author: JUSTICE UNVERZAGT

text:
    REVEREND L. R. DAVIS, Plaintiff-Appellant, v. KEYSTONE PRINTING SERVICE, INC., et al., Defendants-Appellees.
    Second District
    No. 82—12
    Opinion filed December 30, 1982.

      Michael J. Cummings, of Waukegan, for appellant.
    Murray Conzelman, of Conzelman, Schultz, Snarski & Mullen, of Waukegan, for appellees.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, Reverend L. R. Davis, filed an action for libel against the defendants, the News-Sun and reporter Adrienne Drell, arising from a series of newspaper articles published by the defendants. Defendants’ motion to strike and dismiss was granted by the trial court, and plaintiff appeals that order.

The complaint alleged that the plaintiff, a citizen of Lake County and founder of a nonprofit religious organization known as Christian Fellowship, Inc., was a person of good name and reputation held in high esteem by his acquaintances in personal, religious, and business capacities and by the general public; that Adrienne Drell was a reporter for and agent of the News-Sun and was separately and jointly responsible for the decision to publish the articles complained of; that the News-Sun was in the business of publishing and distributing newspapers to the general public; and that a series of articles appeared in the News-Sun which contained false statements injurious to plaintiff's good name and reputation in his individual capacity and as founder and director of Christian Fellowship, Inc.

In eight separate counts, one for each day on which the articles were published, the plaintiff set out allegedly defamatory statements from each of the articles, which appeared on the front page of and elsewhere within the News-Sun from February 1980 through December 1980. The first articles reported, among other things, that “[s]everal disillusioned former members of the Good News Singers describe L. R. Davis, the leader of the widely known, Waukegan-based religious organization, as a manipulator who: Lured some of them into homosexual encounters; Promoted illegal absences from the U. S. Navy; Encouraged large personal contributions — $100,000 in one family’s case.” The subsequent articles further detailed these charges. They stated that plaintiff “seduced male members of his group against their will”; referred to the plaintiff as “the latest example of questionable leadership that has been accepted without question because he acted in the name of Christianity”; revealed an investigation by the U. S. Navy arising out of the News-Sun disclosure; said that the plaintiff broke “federal laws by encouraging Navy personnel to take illegal absences”; reported that the plaintiff left the United Pentecostal Church in 1968 “in a wave of controversy and criticism for his alleged homosexual advances to young men”; and stated that Lake County court officials were no longer sending young men on probation to plaintiff for supervision after complaints that plaintiff “pressured the youths into homosexual relationships by suggesting noncompliance with his will could mean revocation of their probationary sentences and prison.”

The complaint further alleged that the enumerated statements from the articles were made in full knowledge that they were untrue or in a reckless disregard of their truth or falsity and for the purpose of injuring plaintiff in his good name as a private person and as founder and director of Christian Fellowship, Inc.; that there was no attempt to verify the falsity of the defamatory statements; that defendants had a duty not to publish false statements against plaintiff; that they maliciously and intentionally published false statements for distribution to the general public for the purpose of harming plaintiff’s good name and reputation both individually and as founder and director of Christian Fellowship, Inc.; and that as a direct and proximate result of the publication of the defamatory statements plaintiff was injured personally and as founder and director of Christian Fellowship, Inc., and was seeking damages and punitive damages. Eight exhibits consisting of the newspaper articles in question were attached to the complaint.

Defendants filed a motion to strike and dismiss. The motion stated that it appeared from the complaint and its attached articles that all of the articles were reports of governmental proceedings and therefore subject to a qualified privilege and that the complaint did not make any allegations of fact showing that the articles were motivated solely by actual malice so as to defeat the privilege; that the complaint did not make any allegations of fact showing actual malice; that the fair comment rule should apply, requiring that the articles be read without conclusions as to actual malice; that the fair construction rule should apply, under which the articles could be fairly read and construed not to be libelous; that the articles contained expressions of opinions which could not be libelous as a matter of law; that to permit the filing of this action and recovery of damages would violate the first amendment to the Constitution of the United States and section 4, article I of the Constitution of the State of Illinois of 1970; that it appeared from the articles that they were published for good motives and for justifiable ends and were therefore protected under the same article; that plaintiff was a public figure who must allege facts showing actual malice, that actual malice would not be inferred, and that the complaint did not allege any facts showing actual malice; and that the complaint did not allege facts showing actual damage suffered by the plaintiff.

The trial court held that the statements printed by defendants were libelous per se and incapable of innocent construction. However, the trial court found that defendants had a qualified privilege in that plaintiff was a public figure who had injected himself into the public arena far beyond his small ministry. The trial court concluded that plaintiff had failed to allege actual malice on the part of defendants in that there were no specific factual allegations in the complaint as to how or why defendants should have known or knew the statements were false. A judgment was entered granting defendants’ motion and dismissing the complaint.

On appeal, the plaintiff asserts that at the time the newspaper articles at issue were published he was a private individual and not a public figure but that his complaint did properly allege malice. The defendants disagree on both points. They also state that the plaintiff took the position in the trial court and in his docketing statement that he had not alleged actual malice and argue that he is improperly changing his position on appeal. •

The issues before this court are (1) whether the trial court erred in granting the defendants’ motion to dismiss and (2) whether plaintiff has raised matter on appeal inconsistent with his earlier position.

The defendants’ “Motion to Strike and Dismiss” did not designate the section of the Civil Practice Act under which they were proceeding. Proper practice dictates that a party specifically designate whether his motion to dismiss is governed by section 45 (Ill. Rev. Stat. 1979, ch. 110, par. 45), recodified as section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2—615), or section 48 (Ill. Rev. Stat. 1979, ch. 110, par. 48), recodified as section 2— 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2—619), since the requirements and consequences of the sections are considerably different. (Davis v. Weiskopf (1982), 108 Ill. App. 3d 505, 508-10; Galayda v. Penman (1980), 80 Ill. App. 3d 423, 424-25, appeal denied (1980), 81 Ill. 2d 584.) However, when a motion is not properly labeled the court will look at the substance of the motion to determine which section governs. (See Lerner v. Zipperman (1982), 104 Ill. App. 3d 1098.) The major distinction is that section 48 allows for the assertion of affirmative matter that does not appear on the face of the complaint. Hayna v. Arby’s, Inc. (1981), 99 Ill. App. 3d 700, 710; Szczurek v. City of Park Ridge (1981), 97 Ill. App. 3d 649, 655, appeal denied (1981), 85 Ill. 2d 575.

In view of the issues raised in defendants’ motion to dismiss, i.e., qualified privileges to report governmental proceedings and to report about public figures, constitutional protections, the fair-comment rule, and the innocent-construction rule, it appears that the motion was filed pursuant to section 48(l)(i). That section clearly includes affirmative defenses. (Millsaps v. Bankers Life Co. (1976), 35 Ill. App. 3d 735, 742, appeal denied (1976), 63 Ill. 2d 552.) In the instant case, the defendants • could not challenge the plaintiff’s actual malice allegation as insufficient to state a cause of action until they properly asserted the qualified privileges, to which plaintiff’s alleged status as a public figure was relevant, via section 48. Thus, this appears to be a hybrid motion.

The trial court’s ruling that the plaintiff was a public figure was based on the plaintiff’s complaint, to which allegedly defamatory newspaper articles were attached, defendants’ motion to strike and dismiss, and the briefs submitted by the parties. There was no evidentiary hearing, nor did the defendants support their motion with affidavits. All pleadings were unverified. The factors described by the trial court in its memorandum regarding the plaintiff’s status could not have been extracted from the body of the plaintiff’s complaint. Rather, the trial court apparently relied on information reported in the attached newspaper articles. The question that arises under these circumstances is the propriety of the trial court’s consideration of information and articles that were laced with statements charged to be defamatory, or whether there was a competent factual presentation available from which the trial court could properly have reached its decision.

Section 48 requires a party to submit affidavits in support of a motion to dismiss if the grounds for dismissal do not appear on the face of the pleading. It is therefore necessary to delineate what the “face of the pleading” comprises. Section 36 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 36), recodified as section 2—606 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2—606), states:

“Exhibits. If a claim or defense is founded upon a written instrument, a copy thereof, or of so much of the same as is relevant, must be attached to the pleading as an exhibit or recited therein, unless the pleader attaches to his pleading an affidavit stating facts showing that the instrument is not accessible to him. In pleading any written instrument a copy thereof may be attached to the pleading as an exhibit. In either case the exhibit constitutes a part of the pleading for all purposes.”

Since plaintiff’s claim was founded upon the newspaper articles, the plaintiff was required to attach copies of the articles to his complaint. The defendants’ motion to dismiss relied upon the articles to show that the plaintiff was a public figure, and such a finding was basic to the court’s dismissal of the complaint.

The case law reveals that exhibits attached to a complaint must be considered to be an integral part of the complaint (Fowley v. Bra-den (1954), 4 Ill. 2d 355, 360; Theodosakis v. Austin Bank (1981), 93 Ill. App. 3d 634, 637), and become a part thereof for all purposes. (First National Bank v. Minke (1981), 99 Ill. App. 3d 10, 13; Sharkey v. Snow (1973), 13 Ill. App. 3d 448, 451.) Facts stated in such exhibits are considered the same as having been alleged in the complaint. Ford v. University of Illinois Board of Trustees (1977), 55 Ill. App. 3d 744, 747.

Although these cases buttress the provision of section 36 that exhibits constitute a part of pleadings for all purposes, the present situation presents a problem. The general rule in deciding a motion to dismiss is that it admits all well-pleaded facts, as well as reasonable inferences that can be drawn (Hayna v. Arby’s, Inc. (1981), 99 Ill. App. 3d 700, 709; Central States, Southeast & Southwest Areas Pension Fund v. Gaylur Products, Inc. (1978), 66 Ill. App. 3d 709, 713), but does not admit conclusions of law or conclusions of fact not supported by allegations of specific facts. (Szczurek v. City of Park Ridge (1981), 97 Ill. App. 3d 649, 655, appeal denied (1981), 85 Ill. 2d 575; Meyer v. Murray (1979), 70 Ill. App. 3d 106, 114.) In a libel case, the defamatory literature, which must be attached, necessarily contains statements whose accuracy is being challenged. It would be ludicrous to suggest that articles attached to a libel plaintiff’s complaint be considered for their truth on a motion to dismiss, where the court must view as true all well-pleaded facts in the complaint, one of which is that certain statements in the articles are false. Since the defamatory statements are alleged to be false, they would not be taken as true in a motion to dismiss because there is no corresponding contradiction in the articles expressly stating that they are true. However, only the allegedly defamatory statements are cited as false. The remainder of the articles are also part of the exhibits. Thus, a court could consider only those uncomplained of statements in the articles. However, to do so would lend credence to portions of the same report that allegedly was not only injurious to a plaintiff’s reputation but also false or inaccurate and published either negligently or maliciously. This problem is compounded in the instant case by the fact that, not only did the trial court accept information contained in the articles as true, but it relied solely on that source of information, since no other was offered.

It would be difficult, in light of the case law and the language of section 36, to say that the nondefamatory statements in an exhibit containing allegedly defamatory material should not be considered at all for their truth in deciding a motion to dismiss. However, a defendant has the burden of proving the affirmative matter which he asserts (Meyer v. Murray (1979), 70 Ill. App. 3d 106, 114; Stockton v. Mendoza (1977), 46 Ill. App. 3d 108, 110), and section 48 expressly requires affidavits where grounds do not appear on the face of a pleading. Defendants here simply relied on the complaint and exhibits to support their assertion that plaintiff was a public figure. To finally dismiss a party’s action strictly on the basis of this caliber of information, when there is no corroborative evidence, would be error. The exhibits alone were not a proper source of information to consider in deciding the issues in defendants’ motion to dismiss.

The next question is whether the trial court was correct in its assessment of plaintiff as a public figure, based on the information at hand. The trial court accepted the plaintiff’s allegation that he was a minister of a small congregation that encompassed the Waukegan and North Chicago area but found that plaintiff had injected himself to a far greater degree into the Lake County area in that his not-for-profit religious organization was a store-front operation, giving him and the public ample access to each other; he was involved with the Lake County judicial system in helping to supervise persons on probation, which was “heightened” by his location near the courthouse; and he was in charge of a singing group that performed small concerts throughout the midwest. The trial court concluded that, since how plaintiff acted and presented himself was important to those people who were or would be in contact with him, he was a public figure, and he was deemed “a public figure for all purposes, and if not, at least a limited public figure with respect to his conduct and its effect on his organization.”

A review of the case law of defamation, in order to determine the proper standards to apply, starts with New York Times Co. v. Sullivan (1964), 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710. The United States Supreme Court enunciated the rule, required by constitutional guarantees of the first amendment, that a public official may recover damages for a defamatory falsehood relating to official misconduct only if he proves that the statement was made with actual malice. (376 U.S. 254, 279-80, 11 L. Ed. 2d 686, 706, 84 S. Ct. 710, 726.) This requirement of proof of actual malice was extended to suits for defamation brought by persons who were in some sense “public figures” in Curtis Publishing Co. v. Butts (1967), 388 U.S. 130, 18 L. Ed. 2d 1094, 87 S. Ct. 1975. Then, in Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997, the Supreme Court held that, at least where the substance of defamatory statement makes substantial damage to reputation apparent and so long as they do not impose liability without fault, the States may define the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual. (418 U.S. 323, 347, 41 L. Ed. 2d 789, 809, 94 S. Ct. 2997, 3010.) In line with Gertz, the Illinois standard for defamation of private individuals was announced in Troman v. Wood (1975), 62 Ill. 2d 184, which replaced the former standard of strict liability for publishers of a defamatory falsehood. The court held:

“[I]n a suit brought by a private individual to recover actual damages for a defamatory publication whose substantial danger to reputation is apparent, recovery may be had upon proof that the publication was false, and that the defendant either knew it to be false, or, believing it to be true, lacked reasonable grounds for that belief. We hold further that negligence may form the basis of liability regardless of whether or not the publication in question related to a matter of public or general interest. Our holding in the present case is, of course, not intended to remove any of the absolute or qualified privileges which have heretofore been recognized in this State to the extent that the facts may warrant their application.” (62 Ill. 2d 184, 198.)

In Johnson v. Board of Junior College District No. 508 (1975), 31 Ill. App. 3d 270, appeal denied (1975), 61 Ill. 2d 598, college professors who were actively involved in a textbook controversy, who were not public figures for all purposes, were deemed limited public figures within the college community, which was the same community served by the publication. The plaintiff in Kilbane v. Sabonjian (1976), 38 Ill. App. 3d 172, was also deemed a public figure. He had caused four advertisements that criticized the defendant mayor to be published in a newspaper during an election campaign, and the defendant then criticized him via radio. The plaintiff was found to have served the community in various capacities, to have sought to influence opinion, and to have thrust himself into a debate on issues of the general public’s interest, thereby inviting comment and criticism. (38 Ill. App. 3d 172, 177.) In Korbar v. Hite (1976), 43 Ill. App. 3d 636, cert. denied (1977), 434 U.S. 837, 54 L. Ed. 2d 98, 98 S. Ct. 127, the president of a credit union, complaining of an article published in a union newspaper concerning a matter of general interest to the membership, was found to be a limited public figure. Looking at the nature and extent of his participation in the controversy, the court concluded that plaintiff thrust himself into the forefront of the action by his election as president and invited comment on his official conduct. (43 Ill. App. 3d 636, 642.) In Newell v. Field Enterprises, Inc. (1980), 91 Ill. App. 3d 735, the plaintiff, who was a defendant in a wrongful death action the complaint to which was reported in the Chicago Daily News so as allegedly to defame plaintiff, was deemed a private individual. Not a public figure for all purposes, he did not initiate the wrongful death action and had neither received a summons nor filed an answer to the complaint at the time the article was published and so did not inject himself into a public controversy. The court rejected the argument that the matter was of public interest because it involved the death of a human being in a fire. (91 Ill. App. 3d 735, 754.) In McCutcheon v. Moran (1981), 99 Ill. App. 3d 421, the plaintiff was a private individual in that a teacher or principal’s relationship with the conduct of government is too remote to justify exposure to a qualifiedly privileged assault upon reputation, and she did not attain public figure status merely because she was a teacher-principal in a public school system supported with public funds. (99 Ill. App. 3d 421, 424-25.) The alleged slander occurred when another school employee falsely accused her of a battery and brought criminal charges and testified at a board of education committee hearing reviewing her.

In the recent case of Colson v. Stieg (1982), 89 Ill. 2d 205, the New York Times qualified privilege was applied against an assistant professor whose professional ability was impeached, amounting to slander, at a committee meeting concerning his application for tenure and promotion. Our supreme court noted that to some extent it had extended the constitutional privilege enunciated in New York Times beyond public figures and public employees to matters of public concern, citing Farnsworth v. Tribune Co. (1969), 43 Ill. 2d 286. The court decided that it “need not in this case decide whether plaintiff was a public figure or public official, because the facts justify following Farnsworth and holding that this case clearly qualifies under the Butts test as a subject about which information is needed or appropriate to enable the members of the committee to cope with the issues confronting them.” (89 Ill. 2d 205, 213.) The court concluded that “[i]n light of the limited scope of the publication and the interest and concern of the group to whom the statement was published, we find that the first amendment privilege of New York Times must be applied to the statement made by the defendant.” 89 Ill. 2d 205, 213.

These cases staunchly protect first amendment rights; they also illustrate the boundaries of those rights. The United States Supreme Court has retreated from the “public concern” approach and exercised restraint in finding persons to be even limited public figures. Although our supreme court has recently indicated that the “public concern” approach is still viable in our State, it is clear that such factors as the scope of the publication and a plaintiff’s access to rebuttal are important considerations. (See Colson v. Stieg (1982), 89 Ill. 2d 205, 214.) Recent Illinois cases which have determined that a public official/public figure/matter of public concern is present show that either the plaintiff has been extensively involved in public matters and in the public eye or the publication itself has been limited to a particular audience relevant to the subject matter.

The newspaper exhibits in the instant case show that plaintiff was the president of Christian Fellowship, Inc., a tax-exempt organization, which sponsored a servicemen’s center and offered help and refuge to those with problems such as drug addiction, alcoholism, and prostitution. He talked to sailors on the “strip” on Sheridan Road in North Chicago. He was the leader of the Waukegan-based Good News Singers, who “have appeared on nationwide TV and radio, sung on the steps of the capítol in Washington, D.C., been photographed with politicians and celebrities and entertained throughout the country for civic and veterans’ organizations.” A two-year-old picture of the group was printed that was taken in the House of Representatives in Washington, D.C. Plaintiff had been involved in a controversy 13 years earlier in Arkansas where he held a “general” certificate to preach for the United Pentecostal Church and was dropped following criticism for alleged homosexual advances to young men. He was contemplating a geographic expansion of his organization to two other towns with military bases.

He had participated the previous summer, until he was barred following complaints of sexual advances, in a probation program as a supervisor. The newspaper articles also characterized plaintiff’s organization as “widely known” and “well known,” but these were conclusions.

On this basis, the trial court found plaintiff to be a public figure for all or at least limited purposes. Plaintiff must have achieved pervasive fame and notoriety to become a public figure for all purposes and in all contexts. (Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 351, 41 L. Ed. 2d 789, 812, 94 S. Ct. 2997, 3013.) The defendants in their brief urge that plaintiff achieved this status through his singing group and by working with the judicial system in counseling persons on probation. However, it is difficult to tell from the articles the extent of the Good News Singers’ renown, as there is. no information detailing how recently they received media coverage, how often, how much, or the size or location of their audience. Even if the Good News Singers were indeed generally known, it would not necessarily follow that plaintiff was equally well known. As to plaintiff’s role as a counselor, it ended in the summer of 1979, and the first article was published in February 1980. The focal point in assessing an individual’s status is at the time just prior to the defamatory publication, since a defendant cannot construct his own defense by making a plaintiff a public figure through the same articles that defame him. (See Hutchinson v. Proxmire (1979), 443 U.S. 111, 135, 61 L. Ed. 2d 411, 431, 99 S. Ct. 2675, 2688.) There is no indication that plaintiff’s involvement with the court’s probation system was even published prior to the series of articles at issue here, nor that plaintiff achieved or sustained general notoriety as the result of that involvement. There is some information regarding plaintiff’s professional role in the community, but the articles do not reflect the number of people with whom he deals or the extent he or his church is publicly known and so do not conclusively establish a “pervasive fame or notoriety.”

To qualify as a limited public figure for a particular issue, plaintiff must have injected himself or have been drawn into the particular public controversy. (Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 351, 41 L. Ed. 2d 789, 812, 94 S. Ct. 2997, 3013.) Defendants argue that plaintiff “thrust” himself into the area of religious counseling. This is not a case where there was in existence a public issue in which plaintiff became involved and attempted to influence public opinion. There was no public controversy prior to the articles. The question whether plaintiff injected himself into or was drawn into this controversy is not applicable, since plaintiff was an inherent part of it. In this particular case it may be more appropriate to evaluate whether this was a matter of public concern sufficient to invoke the constitutional privilege. Whether or not plaintiff was a homosexual, although it might be of public interest, is certainly not the sort of subject contemplated. (See Time, Inc. v. Firestone (1976), 424 U.S. 448, 47 L. Ed. 2d 154, 96 S. Ct. 958.) However, whether plaintiff was manipulating young Naval recruits into homosexual relationships against their wills under the guise of religious counseling might be such a matter, as might the tax fraud issue. However, the cases indicate that other factors also be considered before the New York Times privilege is applied. As we noted, many of the cases concerned quite limited publications to specific groups to whom receipt of the information was important. Here, the articles were disseminated to the general public in a county-wide newspaper and were not restricted to an audience that would have been particularly appropriate to the subject matter, such as Naval recruits or the Internal Revenue Service or church members. The plaintiff contends that the articles went to areas of the city and to people who had never even heard of him. Another problem with characterizing this as a matter of public concern is that such a conclusion under these circumstances presupposes that plaintiff was luring Naval recruits into homosexual relationships against their will, which he has denied and which denial is admitted from the motion to dismiss where defendants have presented no contrary evidence. This is distinguishable from Farnsworth v. Tribune Co. (1969), 43 Ill. 2d 286, where plaintiff was a doctor who by profession dealt with human ills, which was the subject matter of the public concern. If religious counseling itself were deemed to be the matter of public concern at issue, as the defendants’ brief proposes, then plaintiff’s role would be analogous to that of the doctor in Farnsworth, whose professional activities also were libeled in a newspaper.

Defendants argue that “ills of the spirit” are as vital a matter of public concern as are medical ills. However, the medical profession is governed by uniform standards applicable to all doctors, whereas religious practices vary widely among different denominations, and even an individual’s choice of religion is highly personal. The question is what burden a plaintiff should have in proving his case if such reports are indeed false, and for a plaintiff to have to prove actual malice there must be an important enough public concern to invoke constitutional protection on behalf of the defendants.

In addition to characterizing a matter as one of public concern, a plaintiff’s access to the media for purpose of refuting charges against him is important. In Colson v. Stieg (1982), 89 Ill. 2d 205, where the published information was necessary for a committee’s decision and therefore privileged, the court also cautioned:

“If the defendant in our case would have published the statement in question to the public in general, it is possible that the plaintiff would not have had sufficient access to the channels of communication to overcome or offset the damaging effect of defendant’s statement. We make no assessment of the propriety of the use of the New York Times privilege in such a situation.” 89 Ill. 2d 205, 214.

The narrow extent of the publication and the plaintiff’s opportunity to answer were important factors in invoking the New York Times privilege. Following Colson, American Pet Motels, Inc. v. Chicago Veterinary Medical Association (1982), 106 Ill. App. 3d 626, was decided, which involved a libel published in a veterinary association newsletter for distribution among its members. The court found that its plaintiff had no opportunity to communicate with the recipients of the alleged defamatory statements and declined to extend the constitutional privilege in such circumstances, in view of Colson.

In the present case, although defendants argue that plaintiff had and exercised an opportunity for self-help, the newspaper exhibits do not reflect this. The following are the only references to rebuttal to be found in all of the articles: “Davis, in a taped interview with the News-Sun earlier this week, vehemently denied luring male members of the group into homosexual encounters.” “Davis *** has denied he lured the men into the homosexual affairs or encouraged them to take illegal absences ***.” “Davis admitted in the News-Sun he allowed recruits he knew were ‘UA’ or on illegal absences to stay at the hotel ‘until they get their heads on straight’ but said he encouraged them to return to the Navy.” “In an earlier interview with the News-Sun, Davis said he received no salary and contended the Fellowship is in debt despite $100,000 in contributions annually. He denied members turn over their paychecks to the group, although a News-Sun examination of records at two companies where former members worked showed returned paychecks had been stamped ‘Christian Fellowship, Inc.,’ and signed by Davis.” Given the numerous articles published, the negative context of the articles in which these statements appear, and the paucity of these exculpatory statements, they hardly amount to effective rebuttal. Plaintiff also argues that defendant Drell refused his invitation to come to the church and examine their records and interview him and other members, nor was plaintiff contacted prior to publication of the articles. This too indicates limited access to rebuttal through the media.

In a motion to dismiss, a defendant has the burden of proving the affirmative matter he raises. Here, defendants chose to rely on the complaint and exhibits incorporated therein and did not present supporting affidavits. The issue here is close, but considering the dearth of detailed information in the articles, the extent of the publication, plaintiff’s inability to rebut the charges effectively through the media, and the singular source of the information, it was error for the trial court to apply the New York Times privilege, based on the information before it.

Where the New York Times privilege is applicable, a plaintiff must plead and prove actual malice in order to maintain an action for defamation. (New York Times Co. v. Sullivan (1964), 376 U.S. 254, 279-80, 11 L. Ed. 2d 686, 706, 84 S. Ct. 710, 726; Colson v. Stieg (1982), 89 Ill. 2d 205, 214.) Although we have determined that plaintiff was not in some sense a public figure nor was there a sufficient matter of public concern to invoke the privilege for a defendant, we must still decide whether the plaintiff properly alleged actual malice in his complaint, since a sufficient allegation of actual malice is necessary for plaintiff’s request for punitive damages to stand. (Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 349, 41 L. Ed. 2d 789, 810, 94 S. Ct. 2997, 3011.) Bare allegations of actual malice in a complaint are not enough; rather, conclusions of malice and intent must be clothed with factual allegations from which the actual malice might reasonably be said to exist. Arlington Heights National Bank v. Arlington Heights Federal Savings & Loan Association (1967), 37 Ill. 2d 546, 551.

The pertinent allegations in plaintiff’s complaint that must be examined in analyzing whether actual malice was sufficiently pleaded are as follows:

“7. That said newspaper articles contained a number of false statements injurious to Reverend L. R. DAVIS’ good name and reputation in his individual capacity and injurious to his good name and reputation as founder and director of Christian Fellowship, Inc., said statements are as follows:
* * *
8. That the things and matters stated above and published by ADRIENNE DRELL and THE NEWS-SUN were made in full knowledge that they were untrue or in a reckless disregard of their truth or falsity and for the purpose of injuring Reverend L. R. DAVIS in his good name as a private person and as founder and Director of Christian Fellowship, Inc.
9. That neither ADRIENNE DRELL nor THE NEWS-SUN attempted to verify the falsity of the defamatory statements but in complete and reckless disregard of the truth or falsity of those statements the Defendants ADRIENNE DRELL and THE NEWS-SUN caused the statements to be published.
10. That the Defendants and each of them had a duty not to publish such false statements against Reverend L. R. DAVIS.
11. That the Defendants and each of them maliciously and intentionally caused the publication of false statements to be printed in THE NEWS-SUN for distribution to the general public for the purpose of harming Reverend L. R. DAVIS’ good . name and reputation both individually and as founder and Director of Christian Fellowship, Inc.”

These allegations were all repeated in each count in the complaint.

In Colson v. Stieg (1982), 89 Ill. 2d 205, 215, our supreme court found the following allegations sufficient to allege actual malice:

“ ‘Said statement was made by Defendant knowing it to be false, without reasonable grounds for believing it to be true, maliciously, wilfully, intentionally and without reasonable justification or excuse with the intention of destroying Plaintiff’s personal and professional reputation, causing Plaintiff to be denied tenure, to be terminated from employment with Northern Illinois University effective May, 1979 and interfering with his ability to be suitably employed in the future. Said statement caused Plaintiff extensive mental and physical anguish and financial loss.’ ”

The court acknowledged that the allegation was replete with conclusions and not facts and by consolidating so much in one sentence did not strictly comply with the Civil Practice Act, it noted the command of the Civil Practice Act that the act “be liberally construed, to the end that controversies may be speedily and finally determined according to the substantive rights of the parties.” (Ill. Rev. Stat. 1977, ch. 110, par. 4, recodified as Ill. Rev. Stat. 1981, ch. 110, par. 1—106.) The court found the allegation that the statement was made “ ‘knowing it to be false’ ” and “ ‘maliciously, wilfully and intentionally’ ” to be sufficient to allege actual malice, though not a model. The court cited Coursey v. Greater Niles Township Publishing Corp. (1968), 40 Ill. 2d 257, 266, for the proposition that it is sufficient to allege “that the facts asserted were false and that the statement was made knowing it to be false.” 89 Ill. 2d 205, 216.

In the instant cause, plaintiff alleged that the statements were made maliciously and intentionally in full knowledge of their falsity or in complete and reckless disregard of their truth or falsity, for the purpose of injuring plaintiff in his good name privately and professionally, in breach of a duty not to publish such false statements, and without attempting to verify the falsity. This includes the approved language and more. Although the defendants argue that the articles themselves negate actual malice in that they are accurate reports of witnesses’ accounts, that is a factual issue that is not clear at this stage. The articles tell only one side of the story, and they rely on accounts of “disgruntled” former members. A reviewing court should interpret the facts alleged in the complaint in the light most favorable to the plaintiff, and a complaint should not be dismissed unless the pleading discloses that no set of facts could be proved that would entitle a plaintiff to relief. (Theodosakis v. Austin Bank (1981), 93 Ill. App. 3d 634, 637.) Pleadings shall be liberally construed with a view of doing substantial justice between the parties. (Ill. Rev. Stat. 1981, ch. 110, par. 2—603(c).) Although plaintiff might be unable to prove actual malice, it appears that he did plead actual malice sufficiently to state a cause of action and to support a request for punitive damages.

In oral argument, defendants contend that certain facts were admitted by the plaintiff in his trial brief and, therefore, are admissions now binding on the plaintiff. However, these “facts” were not briefed by the defendants and are therefore waived. 87 Ill. 2d R. 341(e)(7).

Finally the defendants argue that the plaintiff took the position in the trial court that he had not alleged actual malice and argue that the plaintiff may not try the case on one theory in the trial court and another at the appellate level. However, the record does not disclose any expression by the plaintiff that he did not allege actual malice. He did argue that he was a private individual and was not required to allege actual malice, but that is not an acknowledgment that he did not in fact allege it. As the plaintiff asserts in his brief, an allegation of actual malice was necessary to support his request for punitive damages. Even if he was confident that he had alleged actual malice, the plaintiff would still quite logically have argued his position that he was a private individual, as that status carries a different standard of proof (i.e., negligence) for recovery of actual damages suffered.

The defendants also argue that the plaintiff was bound by an entry in his docketing statement that “Plaintiff did not allege actual malice on the part of Defendants.” However, the defendants took this statement entirely out of context. The full entry in the docketing statement reads:

“BRIEF DESCRIPTION OF THE NATURE OF THE CASE AND THE RESULT IN THE TRIAL COURT:
Plaintiff filed a complaint against Defendants alleging that a series of articles filed in the News-Sun contained falsehoods that injured him. Plaintiff did not allege actual malice on the part of the Defendants.”

It seems obvious that the first sentence is the “brief description of the nature of the case” and the second is “the result in the trial court,” particularly since the plaintiff did not below or on appeal take the position that he had not alleged actual malice.

For the foregoing reasons, the trial court’s dismissal of the plaintiff’s complaint is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

HOPF and NASH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE MILLS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALLEN MEDLEY, Defendant-Appellant.
    Fourth District
    No. 4—82—0043
    Opinion filed January 6, 1983.

      Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, and John W. Wray, law student, for appellant.
    J. William Roberts, State’s Attorney, of Springfield (Robert J. Biderman and Denise M. Paul, both of State’s Attorney’s Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLS

delivered the opinion of the court:

The facts in this case are singularly odious and repulsive.

Four acts of rape, two anal assaults, and four acts of fellatio — all committed on a young housewife by two home invaders.

A jury found Medley guilty of rape, home invasion, and burglary, and he received concurrent sentences of 45-45-7 years.

We affirm.

In the early hours of a hot June morning, a husband, his wife, their infant son and nine-year-old niece were asleep in their home in Springfield. The husband was awakened by the sound of the screen door opening. When he went to investigate, he saw a man standing over his niece who was asleep on the front room couch. The husband yelled and turned to run for the kitchen. A second man intercepted him, placed a gun to his head and ordered him to be quiet. In all, there were three intruders in the victims’ home — two men and a woman. (During the remainder of the events described herein, the female intruder stayed in the front room of the home, watching over the niece.)

The second man then forced the husband into the bathroom and threatened his life and those of his family if he attempted to escape. During this time, the wife came out of the bedroom to investigate the commotion. The first man forced her back into the bedroom, ordered her to undress, and raped her. While the rape was taking place, the couple’s three-month-old son, who was asleep on the bed, began to cry. The intruder ordered the wife to quiet the baby so she began to nurse her son.

The two men then took turns raping the wife and ransacking the home. The wife was raped four times, assaulted anally twice, and forced to perform four acts of fellatio. During these attacks, the wife was nursing her infant son in an attempt to keep him quiet. When the intruders were finished, they tied and gagged the victims and then fled with the couple’s car, credit cards, and several items of personal property. Four days later, Medley confessed to being one of the intruders. A jury convicted him of rape, home invasion, and burglary.

We affirm.

I

Medley argues that the prosecution and the trial judge committed several errors which require reversal of his conviction. He argues first that his confession should not have been admitted into evidence because it was the product of an illegal detention, and contends that his detention was illegal because the police failed to take him before a judge without unnecessary delay. We disagree. Medley was not illegally detained. While he was being questioned concerning an unrelated shooting incident, the police received information that he was involved in the present crimes. When confronted with this information, Medley confessed and then led the police to the house where the stolen goods were located. All of this took place during a period of legal detention.

Even if Medley had been illegally detained, it would not have been error to admit his confession. Failure to bring a defendant before a judge without unnecessary delay will not render a confession per se invalid. (People v. Zepeda (1970), 47 Ill. 2d 23, 265 N.E.2d 647.) In Illinois, courts determine the admissibility of a confession by deciding whether or not it was given voluntarily. (People v. Dees (1981), 85 Ill. 2d 233, 422 N.E.2d 616.) Unnecessary delay is only one of the factors which the courts consider. (People v. Taylor (1968), 40 Ill. 2d 569, 241 N.E.2d 409.) It is clear from the record that Medley gave his confession voluntarily and thus it was not error to admit it into evidence.

II

Next, Medley argues that it was error for the trial judge to require him to appear before the jury clad in jail clothing. In People v. Wilkes (1982), 108 Ill. App. 3d 460, 438 N.E.2d 1385, this court held that it was error to force a defendant to appear before the jury while dressed in jail clothing. In that case, the defendant was forced to appear before the jury dressed in bright orange coveralls with the word “jail” stenciled across the back. The situation in the case before us is not nearly as egregious. The jail clothing which Medley wore was pale green and consisted of a pair of pants and a pullover shirt similar to that worn by surgeons. Furthermore, Medley had ample opportunity to obtain civilian clothing before his trial. Instead, he waited until the moment before the trial was to begin and then requested a continuance so that he could obtain other clothing. Such behavior cannot be condoned. The wheels of justice grind slowly enough without allowing defendants to use this type of delaying tactic. We find that it was not error for the trial judge to require Medley to appear briefly before the jury while he was dressed in routine jail clothing.

Even if it was error, it would be harmless error. In Wilkes, we adopted a three-pronged approach to determine whether forcing a defendant to wear identifiable jail clothing constituted harmless error. In order to find whether the error was harmless, we first focus on the error and decide whether or not it contributed to the conviction. Second, we determine whether the evidence supporting the conviction is overwhelming. Finally, we decide whether the error merely duplicates other properly admitted evidence. Forcing Medley to appear before the jury in jail clothing would have been harmless error under all three aspects. It is doubtful that such an error contributed to his conviction because the evidence supporting his conviction was overwhelming and because Medley, during direct examination, informed the jury that he was in custody at the jail. Hence, any information conveyed to the jury by his jail clothing would have been merely duplicitous.

Ill

Medley also argues that five of the remarks made by the prosecution during the trial constituted reversible error.

We disagree.

First, Medley argues that it was reversible error for the prosecution to state during its closing argument that Medley’s confession met all of the necessary legal requirements. The prosecution's statement was not error. During his direct examination, Medley raised several issues concerning the legal sufficiency of his confession. The prosecution was merely commenting on those issues. Furthermore, the policy behind not allowing either side to argue the legality of a confession to a jury is to prevent the jury from confusing the confession’s legal credibility with its factual credibility. (See People v. Monroe (1981), 95 Ill. App. 3d 807, 420 N.E.2d 544; People v. Carter (1979), 73 Ill. App. 3d 406, 392 N.E.2d 188.) In the case before us, the prosecution explicitly told the jury several times that it was their duty to consider all of the evidence and to determine for themselves the weight that should be given to the confession. The prosecution made it very clear that the issue of the factual credibility of the confession was to be resolved by the jury. Therefore, the prosecution’s remarks concerning the legality of the confession did not prejudice the jury against Medley by forcing them to accept the factual credibility of his confession.

Second, Medley contends that it was error for the prosecution to state that it believed Medley had confessed to the crimes. Medley told the prosecution during cross-examination that it was asking the wrong person about the confession and the prosecution retorted that it believed it was asking the right person. The prosecutor’s statement was harmless error. It was needlessly argumentative for the prosecution to infer that Medley had indeed made the confession. That statement, however, did not deprive Medley of a fair trial. Improper remarks by the prosecution do not require reversal unless they result in substantial prejudice to the accused. (People v. Strange (1980), 81 Ill. App. 3d 81, 400 N.E.2d 1066.) A conviction will not be reversed simply because the prosecution has committed error. It must first be determined that the defendant was denied real justice and that the verdict was the result of the error. (People v. Whitlow (1982), 89 Ill. 2d 322, 433 N.E.2d 629; People v. Reynolds (1980), 85 Ill. App. 3d 549, 407 N.E.2d 64.) It is clear that Medley was not denied real justice by the remark and that it was the overwhelming evidence against him— not the remark — that resulted in his conviction.

Third, Medley urges that it was error for the prosecution, during closing argument, to mention that Medley had failed to call “Mr. Jimmy Slim” as a witness. The prosecutor’s statement was not error. Instead, it was a fair comment invited by Medley’s testimony that he had purchased the goods stolen from the victims’ home from Mr. Jimmy Slim. Where a witness is far more accessible to the defendant than to the prosecution, it is proper for the prosecution to comment on the defendant’s failure to call the witness. (People v. Bonzi (1978), 65 Ill. App. 3d 927, 382 N.E.2d 1300.) All that the prosecution knew about Mri Jimmy Slim was his supposed alias, the fact that he drove a green Cadillac, and that he sometimes visited the housing projects in Springfield. Medley, on the other hand, testified that he had seen Mr. Jimmy Slim in the projects on several occasions and that he had even had business dealings with him. Therefore, because the witness was clearly far more accessible to Medley than to the prosecution, it was not error for the prosecution to comment on Medley’s failure to call the witness.

Fourth, Medley argues that it was error for the prosecution to state that one of the witnesses testifying against Medley testified at great risk to herself. Medley alleges that the prosecution was making inferences to the jury that Medley would retaliate against the witness. We, however, believe that the prosecution’s remarks were ambiguous and subject to at least one other reasonable interpretation. Earlier in the trial, Medley’s counsel elicited testimony from the same witness that she had never been prosecuted for using the victims’ credit cards which she had obtained from Medley. The prosecution’s statement could just as easily be interpreted as referring to the threat of prosecution raised by defense counsel as to the threat of retaliation by Medley. Ergo, we find no error.

Fifth, Medley contends that it was error for the prosecution to state during its closing argument that Medley was seen in possession of the stolen goods four hours after the home invasion. This statement was not error. The prosecution was simply restating testimony that had already been admitted into evidence.

Furthermore, Medley has waived any errors concerning the second, third, and fifth statements because he failed to raise them in a post-trial motion. People v. Koss (1977), 52 Ill. App. 3d 605, 367 N.E.2d 1040.

Medley also alleges that the cumulative effect of the above statements deprived him of a fair trial. We found that only one of the statements was error — and harmless at that. Medley’s counsel admitted during oral argument that this court would have to find more than one of the statements constituted error in order to find reversible cumulative error. We agree. The doctrine of cumulative error cannot be applied when there is only one error. Therefore, the issue of cumulative error in this case is moot.

IV

Finally, Medley asserts that the trial court erred by permitting the jury to examine a certified copy of Medley’s prior conviction for armed robbery because the conviction contained information about the sentence Medley received for that crime. Medley argues that the information about the sentence was collateral and that its probative value was outweighed by its prejudicial effect on the jury. We disagree. An authenticated copy of the conviction is the proper way to introduce evidence of a prior conviction. (People v. Kellas (1979), 72 Ill. App. 3d 445, 389 N.E.2d 1382.) To establish the conviction, the certified copy must show the judgment. (People v. Lane (1948), 400 Ill. 170, 79 N.E.2d 65.) The final judgment in a criminal case is not the verdict, but instead it is the sentence. (People v. Warship (1974), 59 Ill. 2d 125, 319 N.E.2d 507.) Therefore, the trial judge did not err by allowing the jury to see a certified copy of Medley’s conviction which included his sentence.

In sum, there were no errors committed in this case which would require the reversal of Medley’s conviction.

Affirmed.

TRAPP and GREEN, JJ., concur.


author: PRESIDING JUSTICE WEBBER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT E. THOMAS, Defendant-Appellant.
    Fourth District
    No. 4—82—0203
    Opinion filed January 6, 1983.

      Daniel D. Yuhas and David Bergschneider, both of State Appellate Defender’s Office, of Springfield, and Lawrence J. Essig, law student, for appellant.
    Anthony B. Cameron, State’s Attorney, of Quincy (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

Defendant pleaded guilty to voluntary manslaughter in violation of section 9 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9—2) and was sentenced to an extended term of imprisonment of 14 years, to run consecutively to a 7-year sentence imposed for a prior armed robbery. On appeal, defendant challenges the sentence imposed. As we are remanding this case for resentencing, we need not address all issues raised by the defendant on appeal.

Defendant first maintains that he was improperly sentenced because the trial court had available to it the entire probation office file, which contained information not found in the presentence report. Defendant’s version of the incident giving rise to the charges against him was that he killed the victim in a fit of outrage after the victim had made homosexual advances toward him. The apparent standard practice was for the trial judge to have available to him the entire probation file, which was not disclosed either to the People or to the defendant. Defense counsel only became aware of the practice subsequent to defendant’s sentencing. Specifically, defendant objects to police reports found in the probation office file. Some police reports apparently raised the question of whether there had been a sex act between the defendant and the victim, inasmuch as some seminal material had been located on the victim’s body. As the trial judge stated he did not believe defendant’s version of the incident, defendant maintains that he had no opportunity to rebut the damaging reports found in the probation office file.

While we are in no way condoning the practice of the trial judge having available to him a file not disclosed to defendant, we fail to see how defendant has been prejudiced in this case. Defense counsel acknowledged at oral argument that all of the police reports found in the probation office file were disclosed to the defense during the discovery process. As the defendant had available to him the reports he is objecting to, we conclude no reversible error occurred.

We trust, however, that such a practice will be discontinued henceforth. Analogous in our opinion is the decision in People v. Sumner (1976), 40 Ill. App. 3d 832, 354 N.E.2d 18, wherein the trial judge made a private investigation by talking with members of the public as to whether a sentence of probation or conditional discharge would deprecate the seriousness of the offense. The court noted that when the trial judge makes a private investigation concerning the character and conduct of the defendant, he is required to advise the defendant of the information being considered and to give the defendant an opportunity to rebut the information. The procedure employed in the instant case where the trial judge has available to him the probation office file which is not disclosed to defendant is fraught with the same potential for prejudice to the defendant. Such a practice compromises the safeguards afforded defendants which are outlined in the sentencing procedures found in the Unified Code of Corrections.

The second instance of error alleged by the defendant is that the trial court erred by considering defendant’s prior arrests which did not result in conviction where there was no evidence produced at sentencing to support the allegations, other than the presentence report. The trial judge, relying on People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344, held the arrests and other charges not resulting in conviction to be admissible and stated he would consider the arrests in regard to the length of sentence as well as to terms and conditions. We must, therefore, determine whether under La Pointe, a listing of mere arrests in a presentence report is admissible.

In La Pointe, the supreme court dealt with the question of the extent to which allegations or charges of criminal conduct could be considered at a sentencing hearing where no conviction had resulted from that conduct. In that case, the evidence in question consisted of the testimony of a witness that the defendant had asked him to participate in a robbery and to smuggle drugs to the defendant in jail. Because the evidence came in the form of sworn testimony by the party solicited, presented in open court and subject to cross-examination, the supreme court held that its admission by the trial judge was proper. As we understand that case, the significance of La Pointe is that conduct not resulting in convictions may properly be considered by the trial court in the sentencing process if deemed relevant and accurate by the trial judge. We do not read La Pointe as broadly as do the People; namely, that mere allegations of prior criminal activity, without any supporting testimony, may be considered. We believe that the mere listing of prior arrests, not resulting in convictions, in a presentence report does not satisfy the accuracy requirement of La Pointe. We therefore hold that mere arrests, standing alone, without further proof of the conduct alleged, are inadmissible in the sentencing determination. As the record clearly demonstrates that the trial judge considered mere arrests in sentencing defendant, this case must be remanded for resentencing.

In view of the foregoing considerations, the defendant’s conviction for voluntary manslaughter is affirmed; his sentence is vacated and this cause is remanded for resentencing.

Conviction affirmed; sentence vacated and remanded for resentencing.

GREEN and MILLER, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RICHARD GRISWALD, Defendant-Appellee.
    Fourth District
    No. 4—82—0447
    Opinion filed January 4, 1983.

      Edward Litak, State’s Attorney, of Danville (Robert J. Biderman and James K. Horstman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Daniel D. Yuhas and Gary R. Peterson, both of State Appellate Defender’s Office, of Springfield, for appellee.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

Defendant was charged by information with two counts of conspiracy to commit armed robbery, two counts of solicitation to commit armed robbery, eight counts of unlawful use of weapons, and two counts of armed violence based upon conspiracy to commit armed robbery. From discovery material in the record, we learn that defendant, a high school student, with several of his friends planned to put plastic explosives inside the Public Safety Building in Danville, Illinois. The apparent purpose was to create a diversion and then rob two banks. He had allegedly obtained several shotguns which he had sawed off to use as weapons in robbing the banks.

Prior to trial, defendant moved to dismiss the two counts of armed violence, contending that those counts should be dismissed because conspiracy is not a proper predicate for armed violence. The. trial judge agreed, holding that the legislature could not have intended that armed violence be predicated upon a conspiracy. The State now appeals. We reverse and remand.

The trial court erred, in holding as a matter of law, that an armed violence charge can never be founded upon a conspiracy. The trial judge was premature in dismissing the armed violence counts because, as yet, there has béen no evidence as to whether the defendant was actually armed with a dangerous weapon during the course of the conspiracy.

The armed violence statute (Ill. Rev. Stat. 1979, ch. 38, par. 33(A)—2) provides:

“Armed violence - Elements of the offense. A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law.”

Prior to a 1978 amendment of the armed violence statute, the statute was expressly limited in application to 13 named felonies. Prior to the amendment, armed violence could not have been based upon a conspiracy. In People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627, the supreme court held that the legislature clearly intended to extend the number of circumstances in which the presence of a weapon is prohibited. Additionally, the court in Harón held that the armed violence statute may properly be predicated upon nonviolent felonies and does not require the utilization of a weapon to facilitate the predicate offense. Rather, the court noted that the mere fact that a person while committing a felony carries on or about his person or is otherwise armed with a dangerous weapon is sufficient to come within the language of the statue. Furthermore, it has already been held that armed violence counts may be predicated upon mere attempts. (People v. Stokes (1981), 95 Ill. App. 3d 62, 419 N.E.2d 1181; People v. Rudd (1980), 90 Ill. App. 3d 22, 412 N.E.2d 982.) As the language of the armed violence statute clearly provides that a person commits armed violence “when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law” (emphasis added) (Ill. Rev. Stat. 1979, par. 38, ch. 33(A) — 2), we conclude that the trial court erred in holding that as a matter of law armed violence could not be predicated upon a conspiracy.

We share the trial court’s concern that a strict reading of the statute could lead to bizarre and absurd results. Would a police officer who testifies as a State’s witness while wearing his uniform and side arm and who is later found to have committed penury be also guilty of armed violence? Would an individual who signs a public aid affidavit required under penalty of penury, while having a pocket knife in his pocket, be subject to an armed violence charge? Would a defendant, returning from a hunting expedition with his shotgun in his auto, who is involved in an automobile accident and is charged with reckless homicide be also guilty of armed violence? Under a strict and literal reading of the statute as it now exists, the answer apparently would be yes. There is no end to the list of hypothetical which could be posed which would result in such absurd consequences. Despite our concerns, this court can determine the validity of a statute or ordinance only in the light of the factual background presented by the record in the instant case. (Village of Itasca v. Luehring (1954), 4 Ill. 2d 426, 123 N.E.2d 312.) The invalidity of a section of a statute or ordinance may not be invoked by one who is not affected by such invalidity.

Accordingly, the judgment of the trial court is reversed and remanded for further proceedings.

Reversed and remanded.

TRAPP and MILLER, JJ., concur.


author: JUSTICE LINDBERG

text:
    LEOTA HIGGINS et al., Plaintiffs-Appellants, v. EVELYN STOCKMAN, Indiv. and as Ex’r of the Last Will and Testament of Fred Clankie, Deceased, et al., Defendants-Appellees.
    Second District
    No. 82—102
    Opinion filed December 14, 1982.
    Rehearing denied February 7, 1983.
    John A. Strom and Charles T. Sewell, both of Strom, Strom, Oakley & Ellis, of Belvidere, for appellants.
    Mark W. Boswell, of Reno, Zahm, Folgate, Lindberg and Powell, of Rockford, for appellees.
   JUSTICE LINDBERG

delivered the opinion of the court:

The issue presented for review is whether a will contest must be filed in the related probate action, or whether it also may be filed separate from the probate action in another division of the circuit court. The issue requires this court to determine whether other divisions of the circuit court have subject-matter jurisdiction to hear will contests.

Decedent Fred Clankie died testate on September 22, 1974. His will named defendants Evelyn Stockman and Tena Kingsley as legatees and devisees. On February 20, 1975, plaintiffs, heirs of decedent, filed the present will contest in the general division of the circuit court of Winnebago County. The complaint referred to defendants as proponents of the will and to the probate proceedings (which were in the probate division of that same court).

The parties proceeded with discovery. On May 4, 1977, the general division dismissed the will contest on its own motion for want of prosecution. On May 5, 1978, plaintiffs successfully moved to vacate that dismissal. Meantime, however, in December 1977, defendants had closed decedent’s estate and the probate division had distributed the assets. Plaintiffs’ attorney admitted in oral argument that plaintiffs had notice of this distribution, but he failed to explain why plaintiffs did not then protest.

In any event, the parties reinstituted discovery after May 1978, and plaintiffs filed a certificate of readiness for trial on November 26, 1979.

Plaintiffs subsequently amended their complaint twice — once to substitute as defendant the executor of the Tena Kingsley estate, and once to add a new count alleging a breach of a fiduciary relationship by defendant Stockman.

On July 10, 1981, defendants moved to dismiss the complaint because the circuit court lacked subject-matter jurisdiction. Defendants contended that under the Probate Act (Ill. Rev. Stat. 1975, ch. 3, par. 90), a will contest may be filed only “in the proceeding for the administration of the testator’s estate.” Plaintiffs moved to consolidate their complaint with the then-closed probate proceedings. However, the circuit court on September 30, 1981, granted the motion to dismiss. This appeal followed.

Illinois probate law at the time of the filing of the original complaint was codified in chapter 3 of the Illinois Revised Statutes of 1975. Section 90 provided:

“Within 6 months after the admission to probate of a domestic or foreign -will in any court of this State, any interested person may file a petition in the proceeding for the administration of the testator’s estate to contest the validity of the will. The right to institute or continue a proceeding to contest the validity of a will survives and descends to the heir, legatee, devisee, executor, administrator,' grantee, or assignee of the person entitled to institute the proceeding. Upon the filing of the petition, process shall be issued, served and returned as in other civil cases.” (Emphasis added.) Ill. Rev. Stat. 1975, ch. 3, par. 90.

Defendants contend the statute limits subject-matter jurisdiction over will contests to probate proceedings. Plaintiffs contend the statute is a waivable venue provision.

Defendants’ contention — that the language is jurisdictional — is based upon the fact that the right to contest a will is a statutory right, and circuit courts generally may entertain subject-matter jurisdiction over such suits only “in the mode and under the limitations prescribed by the statute.” (Ruffing v. Glissendorf (1968), 41 Ill. 2d 412, 416-17.) In Ruffing, the supreme court held the statutory time limit within which to institute a will contest was jurisdictional. (41 Ill. 2d 412, 419.) The decision was based on the historical origins of will contests and on public-policy concepts that clouds on probate property ought to be cleared.

Plaintiffs’ contention — that the language is a waivable venue provision — is based on the Illinois Constitution, which provides that circuit courts have almost unlimited jurisdiction over all justiciable matters. (Ill. Const. 1970, art. VI, sec. 9.) Circuit courts have various divisions such as probate (In re Marriage of Peshek (1980), 89 Ill. App. 3d 959, 967, 412 N.E.2d 698, 704), but those divisions are not jurisdictional. Ryan v. Miller (1978), 58 Ill. App. 3d 283, 285, 374 N.E.2d 257, 258.

Recent decisions of the supreme court indicate that neither contention is totally correct. The statutory provision, directing as it does the procedure for will contests, is not jurisdictional or venue-related; rather, it is a mandatory prerequisite to bringing the contest in the first instance. (In re Custody of Sexton (1981), 84 Ill. 2d 312.) Like venue provisions, mandatory prerequisites are waivable. (84 Ill. 2d 312, 319.) The Sexton court implied that such prerequisites cannot impose jurisdictional limits because the constitution grants circuit courts broad jurisdiction. 84 Ill. 2d 312, 319-20.

Ruffing v. Glissendorf (1968), 41 Ill. 2d 412, does not hold otherwise. Ruffing made clear that time limits for will contests are jurisdictional — and this is so despite the constitution — because of the historical origins and public-policy considerations involving probate contests. Although Ruffing could be construed as authority for holding that the place of filing a wall contest also is jurisdictional, we decline to so hold for two reasons.

First, the constitutional provision involved in the present case does not address time limits, but arguably it is quite explicit on where a suit may be filed — in circuit court. This constitutional provision weighs heavy against those who would segment the circuit court into jurisdictional divisions. The provision is supported by Supreme Court Rule 132, which provides that misdesignation of division “shall not affect the jurisdiction of the court.” (87 Ill. 2d R. 132.) And case law holds that each division of the circuit court has equal and concurrent subject-matter jurisdiction. (Lescher v. Barker (1978), 57 Ill. App. 3d 776, 373 N.E.2d 1007.) In short, the constitutional provision is more relevant to where a suit may be filed than to when it may be filed.

Second, public-policy considerations in the present case are not as compelling as in Ruffing. Time limits act to clear clouds on probate property by forcing contestants to litigate now or forever be barred. The property then can pass after the time limit without question. Requirements relating to where a suit can be filed are not as compelling since the cloud on probate property, if any, is apparent from the filing of a timely contest; the cloud invokes no surprise; it just happens to hang over from another division of the same court.

Clearly, a specific constitutional expression outweighs any present public-policy considerations.

The statute is a waivable mandatory prerequisite. And that prerequisite has been long waived.

Regardless, the unique — if not a bit extreme — facts of this case require us to affirm the cause. A cloud still hangs over decedent’s probate property eight years after his death and five years after distribution. This is due largely to the fact that plaintiffs managed to reinstate their cause subsequent to distribution of the estate. Because plaintiffs, for whatever reason, let the estate be distributed without immediate protest, they are left with no res as the subject matter for their cause of action.

They assert in their reply brief and in oral argument that they may reopen the estate pursuant to section 24 — 9 of the Probate Act (Ill. Rev. Stat. 1981, ch. llOVa, par. 24 — 9), which provides that a party may reopen an estate to administer “a newly discovered asset or of an unsettled portion of the estate.” The supreme court has termed that provision “explicit” and denied its application where there are no new assets and the estate was settled. See Commercial National Bank v. Bruno (1979), 75 Ill. 2d 343, 349.

Such is the case here, and we see no basis for the cause to proceed.

Accordingly, the judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

VAN DEUSEN and HOPE, JJ., concur.


author: JUSTICE VAN DEUSEN

text:
    WALTER B. KRYCH, d/b/a W.B.K. Real Estate, Plaintiff-Appellant, v. THE VILLAGE OF BURR RIDGE et al., Defendants-Appellees.
    Second District
    No. 82—160
    Opinion filed December 29, 1982.
    Rehearing denied February 3, 1983.
    Irving B. Campbell and Joseph M. Carrobotta, both of Stitt, Moore & Lennon, of Rolling Meadows, for appellant.
    Klein, Thorpe & Jenkins, Ltd., of Chicago, for appellees.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

Walter B. Krych, plaintiff and counterdefendant, appeals from a judgment entered in the circuit court of Du Page County on July 14, 1981, in favor of the village of Burr Ridge and Gus Zissimopoulos, Building Commissioner for the village of Burr Ridge, defendants and counterplaintiffs.

Krych owns a vacant lot in the village of Burr Ridge which he leased to Braemoor Associates, in 1971. Shortly thereafter, Braemoor applied for a permit from the village to erect a sign on the vacant lot. There is no evidence in the record that a permit actually issued, but there is evidence that the village clerk accepted $144 from Braemoor as tendered payment for a sign permit. In a letter dated July 6, 1981, however, the building commissioner for the village expressly denied Braemoor’s request for a sign permit.

Subsequently, Braemoor erected a ground sign on the lot. The sign had a surface area of 240 square feet, was approximately 18 feet, 10 inches above street level, and had a plywood surface facing.

Until 1978, the sign was maintained by Braemoor and advertised the sale of offsite Braemoor properties. In 1978, Braemoor informed Krych that it no longer had a use for the sign. In May 1978, Krych repainted the sign and changed the message on the sign. The new message advertised his offsite real estate office and the sale of real estate including the vacant lot upon which the sign was located. Krych failed to obtain either a permit from or the approval of the village when making the changes.

In early 1979, the village building commissioner called Krych and informed him that the sign violated Burr Ridge Ordinance 151. On April 14, 1979, Krych received a citation in which the village asserted that he violated section 12 of Ordinance 151 by altering an existing sign and refusing to remove the nonconforming sign within the specified time. On July 26, 1979, Krych filed a two-count complaint in the circuit court. In count I, he asked the court to declare unconstitutional sections 12, 20, 21 and 27 of Burr Ridge Ordinance 151 and enjoin the village from enforcing any part of the ordinance against him. Count II requested that a writ of mandamus issue ordering the defendants to issue a sign permit to him.

In January 1980, the defendants filed a counterclaim against Krych alleging that he violated section 4L of the Burr Ridge Ordinance 151 by altering the sign without a permit to do so; that the sign violated section 20 of the ordinance by having combustible plywood surfacing; and that the sign violated section 21 of the ordinance by having a surface area of 240 square feet and by being 18 feet, 10 inches above street level. The village sought enforcement of these ordinance provisions.

Following a bench trial, the trial court entered an order on July 14, 1981, finding that Krych violated the ordinance in question by altering the sign without obtaining a permit; that Krych violated section 12 of the ordinance which prohibits off-premises advertising; that section 12 is constitutional and that Krych’s sign violates the size, height and construction limitations of the ordinance.

Section 12 of the village of Burr Ridge Ordinance 151 states:

“Any sign which no longer advertises a bona fide business conducted, or a product sold on the premises where said sign is located, shall be taken down and removed by the owner, agent, or person having the beneficial use of the building or structure upon which such sign may be found, within ten days after written notification from the building commissioner, and, upon failure to comply with such notice within the time specified in such order, the building commissioner is hereby authorized to cause removal of such sign and any expense attendant thereto shall be paid by the owner of the building or structure to which such sign is attached.”

At the trial court level, Krych argued that this section is unconstitutional in that it allows onsite commercial messages but bans offsite commercial message.

On appeal, Krych does not attempt to argue that the village ordinance unconstitutionally restricts offsite commercial speech. Krych now asserts for the first time that the ordinance is unconstitutional because it permits some onsite commercial signs, but prohibits all noncommercial signs. This, he now urges, constitutes a violation of his rights of communication under the first amendment of the Federal Constitution. In this matter, the parties filed a written stipulation, just prior to trial, advising the court of the nature of the issues between the parties. Neither in the stipulation nor elsewhere, including his post-trial motion, did Krych raise the issue of whether the ordinance in question violated the first amendment of the Federal Constitution in that it prohibits noncommercial speech or communication.

“It has frequently been held that the theory upon which a case is tried in the lower court cannot be changed on review, and that an issue not presented to or considered by the trial court cannot be raised for the first time on review.” (Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147.) This rule is applicable to constitutional issues. (City of Chicago v. Shell Oil Co. (1963), 29 Ill. 2d 136, 139.) Where a constitutional argument is neither pleaded nor proved, this court need not consider it further. (Ambroiggio v. Board of Education (1981), 101 Ill. App. 3d 187, 190-91.) In this case, it appears that Krych had neither pleaded nor proved that the ordinance unconstitutionally restricts noncommercial speech. Because Krych also failed to raise the issue in the trial court, he cannot now assert it on appeal.

Krych also contends that Ordinance 151 is invalid because it delegates to the building commissioner the power to refuse a sign permit if he is not satisfied that a proposed sign advertises “a bona fide business conducted or a product sold on the premises where said sign is located.” Krych has neither pleaded nor proved any facts in support of this theory. Because this theory was never raised in the trial court, it too has not been preserved for review. See Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147.

As his next issue, Krych asserts that Burr Ridge has not pleaded or proved that the size limitation of 120 square feet for permissible signs represents a substantial governmental interest, directly advances that interest, and goes no further than is necessary to accomplish that objective. Section 21 of the ordinance establishes size limitations for ground signs to be erected in Burr Ridge. It provides that no ground signs shall be greater than 16 feet above street level or ground level and that no ground sign shall have a surface area exceeding 120 square feet.

In Metromedia, Inc. v. City of San Diego (1981), 453 U.S. 490, 517, 69 L. Ed. 2d 800, 820-21, 101 S. Ct. 2882, 2897, the United States Supreme Court recognized that a city has a legitimate interest in regulating the noncommunicative aspects of a medium of expression. Illinois has long recognized that municipalities have the power and authority to reasonably regulate the construction of billboards. (Thomas Cusack Co. v. City of Chicago (1914), 267 Ill. 344, 347, aff’d (1917), 242 U.S. 526, 61 L. Ed. 472, 37 S. Ct. 190; City of Chicago v. Gunning System (1905), 214 Ill. 628, 639.) In Cusack the court stated:

“No argument need be advanced that the structures described in the bill before us may become a menace to the safety of the public, and hence the subject of control and regulation. They may be erected in such a manner as to be dangerous to the public by falling or being blown down, or constructed of such materials and dimensions as to be dangerous, or placed upon buildings or other structures in such a manner as to endanger the life and limb of the citizen, or erected within the fire limits in such proximity to buildings as to increase the danger of loss by fire, or so as to obstruct the view of railroad crossings and thus endanger life by accident ***.” (267 Ill. 344, 348.)

Burr Ridge also has express statutory authority to regulate and control signs located on vacant property within the village boundaries. Ill. Rev. Stat. 1981, ch. 24, par. 11 — 80—15.

Moreover, numerous cases have sustained ordinances which reasonably limit the size and construction of signs. (People ex rel. Herman Armanetti, Inc. v. City of Chicago (1953), 415 Ill. 165 (validating an ordinance which prohibited signs exceeding 75 square feet from projecting over public property); McGuire v. Purcell (1955), 7 Ill. App. 2d 407 (upholding an ordinance prohibiting signs larger than one square foot in a residential neighborhood); Paulus v. Smith (1966), 70 Ill. App. 2d 97 (upholding an ordinance prohibiting signs within 400 feet of center line of expressway); Rent-a-Sign v. City of Rockford (1980), 85 Ill. App. 3d 453 (upholding an ordinance regulating the use of lights on mobile signs); City of Champaign v. Kroger Co. (1980), 88 Ill. App. 3d 498 (upholding an ordinance which limited free standing signs to a height of 20 feet and an area of 50 square feet).) In these cases, the ordinances were upheld because they reasonably furthered a legitimate governmental interest in the health and safety of the public, as well as the aesthetic concerns of the government.

In those cases, however, the sign owners did not assert, as Krych attempts to do here, that the size limitations are an infringement on his first amendment rights under the Federal Constitution, as well as an invalid exercise of the village’s police power. In Consolidated Edison Co. v. Public Service Com. (1980), 447 U.S. 530, 65 L. Ed. 2d 319, 100 S. Ct. 2326, the Supreme Court invalidated a regulation which prohibited the inclusion in monthly electric bills of inserts discussing controversial issues of public policy. While the court invalidated the regulation, it also recognized the validity of reasonable time, place or manner regulations that serve a significant governmental interest and leave ample alternative channels for communication. (447 U.S. 530, 535, 65 L. Ed. 2d 319, 326, 100 S. Ct. 2326, 2332; see also Linmark Associates, Inc. v. Township of Willingboro (1977), 431 U.S. 85, 93, 52 L. Ed. 2d 155, 162, 97 S. Ct. 1614, 1618.) The essence of time, place or manner regulation lies in the recognition that various methods of speech, regardless of their content, may frustrate legitimate governmental goals; therefore, a restriction that regulates the time, place or manner of speech may be imposed so long as it is reasonable. Consolidated Edison Co. v. Public Service Com. (1980), 447 U.S. 530, 536, 65 L. Ed. 2d 319, 327, 100 S. Ct. 2326, 2332.

Because the section of the ordinance which limits the size of signs is “content neutral” and regulates only the manner in which a message is conveyed, the section appears to be a time, place or manner regulation of speech. (Erznoznik v. City of Jacksonville (1975), 422 U.S. 205, 209, 45 L. Ed. 2d 125, 130, 95 S. Ct. 2268, 2272.) These size and height limitations seem to further a legitimate governmental interest. (Thomas Cusack Co. v. City of Chicago (1914), 267 Ill. 344, 347.) Therefore, the limitations will be valid as long as they are reasonable. (Consolidated Edison Co. v. Public Service Com. (1980), 447 U.S. 530, 536, 65 L. Ed. 2d 319, 327, 100 S. Ct. 2326, 2332.) In light of the previously cited Illinois cases, the size limitations of the Burr Ridge ordinance appear to be reasonable and in furtherance of the legitimate governmental interest in the health, safety and welfare of the public. The trial court’s implicit finding that such is true in this case is not against the manifest weight of the evidence.

We have also carefully considered the final contention of Krych that the village is estopped from enforcing the ordinance against him and find it to be without merit. Compare O’Laughlin v. City of Chicago (1976), 65 Ill. 2d 183, with Cities Service Oil Co. v. City of Des Plaines (1961), 21 Ill. 2d 157.

The judgment of the trial court is affirmed.

Affirmed.

SEIDENFELD, P.J., and LHSfDBERG, J., concur.


author: JUSTICE REINHARD

text:
    O.K. ELECTRIC COMPANY, INC., Plaintiff-Appellant, v. FRANK FERNANDES, d/b/a Creative Home Builders, Defendant-Appellee.
    Second District
    No. 82—276
    Opinion filed December 30, 1982.

      Donald J. Hennessy, Brien J. Nagle, and Kathleen C. West, all of Nadelhoffer, Hennessy, Dommermuth & Brestal, of Naperville, for appellant.
    Gary L. Taylor, of Rathje, Woodward, Dyer & Burt, of Wheaton, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff O.K. Electric Company, Inc. (O.K. Electric) appeals from an order entered February 4, 1982, dismissing Frank Fernandes, dlbl a Creative Home Builders (Fernandes), as a defendant and substituting T.D.B.J.M., Inc., and from an order entered March 11, 1982, denying its motion to set aside the February 4 order.

O.K. Electric filed an action against Fernandes for breach of contract for electrical services. The complaint alleged in count I that electrical services were performed at various specific locations “at the special insistence and request” of Fernandes for which he promised to pay certain specified sums. The complaint further alleged partial payment and a balance due of $9,273.42. Count II realleged the above transactions, referred to an attached copy of an itemized bill to Creative Home Builders showing a balance due of $9,273.42, alleged that there was an “account stated,” and prayed for relief in the same amount.

Prior to answering, Fernandes filed a motion to dismiss under section 45 of the Civil Practice Act. (Ill. Rev. Stat. 1981, ch. 110, par. 45.) Fernandes alleged that: the complaint failed to allege whether the contract was written or oral; he was not a sole proprietor and did not do business as Creative Home Builders; and therefore there was a misjoinder and misnomer of parties. Fernandes’ accompanying affidavit stated that Creative Home Builders was an assumed name of T.D.B.J.M., Inc., an Illinois corporation, and that he did not individually contract for any of the claimed services. The trial court dismissed Fernandes as a party defendant, ordered T.D.B.J.M., Inc., substituted as a party defendant, and gave T.D.B.J.M., Inc., 14 days to answer.

O.K. Electric, on March 4, 1981, filed a motion to amend the pleadings under section 46 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 46) in order to substitute Fernandes for T.D.B.J.M., Inc., as a defendant. The motion was supported by the affidavit of the president of O.K. Electric which stated that: all invoices had been addressed to Creative Home Builders; he always dealt with Fernandes; he did not deal with T.D.B.J.M., Inc.; he relied solely upon the reputation and credit of Fernandes; and he did not know that Fernandes was purporting to operate his business through a corporation. There is no ruling on this motion in the record.

On March 5, 1981, O.K. Electric then filed a motion pursuant to section 50 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 50) to set aside the prior order and alleged O.K. Electric always did business with Fernandes, never dealt with T.D.B.J.M., Inc., and had no knowledge of such a corporation. The trial court denied this motion on March 11, 1981.

On July 21, 1982, Fernandes filed in this court a motion to dismiss this appeal for lack of jurisdiction contending that the trial court’s orders involved less than all the parties involved in the suit and that the orders did not include the finding “that there [was] no just reason for delaying enforcement or appeal,” as required by Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)). O.K. Electric filed its objection thereto on July 23, 1982, and the motion and objection were ordered to be taken with the case.

Before reaching the merits of this appeal, it is therefore necessary to first resolve Fernandes’ motion to dismiss the appeal. Fernandes argues that an order dismissing an individual defendant while retaining a corporate defendant is not appealable without the Rule 304(a) finding that there is no just reason for delaying enforcement or appeal.

Supreme Court Rule 304(a) provides:

“(a) Judgments As To Fewer Than All Parties or Claims — Necessity for Special Finding. If multiple parties or multiple claims for relief are involved in an action, an appeal may. be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. Such a finding may be made at the time of the entry of the judgment or thereafter on the court’s own motion or on motion of any party. The time for filing the notice of appeal shall run from the entry of the required finding. In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.” 87 Ill. 2d R. 304(a).

It is well established that where there is a judgment as to fewer than all parties or claims, the absence of a finding that there is no just reason for delaying enforcement or appeal, leaves the judgment unenforceable and unappealable. (Van Slambrouck v. Marshall Field & Co. (1981), 98 Ill. App. 3d 485, 488, 424 N.E.2d 679; Blanchette v. Martell (1977), 52 Ill. App. 3d 1029, 1030-31, 368 N.E.2d 458; Reed v. City of Belleville (1973), 13 Ill. App. 3d 1093, 1094, 301 N.E.2d 838.) However, here there were but two parties when Fernandes filed his motion to dismiss and argued the motion. The order dismissing Fernandes as a party to the lawsuit effectively terminated the litigation between the parties, thereby becoming a final judgment which determined absolutely their respective rights in the lawsuit. (See Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 119, 382 N.E.2d 1217.) The trial court’s further order substituting T.D.B.J.M., Inc., a corporation, as a party defendant, apparently based upon a motion under section 45 which had attached to it Fernandes’ affidavit that he did not individually contract with O.K. Electric, does not operate to make this a suit involving multiple parties within the purpose of Rule 304(a) under these particular circumstances. The motion to dismiss the appeal is denied.

Turning to the merits of this appeal, we observe that O.K. Electric has raised several grounds for reversal of the trial court’s dismissal of Fernandes on his motion made pursuant to section 45. However, Fernandes in his appellate brief has expressly chosen to address in support of the trial court’s order only the issue of whether the complaint failed to state a cause of action, and has therefore waived our consideration of the apparent basis on which the trial court dismissed the action against Fernandes, i.e., that Fernandes did not contract individually with O.K. Electric as sworn to in his affidavit attached to his section 45 motion. We therefore do not consider that basis for the dismissal of Fernandes other than to point out that a trial court may not consider affidavits in ruling on a motion to dismiss made pursuant to section 45. Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 406, 312 N.E.2d 605; Johnson v. Nationwide Business Forms, Inc. (1976), 41 Ill. App. 3d 128, 131, 359 N.E.2d 171.

In the court below, the only allegation in Fernandes’ section 45 motion to dismiss relating to the legal sufficiency of the complaint was the assertion that the complaint “fails to allege whether the purported contract is written or oral.” Fernandes has not cited us any direct authority to support this ground for dismissal nor do we find this argument has any merit. Unless the complaint purported to be based upon a written instrument, it is assumed to be an oral contract. (See Barnes v. Peoples Gas Light & Coke Co. (1968), 103 Ill. App. 2d 425, 428, 243 N.E.2d 855.) The only pleading requirement in this respect is that if a claim or defense is founded upon a written instrument, a copy thereof must be attached to the pleading as an exhibit or recited therein. Ill. Rev. Stat. 1981, ch. 110, par. 36; Camp Creek Duck Farm, Inc. v. Shell Oil Co. (1981), 103 Ill. App. 3d 81, 86, 430 N. E.2d 385; Plocar v. Dunkin’ Donuts of America, Inc. (1981), 103 Ill. App. 3d 740, 749, 431 N.E.2d 1175.

Failing to specify any other basis for the insufficiency of the complaint, Fernandes on appeal may not raise new grounds in support of his motion to dismiss since this would deny O.K. Electric the opportunity to cure a defect by amendment in the trial court. (Dubin v. Michael Reese Hospital & Medical Center (1979), 74 Ill. App. 3d 932, 946, 393 N.E.2d 588, rev’d on other grounds (1980), 83 Ill. 2d 277, 415 N.E.2d 350.) However, from our examination of count I of O. K. Electric’s complaint we find it states a cause of action for breach of contract against Fernandes by alleging sufficient facts to establish the existence of a contract, performance of all conditions by O.K. Electric, a breach by Fernandes, and damages as a consequence. (See Thilman & Co. v. Esposito (1980), 87 Ill. App. 3d 289, 296, 408 N.E.2d 1014.) It appears from Fernandes’ brief that he also maintains that count II is legally insufficient because an attached exhibit of a bill for services was sent to “Creative Homes Builders c/o Night Sounds,” which Fernandes contends conflicts with other allegations of the complaint which allege a contract with Frank Fernandes d/b/a Creative Home Builders. This argument was not raised in the section 45 motion to dismiss and cannot be raised for the first time on appeal. (Dubin v. Michael Reese Hospital & Medical Center.) Nonetheless, we find the exhibit and the allegations do not directly conflict and that the count is legally sufficient.

For the foregoing reasons, we reverse the judgment of dismissal of the circuit court of Du Page County and remand for further proceedings.

Reversed and remanded.

VAN DEUSEN and NASH, JJ., concur.