text:
    ROSEMARY CHEEK, Plaintiff-Appellant, v. WILLIAM DYE, Chief of Police of the Champaign Police Department, et al., Defendants-Appellees.
    Fourth District
    No. 4 — 82—0082
    Opinion filed August 16, 1982.
    Greaves & Lerner, of Champaign, for appellant.

      Craig J. Causeman, of Thomas, Mamer & Haughey, and Kathryn L. Samuelson, both of Champaign, for appellees William Dye and City of Cham-paign.
    James W. Evans, of Evans & Froehlieh, of Champaign, for appellee Board of Fire and Police Commissioners of City of Champaign.
   JUSTICE WEBBER

delivered the opinion of the court:

Plaintiff was a probationary police officer for the city of Cham-paign. Prior to the end of her probationary period she was summarily discharged by the chief of police. She sought a writ of mandamus from the circuit court of Champaign County and, after various amendments, the court dismissed with prejudice her second amended complaint. This appeal then followed. We affirm.

The fundamental issue presented, around which all the other issues revolve, is whether the undoubted power of a board of fire and police commissioners of a city subject to division 2.1 of article 10 of the Illinois Municipal Code (IMC) (Ill. Rev. Stat. 1979, ch. 24, par. 10 — 2.1—1 et seq.) to discharge a probationary officer may be delegated to the chief of police. So far as we are aware, this matter has not heretofore been passed upon by a reviewing court of this State.

Preliminarily, section 10 — 2.1—1 of the IMC (Ill. Rev. Stat. 1979, ch. 24, par. 10 — 2.1—1) provides that for all municipalities operating under division 2.1, a board of fire and police commissioners shall be appointed by the mayor with the consent of the appropriate municipal body; section 10 — 2.1—4 (Ill. Rev. Stat. 1979, ch. 24, par. 10 — 2.1—4) provides that the board shall appoint all members of the fire and police departments, and further sections set forth in detail how such appointments are to be made. Special provision is made for the appointment of the chiefs of the departments, if the city is under the managerial form, which Champaign has adopted.

Two sections of the IMC form the basis for the dispute in the case at bar. Section 10 — 2.1—15 (Ill. Rev. Stat. 1979, ch. 24, par. 10 — 2.1— 15) provides for promotion by examination and merit and states in part:

“The method of examination and the rules governing examinations for promotion shall be the same as provided for applicants for original appointment, except that original appointments only shall be on probation, as provided by the rules.”

Section 10 — 2.1—17 (Ill. Rev. Stat. 1979, ch. 24, par. 10 — 2.1—17) provides for removal and discharge of officers, and makes provision for written charges, a hearing on them by the board, and for disposition by the board of the matter.

Plaintiff contends that the latter section, 10 — 2.1—17, must govern discharge. Defendants, the chief of police of Champaign, the board of fire and police commissioners of Champaign, and the city itself, maintain that for a probationary officer section 10 — 2.1—15 controls.

Defendants’ position is largely supported by the supreme court’s opinion in Romanik v. Board of Fire & Police Commissioners (1975), 61 Ill. 2d 422, 338 N.E.2d 397. In that case the court held that section 10-2.1 — 17 did not apply to probationary officers and that section 10 — 2.1—15 authorized the board to adopt rules for the discharge of probationers.

The record here discloses that the defendant board has adopted such a rule and that the defendant city has likewise adopted an ordinance on the subject. The rule of the board provides:'

“Upon initial appointment to either the Fire or Police Department, the Board will award a probationary certificate. This certificate is for one year and may be termed a ‘probationary commission.’ The Chief of either department, with the approval of the City Manager, has the authority to dismiss the employee at any time during this period. Upon promotion, the employee does not serve a probationary period. (10 — 2.1—15).”

The code of the City of Champaign, chapter 2, section 2 — 159, provides:

“The first twelve (12) months of service following appointment to the Police Department shall be a probationary period, during which time the appointee shall be subject to discharge without a trial before the Board of Fire and Police Commissioners. The Chief of Police, with the approval of the City Manager, may discharge such appointee during the probationary period if he proves incompetent as a policeman or is guilty of any act warranting the discharge of a policeman.”

The crux of the problem is the delegation of the dismissal power to the chief of police. Romanik held:

“We hold that section 10 — 2.1—17 applies only to an officer who has completed his probationary period, and that section 10 — 2.1—15 authorized the Board to adopt its rule providing for summary discharge of probationary police officers.” 62 Ill. 2d 422, 425, 338 N.E.2d 397, 399.

Neither the supreme court opinion, nor the appellate court opinion which preceded it, sets forth what the “rule providing for summary discharge” provided. It is apparent in Romanik that the plaintiff was discharged by the board itself on written recommendation of the chief of police, while in the instant case the plaintiff was discharged by the chief by virtue of the delegation of that power to him under the rule. In his dissent in Romanik, Mr. Justice Goldenhersh cites a portion of the East St. Louis rule governing appointments, but we cannot know from this what “summary dismissal” meant. By inference from the Romanik opinion it appears that the chief submitted a recommendation to the board together with a list of the probationer’s transgressions and that the board then dismissed him without a hearing, all of which was approved by the supreme court.

An analogous situation appeared in Scheeler v. Fire & Police Com. (1980), 85 Ill. App. 3d 684, 407 N.E.2d 219. There a probationer was summarily dismissed without a hearing, although the commissioners had not adopted any rule governing such a dismissal. The Scheeler court found nothing in Romanik which made the adoption of a rule a condition precedent to such action. Plaintiff’s citation of People ex rel. Charles v. Telford (1977), 48 Ill. App. 3d 928, 363 N.E.2d 613, is inap-posite. That case involved a city under division 1 of article 10 of the IMG (Ill. Rev. Stat. 1979, ch. 24, par. 10 — 1—1 et seq.) which pertains to civil service.

It is thus apparent under Romanik and Scheeler that a board of fire and police commissioners may impose a summary dismissal on a probationer, but as previously indicated, the question remains whether that power may be delegated to a chief of police.

We are unable to perceive any valid reason against such a delegation. In the absence of a hearing, there is little, if anything, for a board to do except enter a pro forma order of summary dismissal. Plaintiff admits in.her second amended complaint that she was not entitled to a hearing, as she must under Romanik.

Section 10 — 2.1—15 creates a special class of officer, the probationer, and places no restrictions upon the board except that it proceed “as provided by the rules.” Section 10 — 2.1—5 of the IMG (Ill. Rev. Stat. 1979, ch. 24, par. 10 — 2.1—5) provides:

“The Board shall make rules (1) to carry out the purpose of this Division 2.1, and (2) for appointments and removals in accordance with the provisions of this Division 2.1.”

No restrictions in rule making are placed on the board except in the case of non-home-rule municipalities. Removals are governed by section 10 — 2.1—17, which as we have already seen does not apply to probationers. The board’s rule-making power in the area of summary discharge is virtually unfettered.

In Romanik the supreme court cited with apparent approval language from People ex rel. Betts v. Village of Maywood (1938), 298 Ill. App. 160, 18 N.E.2d 459, to the effect that in the case of probationers the legislature contemplated that reasonable rules would be adopted concerning appointments. The converse is likewise true, that the rules governing summary dismissal be reasonable. We find both the board rule and the ordinance here in question to be so.

The statutory scheme of Division 2.1 for the appointment and compensation of board members and board officers indicates that those offices are something less than a full-time occupation. Good administration suggests that the one having the best first-hand knowledge of the probationer’s performance, the chief, should have and retain the dismissal authority. Maintenance of discipline in jobs demanding grave responsibility and sometimes associated with severe stress likewise requires such authority.

Plaintiff has cited other cases in which discharges made by city managers were held invalid. (E.g., Stearns v. Board of Fire & Police Commissioners (1978), 59 Ill. App. 3d 569, 375 N.E.2d 877; Bovinette v. City of Mascoutah (1973), 55 Ill. 2d 129, 302 N.E.2d 313.) Since these cases were decided under section 10 — 2.1—17, they have no application to the case at bar.

Plaintiff also argues that since the Champaign ordinance was not enacted in accordance with its home rule power, modifying the IMG provisions (Stryker v. Village of Oak Park (1976), 62 Ill. 2d 523, 343 N.E.2d 919), the delegation of power was invalid. We do not agree. We have already held that the delegation was proper under section 10 — 2.1—15; the question of home rule then becomes irrelevant.

While admitting that a full hearing is not required in the case of a probationer, plaintiff nonetheless argues that the language in the ordinance, “if he proves incompetent as a policeman or is guilty of any act warranting the discharge of a policeman,” indicates that some sort of an informal hearing was intended. The argument overlooks the language preceding, “without a trial.” The phrase cited by plaintiff goes only to the matter of reasonableness, as discussed above, and sets a minimal standard for the chief of police and the city manager.

For all the foregoing reasons, we find the order of the circuit court of Champaign County dismissing the second amended complaint with prejudice to be correct, and it is affirmed.

Affirmed.

LONDRIGAN and TRAPP, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE GREEN JUSTICE MILLS,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THERON HILL, Defendant-Appellant.
    Fourth District
    No. 17253
    Opinion filed August 23, 1982.
    MILLS, J., specially concurring.
    Daniel D. Yuhas and Janet Sinder, both of State Appellate Defender’s Office, of Springfield, for appellant.
    C. David Vogel, State’s Attorney, of Pontiac (Robert J. Biderman and Denise M. Paul, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

On October 21, 1980, defendant, Theron Hill, was charged in the circuit court of Livingston County with the offense of conspiracy to commit burglary. After a jury trial, a judgment of conviction was entered on April 23, 1981, and he was subsequently sentenced to probation for 1 year and 206 days conditioned upon his serving 2 days of imprisonment and paying a fine of $2,500. On appeal we need consider only his contention that his guilt was not proved beyond a reasonable doubt. We conclude the evidence was not sufficient and reverse.

Our decision turns upon whether section 8 — 2(a) and (b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 2(a), (b)), providing for the offense of conspiracy, encompasses the “unilateral” theory of conspiracy or only the “bilateral” conspiracy. Section 8 — 2(a) and (b) states:

“(a) Elements of the offense. A person commits conspiracy when, with intent that an offense be committed, he agrees with another to the commission of that offense. No person may be convicted of conspiracy to commit an offense unless an act in furtherance of such agreement is alleged and proved to have been committed by him or by a co-conspirator.
(b) Co-conspirators.
It shall not be a defense to conspiracy that the person or persons with whom the accused is alleged to have conspired:
(1) Has not been prosecuted or convicted, or
(2) Has been convicted of a different offense, or
(3) Is not amenable to justice, or
(4) Has been acquitted, or
(5) Lacked the capacity to commit an offense.”

The penal provisions of the statute are contained in section 8 — 2(c).

The “bilateral” theory of conspiracy is the traditional concept of the offense. Under that theory, in order for a conspiracy to exist, at least two people must intend to agree to the commission of an offense. The “unilateral” theory is of comparatively recent origin. Under it, the offense of conspiracy may occur when the accused, with intent to agree to the commission of an offense, enters into what appears to be an agreement with another to commit that offense, even though the other has no intention to agree to do so. We hold (1) section 8 — 2(a) and (b) requires an intent of at least two people to agree, and (2) the evidence here was insufficient for the jury to have concluded that anyone other than defendant intended to agree to the commission of a burglary as alleged.

The major push for the “unilateral” concept has arisen from section 5.03(1) of the Model Penal Code, which states:

“A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he: (a) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or (b) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.” (ALI Model Penal Code sec. 5.03(1) (Tent. Draft No. 10,1958).)

Section 5.04(1) (a) of the Model Code then provides that whether the person with whom the agreement is made “has a particular characteristic which is an element” of the offense of conspiracy is immaterial if the accused believes he has that characteristic. (ALI Model Penal Code sec. 5.04(1) (Tent. Draft No. 10, 1958).) The comments to the foregoing explain that its drafters intended a departure from the traditional “bilateral” theory to one that focuses upon each individual’s culpability. Thus, under this theory the intent of another party to agree to the commission of the principal offense is immaterial if the party to be charged has the intent to so agree. The culpability of the accused is not decreased or nullified if the intent to agree of the other party is only feigned.

The supreme courts of Ohio and Minnesota have held that the conspiracy provisions of their statutes on criminal law adopt the unilateral theory in State v. Marian (1980), 62 Ohio St. 2d 250, 405 N.E.2d 267, and State v. St. Christopher (1975), 305 Minn. 226, 232 N.W.2d 798, respectively. The Ohio statutory definition of conspiracy interpreted in Marian stated that a person committed the offense if he did “ *** either of the following: ‘(1) With another person or persons, plan or aid in planning the commission of any [previously described] offense.’ ” (Ohio Rev. Code Ann. sec. 2923.01(A) (1982); 62 Ohio St. 2d 250, 251-52, 405 N.E.2d 267, 269.) The Minnesota statute interpreted in St. Christopher spoke of “[w]hoever conspires with another to commit a crime.” (Minn. Stat. sec. 609.175(2) (1964).) Neither statute had a provision similar to section 504(1) (a) of the Model Code. A previous Ohio conspiracy statute had begun its definition of the offense by stating: “If two or more persons conspire together to commit any offense.” (Ohio Rev. Code Ann. sec. 2901.34.) A former Minnesota statute had begun with the words “When two or more persons shall conspire.” Minn. Stat. sec. 613.70 (1961).

Both the Marian and St. Christopher courts stated that one person with the criminal intent to agree to the commission of a crime does not furnish as great a danger to society as the existence of at least two people with that intent, but one such person does give rise to some substantial danger. The courts approved the theory of the Model Code and reasoned that the changes in their statutes from the reference to two or more persons doing certain things to a statement that a conspiracy arose when one agreed or planned with another to commit an offense indicated an intent to adopt the unilateral theory. The Marian court also noted that its legislature had made no provision for the offense of solicitation.

Section 8 — 2(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 2) is similar to the legislation interpreted in Marian and St. Christopher in that (1) it speaks of “[a] person” committing conspiracy when that person “agrees with another to the commission of [an] offense,” and (2) it replaced statutory language which was similar to the prior statutes in those cases, and spoke in terms of “If two or more persons shall conspire.” (Ill. Rev. Stat. 1961, ch. 38, pars. 138 through 140.) Nevertheless, we are convinced the drafters of the Criminal Code did not intend to adopt the unilateral theory.

The Criminal Code was drafted by a joint committee appointed by the Illinois State and Chicago Bar Associations consisting of distinguished judges, prosecutors, attorneys, and college professors. The committee made a lengthy and thorough study of the substantive criminal law of the State. The comments of that committee concerning section 8 — 2 (Ill. Ann. Stat., ch. 38, par. 8 — 2, Committee Comments, at 458-60 (Smith- Hurd 1972)) state that the section changed the law of conspiracy by (1) abolishing common law conspiracy, (2) providing that an act in furtherance of the conspiracy must be alleged and proved, (3) eliminating the defenses that the person or persons with whom the accused is alleged to have conspired has been acquitted or lacked the capacity to commit an offense, (4) eliminating the “Wharton Rule” whereby conspiracy was not committed if the agreement was to commit an offense which required the conduct of more than one person, and (5) changing the penalty provision.

Citing People v. Bryant (1951), 409 Ill. 467, 100 N.E.2d 598, the Committee Comments note, “theoretically, there must be at least two guilty parties to a conspiracy.” (Ill. Ann. Stat., ch. 38, par. 8 — 2, Committee Comments, at 459 (Smith-Hurd 1972).) The comments then say that rationale was rejected to the extent of the changes brought about by section 8 — 2(b) (4) and (5) which do away with the defenses of acquittal or lack of capacity to commit an offense of the person or persons with whom the agreement to commit an offense was made. Nothing in the comments indicates that the failure of another person or persons to intend to agree to commit an offense would be a lack of capacity. The comments indicate the rationale of subsections (4) and (5) is that neither the contingencies or vagaries of other trials nor the legal incapacity of persons with whom an agreement is made should prevent the conviction of an accused if the accused is given a fair trial. We do not interpret this discussion to indicate any intention to abandon the requirement that at least two people must intend to agree to the commission of a crime in order for a conspiracy to exist.

Both by the language of section 8 — 2 and by the language of the Comments, the drafters set forth in detail the changes intended to be brought about in the law of conspiracy. The Comments indicate the drafters were aware of the existence of Tentative Draft No. 10 of the Model Penal Code. For them to have intended to also change from the traditional “bilateral” theory of conspiracy to the “unilateral” theory without making a specific mention of that intent in either document is inconceivable. We interpret section 8 — 2 to require an intention to agree on behalf of at least two people.

Our conclusion as to the intent of the legislature is strengthened by the existence in section 8 — 1(a) of the Criminal Code of 1961 of a provision for the offense of solicitation stated as follows:

“(a) Elements of the offense.
A person commits solicitation when, with intent that an offense be committed, he commands, encourages or requests another to commit that offense.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 1(a).)

The punishment for solicitation is reasonably similar to that for conspiracy. In most cases where conspiracy occurs under the unilateral theory, a solicitation would also take place. As we subsequently explain, the evidence here would have supported a conviction of solicitation. With the existence of the offense of solicitation with substantial punishment available upon conviction, the need for the legislature to have provided for a unilateral conspiracy was much less here than in Marian, where the State criminal statutes made no provision for such an offense.

Our determination that section 8 — 2 retains the bilateral approach to conspiracy is based entirely on our interpretation of legislative intent. Our holding is consistent with dictum in People v. Ambrose (1975), 28 Ill. App. 3d 627, 329 N.E.2d 11, the only opinion of a court of review of this State which speaks on this aspect of section 8 — 2. We express no opinion as to whether the “unilateral approach” or the “bilateral” one is the sounder policy.

We now turn to the fairly simple facts of the issue before us in this case. The State’s key witness, Robert Bruce, was an inmate at Pontiac Correctional Center where defendant was a guard. Bruce testified that on August 5, 1980, while he was still incarcerated, he had a conversation with defendant in which, at defendant’s suggestion, they discussed the possible burglaries of sporting goods stores. Bruce testified defendant told him he, Bruce, would get some money for his efforts. Although Bruce testified to asking to see some plans of a sporting goods store under consideration, he did not testify that he then agreed to participate in any burglary. The tenor of his testimony was that he was merely considering the possibility of doing so. On cross-examination by the defense, Bruce emphatically stated he never had the intention to agree to committing a burglary. The evidence was undisputed that the next day a State’s investigator contacted Bruce in the prison concerning the possibility of riots breaking out there, and Bruce then told the investigators of his conversation with defendant on the previous day. The evidence was strong that thereafter defendant feigned agreement with plans to burglarize a sporting goods store in conjunction with defendant. Defendant testified contrary to Bruce, asserting that Bruce approached him suggesting a burglary, but he did not agree to the proposal.

The State relies on the “unilateral” theory but also claims that the evidence was sufficient for the jury to have determined beyond a reasonable doubt that, for one day, Bruce did intend to agree to commission of a burglary. We disagree. Nothing Bruce testified to indicated he was doing more than considering agreement to commit the offense. On cross-examination he denied such intent. Defendant gave such a different version of the occurrence of August 5, 1980, than did Bruce, that the jury could not have believed defendant’s version that Bruce solicited him, thus indicating Bruce’s intent to agree, and have rejected defendant’s claim he did not agree to committing the burglary. The evidence was so lacking that Bruce, even for a day, intentionally agreed to the offense that a reasonable jury could not have so found.

As we previously mentioned, the evidence-was sufficient to prove beyond a reasonable doubt that, with intent a burglary be committed, defendant requested Bruce to commit a burglary thus making defendant guilty of solicitation. Proof beyond a reasonable doubt of his guilt of conspiracy was not made.

Accordingly, we need not discuss defendant’s other citations of error. We reverse.

Reversed.

WEBBER, J., concurs.

JUSTICE MILLS,

specially concurring:

I concur in the result reached by the majority because no agreement was proved. Bruce never represented to the defendant that he would commit the burglary.

However, I do not agree that the drafters of section 8 — 2 intended to retain the bilateral approach to conspiracy.

As my able colleagues note in the majority opinion, the drafters were aware of the existence of the Model Penal Code. In the Committee Comments, attention is directed to the “comprehensive and exhaustive review of the law on all three [inchoate] offenses in Model Penal Code comments and appendices ***.” (Ill. Ann. Stat., ch. 38, pars. 8 — 1 through 8 — 6, Committee Comments, at 454 (Smith-Hurd 1972).) Throughout the Committee Comments to section 8 — 2, comparisons with, and contrasts to, the Model Penal Code conspiracy statute are noted. Ill. Ann. Stat., ch. 38, par. 8 — 2, Committee Comments, at 458-60 (Smith-Hurd 1972).

It is especially significant that the drafters were knowledgeable of the Model Penal Code. In the notes to section 5.03 of the Model Penal Code, it is stated:

“Unilateral Approach of the Draft.
The definition of the Draft departs from the traditional view of conspiracy as an entirely bilateral or multilateral relationship, the view inherent in the standard formulation cast in terms of ‘two or more persons’ agreeing or combining to commit a crime. Attention is directed instead to each individual’s culpability by framing the definition in terms of the conduct which suffices to establish the liability of any given actor, rather than the conduct of a group of which he is charged to be a part — an approach which in this comment we have designated ‘unilateral.’ ” (ALI Model Penal Code, at 104 (Tent. Draft No. 10, 1958).)

Prior to the Criminal Code of 1961, Illinois conspiracy statutes were phrased in terms of “two or more persons.” (See Ill. Rev. Stat. 1961, ch. 38, pars. 138 through 140.) According to the Model Penal Code notes, the bilateral theory was inherent in this language. And, in fact, the Illinois courts applied a bilateral approach to the conspiracy statutes.

If the drafters of the Criminal Code of 1961 intended to retain the bilateral theory, they most certainly would have retained the language “two or more persons.” Yet, not only did the drafters reject this language, they drafted the conspiracy statute in the form of the Model Penal Code by defining conspiracy in terms of the conduct which suffices to establish the liability of a “person.” As was stated in Goedde v. Community Unit School District No. 7 (1959), 21 Ill. App. 2d 79, 84, 157 N.E.2d 266, 269: “Where by amendment or revision, words are stricken from a statute it must be concluded that the Legislature deliberately intended to change the law. It will not be presumed that the difference between two statutes was due to oversight or inadvertence, but the presumption is that every amendment or revision is made to effect some purpose.”

The basis of the decisions in State v. Marian (1980), 62 Ohio St. 2d 250, 405 N.E.2d 267, and State v. St. Christopher (1975), 305 Minn. 226, 232 N.W.2d 798, in which the courts adopted the unilateral theory, was that the legislatures changed the statutory language from requiring that two or more persons conspire to requiring that one person planned with another.

I do not find persuasive the argument that, had the drafters intended to adopt the unilateral theory, they would have said so in the Committee Comments. In the 60 pages of text and footnotes in the notes to the Model Penal Code conspiracy statute, little more than two pages were directed to the bilateral versus unilateral issue. (ALI Model Penal Code, at 104-06 (Tent. Draft No. 10, 1968).) I suggest that it is a fair inference that the drafters of the Illinois ■ conspiracy statute found that the issue did not warrant discussion in their three pages of notes. This is especially so since — by rejecting the “two or more” language — the drafters gave a clear signal to the court to adopt the unilateral theory.

Clearly, a reviewing court is not required to reject an innovative change in the law merely because a legislative committee has not expressly directed us to adopt it.


author: JUSTICE REINHARD

text:
    JOSEPH J. LA ROCCO, Plaintiff-Appellant, v. EDWARD M. BAKWIN et al., Defendants-Appellees.
    Second District
    81 — 983
    Opinion filed August 17, 1982.

      David P. List, J. Andrew Schlickman, and Donald L. Homyk, all of Sidley and Austin, of Chicago, for appellant.
    David S. Acker and Steven J. Goldberg, both of Winston and Strawn, of Chicago, and Lester Munson, of Smith and Munson, of Wheaton, for appel-lees.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, Joseph J. La Rocco, an attorney, filed a two-count complaint for breach of an oral lifetime employment contract against defendant, Edward M. Bakwin, in count I, and for tortious interference with contract and with prospective economic advantage arising out of a business relationship against defendants, John D. McCallum and Marshall R. Crohan, in count II. The trial court entered summary judgment in favor of all defendants. Plaintiff raises two issues on appeal: (1) that he is entitled to more than quantum meruit recovery for his wrongful discharge as attorney in count I; and (2) that the trial court erred in determining that count II presented no genuine issue of material fact.

The relevant facts contained in the pleadings, affidavits, and discovery deposition of the plaintiff are summarized as follows. Between 1970 and June 30, 1975, plaintiff was engaged in the practice of law both as a sole proprietor and as an employee in the law office of William E. Anderle. The law office of William E. Anderle devoted virtually all of its professional services to the “Morris Family” and the various businesses which members of the Morris family controlled (Morris Family Clientele). During the course of his employment by the law office of William E. Anderle, plaintiff became familiar with and performed many legal services for the Morris Family Clientele. Lysle S. Burk, who for approximately 40 years had been the agent and close, confidential investment advisor to members of the Morris Family Clientele, had numerous discussions with plaintiff that upon Ande-rle’s retirement plaintiff would assume control over the legal matters of the “Morris Family.” It had been the practice for many years for the “Morris Family” to maintain a private, captive law firm which occupied and shared office space and personnel with certain of the family members and their agents. In 1972, Edward M. Bakwin, a family member, became the agent for and representative of the Morris Family Clientele upon the death of Edward Morris, who had been the long:time manager of all “Morris Family” business interests.

In early 1975, William E. Anderle, because of his health, was unable to provide full-time legal services for Bakwin and the Morris Family Clientele. In April 1975, plaintiff entered into an oral agreement with Burk, as the agent and representative of Bakwin, whereby plaintiff would provide a law office devoted almost exclusively to providing legal services for the Morris Family Clientele. Plaintiff also entered into a separate agreement with Anderle to purchase his law practice for $40,000. Bakwin orally agreed to employ plaintiff to handle all of the Morris Family Clientele legal business for as long as plaintiff provided adequate legal services. Subsequently, Bakwin and plaintiff agreed that plaintiff would bill for his services at an hourly rate on a monthly basis. The parties also agreed that plaintiff would share office facilities with Burk, Bakwin and Patrick Henry, another member of the Morris family. Generally, plaintiff was to provide legal services to the Morris Family Clientele which included family members, the Darling-Delaware Company, Inc., and its divisions and subsidiaries, and numerous other family businesses, organizations, trusts, and properties in which the Morris Family Clientele had an interest. It was also understood that plaintiff would have to hire additional attorneys to assist him who would be approved by Bakwin or Burk. Plaintiff was then appointed as general counsel for the Darling-Delaware Company, Inc., a major “Morris Family” holding.

Plaintiff commenced his legal services on July 1, 1975, and continued until September 20, 1979, when he was terminated. During that period of time he derived approximately 75 to 80% of his net income from representation of the Morris Family Clientele. His responsibilities included: supervision of all litigation involving the Morris Family Clientele; the representation of the Morris Family Clientele in antitrust matters, mergers and acquisitions; tax matters involving family members and corporate entities; supervision of policies and legislation affecting the various family businesses; and implementation of a program of preventative legal care.

John D. McCallum became president of Darling-Delaware Company, Inc., in 1976; and Marshall R. Crohan was the secretary-treasurer of the company.-During 1976 and until plaintiffs termination in 1979, disagreements arose between plaintiff and McCallum over referral of some of the company’s legal matters to outside counsel other than plaintiff. Additionally, McCallum and plaintiff clashed over whether McCallum was to keep plaintiff informed of practices and policies of the various Darling-Delaware divisions, particularly on legal matters referred to outside counsel. In March 1979, plaintiff advised Bakwin, who also was chairman of the board of Darling-Delaware, that certain divisions of the company were in violation of antitrust laws, that certain divisions were being operated in violation of Federal and State environmental protection laws, that certain corporate employees had embezzled money from Darling-Delaware and no action had been taken to discover the exact amount taken or to recover the money. Subsequently, Bakwin met with plaintiff, Crohan, and McCallum to discuss plaintiff’s assertions. McCallum informed Bakwin that unless plaintiff was terminated as general counsel for Darling-Delaware, he would resign as president. The board of directors of Darling-Delaware terminated plaintiff as general counsel effective April 20, 1979, and plaintiff was terminated as attorney for the Morris Family Clientele on September 20, 1979. As of September 20, 1979, plaintiff employed four other attorneys, several secretaries and other office personnel, and maintained an office with an extensive library. After his termination, plaintiff states he incurred significant expenses involved in terminating his office lease, moving, providing salary to employees until other employment was secured, and in lost profits.

In count I of his complaint against Bakwin, plaintiff seeks pursuant to a breach of an oral contract of employment, damages for lost profits, expenses incurred in dissolving his law office, and money owed on past legal bills. In count II against McCallum and Crohan, plaintiff seeks, pursuant to the legal theories of tortious interference with contract and with prospective economic advantage arising out of a business relationship, damages for expenses incurred in dissolving his law office, for lost past and future profits, and punitive damages.

With regard to count I of the complaint which seeks damages for lost profits and expenses incurred in dissolving his law office, plaintiff contends that he is not limited to quantum meruit recovery, and argues that the recent decision of our supreme court in Rhoades v. Norfolk & Western Ry. Co. (1979), 78 Ill. 2d 217, 399 N.E.2d 969, is not applicable under the facts of this case. He contends that in Rhoades the attorney-client relationship was for a single legal matter for a single client on a contingent fee agreement, whereas in the instant case the attorney-client relationship was virtually a lifetime employment agreement for nearly full-time representation for a wide variety of legal matters for the Morris Family Clientele.

In Rhoades the attorney who was hired on a contingent fee basis was discharged by his client without a single business day elapsing following the signing of their employment contract. The court held that an attorney who is discharged without cause is not entitled to recover contract fees from his former client but is entitled to be paid on a quantum meruit basis a reasonable fee for services rendered before discharge. (78 Ill. 2d 217, 230, 399 N.E.2d 969.) Subsequently, in Department of Public Works v. Exchange National Bank (1981), 93 Ill. App. 3d 390, 417 N.E.2d 1045, we rejected a discharged attorney’s argument that he was entitled to enforce his contingent fee contract with his clients for whom he had done work over a five-year period, stating that “in our view, [Rhoades] adopted quantum meruit as the measure of compensation for Illinois attorneys discharged by their clients.” (93 Ill. App. 3d 390, 393, 417 N.E.2d 1045.) In In re Marriage of Reczek (1981), 95 Ill. App. 3d 220, 420 N.E.2d 161, we noted the rule stated in Rhoades in a case which did not involve a contingent fee agreement. In Reczek the question presented was whether, following an agreed dismissal of dissolution of marriage proceeding, attorney fees based upon a retainer agreement may be awarded to an attorney who has been replaced. We held that the attorney was entitled only to a reasonable fee for his services rendered.

It is clearly evident from the pleadings, affidavits, and plaintiff's deposition that the contract for plaintiff’s legal services was oral, did not contain an expression of the compensation that was due plaintiff for his services, and was terminable at will by the “Morris Family.” ' Plaintiff’s deposition acknowledged that it was clear that the “Morris Family” could take any of their business to another firm although in the past they had always maintained a private, captive law firm to provide most of their legal services. Plaintiff has not cited us any authority for the damages he claims under the circumstances present here which result from a client’s termination of an at will employment contract with his attorney.

In Illinois, recovery under a quantum meruit theory arising from services rendered by an attorney is for the reasonable worth or value of his services as shown by the evidence. (Greenbaum & Browne, Ltd. v. Braun (1980), 88 Ill. App. 3d 210, 410 N.E.2d 303; Slater v. Jacobs (1977), 56 Ill. App. 3d 636, 371 N.E.2d 1054; Neville v. Davinroy (1976), 41 Ill. App. 3d 706, 355 N.E.2d 86.) We would be reluctant to consider appropriate in attorney-client fee cases consequential damages for lost profits and expenses allowed in other breach of contract cases, as suggested by plaintiff, for to do so, in our opinion, would be unjust in holding a client liable for these damages for exercising his right to discharge his attorney at will. As indicated in Fracasse v. Brent (1972), 6 Cal. 3d 784, 494 P.2d 9, 100 Cal. Rptr. 385, cited with approval in Rhoades, the client’s right to discharge his attorney at will is not a breach of contract but a term of the contract implied by law because of the special relationship between attorney and client. (Rhoades v. Norfolk & Western Ry. Co. (1979), 78 Ill. 2d 217, 229, 399 N.E.2d 969.) Thus, the contract is not breached and the damages for termination of an attorney-client relationship under these facts are not governed by normal contract law principles. Although the plaintiff here almost exclusively represented one client, the Morris Family Clientele, we believe that the proper balance between the client’s right to discharge his attorney and the attorney’s right to compensation under the facts presented, is that the discharged attorney’s fees be paid on a quantum meruit basis for services rendered before discharge. See Rhoades v. Norfolk & Western Ry. Co. (1979), 78 Ill. 2d 217, 399 N.E.2d 969.

Plaintiff also contends in his appellate brief that he relied to his detriment on this lifetime employment agreement and should be entitled to damages in excess of quantum meruit under the theory of detrimental reliance. (See Jenkins & Boiler Co. v. Schmidt Iron Works, Inc. (1976), 36 Ill. App. 3d 1044, 344 N.E.2d 275; Restatement (Second) of Contracts sec. 90(1) (1981).) This theory was neither pleaded in count I of the complaint nor argued at the trial court level. An appellate court will not consider different theories or new questions raised for the first time on review. (Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147, 324 N.E.2d 417; Ayres v. Bituminous Insurance Co. (1981), 100 Ill. App. 3d 33, 36, 424 N.E.2d 1316; Frisch Contracting Service Corp. v. Northern Illinois Gas Co. (1981), 93 Ill. App. 3d 799, 805, 417 N.E.2d 1070.) Nonetheless, even were we to consider this argument, we would reject it, for its application under these facts would only serve to undercut our holding and the rationale for it as discussed above. Since the right of a client to terminate his attorney at will is an implied term of the contract, an attorney may not rely on the continuation of such employment. Accordingly, the trial court properly entered summary judgment for defendant Bakwin on count II.

As to count II of the complaint against McCallum and Crohan, which is based upon a tortious inference with contract and prospective economic advantage arising out of a business relationship, the trial court granted summary judgment for the defendants indicating that it must fail because it relies on count I. Defendants also assert on appeal that the “cornerstone requirement for tortious interference with contract is a breach of the alleged contract,” citing Pfendler v. Anshe Emet Day School (1980), 81 Ill. App. 3d 818, 401 N.E.2d 1094, and that the court in Rhoades followed the reasoning that the client’s right to discharge his attorney at will is not a breach of contract but a term of the contract implied by law. (Rhoades v. Norfolk & Western Ry. Co. (1979), 78 Ill. 2d 217, 229, 399 N.E.2d 969.) Plaintiff contends that his theory alleged in count II is not dependent upon count I and he has pleaded and presented sufficient issues of material fact to withstand the defendants’ summary judgment motion.

Initially, we point out that defendants have not challenged the sufficiency of count II of the complaint to state a cause of action by a motion pursuant to section 45 of the Civil Practice Act. (Ill. Rev. Stat. 1979, ch. 110, par. 45.) Rather, defendants by the procedure of filing a motion for summary judgment pursuant to section 57 (Ill. Rev. Stat. 1979, ch. 110, par. 57) have necessarily assumed that a cause of action has been stated and that they are entitled to a judgment as a matter of law as there is no genuine issue of material fact. (See Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 312 N.E.2d 605.) In this context, we must determine whether there are no genuine issues of material fact and defendants are entitled to a judgment as a matter of law.

Illinois decisions recognize that third party inducement of breaches of contract or unjustifiable interference by third parties in business relationships between attorneys and clients are actionable. (Herman v. Prudence Mutual Casualty Co. (1969), 41 Ill. 2d 468, 244 N.E.2d 809; Knell v. State Farm Mutual Automobile Insurance Co. (1975), 32 Ill. App. 3d 491, 36 N.E.2d 568; Marcus v. Wilson (1973), 16 Ill. App. 3d 724, 306 N.E.2d 554; see also, generally, Annot., 26 A.L.R.3d 679 (1969).) It is stated in section 766 of the Restatement (Second) of Torts as follows:

“One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract.” (Restatement (Second) of Torts sec. 766 (1979).)

The tort of interference with existing or prospective contractual relations requires that the interference be both intentional and improper, and in determining whether the interference is improper or not, section 767 of the Restatement (Second) of Torts states:

“In determining whether an actor’s conduct in intentionally interfering with a contract or a prospective contractual relation of another is improper or not, consideration is given to the following factors:
(a) the nature of the actor’s conduct,
(b) the actor’s motive,
(c) the interests of the other with which the actor’s conduct interferes,
(d) the interests sought to be advanced by the actor,
(e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other,
(f) the proximity or remoteness of the actor’s conduct to the interference and
(g) the relations between the parties.”
Restatement (Second) of Torts sec. 767 (1979).

Count II of the complaint alleges, inter alia, that “McCallum and Crohan, maliciously and with intent, interfered with the Agreement and destroyed LaRocco’s advantageous business relationship with Bakwin and Darling-Delaware Company, Inc., in that they caused Bakwin to breach the Agreement by retaining other lawyers to represent Darling-Delaware Company, Inc.;” that McCallum and Crohan determined, conspired and agreed, between February 1, 1979, and April 20, 1979, to cause Bakwin to terminate the services of LaRocco; and further that McCallum and Crohan caused Bakwin to breach the agreement by wrongfully terminating plaintiff solely to avoid the institution of the legal procedures and remedial actions recommended by plaintiff and to avoid disclosure of their activities to the full board of directors of Darling-Delaware and the Morris Family Clientele. Upon examination of the affidavits of the parties and the plaintiff’s deposition, it is apparent that plaintiff has asserted specific instances of Darling-Delaware divisions hiring their own attorneys, of defendants ignoring plaintiff’s responsibility under the agreement to coordinate legal matters of Darling-Delaware and its divisions, and of a threat by McCallum that unless plaintiff was terminated as general counsel he would resign as president. While defendants refute some of these assertions, they also argue in their appellate brief that their actions were not wrongful and as corporate officers they act “with privilege when acting in *** corporate capacity, in good faith, for a proper business purpose.” Defendants’ contentions only raise issues of material fact which cannot be decided here in a summary judgment motion.

It is also defendants’ argument that a “breach” of the contract between plaintiff and Bakwin is a necessary requirement for tortious interference with a contract. In Pfendler v. Anshe Emet Day School (1980), 81 Ill. App. 3d 818, 401 N.E.2d 1094, cited to us by defendants, the court found that since there was no breach of the contract to which plaintiff therein was a party, the defendant could not be guilty of inducing a breach of contract. However, plaintiff here has generally alleged both an interference with a contractual relationship and interference with a business relationship between attorney and client. A cause of action for tortious interference with a business relationship need not be based upon an enforceable contract which is interfered with, but it is the interference with the relationship which creates the actionable tort. (See Kemper v. Worcester (1982), 106 Ill. App. 3d 121, 435 N.E.2d 827.) Thus, interference with the relationship between an attorney and his client may be actionable even if the relationship is terminable at will.

Under the pleadings, affidavits, and deposition before us, we find there are genuine issues of material fact in dispute to preclude the granting of summary judgment in count II which require us to reverse and remand. Summary judgment for Bakwin in count I is affirmed for the reasons stated above.

Judgment affirmed in part and reversed in part and remanded.

LINDBERG and UNVERZAGT, JJ., concur.

      It is agreed by the parties that any money owed on past legal bills will be settled by the parties and is no longer contested in this lawsuit.


author: JUSTICE LINDBERG JUSTICE LINDBERG

text:
    MCDONALD’S CORPORATION et al., Plaintiffs-Appellants, v. WILLIAM S. LEVINE et al., Defendants-Appellees.
    Second District
    No. 81 — 151 .
    Opinion filed July 26, 1982.
    Supplemental opinion filed on denial of rehearing September 24, 1982.

      Richard C. Schultz and Douglas S. Moore, both of Foran, Wiss and Schultz, of Chicago, for appellants.
    Louis M. Rundió, Jr., and Theodore Groenke, both of McDermott, Will and Emery, of Chicago, for appellees.
   JUSTICE LINDBERG

delivered the opinion of the court:

This is an appeal from the dismissal by the circuit court of Du Page County of a six-count complaint brought by McDonald’s Corporation (McDonald’s) and two of its employees, Noel Kaplan and Dean Canterbury. Plaintiffs sought damages from William S. Levine, Gene Himmelstein, and Stephen Haberkorn, McDonald’s franchisees in Arizona and their Illinois attorney, W. Yale Matheson for violation of the Illinois eavesdropping act (Ill. Rev. Stat. 1977, ch. 38, par. 14 — 1 et seq.).

Plaintiffs allege they discovered the eavesdropping and theft of documents from McDonald’s corporate offices in March 1978 when, during discovery being conducted in a proceeding before the Federal District Court for the District of Arizona, tape recordings and documents were produced. The Arizona action, William S. Levine et al. v. McDonald’s Corporation, et al., filed in August 1977, alleged that McDonald’s and 27 other defendants violated the Sherman Antitrust Act, Arizona antitrust laws, and certain trademarks and breached various contractual obligations. Matheson, an Illinois attorney, was one of the attorneys representing plaintiffs in the Arizona action.

The instant complaint alleges that the surreptitious recording of telephone conversations and meetings in violation of the Illinois eavesdropping act occurred in 1976 and 1977. These conversations were among 21 surreptitiously recorded conversations of McDonald’s employees which were made by defendants in Illinois, California, and Arizona during the period of August 1973 to February 1978. Among the conversations recorded was a meeting held in August 1976 attended by Kaplan, Canterbury, Levine, and Haberkorn, a telephone conversation between Kaplan and Himmelstein in November 1976, a telephone call between Kaplan and Haberkorn in February 1977, and a March 1977 telephone conversation between Kaplan and Haberkorn. The complaint alleges that on each occasion the recording was made secretly by defendants without the knowledge or consent of Kaplan, Canterbury, or McDonald’s. In each instance the surreptitious recordings were given to Matheson for his use and publication.

The photocopied documents comprising 386 separate documents constituted a total of 1,088 separate pages. McDonald’s alleges that one-half of the documents were physically stolen from the offices of McDonald’s. McDonald’s alleges that the other half were obtained by covert photocopying of the originals which were located in McDonald’s offices and that the originals were then returned to their place in the files. The documents which were allegedly stolen and secretly photocopied were maintained by McDonald’s in locked file cabinets which, in most cases, were located in secure areas and private offices. Only authorized personnel were permitted access to the documents.

McDonald’s maintains that the stolen documents deal with the corporate business, finances and business relationships, and communications between officers, employees, and attorneys of McDonald’s. Of the 1,088 allegedly stolen documents only 168 pages have any relationship to the instant defendants or to their franchises, and the balance would appear to have no relation to the instant defendants.

In its six-count complaint the plaintiffs alleged the following: Count I alleges that defendants violated the Illinois eavesdropping act (Ill. Rev. Stat. 1977, ch. 38, par. 14 — 1 et seq.), which prohibits the use of any eavesdropping device to hear or record any conversation unless done with the consent of all parties to the conversation. Specifically, Levine, Haberkorn and Himmelstein, each a McDonald’s franchisee operating in Arizona are accused of surreptitiously tape recording the plaintiffs’ meeting and telephone conversations by using concealed tape recorders and telephone devices. After the tape recordings were made, the defendants Levine, Haberkorn and Himmelstein turned them over to Matheson, an Illinois attorney, for his use and publication. The plaintiffs did not discover the existence of the tape recordings and transcripts until early 1978.

Count II alleges that the defendant Matheson violated the eavesdropping act in that he used and divulged the information contained in the tape recordings and transcripts of the recordings when he knew or should have known that the tapes and transcripts were obtained by illegal eavesdropping. The plaintiffs allege the defendants fraudulently concealed their activities of making the recordings and using the contents and they seek compensatory damages, injunctive relief prohibiting further eavesdropping and punitive damages, all as provided for under the eavesdropping act.

Count III alleges that the defendants Levine, Haberkorn and Him-melstein, conspired to steal and did steal from the offices of McDonald’s numerous privileged, secret and confidential documents. The court further alleges that in furtherance of the conspiracy these three defendants conspired with Matheson to turn the stolen documents and copies therof over to Matheson for his use and publication. The plaintiffs allege the defendants agreed and conspired with each other to fraudulently conceal from McDonald’s the fact that they stole and copied the documents. In count IV therefore defendants are charged with receiving, possessing and using the documents stolen from McDonald’s when they knew or should have known the documents were stolen. Counts III and IV seek compensatory damages and punitive damages.

Count VI alleges that the theft and use of privileged communications between McDonald’s and its attorneys violated McDonald’s attorney-client privilege. No appeal is taken from that portion of the circuit court’s order dismissing count V of the complaint alleging a violation of McDonald’s right to privacy.

The issues before us are: (1) whether counts I and II alleging violatlions of the Illinois eavesdropping act are barred by the running of the statute of limitations found in sections 13 and 14 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 14 and 15) and if not, whether a violation occurred of the eavesdropping act (Ill. Rev. Stat. 1977, ch. 38, par. 14 — 1 et seq.); (2) whether the circuit court erred in dismissing counts I and II which were the claims of Noel Kaplan and Dean Canterbury, on the basis that as employees of McDonald’s they are not real parties in interest in and action pursuant to a violation of the eavesdropping statute; (3) whether the court erred in dismissing counts III and IV on the ground that they are compulsory counterclaims under the Federal Rules of Civil Procedure; (4) whether the court erred in ruling that the count VI allegations of tortious interference with the attorney-client privilege failed to state a cause of action; and (5) as to defendant Matheson, whether the court’s dismissal of counts II, III, IV, and VI may be sustained on the ground that an attorney has immunity for using or divulging illegally obtained materials in the course of representation of his client in litigation. We affirm the order of the circuit court of Du Page County dismissing counts II, III, IV, and VI, and reverse and remand as to count I.

COUNTS I AND II: LIMITATIONS ISSUE

Defendants argue that the claims in counts I and II alleging violations of the eavesdropping act (Ill. Rev. Stat. 1977, ch. 38, par. 14 — 1 et seq.) were barred by section 13 of the Limitations Act, which provides that actions for slander and libel or for publication of matter which leads to invasion of privacy must be commenced within one year. (Ill. Rev. Stat. 1977, ch. 83, par. 14.) Defendants contended in their motion that since the last recorded telephone conversation in Illinois known to plaintiffs occurred in March 1977, the complaint should have been filed no later than March 1978. Plaintiffs maintain that the five-year limitation of sections 15 and 22 are the appropriate limitations for the causes of action alleged in counts I and II. Ill. Rev. Stat. 1977, ch. 83, pars. 16 and 23.

Defendants argue that the one-year limitation of section 13 of the Limitations Act applies because it has been determined that eavesdropping activities can constitute a form of invasion of the right of privacy known as “intrusion upon seclusion.” (See Restatement (Second) of Torts sec. 652B, Comment b (1965).) Defendants conclude that section 13 applies to counts I and II because these counts allege an intrusion upon seclusion which is rooted in section 13. Defendants’ argument is misplaced since section 13 only applies to actions for slander or libel arising out of a publication of matters violating the right of privacy. (Winrod v. Time, Inc. (1948), 334 Ill. App. 59, 78 N.E.2d 708.) Counts I and II did not allege libel, slander, or publication of private matters and therefore section 13 does not apply.

Alternatively, defendants contend that the two-year statute of limitations of section 14 of the Limitations Act applies. (Ill. Rev. Stat. 1977, ch. 83, par. 15.) Section 14 provides in relevant part:

“Actions for *** a statutory penalty *** shall be commenced •within two years next after the action accrue[s] ***.” (Emphasis added.) Ill. Rev. Stat. 1977, ch. 83, par. 15.

The circuit court interpreted the Illinois eavesdropping act as constituting a statutory penalty governed by section 14. The court arrived at this conclusion even though it recognized that the eavesdropping act is “more accurately described as a statutory cause of action and not a statutory penalty.” The difficulty the circuit court had in reaching its decision to bar counts I and II is apparent from the order itself. After holding that section 14 applies, the court concluded that the provisions of the eavesdropping act are vague stating:

“I have just considered that the usual civil remedies of injunction and actual and punitive damages do not squarely fit the general concept of a ‘penalty’ and that Section 14 — 6 of the Eavesdropping Act may be more accurately described as creating a statutory cause of action rather than a statutory penalty.”

Thus, the circuit court recognized that the eavesdropping act was actually a statutory cause of action rather than a statutory penalty. The difficulty the court experienced in counts I and II within the provisions of the two-year limitations of section 14 is explicitly revealed by the court’s criticism of the ambiguity of the eavesdropping act:

“The fault lies in the vagueness of Section 14 — 6 in failing to provide a limitation.”

A statute is a statutory penalty if it imposes automatic liability for a violation of its terms and the amount of liability is predetermined by the act and imposed without actual damages suffered by the plaintiff. (Hoffman v. Clark (1977), 69 Ill. 2d 402, 429.) A statute is remedial when it gives rise to a cause of action to recover compensation suffered by the injured person. (Schaefer v. H.B. Green Transportation Line, Inc. (7th Cir. 1956), 232 F.2d 415, 418.) In M. H. Vestal Co. v. Robertson (1917), 277 Ill. 425, our supreme court held that a statute is remedial and not penal where it imposes liability only when actual damage results from a violation. In such a case, liability is contingent upon damage being proven by the plaintiff. Under a penal statute, liability is not contingent but imposed automatically when a violation of the statute is established. See also Klages v. Kohl (1906), 127 Ill. App. 70.

Section 14 — 6 of the eavesdropping act is entitled “Civil remedies to Injured Parties.” The civil remedies are:

“(a) *** [A]n injunction by the circuit court prohibiting further eavesdropping by the eavesdropper ***;
(b) *** [A]ll actual damages against the eavesdropper or his principal or both;
(c) *** [A]ny punitive damages which may be awarded by the court or by a jury; ***.” Ill. Rev. Stat. 1977, ch. 38, par. 14-6.

The three civil remedies to an injured party are not a statutory penalty but a codification of the traditional common-law remedies afforded to anyone whose rights have been tortiously violated. The in-junctive relief is designed to prevent further eavesdropping — not to punish the eavesdropper. The award of all actual damages or any punitive damages which may be awarded by the court or by a jury is identical to the relief available to any plaintiff in a tort action.

A statute requiring the payment of actual and punitive damages by a wrongdoer does not constitute a statutory penalty. Punitive damages have always been available in tort actions, provided requisite circumstances exist. (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172.) Although punitive and compensatory damages may be awarded by a court or jury, the award does not flow automatically from a violation of the statute nor is the amount of damage predetermined by the statute. Therefore, we conclude that the eavesdropping act merely creates a cause of action in favor of one who has been the victim of eavesdropping. Under section 14 — 6 the victim must prove he is entitled to damages in the same manner as he would in any common law tort action. The eavesdropping act is a statutory cause of action invoking the limitations of sections 15 and 22 and not a statutory penalty. Ill. Rev. Stat. 1977, ch. 83, par. 15.

Since we have held that a two-year statute of limitations does not apply we do not need to address plaintiffs’ argument that the “discovery rule” determines the date on which any applicable limitation period must commence. Tom Olesker’s Exciting World of Fashion, Inc. v. Dunn & Bradstreet, Inc. (1975), 61 III. 2d 129.

COUNTS I AND II: EAVESDROPPING ISSUE

We now address the merits of plaintiffs’ complaint. Count I, brought by all the plaintiffs was based on an alleged violation of the Illinois eavesdropping act (Ill. Rev. Stat. 1977, ch. 38, par. 14 — 1 et seq.). It alleged that the franchisees, pursuant to an agreement among themselves, secretly recorded various business conversations between themselves and Kaplan and Canterbury. Only four conversations occurring between August 1976 and March 1977 were specifically alleged. McDonald’s stated that it discovered the existence of the alleged recordings in 1978. Count I further stated that the franchisees gave the recordings to their attorney for transcription and “use.” The manner of “use” was not pleaded. This count sought compensatory and punitive damages against the franchisees alone. Count III is also based upon the existence of a violation of the eavesdropping act. It alleged damages against attorney Matheson for using and divulging information which he knew or should have known violated the eavesdropping act.

Section 14 — 2 of the eavesdropping act provides:

“A person commits eavesdropping when he:
(a) Uses an eavesdropping device to hear or record all or any part of any conversation unless he does so (1) with the consent of all of the parties to such conversation or (2) with the consent of any one party to such conversation and in accordance with Article 108A of the ‘Code of Criminal Procedure of 1963’, approved August 14, 1963, as amended; or (b) Uses or divulges, except as authorized by Article 108A of the ‘Code of Criminal Procedure of 1963’, approved August 14, 1963, as amended, any information which he knows or reasonably should know was obtained through the use of an eavesdropping device.” Ill. Rev. Stat. 1977, ch. 38, par. 14 — 2.

Defendants argue that the eavesdropping act requires an “interception” by a third party and a two-party conversation recorded by one of the parties cannot violate the act. We disagree. Throughout its 25-year history, including the amendments of 1969 and 1976, the act has never explicitly required an interception nor has any court required an interception. Several cases have found that a violation of the act occurred in two-party conversations where one of the parties recorded the conversation. People v. Kurth (1966), 34 Ill. 2d 387; Sta-matiou v. United States Gypsum, Co. (7th Cir. 1976), 534 F.2d 330; NLRB v. Local 90, Operative Plasterers, Etc. (7th Cir. 1979), 606 F.2d 189.

Based solely on People v. Klingenberg (1975), 34 Ill. App. 3d 705, 339 N.E.2d 456, as authority, defendants argue that courts have construed the statute to require an “interception.” In Klingenberg, defendant contended that a custodial videotape made after his arrest for drunken driving violated the statute. The only issue in the case was whether defendant had a reasonable expectation of privacy at the time of the videotaping. The appellate court held that the statute did not apply because the defendant failed to demonstrate an expectation of privacy. The court commented that there was no interception of a private communication. Defendants in the instant case rely on this statement claiming that the court rendered a ruling requiring interception under section 14 — 1 et seq. of the eavesdropping act. Contrary to defendants’ contention, Klingenberg did not construe the statute to require an interception. The court was merely considering a claimed violation of the statute which occurred when the sheriff intercepted a conversation by use of a video recorder. It held that such an interception does not fall within the statute where the defendant had no expectation of privacy. People v. Klingenberg (1975), 34 Ill. App. 3d 705,, 708, 339 N.E.2d 456, 459.

Defendants also rely upon Klingenberg to support their argument that the expectation of privacy protected by the act is an objective not a subjective issue determinable as a matter of law on a motion to dismiss. However, Klingenberg held that the act applies only to communications intended by the declarant to be of a private nature (34 Ill. App. 3d 705, 708, 339 N.E.2d 456, 459). Clearly the intention of the declarant at the time the statement is made is a private, individual, subjective issue which cannot be determined strictly on the basis of any predetermined set of objective criteria and resolved on a motion to dismiss. Brooks v. Midas-International Corp. (1977), 47 Ill. App. 3d 266, 361 N.E.2d 815.

Citing two cases, defendants argue that a participant in a conversation involving business cannot, as a matter of law, have an expectation of privacy. Neither decision holds a business conversation to be beyond the act’s protection or that certain types of conversations are as a matter of law, beyond the scope of the act. Defendants reliance on People v. Myles (1978), 62 Ill. App. 3d 931, 379 N.E.2d 897, is misplaced. In Myles, the court affirmed the trial court’s decision rendered after a full evidentiary hearing to admit tape recordings of telephone conversations made from the jail lockup where there were signs stating that telephone calls would be monitored. The court merely held that under the facts of the case the defendant had no expectation of privacy. Defendants’ reliance on Cassidy v. American Broadcasting Companies, Inc. (1978), 60 Ill. App. 3d 831, 377 N.E.2d 126, is also incorrect. The decision was based on a factual finding that plaintiff agreed to the filming and he demonstrated no expectation of privacy. (60 Ill. App. 3d 831, 836, 377 N.E.2d 126, 130.) Cassidy did not hold that certain conversations are not protected by the act, rather, the court held that an expectation of privacy is necessary and it must be determined on a factual analysis of each conversation.

In essence, defendants are urging this court to engraft the requirement of an “interception” onto the act. It is a basic rule of statutory construction that a court will not restrict or enlarge the plain meaning of a statute nor inject provisions into it. (Bovinette v. City of Mascoutah (1973), 55 Ill. 2d 129, 133.) Therefore, as to count I we conclude that the trial court erroneously dismissed the action as to McDonald’s, and we reverse and remand.

COUNT I AND II: KAPLAN AND CANTERBURY

McDonald’s employees, Kaplan and Canterbury, were included only in counts I and II of the complaint; they made no claims in counts III, IV or VI. In counts I and II, Kaplan and Canterbury specifically alleged they were McDonald’s representatives in its communications with the franchisees. Nowhere did they allege that they were acting in their individual capacity at any time. The circuit court ruled that they had no claims separate and apart from any claim by McDonald’s and counts I and II were dismissed as to them. The counts contain no allegations supporting a personal claim for injury to any interest of their own. Kaplan claimed to have been an officer and agent of McDonald’s at all the pertinent times and Canterbury claimed to have been a regional manager and agent of McDonald’s at all relevant times. It is significant that counts I and II alleged the recordings of a meeting between “McDonald’s agents, Kaplan and Canterbury, and two franchisees.” Plaintiffs’ response to interrogatories inquired about the purpose of the meeting and telephone conversations indicated they were not acting in their individual capacities.

Kaplan and Canterbury argued that they were parties to the conversations within the meaning of sections 14 — 6 of the eavesdropping act. (Ill. Rev. Stat. 1977, ch. 38, par. 14 — 6.) This argument is based on the premise that Kaplan and Canterbury participated in the conversations in their individual capacities. But their pleadings and their own statements establish that they were only acting in a corporate representative capacity for McDonald’s. Thus, the only parties to the conversations were the franchisees and McDonald’s, not Kaplan and Canterbury. The fact that McDonald’s brought the same claims under the eavesdropping act shows that McDonald’s considers itself a party to the conversations. McDonald’s could not have been a party to the business conversations if its employees were acting in their individual capacities rather than their corporate representative capacity.

Kaplan’s and Canterbury’s argument also is based upon a misinterpretation of a circuit court ruling. Contrary to their contention the circuit court did not create an exemption for the eavesdropping act for employees. The circuit court determined that because Kaplan and Canterbury acted in a corporate representative capacity any resulting claim was not theirs individually but belonged to their corporate employers. The circuit court did not determine that where an employee himself is injured during the course of his employment, he has no claim for injury to his person or to a personal interest. Therefore, if an employee is assaulted or slandered at work he would have a claim for injury to a personal interest. However, the case at bar is clearly different.

The cases relied upon by Canterbury and Kaplan do not establish that they, as individuals, have claims deriving from their representation of McDonald’s in the business conversations. Bianco v. American Broadcasting Companies, Inc. (N.D. Ill. 1979), 470 F. Supp. 182, and United States v. Perkins (N.D. Ohio 1974), 383 F. Supp. 922, are inapposite and not persuasive. Neither of those cases considered whether an employee had a claim when he was involved in a merely representative capacity.

Kaplan and Canterbury did not allege any injury to themselves or to their personal interest unlike the plaintiffs in Schultz v. Chicago Great Western R.R. Co. (1922), 226 Ill. App. 559. Thus, Kaplan and Canterbury assert no injury separate and apart from McDonald’s. The circuit court properly dismissed their claims.

COUNTS III AND IV: COMPULSORY COUNTERCLAIMS

Counts III and IV charged the franchisees with converting documents from McDonald’s and also with photocopying documents located in McDonald’s offices. The franchisees and their attorney Matheson are also charged with possessing and using the documents and photocopies with actual or constructive knowledge that the materials had been obtained without McDonald’s consent.

The circuit court held that these counts stated causes of action but should have been brought as compulsory counterclaims in the Arizona action, in order to avoid a multiplicity of suits. The court stated that the documents were logically related to the Arizona proceeding.

McDonald’s contends that counts III and IV are not compulsory counterclaims because the claims do not arise out of the transaction or occurrence that is the subject matter of the opposing party’s claim as required by the Federal rules (Fed. R Civ. P. Rule 13(a).) The first ground of McDonald’s argument is that the majority of the documents did not relate to the Arizona dispute. The second ground is that there is no logical relationship between the legal theories involved in the two actions.

The fact that the two actions in Arizona and Illinois will involve the same evidence is one reason for treating the second action as a compulsory counterclaim. (Great Lakes Rubber Corp. v. Herbert Cooper Co. (3d Cir. 1961), 286 F.2d 631, 634 (claims are logically related where they involve many of the same factual and legal issues, or where they are offshoots of the same basic controversy between the parties).) The courts have consistently held that Rule 13(a) of the Federal rules is to be liberally construed to avoid a multiplicity of lawsuits. Warshawsky & Co. v. Arcata National Corp. (7th Cir. 1977), 552 F.2d 1257, 1261.

Here, the situation is not merely that the two claims will partially involve the same evidence. Rather, the very use of certain evidence in the first case was the violation charged in the second case. This case is similar to several cases where plaintiffs pursuit of his action was the basis for defendant’s counterclaim in the same action. E.g., Newburger, Loeb & Co. v. Gross (2d Cir. 1977), 563 F.2d 1057, cert. denied (1978), 434 U.S. 1035, 54 L. Ed. 2d 782, 98 S. Ct. 769; United Artists Corp. v. Masterpiece Productions, Inc. (2d Cir. 1955), 221 F.2d 213.

In the case at bar, the two actions are interdependent in the matters of evidence and the use of such evidence. Additonally, the two actions are logically related as matters growing out of the franchise relationship between McDonald’s and the franchisees. McDonald’s has admitted that many of the documents in question are relevant to the subject matter of the Arizona litigation and may well be used as evidence in that litigation. The court in Crest Auto Supplies, Inc. v. Ero Manufacturing Co. (7th Cir. 1966), 360 F.2d 896, held that, where, as in the case at bar, a franchisee files a Federal antitrust claim against the franchisor, all counterclaims by the franchisor based on franchise-related activities are compulsory under Federal Rule 13(a). The circuit court correctly held that these counts should have been brought as compulsory counterclaims in the Arizona action.

COUNT VI: ATTORNEY CLIENT PRIVILEGE

The circuit court correctly dismissed count VI because the invasion of the attorney-client privilege is not a recognized cause of action. The attorney-client privilege is a rule of evidence, not a substantive right. (In re Walsh (7th Cir. 1980), 623 F.2d 489, cert. denied (1980), 449 U.S. 994, 66 L. Ed. 2d 291, 101 S. Ct. 531.) McDonald’s failed to cite, and our research failed to disclose, case support for the proposition that it has an affirmative, independent cause of action for violation of the privilege separate and apart from the causes of action alleged in other counts in the complaint.

Even if “invasion” of the attorney-client privilege were a recognized cause of action, count VI failed to properly allege sufficient facts to establish the existence of the privilege in the case at bar. A mere assertion that documents are privileged is not sufficient to establish the privilege. (Shere v. Marshall Field & Co. (1974), 26 Ill. App. 3d 728, 327 N.E.2d 92.) The party asserting the privilege bears the burden of establishing all the elements of the privilege. (Cox v. Yellow Cab Co. (1975), 61 Ill. 2d 416.) Our supreme court has set forth these elements as follows: “(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.” (People v. Adam (1972), 51 Ill. 2d 46, 48, cert. denied (1972), 409 U.S. 948, 34 L. Ed. 2d 218, 93 S. Ct. 289.) In addition, where a corporation is the client, it must demonstrate that the communication was between counsel and someone within the corporations’s control group. Cox v. Yellow Cab Co. (1973), 16 Ill. App. 3d 665, 306 N.E.2d 738, aff'd (1975), 61 Ill. 2d 416.

Count VI contained no facts showing the applicability of the attorney-client privilege to the documents in question. The complaint did not even state sufficient facts necessary to identify each document. Instead, it only made conclusory allegations that an unidentified mass of documents was “confidential,” “private,” “secret,” or “privileged.” Since the mere passing of communications between an attorney and his client is insufficient to invoke the privilege, these allegations were insufficient to establish any privilege. (People v. Doe (1977), 55 Ill. App. 3d 811, 371 N.E.2d 334.) Thus, count VI was properly dismissed by the circuit court.

COUNT II, III, IV, AND VI: MATHESON

Count I, which related to the allegedly improper making of certain recordings, sought no relief from defendant Matheson. In count II he was charged with simply “using and divulging” the alleged recordings. Counts III and IV, which addresses the alleged conversion of McDonald’s documents, did not name attorney Matheson as a co-conspirator to the conversion. Rather the counts charged him with “using and divulging” the information contained within the documents. Count VI which related to the alleged invasion of attorney-client privilege only made a conclusory claim that Matheson “read and used” allegedly privileged documents. No specific facts were pleaded and therefore these counts fail to state a cause of action against Matheson for use and divulgence. (McGill v. Lazzaro (1980), 92 Ill. App. 3d 393, 416 N.E.2d 29;.Moore v. Everett Snodgrass, Inc. (1980), 87 Ill. App. 3d 388, 408 N.E.2d 1166; Burke v. Sky Climber, Inc. (1974), 57 Ill. 2d 542.) Therefore, the circuit court correctly dismissed counts II, III, IV, and VI.

In summary, we reverse the judgment of dismissal on count I as to McDonald’s and remand for further proceedings. We conclude that the five-year provision of sections 15 and 22 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, pars. 16 and 23) are the applicable statutes of limitations. We conclude that an interception is not required under the Illinois eavesdropping act. In regard to Kaplan and Canterbury, counts I and II were properly dismissed because they are not real parties in interest. Counts III and IV were properly dismissed because they are compulsory counterclaims in the Federal action in Arizona. Count VI, which alleged a tortious interference with the attorney-client privilege was properly dismissed as failing to state a recognized cause of action in Illinois. Further, as to defendant Mathe-son, the circuit court’s dismissal of counts II, III, IV, and VI are affirmed on the ground that no cause of action was stated by plaintiffs.

Affirmed in part; reversed and remanded in part.

VAN DEUSEN and HOPF, JJ., concur.

Supplemental Opinion on Denial of Rehearing

JUSTICE LINDBERG

delivered the the opinion of the court:

On August 16, 1982, McDonald’s filed a petition for rehearing in the instant case. McDonald’s argues that this court erred in its disposition of counts III and IV for four reasons. First, McDonald’s contends that our decision marks the first time in the history of this State that an Illinois resident has been denied the right to file an action in Illinois alleging a violation of his rights under Illinois law due solely to a procedural rule of a foreign jurisdiction. Specifically, McDonald’s argues that a decision which binds an Illinois resident to the compulsory counterclaim provisions of the Federal Rules of Civil Procedure, violates the long-standing Illinois policy that a party is not obligated to file a compulsory counterclaim.

At the outset we note that McDonald’s raised this point for the first time on appeal and therefore we were not then and are not now required to address this argument. (Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141; First National Bank & Trust Co. v. City of Rockford (1977), 47 Ill. App. 3d 131, 361 N.E.2d 832.) However, we choose to discuss this issue. The compulsory counterclaim rule is applicable even though State law has no such requirement. (G&M Tire Co. v. Dunlop Tire & Rubber Corp. (N.D. Miss. 1964), 36 F.R.D. 440; Note, The Erie Doctrine and Federal Rule 13(a), 46 Minn. L. Rev. 913 (1962); cf. Sinkbeil v. Handler (D. Neb. 1946), 7 F.R.D. 92; O’Donnell v. Archie’s Motor Express (E.D. Pa. 1959), 176 F. Supp. 36.) Indeed, a counterclaim is compulsory under the Federal rules even though under relevant State law the party would lack capacity to bring on independent action on the claim. Tolson v. Hodge (4th Cir. 1969), 411 F.2d 123; Avondale Shipyards, Inc. v. Propulsion Systems, Inc. (E.D. La. 1971), 53 F.R.D. 341.

A more difficult question is whether the States must refuse to hear a suit that would be barred in Federal court for failure to have pleaded it as a compulsory counterclaim. It has been held that a Federal court may not enjoin prosecution in a State court of what should have been a compulsory counterclaim in a pending Federal action, but this is because of the general reluctance of Federal courts to enjoin State actions. These cases do not suggest that the States are free to disregard the failure of the pleader to put forward his Federal counterclaim. C. Wright, Law of Federal Courts sec. 79, at 391 (3d ed. 1976).

If Federal Rule 13(a) is a mere rule of procedure, then, on well-understood principles of conflicts of laws it should have no extraterritorial effect. But if it defines the scope of the cause of action to which res judicata will apply, or if it sets up an estoppel against the party who does not comply with it, the defendant should be barred no matter where he attempts to sue. The effect of a judgment as res judicata is substantive and other jurisdictions must regard it as being as broad and conclusive as it would be in the jurisdiction in which it was rendered. So too if a party so conducts himself as to erect an estoppel against prosecution of his claim, the estoppel is personal to him and may be asserted against him wherever he sues. On such reasoning a number of State courts have properly held a claim barred for failure to plead it as a counterclaim in a Federal action. (London v. City of Philadelphia (1963), 412 Pa. 496, 194 A.2d 901; Horne v. Woolever (1959), 170 Ohio St. 178, 163 N.E.2d 378, cert. denied (1960), 362 U.S. 951, 4 L. Ed. 2d 868, 80 S. Ct. 861; Meacham v. Haley (1954), 35 Tenn. App. 20, 270 S.W.2d 503; Conrad v. West (1950), 98 Cal. App. 2d 116, 219 P.2d 477; Jocie Motor Lines, Inc. v. Johnson (1950), 231 N.C. 367, 57 S.E.2d 388; see Vestal, Claim Preclusion by Rule, 2 Ind. Leg. J. 25 (1968); 6 C. Wright & A. Miller, Federal Practice and Procedure: Civil sec. 1417, at 101-02 (1971).) Therefore, there are numerous cases binding the resident of a State to the compulsory counterclaim provisions of the Federal Rules of Civil Procedure even though the party may not be obligated to file a compulsory counterclaim under that State’s law. We find the reasoning of these cases persuasive and therefore find McDonald’s first point to be without merit.

McDonald’s second argument in its petition for rehearing is that this court has mistakenly determined that the stolen documents are relevant to the Federal claim and admissible in that proceeding. Specifically, McDonald’s contends that this court has wrongly assumed that the stolen documents may have any relevancy to the antitrust claims. We note that the tapes and documents were produced in the Federal action in response to McDonald’s discovery requests. McDonald’s acknowledged in its brief that at least 168 pages in the 386 documents at issue do relate to the franchise dispute. The Federal court will have to consider the overall circumstances under which the documents were obtained because these circumstances will directly bear on their admissibility and credibility as evidence against McDonald’s. These very circumstances of acquisition are, of course, the elements of McDonald’s present action in Illinois. Thus there will be wasteful duplication of judicial resources if two courts in different jurisdictions hear the same evidence. Additionally, there is the possibility that the two courts will reach contrary results. The fact that the two actions will involve the same evidence is one reason for treating the second action as a compulsory counterclaim. Great Lakes Rubber Corp. v. Herbert Cooper Co. (3d Cir. 1961), 286 F.2d 631.

Not only are the two actions intertwined in matters of evidence and the use of such evidence, they are also logically related as matters arising out of the franchise relationship between McDonald’s and the franchisees. McDonald’s demonstrated by filing count IX of its counterclaim in the Federal court that the fact the franchisees allegedly obtained the information in these documents without consent directly bore on the overall franchise relationship between the franchisees and McDonald’s. Count IX alleged that McDonald’s should be allowed to terminate their contract with the franchisees on the basis of frustration of purpose, because, among other things, the franchisees had secretly and improperly come into possession of copies of documents from McDonald’s files.

McDonald’s has treated the Federal action as though it only involved the franchisees’ antitrust claims but the Arizona action also involves a multicount counterclaim by McDonald’s which seeks to have the franchise agreements terminated on various grounds. Viewed in its entirety, therefore, the Federal action is very much concerned with the overall franchise relationship between the parties and particularly with the activities of the franchisees. As we stated in our opinion in a case in which a franchisee files a Federal antitrust claim against the franchisor, all counterclaims by the franchisor based on franchise-related activities are compulsory under Federal Rule 31(a). Crest Auto Supplies, Inc. v. Ero Manufacturing Co. (N.D. Ill. 1965), 246 F. Supp. 224, aff’d (7th Cir. 1966), 360 F.2d 896.

We note that although the issue of res judicata was extensively argued to the circuit court it declined to rely on this theory as a basis for its dismissal. The circuit court reasoned that res judicata was not a proper ground for dismissal because the Federal case is still pending. The circuit court’s rationale is erroneous because an interlocutory order dismissing certain counts of a counterclaim, while not an appealable judgment disposing of all issue in the lawsuit is, nevertheless, a final determination of the issues presented and is entitled to res judicata effect. (Calvert Fire Insurance Co. v. American Mutual Reinsurance Co. (N.D. Ill. 1978), 459 F. Supp. 859, 865, aff’d (7th Cir. 1979), 600 F.2d 1228.) Count IX of McDonald’s counterclaim in the Federal action was based on the same facts as the instant case, involved the same parties or their privies, and was a final adjudication on the merits. (Village of Northbrook v. Cook County (1980), 88 Ill. App. 3d 745, 410 N.E.2d 925.) Thus, res judicata bars plaintiff’s instant cause of action in this regard.

McDonald’s third argument in its petition for rehearing is that a motion to dismiss a claim on the grounds that it must have been asserted as a compulsory counterclaim in an earlier action may be granted only if the prior action has proceeded to judgment. Since the Federal case is still pending, the claims asserted in counts III and IV cannot be dismissed until the Federal action proceeds to judgment. Although several Federal district court cases support McDonald’s position, these decisions have been criticized as being inconsistent with the purpose of Federal Rule 13(a) since they permit duplicative litigation of the sort the rule is intended to prevent. 6 C. Wright & A. Miller, Federal Practice and Procedure: Civil sec. 1418, at 103-08 (1971). See, United Broadcasting Co. v. Armes (5th Cir. 1975), 506 F.2d 766, cert. denied (1975), 421 U.S. 965, 44 L. Ed. 2d 452, 95 S. Ct. 1953.

McDonald’s final argument is that even if Federal Rule 13(a) is controlling since the claims asserted in Counts III and IV were not available to McDonald’s at the time its answer was served in the original Federal action, its assertion in the instant case is not barred. The purpose of the “time of serving” exception is to relieve the counter-claimant from the burden of having to allege contingent claims or be forever barred from bringing them. However, this principle is not applicable where, as here, the acts supporting the claim have been alleged as a counterclaim in the lawsuit. If a party chooses to interpose an excepted counterclaim the court will treat it as a compulsory counterclaim in most respects. In this way the policy against multiplicity of litigation underlying Federal Rule 13(a) is advanced since all the logically related claims will be tried in one action. 6 C. Wright & A. Miller, Federal Practice and Procedure: Civil sec. 1413, at 68 (1971).

If the counterclaimant chooses to assert a claim, he is required under Federal Rule 13(a) to assert all of it, because the purpose behind the compulsory counterclaim is to consolidate all related claims in the same proceeding to preserve judicial economy. Regardless of whether McDonald’s was originally required to plead the claims asserted in the instant case as a compulsory counterclaim in the Federal action, it became so obligated when it alleged the identical acts in the Federal action in count IX of its Federal counterclaim. If the Arizona Federal district court had not dismissed count IX, its adjudication would have required the Federal court to decide the legality of the alleged recordings, and the alleged copying of documents and any attempt to bring the same allegations in Illinois would have been dupli-cative of the Federal action. Count IX was dismissed in the Federal action, and we cannot allow McDonald’s to avoid the jurisdiction of the Federal court and to avoid the bar of res judicata which exists by reason of this dismissal.

We do not think our result is harsh because under Federal Rule 13(f), the courts have power, which has been liberally exercised, to permit amendments to assert a compulsory counterclaim that has been omitted. (E.g., Safeway Trails, Inc. v. Allentown & Reading Transit Co. (4th Cir. 1950), 185 F.2d 918; 6 C. Wright & A. Miller, Federal Practice and Procedure: Civil sec. 1430, at 157-58 (1971).) In a deserving case it is even possible to reopen the judgment under Federal Rule 60(b), and allow pleading of the omitted compulsory counterclaim after the first action has been terminated. Williams v. Blitz (4th Cir. 1955), 226 F.2d 463.

We conclude that the arguments raised by McDonald’s in its petition for rehearing are without merit, and we adhere to the reasoning and result of our opinion.

Petition for rehearing denied.

VAN DEUSEN and HOPF, JJ., concur.