends, however, that res judicata estops defendant from asserting that plaintiff’s acts constituted misconduct sufficient to justify termination. Plaintiff asserts that the former adjudication by the administrative body that plaintiff’s acts did not constitute “misconduct” under the Act is conclusive in the instant matter that plaintiff was not guilty of sufficient misconduct for termination. Plaintiff also sets forth the doctrine of estoppel by verdict.

The doctrine of res judicata bars a second adjudication where there is a former adjudication on the merits by a court of competent jurisdiction. (Martinez v. Admiral Maintenance Service (1987), 157 Ill. App. 3d 682, 510 N.E.2d 1122.) Res judicata acts as an absolute bar to a subsequent action involving the same claim, demand, or cause of action, where the parties and subject matter also are the same. (Martinez, 157 Ill. App. 3d at 684; Godare v. Sterling Steel Casting Co. (1981), 103 Ill. App. 3d 46, 430 N.E.2d 620.) Where the requirements for res judicata have been met, concerning identity of parties, subject matter, and cause of action, any contention not raised by the plaintiff in the former action may not be raised in the later action. Martinez, 157 Ill. App. 3d at 684, citing Neuberg v. Michael Reese Hospital & Medical Center (1983), 118 Ill. App. 3d 93, 454 N.E.2d 684.

Estoppel by verdict is a branch of res judicata that provides that where a particular question or fact has been adjudicated in a former suit by a court of competent jurisdiction, and the same fact or question is again at issue between the same parties or their privies, its adjudication in the first cause will, if properly presented and relied upon, be conclusive of the same question in the later suit, regardless of whether or not the cause of action is the same in both suits. Casson v. Nash (1977), 54 Ill. App. 3d 783, 788-89, 370 N.E.2d 564, aff’d and remanded (1979), 74 Ill. 2d 164, 384 N.E.2d 365.

We find that neither res judicata nor estoppel by verdict precludes defendant’s assertion. Judge Komosa was not required to, and did not, address the issue of whether “misconduct” under the Act had the same meaning as “misconduct” sufficient to justify termination. Further, as we have found, whether plaintiff committed “misconduct” under the Act is not the same question as plaintiff raised in the instant suit, namely, whether his termination was based on “just cause,” which may include “dishonesty or other misconduct” as set forth in Jewel’s manual. That plaintiff’s conduct failed to constitute willful and deliberate action under the Act does not mean that plaintiff’s conduct was not sufficient to constitute “dishonesty or other misconduct” as being just cause for plaintiff’s termination from employment. (See Jackson v. Board of Review (1985), 105 Ill. 2d 501, 475 N.E.2d 879.) Therefore, defendant was not estopped from raising as a defense in the instant case that plaintiff’s conduct was sufficient to justify termination.

Plaintiff also contends that the circuit court erred in ruling that defendant could inconsistently and selectively enforce its rules and policies. The trial court held:

“[A]s a matter of law *** when the contract does not prescribe the penalty but merely prescribes a range of penalty for the offense and provides no objective standard for a determination of where within that range the penalty will be, then in that particular case, it is totally within the discretion of the employer to exercise his discretion in prescribing the penalty ***.
It need not be constant with other penalties that were prescribed for like kind of offenses.”

Plaintiff asserts that in an employment contract case, the burden is on the employer to show that the employee has failed to perform his obligations under the contract and was discharged for cause. (Lukasik v. Riddell, Inc. (1983), 116 Ill. App. 3d 339, 452 N.E.2d 55; Foster v. Springfield Clinic (1980), 88 Ill. App. 3d 459, 410 N.E.2d 604.) Plaintiff asserts that whether defendant always terminated an employee for an incorrect time card or failed to terminate the employee under those circumstances was a disputed material fact which precluded summary judgment. Plaintiff points to the affidavit of Clarise Cridell, a former Jewel employee, which indicates that another employee had not been terminated after filling in a time card with the incorrect hours worked. Plaintiff cites several cases from other jurisdictions for the proposition that an employer who selectively enforces a rule cannot assert that breach of the rule is breach of the employment contract, but rather that the employee is entitled to have the fact finder determine whether the violation of the rule constitutes good cause for termination. (Toussaint v. Blue Cross & Blue Shield (1980), 408 Mich. 579, 292 N.W.2d 880; Leikvold v. Valley View Community Hospital (1984), 141 Ariz. 544, 688 P.2d 170; Pine River State Bank v. Mettille (Minn. 1983), 333 N.W.2d 622; Vander Toorn v. City of Grand Rapids (1984), 132 Mich. App. 590, 348 N.W.2d 697.) Further, plaintiff cites Foster v. Springfield Clinic (1980), 88 Ill. App. 3d 459, 410 N.E.2d 604, for the proposition that when an employer knows of acts of misconduct by an employee and does not terminate the employee it has condoned the conduct.

We note that Foster also provides that if the misconduct continues until the time of discharge, no condonation takes place. (Foster, 88 Ill. App. 3d at 466.) Further, the holding in Foster pertains to condoning conduct of a single employee who challenges his termination. Foster does not hold that an employer’s alleged condoning of the conduct of other employees necessarily has an effect on the discharge of the employee who challenges his discharge. Further, the cases from foreign jurisdictions cited by plaintiff are distinguishable from the instant case. For instance, in Pine River State Bank v. Mettille (Minn. 1983), 333 N.W.2d 622, it was undisputed that a disciplinary provision in an employment handbook was applicable and enforceable between the parties. The only question before the court was that the provision was not followed. In Toussaint v. Blue Cross & Blue Shield (1980), 408 Mich. 579, 292 N.W.2d 880, the employees were contesting the employer’s failure to comply with the provision of an employment manual that they must be discharged only for “just cause,” where they had been promised job security from the employer. In Leikvold v. Valley View Community Hospital (1984), 141 Ariz. 544, 688 P.2d 170, the parties disputed the reason for discharge, and the court found that the language of the employment manual was ambiguous regarding the terms of the parties’ contract. In any event, the cases from foreign jurisdictions have no binding effect on this court.

Defendant challenges the propriety and sufficiency of the affidavit offered by plaintiff, contending that the affidavit provides no statement of personal knowledge. Since Cridell was not in a management position for defendant, there is no basis to believe that she would have knowledge of the facts contained in her affidavit. The rule is that where it appears that an affidavit is based on the personal knowledge of the affiant and a reasonable inference is that the affiant could competently testify at trial to the contents of the affidavit, there is no requirement that the affiant specifically attest to those facts. (Mount Prospect State Bank v. Forestry Recycling Sawmill (1980), 93 Ill. App. 3d 448, 417 N.E.2d 621; 107 Ill. 2d R. 191(a).) We find that a reasonable inference can be drawn that Cridell would have within her personal knowledge facts regarding another employee’s incorrectly filling in a time card and not being terminated. It is not unreasonable to conclude that Cridell could have gained knowledge of the situation described through her employment by defendant and contact with other employees. We will assume for purposes of plaintiff’s argument on appeal that the affidavit was sufficient.

The construction, interpretation, and legal effect of a contract are questions of law to be determined by the trial court. (Kardolrac Industries Corp. v. Wang Laboratories, Inc. (1985), 135 Ill. App. 3d 919, 482 N.E.2d 386.) Further, a reviewing court may determine such issues independently of the circuit court’s determination. (Kardolrac Industries Corp., 135 Ill. App. 3d at 925.) In the instant case, plaintiff admitted to his supervisor that he submitted an incorrect time card and signed the sign-in log showing an incorrect time. In view of plaintiff’s admission and the clear and unambiguous language of the employment manual regarding discharge for submission of incorrect time cards, we find no reason to disturb the finding of the trial court. The court correctly found that the employment manual allowed defendant, the employer, discretion to determine the penalty for plaintiff’s filing a false time card, and that such penalty could include termination. Therefore, we find that there was no question of fact remaining that defendant acted within its rights under the contract in terminating plaintiff. Accordingly, we find that the trial court properly entered summary judgment in favor of defendant.

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

Judgment affirmed.

WHITE, J., concurs.

JUSTICE RIZZI,

dissenting:

I agree with the majority’s conclusion “that the manual was sufficient to create a binding contract between the parties” and that plaintiff’s “employment could not be terminated at will insofar as the manual provided otherwise.” (189 Ill. App. 3d at 454.) However, I disagree with the result reached by the majority.

The manual provides:

“J. Discipline
During an employee’s probationary period, that is, during his first ninety (90) days of employment, an employee may be discharged for any reason at the sole discretion of the employer. After an employee has completed the probationary period, such employee shall not be *** discharged *** without just cause, just cause to include but not be limited to the following: *** dishonesty or other misconduct in connection with work * * * >J

Under the clear terms of the manual, Jewel no longer had the unfettered discretion to discharge the plaintiff. The plaintiff could only be discharged for just cause, which included dishonesty or other misconduct in connection with work. Dishonesty means a disposition to defraud or deceive. (See Webster’s Third New International Dictionary 650 (1981).) Plainly, the record does not establish, and the majority does not conclude, that Jewel was entitled to a summary judgment on the basis that there was dishonesty as a matter of law. Thus, the issue here is whether plaintiff’s pertinent conduct constituted “other misconduct in connection with work” as a matter of law within the context of the relevant provision of the manual.

The manual does not define misconduct. However, it is reasonable to presume that terms in a manual concerning the same subject matter are governed by one spirit and policy. Also, terms in the same sentence of a manual should be considered and construed with reference to each other so that they may be given an intended harmonious effect. Here, under the subject matter of “Discipline” in the manual, the pertinent terms are “dishonesty or other misconduct.” Since the terms “dishonesty and other misconduct” are to be considered and construed with reference to each other, I believe that other misconduct, like dishonesty, as used in the manual means consciously and knowingly doing something wrong in connection with work as opposed to doing something mistakenly or inadvertently.

In addition, at the very least, the term “other misconduct” in the manual is ambiguous. Ambiguous contractual language is generally construed against the drafter of the language — in this case Jewel. In Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 505 N.E.2d 314, the court considered the contractual rights of an employee that were created by her employer’s employee handbook. The court stated:

“A more difficult question is whether or not defendant complied with the provisions of the handbook. ***
*** The handbook states that an employee may be terminated without notice during the ‘initial probationary period’ (emphasis added), a period which ends ‘[a]t the end of 90 calendar days since employment.’ ***
***
Ambiguous contractual language is generally construed against the drafter of the language (Weiland Tool & Manufacturing Co. v. Whitney (1969), 44 Ill. 2d 105, 116; Cedar Park Cemetery Association, Inc. v. Village of Calumet Park (1947), 398 Ill. 2d 324, 333), and in the absence of evidence to the contrary we must conclude that the ‘designated probationary period’ does not divest an employee of rights vested at the end of the ‘initial probationary period.’ ” Duldulao, 115 Ill. 2d 482, 492-93, 505 N.E.2d 314, 319.

In the present case, in the absence of evidence to the contrary, the term “other misconduct” in the manual must be construed against Jewel and not, as the majority construes the term, in favor of Jewel. Moreover, the evidence aliunde supports plaintiff’s interpretation and not Jewel’s interpretation of the term other misconduct as it is used in the manual. A Jewel supervisor, Roy Mertens, testified in his deposition that intent to commit an act is required in order for conduct of an employee to constitute “misconduct.” The majority misdeems the import of the supervisor’s testimony because it construes the undefined term “other misconduct” in the manual against the plaintiff rather than against the drafter of the manual, Jewel. This is evident by the majority’s statement that “the testimony of Jewel’s supervisor that the disciplinary rules in the manual require a showing of ‘intent’ to be enforced is not sufficient to show that such a meaning was intended by the language of the manual.” 189 Ill. App. 3d at 455.

In addition, the majority concludes: “In view of plaintiff’s admission and the clear and unambiguous language of the employment manual regarding discharge for submission of incorrect time cards, we find no reason to disturb the finding of the trial court.” (189 Ill. App. 3d at 460.) The majority’s conclusion is based upon two unfounded premises.

First, plaintiff did not admit that his submission of an incorrect time card and signing the sign-in log showing an incorrect time constituted misconduct which would warrant his discharge pursuant to the provisions of the manual. Rather, plaintiff merely admitted that he made a mistake of one-half hour on his time card and sign-in log on a single occasion. According to plaintiff, his acts constituted a simple mistake and inadvertence which are not sufficient to discharge him under the terms of the manual. Secondly, it is simply not true that there is clear and unambiguous language in the employment manual regarding discharge for submission of incorrect time cards based on an admitted honest mistake. Instead, as the majority opinion itself demonstrates, the pertinent provision of the manual provides that plaintiff could only be discharged for cause, which would include dishonesty or other misconduct in connection with work. Merely making a mistake is not misconduct.

In the last paragraph of its opinion, the majority states that it agrees with the trial court that Jewel had the discretion to discharge plaintiff for filing a false time card. The fact is that the record does not establish that plaintiff filed a false time card within the meaning of dishonesty or other misconduct as used in the manual. Rather, the record establishes that plaintiff merely filed a time card with an honest mistake on it. If the majority is correct, virtually every mistake that is made in connection with one’s employment would amount to dishonesty or other misconduct, and it would give the employer the absolute discretion to discharge the employee regardless of the employee’s length of service. Thus, any job protection that longtime Jewel employees have under the manual would be illusory.

The majority’s opinion is great for management but, unfortunately, inimical to labor. I believe that the majority opinion is not merely wrong, it is an anachronism and unjust. In my opinion, with the advent and usage of employee handbooks and manuals which contain terms and conditions regarding discharge, the days when employers retained and discharged employees ad libitum are gone. (See Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 505 N.E.2d 314.) However, one would not believe that those days are gone by reading the majority opinion.

Accordingly, I would reverse the summary judgment in favor of Jewel and reverse the denial of plaintiff’s motion for summary judgment. I would also grant plaintiff’s motion for summary judgment and remand for further proceedings in the trial court.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEANARD PAYNE, Defendant-Appellant.
    First District (4th Division)
    No. 1—86—1435
    Opinion filed September 28, 1989.
    Rehearing denied October 27, 1989.
   The above opinion was withdrawn per court order after publication. The new opinion, filed February 1, 1990, is published at 194 Ill. App. 3d 238.

The above opinion was withdrawn per court order after publication. The new opinion, filed February 1, 1990, is published at 194 Ill. App. 3d 238.

The above opinion was withdrawn per court order after publication. The new opinion, filed February 1, 1990, is published at 194 Ill. App. 3d 238.

The above opinion was withdrawn per court order after publication. The new opinion, filed February 1, 1990, is published at 194 Ill. App. 3d 238.

The above opinion was withdrawn per court order after publication. The new opinion, filed February 1, 1990, is published at 194 Ill. App. 3d 238.

The above opinion was withdrawn per court order after publication. The new opinion, filed February 1, 1990, is published at 194 Ill. App. 3d 238.

The above opinion was withdrawn per court order after publication. The new opinion, filed February 1, 1990, is published at 194 Ill. App. 3d 238.

The above opinion was withdrawn per court order after publication. The new opinion, filed February 1, 1990, is published at 194 Ill. App. 3d 238.

The above opinion was withdrawn per court order after publication. The new opinion, filed February 1, 1990, is published at 194 Ill. App. 3d 238.

The above opinion was withdrawn per court order after publication. The new opinion, filed February 1, 1990, is published at 194 Ill. App. 3d 238.


author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL DIAZ et al., Defendants-Appellants.
    First District (4th Division)
    Nos. 1—86—1690, 1—86—1692, 1—86—1848, 1-87-0495 cons.
    Opinion filed September 28, 1989.

      Michael J. Pelletier and Kenneth L. Jones, both of State Appellate Defender’s Office, of Chicago, for appellant Eddie Rodriguez.
    Paul P. Biebel, Jr., Public Defender, of Chicago (Paul D. Bellendir and Richard E. Cunningham, Assistant Public Defenders, of counsel), for appellants Paul Diaz and Anthony Allcala.
    Randolph N. Stone, Public Defender, of Chicago (Paul D. Bellendir, Assistant Public Defender, of counsel), for appellant Anthony Virgilio:
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund and Andrea K. Muchin, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

After a bench trial, defendants Paul Diaz, Anthony Allcala, Eddie Rodriguez, and Anthony Virgilio were found guilty of multiple counts of aggravated battery (Ill. Rev. Stat. 1985, ch. 38, pars. 12 — 4(a), (b)(1), (b)(8)). Defendants were each sentenced to serve an extended term of 10 years in the Illinois Department of Corrections. Defendants Diaz and Allcala appeal, seeking reversal of their convictions and remandment of their causes for a new trial or, in the alternative, vacation of their sentences and remandment of their causes for resentencing. Defendants Rodriguez and Virgilio appeal, seeking vacation of two of their convictions for aggravated battery and reversal and remandment of this cause for a new sentencing hearing or, in the alternative, for reduction of their sentences to nonextended terms, not to exceed five years.

Rodriguez raises the following issues for review: (1) whether the trial court improperly relied on the infliction of great bodily harm as an aggravating factor in imposing his 10-year extended-term sentence; (2) whether the trial court properly considered him as an individual in determining the appropriate sentence; and (3) whether the trial court erred in entering judgment and imposing sentence on three counts of aggravated battery.

Diaz and Allcala raise the following issues for our review: (1) whether they were denied their constitutional right to be personally present during all stages of their trial, and (2) whether they were denied a fair sentencing hearing.

Virgilio raises substantially the same issues as his codefendants. Specifically, he joins Rodriguez in his questioning of the trial court’s reliance on the infliction of great bodily harm in imposing his 10-year sentence and in the imposition of three counts of aggravated battery. He joins Diaz and Allcala in questioning the fairness of the sentencing hearing.

We affirm.

At trial, the evidence established that between 6:15 and 6:40 a.m. on September 2, 1984, Marion Glazebrook and his wife, Judy Glaze-brook, heard noises coming from the front of their neighbor’s house. Upon investigation, the Glazebrooks noticed that their neighbor, Alfredo Martinez, was engaged in a dispute with several individuals. Mrs. Glazebrook began taking pictures of the people involved while Mr. Glazebrook got dressed to assist his neighbor.

Once outside, Mr. Glazebrook began taking pictures. He noticed that there were more people down the street from his house. As he walked toward the area in which these people were gathered, he continued to take pictures. A group of approximately 20 people then began to approach him, making gestures with their hands and speaking Spanish. One of the members of this group called him a punk in Spanish. Two of the individuals picked up 2- by 4-inch boards of wood. At some point in time, Glazebrook told his wife to call the police.

Five individuals then surrounded Glazebrook. Rodriguez allegedly swung his radio at Glazebrook. Subsequently Glazebrook was felled by someone swinging one 2- by 4-inch board. The group then began to beat him with rocks and boards. Glazebrook was able to take refuge under a nearby car. When Mrs. Glazebrook saw that this group of individuals was beating someone on the ground, she ran toward them. The group dispersed as Mrs. Glazebrook approached. Mr. Glazebrook was then taken to the hospital by ambulance for treatment of the injuries he sustained.

On September 4, 1984, Mr. Glazebrook, while in the hospital, identified the various defendants from photograph books brought by the police. Mrs. Glazebrook and Alfredo Martinez picked out Robert Walker (not a party to this appeal), Rodriguez, Diaz, Allcala, and Virgilio from photograph books at the police station.

The defendants herein were subsequently arrested. Pictures of the scene and the 2- by 4-inch boards were offered into evidence. Defendants were charged with attempted murder, armed violence, aggravated battery, and residential burglary.

At trial, Walker testified that he was not at the scene; he was baby-sitting at his girl friend’s house. He was acquitted of all charges. Defendants Rodriguez, Diaz, Allcala, and Virgilio were each found guilty of three counts of aggravated battery.

On June 16, 1986, a sentencing hearing was conducted where counsel for the various parties argued aggravating and mitigating factors. After hearing counsel’s arguments, each defendant was sentenced to an extended term of 10 years. Defendants now appeal the court’s decision.

The first issue Rodriguez and Virgilio present for review is whether the trial court erred in imposing their 10-year extended-term sentences. They contend that the trial court improperly relied on the infliction of great bodily harm as a factor in imposing the extended-term sentence.

A trial court’s decision in the sentencing of a defendant is entitled to great weight and deference. (People v. La Pointe (1981), 88 Ill. 2d 482, 492-93.) Absent an abuse of discretion, the trial court’s decision will not be disturbed. (People v. Perruquet (1977), 68 Ill. 2d 149, 153.) A court of review will not substitute its judgment for that of the trial court merely because it would have imposed a different sentence. Perruquet, 68 Ill. 2d at 156.

The State initially maintains that the issue as to the excessiveness of the extended-term sentences was waived since it was not raised at sentencing. Where a defendant fails to object to deficiencies in sentencing proceedings and fails to raise the same issues in his post-trial motion, defendant has waived such issues on appeal. (People v. Howard (1984), 121 Ill. App. 3d 938, 953.) Even assuming, arguendo, that this issue was not waived, we do not find that the trial court abused its discretion in imposing the extended-term sentences.

The trial court in imposing the extended terms stated:

“Although the court is certain that the evidence is replete in the guilt of each defendant, either directly or by accountability ***, the court has examined the statute with reference to [an] extended term, that statute being Chapter 38, Section 1005— 8 — 2 which requires[,] before an extended term can be imposed[,] that the court look at and examine and find one or more of the aggravating factors set forth in Chapter 38, Section 1005 — 5—3.2 as being in existence before there can be the imposition of any extended term.
The court will impose an extended term in this case, and the basis upon which the court will impose the extended term is that the conduct of all of these defendants^] along with their henchmen who are not present in this courtroom and who were not arrested and charged[,] caused great and serious harm, serious bodily harm to Turk Glazebrook, serious emotional harm to all of the citizens of the community ***.
Not only that but each of these defendants has a history of prior criminal activity. That is replete in the report of the Adult Probation Department concerning their criminal history and background.”

Defendants argue that the court solely relied on the aggravating factor of serious bodily harm as a basis for the extended terms. We disagree that this was the sole basis for the court’s sentencing decision. Further, we are not persuaded that it was error for the court to consider serious bodily harm as a factor. See People v. Thomas (1988), 163 Ill. App. 3d 670, 682.

The statute sets forth the factors that may be considered in imposing an extended term:

“(b) [T]he following factors may be considered by the court as reasons to impose an extended term sentence *** upon any offender ***:
(1) When a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, within 10 years, excluding time spent in custody, and such charges are separately brought and tried and arise out of different series of acts; or
(2) When a defendant is convicted of any felony and the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty ***.” Ill. Rev. Stat. 1985, ch. 38, pars. 1005 — 5—3.2(b)(1), (2).

Although certain statutory factors are to be considered in determining whether an extended sentence should be imposed, it is not incorrect to also consider nonstatutory factors in aggravation when imposing an extended-term sentence. (People v. Thomas (1988), 168 Ill. App. 3d 113, 119.) It is not necessary for the trial court to articulate or assign a value to each fact upon which it relies in determining a sentence. (People v. Lucien (1982), 109 Ill. App. 3d 412, 420.) Since the factors to be considered in imposing an extended term (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—3.2(b)) are set forth in the disjunctive, the finding of any one of these factors would be sufficient as a basis for an extended-term sentence. Thomas, 168 Ill. App. 3d at 118.

The trial court in the instant case found that an extended term was warranted due to the infliction of serious bodily harm and the fact that both Rodriguez and Virgilio had previously been convicted of numerous felonies in the same or greater class. These previous convictions alone constitute a sufficient basis for the extended terms under the statute. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5— 3.2(b)(1).) We find, therefore, that the trial court did not err in imposing the extended-term sentences.

Rodriguez next contends that the trial court erred in refusing to treat him as an individual in determining his sentence in violation of the Illinois Constitution and the Illinois Criminal Code of 1961. (Ill. Const. 1970, art. I, §11; Ill. Rev. Stat. 1985, ch. 38, par. 1 — 2(c).) Defendant specifically refers to the following statement made by the court:

“Normally the court would attempt to apportion blame here in arriving at sentencing, but the evidence in this case makes it impossible to really apportion the blame that each defendant in this case bears.”

Section 11 of the Illinois Constitution provides:

“All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” (Ill. Const. 1970, art. I, §11.)

Section 1 — 2(c) of the Criminal Code provides that the purpose of the Code is to “[prescribe penalties which are proportionate to the seriousness of offenses and which permit recognition of differences in rehabilitation possibilities among individual offenders.” Ill. Rev. Stat. 1985, ch. 38, par. 1 — 2(c).

Absent an abuse of discretion the trial court’s decision will not be disturbed. (People v. Perruquet (1977), 68 Ill. 2d 149, 153.) A trial court may consider the disparity question in sentencing to fulfill one of the fundamental fairness mandates that those who are similarly situated do not receive grossly disparate sentences. However, an abuse of discretion will not.be found where the situations of defendant and his codefendants are sufficiently similar to warrant the same sentence. People v. Gonzalez (1979), 78 Ill. App. 3d 1146, 1149.

We do not find that the trial court abused its discretion where defendant (1) initiated the assault on Glazebrook by swinging his radio at him; (2) was a member of the group that battered Glazebrook; and (3) had a prior criminal history that included four felony convictions, three parole violations, and two probation violations. The trial court correctly found the evidence was sufficient to support defendant’s sentence either directly or under an accountability theory.

Finally, Rodriguez and Virgilio contend that the trial court erred in entering judgment and imposing sentence on three counts of aggravated battery rather than one count of aggravated battery, causing serious bodily harm, and that their sentences should be vacated and remanded for resentencing. The State confesses error in the imposition of two of the three counts. The remedy, as Rodriguez acknowledges, is to vacate the surplus convictions. (See People v. Williams (1987), 161 Ill. App. 3d 613, 622.) Remandment is not necessary where there is no indication that the trial court was improperly influenced by the surplus counts. Williams, 161 Ill. App. 3d at 622.

Although all of the orders of sentence and commitment reflect three counts of aggravated battery, we find no evidence that the trial court even considered, in sentencing, more than one count of aggravated battery. We, therefore, order that the orders of.sentence and commitment be modified so as to reflect vacation of the two surplus counts.

Now we will address the two issues raised by defendants Diaz and Allcala. Virgilio joins Diaz and Allcala in presenting the second issue to the court for review. First, defendants contend that they were denied their constitutional right to be present at all stages of their trial when the proceedings were continued after a lunch break despite the fact that neither defendant was present. During their absence Mrs. Glazebrook was cross-examined by codefendants’ counsel. The State maintains that defendants’ rights were waived by their failure to object at trial, and at their post-trial hearing. The State further argues, in the alternative, that if their right to be present was not waived, substantial rights were not involved and, therefore, their right to be present was not violated.

The following testimony was given by Mrs. Glazebrook while defendants Diaz and Allcala were absent:

“MR. KARLIN [counsel for Walker]: Miss [sic] GLAZE-BROOK, did I understand you to say that as soon as you started back, the group started dissipating or started running away just briefly, is that correct?
MRS. GLAZEBROOK: Right.
MR. KARLIN: And at that time, you found a person under the car and you didn’t see your husband or didn’t recognize him as your husband, but when you came up, the person was under the car, is that correct?
MR. GAMBONEY [Assistant State’s Attorney]: I’ll object to the form of the question.
THE COURT: Overruled. If she understands it. Do you understand the question, Mrs. Glazebrook?
MRS. GLAZEBROOK: Yes, but the sequence, I’m a little confused at your sequence.
MR. KARLIN: When you came out of the house the second time and did not see your husband, you saw someone being surrounded, is that correct?
MRS. GLAZEBROOK: That’s correct.
MR. KARLIN: And at the same time you saw some of those persons who were surrounding, start to take off, is that correct?
MRS. GLAZEBROOK: Yes.
MR. KARLIN: By the time you got down there, every one of those others had taken off?
MRS. GLAZEBROOK: Yes.
THE COURT: Tell him to bring out All cala and Diaz.
MR. KARLIN: And how far from — you then walked all the way down to the car, is that correct?
MRS. GLAZEBROOK: Walked all the way down?
MR. KARLIN: You walked all the way down to the car, did you? Yes or no.
MRS. GLAZEBROOK: Can I insert? I had-
MR. KARLIN: Did you walk?
MRS. GLAZEBROOK: I had been past the car. Do you understand what—
MR. KARLIN: No, I don’t.
MRS. GLAZEBROOK: I had chased them and I was past where my husband was.
MR. KARLIN: You left the person under the car?
MRS. GLAZEBROOK: I didn’t know there was somebody under the car.
MR. KARLIN: It wasn’t until you passed you saw somebody under the car?
MRS. GLAZEBROOK: I heard moans.
MR. KARLIN: You didn’t see anyone. You went past them?
MRS. GLAZEBROOK: Yes.
MR. KARLIN: How close did you come to anyone?
MRS. GLAZEBROOK: How close did I come to anyone? Probably sixty feet.
THE COURT: Let the record indicate Mr. Allcala and Mr. Diaz have been returned to the Court room, Miss Lamping having arrived. Proceed.”

The right to be present at trial, like many other constitutional rights, may be waived by defendant’s voluntarily or involuntarily absenting himself from trial. (People v. Allen (1967), 37 Ill. 2d 167, 171.) Defendants contend that the right to be present at trial is governed by a per se rule. We find no authority, nor do defendants cite to any authority, that would support their contention that the right to be present is governed by a per se rule. While we are not convinced that defendants waived their right to be present at trial, we find that no prejudicial error was committed that would warrant reversal. (See People v. Lawson (1977), 52 Ill. App. 3d 343, 353-54.)

“ ‘The purpose in reviewing a criminal case is to determine whether a just verdict has been rendered, upon sufficient competent evidence, after a trial in which no error prejudicial to defendant’s rights has occurred rather than a determination of whether the record is error free. [Citation.] Where it appears that the errors in the record could not have reasonably affected the result, the errors are harmless and the judgment of conviction should be affirmed. [Citation].’ ” (People v. Lawson (1977), 52 Ill. App. 3d 343, 354, quoting People v. Castillo (1976), 40 Ill. App. 3d 413, 420.)

Although it is ordinarily error to conduct a trial in defendant’s absence, in this case, however, defendants were absent for a short period of time and the substance of the testimony did not involve defendants or affect their substantial rights. We find that the error, if any, did not affect the outcome of the case.

Finally, defendants Diaz, Allcala, and Virgilio argue that they were denied a fair sentencing hearing because (1) the trial judge improperly considered the culpability of others who were not present in court and societal harm in general in determining their sentences, and (2) it was improper for the court to consider the victim impact statement. As previously stated in this opinion, we do not find an abuse of discretion where defendants in this case received the same sentences. The defendants were considered individually although receiving the same sentences.

Aggravated battery is a Class 2 felony with a sentencing range of not less than three years and not more than seven years. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1(a)(5).) An extended term may be imposed when a defendant has previously been convicted of any felony, in the same or greater class, within 10 years or the offense was accompanied by brutal or heinous behavior. (Ill. Rev. Stat. 1985, ch. 38, pars. 1005 — 5—3.2(b)(1), (2).) Each of the defendants had been convicted of at least one felony in the same or greater class within 10 years of this incident. We, therefore, find that defendants’ previous convictions were sufficient under the statute to warrant the extended-term sentence. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—3.2(b)(1).) Further, the attack on Glazebrook was arguably indicative of the kind of wanton behavior prohibited by the statute. Ill. Rev. Stat. 1985, ch. 38, par. 1005-5-3.2(b)(2).

The affect of such an offense on society may be considered but is not sufficient justification, without consideration of the other factors, to impose sentence. (People v. Hall (1987), 159 Ill. App. 3d 1021, 1034-35.) In this case, the trial court also considered both aggravating and mitigating factors concerning each defendant prior to imposing sentence. We do not find that the trial court erred in considering the effect of this offense or its affect on society in conjunction with the other pertinent factors in sentencing defendants.

We also find no merit in defendants’ argument that the trial court improperly considered the victim impact statement in sentencing them. As we recently decided in People v. Scott (1989), 180 Ill. App. 3d 418, 424, a trial court may consider evidence of victim impact at the sentencing hearing in a non-capital case. The case that defendants primarily rely upon for the proposition that victim impact statements may not be considered in sentencing, Booth v. Maryland (1987), 482 U.S. 496, 96 L. Ed. 2d 440, 107 S. Ct. 2529, may be distinguished from the instant case, because the offense involved in Booth was a capital offense. Victim impact statements may, however, be considered in noncapital cases. Scott, 180 Ill. App. 3d at 424.

For the foregoing reasons, the decision of the circuit court is affirmed, and the sentence and commitment orders are hereby modified to reflect vacation of the surplus counts. As part of our judgment, we grant the State’s request that defendants be assessed $75 as costs and fees for this appeal, pursuant to People v. Agnew (1985), 105 Ill. 2d 275, and People v. Nicholls (1978), 71 Ill. 2d 166.

Affirmed as modified.

JIGANTI, P.J., and LINN, J., concur.