FIRST DIVISION

January 21, 2003

JUSTICE McNULTY delivered the opinion of the court:

Michael Morris, an Ameritech employee, appeals from thedismissal of his complaint charging Ameritech with eavesdroppingon him and inspecting records of his telephone use, therebyinvading his privacy. We affirm summary judgment on the chargeof eavesdropping because Morris did not present admissibleevidence that Ameritech knew any of its employees eavesdropped onMorris. We also affirm judgment on the invasion of privacy countbecause federal law authorized Ameritech's use of its records toprotect its right not to pay employees for time they falselyclaimed to have spent working.

In 1995 Morris worked for Ameritech as an installer. Merilyn Barrett, a security manager for Ameritech, conductedsurveillance of Morris's home on April 12, 1995. She sawMorris's truck in his driveway around 10:20 a.m., and again from12:45 p.m. until 1:50 p.m.

Barrett looked up phone records detailing calls made fromMorris's home during his work hours in February and March 1995. The message unit detail (MUD) records showed numerous callsduring normal work hours those months. Some days Morris made nocalls, and many days the calls came in a single cluster nearnoon, so that he might have made the calls over his lunch break.But on some days Morris made calls throughout the day.

Most of the calls took little time. Three-fourths of thecalls took less than five minutes. But one call in particularstood out. On March 27, 1995, one call from Morris lasted from10:13 a.m. until 12:15 p.m.

When Morris arrived for work on May 8, 1995, his supervisortold him to meet with Barrett. Morris contacted a unionrepresentative, and Morris and the union representative met withBarrett. Barrett confronted Morris with evidence he hadfalsified work records and that he had been home, not working,during some of the hours he claimed to have worked.

Ameritech held a formal dismissal hearing on May 15, 1995. Kenneth Larimer, from Ameritech's labor relations department, ranthe meeting, attended by Morris, Morris's supervisor, and a unionrepresentative. Barrett did not attend the meeting. Thefollowing day Ameritech fired Morris. Ameritech rehired Morrislater in 1995 and assigned him to work as an installer out of anoffice farther from his home.

In May 1996 Morris sued Ameritech for invasion of privacy byeavesdropping and inspecting the MUD records, and foreavesdropping in violation of section 14-2 of the Criminal Codeof 1961 (Code) (720 ILCS 5/14-2 (West 1994)). Ameritech movedfor summary judgment on the count for violating the Code, and itmoved to dismiss the invasion of privacy count.

Ameritech appended excerpts of depositions from Barrett andMorris to the summary judgment motion. Morris appended severaldepositions and affidavits to his response. In his depositionMorris testified that in the meeting on May 8, 1995, Barrettasked if the two-hour phone call on March 27 involved thehospitalization of one of Morris's children and whether hediscussed purchasing his son a car. Morris answered that he didnot remember the call. Barrett persisted, asking furtherquestions suggesting the subject of the phone call. Morrissubsequently remembered a call to his ex-wife in which theydiscussed hospitalizing their son for drug rehabilitation andpurchasing him a car. Morris suggests that a fact finder couldinfer that Barrett must have learned the subject of the two-hourcall by eavesdropping.

In his affidavit Morris swore that Larimer, at the meetingon May 15, 1995, "us[ed] the personal information Barrett hadknown." Morris said Larimer repeatedly asked him about "whatelse was going on in [his] personal life which could have caused[him] to be home during the day so often." But the followingcolloquy occurred at Morris's deposition:

"Q. Now, isn't it true when Mr. Larimer startedasking you about the reasons that you were going homeand falsifying records, you also stated to him thatyour wedding of April 15th was growing near and youwere having problems with the kids and your ex-wife?

A. Correct.

Q. And at this meeting you did become emotionallydistraught?

A. Correct.

Q. And specifically what private facts are yousaying were disclosed at the dismissal panel hearingand by whom?

A. In regards to my son's hospitalization.

Q. So those - you're speaking of the things thatyou brought out when you were distraught at thedismissal panel hearing?

A. Correct.

Q. That you told to the people at the dismissalpanel hearing?

A. Correct."

Larimer testified in his deposition that, at the meeting onMay 15, Morris volunteered information about his personalproblems when asked to explain the falsified work records. Larimer believed that Morris said the two-hour phone callconcerned hospitalization of Morris's son.

Morris, in his affidavit, swore that his fiancée and his ex-wife both complained of hearing clicks on their phone lines. Headded that an Ameritech security investigator said, during atraining seminar, that Ameritech's security personnel routinelylisten to phone calls of employees under investigation. Morrisadmitted that Ameritech instructed technicians to disengageimmediately from any phone line in use because they should neverlisten in to calls between customers.

Barrett's supervisor, who was in charge of Ameritech'scorporate security department, admitted that Ameritech employeessometimes eavesdrop on customer calls. Ameritech fires anyemployee caught eavesdropping. Security personnel have noauthority to eavesdrop on the home telephone calls of employeesunder investigation. In particular, Barrett did not haveauthorization for eavesdropping on Morris's telephone calls.

Barrett testified that she did not eavesdrop on Morris'scalls. She did not supervise anyone.

For the purpose of resolving the motion for summaryjudgment, the trial court assumed that Morris could prove thatBarrett eavesdropped on him. The court granted Ameritech summaryjudgment on the count for violating the Code, because Morris didnot present sufficient evidence to show that Ameritech boreresponsibility for the alleged eavesdropping. The court thendismissed the count for invasion of privacy on grounds thatAmeritech had the right to use the MUD records to find outwhether Morris had falsified his work records.

Morris moved to reconsider. In the motion he sought leaveto amend the count for invasion of privacy. He did not append aproposed amendment to the motion.

On appeal Morris argues that he presented sufficientevidence to survive summary judgment on the count chargingAmeritech with eavesdropping in violation of Code section 14-2,which provides:

"A person commits eavesdropping when he:

(a) Uses an eavesdropping device to hear or recordall or any part of any conversation ***; or

(b) Uses or divulges *** any information which heknows or reasonably should know was obtained throughthe use of an eavesdropping device." 720 ILCS 5/14-2(West 1994).

We review the summary judgment de novo. Travelers Insurance Co.v. Eljer Manufacturing, Inc., 197 Ill. 2d 278, 292 (2001).

First, Morris argues that Ameritech, acting through Barrett,directly violated the Code. Section 5-4(a) of the Codeestablishes when a corporation bears criminal responsibility fora violation of the Code:

"A corporation may be prosecuted for thecommission of an offense if, but only if:

(1) The offense is a misdemeanor, *** and anagent of the corporation performs the conduct which isan element of the offense while acting within the scopeof his or her office or employment ***; or

(2) The commission of the offense is authorized,requested, commanded, or performed, by the board ofdirectors or by a high managerial agent who is actingwithin the scope of his or her employment in behalf ofthe corporation." 720 ILCS 5/5-4(a) (West 1994).

Thus, a corporation can commit a misdemeanor through the acts ofits agents, but it can commit a felony only through the acts ofhigh managerial agents. Eavesdropping is a felony. 720 ILCS5/14-4 (West 1994). Therefore, Ameritech can be criminallyliable for eavesdropping only through the acts of high managerialagents.

A high managerial agent is "an officer of the corporation,or any other agent who has a position of comparable authority forthe formulation of corporate policy or the supervision ofsubordinate employees in a managerial capacity." 720 ILCS 5/5-4(West 1994). Barrett, who is not an officer of Ameritech, had nosupervisory authority over any other Ameritech employee. Morrispresented no evidence that Barrett formulated corporate policy. Thus, the evidence presented demands the conclusion that Barrettis not a high managerial agent of Ameritech.

Morris contends that his affidavit supplies sufficientevidence that Ameritech's high managerial agents authorizedsecurity personnel to eavesdrop. In the affidavit Morris sworethat an unidentified security investigator said, during atraining seminar, that security personnel routinely listened tothe phone calls of persons under investigation. Morris seeks touse the investigator's out-of-court statement as substantiveevidence that security personnel routinely, and with the implicitapproval of management, eavesdropped on the phone calls ofemployees. The evidence is hearsay. See Leonardi v. LoyolaUniversity of Chicago, 168 Ill. 2d 83, 99 (1995). Morris doesnot explain why the court should accept this hearsay asadmissible evidence. No admissible evidence in the recordexplains how the investigator came to attend the training seminaror in what circumstances Morris heard the remark. This courtmust not consider the inadmissible hearsay on this motion for summary judgment. See Lajato v. AT&T, Inc., 283Ill. App. 3d 126,137 (1996).

Barrett's supervisor testified that he did not authorizeBarrett to eavesdrop, and Ameritech fires any employee found tohave eavesdropped. Morris did not present any admissibleevidence that any high managerial agent authorized or requestedBarrett to eavesdrop on Morris. The evidence cannot support afinding that Ameritech, as a corporation, committed the felony ofeavesdropping.

The Code establishes that a principal may be civilly liablefor an agent's eavesdropping even if the principal is notcriminally responsible. 720 ILCS 5/14-6(1)(b)(West 1994). In thecontext of civil liability for eavesdropping,

"A principal is any person who:

(1) Knowingly employs another whoillegally uses an eavesdropping device in thecourse of such employment; or

(2) Knowingly derives any benefit orinformation from the illegal use of an eavesdroppingdevice by another[.]" 720 ILCS 5/14-1 (West 1994).

Morris contends that Ameritech is responsible as a principalfor its agent Barrett because Ameritech knew it employed Barrettand Barrett eavesdropped on Morris in the course of heremployment.

The federal court encountered this interpretation of theCode in Cebula v. General Electric Co., 614 F. Supp. 260 (N.D.Ill. 1985). In that case the plaintiff's supervisor, Taken, taperecorded a conversation he had with the plaintiff prior todischarging the plaintiff. The court held that General Electric,the defendant, did not qualify as a principal under the Codebecause the defendant did not knowingly employ the supervisor totape the conversation. The court said:

"Cebula's argument assumes that the Act's words'knowingly employ' merely mean that GE must have knownthat it employed Taken. We disagree with this readingof the Act. Such a reading renders the word,'knowingly,' superfluous, since the statute could makethe same point without the word. We think it clear fromthe context of the statute that the employer must knowthat the employee is eavesdropping within the scope ofhis employment. This reading gives meaning to the word'knowingly.'" (Emphasis in original.) Cebula, 614 F.Supp. at 267 n.4.

We agree with the federal court. Employers, as a rule, knowwhom they employ. The statute, as Morris interprets it, leavesthe employer liable for eavesdropping whenever any known employeeeavesdrops in the course of employment, regardless of theemployer's notice of the possibility of eavesdropping andregardless of the employer's efforts to prevent eavesdropping. The General Assembly could have imposed liability in suchcircumstances without using the word "knowingly" in the statute. While the statute is somewhat awkwardly phrased, we find that thegeneral assembly meant to impose liability only if the employerknows that its employee is eavesdropping.

Morris claims that he can prove that Larimer knew thatBarrett eavesdropped on Morris and Ameritech knowingly benefittedfrom the eavesdropping. In his affidavit Morris asserted thatLarimer, a high managerial agent, asked questions about Morris'spersonal life, "using the personal information Barrett hadknown." But Morris did not specify the questions Larimer askedor how the questions used any personal information.

In his deposition Morris admitted that, at the meeting withLarimer, Morris supplied the personal information about himself. Larimer corroborated that testimony. Morris's conclusorystatement in his affidavit that Larimer used information helearned from Barrett cannot overcome the deposition testimonyconcerning the source of the personal information. See Jones v.Dettro, 308 Ill. App. 3d 494, 499 (1999). Larimer's unspecifieduse of personal information does not create a triable issue offact on the issue of whether Larimer knew Barrett eavesdropped onMorris.

The head of Ameritech's security department knew of someinstances in which employees eavesdropped on customer calls. Morris argues that a fact finder could infer that Ameritech'shigh managerial agents, including Larimer, must have known thatBarrett eavesdropped to obtain the personal information she usedin the meeting with Morris on May 8, 1995.

The argument has one gaping hole. Morris offered noevidence that Larimer or any other high managerial agent ofAmeritech knew what Barrett said at the meeting on May 8. OnlyMorris, Barrett, and a union representative attended thatmeeting. While Barrett must have told her superiors somethingabout her investigation before the meetings, her notes indicateonly that she told them about seeing Morris's van at his homeduring work hours, and she told them about the MUD records. Barrett would have strong motives for concealing hereavesdropping, if it occurred: Ameritech had a policy of firingany employee known to have eavesdropped. The evidence cannotsupport an inference that Larimer or any other Ameritech managerknew Barrett eavesdropped. Thus, the evidence does not show thatAmeritech knowingly benefitted from the eavesdropping. The trialcourt correctly granted Ameritech summary judgment on the countfor eavesdropping in violation of section 14-2 of the Code.

Ameritech also moved, pursuant to section 2-615 of the Codeof Civil Procedure (735 ILCS 5/2-615 (West 1998)), to dismiss thecount for invasion of privacy. Section 2-615 authorizesdismissal where the complaint fails to state a cause of action. Morris alleged that Ameritech invaded his privacy both byinspecting records of his phone use and by eavesdropping. Morrisargues that the count sufficiently states a claim based onAmeritech's eavesdropping and, therefore, the trial court shouldnot have granted the motion to dismiss pursuant to section 2-615.

We agree. Ameritech did not challenge the sufficiency ofthe allegations regarding eavesdropping in the motion to dismiss. In effect, Ameritech sought summary judgment on the charge ofinvasion of privacy by eavesdropping, while it sought dismissalof the charge related to MUD records for failure to state aclaim, without distinguishing the two separate bases for themotion regarding the invasion of privacy count. Thus, Ameritechpresented an improper hybrid motion. See Janes v. First FederalSavings & Loan Ass'n of Berwyn, 57 Ill. 2d 398, 406 (1974).

However, we need not remand for correction of the motionbecause Morris suffered no prejudice from the improperdesignation of the motion. See Janes, 57 Ill. 2d at 407. Morrishad full opportunity to respond to arguments concerning evidenceof eavesdropping before the ruling on the count chargingAmeritech with violating section 14-2 of the Code, while themotion to dismiss the invasion of privacy count focused attentionon the legal sufficiency of the claim based on use of the MUDrecords. We review dismissal of the invasion of privacy count denovo. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill.2d 112, 116 (1993).

Morris argues that, under the common law of agency,Ameritech is liable as the principal for the acts of its agentBarrett. We find that the Code preempts the common law forimposition of civil liability on a principal for an agent'seavesdropping.

Section 14-6 of the Code sets out circumstances in which aprincipal may be civilly liable for the acts of its agents whenthe agents eavesdrop. In the absence of the statute, the commonlaw of agency would govern the principal's liability for theagent's eavesdropping. In general, where a statute applies to anarea formerly covered by the common law, we interpret the statuteas adopting the common law unless the general assembly clearlyand specifically expressed an intention to change the common law. In re Visitation With C.B.L., 309 Ill. App. 3d 888, 890-91(1999). But once "the legislature has provided a remedy on asubject matter[,] we are not only loath but in addition harborserious doubts as to the desirability and wisdom of implementingor expanding the legislative remedy by judicial decree." Deboltv. Mutual of Omaha, 56 Ill. App. 3d 111, 116 (1978).

In Debolt the defendant, an insurance company, refused topay disability benefits it owed to its insured, the plaintiff. The plaintiff sought to recover punitive damages at common lawfor breach of the duty of good faith and fair dealing. The courtheld that the General Assembly preempted any such common lawaction against the insurer by adopting a statute that permittedthe insured to recover specified amounts if the insurerunreasonably and vexatiously refused to pay benefits due. Debolt,56 Ill. App. 3d at 116; see also Mazur v. Hunt, 227 Ill. App. 3d785, 788-89 (1992); C.B.L., 309 Ill. App. 3d at 894.

We find the reasoning of Debolt and C.B.L. applicable here. By adopting section 14-6 of the Code, our General Assemblyestablished limits on the cases in which a principal may be heldcivilly liable for eavesdropping by an agent. Thus, the reasonsfor granting summary judgment on the count for violation ofsection 14-2 of the Code constitute sufficient grounds forgranting summary judgment on the claim for invasion of privacy byeavesdropping.

Morris claims that Ameritech invaded his privacy bysearching MUD records for evidence that he had been at home,making telephone calls, at times he claimed to have spent workingon installations. The decision in Schmidt v. Ameritech Illinois,329 Ill. App. 3d 1020 (2002), controls our determination here.

Schmidt, an Ameritech employee, received disability benefitsfrom Ameritech in 1994. Ameritech's disability policy requiredany disabled employee to obtain written authorization for anyvacation taken while on disability leave. Schmidt's supervisorreviewed MUD records for Schmidt's home. The records helped thesupervisor identify the Canadian resort where Schmidt vacationedwhile receiving disability benefits. Schmidt sued Ameritech forunreasonable intrusion upon seclusion. The trial court enteredjudgment on a jury verdict in favor of Schmidt, and Ameritechappealed.

The appellate court observed that Schmidt's cause of action,like any action for invasion of privacy, required pleading andproof of an unauthorized act that invaded the plaintiff'sprivacy. Schmidt, 329 Ill. App. 3d at 1030. The court found thatfederal telecommunications law authorized Ameritech "to use itsrecords to protect its rights and property." Schmidt, 329 Ill.App. 3d at 1032. The restriction on vacations during disabilityprotected Ameritech's interest in paying only once for eachemployee's allotted vacation time. Schmidt's deceptive receiptof disability pay for time spent on vacation would result inAmeritech paying for a second vacation when Schmidt took hisallotted vacation time after returning from the disability. Thecourt held that "[b]ecause Ameritech's investigation into anunnecessary depletion of its monetary resources necessarilyinvolves a protection of its rights and property, especially inlight of [Schmidt's] admittedly deceitful actions, we find thatAmeritech's conduct was authorized and protected" by the federalstatute. Schmidt, 329 Ill. App. 3d at 1034.

Thus, under Schmidt, federal law authorized Ameritech to useits records, including MUD records, to protect its rights andproperty. Ameritech has a property interest in not paying itsemployees, like Morris, for work at times when the employees areat home and not working.

Morris points out that his complaint on its face does notallege facts showing that Ameritech used the MUD records toinvestigate allegedly false work records or to protect any otherproperty interest. The complaint does not itself state factsshowing that federal law authorized the intrusion. Therefore,Morris argues, the trial court should not have dismissed thecomplaint pursuant to section 2-615 of the Code of CivilProcedure (735 ILCS 5/2-615 (West 1998)), which allows dismissalonly where the complaint on its face fails to state a cause ofaction.

Even if the trial court reasoned incorrectly or based thedismissal on the wrong statute, we may affirm the trial court'sjudgment on any basis supported by the record. Leonardi, 168 Ill.2d at 97. Assuming that Morris pled sufficient facts to survivethe motion to dismiss under section 2-615, we find nonethelessthat the record requires entry of summary judgment in favor ofAmeritech. The depositions and affidavits all show thatAmeritech used the MUD records to investigate its suspicions thatMorris falsified work records and sought payment for work time heactually spent at home doing no work for Ameritech. The court inSchmidt held that federal law authorized this use of MUD records. Morris does not explain what evidence he could have presented ona proper summary judgment motion to show that Ameritech used theMUD records in ways not authorized by federal law. BecauseMorris cannot show an unauthorized use of the phone records, thetrial court correctly entered judgment in favor of Ameritech.

Finally, Morris contends that the trial court erred bydenying him leave to amend the count for invasion of privacy. Nothing in the record on appeal indicates what changes Morriswould have made to the count or what facts he would have pled toshow Ameritech lacked authorization for the use it made of theMUD records. By failing to include a proposed amended complaintin the record on appeal, Morris waived the issue of whether thetrial court abused its discretion by denying him leave to amend.Kirk v. Michael Reese Hospital & Medical Center, 117 Ill. 2d 507,521 (1987).

Ameritech is not criminally responsible for Barrett'salleged eavesdropping because Barrett is not a high managerialagent of Ameritech and Morris presented no admissible evidencethat any high managerial agent authorized Barrett to eavesdrop onMorris. Ameritech cannot be civilly liable as the principal forBarrett's alleged eavesdropping because Morris presented noevidence that Ameritech's high managerial agents knew thatBarrett eavesdropped on Morris. Under Schmidt, Ameritech hadauthorization to use MUD records to determine whether Morrisfalsified work records. We need not decide whether the trialcourt should have dismissed any part of the complaint undersection 2-615 of the Code of Civil Procedure Law, because therecord supports the entry of summary judgment in favor ofAmeritech on both counts of the complaint. Accordingly, weaffirm the judgment dismissing Morris's complaint.

Affirmed.

GORDON, P.J. and O'MALLEY, J., concur.