author: PRESIDING JUSTICE BILANDIC

text:
    GENEVIEVE MARCZAK, Plaintiff-Appellant, v. DREXEL NATIONAL BANK et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—88—0472
    Opinion filed July 18, 1989.

      Robert J. Pavich and Barry A. Spevack, both of Monico & Pavich, of Chicago, for appellant.
    Thomas D. Allison and George W. Terrell, Jr., both of Cotton, Watt, Jones & King, of Chicago, for appellees.
   PRESIDING JUSTICE BILANDIC

delivered the opinion of the court:

Plaintiff, Genevieve Marczak, appeals from the trial court’s dismissal of her first amended complaint and the denial of her motion for leave to file a second amended complaint. She argues that the complaint sufficiently alleged defamation and that she was not precluded from recovery for unjust dismissal and intentional interference with a business relationship by the National Bank Act of 1864. 12 U.S.C. §24 (1982).

Plaintiff’s first amended complaint was filed against Drexel National Bank (hereinafter the Bank) and John Colgan, Russ Ewert and Ann Nickel, who are officers of the Bank. Count I alleges defamation; count II alleges intentional interference with employment relationship; and count III alleges unjust dismissal. The complaint alleged that plaintiff began her employment with the Bank in 1965 as a clerk and, by January 1981, worked her way up to the position of assistant comptroller. In June of the same year, she was promoted to assistant vice-president and assistant controller. In October 1985, plaintiff received an employee termination report which stated in relevant part:

“Ms. Marczak did not perform up to the high standards expected of officers of the Bank. She had some problems getting along with her supervisors and other officers; at times she was uncooperative and did not have the Bank’s best interest at heart; and she did recently refuse to perform one of the responsibilities of her position (petty cash).”

The report, signed by the individual defendants as officers of the Bank, also stated that plaintiff had received several prior verbal reprimands about her conduct.

Pursuant to defendants’ section 2 — 615 motion (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615), the trial court dismissed all three counts, finding: (1) there is no defamation per se; (2) there are insufficient allegations of malice; and (3) the actions are precluded by the National Banking Act (12 U.S.C. §24 (1982)). The court also denied plaintiff leave to file a second amended complaint, finding that it failed to cure the defects in the original and first amended complaint.

A trial court’s power to allow amendments should be freely exercised in order that litigants may fully present their causes of action. (Giannini v. First National Bank (1985), 136 Ill. App. 3d 971, 988, 483 N.E.2d 924.) Factors to be considered in determining whether the trial court’s discretion in permitting or denying amendments was properly exercised is whether the proposed amendment would cure a defective pleading; whether other parties would sustain prejudice or surprise by virtue of the proposed amendments; and whether previous opportunities to amend pleadings could be identified. (Hoffman v. Nustra (1986), 143 Ill. App. 3d 259, 265, 492 N.E.2d 981, appeal denied (1986), 112 Ill. 2d 575.) The court may consider the ultimate efficacy of a claim in passing on a motion to amend a pleading and may deny leave if the proposed amendment does not cure the defect. Schenker v. Chicago Title & Trust Co. (1984), 128 Ill. App. 3d 488, 470 N.E.2d 1264, appeal denied (1985), 101 Ill. 2d 593.

I

Count I of the proposed second amended complaint alleges that the language used by plaintiff’s employer in the employee termination report constitutes defamation per se. A defamation is the publication of anything injurious to the good name or reputation of another, or which tends to bring him or her into disrepute. (Whitby v. Associates Discount Corp. (1965), 59 Ill. App. 2d 337, 340, 207 N.E.2d 452.) The gravamen of an action for defamation is the damage to plaintiff’s reputation in the eyes of other persons. (Cowper v. Vannier (1959), 20 Ill. App. 2d 499, 503, 156 N.E.2d 761.) Words are held to be defamatory per se where they impute: (1) commission of a criminal offense; (2) infection with a communicable disease; (3) inability to perform, or want of integrity to discharge duties of office or employment; and (4) prejudicing a particular party in his trade, profession or calling. Catalano v. Pechous (1978), 69 Ill. App. 3d 797, 805, 387 N.E.2d 714, aff’d (1980), 83 Ill. 2d 146, 419 N.E.2d 350, cert. denied (1981), 451 U.S. 911, 68 L. Ed. 2d 300, 101 S. Ct. 1981.

A defamation can never be per se if the words themselves are capable of an innocent construction. (John v. Tribune Co. (1962), 24 Ill. 2d 437, 442, 181 N.E.2d 105, cert. denied (1962), 371 U.S. 877, 9 L. Ed. 2d 114, 83 S. Ct. 148; Jacobs v. Gasoline Retailers Association (1975), 28 Ill. App. 3d 7, 10, 328 N.E.2d 187, appeal denied (1975), 60 Ill. 2d 597.) Plaintiff’s assertion that the Illinois Supreme Court repudiated the innocent construction rule is misplaced. In Chapski v. Copley Press (1982), 92 Ill. 2d 344, 442 N.E.2d 195, “the Illinois Supreme Court has chosen not to discard the innocent construction rule, but to give it a special gloss.” (Harris Trust & Savings Bank v. Phillips (1987), 154 Ill. App. 3d 574, 581, 506 N.E.2d 1370, appeal denied (1987), 116 Ill. 2d 554.) Chapski formally added reasonableness to such innocent constructions. See Harris, 154 Ill. App. 3d at 581.

In Powers v. Delnor Hospital (1986), 148 Ill. App. 3d 844, 499 N.E.2d 666, plaintiff based a defamation action on the following statement:

“The continuous dissatisfaction *** [plaintiff] has indicated in both written communications and verbally, regarding personnell [sic] policies and procedures, as well as the continued friction and tension created within the department because of her expressed attitudes and feelings about the nursing profession and her peers make continued employment impossible.” 148 Ill. App. 3d at 846.

The Powers court held that such statements were not actionable per se because they are directed to plaintiff’s relationship with her coworkers and do not pertain to her knowledge and ability to care for patients as a nurse. Powers, 148 Ill. App. 3d at 847.

The test of defamation per se is whether the words “are so obviously and naturally hurtful that proof of injury is not necessary.” (Renard v. Columbia Broadcasting System, Inc. (1984), 126 Ill. App. 3d 563, 566, 467 N.E.2d 1090, appeal denied (1984), 101 Ill. 2d 587, cert. denied (1985), 471 U.S. 1116, 86 L. Ed. 2d 259, 105 S. Ct. 2358.) In the case at hand, the trial court properly found that defendants are “not saying she is a bad banker, basically. What they are saying is, she had trouble getting along with other people in the bank and that it’s disruptive *** the person doesn’t fit into this organization, and, therefore, we can’t make use of her services any longer.”

As the words are capable of reasonable innocent construction, they are not actionable per se, and as the plaintiff has not alleged that the statement was defamatory per quod, the dismissal of count I of the first amended complaint and the refusal to grant leave to file a second amended count I is affirmed.

II

Count II alleges intentional interference with employment relationship. The trial court dismissed this count as barred by the National Bank Act of 1864 (12 U.S.C. §24 (1982)) (hereinafter the Act) and for failure to properly allege that defendants acted with malice.

The elements of intentional interference with employment relationship are: (1) reasonable expectation of continued employment; (2) knowledge of the business relationship by the interferer; (3) intentional interference; and (4) resultant damage. Cashman v. Shinn (1982), 109 Ill

Kemper v. Worcester (1982), 106 Ill. App. 3d 121, 435 N.E.2d 827, appeal denied (1982), 91 Ill. 2d 570, held that the Act did not bar a bank officer from suing for tortious interference with employment relations. The court rejected the argument that the employee of the bank did not have a legitimate expectation of future employment because of the at-will nature of the employment imposed by the Act. The court held that an action could be had for tortious interference with an at-will employment relationship because until a contract is terminated, it is a subsisting relation which would presumably continue in effect. See TAD, Inc. v. Siebert (1978), 63 Ill. App. 3d 1001, 1006, 380 N.E.2d 963, appeal denied (1978), 71 Ill. 2d 621 (where there is a malicious interference with an employment contract, it is immaterial whether it is for a fixed period or a contract terminable at will if both parties would have been willing to continue employment for an indefinite time); Getschow v. Commonwealth Edison Co. (1982), 111 Ill. App. 3d 522, 529, 441 N.E.2d 579, aff’d in part, rev’d in part (1984), 99 Ill. 2d 528, 459 N.E.2d 1332 (maliciously causing a breach of contract terminable at will is actionable).

In light of the foregoing, we find that count II is not barred by the Act. We must now determine whether the court properly found count II deficient for failure to allege malice.

A supervisor’s freedom to interfere with an employee’s employment is not absolute, and at-will status does not immunize a supervisor from liability. (Haupt v. International Harvester Co. (N.D. Ill. 1984), 582 F. Supp. 545, 549-50.) To recover for tortious interference with contractual relations, plaintiff must show that defendant acted either without justification or with malice. H.F. Philipsborn & Co. v. Suson (1974), 59 Ill. 2d 465, 474, 322 N.E.2d 45; see also George A. Fuller Co. v. Chicago College of Osteopathic Medicine (7th Cir. 1983), 719 F.2d 1326, 1333 (to state a cause of action against corporate officers for interfering with their corporate principals’ contract, facts must be alleged that establish that the officers induced the breach to further their personal goals or to injure the other party to the contract and that they acted contrary to the best interests of the corporation).

The plaintiff alleges in her second amended complaint:

“The defendants either knew the statements were false when they made them, or should have known the statements were false, but made no effort to determine their truth or falsity before making them.”

She alleged that defendants “made these accusations intentionally and maliciously” and did so “in an effort to justify the termination of plaintiff’s employment.” In order to demonstrate that the statements were false and known to be false, plaintiff alleged that during the course of her employment with the Bank, she received favorable performance reviews signed by one of the individual defendants in his capacity as an officer of the Bank.

Defendants contend that the allegations that the statements were false and known to be false when made are conclusions rather than facts. These, however, are the ultimate facts in this case. As the court in Powers v. Delnor Hospital (1985), 135 Ill. App. 3d 317, 321, 481 N.E.2d 968, stated:

“[Tjhere is no other way to allege these facts. Indeed, it is directly from these facts that it is possible to infer the legal conclusion that the inducement to breach was intentional and malicious.”

As in Powers, we find that the allegations of falsity, knowledge and malice are sufficient. We, therefore, conclude that the dismissal of count II of the first amended complaint and the refusal to grant leave to file a second amended count II were improper.

Ill

The last issue is whether the count for unjust dismissal was properly dismissed on the basis that it was barred by the Act. Plaintiff argues that the Act only bars appointed high level bank officers from bringing actions for unjust dismissal. The fifth subsection states that a national bank has the power

“by its board of directors to appoint a president, vice president, cashier, and other officers, define their duties, require bonds of them ***, dismiss such officers or any of them at pleasure, and appoint others to fill their places.” (Emphasis added.) 12 U.S.C. §24, par. 5 (1982).

The Act bars suits for wrongful discharge because a national bank may not bargain away its right to discharge officers at pleasure. (Kemper v. First National Bank in Newton (1981), 94 Ill. App. 3d 169, 171, 418 N.E.2d 819.) But the dismissal at pleasure rule does not apply where the Act’s requirements that the officer be appointed and dismissed by the board of directors are not met. Wiskotoni v. Michigan National Bank-West (6th Cir. 1983), 716 F.2d 378, 387; Mahoney v. Crocker National Bank (N.D. Calif. 1983), 571 F. Supp. 287, 289-91.

At this stage in the proceedings, there is nothing in the record regarding the action by the board of directors in the appointment or discharge of the plaintiff pursuant to the provisions of the Act. Therefore, the trial court erred in dismissing the count for unjust dismissal because it cannot be said as a matter of law that plaintiff was appointed or dismissed in accordance with the statute.

Accordingly, the judgment of the circuit court is affirmed in part and reversed in part, and remanded with instructions to reinstate counts II and III.

Affirmed in part; reversed in part and remanded with directions.

HARTMAN and SCARIANO, JJ., concur.


source: Caselaw Access Project

author: JUSTICE JOHNSON PRESIDING JUSTICE JIGANTI,

license: Public Domain

text:
    RAYMONA GONZALEZ, Adm’r of the Estate of Juanita Caraveo, Deceased, Plaintiff-Appellant, v. THOREK HOSPITAL AND MEDICAL CENTER et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—87—1221
    Opinion filed July 20, 1989.

      JIGANTI, P.J., dissenting.
    Michael W. Rathsack, of Chicago (Louis S. Goldstein and Cindy G. Flux-gold, of counsel), for appellant.
    French, Rogers, Kezelis & Kominiarek, of Chicago (Algimantas Kezelis and Russell P. Veldenz, of counsel), for appellee Mitchell V. Kaminski.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Anthony J. Alholm, Joshua G. Vincent, Susan A. Wagener, and Gerald Haberkorn, of counsel), for appellee Thorek Hospital and Medical Center.
    Arnstein, Gluck, Lehr & Milligan, of Chicago (Arthur L. Klein, Fredric J. Entin, and David S. Waxman, of counsel), for appellee Arnold Kaplan.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Raymona Gonzalez, administrator of the estate of Juanita Caraveo, deceased, appeals from the order and judgment of the circuit court of Cook County dismissing her complaint based on the tolling of the statute of limitations. The sole issue for review is whether the document filed in 1984 prior to the expiration of the statute of limitations constituted a complaint sufficient to allow plaintiff to refile the action after the expiration of the statute of limitations, pursuant to section 13 — 217 of the Code of Civil Procedure (hereinafter the Code) (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 217).

We affirm.

On June 14, 1984, plaintiff filed a document purporting to be a complaint against Thorek Hospital (hereinafter Thorek or the Hospital) and various doctors. The document consisted of four typewritten pages. The first three pages identified Thorek as a hospital and the individual defendants as doctors. The doctors were noted as agents and employees of the Hospital. The document also stated that decedent had entrusted Thorek with her care on or about June 14, 1982, and that she had been in the exercise of due care. Further, the document alleged a duty on the part of the Hospital, by and through its agents, to render services commensurate with the medical needs of the patients at Thorek. The last page revealed the signature of plaintiffs attorney. Defendants were never served in this action; they received no notice until September 15, 1985, after the statute of limitations had expired. On December 14, 1984, the action was dismissed for want of prosecution.

On July 5, 1985, plaintiff refiled her action pursuant to section 13 — 217 of the Code. On the same day, plaintiff was appointed the administrator of decedent’s estate. The complaint contained 16 counts alleging negligence, which occurred on June 14, 1982, against defendants. The Hospital, Dr. Kaplan, Dr. Chan, Dr. Odiaga, and Dr. Kaminski filed motions to dismiss pursuant to section 2 — 619 of the Code. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 619.) They argued that the first action was a nullity because it failed to state a cause of action and a prayer for relief; therefore, it could not serve as the basis for the second action.

Plaintiff filed a memorandum of law in opposition to defendants’ motions, accompanied by a copy of the alleged complaint in the first action and an affidavit. Plaintiff stated that a 16-count complaint had been drafted in the first action and that the attorney handling the action was unaware of the missing pages until defendants raised the issue in their motions to dismiss the second action.

On July 14, 1986, the court granted the motions to dismiss of Dr. Kaminski, Dr. Chan, and Dr. Odiaga. Plaintiff’s motion to vacate this order was denied on March 23, 1987. On the same day, the court granted Dr. Kaplan’s and Thorek’s motions to dismiss. The court further ordered the plaintiff’s action dismissed with prejudice. This appeal followed.

Plaintiff contends that the document which was the basis of the first action was a timely filed complaint and, thus, she is entitled to refile the action under section 13 — 217 of the Code.

Initially, we must determine whether the document filed in the first action constitutes a complaint or states a cause of action. Plaintiff concedes that the alleged complaint was defective in that it failed to state a cause of action; however, she argues that it contained enough allegations to be a valid complaint.

Pursuant to section 2 — 603(a) of the Code, “[a]ll pleadings shall contain a plain and concise statement of the pleader’s cause of action.” (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 603(a).) The complaint must justify the enactment of the trial process by setting forth a legally cognizable cause of action. (Holton v. Resurrection Hospital (1980), 88 Ill. App. 3d 655, 658.) It must also give notice to the defendant of the specific manner he has allegedly harmed the plaintiff so as to enable him to formulate an answer and prepare for trial. (Holton, 88 Ill. App. 3d at 658.) Accordingly, “a complaint is required to state material facts with sufficient specificity to show that the elements of the cause of action exist.” (Holton, 88 Ill. App. 3d at 658.) At the very least, “it must contain sufficient factual allegations *** to demonstrate to the court and the defendant *** that the plaintiff is or may be harmed, the way in which the plaintiff has been harmed and that the harm results from some legal transgression or violation of a legal duty by the defendant.” (B.L. Cartage Co. v. City of Chicago (1976), 35 Ill. App. 3d 1055, 1060.) While pleadings are to be liberally construed, a complaint which fails to meet the above requirements does not state a cause of action and such a deficiency may not be cured by liberal construction or by argument. Fanning v. LeMay (1967), 38 Ill. 2d 209, 211; Founding Church of Scientology v. American Medical Association (1978), 60 Ill. App. 3d at 586, 589.

The first action does not satisfy the minimum requirements of the Code set forth above. The alleged complaint noted the professional status of defendants and identified them as agents and employees of the Hospital. It also stated that the decedent was a patient at Thorek, that she possessed no professional medical knowledge, and that she exercised ordinary care.

A perusal of this alleged complaint reveals its insufficiency as a complaint. It fails to state that plaintiff was or may be harmed, the manner in which such harm occurred, and whether the harm resulted from some violation of a legal duty by defendants. The document also fails to state what actions defendants committed in violation of their duty to decedent. Clearly, this document neither justifies the enactment of the trial process nor informs defendants of the allegations against them in order to prepare for trial. (Holton v. Resurrection Hospital (1980), 88 Ill. App. 3d 655, 658.) The document, therefore, does not meet the requirements of section 2 — 603(a) of the Code. Ill. Rev. Stat. 1985, ch. 110, par. 2-603(a).

Plaintiff insists that the Code does not set forth a “bright line” test to determine if there is a proper filing of the complaint for purposes of the refiling statute or the relation back doctrine (Ill. Rev. Stat. 1985, ch. 110, pars. 13 — 217, 2 — 616(b)). Since more than two years had elapsed after the alleged cause of action arose and the commencement of this action, it is conceded that plaintiff would have been barred by the statute of limitations but for sections 13 — 217 and 2 — 616(b) of the Code.

Section 13 — 217 of the Code provides in pertinent part:

“[A]ny *** act or contract where the time for commencing an action is limited, if *** the action is dismissed for want of prosecution, *** then, whether or not the time limitation for bringing such action expires during the pendency of such action, the plaintiff, his or her heirs, executors or administrators may commence a new action -within one year or within the remaining period of limitation, whichever is greater, after *** the action is dismissed for want of prosecution ***.” Ill. Rev. Stat. 1985, ch. 110, par. 13 — 217.

The trial court correctly found that the case at bar is analogous to Gibbs v. Crane (1899), 180 Ill. 191. In Gibbs the plaintiff filed a praecipe and service of summons. The action was nonsuited due to plaintiff’s failure to file a declaration (i.e., complaint). Within one year of the dismissal, plaintiff began a new cause of action under the predecessor of section 13 — 217. He alleged that the second cause of action was a refiling of the previous action.

The court rejected plaintiff’s arguments because the first action provided no information as to the particular claim upon which the second suit was based. The court held that one’s entitlement to refile, when a prior action has been dismissed, voluntarily or for want of prosecution, rests on the identity of actions as between the first action and the second action, the latter being the refiling. (Gibbs, 180 Ill. App. 3d at 194, 196-97.) The court further held that parol testimony is inadmissible to establish the identity of actions.

Absent any theory of liability or substantive allegations in the earlier action to identify with the later action, we must find that the second action cannot be deemed a refiling of the initial action.

Section 2 — 616(b) provides in relevant part:

“The cause of action *** set up in any amended pleading shall not be barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if the time prescribed or limited had not expired when the original pleading was filed, and if it shall appear from the original and amended pleadings that the cause of action asserted *** grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery or defense asserted *** an amendment to any pleading shall be held to relate back to the date of the filing of the original pleading so amended.” Ill. Rev. Stat. 1985, ch. 110, par. 2 — 616(b).

The amended complaint relates back to the filing date of the initial complaint if the original complaint provides the defendant with all of the information necessary to prepare a defense to the claims subsequently alleged in the amended complaint. (Perkins v. Pepsi-Cola General Bottlers, Inc. (1987), 158 Ill. App. 3d 893, 900.) Requiring the amended complaint to grow out of the same transaction or occurrence stated in the first complaint is based “on the rationale that the defendant has not been prejudiced so long as his attention has been directed to the facts which form the basis of the claim within the prescribed time. [Citation.]” (Chestnut v. Adeli (1985), 131 Ill. App. 3d 24, 27, quoting Krieger v. Village of Carpentersville (1972), 8 Ill. App. 3d 243, 246-47.) “The right to amend and the relation back of an amendment do not depend on the subjective frame of mind of the pleader, but depend on whether the original complaint furnishes to the defendant all of the information necessary to prepare its defense to the claim subsequently asserted in the amended complaint. [Citation.]” (Krieger, 8 Ill. App. 3d at 246.) If the cause of action in the amended pleading fails to grow out of the same transaction or occurrence alleged in the original pleading, the amendment is considered a new cause of action or suit commencing on the date the amended complaint was filed. Perkins, 158 Ill. App. 3d at 900.

Applying the above principles to the case at bar, the document filed by plaintiff does not provide defendants with any information necessary to prepare a defense to the allegations set forth in the second action. Consequently, neither section 13 — 217 nor section 2— 616(b) of the Code prevents the tolling of the statute of limitations. According to plaintiff’s complaint in the second action, the medical malpractice action arose no later than on or about February 15, 1983, the date of the decedent’s death. Therefore, February 15, 1985, was the last possible date plaintiff could have filed her action. Since the second action was filed on July 5, 1985, the trial court properly dismissed the complaint based on the tolling of the statute of limitations.

For the foregoing reasons, the order and judgment of the circuit court of Cook County are affirmed.

Affirmed.

McMORROW, J., concurs.

PRESIDING JUSTICE JIGANTI,

dissenting:

I respectfully dissent.

The plaintiff filed a complaint that was dismissed for want of prosecution. After the statute of limitations had run but within a year of the dismissal, the plaintiff commenced the instant action. The only issue on appeal is whether the plaintiff is entitled to refile her action under section 13 — 217 of the Code of Civil Procedure. Under this section, after an action is dismissed for want of prosecution, a plaintiff “may commence a new action within one year,” even though the statute of limitations has expired. Ill. Rev. Stat. 1987, ch. 110, par. 13— 217.

The majority holds that section 13 — 217 does not apply because the original complaint was not an action and was in effect a nullity. Consequently, the majority concludes, the present case is the first filing of the complaint and not a “new action” and as such is barred by the statute of limitations.

I agree with the majority that the case of Gibbs v. Crane Elevator Co. (1899), 180 Ill. 191, 54 N.E. 200, is relevant to the issue before the court. However, I believe that Gibbs supports the conclusion that the plaintiff is entitled to refile her action under section 13 — 217. Gibbs involved the application of a refiling statute similar to section 13 — 217. In the original lawsuit, the plaintiff only filed a praecipe. The action was dismissed for failure to file a declaration. Within one year of the dismissal of the first suit, the plaintiff began a new action. The court stated that the statute concerning refiling would only apply if the record showed that the two suits were for the identical claim or cause of action. Since the praecipe stated no facts, the record was devoid of facts concerning the first suit. Without any facts concerning the first suit, there filing could not be shown to be the same and consequently it was not allowed.

The significance of Gibbs in analyzing the application of refiling statutes is that refiling should be allowed if the record shows that the two suits are for the identical claim or cause of action. This same rationale is at work in section 2 — 616 of the Code of Civil Procedure, which concerns amendments to pleadings. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 616.) This section is comparable to the refiling statute in the case at bar in that it allows amendments to a complaint after the statute of limitations. Under section 2 — 616, an amendment may be filed “if it shall appear from the original and amended pleadings that the cause of action asserted *** grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 616(b).) The clear wording of this section indicates that a complaint may be amended if the action in the amended complaint is the same as the action in the original complaint.

Based on the rationale set forth in Gibbs as well as the clear wording of section 2 — 616 concerning amendments to pleadings, I believe that the answer to the question of whether the plaintiff is entitled to refile her action under section 13 — 217 hinges on a determination of whether the second action is the same as the first. While the facts in the original complaint are admittedly deficient, they are slightly more expansive than the majority suggests. The complaint identifies Thorek Hospital and Medical Center and names the doctors as agents of the hospital. The complaint identifies the decedent as a person under the care of the hospital and of its employees. It states that it was the duty of the hospital, their agents and specifically the doctors to render medical care so as not to negligently cause injury to the decedent. It alleges that the decedent was in the exercise of ordinary care and free from any contributory negligence. It states that on or about June 14, 1982, the decedent entered the hospital and entrusted herself entirely to the care of the defendant hospital and its employees.

The complaint in the second action realleges those facts above and specifically charges the defendants with certain acts of negligence and includes a request for a judgment in excess of $15,000. It is apparent to me that the two suits are identical causes of action. The first suit indicates that there was injury to the decedent as a result of the admission to the hospital on that day and that the injury was a result of some conduct of the hospital and the doctors. As stated above, the second suit realleges the facts in the first action and charges the defendants with certain acts of negligence.

Any deficiencies in the original complaint can be rectified by way of an amendment. However, the deficiencies in the original complaint are not of such a nature that the plaintiff should be barred from refiling her action under section 13 — 217.

For the foregoing reasons, I would reverse the trial court.


author: JUSTICE LINN

text:
    JAPAX, INC., Plaintiff-Appellant, v. SODICK COMPANY LIMITED et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—88—1426
    Opinion filed July 20, 1989.

      Niro, Scavone, Haller, Niro & Rockey, Ltd., of Chicago (Raymond R Niro, William L. Niro, and Robert A. Vitale, Jr., of counsel), for appellant.
    Alexander, Unikel, Zalews & Tenenbaum, Ltd., of Chicago, and Marks, Murase & White, of New York, New York (Alan L. Unikel, Marvin A. Tenenbaum, Ralph J. Schumann, P. Jay Wilker, and Andrew D. Rackear, of counsel), for appellees.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Japax, Inc., appeals from the dismissal of its action against defendants, Sodick Company Limited (Sodick Japan) and So-dick, Inc. (Sodick USA). Sodick Japan successfully moved to dismiss the complaint against it on the ground that the Illinois trial court lacked personal jurisdiction over the Japanese corporation. Sodick USA successfully moved to dismiss the action against it on the grounds of forum non conveniens.

Japax contends that this court should conduct a de novo review of the record and reverse the orders of the trial court. Specifically, Japax argues that the trial court erred in refusing to permit Japax to take limited discovery on the jurisdictional issues and to correct misrepresentations that defendants made in their affidavits. Alternatively, Japax requests this court to hold, based upon the record, that the trial court’s rulings on both the jurisdictional matter and the fo rum non conveniens issue were erroneous as a matter of law.

We reverse and remand.

Background

In October 1987 Japax, a Japanese corporation, filed suit against defendants, charging them with intentional interference with contractual and business relationships, negligent interference with prospective economic advantage, unfair competition and unjust enrichment. It seeks both damages and a preliminary injunction.

The parties compete in the same business, which is the manufacture and sale or servicing of electrical discharge machinery (EDM). These machines are used to erode extremely hard metals through a series of electrical spark discharges.

Sodick USA is the wholly owned distributor of Sodick Japan. So-dick Japan manufactures its EDM systems in Japan to companies who then sell them in the United States. Sodick USA services these systems.

Japax claims that defendants misappropriated Japax’s trade secrets and interfered with a distributor agreement between Japax and its exclusive United States distributor, Bridgeport Machines, Inc. This agreement provided that Bridgeport would distribute Japax’s EDM equipment for a period of years. Two years before the expiration of the term of the agreement, Bridgeport informed Japax that it had conducted negotiations with Sodick Japan and would begin selling Sodick EDM systems to Japax’s customers instead of Japax EDM systems.

Japax filed an emergency motion for expedited discovery seeking to develop facts to support a preliminary injunction on October 29, 1987. Sodick USA filed a memorandum in opposition to the motion on the morning of the hearing, November 2. At the time, Sodick Japan had not been served with summons. At the hearing, Sodick USA’s attorney represented to the court that Sodick USA opposed the motion for expedited discovery on the basis that defendants intended to move for dismissal of the complaint for, among other things, lack of personal jurisdiction (over Sodick Japan) and failure to state a cause of action. The trial court denied the discovery motion, noting that motions to dismiss tested the sufficiency of the pleadings and as such did not require any discovery.

Three days later, Japax moved for leave to file an amended complaint alleging further facts in support of personal jurisdiction. The court allowed the motion on November 10, 1987, after which Sodick filed a form special and limited appearance. On December 8, 1987, Sodick Japan filed a motion to quash summons for lack of personal jurisdiction and Sodick USA filed motions to dismiss on the grounds of forum non conveniens and failure to state a cause of action.

Japax filed memoranda in opposition to defendants’ motions on January 11, 1988. On January 13 the trial court gave defendants 30 days to file memoranda in support of their motions and again denied all discovery until all defendants filed a general appearance.

Shortly thereafter, Sodick USA moved to stay the proceedings pending resolution of an arbitration proceeding between Japax and its distributor, Bridgeport, in California. At the hearing on February 25, 1988, Sodick USA appeared generally and Sodick Japan claimed to be appearing specially. The court denied the defendants’ motion to stay.

The hearing on defendants’ motions to dismiss Japax’s complaint took place on March 21, 1988. Defendants had filed the affidavits of certain corporate officials in support of their respective motions to dismiss. The trial court granted Sodick Japan’s motion to dismiss for want of personal jurisdiction and Sodick USA’s motion to dismiss under forum non conveniens.

On April 8, 1988, Japax moved the court to reconsider its March 21 order and to compel discovery into the matters alleged in defendants’ affidavits, which Japax claimed were untrue. In support of its motion Japax filed certain documents, under seal, which were court documents from another proceeding pending in the United States District Court for the Northern District of Illinois. The trial court summarily denied the motion.

Japax appeals from the orders of March 21 and April 8, 1988.

Opinion

This appeal presents two main issues: (1) does the record contain sufficient facts in support of the Illinois courts’ exercise of personal jurisdiction over Sodick Japan; and (2) did the trial court properly apply the principles of forum non conveniens in dismissing the action against Sodick USA?

I

Japax asserts that Sodick Japan waived its special and limited appearance by participating in the proceedings while objecting to the court’s jurisdiction over it. Both defendants used the same law firm to represent them, which did create ambiguity because the one attorney speaking for both defendants was appearing in a general capacity for one at the same time he was appearing in a “limited” capacity for the other. In fact, he argued in the initial hearing on Japax’s discovery motion that it would be “profoundly unfair to require Sodick Japan and Sodick USA to incur the time and expense of participating in expedited discovery.”

We are not prepared to conclusively find, however, that Sodick Japan waived its objections to personal jurisdiction under the facts of this case. There was an attempt to comply with the form of the special and limited appearance. Accordingly, we will move on to the determination of whether Sodick Japan’s contacts "with Illinois provide a sufficient base for in personam jurisdiction.

Japax argues that Sodick Japan should be required to defend the lawsuit in this forum because of the nature and amount of contacts it has with Illinois. In the alternative, Japax contends that the trial court abused its discretion in denying discovery into the jurisdictional facts because without such discovery Japax could not effectively counter the defendants’ misleading affidavits filed in support of their motions to dismiss.

In the trial court Japax set forth three bases for jurisdiction: So-dick Japan was “doing business” in Illinois; Sodick USA is the alter ego of Sodick; and Sodick Japan’s contacts directly relate to Japax’s cause of action so that Illinois has jurisdiction over the transaction pursuant to the long-arm statute, section 2 — 209(a)(1) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 209(a)(1)).

Because we believe that the record reveals enough contacts to support the trial court’s general jurisdiction under the “doing business” standard, we need not decide whether the long-arm statute applies or whether Sodick USA is the alter ego of Sodick Japan.

As we noted in Radosta v. Devil’s Head Ski Lodge (1988), 172 Ill. App. 3d 289, 293, 526 N.E.2d 561, the determination of whether a foreign corporate defendant is doing business in Illinois depends on the nature and quantity of contacts it maintains. There is no litmus test to apply, but there must be more than mere solicitation of business in Illinois. (St. Louis-San Francisco Ry. Co. v. Gitchoff (1977), 68 Ill. 2d 38, 369 N.E.2d 54; Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190, 429 N.E.2d 847.) Solicitation plus sales or supervisory control over distributors may be sufficient, however. (See Braband v. Beech Aircraft Corp. (1978), 72 Ill. 2d 548, 382 N.E.2d 252.) Similarly, if a defendant’s products regularly enter Illinois in substantial amounts, jurisdiction may be justified. Connelly v. Uniroyal, Inc. (1979), 75 Ill. 2d 393, 389 N.E.2d 155. Cf. Asahi Metal Industry Co. v. Superior Court (1987), 480 U.S. 102, 94 L. Ed. 2d 92, 107 S. Ct. 1026 (California’s exercise of jurisdiction over indemnity claim between Japanese and Taiwanese manufacturers was fundamentally unfair in part because California had slight interest in the indemnity litigation; majority of court did not agree on whether defendant’s mere knowledge that products likely would enter California would be sufficient minimum contacts with forum): Wiles v. Morita Iron Works Co. (1988), 125 Ill. 2d 144, 530 N.E.2d 1382 (Illinois jurisdiction over Japanese defendant did not comport with due process principles because record contained no evidence that defendant was aware that its distributor even had a plant in Illinois or intended to ship two products in Illinois; mere presence of the allegedly defective product in Illinois was insufficient to subject foreign manufacturer to the jurisdiction of Illinois).

The parties in the pending case sharply disagree over the nature and number of contacts that Sodick Japan had with Illinois. Sodick Japan claims that it has no offices, telephones, employees or agents in Illinois, makes no sales in Illinois, owns no property in Illinois and is connected to this State only by virtue of the fact some of its products end up here.

Japax, on the other hand, alleges that Sodick Japan sells its products directly to American companies having facilities in Illinois and indirectly sells its products to Illinois through its network of distributors. One such distributor is an Illinois company whose distributor agreement with Sodick Japan obligates the Japanese company to warrant its EDM systems and send service personnel to Illinois. Japax also alleges that Sodick Japan’s controls over Sodick USA are so substantial that the subsidiary’s marketing activities in Illinois can be attributed to the parent corporation. In addition, Sodick Japan is already subject to the jurisdiction of the Federal District Court for the Northern District of Illinois in pending patent lawsuits.

To prevail on the argument that Illinois may exercise personal jurisdiction over Sodick Japan, Japax must establish a prima facie showing of sufficient contacts. Conflicts in the pleadings and affidavits generally are to be resolved in favor of the plaintiff. See Kutner v. DeMassa (1981), 96 Ill. App. 3d 243, 421 N.E.2d 231 (long-arm jurisdiction).

Listed below are the disputed contacts between Sodick Japan and Illinois:

(1.) Sodick Japan, manufacturer of EDM systems, sells them in Illinois, at least indirectly through distributors. (Sodick Japan admits that its products are sold in the United States but claims to sell them to independent distributors who sell where they please.)

(2.) Sodick Japan advertises its products in Illinois. (Sodick Japan denies that it has ever contracted in Illinois for advertising.)

(3.) Sodick Japan directs and controls its wholly owned subsidiary, Sodick USA, and through it has many contacts with Illinois. (Defendants deny that Sodick Japan controls Sodick USA and state that Sodick USA’s management conducts the company’s business and makes the decisions affecting marketing, policy and work production.)

(4.) Sodick Japan has eight employees in Illinois on temporary loan to Sodick USA. (Sodick Japan claims that it does not employ any individuals in the State of Illinois.)

(5.) Sodick Japan guaranteed over $3.3 million in loans to Sodick USA, and itself loaned over $8 million to Sodick USA. (Defendants’ counsel suggested to the trial court that Sodick Japan did not arrange financing for its subsidiary, but on appeal apparently concedes the fact of the loans and guarantees if not their legal significance.)

(6.) Sodick Japan has a distributor agreement with an Illinois corporation, KGK International, which is based in Illinois. Sodick Japan warrants its products and is obligated to perform certain “after-sales” services in connection with them. KGK International is contractually bound not to sell equipment that competes with Sodick Japan’s EDM products. (Sodick Japan denies having an express distributorship agreement with the company, although it admits to selling EDM systems to KGK Japan, who in turn distributes them through KGK International.)

(7.) Another Sodick Japan distributor, Bridgeport, has a sales office in Illinois. Under its agreement with Bridgeport, Sodick Japan warrants its products and provides liability insurance for Bridgeport, and agrees to defend patent infringement suits brought in Illinois. (Under Sodick Japan’s analysis, this is irrelevant because the Bridgeport agreement was neither negotiated nor executed in Illinois and, under the long-arm standard of transacting business, this agreement has no connection with Illinois.)

Despite the parties’ opposing characterization of the facts, we find that the record supports our determination that Sodick Japan was doing business in Illinois. Portions of the defendants’ affidavits in opposition to jurisdiction reflect personal opinion as to what “doing business” means under Illinois law. Other portions of the affidavits appear to be contradicted by information and admissions contained in documents filed in connection with other litigation pending in the Federal court.

After cutting through some of the confusion that seems to be largely matters of form rather than substance, we conclude that So-dick Japan’s EDM systems do not find their way into Illinois by happenstance, on an occasional basis. The circumstances under which So-dick Japan’s products come into this State are part of a plan to sell regularly in Illinois, even if the products leaving the Japanese plant are initially sold, in Japan, to intermediaries who sell in the United States. Sodick Japan’s products are distributed in the Midwest by KGK International, an Illinois corporation whose office is located in Arlington Heights. Although Sodick Japan denies that it has a direct distributorship arrangement with KGK International, a full-page advertisement in a trade magazine — which invites readers to implement Sodick EDM systems — lists KGK International as the Midwestern distributor of the systems.

Sodick USA, despite being set up as a separate corporate entity, functions as the service arm of Sodick Japan, maintaining the EDM systems in Illinois and other States. Evidence of record indicates that Sodick Japan maintains some control over its subsidiary, or at least maintains significant connections with it in order to facilitate the sales and servicing of its systems. For example, Sodick Japan has “loaned” employees to Sodick USA, accounting for a significant portion of USA’s personnel, including its president. Many or most of Sodick USA’s officers and members of the board of directors have come from Sodick Japan. Sodick Japan has loaned or guaranteed millions of dollars on behalf of its subsidiary. Employee s of Sodick Japan come to the United States, including Illinois, to train Sodick USA personnel, to assist in Sodick USA’s service activities and to attend trade shows. Some visit and inspect the premises -of Sodick’s Illinois distributor. The two companies regularly communicate and Sodick USA’s officers apparently report to Sodick Japan’s executive managing director.

While we need not determine whether Sodick USA is the alter ego of Sodick Japan for all purposes, we believe that the record contains enough links between the two companies to impute Sodick USA’s marketing and servicing activities in Illinois to its parent corporation. (Cf. People v. Parsons Co. (1984), 122 Ill. App. 3d 590, 597-98, 461 N.E.2d 658, 664-65.) To find otherwise would allow foreign corporations to purposefully exploit local markets and reap the benefits and advantages of doing business directly while insulating themselves from lawsuits by using “separate” subsidiaries and distribution networks to implement their business activity. See Maunder v. DeHavilland Aircraft of Canada, Ltd. (1983), 112 Ill. App. 3d 879, 883, 445 N.E.2d 1303, 1306, aff’d (1984), 102 Ill. 2d 342, 466 N.E.2d 217 (“The fact that [defendant’s] sales were conducted indirectly through a third party does not excuse [it] from the jurisdiction of Illinois courts”); Colletti v. Crudele (1988), 169 Ill. App. 3d 1068, 523 N.E.2d 1222.

Sodick Japan’s citations do not support its position. For example, in Bobka v. Cook County Hospital (1983), 117 Ill. App. 3d 359, 361, 453 N.E.2d 828, 830, the court did state that “neither the mere presence of the product in a forum State nor the likelihood that a product will find its way into the State is sufficient to establish minimum contacts.” Bobka, however, involved application of the “tortious act” provision of the Illinois long-arm statute. There the “transaction of business” in the forum State that led to the alleged tortious act was limited to fact that the defendants had designed, manufactured and sold an allegedly defective surgical instrument that might have been used during plaintiff’s surgery. Plaintiff failed to allege that defendant had any other contracts -with Illinois, such as selling or advertising its products here.

The key to finding jurisdiction over a foreign defendant is whether it purposefully avails itself of the State’s laws and benefits so that it is not unreasonable to subject it to defend a suit in that State. (See Wiles v. Morita Iron Works, 125 Ill. 2d 144, 530 N.E.2d 1382; World-Wide Volkswagon Corp. v. Woodson (1980), 444 U.S. 286, 62 L. Ed. 2d 490, 100 S. Ct. 559.) Here, Sodick Japan certainly appears to have targeted Illinois as a State in which it intended for its products to be sold, advertised, and serviced. Unlike the Japanese defendant in Asahi Metal Industry Co. v. Superior Court (1987), 480 U.S. 102, 94 L. Ed. 2d 92, 107 S. Ct. 1026, Sodick Japan had more than mere knowledge that its products likely would end up in Illinois. The distribution scheme and advertising for its EDM systems, along with its control over the activities of Sodick USA, make it reasonable for this defendant to be subject to the Illinois courts’ jurisdiction. We conclude that the trial court erred in dismissing the suit against So-dick Japan for lack of personal jurisdiction.

II

The trial court granted Sodick USA’s motion to dismiss on the grounds of forum non conveniens, holding that Japan was a more convenient forum than Illinois because it believed that the sources of proof and the location of the witnesses would be in Japan. There was no discovery into this matter, and the court apparently took Sodick USA’s argument and affidavits as undisputed fact.

Before dismissing a lawsuit on grounds of forum non conveniens, the trial court must weigh a variety of factors and conclude that the balance strongly favors the defendant. (E.g., Meyers v. Bridgeport Machines Division of Textron, Inc. (1986), 113 Ill. 2d 112, 497 N.E.2d 745.) The trial court has broad discretion in balancing the factors. (E.g., McClain v. Illinois Central Gulf R.R. Co. (1988), 121 Ill. 2d 278, 520 N.E.2d 368.) However, the plaintiff’s choice of forum generally is entitled to extra consideration. See Stone Container Corp. v. Industrial Risk Insurers (1980), 91 Ill. App. 3d 807, 414 N.E.2d 1227.

Among the pertinent considerations are the availability of an alternative forum; ease of access to sources of proof; the availability of compulsory process for unwilling witnesses and the costs for transporting willing witnesses; the enforceability of a judgment if one is obtained; the congestion of the courts’ dockets; the need to apply foreign law; the local interest in having localized controversies decided at home; and similar practical problems relating to the trial process. (Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508-09, 91 L. Ed. 2d 1055, 1062-63, 67 S. Ct. 839, 843; Satkowiak v. Chesapeake & Ohio Ry. Co. (1985), 106 Ill. 2d 224, 230, 478 N.E.2d 370.

The record does not, in our opinion, affirmatively establish that Japan is the more convenient forum for resolution of this controversy. In fact, Sodick USA admits that a “precondition to dismissal” on forum non conveniens grounds is the defendant’s amenability to jurisdiction in an alternative forum. (See Meyers v. Bridgeport Machines, 113 Ill. 2d 112, 497 N.E.2d 745.) We cannot determine whether the Japanese court could and would take jurisdiction over Japax’s tort complaint against Sodick USA, an American corporation located in Illinois. There is an affidavit expressing the legal opinion of a Japanese attorney that the court would take jurisdiction if Sodick USA agreed to submitting itself to suit in Japan. Since Sodick USA did not expressly agree we do not find this potential exercise of jurisdiction sufficient to dismiss the case.

We do not know what the sources of proof are, nor who the witnesses will be. The complaint alleges that Sodick Japan, a Japanese corporation and Sodick USA, an Illinois corporation, took certain actions that interfered in Japax’s business relationship and contract with its distributor, Bridgeport Machines, which is a Connecticut corporation. The complaint sets out in detail a set of operative facts in support of several theories of liability, including negligent interference with prospective business advantage, unfair competition, and unjust enrichment. Without expressing any opinion as to whether the allegations state one or more causes of action, we nevertheless acknowledge that the legal theories advanced are recognizable in Illinois. We are unfamiliar with Japanese law and procedure and cannot determine what law the Japanese court would apply, assuming it took jurisdiction. Moreover, Japax asserts that there is no counterpart to our discovery procedures in Japan. See Detection Systems, Inc. v. Pittway Corp. (W.D.N.Y. 1982), 96 F.R.D 152, 156.

While evidence of the negotiations between Sodick Japan and Bridgeport might well involve documents and witnesses located outside of Illinois, that alone does not mean Japan is the more convenient forum. Documents can be transported with ease and at little expense. The expense and burden of transporting witnesses is a more difficult matter, but it appears that whatever forum is determined to be appropriate in this case, some witnesses will have to travel substantial distances. The materials in the record concerning which court has the more crowded docket do not establish that the Japanese forum would resolve the matter sooner.

We conclude that the record is insufficient for the trial court to have determined, as a matter of law, that Japan is the more convenient forum for the resolution of this controversy. Accordingly, we reverse the trial court’s order which granted Sodick USA’s motion to dismiss and remand for reconsideration. On remand the trial court should allow Japax’s request for discovery on the forum non conveniens issue.

For the foregoing reasons, we reverse the orders of the trial court which dismissed the complaint against both defendants and remand for further proceedings.

Reversed and remanded.

JIGANTI, P.J., and McMORROW, J., concur.

       Had the court allowed discovery into the jurisdictional facts some of the conflicts may have been resolved. It is not clear, however, that Japax squarely presented the trial- court with a discovery motion limited to jurisdictional facts at the appropriate time — that is, before the hearing on the motions to dismiss for lack of jurisdiction. Japax’s motion to reconsider did address the need for discovery in light of certain alleged misrepresentations defendants made in the affidavits in support of their motions. The trial court expressed its disinclination to further consider its earlier ruling and apparently remained unaware of the alleged misrepresentations.

       The record contains a copy of what purports to be an exclusive distributorship agreement between Sodick Japan and “Kanematsu Gosho Machine Tools Co., Ltd.” (KGK Japan). Under the agreement, KGK Japan appoints, and Sodick approves, KGK International as the exclusive Midwestern USA distributor of the products that Sodick Japan sells to KGK Japan. The agreement lists Illinois as one of the States covered in the territory and supports the inference that Sodick Japan intended to have its products distributed in Illinois by KGK International.

       Sodick Japan does not expressly deny all of these allegations, although it does not agree with the conclusion that it controls Sodick USA. Sodick Japan filed affidavits in support of its argument that the two companies are separate and distinct, while resisting Japax’s requests for discovery. Its argument that Japax failed to establish sufficient facts to show that Sodick USA is the instrumentality of Sodick Japan is thus undercut by its strong opposition to Japax’s attempts to conduct discovery into these facts.


author: JUSTICE QUINLAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWIN D. PHILLIPS, Defendant-Appellant.
    First District (6th Division)
    No. 1—85—3216
    Opinion filed July 21, 1989.
    Rehearing denied September 5, 1989.

      Michael J. Pelletier and Patricia Unsinn, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and Pamela Hughes, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE QUINLAN

delivered the opinion of the court:

The defendant, Edwin Phillips, was tried by a jury in the circuit court of Cook County on charges of possession and delivery of less than 30 grams of a controlled substance. He was found guilty on both counts, but judgment was entered on the delivery of a controlled substance count only. Defendant was sentenced to seven years’ imprisonment and two years’ mandatory supervised release. Defendant now appeals his conviction. We affirm.

Defendant’s trial began with the voir dire examination of prospective jurors. During that proceeding, the State peremptorily excused three prospective jurors. Of the three prospective jurors excused by the State, one was a white man, one was a white woman, and the third was a black woman, Gladys Hayes. The defense objected to the State’s challenge of Ms. Hayes and moved for a mistrial alleging that this challenge evidenced the State’s systematic exclusion of blacks during the jury selection process. The trial court gave the State the opportunity to explain why it had excused Ms. Hayes, but the State refused to explain its challenge because, the State argued, it was unnecessary, inasmuch as the defendant had not and could not show that the State had systematically excluded blacks from the panel. The court thereafter denied defendant’s motion. The final panel of selected jurors was composed of 14 individuals, and two or three of the 14 were black persons.

At the beginning of the trial, the judge informed everyone, including the jurors and counsel, that the trial would begin each day promptly at 10:30 a.m. and would continue until 5 p.m. The State then began its case and presented the testimony of Chicago police officer McLaughlin. He testified that he had been close friends with the defendant, a former Chicago police officer, since 1979 when they served together as partners. They remained close friends until sometime in 1980, when they had a disagreement after McLaughlin criticized the defendant for selling drugs. McLaughlin testified that, during this conversation, he had told defendant that selling drugs was wrong, and that defendant responded that if he got caught, he would then merely spend 10 years in jail, lift weights, come out and sell more drugs. McLaughlin said that the defendant also told him that he (defendant) believed he was providing a service to people by selling drugs. Later, in September 1981, McLaughlin testified that he told Sergeant Thomas Chandler of the Internal Affairs Division (IAD) of the Chicago police department, a close friend of his for many years, of an incident where a policeman had sold drugs. McLaughlin said that as a result of this conversation, he began to take part in IAD investigations as a special undercover agent.

On the morning of March 23, 1982, McLaughlin received a telephone call from the defendant, who told McLaughlin that if he wanted to buy some cocaine, he should come to defendant’s home later that morning. McLaughlin called Chandler and told him of the defendant’s call, and McLaughlin and Chandler agreed to meet. Thereafter, McLaughlin met with Chandler and Investigator Howard, and all three men went to the criminal courts building at 26th and California in Chicago, where McLaughlin was fitted with electronic surveillance and transmitting equipment. McLaughlin was also given $100 in premarked money.

McLaughlin said that he then drove to defendant’s home at 6815 South Crandon in Chicago, while Chandler, Howard, and other officers followed him in a van full of electronic equipment designed to record any conversations transmitted from the device McLaughlin was wearing. When McLaughlin arrived at defendant’s home, McLaughlin testified that defendant, in exchange for $100, gave him two paper envelopes in a plastic bag. The substance in the envelopes was later analyzed and found to be .87 of a gram of cocaine. McLaughlin denied that he had used drugs and stated that he had only purchased the drugs as part of the prearranged plan. In addition, during the course of McLaughlin’s testimony, the State submitted the tape recording of the conversation concerning the transaction between the defendant and McLaughlin on March 23, 1982, which was admitted by the court, and which, essentially, substantiated McLaughlin’s testimony.

The State then called Sergeant Chandler, who testified that he and McLaughlin had been close friends for years and related primarily the same chain of events leading to the sale of the cocaine by the defendant. Later, during cross-examination, defense counsel asked Chandler whether another officer, Pamela Grant, had made allegations or filed a report to the effect that he, Chandler, had previously sold drugs himself. Chandler responded by denying that any allegations or any such report had been made. The State objected, and the trial court sustained the objection, ruling that the alleged report which defense counsel claimed was the reason for this inquiry did not establish a legitimate basis for cross-examination of Chandler, because it relied solely upon rumor and speculation. Defense counsel then, in a sidebar conference, produced the report and stated to the court that this report, which he said was signed by someone named “Arthur,” stated that a Sergeant Nathan Gibson of the IAD had told this “Arthur” of rumors that Chandler had been arrested by Federal authorities for dealing in cocaine. Defense counsel also stated that the report demonstrated that “Arthur” had talked to another officer, Officer Kirkling, who had told “Arthur” that Pamela Grant told him (Kirkling) that she was working on a narcotics investigation involving Chandler and the sale of cocaine. Defense counsel concluded his remarks by noting that the report was also signed by Chandler. The court then reiterated that the State’s objection was sustained, and the report was not included as part of the trial record.

The State did not present any additional evidence, and, at this point, the State rested its case. Since the time of the day was only approximately 3 p.m., the trial judge then told defense counsel he should begin to present his witnesses because, the judge said, he had previously advised everyone that the proceedings would continue each day until 5 p.m. However, defense counsel informed the court that his witnesses were not ready at that time, and that he was not, therefore, prepared to go forward with his witnesses. The trial judge then asked defense counsel if the defendant was going to testify. Defense counsel answered that defendant was not going to testify. The court called the defendant to the bench and the following exchange took place:

“THE COURT: Ordinarily, Mr. Phillips, I would not, in any way, interfere with the order of witnesses called, because you are represented by a fine attorney. Sometimes the order of witnesses can be a matter of strategy. However, I [have] advised the parties I would go to five [o’clock]. In [this] case, some two hours will be lost. The one way in which they can be saved, you understand, [is] if you choose to testify today. You are not going to be allowed to change your mind tomorrow.
THE DEFENDANT: Yes, your honor, I am aware of that.
THE COURT: If you decide not to testify, that is the decision that you chose to do.
THE DEFENDANT: I make the decision that I will not, your Honor.”

During this exchange, defense counsel made no objections.

The next morning defense counsel informed the court that he wanted to present some -witnesses who would impeach McLaughlin’s testimony that McLaughlin had not used drugs. Defense counsel did not specify who those witnesses would be, nor did he explain the specific nature of the impeaching testimony, other than to merely suggest that these -witnesses would testify that McLaughlin had used drugs. The trial judge advised counsel that, in his opinion, the question of McLaughlin’s alleged drug use was a collateral issue as a matter of law and relying on People v. DeSavieu (1983), 120 Ill. App. 3d 420, 458 N.E.2d 504, and People v. Byer (1979), 75 Ill. App. 3d 658, 669, 394 N.E.2d 632, 640, denied defense counsel’s request. The court did, however, offer the defendant the opportunity to present these witnesses outside the presence of the jury in order to preserve the record, but defense counsel chose not to do so.

Thereafter, defense counsel presented the testimony of Abigail Phillips, the defendant’s wife, who said that McLaughlin had once brought certain stolen merchandise to her house in an attempt to dispose of the goods. She also stated that in February 1982, McLaughlin made a pass at her. After presenting this evidence, the defense rested.

The jury found the defendant guilty on the counts of possession and delivery of a controlled substance. The court, as stated earlier, entered judgment on the delivery count and the defendant was sentenced to seven years’ imprisonment and two years’ mandatory supervisory release.

Defendant raises five issues on appeal: (1) whether the trial court’s requirement that defendant make an irrevocable decision to testify or not to testify, before the defense had presented its case, violated defendant’s constitutional rights; (2) whether the State’s exercise of a peremptory challenge to excuse a prospective black female juror violated defendant’s equal protection fights; (3) whether the trial court’s refusal to allow the defendant to cross-examine the State’s witnesses regarding their alleged personal drug use and sale of drugs violated the defendant’s right of confrontation; (4) whether the evidence which referred to defendant’s long-standing involvement in the sale of drugs was properly admitted; and (5) whether the prosecutor’s remarks in closing argument which expressed his personal beliefs and suggested that defendant was a professional drug dealer denied the defendant a fair trial.

The defendant first argues that the trial court erroneously required defendant to irrevocably decide if he would testify at the close of the State’s case in chief, before the defense had begun to present its case. The defendant claims that this action by the court violated his rights because he was forced to make a decision to testify or not without the opportunity to evaluate his decision in view of all of the evidence presented at trial. He claims that his right to view all of the evidence before making the decision to testify or not exceeded any court interest in the efficient use of judicial resources. The defendant also claims that this error was plain error because it involves the constitutional right of a defendant to testify any time before he rests his case. (See Brooks v. Tennessee (1972), 406 U.S. 605, 32 L. Ed. 2d 358, 92 S. Ct. 1891.) Accordingly, he concludes, the waiver rule does not apply in a case such as this, where there is a denial of an important and basic constitutional right.

The State, on the other hand, contends that the defendant waived this issue because he made no objection to the procedure at the time the trial judge asked the defendant whether he intended to testify, he made no request to testify at any time, and he did not raise this issue in his motion for a new trial. But, even if there was no waiver here, the State argues, there was no reversible error as a result of the court’s action since the defendant knowingly and voluntarily relinquished his constitutional right to testify. The record here shows, the State asserts, that the defendant made the decision himself, without any coercion, that he fully understood his decision, and that he merely reaffirmed his decision not to testify when the court inquired whether he intended to testify.

A defendant in a criminal trial has a constitutional right to testify at his trial, if he chooses to do so, and a defendant cannot be required to make that choice before all of the defense evidence has been presented. (Brooks, 406 U.S. 605, 32 L. Ed. 2d 358, 92 S. Ct. 1891.) The issue presented here, whether a defendant can raise this issue for the first time on review, was considered by the Tenth Circuit Court of Appeals in United States v. Rantz (10th Cir. 1988), 862 F.2d 808. In Rantz, the trial court told the defendant that he would have to testify first in the presentation of his defense. Defense counsel immediately advised the court that the defendant was not going to testify and, in his opinion, could not testify because of the nature of the evidence against him, which included tape-recorded conversations. The defendant there also did not object at trial to the court’s statement that if the defendant chose to testify, he would have to take the stand first. Instead, the defendant there, like the defendant here, raised the issue for the first time on appeal. The Tenth Circuit Court of Appeals stated that it was reluctant to allow a defendant to belatedly assert such a claim, but, nonetheless, did consider the claim there because of the mandate of the United States Supreme Court in the Brooks case. (Rantz, 862 F.2d 808.) The Rantz court held that although the trial court’s requirement that defendant testify first was erroneous under Brooks, the error there was harmless because defense counsel had stated that it was a matter of pre-planned strategy for the defendant not to testify to avoid subjecting himself to a perjury charge. (Rantz, 862 F.2d at 813.) Thus, the Court of Appeals said the fact that the defendant did not testify was not a result of the trial court’s requirement that the defendant testify first in the proceeding.

Since the defendant here has raised this issue for the first time on appeal, this issue might properly be deemed waived. (See People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E. 2d 1124.) However, even if there was no waiver, it is still clear that the defendant’s decision not to testify here, as in Rantz, was not made as a result of the court’s direction, but was made independently before the defense was to begin the presentation of its case. (See Rantz, 862 F.2d 808.) This is, we believe, clearly reflected by the record. Before the judge informed the defense that defendant would have to testify immediately if he chose to testify, the judge had. asked defense counsel if the defendant was going to testify and defense counsel unequivocally told the judge “no.” Only then did the judge call the defendant to the bench and ask him if he understood that his decision to testify or not to testify was irrevocable. It was in this context that the defendant stated that he understood that he could not change his mind, and he then, explicitly, reaffirmed his decision not to testify, in any event. There were no objections by defense counsel at this time or at any other time during trial, or even later in the defendant’s written post-trial motion. In fact, the defendant never made a request to testify. Additionally, we note that, similar to Rantz, the defendant here, if he had chosen to testify, would also have had to contradict not only Officer McLaughlin’s direct testimony, but would also have had to contradict the tape recording of his conversation with McLaughlin concerning the sale of the cocaine. (See Rantz, 862 F.2d 808.) Thus, we conclude, as did the Court of Appeals in Rantz, that the trial judge’s requirement that the defendant had to testify immediately, if he were to testify, although erroneous, was harmless error under the circumstances here since, in fact, there was no prejudice to the defendant as a result of this error.

The defendant next claims that his equal protection rights were violated when the State exercised a peremptory challenge against a prospective female juror who was black. The defendant contends that his timely trial objection to the State’s discriminatory use of its challenges requires a remand for a hearing pursuant to Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, which was decided while this case was pending on appeal. The fact that only one black was excused from the panel and two or three of the final panel of jurors were black, defendant claims, is irrelevant. In addition, defendant asserts that a Batson error is treated as plain error, and, thus, the waiver rule does not apply in such a situation either.

The State responds that the defendant again waived review of this issue by failing to include it in his motion for a new trial, but even if he had not, there is no Batson issue here. (See Batson, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712.) Before a defendant can contest the peremptory challenges of the State, the Batson case requires that the defendant must first set forth a prima facie case of discrimination, and only when the defendant has done so does the burden shift to the State to establish a racially neutral reason for exercising its challenges. The defendant here, the State asserts, has not set forth a prima facie case, and consequently, the State had no duty to establish a racially neutral reason for exercising its challenge. It is only where the court finds that the defendant has presented a prima facie case of discrimination, the State asserts, that it must then demonstrate that it had a racially neutral explanation for the questioned challenges. People v. McDonald (1988), 125 Ill. 2d 182, 530 N.E.2d 1351; People v. Hooper (1987), 118 Ill. 2d 244, 506 N.E.2d 1305.

We agree with the State that the defendant here failed to include this issue in his written motion for a new trial and, accordingly, waived this issue for appeal. (See People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) However, even if the defendant had not waived this issue for appeal, the record clearly shows that the defendant could not establish a prima facie case of discrimination. Here, the State peremptorily excused three prospective jurors, and, of those, two were white persons and one was a black person. Moreover, while not a determinative factor in and of itself, we also note that there were two or three blacks on the final panel of jurors. Under these circumstances, the defendant has not shown a pattern of discrimination by the State, and, hence, he has not set forth a prima facie case of discrimination. Consequently, there is no basis to remand this case for a Batson hearing. Batson, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712.

The defendant next claims that the trial court violated his right to confront the State’s witnesses against him when the court limited his cross-examination of both McLaughlin and Chandler. He contends that he should have been allowed to cross-examine McLaughlin on his alleged drug use and on McLaughlin’s alleged suspension for accepting a bribe. Also, he argues that he should have been able to cross-examine Chandler about the so-called report by “Arthur” which suggested that Chandler himself was being investigated for selling drugs. Defendant asserts that the impeaching evidence he had proffered was not based on mere rumor or speculation and was relevant to McLaughlin’s and Chandler’s bias or motive to testify falsely. Thus, he contends that the trial court’s refusal to allow this inquiry by defense counsel as impeachment was improper and violated his constitutional right to confrontation.

The State argues that the limitation on the use of impeaching evidence is within the trial court’s discretion, and, in order for the defendant to show an abuse of discretion, the defendant should have made a proper offer of proof which would have shown, on review, the evidence to be presented and how it was relevant. Here, however, the State claims, there was no proper offer of proof by the defendant because defense counsel merely described the proposed evidence. Moreover, the State asserts, the proffered impeaching evidence was based on mere rumor and speculation, and was neither material nor relevant to the issue of bias or motive. Accordingly, the State concludes, there was no abuse of discretion by the trial court when it precluded the use of the impeaching evidence.

Defense counsel is generally allowed wide latitude in cross-examining State witnesses for the purpose of showing their bias or motive to testify falsely, but the evidence upon which such inquiry by defense counsel is based cannot be remote or uncertain. (People v. Johnson, (1986), 150 Ill. App. 3d 1075, 1082, 502 N.E.2d 304, 309; People v. Sanders (1986), 143 Ill. App. 3d 402, 407, 493 N.E.2d 1, 4.) Additionally, the scope of proper cross-examination rests within the broad discretion of the trial judge, and unless the defendant can show that the court abused its discretion to the extent that the defendant was manifestly prejudiced, the trial judge’s ruling will be affirmed. Johnson, 150 Ill. App. 3d at 1082, 502 N.E.2d at 309; People v. Winfield (1983), 113 Ill. App. 3d 818, 447 N.E. 2d 1029.

Generally, in order to preserve an issue concerning the trial court’s preclusion of impeaching evidence at trial, the defendant must set forth an offer of proof at trial to establish on the record, for purposes of review, that the evidence he sought to introduce was positive and direct on the issue of bias or motive to testify falsely. (See Sanders, 143 Ill. App. 3d at 407, 493 N.E.2d at 4-5.) Although formal offers of proof, where the proposed evidence or testimony is formally offered in a question and answer manner outside the presence of the jury, are generally required to preserve the issue of whether preclusion of the evidence was proper, an informal offer of proof, where counsel merely summarizes what the proposed evidence or testimony may show, may be sufficient to preserve the error if it is specific enough in nature, and if it is not based merely on speculation or conjecture. (Hall v. Northwestern University Medical Clinics (1987), 152 Ill. App. 3d 716, 722, 504 N.E.2d 781, 785; People v. Brown (1982), 104 Ill. App. 3d 1110, 1119, 433 N.E.2d 1081, 1088-89; Tolefree v. March (1981), 99 Ill. App. 3d 1011, 1014, 425 N.E.2d 1247, 1250.) An offer of proof is sufficiently specific, therefore, if it adequately shows the court what the evidence would be, allowing a court of review to assess the prejudice allegedly inuring from the exclusion. See Hall, 152 Ill. App. 3d at 722, 504 N.E.2d at 785.

Here, defense counsel made only informal offers of proof, and we find that these informal offers of proof were not sufficiently specific to preserve the alleged errors for review. Defense counsel’s informal offers of proof consisted of merely a brief description of what counsel’s proposed evidence would show. Counsel never stated who the proposed witnesses were that would testify that McLaughlin had used drugs, nor did he give a detailed explanation as to how these proposed witnesses knew of McLaughlin’s alleged drug use. In addition, there was no specific explanation concerning defense counsel’s assertion that McLaughlin was suspended for taking a bribe. Finally, the informal offer made by defense counsel concerning Chandler’s alleged involvement in the sale of drugs consisted solely of counsel’s statements regarding the contents of the document. That document, however, was not made a part of the record on appeal. Therefore, the informal offers of proof here were insufficient to show that the defendant was prejudiced by the trial court’s preclusion of this evidence or testimony.

Even if we were to find that the offers were sufficient, however, we agree with the trial judge that all of the alleged impeaching matters here were either collateral or based on mere rumor and speculation. (See People v. DeSavieu (1984), 120 Ill. App. 3d 420, 430, 458 N.E.2d 504, 511-12 (impeachment of witness on alleged drug addiction improper where no evidence of addiction could be shown).) Moreover, we cannot say that the trial judge abused his discretion here, for the trial judge clearly suggested to defense counsel that he make formal or more detailed offers of proof, yet defense counsel failed to do so.

Defendant’s fourth contention on appeal is that he was denied a fair trial when evidence that suggested his long-standing involvement in drug peddling was introduced and was later referred to in the State’s closing argument. This evidence should not have been admitted, defendant asserts, because it was brought out only by way of McLaughlin’s unresponsive answers to defense questions on cross-examination. This evidence was highly prejudicial, defendant claims, and thus, the evidence itself and the references to it should have been stricken.

The State asserts that the admission of this evidence, in response to defense counsel’s questions on cross-examination, was proper since the defendant had opened the door to this evidence on cross-examination by asking McLaughlin numerous questions about a disagreement he had had with defendant. The cross-examination, the State claims, was merely an attempt by defense counsel to mislead the jury into believing that the disagreement between McLaughlin and the defendant was about McLaughlin’s alleged sexual advances towards defendant’s wife, when, in fact, it had not been. Thus, the State claims, because the defendant opened the door to the inquiry, McLaughlin’s testimony concerning his disagreement with the defendant was proper, as was the State’s redirect examination of McLaughlin to correct any misconceptions created by defense counsel’s cross-examination.

It is well settled that if one party opens up an inquiry concerning an issue, the other party may be allowed to introduce contradictory or explanatory evidence even though it would not have been admissible initially. (People v. Marino (1980), 80 Ill. App. 3d 657, 666, 400 N.E.2d 491, 498; see also People v. Payne (1983), 98 Ill. 2d 45, 456 N.E.2d 44.) Hence, an accused cannot interject an issue into a case and then argue that it was error to bring the issue to the jury’s attention. Marino, 80 Ill. App. 3d at 666, 400 N.E.2d at 498.

The specific exchange between defense counsel and McLaughlin on cross-examination here began when defense counsel asked McLaughlin if the nature of his friendship with defendant had changed, and McLaughlin answered that it had changed in 1979. Defense counsel then asked McLaughlin if he had ever told the defendant that the nature of their friendship had changed, i.e., if McLaughlin had ever told the defendant that he felt they were not close friends anymore. McLaughlin answered affirmatively, and defense counsel went on to ask:

“Q. What day was that?
A. It was 1980, as I recall, we were working *** and I asked Mr. Phillips, I said, ‘Do you know that selling drugs is wrong?’ And Mr. Phillips said, ‘Yes.’ He said if he gets caught, he will do ten years.”

Defense counsel asked to have the answer stricken as being unresponsive, and the trial court denied that request, but told defense counsel that he could withdraw the question, which defense counsel agreed to do. The judge then stated that the response was stricken. However, defense counsel continued to ask numerous additional questions about this disagreement and this particular date. Defense counsel asked McLaughlin if he ever made a report about this disagreement, and then asked if there were any other disagreements. When McLaughlin responded to defense counsel’s inquiry that there had been only one disagreement and attempted to explain that this disagreement was the same one that he had referred to earlier, defense counsel again asked him for the specified dates when the disagreement developed. Finally, defense counsel asked:

“Q. You continued the social relations with the defendant after this *** argument in the summer of 1980?
A. Yes, I did.
Q. Wasn’t it the same type of relationship after the argument in July, 1980?
A. No, it wasn’t.”

We believe that the initial response by McLaughlin to defense counsel’s question did exceed the bounds of a proper response to counsel’s question here and should have been stricken. However, whether defense counsel would have pursued this inquiry if that had been done need not be examined, because, even if there was error here, we believe the error was harmless, since the remaining evidence against the defendant in the case was more than sufficient for the jury to have found him guilty beyond a reasonable doubt. Furthermore, defense counsel’s continued questioning on this matter after the initial question and answer were withdrawn did provide the basis for the State’s request to clarify the conversation by redirect examination. Thus, to the extent that questions were asked about the relationship on redirect by the State, these were invited by the defense.

The defendant finally claims that he was denied a fair trial by the prosecution’s comments in closing argument. He contends that the remarks by the State in closing argument which expressed the prosecutor’s personal belief that defendant was guilty and suggested defendant was a professional drug dealer constituted reversible error. The State argues, again, that this issue was not properly preserved for review because there were no objections during the closing argument, nor were these remarks included in defendant’s motion for a new trial. In any event, the State notes that the remarks concerning the prosecutor’s personal beliefs, even if improper, amounted only to harmless error, and the remarks suggesting that defendant was a professional drug dealer were based upon reasonable inferences from the evidence and, again, even if improper, amounted only to harmless error.

A reference in a post-trial motion to “prejudicial” or “erroneous” statements in closing argument, without factual detail, is not enough to preserve the issue for review. (See People v. David (1986), 141 Ill. App. 3d 243, 489 N.E.2d 1124; see generally Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124 (purpose of post-trial motion is to limit consideration to errors considered significant so that appeal is not open-ended).) The scope of permissible error in closing argument is within the sound discretion of the trial judge, and prosecutors are generally allowed wide latitude in closing arguments. (People v. Uzelac (1988), 179 Ill. App. 3d 395, 534 N.E.2d 1250.) Remarks in closing argument that are based on the evidence or reasonable inferences therefrom are generally proper (People v. Terry (1984), 99 Ill. 2d 508, 460 N.E.2d 746), but, a prosecutor’s expression of his or her personal beliefs is generally regarded as improper (United States v. Young (1985), 470 U.S. 1, 84 L. Ed. 2d 1, 105 S. Ct. 1038).

Here, it is clear that the remarks concerning the prosecutor’s statements of personal beliefs were waived on review under Enoch by the defendant’s failure to specify this error in his post-trial motion. (See Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124.) But even if there had been no waiver, it is also clear that the remarks of the prosecutor which expressed personal beliefs were not so serious as to constitute reversible error. Additionally the prosecutor’s remarks that the defendant was a professional drug dealer were arguably based on reasonable inferences from the evidence adduced from McLaughlin’s testimony. Nevertheless, again, even if these remarks were improper, they, too, were not of such a serious nature to require reversal under the circumstances here.

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

Judgment affirmed.

EGAN, P.J., and McNAMARA, J., concur.

       The record shows that the trial judge and the attorneys were not even sure of the exact racial composition of the jury. Apparently, the race of one of the jurors was not visually discernible.

       Officer McLaughlin’s first name is unclear. The record and the briefs refer to him as either Aroterick, Roderick, A. Roderick, A. Robert or Anthony. There does not appear to be any significance to this discrepancy insofar as the legal issues in the case are concerned.

       Also referred to as 6813 in the record. Again, this is not of significance to the legal issues in the case.