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No. 3-02-0451

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2003

PRESIDING JUSTICE McDADE delivered the opinion of the court:

The plaintiff, James Clarage, owns approximately 128 acresof land in Deer Creek Township, LaSalle County, adjacent to theStarved Rock State Park. Clarage attempted to develop the landinto a vacation resort, but was unable to complete the project.This lawsuit resulted from the failure and involves claims ofdefamation per se, defamation per quod, interference withcontract, interference with a business expectancy, and civilconspiracy. The claims have been brought against Sheryl Kuzma,the Deer Creek Township attorney, and her law firm Myers,Daugherty, Berry, O'Conor & Kuzma, and also against MichaelScully, a member of the Deer Creek Township board. The circuitcourt of LaSalle County dismissed all claims. Upon review, wereverse and remand for further proceedings.

The dispute arose after Clarage began making plans todevelop his 128 acres into a resort. He contacted the Deer CreekTownship (the Township) about his plans in 1996. Although theTownship had no zoning authority over the property, it didcontrol the maintenance of a road that would be vital toaccessing the resort property, and Clarage approached theTownship about the possibility of renovating and expanding theroad.

After meeting with township officials, Clarage obtainedassurances from the Township road commissioner that the Townshipwould support the project and make the necessary upgrades to theroad. In November 1996, the Township board voted to approve theroad upgrade and to endorse the project.

In 1997, Clarage began negotiations with the Upper IllinoisRiver Valley Development Authority (UIRVDA). The UIRVDA wascreated by the legislature to issue bonds to fund the developmentof projects in the upper Illinois River valley. On March 11,1997, Clarage entered into a "memorandum of agreement" with theUIRVDA in which the Authority agreed that in the event Claragecould satisfy certain conditions, including receiving approvalfor the project from both UIRVDA and from the Governor, it wouldissue bonds to finance the development of the resort. Claragereceived UIRVDA approval on November 24, 1999.

Clarage also contacted a prominent hotel and golf courseplanning and construction firm, McGarrity and Company, LLC(McGarrity), requesting its participation in the project. OnApril 19, 1999, Clarage received a letter from McGarrity whichestablished that they would work together exclusively in thedevelopment of the resort. On May 28, 1999, McGarrity received aletter from Starwood Hotels and Resorts Worldwide, Inc., theowner of Sheraton Hotels, indicating that Starwood was interestedin participating in the development of the Starved Rock Resort.McGarrity entered into preliminary negotiations with Starwood tohave the company manage the resort as a Sheraton property.

Clarage and his attorney, John Vickers, met with Scully andKuzma on November 8, 1999. At the meeting, Clarage informed thedefendants that he had contracted with McGarrity to develop theStarved Rock Resort and that he was arranging with Starwood tohave the resort branded as a Sheraton Hotel. He also notified thedefendants that he was attempting to obtain a commitment fromUIRVDA to issue $43 million in State of Illinois bonds to financethe project and that he was awaiting approval from UIRVDA beforefinalizing an agreement with Starwood.

After his meeting with Scully and Kuzma, Clarage learnedthat someone from the Deer Park Township board was contactingMcGarrity and Starwood directly about the plans for the resort.On May 17, 2000, Clarage received a letter from Kuzma in whichshe indicated that the Deer Park Township board intended torevoke its approval of the resort unless Clarage provided theboard with more information concerning the details of theproject. Clarage responded by indicating that he was willing toshare information with the board, but only on the condition thatit agree to sign a confidentiality agreement and to no longerattempt to contact other companies and agencies involved in theproject.

On July 13, 2000, the Township rejected the confidentialityagreement, citing a need to confirm the accuracy of information received from Clarage about the resort. On August 18, 2000, afterfailing to reach agreement with Clarage, the board revoked itsapproval of the project. Board members and Kuzma also resumedcontacting the other parties involved in the proposed developmentand began to write editorials in local papers opposing thedevelopment.

On September 20, 2000, both Clarage and Kuzma received aletter from Starwood's general counsel, Nadine Greenwood. Theletter stated, in part:

"It has come to the attention of Starwood that you havemade representations to various parties includingLaSalle County, Illinois government officials, DeerPark Board Township [sic] members and the Board ofDirectors of the Upper Illinois River ValleyDevelopment Authority that Starwood is associated withthe project which you are proposing for development inStarved Rock. Specifically, Starwood has cause tobelieve that you have represented that the resort willbe branded a Sheraton property.

Please be advised that Starwood has never been andis in no way associated with this project. It has nothad discussions or correspondence with you or yourcompany regarding the Starved Rock project. It has noplans to license any hotel or resort which may beconstructed in connection with this project as aSheraton or any of Starwood's other hotel brands.Starwood will not condone any further misrepresentationby you concerning its involvement in the project anddemands that such misrepresentation cease

immediately." After receiving the letter, Kuzma sent copies to local mediaoutlets and to the members of the Township board. Michael Scullyalso distributed copies of the letter to various individuals,including defendant, Donald Wagner. When the UIRVDA learned ofthe allegations in the letter, it withdrew its approval of thebond issue, thereby effectively ending the development'sprospects.

On January 12, 2001, under threat of litigation by Clarage, Starwood issued a partial retraction of the earlier letter. Itrecited:

"[s]tatements made in [the prior] letter, to the effectthat Starwood has never been associated with thisproject are not true. Furthermore, Starwood had nobasis to state that Mr. Clarage misrepresentedStarwood's past involvement to any government officialsas stated in our letter. Starwood regrets its error."

The plaintiff filed a five-count complaint in the circuitcourt. He alleged that the publication of the Starwood letter bythe defendants supported claims for defamation per se, defamationper quod, tortious interference with contractual relations withboth McGarrity and the UIRVDA, tortious interference with abusiness expectancy with the UIRVDA and Starwood, and civilconspiracy. The defendants filed a combined motion to dismisspursuant to sections 2-615 and 2-619 of the Code of CivilProcedure (735 ILCS 5/2-615, 2-619 (West 2002)). The trial courtdismissed the entire complaint, ruling that the plaintiff had notstated a cause of action for any form of defamation because theletter was not defamatory and that there was no claim fortortious interference with contractual relations or prospectivebusiness relations because no such relationships existed. Theplaintiff now appeals the ruling of the trial court.

ANALYSIS We begin by noting that the trial court dismissed the claimsunder section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2002)). The bases for the dismissal were purely legal:the court found that the Starwood letter was nondefamatory andthat the plaintiff had neither contracts with McGarrity or theUIRVDA nor an expectancy of a future business relationship withStarwood or the UIRVDA. The trial court expressly noted in itsruling pursuant to section 2-619 of the Code of Civil Procedure(735 ILCS 5/2-619 (West 2002)), that it would have reached acontrary result on the motion to dismiss under section 2-615 (735ILCS 5/2-615 (West 2002)). The court would not have granted thesection 2-615 motion because it was of the opinion that anydeficiencies in the pleadings could be cured by amendment. Wewill, therefore, only address whether dismissal was proper undersection 2-619.

Accordingly, our review will be de novo. Lipinski v. MartinJ. Kelly Oldsmobile, Inc., 325 Ill. App. 3d 1139, 1144, 759N.E.2d 66, 70 (2001). The standard we employ is the same as theone to be used by the trial court. All well-pleaded facts in acomplaint must be taken as true with all reasonable inferencesfrom it to be drawn in favor of the nonmovant. Only the legalsufficiency of the plaintiff's complaint is contested. Petty v.Crowell, 306 Ill. App. 3d 774, 776, 715 N.E.2d 317, 318 (1999). We apply this standard to plaintiff's defamation and tortiousinterference claims.

Defamation Claims

The plaintiff first argues that the trial court improperlydismissed his claim for defamation per se. In his complaint, healleged that the defendants Kuzma and Scully republished tovarious individuals the cease-and-desist letter received fromStarwood. The plaintiff alleges that the letter contained falsestatements that indicated that he had been lying about Starwood'sinvolvement in the resort project. The trial court disagreed andfound that the letter was not defamatory.

In order to state a claim for defamation per se, theplaintiff must allege that a statement has been made that "tendsto cause such harm to the reputation of [the plaintiff] that itlowers that person in the eyes of the community or deters thirdpersons from associating with her." Bryson v. News AmericaPublications, Inc., 174 Ill. 2d 77, 87, 672 N.E.2d 1207, 1214(1996). When the words used are so obviously and materiallyharmful to the plaintiff that injury to reputation may bepresumed, the statement is considered defamatory per se. Bryson,174 Ill. 2d at 87, 672 N.E.2d at 1214. Four specific categoriesof statements are per se defamatory: (1) words that impute thecommission of a criminal offense; (2) words that impute infectionwith a loathsome communicable disease; (3) words that impute awant of integrity in the discharge of duties of office oremployment; and (4) words that prejudice a party, or impute alack of ability, in his or her trade, profession or business.Bryson, 174 Ill. 2d at 88, 672 N.E.2d at 1214-15.

The defendant also alleges defamation per quod. In order toestablish this claim, the plaintiff must allege extrinsic factsthat demonstrate that an otherwise innocent statement has adefamatory meaning and must allege special damages caused by thestatement. Bryson, 174 Ill. 2d at 103, 672 N.E.2d at 1221.

An allegedly defamatory statement is not actionable if it issubstantially true, even though not technically accurate in everydetail. Gist v. Macon County Sheriff's Department, 284 Ill. App.3d 367, 371, 671 N.E.2d 1154, 1157 (1996). The defendant, todefeat a defamation claim, need only establish the truth of the"gist" or "sting" of the allegedly defamatory statement. Cianciv. Pettibone Corp., 298 Ill. App. 3d 419, 424, 698 N.E.2d 674,678 (1998). Where no reasonable jury could find a lack ofsubstantial truth, the question is one of law. Cianci, 298 Ill.App. 3d at 424, 698 N.E.2d at 679.

We believe that the Starwood letter meets the requirementsfor both defamation per se and defamation per quod. The gist ofthe letter to plaintiff, the pertinent portion of which has beenquoted above, is that plaintiff has been lying about Starwood'sinvolvement in his proposed resort. He has lied, not privatelyto friends and family, but to government officials. He is lyingbecause Starwood "has never been and is in no way associated withthis project." He needs to stop lying about this matterimmediately. The letter effectively impugns plaintiff's businessethics and portrays him as a businessman undeserving of publictrust. Because the statements in the letter may reasonably beread as either imputing a want of integrity in employment orprejudicing plaintiff in his trade, profession or business, webelieve plaintiff has stated (or at least can state) a claim thatthe letter is defamatory per se.

We also believe that facts extrinsic to the statement, ifproven, would support a claim for defamation per quod.

The letter, which was republished at a crucial time in thedevelopment of the resort, was apparently interpreted by otherparties to the project as an indication that the plaintiff wasnot trustworthy. This is the only reasonable interpretation thatcould be drawn by someone who had heard the plaintiff toutStarwood's involvement. The UIRVDA presumably drew thatconclusion and withdrew its approval of the project. Members ofthe Starved Rock area community may also have drawn the sameconclusion.

As the defendants explain, a statement is not defamatory ifit is substantially true. Such is not the case with the Starwoodletter. Initially we note that Starwood issued a documentcaptioned "RETRACTION" in which it acknowledged that the criticalsalient statements in the earlier letter "are not true." Although the first letter denied any involvement on the part ofStarwood in the development, Starwood was in fact negotiating itsinvolvement in the resort with the plaintiff through is agent,McGarrity. The defendants were aware of this fact and republishedthe letter denying Starwood's involvement notwithstanding thatknowledge. Readers could then quite reasonably draw theconclusion that the plaintiff had been lying all along about thebranding of the development. Because of the foregoing, we findthat the gist of the letter was defamatory and that the defendanthas stated or can state a claim for defamation per se anddefamation per quod.

Tortious Interference Claims

Next, the plaintiff alleges tortious interference with abusiness expectancy. Specifically, he claims that the defendantsinterfered with his expectancy of entering into a businessrelationship with both Starwood and the UIRVDA. He alleges thatthey did this by distributing the contents of the Starwood letterto various government officials and by causing the Deer CreekTownship to withdraw its approval of the project.

In order to state a cause of action for tortiousinterference with a business expectancy, plaintiff must allege:(1) that he had a reasonable expectation of entering into a validbusiness relationship; (2) the defendant had knowledge of theplaintiff's expectancy; (3) the defendant purposefully interferedin a way that prevented the plaintiff's legitimate expectancyfrom ripening into a valid business relationship; and (4) damagesto the plaintiff resulted from the defendant's interference.Fellhauer v. City of Geneva, 142 Ill. 2d 495, 511, 568 N.E.2d870, 878 (1991).

We believe that the defendant has established the existenceof a reasonable expectancy of the commencement of a businessrelationship with Starwood. The plaintiff was in contact withStarwood and also relied on McGarrity to develop a relationshipwith Starwood. The parties were in the preliminary stages ofnegotiations, and the record supports an inference that plaintiffhad a reasonable expectation that the relationship wouldcontinue. The republication of the letter prevented thatexpectancy from ripening into a viable business relationship.

A valid business relationship between plaintiff and UIRVDAmay also have been thwarted by the defamation. To obtain fundingfor the project, plaintiff was required to seek and acquire theapproval of the UIRVDA and the Governor. Plaintiff had receivedUIRVDA approval, and the only significant hurdle left to overcomewas receipt of the Governor's blessing. The plaintiff was well onhis way to getting that, as he had secured recommendations from anumber of prominent community leaders urging the Governor toapprove the project. Then, the letter was republished. Shortlyafter, the UIRVDA revoked its approval of the project, andplaintiff's chances of receiving bond funding were dashed. Webelieve the facts in the record indicate the existence of alegitimate expectancy of the continuation of a businessrelationship, which was damaged by the defendants' republicationof the Starwood letter.

The plaintiff also claims that the defendants tortiouslyinterfered with contractual relationships with both UIRVDA andwith McGarrity. In order to state a cause of action, theplaintiff must allege: (1) the existence of a valid andenforceable contract; (2) defendant's awareness of thecontractual obligation; (3) defendant's intentional andunjustified inducement of a breach; (4) subsequent breach causedby defendant's unlawful conduct; and (5) damages. Delta MedicalSystems v. Mid-America Medical Systems, Inc., 331 Ill. App. 3d777, 796, 772 N.E.2d 768, 785 (2002).

McGarrity and the plaintiff entered into an agreement tocooperate, exclusively, in the design and construction of theresort. The existence of the contract is supported by a lettersigned by Clarage, which expressed the parties' intent to worktogether, and by other documents in the record which describe theexact role that McGarrity was to play in the development. Webelieve it was error for the trial court to find there was nocontract.

We also believe that the plaintiff had a contract withUIRVDA. The authority entered into an agreement with Clarage toissue bonds to finance the project, and in return, Claragepromised to pay interest on the loaned money. The agreed termswere conditioned on the approval of UIRVDA, which had alreadybeen secured, and that of the Governor which it was reasonable toanticipate would have been forthcoming absent the defendants'interference. We believe, therefore, that it was also error forthe court to find that there was no set of facts that could beproven under the allegations of the complaint which would entitleplaintiff to relief on his claims of tortious interference.

Finally, the plaintiff has alleged a civil conspiracybetween the defendants. In order to state a claim for civilconspiracy, the plaintiff must allege (1) an agreement betweentwo or more persons; (2) to participate in an unlawful act, or alawful act in an unlawful manner; (3) an injury caused by anunlawful overt act caused by one of the parties; and (4) theovert act was done pursuant to and in furtherance of a commonscheme. Vance v. Chandler, 231 Ill. App. 3d 747, 750, 597 N.E.2d233, 236 (1992).

In this instance, the plaintiff has alleged as the unlawfulacts of the defendants' conspiracy defamation per se, defamationper quod, tortious interference with contractual relations andtortious interference with a business expectancy. The trial courtdismissed the claim since it found that the plaintiff could notstate a claim for the underlying unlawful acts enumerated in theother claims of the complaint. Since we have found improper thedismissal of the plaintiff's claims for defamation, interferencewith a business expectancy and interference with contract to beimproper, plaintiff's claim for civil conspiracy must bereinstated. The issue of the viability of that claim on itsmerits was not addressed by the trial court and is not before us. Finally, we are asked to decide to what extent thedefendants may be protected by privilege and the LocalGovernmental and Governmental Employees Tort Immunity Act (TortImmunity Act) (745 ILCS 10/1-10.1 et seq. (West 2002). The trialcourt found that conditional privilege protected Sheryl Kuzma,her law firm, and Michael Scully from liability to the extentthey published the defamatory letter to members of the Townshipboard. The court also found that Michael Scully was protectedfrom liability for distributing the letter to the township boardby the Tort Immunity Act. The plaintiff urges us to find thatScully and Kuzma were not protected by the Tort Immunity Act orconditional immunity, even for the distribution of the letter toTownship board members.

There are three classes of conditional privilege: (1) whenthe interests of the person publishing the defamatory statementare involved; (2) when the interests of the person to whom thedefamatory statement is published, or of some other third party,are involved, or (3) when a recognized interest of the public isinvolved. Kuwik v Starmark Star Marketing & Administration, Inc.,156 Ill. 2d 16, 29, 619 N.E.2d 129, 135 (1993). The defendanthas the burden of proving the existence of the privilege. Kuwik,156 Ill. 2d at 27, 619 N.E.2d at 134.

A qualified privilege may not protect the publisher fromliability in cases where the privilege has been abused. To provean abuse of the privilege, the plaintiff must show that there wasa reckless disregard of the plaintiff's rights and an intent toinjure. Kuwik, 156 Ill. 2d at 30, 619 N.E.2d at 136. Acts thatconstitute a reckless disregard for the plaintiff's interestsinclude the failure of the defendant to properly investigate thetruth of the statement and the failure to limit the scope of thestatement or to limit the distribution of the statement only toproper parties. Gibson v. Philip Morris, Inc., 292 Ill. App. 3d267, 275-76, 685 N.E.2d 638, 645 (1997).

Here, the defendants have alleged an interest in the subjectmatter of the letter that presumptively would protect them fromliability. The Township undoubtedly was concerned with the statusof the resort and had an interest in knowing whether the resortwould indeed go forward as advertised. Kuzma and Scully weremerely serving that need when they published the letter to theboard. Nevertheless, the plaintiff has also alleged facts thatindicate that the defendants knew the statements to be false whenthey sent the letter to members of the board. To the extent thatthis is true, and we must accept that it is, the conditionalprivilege will not shield them from liability for the challengedconduct. The alleged reckless disregard for the falsity of theletter would, if proven, bar the application of the conditionalprivilege. Kuwik, 156 Ill. 2d at 24-25, 619 N.E.2d at 133.

Defendant Kuzma also claims that she and her law firm areprotected by qualified privilege from liability for interferencewith a business expectancy or interference with contract. Wefind that, under the facts alleged, the qualified privilege doesnot apply.

To overcome an attorney's conditional privilege with respectto a client, a plaintiff must allege that the attorney acted withmalice independent of and unrelated to her desire to protect theinterests of her client. Schott v. Glover, 109 Ill. App. 3d 230,235, 440 N.E.2d 376, 380 (1982). To meet this burden, theplaintiff must set forth factual allegations from which actualmalice may reasonably be said to exist. Schott, 109 Ill. App. 3dat 235, 440 N.E.2d at 380. We believe that the plaintiff'sallegations are sufficient in this regard. The plaintiff hasalleged that defendant Kuzma republished a letter that she knewto be false and that the result of the republication was thecollapse of plaintiff's effort to develop the resort. We believethat it may reasonably be said that Kuzma's republication of thefalse and defamatory letter was not related to the protection ofher client's interests but, rather, was related to the sabotageof the plaintiff's interests. We find that the qualifiedprivilege does not apply.

Defendant Scully also claims that his actions are protectedby sections 2-206 and 2-201 of the Tort Immunity Act. Section 2-206 states:

"A public employee is not liable for an injury causedby his issuance, denial, suspension or revocation of orby his failure or refusal to issue, deny, suspend orrevoke, any permit, license, certificate, approval,order or similar authorization where he is authorizedby enactment to determine whether or not suchauthorization should be issued, denied, suspended orrevoked." 745 ILCS 10/2-206 (West 2002).

Scully argues that the section applies to his conduct becauseClarage was seeking the approval of the Deer Creek Township forthe resort. We fail to see how this fact is relevant. Although itis true that Clarage was seeking the Township's approval, Scullywas not granting or denying that approval when he republished thedefamatory letter. The section that Scully attempts to rely onprovides for immunity in two circumstances: when a publicofficial causes injury by issuing a license, permit or approval,and when a public official causes injury by refusing to issue alicense, permit or approval. Scully did not issue the approvalrequested by Clarage when he republished the letter, nor did hedeny approval. Instead, he published a defamatory statement,which has nothing to do with the granting or withholding of alicense. Section 2-206, by its very terms, does not apply.

Finally, defendant Scully claims the protection of section2-201 of the Tort Immunity Act. This section provides that "apublic employee serving in a position involving the determinationof policy or the exercise of discretion is not liable for aninjury resulting from his act or omission in determining policywhen acting in the exercise of such discretion even thoughabused." 745 ILCS 10/2-201 (West 2002). Again, we believe thatthe provision is inapplicable. To satisfy the provision, thedefendant's conduct must be either (1) the determination ofpolicy, or (2) an exercise of discretion pursuant to an officialpolicy. Stratman v. Brent, 291 Ill. App. 3d 123, 132, 683 N.E.2d951, 957 (1997).

Scully has failed to show that he was acting in the pursuitof a Township policy. Scully was appointed by the Township boardto meet with the plaintiff about the proposed development, butthere is no indication that the Township granted him any moreauthority than that. At the time of the republication of theletter, Clarage was not actively seeking any permit or approvalfrom the Township board. Nevertheless, Scully continued toinvolve himself in the plaintiff's affairs and published anallegedly defamatory statement damaging to the plaintiff'sinterests. Scully has not shown that this was done pursuant to anofficial policy of the Township. We conclude that section 2-201does not offer Scully any protection.

CONCLUSION

We believe that the trial court erred in finding that theStarwood letter, when republished by the defendants, was notdefamatory. We find that the letter was substantially untrue andthat the gist of the letter was defamatory and capable ofsupporting claims for defamation per se and defamation per quod.In addition, we find that the plaintiff has sufficiently allegedthe existence of a business expectancy with Starwood and with theUIRVDA, and that he has also adequately alleged the existence ofcontracts with both McGarrity and with the UIRVDA. Finally, wefind that the defendants' conduct is not protected by conditionalprivilege or the Tort Immunity Act. The order of the trial court,insofar as it differs from this opinion, is reversed, and thecase is remanded for further proceedings.

Reversed and remanded.

SLATER, J., concurs.

LYTTON, J., dissents.

I dissent because I think a qualified privilege applies to allof the counts brought by the plaintiff in this complaint.

The majority believes that a qualified privilege applies tothe facts alleged in this case, but rejects the application of theprivilege because of plaintiff's general allegations of thedefendants' reckless disregard of plaintiff's interests.

However, a plaintiff seeking to avoid a qualified privilegemust also allege that a defendant's desire to harm him wasindependent of and unrelated to an attorney's obligation to protecther client (see Schott v. Glover, 109 Ill. App. 3d 230 (1982)), ora township official's duty to his local government. See Kuwick v.Starmark Star Marketing & Administration, Inc., 156 Ill. 2d 16(1993). Plaintiff does not make these allegations, and themajority cannot tell us where these allegations might be.

The essence of Starwood's September 20th letter states thatplaintiff had no discussions with Starwood, that plaintiff had notreceived an agreement from Starwood for a licensing agreement froma Sheraton Hotel at the resort, and that plaintiff had notsubmitted an application for a Starwood franchise. The majorityhas not stated why Kuzma or Scully knew the letter was false,particularly since the letter was substantially true. The majoritysimply does not and cannot explain why the defendant's conduct wasunrelated to the interests that give rise to the privilege in thefirst place. See Guice v. Sentinel Technologies, Inc., 294 Ill.App. 3d 97 (1997). Since there is no indication in the pleadingsthat any of the defendant's acts were independent of, and unrelatedto, the protection of the interests of the township, the trialcourt should be affirmed.

A qualified privilege also applies to the tortiousinterference claims, and the same pleading requirements anddefenses apply as discussed above.

The allegations made on these issues include defendants'contact with Starwood and UIRVDA in their capacities as townshipattorney and trustee. While somewhat intrusive, their behavior intrying to ascertain the relationship between plaintiff and Starwoodwas of a fact-finding nature. Fact-finding is surely a function ofa township attorney and township official facing the kind ofproject that plaintiff proposed. To overcome the qualifiedprivilege, a plaintiff must have alleged facts sufficient to provethat defendants' acted with actual malice, that is, a desire toharm plaintiff which was independent of and unrelated to theirfunction in protecting the township interests. Citylink Group, etal. v. Hyatt Corp, 313 Ill. App. 3d 829 (2000); Schott v. Glover,109 Ill. App. 3d 230 (1982). The majority never discloses whatthese allegations are. As stated above, plaintiff had not met itsburden of pleading that the defendant's conduct was unjustified ormalicious. See Fellhauer v. Geneva, 142 Ill. 2d 495 (1991).

I would affirm the trial court.