{ "id": 3621066, "name": "THOMAS L. SMITH, Plaintiff-Appellant, v. ASSOCIATED BUREAUS, INC., Defendant-Appellee", "name_abbreviation": "Smith v. Associated Bureaus, Inc.", "decision_date": "1988-12-05", "docket_number": "No. 87\u20143531", "first_page": "286", "last_page": "292", "citations": [ { "type": "official", "cite": "177 Ill. App. 3d 286" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "475 N.E.2d 872", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "879" } ], "opinion_index": 0 }, { "cite": "105 Ill. 2d 486", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3141899 ], "pin_cites": [ { "page": "500" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/105/0486-01" ] }, { "cite": "487 N.E.2d 731", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "139 Ill. App. 3d 819", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3567370 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/139/0819-01" ] }, { "cite": "498 N.E.2d 790", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "793" }, { "page": "793" } ], "opinion_index": 0 }, { "cite": "148 Ill. App. 3d 297", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3644017 ], "weight": 2, "pin_cites": [ { "page": "302" }, { "page": "302" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/148/0297-01" ] }, { "cite": "504 N.E.2d 791", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "pin_cites": [ { "page": "794" }, { "page": "794" }, { "page": "794" }, { "page": "794" } ], "opinion_index": 0 }, { "cite": "152 Ill. App. 3d 614", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3574482 ], "weight": 4, "pin_cites": [ { "page": "619" }, { "page": "619" }, { "page": "619" }, { "page": "619" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/152/0614-01" ] }, { "cite": "489 N.E.2d 867", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 9, "year": 1987, "pin_cites": [ { "page": "871" }, { "page": "871" }, { "page": "871" }, { "page": "871" }, { "page": "871-72" }, { "page": "871-72" }, { "page": "871" }, { "page": "871-72" }, { "page": "871" } ], "opinion_index": 0 }, { "cite": "111 Ill. 2d 229", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3166688 ], "weight": 9, "year": 1987, "pin_cites": [ { "page": "240" }, { "page": "240" }, { "page": "240" }, { "page": "240-41" }, { "page": "241" }, { "page": "241" }, { "page": "240-41" }, { "page": "241" }, { "page": "240" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/111/0229-01" ] }, { "cite": "503 N.E.2d 346", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 13, "pin_cites": [ { "page": "347" }, { "page": "347" }, { "page": "348" }, { "page": "348" }, { "page": "348" }, { "page": "348" }, { "page": "351" }, { "page": "352" }, { "page": "350" }, { "page": "352" }, { "page": "352" } ], "opinion_index": 0 }, { "cite": "115 Ill. 2d 47", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3179289 ], "weight": 13, "pin_cites": [ { "page": "48" }, { "page": "48" }, { "page": "49" }, { "page": "49" }, { "page": "49" }, { "page": "49" }, { "page": "56" }, { "page": "58-59" }, { "page": "54" }, { "page": "59" }, { "page": "56, 58" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/115/0047-01" ] }, { "cite": "47 U.S.C.A. \u00a7605", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1985, "opinion_index": 0 } ], "analysis": { "cardinality": 636, "char_count": 15760, "ocr_confidence": 0.753, "pagerank": { "raw": 1.0743161183840663e-07, "percentile": 0.5605616389218059 }, "sha256": "bec56ce7bf777a47e501cae211595627f7e248241793ac06b00737d6489ad548", "simhash": "1:d2f6f854c700a5c9", "word_count": 2553 }, "last_updated": "2023-07-14T17:06:39.846106+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THOMAS L. SMITH, Plaintiff-Appellant, v. ASSOCIATED BUREAUS, INC., Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE QUINLAN\ndelivered the opinion of the court:\nThe plaintiff, Thomas L. Smith, sued the defendant, Associated Bureaus, Inc., alleging that defendant had committed eavesdropping in violation of the Criminal Code of 1961. (Ill. Rev. Stat. 1985, ch. 38, par. 14\u20141 et seq.) The trial judge, in the circuit court of Cook County, granted defendant\u2019s motion for summary judgment. Plaintiff now appeals the grant of summary judgment in favor of defendant.\nThe defendant, Associated Bureaus, Inc., is a collection agency that is incorporated in and operates out of Minnesota. Amoco Oil Company (Amoco) hired defendant to collect its unpaid accounts. Pursuant to the agreement with Amoco, one of defendant\u2019s employees contacted Jerry Goudy concerning his outstanding debt to Amoco. Goudy told the employee to contact the plaintiff, Thomas L. Smith, an attorney, because Smith was representing Goudy in his financial matters.\nAccordingly, defendant\u2019s employee, Evan McCollum, placed two calls to the plaintiff, in Chicago, concerning Goudy\u2019s debt. These calls were recorded, in accordance with defendant\u2019s routine business procedure, with a taping system that emits an audible beep every 15 seconds to alert the other party that the conversation is being taped.\nPlaintiff states that he did not hear the \u201cbeep\u201d until the end of the second conversation because of the interference and static on the phone lines. After he discovered his conversation had been recorded without his knowledge, plaintiff filed a three-count complaint against the defendant. Count I alleged an eavesdropping violation and specifically based the action on the Criminal Code\u2019s provisions authorizing private civil remedies for any eavesdropping violation. (Ill. Rev. Stat. 1985, ch. 38, par. 14\u20146.) Count II charged a violation of the Federal Communications Act (47 U.S.C.A. \u00a7605 (1985)), and count III alleged an invasion of privacy. Plaintiff sought an injunction, $250,000 in punitive damages, and actual damages incurred as a result of the loss of clients. The trial court granted defendant\u2019s motion to dismiss counts II and III, and plaintiff did not appeal the court\u2019s ruling on these counts.\nThereafter, defendant filed a motion for summary judgment on count I. In support of its motion, defendant filed the affidavits of Mc-Collum and of Mark Riley, the collection manager for defendant when the alleged eavesdropping occurred. Riley\u2019s affidavit stated that defendant uses a taping system which automatically activates a recorder when a bill collector places a call. This system emits a beep, audible to both parties, every 15 seconds. The recordings are used to facilitate any complaints concerning defendant\u2019s collection methods or to resolve any discrepancies concerning what was said in the conversation. After a period of time, the tapes are erased and reused. Riley stated that no supervisors monitored the calls placed to Smith and that the recordings were reviewed only in connection with this lawsuit.\nMcCollum\u2019s affidavit stated that he had two telephone conversations with plaintiff, both of which were recorded. The defendant\u2019s taping system, he said, emits a beep throughout any conversation that is being recorded, and he said that this beep was clearly audible to plaintiff.\nPlaintiff filed a response to defendant\u2019s motion for summary judgment and his own affidavit in support. This affidavit stated that Mc-Collum telephoned him on two occasions to discuss Goudy\u2019s debt to Amoco. Plaintiff said he expected the conversations to be private and he was not informed that they were being taped. He stated that he did not hear the beep until the end of the second conversation. Furthermore, he asserted he would never have agreed to have the conversations recorded.\nIn addition to his affidavit in support of his response, plaintiff filed excerpts from the depositions of Riley and McCollum. In Riley\u2019s deposition, Riley stated that defendant\u2019s collection managers are able to monitor the collectors\u2019 calls in order to evaluate the level of performance of its collection personnel. McCollum, in his deposition, stated that he was currently a collection manager and it was the company\u2019s policy to monitor collectors\u2019 calls so that he could work with the collectors to improve their collection \u201cstyle.\u201d When he was a collector, McCollum\u2019s supervisors would use the tapes of his calls for instructional purposes.\nThe circuit court granted defendant\u2019s motion for summary judgment. The court held that this case was controlled by People v. Beardsley (1986), 115 Ill. 2d 47, 503 N.E.2d 346, where the Illinois Supreme Court held that the Illinois eavesdropping statute did not prohibit the recording of a conversation by a party to that conversation. .The circuit court found that the fact that this was a civil action, and Beardsley was a criminal action, did not take this case outside the Beardsley holding. Plaintiff has now appealed to this court.\nThe plaintiff argues on appeal that the trial court improperly granted defendant\u2019s motion for summary judgment because genuine issues of material fact exist. Plaintiff contends that genuine issues of material fact exist concerning whether the parties intended their conversations to be private, whether the plaintiff knew that the conversations were being taped, and whether the telephone calls in issue were overheard or intercepted by another. In response, defendant contends that no genuine issues of material fact exist. Defendant asserts that based on the Illinois Supreme Court\u2019s interpretation of the Illinois eavesdropping statute, there was no eavesdropping violation, and further, there could not have been a violation because the tapes here were not listened to or overheard by a third party.\nThe purpose of summary judgment is to determine whether there are any genuine issue's of triable fact. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871; Wogelius v. Dallas (1987), 152 Ill. App. 3d 614, 619, 504 N.E.2d 791, 794.) A summary judgment motion should be granted only when the pleadings, depositions and admissions on file, considered along with any affidavits, show that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. (Purtill, 111 Ill. 2d at 240, 489 N.E.2d at 871; Wogelius, 152 Ill. App. 3d at 619, 504 N.E.2d at 794.) In determining whether there is a genuine issue of material fact, the trial court must construe the evidence strictly against the movant and liberally in favor of the opponent. (Purtill, 111 Ill. 2d at 240, 489 N.E.2d at 871; Wogelius, 152 Ill. App. 3d at 619, 504 N.E.2d at 794.) However, the opposing party cannot rely on his pleadings alone to raise issues of material fact when the movant supplies facts which would entitle him to judgment as a matter of law, if not contradicted. (Purtill, 111 Ill. 2d at 240-41, 489 N.E.2d at 871; In re Application of Rosewell (1986), 148 Ill. App. 3d 297, 302, 498 N.E.2d 790, 793.) Accordingly, the trier of fact will admit and accept as true, for purposes of the summary judgment motion, facts contained in the movant\u2019s affidavit in support of his motion for summary judgment which are not contradicted by counteraffidavit. Purtill, 111 Ill. 2d at 241, 489 N.E.2d at 871-72.\nIn the present case, the trial court held that summary judgment in favor of the defendant was appropriate because no genuine issue of material fact existed, based on People v. Beardsley (1986), 115 Ill. 2d 47, 503 N.E.2d 346. In Beardsley, the defendant was stopped for speeding. (Beardsley, 115 Ill. 2d at 48, 503 N.E.2d at 347.) The defendant refused to give his name or produce his driver\u2019s license, and demanded to speak with counsel. (Beardsley, 115 Ill. 2d at 48, 503 N.E.2d at 347.) Consequently, the police officers arrested the defendant and placed him in the back of their squad car, while waiting for a tow truck to take defendant\u2019s car. Beardsley, 115 Ill. 2d at 49, 503 N.E.2d at 348.\nAs defendant sat in the back of the squad car, he tape-recorded the conversation that the officers were having in the front seat. (Beardsley, 115 Ill. 2d at 49, 503 N.E.2d at 348.) The officers stated that they did not consent to having their conversation taped and they were unaware that the defendant\u2019s recorder was on. (Beardsley, 115 Ill. 2d at 49, 503 N.E.2d at 348.) They were aware, however, that the defendant had a tape recorder. (Beardsley, 115 Ill. 2d at 49, 503 N.E.2d at 348.) Subsequently, the defendant was convicted of eavesdropping in violation of section 14\u20142 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 14\u20142(a)), and the appellate court affirmed the conviction. People v. Beardsley (1985), 139 Ill. App. 3d 819, 487 N.E.2d 731.\nThe Illinois Supreme Court reversed Beardsley\u2019s eavesdropping conviction. The statute that Beardsley was convicted under, and the one that defendant in the instant case is charged with violating, states in pertinent part:\n\u201cA person commits eavesdropping when he:\n(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 \u2018Code of Criminal Procedure of 1963\u2019, approved August 14, 1963, as amended ***.\u201d Ill. Rev. Stat. 1985, ch. 38, par. 14\u20142(a).\nThe Beardsley court held that the \u201ceavesdropping statute should not prohibit the recording of a conversation by a party to that conversation or one known by the parties thereto to be present.\u201d (Emphasis in original.) (Beardsley, 115 Ill. 2d at 56, 503 N.E.2d at 351.) The court based its holding on the fact that a party to the conversation cannot be accused of listening secretly to what is said in private or of surreptitious interception of a private conversation, because that party is competent to testify concerning the contents of the conversation, and could have taken notes or transcribed the conversation, rather than recording it. (Beardsley, 115 Ill. 2d at 58-59, 503 N.E.2d at 352.) Moreover, the court stated that the primary factor in determining whether Beardsley was guilty of eavesdropping was not whether all the parties consented to the recording, but whether the officers justifiably expected and intended their conversation to be private. (Beardsley, 115 Ill. 2d at 54, 503 N.E.2d at 350.) Finally, the court stated that the result would not necessarily have been the same had Beardsley used a transmitter rather than a recorder, so that the officers\u2019 conversation could be overheard by a third party. Beardsley, 115 Ill. 2d at 59, 503 N.E.2d at 352.\nWe find that the Beardsley case is dispositive of the present case and that the trial court, accordingly, did not err in granting the defendant\u2019s motion for summary judgment. The two conversations in this case were recorded by McCollum, a party to the conversation. As in Beardsley, McCollum could have taken notes or transcribed the conversations, rather than taping them, and could have testified concerning the conversations. Applying the Beardsley rationale to this case, the fact that the plaintiff did not consent to or know of the recording is irrelevant to a determination of whether the defendant was guilty of eavesdropping. Thus, there was no genuine issue of material fact requiring a trial on this issue.\nAdditionally, we find that no genuine issue of material fact existed concerning whether the parties intended their conversation to be private. As in Beardsley, McCollum\u2019s recording of the conversation was not to obtain information that otherwise would have been inaccessible to him, but was merely to preserve a more accurate account of the conversation. (See Beardsley, 115 Ill. 2d at 56, 58, 503 N.E.2d at 352.) This rationale is supported by Riley\u2019s affidavit, stating that one of the reasons that the defendant taped the calls of its collectors was to resolve any discrepancies concerning what was said in the conversations. Plaintiff failed to contradict, by counteraffidavit, this fact concerning the use of the recordings to resolve disputes. Therefore, the statement in Riley\u2019s affidavit is admitted and accepted as true for purposes of the summary judgment motion, and there is no triable issue on this matter either. See Purtill, 111 Ill. 2d at 241, 489 N.E.2d at 871-72.\nFinally, plaintiff argues that a genuine issue of material fact existed concerning whether the tapes of his telephone calls were overheard or intercepted by another, and that this issue distinguished his case from the Beardsley case. Plaintiff, however, has offered no affidavit supporting his allegation that the conversations were overheard or intercepted by another. Where a movant supplies facts which would entitle him to judgment as a matter of law, if not contradicted, a party opposing summary judgment cannot rely on his pleadings alone to raise issues of material fact. (Purtill, 111 Ill. 2d at 240-41, 489 N.E.2d at 871; In re Application of Rosewell, 148 Ill. App. 3d at 302, 498 N.E.2d at 793.) Defendant\u2019s motion for summary judgment was supported by Riley\u2019s affidavit stating that the tapes of plaintiff\u2019s conversations were not overheard or intercepted by anyone and were listened to only by defendant\u2019s counsel, after plaintiff filed this lawsuit. Because plaintiff failed to file a counteraffidavit contradicting Riley\u2019s statement, the statement is admitted and must be accepted as true. (Purtill, 111 Ill. 2d at 241, 489 N.E.2d at 871-72.) Accordingly, there is no genuine issue of material fact concerning whether another party overheard or intercepted plaintiff\u2019s calls.\nHence, we must conclude that the trial court correctly granted summary judgment in this case. Even construing the evidence strictly against the defendant and liberally in favor of the plaintiff, as we must (see Purtill, 111 Ill. 2d at 240, 489 N.E.2d at 871; Wogelius, 152 Ill. App. 3d at 619, 504 N.E.2d at 794), it is nonetheless clear that there is no genuine issue of triable fact. We find plaintiff\u2019s allegations of an eavesdropping violation to be unsupported by any pleadings, depositions or affidavits. Plaintiff\u2019s mere allegations in his pleadings that his calls were intercepted are insufficient to raise any issues of material fact.\nIn its brief, defendant has also argued that the motion for summary judgment may also be sustained by applying Minnesota law to the issue in this case. It contends that Minnesota law should be applied because Minnesota has the most significant relationship to the conduct at issue. We find it is unnecessary, however, to reach this argument because we affirm the trial court's decision here under the applicable Illinois law. Furthermore, defendant failed to raise any conflict of law issue in the trial court, and defendant cannot raise it for the first time on appeal and, thus, must be held to have waived the issue in any event. Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 500, 475 N.E.2d 872, 879.\nAccordingly, for the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nBUCKLEY and O\u2019CONNOR, JJ., concur.\nWe do not need to decide, nor do we decide, what the effect of a third party listening to the tape recordings might have had where the conversation was recorded and intercepted by that third party.", "type": "majority", "author": "JUSTICE QUINLAN" } ], "attorneys": [ "Deborah J. Gubin, of Chicago, for appellant.", "Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini, Nick Papastratakos, and Richard R. Winter, of counsel), for appellee." ], "corrections": "", "head_matter": "THOMAS L. SMITH, Plaintiff-Appellant, v. ASSOCIATED BUREAUS, INC., Defendant-Appellee.\nFirst District (1st Division)\nNo. 87\u20143531\nOpinion filed December 5, 1988.\nRehearing denied January 19, 1989.\nDeborah J. Gubin, of Chicago, for appellant.\nClausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini, Nick Papastratakos, and Richard R. Winter, of counsel), for appellee." }, "file_name": "0286-01", "first_page_order": 308, "last_page_order": 314 }