text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THE CITY OF EAST ST. LOUIS, Defendant (Sheryl Porter et al., Indiv. and on Behalf of All Others Similarly Situated, Plaintiffs-Intervenors; Carl E. Officer et al., Contemnors-Appellants).
    Fifth District
    No. 5—89—0251
    Opinion filed December 31, 1990.

      Charles L. Wiest, Jr., of Vickers, Moore & Wiest, of St. Louis, Missouri, for appellants.
    John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

This case originated with the People filing a complaint against defendant, City of East St. Louis (hereinafter City), for an injunction to halt the overflow of sewage from a sewer system owned by the City. During the course of proceedings, the City’s attorney, Eric E. Vickers (hereinafter Vickers), and the City’s chief executive officer, Mayor Carl E. Officer (hereinafter Officer), were held in direct civil contempt for failing to attend a hearing on March 31, 1989, concerning the City’s sewage problem. Vickers was also held in contempt for violating the circuit court’s order directing all attorneys involved in the proceedings to verify their motions by submitting them to the court in writing and under oath. Both Vickers and Officer appeal from the circuit court’s orders holding them in direct civil contempt.

On appeal, Vickers and Officer essentially contend (1) that they were erroneously found guilty of “direct civil contempt” where, at most, they could be found guilty of “indirect criminal contempt,” (2) that they were erroneously denied their due process rights, (3) that the sanctions imposed by the circuit court were punitive, not coercive, making the contempt actions criminal, not civil, (4) that since the contemners were not able to attend the March 31, 1989, hearing through no fault of their own, they could not be held in contempt, and (5) that the circuit court’s March 31, 1989, order requiring motions to be verified was not sufficiently clear so that any finding of contempt based upon a document filed by Vickers is not sustainable. We affirm in part and reverse in part.

The facts indicate that on February 17, 1989, the People, through the St. Clair County State’s Attorney, filed a complaint for an injunction against the City to halt the overflow of sewage from a sewer system owned by the City. The first hearing was held on February 22, 1989, at which time a temporary restraining order was issued against the City. On February 28, 1989, the Land of Lincoln Legal Assistance Foundation, through its attorneys, Sheila Shunick and Bradley Le Boeuf, filed a petition to intervene in the action against the City on behalf of Sheryl Porter and Sandra Isaac, individually and on behalf of all other residents of the Villa Griffin housing project, where a major portion of the sewage problem was located. The sewage problem at the Villa Griffin housing project consisted of a nearby lake in which raw sewage had been dumped. The circuit court granted the petition to intervene.

On March 3, 1989, a hearing was held on the People’s motion for a preliminary injunction. Upon completion of the hearing, a preliminary injunction was issued and the City was “enjoined and restrained from violating the Illinois Environmental Protection Act [(Ill. Rev. Stat. 1987, ch. 111½, par. 1012)] by causing or allowing the overflow of sewage from the sewer system owned by the City and/or from depositing contaminants in the form of raw sewage from the sewage system owned by” the City. In addition, the circuit court ordered the elimination of the lake located near the Villa Griffin homes within three days. The City was to begin bypass pumping within 48 hours. The circuit court also ordered a review of the matter every 14 days to ensure compliance.

No one appeared on behalf of the City at either the hearing for the temporary restraining order or the preliminary injunction. The absence of both representatives of, and counsel for, the City prompted the circuit court to include as part of its March 3, 1989, order, a provision requiring that Officer be present at every hearing and review set in the matter. The circuit court also noted in its March 3, 1989, order that Officer’s failure to appear could result in his being held in contempt.

The next scheduled hearing was on March 17, 1989, when the circuit court heard the City’s motion to set aside portions of the March 3, 1989, order including that portion requiring Officer’s presence at all hearings and reviews. Vickers and Officer appeared late for this hearing; however, the motion was heard, and the circuit court denied the City’s request to set aside the order requiring Officer’s presence at all hearings and reviews. The court ordered Officer to appear at all subsequent hearings concerning the sewage problems. A biweekly review was then scheduled for March 31, 1989.

On the afternoon of March 30, 1989, Vickers telephoned the judge and stated that he was in trial and would have difficulty attending the hearing scheduled for the next day. Vickers requested a continuance and told the judge .that the other parties had no objection. Based upon these representations, the judge granted a continuance until April 7, 1989. After the judge’s conversation with Vickers, she contacted the other attorneys involved in the case and learned that Vickers’ representation, that the other parties had no objection to the continuance, was not entirely accurate. The judge then rescinded her order continuing the hearing. Later in the afternoon, Vickers called the judge and indicated that he had Mr. Le Boeuf and Mrs. Shunick on the telephone to discuss the matter. The judge told Vickers, “I’m not going to talk about it any more. I’m having court at 10:30 and everybody’s going to be here.”

At the hearing on March 31, 1989, the judge noted that Officer was not present. The court then discussed with the State’s Attorney and the intervenors’ attorneys Vickers’ attempt on the previous day to obtain a continuance. Mrs. Shunick stated that there was a misunderstanding between her office and Mr. Vickers’ office on the previous day, but that she did “not believe that there was any intentional misrepresentation on Mr. Vickers’ part.” Mrs. Shunick explained that she did not have any objection to the hearing being continued so long as the lake located next to the Villa Griffin homes was drained by the early part of the following week. According to Mrs. Shunick, Vickers believed that he had given her office a firm commitment that the lake would be drained by the early part of the following week, but her office did not believe he had given such a commitment to this request. Mrs. Shunick and her colleagues believed that Vickers was going to contact them again that day “to firm that up even more.” Mrs. Shunick agreed with the judge that she expected that her condition that the lake be drained would be met before she would have no objection to a continuance. The State’s Attorney stated that neither Vickers nor anyone from Vickers’ office contacted him concerning the continuance. He stated that he was in contact with the Land of Lincoln office and that he had told them that he did object to a continuance, but that since the most serious sewage problem involved their clients, he would go along with their decision to continue the matter if they were satisfied with the progress made by the City.

Loretta Moore, a partner in Vickers’ law practice, appeared for Vickers at the March 31, 1989, hearing. According to Moore, Vickers was in a felony trial in St. Louis City circuit court. Moore appeared in order to request a continuance on behalf of Vickers. She stated that she had no knowledge of any conversations concerning a continuance between Vickers and the other attorneys involved in the sewage litigation. When asked by the judge whether she was licensed to practice law in Illinois, Moore informed the court that she was not. Later in the hearing, the judge ruled that Moore would not be allowed to represent the City because she was not a member of the Illinois bar. The judge also concluded that Vickers had lied to her concerning the parties’ agreement concerning a continuance. Because of the problems that arose over the oral continuance request, the judge ordered that all further motions be in writing, verified, and under oath. The judge noted for the record that Officer had not yet appeared and issued a petition for rule to show cause why Officer should not be held in contempt for his failure to appear. The petition for rule to show cause against Officer was set for Friday, April 14, 1989, at 10:30 a.m. The hearing then proceeded and witnesses from the Villa Griffin homes and the director of public works for the City testified. At the close of the evidence, Shunick asked the court to address the intervenors’ petition for rule to show cause why the City should not be held in contempt for failing to eliminate the lake located near the Villa Griffin housing project and for failure to continue bypass pumping. The petition for rule to show cause against the City was set at the next scheduled review date, Friday, April 14, 1989. The circuit court also reinstated an earlier order that it had vacated requiring the City to post a $500,000 bond.

Both Officer and Vickers appeared at the April 14, 1989, hearing. The judge discussed her order of March 31, 1989, requiring all motions to be verified, in writing, and under oath. According to the judge, Vickers violated this order when he attempted to hand her an envelope on April 3, 1989. The judge stated that on that date, Vickers appeared at her chambers and attempted to hand her an envelope. She asked Vickers whether its contents involved a pending case. Although Vickers answered “No,” she thought he wavered in his response, and she refused to accept the envelope. She told him to file it in the appropriate court file. After Vickers filed the contents of the envelope, a clerk brought the file to the judge. She read only the first and last paragraphs to determine whether the letter requested some type of relief. The letter requested that the judge publicly apologize to Vickers for accusing him of lying. The judge stated that the letter did not comply with the civil practice rules for pleading, even though it contained a request of the court. The judge also determined that Vickers’ letter of April 3, 1989, was another attempt at ex parte communication with the court. She also expressed her concern over two telephone calls made to her chambers by persons identifying themselves as employees of Vickers’ law firm wanting to discuss with her docket calls and the merits of the orders she had entered. The judge told the callers she did not hold court over the phone and refused to discuss any court matters with them. After this disclosure for the record, the judge stated that she believed Vickers had violated the Code of Professional Responsibility and the supreme court rules prohibiting ex parte communication with a judge presiding over a pending matter and further stated that it was her duty as both a judge and an attorney to file complaints concerning Vickers’ actions with the attorney disciplinary bodies in both Illinois and Missouri. The judge explained that even though she had criminal contempt powers to punish Vickers, she believed the matter should be left to the disciplinary boards so that she could focus on future compliance with the injunction.

Vickers responded to the circuit court that he had filed the letter only at the court’s insistence and that he had not attempted an ex parte communication. Vickers explained that on April 3, 1989, he had hand-delivered copies of the letter to other attorneys involved in the litigation. Vickers then explained that his failure to appear on March 31, 1989, was due to his being in trial on another matter in Missouri. After Vickers’ response to the circuit court’s accusation, he was found in direct civil contempt for failing to attend the March 31, 1989, hearing and for failing to comply with the circuit court’s order of March 31, 1989, directing all attorneys to file verified motions, in writing and under oath. The circuit court ordered Vickers committed to the St. Clair County jail for six months or until he purged himself by posting a $3,500 bond.

The circuit court then took up the rule to show cause against Officer for his failure to appear at the March 31, 1989, hearing. Officer stated that on March 31, 1989, he had suffered from symptoms which his doctor later told him were consistent with either laryngitis and a head cold or the flu. “To the best of [his] knowledge,” he had remained in bed for three days; however, when asked by the circuit court where he was on April 1, 2, and 3, Officer could not remember. He stated that he would need his scheduling book to refresh his memory. After Officer’s comments in allocution, the court found him to be in direct civil contempt for failing to comply with its order that he appear at the March 31, 1989, hearing. The judge ordered Officer committed to the St. Clair County jail for six months or until he purged himself by posting a $3,500 bond. The remaining issues, the rule to show cause filed against the City, and the biweekly review, were then addressed.

Because the lake near the Villa Griffin homes had been almost completely drained, the petitioners withdrew their petition for rule to show cause. Leave to refile was granted to petitioners should the lake refill at a later date. Evidence was then presented on the status of the sewage problems. At the end of the evidence, the circuit court set aside its order for biweekly reviews. The next review was set for Friday, June 9, 1989, at 10:30 a.m. The circuit court ordered that all attorneys of record and Officer be present. The circuit court stated that if Vickers and Officer were still in jail on that date, the jailers could bring them to the courtroom.

The first contention raised by Vickers and Officer is that the circuit court improperly classified the conduct on which the orders were based. In order to adequately address this argument, it is necessary for several of Vickers’ and Officer’s contentions to be addressed simultaneously. Both Vickers and Officer contend that the trial court mischaracterized their contempt citations as direct and civil when they were actually indirect and criminal, which entitled them to the greater procedural due process rights afforded to those who are charged with criminal contempt. We disagree and find that in both instances the circuit court properly classified the contempt citations as direct and civil.

Briefly stated, criminal contempt consists of acts tending to lessen the dignity or impede the process of the court, and such proceedings are instituted to vindicate the court’s authority. Sanctions for criminal contempt are punitive in nature. (Falcon, Ltd. v. Corr’s Natural Beverages, Inc. (1988), 173 Ill. App. 3d 291, 297, 527 N.E.2d 504, 508.) On the other hand, civil contempt typically consists of failing to do something ordered by a court and the result is a loss of benefit or advantage to the opposing party with the dignity of the court being only incidentally involved. (Sullivan v. Sullivan (1973), 16 Ill. App. 3d 549, 551-52, 306 N.E.2d 604, 605.) Another distinction is that in cases of civil contempt, the order of the court must provide the defendant with the “keys to his cell” enabling him to purge himself of the contempt by complying with the court’s order. (Continental Illinois National Bank v. Brack (1979), 71 Ill. App. 3d 789, 792-93, 390 N.E.2d 373, 375-76.) Contempt may be further classified as either direct or indirect depending upon whether the contemptuous conduct occurs within or outside the presence of the court. (Falcon, 173 Ill. App. 3d at 297, 527 N.E.2d at 508.) Civil and criminal contempt may “ ‘entail similar characteristics.’ ” (People ex rel. Scott v. Police Hall of Fame, Inc. (1979), 69 Ill. App. 3d 501, 504, 387 N.E.2d 856, 859, quoting County of Cook v. Lloyd A. Fry Roofing Co. (1974), 59 Ill. 2d 131, 135, 319 N.E.2d 472.) In attempting to differentiate between these types of contempt, “ ‘[t]he line of demarcation in many instances is indistinct and even imperceptible.’ ” (69 Ill. App. 3d at 504, 387 N.E.2d at 859, quoting People ex rel. Chicago Bar Association v. Barasch (1961), 21 Ill. 2d 407, 409, 173 N.E.2d 417, 418.) Applying these rules to the present case, we agree with the circuit court that Officer’s and Vickers’ failure to appear for the status hearing on the sewage matter are properly characterized as civil contempt. We address first the contempt orders based upon Vickers’ and Officer’s failure to appear at the March 31, 1989, hearing.

The circuit court’s contempt orders concerning the parties’ nonappearance were civil in nature, as both attempted to bring about compliance with the original injunction. As indications that these contempt citations were civil, we note the circuit court’s statements made at the March 3, 1989, hearing which indicated its concern about the welfare of the citizens of East St. Louis:

“This Court is also concerned that the City of East St. Louis and its agents and its elected officials have ignored these proceedings, have ignored the pleas of the citizens of the City of East St. Louis and have a callous disregard for their health, their safety, their benefit and have shown a callous disregard to this Court and to this Court’s Order, and according with that finding I’m going to order the Mayor of the City of East St. Louis, Carl Officer, to be present at every hearing concerning 89 — CH—76 and to every review which is set by this Court. His failure to appear may or shall result in a Petition for Rule to Show Cause being heard by this Court, and, as you all know, one of the things that can be had is Mr. Officer can be held in contempt, and this Court will use its contempt powers if the Court finds it necessary, and that will be the Order of the Court.”

The reinstatement of the $500,000 bond at the March 31, 1989, hearing is a further example that the circuit court was attempting to motivate the City to act. In reinstating the bond, the court stated:

“And the other thing I’m going to do, since I referred you to my Order of March 28, 1989 in which I granted portions of Mr. Vickers’ motion to set aside the requirement of a posting of bond, I’m going to set aside that Order of March 28 and reinstate the need of the City and the order of the City to post a bond in the amount of $500,000. This Court is seriously concerned that the City by its actions today, by Mr. Officer’s absence and Mr. Vickers’ absence once again is showing, dare I say, its callous disregard for this Court’s Orders, and if the Court’s Order can’t get them here, perhaps the loss of money can.” (Emphasis added.)

Finally, we note that the circuit court gave both Officer and Vickers the “keys to their cells,” a necessary element in cases of civil contempt. The court ordered both to the county jail for six months or until they purged themselves by each posting a $3,500 bond. In our estimation, the bond was not a fine, but rather, a way to secure future compliance with the circuit court’s injunction. The court’s final statements at the April 14, 1989, hearing verify that the bond was to ensure Officer’s and Vickers’ presence at future hearings.

“Those of you will be disbanded up until January 9, 1989. At that time — January—June 9 — sorry—June 9, 1989 at ten-thirty in this courthouse, probably this courtroom. I will set a review date for the Court to see if the injunction is being complied with, and I am ordering, as you all are present in front of me, all attorneys of record are ordered to appear in this cause, 89— CH — 76, on Friday, June 9, 1989, ten-thirty, this courthouse, Courtroom 9, to be present for this review that I’m hearing.
I’m also ordering, once again, Carl E. Officer, the Mayor of the City of East St. Louis, to appear on Friday, June 9, 1989 at ten-thirty in this courthouse in this courtroom for that particular review.
I’m further continuing my Order that any hearing which will be had on these — on this case, 89 — Ch—76, should any party file a motion asking the Court for additional relief or to enforce the Court’s previous Orders and if those are set for a hearing, Carl Officer, Mayor of East St. Louis, will be ordered to be at those hearings. So suffice it to say, your Honor, you are to be here at every hearing on this cause just as I ordered on March 3, 1989, and the Court will be in recess until that time and, gentlemen, if you’re still in jail, we’ll have the jailers bring you up here.”

There are several additional references in the record that lead us to conclude that the circuit court’s purpose in entering the contempt orders was to compel the City to clean up the sewage problem. The circuit court found the situation hazardous to the residents of the City and believed the only way to compel compliance with the injunction was to hold the City’s chief executive officer responsible for the sewage problem. To this end, the circuit court demanded Officer’s presence and the presence of all attorneys of record at the status hearings on the sewage matter. Based on our review of the proceedings, keeping in mind the essential elements and objectives of both types of contempt, we agree with the circuit court that both Officer’s and Vickers’ contempts were civil in nature. We move now to a discussion whether the contempts were direct or indirect.

Contumacious conduct constitutes direct contempt if it is committed in the physical presence of the judge or within an integral part of the court, while the court is performing its judicial functions. The judge must personally be aware of the contemptuous conduct so that no evidentiary hearing would be required to determine the facts establishing the conduct found to be of contemptuous character. (People v. Javaras (1972), 51 Ill. 2d 296, 281 N.E.2d 670.) Because the contumacious conduct is committed in the presence of the court, the contemnor may be adjudged and sanctioned in summary manner. (City of Chicago v. Chicago Fire Fighters Union, Local No. 2 (1981), 99 Ill. App. 3d 583, 590, 425 N.E.2d 1071, 1076.) With a direct contempt situation, there need not be any specific showing of intent to be contumacious. The requisite intent becomes self-evident from the contumacious conduct itself. Therefore, only a general intent need be discerned. The intent may be inferred from the surrounding circumstances and also from the character of the action of the contemnor. People v. Haas (1981), 100 Ill. App. 3d 1143, 1148, 427 N.E.2d 853, 857; People ex rel. Kunce v. Hogan (1977), 67 Ill. 2d 55, 60, 364 N.E.2d 50, 52.

On the other hand, contumacious conduct constitutes indirect contempt if it is committed out of the presence of the judge and is, therefore, dependent for its proof upon extrinsic evidence of some kind or upon establishment of facts of which the court has no personal knowledge. (Sunset Travel, Inc. v. Lovecchio (1983), 113 Ill. App. 3d 669, 675, 447 N.E.2d 891, 895-96.) Under these circumstances, the law requires that the alleged contemnor be granted all due process rights so that he is given a reasonable opportunity to defend against the charge. People v. Skar (1964), 30 Ill. 2d 491, 494-95, 198 N.E.2d 101, 103.

The record in the instant case discloses that on March 30, 1989, Vickers attempted to have the following day’s hearing continued. Initially, the judge granted Vickers’ oral request over the telephone, but because she later concluded that Vickers had lied to her concerning the other parties’ agreement to continue the hearing, she revoked the continuance and notified Vickers’ office of the revocation. In addition, when Vickers called the judge and attempted to set up a conference call at approximately 5 p.m. on March 30, 1989, the judge succinctly told Vickers that both he and Officer were expected in court the next day at 10:30 a.m. Therefore, it was not Vickers’ mere failure to appear in court which caused his being held in contempt, but his misrepresentation to the judge concerning the other parties’ agreement to continue the hearing and his failure to obey the trial court’s order on March 30, 1989, that he appear in court the following day. The judge’s determination that Vickers had refused to abide by her order that he appear in court at 10:30 a.m. was based upon her own personal knowledge of the events that had transpired. She had been a participant in the conversations on March 30, 1989, concerning the continuance and was personally aware that Vickers had not appeared in court at 10:30 a.m. on March 31, 1989, as ordered. The judge was not in need of extrinsic evidence to reach her conclusion that Vickers was in contempt. Vickers’ reason for not appearing at the hearing was not important, since the trial court let him know on the previous day that his appearance was expected, and no continuance would be granted no matter what his basis for requesting such a continuance. Thus, no evidentiary hearing was required to determine the facts establishing the conduct as contumacious in character. (People v. Javaras (1972), 51 Ill. 2d 296, 281 N.E.2d 670.) We find that the trial court correctly characterized Vickers’ contempt as direct and civil. Therefore, the trial judge could punish the offenders summarily without, filing a petition, entering a rule to show cause, or granting a hearing. People v. Skar (1964), 30 Ill. 2d at 493, 198 N.E.2d at 102.

The circuit court also characterized Officer’s contumacious conduct as direct. However, after a review of the record, we find that the circuit court mischaracterized the contempt as direct rather than indirect. The circuit court’s determination that Officer was in contempt was dependent upon its considering the truth or falsity of the evidence presented. The circuit court had no way of knowing why Officer was not present in court on March 31, 1989. The court also had no way of knowing what, if anything, Vickers had conveyed to Officer concerning his conversation with the court on March 30, 1989. However, the fact that the circuit court mischaracterized the contempt as direct rather than indirect does not mean that the finding of contempt must be vacated and the sanction revoked. Officer was granted all due process rights necessary to uphold the finding of contempt and the imposed sanctions. Officer was served with notice of the rule to show cause and was given the opportunity to respond to the petition. His attorney, Vickers, was present and available for representation. Officer was served with the petition on April 5, 1989, giving him sufficient opportunity to prepare for the April 14, 1989, hearing.

Officer and Vickers also contend that they could not be found guilty of contempt because their inability to attend the March 31, 1989, hearing was not their own fault. An alleged contemnor cannot be held in contempt when he is unable to comply through no fault of his own. (iCounty of Cook v. Lloyd A. Fry Roofing Co. (1974), 59 Ill. 2d 131, 137, 319 N.E.2d 472, 476.) While this is the general proposition of law cited by the County of Cook court, the court went on to state a corollary to this rule which prevents assertion of the defense of inability where the contemnor has voluntarily created the incapacity. 59 Ill. 2d at 137, 319 N.E.2d at 476.

In Vickers’ case, he called the judge on the day before the scheduled hearing to request a continuance due to his expected appearance in a St. Louis court on the following day. The judge initially granted his request, but later revoked it after learning that Vickers had misrepresented the other parties’ agreement to continue the case. We are of the opinion that the record in the instant case sufficiently establishes that the defense of inability to comply with the conditions of the agreed order is not available to Vickers because it was his misrepresentations to the circuit court which prompted her to deny his continuance request. Vickers’ response was to send his law partner, Loretta Moore, to the hearing on the following day in order to request a continuance, even though Loretta Moore is not licensed to practice law in Illinois and apparently was not able to participate substantively in the hearing, or participate at all without leave of court for foreign counsel. The record further reflects she did not seek leave of court to participate in the hearing. This response to the circuit court order that Vickers appear in court was not sufficient. The finding of contempt was a matter to be determined by the circuit court, and it cannot be disturbed on this review unless the court was guilty of a clear abuse of discretion. (Frank B. Hall & Co. v. Payseur (1981), 99 Ill. App. 3d 857, 425 N.E.2d 1002.) Based upon the record before us, we find that the circuit court did not abuse its discretion by finding Vickers in contempt for failing to attend the March 31, 1989, hearing.

As for Officer, it is apparent from the record that the circuit court did not believe his testimony concerning his inability to comply with the circuit court's order. Where an evaluation of credibility or the weight of the evidence was made by the circuit court, a court of review cannot substitute its judgment for that of the trier of fact unless the evidence is so unreasonable, improbable, or unsatisfactory as clearly to require a different conclusion. (Sunset Travel, Inc. v. Lovecchio (1983), 113 Ill. App. 3d 669, 678, 447 N.E.2d 891, 897-98.) Officer explained that on March 31, 1989, he was ill and was told by his doctor to remain in bed for three days. However, when questioned by the circuit court on April 14, 1989, of his whereabouts the three days following the March 31, 1989, hearing, Officer stated he could not remember without the benefit of his scheduling book. When the judge indicated she did not believe Officer, he said that he could bring witnesses in to verify his testimony. However, Officer did not have those witnesses at hand. On April 5, 1989, Officer was served notice that a petition for rule to show cause had been filed and was to be heard on April 14, 1989. He was given a full opportunity to explain his noncompliance on that date. After consideration of Officer’s testimony, we cannot say that the circuit court erred in finding Officer in contempt, and we cannot say that he was denied due process of law.

We have previously addressed Officer’s and Vickers’ contention that the sanctions imposed by the circuit court were punitive, not coercive, thereby making the contempt actions criminal, not civil, and have found such contentions to be without merit. The remaining argument is raised by Vickers alone. Vickers contends that the circuit court’s March 31, 1989, order requiring all subsequent motions to be verified was not sufficiently clear to prohibit the filing of an unverified letter so that any finding of contempt based on his letter to the judge is not sustainable. We agree.

• 14 The law requires that when a finding of contempt is based on the violation of an order of the court, it is necessary that the order’s terms are set out with certainty, clarity, and conciseness. (In re M.C. (1980), 89 Ill. App. 3d 1130, 1131, 412 N.E.2d 709, 710.) In the instant case, the circuit court entered a verbal order at the Friday, March 31, 1989, hearing, which Vickers failed to attend, that stated: “By order of this Court any motion and all motions shall be verified, written and under oath.” On Monday, April 3, 1989, Vickers arrived at the judge’s chambers and attempted to hand-deliver a document in which he gave his version of the events surrounding his attempt to secure a continuance for the March 31, 1989, hearing. In this document, Vickers asked the judge to confirm his version of the events by investigating the facts and to ultimately issue a public apology for calling Vickers a liar. Vickers ended the document by stating that if he did not receive such an apology he would “be forced to take legal action.” When Vickers attempted to hand-deliver the document to the judge, she asked him whether the contents involved a pending case. Although Vickers stated that it did not, the judge thought Vickers wavered in his response and refused to accept the envelope. She then directed Vickers to file the document in the proper court file. The judge read only the first and last paragraphs of the document and found that Vickers had made a request of the court — to publicly apologize to Vickers. The judge believed that the filing of this document violated her previous order requiring all motions to be verified and found Vickers in direct civil contempt.

After reviewing the record, we believe that the circuit court’s order that all motions be verified did not reasonably apprise Vickers that his filing this document would be considered contumacious conduct. In our opinion, this document was a personal letter written by Vickers. A motion, on the other hand, is an application for a rule or order. (People v. Thomas (1976), 34 Ill. App. 3d 1002, 1006, 341 N.E.2d 178, 182.) Vickers’ letter did not ask the judge to issue a rule or order that would affect the pending litigation, but made a personal request of the judge. We find, therefore, that the filing of this letter did not constitute a violation of the circuit court’s order requiring all motions to be verified, and any finding of contempt based on this order must necessarily be reversed. Since there was no additional sanction imposed for this violation, there is no sanction to vacate. Our finding does not require us to set aside the sanction requiring Vickers to post a $3,500 bond or to spend six months in the county jail, as this sanction is clearly related to the order compelling attendance at court, discussed above, that we have affirmed.

We note parenthetically that prior to this cause being set on the court’s docket, appellants waived oral argument. Within 24 hours prior to this court’s consideration of the appeal on a nonoral docket, appellants requested leave to present oral argument, which request appellees opposed on the basis of inadequate time for preparation. Given the late nature of the request and the reason for opposition, this court denied appellants’ request for oral argument on that setting of the case.

For the foregoing reasons, the order of the circuit court of St. Clair County is affirmed in part and reversed in part.

Affirmed in part; reversed in part.

RARICK, P.J., and HOWERTON, J., concur.


source: Caselaw Access Project

author: JUSTICE RIZZI

license: Public Domain

text:
    FLIP SIDE, INC., et al., Plaintiffs-Appellants, v. CHICAGO TRIBUNE COMPANY et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—88—1938
    Opinion filed October 31, 1990.
    Rehearing denied January 8, 1991.

      D. Alan Harris, of Chicago, for appellants.
    Samuel Fifer, Dale M. Cohen, Karen H. Flax, and Joseph P. Thornton, all of Chicago, for appellees.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiffs Flip Side, Inc., Carl Rosenbaum and Lawrence Rosenbaum filed a three-count complaint against defendants Chicago Tribune Company, Tribune Media Services, Inc., Richard Locher and Max Collins. Count I alleges an action entitled libel, and according to plaintiffs it is sufficient to state an action for libel per se and per quod. Count II alleges an action entitled invasion of privacy. Count III alleges an action entitled intentional infliction of severe emotional distress. Defendants filed a motion to dismiss the complaint on the basis that it fails to state a claim upon which relief can be granted. The complaint and the motion to dismiss are both supported by exhibits depicting the subject matter of the lawsuit. The motion to dismiss was granted. We affirm.

Plaintiff Flip Side, Inc., is an Illinois corporation with its principal place of business in Arlington Heights, Illinois. It is engaged in the record business, and it has been engaged in the concert promotion business. Plaintiffs Carl and Lawrence Rosenbaum are brothers who are employed as representatives of Flip Side, Inc. The complaint does not allege any other descriptive facts about the plaintiffs or their operations.

The subject matter of the lawsuit is the Dick Tracy comic strip which appears daily in the Chicago Tribune. Defendant Chicago Tribune Company publishes the Chicago Tribune. Defendant Tribune Media Services, Inc., owns the copyright to Dick Tracy. Defendant Richard Locher is the artist and defendant Max Collins is the writer for Dick Tracy. The plaintiffs contend “that the strips make false and defamatory statements about both the corporate and individual plaintiffs, that they wrongfully invaded individual plaintiffs’ right to privacy, and that they subjected the individual plaintiffs to an intentional infliction of severe emotional distress.”

Based upon the exhibits filed by the parties and upon facts which we take judicial notice, we recognize that Dick Tracy is a nationally known, continuing episodic comic strip that has existed since 1931. Over the years, in addition to the square-jawed crime fighter, it has included such inherently fictional characters as Puttyface, a criminal scoundrel who can make his face change its shape; Pruneface, a villain with prune-like facial features; Moon Maiden, an iniquitous woman whose head sprouts antennae; Hammerhead, a terrorist whose head resembles that of his namesake the hammerhead shark; Sam Catehem, a detective; and B.O. Plenty and Gravel Gertie, whose first child, Sparkle Plenty, spawned the sale of popular Sparkle Plenty dolls. Some of the other inherently fictional characters that are readily recognizable include the Mole, 88 Keys, Mumbles, Itchy, Dr. Freezdrei, and Flattop. Most of these enchanting but plainly fictional characters are so recognizable that a collection of them surely would be classified as Americana at its lighthearted best.

On May 11, 1987, a new escapade, which we shall refer to as the Flipside episode, started in Dick Tracy. In the Flipside episode Jake Staxx is the owner of a record company named Stax 0 Wax. He intends to testify against organized crime figures that are part of a special investigation centering on payola, i.e., drugs, cars and jewelry given to disc jockeys to play certain records. When detective Dick Tracy (Tracy) learns of the payola investigation, he tells his assistant, detective Sam Catehem, that gangsters have put a new spin on that particular golden oldie. On May 13, 1987, Tracy states: “Flipside, Inc., a so-called independent promotion outfit, is using bribery to get radio air play for certain records. But the special prosecutor has a key witness who can help us shut down this payola train.”

Two of the other characters that are involved in the payola caper are A.M. and F.M. Stereo. They are identical twin brothers who maintain a sartorial uniqueness by always wearing the same collarless dark jackets and large bow ties. Also, the Stereo brothers always conclude each other’s thoughts and sentences when they speak.

Jake Staxx is murdered by A.M. and F.M. Stereo shortly before he is scheduled to testify in the payola investigation. The killing is done with the use of an arcane black box about the size of a common book. The black box is plugged into an aux/video. When A.M. and F.M. Stereo turn the black box on, it emits sound waves which have such a high frequency that they cannot be heard. The piercing sound waves, however, obliterate Jake Staxx’s inner ear, causing him to have spasmodic convulsions which result in a heart attack and death. A.M. and F.M. Stereo are wearing earplugs and therefore not affected by the sound waves. A death that results from the sound waves appears to be caused by a heart attack rather than foul play.

When Tracy investigates the death of Jake Staxx, he suspects foul play when he notices that the aux/video in Jake Staxx’s office is turned on even though there is no T.V. in the room, and there is no tape in the tape deck or record on the turntable. Tracy quizzically states: “Convenient for Jake Staxx to die suddenly, of ‘natural causes’ — when the city’s most powerful organized crime figures want him dead.” On May 25, 1987, however, the coroner’s office officially declares that Jake Staxx died of a heart attack. When Tracy is asked, “What now?” he states: “We concentrate on Flipside, Inc., the independent promotion outfit that benefitted the most from the murder.” As Tracy continues his investigation, as usual, he utilizes his two-way wrist radio-TV computer.

A.M. and F.M. Stereo next attempt to bribe a top-rated radio disc jockey named Themesong. At one time, Themesong was a young female street singer fronting for her pickpocket pop until Tracy straightened her out, and she went to college and majored in broadcast journalism. Later, Themesong became a radio disc jockey. On her top-rated radio show, she has an irreverent sidekick named Garry Doll. Themesong and Garry Doll work out of a private studio for a radio station called WHUB The Hub.

A.M. and F.M. Stereo tell Themesong and Garry Doll that they represent Flipside, Inc., an independent record promotion outfit. A.M. and F.M. Stereo attempt to bribe Themesong and Garry Doll by offering them a new car, jewelry and drugs if they will play certain records on their show. Garry Doll calls A.M. and F.M. “garbage,” and he and Themesong refuse the offer. After Themesong and Garry Doll refuse the offer, Themesong decides to meet with Tracy. Tracy tells Themesong that he is investigating Flipside, Inc., and that the names turning up at Flipside, Inc., are apparatus alumni.

Tracy also tells Themesong that he believes Flipside, Inc., is an apparatus operation. Tracy then tells Themesong that the thrust of his investigation of Flipside, Inc., is not payola. He says that he is exploring the sale of counterfeit records and cutouts. Cutouts are records deleted from a label’s catalogue and sold cheaply to chain outlets for their sale bins.

On June 10, 1987, Tracy tells Themesong that last month Flip-side, Inc., sold $250,000 in cutouts to Stax O Wax, but the president of the company, Jake Staxx, withheld payment. Tracy says that Jake Staxx claimed that the cutouts that were delivered were junk; not older records by major artists as promised, but unsuccessful records by unknowns. Tracy states that in his opinion, Jake Staxx was murdered. He then confirms Themesong’s belief that she is up against mob guys, murderers.

Tracy then suggests to Themesong that if the Stereo brothers approach her again, she should pretend to accept their payola offer but she should be wearing one of his two-way wrist radio-TV computers, and he will be listening. Themesong refuses to wear a two-way wrist radio-TV computer, and states that she would prefer to keep her distance from the whole scene and not be involved.

At this point, on June 14, 1987, a character whose name is Flip-side is introduced. He is the eponym for Flipside, Inc. Later, on July 27, 1987, we learn that his real name is Victor Promomo. According to him, the name Flipside is a pseudonym and not an alias.

Flipside is a rotund villain with a flat, swirled curl of hair predominating the top of his head and forehead. He has a penchant for speaking in rhymes, for example: “Everybody wants money, honey; Just kill one, son; Split the scene, Gene; Lets give your tape a spin, Lynn; and I’ll just flip the switch, Mitch.” Also, he invariably is seen listening to a juke box playing ’50s music such as “Turn Me Loose,” and “I Found My Thrill;” he hates modern pop music.

Flipside meets with A.M. and F.M. Stereo, and they tell him that Themesong and Garry Doll have refused payola. When A.M. and F.M. Stereo ask Flipside what they should do, Flipside states: “Just kill one, son.” The Stereo brothers then go to the WHUB The Hub studio where Garry Doll is alone and working late. The Stereo brothers plug the black box into an aux/video and turn the black box on, while they are wearing earplugs. Garry Doll has convulsions and dies of a heart attack caused by the silent but piercing sound waves from the black box.

When Tracy investigates Garry Doll’s death, he notices that the aux/video is turned on, and other similarities between Garry Doll’s death and Jake Staxx’s death. Tracy suspects that the aux/video had something to do with the deaths.

Tracy then meets with Dr. Polly Phonic who is in charge of the Acoustical Research and Development Laboratory. Dr. Polly Phonic explains to Tracy that scientists have been working on an aural laser. She tells Tracy that the aural laser has been used to perform incision-less and painless surgery. Dr. Polly Phonic, however, also tells Tracy that the aural laser can be used to kill. She tells Tracy that the aural laser can produce a silent sound that is known as black sound, which can be fatal. Black sound is described as sound exceeding 175 dB’s, which will obliterate the inner ear, causing convulsions and death by heart attack.

Meanwhile, Themesong identifies the Stereo brothers from mug shots that she is shown by Sam Catchem. Sam Catchem then contacts Tracy on his two-way wrist radio-TV computer. Sam Catchem and Tracy then go to the Flipside, Inc., office to bust the Stereo brothers. At the Flipside, Inc., office, A.M. and F.M. Stereo put on their earplugs, plug the black box into an aux/video, and turn the black box on, towards Tracy and Sam Catchem. The Stereo brothers then flee.

While Tracy and Sam Catchem are going into convulsions, Tracy sees the black box that is emitting the sound waves, and he shoots it, thus stopping the sound waves. Tracy and Sam Catchem therefore are saved, and they now realize how Jake Staxx and Garry Doll were murdered. Tracy then puts out an APB on A.M. and F.M. Stereo.

Flipside next meets with A.R. Mann, the top record producer for Flipside, Inc. Later, they meet with and attempt to get Sparkle Plenty involved in a scheme. Sparkle Plenty was a child singing star whose singing career waned and ended when she got older. She is now married to Richard Tracy, Jr., Tracy’s son.

Flipside and A.R. Mann encourage Sparkle Plenty to attempt a comeback by making records for Flipside’s record company named Edis Pilf. Although it is not known by Sparkle Plenty, Flipside and A.R. Mann want to revive Sparkle Plenty’s washed-up career so that they can sell her records by offering payola to disc jockeys. Sparkle Plenty, Flipside and A.R. Mann go to the Edis Pilf recording studio where Sparkle Plenty is to record her old song hits as revivals, including “Two Sons From Tucson” and “Peg O’ My Heart.”

While they are at the Edis Pilf recording studio, Sparkle Plenty overhears a conversation between Flipside and A.M. and F.M. Stereo. In the conversation, Flipside and A.M. and F.M. Stereo plot to murder Themesong because Themesong can identify A.M. and F.M. Stereo as the murderers of Garry Doll. After she overhears the ominous conversation, Sparkle Plenty surreptitiously makes a phone call to Tracy and tells him what she heard. Tracy sends Sam Catchem to the WHUB The Hub radio studio where Themesong is working on her radio show.

A.M. and F.M. Stereo leave the Edis Pilf recording studio and attempt to carry out the plot to kill Themesong. They enter Theme-song’s vacant automobile, which is parked at the WHUB The Hub radio studio parking lot, while Themesong is completing her radio show. A.M. and F.M. Stereo hook up a remote unit to the powerful stereo system in the automobile, and they plug in a black box. They remark that the black box is a twin of the black box that was shot and destroyed by Tracy. After plugging in the black box, the Stereo brothers hide on the floor behind the front seat of the automobile. When Themesong enters the automobile, the Stereo brothers grab her and then attempt to kill her by using the black box. They put earplugs in their ears and turn the black box on to start its deadly black sound.

A problem arises, however, when Themesong’s automobile is noticed by Sam Catchem as he is driving to the WHUB The Hub radio studio to locate Themesong in accordance with Tracy’s instructions. When Sam Catchem sees that there is someone in Themesong’s parked automobile, he runs toward the automobile with his gun drawn. When A.M. and F.M. Stereo see Sam Catchem, they flee Themesong’s automobile, still wearing their earplugs.

Sam Catchem then chases A.M. and F.M. Stereo across a dark street. Suddenly a large truck comes down the street at full speed. The driver is blowing his horn and the truck’s brakes are screeching. A.M. and F.M. Stereo are running across the street but they cannot hear the horn honking because they are still wearing their earplugs. As a result, they are hit by the truck and killed. Sam Catchem remarks that they are “flattened flatter than a 45 record.”

Meanwhile, Tracy appears at the Edis Pilf recording studio where Sparkle Plenty is finishing her recording of “Two Sons From Tucson.” Tracy confronts Flipside in the studio. Flipside grabs Sparkle Plenty and holds her as a hostage. He then knocks Tracy down to the floor by hitting him over the head with a gun. Flipside then ties Tracy and Sparkle Plenty to separate chairs in the recording studio.

Flipside then attempts to kill Tracy and Sparkle Plenty by plugging a black box into an aux/video and turning the black box on to start its deadly black sound. He also turns the sound system on in the recording studio and plays Sparkle Plenty’s recording of “Two Sons From Tucson.” Flipside then leaves the recording studio while the deadly sound waves are emitting from the black box, and the sound system in the recording studio is loudly playing “Two Sons From Tucson.” As he is leaving, Flipside tells Tracy: “In a few minutes I’ll check back, Mack — and see how you dug it.”

Although Tracy and Sparkle Plenty start having convulsions, the high frequency sound waves that are coming from the black box shatter the glass window of a booth in the recording studio. When the glass window is shattered, Tracy uses a piece of broken glass to cut the rope that is binding him, and he frees himself. He then frees Sparkle Plenty.

As Tracy and Sparkle Plenty are leaving the recording studio, they are confronted by Flipside, who is returning to the recording studio. Flipside draws a gun. Sam Catchem suddenly arrives from behind Flipside and holds Flipside at gun point. Flipside, however, knocks Sam Catchem down and flees. Tracy chases Flipside into a record pressing plant and warehouse that adjoins the Edis Pilf recording studio.

Tracy throws a record, as if it were a Frisbee, toward the fleeing Flipside. The record hits Flipside behind the knees as he is running, causing him to stumble forward, and his head falls horizontally between the presses of a record pressing machine. As Flipside’s head falls horizontally between the presses, he inadvertently knocks the start button on the machine. The machine starts, and Flipside’s head is smashed flat like a record. Sam Catchem comes running into the area and sees what has happened. He states: “Ye Gods — do we send for a body bag, or a record sleeve?” Tracy declares that Flipside is rendered “permanently off the charts.”

The complaint contains as an exhibit reproductions of the Flipside episode from May 13, 1987, through June 25, 1987. In support of their motion to dismiss, defendants filed as an exhibit reproductions of the Flipside episode from May 13, 1987, through October 12, 1987, which constitutes the entire Flipside episode. In addition, the plaintiffs filed two affidavits which were stricken by the trial court. Plaintiffs do not present any argument on appeal that it was error to strike the affidavits. As a result, the issue as to the affidavits has been waived and no consideration will be given to the affidavits. Stack v. Sears, Roebuck & Co. (1981), 102 Ill. App. 3d 397, 404, 429 N.E.2d 1242, 1247-48; People ex rel. Daley v. Warren Motors, Inc. (1985), 136 Ill. App. 3d 505, 516, 483 N.E.2d 427, 434; 107 Ill. 2d R. 341(e)(7).

We first address plaintiffs’ contention that to determine whether the complaint states a cause of action we should only consider the Flipside episode from May 13, 1987, up to but not including June 14, 1987. The reason for plaintiffs’ contention is that the Flipside character was not introduced in the episode until June 14, 1987. Prior to June 14, 1987, the episode focused on A.M. and F.M. Stereo and Flip-side, Inc. In their reply brief, the plaintiffs state: “The defendants’ references were not at all comic until after June 14, 1987.”

Plaintiffs’ contention is without merit for several reasons. First, the complaint itself makes allegations that refer to incidents in the Flipside episode that occurred after June 14, 1987. Paragraph 21 of the complaint alleges that on June 15, “the brothers were shown discussing a possible murder.” Paragraph 22 of the complaint alleges that from June 21 through June 25, “plaintiffs were depicted as committing the murder of Garry Doll.” In addition, paragraph 5 of the complaint refers to matters that occurred “[o]n or between May 13, 1987 and the present date,” and paragraph 24 alleges that from “May of 1987 to the present, the publications depicted plaintiffs as Mafia members who committed murder, engaged in bribery, fraud and other crimes of moral turpitude.” The complaint was filed on October 14, 1987, which means that paragraphs 5 and 24 refer to whatever matters that occurred in the Flipside episode from May 1987 to at least October 14, 1987. Moreover, paragraph 33 of the complaint states: “True and correct copies of several of the pertinent strips are attached hereto as Exhibit A.” Exhibit A includes a reproduction of Dick Tracy from May 13 through June 25, 1987. An exhibit to a complaint constitutes a part of the complaint for all purposes. Ill. Rev. Stat. 1989, ch. 110, par. 2—606.

Thus, as can readily be seen from plaintiffs’ complaint and exhibit A, plaintiffs’ contention is without merit based upon allegations made in their own pleading. The plaintiffs cannot allege in their complaint as part of their cause of action should their case go to trial facts which occurred after June 14, 1987, and then argue on appeal that the court should not consider those same alleged facts to determine whether the complaint alleges a cause of action. We cannot allow the defendants or the court to be whipsawed by allowing the plaintiffs to take such alternative positions.

There is, however, another reason that plaintiffs’ contention fails. A statement cannot be meaningfully assessed for any reason without knowing the context of the statement. If a defamation action is alleged on the basis of what appears in an artistic square of an episodic comic strip, the entire episode and not just the isolated artistic square provides the context for determining the existence or nonexistence of an actionable libel. (See Grisanzio v. Rockford Newspapers, Inc. (1985), 132 Ill. App. 3d 914, 919-20, 477 N.E.2d 805, 809; Dworkin v. Hustler Magazine, Inc. (C.D. Cal. 1987), 668 E Supp. 1408, 1416.) This conclusion is surely consistent with the maxim that one cannot select isolated sentences or statements out of an article or book in an attempt to create a claim for libel. The whole article or book, just as the entire episode in an episodic comic strip, must be viewed in order to determine the context of any statement that is made.

Moreover, we must not lose sight of the fact that the issue in the trial court and here is one of law. The complaint must be examined in the first instance on the basis of whether as a matter of law the statements complained of within the Flipside episode are sufficient to state an action for defamation. (Chapski v. Copley Press (1982), 92 Ill. 2d 344, 352, 442 N.E.2d 195, 199.) In order to make that kind of an assessment, the court must view the statements in their full context, which means viewing the entire episode. Surely, if this case were to be tried, the entire Flipside episode would be relevant and admissible. It follows that the court should consider the entire Flipside episode to determine whether as a matter of law the complained-of statements are sufficient to state an action for defamation. We therefore conclude that plaintiffs’ contention that we should only consider the Flipside episode from May 13, 1987, up to but not including June 14, 1987, to determine whether the complaint states a cause of action for defamation is not tenable.

Aside from what we have already mentioned, the chronology of charges for all three counts is alleged as follows in the complaint:

“5. On or between May 13, 1987 and the present date, the Chicago Tribune newspaper published a number of daily pictorial and captioned newspaper comics as part of a new Dick Tracy cartoon series.
6. The new series referred to a well known record company that was the subject of a special prosecutor’s investigation.
7. A May 16, 1987, comic strip referred to ‘payola,’ stating that ‘gangsters have put a new spin on that particular golden oldie.’
8. The next comic strip, published on May 17, stated that ‘Flipside, Inc., a so called independent promotion outfit, is using bribery to get radio air play for certain records — but the special prosecutor has a key witness who can help us shut down this payola train.’
9. On or about May 19, the cartoon depicted the murder of the record company salesman who was to have been the ‘key witness’ for the special prosecutor.
10. On May 20, the comic strip ascribed the death to ‘the city’s most powerful organized crime figures,’ and implied that the death was caused by Flip Side, Inc. and its principals.
11. On May 29, the strip introduced a new character to the story, Garry Doll. Garry Doll was intended to represent Chicago disc jockey Steve Dahl. Steve Dahl’s broadcasting partner is Garry Meier.
12. In the next strip, dated May 30, Dick Tracy determined to continue to investigate the death of the record salesman and to ‘concentrate on Flipside, Inc., the independent promotion outfit that benefitted most from the murder.’
13. On May 31 and June 1, the strip introduced two brothers who represented Flipside, Inc., intimating that they were offering payola to Garry Doll.
14. On June 5, the strip depicted the brothers offering drugs as part of their bribery scheme.
15. On June 6, the brothers were referred to as ‘garbage.’
16. On June 7, Dick Tracy stated that ‘we’re investigating Flipside, Inc...the names turning up at Flipside, Inc. are apparatus* alumni.’ The strip defines ‘apparatus’ as the ‘crime syndicate.’
17. On June 8, the strip reiterated that ‘apparatus’ means ‘crime syndicate,’ and Dick Tracy stated that ‘we believe Flip-side, Inc. is an apparatus operation.’
18. On June 9-10, the plaintiffs were depicted as engaging in a fraudulent scheme involving the sale of records.
19. On June 12, the brothers were depicted as ‘mob guys’ and ‘murderers.’
20. On June 14, the brothers were shown in a cartoon with the statement ‘Tracy says Flipside, Inc. is run by mob guys.’
21. On June 15, the brothers were shown discussing a possible murder.
22. On June 21-25, plaintiffs were depicted as committing the murder of Garry Doll.
23. Several statements in the series implied that the story took place in Chicago.
24. From May of 1987 to the present, the publications depicted plaintiffs as Mafia members who committed murder, engaged in bribery, fraud and other crimes of moral turpitude.
25. The publications adversely reflected on the Rosenbaum brothers and their company’s ability and integrity in the record business.
26. The newspaper’s cartoon pictorials affected plaintiffs’ professional standing and trade by lowering their reputation and esteem in the eyes of Chicago Tribune readers, readers of other publications across the country that publish defendants’ Dick Tracy strip, and those who have heard about the allegations, including persons in the record industry.
27. The contents of the comic strip have been published to millions of comic strip readers on a daily basis.
28. The comic strip’s pictorial displays, statements and captions were untrue.
29. These publications were knowingly, recklessly, and maliciously published with full knowledge and belief that the substance of the publications were untrue.
30. Such publication constituted libel per se.
31. Consequently, plaintiffs seek compensatory and special damages for their pecuniary loss, injury to their reputation, and for their pain and mental suffering.”

A communication is considered defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. The communication, however, must be reasonably understood to be a false communication of fact about the plaintiff. In other words, the communication must be a false representation of fact of and concerning the plaintiff. (See Hustler Magazine v. Falwell (1988), 485 U.S. 46, 57, 99 L. Ed. 2d 41, 53, 108 S. Ct. 876, 882-83; Chapski v. Copley Press, Inc. (1982), 92 Ill. 2d 344, 352, 442 N.E.2d 195, 199.) Only statements that are capable of being proved false are subject to liability under the law of libel. See Milkovich v. Lorain Journal Co. (1990), 497 U.S. _, _, 111 L. Ed. 2d 1, 19, 110 S. Ct. 2695, 2708 (Brennan, J., dissenting).

Thus, a basic requirement of a defamation case based upon an episodic comic strip is that the story must be reasonably understood as describing actual facts about the plaintiff. The reasonably understood and the actual facts elements are required because first amendment freedoms need breathing space to survive, and as protection against encroachment upon rights protected by the first amendment. (See National Association for the Advancement of Colored People v. Button (1962), 371 U.S. 415, 433, 9 L. Ed. 2d 405, 418, 83 S. Ct. 328, 338; Pring v. Penthouse International, Ltd. (10th Cir. 1983), 695 F.2d 438, 440.) The crucible to be applied is whether the comic strip within the context presented could be reasonably understood by persons of ordinary intelligence as describing actual facts about the plaintiff or actual events in which the plaintiff participated.

Here, it is readily apparent that the Flipside episode is all fanciful adventure and does not purport to be factual. It is simply impossible to believe that a reader would not have understood that the episode is pure fiction and nothing else. In the Flipside episode, the weird characters, villainous bravado and hyperbole, rhetorical rhymes, crime syndicate, mob figures, mysterious deaths, murders, criminal schemes, and character names that relate to the physical or personality attributes of the characters are all classic Dick Tracy. No reader would reasonably conclude that these references to characters, businesses, places and events are factual.

This is especially true when we bear in mind that Dick Tracy appears in the Chicago Tribune only on pages where there appear nothing but comic strips, where levity exists and not reality. This is not to say that comic strips, regardless of where they appear in a newspaper, cannot or never convey serious, real and thought-provoking messages. Here, however, the fact that the Flipside episode only appeared as a comic strip on pages in the newspaper devoted solely to comic strips strongly fortifies the conclusion that the characters, businesses, places and events in the Flipside episode have no more reality than those in the Pruneface or Flattop episodes of Dick Tracy.

Under the circumstances, the only conclusion that can be reached is that the Flipside episode cannot be reasonably understood by persons of ordinary intelligence as describing actual facts about the plaintiffs or actual events in which the plaintiffs participated. It follows that there is no defamation as a matter of law.

To support its claim, plaintiff Flip Side, Inc., strenuously emphasizes the fact that there is a similarity of names and businesses between it and Flipside, Inc., in the comic strip. The breathing space that is required for first amendment freedoms, however, will not allow a defamation action to be maintained merely because there is a similarity of names and businesses between the plaintiff and the subject in the publication. A similarity of names and businesses will not cause an alleged defamation action to pass constitutional muster unless the subject in the publication is reasonably understood as describing actual facts about the plaintiff. Moreover, this principle applies even if the names and businesses are identical because no cause of action can ever be maintained at the expense of first amendment freedoms and protections. Here, since the Flipside episode is not reasonably understood as describing actual facts about plaintiff Flip Side, Inc., there is no merit to the argument of plaintiff Flip Side, Inc. Cf Hustler Magazine v. Falwell (1988), 485 U.S. 46, 57, 99 L. Ed. 2d 41, 53, 108 S. Ct. 876, 882-83; Pring v. Penthouse International, Ltd. (10th Cir. 1983), 695 F.2d 438, 443.

As to plaintiffs Carl and Lawrence Rosenbaum, there is no allegation that any character in the Flipside episode has a similar sounding name, and there is no descriptive factual allegation showing that either Carl or Lawrence Rosenbaum physically resembles any character in the episode. The brothers in the Flipside episode are twins. They are readily identifiable because they have a sartorial uniqueness in that they always wear dark collarless jackets and large bow ties, and they conclude each other’s thoughts and sentences when they speak. There is no allegation in the complaint ascribing any of these identifiable features to plaintiffs Carl or Lawrence Rosenbaum. It follows that for the reasons we have discussed with respect to plaintiff Flip Side, Inc., the Flipside episode is not reasonably understood as describing actual facts about plaintiffs Carl and Lawrence Rosenbaum.

Since the Flipside episode cannot reasonably be understood as describing actual facts about any of the plaintiffs, count I of the complaint does not allege an action for libel as a matter of law. (See Yorty v. Chandler (1971), 13 Cal. App. 3d 467, 475, 91 Cal. Rptr. 709, 714; Harris v. School Annual Publishing Co. (Ala. 1985), 466 So. 2d 963, 964.) The trial court therefore did not err in dismissing count I of the complaint.

Since counts II and III of the complaint are based upon the same publication alleged in count I, it would serve no useful purpose to treat counts II and III separately, as the same requirements that the publication must be reasonably understood as describing actual facts about the plaintiffs and the same first amendment considerations must be applied. See Hustler Magazine v. Falwell, 485 U.S. at 57, 99 L. Ed. 2d at 53, 108 S. Ct. at 882-83; Pring v. Penthouse International, Ltd. (10th Cir. 1983), 695 F.2d 438, 442.

We bear in mind that we must accept as true all well-pled facts alleged in the complaint and all reasonable inferences which can be drawn therefrom. Conclusions of law or conclusions of fact not supported by allegations of specific facts, however, are not considered. (Schaffer v. Zekman (1990), 196 Ill. App. 3d 727, 731, 554 N.E.2d 988, 991.) Also, we bear in mind that whether the publication in an alleged libel action is capable of defamatory meaning is a question, in the first instance, for the court. (Chapski v. Copley Press, 92 Ill. 2d at 352, 442 N.E.2d at 199.) If the publication is not capable of defamatory meaning in the first instance, the court is required to rule that the publication is not a defamation as a matter of law and the suit should be dismissed. This is not merely an aphorism or Illinois law, it is part of the first amendment guarantee of free speech which we all enjoy as Americans. See Greenbelt Co-op Publishing Association v. Bresler (1970), 398 U.S. 6, 26 L. Ed. 2d 6, 90 S. Ct. 1537; New York Times Co. v. Sullivan (1964), 376 U.S. 254, 292, 11 L. Ed. 2d 686, 714, 84 S. Ct. 710, 732.

Accordingly, we conclude that since the publication that is involved here cannot be reasonably understood as describing actual facts about the plaintiffs, it is not a defamation as a matter of law. We also conclude that for the reasons we have stated, all three counts in the complaint should be dismissed. The order of the trial court dismissing the suit is affirmed.

Affirmed.

CERDA, P.J., and WHITE, J., concur.

      In a separate comic strip square, it is noted that an aux/video is an auxiliary input “for a T.V. or a musical instrument like a keyboard or guitar.”

      Some of the terms and phraseology used in this opinion are adopted directly from the Flipside episode in order to convey the true nature of the characters and events portrayed in the comic strip.

      As noted with an asterisk in one of the comic strip squares, in Dick Tracy jargon apparatus means crime syndicate.

       As noted with an asterisk in one of the comic strip squares, dB’s means decibels.

      As noted with an asterisk in one of the comic strip squares, APB means All Points Bulletin.

      No mention of Garry Meier is made in plaintiffs’ brief or reply brief except for the notation that “Dahl’s real-life radio partner is Garry Meier.”

      In paragraph 11 of the complaint, the plaintiffs allege that the murdered Garry Doll was intended to represent Chicago disc jockey Steve Dahl (of radio station WLUP, known as the Loop). Although they do not allege it in their complaint, in their brief plaintiffs state that both the murdered Garry Doll and Steve Dahl “favor wearing Hawaiian print sport shirts.” Plaintiffs acknowledge, however, that Steve Dahl is living, and there is no intimation by the plaintiffs that he was ever involved as the subject of a murder scheme. Plaintiffs’ strained effort to show a relationship between Garry Doll and Steve Dahl is neither persuasive nor significant to demonstrate that the comic strip could be reasonably understood by persons of ordinary intelligence as describing actual facts about the plaintiffs.

      There are no factual allegations in the complaint to support the bare conclusion that several statements in the series implied that the story took place in Chicago. The plaintiffs state in their reply brief without specific reference that “these initial strips refer to the Chicago suburb of Homewood.” We find no reference whatsoever to the Chicago suburb of Homewood, Illinois in the Flipside episode.

      The word Mafia is not found anywhere in the Flipside episode.


author: PRESIDING JUSTICE McMORROW

text:
    ELIZABETH SHEA, Plaintiff-Appellant, v. PRESERVATION CHICAGO, INC., et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—89—1958
    Opinion filed November 15, 1990.
    Rehearing denied January 7, 1991.

      Matthew J. Morrissey, of Magiera & Morrissey, P.C., of Chicago, for appellant.

      Orner & Wasserman, Ltd., of Chicago (Norton Wasserman and Mary A. Mazurk, of counsel), for appellees Preservation Chicago, Inc., Lawrence Stein, and Richard M. Holtzman.
   PRESIDING JUSTICE McMORROW

delivered the opinion of the court:

Plaintiff Elizabeth Shea (plaintiff) appeals from the trial court’s dismissal with prejudice (Ill. Rev. Stat. 1989, ch. 110, par. 2—615) of her negligence, breach of contract, and consumer fraud claims against her landlord and its leasing agents (hereinafter collectively referred to as defendants). Plaintiff’s complaint alleged in pertinent part that she was injured when a third person unlawfully entered the apartment building and criminally assaulted her. Her pleading claimed that these injuries were proximately caused by defendants’ failure to repair and maintain an interior security door and a safety lock on this door.

We conclude that, under the circumstances of this case, plaintiff’s complaint alleged sufficient facts to demonstrate that defendants owed plaintiff a duty to protect her from reasonably foreseeable third-party criminal attacks. Accordingly, we reverse the dismissal of plaintiff’s negligence claim and remand this count for further proceedings consistent herewith. We also determine that plaintiff’s complaint did not allege sufficient facts to show that defendants breached an oral or written contract to protect plaintiff from third-party attacks, and that plaintiff’s pleading did not allege sufficient facts to indicate that defendants violated the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1987, ch. 1211/2, par. 261 et seq.). As a result, we affirm the trial court’s dismissal of plaintiff’s breach of contract and consumer fraud claims.

The following factual allegations in plaintiff’s complaint are accepted as true for the purpose of reviewing the trial court’s dismissal of the pleadings pursuant to section 2 — 615. (See Krasinski v. United, Parcel Service (1988), 124 Ill. 2d 483, 485-86, 530 N.E.2d 468.) On June 8, 1986, plaintiff and defendants executed a written document leasing an apartment to plaintiff in a building located on the north side of the City of Chicago. Under the lease agreement, plaintiff’s rental of the apartment ran from June 15, 1986, to September 30, 1987. When plaintiff signed the lease, defendants represented to plaintiff that an interior security door, and the safety lock on this door, were in a defective and inoperable condition, but that defendants would repair and maintain the security door and safety lock in safe condition for the term of the lease. Defendants attempted to repair the interior security door and safety lock on several occasions during the months of June and July, but were negligent in these attempts and did not return the door or the lock to good operating condition. Because of defendants’ negligence in failing to repair the interior security door and safety lock, an intruder gained access to the apartment building and assaulted the plaintiff on July 18, 1986, causing her severe and permanent injury.

Plaintiff filed suit against defendants alleging that their failure to properly repair and maintain the interior security door and safety lock proximately caused her injuries. As ultimately amended, plaintiff’s complaint contained claims for negligence (count I), breach of contract (count II), and consumer fraud (count III). The trial court dismissed plaintiff’s complaint for failure to state claims for which relief could be granted (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615), and plaintiff appeals.

In support of the trial court’s dismissal of plaintiff’s complaint, defendants contend that they had no duty to protect plaintiff against criminal attacks in the instant cause. Defendants also argue that dismissal of plaintiff’s negligence count was appropriate because plaintiff did not allege that prior criminal conduct occurred in the building which would have put defendants on notice that their failure to exercise due care would create a dangerous condition on the premises. Defendants urge that Rowe v. State Bank (1988), 125 Ill. 2d 203, 531 N.E.2d 1358, and Duncavage v. Allen (1986), 147 Ill. App. 3d 88, 497 N.E.2d 433, relied upon by plaintiff in support of her negligence claim, are factually distinguishable from the case at bar. Defendants also note that in Rowe and Duncavage there had been previous incidents of violent criminal activity and assert that these decisions reaffirm a “prior incidents” requirement.

Plaintiff argues that there can be landlord liability when either (1) prior criminal conduct has occurred in the building, or (2) the landlord’s actions materially increase the risk of criminal activity although there have been no prior, similar criminal attacks on the premises. To support this argument, plaintiff relies primarily upon Duncavage and Rowe. Plaintiff argues upon review that her negligence claim was factually sufficient and did not require an allegation that a prior, similar criminal attack had befallen another tenant in defendants’ apartment building.

At issue in plaintiff’s negligence count is whether the allegations in plaintiff’s complaint establish the existence of a duty of care. The existence of such a duty of care is a question of law. By dismissing plaintiff’s complaint, the trial court determined that plaintiff failed to allege any set of facts from which a legal duty upon defendants can be inferred.

In Rowe v. State Bank (1988), 125 Ill. 2d 203, 531 N.E.2d 1358, the Illinois Supreme Court held that a landlord has no general duty to provide protection to tenants against foreseeable third-party criminal attacks. (125 Ill. 2d at 216.) Rather, the proper question is whether a particular landlord, under the facts of each case, assumed a duty to do so. (125 Ill. 2d at 217.) Where the landlord has retained or exercised control over a portion of the premises, the landlord has assumed a duty to exercise such control in a reasonably safe manner. (125 Ill. 2d at 217-20; see also Larrikin v. Towner (1990), 138 Ill. 2d 510.) Whether this retention of control includes a duty to protect tenants against foreseeable third-party criminal attacks depends upon the normal and usual function of such control and the particular circumstances of the case. Rowe, 125 Ill. 2d at 217-20.

The supreme court determined that, under the facts of Rowe, the landlord’s provision of exterior lighting to common areas did not amount to the assumption of a duty to protect tenants from third-party attacks, since lighting is commonplace and provided by virtually all landlords to all tenants. (125 Ill. 2d at 218.) However, the landlord’s retention of access to individual units, and the manufacture and control of master keys to gain such access, constituted a voluntary assumption by the landlord to protect tenants from reasonably foreseeable third-party criminal attacks. This voluntary assumption of a duty by a landlord to protect tenants imposed upon the landlord the legal duty to take reasonable precautions to prevent unauthorized entries by third parties. (125 Ill. 2d at 221.) Because the landlord was aware that master keys were outstanding and unaccounted for, the landlord was obligated to take reasonable precautions to protect tenants from foreseeable unauthorized entries with such keys. The landlord was in the best position to guard against such unauthorized entry. (125 Ill. 2d at 222-23.) Because the record showed that the landlord took no reasonable precautions to prevent foreseeable unauthorized entries, the supreme court concluded that the landlord breached his duty of due care and was liable for the reasonably foreseeable criminal acts of third persons which were proximately caused by the landlord’s negligence. 125 Ill. 2d at 223.

We find it significant that the Illinois Supreme Court in Rowe cited with approval Duncavage v. Allen (1986), 147 Ill. App. 3d 88, 497 N.E.2d 433, Stribling v. Chicago Housing Authority (1975), 34 Ill. App. 3d 551, 340 N.E.2d 47, and Mims v. New York Life Insurance Co. (1971), 133 Ill. App. 2d 283, 273 N.E.2d 186, with respect to a landlord’s liability for third-party criminal acts based on the landlord’s failure to exercise due care for portions of the premises over which the landlord retained control. In Duncavage, the defendant landlord permitted weeds to become overgrown, exterior lighting and apartment windows to fall into disrepair, and stored a ladder near the plaintiff tenant’s apartment window. The ladder had been previously used by an intruder to gain access to and burglarize the apartment. The landlord was aware of the burglary, but made no effort to improve the condition of the premises. The plaintiff tenant was attacked and killed by an intruder who gained access to the same apartment by using the same ladder as had been employed in the previous burglary. In Stribling, the plaintiffs were tenants whose apartment was repeatedly burglarized when thieves broke through the adjacent wall of a vacant apartment. The defendant landlord knew of prior instances where the tenants had been burglarized in the same manner, but did not secure the vacant apartment. In Mims, the plaintiff tenant’s apartment was burglarized when the defendant landlord failed to close and lock a door to the tenant’s apartment during the landlord’s routine inspection of the tenant’s apartment.

In all of these cases, as in Rowe, the landlord retained control over or access to a portion of the premises. The landlords were aware, or should have been aware, of the risks of harm or danger created by their failure to exercise due care in their retained control over or access to the premises. Also, in each of the cases, the landlords were in the best position to guard against criminal activity arising from the landlords’ failure to exercise reasonable care in their control over or access to the premises in order to guard against reasonably foreseeable criminal acts. By retaining access to or control over the property under these circumstances, the landlords had assumed a duty to exercise reasonable care in order to protect tenants from reasonably foreseeable third-party criminal attacks. However, the landlords failed to take precautions to prevent reasonably foreseeable criminal activities. Consequently, the landlords were held liable to tenants injured by third parties who gained entrance to the premises as a result of the landlords’ failure to properly exercise their retained control over or access to the premises.

Bearing in mind this precedent, we turn to plaintiff’s argument that there are two separate grounds for landlord liability for third-party criminal attacks upon tenants. We recognize that some Illinois Appellate Court decisions have appeared to analyze a landlord’s potential liability according to the separate and independent theories of (1) a general duty to protect tenants from third-party criminal attacks in certain circumstances and (2) a voluntarily assumed duty to protect tenants from third-party criminal attacks. (See, e.g., Pe trauskas v. Wexenthaller Realty Management, Inc. (1989), 186 Ill. App. 3d 820, 542 N.E.2d 902; Duncavage v. Alien (1986), 147 Ill. App. 3d 88, 497 N.E.2d 433.) In light of the supreme court’s decision in Rowe, we do not believe that these two apparent separate and independent bases for potential landlord liability reflect Illinois precedent. As Rowe indicates, a landlord has no general duty to protect tenants from third-party criminal attacks. The proper inquiry is to determine whether, on a case-by-case basis, a particular landlord has retained control over or access to a portion of the property, and whether the circumstances demonstrate that the landlord, by retaining access to or control over the premises, assumed a duty to protect tenants against reasonably foreseeable third-party criminal attacks. Based upon this reasoning, we decline to adopt plaintiff’s suggestion of two separate and independent bases for potential landlord liability for third-party criminal attacks.

We also disagree with defendants’ argument that Illinois law requires, in all instances, that prior incidents of the same criminal activity must have occurred prior to the plaintiff tenant’s attack in order to find that the defendant landlord voluntarily assumed a duty to protect tenants from third-party criminal attacks. Although prior incidents are a factor in several cases in which the landlord has been held liable for a third-party criminal attack upon a tenant, we do not believe that prior incidents of the same criminal activity are a per se requirement in all cases. For example, in Mims, cited with approval by the supreme court in Rowe, there had not been any prior incidents of criminal activity in the building.

In our view, the proper inquiry is to consider all relevant circumstances in order to determine whether the landlord had assumed a duty, under the facts of each particular case, to protect a tenant from reasonably foreseeable third-party criminal attacks. A rigid application of a “prior incidents” rule “has the effect of discouraging landowners from taking adequate measures to protect premises which they know are dangerous. *** Moreover, under the rule, the first victim always loses, while subsequent victims are permitted recovery. *** gurgle a landowner should not get one free assault before he can be held liable for criminal acts which occur on his property.” Isaacs v. Huntington Memorial Hospital (1985), 38 Cal. 3d 112, 125-26, 211 Cal. Rptr. 356, 361, 695 P.2d 653, 658; see also Small v. McKennan Hospital (S.D. 1989), 437 N.W.2d 194, 201 (“violent criminal activity can be foreseeable simply upon common experience”).

Turning to the facts of the instant cause, we conclude that plaintiff’s negligence count was sufficient to state a claim for which relief may be granted. Generally, “[w]hether a duty exists depends on a consideration of the likelihood of injury, the magnitude of the burden to guard against it, and the consequences of placing that burden upon the defendant. [Citation.]” (Rowe v. State Bank (1988), 125 Ill. 2d 203, 228, 531 N.E.2d 1358.) Plaintiff alleged that the defendants’ negligent failure to repair and maintain the interior security door and safety lock permitted the unauthorized entry of an intruder onto the premises, and that this intruder assaulted plaintiff in the apartment building. The allegations of plaintiff’s complaint indicate that defendants knew that the interior security door and safety lock were broken, as they had attempted to repair the equipment on several occasions.

In our view, a reasonable person in defendants’ position would have been aware of the risks of unauthorized entry, and resulting criminal attacks by third persons, posed by an inoperable interior security door and safety lock. Similar to master and grandmaster keys, the normal and usual purpose of an interior security door and safety lock is to prevent entry by intruders. There is nothing in the record to suggest that interior security doors and safety locks are commonly provided by landlords in most apartment buildings. In addition, the record does not demonstrate that the cost of repairing the interior security door and safety lock was prohibitive, given the risks of injuries arising from its malfunction. As landlord, the defendants were in the best position to guard against these risks arising from the disrepair of the internal security door and safety lock. In light of all of these considerations, we hold that plaintiff’s allegations were sufficient to show that the defendants assumed a duty to protect plaintiff against reasonably foreseeable third-party criminal attacks proximately caused by the defendants’ failure to repair and maintain the interior security door and safety lock.

The cases upon which defendants rely do not conflict with our holding. In Martin v. Usher (1977), 55 Ill. App. 3d 409, 371 N.E.2d 69, and Beck v. Rossi Brothers (1984), 125 Ill. App. 3d 874, 466 N.E.2d 1124, the landlords were found not liable although the landlords had failed to ensure that entrance door locks in the common areas of the apartment building were functioning properly. Entrance door locks are commonplace and are routinely provided by landlords in most apartment buildings. As a result, these decisions are distinguishable from the case at bar. The equipment in the present case is an interior security door and safety lock, not an entrance door as was at issue in Martin and Beck. (See also B.C. v. J.C. Penney Co. (1990), 205 Ill. App. 3d 5 (gate to shopping mall parking lot under construction); N.W. v. Amalgamated Trust & Savings Bank (1990), 196 Ill. App. 3d 1066, 554 N.E.2d 629 (entrance doors); Petrauskas v. Wexenthaller Realty Management, Inc. (1989), 186 Ill. App. 3d 820, 542 N.E.2d 902 (fire escape doors and hallway lights).) The case of Carrigan v. New World Enterprises, Ltd. (1983), 112 Ill. App. 3d 970, 446 N.E.2d 265, upon which defendants rely, is also distinguishable. Carrigan pertained to the landlord’s provision of a burglar alarm, which, unlike an interior security door and safety lock, serves to alert tenants to unauthorized entry rather than to prevent such unauthorized entry. Nor does the case at bar involve a large expanse of land and buildings, such as a shopping mall or a university, where the cost of more extensive security measures may have been prohibitive to the landowner. See, e.g., Rabel v. Illinois Wesleyan University (1987), 161 Ill. App. 3d 348, 514 N.E.2d 552 (university campus); Taylor v. Hooker (1981), 101 Ill. App. 3d 639, 428 N.E.2d 662 (shopping mall parking lot); Figueroa v. Evangelical Covenant Church (7th Cir. 1989), 879 F.2d 1427 (university campus, including parking lot).

Defendants also argue that plaintiff’s complaint fails to allege that her injuries were proximately caused by the defendants’ failure to properly maintain the interior security door and safety lock. Specifically, defendants assert that plaintiff’s complaint is deficient because it does not explicitly allege that the intruder who attacked plaintiff gained access to the apartment building through the interior security door which defendants had allegedly failed to repair. The record shows that plaintiff alleges in her amended complaint that the defendants permitted the interior security door and the safety lock on the interior security door to remain in an inoperable and defective condition. Plaintiff further alleged that as a direct and proximate result of this negligence, an intruder gained entry to the premises and assaulted plaintiff. In our view, it is reasonable to infer from these allegations that the intruder who assaulted plaintiff gained access to the apartment building through the inoperable security door and safety lock. Consequently, we cannot say on this record that plaintiff’s negligence count is factually insufficient with respect to its allegations of proximate cause. The decision upon which defendants rely with respect to this argument is factually distinguishable from the case at bar. Carrigan v. New World Enterprises, 112 Ill. App. 3d 970, 446 N.E.2d 265 (whether burglar alarm would have caused assailant to flee was matter of speculation and conjecture).

For these reasons, we reverse the trial court’s dismissal of count I of plaintiff’s complaint and remand the matter for further proceedings consistent herewith.

Plaintiff also appeals from the trial court’s dismissal of her breach of contract claim (count II). In this count, plaintiff alleged that defendants’ failure to repair and maintain the interior security door and safety lock constituted (1) a breach of the written lease agreement between plaintiff and defendants to the effect that defendants would repair and maintain the premises in good and safe condition, and (2) a breach of the oral agreement between plaintiff and defendants to the effect that defendants would repair the interior security door and safety lock prior to the commencement of plaintiff’s tenancy.

The written lease agreement executed by plaintiff and defendants, attached to plaintiff’s complaint, provides in pertinent part that the defendants shall maintain “[b]uilding, grounds and areas under the control of the Lessor in clean, sanitary and safe condition free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin.” Based on this provision, plaintiff asserts that defendants had an obligation, under the lease, to repair and maintain the interior security door and safety lock in order to protect plaintiff from third-party criminal attacks. We disagree.

It is well established that terms of a contract are to be given their plain and ordinary meaning in order to determine the parties’ intentions. (See, e.g., IK Corp. v. One Financial Place Partnership (1990), 200 Ill. App. 3d 802, 810-15, 558 N.E.2d 161.) We do not believe that the term “safe condition” in the instant lease provision encompasses safety from third-party criminal attacks. In the context of the relevant provision, the term “safe condition” obligates the landlord to repair and maintain the premises so that a condition on the premises does not cause injury to tenants. As a result, the written lease between plaintiff and defendants did not obligate defendants to repair and maintain the interior security door and safety lock in order to protect plaintiff from third-party criminal attacks.

Plaintiff also asserts that defendants breached an oral agreement to repair and maintain the interior security door and safety lock. Specifically, plaintiff alleged that defendants represented to plaintiff, when the lease was executed by plaintiff, that defendants would return the interior security door and safety lock to good operating condition before her tenancy would begin. However, the written lease agreement specifically states that the “terms and conditions contained herein shall be conclusively deemed the agreement” between the parties and that “no modifications, waiver or amendment of this Lease or any of its terms, conditions, or covenants shall be binding upon the parties unless made in writing and signed by the parties sought to be bound.” The lease agreement also provides that the tenant “has inspected the apartment, the Building and all related areas and grounds and that Tenant is satisfied with the physical condition thereof.” The lease agreement further states that “[t]enant agrees that no representations, warranties (expressed or implied) or covenants with respect to the condition, maintenance, or improvements of the apartment building or other areas have been made to tenant except those contained in this lease, the application, or otherwise in writing signed by lessor.”

It is well recognized in Illinois that “if the contract imports on its face to be a complete expression of the whole agreement, it is presumed that the parties introduced into it every material item, and parol evidence cannot be admitted to add another term to the agreement. [Citation.]” (Pecora v. Szabo (1981), 94 Ill. App. 3d 57, 63, 418 N.E.2d 431; see also Koester v. Weber, Cohn & Riley, Inc. (1989), 193 Ill. App. 3d 1045, 1049, 550 N.E.2d 1004.) Because the lease agreement between plaintiff and defendants specifically provides that it is the complete agreement between the parties with respect to the condition of the premises and with respect to the defendants’ contractual duty to repair and maintain the premises, plaintiff cannot state a claim for breach of an oral agreement made contemporaneously with plaintiff’s execution of the written lease.

For these reasons, we affirm the trial court’s dismissal of count II of plaintiff’s amended complaint. In view of this disposition, we do not address the parties’ remaining arguments regarding count II.

Plaintiff also seeks review of the trial court’s dismissal of her consumer fraud claim (count III). In this count of her complaint, plaintiff alleged that defendants violated the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1987, ch. 1211/2, par. 261 et seq.) (hereinafter the Consumer Fraud Act) when they misrepresented to plaintiff that the interior security door and safety lock would be repaired to good operating condition before the plaintiff’s tenancy began on June 15, 1986. Plaintiff alleged that defendants made this misrepresentation to her when she executed the lease on June 8,1986.

The Consumer Fraud Act states that it is unlawful to engage in “deceptive acts ***, including but not limited to the use or employment of any deception, fraud, false pretense, false' promise, misrepresentation or the concealment, suppression or omission of any material fact.” (Ill. Rev. Stat. 1987, ch. 1211/2, par. 262.) Although a claim under the Consumer Fraud Act differs from a common law fraud action, a consumer fraud claim “must be pleaded with the same specificity that has always been a prerequisite to an action for common law fraud. [Citation.]” Spengler v. V&R Marathon, Inc. (1987), 162 Ill. App. 3d 715, 717-18, 516 N.E.2d 787.

Plaintiffs consumer fraud claim in the case at bar is not sufficiently specific to state a claim under the Consumer Fraud Act. Plaintiff does not allege that defendants knew on June 8, 1986, or that defendants should have known on this date, that it would not be possible or feasible to repair the interior security door and safety lock by June 15. Absent such an allegation, we cannot find plaintiff’s consumer fraud count sufficient to state a claim for which relief may be granted. As a result, we affirm the trial court’s dismissal of count III of plaintiff’s complaint. In light of this disposition, we do not address the parties’ remaining arguments regarding count III.

For the reasons stated, we affirm the trial court’s dismissal of plaintiff’s breach of contract (count II) and consumer fraud (count III) claims, but reverse the trial court’s dismissal of plaintiff’s negligence (count I) claim and remand this matter for further proceedings.

Affirmed in part; reversed in part and remanded.

JIGANTI and LINN, JJ., concur.