author: PRESIDING JUSTICE STOUDER JUSTICE BARRY,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARTIN RAY WILLIAMS, Defendant-Appellant.
    Third District
    No. 82—401
    Opinion filed September 7, 1983.
    Rehearing denied January 19, 1984.

      BARRY, J., dissenting.
    Robert Agostinelli and Pamela Peters, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Vicki R. Wright, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Martin Ray Williams, appeals from his conviction of armed robbery and murder. The sole issue on appeal is whether the court erred in ruling that the testimony of a proposed witness was inadmissible hearsay.

The defendant was convicted on the basis of his accountability for the actions of Donald Grant. Grant was convicted of the 1976 killing of a security guard at the Red Fox store during his armed robbery of the store. The State established during-the defendant’s trial that the defendant drove Grant to the Red Fox on the day of the shooting. The defendant knew that Grant was carrying the gun on this day. The defendant saw Grant load the gun immediately prior to Grant’s entry into the Red Fox store. There was conflicting evidence, however, as to whether the defendant waited outside the store for Grant or drove away immediately after Grant left the car.

Gladys Underwood was Grant’s girlfriend. She testified at Grant’s trial that Grant admitted to her that he had shot the security guard. The defendant sought to have Underwood testify during his trial as to the substance of the conversation between Grant and Underwood. Underwood would have testified that Grant never mentioned that the defendant participated in the robbery or shooting. She would also have testified that Grant stated that the shooting was the result of a dispute between himself and the security guard. This evidence, according to the defendant, would have negated any inference of a common plan or scheme between Grant and the defendant in committing the armed robbery and murder. The defendant contended that Grant’s statements were admissible, despite being hearsay evidence, as a declaration against penal interest.

During the argument before the trial court on the admissibility of Underwood’s testimony, counsel for the defendant avowed that Underwood would testify that Grant’s statements were made to her shortly after the shooting occurred. The State avowed that Underwood would testify that she was unsure of when Grant spoke to her and that Grant’s admission might have been made two or three days after the shooting. Following further discussion, the trial court held that Underwood’s testimony was inadmissible because of the amount of time which had elapsed between the shooting and the admission by Grant, and because of the ambiguity of Grant’s statement. It is from this ruling that the defendant appeals.

The principles of law relevant to the admissibility in criminal prosecutions of hearsay declarations against penal interest are set forth in Chambers v. Mississippi (1973), 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038. The court in Chambers recognized that a witness may testify to a declaration against penal interest made by a third party which exculpates a defendant, even though it violates the hearsay rule, when sufficient indicia of reliability are present. The court utilized four factors in determining the reliability of such out-of-court statements: (1) the statement must be made to a close acquaintance shortly after the crime occurred; (2) the statement must be corroborated by other evidence; (3) the statement must be against the declarant’s interest; and (4) the declarant is available for cross-examination. (410 U.S. 284, 300, 35 L. Ed. 2d 297, 312, 93 S. Ct. 1038, 1048.) The Illinois Supreme Court adopted the Chambers analysis in People v. Craven (1973), 54 Ill. 2d 419, 299 N.E.2d 1.

In the instant case, the second, third and fourth factors are present. Grant’s statement was clearly corroborated by other evidence. The statement was also clearly against his interest. Grant himself was in custody and therefore was available for cross-examination, although a grant of immunity for these proceedings might have been necessary. A question remains, however, as to whether the time element of the first factor is satisfied.

As noted earlier, the lower court was presented with conflicting avowals by the State and the defendant’s attorney. The court’s decision was complicated further by the fact that Underwood was attempting to avoid testifying at trial. She failed to appear in court on the morning she was to testify, despite the fact that a writ of attachment had been issued for her. Underwood was therefore unavailable to clarify at what time Grant’s declaration was made when the court determined the admissibility of her testimony. Finally, the arguments of counsel were directed primarily to admissibility of the testimony under the “excited utterance” exception to the hearsay rule. The “declaration against interest” exception to the hearsay rule, although raised, was never fully addressed by the court or counsel.

The defendant incorrectly argues that the discrepancy in the evidence as to the time at which Grant’s statement was made goes only to Underwood’s credibility and not the admissibility of Underwood’s testimony. The trial court was required, under the Chambers analysis, to determine whether the declaration was made “shortly after the crime occurred” in order to determine whether Underwood’s testimony was sufficiently reliable so that it would be admissible as an exception to the hearsay rule. A decision as to the time of the declaration was critical to the court’s determination of the admissibility of Underwood’s testimony.

Unfortunately, the lower court was presented only with conflicting avowals as evidence of the timing of Grant’s declaration. This court has noted that the four-part test set forth in Chambers is a barrier to those hearsay declarations which might result in a compromise of the integrity of the fact-finding process of the courts. (People v. Foster (1978), 66 Ill. App. 3d 292, 383 N.E.2d 788.) It was incumbent upon the defendant to satisfy the Chambers test and establish the reliability of Grant’s declaration. The defendant failed to do this.

The facts of the instant case demonstrate, however, that the defendant was not afforded a full opportunity to present evidence establishing the four factors set forth in Chambers. The issue of the admissibility of Underwood’s testimony arose in connection with a request by the defendant that the court institute further proceedings to compel Underwood’s attendance at trial. The court based its decision as to what procedures would be instituted against Underwood on the admissibility of her trial testimony. It is clear that Underwood’s presence was itself necessary in order for the trial court to determine the admissibility of her testimony. Instead, the issue of admissibility was decided before the court determined what proceedings would be instituted against Underwood. The court was thereby forced to resolve the issue of admissibility on the basis of the avowals by counsel, rather than the statements of Underwood herself. Due to the absence of Underwood and the confusion during argument by counsel as to the basis for the admissibility of the contents of Underwood’s testimony, evidence directly establishing the time of Grant’s declaration to Underwood was never tendered.

We believe that the defendant should have an opportunity to demonstrate that Underwood should have been allowed to testify as to Grant’s declaration. The defendant should have been granted whatever process was necessary to compel her attendance. For this reason, we affirm the judgment of the lower court but remand the cause for proceedings in which the defendant will have an opportunity to present additional evidence establishing that the proposed testimony by Underwood was admissible.

The judgment of the circuit court of Peoria County is affirmed and the cause is remanded for further proceedings consistent with this opinion. If on remand it is determined that Underwood’s testimony was improperly excluded, the defendant will be granted a new trial. If no error is found in the court’s exclusion of Underwood’s testimony, the judgment of the circuit court remains in full force and effect.

Affirmed and remanded.

SCOTT, J., concurs.

JUSTICE BARRY,

dissenting:

While I generally subscribe to the majority’s analysis of the issue presented by this case, I cannot agree with my colleagues’ disposition of the cause. In my opinion, the majority’s failure to bridge the gap between the possible commission of an evidentiary error and the granting of a new trial constitutes a fatal flaw in an otherwise well-reasoned discussion of Chambers as it applies to these facts.

I do not find reversible error on these unique facts even if it could be established that Underwood’s testimony was admissible under the Chambers test. The error in excluding it was, I believe, harmless beyond a reasonable doubt. Underwood’s testimony, even if it were totally consistent with what defense counsel avowed it would be, would have added little, if anything of substance, beyond what had been admitted at trial through the testimony of defense witness, Frank Bell.

Bell had worked with the defendant at the “Cozy Comer” nightclub the evening of May 24, 1976. In the early morning after work, the defendant drove Bell home and the two arranged to go fishing along with Grant later that morning. According to Bell, on their way to the fishing hole a radio bulletin was aired concerning the shooting of a security guard at the Red Fox. Bell said that at that time Grant stated that he had shot the guard. Bell’s testimony, like Underwood’s, tended to support the defendant’s theory that Grant’s failure to discuss the defendant’s participation thereby negated the defendant’s guilt by accountability. The jury’s verdict of guilty establishes that the jurors did not embrace the defendant’s theory as supported by Bell’s testimony. The jury was entitled to reject the defendant’s theory.

Having reviewed the record before us, I am convinced that the totality of the evidence of the defendant’s participation and guilt was overwhelming. The parties are well-acquainted with the facts and they need not be repeated here. Suffice it to say that even if the anticipated omitted testimony were presented to the finder of fact, the defendant’s guilt would still be proved beyond a reasonable doubt.

I see no reason to perpetuate this cause by conducting further post-trial proceedings which would not, in any event, alter the outcome. I would affirm the defendant’s conviction. For the foregoing reasons, I respectfully dissent.


source: Caselaw Access Project

author: JUSTICE BARRY

license: Public Domain

text:
    SALLY A. KYROUAC, Plaintiff-Appellant, v. TIMOTHY BROCKMAN et al., Defendants-Appellees.
    Third District
    No. 82—884
    Opinion filed December 14, 1983.
    Rehearing denied January 19, 1984.

      Paul E. Root, of Gomien, Root and Masching, and Robert H. Adcock, Ltd., both of Morris, for appellant.
    George R. Black, of Black and Black, of Morris, for appellees.
   JUSTICE BARRY

delivered the opinion of the court:

This is an appeal by the plaintiff, Sally Kyrouac, from a jury verdict in the circuit court of Grundy County in favor of the defendants, Timothy Brockman and G-W Communications.

The incident out of which this personal injury action arose occurred on December 7, 1977, shortly after 7 a.m. The plaintiff was driving to work, heading east, on the Pine Bluff-Lorenzo two-lane road. "When the plaintiff was approximately one mile east of the intersection of the Pine Bluff-Lorenzo Road and the Dresden Road, the vehicle she was driving was struck by a vehicle driven by the defendant in a westerly direction.

There is no dispute that the defendant’s vehicle struck the plaintiff’s vehicle in her eastbound lane and that no part of the plaintiff’s vehicle was in the westbound lane. The question is whether the trial court erred in denying plaintiff’s motion for a judgment n.o.v. after the court had directed a verdict in favor of the plaintiff on the issue of the plaintiff’s negligence.

At trial, the plaintiff testified that on the morning of the accident she was on her way to work from her home at Goose Lake. She indicated that there was snow on both of the shoulders of the Pine Bluff-Lorenzo Road but that she did not remember encountering any ice or snow on the road itself. She testified that, at the time of the accident, she was driving about 35 miles per hour. Her vehicle was struck by the defendant’s vehicle approximately one mile from the four-way stop at the Dresden Road.

The plaintiff indicated that hers was the lead car in the eastbound line of cars and that westbound there was a steady stream of traffic. It appeared to her that the westbound lane was traveling faster than she was. The plaintiff further indicated that it was daylight on a typical winter day and that nothing out of the ordinary had occurred which would bring the road surface to her attention.

Prior to the collision, the plaintiff did not notice anyone having problems driving on the road, e.g., fishtailing. She indicated that two or three seconds elapsed from the time the defendant’s car left its lane and collided with hers. She slammed on the brakes and put her hand over her face. At the time of impact no portion of her car was in the defendant’s lane; his entire car was in her lane.

It was stipulated at trial that on the day of the occurrence, December 7, 1977, the defendant, Timothy Brockman, was an ‘employee of the defendant, G-W Communications, Inc., acting within the scope of his employment. The defendant, Timothy Brockman, testified that on the day of the accident he was on his way to Ottawa in connection with his employment and that he was driving a 1978 Chevette belonging to someone else. He was familiar with the car, however, having driven it before. The defendant testified that after he passed County Line Road, he saw a white van in front of him fishtail. When he saw the van fishtail, he took his foot off the accelerator but he did not apply his brakes at all before the collision.

According to the defendant, the accident occurred less than a mile west of County Line Road. The visibility was clear. Prior to reaching County Line Road, the defendant did not observe any vehicle fishtailing on the road. He indicated that prior to the accident he had encountered just small patches of ice, “nothing to really amount to anything.”

On cross-examination, the defendant indicated that he took his foot off the accelerator approximately one second before he started to skid. He did not see a patch of ice there; rather, he assumed that there was a patch of ice because the van in front of him had fishtailed. The van did not go into the other lane, however.

Both sides agree that the well-known Pedricic standard is the measure to be applied to the question before us. In Pedricic, the Illinois Supreme Court articulated the standard as follows:

“In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.

In essence, the plaintiff’s argument is that, once it has been unequivocally established that the accident occurred when the plaintiff’s vehicle was entirely in its own lane, the burden then shifts to the defendant to provide some explanation for the accident other than his own negligence. In support of her position, the plaintiff points to Sug-hero v. Jewel Tea Co. (1967), 37 Ill. 2d 240, 242, 226 N.E.2d 28, 29, in which the court determined that once the plaintiff had shown that the defendant’s vehicle was on the wrong side of the road and out of control, the defendant had “the duty of showing it was there for some reason other than his own negligence(Emphasis added.)

In Sughero, the trial court had directed a verdict in favor of the plaintiff. The court noted that the defendant’s only explanation for his skidding was that he made an abrupt stop on wet asphalt because of the quick stop of the cars in front of him. According to the court, the fact that the vehicles in front of the defendant were able to stop safely within their own lane of traffic indicates that the defendant did not have his vehicle under proper control. Sughero v. Jewel Tea Co. (1967), 37 Ill. 2d 240, 242, 226 N.E.2d 28, 29.

Also in support of her position, the plaintiff points to Calvetti v. Seipp (1967), 37 Ill. 2d 596, 227 N.E.2d 758, a case which factually is strikingly similar to the instant case. In Calvetti, the defendant’s car was proceeding down a slight slope at about 25 miles per hour. As it approached the plaintiff’s vehicle coming from the opposite direction, it went into a skid, ending in the plaintiff’s lane of traffic. Plaintiff’s vehicle was entirely in its own lane when the accident occurred.

In Calvetti, the trial court denied the plaintiff’s motion for a directed verdict and the jury returned a verdict in favor of the defendant. The court then denied the plaintiff’s motion for judgment notwithstanding the verdict. In ruling that the trial court had erred in denying plaintiff’s motion, the court noted that the defendant had “offered no explanation of the cause of the skid, other than the presence of ice on the pavement.” (Calvetti v. Seipp (1967), 37 Ill. 2d 596, 598, 227 N.E.2d 758, 760.) In reaching its decision, the court observed that the defendant had made no effort to show that she was not driving too fast for road and weather conditions, or that some unavoidable event caused her to lose control. The court concluded:

“The fact that her car skidded in front of the one in which plaintiff was riding must be deemed to have arisen from some negligent act or omission, in the absence of explanation to the contrary.” Calvetti v. Seipp (1967), 37 Ill. 2d 596, 598, 227 N.E.2d 758, 760.

In reply, the defendant concedes that, once the evidence has demonstrated that he entered the plaintiff’s lane of traffic, the burden of going forward then shifts to him. The defendant suggests that he has met his burden. He fails to specify precisely how he has done so, however.

In support of his position, the defendant seeks to rely on Wolfe v. Whipple (1969), 112 Ill. App. 2d 255, 251 N.E.2d 77. That case is clearly different than the case now before the court, however.

In Wolfe v. Whipple, the plaintiff was a police officer who had pulled his stalled vehicle partly off the road. The defendant was approaching from the opposite direction when he spotted the police car "with its red light flashing, slammed on his brakes, and skidded across the road on the wet pavement into the police car. The trial court directed a verdict for the plaintiff at the close of all the evidence. We reversed because there was evidence that the defendant applied his brakes in an alarm reaction to the flashing, oscillating light, viewed when the defendant was one second away from the police car and not visible to the defendant before that time. (Wolfe v. Whipple (1969), 112 Ill. App. 2d 255, 251 N.E.2d 77.) In contrast to the instant case, the defendant in Whipple met his burden of providing an explanation for the skidding of his car into the other lane.

We find no such explanation provided by the defendant here. The uncontroverted facts are that the impact occurred when the plaintiff’s vehicle was entirely within its own lane of traffic. The assumed presence of a patch of ice fails to adequately explain or excuse the defendant’s action. Calvetti v. Seipp (1967), 37 Ill. 2d 596, 227 N.E.2d 758.

We thus find it necessary to reverse and remand this cause to the circuit court of Grundy County with directions to enter a judgment notwithstanding the verdict in favor of the plaintiff and to grant the parties a new trial on the issue of damages only.

Reversed and remanded.

STOUDER, P.J., and ALLOY, J., concur.


author: PRESIDING JUSTICE McNAMARA

text:
    AUDITION DIVISION, LTD., Plaintiff-Appellant, v. BETTER BUSINESS BUREAU OF METROPOLITAN CHICAGO, INC., et al., Defendants-Appellees.
    First District (3rd Division)
    No. 82—1524
    Opinion filed December 14, 1983.

      Martin & Karcazes, Ltd., of Chicago (George D. Karcazes and Michael S. Holzman, of counsel), for appellant.
    Reuben & Proctor, of Chicago (Lawrence Gunnels, Samuel Fifer, and Barry Ginsberg, of counsel), for appellees.
   PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Audition Division, Ltd., brought this action against defendants seeking money damages for libel and tortious interference with existing and prospective contracts. The trial court granted summary judgment in favor of defendants, and plaintiff appeals.

Plaintiff is a talent and modeling agency for children and adults. Prospective models or their parents forward applications to plaintiff for its review. Following this initial screening, the prospective models are called in for a video-taped audition. If the audition is successful, plaintiff attempts to contract with the model for a three-year period to refer video and audio tapes, as well as photographs, to the Geddes Agency. Plaintiff charges a set fee for its referral services. Geddes handles all placements, and both plaintiff and Geddes receive a 10% fee from all individuals who receive modeling jobs.

Defendant Better Business Bureau (BBB) is a not-for-profit corporation which, according to its policy manual, “promotes truth in advertising and selling; maintains an impartial attitude towards firms and individuals; and is dedicated to the building and preservation of public confidence in legitimate business.” BBB provides verbal and written information to consumers on its member companies. It also acts as a clearinghouse for complaints regarding its members. Plaintiff became a member of BBB in 1974 and continued its membership until 1978 when the present action was filed. The remaining defendants are officers and employees of BBB.

The action here is based on six separate reports sent by BBB to consumers about plaintiff starting in February 1976. After a considerable amount of discovery, defendants filed a motion for summary judgment on November 25, 1981. Numerous affidavits, exhibits and depositions were filed. On May 4, 1982, after reviewing the record and hearing arguments, the trial court issued a written memorandum of law in support of its order granting summary judgment to defendants on all counts.

Summary judgment is proper where there is no genuine issue of material fact. (Carruthers v. B. C. Christopher & Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457; Cuthbert v. Stempin (1979), 78 Ill. App. 3d 562, 396 N.E.2d 1197.) The evidence is construed strictly against the movant and liberally in favor of the opponent. (Lumbermens Mutual Casualty Co. v. Poths (1968), 104 Ill. App. 2d 80, 243 N.E.2d 40.) Summary judgment is a procedure to be encouraged to avoid the unnecessary expense of trial. (Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc (1979), 71 Ill. App. 3d 562, 390 N.E.2d 60.) Yet, the right of the movant to summary judgment must be free and clear from doubt. (Cuthbert v. Stempin (1979), 78 Ill. App. 3d 562, 396 N.E.2d 1197.)' The trial court’s determination will not be reversed unless an abuse of discretion is shown such that a party’s right to fundamental justice is violated. Chandler v. Jet Air Freight, Inc. (1977), 54 Ill. App. 3d 1005, 370 N.E.2d 95.

Plaintiff first argues that the BBB reports constitute libel per se. The determination of whether a writing is libelous per se is one of law. (Von Solbrig Memorial Hospital v. Licata (1973), 15 Ill. App. 3d 1025, 305 N.E.2d 252.) Malice and damages are presumed. (Newell v. Field Enterprises, Inc. (1980), 91 Ill. App. 3d 735, 415 N.E.2d 434.) In order to be libelous per se, where the plaintiff is a corporation, the writing must assail the corporation’s financial or business methods or accuse it of fraud or mismanagement. Vee See Construction Co. v. Jensen & Halstad, Ltd. (1979), 79 Ill. App. 3d 1084, 399 N.E.2d 278; Garber-Pierre Food Products, Inc. v. Crooks (1979), 78 Ill. App. 3d 356, 397 N. E.2d 211.

The BBB reports must be read in their entirety stripped of innuendo, the meaning taken not only from the words but also from the context of the statement. (Rasky v. Columbia Broadcasting System, Inc. (1981), 103 Ill. App. 3d 577, 431 N.E.2d 1055.) The BBB reports contain information on plaintiff, in part supplied by plaintiff itself. The reports indicate when plaintiff was incorporated, the names of its officers, the nature of its business, and the fact that a large number of inquiries have been made about plaintiff. The reports point out provisions in plaintiff’s contract that plaintiff and Geddes both receive a 10% fee on all placements and that placement is not guaranteed. The reports also include a description of the number and types of com_plaints received within a particular period and their resolution, if any. Several of the reports state that parents should read and understand the contract before signing. Beginning with the January 1980 report, BBB also notified consumers that it had been sued by plaintiff.

Plaintiff contends that the reports falsely describe its business operations and communicate to the reader that plaintiff resorts to dishonest methods of soliciting clients. Plaintiff points to a series of statements in the reports which are libelous, among them misquoted prices, statements that plaintiff does not see children prior to audition when it does do so, that plaintiff does not place children in television commercials when Geddes does handle such placements, that plaintiff pressures clients to sign contracts and tells parents that their children have a very good chance of working as a model, and that the information in the reports is supplied by plaintiff leading some readers of the reports to believe that all the information is supplied by plaintiff. Furthermore, plaintiff argues that the reports do not reflect favorable information which it supplied to the BBB.

None of these statements are defamatory on their face. They do not accuse plaintiff of fraud or mistake or impugn its business integrity. Words which are critical are not necessarily actionable. (Garber Pierre Food Products, Inc. v. Crooks (1979), 78 Ill. App. 3d 356, 397 N.E.2d 211.) Several of the statements are not false. Plaintiff’s president admitted that it solicited clients by mail based on mailing lists which it purchased and that almost always the child had not been seen, and that plaintiff did in fact supply information used'in the reports. It was also undisputed that plaintiff does not make any placements, but merely refers clients to Geddes.

In determining whether a writing is libelous per se, the Illinois courts apply the rule of innocent construction. (John v. Tribune Co. (1962), 24 Ill. 2d 437, 181 N.E.2d 105, cert denied (1962), 371 U.S. 877, 9 L. Ed. 2d 114, 83 S. Ct. 148.) The statements are read as a whole and are given their natural and obvious meaning. (Rasky v. Columbia Broadcasting System, Inc. (1981), 103 Ill. App. 3d 577, 431 N.E.2d 1055.) This preliminary determination is resolved by the court as a matter of law. (Chapski v. Copley Press (1982), 92 Ill. 2d 344, 442 N.E.2d 195.) Previously, the courts had strained to find any innocent construction, but the court in Chapski modified the rule to require a reasonable innocent construction.

The BBB reports are issued to consumers to provide information. The information is conveyed in a straightforward, dispassionate manner. The language of the reports is not obviously and naturally hurtful. (Makis v. Area Publications Corp. (1979), 77 Ill. App. 3d 452, 395 N.E.2d 1185.) The reports here are reasonably capable of innocent construction. As such, plaintiff’s claim of libel per se fails.

Plaintiff also contends that the BBB reports constitute libel per quod. An action for libel per quod is established where a publication not libelous on its face, is rendered defamatory by extrinsic facts or innuendo and special damages are proved. Newell v. Field Enterprises, Inc. (1980), 91 Ill. App. 3d 735, 415 N.E.2d 434; Mitchell v. Peoria Journal-Star, Inc. (1966), 76 Ill. App. 2d 154, 221 N.E.2d 516.

We need not reach the issue of whether plaintiff has proved special damages because plaintiff has not provided extrinsic facts which render the reports defamatory. The reports must be viewed in context, read as a whole with words given their natural and obvious meaning. (Allen v. Ali (1982), 105 Ill. App. 3d 887, 435 N.E.2d 167.) As we have noted, the reports are issued to consumers who specifically inquire about plaintiff. Plaintiff contends that the reports falsely allege that it pressures clients to sign contracts, promises services it does not deliver and does not screen its applications. Plaintiff apparently maintains that the reports as a whole convey to consumers that plaintiff is a fraud and a sham and that consumers should beware. We have already made the determination that the reports on their face do not impugn plaintiff. With its claim that the report conveys that it is a fraudulent business, plaintiff has not pleaded or shown any extrinsic facts which would render the reports libelous per quod. We agree with the trial court that the reports, in a business-consumer context, are not actionable.

Plaintiff also contends that the trial court erred in granting summary judgment for defendants on its claim of tortious interference with contractual relationships.

The elements of tortious interference with existing contracts are: the existence of a valid contract; defendant’s knowledge of the contract; the intentional and malicious inducement of the breach; a subsequent breach; and damages resulting from the breach. (National Educational Advertising Services, Inc. v. Cass Student Advertising, Inc. (N.D. Ill. 1977), 454 F. Supp. 71; Zamouski v. Gerrard (1971), 1 Ill. App. 3d 890, 275 N.E.2d 429.) To establish a claim for tortious interference with a prospective contractual relationship, plaintiff must have a reasonable expectation of entering into a valid business relationship, defendant must know of the expectancy and intentionally and maliciously interfere to defeat the expectancy, and plaintiff must be injured. (American Pet Motels, Inc. v. Chicago Veterinary Medical Association (1982), 106 Ill. App. 3d 626, 435 N.E.2d 1297; Crinkley v. Dow Jones & Co. (1978), 67 Ill. App. 3d 869, 385 N.E.2d 714.) There must be a showing of malice.

Plaintiff has only alleged that defendant Baumhart stated to plaintiff’s president that he would never put anything in the BBB reports to help plaintiff and that BBB continued to issue reports after plaintiff notified it of the adverse effect on plaintiff’s business. Malice is the intent to wrongfully harm someone without just cause. (Clifton-Strode, No. 2, Inc. v. Kent (1982), 110 Ill. App. 3d 525, 442 N.E.2d 666.) Plaintiff’s conclusory allegations that defendants were carrying out a “personal vendetta” to destroy plaintiff are insufficient as a matter of law. (Martin v. Federal Life Insurance Co. (1982), 109 Ill. App. 3d 596, 440 N.E.2d 998.) The trial court properly granted summary judgment on plaintiff’s claim of tortious interference with contractual relationships.

We also find that defendants properly assert their conditional privilege to speak freely in the interest of the public good. (Panter v. Marshall Field & Co. (7th Cir. 1981), 646 E2d 271, cert, denied (1981), 454 U.S. 1092, 70 L. Ed. 2d 631, 102 S. Ct. 658; American Pet Motels, Inc. v. Chicago Veterinary Medical Association (1982), 106 Ill. App. 3d 626, 435 N.E.2d 1297.) In order for the privilege to apply, defendant must have acted in good faith to protect an interest or uphold a duty. The statement must be limited in scope and purpose, and the publication made to proper parties in a proper manner. (Judge v. Rockford Memorial Hospital (1958), 17 Ill. App. 2d 365, 150 N.E.2d 202; see Restatement (Second) of Torts sec. 772 (1979).) Each of these elements is met by BBB in the present case. The reports were released only to consumers specifically requesting them in conformance with BBB’s public service goals. BBB followed its established procedures to verify the information contained in the reports and published them in good faith.

Plaintiff’s reliance on the holding in Antwerp Diamond Exchange of America, Inc. v. Better Business Bureau of Maricopa County, Inc. (1981), 130 Ariz. 523, 637 P.2d 733, where the court reversed an award of summary judgment for defendant, is misplaced. There, plaintiff also alleged that defendant’s reports were libelous and tortiously interfered with plaintiff’s contractual relations. In that case, however, the reports specifically stated that the plaintiff company had been accused of fraud and misrepresentation and was under investigation. Defendant continued publishing the report even after it received notice that a judicial finding had been made that the claims of fraud were without merit. The report was later changed to incorporate a statement that defendant believed that the judge had erred. The contents of the report, defendant’s failure to ascertain the truth, and its possible abuse of its privilege raised questions of fact precluding summary judgment. The reports here were not libelous, and there is nothing to indicate that BBB abused its conditional privilege.

In view of our holding that the reports are not libelous and do not constitute tortious interference with contractual relationships, we need not address the propriety of the trial court’s denial of plaintiff’s request for injunctive relief.

Plaintiff finally contends that the trial court erred in denying its additional requests for discovery.

A trial court has wide discretion in determining the scope of discovery and absent a clear abuse of discretion, the trial court’s decision will not be disturbed. Cohn v. Board of Education (1970), 118 Ill. App. 2d 453, 254 N.E.2d 803.

The record indicates that intensive discovery was conducted over three years. BBB produced copies of complaints and inquiries relating to plaintiff and to other member companies. Plaintiff took depositions of members of BBB’s board of directors, its employees and the officers named as defendants. In its additional discovery request, plaintiff asked for all documents relating to companies with two or more complaints over a certain 18-month period, documents relating to companies on which BBB does not issue a written report, and documents relating to meetings of BBB’s board of directors. Considering the amount of discovery already produced, we agree with the trial court that plaintiff’s request was onerous and involved material not relevant to the case. The request was properly denied.

For the reasons stated, the order of the circuit court of Cook County granting summary judgment to defendants and denying plaintiff’s request for injunctive relief and additional discovery is affirmed.

Order affirmed.

RIZZI and WHITE, JJ., concur.


author: PRESIDING JUSTICE BUCKLEY

text:
    JFS, Plaintiff-Appellee, v. ABMJ, Defendant-Appellant.
    First District (1st Division)
    No. 82—2880
    Opinion filed December 12, 1983.
    Sidney Abelski & Associates, Ltd., of Chicago, for appellant.
    Leonard M. Ring and Associates, of Chicago (Leonard M. Ring and Judith E. Fors, of counsel), for appellee.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

The present appeal arises out of plaintiff’s declaratory judgment action seeking a declaration of nonliability to defendant for the alienation of affections of defendant’s spouse. Defendant appeals from an interlocutory order of the trial court impounding certain court records and prohibiting either party from making public any “pleading filed in this cause nor any discovery papers or transcripts until further order of the court.” We dismiss the appeal for lack of jurisdiction.

Illinois law clearly holds that there can be no appeal from a non-final order unless specifically authorized by the Supreme Court Rules. (Ill. Const. 1970, art. VI, sec. 6; People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167, 171, 429 N.E.2d 483; In re Gomez (1981), 100 Ill. App. 3d 299, 301, 426 N.E.2d 1084.) As a basis for appellate jurisdiction, defendant relies on Supreme Court Rule 307(a)(1) (87 Ill. 2d R. 307(a)(l)), which provides in relevant part that an appeal may be taken from an interlocutory order “granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction.” Defendant contends that the protective order entered below is essentially an injunctive restraint admitting of review under Rule 307. We disagree.

The purpose of Rule 307(a)(1) is to permit, as a matter of right, interlocutory review of the exercise of a court’s equitable power to grant the type of coercive injunctive relief formerly available exclusively in courts of equity jurisdiction. (Lake Shore Racquet Club, Inc. v. Fireman’s Fund Insurance Cos. (1980), 91 Ill. App. 3d 1118, 415 N.E.2d 625; Bohomolec v. Gieblewicz (1971), 3 Ill. App. 3d 16, 278 N.E.2d 202.) A threshold matter for appeals perfected pursuant to Rule 307(a)(1) is to determine whether the order appealed from may be properly characterized as injunctive and, thus, whether appellate jurisdiction exists. An injunction has been defined as

“a judicial process, by which a party is required to do a particular thing, or to refrain from doing a particular thing, according to the exigency of the writ, the most common sort of which operate as a restraint upon the party in the exercise of his real or supposed rights.” (Wangelin v. Goe (1869), 50 Ill. 459, 463.)

It is also frequently stated that whether an order is properly characterized as injunctive and therefore within the provisions of Rule 307(a)(1) must be determined by its substance rather than its form. See, e.g., Smith v. Goldstick (1982), 110 Ill. App. 3d 431, 442 N.E.2d 551; Lake Shore Racquet Club, Inc. v. Fireman’s Fund Insurance Cos. (1980), 91 Ill. App. 3d 1118, 415 N.E.2d 625.

However, any attempt to define injunctive relief would be incomplete if it did not also take into account the historical traditions peculiar to equity jurisprudence out of which such relief originally arose. (See Baltimore Contractors v. Bodinger (1955), 348 U.S. 176, 99 L. Ed. 233, 75 S. Ct. 249.) Thus, such orders as subpoenas or an order denying a motion to quash a subpoena are not normally characterized as injunctive permitting of interlocutory review even though “a party is required to do a particular thing” and failure to comply may result in a contempt citation. (See People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167, 429 N.E.2d 483 (order denying a motion to quash a subpoena was held to be not appealable since it was nonfinal).) This noninjunctive characterization results from the fact that historically the power to subpoena witnesses was not the exclusive province of courts of chancery but rather derived from the inherent power any court has to compel witnesses to appear before it and give testimony. Bonner v. People (1891), 40 Ill. App. 628.

We believe a similar situation obtains in the case of orders impounding court records. Here, too, the authority to impound did not derive from a court’s power to grant equitable relief but rather from the inherent power any court has to control its own records. (See Rex v. Mayor of Maidstone (1825), 6 Dowl. & R. (Eng.) 334, cited at Annot., 175 A.L.R. 1260, 1267 (1948), wherein a court-leet, a species of criminal court lacking equity jurisdiction, is seen to exercise extensive control over access to its records.) This inherent power of control has been specifically recognized in Illinois and has been held, in the proper case, to be superior to a statutorily created public right of access to court records. (Deere & Co. v. Finley (1981), 103 Ill. App. 3d 774, 431 N.E.2d 1201.) We therefore conclude that a provisional order impounding court records does not represent an exercise of a court’s equitable discretion to grant injunctive relief as contemplated by Rule 307(a)(1). Rather, the granting of the subject protective order is properly characterized as a ministerial act deriving from the inherent authority of the court to control the proceedings and its own records.

It is the responsibility of this court to see that no unauthorized extension or reduction of appellate jurisdiction occurs whether by direct or indirect means. Any such ad hoc decision as urged by defendant disorganizes practice by encouraging attempts to secure or oppose appeals with a corresponding waste of time and money. The scope of appellate jurisdiction is defined by rules promulgated by the supreme court and any enlargement on the allowable list of appealable interlocutory orders must be initiated by a change of those rules. Accordingly, we dismiss the present appeal for lack of jurisdiction.

Appeal dismissed.

GOLDBERG and CAMPBELL, JJ., concur.

      Of course, an appeal may be taken from a contempt citation for failure to obey a subpoena on the rationale that the citation is a final order in a collateral proceeding — but not beforehand under the interlocutory appeal provisions. See People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167, 429 N.E.2d 483.


author: JUSTICE GOLDBERG

text:
    PAT ERICKSON et al., Plaintiffs-Appellants, v. THE BOARD OF EDUCATION, PROVISO TOWNSHIP HIGH SCHOOL, DISTRICT NO. 209, COOK COUNTY, Defendant-Appellee.
    First District (1st Division)
    No. 83—0857
    Opinion filed December 12, 1983.
    Ash, Anos, Freedman & Logan, of Chicago (George J. Anos and Lawrence M. Freedman, of counsel), for appellants.
    Ancel, Clink, Diamond, Murphy & Cope, P.C., of Chicago (John B. Murphy, of counsel), for appellee.
   JUSTICE GOLDBERG

delivered the opinion of the court;

Pat Erickson, Kimberly La Deur, Joette M. Hager, and Kimberly S. Kolze (plaintiffs) brought this suit against the Board of Education, Proviso Township High School, District No. 209, Cook County, Illinois (defendant). Count I of plaintiffs’ complaint alleged a violation of the Equal Pay Act (29 U.S.C. sec. 206(d)(1) (1976)). Count II alleged discrimination against plaintiffs in violation of the Illinois Constitution of 1970, article I, section 18. The trial judge entered summary judgment for defendant. Plaintiffs appeal.

Defendant operates public high schools known as Proviso East and Proviso West. Plaintiffs acted as teachers and also as coaches of certain girls’ athletic teams. It is the theory of plaintiffs that they were discriminated against as regards their compensation for coaching activities on the basis of the fact that they were women. The high schools operated by defendant also employed men as athletic coaches.

The record shows that the defendant has two separate bargaining agreements with the local teachers union of which plaintiffs are members. The scale of pay for teachers in connection with their work as athletic coaches was a matter of contract arrived at after negotiations. The collective bargaining agreements set out the coaching compensation in detail. One of the important matters here involved is that the collective bargaining agreements refer to “men coaches” and also to “women coaches.” However, the record shows definitely, and the parties have conceded, that the contract schedule with reference to designations of “men” and “women” does not relate to or describe the coaches. On the contrary, these designations refer to the sex of student participants in athletics who receive coaching from plaintiffs. The coaching itself was such that in some instances male coaches assisted girls in their sports and in one situation a woman had served a coach of a gymnastics team for boys. Thus the compensation for the coaching was not set in accordance with the sex of the coach but rather pertained to the sex of the participants who received the coaching.

Discovery was had by both sides. Defendant’s motion contains affidavits together with a statement of facts, copies of collective bargaining agreements and excerpts from plaintiffs’ depositions. Plaintiffs themselves did not file affidavits or depositions but simply a legal memorandum directed to the merits of the motion. It appears from the depositions of plaintiffs that some women coaches who worked with the boys’ teams received a higher salary than men coaches who worked with the girls. The collective bargaining agreements contain information to this effect.

It is agreed that the Federal Equal Pay Act is applicable to the situation here. This statute provides (29 U.S.C. sec. 206(d)(1) (1976)):

“No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee.”

In addition a provision of the Illinois Constitution of 1970 is also applicable here. This provision states (Ill. Const. 1970, art. I, sec. 18):

“NO DISCRIMINATION ON THE BASIS OF SEX.
The equal protection of the laws shall not be denied or abridged on account of sex by the State or its units of local government and school districts.”

It is the theory of plaintiffs that the record discloses various material issues of fact which set forth violations of the Equal Pay Act and of article I, section 18, of the Illinois Constitution of 1970. Thus, plaintiffs in effect contend the record shows there are genuine issues as to material facts so that the trial judge erred in granting summary judgment. (See Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1005.) However, plaintiffs did not file a factual response to defendant’s motion for summary judgment, to demonstrate the presence of any material and disputed facts. Plaintiffs attempted to rely upon the allegations of their complaint. The trial judge concluded that summary judgment for defendant was proper. In this regard, the law is clear that absent facts set out in a counter affidavit, “[m]ere reliance upon contrary averments in the [opposing] party’s answer is insufficient.” Burks Drywall, Inc. v. Washington Bank & Trust Co. (1982), 110 Ill. App. 3d 569, 576, 442 N.E.2d 648, and cases there cited.

Neither party cites in their brief any legal authority which directly considers the rather unique situation here presented. It seems clear, as a factual matter, that the plaintiffs were not discriminated against because of their sex. As shown, the compensation to be given to athletic coaches did not vary with any particular coach but depended upon, and varied in accordance with, the sex of the pupils who received the coaching. Undoubtedly where there is a wage discrimination against women because of their sex, that situation is definitely covered by the Equal Pay Act. (See Corning Glass Works v. Brennan (1974), 417 U.S. 188, 41 L. Ed. 2d 1, 94 S. Ct. 2223; Hodgson v. American Bank of Commerce (5th Cir. 1971), 447 F.2d 416.) Similarly, article I, section 18, of the Illinois Constitution of 1970 is directed at the same type of discrimination. This amendment has been applied by the courts of Illinois in a salutary effort to stamp out discrimination by governmental bodies of any kind based upon sex. See People v. Ellis (1974), 57 Ill. 2d 127, 311 N.E.2d 98.

The defendant cites a number of cases decided under title VII of the Federal Civil Rights Act of 1964 (42 U.S.C. sec. 2000e — 2(a)(1)), which reads in part as follows:

“It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of said individual’s race, color, religion, sex or national origin ***.”

As stated in this enactment, it was intended to eliminate not only discrimination on the basis of sex but discrimination of any other kind.

Although plaintiffs’ case is not based upon title VII, we see no reason why cases decided under this enactment are not applicable by analogy to the situation before us. Defendant cites two cases which, in our opinion, are thus applicable here. These decisions are factually very close to the instant case. They hold that there was no discrimination based on sex between the coaching services rendered to girls and those rendered to boys in athletic matters. These cases are Jackson v. Armstrong School District (W.D. Pa. 1977), 430 F. Supp. 1050, and Kenneweg v. Hampton Township School District (W.D. Pa. 1977), 438 F. Supp. 575.

In Jackson, plaintiffs were women who coached women’s basketball teams. They complained that men who coached men’s basketball teams received greater pay. The court there pointed out that there were a total of eight coaches in the school, four men and four women, all of whom coached women’s basketball teams and all received the same pay for their services. (430 F. Supp. 1050, 1052.) Thus, the court held that there was no discrimination because of the sex of the coach but simply that a different scale of compensation was applied to services rendered in coaching boys to the services rendered in coaching girls.

Similarly, the court in Kenneweg had a situation before it in which two female coaches of girls’ teams alleged that the school district had applied a higher pay scale for coaches of male sports than for female sports. The court cited Jackson and concluded that this disparity was not predicated upon sex discrimination against the plaintiffs, but that the record showed simply the application of a higher rate to all coaches who worked in male sports to those coaches who worked in female sports. 438 F. Supp. 575, 577.

As defendant points out, the reasoning applied in Jackson and Kenneweg was followed in rather similar situations which arose in New York State. Kings Park Central School District No. 5. v. State Division of Human Rights (1980), 74 App. Div. 2d 570, 424 N.Y.S.2d 293; State Division of Human Rights v. Syracuse City Teachers Association, Inc. (1979), 66 App. Div. 2d 56, 412 N.Y.S.2d 711.

The same result was very recently reached by this court in connection with an alleged violation of article I, section 18 of the Illinois Constitution of 1970. (Tranquilli v. Irshad (1983), 117 DI. App. 3d 1074, 454 N.E.2d 377.) This court there held (117 Ill. App. 3d 1074,1076):

“Sex discrimination is gender based.
The most fundamental requirement for a showing of sex discrimination is a demonstration that men and women were treated in a dissimilar manner because of their sex.”

In the instant case, the plaintiffs herein have in fact received equal pay for the same coaching responsibilities and services. Thus any differential between male and female coaches is based on a factor “other than sex” precisely as stated in exception (iv) of the Equal Pay Act. 29 U.S.C. sec. 206(d)(1)(iv) (1976).

We conclude that the trial court correctly found there was no material issue of disputed fact raised herein and defendant was entitled to summary judgment. The order appealed from is therefore affirmed.

Order affirmed.

BUCKLEY, P.J., and McGLOON, J., concur.


author: JUSTICE MILLER

text:
    THE DEPARTMENT OF TRANSPORTATION, Petitioner-Appellant, v. JOAN MARIE MULLEN et al., Defendants-Appellees.
    Fourth District
    No. 4—82—0550
    Opinion filed December 20, 1983.

      Neil E Hartigan, Attorney General, of Springfield (William B. Lawrence and Ronald N. Hanley, Special Assistant Attorneys General, and Roy Frazier, Assistant Attorney General, of counsel), for appellant.
    Thomas N. Jacob, of Jacob, Goleash and Misch, of Bloomington, for ap-pellees.
   JUSTICE MILLER

delivered the opinion of the court:

In this condemnation action brought by the Department of Transportation judgment was entered on the jury’s verdict of $176,580 for the value of the land taken, 2.39 acres, and $107,000 for damage to the land remaining. The Department appeals, arguing that the amount of the award is attributable to the trial judge’s erroneous evi-dentiary rulings. We agree that some of the rulings were in error and reverse and remand for a new trial.

The Department filed a petition December 2, 1976, to acquire five parcels of land in Livingston County to straighten and widen Illinois Route 23 (Federal Aid Route 24). Compensation for four of the five parcels was fixed by agreement; the fifth parcel, numbered “66,” went to trial instead and is the subject of this appeal. Parcel 66 comprised two small tracts: (1) a strip 1,800 feet long and varying between 10 and 150 feet wide, 1.637 acres in all, lying along the eastern side of Route 23, which runs northwesterly through the area, and (2) .753-acre, concentrated mainly in a triangle, on the western side of Route 23 and across from the first tract. Parcel 66 was part of a 58.75-acre holding near Cornell, Illinois, owned by the 10 personal defendants, who are Hatzer family siblings and their spouses; Route 23 divided the property nearly in half. All or most of this land was leased to defendant Valley View Dirt and Gravel, Inc., a Hatzer family company. Valley View’s lease was subject to a mineral lease between the Hatzer family and defendant Clow Corp. on land east of Route 23, where a shale pit was located; under a mining agreement Valley View removed the shale and delivered it to Clow’s plant in Carol Stream, Illinois, for the production of clay pipe and tile. On the Hatzers’ land west of Route 23 Valley View owned and operated a mobile home park.

Valley View, Clow, and the personal defendants filed cross-petitions to recover for damage to the remainder caused by taking the first tract, the one on the eastern side of Route 23; no cross-petitions were filed for damage caused by taking the second, western tract.

Several separate problems of valuation are evident. The eastern tract contained an earthern embankment that kept floodwaters from reaching the shale pit. Also, the effect of taking the eastern tract was to push back the existing setback line required for open pit mines, thus reducing the area that could be mined in the future. The western tract included part of the mobile home park. The questions raised on appeal concern the exclusion and admission of evidence on the value of the two tracts and on the damage to the remainder caused by taking the first tract. The Department argues that the trial judge erred in striking the testimony of one of its appraisal witnesses, Francis Gutschenritter, that the trial judge should have granted its motion to strike the testimony of the defendants’ appraisal witness, Campbell Evans, and that the trial judge erred in not allowing it to unilaterally stipulate that it would not disturb the embankment on the eastern tract. The Department requests a new trial.

Before trial the Department filed a motion in limine to prevent the defendants from (1) introducing evidence on the profits that Valley View and Clow stood to lose as a result of taking tract 1, (2) using the income method of valuation for determining the value of the take, and (3) valuing the mineral — shale—separately from the fee. The motion was denied.

The trial began September 24, 1979. The Department’s first witness, Herbert Voigts, the appraisal manager for the highway district in which the land in question is located, described the purpose and extent of the take. The jury then viewed the premises.

Wayne Kasza, an engineer from the highway district, testified that the embankment or dike on the eastern side of Route 23 had been enlarged since the Department filed its petition to condemn. The increase in size meant that part of the embankment would be included in tract 1; it would not have been affected had it remained in its former state.

Francis Gutschenritter, whose testimony was stricken on the defendants’ motion, was a professional real estate appraiser. He had inspected the area of the take and had visited Clow’s plant in Carol Stream. Gutschenritter testified that the highest and best use of the north part of the Hatzers’ land east of Route 23 was the shale pit. The area south of this was a floodplain, useful only for recreation and wildlife. Gutschenritter believed that the highest and best use for the land west of Route 23 was the mobile home park. He also testified that the shale pit was consuming about one-quarter to one-half acre of surface area every year; 25 acres remained, and he estimated that the shale operation would last 25 to 100 more years.

Gutschenritter testified that the fair market value of the entire holding, 58.75 acres, on the date the Department filed its petition, December 2, 1976, was $176,250, that the value of the land remaining was $169,000, and that the value of the take was therefore $7,200. He did not believe that the take was damaging the land remaining. Guts-chenritter based his appraisal on the state of the shale industry and on recent comparable sales of farmland in that township; the farmland had been sold for $4,000 to $4,500 an acre. He believed that the land being taken was inferior to farmland and assigned it a value of $3,000 per acre. Gutschenritter added $500 for the cost of moving a sign that stood on the western tract in the mobile home park. Therefore, total compensation should be $7,700.

Defense counsel moved to strike Gutschenritter’s testimony because he had mentioned several uses for the land — the shale pit, recreation and wildlife, and the mobile home park — yet had based his appraisal on sales of farmland. The trial judge granted the motion and instructed the jury to ignore the testimony.

The Department then examined James Johnson, Clow’s plant manager at Carol Stream, as an adverse agent under section 2 — 1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2— 1102). Johnson explained that shale is used in making clay sewer pipes. Clow’s demand for shale was enlarging the pit on the Hatzers’ land by about five-eighths acre a year; Clow used 58,000 tons from the pit in 1976.

Herbert Voigts then testified for the Department again. Voigts did appraisals privately in his off-duty hours; he testified that the entire property was worth $250,000 as of December 2, 1976, that the value of the remainder, after the take, was $240,000, and that the value of the take was therefore $10,000. The highest and best uses of the land were the current, commercial uses. The Department then rested.

Richard Hatzer, one of the defendants, testified about the general operations of the shale pit and the mobile home park. He explained that the State’s mining rules and regulations require setbacks from highway rights-of-way: the setback must be 10 feet plus IV2 times the depth of the pit. The shale pit was 80 feet deep and therefore required a setback of 130 feet. The tract being taken on the eastern side of Route 23 lay entirely on the area of the current setback. The condemnation will push back the existing setback line, however, preventing mining in an area that could otherwise have been mined. Also, that tract contained an embankment 900 feet long that kept floodwaters out of the shale pit.

Hatzer said that they had changed the embankment since 1976 only by raising it a foot or two in some areas and that the cost of building a new one would be $165,400. He also testified that the shale pit will eventually consume the southern land that the Department classified as a floodplain.

John Duffy, general superintendent of Trico Paving Company, testified that the embankment will be lost in the take and that a new one will have to be built, which will cost $200,910.

David Schmelig, a consulting engineer, testified that the new setback required after the eastern tract is taken will cost the Hatzers 40,351 square feet of surface area, slightly less than an acre.

Robert Morse, a geotechnical engineer and engineering geologist, interpreted the logs of borings that an engineering firm had made in this vicinity. The logs showed a thick layer of shale lying between 17 and 74 feet from the surface, interrupted only by a thin seam of coal .8 foot thick, leaving a 56.2-foot layer of shale. Morse then subtracted a foot from this for waste, leaving 55.2 feet of recoverable shale. Morse computed that the new setback area of 40,351 square feet covered 82,505 cubic yards of shale, or 183,574 tons — one cubic yard of shale weighs 4,450 pounds. Morse said that the overburden in the area is unusually thin, making this shale deposit unique.

Campbell Evans, a professional real estate appraiser and a professor of finance and insurance at Illinois Weslyan University, was the defendants’ appraiser and last witness. Evans, in preparing his appraisal, had examined the land, talked with the other witnesses, and read Valley View Dirt and Gravel’s financial statement for 1976 and various leases and agreements. As of December 2, 1976, the highest and best use of the western tract was for a trailer court, the existing use; the highest and best use of the land where the embankment was located was for an embankment; the highest and best use of the shale pit was for a shale pit. Evans said that the fair market value of the entire 58.75-acre holding on December 2, 1976, was $468,939, based on the three distinct uses. The value of the land taken was $185,160, and the damage to the remainder was $164,661. The damage to the remainder was based on lost income for the family and on losses to Valley View and to Clow. Evans explained that Clow had a very favorable lease with the Hatzers; most of Valley View’s income came from the agreement, between it and Clow to excavate and transport the shale; the 185,000 tons of shale lying beneath the new setback represents slightly more than three years’ production, based on the figures for 1976. Evans said that he could not find any comparable sales of shale pits and asserted that the shale pit and the embankment were special uses.

In an offer of proof during the cross-examination of Evans, the Department elicited the testimony that the pit had a useful life of 81 more years, based on production in 1976 and its size after the new setback line.

In rebuttal, Wayne Kasza testified that the Department would not disturb the embankment after the take, and the Department attempted to enter a stipulation to that effect; the trial judge denied it. Herbert Voigts testified that the remainder will not be damaged by the take.

I

Before discussing the specific questions raised here on appeal, we set forth some basic principles of valuation governing condemnation actions. These principles point to the solutions of the problems presented in this appeal.

The Department’s power of eminent domain derives from article I, section 15, of the State Constitution (Ill. Const. 1970, art. I, sec. 15), which says:

“Private property shall not be taken or damaged for public use without just compensation as provided by law. Such compensation shall be determined by a jury as provided by law.”

The statute dealing with valuation, section 7 — 121 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 7 — 121), says in part:

“Except as to property designated as possessing a special use, the fair cash market value of property in a proceeding in eminent domain shall be the amount of money which a purchaser, willing but not obligated to buy the property, would pay to an owner willing but not obliged to sell in a voluntary sale, which amount of money shall be determined and ascertained as of the date of filing the complaint to condemn.”

This generally applicable standard of valuation, based on an imagined arm’s length, voluntary conveyance of the property in question, excludes estimates of lost income or reproduction costs. In Chicago Land Clearance Com. v. Darrow (1957), 12 Ill. 2d 365, 146 N.E.2d 1, the owners of a flophouse that had been condemned in a program of slum clearance tried to introduce evidence of the net income from their business and of the cost of reproducing the building. The trial court did not let this evidence in, and the supreme court affirmed that decision. The supreme court said:

“That the measure of just compensation is the fair, cash market value at the time of filing the petition in eminent domain proceedings is not open to question. Evidence of net income derived from operating a business on the condemned property is not admissible and it not a basis for fixing compensation whenever the property has a market value. [Citations.] There are a few types of improved property of which the market value cannot be ascertained because it is applied to a special use, such as a church, college, cemetery, club house, terminal of a railroad, and the like. [Citation.] As to these types of property, which are in effect exceptions, the law permits a resort to any evidence available to prove value including the net income from a business conducted on the property.” (12 Ill. 2d 365, 372, 146 N.E.2d 1, 5.)

Although the owners in that case did not argue that their property, a hotel, was a special use, they did argue that the realty and not the business produced the net income. The court rejected that.

When only a part of the owner's parcel of land is being taken, recovery for damage to the land remaining is limited to its depreciation or diminution in fair market value caused by the take. Department of Public Works & Buildings v. Bloomer (1963), 28 Ill. 2d 267, 191 N.E.2d 245.

The interests compensable in a condemnation action include leaseholds. (Leonard v. Autocar Sales & Service Co. (1945), 392 Ill. 182, 64 N.E.2d 477.) A mineral lease, under which the lessee pays a royalty rather than a straight rent, is a compensable interest. Department of Public Works & Buildings v. Blackberry Union Cemetery (1975), 32 Ill. App. 3d 62, 335 N.E.2d 577.

II

Turning to the specific questions raised on appeal, we shall first address the Department’s argument that the trial judge erred in striking the testimony of one of its appraisers, Francis Gutschenritter. In support of that decision, the defendants argue that Gutschenritter’s valuation, which he based on sales of local farmland, was without foundation and impeached by his own statements on cross-examination that the shale pit was a special use.

We agree with the Department that Gutschenritter’s testimony was competent and admissible. First, whether property qualifies as a special use, as that term of art is understood in condemnation proceedings, is a question of law for the courts to decide. Second, the colloquy surrounding Gutschenritter’s statements shows that he considered the pit a special use because it had' no other use. This, however, is not the legal definition of “special use”; property is classified as a special use only if it has no readily ascertainable market value (Darrow), which is something quite different from its unsuitability for other uses.

The Department was not required to adopt the defendants’ theory of valuation. Gutschenritter qualified himself as an expert witness, and his appraisal was admissible evidence. The defendants’ objections to his testimony pertain to the weight the trier of fact should accord it, not to its admissibility.

We next consider the testimony of the defendants’ appraiser, Campbell Evans, and the Department’s objections to it. The Department argues that Evans relied on speculative assumptions in reaching his appraisal of the value of the land taken and the damage to the land remaining.

Evans testified that in valuing the land taken on the western side of Route 23, he relied on the income that Valley View could expect to lose from its operation of the mobile home park by its loss of that area; in valuing the land on the eastern side of Route 23, he relied on the cost of replacing the embankment. In valuing the damage to the land remaining on the eastern side of Route 23, Evans relied on the income that Valley View, Clow, and the Hatzer family could lose as a result of the new setback required by the take, which would reduce the surface area that could be mined. In computing the damage to the remainder, Evans set forth the separate losses of Valley View, Clow, and the Hatzer family.

The mineral lease between Clow and the Hatzer family provided a royalty of 15 cents per ton of shale. Evans determined that the shale was worth 60 cents per ton to Clow, which meant that the value of its loss was 45 cents per ton, the difference between the two figures. Finally, Evans computed an amount representing Valley View’s lost profit based on the share that the excavation and delivery of the shale bore to its total business; Evans adjusted that by a sum representing new business that it could probably obtain. In reaching the separate monetary values of these damages, Evans relied on Morse’s computation of the content of shale lying under the new setback that the take would impose. This lost shale represented 3.17 years’ production, based on the figures for 1976, and Evans discounted the amounts by 12% over that period of time. With all these details in evidence, the trial judge erred in restricting the Department’s cross-examination of Evans on the expected productive life of the pit.

In support of Evans’ testimony the defendants argue that the embankment and the shale pit were special uses and therefore justified the introduction of evidence on income and replacement cost.

Department of Public Works & Buildings v. Oberlaender (1969), 42 Ill. 2d 410, 247 N.E.2d 888, presented a similar problem of valuation; in that case the Department condemned 44 acres of a sand pit for the construction of a highway. To be sure, the landowner did not argue that the pit was a special use; the appellate court said in its opinion, “In the instant case it is not contended that [the] property is a special use property nor could such contention be supported” (Department of Public Works & Buildings v. Oberlaender (1968), 92 Ill. App. 2d 174, 182, 235 N.E.2d 3, 8). At the trial of that case several of the landowner’s appraisers assigned separate values to the amount of sand being lost in the take; the supreme court held that that testimony should have been stricken. The court said:

“Concerning the fair market value of land containing mineral deposits this court has stated that: ‘The rule is that compensation must be estimated for the land as land, with all its capabilities, and if there is timber on it, or coal, oil or other minerals under the surface, they are to be considered so far as they affect the value of the land but they cannot be valued separately.’ [Citations.] Putting it somewhat differently, where, as here, the property is not taken for the purpose of obtaining the minerals or a going business [citations], it is improper to appraise separately the mineral deposit and add its value to the value of the land without the deposits [citations]. It is proper, however, for the owner to establish the existence of valuable mineral deposits on the real estate being valued and in doing this to show the character of the deposit(s) and to what extent it enhances the land’s market value. [Citations.]” 42 Ill. 2d 410, 415-16, 247 N.E.2d 888, 892.

This suggests that a quarry or pit is not to be valued as a special use. Department of Transportation v. Toledo, Peoria & Western R.R. Co. (1979), 75 Ill. 2d 436, 389 N.E .2d 546, supports this interpretation. In Toledo the Department condemned about 43 acres of land as a source of fill material needed for a nearby highway project. Relying on Oberlaender’s statement, “[Wjhere, as here, the property is not taken for the purpose of obtaining the minerals,” the landowner argued that it should be allowed to introduce into evidence what a subcontractor of the Department had been paying it for this fill material before the condemnation petition was filed; the landowner wanted to multiply the price by the amount being condemned. The court said that that was contrary to the rule in Oberlaender.

Evans’ computations of the damage to the remainder ran afoul of the rules in Oberlaender and Toledo and were vitiated by speculative assumptions. He assumed that the new setback would take land that otherwise eventually would have been mined. This presupposed that the demand for shale would continue at a set rate, not just into next year or the next decade, but into the next century. The damage is neither immediate nor certain. The land in the new setback area is not at the edge of the shale pit; other land will have to be mined first. The demand for clay sewer pipe may lessen as plastic pipe takes a larger share of the market, as testimony suggested. Thus, appraisals based on the land’s cubical content of a mineral are too speculative. This applies here to the separate losses of Valley View, Clow, and the Hatzer family. Although each of them has a compensable interest — a point that the Department does not dispute-compensation must be based on certainty rather than conjecture. And even when the loss of a natural resource is certain, testimony valuing the resource separately from the land is improper, for its effect is to “lead to all sorts of collateral issues as to expenses, transportation and other matters taken account of by the witness, which would be confusing in the extreme” (Forest Preserve District v. Caraher (1921), 299 Ill. 11, 18, 132 N.E. 211, 213). Recovery for damage to the remainder, which the owner has the burden of proving, is measured by “the depreciation in value of the land not taken which results from the taking, that is, the difference between the fair cash market value of the part not taken unaffected by the improvement and its fair cash market value as affected. [Citation.]” Department of Public Works & Buildings v. Bloomer (1963), 28 Ill. 2d 267, 270, 191 N.E .2d 245, 248.

In valuing the tract taken on the eastern side of Route 23, Evans relied on the cost of replacing the embankment. We agree with the Department that the embankment does not qualify as a special use and therefore its replacement cost was inadmissible. The embankment has value only in relation to the shale pit. The separate valuation of the embankment — the testimony of the cost of a replacement-divorces it from its only function. Standing alone, the embankment has no use, much less a special one; as a man-made alteration of the local topography, the embankment gains a purpose and a value only when it is considered along with the shale pit that it may or may not • protect. Therefore, the embankment must be considered as part of the general operation of the shale pit, which is not a special use. Although the destruction of the embankment might cause damage to the remainder, we reject the contention that the embankment is a special use.

Finally, Evans bases his appraisal of the tract on the western side of Route 23 on the expected profits from the then-vacant trailer pads on that tract, assigning a value to each one. This was improper. A mobile home park is not a special use, and this land did not require a departure from the general rule that an appraisal must be based on the property’s fair market value.

Despite the several interests involved here — the Hatzers, Clow, and Valley View — the owners agreed to the use of a verdict form that required the jury to be precise about only two things: the value of all the land taken and the damage to the remainder. That verdict form was Illinois Pattern Jury Instruction, Civil, No. 300.70 (2d ed. 1971). The individual defendants did not request separate verdict forms for their respective interests. Because one verdict form was to be used, it was error to allow testimony concerning the values of the separate interests of the individual defendants, which could have inflated the verdict. Where separate verdict forms for individual defendants are to be used, the testimony is proper.

A related problem concerns the several uses of the property. The evidence shows that the land being taken does not have a single, uniform highest and best use; instead, the land is employed and employable in several ways. Evans’ testimony assigned separate figures to the uses. We have already said that his appraisals were flawed by his use of the income method of valuation. This infirmity does not mean, however, that on retrial the owners are barred from presenting evidence on the separate and distinct uses of the property. We must inquire to what extent the owners may introduce evidence on the separate uses and separate values of the two parcels of land being taken.

In Department of Public Works & Buildings v. First National Bank (1973), 9 Ill. App. 3d 633, 292 N.E.2d 487, the owner’s valuation witness testified that the condemned property, a tract of a little more than four acres out of a holding of about 49 acres, had several highest and best uses. According to the witness, one part of the land being taken was best suited for a service station, a second part was best suited for other commercial development, and a third part was best suited for residential use. Although the property was employable in these several distinct ways, only once did the valuation witness testify to a separate value of one of the several parts and the trial judge sustained the condemnor’s objection to the testimony.

On appeal the condemnor argued that the owner’s witness should not have been allowed to testify to the several highest and best uses. The court held that the testimony was proper:

“It is clear from the testimony of most of the witnesses for both petitioner and defendant that the highest and best use of the property was not uniform throughout. Under these circumstances we find nothing improper in testimony as to the highest and best use for the different tracts of land involved. Forest Preserve Dist. of Cook County v. Wing, 305 Ill. 194, 137 N.E. 139; Department of Public Works and Buildings v. Hu-feld, 68 Ill. App. 2d 120, 215 N.E.2d 312.” 9 Ill. App. 3d 633, 636, 292 N.E .2d 487, 489-90.

In Department of Public Works & Buildings v. Hufeld (1966), 68 Ill. App. 2d 120, 215 N.E.2d 312, the condemnor was taking about 62 acres out of a holding of about 100 acres of land, which the owner had planned to subdivide. The owner’s plan divided the holding into three separate areas, and at the time the petition for condemnation was filed, they were in various stages of completion. Several houses had already been built in one area, and streets and other public improvements had been made; a plat of the second area had been recorded, and rough grading had been done there; a plat of the third area had been prepared but not recorded, and that land had not been touched. The parties’ valuation experts agreed that the highest and best use of all the land was residential. The condemnor’s appraisal witnesses, in arriving at their estimates, considered and valued the three areas separately, and the jury heard testimony on the different values of the distinct areas.

On appeal the landowner argued that he should have been allowed at trial to use the “subdivision theory of valuation,” which the court described as “basically a projection of future values and advantages which in and of themselves are considered to be the value of the property.” (68 Ill. App. 2d 120, 128, 215 N.E .2d 312, 316.) The owner thought that the condemnor’s appraisers had used this in valuing the first, more developed area and that therefore the theory should have been applied to the entire take. The court first noted that the con-demnor’s witnesses had not actually used the suggested theory and then justified their valuing the areas separately. The court said:

“Valuing a group of developed lots, taking into account the individual values and cost of development, does not necessarily involve the approach proposed by Appellant. In any event, the character of the actual use and potential use of areas 2 and 3 was markedly different from that of area 1 and under these circumstances different considerations were involved. Testimony of Appellee’s witnesses appropriately considered the actual and potential uses of areas 2 and 3 on a different basis than those of area 1.” 68 Ill. App. 2d 120,128, 215 N.E .2d 312, 316.

In Forest Preserve District v. Wing (1922), 305 Ill. 194, 137 N.E. 139, most of the land being taken was on the western side of a river, and one acre was on the eastern side. Both parts were unimproved. One question on appeal was whether the owner should have been allowed to introduce evidence valuing the one acre on the eastern bank separately; apparently its value was enhanced by providing frontage for residential lots. The supreme court held that excluding this evidence was not error. The court said:

“Denial by the court of such separate proof does not mean that appellant did not receive the full value of the acre east of the river at its value for frontage or riparian purposes, such value being necessarily reflected in the price fixed by the witnesses who testified as to the value of the whole tract. In support of her theory appellant offered evidence on the trial that the acre tract was available for such use, and one of her witnesses testified that he considered such use in fixing the value placed by him on the tract as a whole. It is therefore plainly apparent that she received the benefit of this proof.” 305 Ill. 194, 197, 137 N.E. 139.

These cases support the conclusion that on retrial the appraisal witnesses may testify to the different highest and best uses of the two parts of the property taken. Also, the special circumstances presented by this case — the two tracts being taken are noncontiguous, and their highest and best uses are demonstrably different — invite testimony on their separate values as well. The property being taken comprises two distinct tracts, which was not the case in Department of Public Works & Buildings v. First National Bank (1973), 9 Ill. App. 3d 633, 292 N.E .2d 487, and in Department of Public Works & Buildings v. Hufeld (1966), 68 Ill. App. 2d 120, 215 N.E.2d 312. The land being taken has more than one highest and best use, which was not the case in Forest Preserve District v. Wing (1922), 305 Ill. 194, 137 N.E. 139, and in Hufeld. Thus, regardless of whether the parties use a single verdict form for valuing the total land taken, as was done in the trial below, or instead request separate verdict forms for each part of the take, the appraisal witnesses may testify to the different highest and best uses of the two tracts taken and to their separate values. This must be distinguished from testimony on the different losses of the individual defendants which in the absence of a separate verdict form for each defendant would be irrelevant, confusing, and likely to lead to an inflated recovery.

Because of these errors, a new trial is necessary. If on remand the Department attempts to stipulate, in a timely manner, that it will not alter, disturb, or affect the embankment by taking the tract on the eastern side of Route 23, it should be allowed to do so. See East Peoria Sanitary District v. Toledo, Peoria & Western R.R. (1933), 353 Ill. 296, 187 N.E. 512 (offer to reduce damage to land taken).

Reversed and remanded.

TRAPP and GREEN, JJ., concur.