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Nat'l Loss Cont. Serv. Corp. v. Dotti





Appeal from the Circuit Court of Cook County; the Hon. Reginald J. Holzer, Judge, presiding.


Rehearing denied August 27, 1984.

Counterplaintiffs, Norman R. Dotti and Ostergaard Associates, appeal from the entry of summary judgment on their counterclaim against counterdefendants, National Loss Control Service Corporation and six former and present employees of that company and its parent, Kemper Company. On appeal, counterplaintiffs (hereinafter referred to as defendants) contend that numerous issues of material fact preclude entry of summary judgment on their four-count countercomplaint against counterdefendants (hereinafter referred to as plaintiffs) alleging tortious interference with economic advantage, slander, intentional infliction of emotional distress and malicious prosecution.

Defendant Norman R. Dotti was hired by National Loss Control Service Corporation in 1971. National Loss is in the business of consulting to commercial, governmental and industrial entities regarding fire prevention, noise control and other environmental problems. At his suggestion National Loss developed a separate group to handle the industrial noise and vibration control aspects of its work. Dotti was named the group's first manager in 1974. In December 1978, his title was changed to principal engineering consultant.

In the winter of 1978 Dotti became dissatisfied with his employment at National Loss and decided to work for plaintiff Ostergaard Associates, a small firm in Cadwell, New Jersey, which also did noise and vibration consulting. Dotti tendered his resignation to National Loss on January 30, 1979. He advised National Loss that he would continue to work for them through the end of February 1979. On the afternoon of February 15 he was contacted by a member of the personnel department, who asked him to come in for an exit interview. When Dotti arrived for the interview he was escorted to a large conference room. There he was confronted by Kemper's chief of security, Vincent R. Inserra, an attorney for Kemper, Wayne Koprowsky, and two vice-presidents of National Loss, Gary N. Crawford and Daniel Benevich. They interrogated Dotti extensively concerning his activities over the past weeks. They accused Dotti of stealing certain computer tapes. Dotti denied their accusations, yet they persisted in questioning him and asked if Dotti would allow someone to go home with him to search his house. The meeting lasted two hours. At its conclusion they informed Dotti that his employment was terminated effective the next day. Dotti was escorted to his car and driven home. The next day he was allowed to remove his personal belongings from his desk under the supervision of Crawford.

On June 29, 1979, Dotti and Ostergaard were served with a complaint and a motion for preliminary injunction in this cause. National Loss sought to enjoin defendants from using computer tapes, reports of testing and teaching materials which they alleged Dotti had taken from National Loss prior to his departure.

Hearings on the motion for a preliminary injunction were held on 15 days between September 1979 and August 1980. In November 1979, Dotti and Ostergaard filed their counterclaim. The counterclaim alleged tortious interference with prospective economic advantage, slander and intentional infliction of emotional distress. On August 27, 1980, at the close of National Loss' case, the court denied their motion for a preliminary injunction. The trial of National Loss' complaint commenced on October 13, 1981. National Loss rested on the evidence presented during the preliminary injunction hearing. Dotti and Ostergaard presented their defense, and National Loss presented testimony in rebuttal. On February 4, 1982, the trial court entered judgment in favor of Dotti and Ostergaard on the complaint.

The trial court found that through courses he took and his own efforts Dotti had become an expert in the area of industrial noise and vibration during the course of his employ at National Loss. Dotti played a role in convincing National Loss to acquire additional computer hardware and to purchase data from outside noise researchers to better serve their clients. The court found that on the morning of February 15, 1979, Dotti was using the National Loss computer to test the speed and storage capacity of a Tektran intelligence and storage and retrieval device. Crawford thought that Dotti was using the device to transfer confidential material stored in the National Loss computer to his own tapes for use at his next job. The court held, however, that Dotti has unequivocally denied all charges of computer thievery and no further significant proof thereof was presented. The court also found that teaching notes and instructional visual aid materials which Dotti had collected over the years, kept in his own home and used for lectures he gave, contained merely information of general knowledge within the industry. The court held that National Loss had failed to prove a conspiracy between Dotti and Ostergaard or that Dotti had stolen anything from National Loss.

On March 16, 1982, defendants amended their counterclaim to include a count charging malicious prosecution. On June 24, 1982, plaintiffs filed a motion for summary judgment. The motion was fully briefed by the parties. On February 3, 1983, the court entered summary judgment against defendants on their claim of malicious prosecution. On February 16, 1983, the court entered summary judgment against defendants on the remaining counts of their counterclaim. Defendants appeal.

• 1 Initially, defendants contend that the trial court misapplied the standard for determining if a movant is entitled to summary judgment. This error is evident, they argue, from a portion of the trial court's opinion which reads,

"It must be remembered that a party is not required to prove his case at the summary judgment state; he must merely present a factual basis which arguably would entitle him to judgment in his favor. [Citation.] Counterdefendant has more than adequately met his burden in this respect."

They argue that this shows the court's confusion as to which party bears the very light burden sufficient to resist a motion for summary judgment. Plaintiffs argue that the challenged language could also reflect the court's finding that plaintiffs had met their burden in demonstrating that defendants had failed to show the factual basis necessary to withstand a motion for summary judgment. We agree. The quoted language is too ambiguous in and of itself to indicate that the trial court misapplied the standards for summary judgment.

Plaintiffs also point out that Dotti and Ostergaard did not file any affidavits to support the allegations of their counterclaim nor have they argued that they were unable to obtain any necessary affidavits. Their argument before the trial court and this court relies instead upon evidence adduced at the trial on National Loss' complaint.

A trial court may enter summary judgment only when, after examining all the pleadings, depositions and affidavits, it concludes that no genuine issue of material fact exists between the parties and summary judgment may be entered as a matter of law. (Marciniak v. O'Connor (1981), 102 Ill. App.3d 381, 430 N.E.2d 536; Ill. Rev. Stat. 1979, ch. 110, par. 57.) All inferences to be drawn from the evidence must be made in a light most favorable to the nonmoving party. (Rubin v. City National Bank & Trust Co. (1980), 81 Ill. App.3d 1020, 402 N.E.2d 281.) While the nonmoving party is not required to prove his case at this preliminary stage, he is required to present some factual basis which would arguably entitle him to a ...

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