Appeal from the Circuit Court of Cook County. No. 95 L 012643, Honorable Thomas E. Flanagan, Judge Presiding.
The opinion of the court was delivered by: Justice Greiman
Thomas Schmidt, while on disability leave from Ameritech for an injury unconnected to his employment, lied to his employer at least three times about going on a fishing trip. The employer then sought to determine his whereabouts by an intense investigation which included the examination and use of his personal telephone records. After being discharged, Thomas, his wife and his wife's employer filed suit on August 23, 1995, alleging that the defendants' conduct in 1994 constituted a cause of action entitled "unreasonable intrusion upon seclusion" and a second cause of action entitled "private facts made public." The circuit court directed a verdict on the "private facts made public" cause of action against the plaintiffs, who have not appealed that ruling.
On December 2, 1999, the circuit court submitted the one remaining issue - intrusion upon seclusion - to a jury, which returned a verdict against Ameritech. This appeal followed. Because we find that the facts presented in this case do not satisfy the elements of the tort of unreasonable intrusion upon seclusion, we reverse.
Thomas was employed with defendant Ameritech as a customer service technician. His wife, coplaintiff Cynthia Schmidt (Cynthia), was not an Ameritech employee, nor was Jeri Lynn Richie (Richie), who became the third plaintiff in this case. Richie was the owner of Reflections Salon of Beauty, a hair salon where Cynthia worked, and all three were Ameritech customers.
On June 26, 1994, Thomas injured his knee in an accident unrelated to his employment and claimed to be unable to work. Ameritech's policy with respect to such disabilities provided Thomas' absence from work automatically converted to disability leave after seven consecutive sick days. Consequently, he was compensated under Ameritech's disability benefit policy until he returned to work on August 4, 1994.
Under his union's seniority system, he previously had put in for a Canadian fishing vacation during the week of July 15 through July 24, 1994, and his supervisor had approved the request. However, Ameritech's disability policy provided that taking a vacation while also collecting disability is prohibited without written authorization. Ameritech reminded Thomas of this restriction in a July 5, 1994, letter. Undeterred, he and his wife left for their previously planned fishing vacation even though he remained collecting disability. What is more, he lied to Ameritech at least three times concerning his whereabouts: first, he lied to his supervisor, Herb Mazanke, before he left on vacation; second, he again lied to Mazanke on the day of his return home; and third, he lied to a group of Ameritech managers, including Mazanke, on the day of his return to work.
During Thomas' disability leave, Mazanke became suspicious of Thomas' conduct. Because Mazanke was aware of Thomas' plans to go fishing in Canada in July, he suspected that Thomas might leave town impermissibly. Accordingly, Mazanke began an investigation to determine whether Thomas was guilty of misconduct. On July 14, 1994, Mazanke sent two managers to Thomas' home. Those managers waited in the Schmidts' driveway for Thomas to return home and instructed him to call Mazanke. During the call, Mazanke requested the telephone number and location of Thomas' physical therapist and discussed the possible restrictions on his work when he returned. When the telephone number that Thomas had provided for his physical therapist did not work, Mazanke again called Thomas and reminded him that his planned vacation was inappropriate while he was on disability.
On July 21, 1994, Mazanke called Ameritech's benefits department to determine if they had received the needed documentation from Thomas. After being told that they had no return date for Thomas, Mazanke again called him at home, received no answer, and left a message for Thomas to return his call. Mazanke's supervisor authorized a visit to Thomas' home for the following day and told Mazanke to contact Ameritech's security department to track down Thomas.
On July 22, Thomas called home to check his messages and found a message from Mazanke. Thereafter, that morning, Thomas called Mazanke and left a message. Mazanke, however, did not receive Thomas' message until afternoon because he was conducting the home visit at Thomas' home. During that visit, Mazanke parked on the street and knocked on the front and side doors, waited a few minutes, but got no response. While at the door, he noticed that some mail and newspapers had gathered on the porch. After lunch, Mazanke returned to Thomas' home and again knocked on all of the doors and received no response. He then left another message advising Thomas that he was at his house and questioning him as to his whereabouts.
On July 25, 1994, the Schmidts returned home. Thomas telephoned Mazanke to inform Mazanke that Thomas had seen his doctor that day and had been released to return to work on August 4, 1994. Mazanke demanded to know where Thomas had been on July 22, 1994, at the time he returned Mazanke's call. Again, Thomas lied and told Mazanke that the telephone call had been placed from Thomas' home. At that point, Mazanke knew that Thomas was untruthful about his whereabouts because Mazanke and another Ameritech manager physically were at the Schmidts' house at the time that Thomas called Mazanke.
Mazanke advised Thomas' union representative, Tony Tellez, of the issues of concern. On August 4, 1994, Thomas returned to work and Mazanke immediately called him into a meeting to discuss his whereabouts on the dates of July 15 through July 24, 1994. Present at this meeting was Mazanke, Thomas, Tellez, and another member of Ameritech's management, Doug Kotlinski. Thomas again stated that he had been home on that date, so it was impossible for Mazanke to have visited his home that day. Thomas then was told that he was being suspended pending Ameritech's investigation into the circumstances of his disability leave.
On August 11, 1994, Mazanke and Bill Gerlich from the Ameritech Security Group reviewed the "message unit detail" (MUD) records for the number assigned to Thomas. At trial, Gerlich testified that MUD records would show if outgoing calls were made from the Schmidts' telephone on the dates in question. On that date, Mazanke and Gerlich also reviewed Ameritech's "directory line records" (DLR), which provide "telephone book" information such as name and address, and directory account trouble history (DATH) reports, which would show whether their telephone was out of service or otherwise malfunctioning. In addition, Mazanke and Gerlich reviewed Ameritech's DLR reports for several other telephone accounts whose numbers had been frequently called from the Schmidts' home phone location. This included accessing and using the phone records of Cynthia's employer, i.e., Richie and her hair salon. Ameritech asserted that it reviewed those records after Thomas' deceitful answers to determine whether any calls had been made to the Schmidt home. Lastly, Ameritech reviewed its billing records for the AT&T card registered to Thomas.
Based on the information that Mazanke and Gerlich gained through their review of the telephone records, on August 11, 1994, Gerlich contacted the resort in Canada where the Schmidts had apparently stayed. On August 15, 1994, he contacted the kennel where the Schmidts had boarded their dog. Because he had reason to believe the Schmidts were fishing in Canada, he contacted the Ontario Department of Natural Resources to obtain a copy of Thomas' fishing license. Gerlich also contacted the Chicago police department and asked them to use their computer system to check on the license plates of vehicles parked in the Schmidts' driveway. A call was also placed to the Schmidts' local post office to determine the time that the Schmidts' mail was delivered to their home each day.
On August 24, 1994, Thomas again was ordered to appear at a meeting. There, he was told by Mazanke and Gerlich that Ameritech knew the resort where he and his wife had spent their vacation, that Ameritech knew where he and his wife had boarded their dog, and that Ameritech knew the locations of the convenience store pay phone in Eau Claire, Wisconsin, that he had used when placing his last phone call while en route home from Canada. He was told by Mazanke and Gerlich that they had obtained that information by their review of Ameritech's MUD records for the telephone number listed to him. Thomas was then fired.
Immediately thereafter, he filed a grievance with the company. The grievance went to arbitration, and Thomas was ordered to be reinstated. However, the arbitrator found that because Thomas had attempted to mislead Ameritech while he was away on his fishing trip, he was refused a year's back pay that he sought.
Plaintiffs then filed suit to redress Ameritech's alleged invasions of their privacy. Defendants removed the action to federal court, claiming that plaintiffs' claims were preempted by section 301 of the Labor Management Relations Act (29 U.S.C. §185 (1994)). On appeal, the United States Court of Appeals for the Seventh Circuit concluded that because section 301 did not apply, there was no independent basis for federal jurisdiction. Schmidt v. Ameritech Corp., 115 F.3d 501, 506 (7th Cir. 1997). Accordingly, it remanded the case to the circuit court. As previously stated, the trial court entertained only one count - that of unreasonable intrusion upon seclusion. The sole basis for plaintiffs' claim on this count was Ameritech's allegedly improper review of the Schmidts' and of Richie's hair salon's telephone accounts. After a trial, the jury returned a verdict (1) in favor of defendants Mazanke and Gerlich and against the plaintiffs, and (2) against defendant Ameritech and in favor of the plaintiffs. The jury found Ameritech liable to Thomas, Cynthia, and Richie for compensatory damages of $75,000, $75,000, and $10,000, respectively, and imposed $5 million in punitive damages. Ameritech's motion for judgment n.o.v., for a new trial, and for remittitur was denied, and Ameritech now appeals. Plaintiffs did not, however, appeal the circuit court's grant of the directed verdict on their claim for private facts made public.
Ameritech first argues that the trial court improperly imposed judgment and penal sanctions for conduct that was (1) not actionable in this appellate district at the time it took place, (2) not actionable at any time during the trial, and (3) not actionable at the time that judgment was entered. In fact, Ameritech claims, the tort for which it was held liable has been rejected by this district as an unrecognizable cause of action since 1979. See Kelly v. Franco, 72 Ill. App. 3d 642, 646 (1st Dist. 1979). The Kelly court noted that the law in Illinois was inconsistent on this issue and held that even if it were to recognize the cause of action, the plaintiff's allegations were insufficient to support a cause of action for unreasonable intrusion upon seclusion. Kelly, 72 Ill. App. 3d at 646-47.
Further, Ameritech asserts that it was not until January 13, 2000 - after the trial and the entry of judgment - that this court began to recognize the tort of unreasonable intrusion upon seclusion. See Johnson v. K mart Corp., 311 Ill. App. 3d 573, 578 (2000). Accordingly, it argues, because the court in Johnson was the first to recognize this cause of action in the First District, the trial court in the present case improperly retroactively applied the prescripts of that tort against Ameritech's prior conduct.
Ameritech bases its argument on the notion that because this tort has never been recognized explicitly by this district, and because circuit courts are bound by the decisions of the appellate court of the district in which they sit (see Aleckson v. Village of Round Lake Park, 176 Ill. 2d 82, 92 (1997) (holding that it was not unreasonable for plaintiffs, when faced with conflicting appellate authority, to rely upon the authority from their home appellate district)), the circuit court in this case erred in holding Ameritech liable for conduct that was not actionable in the first district.
Plaintiffs respond that, in 1988, the supreme court announced that it is fundamental in Illinois that the decisions of an appellate court are binding on all circuit courts, regardless of locale. People v. Harris, 123 Ill. 2d 113, 127 (1988). In 1990, the court reiterated that there is but one appellate court in the State of Illinois and denounced the notion that appellate court decisions are binding only on the trial courts within that district. People v. Layhew, 139 Ill. 2d 476, 489 (1990). Moreover, in 1996, the supreme court again reminded litigants that there is only one appellate court and warned litigants that where the appellate court's pronouncements on an issue are unsettled, or express conflicting views, a defendant cannot rely upon only one of those conflicting views and ignore the other views. People v. Granados, 172 Ill. 2d 358, 371 (1996).
The circuit court's decision to recognize this tort and apply it to Ameritech is a legal matter that is entitled to no deference on review. White v. City of Aurora, 323 Ill. App. 3d 733, 735 (2001) (matters of law are reviewable de novo). Moreover, the issue of retroactive application is a question of law and is also subject to de novo review.
Initially, we note that the Illinois Supreme Court has never explicitly recognized a cause of action for intrusion into seclusion. In Lovgren v. Citizens First National Bank of Princeton, 126 Ill. 2d 411 (1989), the supreme court discussed this tort as articulated by the Restatement (Second) of Torts (1977) and Prosser & Keeton on Torts (W. Keeton, Prosser & Keeton on Torts §117 (5th ed.1984)), but stated that its discussion did not imply a recognition of the action by the court. Lovgren, 126 Ill. 2d at 416-17.
However, as Johnson noted with regard to the appellate court cases, some districts have recognized this cause of action:
"The Third District recognized the intrusion upon seclusion tort in Melvin v. Burling, 141 Ill. App. 3d 786 (1986). In Melvin, the court set out four elements that a plaintiff must plead and prove to state a cause of action for intrusion upon seclusion: (1) an unauthorized intrusion or prying into the plaintiff's seclusion; (2) an intrusion that is offensive or objectionable to a reasonable person; (3) the matter upon which the intrusion occurs is private; and (4) the intrusion causes anguish and suffering. Melvin, 141 Ill. App. 3d at 789. See also the Second District case of Benitez v. KFC National Management Co., 305 Ill. App. 3d 1027 (1999), recognizing a cause of action for unreasonable intrusion upon the seclusion of another." Johnson, 311 Ill. App. 3d at 578. See also Bank of Indiana v. Tremunde, 50 Ill. App. 3d 480 (1977) (Fifth District, impliedly recognizing the cause of action); Davis v. Temple, 284 Ill. App. 3d 983, 993 (1996) (Fifth District, expressly recognizing the cause of action); but c.f. Bureau of Credit Control v. Scott, 36 Ill. App. 3d 1006 (1976) (Fourth District, not recognizing the cause of action); Kelly, 72 Ill. App. 3d at 646-47 (First District, not recognizing the cause of action). *fn1
The Johnson court also looked at the First District's encounters with the tort of unreasonable intrusion upon seclusion since Kelly. Specifically, it noted that in Mucklow v. John Marshall Law School, 176 Ill. App. 3d 886 (1988), Miller v. Motorola, Inc., 202 Ill. App. 3d 976 (1990), and Dwyer v. American Express Co., 273 Ill. App. 3d 742 (1995), this district found that the plaintiff's allegations did not satisfy the first element of Melvin, but failed to express a view as to the conflict regarding the recognition of the intrusion-upon-seclusion cause of action, i.e., it never said that the cause of action did ...