text:
    MARIA RODRIGUEZ et al., Plaintiffs-Appellants, v. DUNCAN Y. HENDERSON, Indiv. and as a Partner d/b/a Willow-Damen Partnership, et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1 — 89—1562
    Opinion filed July 17, 1991.

      James P. Chapman & Associates, Ltd., of Chicago (James P. Chapman and Alan Mills, of counsel), for appellants.
    Sidley & Austin, of Chicago (Frederic J. Artwick and David B. Johnson, of counsel), for appellees.
   JUSTICE WHITE

delivered the opinion of the court:

Plaintiffs appeal from dismissal of their amended complaint, which alleged the invalidity of a city rezoning ordinance. Grounds for dismissal were that at least some plaintiffs lacked standing and that some or all had failed to state a claim. We affirm in part, reverse in part, and remand.

In their amended complaint, plaintiffs alleged that the City of Chicago acted unlawfully when, by ordinance, it rezoned a parcel of Chicago property (the former Ludwig Drum Company factory buildings, on 2.42 acres at Willow Street and Damen Avenue) from an Ml-2 restricted manufacturing district to a Cl-2 restricted commercial district and then to a commercial-residential planned development. Chicago City Council J. (Sept. 22, 1988), at 18099, 18103 — 07, codified at 1990 Chicago Zoning Ordinance (Chicago Municipal Code ch. 194A (1984)) (hereinafter Chicago Zoning Ordinance) map 5-H, at 75B (CRPD No. 455).

Under the rezoning ordinance, the Ludwig Drum property is to be used for residential units, “work/live” units, and business, commercial, and retail establishments. Each work/live unit is to be used as a full- or part-time residence in conjunction with a business, commercial, or retail use in the same space. Of the four buildings on the property, the developers are to make “all reasonable efforts” to establish work/live uses in three. However, exclusively residential uses are prohibited in only one of the buildings. The maximum number of dwelling units permitted is 115. The number of off-street parking spaces required for all uses is 147.

Plaintiffs include the owners of two nearby factories; the owner of a nearby residential building and her son, both of whom reside in her building; and nearby residential lessees. Ex-Cell Metal Products Company, Inc., and Churchill Cabinet Company are the factory owners. Maria Rodriguez and Raul Rivera are the mother and son. Karen Sandler, Arlene Rosado, and Glenn M. Picher are the other residential tenants.

Defendants are the intended developers; their land trustee in title, La Salle National Bank, as trustee under trust No. 110709; and the City of Chicago (the City). The developers are Duncan Y. Henderson and Leonard Webster (individually and as partners) and their partnership, Willow-Damen Partnership.

The gravamen of plaintiffs’ case is that, by artificially driving up property values, the rezoning will displace plaintiffs as they become unable to afford continued residential or manufacturing use of their properties because of rising rents or taxes, increased production or maintenance costs, and destroyed neighborhood economic and social fabric. Scholarly literature has commented on influxes of higher-income residents as they affect established lower-income residential neighborhoods. See, e.g., Bryant & McGee, Gentrification and the Law: Combatting Urban Displacement, 25 Wash. U.J. Urb. & Con-temp. L. 43 (1983); Note, Reassessing Rent Control: Its Economic Impact in a Gentrifying Housing Market, 101 Harv. L. Rev. 1835 (1988).

PROCEDURAL HISTORY

In count I of their amended complaint, because of a variety of alleged injuries attributed to the rezoning, plaintiffs contended that the rezoning was arbitrary and capricious in violation of their State substantive due process rights. In count II, they alleged that the rezoning violated the City’s own rezoning criteria, and in count III they alleged that the rezoning procedure violated the City’s procedural requirements. In each count, plaintiffs asked the court to declare the rezoning ordinance void and to enjoin defendants from using or developing the Ludwig Drum property in any manner not permitted in Ml-2 Restricted Manufacturing Districts.

The developers successfully moved under section 2 — 615 of the Civil Practice Law (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615) to dismiss the amended complaint. The City joined in the motion. Earlier, the developers had successfully moved to dismiss the original complaint, and their second motion incorporated the contentions of their first. This opinion discusses the motions and rulings en bloc.

The developers contended that several plaintiffs owned no real property in the vicinity of the rezoned property and for that reason lacked standing. The developers also contended that the damage allegations by all plaintiffs were indefinite, contradictory, or speculative and that, because all plaintiffs had thus failed to allege any legally cognizable injury or special damages arising from the rezoning ordinance, all plaintiffs lacked standing.

In ruling on dismissal motions, the court held that the plaintiffs who owned no real property in the vicinity (i.e., Rivera, Sandler, Rosado, and Picher) lacked standing.

The court held further that the plaintiff who owned residential property (i.e., Rodriguez) had not stated a claim on which relief could be granted, because “[t]he mixed message sent by a residential owner challenging the propriety of a residential use for the drum factory does not allege a violation of the zoning ordinance or of her constitutional rights.” In addition, the court was “unaware of precedent which would recognize an increase in the property value as an injury” to her.

Moreover, the court held that plaintiffs failed to allege facts showing that the Chicago city council did not consider the factors set forth in La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 145 N.E.2d 65, and that accordingly the complaint failed to state a claim based on an arbitrary and capricious act of rezoning.

Finally, the court held that the injury alleged by the manufacturing plaintiffs (i.e., Ex-Cell and Churchill) was too speculative to support a claim for relief.

ANALYSIS

A. COUNT I: CONSTITUTIONALITY

1. LA SALLE FACTORS

The trial court’s dismissal order was generally grounded on a holding that plaintiffs had failed to state a claim of arbitrary and capricious rezoning that would have violated their substantive due process rights under section 2 of article I of the Illinois Constitution (Ill. Const. 1970, art. I, §2). In the trial court’s view, this was because plaintiffs had failed to allege facts showing that the city council did not properly consider factors listed in La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 145 N.E.2d 65.

A zoning ordinance is presumed valid, and a successful challenge requires proof, by clear and convincing evidence, that its enactment was arbitrary, capricious, or unrelated to the public health, safety, and morals. (La Salle, 12 Ill. 2d at 46, 145 N.E.2d at 68-69.) If the reasonableness of a zoning ordinance is merely debatable, the courts will not interfere. Thompson v. Cook County Zoning Board of Appeals (1981), 96 Ill. App. 3d 561, 576, 421 N.E.2d 285, 297.

The LaSalle court identified six factors as being “among the facts which may be taken into consideration” when determining a zoning ordinance’s validity: (1) the existing uses and zoning of nearby property; (2) the extent to which property values are diminished by the particular zoning restrictions; (3) the extent to which the destruction of a plaintiff’s property values promotes the health, safety, morals, or general welfare of the public; (4) the relative gain to the public as compared to the hardship imposed upon the individual property owner; (5) the suitability of the subject property for the zoned purposes; and (6) the length of time the property has been vacant as zoned, considered in the context of land development in its vicinity. La Salle, 12 Ill. 2d at 46-47, 145 N.E.2d at 69.

Additional factors that have been identified include (7) whether a comprehensive government zoning plan for land use and development exists; (8) if so, whether the ordinance is in harmony with it; and (9) the evidence or lack of evidence of community need for a proposed use. See Sinclair Pipe Line Co. v. Village of Richton Park (1960), 19 Ill. 2d 370, 378, 167 N.E.2d 406, 411; Forestview Homeowners Association, Inc. v. County of Cook (1974), 18 Ill. App. 3d 230, 240-41, 243, 309 N.E.2d 763, 771, 773.

Whether a rezoning ordinance (as here) or an original zoning ordinance (as in La Salle) is at issue, the same factors for determining validity apply. (Garner v. City of Carmi (1963), 28 Ill. 2d 560, 564, 192 N.E.2d 816, 819; Forestview, 18 Ill. App. 3d at 243-44, 309 N.E.2d at 773.) The list of factors is not exclusive, no one factor controls, and validity is to be determined on the facts and circumstances of each ordinance. (La Salle, 12 Ill. 2d at 46-47, 145 N.E.2d at 69.) However, in several cases it has been said that “[o]f paramount importance is whether the restrictions imposed on the property are in conformity with the uses and zoning of nearby property.” Amalgamated Trust & Savings Bank v. County of Cook (1980), 82 Ill. App. 3d 370, 381, 402 N.E.2d 719, 728.

The nonexclusive list of La Salle-Sinclair factors encompasses a broad range of considerations relevant to a zoning ordinance’s constitutionality, but it does not necessarily preclude the relevance of other factors hitherto unaddressed by the cases. Contrary to defendants’ assertion, the list of factors is not comparable to the essential elements that must be pleaded and proved in every case to support a contract or tort action.

Accordingly, while failure of a complaint to plead a cause of action in terms of all the La Salle-Sinclair factors may indicate its vulnerability to dismissal, dismissal should not occur if the pleading theory otherwise supports a claim of unconstitutional arbitrariness or capriciousness. This is particularly true since defendants have not cited a single precedent for applying La Salle factors to dismiss a zoning challenge at the pleading stage. (Cf. Cain v. American National Bank & Trust Co. (1975), 26 Ill. App. 3d 574, 583-84, 325 N.E.2d 799, 806-07 (trial court erred in dismissal at pleading stage); Brown v. County of Lake (1966), 67 Ill. App. 2d 144, 154-55, 213 N.E.2d 790, 794 (same).) The La Salle factors have consistently been used to judge the strength of a plaintiffs case after a full presentation of evidence at trial. Not all of them can even be meaningfully applied at an earlier stage.

Still, besides significantly influencing a decision on whether zoning plaintiffs have proved their case at trial, the La Salle-Sinclair factors can shed some light on the pleading adequacy of the present complaint. For that reason, we shall review the amended complaint in that light.

The La Salle factors were enunciated in the context of a case in which a property owner challenged an original zoning ordinance that denied a proposed new use. The present cause involves a challenge by neighbors to a rezoning ordinance that allows a new use — a litigation posture that is notably different. Even though the “same” factors are said to apply in determining the validity of rezoning as in determining the validity of an original zoning ordinance, it is not past dispute whether certain La Salle-Sinclair factors should apply to the subject property as formerly zoned, to the subject property as rezoned, or to the neighboring property.

For present purposes, we do not attempt to resolve all differences over the La Salle factors’ proper application. In addition, we take all well-pleaded factual allegations in the amended complaint as true (see Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill. 2d 502, 505, 485 N.E.2d 372, 374).

a. Uses and zoning of nearby property. The immediately surrounding property is zoned Ml-2 for restricted (light) manufacturing. At least some of it — the property owned by Ex-Cell directly north across Willow Street — is currently used for that purpose. Likewise zoned and used is the property owned by Churchill, which is directly west across Hoyne Avenue from Ex-Cell’s property and less than a block northwest of and around the corner from the Ludwig Drum property. Less than a block north and south of the Ludwig Drum property are two small islands of property zoned Cl-2 (restricted commercial district) and presently used by small retailers. Farther away are two areas zoned B4-2 (restricted service district) (business) and much larger areas zoned R3 and R4 (general residence districts).

The edge of the nearest B4-2 property is at least two streets away from the Ludwig Drum property. The edge of the nearest R3 or R4 property is separated either by two streets and a set of railroad tracks or by three streets from the Ludwig Drum property. The beginnings of all these zones in densely populated Chicago are close enough for them to be termed “nearby,” and for that reason defendants argue that the work/live use of the rezoned Ludwig Drum property would complement the mixture of uses of “nearby” properties. However, the nearest of all properties are in the surrounding Ml-2 zone, followed by the properties in the two Cl-2 retail islands.

In sum, the rezoning does not conform to the Ml-2 zoning or use of the nearest properties; it conforms to the zoning but only slightly to the use of the nearby Cl-2 islands; it conforms neither to the zoning of the more distant B4-2, R3, or R4 properties nor to the permitted uses of the B4-2 properties; and only in a general residential sense, but not in a specific economic sense, does it conform to the actual use of the R3 and R4 properties. On balance, then, the rezoning does not conform to the existing uses or zoning of nearby property.

b. Diminution of property values. The rezoning increases the Ludwig Drum property’s value. However, at a value in excess of $1 million as industrial property, the Ludwig Drum property was far from worthless prior to rezoning.

The rezoning diminishes plaintiffs’ property values. Several plaintiffs have improved their properties, entered into leases, or expanded businesses in reliance upon the Ludwig Drum property’s manufacturing zoning. See Amalgamated Trust & Savings Bank v. County of Cook, 82 Ill. App. 3d at 382-83, 402 N.E.2d at 729 (nearby owners have right to rely on rule that zoning will not be changed except for public good).

Manufacturing plaintiffs. The manufacturing plaintiffs have been enabled to remain in business at their present locations partly because of the availability of a local work force, which was facilitated by the former zoning and would likewise be available to potential new manufacturer owners. Therefore, the values of those plaintiffs’ property as viable manufacturing sites were enhanced by the former zoning. But, because the work force’s ability to reside locally is now imperiled, the manufacturing plaintiffs’ business viability and hence the values of their property as manufacturing sites are endangered by the rezoning.

The manufacturing plaintiffs will also suffer other losses of income and property value because of the rezoning. Income losses will include costs of surmounting traffic congestion; costs of meeting environmental complaints from new Ludwig Drum residents; and higher taxes. Higher taxes are threatened if the manufacturing plaintiffs’ property is assessed at higher values on the assessor’s assumption that, by obtaining Ludwig Drum-type rezoning, those plaintiffs could sell their property at higher prices. Property value losses will be caused when potential purchasers take into account the foregoing items of income loss as items with which a purchaser would also have to contend. Property value losses will also result from the impact of zoning laws on present owners’ ability to expand and on new owners’ ability to conduct manufacturing operations, because under the Ludwig Drum rezoning the manufacturing plaintiffs’ property would become subject to restrictions that did not apply under the former zoning.

Residential plaintiffs. The residential plaintiffs will also suffer losses as a result of the rezoning. Those losses will include increased street traffic congestion, resulting in the endangerment of children and in parking difficulty; lost job opportunities, which could have been created by use of the Ludwig Drum property for manufacturing that is impossible under the rezoning; and higher taxes or rents, caused by higher assessments resulting from the sale prices of nearby Ludwig Drum apartments. As a practical matter, the residential plaintiffs cannot avoid the higher taxes or rents by a sale or move, because selling or moving is prohibitively inconvenient or costly and because plaintiffs cannot find comparable property elsewhere for comparable prices.

Though the residential plaintiffs’ losses will have negative impacts on their property values, defendants argue for a presumption that the ultimate effect of the rezoning will be to offset such impacts and to produce a net dollar increase in those plaintiffs’ property values (at least in the case of residential plaintiffs who own the real estate where they live). Even so, a similar presumption does not necessarily follow with regard to the manufacturing plaintiffs. Any net increase in the manufacturing plaintiffs’ property values would be based only on the market-perceived ability of those plaintiffs to obtain residential-use rezoning of their own properties through the cumbersome process of obtaining city council approval of yet another rezoning ordinance. Such a net increase would also depend on the assumption that the value added by rezoning the manufacturing plaintiffs’ properties would outweigh the costs of a manufacturing shutdown and a conversion of the properties to new uses. If rezoning of such value could not be obtained, a net decrease rather than increase in the manufacturing plaintiffs’ property value would follow.

In sum, the residential plaintiffs who own their real estate will suffer short-term losses even if their property might experience net dollar value increases, theoretically realizable in the future. The residential plaintiffs who are renters will suffer similar losses without any corresponding increase in realizable property values. The manufacturing plaintiffs will suffer at least short-term losses; those plaintiffs’ net realizable property values would increase, if at all, only as the market perceived the necessary rezoning to be obtainable; otherwise, their property values would decrease. The Ludwig Drum property value will increase.

c-d. Promotion of public welfare and gain-loss balance. There is a demand in Chicago for the type of residential use allowed by the rezoning. The rezoning will make commercial use of a property where vacant structures have stood for some time. However, plaintiffs contend that the facts pleaded in their complaint show that the balance is against the public welfare. Defendants, who persistently contend that plaintiffs are merely pleading an increase in property values, reach an opposite conclusion. Though defendants’ contention is simplistic, this question must await a trial for resolution.

e-f. Suitability as zoned and length of time vacant. On these points, the parties differ as to the proper application of La Salle factors that were articulated in connection with challenging a refusal to permit a nonconforming use. We need not yet decide how to apply the factors in the context of neighbors’ challenge to a rezoning. However, in connection with the suitability factor, we note that in Garner v. City of Carmi, where a rezoning was challenged, the court examined whether the property was more suitable as rezoned than as formerly zoned. (28 Ill. 2d at 565, 192 N.E.2d at 819.) Here, we think that the amended complaint demonstrates the property’s suitability both to its formerly zoned use and to its rezoned use.

g-h. Existence of plan and conformity with plan. Plaintiffs cite city, county, and State planning policies that favor industrial retention. They also point to many dying areas of Chicago that could meet any public need for housing of the type for which the rezoned property will be used.

Defendants respond that the City has no comprehensive zoning plan as such and that the Cook County policy of favoring industrial retention offers no guidance on how to zone specific parcels of real estate.

Plaintiffs further contend that the very lack of a comprehensive zoning plan weakens the presumption of validity that would normally attach to a rezoning ordinance. (See Forestview, 18 Ill. App. 3d at 243, 309 N.E.2d at 773; accord Harris Trust & Savings Bank v. Duggan (1982), 105 Ill. App. 3d 839, 849, 435 N.E.2d 130, 139, affd (1983), 95 Ill. 2d 516, 449 N.E.2d 69.) Defendants contend that Forestview did not signal a change in the standard of review that calls for presuming the constitutionality of a zoning ordinance. (See First National Bank v. Village of Vernon Hills (1977), 55 Ill. App. 3d 985, 989-90, 371 N.E.2d 659, 664.) However, Vernon Hills is distinguishable, because there the court’s departure from Forestview was based on a village’s status as newly developing, on the absence of any showing that the village had failed to consider relevant land use data, and on the fact that the village had begun comprehensive planning even though it had not yet formally adopted a plan. Meanwhile, Harris Trust & Savings Bank v. Duggan has reaffirmed Forestview’s rule that absence of a plan, even though not dispositive, does weaken the presumption of a zoning ordinance’s validity.

i. Need for development. Plaintiffs contend that there is no need for luxury housing as permitted by the rezoning and that any need for work/live units can be met in other, dying industrial areas of the city.

Defendants respond that plaintiffs do not challenge the need for work/live units but only challenge the need for such units in their neighborhood. However, this response by defendants fails to address plaintiffs’ denial of need for luxury housing. Moreover, because the Sinclair “need” factor refers to a need for the proposed use, it necessarily pertains to the proposed use at the proposed location, not to some similar use somewhere. Therefore, consideration of a need for the proposed use in plaintiffs’ neighborhood is all that this Sinclair factor requires. Taking as true the facts pleaded in the amended complaint, there is clearly no neighborhood need for the development.

Thus, not only was it improper to dismiss plaintiffs’ amended complaint at the pleading stage merely for perceived failure to meet La Salle-Sinclair criteria, but also it met a significant number of them and thereby stated a constitutional claim. The trial court erred insofar as dismissal of plaintiffs’ complaint was based on failure to state a claim.

2. STANDING

Defendants contend that plaintiffs lack standing because they have failed to allege harm.

Defendants’ contention of failure to allege harm is grounded largely on their repeated argument that plaintiffs are simply complaining about an increase in property values. However, as already discussed, plaintiffs’ case is not that simple. Rather, plaintiffs are complaining about an impending rise in taxes based on perceived value increases but unaccompanied by any ability on their part to take advantage of the perceived value increases. In addition, plaintiffs are complaining about a multitude of other harms, including destruction of job opportunities and of neighborhood social and commercial fabric.

Defendants call plaintiffs’ allegations of harm speculative, but plaintiffs respond that any zoning case involves expert projections that an opponent will wish to term speculative. Plaintiffs correctly add that, at the pleading stage, they have not yet had a chance to prove what defendants contend is speculative.

In addition, defendants contend that specific allegations of harm to plaintiffs are insubstantial. Besides arguments already discussed, defendants attack two of plaintiffs’ specific allegations of harm as follows.

Defendants say that the traffic increase and parking-space decrease of which plaintiffs complain would result from the same industrial use that plaintiffs advocate for the property. Defendants also say that the rezoning ordinance requires an increase in off-street parking spaces. However, plaintiffs point out that they expressly alleged traffic and parking problems beyond those that would result from light industrial or manufacturing use. Plaintiffs also point out that defendants’ reference to the ordinance improperly contradicts factual allegations of the complaint and that, according to the complaint, the rezoning ordinance reduces the number of off-street parking spaces below what is required of similar developments by the Chicago Zoning Ordinance.

Defendants deny that the manufacturing plaintiffs’ property will be subjected by the rezoning ordinance to the stricter noise, setback, height, and other regulations that plaintiffs allege will then apply under the Chicago Zoning Ordinance because of the nearness of a residential use. The reason, defendants say, is that section 10.5 of the Chicago Zoning Ordinance, which plaintiffs cited, uses the term “adjacent” in regard to nearby uses, and neither manufacturing plaintiff’s property immediately adjoins the Ludwig Drum property. (Chicago Zoning Ordinance §10.5.) Plaintiffs reply that section 10.13 — 1 of the zoning ordinance (Chicago Zoning Ordinance §10.13 — 1), which the amended complaint also cited, uses the phrase “across a street from a Residence District” and that, because the manufacturing plaintiffs’ property is across the street from the Ludwig Drum property, those plaintiffs’ property will become subject to stricter regulations as a result of the rezoning.

Plaintiffs appear to assume, which we refrain from deciding, that each zoning ordinance reference to a “Residence District” includes a commercial-residential planned development (CRPD) such as the Ludwig Drum property. In addition, though plaintiffs do not mention it, section 10.5 of the zoning ordinance specifically provides that the “standards governing noise for the Ml Districts [plaintiffs] shall apply at the nearest Residence or Business District boundary line.” Thus, by creating a boundary line for the Ludwig Drum CRPD that is closer to the manufacturing plaintiffs’ property than is the boundary of any previously designated residence or business district, the rezoning ordinance may in yet another way limit those plaintiffs’ property use more severely than before — again assuming that a CRPD can be considered a residence district.

Even if the manufacturing plaintiffs err in assuming that legally the rezoning will subject their property to stricter zoning controls, they also contend that the rezoning will bring additional costs to defend against complaints (whether or not legally sound) brought by residential neighbors. This alone is a claim of injury sufficient to withstand a pretrial dismissal motion, though it may present problems of proof at trial.

Defendants contend that the plaintiffs who do not own real estate, but who may simply be month-to-month tenants or tenants at sufferance, lack standing because no court has recognized such “transient” interests as sufficient for a zoning challenge. Defendants contend further that those plaintiffs did not allege that any harm will actually occur before their tenancies end. Though defendants cite no cases in support of these points, the trial court agreed with them. By contrast, plaintiffs cite Corkill Electric Co. v. City of Chicago (1990), 196 Ill. App. 3d 838, 847, 554 N.E.2d 1027, 1032-33, as impliedly recognizing a nearby oral lessee’s standing to seek enforcement of a zoning ordinance. As inferential support for plaintiffs, Corkill is persuasive and certainly outweighs defendants’ complete lack of case authority on nonowners’ standing.

Meanwhile, courts have previously recognized that, in zoning challenges, standing exists for such parties as lessees under written leases (Tower Cabana Club, Inc. v. City of Chicago (1955), 5 Ill. 2d 11, 123 N.E.2d 834), employees of a business (Genusa v. City of Peoria (7th Cir. 1980), 619 E2d 1203 (standing under United States Constitution, article III)), prospective purchasers of property (Sisters of Providence v. City of Evanston (N.D. Ill. 1971), 335 F. Supp. 396 (standing under Federal law)), persons with a possessory interest in property (Chicago Title & Trust Co. v. Village of Mount Prospect (1978), 63 Ill. App. 3d 223, 379 N.E.2d 901), and owners or residents of single-family houses (Wheeling Trust & Savings Bank v. Village of Mount Prospect (1975), 29 Ill. App. 3d 539, 331 N.E.2d 172). We think the tenant plaintiffs have standing.

Defendants also cite law requiring that plaintiffs plead special harm not shared with the general public. Curiously, however, defendants never argue directly that plaintiffs are not harmed differently from the general public; rather, defendants argue that plaintiffs are not harmed at all. Meanwhile, plaintiffs extensively support their allegation of special harm. Because plaintiffs, all of whom occupy real estate near the rezoned property, allege at least some harm not experienced in common with the general public, defendants have failed to show that plaintiffs lack standing to sue.

Accordingly, to the extent that dismissal of plaintiffs’ complaint was based on lack of standing, the trial court erred.

B. COUNT II: ZONING ORDINANCE AMENDMENT CRITERIA

In count II of their amended complaint, plaintiffs alleged that the rezoning was arbitrary and capricious because the City failed to follow the criteria set forth in its own zoning ordinance for rezoning to permit planned developments such as the Ludwig Drum development. Chicago Zoning Ordinance §11.11 — 2.

Any failure by the City to follow its zoning ordinance in approving the rezoning ordinance is governed by Landmarks Preservation Council v. City of Chicago (1988), 125 Ill. 2d 164, 531 N.E.2d 9. The Landmarks court declined to invalidate a Chicago home-rule ordinance that had been passed in contravention of an earlier ordinance but not (so far as any plaintiff contended) in violation of any State or Federal statute or constitutional provision. Landmarks, 125 Ill. 2d at 179-80, 531 N.E.2d at 15-16.

Plaintiffs’ only constitutional claim (set forth in count I) is that the rezoning ordinance arbitrarily and capriciously violates their substantive due process rights under the Illinois Constitution. This claim does not depend on whether the City followed its own criteria for passing rezoning ordinances; rather, it depends on the rezoning ordinance’s substance. Since plaintiffs did not contend in count II that the city’s mere failure to follow zoning ordinance criteria violated any applicable statute or their procedural due process, equal protection, or other constitutional rights, the trial court did not err in dismissing count II. Cf American National Bank & Trust Co. v. City of Chicago (1990), 209 Ill. App. 3d 96, 109-10, 568 N.E.2d 25, 34 (rezoning plaintiff alleged denial of procedural due process through denial of fair notice and hearing).

C. COUNT III: ECONOMIC DISCLOSURE AND NOTICE

In count III of their amended complaint, plaintiffs alleged that, during the rezoning process, defendants failed to disclose properly who the applicants for the rezoning were. See Chicago Zoning Ordinance §11.9 — 3.2.

Count III also alleged that the City prematurely published a notice of a meeting of the city council’s committee on zoning because, according to plaintiffs, the meeting could not lawfully have been held until after the date fixed in the notice. See Chicago Zoning Ordinance §§11.9 — 4 through 11.9 — 6.

As with count II, the Landmarks rule governs plaintiffs’ complaint in count III of the City’s alleged failure to comply with its own ordinance requirement. Besides, plaintiffs did not allege a scheme to deprive them of notice as in In re Petition of Kildeer (1988), 124 Ill. 2d 533, 530 N.E.2d 491, which plaintiffs cite as requiring “meaningful” notice. Neither did plaintiffs allege having had no actual notice of the committee hearing.

The trial court did not err in dismissing count III.

CONCLUSION

The trial court’s judgment is affirmed as to counts II and III of the amended complaint. The judgment is reversed as to count I, and this cause is remanded to the circuit court of Cook County for further proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded.

CERDA, P.J., and RIZZI, J., concur.


source: Caselaw Access Project

author: JUSTICE GREIMAN

license: Public Domain

text:
    BATTISTA PECORARO, Plaintiff-Appellee, v. LOUIS KESNER, Defendant-Appellant.
    First District (3rd Division)
    No. 1 — 90—1597
    Opinion filed July 17, 1991.

      Rudnick & Wolfe, of Chicago (Paul Homer, of counsel), for appellant.
    Herbert C. Goldman, P.C., of Chicago, for appellee.
   JUSTICE GREIMAN

delivered the opinion of the court:

This case arises from a forcible entry and detainer action filed by plaintiff, Battista Pecoraro, in the circuit court of Cook County. Defendant, Louis Kesner, appeals from the trial court’s denial of his motion to quash service. The trial court struck defendant’s jury demand and found for the plaintiff in a bench trial.

Defendant contends that (1) his acts should not be deemed a general appearance although he personally appeared before the trial court and requested a continuance to obtain a lawyer and thereafter filed a jury demand, and again appeared before the court acknowledging that he had engaged an attorney; and (2) section 9 — 107 of the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1989, ch. 110, par. 9 — 107), providing for service by posting and mail, violates the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV) and article I, section 2, of the Illinois Constitution (Ill. Const. 1970, art. I, §2).

For the reasons set forth below, we find that defendant’s actions constituted a general appearance and approve the trial court’s decision to deny defendant’s motion to quash service. However, we further find that the trial court erroneously struck defendant’s jury demand and therefore reverse and remand for a new trial. We decline to address the issue of the constitutionality of the “posting statute” since the trial court acquired jurisdiction over defendant on the basis of defendant’s voluntary acts and not on the basis of section 9 — 107.

On March 15, 1990, plaintiff filed a complaint seeking past-due rent from defendant and possession of the apartment where defendant lived. A summons was also issued on the same day.

The record indicates that the sheriff never attempted personal service of the summons upon defendant. The sheriff’s return of service stated that the summons was received by the sheriff’s office on March 16, 1990, but the designated deputy sheriff did not receive the writ until March 23, 1990, which was past the “die date” of March 22, 1990. The “die date” signifies the date after which service of summons cannot be attempted.

On March 29, 1990, plaintiff’s attorney mistakenly executed an affidavit stating that defendant could not be served because he could not be found and was concealed within the State. This affidavit, which plaintiff now concedes was incorrect, was the basis for subsequent notice by posting and mailing under section 9 — 107.

As provided by statute, the sheriff’s office then posted a “Notice Requiring Appearance In Pending Action” in three separate locations and also mailed one to defendant’s residence. The notice stated that plaintiff had commenced an action for recovery of possession of the apartment occupied by defendant and that defendant was required to appear in court on April 12,1990.

On April 12, 1990, defendant and plaintiff’s attorney appeared in court. The court granted defendant’s request for a continuance to allow him an opportunity to obtain an attorney. The entire proceedings of that day were as follows:

“THE CLERK: Pecararo versus Kesner.
MR. KESNER: Here.
THE COURT: You are Louis Kesner?
MR. KESNER: Yes, I am asking for a continuance.
THE COURT: Motion Defendant continue — what’s the purpose?
MR. KESNER: To get an attorney.
[PLAINTIFF’S ATTORNEY]: April 23rd at 2:00 p.m.
THE COURT: April 23, ’90, 2:00 p.m.
MR. KESNER: Thank you.
THE COURT: April 23rd.
[PLAINTIFF’S ATTORNEY]: Would you show Defendant present in court because the summons was by posting.
THE COURT: Defendant present in court.”

On April 19, 1990, defendant filed and was granted an application to sue or defend as a poor person. This matter was before a different judge in an ex parte proceeding.

On April 23, 1990, defendant filed a jury demand. Later that same day, defendant, without counsel, again appeared in court. Defendant stated that he had counsel but his counsel was not able to attend this proceeding. Defendant then asked for a continuance, told the court that he had filed a jury demand, and mentioned the issue of defective service due to the sheriff’s failure to attempt service of summons and the erroneous affidavit filed by plaintiff’s attorney. The trial court found that defendant had filed a general appearance by previously appearing before the court. Accordingly, the trial court ruled that defendant had submitted to the jurisdiction of the court and waived any defect in service. The trial court also granted defendant’s motion for a continuance and scheduled trial for May 3, 1990.

On May 3, 1990, the trial court entered another order continuing the case to May 31, 1990. The record indicates that on May 3 the parties and their attorneys attempted, unsuccessfully, to effect a settlement of the matter.

On May 10, 1990, the parties and their attorneys appeared in court. Defendant’s counsel moved to enter a special and limited appearance and to quash service of summons on the grounds that service was defective. In addition, defendant asserted that the posting and mailing provisions of section 9 — 107 violate the requirement of constitutional due process.

The trial court denied defendant’s motion to quash service, finding that at this stage in the case, defendant had unquestionably submitted himself to the court’s jurisdiction. However, the trial court also noted that if defendant had brought the sheriff’s return of summons to the court’s attention during his first court appearance, the court would have quashed service.

The trial then proceeded on May 10, but defendant did not participate and stood upon his special and limited appearance. The court entered judgment in favor of plaintiff for possession and $670 delinquent rent plus costs.

On appeal defendant maintains that he did not submit to the trial court’s jurisdiction because his actions did not constitute a general appearance. Specifically, referring to the April 12, 1990, proceeding, defendant argues that a request by a pro se defendant for a continuance to obtain counsel, without more, does not constitute a general appearance.

We agree with defendant’s contention that his actions on April 12 alone were insufficient to constitute a general appearance. However, we find that defendant’s actions, taken in their totality, show that he invoked the court’s jurisdiction through his subsequent conduct and will be deemed to have entered a general appearance.

The Code of Civil Procedure requires the filing of a special appearance before the filing of any pleading or motion; any appearance which does not conform to this filing sequence is automatically characterized as a general appearance. (Ill. Rev. Stat. 1989, ch. 110, par. 2— 301.) Section 2 — 301 provides, in relevant part, as follows:

“Prior to filing any other pleading or motion, a special appearance may be made either in person or by attorney for the purpose of objecting to the jurisdiction of the court over the person of the defendant. *** Every appearance, prior to judgment, not in compliance with the foregoing is a general appearance.”

Defendant makes a thoughtful argument concerning the responsibility of a trial judge to a pro se party in our system and presents a thorough and accurate picture of the risks to which such a party is exposed in a high volume “forcible” court where only a small percent of the defendants are represented by counsel. Generally any action on the part of the defendant, except to object to the jurisdiction, will amount to a general appearance. (Lord v. Hubert (1957), 12 Ill. 2d 83, 87, 145 N.E.2d 77, 80; People v. Estep (1955), 6 Ill. 2d 127, 128, 126 N.E.2d 637, 638.) The reason advanced for this rule is that “a person cannot, by his voluntary action, invite the court to exercise its jurisdiction and at the same time deny that jurisdiction exists.” Lord, v. Hubert, 12 Ill. 2d at 87, 145 N.E.2d at 80.

Defendant correctly states that the word “appearance” for jurisdictional purposes means more than physical presence. (In re A.M. (1984), 128 Ill. App. 3d 100, 104, 470 N.E.2d 58.) The cases which have conferred jurisdiction by constituting defendant’s acts a general appearance required more than a pro se defendant’s mere request for a continuance to get an attorney. (See, e.g., People v. Estep (1955), 6 Ill. 2d 127, 126 N.E.2d 637 (counsel for defendants appeared and moved six times for a continuance); Williamsburg Village Owners’ Association, Inc. v. Lauder Associates (1989), 181 Ill. App. 3d 931, 537 N.E.2d 857 (assertion of equitable defense in connection with special appearance); Thilman & Co. v. Esposito (1980), 87 Ill. App. 3d 289, 408 N.E.2d 1019 (counsel for defendant initially entered a special appearance but then proceeded to participate in the trial without any order being entered as to the jurisdictional question); Difanis v. MartinTrigona (1979), 73 Ill. App. 3d 352, 353, 391 N.E.2d 1067 (the filing of a jury demand “for any and all, if there be any, subsequent proceedings in the state court”); Slade v. Bowman (1977), 49 Ill. App. 3d 242, 364 N.E.2d 922 (after filing an appearance, defendant filed and argued a section 72 motion (now section 2 — 1401)); McKnelly v. McKnelly (1976), 38 Ill. App. 3d 637, 348 N.E.2d 500 (stipulation for attempted reconciliation in divorce proceeding deemed general appearance).) Accordingly, the issue becomes whether or not defendant did something beyond making a request for a continuance to obtain counsel which would recognize the power of the court to act and thus establish a general appearance. See In re A.M., 128 Ill. App. 3d at 104.

In the present case, we find that defendant did something more than merely make a pro se request for continuance in order to warrant a finding that his acts constituted a general appearance. As we have stated previously, defendant’s initial appearance in court on April 12, 1990, to request time to obtain counsel was not sufficient to establish a general appearance. However, on April 23, 1990, defendant filed a jury demand, advised the court that he had obtained counsel and although raising the jurisdictional question, asked for an additional continuance.

The filing of a jury demand is clearly an assertion of rights which affect the course of the litigation. It cannot be characterized in the same manner as a mere request by a pro se defendant for an opportunity to obtain counsel. A jury demand confers upon the parties and the judicial system certain rights and obligations, and upon the filing of a jury demand, coupled with defendant’s physical appearances before the court on two occasions, defendant is deemed to have made a general appearance in this case. Difanis v. Martin-Trigona (1979), 73 Ill. App. 3d 352, 391 N.E.2d 1067.

Section 2 — 1105 allows a defendant desirous of a trial by jury to file a demand not later than the filing of his or her answer. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1105.) Statutes regulating the right to a jury trial should be liberally construed in favor of allowing this right, and the inclination of the court should be to protect and to enforce this right. People ex rel. Raines v. Biggs (1985), 135 Ill. App. 3d 200, 481 N.E.2d 899.

At the trial and during this appeal, defendant stood on his special appearance. As noted, the trial court erred in striking defendant’s jury demand and proceeded to judgment in a bench trial. It would be a neat bit of casuistry if we allowed this court to impose jurisdiction because of the jury demand and allow the trial court to erroneously strike the jury demand as not being timely.

While defendant’s jurisdictional theory of the case restrains him from objecting to the error in striking the jury demand, this court is not so precluded. Supreme Court Rule 366 empowers a reviewing court, in the exercise of its responsibility to obtain a just result, to decide a case on grounds not raised by the parties. (134 Ill. 2d R. 366.) The authority of courts to predicate their decision on matters not raised on appeal is beyond dispute. Occidental Chemical Co. v. Agri Profit Systems, Inc. (1976), 37 Ill. App. 3d 599, 346 N.E.2d 482.

The prohibition against raising issues not raised in the trial court or not set forth in the notice of appeal is a limitation on the parties and not upon the jurisdiction of the reviewing courts. Hux v. Raben (1967), 38 Ill. 2d 223, 230 N.E.2d 831.

We elect to determine this controversy on the trial court’s error in striking the jury demand. Because of the narrowness of defendant’s appeal, this issue was not raised, but we believe there is ample authority for us to so act. (Village of Schaumburg v. Franberg (1981), 99 Ill. App. 3d 1, 424 N.E.2d 1239; Mitchell v. Mitchell (1977), 54 111. App. 3d 18, 369 N.E.2d 276; In re Application of County Treasurer (1975), 25 Ill. App. 3d 717, 323 N.E.2d 803.) So important is the need for a just result and for the maintenance of a sound and uniform body of precedent, that courts may be required to override considerations of waiver or procedure that stem from the adversary character of our system. Hux v. Roben (1967), 38 Ill. 2d 223, 230 N.E.2d 831.

Accordingly, we will follow Supreme Court Rule 366, which allows us to “enter any judgment and make any order that ought to have been given or made, and make any other and further order and grant any relief *** that the case may require.” 134 Ill. 2d R. 366(aX5).

The ruling by the trial court striking the jury demand was not an exercise of discretion relating to allowance of a late filed jury demand, but rather the striking of a properly filed and timely jury demand, and this erroneous belief of the trial court was reversible error.

Next, defendant has asserted that the “post and mail” provisions in section 9 — 107 are unconstitutional, both facially and as applied in the present case, because they violate defendant’s due process rights to be afforded adequate and proper notice of the pendency of plaintiff’s action. We have decided that the jurisdiction of the trial court was dependent upon acts of the defendant rather than plaintiff’s arrangement for service of process. It is clear that a reviewing court will decide a constitutional question only where it is essential to the disposition of the case and should avoid passing upon a constitutional issue if the case could be decided without its determination. In re Application of County Collector (1989), 132 Ill. 2d 64, 547 N.E.2d 107; Exchange National Bank v. Lawndale National Bank (1968), 41 Ill. 2d 316, 243 N.E.2d 193; Village of Schaumburg v. Franberg (1981), 99 Ill. App. 3d 1, 424 N.E.2d 1239.

Accordingly, we reverse the decision of the circuit court and order a new trial.

Reversed.

CERDA, P.J., and RIZZI, J., concur.

       Defendant’s brief urges that a pro se, indigent defendant in eviction proceedings is susceptible to the loss of his most fundamental property right, his place of abode, in summary proceedings before a belabored court and cites various commentaries and surveys, including Fusco, Collins & Birnbaum, “Chicago’s Eviction Court: A Tenants’ Court of No Resort,” 17 Urb. L. Ann. 93, 114-15 (1979); “Judgment Landlord: A Study of Eviction Court in Chicago” (1978) by the same authors; and “Gideon’s Shelter: The Need to Recognize Right to Counsel for Indigent Defendants in Eviction Proceedings,” 23 Harv. C.R.-C.L. L. Rev. 557 (1988).


author: PRESIDING JUSTICE JIGANTI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL FURLONG, Defendant-Appellant.
    First District (4th Division)
    No. 1 — 89—1133
    Opinion filed July 18, 1991.

      Law Offices of Burton A. Brown, P.C., of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, William Pistorius, and Kelly Bolán, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

Following a jury trial, the defendant Michael Furlong was convicted of possession of a controlled substance with intent to deliver and sentenced to a prison term of six years and six months. He contends on appeal that the trial court erred in denying his motion to suppress evidence seized from his luggage after exposure to a narcotics detector dog. The defendant also contends that he was denied a fair trial as a result of the State’s failure to disclose the substance of a statement as required by the supreme court discovery rules. 107 Ill. 2d R. 412(a)(ii).

At a hearing on the motion to suppress, the defendant presented the testimony of Carl Ekman, a special agent with the Drug Enforcement Administration (DEA) who was assigned to O’Hare airport. Ekman testified that at 8:20 p.m. on May 16, 1986, he and his partner, Agent Robert Fulkerson, Jr., were observing passengers deplane from a flight originating in West Palm Beach, Florida. Ekman explained that West Palm Beach is considered a source city for narcotics. The defendant exited the jetway carrying a bag that appeared to be lightly packed. The agents followed the defendant and overheard him ask a ticket agent where the baggage area was located. The defendant, continuously glancing over his shoulder, proceeded to the lower-level baggage area, bypassed the baggage carrousels and quickly took an escalator back to the ticket area. After stopping in a gift shop, the defendant made a telephone call and again walked past the ticket counters. At that point, Ekman and Fulkerson approached the defendant and identified themselves as DEA agents. Although at least one of the agents was armed, no weapon was displayed. When they asked the defendant if they could speak with him, he responded, “Sure.”

Ekman then asked the defendant to produce a copy of his airline ticket and identification. According to Ekman, the defendant’s chest and stomach were visibly shaking. The ticket was purchased earlier that day and paid for in cash. The defendant’s return flight was scheduled for 12:02 a.m. on May 18, approximately 28 hours after his arrival in Chicago. The defendant stated that the reason for the short trip was to see a baseball game. When asked which team he came to see, the defendant hesitated and was unable to answer.

Ekman returned the defendant’s ticket and Florida driver’s license and told him that they were conducting a drug investigation. In response to Ekman’s question, the defendant indicated that he worked on a produce farm and that he was not carrying drugs. Ekman then asked if the defendant would consent to a search of his bag, informing him that he had a right to refuse the search and that he was free to leave. When the defendant refused the search, Ekman told him that the bag would be detained for a search by a narcotics detector dog and that the defendant had the option of remaining with the bag during the search, which would take about 15 minutes, or leaving the airport and having the bag delivered to him later. The defendant stated that he wanted to leave the airport and did not know where he would be staying. The agents then took down the information listed on the defendant’s driver’s license.

At that point, a friend of the defendant approached the agents and gave them his address and telephone number. The defendant and his friend then left the airport. A short time later, a narcotics detector dog reacted positively to the defendant’s bag and a search warrant was obtained. Two bags of cocaine were found inside the bag.

The defendant also called Agent Fulkerson, whose testimony was substantially similar to that of Agent Ekman. The State presented the testimony of Officer Thomas Kinsella, the handler of the narcotics detector dog. At the conclusion of the hearing, the trial court denied the defendant’s motion to suppress, finding that the defendant had consented to the initial encounter with the DEA agents.

At trial, Agents Ekman and Fulkerson again testified to the events surrounding their confrontation with the defendant and the search of his bag. The defendant, testifying in his own behalf, stated that he did not know that the cocaine was in his bag. He testified that he was given a ride to the airport by an acquaintance named Gary Fortinier and that Fortinier must have put the cocaine in the bag when he loaded it into his car. On cross-examination, the prosecutor asked, “Did you tell Agent Ekman on the plane that Gary Fortinier sold you the cocaine, and you bought [sic] it up to Chicago to turn it around?” No objection was made to this question, and the defendant answered, “No, I didn’t.”

When the State indicated that it would call Agent Ekman in rebuttal, defense counsel objected to any testimony on his part concerning prior inconsistent statements made by the defendant because the State failed to disclose any such statements in its answer to discovery. The State responded that the defendant was notified of this information because Agent Ekman’s report listed the source of the cocaine as “Gary Fortinier, age 29-32, West Palm Beach, Florida.” The trial court ruled that the report was not sufficient compliance with the discovery rules, but that the defendant’s objection was untimely because he failed to object to the State’s question during cross-examination which laid the foundation for impeachment.

Agent Ekman then testified in rebuttal that the defendant was extradited from Florida to Chicago on January 30, 1987. During the flight, the defendant told Ekman that he bought four ounces of cocaine from Gary Fortinier and brought it to Chicago with the intention of selling it for double or triple the price he paid. In surrebuttal, the defendant denied making that statement to Ekman.

The defendant first contends that the court erred in denying his motion to suppress evidence. Specifically, he argues that the court erred in finding that the initial encounter between the defendant and the DEA agents was a consensual one. He further maintains that the agents lacked a reasonable, articulable suspicion that his bag contained drugs and that the dog alert search was therefore illegal.

Relying upon the Supreme Court decision in Florida v. Royer (1983), 460 U.S. 491, 497-98, 75 L. Ed. 2d 229, 236, 103 S. Ct. 1319, 1324, this court in People v. Forrest (1988), 172 Ill. App. 3d 385, 390, 526 N.E.2d 616, 619, stated that “law enforcement officers who approach an airline passenger in a public area, announce their office, and ask him if he is willing to answer questions put to him have not committed a seizure of the person within the meaning of the fourth amendment, and, thus, any answers given to the police during such a consensual encounter will not be suppressed.” A seizure of the person for fourth amendment purposes occurs only where a reasonable person, in view of all the circumstances surrounding the incident, would have believed that he was not free to leave. (People v. Forrest, 172 Ill. App. 3d 385, 526 N.E.2d 616.) The issue of whether the defendant voluntarily consented to an encounter with the police is a question of fact for the trial judge, whose determination will survive review unless clearly unreasonable. People v. Price (1990), 195 Ill. App. 3d 701, 709, 552 N.E.2d 1200.

The defendant argues that the concept of a truly consensual encounter between a police officer and a citizen is a fallacy because the vast majority of citizens feel compelled to answer an officer’s questions even if approached in a nonthreatening manner. Thus, every encounter between an officer and a citizen must rise to the level of an investigatory stop, which must be justified by a reasonable and articulable suspicion that the citizen was engaging in criminal activity. This argument is contrary to the decisions in Florida v. Royer and People v. Forrest and must therefore be rejected. The defendant then argues that the totality of the circumstances surrounding his encounter with the agents shows that his consent was not voluntary. As stated earlier, the officers observed the defendant walk from place to place throughout the airport, continuously glancing over his shoulder. They approached him in a public area, identified themselves and asked if he would answer some questions. No weapons were displayed. The defendant responded, “Sure.” Under those circumstances, we cannot say that the trial court’s determination that the defendant voluntarily consented to the encounter was clearly unreasonable.

The defendant further argues that the agents did not have a reasonable, articulable suspicion that his bag contained narcotics and that the dog alert search was therefore illegal. The detention of luggage for the purpose of investigation must be justified by a reasonable suspicion based on specific articulable facts that the luggage contained contraband. (United States v. Place (1983), 462 U.S. 696, 706, 77 L. Ed. 2d 110, 120, 103 S. Ct. 2637, 2644.) In the case at bar, no such reasonable suspicion existed when the defendant was first encountered by the agents. However, as previously discussed, the defendant voluntarily consented to answer the agents’ questions. As a result of that interview, the agents learned that the defendant had bought his plane tickets that same day, paid for them in cash, and had a return flight approximately 28 hours later. According to Agent Ekman, the defendant was very nervous; his chest and stomach were visibly shaking. The defendant stated that he worked on a produce farm and came to Chicago to see a baseball game. However, he was unable to tell the agents which team he came to see. We believe that these factors, together with the defendant’s conduct in continuously looking over his shoulder while walking through the airport, provided the agents with sufficient reason to detain his bag for a dog alert search.

The defendant next contends that he was denied a fair trial as a result of the State’s failure to disclose the substance of a statement as required by the supreme court discovery rules. (107 Ill. 2d R. 412(a)(ii).) The statement in question was the defendant’s statement to Agent Ekman on the plane to Chicago that he had bought the drugs from Gary Fortinier and intended to sell them in Chicago for a higher price.

Supreme Court Rule 412(a)(ii) provides that the State must disclose to the defendant “any written or recorded statements and the substance of any oral statements made by the accused *** and a list of witnesses to the making and acknowledgement of such statements.” (107 Ill. 2d R. 412(a)(ii).) The purpose of the disclosure rule is to afford the defendant protection against unfairness and inadequate preparation as well as to eliminate the tactical advantage of unfair surprise. (People v. Bailey (1982), 103 Ill. App. 3d 503, 505, 431 N.E.2d 723.) In order to warrant reversal of a conviction, the nondisclosure must have prejudiced the defendant’s presentation of his or her defense. (People v. Cisewski (1987), 118 Ill. 2d 163, 172, 514 N.E.2d 970.) Among the factors relevant to a determination of whether the State’s failure to disclose constituted reversible error are the closeness of the evidence against the defendant and the strength of the undisclosed evidence. (People v. Cisewski, 118 Ill. 2d 163, 514 N.E.2d 970.) While exclusion of evidence and mistrial are extreme sanctions, a court will not refuse to impose them when they are the only effective sanctions available. People v. Weaver (1982), 92 Ill. 2d 545, 561, 442 N.E.2d 255.

The State makes three arguments with respect to its failure to disclose the statement the defendant made to Agent Ekman. First, it maintains that no discovery violation occurred because Ekman’s report listed Gary Fortinier’s name as the source of supply of the cocaine found in the defendant’s bag. Second, the State argues that the issue was waived by the defendant’s failure to object to a question concerning cross-examination which laid the foundation for impeachment. Third, the State contends that the defendant was not prejudiced by the alleged discovery violation.

In our view, the State’s argument that it did not violate the discovery rules is without merit. As quoted earlier, Rule 412(a)(ii) requires the State to disclose the substance of any oral statement made by the accused. The trial court found, and we agree, that merely listing the name Gary Fortinier as the source of supply did not constitute sufficient compliance with the rule. The defendant’s defense at trial was that he did not know his bag contained cocaine and that it must have been put there by Gary Fortinier, who drove him to the airport. Thus, a report listing Gary Fortinier as the source of supply would neither be surprising nor damaging to the defense. What was damaging was the undisclosed information that the defendant admitted buying the cocaine from Fortinier with the intention of reselling it.

The State’s second argument is that the defendant waived the issue regarding the discovery violation by failing to raise a timely objection at trial. Citing People v. Galindo (1981), 95 Ill. App. 3d 927, 420 N.E.2d 773, the State contends that the defendant was made aware of the statement in question when the prosecutor asked him on cross-examination whether he had told Ekman on the plane that he bought cocaine from Gary Fortinier with the intention of reselling it. Thus, the element of unfair surprise was eliminated and the defendant’s failure to object to the question on cross-examination constituted a waiver of the issue. In People v. Eliason (1983), 117 Ill. App. 3d 683, 453 N.E.2d 908, however, this court refused to find a waiver under circumstances almost identical to those presented in the case at bar. The court in Eliason stated that at the time the defendant was being cross-examined, defense counsel “was unaware that such a conversation in fact existed, and therefore cannot be faulted for failing to object to seemingly nonexistent evidence.” (Eliason, 117 Ill. App. 3d at 692, 453 N.E.2d at 913.) In view of the damaging nature of the undisclosed evidence and what we regard as the State’s willful misconduct in failing to disclose it, we believe that fundamental fairness requires us to consider the issue of whether the defendant is entitled to a new trial.

The State argues that a new trial is not warranted because it was the damaging nature of the evidence itself, rather than the State’s failure to disclose it, that prejudiced the defendant. We cannot agree with this assessment. The defendant testified that he had no knowledge of the cocaine discovered in his bag. The State then impeached his credibility by introducing testimony that the defendant not only knew the cocaine was there, but that he purchased it with the intent to resell it. The impact of this impeachment testimony was clearly devastating to the defendant’s case. Had the defendant known that the State was aware of his statement to Ekman, he may have elected not to testify and to simply present his theory to the jury through argument. We believe that the defendant was entitled to formulate his defense strategy and tactics with the benefit of all the information which the State was required to disclose. In our view, this case presents a glaring example of “trial by ambush.” We accordingly reverse the defendant’s conviction and remand the matter for a new trial.

Reversed and remanded.

LINN and McMORROW, JJ., concur.


author: JUSTICE LINN

text:
    ERIC WILLIAMS, Plaintiff-Appellant, v. CHICAGO HOUSING AUTHORITY et al., Defendants-Appellees.
    First District (4th Division)
    No. 1 — 90—0985
    Opinion filed July 18, 1991.

      John Thomas Moran, Jr., of Chicago, for appellant.
    Louis Butler, of Chicago, for appellees.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Eric Williams, filed suit against the Chicago Housing Authority, Zirl Smith, and Renault Robinson (CHA), alleging that he was wrongfully discharged from employment at the CHA. He claims that the CHA failed to follow its own written policies regarding the discipline of employees and thereby breached an implied contract of employment between the parties. He seeks reinstatement, back pay, interest, and damages.

The trial court dismissed Williams’ complaint, holding that it failed to state a cause of action. On appeal, Williams argues that the court applied the wrong standard of review and that his complaint states a cause of action for breach of employment contract.

We affirm.

Background

Williams’ third amended complaint alleges that Williams had been employed by the CHA since 1961. His last performance evaluation before his discharge was favorable. In March 1985 Williams was an “acting maintenance supervisor” at the Robert Taylor Homes. He was notified in writing, on March 4, 1985, that he was being suspended pending termination. According to Williams, the reasons the CHA gave in the written notice were either “false, unrelated to Plaintiff, or trivial.”

On April 2, 1985, the CHA provided Williams with a termination hearing. The hearing officer found from the matters presented that the termination should be upheld. Thereafter, Williams met with Zirl Smith, executive director of the CHA, to appeal the hearing officer’s findings. Smith affirmed the decision in writing, and Williams filed suit in the circuit court of Cook County.

Williams alleges that the CHA’s written policies and procedures require it to provide employees in Williams’ situation “progressive disciplinary action” for “minor” violations. Under the written policy circulars in issue, progressive discipline means that the employee is first given warnings and counseling in order to correct “poor performance, disruptive or unprofessional behavior or violation of policy or procedure.”

The CHA also has a written procedure for “gross” violations, which are those deemed to be “of a serious nature or detrimental to the good order and efficiency of the CHA” so as to warrant immediate suspension pending investigation. The CHA determined that Williams’ conduct fell into this category, and terminated him from employment without the progressive discipline approach.

Williams argues on appeal that the CHA was required to follow the progressive discipline procedures because the CHA gave notice of these written policies to its employees and this gave rise to enforceable contractual rights. Williams also alleges that his discharge was not for “just cause” and that the hearing officer’s findings were not supported by the evidence.

Opinion

In his brief, Williams frames two issues: (1) whether his complaint adequately sets forth a cause of action for breach of implied contract of employment; and (2) whether the trial court erroneously treated the CHA’s motion to dismiss as if it were one for summary judgment.

I

In attempting to state a cause of action against the CHA, Williams relies on Duldulao v. St. Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 505 N.E.2d 314, the first Illinois Supreme Court case to address the contractual rights of otherwise “at will” employees who assert breach of contract claims based on the existence of employee handbooks or manuals. Duldulao held that “an employee handbook or other policy statement creates enforceable con-

tractual rights if the traditional requirements for contract formation are present,” meaning the acceptance of an offer supported by consideration. (115 Ill. 2d at 490, 505 N.E.2d at 318.) The court held:

“[T]he 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.” (115 Ill. 2d at 490, 505 N.E.2d at 318.)

The court concluded that when those three elements are present, the employee’s continued work constitutes the legal consideration for the promises in the handbook or policy statement.

In Duldulao, the employee handbook contained unequivocal, mandatory language granting employees “permanent” employee status after completing a 90-day probationary period. The handbook stated that termination of permanent employees “cannot occur” without proper notice and investigation and that such employees “are never” dismissed without prior written admonitions and documented investigation. The handbook also stated that three warnings within a 12-month period “are required” before an employee is dismissed, “except in the case of immediate dismissal.” (115 Ill. 2d at 491, 505 N.E.2d at 318.) Immediate dismissal was permitted for “grave and valid” reasons such as mistreatment of patients or possession of weapons. These grounds were specifically listed, along with types of offenses that were not subject to immediate dismissal. The latter group included “Unwillingness to Render Satisfactory Service” and “Deliberate Violation of Instructions.” The plaintiff in Duldulao had been terminated for “failure to follow instructions” and “[Unsatisfactory performance [for] failure to properly monitor the Legal Implications of Documentation seminar.” (115 Ill. 2d at 485, 505 N.E.2d at 316.) The supreme court held that the plaintiff would reasonably believe that she would not be terminated for such conduct without prior written warnings. By the very terms of the handbook, her conduct did not fall into the category of grave offenses. The court therefore reversed, concluding that summary judgment in favor of the plaintiff must be entered on her complaint for breach of contract.

Duldulao recognized that freedom of contract in private employment relationships should not be abridged by the general rule that an employment relationship without a fixed duration may be terminated at the will of either party. (115 Ill. 2d at 489, 505 N.E.2d at 317-18.) Such a terminable-at-will employment relationship is presumed, however, unless a contrary intent is sufficiently established. If a court determines that the parties intended to bestow the employee with the right to be terminated only for just cause or only after a hearing on the grounds for discharge, the court will enforce the contract.

In the pending case, the trial court summarized the allegations of the complaint and attached exhibits, emphasizing the undisputed fact that the CHA follows two “channels” for employee termination. One is for gross violations, which triggers an immediate suspension followed by a hearing. The second, designed for less serious violations, provides for a series of warnings and counseling that may or may not ultimately lead to termination. The trial court found that the CHA treated Williams’ conduct as one involving gross violations. The court declined to review the propriety of the CHA’s internal decision to terminate Williams under the gross-violation procedures.

Without explaining why, Williams presumes error in the CHA’s decision to treat his conduct as a “gross violation” rather than a minor one, a decision that precluded him from receiving the progressive disciplinary procedures. He does not assert that the CHA did not follow its own procedures dealing with immediate suspension pending investigation. He did receive a hearing and administrative review of the termination decision. Williams does not dispute that the CHA has two different channels for disciplining or terminating employees, he simply disagrees with the channel that the CHA chose.

The trial court believed, and we agree, that nothing in the CHA’s written policies and procedures mandates the progressive discipline approach in every case. The record contains two statements or circulars related to employee discipline or termination, and the procedures for termination hearings. One of these is undated. It sets out the steps for supervisors to follow when disciplining employees for minor violations of policy and also sets out the steps to be followed in cases of gross violations. The existence of two, separate disciplinary procedures in the same policy statement necessarily gives an employee notice that he or she is not automatically entitled to progressive discipline, as a prerequisite to termination.

The other CHA policy statement, dated July 22, 1983, reinforces the discretionary authority of supervisors to evaluate employee conduct and (1) to attempt to correct problems through warnings and counseling; (2) to request other, unspecified “disciplinary action” in cases of minor violations, when the supervisor deems it necessary; and finally (3) to immediately suspend an employee for gross violations, pending an investigation by a different supervisor.

The CHA’s right to immediately suspend an employee without pay pending investigation in cases of gross violations of CHA policy is expressly set out in both of the policy circulars. The employer’s supervisor is authorized to make the preliminary determination that an employee’s conduct is so “serious *** or detrimental to the good order and efficiency of the CHA” that “in the supervisor’s judgment immediate disciplinary action must be taken to maintain a proper work environment or protect the interest of the CHA, its employees and/or residents.” In such situations, the supervisor must advise the employee of his suspension, give written notice that must be acknowledged by the employee, and initiate the review procedures. The department head is responsible for the “impartial and thorough investigation” of the events leading to suspension. The suspending supervisor is expressly precluded from heading the investigation. The employee is given the benefit of a hearing to refute the charges and, thereafter, the department head issues a report that includes the recommended result of the action.

In the pending case, Williams was given a hearing in which he could defend against the charges. He also appealed the hearing officer’s recommendation to executive director Zirl for further review. Our own review of the appellate record discloses no indication that Williams was denied procedural due process under the gross-violation policy, or that his termination was effected in bad faith or for illegal reasons. As we have also found, Williams has not set forth an entitlement to the progressive discipline approach as a matter of contract law. He has failed to establish that the CHA’s policy statements constitute a clear promise that he would not be terminated without the progressive disciplinary procedures. He therefore fails to satisfy the first element of the contract theory of Duldulao. See also Torres v. Amoco Corp. (1989), 186 Ill. App. 3d 135, 542 N.E.2d 154 (general policy statements did not meet the contractual requirements of an offer, because the statements were too indefinite to reasonably be interpreted as an offer by plaintiff; Moore v. Illinois Bell Telephone Co. (1987), 155 Ill. App. 3d 781, 508 N.E.2d 519, appeal denied (1987), 116 Ill. 2d 562 (no contract rights were created where employer’s incentive plan would not lead employee to reasonably believe employer was making an offer because of disclaimer language in policy statement).

Although not clearly developed, Williams injects a second notion into his breach of contract theory, one that invokes a broad due process argument relating to the type of administrative hearing provided and the sufficiency of proof required to establish that “just cause” existed for Williams’ termination. Williams asserts that “if an implied contract of employment is found, one consequence is that the employment cannot be terminated without a finding that the disciplinary procedures, if any, have been followed (Duldulao) and where a public employer is involved, as here, that the employee has been afforded a hearing meeting standards of procedural due process in which the employer (CHA) has the burden of proving ‘just cause’ exists, and that the termination decision was grounded upon facts supporting ‘just cause.’ ”

While it is true that the CHA policy directive states that “involuntary separations” must be for “just cause,” Williams’ assertion that his complaint states a cause of action for wrongful termination based on contract theory is incorrect. As we have held, his rights under the CHA policy directives did not include a contractual right to the progressive discipline procedure. Moreover, as a matter of basic pleading, Williams fails to set forth the factual basis upon which he concludes that the CHA’s reasons for firing him were trivial or false. We cannot merely assume that the reasons were insufficient.

In any event, the record contains the written disciplinary notice that the CHA provided Williams regarding his imminent termination. This notice stated as follows: “You have displayed conduct and performance which is directly in violation of CHA policies. As a Maintenance Superintendent you have been flagrant in allowing employees to be away from work unauthorized. You have made decisions not within your realm of responsibility. You have intimidated staff by threatening punitive personnel action against subordinates who might lodge a complaint against you. You have condoned poor performance by your immediate assistant by submitting a satisfactory evaluation for an employee who has consistently demonstrated unsatisfactory performance.”

Nowhere in Williams’ third amended complaint is a single statement that sets forth the basis upon which the above charges against him should be considered “false, unrelated to Plaintiff, or trivial.” The party seeking review of the merits of an administrative decision, based on sufficiency of the evidence presented, must give the court a reasonable basis upon which to review that decision. That was not done in this case. It is not the CHA’s burden to show he was terminated for just cause on the motion to dismiss; it was Williams’ burden to plead a valid theory upon which relief could be granted. He has failed to do so and we find no reason to reverse the dismissal of the pending action. Cf. Mitchell v. Jewel Food Stores (1990), 142 Ill. 2d 152, 568 N.E.2d 827 (holding that because plaintiff who was terminated for falsifying time sheets had an explanation for his conduct and the employee manual constituted an enforceable contract under Duldulao, summary judgment in favor of employer in breach of contract action would be reversed for trial of factual issues in dispute).

II

The other issue Williams raises in his brief relates to the standard of review employed by the trial court. He contends that the court erroneously treated the CHA’s motion as one for summary judgment because the court stated it would not “review the weight and sufficiency of the evidence” and that it would not review the CHA’s application of the “gross violation procedure, rather than the minor violation procedure.” Williams argues that since he pleaded that the charges of misconduct against him were “minor,” the CHA was required to follow the progressive disciplinary procedure. He also alleged that the evidence presented against him did not meet the contractual “just cause” standard.

Although Williams states that the trial court’s comments “evince a misunderstanding of a motion to dismiss under section 2 — 615” of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615), we find it is Williams who has misunderstood. Our review of the transcript in the record demonstrates the court’s awareness of the pertinent legal issues.

The trial court noted that count I of the complaint was a “Duldulao” count but found that Williams’ pleading did not come within the holding of that case. The trial court remarked that Duldulao “held in broad terms that an employment manual issued by an employer to employees may become part of the contract of employment. In general, that case held that under appropriate circumstances if an employee is terminated in violation of procedural steps outlined in the employment manual, the employee may have an action for breach of contract.” The trial court in the pending case rejected the argument that the CHA was compelled to grant Williams the benefit of the progressive discipline approach and, in that context, stated that the circuit court would not pass on the weight and sufficiency of the evidence relied upon by the hearing officer in upholding Williams’ dismissal. Distinguishing Duldulao as a case requiring an employer to follow its own written procedures that have become an implied term of the employment contract, the trial court stated that it did not sit as a reviewing court with respect to the CHA’s factual determinations that an employee’s violations were “gross” or “minor.”

In our opinion, the trial court properly declined to review the factual basis upon which Williams was discharged. As noted, there was little in the record to review on this point. More significant, perhaps, is the trial court’s 'refusal to judicially review the CHA’s internal administrative disciplinary policies. Absent well-pleaded allegations that such policies are arbitrary and capricious or deny an employee due process or some other constitutional right, the courts generally will not pass on the wisdom of such policies or the adequacy of grounds for termination. In the pending case Williams fails to set out a breach of contract action premised on wrongful termination. He does not allege a violation of his constitutional rights and does not state a claim for relief based on any statute or common law principles with respect to his termination. Accordingly, we hold that the trial court did not err in granting judgment in favor of the CHA on its motion to dismiss for failure to state a cause of action.

Affirmed.

JOHNSON and McMORROW, JJ., concur.